Filed 12 / 8 / 23 Mil l an v. City of Yor ba Linda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ANTONIO MILLAN, Plaintiff and Appellant,

v. CITY OF YORBA LINDA, Defendant and Respondent. G061058
(Super. Ct. No. 30

- 2017

- 00964412)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed.

Arthur Kim Law Firm and Arthur Kim for Plaintiff and Appellant. Lozano Smith, Mark K. Kitabayashi and Fabiola M. Rivera for Defendant and Respondent.2 Plaintiff Antonio Millan appeals from the judgment entered after a jury found his employer, City of Yorba Linda (the City) , di d not retaliate against him in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) or section 1102.5 of the Labor Code. Millan argues the trial court committed evidentiary error in various respects and engaged i n judicial misconduct.

We affirm

. For the reasons we explain, Millan has failed to establish any prejudicial evidentiary error or judicial misconduct during trial.

FACTS
I.
O VERVIEW OF T HE C ITY ’ S P UBLIC W ORKS D EPARTMENT Armando Jaime has been the superintendent of the City’s Public Works Department (Public Works or department ) since 2004. Jaime manages a team of 8 to 10
maintenance workers who are employed by the City and also oversees the work of 60 to 100 contract workers retained through outsid e contractors . Derrick Warren is a department supervisor who reports to Jaime. Since about 2011, Roldan Serrano has
served as the department ’s lead worker; Serrano reports to Jaime and Warren

. The department operates out of a corporation yard known as t he “City Yard” which it shares with the City’s Public Parks Department (Parks or Parks department), although the two departments do not work together or otherwise coordinate efforts . Supervisory personnel for both departments have offices in a trailer loc ated at the City Yard.

Public Works m aintenance workers have a general routine by which they carry out their set duties and responsibilities. Every morning, maintenance workers drive through the City’s “major arterials” to make sure the public right s o f way remain free of hazards. They pick up trash, branches, and anything that might have been thrown into the

street. They temporarily fill potholes, make sure regulatory signs are up, and confirm traffic signals are functioning.3 After the maintenance workers conduct such “arterial policing,” they move through their assigned grid area where they clean wee d s, pick up trash, perform light trimming, check “ catch basins ” 1 to make sure no vegetation is growing out of them, and make sure signs are visible w ithout obstruction. The department assigns o ne maintenance worker to maintain each of the six grid areas in the City ; the assigned
worker generally work s independently at the worker’s assigned grid area with minimal supervision “[a]ll day long.” However, when cleaning catch basins, maintenance workers operate in “two

- man crew[s]

. ”

There are times when maintenance workers work with others in a group , such as in the event of a fire, significant rain and floods, or the declaration of a natural
disaster

. On such occasions, the staff comes together to address problems , such as mud
flows , and to remove dead plant material, sandbag vulnerable areas, and assist the
Sheriff ’s Department with traffic control.

Maintenance workers are responsible for laying sandbags in the City. After working six months to one year in their assigned grid area, maintenance worker s are expected to know the locations within their respective grid areas that require erosion
control. The maintenance worker decides how many sandbags will be needed in the worker’s assigned area, when to make and deliver sandbags to that area (whether on a daily or weekly basis), and where to place the m

. 2

1 A catch basin is the portion of a storm drain where water enters.

2 Areas 1 through 4 typically require more sandbags because they do not have storm drain inlets or curbing gutters which funnel water to localized areas for the capture of the rainstorm. “When y ou get up to the further end of town, which is a rea 5 and 6, it is completely developed, mast er plan as you may call it. And then along with that, about 90, 95 percent of the erosion control out there is implemented by [the City ’ s ] landscape contractors a s part of their

. . . maintenance packages through [the City’s] landscape department.” Although they may require fewer sandbags, a reas 5 and 6 have more catch b as ins than other areas.4 II.
T HE C ITY H IRES M ILLAN AS A M AINTENANCE W ORKER In 2006, the City hired Millan to work in Public Works as a Maintenance Worker I. He was initially assigned to work in a rea 4, where he worked for the first eight
years of his 11

- year tenure in that department

. I I I. M ILLAN ’ S P ERFORMANCE H ISTORY FROM 2006

– 201 3 Millan’s job performance was evaluated every year in November by Jaime,
in co njunction with Warren and Ser r ano. In his November performance evaluations given in 2006, 2007, 2008, 2010, 2011, and 2012 , Millan re ceived an overall rating of “competent.” In his 2009 and 2013 performance evaluations , he received an “above

average ” rating.

Plan progress notes accompanying the performance evaluations pointed out areas in which Millan needed to improve. In 2007, he was informed he needed to focus

on out

- of

- sight maintenance areas that he had not been maintaining. In 2008 and 2009, he was told to work on addressing traffic control reporting and sign maintenance.

In 2010, the performance evaluation’s supplemental comments stated ,

“ [Y] ou need to control your emotions and anger when spoken, counseled, and are reprimanded.” Jaime testified regarding the context of those comments: “ Wh en items of deficiencies were brought to [Millan’s ] attention or he had a little mis step [in] damag[ing] some vehicles or maybe he wasn’t getting along with his co

- workers, something of that nature, and Mr. Warren or myself or his immediate supervisor would
have to discuss [it] with him, he became a little bit aggressive, a little bit hostile; his
demeanor c hanged.” The plan progress comments stated: “ ‘ This up

- and

- coming year work on the team building concept. Controlling your emotion, anger when spoken to .’ ”

Mil l an testified he did not believe the 2010 performance evaluation comments regarding controll ing his emotions and anger were appropriate. Mi l lan5

testified Jaime was the one who engaged in in appropriate conduct. Millan testified that on one occasion, Jaime called him into his office and said: “How about you help your

co

- worker get the day off he requests and just get under the desk and give me a blow job

. ” Mil l an’s statement was corroborated by another maintenance worker, Roy De Herrera, who testified he witnessed that incident. De Herrera added “there were several
of us [Jaime] would say that to. If you would go in and ask for vacation; if you would ask for P.P.E., he would say, oh well, get under the desk. And to him it was a joke, but to us it wasn’t. And you couldn’t really say anything in fear of retaliation, you know, your job, and him having you do things.” Jaime testified he “never said anything of that nature to anybody.” In 2011, Millan was credited for having improved his cooperation and attitude toward supervisors and for controlling his anger and emotions. He was also
asked t o be conscientious regarding sick leave use and to continue building the team concept. Millan was promoted to Maintenance Worker II.

