Filed 8/18/20 Obi v. Los Angeles County Sheriff’s etc. CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO


MARCEL OBI,                                                 B296553
                                                            (c/w B302219)
         Plaintiff and Appellant,
                                                            (Los Angeles County
         v.                                                 Super. Ct. No. BC650099)

LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT
et al.,

     Defendants and
Respondents.

      APPEAL from a judgment and order of the Superior Court
of Los Angeles County. Lia R. Martin, Judge. Affirmed.

    Mahoney Law Group, Anna Salusky Mahoney, Kevin
Mahoney and Joshua D. Klein for Plaintiff and Appellant.

    Gutierrez, Preciado & House, Calvin House and
Nohemi Gutierrez Ferguson for Defendants and Respondents.

                               _________________________
       In this employment case based on a host of allegations,
including race and national origin discrimination, retaliation,
and intentional infliction of emotional distress (IIED), defendants
Los Angeles County Sheriff’s Department (Department), Weng
Chua (Chua), and Steve Huynh (Huynh) (collectively
respondents) obtained summary judgment against plaintiff
Dr. Marcel Obi (Obi) based on the trial court’s conclusion that:
(1) there was no evidence that Obi suffered any actionable
adverse employment action; and (2) even if there were adverse
employment action that would otherwise be actionable, there was
no connection to “any sort of racial animus or national origin
animus.” Subsequently, the trial court awarded respondents
$13,191.95 in costs.
       Obi separately appealed from the judgment and the award
of costs. By order, the appeals were consolidated. We find no
error and affirm in all respects.
                               FACTS
Background
       Obi started working for the Department in 2000 as an
Information Systems Analyst II. In 2009, the Department
promoted him to Information Systems Supervisor II and he
supervised employees working in Web development.1 Obi had a
private office.
       From November 27, 2012, through December 31, 2014,
Stuart Suede (Suede) supervised Obi in the Data Systems
Bureau Data Center Administration Unit (Administration Unit).
During the time Suede supervised Obi, the Administration Unit


1    While the record indicates that Obi supervised multiple
employees, it does not indicate the number.




                                 2
oversaw the buildout project for the Data Center of the Sheriff
Communications Center Building (SCC). Suede was the project
manager.
       From 2012 until he retired in 2018, Captain Paul E. Drake
oversaw the Data Systems Bureau.
       In 2013, Chua became Obi’s second-level supervisor. On
August 21, 2014, Chua provided Obi with his 2013-2014
Performance Evaluation and rated him “Very Good” overall based
on his performance. At some point, Huynh became Obi’s first-
level supervisor.
       In 2014, Obi was reclassified and then reassigned to a new
position. He claims that this initiated ongoing discrimination
and other torts that were perpetrated mainly by Chua and
Huynh and that, as a result, he suffered a series of adverse
employment actions. He sued.
The Operative Complaint
       After Obi sued respondents, he eventually filed a second
amended complaint (SAC) which alleged the following causes of
action: (1) racial discrimination; (2) national origin
discrimination; (3) racial harassment; (4) national origin
harassment; (5) failure to prevent harassment and
discrimination; (6) negligent hiring, supervision, and retention;
(7) hostile work environment; (8) retaliation; (9) IIED; and
(10) retaliation in violation of Labor Code section 1102.5.
Relevant to his qualifications and background, he alleged that he
has a computer science Ph.D. in information systems, and he is
an African-American who is of Nigerian descent. As for the
events leading to his claims, he alleged: He was reclassified in
2014 to a different supervisory position and then reassigned. His
new job duties—which included managing generators, air




                               3
conditioning units, etc.—were unrelated to his previous job duties
and experience in Web development. He made multiple requests
for training in these new areas but his requests were denied. In
contrast, other supervisors who were reassigned to new positions
were provided with job-related training. Over the ensuing years,
inter alia, the Department gave Obi negative evaluations, treated
him differently than other supervisors, excluded him from
necessary training, transferred him from Norwalk to the SCC,
assigned him an unreasonable amount of work, threatened him
with demotion or discharge, and retaliated against him for
complaining about discrimination. Many of these actions were
taken by Chua and/or Huynh as managing agents of the
Department, and the Department’s actions were taken because of
Obi’s race and national origin.
The Motion for Summary Judgment; the Evidence
       Respondents moved for summary judgment or, in the
alternative, summary adjudication. The parties submitted
evidence related to the following topics.
       Job Reassignment Obi Claims was Adverse Employment
Action
       The Department decided to consolidate all information
technology resources under the Data Systems Bureau. The
consolidation resulted in the reclassification of employee titles.
Prior to reclassification, Huynh and Obi both held the title of
Information Systems Supervisor II. The top end of the monthly
salary range was $9,241.00. Initially, Huynh was reclassified to
Principal Operations Systems Analyst (POSA) but Obi was
reclassified to Principle Information Systems Analyst (PISA).
Obi considered this a demotion. Moreover, the top end of the
monthly salary range for a PISA was $9,128.18, less than for an




                                4
Information Systems Supervisor II, so Obi believed that he would
be paid less.2
       Obi asked Captain Drake and Suede to reclassify him as a
POSA, the same as Huynh. Per an e-mail to Obi from Suede,
“the reclass[ification] list was assembled by [Data Systems
Bureau] Operations, and vetted/approved by Captain Drake.”
Captain Drake reclassified Obi to POSA, which resulted in an
increase in his compensation. He sent an e-mail to Captain
Drake and others stating, “I would . . . like to officially thank the
Captain for finding the mistake and revising his earlier decision.”
As a POSA, Obi was responsible for infrastructure, such as
generators, air conditioning, electricity/power supplies, floor
tiling and cleaning. Captain Drake knew that Obi’s background
was in computers and software, and that he did not have an
electrical engineering background.
       Transfer Obi Claims was Adverse Employment Action
       On March 7, 2016, the Department transferred Obi from
the Norwalk Data Center to the SCC. Initially, Obi was the only
employee there. The October 11, 2017, Administration Unit
organization chart listed Sam Hallie (Hallie) and Chris Chiu
(Chiu) as employees under Obi’ supervision. Eventually, Chiu
was stationed at the SCC. On that same organization chart,
Kaiser Den was the only other POSA, and nine employees were
listed as being under his supervision.


