Khan v. City of Long Beach

Filed 10/16/07 Khan v. City of Long Beach CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Affirmed.

Stephen Love for Plaintiffs and Respondents.

Robert E. Shannon, City Attorney, Monte H. Machit, Deputy City Attorney, for Defendant and Appellant.

_______________________________________

A jury found that the Long Beach Police Department (LBPD) retaliated against Officers Asif Khan and Alberto Vargas in violation of the Fair Housing and Employment Act (FEHA) because they engaged in the protected activity of filing a sexual harassment lawsuit against their direct supervisor, Sergeant Richard Farfan (the Farfan lawsuit). (Gov. Code, 12900 et seq.) The City of Long Beach now appeals the judgment and the trial courts denial of its motions for judgment notwithstanding the verdict and a new trial on the grounds of lack of substantial evidence and improper jury instructions.

FACTUAL AND PROCEDURAL BACKGROUND

The Long Beach Police Department has over 900 officers and operates on a rank system with several levels of supervisors. Patrol officers are subordinate to sergeants, who in turn respond to the higher positions of lieutenant, commander, and chief.

New police officers participate in a field training program in which they work with a field training officer (FTO) to familiarize themselves with the job. A FTO is a designated and experienced patrol officer who provides on-the-job training for the new officers.

Beginning in 1998, FTOs were selected by a committee assembled on an as-needed basis. The committee consisted of the FTO Lieutenant, the FTO Administrative Sergeant, a FTO sergeant from each of the four divisions of the LBPD, and a FTO from each division.

The committee considered candidates who were recommended by peers and supervisors, and those who submitted interest memoranda; all patrol officers who had worked for a minimum number of years were eligible. Each committee member could provide input on whether he believed a particular candidate should become a FTO; all members voted.

Although plaintiffs had applied for each FTO opening since the Farfan lawsuit, they had been denied each time. The plaintiffs attribute this to retaliation.

A. Plaintiffs Evidence of Retaliation

Plaintiffs have worked for the LBPD for over 10 years and are experienced enough to be FTOs. Both plaintiffs worked as training officers prior to the Farfan lawsuit without complaints about their performance. Additionally, Officer Vargas was asked by law enforcement in the Los Angeles Sheriffs Department to help train and evaluate their recruits. Before and after the Farfan lawsuit, plaintiffs performance evaluations were favorable and showed that plaintiffs met or exceeded standards. They have also received numerous awards and commendations on their work.

One of plaintiffs direct supervisors, Sergeant Kim Marshall, characterized the plaintiffs as good and competent employees, whom he would have recommended as FTOs if asked. Similarly, Commander Frank McCoy, plaintiffs division commander for two years, testified that plaintiffs successfully completed all their assignments and that he recommended the plaintiffs to the FTO selection committee. Nevertheless, plaintiffs had a reputation of having bad attitudes and poor work ethic.

Officer Jason Ur, a FTO selection committee member for one year, recalled considering the plaintiffs candidacy for the FTO position. He voted against the plaintiffs because he believed they had a bad attitude towards the police department. His belief was based on the opinions of his fellow officers and a lot of locker room gossip about the plaintiffs, part of which included the fact that they had filed the Farfan lawsuit. Officer Ur acknowledged that plaintiffs may have had negative attitudes because they were being harassed due to the Farfan lawsuit.

While the City of Long Beach asserted that plaintiffs might have been denied the position of FTO because they had negative disciplinary internal affairs histories, that factor has not precluded selection of officers to be FTOs in the past.

Furthermore, when plaintiffs asked their supervisors why they were not picked as FTOs, Sergeant Robert Kuroda told the plaintiffs that they were not liked at the top and Sergeant Marshall said they were being targeted. Officer Vargas also approached Lieutenant Stephen James, the Police Officers Association President, about being denied the position of FTO for numerous years. Lieutenant James told Officer Vargas not to pursue a grievance on the issue because he would be burning bridges and fighting lieutenants and commanders.

Plaintiffs also testified about a conversation they had with Sergeant Anthony Lopez, the FTO Sergeant. Sergeant Lopez told them they were not selected because the FTO Lieutenant, Lieutenant Jeffrey Cooper, received a negative recommendation about the plaintiffs from the previous FTO Lieutenant, Commander William Blair.

