Kourounian v. Cal. Dept. of Tax & Fee Administration ( 2023 )

Filed 5/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RAFI A. KOUROUNIAN, B309007
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LC102903)
v.
CALIFORNIA DEPARTMENT
OF TAX AND FEE
ADMINISTRATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael J. Convey, Judge. Reversed.
Rob Bonta, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Gabrielle H. Brumbach and Victoria Jalili,
Deputy Attorneys General, for Defendant and Appellant.
Donna Bader; Mooradian Law, Zorik Mooradian, Andrina
Hanson, and Nanor C. Kamberian for Plaintiff and Respondent.
_________________________
Rafi Kourounian obtained a $425,562 jury verdict in his
favor on his claim that the California Department of Tax and Fee
Administration (the Department) retaliated against him for filing
an internal complaint with its Equal Opportunity Office (EEO).
The Department appeals, contending that four erroneous
evidentiary rulings by the trial court deprived it of a fair trial.
Specifically, appellant contends the trial court erred in
(1) admitting evidence of allegedly retaliatory conduct which pre-
dated the filing of his internal complaint, (2) admitting into
evidence Kourounian’s EEO complaints, (3) permitting
Kourounian to offer testimony that exceeded the scope of
rebuttal, and (4) permitting Kourounian to offer evidence of
10 failed promotional attempts. Appellant also contends the
evidence supporting economic damages is speculative. We agree
the trial court erred in admitting evidence about activity that
occurred before the filing of his EEO complaints. We also agree
admission of the first EEO complaint and supplement was
prejudicial and prevented the Department from receiving a fair
trial. Accordingly, we reverse the judgment and remand for
further proceedings. We need not and do not reach the
Department’s other claims of error.
BACKGROUND
A. Kourounian’s Case
Appellant, then known as the California State Board of
Equalization, hired Kourounian as a tax auditor in 1989. He was
promoted to “senior tax auditor” in 2001. On or about April 5,
2012, Kourounian was promoted to business tax specialist 1
(BTS1). Promotion to this position included a one-year
probationary period.
2
Several witnesses testified that Kourounian’s performance
prior to his 2012 promotion was very good. Gregory McNamee,
Kourounian’s supervisor from 2002 to 2011, testified Kourounian
was one of the “top-producing auditors” and his audits were
“quite good.” McNamee never had any problems with
Kourounian’s analytical skills. Mareta Ter-Galstian and Becka
Jun, who supervised Kourounian consecutively in 2011 and 2012,
gave similarly positive testimony. Ter-Galstian described
Kourounian as independent, able to handle complex audits,
knowledgeable, and competent. Jun described Kourounian as
independent, able to handle complex audits, capable of handling
BTS1 level audits, and knowledgeable.
In September 2012, while Kourounian was serving as a
probationary BTS1, Warren Klomp and Doris Chiang told
Kourounian he was selected to be appointed as a limited term
supervisor because the person who held the supervisory position
was going on maternity leave. Klomp was the office
administrator and Chiang was the district principal auditor.
Kourounian agreed.
In mid-October 2012, Klomp gave Kourounian a taxpayer’s
complaint and asked him to investigate it. The complaint alleged
that co-worker Silva Saghbazarian had discriminated against a
taxpayer due to his age. Kourounian investigated and made
findings of discriminatory conduct by Saghbazarian and criticized
the chain of command for not following required procedures.
Chiang was in the chain of command. He reported his findings to
Klomp and Chiang. He formed the impression they were angry
at him.
3
On January 22, 2013, Kourounian’s limited term
supervisorial position ended. He returned to his BTS1 position.
He was placed under Saghbazarian’s direct supervision.
Saghbazarian’s supervisor was Chiang, the district principal
auditor. He was now under supervision by the two persons he
had criticized in his investigative report.
At trial, Kourounian testified to problems he had with
Saghbazarian. She removed audits from him after he had begun
working on them, which had never happened to him before. She
called or emailed him during the first sessions of audits and told
him to return to the office, but nothing happened when he
returned to the office. On one occasion she made him come to the
office at 7:15 a.m. for a meeting, kept him waiting about four
hours and then told him they would meet another time instead.
Saghbazarian tasked Kourounian with training another auditor,
Vivian Nguyen; Kourounian learned of the task when Nguyen
showed up at a location where Kourounian was conducting an
audit. Kourounian was required to take Nguyen with him
wherever he went for the next six weeks. Kourounian testified
he “understood that she was sent to spy on me.” Unlike his
previous supervisors, Saghbazarian rarely if ever called
Kourounian on his work cell phone. Instead she called him on
the taxpayer’s landline. Kourounian viewed this as checking up
on him. Whenever Saghbazarian sent him an email, she always
copied her superiors. None of his previous supervisors had done
this as a routine practice. Saghbazarian sent him a memo telling
him he needed to reduce his excess vacation hours. Kourounian
did not believe that anyone else with excess hours had been
asked to reduce their hours.