2     At his deposition, Obi was asked whether he knew that
county policy would allow him to keep his current rate of pay
despite the reclassification to PISA. He replied, “It’s possible,”
and acknowledged that he did not ask the Department if he could
keep his same rate of pay.




                                  5
      Workspace Conditions at the SCC Obi Claims were Adverse
Employment Actions
      The SCC has no offices, so Obi was not given one.3 He
worked in a room with a C-shaped bench and had to use a
conference room to discuss performance evaluations with his
subordinates.
      When Obi arrived at the SCC, cameras had been installed
in the facility. Hallie, however, later installed a new camera near
the employee work station.4
      E-mails Obi Claims were Adverse Employment Actions
      In September 2014, Captain Drake e-mailed Obi: “I expect
you to [rise] to the occasion of your newly classified position. If
we determine that you [cannot] operate at this level, I will begin
the process to remove you. I expect a great deal from my
assigned principles. Your career path is only defined by you. If

3      Huynh declared, “Kaiser Den is a [POSA], which is [Obi’s]
job classification. Mr. Den is neither Nigerian nor black (African-
American) and functions without an office at the Norwalk facility.
The following 15 Data Service Bureau supervisors or above are
neither Nigerian nor black, and do not have an office: Mao Sok,
Ramon Sanonte, Jr., Chi Lam, Amir Hami, Justin Jereza, Thang
Uong, Romy Calderon, Daniel Cheng (recently retired), Areg
Sarkissian, Don Dizon, Sgt. Enrique Mandujan, Sochithra Thach,
Hua-Gon (Leo) Change, Christian Hai, and Angela Vargas.”
Below, Obi contended this information was misleading because
Kaiser Den and others have cubicles, and many of the others
have a lower job classification than Obi, such as PISA.

4     Huynh said the camera was pointed toward the entry, not
in the direction of Obi’s desk. Obi declared, “On September 7,
2017, [Huynh] directed the newly-installed camera to capture the
movements of myself and my subordinate, Chris Chiu, as we
walked around the SCC.”




                                6
you cannot [sic] [rise] to the occasion you will be replaced. [¶]
Good Luck!”
      In November 2014, via e-mail, a sergeant asked Chua,
Huynh, Suede, Obi and Hallie whether Watch Commanders
“working the bridge at [the SCC]” could monitor room
temperatures. Suede told Obi to respond to the sergeant, and Obi
asked Suede whether there was “a thermometer there before
construction[.]” Suede replied: “[Y]ou should know that before
construction is immaterial to [the sergeant’s] inquiry. There is a
thermometer in the CAD room[.] [T]he SCC [B]ridge [sic] will
take hourly walks in the [D]ata [C]enter to monitor temperature
and we concur that all personnel on the SCC Bridge will have
biometric access into the Data Center[.]” In response, Obi
defended the question he asked and wrote, in part, “The most
disturbing fact is that you humiliate me in front [of] my
subordinates[.] [F]or today it was [Hallie], which is one of the
reasons he has no respect for me[.]” Obi ended his e-mail by
stating: “I just hope you realize you are constantly harassing me
in many fronts and put a stop to it.”
      Performance Log Entries Obi Claims were Adverse
Employment Actions
      When a manager seeks to correct an employee, the
manager issues a Performance Log Entry (Log Entry). A Log
Entry can be used to reprimand employees, and it can be used to
discipline them. They are reviewed annually before employee
evaluations are written. After a year, a Log Entry is thrown
away.
      On March 12, 2015, Chua issued a Log Entry to Obi and
informed him: “You are a supervisor assigned to assist with the
infrastructure project at the SCC Data Center. On January 7,




                                7
2015, Supervisor [Huynh] sent you an e-mail that informed you
that there were lots of items on the SCC Data Center task list
that haven’t been updated and/or need follow up on. He
requested that you let he and I . . . know when the spread sheet
was updated and to complete any of the tasks that are on the list
and tasks that are not yet on the list. On March 12, 2015, after
Supervisor Huynh requested you take over this entire project, I
reviewed your progress on what was requested of you back on
January 7, 2015 and discovered little to no progress on
completing task items and/or following up on task items. This is
a violation of MPP 3-01/050.10 Performance to Standards and 3-
01/030.10 Obedience to Laws, Regulations, and Orders. Any
further violations expose you to discipline, including and up to
demotion and/or discharge.”
       Between March 2015 and July 2017, Obi received
approximately 40 Log Entries from Chua and Huynh. The Log
Entries warned Obi that further violations would expose him to
discipline; “demotion and/or discharge;” “Departmental action;”
and/or “further administrative action.”
       At one point, Chua issued a Log Entry because Obi failed to
send e-mails, something Chua had never done for another
employee. Lieutenant Brian Yanagi testified that it is uncommon
to create a Log Entry “for an employee missing an e-mail with a
task[.]” In general, he testified that he has never seen an
employee with so many Log Entries and acknowledged that
receiving that amount may be “stressful” and “can seem punitive”
even though “the idea is to afford the employee the information
necessary to make the adjustments to meet expectations.”
       Chua and Huynh have never given 30 or more Log Entries
to another employee. Since March 25, 2015, Huynh did not issue




