Filed 6/29/26 Huynh v. City and County of S.F. CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
FREDERICK HUYNH,
Plaintiff and Appellant,
A174269
v.
CITY AND COUNTY OF SAN (San Francisco City &
FRANCISCO, County
Super. Ct. No. CGC-23-
Defendant and
610509)
Respondent.
Frederick Huynh appeals from a judgment in favor of the
City and County of San Francisco (City) following a bench trial in
which the court found Huynh failed to prove his claim against the
City under the Moore-Brown-Roberti Family Rights Act (Gov.
Code, § 12945.1 et seq.; CFRA). Huynh contends the trial court
judge had cognitive challenges that impacted his ability to
understand the scope of Huynh’s claim, substantial evidence does
not support many of the trial court’s findings, and the trial court
erred in many of its conclusions of law. We find no error
warranting reversal and will affirm.
1
BACKGROUND
I. Legal Background
“The CFRA entitles eligible employees to take up to 12
unpaid workweeks in a 12-month period for family care and
medical leave to care for their children, parents, or spouses, or to
recover from their own serious health condition. [Citations.] An
employee who takes CFRA leave is guaranteed that taking such
leave will not result in a loss of job security or other adverse
employment actions. [Citations.] Upon an employee’s timely
return from CFRA leave, an employer must generally restore the
employee to the same or a comparable position.” (Rogers v.
County of Los Angeles (2011) 198 Cal.App.4th 480, 487.)
“Violations of the CFRA generally fall into two types of claims:
(1) ‘interference’ claims in which an employee alleges that an
employer denied or interfered with her substantive rights to
protected medical leave, and (2) ‘retaliation’ claims in which an
employee alleges that she suffered an adverse employment action
for exercising her right to CFRA leave.” (Id. at pp. 487–488.)
II. Factual Background
We present the facts relevant to resolution of Huynh’s
arguments on appeal in the manner most favorable to the trial
court’s judgment and resolve all conflicts and draw all inferences
in favor of City as the respondent. (Altavion, Inc. v. Konica
Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 35.)
In 2018, Huynh began working as a journey-level industrial
hygienist in the City’s Department of Public Health,
2
Occupational Safety and Health division (OSH). His initial
supervisor was Karen R., a senior industrial hygienist.
Edward Ochi had been an industrial hygienist in OSH,
transferred out of OSH for a number of years, progressed to
senior industrial hygienist, and eventually returned to OSH as
its director in May 2019. When Ochi started as the director of
OSH, he brought with him from his previous office a flat metal
pry bar that he used as a gavel, as a joke. Within a week of Ochi
using the bar in OSH meetings, someone commented that it made
them uncomfortable, so Ochi promptly quit using it.
Ochi’s initial impression of Huynh was that Huynh was too
narrowly focused on the specialty area of industrial hygiene
dealing with office ergonomics. Ochi discussed these concerns
with Huynh at the time. Ochi also told Huynh’s supervisor,
Karen R., that he did not think Huynh was meeting performance
expectations because Huynh could not handle all of the duties in
the job description for his position. One of these essential duties
was maintaining a respiratory protection program.
Huynh was assigned to prepare a respiratory protection
program for the city’s library in November or December of 2019.
Ochi expected this would take two to four weeks at most. Huynh
seemed to be struggling with the assignment, so around January
2020 Huynh was tasked with writing an outline of the program,
with the individual elements to be filled in afterwards.
In late January 2020, Huynh requested leave for the birth
of his daughter, whose due date was February 8, 2020. He
indicated he would use his accrued paid leave hours for the
3
period from February 3 to February 14 but would be out until
February 21. Huynh did not have enough leave hours to cover
the last week of this period so Ochi assumed Huynh would be
using paid parental leave for that week. Ochi approved the
request.
Huynh’s daughter was born after the due date, on February
17, 2020. While he was out, Huynh requested additional leave, to
end on March 9, 2020. Ochi did not have any issues with the
additional time, but he was confused about which hours of the
whole period Huynh should charge to discretionary leave and
which he should charge to paid CFRA leave. Ochi sent an email
to human resources to clarify. Ochi was told that non-birth
parents were not eligible for paid CFRA leave until after the
birth of a child. If a non-birth parent employee requests paid
CFRA leave from the expected due date of a child and the child is
born later than expected, the employee’s manager must approve
the time taken before the child’s birth.
