* Trina Bengtsson, Res. V. Xiangling Kong, Bingtuan Yin, Et Al., Apps.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TRINA BENGTSSON,
Respondent,
v.
SUNNYWORLD INTERNATIONAL,
INC., a Washington corporation,
XIANGLING KONG, an individual, and
BINGTUAN YIN, an individual,
Appellants.
DIVISION ONE
No. 79016-1-I
PUBLISHED OPINION
DWYER, J. — This is an employment discrimination case. Trina Bengtsson
filed suit against Sunnyworld International, Inc., which owns and operates a
private preschool, and two of its owners, Xiangling Kong and Bingtuan Yin
(collectively Sunnyworld), alleging that she was terminated from her position as
the preschool’s director due to pregnancy discrimination. The matter proceeded
to trial, where the jury found that Sunnyworld had indeed discriminated against
Bengtsson due to her pregnancy. Sunnyworld now appeals, contending that
several evidentiary errors resulted in prejudice requiring a new trial. In response,
Bengtsson asserts that none of the assigned errors are meritorious and requests
an award of attorney fees on appeal. Because Sunnyworld’s contentions are
meritless, and because RCW 49.60.030(2) authorizes an award of attorney fees
in discrimination cases such as this, we affirm the judgment and grant
Bengtsson’s request for an award of attorney fees on appeal.
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No. 79016-1-I/2
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I
In August 2015, Yin and Kong hired Bengtsson to work as the director of
Sunnyworld’s preschool. Over the course of the following year, Bengtsson
received positive feedback and two raises as a result of her work performance at
the preschool. This abruptly changed in January 2017 when Bengtsson informed
Kong that she was pregnant and intended to take maternity leave starting in June
2017. On February 3, 2017, less than one month after Kong learned that
Bengtsson was pregnant, Sunnyworld terminated Bengtsson’s employment.
Sunnyworld communicated the firing to Bengtsson through its agent, Mei
Lei.1 Bengtsson testified at trial that Lei informed her that Sunnyworld’s owners
wanted her to “take unemployment and rest before the baby,” and that “people in
China rest before the baby.” Lei admitted during her testimony to suggesting that
Bengtsson check whether she could obtain unemployment and that she told
Bengtsson that women in China usually rest before giving birth, but insisted that
she only discussed these topics during idle chit-chat after informing Bengtsson of
her termination.
Bengtsson protested her termination, explaining to Lei that in America
pregnant women work through their pregnancies and that she personally did not
need to rest. At this point, Lei informed Bengtsson that Sunnyworld’s owners
were not happy with her work. When pressed for specifics on what part of her
performance was not satisfactory, Lei made a general reference to a concern
1 Lei worked for Sunnyworld in several capacities, helping to interview candidates for the
school director position, serving as the go between for Bengtsson and Yin and Kong during
Bengtsson’s employment, providing bookkeeping and payroll services, and firing employees.
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No. 79016-1-I/3
3
about receipts, but did not elaborate as to any specifics.
Bengtsson later sought clarification as to why she was fired in a video call
with Kong, during which Kong informed her that Sunnyworld’s board—which
Bengtsson did not know existed prior to that conversation—had decided to
terminate her employment due to financial concerns with enrollment numbers.
Receipts were not mentioned as an explanation for her termination during this
call. However, Kong also said that she hoped Bengtsson could come back to
work at Sunnyworld after the baby arrived and Bengtsson had taken about a year
off. In a follow-up message to Bengtsson, Lei confirmed that Kong hoped
Bengtsson would come back to Sunnyworld in the future and offered to be a
reference for her in the meantime.
Bengtsson subsequently filed this lawsuit against Sunnyworld
International, Inc. and Yin and Kong, alleging that they had violated the
Washington Law Against Discrimination, chapter 49.60 RCW, by terminating her
employment due to her pregnancy. In its answer to this lawsuit, Sunnyworld
asserted an affirmative defense of unclean hands, which it later clarified during
discovery was based on an accusation that Bengtsson had embezzled funds
from the company for personal expenses. However, when pressed during
discovery to provide the factual basis for this accusation, Sunnyworld admitted
that it had no factual basis to believe that Bengtsson had embezzled funds and
did not actually believe that she had done so. As a result, this affirmative
defense was later dismissed on summary judgment.
During discovery, Sunnyworld asserted that its board was comprised of
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No. 79016-1-I/4
4
three owners, Kong, Yin, and a 51 percent majority shareholder Guagzhi Wu.