                                8
a Log Entry to anyone other than Obi. From 2007 to March 2015,
Chua issued only two Log Entries to subordinates for missing
tasks.
       Performance Expectation Plans Obi Claims were Adverse
Employment Actions
        If a Log Entry does not result in improved performance,
the Department will proceed with a Performance Expectation
Plan (Expectation Plan).
       On March 25, 2015, Chua issued an Expectation Plan and
informed Obi he could not delegate tasks to subordinates without
approval from Huynh or Chua.5 Lieutenant Yanagi never saw
this instruction given to another employee. Pursuant to the
Expectation Plan, Obi was supposed to be evaluated on a weekly
basis. Obi was the only employee that Chua and Huynh ever
subjected to weekly monitoring, and the only supervisor ever
instructed to seek permission before delegating tasks to
subordinates. Chua did not issue an Expectation Plan to anyone
other than Obi. Since March 25, 2015, Huynh did not give an
Expectation Plan to anyone other than Obi.
       On February 14, 2017, Obi received an Expectation Plan
that threatened him with discipline if he failed to perform.
       Daily Logs Obi Claims were Adverse Employment Actions
       In March 2015, Huynh started keeping daily logs relating
to Obi. The comments were mostly negative with less than
10 percent being positive. Huynh kept logs for two other

5     Obi says the Expectation Plan contains “numerous, onerous
restrictions” that made the Expectation Plan unfair and
unattainable but does not identify what he considers numerous,
onerous restrictions other than his inability to freely delegate
work.




                               9
employees and, as to them, only made negative comments once or
twice per year. From April 3, 2015, to April 22, 2015, Chua
documented Obi’s daily activities, something Chua had never
done with another employee.
       The Assignment Obi Claims was an Adverse Employment
Action
       Huynh assigned Obi as the project manager and technical
supervisor for the implementation of a new Microsoft HyperV
cluster (HyperV).6 Huynh and Chua estimated that it would take
three uninterrupted weeks for Obi to complete. However, Huynh
gave Obi three months. He refused to attend HyperV meetings,
claiming that they constituted harassment and the project was
fake. On November 22, 2017, Huynh notified Obi he was being
removed from the project.
       Level of Training Obi Claims was an Adverse Employment
Action
       In April 2014, Obi attended training for computer room air
conditioning equipment. From September 26, 2016, to
September 30, 2016, Obi attended training for the HyperV
project.
       “Supervisors that were placed into a new position [because]
of the reclassification study did not receive training as the result
of the change in title. . . . Nonetheless, [Obi] was offered various
trainings after his position was reclassified.” At one point, Obi
went to the Uninterrupted Power Supply training. But he
declared that the “training was intended for individuals with an


6     Obi contends that the project required at least 10 people
but he was the only person assigned to it. His record citations do
not support his contention.




                                10
electrical engineering background. I was only present as an
observer, as I do not have a background in electrical
engineering.” In his deposition, Obi indicated he did not want to
participate in the HyperV project because he was not given
“appropriate training.”
       Other Events Obi Claims were Adverse Employment Actions
Because they Undermined Him as a Supervisor
       When Obi wrote a Log Entry for a subordinate who did not
complete a task, Chua and Huynh objected. A subordinate
named Lynne Gipson (Gipson) was present at a meeting where a
Log Entry for Obi was discussed, and then Gipson typed it up and
signed it along with other participants. In March 25, 2015,
Huynh, Chua, Lieutenant Yanagi and Gipson met with Obi and
discussed his three-month performance expectations with him.
       Certain Evidence Cited by Obi to Prove Discriminatory or
Retaliatory Motivation for the Employment Actions
       Obi is the only supervisor at the Data Systems Bureau who
is Nigerian and/or Black.
       One day in 2014 or 2015 when Obi walked into Chua’s
office for a meeting, he overhead Huynh say, “Because [Obi] has a
Ph.D., he thinks he can rule the world,” and Chua replied, “He
wants everything[.] [W]hat does he get from his country[?]”
When Obi entered, Chua and Huynh stopped laughing and
talking. Per Obi, this event happened around the same time that
he was asking for training and to get his private office back.
The Trial Court’s Ruling; Judgment
       The trial court granted the summary judgment motion
because, inter alia, respondents did not take adverse employment
action against Obi and, regardless, there was no connection
between the Department’s various actions and racial and/or




                               11
national origin animus. Subsequently, the trial court entered
judgment.
      Obi appealed.
The Cost Award
       On March 25, 2019, respondents served a memorandum of
costs seeking $15,423.06. In response, Obi filed a motion to tax
$2,231.11 in costs for court reporter fees for transcripts not
ordered by the trial court, photocopies for deposition exhibits, and
requests for medical records. Respondents filed a motion for
$629,688.06 in attorney fees and costs under Government Code
section 12965, subdivision (b), claiming the California Fair
Employment and Housing Act (FEHA) claims were frivolous.
Also, they filed a nonopposition to the motion to tax costs and
agreed to have them reduced to $13,191.95. Obi opposed the
motion for attorney fees and costs. As for the costs, he noted that
he previously filed a motion to tax costs and offered no new
argument. On June 27, 2019, the trial court denied the requested
attorney fees based on a finding that the FEHA claims were not
frivolous. But it noted that there were nonFEHA related claims
and then stated that respondents’ costs would be determined at
the hearing on the motion to tax.
       On September 24, 2019, in a reply in support of his motion
to tax costs, Obi asked the trial court to strike all costs based on
its previous finding that the action was not frivolous. In the
alternative, it asked the trial court to award only those costs that
could be allocated to the nonFEHA related claims. Respondents
filed a sur-reply and argued that Obi’s effort to tax all the costs
was late because the reply was not served and filed within 15
days after service of the cost memorandum. They also pointed
out that Obi had nonFEHA related claims.