While Huynh was on leave, Ochi received an inquiry from
the library about the respiratory protection program. Karen R.
could not tell Ochi the status of the project or any other projects
that Huynh had been working on. This disappointed and
frustrated Ochi.
When Huynh returned from leave on March 9, 2020, Ochi
met with him to discuss his timekeeping. Ochi told Huynh that
Huynh was not in trouble but that the time records needed to be
correct because if the records were inaccurate and OSH were
4
audited, then accusations of wage theft could start flying. Ochi
did not accuse Huynh of wage theft.
In a separate meeting shortly after Huynh returned from
leave, Ochi told Huynh that he was changing Huynh’s supervisor
from Karen R. to Nancy T., a safety officer who spent about half
of her time working with the library. Because Nancy T. was not
an industrial hygienist, Ochi told Nancy T. that he would coach
and mentor Huynh on technical issues relating to industrial
hygiene, but Nancy T. would supervise Huynh on a day-to-day
basis and make sure he got his assignments done.
Ochi did not take away Huynh’s projects or assignments
after his leave. But everyone’s job assignments in OSH changed
in March 2020 due to the pandemic. The ergonomics program
changed because a large number of health department employees
were working from home and the ergonomics program provided
only general guidance for home offices.
In April 2020, Huynh asked to take a second period of
CFRA leave at the end of May for child bonding. Ochi did not
have concerns about this. On May 12, 2020, Huynh submitted an
outline of the respiratory protection program for the library.
Ochi then told Huynh to write a draft of two sections of the
outline before going out on his next CFRA leave. Ochi wanted a
work product to show the client while Huynh was out. He also
wanted to keep making progress on the project since the
assignment dated to November or December of the previous year.
Huynh emailed the draft to Nancy T. about 20 minutes before the
end of the day preceding his leave.
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Ochi thought Huynh’s draft was not good. The writing was
not strong or clear, one provision was inaccurate for the plan’s
need, and overall it was too complex for the client’s needs.
After Huynh returned from his second leave on June 2,
2020, Ochi placed him on a performance improvement plan. Two
days later, Huynh emailed Ochi a revised draft of one of the
sections of the library’s respiratory protection program. This
draft was considerably shorter, less than one page as compared to
the eight pages of the original draft. Ochi responded that the
draft was a huge improvement and far closer to what he expected
the first time. Huynh completed his performance improvement
plan when he completed the library’s respiratory protection
program, in June or July 2020.
In August and December 2020, Huynh took additional
CFRA leaves. While Huynh was on his last CFRA leave in
December 2020, the Department of Public Health’s director of
human resources, Michael Brown, interviewed Huynh in
connection with a complaint another OSH employee had filed
against Ochi. Huynh told Brown about Ochi’s actions towards
him, and Brown responded that if Huynh believed he was being
discriminated against based on a protected category, Huynh
should file an equal employment opportunity complaint. Brown
was not responsible for investigating equal employment
opportunity complaints.
In February 2021, Huynh told Nancy T. that he planned to
transfer to a different department. In March 2021, Huynh asked
to use leave to attend a medical examination for the transfer.
6
Ochi denied the request because he did not think Huynh needed
to use leave for this purpose. Normally, when an employee
transfers between departments, the hiring department notifies
the employee’s current department of the transfer, and then as a
courtesy the existing department assigns the employee to attend
the medical exam, to avoid requiring the employee to use leave.
So Ochi told Huynh that he would just send Huynh to the
medical exam as soon as he was notified of the transfer. Huynh
complained to his union representative. Huynh submitted a
second leave request, which was approved.
In late March 2021, OSH hired a new senior industrial
hygienist. Huynh at the time was seated in an office with two
senior industrial hygienists. Ochi wanted to have the new
employee sit in that office, to learn from the existing senior
industrial hygienists. He therefore moved Huynh’s workstation
just outside the office to a larger area of the office with five or six
workstations, next to a door.
On May 1, 2021, Huynh transferred to a new department.
His salary, benefits, title, and leave balances remained the same.
Huynh filed a complaint against the City and Ochi in
November 2023. By the time of trial, the only cause of action
remaining was against the City for violation of the CFRA. Judge
Andrew Y.S. Cheng presided over the trial.
