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 and Appellant.

B309007

(Los Angeles County

Super. Ct. No. LC102903)

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 $425,562 jury verdict in his 

favor on his claim that the California Department of Tax and Fee 

Administration (the Department) retaliated against him for filing 

an internal complaint with its Equal Opportunity Office (EEO).

The Department appeals, contending that four erroneous 

evidentiary rulings by the trial court deprived it of a fair trial. 

Specifically, appellant contends the trial court erred in 

(1) admitting evidence of allegedly retaliatory conduct which predated the filing of his internal complaint, (2) admitting into 

evidence Kourounian’s EEO complaints, (3) permitting 

Kourounian to offer testimony that exceeded the scope of 

rebuttal, and (4) permitting Kourounian to offer evidence of 

10 failed promotional attempts. Appellant also contends the 

evidence supporting economic damages is speculative. We agree 

the trial court erred in admitting evidence about activity that 

occurred before the filing of his EEO complaints. We also agree 

admission of the first EEO complaint and supplement was 

prejudicial and prevented the Department from receiving a fair 

trial. Accordingly, we reverse the judgment and remand for 

further proceedings. We need not and do not reach the 

Department’s other claims of error.

BACKGROUND

A. Kourounian’s Case

Appellant, then known as the California State Board of 

Equalization, hired Kourounian as a tax auditor in 1989. He was 

promoted to “senior tax auditor” in 2001. On or about April 5, 

2012, Kourounian was promoted to business tax specialist 1 

(BTS1). Promotion to this position included a one-year 

probationary period.
3

Several witnesses testified that Kourounian’s performance 

prior to his 2012 promotion was very good. Gregory McNamee, 

Kourounian’s supervisor from 2002 to 2011, testified Kourounian 

was one of the “top-producing auditors” and his audits were 

“quite good.” McNamee never had any problems with 

Kourounian’s analytical skills. Mareta Ter-Galstian and Becka 

Jun, who supervised Kourounian consecutively in 2011 and 2012, 

gave similarly positive testimony. Ter-Galstian described 

Kourounian as independent, able to handle complex audits, 

knowledgeable, and competent. Jun described Kourounian as 

independent, able to handle complex audits, capable of handling 

BTS1 level audits, and knowledgeable.

In September 2012, while Kourounian was serving as a 

probationary BTS1, Warren Klomp and Doris Chiang told 

Kourounian he was selected to be appointed as a limited term 

supervisor because the person who held the supervisory position 

was going on maternity leave. Klomp was the office 

administrator and Chiang was the district principal auditor. 

Kourounian agreed.

In mid-October 2012, Klomp gave Kourounian a taxpayer’s 

complaint and asked him to investigate it. The complaint alleged 

that co-worker Silva Saghbazarian had discriminated against a 

taxpayer due to his age. Kourounian investigated and made 

findings of discriminatory conduct by Saghbazarian and criticized 

the chain of command for not following required procedures. 

Chiang was in the chain of command. He reported his findings to 

Klomp and Chiang. He formed the impression they were angry 

at him.
4

On January 22, 2013, Kourounian’s limited term 

supervisorial position ended. He returned to his BTS1 position. 

He was placed under Saghbazarian’s direct supervision.

Saghbazarian’s supervisor was Chiang, the district principal 

auditor. He was now under supervision by the two persons he 

had criticized in his investigative report.

At trial, Kourounian testified to problems he had with 

Saghbazarian. She removed audits from him after he had begun 

working on them, which had never happened to him before. She 

called or emailed him during the first sessions of audits and told 

him to return to the office, but nothing happened when he 

returned to the office. On one occasion she made him come to the 

office at 7:15 a.m. for a meeting, kept him waiting about four

hours and then told him they would meet another time instead. 

Saghbazarian tasked Kourounian with training another auditor, 

Vivian Nguyen; Kourounian learned of the task when Nguyen 

showed up at a location where Kourounian was conducting an 

audit. Kourounian was required to take Nguyen with him 

wherever he went for the next six weeks. Kourounian testified 

he “understood that she was sent to spy on me.” Unlike his 

previous supervisors, Saghbazarian rarely if ever called 

Kourounian on his work cell phone. Instead she called him on 

the taxpayer’s landline. Kourounian viewed this as checking up 

on him. Whenever Saghbazarian sent him an email, she always 

copied her superiors. None of his previous supervisors had done 

this as a routine practice. Saghbazarian sent him a memo telling 

him he needed to reduce his excess vacation hours. Kourounian 

did not believe that anyone else with excess hours had been 

asked to reduce their hours.
5

In March 2013, Kourounian filed an EEO complaint, which 

he amended with an April 24, 2013 supplement (March/April 

EEO complaint). The complaint alleged that Saghbazarian was 

discriminating against him on the basis of age and race or 

national origin and she was retaliating against him because of 

his findings in the taxpayer complaint investigation. The trial 

court admitted this document into evidence.