                                12
       The trial court granted the motion to tax $2,231.11 in costs.
Regarding all other costs, the trial court noted that in the three
months after it denied attorney fees, “[Obi] neither request[ed]
leave to amend the memorandum of points and authorities in
support of [his] motion [and] raise [a new] argument nor notified
[respondents] that he was withdrawing from the stipulation. . . .
[Obi] has waived and is estopped from raising [a new] argument
by his conduct.”7
       Obi appealed.
                             DISCUSSION
       Obi contends: (1) the trial court abused its discretion when
ruling on evidentiary objections; and (2) there are triable issues
as to the first, second, fifth, eighth, ninth and tenth causes of
action because the Department engaged in actionable adverse
employment actions against him due to his race and national
origin. We disagree.
I. Standard of review.
       Our review of an order granting summary judgment is
de novo. (Garrett v. Howmedica Ostenics Corp. (2013) 214
Cal.App.4th 173, 181.) In contrast, we review evidentiary rulings
related to summary judgment motions for an abuse of discretion.
(Alexander v. Scripps Memorial Hospital La Jolla (2018) 23
Cal.App.5th 206, 226.)
       When determining whether summary judgment was
correct, “we follow the traditional three-step analysis. ‘We first
identify the issues framed by the pleadings, since it is these
allegations to which the motion must respond. Secondly, we
determine whether the moving party has established facts which

7     There was no stipulation between the parties.




                                13
negate the opponents’ claim and justify a judgment in the
movant’s favor. Finally, if the summary judgment motion prima
facie justifies a judgment, we determine whether the opposition
demonstrates the existence of a triable, material factual issue.
[Citation.]’” (Shamsian v. Atlantic Richfield Co. (2003) 107
Cal.App.4th 967, 975.)
       Generally, an award of costs will not be reversed except for
an abuse of discretion. (Sviridov v. City of San Diego (2017) 14
Cal.App.5th 514, 519.) But whether an award of costs is
authorized is a question of law subject to de novo review. (Bustos
v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 369, 375.) In
contrast to the foregoing, waiver and estoppel are questions of
fact that are reviewed pursuant to the substantial evidence test.
(Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053; Attard v.
Board of Supervisors of Contra Costa County (2017) 14
Cal.App.5th 1066, 1080.)
       Even if there is error, we will not reverse a judgment or
order unless we find a prejudicial miscarriage of justice. A
miscarriage of justice will not be found unless it is reasonably
probable that, absent the error, the appellant would have
obtained a more favorable result. (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 822–823.)
II. Evidentiary objections.
       Though Obi identifies the first issue on appeal as “whether
the trial court abused its discretion in sustaining the
Department’s objections to certain evidentiary matters,” neither
the discussion section in his opening brief nor the one in his reply
brief contain a heading or subheading or any discussion
pertaining to this topic.




                                14
        In the opening brief, Obi sets forth the standard of review
for evidentiary rulings in summary judgment proceedings and
then, in a footnote, states, “The specific evidentiary rulings that
[Obi] challenges on appeal are discussed within the facts and will
not be repeated.”
        A review of the statement of facts reveals that there are
two footnotes which argue that the trial court abused its
discretion when it sustained objections to paragraphs 7 and 8 of
Obi’s declaration. While Obi provides record citations to the
Department’s objections as well as the rulings and then offers
ipse dixit argument that the trial court committed error, he does
not provide any legal citations or otherwise attempt to apply the
relevant law to the facts. We conclude that Obi waived his
arguments for multiple reasons. First, every brief must state
“each point under a separate heading or subheading
summarizing the point, and support each point by argument and,
if possible, by citation of authority.” (Cal. Rules of Court, rule
8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of
Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17.) Second,
“[i]t is not our responsibility to develop an appellant’s argument.”
(Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th
1190, 1206, fn. 11.) Third, respondents did not discuss the
evidentiary rulings and it would be unfair to them to consider
those rulings when Obi did not present them in the proper
fashion. Fourth, Obi does not explain how he was prejudiced by
these rulings.




                                 15
III. First and Second Causes of Action for Race and
National Origin Discrimination Under the FEHA; Eighth
Cause of Action for Retaliation Under the FEHA; Tenth
Cause of Action for Retaliation in Violation of Labor Code
Section 1102.5.
       A. Legal Principles.
             1. Discrimination.
       Under the FEHA, it is unlawful for an employer to
discriminate against a person in the terms, conditions, or
privileges of employment, because of race or national origin.
(Gov. Code, § 12940, subd. (a).) Typically, the plaintiff in an
employment discrimination case based on disparate treatment
relies on circumstantial evidence. In such instances, there is a
three-stage burden-shifting test. (Guz v. Bechtel National Inc.
(2000) 24 Cal.4th 317, 354 (Guz).) As a threshold matter, the
plaintiff must prove a prima facie case of discrimination. (Heard
v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735,
1751.) If the plaintiff does so, the burden shifts to the defendant
to proffer a nondiscriminatory reason for its action. (Ibid.) If
that burden is met, the plaintiff must show by a preponderance of
the evidence that the reasons offered by the defendant were a
pretext for discrimination.8 (Id. at pp. 1749, 1750.) With respect
to summary judgment motions by employers, this framework is
reordered under our case law. (Kelly v. Stamps.com Inc. (2005)
135 Cal.App.4th 1088, 1097.) An employer must show “either
that one or more elements of the prima facie case ‘is lacking, or


8      The parties argue whether the Department’s reasons for its
action were a pretext. Because the trial court did not reach that
issue, we decline to consider it.