Commander Blair knew about the Farfan lawsuit because he had escorted the plaintiffs to an interview relating to that complaint. Commander Blairs demeanor toward the plaintiffs changed after this interview.

In addition to being denied the FTO position, plaintiffs also complained that they were denied other promotions, scrutinized more closely than other officers, denied overtime, left without backup in a dangerous situation and, as to Officer Khan, placed in danger when his name was released to the press in connection with a shooting and he was denied LBPD protection.

Since the Farfan lawsuit, the only position Khan has held is patrol officer. He applied for Corporal, Detective Bureau, and the Police Athletic League but was denied these promotions.

Officers Khan and Vargas participated in an overtime sweep, a special deployment of officers to high crime areas or trouble spots. They were walking in an area where gang members had threatened to kill police officers when all the other sweep officers were called to another location. Officers Khan and Vargas, however, were told to keep walking in the high crime area. They felt deprived of necessary backup because they depended on the other sweep officers, working in the same small area, to provide immediate backup. While regular patrol officers who were on duty could theoretically provide backup, none would be able to respond as quickly as the sweep officers.

After this incident, the plaintiffs were denied the opportunity to work more overtime sweeps. The LBPD contends that they were denied further opportunities for overtime because they performed poorly during the previous sweep and ate lunch outside the designated area. However, plaintiffs presented evidence that they did not eat lunch outside the area, but that the lunch location recorded was a highway overpass instead of the restaurant where they ate.

The LBPD also released Officer Khans name to the press soon after he was involved in the shooting of a gang member. At this time, the decedents family was angrily demanding that they know who the murderer was. For his own safety and that of his family, Officer Khan requested LBPD protection commonly given to other officers and council members. However, he was denied such protection.

B. Appellants Evidence Disputing Retaliation

Appellant offered significant evidence suggesting legitimate non-retaliatory reasons for the LBPDs employment decisions and contradicting the plaintiffs evidence.

Although plaintiffs worked as FTOs prior to the Farfan lawsuit in 1997, there was no formal process for FTO selection at that time. The formal process was instituted in 1998 and focused on finding the best and brightest officers. Out of about 150 candidates, only 20 to 30 officers were chosen at each committee meeting. Plaintiffs also had negative internal affairs history.

Additionally, Commander McCoy contends that the reason he recommended the plaintiffs to the selection committee was because they were not performing as well as they could be, and he thought their performance might improve if they became FTOs.

Furthermore, Commander Blair testified that he did not believe he had recommended to, or advised, anyone that the plaintiffs should not be selected as FTOs. He also stated that he barely remembered escorting the plaintiffs to the internal affairs investigation, does not recall any other interactions with the plaintiffs, and was not bothered about the Farfan lawsuit at all.

Lieutenant Cooper denied telling Sergeant Lopez that Commander Blair told him that Officers Khan and Vargas should not be selected as FTOs. Furthermore, Sergeant Lopez denied telling the plaintiffs that Commander Blair said they should not be selected.

Moreover, Sergeant Kuroda denied telling the plaintiffs were not liked at the top and both he and Sergeant Marshall denied telling them they were targets. Sergeant Kuroda did recall telling the officers that some reasons they may have been denied included negative internal affairs history and negative attitude.

Although Officer Khan has only held the position of patrol officer, he would have been appointed Corporal had the program not been phased out. With respect to the other positions for which Officer Khan applied, he has no idea why he was not selected, who made the decision, or who was ultimately selected.

Additionally, Sergeant Farfan performed an audit of plaintiffs work because he had received a complaint about the plaintiffs. These activities were prior to the 1997 lawsuit.

While working sweeps, plaintiffs were never left without backup because the regularly scheduled patrol officers in the area were available to provide assistance if needed. Additionally, plaintiffs were denied overtime because they had not been productive and had left the designated division.

After Officer Khan was involved in the shooting of a gang member, his name was released to the press because Chief Timothy Jackman felt it was necessary to correct negative publicity. It was not unusual to release officers names; another officers name was also released at the same time.

DISCUSSION

Appellant contends there was no substantial evidence to support the jurys verdict or damages award. Appellant further contends that the trial court erred by giving a jury instruction that did not require the jury to identify a specific individual with a retaliatory motive. We disagree.