In April 2012, Millan received a written reprimand for insubordinate
behavior. Jaime explained in his testimony Millan had been taking unauthorized breaks
and continued to do so even after Jaime had spoken to him about it. When Jaime brought
him into the office to discuss the matter , Millan “ became exceptionally angry and hostile,” claimed Jaime was harassing him regarding his unauthorized breaks , and stated
he should be able to take a break whenever he felt he needed one. M illan told Jaime “ ‘ I am done talking to you, ’ ” got up , and started walking out of Jaime’s office. Jaime told
Millan he was being insubor dinate and needed to come back and sit down so they could continue to discuss the problem. By November 2012 , when Millan received his annual performance evaluation, it was noted he had again made improvements in controlling his
anger. Millan’s 2013 per formance evaluation with an overall rating of “above average” appeared to be the best evaluation he received while he worked in Public6

Works . In the plan progress comments, he was asked to continue to improve any high
maintenance standards and to be consc ientious about arriving late to work and with sick leave as he was “having a little issue with both of those at that point

. ”
IV. 2014: M ILLAN U NSUCCESSFULLY S EEKS A J OB T RANSFER , I S R EASSIGNED , F ILES A N I NTERNAL C OMPLAINT , AND R ECEIVES A N EGATIVE P ERFORMANCE E VALUATION In 2014, Millan unsuccessfully tried to transfer to the Parks d epartment. On July 28, 2014, Millan’s grid area assignment changed from a rea 4 to a rea 6. Jaime testified Millan was reassigned bec ause the department hired a new employee who Millan
trained in a rea 4. He further testified i t is the department’s practice to assign a new employee to the area in which the employee had been trained and to reassign the more senior employee to a different area.

In contrast to Jaime’s testimony, Millan testified he had n o t trained anyone
at the time he was reassigned , no one had been hired to take his position in area 4, and the department’s practice was to keep workers with seniority assigned to the sam e grid area. On September 29, 2014, he submitted a written complaint to City Hall, accusing Jaime and Warren of bullying and retaliation

.

In November 2014, although Millan received an overall competent rating in his performance evaluation, it was the f irst time he received specific negative ratings ; those negative ratings were in the areas of cooperation and attitude toward supervision
and effectiveness under stress.

His evaluation noted that d uring the 2013

– 2014 rating period, Millan had
received se ven “notices” regarding the following : (1) lack of maintenance in his area (two notices) ; (2) lack of care regarding City property (Millan had lost the City’s fuel
card ) ; (3 ) “a lot of errors” on one timesheet , requiring Warren to continue calling Millan
back to correct them , followed by a second timesheet that was inaccurate ; (4) taking unauthorized breaks; and (5) outbursts and anger management. Although there is a place7

to respond to comments in performance evaluations, Millan did not dispute the seven
incidents or otherwise comment on them.
V.

M ILLAN F ILES A N A DMINISTRATIVE C OMPLAINT On November 3 , 2015, Millan filed a complaint with what was then called the Department of Fair Employment and Housing (DFEH). 3 In the DFEH complaint, he made accusations against Jaime and Warren ; Jaime was a named respondent in the complaint

. 4 The City received notice of the complaint on November 9, 2015. The City investigated the allegations of the DFEH complaint but did not find them to be true and imposed no discipline

.

Jaime testified he believed Millan had filed his DFEH complaint after
Jaime finished writing Millan’s 2015 performance evaluation. Millan’s overall performance rating at this time was “needs improvement. ” He received unsatisfactory ratings in the area of cooperation with fellow employees and supervision.
V I

. M ILLAN ’ S T ESTIMONY R EGARDING H OW H IS W ORK S ITUATION C HANGED

A FTER H E F ILED THE DFEH C OMPLAINT Millan testified , after he filed the DFEH c omplaint , he started receiving negative revie ws and unsafe work assignments and continued to receive unsafe assignments until he left Public Works one and one

- half years later . He stated he was

3 The DFEH has since changed its name to the Civil Rights Department

. Because at all relevant times the department was referred to as the DFEH, we refer to it as the DFEH for clarity.

4 Although not included in the evidence presented to the jury, the DFEH c omplaint alleged , inter alia, Millan was subjected to (1) discrimination and harassment based on his race and national origin ( Latino who was born in the United States as opposed to b orn in Mexico), (2) gender and perceived sexual orientation discrimination, and (3) retaliation , all in violation of FEHA.8

“bullied” by Jaime and Warren , and the whole department w as “ just laughing at [him].”
He also testified his workload doubled.

Jaime denied M i llan’s claim s, including that his work doubled. Jaime testified Millan continued to be assigned to grid area 6 and his workload did not increase.

Millan testified that within two weeks of the DFEH complaint, Jaime came out to his job site and instructed him to create two rows of s andbags, three sandbags high , for erosion control, which Millan thought was more than needed

. Jaime denied directing
Millan about sandbag placement in his grid area. Millan also testified he believed he
received new assignments after he filed the D FEH co mplaint

.

Millan testified, on one occasion in January 2016, he and his coworkers were “made [to] work in the rain picking up tumbleweeds” on a hillside following a resident’s complaint about the tumbleweeds. Millan slipped and fell, hurting his right
b uttocks area. Millan testified that a fter he told Jaime he was in pain and wanted to go to the doctor, Jaime instructed him to continue working. Millan further testified he saw Jaime stand on top of the hillside with his arms crossed looking at Millan an d grinning
while Millan worked

.

In contrast, Jaime testified Millan had refused Jaime’s offer to stop work ing that day and see a doctor ; instead, Millan insisted on continuing to work. Jaime further testified, the following morning, Millan told Jaime he wanted to seek medical attention. “At that point,” Jaime filled out the paperwork Millan needed to go to a medical clinic.
After Mi l lan went to the clinic, he came back with a doctor’s note which imposed some
work restrictions and was thereafter placed on temporary light duty.

Millan testified , in 2016, he was not only responsible for provid ing sandbags in his assigned grid area but was required to help m aintenance workers with
their sandbags in their assigned areas; he contended the extra

- area assigned work w as atypical

. He testified i n 2017 he continued to perform significant sandbag work, sometimes in the rain which made the sandbags heavier and the work “torture.”9 Millan also testified he worked alone in the wilderness on three occasions (the first time in March 2016) . He testified he was only provided with the assistance of
one contract worker to help clean out storm drains when usually there would be a crew of four people to do storm drain work . He also testified h e was required to dig actual inlets
and trenches with a shovel and such assignments were made by his supervisors to torture him.
Jaime testified after Millan filed the DFEH complaint, Jaime did not treat Millan any different ly than how he treated any other maintenance worker under his supervision. He further testified any disciplinary actions issued to Mi l lan after he filed the DFEH complaint were not given because of the complaint.
VII.
T HE P ERFORMANCE I MPROVEMENT P LAN S In January 2016, Millan received a written reprimand from Public Works director Michael Wolfe for writing an inappropriate comment on an official City form because Millan had done the same thing before and had been previously counseled
numerous times for s uch conduct.

In February 2016 , Serrano provided Millan with a list of 24 tasks (punch list) that had been neglected by Millan and directed him to complete all the tasks within
two weeks. Millan returned the punch list to Serrano , claiming he had comple ted all the
tasks. Serrano went to grid area 6 and found , contrary to Millan’s representation, Millan had not completed all of the tasks listed on the punch list

. Millan was placed on a six

month performance improvement plan based on his unsatisfactory p erformance.

At the conclusion of Millan’s first performance improvement plan term , the City determined Millan had failed to adhere to his supervisors’ directives and administrative policies regarding sick leave and filling out time sheets. It was
recommended Millan be given a three

- day disciplinary suspension. Millan appealed the discipline to the assistant city manager who upheld the decision.10 The City then placed Millan on a second performance improvement plan. Millan again failed to meet th e performance measures, warranting further discipline. During the second performance improvement plan term, Millan was involved in two
incidents. First, one morning in October 2016, although on call at the time, Millan failed to respond within one hour of the 4:00 a.m. call he received from the Orange County Sheriff’s Department dispatch regarding a city sign that had been struck by a car and fell

. The accident also resulted in mud and other debris on the sidewalk and street which, along with the downe d sign, needed to be removed to prevent further accidents from happening.