                                16
that the adverse employment action was based on legitimate
nondiscriminatory factors.’ [Citations.] [If] the employer
[succeeds], the burden shifts to the plaintiff to produce
‘“substantial responsive evidence” that the employer’s showing
was untrue or pretextual.’ [Citations.]” (Soria v. Univision
Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591–592.)
       “The specific elements of a prima facie case may vary
depending on the particular facts.” (Guz, supra, 24 Cal.4th at
p. 355.) Generally, a prima facie case is established by evidence
that the plaintiff was a member of a protected class; he or she
was qualified for the position sought or was performing
competently in the position he or she held; he or she suffered an
adverse employment action; and circumstances suggest
discriminatory motive. (Ibid.)
       In Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028
(Yanowitz), the court explained that the determination of what
type of adverse treatment should be considered discrimination is
not susceptible to a mathematically precise test, and the legal
significance of an employer’s actions must be evaluated by taking
into account the legitimate interests of both the employer and the
employee. Relatively trivial actions that are “reasonably likely to
do no more than anger or upset an employee cannot properly be
viewed as materially affecting the terms, conditions, or privileges
of employment and are not actionable, but adverse treatment
that is reasonably likely to impair a reasonable employee’s job
performance or prospects for advancement[] or promotion falls
within the reach of the antidiscrimination provisions of” the
FEHA. (Id. at pp. 1054–1055.)
       “When a plaintiff alleges a series of actions that comprise a
course of conduct, we need not examine each individually.




                                17
Instead, we consider the totality of the circumstances to
determine whether the plaintiff has suffered an adverse
employment action. ‘[T]here is no requirement that an
employer’s retaliatory acts constitute one swift blow, rather than
a series of subtle, yet damaging, injuries. [Citations.] Enforcing
a requirement that each act separately constitute an adverse
employment action would subvert the purpose and intent of the
statute.’ [Citation.]” (Light v. Department of Parks & Recreation
(2017) 14 Cal.App.5th 75, 92 (Light).)
             2. Retaliation.
       A retaliation claim under Government Code section 12940,
subdivision (h) is analyzed using the same burden shifting
framework as a discrimination claim. To establish a prima facie
case, a plaintiff must show: he or she engaged in protected
activity, the employer subjected the employee to adverse
employment action, and there is a causal link between the two.
(Yanowitz, supra, 36 Cal.4th at p. 1042.) A retaliation claim
based on Labor Code section 1102.5 follows suit. (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287; Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 68
[applying the same analysis to FEHA and Lab. Code, § 1102.5
retaliation claims].)
             3. Relevance of Federal Cases.
       “Because the objectives and wording of Title VII of the Civil
Rights Act of 1964 [citation] are similar to that of [the] FEHA,
California courts often look to federal cases for assistance in
interpreting [the] FEHA. [Citation.]” (Sheffield v. Los Angeles
County (2003) 109 Cal.App.4th 153, 160.)




                                18
       B. Analysis of Employment Actions.
             1. Job Reassignment; Transfer; Workspace.
       Obi contends that he suffered an adverse employment
action when he was reassigned from Web development to
overseeing infrastructure such as air-conditioning because the
position was less desirable given his background and experience.
But he does not establish this as true because he has not
presented us with all the relevant circumstances regarding the
Data Systems Bureau and/or the Administration Unit.
Presumably, he wanted to continue working in Web development,
or in a capacity that would allow him to use his education in
computer science. But he asked to be reclassified as a POSA—
which resulted in an increase in his compensation—and he offers
no evidence that there was an available POSA position that
would have allowed him to work in his preferred field.9 Also, it
cannot be ignored that he did not want to be a PISA. Though a
“job reassignment may be an adverse employment action when it
entails materially adverse consequences” (Simers v. Los Angeles
Times Communications LLC (2018) 18 Cal.App.5th 1248, 1279),
we have no basis to conclude that Obi’s reassignment was
materially adverse by any pertinent metric. Moreover, case law
explains that a change that is merely contrary to an employee’s
desires is insufficient to be adverse. (McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)
“‘“[W]orkplaces are rarely idyllic retreats, and the mere fact that


9      The October 11, 2017, Administration Unit organization
chart lists only three supervisors on the same level as Obi: two
POSAs (Obi and Kaiser Den) and a DBA (Mao Sok). The level
above Obi, “I.T. Spec I,” lists Huynh and Bryan Fong. Above that
level is an “I.T. Spec II” (Chua) and an “OA II” (Spring Sheng).




