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

,

Plaintiff and Respondent

,

v.

CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION

,

Defendant an d Appellant

. B 309007

(Los Angeles County Super. Ct. No. L C 102903 )

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.

_________________________2 Rafi Kourounian obtained a $4 25,562 jury verdict in his favor on his claim that the California Department of Tax and Fee
Administration (the Department) r etaliated against him for filing
an internal c omplaint with its Equal Opportunity Office (EEO).
T he Department appeal s, contending that four erroneous evidentiary rulings by the trial c ourt 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 inter nal 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

1 0 failed promotional attempts. Appellant also con tends 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 wa s 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 a s 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 t his position included a one

- year probationary period.3 Several witnesses testified that Kourounian ’ s performance prior to his 2012 promotion was very good. Greg ory 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 supervisor y position was going on maternity leave. Klomp was the o ffice

a dministrator and Chiang was the d istrict p rincipal a uditor. 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 disc riminated 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 h is findings to Klomp and Chiang. He formed the impression they were angry
at him.4 On January 22, 2013, Kourounian ’ s limited term supervisor ial position ended. He returned to his BTS1 position. He was placed under Saghbazarian ’ s direct supervision. Sagh bazarian ’ s supervisor was Chiang, the d istrict p rincipal

a uditor. 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 m ade 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 wh en 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 previou s 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 superior s. 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.5 In March 201 3 , Kourounian filed an EEO complaint , which he amended with an April 24 , 2013 supplement (March / April EEO complaint) . The complaint alleg ed that Saghbazarian was discriminating against him on the basis of age and race or national origi n and she was retaliating against him because of his findings in the taxpayer complaint investigation. The trial
court admitted this document into evidence.
The 1 3

- page complaint included many statements about which Kourounian testified at trial, but it a lso 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 wh ere 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 . . . t o spy on me and report regularly to [Saghbazarian]. ” “ Silva Saghbazarian apparently in an
obsessive manner ha s 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 working6

difficult for Kourounian but not for other BTS 1 s. 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. ” Kouro unian 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 t o 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 per mitted to do public speaking on
behalf of the Department after May 2013, although he had done

so previously.7 Chiang denied Kourounian mobile working privileges. He was the only one so denied. Chiang required Kourounian to email her a report in the mornin g 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 f iled 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 [Kouroun ian 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 an d . . . 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 i n restaurant observations with Kourounian in the past, but in 20138

S aghbazarian 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 Av e ne s , and Kilafian were coming back to the office f rom 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 Bala gula, 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 an d 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 BTS 1 position and he returned to his previous position. In September 2013, Ter

- Galstian w as 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. Respondent9

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 ag rees 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 Stipulatio n, Appellant releases, acquits, and forever discharges the State of California, the California Board of Equalization, a n d its agents, representatives, employees, successors and assign s , of and from any and all demands, actions, causes of action, claims of any kin d 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 Civ il 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 conce rning 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
Re spondent ’ 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 occa sion, Kourounian was

ta l king to Jun in her office when K lomp entered and very10

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 t hat 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 ma de 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 pro gram

. In Jun ’ s opinion, Kourounian was target ed by Klomp in the office. Jun asked Klomp to inclu de 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 f or Jun not to mention hi m

. 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 Kou rounian 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 with11

Kourounian, and if they found any little fault, the y 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 th an Kourounian were working
on th es e 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 Califo rnia 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 o f 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 f

or 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 K ourounian was competent, but as far as12

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 wo rk a s 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
, 2 00 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 tri al 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 about13

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 B a lagula 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 Kouro unian 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 wit h a point of sale system.

C. Pre

- Trial Proceedings In 2015, Kourounian filed this action and b y 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 retali ation 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 K ourounian withdrew the declaratory relief cause of action.14

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) rul ed that “ reporting Saghbazarian ’ s discrimin ation 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 humili ation 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 [N otice 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 r ulings , 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 a15

“ different result would have been probable ” absent the error. (Code Civ. P roc., § 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 ma y 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 part ies 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 ev idence 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 retalia tion caused by engag ing in a protected activity.
Kourounian ’ s first protected activity was the March / April EEO complaint which alleged age and race discrimination (in addition16

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 ruling s made by Judge
Cotton on Defend ant ’ 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 complaint s

. ” Kourounian then argued that the fact that he filed the
March / April EEO compla int 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 or al 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 Departmen t made this same argument in motion in limine N o. 13, which was directed more broadly at precluding all evidence of any actions taken by Saghbazarian.17

disagree. The prior judges in t his 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 coun sel 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

concu r 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 th at 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, 7 24
, 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 constit ute one18

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 p rotected 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 set tling his failed promotion appeal, K ourounian 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 a n 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 c laim. 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 o f the
discrimination are not relevant

. This was not a trial about19

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 sect ion B,
post

.

B. Admission of the EEO Complaint Was Error Appellant contends the trial court erred when it found the original March EEO c omplaint (Exh ibit 7), the April supplement (Exh ibit 8) and the May EEO complaint (Exh ibit 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 c omplaints.
Kourounian ’ s counsel sim ply 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 w ell. ” 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 a ny 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.20

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 en tirety of the complaint itself. The hearsay objection was
sustained as to the rest of the document. Later, out side 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 en tertain 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 i t 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

- examinati on 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 objec tions without elaboration.21 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 ot her 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 writ ten 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 i t. 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

- court22

declarant is not un der 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 no t 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, fede ral 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 r el. 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,23

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 refle cted his state of mind, an exception to the hearsay rule. ” Nothing in the trial record
indicate s 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 othe r 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, K ourounian means his emotional response to the discrimination and retaliation, we agree with the Department that there is very little on this subjec t in the complaints.24

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 t he 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 c ontentions waived. 5 Finally, we turn to the Department ’ s claims that the compl aints 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 cit e. 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 c ontentions based on reference to a single quoted word with no speci fic 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 K ourounian recounting out

- of

- court statements by others. The trial court ’ s remarks show that such an objection would have been futile.25 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 Balagu la 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 compla int. 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 Kouroun ian ’ s taxpayer investigation findings , presumably on behalf of her friend. The similarity of conduct of the two supervisors su ggests a concert of
action and bolsters the theory that Chiang indeed was acting26

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 em ployee
under them for alleging FEHA violations. This is a much more damaging scenario to the Department, wh ich 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 inval id re talia tion claim
evidence

, the March/April complaint, primarily the supplement, alleged age and race discrimina t io n by Saghbazarian. These acts have a tendency to show Saghbazarian as someone who was prejudiced and willing to act in violation of the l aw. 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 ha ve 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 look s complici t 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 i f
the evidence at trial had commenced with the filing of
K ourounian ’ s March /

April EEO complaint, instead of reaching back into irrelevant time periods, the Department would have27

received a more favorable verdict. ( Kotla v. Regents of University of California (2004) 115 Ca l.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 hostili ty 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.