The 13-page complaint included many statements about 

which Kourounian testified at trial, but it also set out additional 

allegations about Saghbazarian’s conduct. Kourounian wrote: 

“There was a general impression in the office that [Saghbazarian] 

can’t stand me and I need to be careful about it.” “On 2/24/2013, 

[Saghbazarian] had a meeting with me where she told me that it 

is not likely that she will let me pass the probation for my BTS I 

position. In any case, she insisted she will watch me carefully 

and make life difficult for me.” “[Nguyen] ended up confessing to 

me that her real task was . . . to spy on me and report regularly 

to [Saghbazarian].” “Silva Saghbazarian apparently in an 

obsessive manner has talked about me and repeatedly 

characterized me as ‘dishonest.’ . . . This is a slander.” On days 

after field work with a particular accountant, Kourounian 

“started getting worrisome phone calls from the . . . accountant, 

telling me that on the days when I am not there, my supervisor 

was making insistent and time consuming phone calls to him 

demanding to know whether there was anything irregular in 

what I was doing.” Saghbazarian came to a business Kourounian 

was auditing and “ma[de] a number of personal comments.” 

These comments related largely to Kourounian’s personal wealth. 

There “seems to be an obsession on the part of [Saghbazarian] 

with my vacation time.” Saghbazarian made mobile working 
6

difficult for Kourounian but not for other BTS1s. Kourounian 

was not permitted to do field observations. Another auditor “was 

repeatedly told that she can have anybody she wants [accompany 

her on night observations] except me.” Saghbazarian overreacted 

to Kourounian arriving at a business a few minutes late and 

wrote a “very nasty memo” which showed she was targeting him. 

Saghbazarian had a “personal obsession” with Kourounian. In 

two meetings, the “tone of [Saghbazarian’s] conversation was 

consistently humiliating and [there] were always put downs.”

On May 13, 2013, as a result of the March/April EEO 

complaint, Kourounian was assigned to report to a new 

supervisor, Chiang. Kourounian testified that on his first work 

day with Chiang, she came up to Kourounian in front of others 

and “started shouting and saying that the reason you are in this 

situation is because of the complaint you filed, and you’re going to 

be told and I’m going to get you.” Kourounian testified about 

many other actions which Chiang took thereafter, but he seldom 

provided dates for them. Chiang was his direct supervisor for 

only a few months, until August or September.

Chiang eliminated Kourounian’s field audits and required 

him to stay in the office. He was not allowed to work as part of a 

crew. He was the only auditor not assigned to a crew. After two 

or three months he was permitted to resume field audits because 

there was no other work for him to do.

 Kourounian was not permitted to do public speaking on 

behalf of the Department after May 2013, although he had done 

so previously.
7

Chiang denied Kourounian mobile working privileges. He 

was the only one so denied. Chiang required Kourounian to 

email her a report in the morning detailing what he was going to 

work on that day and a second email in the evening detailing 

what he had done that day. Chiang did not ever reply to these 

emails. He was required to do this every day. Kourounian had 

never had such a requirement before and, as far as he knew, no 

other auditor had had such a requirement.

Klomp and Chiang came by Kourounian’s cubicle every day 

but did not acknowledge him. On one occasion, Klomp threw him 

out of a supervisor’s office.

While this was going on, Kourounian filed a second EEO 

complaint on May 23, 2013 (May EEO complaint), alleging 

retaliation for filing the March/April EEO complaint. This 

complaint was also admitted into evidence.

The May EEO complaint is very short, and covers events

from May 15 through May 17, 2013, involves only three incidents,

and focuses on Chiang. We detail only the specific statements in 

the complaint which the Department contends prejudiced it. 

Klomp told Kourounian a “supervisor is management and she can 

waste her time but [Kourounian is] not entitled to it.” Chiang 

told two senior tax auditors, John Kilafian and Zhanna Balagula, 

that they could take long lunch breaks but Kourounian could not 

and they needed to check on him. Chiang also told them 

Kourounian was “a bad influence and . . . it is advisable . . . to 

stay away from [him].” “It was felt by both of them that this is a 

personal vendetta and an obsession” on Chiang’s part.” Chiang 

gave Kourounian a copy of his probationary report.