4
In March 2013, Kourounian filed an EEO complaint, which
he amended with an April 24, 2013 supplement (March/April
EEO complaint). The complaint alleged that Saghbazarian was
discriminating against him on the basis of age and race or
national origin and she was retaliating against him because of
his findings in the taxpayer complaint investigation. The trial
court admitted this document into evidence.
The 13-page complaint included many statements about
which Kourounian testified at trial, but it also set out additional
allegations about Saghbazarian’s conduct. Kourounian wrote:
“There was a general impression in the office that [Saghbazarian]
can’t stand me and I need to be careful about it.” “On 2/24/2013,
[Saghbazarian] had a meeting with me where she told me that it
is not likely that she will let me pass the probation for my BTS I
position. In any case, she insisted she will watch me carefully
and make life difficult for me.” “[Nguyen] ended up confessing to
me that her real task was . . . to spy on me and report regularly
to [Saghbazarian].” “Silva Saghbazarian apparently in an
obsessive manner has talked about me and repeatedly
characterized me as ‘dishonest.’ . . . This is a slander.” On days
after field work with a particular accountant, Kourounian
“started getting worrisome phone calls from the . . . accountant,
telling me that on the days when I am not there, my supervisor
was making insistent and time consuming phone calls to him
demanding to know whether there was anything irregular in
what I was doing.” Saghbazarian came to a business Kourounian
was auditing and “ma[de] a number of personal comments.”
These comments related largely to Kourounian’s personal wealth.
There “seems to be an obsession on the part of [Saghbazarian]
with my vacation time.” Saghbazarian made mobile working
5
difficult for Kourounian but not for other BTS1s. Kourounian
was not permitted to do field observations. Another auditor “was
repeatedly told that she can have anybody she wants [accompany
her on night observations] except me.” Saghbazarian overreacted
to Kourounian arriving at a business a few minutes late and
wrote a “very nasty memo” which showed she was targeting him.
Saghbazarian had a “personal obsession” with Kourounian. In
two meetings, the “tone of [Saghbazarian’s] conversation was
consistently humiliating and [there] were always put downs.”
On May 13, 2013, as a result of the March/April EEO
complaint, Kourounian was assigned to report to a new
supervisor, Chiang. Kourounian testified that on his first work
day with Chiang, she came up to Kourounian in front of others
and “started shouting and saying that the reason you are in this
situation is because of the complaint you filed, and you’re going to
be told and I’m going to get you.” Kourounian testified about
many other actions which Chiang took thereafter, but he seldom
provided dates for them. Chiang was his direct supervisor for
only a few months, until August or September.
Chiang eliminated Kourounian’s field audits and required
him to stay in the office. He was not allowed to work as part of a
crew. He was the only auditor not assigned to a crew. After two
or three months he was permitted to resume field audits because
there was no other work for him to do.
Kourounian was not permitted to do public speaking on
behalf of the Department after May 2013, although he had done
so previously.
6
Chiang denied Kourounian mobile working privileges. He
was the only one so denied. Chiang required Kourounian to
email her a report in the morning detailing what he was going to
work on that day and a second email in the evening detailing
what he had done that day. Chiang did not ever reply to these
emails. He was required to do this every day. Kourounian had
never had such a requirement before and, as far as he knew, no
other auditor had had such a requirement.
Klomp and Chiang came by Kourounian’s cubicle every day
but did not acknowledge him. On one occasion, Klomp threw him
out of a supervisor’s office.
While this was going on, Kourounian filed a second EEO
complaint on May 23, 2013 (May EEO complaint), alleging
retaliation for filing the March/April EEO complaint. This
complaint was also admitted into evidence.
The May EEO complaint is very short, and covers events
from May 15 through May 17, 2013, involves only three incidents,
and focuses on Chiang. We detail only the specific statements in
the complaint which the Department contends prejudiced it.
Klomp told Kourounian a “supervisor is management and she can
waste her time but [Kourounian is] not entitled to it.” Chiang
told two senior tax auditors, John Kilafian and Zhanna Balagula,
that they could take long lunch breaks but Kourounian could not
and they needed to check on him. Chiang also told them
Kourounian was “a bad influence and . . . it is advisable . . . to
stay away from [him].” “It was felt by both of them that this is a
personal vendetta and an obsession” on Chiang’s part.” Chiang
gave Kourounian a copy of his probationary report.
