Filed 3/16/23 Le v. The Regents of the U. of Cal. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LOAN K. LE,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

A162114

(Alameda County

Super. Ct. No. RG18913026)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on February 23, 2023, be 

modified as follows:

1. On page 15, footnote 10, at the end of the footnote text, add the 

following: 

In a petition for rehearing, Le contends that Garcia 

Bedolla retaliated against Le by undermining Le’s 

ability to perform her job, asserting that she cited 

those events in a footnote in her opening brief. It is 

well established, however, that “[f]ootnotes are not 

the appropriate vehicle for stating contentions on 

appeal.” (Sabi v. Sterling (2010) 183 Cal.App.4th 

916, 947; Unilogic, Inc. v. Burroughs Corp. (1992) 

10 Cal.App.4th 612, 624, fn. 2 [“We do not view as 
2

adequate to preserve an issue on appeal . . . one 

footnote mention of [it].”].) 

There is no change in the judgment. 

Appellant’s petition for rehearing is denied.

Dated: 

____________________________

Humes, P.J.

A162114

Le v. The Regents of the University of California
Filed 2/23/23 Le v. The Regents of the U. of Cal. CA1/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

LOAN K. LE,

Plaintiff and Appellant,

v.

THE REGENTS OF THE 

UNIVERSITY OF CALIFORNIA,

Defendant and Respondent.

 A162114

 (Alameda County

 Super. Ct. No. RG18913026)

Plaintiff Loan K. Le, Ph.D. appeals from a summary judgment granted 

in favor of defendant The Regents of the University of California (the 

Regents) on Le’s harassment and retaliation claims. We affirm.

I. BACKGROUND

A. Stalking and Harassment1

In 2009, Le was a doctoral candidate in political science at the 

University of California, Berkeley. According to the operative complaint, she 

decided to replace one of her dissertation advisers, Professor Robert Van 

Houweling, because “he seemed to pay her an unusual, and at times, 

1 Some of the facts regarding the alleged stalking and harassment of Le

by Professor Robert Van Houweling are taken from the second amended 

complaint. 
2

inappropriate amount of attention.” She reluctantly changed her mind and 

reinstated Van Houweling after he pressured her to do so. 

Soon thereafter, Le alleges, Van Houweling began to aggressively stalk 

her. Le saw him lurking in her neighborhood and staring at her when she 

was out running and doing other daily activities, including exiting a coffee 

shop, dropping off her son at school, driving out of a doctor’s parking lot, 

having lunch, and walking home from Whole Foods. She also saw him 

lurking outside of her apartment in Los Angeles when she was working there 

as a visiting assistant professor. Le received flowers at her residence from an 

anonymous person. She later became the victim of a mailbox break-in, 

identity theft, an apartment break-in, and her car’s tire was punctured. Le 

believed Van Houweling was behind all of these stalking and harassment 

incidents. With the help of an attorney, Le obtained records of her criminal 

complaints from the UCLA2 police department but discovered they did not 

investigate her complaints and included facts in their police reports that were 

completely fabricated. The harassment and stalking continued “until at least 

2013.”

Le alleges she reported the harassment and stalking on numerous 

occasions to professors in the department of political science (department)

beginning in June 2010. The chair of the department, Taeku Lee, reported 

Le’s complaints to the office of prevention of harassment and discrimination, 

but the office failed to follow up with Le or adequately investigate her 

complaints. Instead, Lee discouraged Le from pursuing her case by telling 

her that the Title IX office stated they had to “demonstrate ‘loyalty’ to the 

University” and side with Van Houweling because Le had graduated. He also 

told her Van Houweling had “ ‘all the power’ ” and that she “ ‘had none.’ ” 

2 Apparently, the University of California, Los Angeles (UCLA). 
3

Le further alleges that the Regents failed to conduct an adequate 

investigation into her complaints and concealed records of her complaints. 

Nonetheless, the Regents assisted Van Houweling in 2011 with filing a false 

police report against Le for making false harassment claims. 

B. Le’s Employment

Le worked for the University of California, Berkeley’s Center for Latino 

Policy Research (CLPR) for one academic year in 2013 and 2014. 