Balagula testified she had participated in restaurant 

observations with Kourounian in the past, but in 2013 
8

Saghbazarian told her she could do observations with anyone 

except Kourounian. Balagula provided details of the lunch 

reprimand in the May EEO complaint. When she, Kourounian, 

Artin Avenes, and Kilafian were coming back to the office from

lunch, Chiang was waiting by the door and started screaming at 

them, asking what time they left for lunch and how long they had 

been gone. It was very loud; the whole office could hear. Chiang

told Balagula, Avenes, and Kilafian not to be scared as they were 

not in trouble. Only Kourounian was in trouble. She told only 

Balagula, Avenes, and Kilafian to come into her office. Chiang 

told Balagula she was not in trouble, only Kourounian was in 

trouble and to “stay away from him, he is [a] bad influence.”

In August or September 2013, while still on probation for 

the promotion, Kourounian was formally rejected for the BTS1

position and he returned to his previous position. In September 

2013, Ter-Galstian was assigned to supervise him again.

Ter-Galstian testified that when Kourounian was assigned 

back to her, Chiang told Ter-Galstian to keep an eye on 

Kourounian and to have him report to her twice daily. TerGalstian had never before been asked to require this of an 

auditor. Chiang told Ter-Galstian to tell Kourounian to cap his 

vacation hours. Ter-Galstian had never done so for anyone else 

she supervised.

Ter-Galstian supervised Kourounian until November 2013.

Jun then began supervising Kourounian again and continued to 

supervise him until the time of trial.

Kourounian administratively appealed the decision to 

rescind his promotion to BTS1. On November 5, 2013, at a 

prehearing settlement conference, the parties entered into a 

settlement agreement. This agreement provided: “2. Respondent 
9

agrees to and hereby does withdraw the [Notice of Rejection 

Pending Probation (NRPP)], and further agrees to remove the 

NRPP and all supporting documents from [Kourounian’s official 

personnel file]. [¶] 3. Appellant agrees to and hereby does return 

to his previous position as an Associate Tax Auditor with 

Respondent for personal reasons effective the close of business on 

August 21, 2013. . . . [¶] 4. In exchange for such consideration as 

is set forth in this Stipulation, Appellant releases, acquits, and 

forever discharges the State of California, the California Board of 

Equalization, and its agents, representatives, employees, 

successors and assigns, of and from any and all demands, actions, 

causes of action, claims of any kind or nature whatsoever, known 

and unknown, anticipated or unanticipated, past or present, and 

any claim under state or federal law including, but not limited to, 

claims under the Fair Employment and Housing Act [(FEHA)] 

and Title VII of the 1964 Civil Rights Act, which may exist as of 

the date hereof in connection with or arising out of the actions 

taken by Respondent [the Board] regarding this NRPP. 

However, this release does not prevent [Kourounian] from 

pursuing all available legal remedies concerning his claims for 

retaliation filed with Respondent’s Equal Employment 

Opportunity (EEO) Office on or about March 2013 and 

supplemental claim filed in May 2013. Appellant acknowledge[s]

that all claims of discrimination associated with his claims to 

Respondent’s EEO Office are waived.”

When Kourounian was assigned back to Jun, Chiang and 

Klomp told Jun to keep an eye on him. According to Jun, Chiang, 

Saghbazarian, and Klomp would not acknowledge Kourounian if 

they passed him in the office. On one occasion, Kourounian was 

talking to Jun in her office when Klomp entered and very 
10

abruptly told Kourounian to leave and go back to work. Klomp 

then left the office himself. Jun described Klomp’s tone as rude 

and the encounter as awkward.

Balagula testified that as recently as a year before trial, 

Saghbazarian was still ignoring Kourounian completely. 

Balagula described an incident where she, Kourounian, and 

Kilafian were walking down the hall and Saghbazarian stopped, 

gave Kilafian a “high five,” and ignored Kourounian.

Jun was aware that Klomp had not included Kourounian in 

any of Klomp’s special projects such as the point of sale program; 

this made Kourounian an exception in the office. There was a 

perception in the office that working on these projects made it 

more likely that a person would be promoted. In the four years 

preceding the trial, everyone in Jun’s crew except a BTS1 worked 

on the point of sale program.

In Jun’s opinion, Kourounian was targeted by Klomp in the 

office. Jun asked Klomp to include Kourounian in a point of sale 

project, but got no reply. When Kourounian first came to Jun’s 

crew, she got the impression from management that she should 

not raise Kourounian’s name. When his name did come up, it 

was just ignored. So, it was easier for Jun not to mention him.

When Jun asked Klomp for permission to allow Kourounian 

to do mobile work in 2013 through 2016, he replied no. Other 

staff members were approved. Beginning around 2018, Klomp 

just stopped responding, so Jun decided to allow Kourounian to 

do mobile work.