Balagula testified she had participated in restaurant
observations with Kourounian in the past, but in 2013
7
Saghbazarian told her she could do observations with anyone
except Kourounian. Balagula provided details of the lunch
reprimand in the May EEO complaint. When she, Kourounian,
Artin Avenes, and Kilafian were coming back to the office from
lunch, Chiang was waiting by the door and started screaming at
them, asking what time they left for lunch and how long they had
been gone. It was very loud; the whole office could hear. Chiang
told Balagula, Avenes, and Kilafian not to be scared as they were
not in trouble. Only Kourounian was in trouble. She told only
Balagula, Avenes, and Kilafian to come into her office. Chiang
told Balagula she was not in trouble, only Kourounian was in
trouble and to “stay away from him, he is [a] bad influence.”
In August or September 2013, while still on probation for
the promotion, Kourounian was formally rejected for the BTS1
position and he returned to his previous position. In September
2013, Ter-Galstian was assigned to supervise him again.
Ter-Galstian testified that when Kourounian was assigned
back to her, Chiang told Ter-Galstian to keep an eye on
Kourounian and to have him report to her twice daily. Ter-
Galstian had never before been asked to require this of an
auditor. Chiang told Ter-Galstian to tell Kourounian to cap his
vacation hours. Ter-Galstian had never done so for anyone else
she supervised.
Ter-Galstian supervised Kourounian until November 2013.
Jun then began supervising Kourounian again and continued to
supervise him until the time of trial.
Kourounian administratively appealed the decision to
rescind his promotion to BTS1. On November 5, 2013, at a
prehearing settlement conference, the parties entered into a
settlement agreement. This agreement provided: “2. Respondent
8
agrees to and hereby does withdraw the [Notice of Rejection
Pending Probation (NRPP)], and further agrees to remove the
NRPP and all supporting documents from [Kourounian’s official
personnel file]. [¶] 3. Appellant agrees to and hereby does return
to his previous position as an Associate Tax Auditor with
Respondent for personal reasons effective the close of business on
August 21, 2013. . . . [¶] 4. In exchange for such consideration as
is set forth in this Stipulation, Appellant releases, acquits, and
forever discharges the State of California, the California Board of
Equalization, and its agents, representatives, employees,
successors and assigns, of and from any and all demands, actions,
causes of action, claims of any kind or nature whatsoever, known
and unknown, anticipated or unanticipated, past or present, and
any claim under state or federal law including, but not limited to,
claims under the Fair Employment and Housing Act [(FEHA)]
and Title VII of the 1964 Civil Rights Act, which may exist as of
the date hereof in connection with or arising out of the actions
taken by Respondent [the Board] regarding this NRPP.
However, this release does not prevent [Kourounian] from
pursuing all available legal remedies concerning his claims for
retaliation filed with Respondent’s Equal Employment
Opportunity (EEO) Office on or about March 2013 and
supplemental claim filed in May 2013. Appellant acknowledge[s]
that all claims of discrimination associated with his claims to
Respondent’s EEO Office are waived.”
When Kourounian was assigned back to Jun, Chiang and
Klomp told Jun to keep an eye on him. According to Jun, Chiang,
Saghbazarian, and Klomp would not acknowledge Kourounian if
they passed him in the office. On one occasion, Kourounian was
talking to Jun in her office when Klomp entered and very
9
abruptly told Kourounian to leave and go back to work. Klomp
then left the office himself. Jun described Klomp’s tone as rude
and the encounter as awkward.
Balagula testified that as recently as a year before trial,
Saghbazarian was still ignoring Kourounian completely.
Balagula described an incident where she, Kourounian, and
Kilafian were walking down the hall and Saghbazarian stopped,
gave Kilafian a “high five,” and ignored Kourounian.
Jun was aware that Klomp had not included Kourounian in
any of Klomp’s special projects such as the point of sale program;
this made Kourounian an exception in the office. There was a
perception in the office that working on these projects made it
more likely that a person would be promoted. In the four years
preceding the trial, everyone in Jun’s crew except a BTS1 worked
on the point of sale program.
In Jun’s opinion, Kourounian was targeted by Klomp in the
office. Jun asked Klomp to include Kourounian in a point of sale
project, but got no reply. When Kourounian first came to Jun’s
crew, she got the impression from management that she should
not raise Kourounian’s name. When his name did come up, it
was just ignored. So, it was easier for Jun not to mention him.
When Jun asked Klomp for permission to allow Kourounian
to do mobile work in 2013 through 2016, he replied no. Other
staff members were approved. Beginning around 2018, Klomp
just stopped responding, so Jun decided to allow Kourounian to
do mobile work.
When asked if Kourounian was treated like other
employees in the office, Jun replied that in certain situations he
was not. Jun believed management would try to find fault with
10
Kourounian, and if they found any little fault, they would make it
into a much bigger deal than it was.