In July 2013, Le asked to meet with Professor Lisa Garcia Bedolla, the 

chair of the CLPR. During the meeting, Le told Garcia Bedolla about what 

she had been working on in her postdoctoral work at UCLA. Le also told 

Garcia Bedolla that she had complained to the University about stalking and 

harassment by a faculty member and that the University had mishandled her 

complaint.3 According to Le, Garcia Bedolla warned her not to “ ‘take on’ ”

the Regents, as it “was very good at covering up negative information.”4

At the time, Garcia Bedolla was overseeing a project involving an indepth analysis of California voters. Sometime after her meeting with Le, 

Garcia Bedolla e-mailed her and met with her about working on the project. 

In August 2013, the Regents hired Le at Garcia Bedolla’s request to provide 

research assistance for the project. Her term was set to run from August 15, 

2013, to June 20, 2014. 

3 At her deposition, Garcia Bedolla stated that Le told her someone had 

broken into her apartment at UCLA and she had reported it to police, but she 

did not say who it was. Le also told Garcia Bedolla she thought she was 

being stalked, that it was someone in the department, and that she had 

reported it to the department. That was the first time Garcia Bedolla heard 

that Le reported being stalked to the department. 

4 Garcia Bedolla denied discouraging Le from filing a complaint against 

the Regents. 
4

C. EEOC Complaint

In late November 2013, Le filed a complaint with the Equal 

Employment Opportunity Commission (EEOC) based on Van Houweling’s 

alleged harassment and stalking and the Regents’ alleged failure to 

adequately investigate, preserve information, or provide documentation to 

Le. In March 2014, she filed a supplemental letter with the EEOC providing 

further information in support of her complaint. In April, Le alleges she 

“learned from the EEOC that they had notified [the Regents] of her claims of 

harassment, stalking, and retaliation.” 

D. Publication of CLPR Reports

Sometime after April 11, 2014, Le submitted a draft version of her 

significant contributions to the manuscripts for the CLPR project, which 

included her data preparation and analysis for the research to date. At the 

time, Le was searching for a full-time academic position, and hoped that the 

attention generated from the articles would “springboard” her into such an 

appointment. She continued to follow up with Garcia Bedolla for additional 

work, but was told in August 2014 that she would be contacted again when 

Garcia Bedolla received feedback from the program officer.5 Due to Garcia 

Bedolla’s promise to follow up, Le did not monitor whether the manuscripts 

she worked on were published. On June 30, 2015, Garcia Bedolla informed 

Le via e-mail that she would be excluded from authorship on several 

manuscripts, “despite promises to the contrary” prior to her filing of the 

EEOC complaint. Unbeknownst to Le, Garcia Bedolla had published the 

manuscripts electronically on February 18, 2015. 

5 In June 2014, Garcia Bedolla offered Le a one- or two-month

extension of her employment. Le declined the offer. 
5

E. Le’s DFEH Complaint and Lawsuit

On June 9, 2016, Le filed a precomplaint inquiry with the Department 

of Fair Employment and Housing (DFEH). Her signed complaint was filed 

the next month, in July 2016.6 On July 18, 2017, the DFEH issued a right to 

sue letter. 

One year later, Le filed this action, alleging three claims under the Fair 

Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) against the 

Regents for harassment (hostile work environment), retaliation, and failure 

to prevent harassment and retaliation. 

Le subsequently filed a first amended complaint (FAC). The trial court 

overruled a demurrer filed by the Regents, but stayed all proceedings and 

ordered the Regents to file its motion for summary judgment based on Le’s 

alleged failure to exhaust her administrative remedies. 

F. Summary Judgment Motion and Continuances 

The Regents noticed the hearing on its motion for summary judgment 

to take place on August 19, 2019. Le filed a motion seeking leave to file an 

amended complaint two days before the hearing. The trial court denied the 

initial motion for summary judgment without prejudice and continued the 

hearing. 

In September 2019, the parties stipulated to allow Le to file a second 

amended complaint (the operative complaint). The parties refiled their 

respective summary judgment papers in November 2019 to have the motion 

heard in January 2020. 