                                19
an employee is displeased by an employer’s act or omission does
not elevate that act or omission to the level of a materially
adverse employment action.”’” (Ibid.)
      Though he suggests otherwise, Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th
359 (Horsford) does not dictate a conclusion that favors Obi. The
court explained that “[w]hen a police lieutenant . . . is removed
from his former position near the top of the department’s chain of
command, and then is removed entirely from law enforcement
duties, the objective terms and conditions of employment have
been adversely affected. When that same veteran police
administrator is transferred to head a department in which he
has no training or expertise (and in which position he was
inferably expected to fail), the terms and conditions of
employment have been adversely changed.” (Id. at p. 374.) Here,
Obi was not removed, he was reclassified as a POSA at his
request when the Department reorganized, and there is no
indication in the record he could have continued in Web
development while working as a POSA.
      He objects to his transfer to the SCC, calling it an
undesirable location. Based on what he has told us, however, we
cannot assess why this was materially adverse. He was sent
there as a POSA, a reclassification he requested. Obi’s briefs do
not inform us whether, as a POSA, there was an available
position for him in Norwalk. He cites Milano v. Aguilerra (S.D.
Cal., Mar. 8, 2013) 2013 U.S. Dist. LEXIS 32797, *26, for the
proposition that a transfer against an employee’s wishes “can be
viewed as an adverse action. [Citation.]” We have no dispute
with this observation. But it does not, by itself, provide a
foothold for finding that the transfer to the SCC was adverse




                               20
action. Simply put, context matters, and Obi has not provided
sufficient context to bring his argument home.
        Though Obi lost his private office, he has not sufficiently
painted the picture for us to determine whether that was simply
part and parcel with his job reassignment and relocation, which
he has not shown were adverse. If it was, we cannot separate
them analytically. Further, Obi has not provided evidence that
others in his position had private offices and that he, therefore,
was denied a privilege, and that this impaired his chances for
advancement or promotion because his lack of an office would be
viewed as a negative.
              2. E-mails; Log Entries; Expectation Plans; Daily
Logs.
        Obi maintains that the e-mails from supervisors, Log
Entries, Expectation Plans and daily logs pertaining to him
constitute negative evaluations and qualify as adverse
employment actions. For the sake of argument, we accept that
they are evaluations. But we cannot accept that they qualify as
adverse employment actions under the FEHA.
        “[A] mere oral or written criticism of an employee . . . does
not meet the definition of an adverse employment action under
[the] FEHA. [Citations.]” (Akers v. County of San Diego (2002)
95 Cal.App.4th 1441, 1457 [citing Title VII law].) But “[a]n
unfavorable employee evaluation may be actionable where the
employee proves the ‘employer subsequently use[d] the
evaluation as a basis to detrimentally alter the terms or
conditions of the recipient’s employment.’ [Citations.] Thus,
. . . where the employer wrongfully uses the negative evaluation
to substantially and materially change the terms and conditions
of employment, this conduct is actionable.” (Ibid.; see also Brooks




                                 21
v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929 [“an
undeserved negative performance review” can constitute an
adverse employment decision].)
       Obi does not posit that these evaluations were used to
substantially and materially change the terms and conditions of
his employment in a manner that would impair a reasonable
employee’s job performance or prospects for advancement or
promotion. In contradictory fashion, he states: “[D]espite the
barrage of negative evaluations, [he] consistently received
positive performance reviews between 2013 and 2017[.]” Because
Obi has not provided a cogent argument, this issue requires no
analysis.10
             3. Amount and Reasonableness of Work.
       Obi argues that the Department took adverse employment
action by giving him an unreasonable amount of work. Per Obi,
the proof is that the Department issued an Expectation Plan that
precluded him from delegating tasks to subordinates without
prior approval from Chua or Huynh; it issued an Expectation
Plan that imposed numerous, onerous restrictions; and Chua and
Huynh assigned the HyperV project to Obi even though he had a
full work load and no experience with HyperV.
       We accept that extra work can impair a reasonable
employee’s job performance. As the Ninth Circuit has held,
“Assigning more, or more burdensome, work responsibilities, is
an adverse employment action.” (Davis v. Team Elec. Co. (2008)

10    Obi contends that his evaluations were baseless. Though it
is moot, he suggests that he was performing competently. He did
not, however, allege this in the SAC. In the SAC he alleged, and
on appeal he now argues, that he did not receive proper training.
If he was performing competently, then how could he have been
deprived of necessary training?




                               22
520 F.3d 1080, 1089.) The question remains whether Obi was, in
fact, assigned extra work.
       The fact that Obi needed approval to delegate tasks to
subordinates is not proof that he was ever denied approval and
therefore had extra work. Obi has not identified the numerous,
onerous restrictions of which he complains, nor has he explained
how they added to his work load. That leaves us with the
HyperV project. But he refused to work on that project and was
eventually removed from it. Thus, the HyperV project could not
have led to extra work and therefore could not have impaired
Obi’s performance.
              4. Threats.
       Obi argues that the numerous statements that he would be
demoted or removed if he did not perform amounted to adverse
employment action. His argument must be rejected because the
two cases he relies on are inapposite.
       First, he cites Brodheim v. Cry (9th Cir. 2009) 584 F.3d
1262, 1270, a case in which an inmate sued a prison official for
retaliating against him for exercising his First Amendment right
to petition the government for redress of grievances. The court
stated, inter alia, “[T]he mere threat of harm can be an adverse
action, regardless of whether it is carried out because the threat
itself can have a chilling effect.” (Id. at p. 1270.) Given that this
holding is not related to a Title VII claim, it is not relevant to our
analysis of the FEHA.
       Second, he cites Yanowitz. It involved a manager who
refused to carry out an order from a male supervisor to fire a
female sales associate because she was not sufficiently attractive.
Due to her refusal, the manager was subjected to “heightened
scrutiny and increasingly hostile adverse treatment that