Saghbazarian told Jun, without explanation, that
Saghbazarian did not want Kourounian to be given any
restaurant audits. This was a large chunk of Jun’s crew’s work,
and auditors with less experience than Kourounian were working
on these audits.
Jun had never required an auditor to report to her twice
daily and she did not know of any supervisor who had such a
requirement.
On May 17, 2014, Kourounian filed a complaint alleging
retaliation with the California Department of Fair Employment
and Housing (DFEH). He received a right to sue letter. This
action followed.
While much of Jun’s testimony concerns retaliatory action
continuing after this lawsuit was filed, Ter-Galstian provided a
significant piece of additional evidence. Ter-Galstian had served
on promotion boards considering candidates for promotion to
BTS1. In her opinion, Kourounian was fully qualified for a BTS1
position. About a year before trial, there was an opening in Ter-
Galstian’s crew for a BTS1 and it would have been customary for
Ter-Galstian as the supervisor to be on the panel. Instead, Ter-
Galstian was removed from the panel. According to Ter-Galstian,
there were currently two open BTS1 positions in her office which
had been open for months. This was very rare.
B. The Department’s Case
In its defense, the Department offered explanations for the
actions Kourounian alleged were retaliatory. The Department
presented evidence that Kourounian was competent, but as far as
11
back as 2011 he made errors in his work and did not provide
enough detail in his audits. Klomp testified he had advised
Kourounian in 2011 to “more thoroughly document and detail his
work” if he wanted to be promoted.
Saghbazarian testified she criticized Kourounian’s work as
a BTS1 because it was deficient. She too claimed he needed to
provide more documentation and detail in his work.
Saghbazarian stated that headquarters had asked all
managers to create a plan to reduce the accumulated vacation
hours of employees who had more than 640 hours (Kourounian
had excessive hours accumulated, possibly as many as 1,200
hours). In addition to Kourounian, Klomp had been asked to
reduce his accumulated hours.
Saghbazarian denied sending Nguyen to spy on
Kourounian. She claimed the cases she took from Kourounian
were cases he had improperly assigned himself when he was a
limited term supervisor.
In May 2013, Saghbazarian stopped supervising
Kourounian because he had requested she do so in the EEO
complaint. She was informed not to communicate with him
thereafter and so she did not. She claimed it was Kourounian
who was ignoring her. She stated when he sees her, he turns and
walks the other way.
Chiang retired in September 2014. She had a medical
event at some point before trial and was declared an unavailable
witness. Portions of her deposition were read to the jury. Chiang
admitted being upset when Kourounian returned from lunch with
other auditors. She claimed she needed to talk to him about
12
something, but he had not been at his desk. He had not
requested a different lunch period, so she expected him to return
to the office at 12:30 p.m. and became upset when he did not.
She admitted telling Balagula to stay away from Kourounian
because he did not have her best interests at heart and she
should not hang out with people like that.
Chiang agreed she restricted Kourounian from doing field
observations but said it was because he was a BTS1 at the time
and BTS1 staff did not do observations. She also denied him field
visits because he was working on escrow cases which did not
require visits. Chiang stated she had required auditors other
than Kourounian to report to her twice a day, although
Kourounian was her only supervisee at this point in her career.
Klomp testified Kourounian had not been denied speaking
opportunities. He stated the office received only a few requests
for speaking engagements and they were handled by a public
information officer. Klomp stated he never denied Kourounian
the chance to work on an audit with a point of sale system.
C. Pre-Trial Proceedings
In 2015, Kourounian filed this action and by the time of trial
in 2019, the operative complaint was the Second Amended
Complaint (SAC), filed January 2016. The SAC alleges a single
cause of action for retaliation prohibited by statute.1 The relief
1 The copy of the SAC in the record on appeal also alleges a
cause of action for declaratory relief and a cause of action for
equitable relief. The trial court sustained a demurrer to the
equitable relief cause of action and Kourounian withdrew the
declaratory relief cause of action.
13
sought in the SAC is limited by the trial court’s ruling on
demurrer. As relevant to issues on this appeal, the trial court
(not the same judge who presided at trial) ruled that “reporting
Saghbazarian’s discrimination against an elderly tax payer is not
conduct protected by [FEHA]” and so Kourounian “alleges no
valid retaliation claim against Ms. Saghbazarian under FEHA for
reporting her discrimination against a taxpayer.”
With respect to the stipulated settlement agreement over
the rescinded promotion, the court found Kourounian “cannot
assert his demotion because he waived his right to do so in the
stipulation.” The court also found that Kourounian, who still
worked for the Department, “has alleged public humiliation by
Ms. Chiang . . . . The plaintiff has pled sufficient adverse
employment actions.”