Instead of responding to the call and reporting to the scene , Millan reported to the City Yard. He claimed he was justified in reporting to the City Yard instead of to
the call sce ne because the response time was too close to his 6:00 a.m. report time , and he
arrived at work at 5:45 a.m. Jaime testified even if Millan had arrived to work at 5:45 a.m., he “should have immediately activated and responded to the call.” Jaime explaine d: “Obviously he could have alerted his immediate supervisor that he was already moving to the field to respond to the call and it would have been so duly noted.” Millan later admitted he had arrived at the City Yard by 5:35 a.m. The City determined he had time to respond to the call but failed to do so and lied about it. In addition, Millan thereafter submitted paperwork seeking to be paid the two hours of overtime he might have earned had he responded to the call

.

Second, o n December 12, 2016, Mill an was again on call when the s heriff’s
d epartment was contacted by a homeowner regarding a broken water line behind the homeowner’s house. Millan responded to the call and claimed he looked for the shut off
valve for three hours. He did not find the shut off valve and did not contact his supervisor or the City for assistance. Instead, at 11:00 p.m. , he went home, le aving the water running d own the slope all night

. N ot only did the City pay for the leaking water,11

but the water also caus ed erosion on the slope and created mud flow into the storm drain which the City needed to repair

.

The City decided to impose discipline on Millan for his failure to appropriately respond to what was considered two serious response calls. It proposed demoting Millan to the Maintenance Worker I position. Notice was given to Millan of
the intent to demote him. Following a hearing before the city manager , th e demotion
recommendation was upheld

. V I II

. D URING H IS S ECOND P ERFORMANCE I MPROVEMENT P LAN , M ILLAN A NONYMOUSLY F ILES A C AL /OSHA C OMPLAINT In October 2016, Millan anonymously filed a c omplaint with the Division of Occupational Safety and Health (Cal/OSHA) , complaining “ C ity employees were entering storm drains without proper protective equipment , without checking air quality , and without having a confined space program in place. ” T he City rece ived notice of th e complaint around October 10, 2016

. Jamie did not know who filed the complaint , although the assistant to the city manager speculated Millan might have made the complaint

. IX

. M ILLAN T RANSFER S TO P ARK In August 2017, Millan transferred to the City’s Parks d epartment where he continued to work as of the date of trial. As an employee of the Parks d epartment, Millan has been supervised by Brad Skeene. Skeene did not supervise or oversee Millan while
Millan worked in Public Works.
X.

M I LLAN ’ S C ONTENTIONS OF C ONTINUED R ETALIATION Millan testified he continued to suffer retaliation by Jaime after transferring to Parks. As an example, he claim ed on one occasion, while he was driving home on the12

freeway, he s aw Jaime pull up next to him an d star e at him through his sunglasses, causing Millan to feel afraid. Another City employee, Antonio Munoz , testified he “observed” the incident which he described as lasting for only a “few seconds” during which he could not say whether Jaime was driving at an unsafe speed, although he was driving faster than traffic . Jaime denied chasing Millan down in his car and stated he did
not interact with Millan since he transferred to the Parks d epartment. Millan filed a complaint about the incident with the City. The investigator concluded there was
insufficient evidence to sustain M i llan’s claim. Millan also testified Jaime would stare at him and spit in his direction.

PROCEDURAL HISTORY
I.
M ILLAN F I LES A L AWSUIT A GAINST THE C ITY In December 2017, Millan initiated the instant lawsuit. In his first amended complaint, Millan alleged the City was liable for retaliation in violation of FEHA, failure to prevent retaliation in violation of FEHA, retaliation in violation of Labor Code s ection 1102.5, wrongful demotion in violation of public policy, intentional and negligent emotional distress, and penalties under the Labor Code Private Attorney s General Act of 2004 (Lab

. Code, § 2698 et seq. )

.

Millan’s claims for wrongful demotion and penalties under Labor Code
section 2698 were dismissed before trial ; neither claim is at issue in this appeal

. In the responden t’s brief, the City states that during the jury trial, Millan “voluntarily withdrew
his cause s of action for intentional and negligent infliction of emotional distress.” Millan does not challenge this assertion and does not make any argument in his appell ate briefs regarding his intentional and negligent infliction of emotional distress claim s

.13 II. T HE J URY R ETURNS S PECIAL V ERDICT S IN F AVOR OF THE C ITY AND

J UDGMENT I S E NTERED A CCORDINGLY Following trial, the jury returned special verdicts in favor of the City on
both the retaliation in violation of FEHA claim and the retaliation in violation of Labor
Code section 1102.5 claim. As to the retaliation in violation of FEHA claim, the jury found: (1) Millan file d a complaint with the D FEH and (2) the City subjected Millan to an adverse employment action, but (3) Millan ’ s complaint to the D FEH was not a substantial motivating reason for the City ’ s conduct

.

As to Millan’s claim for retaliation in violation of Labor Code section 1102.5, the ju ry found: (1) t he City was Millan ’ s employer , (2) Millan “disclose[d] to a government agency, California Occupational Safety and Health Administration, conduct by the City ,” (3) Mil l an ha d reasonable cause to believe the information disclosed a
violation of a state statute , and (4) the City subjected Millan to an adverse employment action, but (5) Millan’s disclosure of information to the California Occupational Safety
and Health Administration was not a contributing factor in the City ’ s decision to subjec t Mil l an to an adverse employment action

.

Judgment was entered in favor of the City and against Millan.
III

. T HE M OTION TO V ACATE THE J UDGMENT AND G RANT A N EW T RIAL Millan filed a m otion to vacate judgment and grant a new trial (motion for a new trial) . In his second amended notice of motion , Millan stated he brought the motion on the following grounds: “ ‘1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion b y which either party was prevented from having a fair trial

. . . . [and] 7. Error in law, occurring at the trial and excepted to by the party making the application.’ Code of Civil Procedure Section 657.”14 The second amended notice of motion further s tated: “Specifically, the motion is made on the grounds that a miscarriage of justice resulted and Plaintiff was deprived of a fair trial because: (i) the Court excluded key eyewitness testimony of retaliation; (ii) the Court excluded key impeachment and rehabilitation testimony; (iii) the
Court excluded me too evidence of retaliatory intent; (iv) the Court excluded evidence of the underlying complaint that motivated the alleged retaliation; (v) [the trial judge] prejudiced the jury against Plaintiff by s creaming at his representatives in front of the jury and through other acts of bias; and (vi) the Court excluded evidence of Defendant’s negligent acts preceding the alleged retaliation, which supported Plaintiff’s failure to prevent retaliation claim.”

After Millan filed a notice of appeal from the judgment , t he trial court
denied the motion for a new trial, explaining its reasoning as to each of the grounds in a
detailed 30

- page ruling

.