When asked if Kourounian was treated like other 

employees in the office, Jun replied that in certain situations he 

was not. Jun believed management would try to find fault with 
11

Kourounian, and if they found any little fault, they would make it 

into a much bigger deal than it was.

Saghbazarian told Jun, without explanation, that 

Saghbazarian did not want Kourounian to be given any 

restaurant audits. This was a large chunk of Jun’s crew’s work, 

and auditors with less experience than Kourounian were working 

on these audits.

Jun had never required an auditor to report to her twice 

daily and she did not know of any supervisor who had such a 

requirement.

On May 17, 2014, Kourounian filed a complaint alleging 

retaliation with the California Department of Fair Employment 

and Housing (DFEH). He received a right to sue letter. This 

action followed.

While much of Jun’s testimony concerns retaliatory action 

continuing after this lawsuit was filed, Ter-Galstian provided a 

significant piece of additional evidence. Ter-Galstian had served 

on promotion boards considering candidates for promotion to 

BTS1. In her opinion, Kourounian was fully qualified for a BTS1 

position. About a year before trial, there was an opening in TerGalstian’s crew for a BTS1 and it would have been customary for 

Ter-Galstian as the supervisor to be on the panel. Instead, TerGalstian was removed from the panel. According to Ter-Galstian, 

there were currently two open BTS1 positions in her office which 

had been open for months. This was very rare.

B. The Department’s Case

In its defense, the Department offered explanations for the 

actions Kourounian alleged were retaliatory. The Department 

presented evidence that Kourounian was competent, but as far as 
12

back as 2011 he made errors in his work and did not provide 

enough detail in his audits. Klomp testified he had advised 

Kourounian in 2011 to “more thoroughly document and detail his 

work” if he wanted to be promoted.

Saghbazarian testified she criticized Kourounian’s work as 

a BTS1 because it was deficient. She too claimed he needed to 

provide more documentation and detail in his work.

Saghbazarian stated that headquarters had asked all 

managers to create a plan to reduce the accumulated vacation 

hours of employees who had more than 640 hours (Kourounian 

had excessive hours accumulated, possibly as many as 1,200 

hours). In addition to Kourounian, Klomp had been asked to 

reduce his accumulated hours.

Saghbazarian denied sending Nguyen to spy on 

Kourounian. She claimed the cases she took from Kourounian 

were cases he had improperly assigned himself when he was a 

limited term supervisor.

In May 2013, Saghbazarian stopped supervising 

Kourounian because he had requested she do so in the EEO 

complaint. She was informed not to communicate with him 

thereafter and so she did not. She claimed it was Kourounian 

who was ignoring her. She stated when he sees her, he turns and 

walks the other way.

Chiang retired in September 2014. She had a medical 

event at some point before trial and was declared an unavailable 

witness. Portions of her deposition were read to the jury. Chiang 

admitted being upset when Kourounian returned from lunch with 

other auditors. She claimed she needed to talk to him about 
13

something, but he had not been at his desk. He had not 

requested a different lunch period, so she expected him to return 

to the office at 12:30 p.m. and became upset when he did not. 

She admitted telling Balagula to stay away from Kourounian 

because he did not have her best interests at heart and she 

should not hang out with people like that.

Chiang agreed she restricted Kourounian from doing field 

observations but said it was because he was a BTS1 at the time 

and BTS1 staff did not do observations. She also denied him field 

visits because he was working on escrow cases which did not 

require visits. Chiang stated she had required auditors other 

than Kourounian to report to her twice a day, although 

Kourounian was her only supervisee at this point in her career.

Klomp testified Kourounian had not been denied speaking 

opportunities. He stated the office received only a few requests 

for speaking engagements and they were handled by a public 

information officer. Klomp stated he never denied Kourounian 

the chance to work on an audit with a point of sale system.

C. Pre-Trial Proceedings

In 2015, Kourounian filed this action and by the time of trial

in 2019, the operative complaint was the Second Amended 

Complaint (SAC), filed January 2016. The SAC alleges a single 

cause of action for retaliation prohibited by statute.1 The relief 

1 The copy of the SAC in the record on appeal also alleges a 

cause of action for declaratory relief and a cause of action for 

equitable relief. The trial court sustained a demurrer to the 

equitable relief cause of action and Kourounian withdrew the 

declaratory relief cause of action.
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) ruled that “reporting 

Saghbazarian’s discrimination against an elderly tax payer is not 

conduct protected by [FEHA]” and so Kourounian “alleges no 

valid retaliation claim against Ms. Saghbazarian under FEHA for 

reporting her discrimination against a taxpayer.”