Finally, the court made clear that plaintiff’s claim was
based on “retaliation against him for making discrimination
claims and for adverse actions other than the [Notice of Rejection
During Probation] [¶] Accordingly the Stipulation does not bar
the claims advanced here.”
DISCUSSION
We review issues of law de novo. (Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) A trial court’s
evidentiary rulings, including those involving the hearsay nature
of evidence, are reviewed for abuse of discretion. (Bennett v.
Superior Court (2019) 39 Cal.App.5th 862, 876.) An evidentiary
ruling that “rests on an error of law is an abuse of discretion.”
(Ibid.)
Error alone is not sufficient to reverse a judgment. We
reverse only when a party demonstrates that prejudicial error
occurred and caused appellant “substantial injury” and that a
14
“different result would have been probable” absent the error.
(Code Civ. Proc., § 475.) Reversal, thus, is warranted where “ ’it
is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Such a “ ’probability’ in this context does not mean more likely
than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 715.) In assessing the prejudicial effect of errors,
we may find multiple errors cumulatively prejudicial, even if each
error would be not prejudicial when viewed individually. (Lewis
v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.)
A. Admission of Evidence of Acts Predating the March/April
EEO Complaint as Evidence of Retaliation Was Error
Appellant contends the trial court erred in permitting
Kourounian to introduce evidence of actions by Saghbazarian
which occurred before Kourounian’s protected activity of filing
the March/April EEO complaint. The parties agree the trial
court found the evidence admissible to show the “totality of the
circumstances.” We agree the trial court abused its discretion.
1. Motion in limine proceedings
In pre-trial motion in limine No. 2, the Department sought
to exclude evidence of all conduct in Kourounian’s EEO complaint
that did not constitute retaliation. Specifically, the Department
argued Kourounian’s investigation of a taxpayer complaint was
not a protected activity under FEHA, and FEHA only protects
against retaliation caused by engaging in a protected activity.
Kourounian’s first protected activity was the March/April EEO
complaint which alleged age and race discrimination (in addition
15
to the investigation of the taxpayer complaint). Adverse actions
taken before a protected activity cannot constitute retaliation
under FEHA. This was consistent with the trial court’s ruling on
demurrer.2
In his written opposition to the motion in limine,
Kourounian conceded that based “on the rulings made by Judge
Cotton on Defendant’s demurrer to the SAC, Plaintiff agrees that,
at trial, Plaintiff cannot seek compensation for any of the acts
complained of in Plaintiff’s March-April 2013 EEO complaints.”
Kourounian then argued that the fact that he filed the
March/April EEO complaint and the content of the allegations in
the documents submitted to the EEO were admissible on the
issue of motive to demonstrate why Saghbazarian, Chiang, and/or
Klomp would have a motive to retaliate against him, as alleged in
his May 2013 claims.
At oral argument on the motion in limine, the Department
argued “as to the first EEO complaint [in March/April 2013], I
believe it’s been acknowledged by . . . the plaintiff that it was
based on an unprotected—an activity that was not protected
under FEHA and, therefore, it does not constitute a complaint in
retaliation. So nothing in that first EEO complaint should be
able to be put into evidence as retaliation.”
In response, the trial court stated its belief that it was for
the jury to decide whether alleged acts were retaliation or not.
Appellant protested that “the first EEO complaint is not, as a
matter of law, a complaint of retaliation. So anything listed in
that complaint cannot go to the jury.” The court responded: “I
2 The Department made this same argument in motion in
limine No. 13, which was directed more broadly at precluding all
evidence of any actions taken by Saghbazarian.
16
disagree. The prior judges in this case would disagree.” As
shown above, the trial court was mistaken as to Judge Cotton’s
previous ruling on the demurrer.
After the trial court denied the motion to preclude
admission of the substance of the March/April EEO complaint,
Kourounian’s counsel stated: “I concur with the court, and we
have to look at the totality of the circumstances on the retaliation
issue. And I think plaintiff in all reasonableness, should be given
the opportunity to present the totality of the circumstances, and I
concur with the court’s ruling on this.” The court responded: “I
agree. And the citation to [Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028 (Yanowitz)] is quite instructive, and I read it,
and I read CACI number 2509, and that gets me to the result.”
2. Analysis
As a matter of both logic and law, acts of retaliation must
occur after the protected activity. “ ‘ “To establish a prima facie
case of retaliation, a plaintiff must show that she engaged in
protected activity, that she was thereafter subjected to adverse
employment action by her employer, and there was a causal link
between the two.” ’ ” (Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 69, italics added.) “Because
retaliation under FEHA requires the plaintiff to show that the
employer was motivated to retaliate by the plaintiff’s protected
activity, actions the employer took before the plaintiff engaged in
the protected activity necessarily are irrelevant.” (Nejadian v.
