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March 13, 2026 Get Citation Alerts Download PDF Add Note

Yu v. Kaiser Foundation Health Plan CA1/1

California Court of Appeal

• Citations: None known
• Docket Number: A169089

• Precedential Status: Non-Precedential

• Opinion

• Authorities (44)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.3K)

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Combined Opinion

Filed 3/13/26 Yu v. Kaiser Foundation Health Plan CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

REGINE YU,
Plaintiff and Appellant,
A169089
v.
KAISER FOUNDATION HEALTH (Alameda County
PLAN, INC., et al., Super. Ct. No. HG20077399)
Defendants and Respondents.

Plaintiff Regine Yu sued her former employer, Kaiser Foundation
Health Plan, Inc. (Kaiser, erroneously sued as “Kaiser Permanente”) and two
of her colleagues at Kaiser, Shady El-Daoushy and Gwendolyn McElwee, for
age, race, gender, and disability discrimination, wrongful termination, and
retaliation in violation of the Fair Employment and Housing Act (FEHA; Gov.
Code, § 12940 et seq.). The trial court granted Kaiser’s motion for a directed
verdict as to some of Yu’s claims, and the jury found in favor of defendants on
Yu’s remaining claims.
On appeal, Yu challenges the judgment on numerous grounds,
including error in entering a directed verdict in favor of defendants, defects in
the special verdict form, evidentiary errors, instructional error, errors in the
jury selection process, and inadequate polling of the jury. For the reasons

1
discussed below, we conclude that Yu has not demonstrated reversible error.
We therefore affirm.
I. BACKGROUND1
Yu started working for Kaiser in 2011 as a senior data consultant.
Beginning in 2015, Yu reported to El-Daoushy, a manager in Yu’s
department.
A conflict soon arose between El-Daoushy and Yu over El-Daoushy’s
reviews of Yu’s work performance. Before El-Daoushy became her manager,
Yu received an overall rating of “Excellent” in her performance reviews. For
Yu’s 2015 performance review, El-Daoushy rated Yu as “Successful,” which
was a lower rating than “Excellent.” Yu believed she deserved a higher
rating and a promotion.
In a 2016 performance review, El-Daoushy gave Yu an overall rating of
“Performance Needs Improvement.” According to El-Daoushy, Yu had
refused assignments and exhibited a “lack of communication etiquette.” El-
Daoushy sought to place Yu on a “Performance Improvement Plan” (or PIP).
Yu disagreed with the performance review and characterized the PIP as “an
explicit act of personal retaliation” against her for her disagreement with El-
Daoushy’s performance reviews.
In October 2016, Yu began a 12-week medical leave of absence due to
her exhaustion and insomnia from working long hours at Kaiser. Her
physician later extended her leave through mid-February 2017.
In January 2017, McElwee, Kaiser’s disability manager, asked Yu’s
physician to specify the physical or mental limitations that prevented Yu

1 The appellate record is lengthy, consisting of over 4,000 pages.

Therefore, we limit our recitation of the background facts to the portions of
the record cited by the parties in their appellate briefs and that are relevant
to the issues we are deciding on appeal.

2
from performing her job duties and the “estimated duration” of those
limitations. Yu’s physician responded that Yu’s insomnia and anxiety were
causing Yu to have difficulty focusing and concentrating. Yu’s physician
further noted that Yu’s wrist and back pain reduced her ability to use a
keyboard and sit for long periods of time. The physician indicated that the
duration of Yu’s limitations would be an unspecified number of “months.”
After Yu sought to extend her leave of absence for another year,
McElwee reminded Yu that her leave would expire in April 2017 under
Kaiser’s medical leave policy, which generally limited the length of time that
an employee may take a medical leave of absence to six months. McElwee
advised Yu that if she needed an extended leave of absence, Yu’s physician
needed to identify Yu’s specific medical limitations or restrictions, their
estimated duration, and an expected return to work date. Yu said she would
follow up with her doctor.
Yu subsequently provided McElwee with a “work status report” from
her physician extending her leave through April 3, 2018. The report did “not
contain the required information” to determine reasonable accommodation.
In May 2017, McElwee reiterated to Yu that she had repeatedly asked
for but had not received information from Yu’s physician regarding Yu’s work
limitations and an expected return to work date. As a result, “the interactive
process [was] concluded and [Yu’s] employment with Kaiser [would] be
terminated.” Kaiser terminated Yu’s employment the following month.
After filing a complaint with the Department of Fair Employment and
Housing (DFEH), Yu initiated this action against defendants. Some of Yu’s
claims were subsequently dismissed, leaving the following causes of action for
trial: (1) discrimination based on age, race, and gender; (2) retaliation in
violation of the FEHA; (3) wrongful termination; and (4) disability