DISCUSSION
I.
A PPELLATE R EVIEW G ENERALLY We apply three fundamental principles of appellate review: “ (1) a judgment is presumed correct ; (2) all inten dments and presumptions are drawn in favor of

correctness ; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. ” ( Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

An order denying a motion for a new trial is not directly appealable but is reviewable on appeal from the underlying jud gment. ( Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) In reviewing an order denying a motion for a new trial, we “‘must fulfill our obligation of reviewing the entire record, including the evidence, so as t o make an independent determination as to whether15

the error was prejudicial.’” ( Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 46

– 47.) This differs from our review of an order granting a motion for a new trial,
which we review for abuse of d iscretion. ( Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194.)
I I

. C ONTENTIONS OF E VIDENTIARY E RROR In his opening brief, Millan argues the trial court committed prejudicial

ev identiary error by excluding evidence of Jaime’s and Warren’s retaliatory intent , relevant to establishing liability under FEHA and Labor Code section 1102.5. For the reasons we explain, Millan’s contentions of prejudicial evidentiary error are forfeited and even if they are not forfeited they are without merit.
A

. Millan’s Claims of Prejudicial Evidentiary Error Are Forfeited Because His Appellate

Briefs Violate Rule 8.204 of the California Rules of Court In this appeal, Millan argues several of the trial court’s evidentiary rulings constituted prejudicial error. However, Millan fails to provide in his opening brief a summary of the significant facts (e.g., the trial evidence), as required by rule 8.204(a)(2)(C) of the California Rules of Court , nece ssary to provide context to consider his contentions of prejudicial error.

In his opening brief, u nder the heading “Summary of Facts and Procedural History” (capitalization, boldface, and underline omitted), Millan states he filed a DFEH complaint against Jaime and Warren and then filed a Cal / OSHA complaint alleging safety violations by Public Works . The “summary” of trial evidence concludes by stating: “As a result of his complaints, Millan alleged that he suffered retaliation from the City, in particular from Superintendent Jaime. The retaliation included: (i) a doubling of Millan’s workload; ( ii) physically punishing and unsafe work assignments; and (iii) unfair scrutiny and discipline including constant writeups, verbal reprimands,16

yelling, long sessions in Jaime’s office, performance improvement plans, suspension and demotion.” In support of this summary of retaliatory conduct, the opening brief cites to approximately 200 pages of trial testimony. Rule 8.204(a)(1)(C) of the California Rules
of Court provides each appellate brief must “[s] upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter
appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in
th e record where the matter appears .” Millan’s block citations do not comply with rule 8.204(a)(1)(C), “and frustrate the court’s ability to evaluate [Millan ’s ] position.” ( Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 422; In re Marriage of Fink ( 1979) 25 Cal.3d 877, 888 [“ It is neither practical no r appropriate for [the appellate cou rt] to comb the record on [appellant’s] behalf”].) Accordingly, “ [w]hen an appellant ’ s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly
made. [Citations.] We can simply deem the contention to lack foundation and, thus, to
be forfeited. ” ( In re S.C. (2006) 138 Cal.App.4th 396, 406

– 407 .)

In light of his failure to provide a meaningful summary of facts with specific and accurate citations to the record, Millan has forfeited his contentions of prejudicial evidentiary error.
B. Millan’s Forfeited Contentions of Prejudicial Evidentiary Error Are Without Merit

In his opening brief, Millan argues the trial court committed evidentiary error by: (1) excluding the testimony of Bradley Skeene; (2) excluding testimony by or about “me

- too victims” De Herrera, Robert Trevino, Cesar Villalpando, and J essy Rangel; (3) “preventing impeachment, rehabilitation, and refreshment of witnesses”; (4) excluding evidence of substantive allegations of the DFEH complaint; and (5)17

excluding evidence of “negligent acts and omissions leading up to retaliation.” (Capi talization and boldface omitted.)

He contends the exclusion of such evidence prejudicially impaired his ability to prove retaliatory intent on the part of Jaime and Warren in support of his retaliation claims. Even if Millan’s contentions of evidentiar y error have not been forfeited, for the reasons we explain, they are without merit.
1. Governing Legal Standards for Retaliation Claims Brought Under FEHA

and Labor Code Section 1102.5
a. Retaliation in violation of FEHA

“ ‘ [I]n order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a “ protected activity, ” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed
between the protected activity and the employer ’ s action. ’ [Citation.] The requisite

‘ causal link ’ may be shown by the temporal relationship between the protected activity and the adverse employment action. ” ( Light v. Department of Parks & Recreation (2017)
14 Cal. App.5th 75, 91.)

“‘In order to meet the FEHA standard, an employer’s adverse treatment must “materially affect the terms, conditions, or privileges of employment.” [Citation.] “[T]he determination of whether a particular action or course of conduct rise s to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” [Citation.] Such a determination “is not, by its nature, susceptible to a mathematically preci se test.” [Citation.] “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materiall y affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that18

is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” [Citation.] FEHA not only protects against “ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to a dversely and materially affect an employee’s job performance or opportunity for advancement

. . . .”’ [Citations.]

“‘“A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” [Citation.] “‘[W]orkpla ces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’”’ [Citation.] For example, ‘“[a] mere oral o r written criticism of an employee

. . . does not meet the definition of an adverse employment action under [the] FEHA.”’ [Citation.] Similarly, ‘[m]ere ostracism in the workplace is insufficient to establish an adverse employment decision. [Citations.] However, “‘[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for

. . . retaliation cases.’”’ ” ( Light v. Department of Parks & Recreation , supra , 14 Cal.App.5 th at pp. 91

– 92, f n. omitted.)

b. Retaliation in v iolation of Labor Code section 1102.5

Labor Code section 1102.5 5 “ reflects the broad public policy interest in encouraging workplace whistle

- blowers to report unla wful acts without fearing

5 S ection 1102.5 , subdivision (b) provides: “An employer, or any person acting on behalf of the employer, shall not retaliate aga inst an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the a uthority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying19

retaliation. ” ( Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) It “ prohibits employers from retaliating against employees for ‘ disclosing information ’ concerning suspected violations of the law either internally or to government or law enforcement agencies. ” ( People ex rel. Garcia

- Brower v. Kolla ’ s, Inc. (2023) 14 Cal.5th 719, 720

– 721 [employee who complained to her employer about unpaid wages was promptly fired and threatened with deportation].)

The Labor Code first “ places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee ’ s protected activities was a contributing factor in a contested employment action

. . . . Once the plaintiff has mad e the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity. ” ( Law son v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 7 18, citing Labor Code section 1102.6.) A contributing factor is “‘“‘ any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision. ’”’” ( Lawson , at p. 714.) 2.
Standard of Review

“ The trial court enjoys ‘ broad authority ’ over the admission and exclusion
of evidence. [Citation.] We review a trial court ’ s ruling on a motion in limine to exclude
evidence for an abuse of discretion. [Citati ons.] The trial court ’ s authority is particularly
broad ‘ with respect to rulings that turn on the relevance of the proffered evidence. ’” ( McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295

– 296 ( McCoy ); Coral

before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee ’ s job duties.”20

Farms, L.P. v. Mahony (2021) 63 C al.App.5th 719, 733 [“Claims of evidentiary error are
reviewed for an abuse of discretion ” ].)