With respect to the stipulated settlement agreement over 

the rescinded promotion, the court found Kourounian “cannot 

assert his demotion because he waived his right to do so in the 

stipulation.” The court also found that Kourounian, who still 

worked for the Department, “has alleged public humiliation by 

Ms. Chiang . . . . The plaintiff has pled sufficient adverse 

employment actions.”

Finally, the court made clear that plaintiff’s claim was 

based on “retaliation against him for making discrimination 

claims and for adverse actions other than the [Notice of Rejection 

During Probation] [¶] Accordingly the Stipulation does not bar 

the claims advanced here.”

DISCUSSION

We review issues of law de novo. (Aryeh v. Canon Business 

Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) A trial court’s 

evidentiary rulings, including those involving the hearsay nature 

of evidence, are reviewed for abuse of discretion. (Bennett v.

Superior Court (2019) 39 Cal.App.5th 862, 876.) An evidentiary 

ruling that “rests on an error of law is an abuse of discretion.” 

(Ibid.)

Error alone is not sufficient to reverse a judgment. We 

reverse only when a party demonstrates that prejudicial error 

occurred and caused appellant “substantial injury” and that a 
15

“different result would have been probable” absent the error. 

(Code Civ. Proc., § 475.) Reversal, thus, is warranted where “ ’it 

is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the 

error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) 

Such a “ ’probability’ in this context does not mean more likely 

than not, but merely a reasonable chance, more than an abstract 

possibility.” (College Hospital Inc. v. Superior Court (1994) 

8 Cal.4th 704, 715.) In assessing the prejudicial effect of errors, 

we may find multiple errors cumulatively prejudicial, even if each 

error would be not prejudicial when viewed individually. (Lewis 

v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.)

A. Admission of Evidence of Acts Predating the March/April 

EEO Complaint as Evidence of Retaliation Was Error

Appellant contends the trial court erred in permitting 

Kourounian to introduce evidence of actions by Saghbazarian 

which occurred before Kourounian’s protected activity of filing 

the March/April EEO complaint. The parties agree the trial 

court found the evidence admissible to show the “totality of the 

circumstances.” We agree the trial court abused its discretion.

1. Motion in limine proceedings

In pre-trial motion in limine No. 2, the Department sought 

to exclude evidence of all conduct in Kourounian’s EEO complaint 

that did not constitute retaliation. Specifically, the Department 

argued Kourounian’s investigation of a taxpayer complaint was 

not a protected activity under FEHA, and FEHA only protects 

against retaliation caused by engaging in a protected activity. 

Kourounian’s first protected activity was the March/April EEO 

complaint which alleged age and race discrimination (in addition 
16

to the investigation of the taxpayer complaint). Adverse actions 

taken before a protected activity cannot constitute retaliation 

under FEHA. This was consistent with the trial court’s ruling on 

demurrer.2

In his written opposition to the motion in limine, 

Kourounian conceded that based “on the rulings made by Judge 

Cotton on Defendant’s demurrer to the SAC, Plaintiff agrees that, 

at trial, Plaintiff cannot seek compensation for any of the acts 

complained of in Plaintiff’s March-April 2013 EEO complaints.”

Kourounian then argued that the fact that he filed the 

March/April EEO complaint and the content of the allegations in 

the documents submitted to the EEO were admissible on the 

issue of motive to demonstrate why Saghbazarian, Chiang, and/or 

Klomp would have a motive to retaliate against him, as alleged in 

his May 2013 claims.

At oral argument on the motion in limine, the Department

argued “as to the first EEO complaint [in March/April 2013], I 

believe it’s been acknowledged by . . . the plaintiff that it was 

based on an unprotected—an activity that was not protected 

under FEHA and, therefore, it does not constitute a complaint in 

retaliation. So nothing in that first EEO complaint should be 

able to be put into evidence as retaliation.”

In response, the trial court stated its belief that it was for 

the jury to decide whether alleged acts were retaliation or not. 

Appellant protested that “the first EEO complaint is not, as a 

matter of law, a complaint of retaliation. So anything listed in 

that complaint cannot go to the jury.” The court responded: “I 

2 The Department made this same argument in motion in 

limine No. 13, which was directed more broadly at precluding all 

evidence of any actions taken by Saghbazarian.
17

disagree. The prior judges in this case would disagree.” As 

shown above, the trial court was mistaken as to Judge Cotton’s 

previous ruling on the demurrer.