                                 23
undermined her relationship with the employees she supervised
and caused severe emotional distress that led her to leave her
position.” (Yanowitz, supra, 36 Cal.4th at p. 1035.) She sued for
retaliation for acting to protect FEHA rights. (Ibid.) The court
stated that “[m]onths of unwarranted and public criticism of a
previously honored employee, an implied threat of termination,
contacts with subordinates that only could have the effect of
undermining a manager’s effectiveness, and new regulation of
the manner in which the manager oversaw her territory” were
meant to punish the manager and put her career in jeopardy.
(Id. at p. 1060.) The court then stated that “[a]ctions that
threaten to derail an employee’s career are objectively adverse.”
(Ibid.) Yanowitz did not examine whether nonpublic statements
by supervisors to an employee about the consequences of failure
to perform legitimate tasks constitute adverse action under the
FEHA, and its holding therefore offers us no guidance.
             5. Loss of Supervisory Authority.
       Obi suggests that he suffered adverse action because he
was deprived of supervisory authority when: Suede criticized
him in an e-mail shared with Hallie, a subordinate; Chua issued
an Expectation Plan that precluded him from delegating tasks to
subordinates without approval from Chua or Huynh; Chua and
Huynh permitted Gipson, a subordinate, to participate in the
creation of a Log Entry for him; Chua and Huynh objected when
he wrote a Log Entry for a subordinate; Chua and Huynh
transferred him to the SCC where he eventually supervised only
one subordinate; and they deprived him of his private office.
       The one case Obi cites is Lelaind v. City & County of
San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079. Relevant
here, the manager in the case had criticized a supervisor for




                               24
months for not knowing how to handle her crew, rescheduled
members of her crew, undermined her authority, and shut her
out of meetings. (Id. at pp. 1097–1098.) The federal district
court judge concluded there was a triable issue as to whether a
manager took adverse action against a supervisor that could
“negatively and materially affect[] [her] authority and
effectiveness as a manager as well as her ability to acquire and
develop skills to advance up the career ladder.” (Id. at p. 1098.)
       We conclude that the criticism of Obi in Suede’s e-mail was
too isolated and trivial to be sufficiently adverse. Also, there is
no indication that Gipson worked under Obi’s supervision, and
that her participation in creating a Log Entry for Obi
undermined his supervisory authority over his own subordinates.
The facts are not developed thoroughly enough for us to
determine whether Chua's and Huynh's objection to the Log
Entry authored by Obi can be construed as sufficiently adverse.
And, as we have previously indicated, Obi has not shown that his
transfer to the SCC and loss of a private office amount to
actionable adverse employment action under the FEHA.
       This leaves us with the Expectation Plan that prohibited
Obi from delegating tasks without approval. Conceivably, this
action could be adverse. But, as we discussed in part III.B.2. of
the Discussion, Obi has not explained how this could impair his
prospects for advancement or promotion. As he admits, he
received positive performance reviews. He provides no record
citations indicating that the Expectation Plan will remain in his
personnel file or otherwise cause him problems.




                                25
             6. Level of Training.
      Though the record indicates that Obi received at least some
training, he maintains that he was denied training and that the
Department set him up to fail.
      In support, Obi relies on Light. It held that “the denial of
previously promised training and the failure to promote may
constitute adverse employment actions” (Light, supra, 14
Cal.App.5th at p. 93) under the following facts. After an
employee refused to divulge what she discussed with
investigators regarding a colleague’s discrimination and
harassment claims against a supervisor, that supervisor isolated
the employee, moved her to a different office, verbally and (to
some extent) physically attacked her during a confrontation, and
told her she could not work in his department when her current
out-of-class assignment ended. Also, a different colleague
rescinded the offer to train the employee for a technician position,
and she was later rejected for promotion to that very position
despite having previously served in it during an out-of-class
assignment. Her department ultimately left the position vacant
despite calling it mission critical. Then, her department reduced
her hours to zero. (Id. at pp. 92–93.)
      Light is not on point. Obi has not alleged or offered
evidence indicating that he was denied specified training that he
needed to succeed or advance. Though he vaguely suggests he
was adversely impacted by not receiving training, he also
contends that he was performing competently. His briefs are
internally inconsistent.
      At points in his appellate briefs, Obi implies that he should
have received HyperV training. But the record indicates he was
given or offered training and he simply deemed it inappropriate




                                26
because he was not an electrical engineer. He does not contend
that the Department should have sent him to engineering school,
or that he was willing to go. Whether there is different HyperV
training he thinks he should have been offered, we are left to
speculate. Regardless, HyperV was merely one project, and he
refused to participate, calling it fake. Also, his refusal did not
change his performance rating.
       Simply put, Obi has not offered evidence of specific training
that he was denied, nor has he offered evidence that the denial
was detrimental to his career.
             7. Totality of the Circumstances.
       Regarding the totality of the circumstances, all Obi argues
is this: “Considering [his] evidence collectively, under a totality-
of-the circumstances approach, it is evident that he has satisfied
the minimal requirement of demonstrating a prima facie case
that the Department engaged in numerous adverse employment
actions.” His argument is a “general assertion, unsupported by
specific argument.” (People v. Stanley (1995) 10 Cal.4th 764,
793.) He “apparently assum[es] this court will construct a theory
supportive of his” appeal, but that “is not our role.” (Ibid.) “One
cannot simply say the court erred, and leave it up to the appellate
court to figure out why. [Citation.]” (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368.)