“A judgment cannot be reversed ‘unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of res ulted in a miscarriage of justice.’ [Citation.] An evidentiary ‘“error is not reversible unless ‘“it is reasonably probable a result more favorable to the appellant would have been reached absent the error.”’”’” ( Coral Farms, L.P. v. Mahony , supra , 63 C al.App.5 th at p. 733.)
3.
Exclusion of Skeene ’s Trial Testimony Millan argues the trial court erred by excluding the testimony of his “star witness,” Skeene, who was Millan’s supervisor in the Parks d epartment at the time of
trial. The City s ought to exclude Skeene’s testimony in its motion in limine No. 2 , in
which it requested “an order precluding [Millan] or his counsel f r om mentioning, referring to, or introducing at trial any evidence fr o m [Millan]’s current supervisor and
coworkers [George Salsgi ver, Johnny Hernandez, and Tom Croom] in the Parks and
Recreation Department related to events which did not occur in [Millan] ’s current supervisor and coworkers’ presence when [Millan] worked in the Public Works Department.”

In the motion, the City exp lained neither Skeene nor Millan’s current coworkers in the Parks department had ever been supervised by Jaime or W arren and
ever worked with Millan in Public Works. The City argued neither Skeene nor the four
coworkers h a d personal knowledge (within the meaning of Evidence Code section 702) of any event alleged to have occurred when Millan was working under Jaime’s and
Warren’s s upervision in Public Works . Therefore, the City contended , the court should preclude testimony as to what th ose witnesses heard or believed about Millan ’s experiences while working for Public Works as lacking in foundation

. Millan opposed21

motion in limine No. 2 , arguing the c oworkers at issue had personal knowledge of retaliatory conduct by Jaime.

The trial court granted the motion, stating : “The four witnesses who were not supervised by plaintiff’s supervisors and did not work with plaintiff, those witnesses will be excluded.” The court r eject ed the argument Sk eene should be allowed to testify
he witnessed Mill an and others excessively sandbagging in the City Yard , point ing out it was undisputed sandbagging was part of the Public Works maintenance worker ’ s job

. Furthermore, the court explained, Parks employees who had not been involved i n Public
Works job assig nments , should not be allowed to give “ their sort of basically uneducated opinion of whether [the extent of sandbagging they witnessed was] fair or not. ” The
court concluded: “I don’t think the probative value of the evidence you’re proffering is
worth v ery much at all. What if I was just some random

. . . if I drive on the 405 freeway and I see an individual picking up trash every day on the chain gang on the side of the freeway, picking up trash as part of their labor, you’re saying that I could just p ick that driver and have that person come to court and say, ‘I saw that person picking up trash five days a week?’ What probative value does that have ? ” The court reiterated Parks employees should not be allowed to opine about the types and amount s of wo rk assigned

to particular Public Works employees solely based on their casual observations

.

The trial court, however, invited Millan to make a motion for reconsideration of its ruling during the trial. Millan did move for reconsideration near the
end of his case

- in

- chief. With the exception of allowing certain impeachment evidence to
be introdu ced, t he court denied the motion for reconsideration.

In his opening brief, Millan abandons his challenge to the court’s ruling on motion in limine No. 2 as to all witnesses except Skeene. Millan argues the trial court erred by refusing to allow Skeene to testify : (1) “When someone does something in [Public Works] that the supervision doesn’t like, they usually will take them out of their area or give them duties that are undesirable like sandbagging or things like that, just22

given the crap work”; (2) he saw Millan on an ongoing basis from 2014

– 2017, and other Public Works employees at other times, performing undesirable work including excessive sandbagging in the City Yard; (3) he found Millan’s performance improvement plan not
well

- founded; and (4) he ha s heard Jaime yell at his maintenance workers, once threaten to fight his lead, and generally “rule by fear and intimidation.” The trial court did not abuse its discretion by excluding Skeene’s testimony.

As discussed ante , i t appears to be undisputed that , at all relevant times, Skeene worked in Parks, not Public Works, and did not have personal knowledge of Millan’s or any other Public Works’ employee’s performance in P ublic Works. Skeene testified at his deposition he did not know whether Millan had been treated differently in terms of how he was disciplined.

What Skeene considered “undesirable work , ” such as filling sandbags and removing tree stumps , is part of a Public Works maintenance worker’s job

. That Millan filled sandbags in the City Y ard was not disputed; Skeene’s testimony that he observed
Millan and certain other employees filling sandbags to a greater extent than he saw other
workers perform that task is not probative. Even if Skeene’s testimony on this point ha d any probative value, it is unclear when Skeene observed Millan filling sandbags, and in particular, whether his observations occurred after the filing of the DFEH complaint
and/or the Cal / OSHA complaint. 6

6 Skeene also did not have personal knowledge regarding when Public Works employees would be pulled out of their area s to work elsewhere . He testified he concluded workers would be pulled out of their areas as a form of retaliation or discipline based on what

“ [ t ] hey woul d say, or somebody else would say [and] [y] ou would notice they weren’t in their area. You would see them covering other areas, doing other things

. ” Skeene testified at his deposition he never saw Millan digging stumps on his own and did not often observe him working in general because Millan would be out in the field and Skeene did not supervise him. Skeene’s impressions of Public Works ’ operation s in this regard are largely based on what he happened to observe in the City Yard or his “just know [i ng] the general consensus of what’s been going on.”23 It is also undisputed Millan was taken off the performance improvement plan within a few months after he transferred from Public Works to Parks. Nothing in the record suggests Skeene would be qualified to opine on whether Millan’s perform ance in Public Works warranted putting him on a performance improvement plan in the first place. Millan ’s satisfactory performance in his new role in Parks is neither in dispute nor
relevant to the issue presented here

— whether he suffered an adverse emplo yment action
because he filed the DFEH charge and/or the Cal / OSHA charge. Millan therefore fails to show Skeene’s testimony should have been admitted to impeach the validity of Millan’s performance improvement plan in Public Works

.

Furthermore, Skeene testified in his deposition h e did not recall ever hearing Jaime yell at Millan , although he heard Jaime yell at other Public Works employees

. While Skeene observed Millan was involved in closed door meetings in Jaime’s office, he did not know the specifics of what occurred at such meetings. Again, Skeene’s testimony on this point was not particularly probative of the issues presented at
trial. Millan argues Skeene would have testified Jaime ruled by fear and intimidation to prove the City’s retaliatory intent in taking adverse employment actions against Millan. While Skeene observed Jaime to supervise in a gruff and intimidating way, the record does not show he had any personal knowledge that that general gruffness had any correlatio n to a retaliatory intent with regard to Millan or any other Public Works employee

. In his deposition , Skeene explained his impression Jaime had tendencies to retaliate against his subordinates for anything and everything was largely based on rumors and hearsay combined with his observations of workers performing physically demanding work. That Skeene once obser ved Jaime, on an unspecified date, threaten to fight his lead worker at the time without any further information is not probative of Jaime’s retaliatory intent to support a finding Millan suffered adverse employment actions because he filed his complaints.24 The trial court , therefore, did not abuse its discretion by excluding Skeene from testifying at trial.
4.
Exclusion of Me

- too Evidence
In its motion in l imine No. 8, the City moved to exclude evidence of other maintenance workers’ a lleged experiences of discrimination or harassment in Public
Works

. The City argued such evidence wa s irrelevant to Millan’s retaliation claims.