3
discrimination. Yu alleged that El-Daoushy discriminated and retaliated
against her by refusing to promote her and by terminating her employment.
At trial, El-Daoushy testified that Yu was “at the top of [her] job
family” so there was “no promotion.” However, Yu could have applied for a
managerial position in “a different job family.” El-Daoushy said he offered
Yu an “opportunity that is within the job description of the senior lead
consultant that [she could] lead people” to give her relevant experience in
case she decided to apply for a manager position in the future. It was not a
promotion; “you cannot fire or hire people, you don’t have people reporting to
you,” and there was no “additional pay.” After Yu “denied the opportunity,”
El-Daoushy gave the “lead” role to another woman over the age of 50, who
later applied for and received a manager position with Kaiser.
In her testimony, Yu acknowledged that her prior manager at Kaiser
had told her that she needed to apply for a promotion in another department
to receive a promotion. Additionally, the evidence shows that Yu urged El-
Daoushy’s boss to promote her to a manager position. He responded that she
should apply to manager positions when new positions were “posted.” The
parties stipulated to the fact that the only positions Yu applied for during her
employment with Kaiser were other senior data consultant positions.
Regarding her claims of discrimination, Yu testified that after two
employees retired in 2016, El-Daoushy hired three individuals who were
under the age of 40. She also testified that when she was on medical leave,
McElwee asked her to resign even though Yu had “completely cooperated
with” McElwee whenever McElwee requested information from Yu’s
physician.
McElwee testified that Yu was terminated because “we could not
continue to accommodate an indefinite leave of absence.” Although Yu

4
claimed that she sent McElwee an “evaluation” from her physician, McElwee
denied ever receiving the document. McElwee testified that Human
Resources did not consider Yu’s age, race, or gender in deciding to terminate
her employment, and El-Daoushy was not involved in the decision.
McElwee further testified that Yu did not complain to her about
discrimination occurring in the workplace. Other Kaiser employees similarly
testified that they were not aware of any complaints from Yu about
discrimination or retaliation.
After the parties rested, Kaiser orally moved for a directed verdict. The
trial court granted the motion as to Yu’s claims for retaliation in violation of
the FEHA and race and gender discrimination and as to the issue of whether
Kaiser failed to promote Yu. The jury returned a verdict in favor of Kaiser on
Yu’s remaining claims for disability discrimination, disparate treatment
based on age discrimination, and wrongful termination based on disability
and age discrimination.
II. DISCUSSION
A. Yu’s Burden on Appeal
“[I]t is a fundamental principle of appellate procedure that a trial court
judgment is ordinarily presumed to be correct and the burden is on an
appellant to demonstrate, on the basis of the record presented to the
appellate court, that the trial court committed an error that justifies reversal
of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) Absent
a contrary showing in the record, we make “ ‘all presumptions in favor of the
trial court’s action.’ ” (Id. at p. 609.) In showing error, an appellant’s opening
brief must provide “meaningful argument with citation to law or the
evidentiary record.” (Sehulster Tunnels/Pre-Con v. Traylor Brothers,

5
Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1345, fn. 16; see Cal. Rules
of Court, rule 8.204(a)(1)(B).)
Additionally, an appellant has the burden not only to show error, but
resulting prejudice, or the claim of error fails. (Century Surety Co. v. Polisso
(2006) 139 Cal.App.4th 922, 963, called into doubt on another ground in
Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 724, fn. 7; F.P. v.
Monier (2017) 3 Cal.5th 1099, 1107–1108.) These rules apply to self-
represented litigants. (Burnete v. La Casa Dana Apartments (2007) 148
Cal.App.4th 1262, 1267.)
As we will discuss, applying these principles, Yu fails to carry her
burden on appeal as to any of the issues she raises.
B. The Directed Verdict
We first address Yu’s challenges to the directed verdict. The trial court
granted Kaiser’s motion for a directed verdict on Yu’s FEHA claim for
retaliation after finding no evidence that Yu complained about
discrimination. The court also granted the motion as to the issue of whether
Kaiser failed to promote Yu, finding no evidence that Yu applied for a
promotion. Finally, the court granted the motion as to Yu’s disparate
treatment and wrongful termination claims based on race and gender
discrimination upon concluding that there was no evidence that Yu’s race or
gender was a substantial factor in Kaiser’s decision to terminate her.
Yu appears to argue that the court erred in granting defendants’
motion for a directed verdict because she presented evidence that Kaiser
retaliated and discriminated against her based on her race and gender. In
response, Kaiser asserts that the order granting the motion for directed
verdict should be affirmed because nothing in Yu’s opening brief