Because Bengtsson had never met or even heard of Wu before this lawsuit,
Bengtsson’s counsel attempted to schedule a deposition of Wu on multiple
occasions. Sunnyworld never presented him for deposition. Sunnyworld’s
counsel informed Bengtsson’s counsel that Wu was suffering from the mental
illness of severe depression, was living in China, and was too ill to travel or be
deposed. However, Sunnyworld never substantiated these assertions by
providing evidence, such as a sworn declaration or affidavit from Wu or a care
provider, detailing Wu’s asserted malady, prognosis, or restrictions. It is
undisputed that Wu was never seen or questioned by Bengtsson or her attorneys
prior to, during, or after the end of the discovery period.
Despite failing to produce Wu for deposition, Sunnyworld planned to offer,
through Yin and Kong, testimony at trial regarding out of court statements Wu
allegedly made regarding the decision to terminate Bengtsson’s employment.
Given that neither Bengtsson nor her attorneys had ever had the opportunity to
meet Wu, let alone question him, Bengtsson moved in limine to exclude any
evidence of Wu’s alleged out of court statements. After hearing argument from
both parties, the trial court ruled that Wu’s alleged out of court statements were
inadmissible because they were hearsay and were more prejudicial than
probative under ER 403. However, the trial court also ruled that Sunnyworld
would be permitted to introduce evidence that Sunnyworld’s board consisted of
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No. 79016-1-I/5
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three people,2 that the board met in September 2016 and February 2017, that at
both meetings the board discussed terminating Bengtsson, that the board voted
unanimously in February 2017 to terminate Bengtsson, and that the reasons for
that decision were related to financial concerns such as low enrollment.
During trial, Bengtsson testified to her experience working at Sunnyworld,
her firing by Sunnyworld, and also that Sunnyworld falsely accused her of
embezzlement after she filed her lawsuit. Yin and Kong also testified at trial,
asserting that they fired Bengtsson due to financial mismanagement concerns,
including concerns regarding enrollment and concerns regarding 20 transactions
on the company debit card for which, they asserted, Bengtsson did not provide
receipts. Sunnyworld also attempted to elicit testimony that Kong had found an
additional 110 missing receipts after terminating Bengtsson, but the trial court
barred the admission of this testimony because it was not relevant to the
termination decision.3 Wu did not appear or testify at trial.
Following the presentation of evidence, each side presented its theory of
the case to the jury, with Bengtsson arguing that her termination was motivated
by discrimination against her due to her pregnancy and Sunnyworld arguing that
her termination was premised solely on financial mismanagement. The jury then
returned a verdict for Bengtsson, awarding her $400,000 in emotional harm
damages and $66,430 in past and future earnings.
2 Although it permitted Sunnyworld to enter into evidence testimony that there were three
board members, the court explicitly barred Sunnyworld from introducing the relative ownership
percentage of each board member. Sunnyworld does not assign error to this ruling on appeal.
3 Sunnyworld did not plead an after-acquired evidence defense, and Sunnyworld does
not challenge the judge’s ruling that the additional 110 receipts discovered after termination were
not relevant to the termination decision at issue in the case.
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No. 79016-1-I/6
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Thereafter, Sunnyworld unsuccessfully moved for a new trial. After the
trial court denied the motion, Bengtsson successfully sought an award of attorney
fees.
Sunnyworld appeals.
II
Sunnyworld contends that the trial court erred by: (1) excluding testimony
regarding Wu’s alleged statements to Sunnyworld’s board about terminating
Bengtsson’s employment, (2) excluding evidence that Sunnyworld had, after
firing Bengtsson, discovered that she had failed to provide receipts for 110
transactions on the company debit card, and (3) denying Sunnyworld’s motion for
a new trial because those evidentiary errors individually or cumulatively
prejudiced Sunnyworld. We disagree.
A
“‘The standard of review for evidentiary rulings made by the trial court is
abuse of discretion.’” Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017)
(quoting City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004)). Trial
judges have “wide discretion in balancing the probative value of evidence against
its potential prejudicial impact.” Cole v. Harveyland, LLC, 163 Wn. App. 199,
213, 258 P.3d 70 (2011) (citing State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668
(1984)). A trial court abuses that discretion when its ruling is “‘manifestly
unreasonable or based upon untenable grounds or reasons.’” Veit v. Burlington
N. Santa Fe Corp., 171 Wn.2d 88, 99, 249 P.3d 607 (2011) (internal quotation
marks omitted) (quoting Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230
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No. 79016-1-I/7
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P.3d 583 (2010)). However, “[e]videntiary error is grounds for reversal only if it
results in prejudice.” City of Seattle v. Pearson, 192 Wn. App. 802, 817, 369
P.3d 194 (2016) (citing State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120
(1997)). “An error is prejudicial if ‘within reasonable probabilities, had the error
not occurred, the outcome of the trial would have been materially affected.’” City
of Seattle, 192 Wn. App. at 817 (quoting State v. Smith, 106 Wn.2d 772, 780,
725 P.2d 951 (1986)).
Similarly, we review the decision to deny a motion for a new trial, brought
on the basis of asserted evidentiary error, for an abuse of discretion. Hollins v.