I. Substantial Evidence Exists to Support the Verdict

Substantial evidence of ponderable legal significance must be present in the record to support the jurys verdict. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1277.) In determining whether substantial evidence supports the verdict, we consider the evidence in the light most favorable to the prevailing party. (Ibid.)

To support a finding of retaliation, plaintiffs must prove: 1) plaintiffs engaged in protected activity under FEHA, 2) the defendant subjected the plaintiffs to adverse employment decisions, and 3) there is a causal connection between the protected activity and the adverse employment decisions. (Yanowitz v. LOreal USA, Inc. (2005)36 Cal.4th 1028, 1042.) A causal connection may be shown through a decision-makers retaliatory motive which can be proven through circumstantial evidence, such as the decision makers knowledge of the plaintiffs protected activity and the proximity in time between the protected activity and the adverse employment decisions. (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

The parties agree that the plaintiffs engaged in protected activity by filing the sexual harassment lawsuit against Sergeant Farfan. The parties additionally agree that the denial of selection as FTOs and the other claimed retaliatory actions would constitute adverse employment decisions, if done in retaliation. Appellant contends, however, that there is no substantial evidence to support the jurys finding of a causal connection between the protected activity and the adverse employment decisions because the plaintiffs did not prove the motives of the various FTO selection committee members between 1998 and 2004.[1]

Appellant contends that the plaintiffs must prove that persons involved in the decision making process had a retaliatory motive by identifying each decision maker and proving their knowledge of the protected activity. However, when an employment decision is influenced by several people, the plaintiff can establish the element of causation by showing that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such persons animus operated as a but-for cause, i.e., a force without which the adverse action would not have happened. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 108.)

[T]he point may be easily illustrated. A supervisor annoyed by a workers complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. Another manager, accepting the fabricated case at face value, may decide, entirely without animus, to discharge the [worker]. It would be absurd to say that the [worker] in such a case could not prove a causal connection between discriminatory animus and his discharge. (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at pp. 108-109.)

Thus, while the FTO selection decisions were made in a committee, the plaintiffs were only required to prove that one person had the required retaliatory motive and contributed to the adverse employment decision. (See Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at pp. 108-110.) Therefore, the other decision makers in the process do not need to have independent animus.

Although the record in this case does not compel a finding of retaliation, it does contain substantial evidence to support the jurys findings that appellant made adverse employment decisions because the plaintiffs engaged in a protected activity.

There was substantial evidence that Commander Blair knew about the Farfan lawsuit. Plaintiffs and Commander Blair testified that he escorted them to an internal affairs interview regarding their complaint against Sergeant Farfan. Plaintiffs also testified that Sergeant Lopez told them they were not selected as FTOs because Commander Blair gave Lieutenant Cooper a negative recommendation of them, thereby affecting the decision of the selection committee.

Furthermore, there was substantial evidence to support the inference that a significant number of committee, and non-committee, members knew about the Farfan lawsuit. Officer Ur testified that he heard a lot of negative locker room gossip regarding the plaintiffs. Part of that gossip included the fact that the plaintiffs had filed the Farfan lawsuit and that plaintiffs had negative attitudes. Officer Ur voted against the plaintiffs based on this locker room gossip.

Additionally, although plaintiffs had negative internal affairs history, this had not precluded other officers from being selected in the past.

The statements that plaintiffs were not liked at the top and that they should not burn bridges further support the jurys finding that plaintiffs were not selected as FTOs and suffered other adverse employment decisions because of retaliatory motive and negative bias created after plaintiffs filed the Farfan lawsuit.

II. Substantial Evidence Exists to Support the Damages Award

The City of Long Beach also claims there is no substantial evidence to support the plaintiffs damages award and that the damages are speculative. We disagree.

Appellant first argues that no evidence was provided concerning the amount of compensation awarded to FTOs. However, plaintiffs testimony provided evidence that a working FTO received a 10 percent bonus over his base salary. In 1998, Officer Khan earned $27.21 an hour and Officer Vargas earned $26.92 an hour. Both plaintiffs have worked 40 hour weeks from 1998 through the time of the trial. Consequently there was evidence on which the jury could rely to conclude that, if plaintiffs had worked as FTOs, they would have received an additional 10 percent of their respective base salaries.