6
demonstrates the trial court erred in granting the motion. We agree with
Kaiser.
“ ‘A directed verdict may be granted only when, disregarding conflicting
evidence, giving the evidence of the party against whom the motion is
directed all the value to which it is legally entitled, and indulging every
legitimate inference from such evidence in favor of that party, the court
nonetheless determines there is no evidence of sufficient substantiality to
support the claim or defense of the party opposing the motion, or a verdict in
favor of that party.’ ” (Magic Kitchen LLC v. Good Things Internat., LTD.
(2007) 153 Cal.App.4th 1144, 1154.) To avoid a directed verdict, the opposing
party’s evidence must be more than a mere “scintilla.” (Newing v. Cheatham
(1975) 15 Cal.3d 351, 358–359.) In addition, any inference supporting the
opposing party’s case must be reasonable. (Id. at p. 365.) “[W]e decide de
novo ‘whether sufficient evidence was presented to withstand a directed
verdict.’ ” (North Counties Engineering, Inc. v. State Farm General Ins. Co.
(2014) 224 Cal.App.4th 902, 920.)
The trial court’s findings in this case are consistent with the law. To
have succeeded on a claim of retaliation in violation of the FEHA, Yu would
have had to show that she engaged in protected activity by “oppos[ing] a[]
practice[] forbidden” by the FEHA. (Gov. Code, § 12940, subd. (h)2; see CACI
No. 2505 [elements of FEHA retaliation claim].) “[O]ppos[ing] a[] practice[]
forbidden” by the FEHA includes complaining about conduct that the
employee reasonably believes to be discriminatory. (Yanowitz v. L’Oreal

2 Since judgment was rendered in this case, the Legislature amended

Government Code section 12940, with the amendments taking affect on
January 1, 2025. (Stats. 2024, ch. 877, § 1, effective Jan. 1, 2025.) These
amendments did not change subdivision (h) of the statute and do not affect
the substance of our analysis.

7
USA, Inc. (2005) 36 Cal.4th 1028, 1042, called into doubt on another ground
in Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 637,
fn. 8.)
To prevail on her race and gender-based disparate treatment and
wrongful termination claims, Yu would have been required to prove that her
race and gender were substantial motivating reasons for defendants’ decision
to terminate her. (See CACI No. 2500 [elements of disparate treatment
claim]; Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320–
1321.)
Finally, to the extent Yu’s claims were based on defendants’ failure to
promote her, there is authority that she would have been required to prove
that she applied for a promotion and was rejected. (See Ibarbia v. Regents of
Univ. of Cal. (1987) 191 Cal.App.3d 1318, 1327–1330.)
Nothing in Yu’s appellate briefs indicates that the trial court erred in
concluding that she failed to present evidence to support the foregoing
elements of her claims. First, Yu makes several factual assertions that are
unsupported by citations to the record. She also twice cites to a range of over
70 pages in the record as support for her assertions. “ ‘It is the duty of a
party to support the arguments in its briefs by appropriate reference to the
record, which includes providing exact page citations.’ ” (Duarte v. Chino
Community Hospital (1999) 72 Cal.App.4th 849, 856; see Salas v. California
Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1074 [appellate court
“not required to search the record to ascertain whether it contains support”
for plaintiff’s contentions].) Additionally, Yu cites several exhibits that are
not a part of the appellate record.
The specific portions of the record Yu does cite in support of her
argument that defendants discriminated and retaliated against her do not