In McCoy , supra , 216 Cal.App.4 th at pages 296

– 297, the court explained : “[T] he relevance of evidence of discrimination or har assment by defendants against nonparties is ‘ fact based and depends on many factors, including how closely related the evidence is to the plaintiff ’ s circumstances and theory of the case. ’ [Citations. ] We
conclude the court was within its discretion to find evidence of discrimination and harassment based on race and gender had little relation to the surviving retaliation claim, and was excludable on that ground. ” The McCoy court also stated: “ [I]f

. . . other employees faced similar retaliation to that alleged by appellant

. . . , it cannot be said that such evidence could be of no relevance to appellant ’ s retaliation claim. If this ‘ me

- too evidence ’ was probative of respondents ’ intent in retaliating against appellant, as alleged,
it should have been admitted

. . . .” ( I d. at p. 297.)

a. Trevino At the hearing on the motion in limine, Millan’s counsel stated he wished to present evidence Trevino had complained to the director of Public Works about the “abuse in general, retaliation” he experienced in the form of “ ba d work assignments ” and
verbal abuse after he tried to leave Public Works. Millan did not suggest Trevino ever
suffered retaliation for opposing unlawful discrimination or harassment un der FEHA or disclosing a violation of law within the meaning of Labor Code section 1102.5. The trial court did not abuse its discretion by concluding the evidence regarding Trevino’s25

experiences of retaliation were not sufficiently similar to Mil l an’s ret aliation claims so as to be probative of whether Millan was retaliated against for filing complaints with government entities. (See Pinter

- Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 89 [ “ ‘ Me too ’ evidence is never admissible to prove an employer ’ s propensity to harass ” ].)

b. Herrera, Rangel, and Villalpando

Millan also sought to present evidence Herrera , Rangel , and Villalpando
had each complained to Jaime about “ safety issues ” related to storm drains, and thereafter “experienced retaliation” that includ ed receiving bad work assignments

. Stating it “ [ had ] some difficulty with this one,” the trial court granted the motion, explaining: “Because in your case, the retaliation occu rs before the C al /OSHA complaint is made, those other people are all making complaints not relating to being part of a protected category or seeking protection from unwanted discrimination. Instead, they’re making Cal/OSHA
related violations. [¶] I find that there’s sufficient differentiation between the case at issue here as well as the proffer of evidence you set forth for the additional witnesses that you were intending to call. And as a result, I’m granting the motion.”

In reviewing the trial court’s ruling for an abuse of discretion, we first observe that unlike Millan, Herrera, Rangel, and Villalpando did not claim to experience retaliation for filing a DFEH complaint or otherwise opposing discrimination or
harassment i n violation of FEHA. (See Pinter

- Brown v. Regents of University of California , supra , 48 Cal.App.5th at p. 89 [ “ ‘ me too ’ evidence can be admissible only to prove intent and motive, among other things, with respect to the plaintiff ’ s own protected
class ” ]

. ) None of those three workers filed a DFEH complaint or a complaint with
Cal / OSHA. Like Millan, those three workers claimed to have been retaliated against
after c omplaining about Cal / OSHA

- type safety violations regarding Public Works ’26

procedures for cleaning storm drains. In Millan’s motion for reconsideration of motion in
limine No. 8, he explained De Herrera and Rangel, like Mil l an, specifically challenged those procedure s for failing to check for air quality.

Assuming the trial court erred by failing to admit me

- too evidence regarding Herrera, Rangel, and Villalpando, we conclude any error would not be prejudicial as a matter of law. A judgment shall not be reversed by reason of the
erroneous exclusion of evidence unless the err or “ resulted in a miscarriage of justice. ” (Evid. Code, § 354.) A miscarriage of justice exists only when “ ‘ 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. A llstate Ins. Co. (2004) 33 Cal.4th 780, 800

. )

Such evidence would have only be en relevant to Millan’s claim he was
retaliated against for filing the Cal / OSHA complaint

— a complaint he filed anonymously. The jury was presented with extensive evide nce suppo rting Millan’s argument he suffered various adverse employment actions in retaliation for having filed the DFEH complaint , which was filed a year before the Cal / OSHA complaint. Nevertheless, w hile the jury found that Millan suffered adverse employment act ion s , it did not find his filing of the DFEH complaint to be a substantial motivating factor for such action. It is not
reasonabl y probable the jury would have found Mil l an’s filing of the Cal / OSHA complaint to have been a contributing factor to the adver se employment actions that
followed that filing , particularly given Millan’s status on a performance improvement plan at th at time.

We find no prejudicial error.
5

. Limit s on Impeachment, Rehabilitation, and Refresh ing the Recollection of Witnesses

Millan argues the trial court abused its discretion by limiting Millan’s ability to impeach and rehabilitate the testimony of certain trial witnesses and by refusing to allow him to refresh the recollection of another. First, Millan argues the trial court27

erred by excluding Villalpando’s testimony Jaime had questioned Villalpando and gave him a hard time when he wanted to transfer to the Parks department . Millan intended to offer such testimony to impeach Jaime’s testimony he did not care w hether Public Works employees sought such a transfer

. The issue presented in this case , however, is whether Millan was retaliated for filing complaints, not for transferring or attempting to transfer
out of Public Works . Villalpando’s proffered impeachme nt testimony , therefore, had
minimal , if any, relevance. The trial court did not abuse its discretion by excluding it.

Sec ond, Public Works employees Silvano Garcia and Wilfredo Cruz
testified they had not observed any retaliatory conduct by Jaime agains t Millan

. Millan argues the trial court should have permitted him to challenge their credibility on this point by introducing Villalpando’s testimony he once heard Jaime tell Garcia and Cruz they
owed Jaime their job s and witnessed them respond to that statement by hanging their heads and voicing their agreement with him

.

The trial court rejected Millan’s argument regarding Villalpando’s testimony in its ruling denying the motion for a new trial: “ Plaintiff attempt ed to impeach the testimony of Roldan Serrano, Silvano Garcia and Wilfredo Cruz with the testimony of another witness, Cesar Villalpando. Plaintiff fails to satisfactorily explain
how the [in] clusion of Mr. Villalpando’s purported evidence would have impe ached Mr. Serrano, Mr. Garcia and Mr. Cruz and even if it somehow did, how it was error to
exclude such evidence. The issue was briefed in the motion for reconsideration

. . . at which Plaintiff proffered that Mr. Villalpando heard Mr. Jaime tell Mr. Serr ano, Mr. Garcia and Mr. Cruz that all three of them owed their jobs to Mr. Jaime. However, such multiple layered hearsay testimony had little to no impeachment or relevance value and was properly excluded. (See Rosenbloom v. Western Auto Transports (1953 ) 120 Cal.App.2d 335, 342 ( ‘ Any claimed impeaching testimony must be relevant and material to the issue being tried and inconsistent with the prior statement. ’ )). [¶] Moreover, nothing prevented Plaintiff from inquiring of those three individuals

— Mr. Serr ano, Mr.28

Garcia, and Mr. Cruz

— on cross

- examination, about the fact that Mr. Jaime was t heir supervisor and arguing during summation that their credibility should therefore be questioned, which to some extent Plaintiff did do. ”

We agree with the trial co urt’s reasoning and conclude the trial court did
not abuse its discretion in excluding Villalpando’s testimony on this point

.