Appellant further contends that selection as a FTO does not guarantee an officer will work as a FTO. Damages may be awarded when it is reasonably certain that plaintiffs suffered detriment from the wrongful act of the defendant. (Stott v. Johnston (1951) 36 Cal.2d 864, 875.) The City of Long Beach offered evidence that some FTOs did not work with a recruit. However, FTOs were needed when a working FTO was sick, on vacation, or needed a break from training officers. FTOs who were promoted or changed positions within the police department created vacancies in the program. Consequently, approximately every year when new recruits entered the LBPD, a FTO selection committee was assembled to fill the vacancies. From this evidence, the jury could reasonably conclude that officers, if selected, worked as FTOs, and thus that these officers, if selected, would also have worked in that capacity.

Appellant also contends that the award of future damages is speculative because there is no guarantee that plaintiffs would not be selected as FTOs in the future. Future damages may be awarded for detriment that is reasonably certain to occur because of the initial wrong. (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 368.) No evidence contradicted plaintiffs showing that they had been turned down at every application; nothing in this record contradicts the reasonable inference that this would continue to be the case in the future. Additionally, Officer Vargas testimony provided substantial evidence that FTO selection would enhance an officers probability of receiving additional promotions, and therefore additional compensation. The plaintiffs likelihood of receiving additional promotions was lessened because they had not been selected as FTOs and had been denied other promotions as well.

III. A Specific Person with Retaliatory Motive Does Not Need to be Named

in the Jury Instructions

Appellant argues that the trial court erred in refusing its proffered jury instruction that required the jury to identify a specific individual with a retaliatory motive. We review this issue de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)

Both parties offered versions of jury instruction CACI No. 2505. The trial court refused the appellants version naming Commander Blair, and used instead the plaintiffs version which specified only the City of Long Beach.[2]

Appellants claim of error rests on their argument, discussed above, that the required causal connection between the plaintiffs protected activity and the adverse employment actions cannot be established without evidence that each participant in the decision knew the plaintiffs engaged in protected activity and had a retaliatory motive. However, as we have already concluded, retaliation can be proven by showing that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such persons animus operated as a but-for cause, i.e., a force without which the adverse action would not have happened. (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 108.) The jury could find the City of Long Beach liable for retaliation if it was reasonable to conclude that an actor who knew about the Farfan lawsuit contributed to the adverse employment decisions. (Id. at p. 110.)

Evidence was presented that Commander Blair knew about the Farfan lawsuit and contributed to the adverse employment decision by telling the FTO Lieutenant that Officers Khan and Vargas should not be selected as FTOs. The plaintiffs were told they were not selected due to Commander Blairs recommendation. Additionally, Officer Ur knew about the Farfan lawsuit. As a FTO selection committee member, he contributed to the adverse employment decision by voting against the plaintiffs because of information he had heard through locker room gossip. Consequently, on this record, the instruction given was proper.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

I concur:

PERLUSS, P. J.

WOODS, J., Dissenting:

I respectfully dissent from that portion of the majority opinion pertaining to paragraph III entitled A Specific Person with Retaliatory Motive Does Not Need to be Named in the Jury Instructions, which places a stamp of approval on jury instruction CACI No. 2505 given by the court. Unlike the majority, I would find the jury instruction submitted by plaintiffs and given by the court to be erroneous in this instance. Instead, I would find that the jury instruction requested by the defendant and refused by the court is the proper instruction to be given under the circumstances of this case.

Initially, I concur with the general proposition advanced by the majority in stating that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such persons animus operated as a but-forcause, i.e., a force without which the adverse action would not have happened. (Maj. opn. at p. 8; italics in original.)