Three witnesses testified for Huynh that Ochi spoke to
others about Huynh committing wage theft or being AWOL
(absent without leave) while Huynh was out on his first CFRA
leave. According to Huynh’s own testimony, Ochi accused him of
7
wage theft the day he returned from the first leave in March
2020. After Ochi replaced Karen R. with Nancy T. as Huynh’s
supervisor, Ochi expressly prohibited Huynh from asking either
Karen R. or Nancy T. for technical guidance. Huynh said that he
had been assigned to write a respiratory protection program for
the entire city in the fall of 2019, not the library. Ochi took away
all of his projects, including the department-wide respiratory
protection program, when Huynh returned from leave in March
2020, although Huynh went back to working on some of the
projects a week later.
Huynh said he was assigned the library’s program in mid-
May 2020, a week before his second leave. The draft he
submitted before his leave was just intended to be a rough start,
not a completed product, and he submitted the draft on time.
Karen R. testified for Huynh that she thought Huynh was
an excellent employee for where he was in his career and, while
he had room for improvement, he did not need to be on an
improvement plan.
The trial court issued a tentative statement of decision
after the trial. Huynh submitted objections about three weeks
later, although those objections are not in the record. The trial
court issued a final statement of decision in May 2025 and
entered judgment accordingly. Huynh moved to vacate the
judgment and for a new trial, although his motion is not in the
record. Judge Cheng was unavailable, so a different judge, Judge
Mary E. Wiss, considered and denied the motion.
8
DISCUSSION
I. Standard of Review
“In reviewing a judgment based upon a statement of
decision following a bench trial, we review questions of law de
novo” and “apply a substantial evidence standard of review to the
trial court's findings of fact.” (Thompson v. Asimos (2016)
6 Cal.App.5th 970, 981.) “ ‘Under [the substantial evidence]
standard of review, “the power of an appellate court begins and
ends with the determination as to whether there is any
substantial evidence, contradicted or uncontradicted, which will
support the finding of fact.” [Citation.] In so doing, we accept all
evidence that supports the judgment, disregard contrary
evidence, and draw all reasonable inferences to uphold the
judgment. [Citation.] “It is not our role to reweigh the evidence,
redetermine the credibility of the witnesses, or resolve conflicts in
the testimony, and we will not disturb the judgment if there is
evidence to support it.” ’ [Citation.] [¶] ‘[T]he direct testimony of
a single witness is sufficient to support a finding unless the
testimony is physically impossible or its falsity is apparent
“without resorting to inferences or deductions.” ’ [Citation.] A
party ‘raising a claim of insufficiency of the evidence assumes a
“daunting burden.” ’ ” (In re Marriage of Nelson (2025)
115 Cal.App.5th 904, 914.)
“ ‘The substantial evidence standard of review takes on a
unique formulation where, as here, “the trier of fact has expressly
or implicitly concluded that the party with the burden of proof
did not carry the burden and that party appeals.” ’ [Citation.]
9
Under these circumstances, ‘ “ ‘ “the question for a reviewing
court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law. [Citations.] Specifically, the
question becomes whether the appellant’s evidence was
(1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.’ ” ’ ” ’ ” (Symons
Emergency Specialties v. City of Riverside (2024) 99 Cal.App.5th
583, 597 (Symons).)
An appellant making a substantial evidence challenge must
take care when preparing its opening brief. “ ‘[I]t is presumed
that the evidence is sufficient to support [the trier of fact’s]
factual findings, and it is the appellant’s burden to demonstrate
that it does not. . . . And in furtherance of that burden, the
appellant must fairly summarize the facts in the light favorable
to the judgment.’ [Citation.] ‘To overcome the trial court’s
factual findings,’ the appellant is ‘ “ ‘required to set forth in [his]
brief all the material evidence on the point and not merely [his]
own evidence. Unless this is done the error is deemed to be
[forfeited].’ ” ’ ” (Symons, supra, 99 Cal.App.5th at p. 598.) The
Rules of Court governing appellate briefs also require that factual
statements, wherever in a brief they appear, be supported by
citations to the volume and page number in the record. (Cal.
Rules of Court, rule 8.204(a)(1)(C); Alki Partners, LP v. DB Fund
Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8.) We will not
consider “any factual assertion unsupported by record citation at
the point where it is asserted.” (Alki Partners, at p. 590, fn. 8.)