6 Le had several communications with the DFEH about corrections to 

her complaint before it was signed and filed. For purposes of summary 

judgment, the Regents concedes that Le’s submission of the precomplaint 

inquiry was the operative date of her DFEH filing. 
6

In January 2020, the trial court issued an order continuing the hearing 

on the summary judgment motion to April. The court noted that its efforts to 

resolve promptly the Regents’ contention that the court lacked jurisdiction 

over Le’s action because she did not timely present a claim to the DFEH had 

not been successful thus far “due to the parties’ lack of diligence.” The court 

observed that it had overruled the demurrer to the FAC in March 2019, and 

agreed with the Regents’ assertion that Le was largely responsible for the 

delays. The court then described “in no particular order” the sources of its 

dissatisfaction with the evidentiary record presented by the parties and their 

memoranda of points and authorities. The court (1) admonished the Regents

for vacillating on whether Le can avail herself of the continuing violation 

doctrine and directed the Regents to withdraw the argument or provide Le

with relevant discovery, (2) ordered the parties to provide supplemental 

briefing on Le’s delayed discovery claim, and (3) instructed the attorneys to 

advise the court whether the Legislature’s recent amendment of Government 

Code section 12960 had any significance for the issues presented by the 

summary judgment motion. The court also indicated the evidence before it

did not clearly indicate whether a hypothetical reasonable jury could find 

Garcia Bedolla retaliated against Le because Le did not state in her 

declaration that Garcia Bedolla was aware of her filing of the EEOC 

complaints in 2013 and 2014. The court “strongly encouraged” the Regents to 

take Le’s deposition regarding the matters set forth in her declaration. The 

trial court instructed the parties to file supplemental memoranda and 

present additional evidence, and continued the hearing to April 2020. 

The parties stipulated to continue the summary judgment motion 

hearing from April to June 2020, then again to October 2020, because 

scheduling conflicts and the COVID-19 pandemic made it difficult to complete 
7

the necessary discovery earlier. The trial court eventually continued the 

summary judgment hearing once more to December 2020, because it did not 

receive a courtesy copy of Le’s supplemental briefing in time for the 

scheduled hearing. 

G. Motion to Compel Discovery Responses

After the trial court’s January 2020 order, the parties met and 

conferred regarding the Regents’ responses to discovery that were served in 

August 2019. The parties continued to meet and confer multiple times over 

the ensuing months. 

Despite multiple promises to provide further responses to Le’s

discovery requests, the Regents did not do so until after Le attempted to 

schedule an informal discovery conference with the trial court. In midAugust 2020, the Regents promised to provide supplemental discovery 

responses by August 21. 

On August 19, 2020, Le filed a motion to compel with a hearing date of 

October 14, 2020. Two days later, the Regents provided further discovery 

responses and produced 635 pages of documents. The Regents asked Le to 

withdraw her motion to compel in light of the supplemental responses and 

production of documents, but she declined. 

In September, the parties stipulated to continue the hearing on the 

summary judgment motion, and on September 14, the trial court continued 

the hearing from October 1 to October 29, 2020. Le’s counsel also agreed to 

move the hearing on the motion to compel from October 14 to December 3, 

2020—after the continued summary judgment hearing. On October 14, the 

trial court continued the hearing on the motion to compel to December 3. 
8

H. Supplemental Briefing and Orders on Summary Judgment and 

Motion to Compel

On October 15 and 22, respectively, the parties filed supplemental 

briefs and evidence as ordered by the trial court, addressing whether Garcia 

Bedolla had notice of Le’s protected activity, and whether the delayed 

discovery doctrine should apply. In her supplemental opposition, Le

requested a continuance pursuant to Code of Civil Procedure7 section 437c, 

subdivision (h) in the event the court were inclined to grant summary 

judgment, to allow Le to obtain additional discovery and present additional 

evidence as to Garcia Bedolla’s knowledge regarding Le’s filing of the EEOC 

complaint. 

After the parties filed their supplemental briefing, the court continued 

the October 29 hearing on the summary judgment motion to December 17, 

2020, because Le’s counsel had failed to provide a courtesy copy of her

supplemental briefing. The court subsequently continued the motion to 

compel to December 17 as well, because the Regents failed to deliver a 

courtesy copy of its opposition to that motion. 

On December 17, 2020, the trial court held the hearing on the summary 

judgment motion. The same day, it continued the hearing on Le’s motion to 

compel to February 4, 2021. 

The trial court granted summary judgment and entered a judgment in 

in favor of the Regents. The court concluded the Regents made a prima facie 

showing that Le failed to exhaust her administrative remedies by filing a 

timely complaint with DFEH because she failed to file her complaint within a 

year after she stopped working for CLPR. The court rejected Le’s contention 

7 All undesignated statutory references are to the Code of Civil 

Procedure. 
9

that she could show a continuing violation based on the last act of retaliation 

(i.e., Garcia Bedolla’s failure to name her as a coauthor of the reports) that 

occurred in the spring of 2015 after her employment ended because the 

failure to name her as a coauthor of the reports was not an adverse 

employment action as a matter of law under Yanowitz v. L’Oreal USA, Inc. 