The majority goes a step further and maintains that the person involved need not be identified in the jury instruction read and given to the jury. The majority relies on Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 for this proposition, but I find Reeves to be distinguishable and of questionable application to this case. First I note that in Reeves the only named defendant was the corporate entity Safeway Stores, Inc. I am unable to discern from a reading of the opinion whether additional responsible persons were sued with the corporation, but a reasonable inference from a reading of the opinion is that Safeway was the sole defendant. I draw this inference because the opinion mentions Safeway as the corporate entity Defendant and Respondent. To the contrary, in this instance both the entity, namely the City of Long Beach and the alleged additional responsible person, Commander William Blair, were named defendants in the lawsuit. As hereafter discussed, William Blair was dismissed from the lawsuit on the motion of plaintiffs counsel, for tactical and strategic reasons which are not disclosed to the trial court. The motion to dismiss was made and granted just prior to the calling of the first witness to testify. The colloquy between the trial court and counsel on plaintiffs motion to dismiss Commander Blair from the action is informative and highlights the dilemma presented to the trial court in ruling on the motion:

THE COURT: In the matter of Khan v. City of Long Beach, case No. BC318885. [] I understand that plaintiff wants to dismiss the defendant.

MR. SMITH: Yes, Your Honor. One of the defendants, William Blair.

MR. MACHIT: No objection.

THE COURT: All right. This is a dismissal of prejudice, I presume?

MR. SMITH: Yes.

MR. MACHIT: No objection.

THE COURT: All right. Are you Captain Blair?

MR. BLAIR: Commander Blair.

THE COURT: Commander Blair, the case is dismissed against you.

MR. MACHIT: Ive requested Commander Blair, at least today, be permitted to sit with counsel.

THE COURT: He can stay with you as long as he likes.

MR. MACHIT: Thank you. Will there be some kind of statement made to the jury?

THE COURT: Yes. We should let them know plaintiffs have dismissed the case against defendant Blair, dont you think? Because I instructed them he is a party, and now he isnt.

MR. SMITH: Well, I dont think its that plaintiffs dismissed Commander Blair. I think you can make a statement that he is no longer a party to this action. It makes us look, by dismissal, that we did something wrong. Im dismissing him for tactical and strategic reasons, not because I think hes blameless in this.

THE COURT: Okay. So then Ill say hes no longer a party in the case, and the City of Long Beach is the only defendant?

MR. SMITH: Yes.

THE COURT: Okay.

MR. MACHIT: Well, of course, it would be the defense request to explain exactly not explain, but state exactly what happened. They were dismissed. I dont see any prejudice to that, because thats exactly what happened and the process by which the defendant leaves the case. Anything else, I think, is ambiguous. [] The jury wont wonder they will wonder less about whats going if theres a dismissal. Theyll wonder more if you just say, well, hes no longer in the case. Then theyll really begin to speculate, which could prejudice either party. [] I would just request the court state exactly what happened. I think it is fair and not prejudicial and consistent with the true statement of affairs that he has been dismissed.

THE COURT: I dont I dont understand whats wrong with saying that. I could just say plaintiffs have decided not to pursue their claims against him or if the word dismissal is one you dont like, thats fine.

MR. SMITH: I dont see why the court cant just tell the jury that he is no longer a party to this action.

THE COURT: Well, it is puzzling. It is puzzling.

MR. SMITH: It may be, but if you give explanation, it could create prejudice. Its better to have it puzzling. If he is no longer [a] party to the action, hes simply no longer to [sic] a party to the action. It cannot prejudice them that he is no longer a party to the action. It can only prejudice us state the specifics

THE COURT: I guess it suggests theres a settlement for example, which there hasnt been.

MR. MACHIT: It does suggest that, exactly, which there is the possible prejudice on the part of the city. Thats why its unfair to have the jury speculate. [] Plaintiffs have made the decision to dismiss him. I think the court should simply say, he has been dismissed. And Im not asking for the court to explain what that means.

THE COURT: Right, or say anything about prejudice.

MR. MACHIT: Yes.

THE COURT: I think its better to tell them that plaintiffs have decided to dismiss and not deal with any whoha or fanfare; just tell them the City of Long Beach is the only remaining defendant against plaintiff. Were proceeding, and you may call your first witness. [] I think thats probably the better course of action. Sticking with the truth is generally the simple truth is generally the better course of action.

MR. MACHIT: Thank you, Your Honor.

MR. SMITH: What are you going to say to the jury?

THE COURT: Well, I guess Ill say plaintiffs have dismissed their claims against Commander Blair, and the City of Long Beach is the only remaining defendant.

MR. SMITH: Okay.^[[3]]

MR. MACHIT: Your Honor, I do have, as Mr. Smith correctly noted yesterday, we did talk about jury instructions Thursday. And I have a set of agreed upon instructions and then a few that are not agreed upon, excluding special verdicts.