County of Los Angeles (2019) 40 Cal.App.5th 703, 724, fn. 17.)
The opinion in Yanowitz does not provide otherwise. The
court simply permitted the consideration of all the employer’s
retaliatory acts as a whole. As the court explained, “there is no
requirement that an employer’s retaliatory acts constitute one
17
swift blow, rather than a series of subtle, yet damaging, injuries.”
(Yanowitz, supra, 36 Cal.4th at p. 1055.) This does not change
the requirement that retaliatory acts occur after the protected
activity or, put differently, be prompted by the protected activity.
On appeal, Kourounian defends the trial court’s ruling on
the ground that his investigation of the taxpayer complaint “does
show that Saghbazarian had a history of not liking to work with
older individuals.” Kourounian also claims that other actions by
Saghbazarian before the March/April EEO complaint “simply [go]
to the weight of the evidence and the totality of the circumstances
show Saghbazarian had a motive to retaliate against Kourounian
based on age and race discrimination.”
In settling his failed promotion appeal, Kourounian
expressly waived his claims of age and race discrimination.
Saghbazarian’s history of not liking to work with older people has
no relevance to a claim of retaliation. Actionable retaliation must
be based on an individual’s engagement in protected activity, not
his protected personal status. Kourounian also contends the
“trial court agreed to give a limiting instruction as to what time
period was covered by Kourounian’s claim for retaliation.” This
contention is not supported by the record.
Kourounian’s claim that it was “important for the jury to
put the entire story together and fully understand the
circumstances surrounding Kourounian’s claim of age and race
discrimination” overstates the relevance of that claim. There is
no doubt that the fact that Kourounian filed an EEO complaint
for age and race discrimination is highly relevant. It is the
protected activity needed for his claim; more colloquially it
provides a motive for the retaliation. The details of the
discrimination are not relevant. This was not a trial about
18
whether Saghbazarian engaged in race or age discrimination;
Kourounian waived those claims in the prior settlement
agreement.
3. Prejudice
We consider the prejudice from this ruling in section B,
post.
B. Admission of the EEO Complaint Was Error
Appellant contends the trial court erred when it found the
original March EEO complaint (Exhibit 7), the April supplement
(Exhibit 8) and the May EEO complaint (Exhibit 9) were not
hearsay and then admitted those documents into evidence. We
agree the trial court abused its discretion.
1. Trial court proceedings
Although there were 15 motions in limine, none directly
concerned the admission of copies of the two EEO complaints.
Kourounian’s counsel simply moved to admit the documents
during the examination of Kourounian. When the trial court
asked if the Department objected, counsel replied: “We filed a
written objection on six grounds, and we object primarily on
hearsay, but on the other grounds as well.” The court replied: “I
don’t know what you are referring to, the written objections.”3
The court directed the Department to make its objections on the
record in open court. Counsel stated: “Object as hearsay.” When
the court asked if there were any other objections, counsel stated:
“It’s irrelevant. There’s been a waiver. It’s a 352 argument. It’s
3 We don’t know either, as appellant has not provided a
record cite for any written objections.
19
a statute of limitations issue and it’s a failure to state a claim.”
The court overruled all these objections, indicating that the
hearsay objection was overruled “as to the plaintiff’s handwritten
statements.” The court then specifically ruled that as to Exhibit
7, the March/April EEO complaint, pages 7-1, 7-2, 7-5, 7-7, 7-8, 7-
9, 7-10, 7-11, 7-12, and 7-13 were admitted. This is essentially
the entirety of the complaint itself. The hearsay objection was
sustained as to the rest of the document.
Later, outside the presence of the jury, the Department
asked to speak to the admissibility of the document. The court
replied: “I really don’t want to entertain argument. I’ve ruled on
it.” The court stated: “These are the statements of the plaintiff.
All these pages have only the statements of the plaintiff.”
Appellant stated: “Which is hearsay.” The court replied: “He’s
testifying. He’s being cross-examined. These are his statements.
This is not hearsay, and it has independent legal relevance
because it is the gravamen of his complaint what he said to the
reporting agencies. You can cross-examine him and them tell the
jury if your cross-examination is effective that his statements
should not be given weight, but they are his statements. [¶] The
statements of other people are clearly excluded. You’re correct.
Emails that have both the plaintiff’s statements and other
people’s statements have been categorically excluded because
they are mixed and it’s not crossed off enough.” The trial court
was mistaken.
Appellant also verbally objected to the admission of
Exhibits 8 and 9 on the ground that they were hearsay. The trial
court overruled the objections without elaboration.