10
“The doctrine of implied findings requires the appellate
court to infer the trial court made all factual findings necessary
to support the judgment. [Citation.] The doctrine is a natural
and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments
and presumptions are indulged in favor of correctness; and (3) the
appellant bears the burden of providing an adequate record
affirmatively proving error.” (Fladeboe v. American Isuzu Motors
Inc. (2007) 150 Cal.App.4th 42, 58.) A party can defeat the
doctrine of implied findings in a bench trial only by taking two
steps. (Id. at pp. 58–59.) First, after the trial court announces its
tentative decision, the party must timely make a request under
Code of Civil Procedure section 632 for a statement of decision.
(Id. at p. 59.) The request must “specify those controverted
issues as to which the party is requesting a statement of
decision.” (Code Civ. Proc., § 632, subd. (a).)1 If a party believes
the statement of decision “does not resolve a controverted issue”
or is ambiguous, the party must bring the issue to the attention
of the trial court before entry of judgment or in conjunction with
a new trial motion or motion to vacate the judgment. (Code Civ.
Proc., § 634.) “[I]f a party fails to bring omissions or ambiguities
in the statement of decision’s factual findings to the trial court’s
1 The Legislature revised Code of Civil Procedure section
632, effective January 1, 2026, to subdivide the text, establish a
sunset date for the current version of the statute, and provide a
different version that will take effect in 2027. (Stats. 2025,
ch. 559, §§ 1–2.) We cite the current version of the statute for
convenience because it is substantively identical to the law in
effect during the trial of this case.
11
attention, then ‘that party waives the right to claim on appeal
that the statement was deficient in these regards,’ and the
appellate court will infer the trial court made implied factual
findings to support the judgment.” (Fladeboe, at p. 59.)
II. Presiding Judge’s Cognitive Ability
Huynh argues at the outset of his brief that Judge Cheng
may have been experiencing a cognitive disorder during the trial
that prevented him from understanding Huynh’s cause of action.
Huynh asserts that Judge Cheng passed away from cerebral
hemorrhage within a few months of the judgment. He
extrapolates backwards to infer that Judge Cheng was displaying
signs of an unspecified disorder during the trial. As purported
evidence of Judge Cheng’s disorder, Huynh cites several remarks
by Judge Cheng during the trial asking Huynh’s counsel what
Huynh’s allegations were, what the case was about, and why
Huynh’s counsel was spending so much time on certain lines of
questioning.
Huynh cites nothing in the record or outside it to support
his assertions about the fact of Judge Cheng’s death, the date of
his death, the cause of his death, and that the cause of death
could have caused Judge Cheng to experience cognitive
difficulties months earlier during the trial. Nor does Huynh cite
any authority on which he bases his challenge to Judge Cheng’s
cognitive abilities after the fact. We therefore reject Huynh’s
attempt to call into question Judge Cheng’s ability to preside over
the trial. Moreover, nothing in the record before us supports
Huynh’s contention that Judge Cheng was unable to understand
12
the trial as it proceeded. Judge Cheng’s remarks during the trial
were the type of comments or questions common in bench trials
in which a judge asks a party to clarify the scope of a claim to
allow the judge to understand the relevance of particular
evidence, or tells a lawyer to wrap up a line of questioning to
expedite matters. The transcript of the trial as a whole shows
that Judge Cheng intelligently ruled on evidentiary objections
and consistently attempted to streamline proceedings by
preventing Huynh’s counsel from straying into irrelevant
matters.
III. Findings of Fact
Huynh contends a host of the trial court’s findings of fact
are not supported by substantial evidence. We need not address
most of his arguments, however, because he has failed to satisfy
his obligation to cite all material evidence regarding the findings
at issue. (Symons, supra, 99 Cal.App.5th at p. 598.) For
example, Huynh challenges the trial court’s finding that Ochi
assigned Huynh to prepare a respiratory protection program for
the city library in November 2019. The only evidence he cites is
his own testimony that he was working on a broader respiratory
protection program for the entire department of public health in
the fall of 2019, his own testimony that he was assigned the
library’s program in May 2020, and three exhibits that Huynh
contends support his testimony about the May 2020 date. Huynh
fails to mention, much less provide record citations for, Ochi’s
testimony that Huynh was assigned the library’s respiratory
protection program in November or December 2019, the project
13
should have taken two to four weeks at most, Huynh was told to
prepare an outline for the project in January 2020, and he finally
submitted one in May 2020. Huynh’s brief is therefore
insufficient and he has forfeited this challenge. (Ibid.; accord,
Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [a
challenge that the evidence does not support a finding of fact “is
deemed to be waived” unless the challenging parties “set forth in
their brief all the material evidence on the point and not merely
their own evidence”].)