Zbaraschuk, 200 Wn. App. 578, 582, 402 P.3d 907 (2017) (quoting Clark v.
Teng, 195 Wn. App. 482, 491, 380 P.3d 73 (2016)). To determine whether the
trial court has abused its discretion in denying a motion for a new trial, we
determine whether “‘such a feeling of prejudice [has] been engendered or located
in the minds of the jury as to prevent a litigant from having a fair trial.’” Alum. Co.
of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)
(internal quotation marks omitted) (quoting Moore v. Smith, 89 Wn.2d 932, 942,
578 P.2d 26 (1978)).
B
Sunnyworld contends that the trial court committed reversible error by
barring, pursuant to ER 802 and ER 403, the admission of Wu’s alleged
statements asserting that the school was losing money and needed to take
action and telling Yin and Kong to either fire Bengtsson or shut down the school.
This is so, Sunnyworld asserts, because the evidence was admissible for a
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No. 79016-1-I/8
8
nonhearsay purpose (evidence of Yin and Kong’s state of mind immediately
before the board voted to terminate Bengtsson), the evidence was not more
prejudicial than probative, and the exclusion of the evidence was prejudicial.4
Generally, relevant evidence—evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence—is
admissible unless otherwise limited by the rules of evidence. ER 401; ER 402.
One such limitation imposed by our evidentiary rules provides for the exclusion of
relevant evidence “if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” ER 403. Another provides for the general exclusion of
hearsay, ER 802, which “is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” ER 801(c) (emphasis added).
Sunnyworld asserts that the trial judge improperly applied ER 802 and ER
403 to bar the admission of two of Wu’s alleged statements to Kong and Yin “that
immediately preceded and caused the termination” of Bengtsson. Reply Br. of
Appellant at 22. The specific alleged statements sought to be admitted were set
4 Despite their use of the term “state of mind,” Sunnyworld’s briefing does not present any
ER 803(a)(3) argument. They do not argue that Wu’s statements constitute admissible hearsay
because they reveal his state of mind. Instead, Sunnyworld asserts that the statements are
admissible for the nonhearsay purpose of establishing their effect on Yin and Kong, who heard
the statements. Because the exception for state of mind is explicitly applicable only when
seeking to introduce hearsay statements to establish “the declarant’s then existing state of mind,
emotion, sensation, or physical condition,” Wu’s hearsay statements would not be admissible for
their truth to establish the state of mind of Yin or Kong. ER 803(a)(3) (emphasis added).
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No. 79016-1-I/9
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forth solely in an offer of proof by defense counsel at trial: “Mr. Wu [says], ‘Look,
we’re losing money. You have to do something about this, or we’re going to
have to close the company down.’ . . . [H]e [also] says, ‘Either shut the company
down or replace the director.’” In its ruling excluding these statements, the trial
court stated:
I don’t even know—and I’m sure this isn’t the case, but I don’t even
know if there is a Mr. Wu. I mean, we don’t know. It sounds like
he’s never been deposed. The plaintiff said they never heard of a
board before. I mean, I’m sure that—I’m sure there is, you know,
but in terms of reliability, I don’t know.
You can’t have someone who’s never been deposed and
never been seen be attributed to have done—be the decision
maker and say, it just goes to state of mind. It is clearly offered for
the truth of the matter.
So, I mean, I think it’s kind of rank hearsay. I understand the
argument about state of mind, but I don’t think it—I don’t think it
really applies here. I think it’s much more prejudicial than probative
when it’s your main person that you’re saying was the reason for
this decision, and that person’s never been seen or been
questioned.
1
Sunnyworld first asserts that the trial court incorrectly concluded that Wu’s
alleged statements were offered for their truth despite defense counsel’s
protestations that Sunnyworld wanted to admit them to show the effect they had
on Yin’s and Kong’s states of mind. We disagree.
Citing to State v. Gonzalez-Gonzalez, Sunnyworld correctly asserts in its
reply brief that when determining whether an out of court statement is offered to
prove its truth, instead of for a nonhearsay purpose, “we examine whether the
benign purpose was relevant.” 193 Wn. App. 683, 690, 370 P.3d 989 (2016)
(citing State v. Hudlow, 182 Wn. App. 266, 278-80, 331 P.3d 90 (2014)). To
properly analyze whether Wu’s statements were relevant for a nonhearsay
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No. 79016-1-I/10
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purpose, it is first necessary to review the context in which Wu’s statements were
offered.