                                27
       C. Link to Racial or National Origin Animus.
       Having concluded that there were no adverse employment
actions, we need not consider whether anything the Department
did is linked to proscribed animus.
IV. Fifth Cause of Action for Failure to Prevent
Discrimination; Ninth Cause of Action for IIED.
       Obi argues that if we find triable issues as to race and
national origin discrimination, then there are triable issues as to
failure to prevent discrimination and IIED because they are
based on the same facts. For the reasons previously discussed,
there are no triable issues.
V. Costs.
       Obi challenges the cost award on the initial theory that a
trial court cannot award costs to a prevailing defendant on FEHA
causes of action unless the trial court finds that those causes of
action were frivolous. (Gov. Code, § 1265, subd. (b); Williams v.
Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115.)
Here, the trial court previously and specifically found that those
causes of action were not frivolous.
       This challenge faces two insurmountable hurdles.
       First, in a mixed case involving both FEHA causes of action
and nonFEHA causes of action and a finding that the former
cannot be called frivolous, a trial court can still award costs that
are allocable to the nonFEHA claims. (Roman v. BRE Properties,
Inc. (2015) 237 Cal.App.4th 1040, 1062.) Obi has not established
that the trial court did not or could not allocate all costs to the
nonFEHA causes of action, namely the sixth cause of action for
negligent hiring, supervision, and retention, the ninth cause of
action for IIED, and the tenth cause of action for retaliation in
violation of Labor Code section 1102.5. If an argument is not




                                28
made, it is waived. (Tan v. California Fed. Sav. & Loan Assn.
(1983) 140 Cal.App.3d 800, 811.) We observe that at least the
ninth and tenth causes of action are arguably based on the same
facts as the FEHA causes of action and would have triggered the
same litigation expenses. If that is true, then the respondents
would have incurred all the same costs for filing fees, motion fees,
etc., even if Obi had not alleged any FEHA causes of action. And
if that is true, all costs could have been allocated to the nonFEHA
causes of action. Consequently, Obi has not shown that the trial
court erred or, if it did err, that he suffered prejudice as a result.
       Second, the California Rules of Court provide that a
prevailing party who claims costs must serve and file a cost
memorandum. Any notice of motion to strike or tax costs must be
filed 15 days later. The party claiming costs and the party
contesting costs may agree to extend the time for serving a
motion to tax or strike costs. In the absence of an agreement, the
trial court may extend the time for a period not to exceed 30 days.
When the time for a determination of that motion has passed, the
clerk must enter costs on the judgment. (Cal. Rules of Court,
rule 3.1700.) The failure to file a motion to tax costs constitutes a
waiver of the right to object. (Douglas v. Willis (1994) 27
Cal.App.4th 287, 289 (Douglas).)
       Because Obi only challenged a fraction of costs in his notice
of motion, it stands to reason under Douglas that he waived his
challenge to the other costs. Obi offers no legal citations or
argument establishing that he could, by right, ask to strike all
requested costs in a reply brief when his notice of motion to tax
costs and his initial moving papers only sought to strike a
fraction of the costs. Moreover, he provides no discussion of
whether substantial evidence supported the trial court’s findings




                                 29
of waiver and estoppel. “It is not our responsibility to develop an
appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp.,
supra, 100 Cal.App.4th at p. 1206, fn. 11.) Undeniably, Obi has
not demonstrated error or that he was prejudiced if in fact the
trial court did err.
       In seeking reversal, Obi also contends that the finding that
the FEHA causes of action were not frivolous triggered the
collateral estoppel and law of case doctrines and compelled the
trial court to deny all costs.
       We disagree.
       Collateral estoppel only arises when an issue was decided
in a prior proceeding and a party seeks to relitigate it in a
subsequent proceeding. The decision in the prior proceeding
must be final and on the merits. (Gikas v. Zolin (1993) 6 Cal.4th
841, 849.) Here, Obi does not establish that the ruling on
respondent’s motion for attorney fees and costs occurred in a
prior proceeding as opposed to the same proceeding as the ruling
on the motion to tax costs. Also, Obi does not establish that the
ruling on respondent’s motion for attorney fees and costs was
final at the time of the later hearing. Regardless, what the trial
court ruled with respect to the FEHA causes of action at a
previous hearing has no impact on costs as they relate to the
nonFEHA causes of action.
       “Under the law of the case doctrine, when an appellate
court ‘“states in its opinion a principle or rule of law necessary to
the decision, that principle or rule becomes the law of the case
and must be adhered to throughout [the case’s] subsequent
progress, both in the lower court and upon subsequent
appeal. . . .”’ [Citation.] . . . As its name suggests, the doctrine
applies only to an appellate court’s decision on a question of law;




                                 30
it does not apply to questions of fact.” (People v. Barragan (2004)
32 Cal.4th 236, 246.) Contrary to what Obi suggests, the law of
the case doctrine does not apply to trial court rulings in
California. (People v. Sons (2008) 164 Cal.App.4th 90, 100.)11 As
one court further explained, “The rulings of a trial court during
an earlier stage in the proceeding are not conclusive.” (Ball v.
County of Los Angeles (1978) 82 Cal.App.3d 312, 325, fn. 1.)
Thus, the trial court’s ruling on the motion for attorney fees and
costs was not law of the case. But even if it was, it would not
impact the trial court’s ability to allocate all costs to the
nonFEHA related causes of action and then award those costs.
      All other issues are moot.




11     To establish that the law of the case doctrine applies to
trial court rulings, Obi cites Musacchio v. United States (2016)
136 S.Ct. 709, 716 and United States v. Alexander (9th Cir. 1997)
106 F.3d 874, 876. Neither case stands for that proposition.
Even if they did, it would be irrelevant. Obi offers no explanation
as to why federal law is applicable. We conclude that this is a
matter of state law, not federal law, because the law of the case is
a judicially created doctrine. Moreover, it does not implicate any
issues under the United States Constitution.




                                31
                          DISPOSITION
       The judgment and cost order are affirmed. Respondents
shall recover their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                               _____________________, Acting P. J.
                               ASHMANN-GERST


We concur:



________________________, J.
CHAVEZ



_______________________, J.
HOFFSTADT




                                32