Similarly, Huynh challenges the trial court’s finding that
Ochi and Nancy T. denied Huynh’s request for leave for a medical
exam for his transfer because Huynh could attend the exam
without using leave once the appropriate paperwork was cleared.
Huynh maintains that Ochi instead denied the leave as an
adverse employment action against Huynh and only approved the
leave after Huynh’s union got involved. He cites his own
testimony that he notified Ochi of his transfer, requested leave
for the medical exam, the leave was denied, Huynh got his union
representative involved, and then Ochi approved a new request
for the leave. Huynh does acknowledge that Ochi testified that
he denied the leave request because he had not been notified by
the hiring agency and that such notification would be a
professional courtesy. But Huynh’s briefing still omits the core
testimony supporting the trial court’s finding: Ochi testified that
part of the professional courtesy would be to allow a transferring
employee to attend a medical exam without needing to take leave
and that he denied Huynh’s leave request to avoid Huynh
14
needing to use leave. Huynh’s brief on this issue is therefore
insufficient and he has forfeited this challenge as well.
Huynh’s briefing on most of his other factual challenges
suffers from the same defect, with the same result that the
challenges are forfeited. (Symons, supra, 99 Cal.App.5th at
p. 598.) This is true even though Huynh’s position is that his
evidence is of such weight that the trial court could not
reasonably reject it. Because Huynh has not cited all of the
pertinent evidence, we cannot evaluate his argument about the
relative weight of the evidence, or his other contentions that the
City’s evidence was discredited, impeached, self-serving, or
unsubstantiated. (McCauley v. Howard Jarvis Taxpayers Assn.
(1998) 68 Cal.App.4th 1255, 1266 [“If one is going to make a ‘the-
facts-compel-that-I-win-as-a-matter-of-law’ argument, one’s brief
must fairly state all the evidence”].) “ ‘An appellant challenging
the sufficiency of the evidence to support the judgment must cite
the evidence in the record supporting the judgment and explain
why such evidence is insufficient as a matter of law. [Citations.]
An appellant who fails to cite and discuss the evidence
supporting the judgment cannot demonstrate that such evidence
is insufficient.’ ” (Verrazono v. Gehl Co. (2020) 50 Cal.App.5th
636, 652.)
Only Huynh’s challenge to the trial court’s finding that
Huynh officially transferred out of OSH on March 21, 2021,
satisfies the briefing requirements. Huynh contends that there is
no testimony to support this date and that his actual transfer
date was May 1, 2021. Because Huynh’s argument is that no
15
evidence supports the trial court’s finding regarding the March
21, 2021, date, he cannot be faulted for failing to cite evidence
supporting the judgment. Huynh also appears to be right that
the trial court’s finding lacks any support, as the City implicitly
concedes. Huynh’s testimony is the only evidence on the date of
his transfer, and he said it occurred on May 1, 2021. The trial
court appears to have mistaken the date that Ochi moved
Huynh’s workstation in OSH’s office for the date that Huynh left
OSH entirely. However, the trial court’s error is harmless.
Huynh does not explain and we cannot see how the date of his
transfer out of OSH, whether March or May 2021, is relevant to
the substance of his claim that Ochi took adverse employment
actions and retaliated against him for using CFRA leave. It is
not reasonably probable that the trial court would have reached a
result more favorable to Huynh if it had correctly stated the date
of his transfer, so the error is harmless. (People v. Watson (1956)
46 Cal.2d 818, 836.)2
IV. Conclusions of Law
Huynh contends the trial court erred in many of its
conclusions of law. These arguments have no merit.
2 Even if we were to consider Huynh’s factual challenges on
the merits, they would fail. Ochi and other witnesses for the City
provided sufficient testimonial support for the trial court’s factual
findings, and the trial court could credit their testimony over the
contrary evidence Huynh offered. (In re Marriage of Nelson,
supra, 115 Cal.App.5th at p. 914.) Huynh’s evidence was not
uncontradicted or of such a character and weight as to leave no
room for the trial court’s finding that he failed to carry his burden
of proof. (Symons, supra, 99 Cal.App.5th at p. 597.)