This matter is an employment discrimination case in which Sunnyworld’s
defense at trial was that “lost profit was the only substantial factor the board of
directors used in their decision to terminate Ms. Bengtsson.” Both Yin and Kong
testified at trial that the Sunnyworld board voted to terminate Bengtsson’s
employment because of her failure to make the business profitable. They further
testified that the board considered terminating Bengtsson’s employment six
months prior to her actual termination due to financial concerns, but that they
decided to give her one more chance before terminating her. Defense counsel
also informed the trial judge of his intent to proffer this testimony during the
pretrial proceedings in which the court first considered whether to allow the
admission of any of Wu’s alleged statements. Thus, it is plain from the record
that Sunnyworld’s theory of the case, expressed to the trial judge both before and
during trial, was that Bengtsson was fired because of her failure to make the
school profitable.
Given this context, if Wu’s alleged out of court statements had been
admitted for their truth, they would have been relevant to, and entirely supportive
of, Sunnyworld’s expressed theory of the case—that the school was losing
money and that they had no choice but to fire Bengtsson to avoid financial ruin.
However, if the statements were not admitted for their truth but, rather, were
admitted solely to show that at the February board meeting Wu’s statements
caused Kong and Yin to fire Bengtsson—which is the argument Sunnyworld now
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No. 79016-1-I/11
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presents on appeal—that would not have supported Sunnyworld’s expressed
theory of the case before and at trial.5 Instead, it would have supported an
alternative defense theory.
In many typical civil cases, presenting multiple alternative theories of the
case may prove advantageous to the presenting party. However, the opposite is
true in employment discrimination cases: presenting multiple alternative
conflicting explanations for why an employee was terminated may be used
against an employer as evidence that the employer’s expressed reasons for the
termination are pretextual. See, e.g., Renz v. Spokane Eye Clinic, P.S., 114 Wn.
App. 611, 623, 60 P.3d 106 (2002) (noting that when an employer provides
several incompatible reasons for an adverse employment action it “may support
an inference that none of the reasons given is the real reason” (citing Sellsted v.
Wash. Mut. Sav. Bank, 69 Wn. App. 852, 861, 851 P.2d 716 (1993), overruled on
other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 898
P.2d 284 (1995))). In this case, presenting alternative theories—that Yin and
Kong either (1) were forced by Wu to fire Bengtsson during one board meeting,
or (2) decided to fire her over a period of six months due to financial concerns—
would have actively harmed Sunnyworld’s case. Thus, absent any statement
from defense counsel that Sunnyworld intended to present two alternative
5 Although Sunnyworld does not present this argument on appeal, Wu’s alleged hearsay
statements could also have been relevant to Sunnyworld’s expressed theory at trial if offered to
show Wu’s state of mind, i.e., that he, as a board member, wanted to fire Bengtsson. However,
as will be discussed during our analysis of the parties’ arguments regarding the applicability of ER
403 and prejudice, such evidence would have been cumulative of the evidence the trial court
admitted establishing that Sunnyworld’s board voted unanimously to fire Bengtsson. Additionally,
the record does not establish that defense counsel ever sought the admission of Wu’s statements
for this purpose, and Sunnyworld does not assert that the evidence should have been admitted
for such a purpose in its briefing on appeal.
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No. 79016-1-I/12
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theories of the case, it was plainly reasonable for the trial court to view the
admission of Wu’s alleged hearsay statements as evidence intended to support
Sunnyworld’s expressed theory that Bengtsson was terminated due to financial
concerns. Because the record does not establish that Sunnyworld ever informed
the trial judge that it sought, despite the resulting harm to its case, to present
multiple inconsistent alternative defense theories to explain why it fired
Bengtsson,6 we conclude that the trial court did not abuse its discretion by
excluding Wu’s alleged out of court statements as hearsay.