Millan also argues the trial court erred by barring his counsel’s efforts to rehabilitate the testimony of De Hererra. De Herrera testified he overhea r d Jaime make
sexual comments in Millan’s presence and otherwise

. On cross

- examination, the City ’s
counsel asked De Herrera whether his employment with the City had been terminated in 2013 for misuse of city equipment and for lying to h is supervisor. De Herrera responded
he had not been terminated but instead quit and also denied having lied. On redirect
examination , Millan’s counsel asked De Herrera if the empl oyment termination referred to by the C ity’s counsel had constituted a retaliatory act against him. The court sustained the City’s counsel’s objection to that question

.

Millan’s counsel’s rather leading question on redirect examination did not
constitu te an effort to rehabilitate De Herrera

— there was nothing to rehabilitate as De Herrera denied having been terminated for misuse of city equipment and for lying.
The refore , the trial court did not abuse its discretion by precluding counsel’s
rehabilitatio n effort.

Finally, Millan argues the trial court erred by refusing to allow counsel to
refresh the recollection of Johnny Hernandez who, apparently to the surprise of Millan’s counsel, testified he had not observed Jaime yell at Millan. Millan’s counsel asked
Her n andez whether it would refresh his recollection if he were to listen to a prior audio recording when the trial court interjected , “He didn’t say he needs his memory refreshed. He said he never saw it.” When asked if he recalled telling someone at the City he heard Jaime chew out Millan, Hernandez responded , “Not that I can remember .” Mi l lan’s29

counsel again asked to refresh Hernan dez’s recollection by having him listen to an audio recording of a statement h e had made years earlier. The trial court denied the request.

The trial court explained there was nothing in Hernandez’s testimony to suggest Hernandez needed his memory refr eshed

. Even if we were to assume the court
abused its discretion , Millan has failed to explain how it is reasonably probable he would
have had a more favorable result at trial if t he court had allowed counsel to refresh Hernandez’s recollection and if the reafter Hernandez testified he had heard Jaime yell at Millan on an unspecified occasion for an unspecified reason. ( See Coral Farms, L.P. v. Mahony , supra , 63 Cal.App.5th at p. 733 [“In short, the evidence at issue was essentially irrelevant. Thus, the trial court ’ s alleged evidentiary errors are not arguably prejudicial”].)
6.

Evidence of the Substantive Allegations of the DFEH Complaint Millan argues the trial court erred by e xcluding evidence of the substantive allegations of his DFEH complaint. He argues “[a]s a result, the jury was left without a tangible complaint. They were left without the context necessary to draw a causal connection between the complaint and alleged r etaliation because of the complaint. They lacked the facts to infer motivation such as anger, fear, threat, or self

- interest, not only on the part of Jamie and Warren, but on the part of coworkers who testified against Millan.”

Millan raised this issue in his motion for new trial. In its ruling denying that motion, the trial court rejected Millan’s argument, explaining:

“The basis of Plaintiff’s argument is not that the Court’s ruling was erroneous, but more that without the underlying allegations w hich Plaintiff does not dispute are time barred, the jury was unable to ‘connect with or care about’ the DFEH complaint. ‘They lacked the facts to infer motivation, such as anger, fear, threat, or self

interest, not only on the part of Superintendent Jaim e and Supervisor Warren, but on the30

part of Public Works employees, such as Roldan Serrano, Jesus Lopez, Silvano Garcia,
and Wilfredo Cruz

. . . ’.

. . .

“ Unfortunately, Plaintiff’s arguments are again without merit. First, the
Court allowed evidence th at the 2015 DFEH complaint was filed as well as the entity to which Plaintiff complained and the respondent’s name. Moreover, in litigating this issue during the motions in limine, the Court inquired of Plaintiff ’ s counsel, ‘the corpus of your case is, yo ur client is being retaliated against for making a DFEH complaint. And it doesn’t matter that it was meritorious [or] it was not meritorious. The fact that he made the complaint alone was the impetus for the retaliation. Have I misunderstood the theory of the case?’ Plaintiff’s counsel responded that the Court properly understood the theory
of the case.

. . .

“ Plaintiff cites to no authority, and the Court is unaware of any, that stands for the proposition that otherwise time

- barred and irrelevant ev idence is somehow admissible so a jury can ‘connect’ and ‘care’. There was no error and, in any event, the issue was thoroughly briefed, argued, and preserved. [¶] As a final point, even if any of
these so

- called errors of law occurred, Plaintiff fails t o demonstrate prejudice and, on this ground as well, Plaintiff ’ s arguments fail.”

Millan does not address any of the trial court’s stated reasons for excluding evidence of the underlying allegations in the DFEH complaint in his appellate brief s or expla in how the exclusion of those allegations constitute an abuse of discretion

. Furthermore, Millan fails to explain how on this record it is reasonabl y probabl e the jury would have found in Millan’s favor had the excluded allegations been admitted at trial.
We find no error.31 7. Exclusion of Evidence of Negligent Acts and Omissions Leading U p to Retaliation

Millan argues the trial court abused its discretion by excluding evidence
relevant to Millan’s failure to prevent retaliation claim. 7 For the reasons we have
discussed ante , Millan has failed to show the judgment in favor of the City on Millan’s
retaliation claims should be reversed due to prejudicial evidentiary error. Millan’s claim the City failed to prevent retaliation was dependent upon the occurrence of a ctual
retaliation. ( See Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 [An actionable claim for failure to prevent discrimination under Government Code section 12940, subdivision (k) is dependent upon a cla im of actual discrimination ]; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4 t h 280, 289 [ “ ‘ [T]here ’ s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn ’ t happen, for not having a policy to prevent
discrimination when no discrimination occurred

. . . .’ Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prev ented ”] .)

Because the jury did not find the City retaliated against Millan, Millan’s claim the City failed to prevent retaliation claim fails . Any error in excluding evidence

7 In his opening brief, Millan argues: “The trial court excluded evidence of the City’s negligent acts and omissions leading up to the alleged retaliation against Millan, even though this evidence sup ported Millan’s failure to prevent retaliation claim.

. . . This included damning evidence about Superintendent Jaime and supervisor Warren gathered by Assistant City Manager Christian during an investigation in 2014/2015

. . . , a report about the invest igation, and

. . . audio recordings of interviews taken during this investigation

. . . [which] were filled with testimony by City employees documenting a history of aggression by Jaime and Warren and the climate of fear, division and intimidation that was created.

. . . But the City failed to act upon this testimony and discipline its supervisors.

. . . The City’s conduct was grossly negligent and constituted a failure to take reasonable steps that would have prevented the highly foreseeable retaliation against Millan from occurring.”32

sh owing the City failed to take steps to ensure unlawful retaliation did not occur is
therefore harmless.
II.