After the trial court denied the motion to preclude 

admission of the substance of the March/April EEO complaint,

Kourounian’s counsel stated: “I concur with the court, and we 

have to look at the totality of the circumstances on the retaliation 

issue. And I think plaintiff in all reasonableness, should be given 

the opportunity to present the totality of the circumstances, and I 

concur with the court’s ruling on this.” The court responded: “I 

agree. And the citation to [Yanowitz v. L’Oreal USA, Inc. (2005) 

36 Cal.4th 1028 (Yanowitz)] is quite instructive, and I read it, 

and I read CACI number 2509, and that gets me to the result.”

2. Analysis

As a matter of both logic and law, acts of retaliation must 

occur after the protected activity. “ ‘ “To establish a prima facie 

case of retaliation, a plaintiff must show that she engaged in 

protected activity, that she was thereafter subjected to adverse 

employment action by her employer, and there was a causal link 

between the two.” ’ ” (Morgan v. Regents of University of

California (2000) 88 Cal.App.4th 52, 69, italics added.) “Because 

retaliation under FEHA requires the plaintiff to show that the 

employer was motivated to retaliate by the plaintiff’s protected 

activity, actions the employer took before the plaintiff engaged in 

the protected activity necessarily are irrelevant.” (Nejadian v.

County of Los Angeles (2019) 40 Cal.App.5th 703, 724, fn. 17.)

The opinion in Yanowitz does not provide otherwise. The 

court simply permitted the consideration of all the employer’s 

retaliatory acts as a whole. As the court explained, “there is no 

requirement that an employer’s retaliatory acts constitute one 
18

swift blow, rather than a series of subtle, yet damaging, injuries.” 

(Yanowitz, supra, 36 Cal.4th at p. 1055.) This does not change 

the requirement that retaliatory acts occur after the protected 

activity or, put differently, be prompted by the protected activity.

On appeal, Kourounian defends the trial court’s ruling on 

the ground that his investigation of the taxpayer complaint “does 

show that Saghbazarian had a history of not liking to work with 

older individuals.” Kourounian also claims that other actions by 

Saghbazarian before the March/April EEO complaint “simply [go]

to the weight of the evidence and the totality of the circumstances 

show Saghbazarian had a motive to retaliate against Kourounian 

based on age and race discrimination.”

In settling his failed promotion appeal, Kourounian 

expressly waived his claims of age and race discrimination. 

Saghbazarian’s history of not liking to work with older people has 

no relevance to a claim of retaliation. Actionable retaliation must 

be based on an individual’s engagement in protected activity, not 

his protected personal status. Kourounian also contends the 

“trial court agreed to give a limiting instruction as to what time 

period was covered by Kourounian’s claim for retaliation.” This 

contention is not supported by the record.

Kourounian’s claim that it was “important for the jury to 

put the entire story together and fully understand the 

circumstances surrounding Kourounian’s claim of age and race 

discrimination” overstates the relevance of that claim. There is 

no doubt that the fact that Kourounian filed an EEO complaint 

for age and race discrimination is highly relevant. It is the 

protected activity needed for his claim; more colloquially it 

provides a motive for the retaliation. The details of the

discrimination are not relevant. This was not a trial about 
19

whether Saghbazarian engaged in race or age discrimination; 

Kourounian waived those claims in the prior settlement 

agreement.

3. Prejudice

We consider the prejudice from this ruling in section B, 

post.

B. Admission of the EEO Complaint Was Error

Appellant contends the trial court erred when it found the 

original March EEO complaint (Exhibit 7), the April supplement 

(Exhibit 8) and the May EEO complaint (Exhibit 9) were not 

hearsay and then admitted those documents into evidence. We 

agree the trial court abused its discretion.

1. Trial court proceedings

Although there were 15 motions in limine, none directly 

concerned the admission of copies of the two EEO complaints. 

Kourounian’s counsel simply moved to admit the documents 

during the examination of Kourounian. When the trial court 

asked if the Department objected, counsel replied: “We filed a 

written objection on six grounds, and we object primarily on 

hearsay, but on the other grounds as well.” The court replied: “I 

don’t know what you are referring to, the written objections.”

3 

The court directed the Department to make its objections on the 

record in open court. Counsel stated: “Object as hearsay.” When 

the court asked if there were any other objections, counsel stated: 

“It’s irrelevant. There’s been a waiver. It’s a 352 argument. It’s 

3 We don’t know either, as appellant has not provided a 

record cite for any written objections.
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 entirety of the complaint itself. The hearsay objection was 

sustained as to the rest of the document.

Later, outside the presence of the jury, the Department 

asked to speak to the admissibility of the document. The court 

replied: “I really don’t want to entertain argument. I’ve ruled on 

it.” The court stated: “These are the statements of the plaintiff. 

All these pages have only the statements of the plaintiff.” 

Appellant stated: “Which is hearsay.” The court replied: “He’s 

testifying. He’s being cross-examined. These are his statements. 