2
Even had the trial court been told that Sunnyworld wished to present
inconsistent defenses, the trial court’s ruling excluding the statements pursuant
to ER 403 was sound. Sunnyworld asserts to the contrary, averring that (1) Wu’s
statements had substantial probative value because they were directly relevant
to whether Yin and Kong acted with a discriminatory motive, and (2) admitting the
statements would not have resulted in any unfair prejudice because the
statements would not arouse an emotional response from the jury that would
cloud the jurors’ ability to make a rational and impartial decision.7 Sunnyworld’s
6 The party proffering the evidence always has the burden of informing the trial court as
to its materiality. Error cannot be assigned to a trial court’s decision to exclude evidence unless
the trial court was informed of the purpose for which it was offered. A claim of error on appeal
cannot be predicated on a theory of admissibility not presented to the trial court. State v Eaton,
30 Wn. App. 288, 293 n.7, 633 P.2d 921 (1981); accord Allen v. Asbestos Corp., 138 Wn. App.
564, 578, 157 P.3d 406 (2007). A proper offer of proof, as required by ER 103(a)(2), “should
explain why the evidence is admissible.” 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE
LAW AND PRACTICE § 103.19, at 86 (6th ed. 2016) (citing Blood v. Allied Stores Corp., 62 Wn.2d
187, 381 P.2d 742 (1963)).
7 Sunnyworld also asserts, in its reply brief, that the exclusion of Wu’s alleged statements
under ER 403 was improper because it was unsupported by an analysis of the Burnet factors.
See Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997). Because this
argument was raised for the first time in a reply brief, it has been waived. See Cowiche Canyon
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No. 79016-1-I/13
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contentions are unpersuasive.
Prior to weighing the admissibility of evidence under ER 403, a trial judge
must be convinced that evidence is relevant, meaning that it must be both
probative—tending to prove or disprove some fact—and material—of
consequence to the ultimate outcome of the case. Davidson v. Municipality of
Metropolitan Seattle, 43 Wn. App. 569, 573, 719 P.2d 569 (1986) (citing 5 KARL
B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 82 (2d ed.
1982)). However, after the initial relevancy determination is reached, ER 403
dispenses with concerns about materiality, focusing on the “probative value” of
evidence. The rule requires a trial court to determine whether the proffered
evidence’s probative value “is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”
ER 403.
Sunnyworld asserts that the probative value of Wu’s alleged out of court
statements was high because the statements were material to a critical element
of Bengtsson’s case: Sunnyworld’s motive when terminating her. This is not the
proper analysis—ER 403 is concerned with probative value, not with whether
evidence is material. As to probative value, Sunnyworld does not present any
argument in its briefing disputing that Bengtsson and the trial court had no means
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (“An issue raised and argued
for the first time in a reply brief is too late to warrant consideration.”). Furthermore, the Burnet
analysis concerns the imposition of severe discovery sanctions, “such as witness exclusion.”
Blair v. Ta-Seattle E. No. 176, 171 Wn.2d 342, 348, 254 P.3d 797 (2011). The ER 403 ruling
regarding Wu’s alleged out of court statements was not a discovery sanction, nor did it exclude
any witness from testifying. Burnet simply does not apply here.
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No. 79016-1-I/14
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of verifying that Wu even existed, let alone that he had ever made the statements
attributed to him. Given that Wu (unlike all of the witnesses who testified at trial)
did not testify at trial, was not subject to cross-examination, was never available
to be deposed, and was never even seen by Bengtsson, her attorneys, or the
court, the probative value of any alleged out of court statements made by Wu
was minimal at best.
Sunnyworld next asserts that the dangers presented by the admission of
Wu’s alleged statements were minimal because ER 403 only concerns itself with
prejudice arising from evidence that would arouse the emotions of the jury such
that it could not make a rational and impartial decision. Once again, Sunnyworld
is mistaken; ER 403 is not so limited. The text of the rule itself indicates a far
broader range of applicability, with the rule explicitly addressing unfair prejudice,
confusion of the issues, misleading the jury, considerations of undue delay,
waste of time, and needless presentation of cumulative evidence. ER 403.
Furthermore, courts have long noted that the ultimate goal of the evidence rules
is to afford litigants a fair trial, and that ER 403 pursues that goal by permitting
evidence which is trustworthy, reliable, and not unreasonably prejudicial.8 State
v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079 (1984) (citing ER 102; ER
403). We therefore decline to limit our consideration of the trial court’s ruling to
8 The parties dispute the applicability of ER 102 to the admissibility of Wu’s alleged out of
court statements under ER 403. While it does not, on its own, provide a basis for the exclusion of
evidence, ER 102 directs that the evidence rules “be construed to secure fairness in
administration, elimination of unjustifiable expense and delay, and promotion of growth and
development of the law of evidence to the end that the truth may be ascertained and proceedings
justly determined.” Thus, ER 102 directs trial judges to determine, when considering excluding
evidence under ER 403 and in making any other evidentiary ruling, how to best ensure that the
truth may be ascertained and proceedings justly determined.
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No. 79016-1-I/15
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determining whether Wu’s statements would have aroused the emotions of the
jurors.
