Filed 2/23/23 Ameritemps of PA v. U.S. Continental Marketing CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AMERITEMPS OF PA, INC.,

Plaintiff, Cross-Defendant and 

Appellant,

v.

U.S. CONTINENTAL MARKETING, 

INC.,

Defendant, Cross-Complainant 

and Respondent.

 D080514

 (Super. Ct. No. RIC1902823)

APPEAL from a judgment of the Superior Court of Riverside County, 

Irma Poole Asberry, Judge. Affirmed.

Ellis Law Group and Mark E. Ellis for Plaintiff, Cross-Defendant and 

Appellant.

Law Offices of Steven R. Lovett and Steven R. Lovett for Defendant, 

Cross-Complainant and Respondent.

Ameritemps of PA, Inc., (Ameritemps PA), a temporary staffing agency,

appeals from a judgment entered after a bench trial. The trial court ruled

that Ameritemps PA must indemnify one of its contracting employers, U.S. 
2

Continental Marketing, Inc. (USCM), for expenses and damages USCM 

incurred in defending an employment lawsuit (Jimenez lawsuit) brought by a 

temporary employee, Elvia Velasco Jimenez, who was placed with USCM by 

Ameritemps PA. In its appeal, Ameritemps PA primarily argues that 

(1) USCM did not give it adequate notice of the Jimenez lawsuit to trigger its 

indemnity obligation, and (2) there is no substantial evidence to support the 

trial court’s finding that it is the “alter ego” of Ameritemps West, Inc. 

(Ameritemps West), which it alleges is the responsible employer. 

We conclude that Ameritemps PA has forfeited its notice argument by 

failing to address the evidence and theory relied on by the trial court in its 

ruling on the issue. We find it unnecessary to determine whether there is 

sufficient evidence to support the “alter ego” finding, because we conclude 

that it could not have been prejudicial to Ameritemps PA in light of the 

court’s uncontested factual findings that Ameritemps PA was Jimenez’s 

direct employer and was liable based on its own negligence in screening and 

terminating her. Because we reject Ameritemps PA’s other claims of error, 

we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Evidence

Ameritemps PA is a staffing agency that provides temporary employees 

to various businesses. USCM is a contract manufacturer of chemical 

products and occasionally relies on temporary employees in its workforce.

Ameritemps PA and USCM entered into a staffing agreement in June 2015 

for Ameritemps PA to provide temporary employees to USCM. The staffing 

agreement was in effect from June 23, 2015 to June 23, 2016. 

Section 11 of the staffing agreement provides that Ameritemps PA 

would defend, indemnify, and hold USCM harmless from all claims, losses, 
3

and liabilities (including reasonable attorneys’ fees) to the extent caused by 

Ameritemps PA’s breach of the agreement; its failure to discharge its duties 

set forth in the agreement; or the negligence, gross negligence, or willful 

misconduct of Ameritemps PA in the discharge of those duties and 

responsibilities.

Section 14 provides that, as a condition precedent to indemnification, 

the party seeking indemnification must inform the other party within three 

business days after it receives notice of any claim, loss, liability or demand 

for which it seeks indemnification from the other and must cooperate in the 

investigation and defense of such matter.

In 2015, Elvia Velasco Jimenez, a temporary employee assigned to 

USCM by Ameritemps PA, reported that she was being sexually harassed by 

a coworker on the job. USCM and Ameritemps PA investigated and held 

meetings with Jimenez, her coworker, and other employees. USCM and 

Ameritemps PA could not corroborate her allegations.

Steven Toloday, chief financial officer of USCM, testified that before 

Jimenez filed her lawsuit, she complained to USCM’s human resources 

manager that she was being sexually harassed. USCM brought the 

complaint to the attention of Ameritemps PA in writing, and Toloday had a 

conversation about it with Jesse Proctor, owner and president of Ameritemps 

PA. There were also complaints against Jimenez, including “bullying,” which 

prompted USCM to request that Ameritemps PA transfer her to a different 

assignment. Instead of transferring her, however, Ameritemps PA 

terminated Jimenez’s employment because “they didn’t want to deal with 

her.” USCM also learned that Ameritemps PA failed to screen Jimenez 

adequately and that she was “undocumented and didn’t have a right to work 
4

in the U.S.” Valid work authorization “was something [USCM] required [the] 

temporary agency to screen.” 