This is not hearsay, and it has independent legal relevance 

because it is the gravamen of his complaint what he said to the 

reporting agencies. You can cross-examine him and them tell the 

jury if your cross-examination is effective that his statements 

should not be given weight, but they are his statements. [¶] The 

statements of other people are clearly excluded. You’re correct. 

Emails that have both the plaintiff’s statements and other 

people’s statements have been categorically excluded because 

they are mixed and it’s not crossed off enough.” The trial court 

was mistaken.

Appellant also verbally objected to the admission of 

Exhibits 8 and 9 on the ground that they were hearsay. The trial 

court overruled the objections without elaboration.
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 other than by a witness 

while testifying at the hearing and that is offered to prove the 

truth of the matter stated.’ A ‘statement’ is ‘oral or written 

verbal expression’ or the ‘nonverbal conduct of a person intended 

by him as a substitute for oral or written verbal expression.’

(Evid. Code, § 225.)” (People v. Sanchez (2016) 63 Cal.4th 

665, 674.) “Documents like letters, reports, and memoranda are 

often hearsay because they are prepared by a person outside the 

courtroom and are usually offered to prove the truth of the 

information they contain. Documents may also contain multiple 

levels of hearsay. An emergency room report, for example, may 

record the observations made by the writer, along with 

statements made by the patient. If offered for its truth, the 

report itself is a hearsay statement made by the person who 

wrote it. Statements of others, related by the report writer, are a 

second level of hearsay. Multiple hearsay may not be admitted 

unless there is an exception for each level.” (Sanchez, at pp. 674–

675.)

There is no doubt that the EEO complaints were prepared 

outside the courtroom. Thus, like an emergency room report, 

Kourounian’s written complaints, if offered for its truth, is a 

hearsay statement made by Kourounian, the person who wrote it.

The fact that Kourounian was available for crossexamination does not transform his statements in the complaints 

into non-hearsay or provide an exception to the hearsay rule. 

“ ’Hearsay is generally excluded because the out-of-court 
22

declarant is not under oath and cannot be cross-examined to test 

perception, memory, clarity of expression, and veracity, and 

because the jury (or other trier of fact) is unable to observe the 

declarant’s demeanor.’ [Citation.] To challenge a testifying 

witness’s own prior, out-of-court statement as inadmissible 

hearsay is unusual, but we agree with defendant that [the 

testifying witness’s] own statement to his wife constituted 

hearsay evidence, for it was an out-of-court statement that was 

offered for its truth.” (People v. Seumanu (2015) 61 Cal.4th 1293, 

1307–1308, fn. omitted.) We are not free to disregard this 

holding by the Supreme Court and, contrary to Kourounian’s 

claim, neither was the trial court.

The fact that Kourounian is a party, not merely a witness, 

does not make his out-of-court statements admissible. The 

Evidence Code provides only limited exceptions to the hearsay 

rule for the out-of-court statements of a party, and Kourounian 

has not identified any of them as applicable.

Finally, by way of analogy, federal caselaw is abundant 

that EEOC charges are inadmissible hearsay as is the narrative 

attached to the charge. (Delaney v. Bank of America Corp.

(2d Cir. 2014) 766 F.3d 163, 169; Abbott v. Elwood Staffing 

Services, Inc. (N.D.Ala. 2014) 44 F.Supp.3d 1125, 1139; 

Stolarczyk ex rel. Est. of Stolarczyk v. Senator Intern. Freight 

Forwarding (N.D.Ill. 2005) 376 F.Supp.2d 834, 841–842.)

We do not understand what the trial court meant by the 

complaints having “independent legal relevance because it is the 

gravamen of his complaint what he said to the reporting 

agencies” or why it believed that reasoning would take the 

statements outside the hearsay rule. Gravamen is generally 

understood to mean “the substantial point or essence of a claim, 
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 reflected his state of mind, an 

exception to the hearsay rule.” Nothing in the trial record

indicates the complaints were admitted for any limited purpose.

On appeal, Kourounian contends he did not offer the 

complaints for the truth of the matter “but for other legitimate 

reasons” such as notice to appellant, Kourounian’s state of mind 

and his good faith and reasonable belief that he was being 

discriminated against. We strongly question whether those 

purposes would have justified admitting the entirety of the 

complaints, particularly since notice to the EEO and 

Kourounian’s good faith belief do not appear to have been in 

dispute.4 But whatever Kourounian’s purpose was for seeking 

admission of the complaints, he did not articulate it when he 

moved to admit the complaints into evidence, and he remained 

silent when the trial court ruled they were not hearsay. Given 

Kourounian’s silence and the trial court’s belief that the 

statements were not hearsay, the Department had no basis to 

4 We do not see the relevance of Kourounian’s state of mind 

to any issue in this action, but if, by state of mind, Kourounian

means his emotional response to the discrimination and 

retaliation, we agree with the Department that there is very little 

on this subject in the complaints.
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 the complaints violated 

two of the trial court’s in limine rulings prohibiting legal 

conclusions and evidence of Kourounian’s rejection on probation. 