THE COURT: Okay. Excellent. Give that to the clerk.

MR. MACHIT: Do you want to see it?

MR. SMITH: That would be nice.

MR. MACHIT: Sorry. We talked about it. I thought you had a set of your own.

Footnote 2 of the majority opinion sets forth in full the jury instruction given to the jury at plaintiffs request denominated CACI No. 2505. The proposed jury instruction requested by the City of Long Beach and refused by the trial court is as follows:

Khan and Vargas claim that William Blair and City of Long Beach retaliated against them because they filed a lawsuit[t] against another Long Beach Sergeant. To establish this claim, plaintiffs must prove the following:

1. That plaintiffs filed a lawsuit against Farfan;

2. That William Blair discharged, demoted, or failed to promote or select plaintiffs as an FTO;

3. That plaintiffs filing of a lawsuit against Richard Farfan was a motivating reason for William Blair to discharge, demote, or failed to promote or select as an FTO;

4. That plaintiffs were harmed; and

5. That William Blairs retaliatory conduct was a substantial factor in causing plaintiffs harm.

I respectfully suggest that the proposed jury instruction requested by the City of Long Beach is the one that is more in tune with the facts of this case and in keeping with the urging of counsel for the City to stick with the truth and the true state of affairs as presented by the evidence in this case. It is common knowledge that in presenting a case for jury consideration counsel may do a myriad of things during the course of the trial for strategic and tactical reasons, or to consider other permissible legal tactics in the interest of a client. It is quite another proposition for counsel and the court to play hide the ball in front of the jury and then leave it to the jury to speculate as to the true state of affairs. As counsel for the City maintained, its better to simply tell the truth as opposed to letting the jury speculate why Commander Blair was dismissed from the lawsuit, and then perhaps opening the door for further jury speculation as to why Commander Blair is still sitting at the counsel table for the defense during the proceedings as permitted by the court.

In my view, the jury instruction requested by the defense in this case would have minimized any jury speculation and should have been given.

I further dissent to the version of CACI No. 2505 given to the jury in this case for another reason. It is quite apparent that the court embarked upon what I would call personalizing when it gave the full names of plaintiffs to the jury. The question remains why the court did not extend this personalizing to the City by including the name of Commander Blair in the instruction as requested by City. By giving the instruction requested by plaintiffs, the jury was presented with an instruction that was personalized on one side of the lawsuit only. Of course, the court could have elected to depersonalize both sides of the lawsuit by simply referring to the parties in their status as plaintiffs and defendants. This course of action would have at least leveled the playing field.

For all of the above reasons, if I were in the majority, I would reverse the judgment and remand for a new trial before a properly instructed jury.

WOODS, J.

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[1] Respondent contends the appellant has waived its substantial evidence claim because appellant did not raise all material facts in his brief and only articulated the favorable ones. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) We find that appellants brief was sufficient to preserve his claim.

[2] CACI No. 2505 as given by the court reads: Asif Khan and Alberto Vargas must prove all of the following: [] That Asif Khan and Alberto Vargas filed a lawsuit against Farfan and the City of Long Beach; [] That the City of Long Beach failed to appoint or select Asif Khan and Alberto Vargas as an FTO or any other positions; [] That Asif Khan and Alberto Vargass lawsuit was a motivating reason for City of Long Beachs decision to fail to appoint or select Asif Khan and Alberto Vargas as an FTO or any other positions; [] That Asif Khan and Alberto Vargas were harmed; and [] That City of Long Beachs retaliatory conduct was a substantial factor in causing Asif Khan and Alberto Vargass harm.

Defendants proposed jury instruction named Commander Blair in every space designated for the defendant.

[3] The following proceedings were held in open court in the presence of the jury:

THE COURT: Okay. In the matter of Asif Khan, Alberto Vargs vs. City of Long Beach, BC318885. The parties, counsel and jury are reassembled in court. Good morning.

THE JURY: Good morning.

THE COURT: And the first thing I wanted to tell you is that plaintiffs have dismissed their claims against Commander Blair. The City of Long Beach is the only remaining defendant. [] So does plaintiff wish to call your first witness.

MR. SMITH: Yes, Your Honor. The plaintiff will call Officer Khan.