(2005) 36 Cal.4th 1028 (Yanowitz). Further, the trial court determined that 

even if Garcia Bedolla’s conduct in 2015 could be an “ ‘adverse employment 

action,’ ” the Regents would be entitled to summary judgment because Le

failed to present evidence of a triable issue of material fact regarding Garcia 

Bedolla’s knowledge of Le’s EEOC complaint filed in November 2013. 

Le timely appealed. 

II. DISCUSSION

A. Standard of Review

Our standard of review governing summary judgment is well settled. 

“ ‘ “We review the trial court’s decision de novo, considering all the evidence 

set forth in the moving and opposing papers except that to which objections 

were made and sustained.” ’ [Citation.] We liberally construe the evidence in 

support of the party opposing summary judgment and resolve doubts 

concerning the evidence in favor of that party.” (Yanowitz, supra, 36 Cal.4th 

at p. 1037.) 

“A defendant moving for summary judgment meets its burden of 

showing that there is no merit to a cause of action if that party has shown 

that one or more elements of the cause of action cannot be established or that 

there is a complete defense to that cause of action.” (Thompson v. City of

Monrovia (2010) 186 Cal.App.4th 860, 864, citing § 437c, subds. (o)(2), (p)(2).) 

“If the defendant does so, the burden shifts back to the plaintiff to show that 

a triable issue of fact exists as to that cause of action or defense. In doing so, 
10

the plaintiff cannot rely on the mere allegations or denial of his or her 

pleadings, ‘but, instead, shall set forth the specific facts showing that a 

triable issue of material fact exists.’ [Citation.] A triable issue of material 

fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact 

to find the underlying fact in favor of the party opposing the motion in 

accordance with the applicable standard of proof.’ ” (Thompson, at p. 864.)

Our review is governed by a fundamental principle of appellate 

procedure, namely, that “ ‘[a] judgment or order of the lower court 

is presumed correct,’ ” and thus, “ ‘error must be affirmatively shown.’ ” 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Under this principle, 

the plaintiff bears the burden of establishing error on appeal, even though 

the defendant had the burden of proving their right to summary judgment 

before the trial court. (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412,

423.) Accordingly, our review is limited to contentions adequately raised and 

supported in Le’s brief. (Ibid.) 

B. Summary Judgment Was Appropriate on the Ground that Le’s

DFEH Complaint Was Untimely

The Regents moved for summary judgment on the ground that it had a 

complete defense to Le’s causes of action because her claims are time barred. 

The exhaustion of FEHA’s administrative remedies is a “ ‘jurisdictional 

prerequisite to resort to the courts.’ ” (Johnson v. City of Loma Linda (2000) 

24 Cal.4th 61, 70.) Accordingly, “[t]he timely filing of an administrative 

complaint is a prerequisite to the bringing of a civil action for damages under 

the FEHA.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) 

At the time of the alleged misconduct here, FEHA provided that a 

person claiming to be aggrieved by an alleged unlawful practice must file a 

verified complaint with the DFEH within one year from the date on which 
11

the alleged unlawful practice occurred.8 (Gov. Code, § 12960, former 

subd. (d); Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 

918, 931.) 

Le’s complaint is primarily centered on conduct by Van Houweling and 

Lee that occurred before June 30, 2014, when Le’s employment with the 

Regents ended. Le’s employment ended well over a year before she filed her 

DFEH complaint in June 2016. Nonetheless, she contends that her DFEH 

complaint is timely based on Garcia Bedolla’s February 2015 publication of 

reports that omitted Le as a coauthor, which Le did not learn about until 

June 30, 2015. 

The trial court concluded the Regents was entitled to summary 

judgment on two grounds: first, the failure to acknowledge Le as a coauthor 

in the published studies was not an “adverse employment action” as a matter 

of law, and second, because Le failed to present evidence raising a triable 

issue of fact that Garcia Bedolla had any knowledge of Le’s protected 

activity—specifically, the filing of the EEOC complaint—at the time of the 

2015 publication. We need not address whether the failure to acknowledge 

Le as a coauthor after her employment had ended can constitute an adverse 

employment action, because we conclude the trial court properly granted 

summary judgment based on the absence of a causal link between Le’s 

protected activity and Garcia Bedolla’s alleged retaliatory act in refusing to 

name her as a coauthor. 