Upon such consideration, it is apparent that Wu’s alleged statements
would have presented many of the dangers ER 403 is designed to avoid. As the
trial court noted, it would be patently unfair to allow Sunnyworld to present Wu’s
statements and contend that he was the person who decided to fire Bengtsson
when Sunnyworld never presented Wu for deposition, failed to present him at
trial, and failed to even establish that Wu exists. This last point presents another
danger of admitting Wu’s statements: if the statements were admitted, the court
would need to account for this unfairness by permitting Bengtsson to present
evidence showing that Sunnyworld failed to present Wu for deposition and at
trial. Bengtsson, in fairness, would have to have been allowed to contest
whether Wu even exists and, if so, whether he actually said the words attributed
to him. Thus, if Wu’s statements were admitted there would be a potent
possibility that the parties would find themselves embroiled in a “side trial” to
determine these matters, thus leading to a confusion of the issues for the jury.
Additionally, Wu’s statements, on their own, would have presented only
evidence cumulative of that which was admitted at trial. Sunnyworld asserts that
Wu’s statements would have established that Kong and Yin had no choice but to
fire Bengtsson because Wu, as majority shareholder, had ordered it. Wu’s
alleged statements, however, do not, by themselves, actually support that
inference. Nothing in Wu’s statements—that the company was losing money and
needed to fire the director or close—establish that Wu was the majority
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No. 79016-1-I/16
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shareholder on the board. Therefore, if Wu’s statements were admitted for the
purpose of showing their effect on Yin and Kong’s state of mind, all that would be
established is that they knew that a third board member wanted to fire
Bengtsson. This inference was already established without admitting Wu’s
statements because the trial court allowed Sunnyworld to admit into evidence the
fact that Sunnyworld’s board had three members, that all three discussed firing
Bengtsson, and that they voted unanimously to do so.
In determining whether evidence should be excluded under ER 403, trial
courts are afforded broad discretion “in balancing the prejudicial impact of
evidence against its probative value.” Kramer v. J.I. Case Mfg. Co., 62 Wn. App.
544, 559, 815 P.2d 798 (1991). Herein, given the extremely minimal probative
value of Wu’s alleged statements, and the fact that their admission would have
been unfair, raised the potential for confusing the jury with a side trial to establish
Wu’s existence or nonexistence and whether he actually uttered the words
attributed to him, and presented only cumulative evidence, we conclude that the
trial court did not abuse its discretion by excluding the statements.9
3
Even if we concluded that the trial court’s rulings were erroneous, we
would nevertheless decline to reverse the trial court on the ground that it
9 Bengtsson also asserts that Wu’s statements could have been excluded under ER 602
because there was insufficient foundation to admit the statements. We disagree. ER 602
requires that a witness have personal knowledge of a matter before testifying to it and permits
evidence to prove personal knowledge to come from the witness’s own testimony. There is no
dispute that Yin and Kong testified to meeting with and discussing the termination of Bengtsson
with Wu as a member of the Sunnyworld board. Whether or not such testimony was truthful may
have been in question, but the foundational requirements of ER 602 were plainly satisfied.
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No. 79016-1-I/17
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excluded the Wu statements because Sunnyworld does not establish that it was
prejudiced by the exclusion.
Once again, Sunnyworld’s main argument on appeal is that Wu’s
statements would have supported an inference that Yin and Kong were forced to
fire Bengtsson because Yu, a majority shareholder, ordered it. Wu’s alleged
hearsay statements, however, do not identify him as a controlling board member
or majority shareholder. Wu’s alleged statements, without the addition of other
evidence establishing that Wu was a majority shareholder, support only an
inference that Yin and Kong knew that the third board member wanted to fire
Bengtsson. The trial court ruled that evidence regarding the size of Wu’s
ownership interest was not admissible, and Sunnyworld did not assign error to
the exclusion of this evidence. Therefore, because the fact that a third board
member wanted to fire Bengtsson was already admitted into evidence—again,
the trial court allowed testimony that the board discussed firing Bengtsson and
that all three board members decided to, and voted to, fire Bengtsson—
Sunnyworld cannot establish prejudice from the exclusion of Wu’s alleged
statements.
C
Sunnyworld next contends that the trial court committed reversible error
when it barred the admission of testimony that, after termination, Sunnyworld
determined that Bengtsson had failed to provide receipts for 110 transactions in
which she used the company debit card. This is so, Sunnyworld asserts,
because Bengtsson opened the door to the admission of this testimony by
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No. 79016-1-I/18
18
testifying that Sunnyworld had falsely accused her of embezzlement. This
contention fails because defense counsel at trial conceded that the testimony
relating to the 110 allegedly missing receipts had nothing to do with Sunnyworld’s
embezzlement accusation and the trial court may reasonably have interpreted
Bengtsson’s embezzlement accusation testimony as responsive to other
evidence.