16
A. Interference and Retaliation By Adverse
Employment Action
The trial court stated, “ ‘Violations of the CFRA generally
fall into two types of claims: (1) ‘interference’ claims in which an
employee alleges that an employer denied or interfered with her
substantive rights to protected medical leave, and (2) ‘retaliation’
claims in which an employee alleges that she suffered an adverse
employment action for exercising her right to CFRA leave.’ ” (See
Rogers v. County of Los Angeles, supra, 198 Cal.App.4th at
pp. 487–488.) Huynh agrees that there are two types of CFRA
causes of action in this case, known as interference and
retaliation. But he argues the trial court’s statement was
nonetheless error because there are three different types of
interference claims: adverse employment actions for taking
leave, failing to return an employee to the same or comparable
job after leave, and interfering with CFRA rights or the use of
leave. (But see Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909,
920 [under the CFRA, “ ‘[i]nterference’ claims prevent employers
from wrongly interfering with employees’ approved leaves of
absence, and ‘retaliation’ or ‘discrimination’ claims prevent
employers from terminating or otherwise taking action against
employees because they exercise those rights”].) Even assuming
Huynh is correct about adverse employment actions being one of
three ways to interfere with CFRA rights, that does not make the
trial court’s statement incorrect. Different types of CFRA
interference violations still fall into the overall category of
interference claims, precisely as the trial court stated.
17
The trial court listed the elements of an interference claim
as “(1) the employee’s entitlement to CFRA leave rights; and
(2) the employer’s interference with or denial of those rights.”
(See Soria v. Univision Radio Los Angeles, Inc. (2016) 5
Cal.App.5th 570, 601.) Huynh contrasts this with the six
elements of an interference claim listed in the CACI No. 2600
jury instruction. Those elements are: (1) the plaintiff was
eligible for CFRA leave; (2) the plaintiff requested or took leave
for the birth of a child or other CFRA-eligible purpose; (3) the
plaintiff gave reasonable notice of the need for the CFRA leave to
the employer; (4) the employer refused to grant the leave, refused
to return the employee to the same or comparable position after
the leave, or committed some other violation of the plaintiff’s
CFRA rights; (5) the plaintiff was harmed; and (6) the employer’s
conduct was a substantial factor in causing the plaintiff’s harm.
(CACI No. 2600.)
The trial court was following Soria, supra, 5 Cal.App.5th at
page 601. Soria’s first element, entitlement, can be understood to
include the eligibility and reasonable notice elements from CACI
No. 2600. Soria’s second element, which focuses on the denial or
interference with CFRA rights, encompasses the other CACI
No. 2600 elements. The trial court was not unaware of the
pattern jury instructions for CFRA claims, as evidenced by its
subsequent citation to CACI No. 2620 for Huynh’s CFRA
retaliation claim.3
3 To the extent that the trial court incorrectly listed the
elements of an interference claim, the error was harmless. As
18
The trial court next stated that Huynh took four approved
CFRA leaves despite the alleged adverse actions and found that
he failed to prove his interference claim by a preponderance of
the evidence. Huynh argues this was error because even if an
employer approves an employee’s request for leave, an employer
can be liable for interference or retaliation under the CFRA if it
takes an adverse employment action to punish the employee for
taking the leave. He then lists various adverse employment
actions he contends he suffered for taking leave, such as being
accused of wage theft or being AWOL, removal of his projects and
assignments, change of his supervisor, intimidation by Ochi’s
metal bar, being placed on a performance improvement plan,
denial of his request for leave to facilitate his transfer, and
movement of his workstation. But the rest of the statement of
decision makes clear that the trial court also rejected the factual
basis for Huynh’s claims regarding these adverse employment
actions. After finding Huynh failed to prove an interference
claim because he succeeded in taking leave, the trial court went
on to find Huynh had failed to prove a retaliation claim because
he had not shown that his use of CFRA leave was a substantial
reason for the adverse employment actions allegedly taken
against him. It found that some of the adverse employment
actions that Huynh cites in his brief did not occur and the City
put forth credible evidence of legitimate reasons for the other
discussed post, the trial court made clear that it did not find that
Huynh proved the second element, that the City had committed
some violation of Huynh’s CFRA rights, even if it did not name
that element in the context of Huynh’s interference claim.