Government Code section 12940, subdivision (h), makes it unlawful for 

an employer “to discharge, expel, or otherwise discriminate against any 

8 The statute was amended effective January 1, 2020, to provide a 

three-year statute of limitations. Plaintiff concedes the amendment does not 

apply to her claims. 
12

person because the person has opposed any practices forbidden under [FEHA] 

or because the person has filed a complaint, testified, or assisted in any 

proceeding under [FEHA].” “ ‘ “To establish a prima facie case of retaliation, 

a plaintiff must show that [he or] she engaged in protected activity, that [he 

or] she was thereafter subject to adverse employment action by [his or] 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 (Morgan); 

Yanowitz, supra, 36 Cal.4th at p. 1042.) The requisite causal link may be 

established by an inference drawn from circumstantial evidence, “ ‘ “ ‘such as 

the employer’s knowledge that the [employee] engaged in protected activities 

and the proximity in time between the protected action and allegedly 

retaliatory employment decision.’ ” ’ ” (Morgan, at p. 69.) “ ‘Essential to a 

causal link is evidence that the employer was aware that the plaintiff had 

engaged in the protected activity.’ ” (Id. at p. 70.)

Relying on Morgan, the trial court here determined that Le failed to 

present evidence showing a triable issue of fact regarding Garcia Bedolla’s 

knowledge of Le’s EEOC complaint in November 2013. The trial court 

observed that the Regents presented unequivocal evidence that Garcia 

Bedolla did not learn that Le had filed her EEOC complaint until 2016, and

Le’s circumstantial evidence that Garcia Bedolla “was no longer friendly to 

her in professional or personal contexts” after Le filed her EEOC complaint

was insufficient to show a triable issue of fact as to Garcia Bedolla’s 

knowledge of protected activity. 

On appeal, Le does not challenge the determination that she failed to 

present a triable issue of material fact as to Garcia Bedolla’s knowledge of 

her November 2013 EEOC complaint or distinguish Morgan, but contends 

summary judgment was improper because the undisputed evidence shows 
13

Garcia Bedolla was aware Le had engaged in protected activity based on 

their July 2013 conversation in which Le revealed she was being stalked and 

harassed by a faculty member and Garcia Bedolla told her not to “ ‘take on’ ” 

the Regents. 

As an initial matter, we note this was not the theory Le relied on in the 

trial court when opposing the summary judgment motion.9 In her 

supplemental opposition brief below, Le mentioned cursorily her complaint to 

Garcia Bedolla in July 2013 about the harassment and stalking, but 

acknowledged that Garcia Bedolla hired her after that conversation. Rather,

Le’s opposition focused on evidence that Le engaged in “further protected 

activity” in November 2013, when she filed the EEOC complaint and that 

Garcia Bedolla’s behavior toward her changed only after she filed the EEOC 

complaint. Indeed, Le specifically asserted that Garcia Bedolla “treated [her]

well” up until the filing of the EEOC complaint. We observe a party is 

generally precluded from arguing issues not raised in the trial court. More 

specifically, on appeal from a summary judgment for a defendant, a plaintiff 

may not assert for the first time on appeal a new theory under which the 

evidence might support the plaintiff’s case. (Magallenes de Valle v. Doctors 

Medical Center of Modesto (2022) 80 Cal.App.5th 914, 924; San Francisco 

Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 965.) 

Because the Regents does not contend Le forfeited this argument however, 

we will address it on the merits. 

As noted above, Le asserts that the trial court erred in granting 

summary judgment because even if Garcia Bedolla did not know about the 

9 Accordingly, Le’s argument that the trial court’s focus on Garcia 

Bedolla’s lack of knowledge of the EEOC complaint was “myopic” and ignored 

evidence that she complained to Garcia Bedolla in July 2013 is not well 

taken. 
14

EEOC complaint, she had direct knowledge of Le’s protected activity based on 

Le’s July 2013 conversation about the harassment and stalking. Even 

assuming that the July 2013 conversation qualifies as protected activity, 

however, there is no causal link between that conversation and the alleged 

act of retaliation. (See, e.g., Clark County School Dist. v. Breeden (2001) 

532 U.S. 268, 272–274 (Breeden) [evidence employer had planned to transfer 

employee before learning she filed a lawsuit was “no evidence whatever of 

causality” and even if employer was aware, 20-month gap between protected 

activity and transfer nullified inference of a causal connection]; Cornwell v. 

Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036 (Cornwell) 

[trial court did not err in finding seven-month gap between Le’s complaint 

and termination too much time for reasonable jury to conclude Le was 

terminated because of the complaint]; Chin, et al., Cal. Practice Guide: 

Employment Litigation (The Rutter Group 2022) ¶ 5:1624 [inference of 

retaliatory intent may be dispelled by evidence showing lack of connection 

between protected conduct and alleged retaliation].)

First, the alleged retaliatory act of failing to name Le as a coauthor of 

the reports occurred in February 2015, more than a year and half after the 

July 2013 conversation. (See Morgan, supra, 88 Cal.App.4th at p. 69 

[retaliatory motive is proved by showing the adverse action follows within a 

“ ‘ “relatively short time” ’ ” after protected activity]; Breeden, supra, 532 U.S. 

at pp. 273–274 [20-month gap between protected activity and alleged 

retaliation too long to establish causation]; Cornwell, supra, 439 F.3d at 

p. 1036 [seven months too long].) Second, shortly after their July 2013 

conversation, Garcia Bedolla hired Le to provide research assistance on her 

project. Le herself presented evidence that she “had a very good relationship” 

with Garcia Bedolla up until November 29, 2013, and it was not until 
15

December 2013 that Le asserts Garcia Bedolla’s behavior toward her began to 

change. Le does not explain why Garcia Bedolla would hire her shortly after 

the July 2013 conversation and treat her very well, but many months later 

stop being friendly and begin scrutinizing her work based on her earlier 

revelation of protected activity.

10 (See Manatt v. Bank of America, NA (9th

Cir. 2003) 339 F.3d 792, 802 [employer’s decision to give plaintiff a pay raise 

and selection for prestigious assignment between time of complaint and 

alleged adverse action defeated any causal link necessary for retaliation 

claim, as did fact that there was nine-month gap between her complaint and 

alleged adverse action].) 

We also reject Le’s suggestion that the trial court improperly 

considered whether Garcia Bedolla had knowledge of Le’s protected activity

even though the Regents did not raise it in its initial moving papers. The 

trial court requested supplemental briefing on causation in January 2020,

and the parties had over 10 months to conduct discovery and prepare their 

supplemental briefing. Le has not shown she was denied due process.11 (Cf.

San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 

316 [“due process requires a party be fully advised of the issues to be 

10 Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 455–456 and 

Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 

413, 421, cited by Le in her reply brief, are distinguishable. In both cases,

appellate courts concluded sufficient evidence supported jury verdicts in favor 

of the plaintiffs given the pattern of conduct consistent with retaliatory intent 

following protected conduct. (Green, at p. 456 [“various sorts of retaliatory 

conduct began immediately after her complaint and persisted until her 

employment ended”]; Wysinger, at p. 421 [employee may show causal 

connection between protected activity and adverse employment action if there 

is a pattern consistent with retaliatory intent].) 

11 We observe Le specifically disavows that the trial court was biased 

against her. 
16

addressed and be given adequate notice of what facts it must rebut in order 

to prevail”].) Moreover, Le did not object to the procedure in the trial court, 

and accordingly, has forfeited any objection on appeal. (See Sperber v. 

Robinson (1994) 26 Cal.App.4th 736, 742–743.) 

In sum, the trial court properly granted summary judgment in favor of 

the Regents because Le failed to present evidence of a triable issue of 

material fact regarding a causal link between her protected activity and 

Garcia Bedolla’s alleged retaliatory act. Because we conclude the trial court 

appropriately granted summary judgment on this ground, we need not reach 

the Regents’ alternative arguments that postemployment actions cannot 

constitute an “adverse employment action” as a matter of law under 

California law, or that Le’s claim was untimely because FEHA requires that 

timeliness be measured from the publication date of the reports, not when Le

learned about them. 

C. Denial of Continuance

We next consider Le’s contention that the trial court abused its 

discretion by denying or failing to expressly rule on her request for a 

continuance of the summary judgment hearing to obtain further discovery. 

Section 437c, subdivision (h) allows for continuance of a motion for 

summary judgment hearing if it appears from affidavits in opposition to the 

motion that “facts essential to justify opposition may exist but cannot, for 

reasons stated, be presented.” The affidavits “must show: ‘(1) the facts to be 

obtained are essential to opposing the motion; (2) there is reason to believe 

such facts may exist; and (3) the reasons why additional time is needed to 

obtain these facts.’ ” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)

Continuance requests under section 437c, subdivision (h) are to be liberally 

granted, and are “virtually mandated ‘ “upon a good faith showing by 
17

affidavit that a continuance is needed to obtain facts essential to justify 

opposition to the motion.” ’ ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 

389, 395.) A continuance is not mandated, however, when the submitted 

affidavit fails to make the necessary showing. (Cooksey, at p. 254.) 