20
2. Analysis
“Hearsay may be briefly understood as an out-of-court
statement offered for the truth of its content. Evidence Code
section 1200, subdivision (a) formally defines hearsay as
‘evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the
truth of the matter stated.’ A ‘statement’ is ‘oral or written
verbal expression’ or the ‘nonverbal conduct of a person intended
by him as a substitute for oral or written verbal expression.’
(Evid. Code, § 225.)” (People v. Sanchez (2016) 63 Cal.4th
665, 674.) “Documents like letters, reports, and memoranda are
often hearsay because they are prepared by a person outside the
courtroom and are usually offered to prove the truth of the
information they contain. Documents may also contain multiple
levels of hearsay. An emergency room report, for example, may
record the observations made by the writer, along with
statements made by the patient. If offered for its truth, the
report itself is a hearsay statement made by the person who
wrote it. Statements of others, related by the report writer, are a
second level of hearsay. Multiple hearsay may not be admitted
unless there is an exception for each level.” (Sanchez, at pp. 674–
675.)
There is no doubt that the EEO complaints were prepared
outside the courtroom. Thus, like an emergency room report,
Kourounian’s written complaints, if offered for its truth, is a
hearsay statement made by Kourounian, the person who wrote it.
The fact that Kourounian was available for cross-
examination does not transform his statements in the complaints
into non-hearsay or provide an exception to the hearsay rule.
“ ’Hearsay is generally excluded because the out-of-court
21
declarant is not under oath and cannot be cross-examined to test
perception, memory, clarity of expression, and veracity, and
because the jury (or other trier of fact) is unable to observe the
declarant’s demeanor.’ [Citation.] To challenge a testifying
witness’s own prior, out-of-court statement as inadmissible
hearsay is unusual, but we agree with defendant that [the
testifying witness’s] own statement to his wife constituted
hearsay evidence, for it was an out-of-court statement that was
offered for its truth.” (People v. Seumanu (2015) 61 Cal.4th 1293,
1307–1308, fn. omitted.) We are not free to disregard this
holding by the Supreme Court and, contrary to Kourounian’s
claim, neither was the trial court.
The fact that Kourounian is a party, not merely a witness,
does not make his out-of-court statements admissible. The
Evidence Code provides only limited exceptions to the hearsay
rule for the out-of-court statements of a party, and Kourounian
has not identified any of them as applicable.
Finally, by way of analogy, federal caselaw is abundant
that EEOC charges are inadmissible hearsay as is the narrative
attached to the charge. (Delaney v. Bank of America Corp.
(2d Cir. 2014) 766 F.3d 163, 169; Abbott v. Elwood Staffing
Services, Inc. (N.D.Ala. 2014) 44 F.Supp.3d 1125, 1139;
Stolarczyk ex rel. Est. of Stolarczyk v. Senator Intern. Freight
Forwarding (N.D.Ill. 2005) 376 F.Supp.2d 834, 841–842.)
We do not understand what the trial court meant by the
complaints having “independent legal relevance because it is the
gravamen of his complaint what he said to the reporting
agencies” or why it believed that reasoning would take the
statements outside the hearsay rule. Gravamen is generally
understood to mean “the substantial point or essence of a claim,
22
grievance or complaint.” (Black’s Law Dict. (10th ed. 2014)
p. 817, col. 1; Garner, Dict. of Modern Legal Usage (2d ed. 1995)
p. 391 [“the point of a complaint or grievance”].)
In its ruling denying appellant’s motion for a new trial, the
court suggested that it had admitted the EEO complaints for a
limited purpose. The court stated that “the EEO complaints and
emails were relevant to Plaintiff’s contention that he gave notice
to [the Department] of its retaliatory conduct. In addition, as
Plaintiff argued, these documents reflected his state of mind, an
exception to the hearsay rule.” Nothing in the trial record
indicates the complaints were admitted for any limited purpose.
On appeal, Kourounian contends he did not offer the
complaints for the truth of the matter “but for other legitimate
reasons” such as notice to appellant, Kourounian’s state of mind
and his good faith and reasonable belief that he was being
discriminated against. We strongly question whether those
purposes would have justified admitting the entirety of the
complaints, particularly since notice to the EEO and
Kourounian’s good faith belief do not appear to have been in
dispute.4 But whatever Kourounian’s purpose was for seeking
admission of the complaints, he did not articulate it when he
moved to admit the complaints into evidence, and he remained
silent when the trial court ruled they were not hearsay. Given
Kourounian’s silence and the trial court’s belief that the
statements were not hearsay, the Department had no basis to
4 We do not see the relevance of Kourounian’s state of mind
to any issue in this action, but if, by state of mind, Kourounian
means his emotional response to the discrimination and
retaliation, we agree with the Department that there is very little
on this subject in the complaints.
23
request a limiting instruction that the statements were not being
admitted for their truth and/or under some other exception to the
hearsay rule such as state of mind. As a result, the complaints
were admitted without any restrictions. This was error.