A party may open the door for the admission of otherwise inadmissible
testimony. Ang v. Martin, 118 Wn. App. 553, 561-62, 76 P.3d 787 (2003) (citing
State v. Avendano-Lopez, 79 Wn. App. 706, 714, 904 P.2d 324 (1995)), aff’d,
154 Wn.2d 477, 114 P.3d 637 (2005). As our Supreme Court has explained:
It would be a curious rule of evidence which allowed one party to
bring up a subject, drop it at a point where it might appear
advantageous to him, and then bar the other party from all further
inquiries about it. Rules of evidence are designed to aid in
establishing the truth. To close the door after receiving only a part
of the evidence not only leaves the matter suspended in air at a
point markedly advantageous to the party who opened the door, but
might well limit the proof to half-truths.
State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).
“The trial court has considerable discretion in administering this open-door
rule.” Ang, 118 Wn. App. at 562 (citing 5 KARL B. TEGLAND, WASHINGTON
PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14 (4th ed. 1999)).
Sunnyworld asserts that testimony regarding 110 missing receipts tallied
after Bengtsson was fired was vital to counteract testimony from Bengtsson that
Sunnyworld had falsely accused her of embezzlement.10 Specifically,
10 Sunnyworld does not assign error to the trial court’s pretrial ruling that such evidence
was inadmissible after-acquired evidence. Instead, it asserts that such evidence should have
been admitted because Bengtsson opened the door.
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No. 79016-1-I/19
19
Sunnyworld contends that Bengtsson opened the door to the testimony about the
110 receipts by discussing Sunnyworld’s embezzlement accusation and that it
was unfair to not allow them to present evidence to show that the accusation had
“any basis in fact.” Br. of Appellant at 23. However, before the trial court,
defense counsel explicitly argued that the purpose of admitting this evidence was
“not claiming embezzlement, we’re just saying we’re missing receipts.”11 Indeed,
when the trial court noted that the “receipts have nothing to do with” the
embezzlement accusation, defense counsel presented no argument to the
contrary. Because Sunnyworld explicitly declined to present any argument that
this evidence related to the embezzlement accusation, we decline to consider
that argument on appeal. See Modumetal, Inc. v. Xtalic Corp., 4 Wn. App. 2d
810, 829 n.4, 425 P.3d 871 (2018) (refusing to consider argument presented on
appeal that was never presented to the trial judge (citing RAP 2.5(a); Lindblad v.
Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001))), review denied, 192
Wn.2d 1011 (2019).
Furthermore, even if defense counsel had not specifically waived this
argument, we would still reject the assignment of error because Sunnyworld does
11 In its reply brief, Sunnyworld asserts that defense counsel’s statement that he did not
wish to claim embezzlement meant only that he was not seeking to support an affirmative
defense of unclean hands by proving embezzlement. Obviously, this is not what defense counsel
said.
Furthermore, Sunnyworld asserts that defense counsel did wish to present the receipt
evidence to show that the embezzlement accusation had a basis in fact. Admitting evidence to
show that the embezzlement accusation was supported by facts, thereby rebutting Bengtsson’s
testimony that the accusation was false, is the same thing as admitting it to show that it was true
that Bengtsson embezzled from Sunnyworld. By disclaiming any intent to support the
embezzlement claim, Sunnyworld disclaimed any argument that it sought the evidence to counter
Bengtsson’s testimony that she was falsely accused of embezzlement.
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No. 79016-1-I/20
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not establish that the trial court abused its discretion by refusing to admit the
testimony regarding 110 allegedly missing receipts. This is so because the trial
judge could have reasonably considered the testimony of the embezzlement
accusation as responsive to, or presented in anticipation of, evidence
Sunnyworld had, and presented at trial, that Sunnyworld discovered that 20
transactions on the company debit card were missing receipts before firing
Bengtsson. Indeed, absent an explanation from Bengtsson, a reasonable juror
might well conclude that the testimony Sunnyworld was permitted to present
regarding the 20 missing receipts supported Sunnyworld’s theory that Bengtsson
was fired due to her financial mismanagement of the company. Therefore,
Sunnyworld has failed to establish that the trial court abused its discretion by
excluding testimony regarding the 110 missing receipts tallied after firing
Bengtsson.
D
Sunnyworld next contends that the trial court erred by declining
Sunnyworld’s motion for a new trial under CR 59(a)(8). This is so, Sunnyworld
asserts, because it suffered prejudice as a result of the evidentiary rulings it has
challenged on appeal. We disagree.