C ONTENTIONS OF J UDICIAL M ISCONDUCT Millan also contends the trial court engaged in judicial misconduct. In his opening brief, Millan argues on two occasions, the court screamed at Millan’s representa tives in front of the jury

. He contends his argument is “highly credible” given the trial court’s comments to counsel throughout trial he believes were inappropriate. We
have reviewed the record and have found no instance

— individually or cumulatively

— of

error

. Our review of the record shows Millan did not ever object to any alleged screaming by the trial court or make any statement on the record suggesting the trial judge ever raised his voice in the courtroom . As a general rule, a claim of judicial
mis conduct is not preserved for appellate review if no objections were made on that ground at trial. ( People v. Sturm (2006) 37 Cal.4th 1218, 1237; see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103 [“The rule is well settled that when

. . . a party or his counsel becomes aware of facts constituting misconduct or irregularity in the proceedings

. . . , he must promptly bring such matters to the attention of the court, if he desires to object to it, or he will be deemed to have waived the poin t”].) Nothing in the record supports Millan’s argument that asserting objections would have been futile.

In ruling on the motion for a new trial and rejecting, inter alia, Mill an’s argument the trial court engaged in misconduct , the trial judge denied ev er scream ing at Millan’s representatives, stating:

“Preliminarily, the Court does not scream, nor yell. During a trial, it sometimes will become necessary for the Court to intervene and issue a gentle re

direction. Sometimes, the Court must issue a st ern admonishment. These actions are well within a court’s discretion. Regardless, the Court does not yell, nor scream. In33

particular, the Court does not recall yelling or screaming at anyone during this trial, nor is it the practice of this Court to eve r scream or yell while Court is in session.

“The Court is required to maintain the dignity and proper decorum of the Court, and to ensure that the parties and trial are proceeding in an efficient manner. A judge has the power, and the duty to provide for the orderly conduct of the trial. (See Code Civ. Proc. § 128 [, subd.] (a)(3)). To accomplish this, the judge may regulate the order of proof (Evid. Code § 320), control the interrogation of witnesses (Evid. Code § 765 [, subd.] (a)), and exclude evidence if its probative value is substantially outweighed by the probability that its admission will either (1) consume an undue amount of time, or (2) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury (Ev id. Code § 352).

“Consider the Court of Appeal’s observations in People v. Jackson (1971) 18 Cal.App.3d 504, 509, ‘the administration of justice would greatly benefit if more trial judges made use of their inherent powers as codified in [Evidence] Code § 352, to control, and if necessary, terminate repetitious, time consuming and irrelevant testimony.’ There, the Court of Appeal stated that the trial judge ‘must alertly supervise’ the proceedings and that because of the litigation explosion, ‘the concept of a kindly, benign trial judge who listens passively and patiently while the lawyers try their cases without [the judge ’ s] interference is no longer valid

— if it ever was.’

“Here, the parties declined to submit the entire trial transcript to the Court.
On e of the unfortunate consequences of that decision is that the parties and the Court are denied the opportunity to view the entire trial in context which in the Court’s recollection would demonstrate that the Court actually exercised significant restraint and allowed the parties and their lawyers to try their respective cases without interference and within the boundaries of the law as the Court viewed it. However, to directly address Plaintiff ’ s broader contention, Plaintiff is incorrect in his characteri zation. The Court does not ‘scream’ nor ‘yell’ and did not during this trial.”34 In opposition to Millan’s motion for a new trial, the City’s counsel submitted a declaration stating: “The Declarants make a number of claims in support of Plaintiff’s Moti on that are not grounded in fact. First, each of the Declarants alleges that [the trial judge] ‘ yelled ’ or ‘ screamed ’ at them at various times during trial

. . . . These allegations are simply untrue. At no point during the trial did [the trial judge] e ngage in what I would characterize as ‘yelling’ or ‘screaming,’ let alone engage in such conduct toward Plaintiff or his representatives, nor did the Court ever have an ‘explosion with anger’ toward Plaintiff’s counsel or anyone else. There were times tha t [the trial judge] did raise his voice, but no more so than anyone else during trial due to the muffling caused by the masks we were all required to wear during the course of the trial as required by state and local health orders due to the COVID

- 19 pande mic.”

In his opening brief, Millan argues that while the City has submitted declarations denying his allegations, “strong corroboration for Millan’s allegations lies in the reporter’s transcript of the trial proceedings.” Millan cites portions of the r eporter’s transcript where he claims the trial court (1) referred to certain actions of Millan’s trial counsel as “ ‘ cute attempts, ’ ” (2) falsely accused Millan’s trial counsel of thinking the
trial court was “ intellectually ‘dense’”; and (3) told Millan’s trial counsel he was “‘singularly difficult.’”

Millan argued in his motion for a new trial the first two comments by the trial court constituted an irregularity in the trial within the meaning of section 657 , subdivision (1) of the Code of Civil Procedu re. The trial court addressed Millan’s argument in its ruling denying that motion:

“Plaintiff’s counsel also complains that the following statements by the Court constitute an irregularity: ‘I don ’ t appreciate your cute attempts to try and like
backdo or information either in the trial or through here. Do I look like I am dense or like unable to comprehend the issues that are coming up here? I said we would table the issue
and return to it. Okay?’ and ‘you really are getting frustrating, Mr. Kim.’.

. . Again,35

these comments were made outside the presence of the jury in the context of settling the jury instructions.

“Further, although not set forth in the transcript excerpts by either side, the Court’s recollection is that the first comment about being ‘cute’ is a reference in part to the prior session in front of the jury when Plaintiff’s counsel intentionally and wi llfully solicited evidence that the Court previously excluded. In addition, the Court noticed during the jury instruction conference that despite the fact that the Court on multiple occasions indicated it would table the issue and return to it, Plaintiff attempted to re

argue the issue, repeatedly

. While the Court does not view the Court ’ s comments as personal attacks on Plaintiff ’ s counsel, as opposed to attempts to have counsel focus on the questions that the Court was asking and not argue in a repetitive fashion, it is undisputed that these comments were all made outside the presence of the jury and Plaintiff fails to demonstrate how these comments warrant the granting of a new trial. ”

Millan does not address, much less dispute, the trial cou rt’s description of the context and intent of the court’s use of the words “cute” and “dense” during the trial. 8

Neither t he court’s description, nor anything else in the record, supports Millan’s contention the court’s use of such words suggest the cour t had ever screamed at any member of Millan’s legal team.

As to Millan’s argument the trial court must have screamed at his representatives because the court told his counsel he was “singularly difficult,” the record
does not show the trial court ever use d that phrase. The record cite provided by Millan on this point in his opening brief shows the trial court stated, as referenced in the portion

8 The trial court’s choice of words, “Do I look like I am dense” was unnecessary and unfortunate, but it is not enough, either alone or in combination with similar instances i n t his case, to show the trial judge was biase d against Millan or his counsel or otherwise engaged in prejudicial judicial misconduct.36

of the trial court’s ruling quoted ante , “You really are getting frustrating Mr. Kim.” 9 In its ruling, the tr ial court explained the context of that statement and as discussed ante , Millan has not challenged the court’s explanation. Needless to say, Millan has failed to
substantiate his serious accusations the trial court engaged in misconduct and “ corrupted
the trial.”

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.

9 We would caution counsel when quoting the trial court in support of an argument of judicial misconduct to be more accurate.