While the Department had no basis to request a limiting
instruction, the trial court gave the Department the opportunity
to make other objections. We find the Department did not use
this opportunity to make other objections it is now asserting on
appeal, specifically that statements in the complaints violated
two of the trial court’s in limine rulings prohibiting legal
conclusions and evidence of Kourounian’s rejection on probation.
Accordingly, we find those contentions waived.5
Finally, we turn to the Department’s claims that the
complaints contained “inflammatory and damaging
characterizations of the alleged retaliators that were nothing
more than Kourounian’s subjective opinion.” In many instances,
the Department refers to a single word without context and
without a specific page cite. In its reply brief, appellant contends:
“A simple reading of the 12-pages of EEO narratives evidences
the prejudice to the Department.” It does not. The Department
has forfeited all contentions based on reference to a single quoted
word with no specific record cite or supporting legal argument.
5 The Department is excused from making an objection that
the complaints involved multiple hearsay, that is statements by
Kourounian recounting out-of-court statements by others. The
trial court’s remarks show that such an objection would have
been futile.
24
3. Prejudice
In analyzing prejudice, we consider the March/April EEO
complaint separately from the May EEO complaint. The
substance of the March/April complaint was not relevant to any
issue in this case. The substance of the May EEO complaint was
relevant to show retaliation for engagement in a protected
activity, although not as hearsay.
We do not find prejudice to appellant from the admission of
the May EEO complaint. It was brief and Kourounian and
Balagula testified at trial about the specific incidents in the
complaint. As set forth in the BACKGROUND section, ante,
there was ample other evidence of Chiang’s adverse actions
toward Kourounian and these are far more serious than the
incidents in the complaint.
In contrast, the jury received a double dose of evidence
about irrelevant actions by Saghbazarian that predated the
March/April EEO complaint. This double dose was in the form of
some live testimony and the written complaint. Saghbazarian’s
conduct before the filing of the complaint is very similar to
Chiang’s conduct after the protected filing of the March/April
EEO complaint, even though it was only Saghbazarian who was
named as the offending party in the March/April EEO complaint
for age and race discrimination. Moreover, the switch in
supervisors from Saghbazarian to Chiang occurred after
Kourounian filed his March/April EEO complaint. The jury was
aware that the two women were friends, and there was evidence
that Chiang was unhappy with Kourounian’s taxpayer
investigation findings, presumably on behalf of her friend. The
similarity of conduct of the two supervisors suggests a concert of
action and bolsters the theory that Chiang indeed was acting
25
with a retaliatory motive. Put differently, it strengthens the
credibility of Kourounian’s claim of retaliatory animus. When
evidence of Klomp’s similar conduct is added into the mix, it
paints a picture of three very high-ranking employees of the
Department engaged in concerted action to punish an employee
under them for alleging FEHA violations. This is a much more
damaging scenario to the Department, which is the only
defendant in this action, than it would be if the evidence
suggested Chiang was acting on her own.
Further, in addition to the invalid retaliation claim
evidence, the March/April complaint, primarily the supplement,
alleged age and race discrimination by Saghbazarian. These acts
have a tendency to show Saghbazarian as someone who was
prejudiced and willing to act in violation of the law. The claims
were settled, however, and their truth was never adjudicated; the
jury should never have learned of any claim details. At a
minimum, the acts have a tendency to undermine her credibility
about her behavior post-March/April complaint. More
importantly, the evidence at trial made clear that Saghbazarian
is not only still in appellant’s employ, but also has been
promoted. Given the improperly admitted evidence of
Saghbazarian’s allegedly discriminatory behavior, the
Department looks complicit in ratifying potentially prohibited or
illegal behavior.
This was a 9-3 verdict, a close case, where there was
affirmative evidence presented by both parties for the jury to
consider. We conclude there is a reasonable probability that if
the evidence at trial had commenced with the filing of
Kourounian’s March/April EEO complaint, instead of reaching
back into irrelevant time periods, the Department would have
26
received a more favorable verdict. (Kotla v. Regents of University
of California (2004) 115 Cal.App.4th 283, 289, 294 [prejudice
found where the vote was 9-3 and there was evidence presented
by both parties from which either retaliation could be inferred or
plausible nonretaliatory reasons could be sustained].) The total
number of alleged bad acts by the Department would have been
reduced, a conspiracy among Saghbazarian, Chiang and Klomp to
retaliate against Kourounian would have appeared less likely,
and Saghbazarian’s acts of ignoring Kourounian and Chiang’s
and Klomp’s fits of anger and hostility would have seemed less
menacing.
DISPOSITION
The judgment is reversed. Respondent to pay costs on
appeal.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
27