19
actions. The trial court’s rejection of Huynh’s allegations of
adverse employment actions adequately supports its denial of
Huynh’s interference and retaliation theories.
The doctrine of implied findings also forecloses any
argument by Huynh that the trial court’s basis for rejecting his
interference or retaliation theories is ambiguous or inadequate.
(Fladeboe v. American Isuzu Motors Inc., supra, 150 Cal.App.4th
at pp. 58–60.) For the first step, it appears that at the trial
court’s invitation Huynh submitted proposed findings of fact and
conclusions of law, which perhaps satisfied or obviated the
requirement that Huynh request a statement of decision. Even
so, the document is not in the record so we cannot determine
what findings Huynh requested or controverted issues he
identified. For the second step, the record shows that Huynh
filed objections to the trial court’s tentative decision, as well as a
motion to vacate the judgment and for a new trial. But those
documents are not in the record, either.4 The record therefore
4 Huynh repeatedly failed to follow proper procedures for
providing an adequate record. Huynh initially failed to include
any of the relevant documents in his notice designating the
record. His proposed findings of fact and conclusions of law and
his objections to the tentative statement of decision were in an
appellant’s appendix Huynh filed concurrently with his opening
brief. But we granted the City’s motion to strike the appendix
because Huynh had elected to proceed by way of a clerk’s
transcript. (See Cal. Rules of Court, rule 8.120(a).) Huynh then
moved to augment the record with the documents in his
appellant’s appendix. The City objected on various grounds,
including that the request was untimely and successive, Huynh
having filed it after he filed his opening brief rather than weeks
earlier when the record was filed and when he had filed a
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contains nothing to show that Huynh specifically brought to the
court’s attention any inadequacies in its findings or conclusions of
law regarding his interference and retaliation by adverse
employment action theories. (Uzyel v. Kadisha (2010)
188 Cal.App.4th 866, 896 [“To bring an omission or ambiguity to
the trial court’s attention for purposes of Code of Civil Procedure
section 634, a party must identify the defect with sufficient
particularity to allow the court to correct the defect”]; Jameson v.
Desta (2018) 5 Cal.5th 594, 608–609 [“ ‘Failure to provide an
adequate record on an issue requires that the issue be resolved
against [the appellant]’ ”].) Accordingly, we must assume the
trial court made the necessary factual findings regarding adverse
employment actions to support its ruling on both Huynh’s
interference and retaliation claims.
B. Causal Connection Between CFRA Leave and
Adverse Employment Actions
The trial court, citing CACI No. 2507, defined the
“substantial motivating reason” standard of causation as “a
reason that actually contributed to the adverse employment
action. It must be more than a remote or trivial reason. It does
not have to be the only reason motivating the adverse
previous, unrelated motion to augment. The City also argued the
motion was prejudicial because Huynh’s opening brief had not
cited any document in the proposed augmentation except for the
trial court’s statement of decision. We granted the motion to
augment as to the statement of decision but otherwise denied it.
The end result of these repeated failures to follow the rules of
appellate procedure is that none of the documents necessary to
defeat the doctrine of implied findings is in the record.
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employment action.” Huynh contends the trial court erred by
applying this definition to his interference claim, rather than just
his retaliation claim. Huynh offers no authority or rationale for
this argument, so we may disregard it. (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [appellate
courts “may and do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt’ ”].) We also disagree with it. Huynh’s position
is that an employer interferes with CFRA rights by taking
adverse employment actions against an employee in response to
an employee’s request for or use of CFRA leave. This theory
necessarily requires some causal connection between the adverse
employment actions and the CFRA leave or request for leave, to
distinguish between actions that interfere with CFRA rights and
employment actions taken for permissible, unrelated reasons.
(See Richey v. AutoNation, Inc., supra, 60 Cal.4th at pp. 919–921
[employer that terminated employee for violating policy
prohibiting outside work during CFRA leave, rather than because
of the use of leave itself, did not violate CFRA].) The substantial
motivating reason test for causation is a reasonable one to apply
for this purpose, and Huynh, in any event, does not suggest any
alternatives.