As an initial matter, we reject Le’s apparent argument that reversal is 

warranted because the trial court failed to mention or expressly rule on the 

request for continuance in its order. A grant of summary judgment implies 

denial of a continuance request, and we may presume the denial was based 

on the reasons raised in opposition. (Frazee v. Seely (2002) 95 Cal.App.4th 

627, 634.) 

On this record, the trial court’s implicit denial of the request was not an 

abuse of discretion because the affidavit submitted by Le’s counsel failed to 

demonstrate the likelihood that facts essential to oppose the motion existed. 

Le’s counsel’s affidavit in support of the request for a continuance asserted

generally that the Regents’ discovery responses were inadequate, that no 

metadata or privilege log was ever produced, and asserted that it was likely 

there were withheld records directly relevant to Garcia Bedolla’s knowledge 

of Le’s EEOC complaint and her retaliation related to that knowledge. 

Counsel stated: “For example, by refusing to turn over numerous emails by 

and between the key witnesses in this case, including Dr. Garcia Bedolla and 

Dr. Lee, [the Regents] withheld key information regarding their knowledge of 

[Le]’s protected activity and their reactions to the same. Furthermore, 

without metadata, it’s impossible for [Le] to establish whether any of the 

electronic records have been tampered with. Without a privilege log, [Le] is 

unable to establish whether records were improperly withheld.” 

Le offers no support for her counsel’s bare assertion that the Regents

refused to turn over documents between key witnesses. In late August 2020, 
18

the Regents produced 635 pages of documents responsive to Le’s discovery

requests. Le’s counsel’s affidavit did not cite any particular discovery request 

for which documents were not produced, and the trial court was entitled to 

accept the declaration from the Regents’ counsel it was not withholding 

documents. Nor is there any reason for the court to assume that documents 

were withheld because neither metadata nor a privilege log were produced. 

Le points to no evidence in the record suggesting the Regents tampered with 

its electronic records or withheld responsive documents relevant to Garcia 

Bedolla’s knowledge on the basis of a privilege claim. (See § 2031.240, 

subd. (c)(1) [requiring a privilege log only if an objection is based on a claim of 

privilege].) On this record, the trial court’s implicit denial of a continuance 

was not an abuse of discretion.12 

D. Motion to Strike Portions of Le’s Reply Brief

We deferred consideration of the Regents’ motion to strike portions of 

Le’s reply brief until our decision on the merits. The Regents sought to strike 

portions of Le’s reply brief arguing that the Regents’ statement to Le in 

December 2015 that records of complaints she sought did not exist was an 

alleged adverse employment action rendering her DFEH complaint timely. 

We have considered both the Regents’ motion to strike and Le’s 

opposition, and conclude the motion to strike is meritorious. 

An appellant may serve an optional reply brief. (Cal. Rules of Court, 

rule 8.200(a)(3).) However, the general rule is that “ ‘ “points raised in the 

reply brief for the first time will not be considered, unless good reason is 

12 In addition, as the Regents asserts, in September 2020, Le’s counsel 

agreed to the continue the motion to compel hearing to be heard after the 

hearing on the motion for summary judgment, suggesting that even Le’s own 

counsel did not consider further responses or production of documents 

essential to oppose summary judgment. 
19

shown for failure to present them before.” ’ ” (Shade Foods, Inc. v. Innovative 

Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894–895, fn. 10.) 

As the California Supreme Court has explained, “Obvious reasons of fairness 

militate against consideration of an issue raised initially in the reply brief of 

an appellant.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, 

fn. 11; In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693.) Matters 

that are raised by an appellant for the first time in the reply brief are subject 

to a motion to strike. 

Le did not raise this issue in her opening brief, nor does she offer any 

reason it could not have been raised. Accordingly, the Regents’ motion to 

strike is granted, and we will not consider the argument that was not raised 

in Le’s opening brief on appeal. 

III. DISPOSITION

The judgment is affirmed. The Regents is entitled to costs on appeal.
20

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A162114

Le v. The Regents of the University of California