Shortly after her termination, Jimenez filed a wrongful termination 

lawsuit against USCM, Ameritemps West and the USCM employee who 

allegedly harassed her. The Jimenez lawsuit ultimately settled after having 

gone through trial and subsequent appeal and remand to the trial court. 

David Williams, owner and president of USCM, testified that 

Ameritemps PA and Ameritemps West are “one and the same.” Michael 

Pruitt, USCM’s director of operations, testified about his understanding that 

Ameritemps West was a “franchise” of Ameritemps PA. Proctor testified that 

Ameritemps PA was “going to establish a franchise in California under an 

ordinary agreement of the franchise.” When that did not work out, he “tried 

to make other business arrangements, because I already had money invested 

flying out there and doing some things.” All invoices for services rendered by 

Ameritemps West were invoiced by Ameritemps PA. The two entities shared 

at least one employee, Leilani Williams, who “carried a dual role for both 

companies.” Additionally, both companies shared the same phone number

and shared the same office space. Jose Hernandez, a former assigned 

employee, was asked if he knew whether he was employed by Ameritemps PA 

or Ameritemps West, he replied that he was unsure and that he “only 

know[s] of one.” Toloday similarly testified that both companies “disclosed 

themselves as Ameritemps.” 

David Williams further testified that he asked Ameritemps PA and 

Proctor to assist USCM with the defense costs of the Jimenez lawsuit in April 

2018. Proctor seemed familiar with the Jimenez complaint and “was not 

surprised” by it. 
5

B. Trial Court Proceedings

Ameritemps PA filed this lawsuit against USCM seeking fees for the 

transfer of temporary employees to another staffing agency after the 

relationship between USCM and Ameritemps PA ended in 2018. USCM then 

filed a cross-complaint alleging that Ameritemps PA failed to indemnify it for 

the Jimenez lawsuit, including $300,000 to settle the lawsuit and 

$265,236.24 in attorneys’ fees and costs incurred in defending the lawsuit. 

The matter was tried without a jury over four days in January 2021. 

In its final decision, the trial court ruled that Ameritemps PA “had 

knowledge of Ms. Jimenez’ claims against USCM . . . at least by 10-30-15.”

The court relied in part on trial exhibit 115, a letter written to Jimenez by 

Leilani Williams, the branch manager of Ameritemps PA, stating “that after 

conducting an investigation, there was no confirmation of Ms. Jimenez’ 

accusations of sexual harassment.”1 The court concluded: “The evidence 

established Jesse Proctor [the owner of Ameritemps PA] had notice of 

Ms. Jimenez’ claims as early as October 2015 because Ms. Williams, 

[Ameritemps PA]’s branch manager, was directly involved in the 

investigation of Jimenez’ claims. Thereafter, upon service of the complaint in 

the Jimenez lawsuit, Mr. Toloday [USCM’s chief financial officer] gave 

instructions to notify [Ameritemps PA] and Mr. Proctor. At the meeting of

1 It is unclear from the record whether trial exhibit 115 was formally 

admitted into evidence. Although Ameritemps PA’s opening brief quotes the 

trial court’s order referring to trial exhibit 115, it raises no issue on appeal 

regarding the trial court’s reliance on it and has therefore forfeited any such 

objection. Absent any claim of error, we must presume that the trial court

properly relied on the exhibit and that its order accurately stated the 

substance of the letter. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 

1133 [“A judgment or order of a lower court is presumed to be correct on 

appeal, and all intendments and presumptions are indulged in favor of its 

correctness”].)
6

4-2-18 between Jesse Proctor and David Williams [chief executive officer of

USCM], Mr. Proctor was asked to contribute to the costs of the lawsuit. The 

request to contribute was followed up in writing on 4-2-18. . . . The testimony 

of witnesses does not show delays on the part of USCM to notify [Ameritemps 

PA] of Ms. Jimenez’ claims. The evidence established that [Ameritemps PA] 

had the requisite notice regarding claims of Jimenez.” 

The court also concluded that “Ms. Jimenez was an assigned employee 

of [Ameritemps PA]” and “that [Ameritemps PA] was the staffing agency in 

place from 6-23-15 to 6-23-16.” The court discussed USCM’s evidence that 

Ameritemps PA was negligent because: (1) Ameritemps PA fired Jimenez 

instead of transferring her, as USCM had specifically requested; and 

(2) Ameritemps PA failed to properly screen Jimenez and therefore failed to 

discover that she was undocumented. The court concluded “that 

[Ameritemps PA’s] negligence was one of the proximate causes of the 

[Jimenez] lawsuit” but that USCM also bore responsibility because one of its 

own employees committed the alleged harassment. The court ruled that 

Ameritemps PA and USCM were equally responsible for USCM’s total losses 

of $565,236.24 incurred as a result of the Jimenez lawsuit, and therefore 

awarded USCM damages in “the sum of $282,618.12 to indemnify USCM for 

damages incurred in the Jimenez lawsuit.” 