On the motion of the party aggrieved, a verdict may be vacated and
a new trial granted to all or any of the parties, and on all issues, or
on some of the issues when such issues are clearly and fairly
separable and distinct, or any other decision or order may be
vacated and reconsideration granted.
CR 59(a).
We review a trial court’s decision on a motion for a new trial for an abuse
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No. 79016-1-I/21
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of discretion unless the granting of a new trial is based on an error of law.
Hollins, 200 Wn. App. at 582. Thus, when reviewing a decision on a motion for a
new trial premised on alleged evidentiary errors, matters within the discretion of
the trial court, the proper standard of review is abuse of discretion. Hollins, 200
Wn. App. at 582-83.
“A much stronger showing of abuse of discretion is required to set aside
an order granting a new trial than one denying a new trial.” Hollins, 200 Wn.
App. at 582. A court abuses its discretion when it bases a decision on untenable
grounds or untenable reasons. Wade’s Eastside Gun Shop, Inc. v. Dep’t of
Labor & Indus., 185 Wn.2d 270, 277, 372 P.3d 97 (2016).
In its briefing to this court, Sunnyworld asserts that a new trial was
warranted under CR 59(a)(8) because the trial court committed an error of law.
Under CR 59(a)(8), a new trial may be granted if an aggrieved party shows that
its rights were materially affected by an “[e]rror in law occurring at the trial and
objected to at the time by the party making the application.” However, in support
of this assertion, Sunnyworld alleges only that the trial court erred in its
evidentiary rulings regarding Wu’s alleged statements and evidence of 110
missing receipts, and that such errors, either individually or cumulatively, denied
Sunnyworld a fair trial. Therefore, we review the trial court’s decision denying the
motion for a new trial under an abuse of discretion standard.12 Hollins, 200 Wn.
App. at 582-83. Because we have concluded that the trial court did not abuse its
12 CR 59(a)(8) is not the proper ground upon which to seek a new trial premised upon a
claim of evidentiary error. Instead, the proper ground is CR 59(a)(1) (“abuse of discretion” “by
which such party was prevented from having a fair trial”). Hollins, 200 Wn. App. at 582.
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No. 79016-1-I/22
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discretion in making the challenged evidentiary rulings, we also reject
Sunnyworld’s challenge to the trial court’s ruling denying its motion for a new
trial.
III
Bengtsson requests an award of attorney fees on appeal, contending that
she is entitled to an award of fees under RCW 49.60.030(2).13 Because
Bengtsson is the prevailing party, and RCW 49.60.030(2) authorizes prevailing
plaintiffs in civil rights cases to recover reasonable attorney fees, we grant
Bengtsson’s request for such an award.
“Washington follows the American rule ‘that attorney fees are not
recoverable by the prevailing party as costs of litigation unless the recovery of
such fees is permitted by contract, statute, or some recognized ground in
equity.’” Panorama Vill. Condo. Owners Ass’n Bd. of Dirs. v. Allstate Ins. Co.,
144 Wn.2d 130, 143, 26 P.3d 910 (2001) (quoting McGreevy v. Or. Mut. Ins. Co.,
128 Wn.2d 26, 35 n.8, 904 P.2d 731 (1995)). RCW 49.60.030(2) authorizes
successful plaintiffs in discrimination lawsuits to recover attorney fees. Thus,
because Bengtsson is a prevailing plaintiff in this employment discrimination
appeal, an award of fees is authorized. See Blackburn v. Dep’t of Soc. & Health
Servs., 186 Wn.2d 250, 261, 375 P.3d 1076 (2016) (awarding fees under RCW
49.60.030(2) for employees successfully bringing discrimination case against
13 RCW 49.60.030 was amended in 2020, after Bengtsson filed her lawsuit. See LAWS OF
2020, ch. 52, § 4 (effective date June 11, 2020). However, the provision authorizing the award of
attorney fees to prevailing plaintiffs, RCW 49.60.030(2), was not altered by this amendment. See
former RCW 49.60.030 (LAWS OF 2009, ch. 164, § 1). Both the former and current version of the
statute authorizes prevailing plaintiffs to recover “the cost of suit including reasonable attorneys’
fees.” RCW 49.60.030(2); former RCW 49.60.030(2) (LAWS OF 2009, ch. 164, § 1).
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No. 79016-1-I/23
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employer). Upon Bengtsson’s compliance with RAP 18.1, a commissioner of our
court will enter an appropriate order awarding fees and costs.
Affirmed.
WE CONCUR:
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