Huynh further contends the trial court applied this
standard more stringently than the standard requires. He cites
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 969 as
instructing that “[u]ndue emphasis should not be placed on the
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term ‘substantial’ ” in the substantial factor causation standard.”
But Huynh does not cite and we do not see anything in the
statement of decision that indicates the trial court believed the
substantial motivating reason standard was a heightened
standard or that the court applied it more stringently than is
appropriate.
Huynh points out that when an adverse employment action
“ ‘ “follows hard on the heels of protected activity, the timing
often is strongly suggestive of retaliation.” ’ ” (Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571.)
He also argues he provided overwhelming, uncontroverted
evidence of escalating adverse actions following his protected
leaves. Although Huynh does not cite the City’s evidence,
Huynh’s evidence was hardly uncontroverted. Moreover, Huynh
does not cite and we are not aware of any authority holding that
an adverse action following a protected leave is conclusively
presumed to be motivated by the leave. The timing of an adverse
action following an invocation of CFRA rights may simply
support an inference of a causal connection, nothing more. The
trial court was entitled to reject the timing inference here and
accept instead Ochi’s explanation for his actions. Huynh’s
disagreement with the trial court’s conclusions does not mean it
misapplied the governing standard.
Huynh quarrels with the trial court’s conclusions that
Huynh had not proven some alleged adverse employment actions,
the City took other adverse employment actions against Huynh
for legitimate reasons, and there was no connection between the
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actions and Huynh’s CFRA leave. Huynh’s arguments are
factual, and he again discusses only on his own evidence (often
without record citations) without citing or meaningfully
addressing the evidence supporting the trial court’s conclusions,
primarily from Ochi’s testimony. For the reasons discussed ante,
Huynh has therefore forfeited these arguments by failing to
properly provide and cite all relevant evidence. Huynh’s
arguments fail in any event. While Huynh’s evidence might have
supported a contrary finding, it was not so strong or
uncontradicted as to dictate a verdict in his favor as a matter of
law. The trial court was within its rights to find Ochi’s testimony
more credible than that of Huynh and his witnesses.
The trial court said in its statement of decision that it
found “no credible direct evidence of retaliatory animus.” Huynh
argues the reference to “direct” evidence shows the trial court
erroneously ignored his indirect or circumstantial evidence,
which is just as valid as direct evidence. The primary authority
Huynh cites is an unpublished 2006 Court of Appeal decision,
which is improper. (Cal. Rules of Court, rule 8.1115(a).) Putting
that aside, Huynh’s argument is not persuasive. Immediately
before and after its statement about the lack of credible direct
evidence of animus, the trial court made findings showing that it
also rejected Huynh’s circumstantial evidence of animus. For
example, while Huynh argues that the change in his work
assignments in March 2020 upon his return from his first CFRA
leave is evidence of animus, the trial court found instead that his
assignments changed because of the demands of the pandemic.
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Besides, as discussed ante, the doctrine of implied findings that
Huynh has failed to displace requires us to infer that the trial
court impliedly made any necessary additional findings rejecting
his circumstantial evidence.
Huynh finally challenges the trial court’s conclusion that
Brown, the director of human resources, did not fail to investigate
Huynh’s complaints about Ochi’s behavior and that Brown’s
actions had no causal connection to Huynh’s CFRA leave. Huynh
contends this was error because there is no evidence that Brown
or anyone else investigated Huynh’s case and the failure to
investigate was an adverse employment action that violated
Huynh’s CFRA rights. Huynh provides no authority or reasoned
argument for his assertion that a failure to investigate is an
adverse employment action, so we need not consider it. We
observe that our Supreme Court has held under the Fair
Employment and Housing Act (Gov. Code, § 12900 et seq.) that
while inaction or a failure to investigate an employee’s complaint
of harassment by fellow employees can support an employer’s
liability for the harassment, the failure to investigate does not
itself constitute retaliation. (Bailey v. San Francisco Dist.
Attorney’s Office (2024) 16 Cal.5th 611, 626–627, 640.) The same
rationale dictates that a failure to investigate will not alone
constitute interference or retaliation via adverse employment
action under the CFRA.
DISPOSITION
The judgment is affirmed.
BROWN, P. J.
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WE CONCUR:
STREETER, J.
SWEET, J.
Huynh v. City & County of San Francisco (A174269)
Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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