Finally, the court concluded that Ameritemps PA and Ameritemps 

West were acting “with a unity of interest, such that the separate 

personalities of the corporations did not exist and they should be treated, as a 

matter of equity, as the same legal entity.” Accordingly, the court found 

Ameritemps PA and Ameritemps West jointly and severally liable for the 

damages owed to USCM. 
7

Ameritemps PA appeals the trial court’s ruling on USCM’s crosscomplaint for indemnification. Ameritemps West is not a party to the appeal. 

Moreover, Ameritemps PA does not challenge the trial court’s ruling on its 

complaint for transfer fees.2

DISCUSSION

I

Ameritemps PA first contends that USCM violated Section 14 of the 

staffing agreement because USCM failed to notify it of Jimenez’s claim 

within three business days. According to Ameritemps PA, “[n]otice here was 

not given to [Ameritemps PA] for two years.” Ameritemps PA asserts that 

“the only evidence the court cited to get past the three-day notice condition 

precedent in the agreement” was a “foundationless comment” by USCM’s 

owner David Williams that during an April 2, 2018 meeting (two years after 

Jimenez filed her lawsuit), “Proctor seemed to be familiar with the lawsuit.” 

Ameritemps PA asserts that “[t]his is not substantial evidence.” 

Contrary to Ameritemps PA’s assertion, however, this was not the only 

or even the primary evidence the trial court relied on in deciding the notice 

issue. Specifically, the court found that Ameritemps PA “had knowledge of 

Ms. Jimenez’ claims against USCM . . . at least by 10-30-15” based on trial 

exhibit 115, the letter written to Jimenez by Leilani Williams, the branch 

manager of Ameritemps PA, stating “that after conducting an investigation, 

there was no confirmation of Ms. Jimenez’ accusations of sexual harassment.” 

The court concluded: “The evidence established that Jesse Proctor [the owner 

of Ameritemps PA] had notice of Ms. Jimenez’ claims as early as October 

2015 because Ms. Williams, [Ameritemps PA]’s branch manager, was directly 

2 The court ruled that Ameritemps PA failed to prove USCM owed it any 

transfer fees. Because Ameritemps PA does not challenge the court’s ruling 

on its complaint, we do not discuss it any further.
8

involved in the investigation of Jimenez’ claims. Thereafter, upon service of 

the complaint in the Jimenez lawsuit, Mr. Toloday [USCM’s chief financial 

officer] gave instructions to notify [Ameritemps PA] and Mr. Proctor.” 

Ameritemps PA has failed to discuss any of this evidence or make any 

argument why it does not constitute substantial evidence to support the trial 

court’s finding that it had notice of Jimenez’s claims by at least October 30, 

2015, before she even filed her lawsuit. Nor does Ameritemps PA make any 

legal argument why this would be insufficient to satisfy the three-day notice 

condition. “A party who challenges the sufficiency of the evidence to support 

a finding must set forth, discuss, and analyze all the evidence on that point, 

both favorable and unfavorable.” (Doe v. Roman Catholic Archbishop of 

Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) The appellant must also 

“show how and why it is insufficient.” (In re Marriage of Marshall (2018) 23 

Cal.App.5th 477, 487 [internal quotation marks omitted].) “Because 

[Ameritemps PA] has failed in [its] obligations concerning the discussion and 

analysis of a substantial evidence issue, we deem the issue waived.” (Doe, at 

p. 218.)3

3 It is also questionable whether Ameritemps PA adequately preserved 

this issue in the trial court. Although Ameritemps PA mentioned the threeday notice provision in its trial brief, it never referred to it during trial and 

did not argue the three-day notice issue in closing argument. A party may 

not abandon a theory during trial and then seek to revive it on appeal. 

(Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 969.) We need not decide this 

question, however, because we conclude that Ameritemps PA forfeited the 

argument in its briefing on appeal.
9

II

Ameritemps PA also argues that the trial court erred in determining

that it was the “alter ego” of Ameritemps West, the entity that initially 

placed Jimenez with USCM before Ameritemps PA took over and entered 

into the June 2015 staffing agreement. But the trial court found that 

Ameritemps PA was liable for its own negligence as the direct employer of 

Jimenez during the relevant time period. And Ameritemps West is not a 

party to this appeal. Ameritemps PA has failed to explain how the alter ego 

finding could have prejudiced it given the trial court’s findings that it was 

liable for its own negligence as the direct employer of Jimenez and was 

responsible for negligently screening her and negligently terminating her 

employment. Because Ameritemps PA has failed to show any prejudice from 

the alter ego finding, and Ameritemps West has not appealed, we need not 

decide whether there is sufficient evidence to support the finding. An 

appellant has the burden to show not only error, but also that the error is

prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Pool v. City of 

Oakland (1986) 42 Cal.3d 1051, 1069.) As to Ameritemps PA, any error

regarding the alter ego finding would be harmless given the uncontested 

findings by the trial court that Ameritemps PA was directly liable for its own 

negligence.

III

Finally, Ameritemps PA’s opening brief mentions in passing several 

other issues that are not referenced in a proper argument heading and not

developed in any meaningful way. We conclude that these issues are 

forfeited as well. (See Cal. Rules of Court, rule 8.204(a)(1) [“Each brief must: 

[¶] . . . [¶] (B) State each point under a separate heading or subheading 
10

summarizing the point, and support each point by argument”]; Provost v. 

Regents of University of California (2011) 201 Cal.App.4th 1289, 1294

[appellate court does not need to consider arguments “not clearly set out in a 

heading and supported by reasoned legal argument”].)

Even if we were to consider these arguments, however, we would reject 

them on the merits. Ameritemps PA first contends that USCM’s contractual 

indemnity claim must fail because USCM voluntarily settled with Jimenez. 

But voluntary settlement does not defeat a contractual indemnity claim as a 

matter of law. Settlement “is presumptive evidence of liability of the 

indemnitee and of the amount of liability.” (Linear Technology Corp. v. 

Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 130.) “[O]ne acting in 

good faith in making payment under a reasonable belief that it is necessary 

to his protection is entitled to indemnity or subrogation, even though it 

develops that he in fact had no interest to protect.” (Bostick v. Flex 

Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 132.)

The only case cited by Ameritemps PA on this point explained that “a 

voluntary payment made by the indemnitee, without regard to its legal 

liability, is not recoverable thereunder.” (Southern California Gas Co. v. 

Ventura Pipe Line Constr. Co. (1957) 150 Cal.App.2d 253, 257 (So. Cal. Gas).)

In So. Cal. Gas, the court concluded that there was no evidence the parties 

had “contemplated and intended the defendant would be required to 

indemnify plaintiff against a claim such as the one now asserted.” (Id. at 

pp. 259–260.) There, although the indemnification claim also involved a 

“voluntary payment,” the court determined it was a voluntary payment to a 

third party in a situation not contemplated by the indemnification 

agreement. (Ibid.) 
11

Here, by contrast, USCM clearly faced legal liability in a situation 

covered by Section 11 of the staffing agreement, which obligated Ameritemps 

PA to indemnify USCM from all claims resulting from Ameritemps PA’s 

negligence in the discharge of its duties. In contrast to Ameritemps PA’s 

argument that USCM did not have “the compulsion of an existing legal 

liability,” the trial court found that USCM settled the case to mitigate further 

damages and prevent further losses. Ameritemps PA does not challenge this 

factual finding on appeal.

Similarly, Ameritemps PA’s argument that it had “no comparative 

liability” lacks merit. The trial court found that Ameritemps PA’s

“negligence was one of the proximate causes of the lawsuit” because 

Ameritemps PA was negligent in screening Jimenez and firing her despite

her allegations of sexual harassment and USCM’s request that she be 

transferred. Once again, Ameritemps PA has not made any meaningful 

argument challenging the trial court’s findings of negligent screening and 

termination.

Ameritemps PA’s attempt to rely on GEM Developers v. Hallcraft 

Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, is misplaced. Unlike 

GEM Developers, this is not a strict liability case and USCM did not rely on

comparative equitable indemnification. (Id. at p. 423.) On the contrary, 

indemnification here is based on a contract, which provides for Ameritemps 

PA’s liability to indemnify USCM for claims caused by the negligent 

discharge of its duties. Accordingly, we reject Ameritemps PA’s arguments 

for reversal of the judgment.
12

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal. 

BUCHANAN, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.