Accordingly, we find those contentions waived.5

Finally, we turn to the Department’s claims that the 

complaints contained “inflammatory and damaging 

characterizations of the alleged retaliators that were nothing 

more than Kourounian’s subjective opinion.” In many instances, 

the Department refers to a single word without context and 

without a specific page cite. In its reply brief, appellant contends: 

“A simple reading of the 12-pages of EEO narratives evidences 

the prejudice to the Department.” It does not. The Department 

has forfeited all contentions based on reference to a single quoted 

word with no specific record cite or supporting legal argument.

5 The Department is excused from making an objection that 

the complaints involved multiple hearsay, that is statements by 

Kourounian recounting out-of-court statements by others. The 

trial court’s remarks show that such an objection would have 

been futile.
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 

Balagula testified at trial about the specific incidents in the 

complaint. As set forth in the BACKGROUND section, ante, 

there was ample other evidence of Chiang’s adverse actions 

toward Kourounian and these are far more serious than the 

incidents in the complaint.

In contrast, the jury received a double dose of evidence 

about irrelevant actions by Saghbazarian that predated the 

March/April EEO complaint. This double dose was in the form of 

some live testimony and the written complaint. Saghbazarian’s 

conduct before the filing of the complaint is very similar to 

Chiang’s conduct after the protected filing of the March/April 

EEO complaint, even though it was only Saghbazarian who was 

named as the offending party in the March/April EEO complaint 

for age and race discrimination. Moreover, the switch in 

supervisors from Saghbazarian to Chiang occurred after 

Kourounian filed his March/April EEO complaint. The jury was 

aware that the two women were friends, and there was evidence 

that Chiang was unhappy with Kourounian’s taxpayer 

investigation findings, presumably on behalf of her friend. The 

similarity of conduct of the two supervisors suggests a concert of 

action and bolsters the theory that Chiang indeed was acting 
26

with a retaliatory motive. Put differently, it strengthens the 

credibility of Kourounian’s claim of retaliatory animus. When 

evidence of Klomp’s similar conduct is added into the mix, it 

paints a picture of three very high-ranking employees of the 

Department engaged in concerted action to punish an employee 

under them for alleging FEHA violations. This is a much more 

damaging scenario to the Department, which is the only 

defendant in this action, than it would be if the evidence 

suggested Chiang was acting on her own.

Further, in addition to the invalid retaliation claim

evidence, the March/April complaint, primarily the supplement, 

alleged age and race discrimination by Saghbazarian. These acts 

have a tendency to show Saghbazarian as someone who was 

prejudiced and willing to act in violation of the law. The claims 

were settled, however, and their truth was never adjudicated; the 

jury should never have learned of any claim details. At a 

minimum, the acts have a tendency to undermine her credibility 

about her behavior post-March/April complaint. More

importantly, the evidence at trial made clear that Saghbazarian 

is not only still in appellant’s employ, but also has been 

promoted. Given the improperly admitted evidence of 

Saghbazarian’s allegedly discriminatory behavior, the 

Department looks complicit in ratifying potentially prohibited or 

illegal behavior.

This was a 9-3 verdict, a close case, where there was 

affirmative evidence presented by both parties for the jury to 

consider. We conclude there is a reasonable probability that if

the evidence at trial had commenced with the filing of 

Kourounian’s March/April EEO complaint, instead of reaching 

back into irrelevant time periods, the Department would have 
27

received a more favorable verdict. (Kotla v. Regents of University 

of California (2004) 115 Cal.App.4th 283, 289, 294 [prejudice 

found where the vote was 9-3 and there was evidence presented 

by both parties from which either retaliation could be inferred or 

plausible nonretaliatory reasons could be sustained].) The total 

number of alleged bad acts by the Department would have been 

reduced, a conspiracy among Saghbazarian, Chiang and Klomp to 

retaliate against Kourounian would have appeared less likely,

and Saghbazarian’s acts of ignoring Kourounian and Chiang’s 

and Klomp’s fits of anger and hostility would have seemed less 

menacing.

DISPOSITION

The judgment is reversed. Respondent to pay costs on 

appeal.

CERTIFIED FOR PUBLICATION

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.