8
refute the trial court’s findings. Most of her cited evidence shows some
adverse actions that El-Daoushy took against Yu and that Yu was a hard
worker, performed well at her job, and received positive feedback about her
work performance. Regarding her failure to promote claim, Yu cites a
screenshot of what appears to be a list of job openings for Kaiser that was
posted online in 2016. She also cites an e-mail she sent to El-Daoushy listing
certain requirements for him to meet before she assumed a “[l]ead” role,
including a salary increase and a higher performance review rating. None of
this evidence demonstrates that Yu complained of discrimination based on
her protected characteristics, that her gender or race was a substantial factor
in defendants’ decision to terminate her, or that she applied for a promotion
and was rejected.
Yu presents no authority or legal analysis demonstrating that her cited
evidence otherwise satisfies the elements of her claims. In particular, she
does not show that she engaged in protected activity under the FEHA as
alleged in her complaint3 or that she does not need to prove that she applied
for a promotion to establish her “failure to promote” claims. Without such a
showing, we must presume that the order granting the motion for directed

3 Kaiser acknowledges that taking a leave of absence constitutes

protected activity under the FEHA but asserts that Yu did not allege in her
complaint that she was terminated because she took a leave of absence. Yu
does not argue otherwise. In her reply brief, Yu claims she took other
“protected actions” but provides no authority or additional record cites in
support of this assertion. We therefore presume the trial court correctly
focused on the protected activity alleged in Yu’s complaint in deciding to
grant Kaiser’s motion for directed verdict as to Yu’s FEHA claims. (See
Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1048–1049 [reversing order
granting judgment notwithstanding the verdict where issue was not pleaded
in the complaint: “ ‘[t]he pleadings are supposed to define the issues to be
tried’ ”].)

9
verdict was correct. (See Salehi v. Surfside III Condominium Owners’ Assn.
(2011) 200 Cal.App.4th 1146, 1161–1162.)
Beyond the substantive merits of the motion for directed verdict, Yu
makes two arguments for reversal of the order granting the motion. Both
lack merit. First, she contends the court violated its own order in allowing
Kaiser to make an oral motion for a directed verdict, because the court’s pre-
trial order stated, “Any motions made during trial, such as . . . directed
verdict shall be made in writing.” Assuming without deciding that the court
violated its order by permitting an oral motion for directed verdict, Yu has
not demonstrated that any error in failing to require a written motion was
prejudicial. She had advance notice of Kaiser’s intent to make an oral motion
for nonsuit at the close of evidence. And she has not indicated on appeal
what different or additional argument she would have raised in the trial
court had Kaiser made its motion for a directed verdict in writing instead of
orally. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 698 [in the summary
judgment context, advising litigants to explain the “prejudice that has been
suffered by reason of the defective service and/or inadequate notice”].)
Second, Yu argues that the trial court “misinterpreted Kaiser’s directed
verdict as ‘retaliation on timeliness.’ ” (Boldface omitted.) She asserts that
Kaiser’s motion for a directed verdict raised two issues, failure to timely
exhaust administrative remedies and the lack of a causal connection between
her protected characteristics and the disputed employment actions. Yu
seems to be contending that the court improperly granted directed verdict as
to her FEHA retaliation claim based on her failure to timely exhaust her
administrative remedies.
Yu’s argument mischaracterizes the record. At the hearing on the
motion for directed verdict, Kaiser first raised the timeliness and causation

10
issues. Then, after the court stated that “all [Kaiser] argued” was the
timeliness of Yu’s DFEH complaint, Kaiser’s counsel said he “meant to add
the retaliation piece.” The court thereafter gave the parties an opportunity to
present argument on the issue of whether Yu engaged in protected activity
under the FEHA. The court ultimately granted the motion as to Yu’s
retaliation claim on the ground that Yu failed to present evidence at trial
that she engaged in protected activity under the FEHA. Thus, the court
granted the motion on a different ground raised by Kaiser and after both
parties had an opportunity to present argument on the issue. We therefore
find no error. Yu offers no legal authority demonstrating otherwise.
In sum, Yu fails to affirmatively demonstrate that the trial court
prejudicially erred in granting in part Kaiser’s motion for a directed verdict.
We therefore conclude that the court properly entered a directed verdict in
favor of defendants on Yu’s claims for retaliation in violation of the FEHA,
failure to promote, and race and gender discrimination.
C. The Special Verdict
In returning a special verdict finding Kaiser not liable on Yu’s claims
for disability discrimination, disparate treatment based on age
discrimination, and wrongful termination based on disability and age
discrimination, the jury found that Yu’s age and her physical or mental
condition were not substantial motivating reasons for Kaiser’s decision to
terminate her. On appeal, Yu presents a few challenges to the special
verdict, all of which we reject.
Yu first argues that Kaiser discriminated against her based on her age
and disability. Kaiser responds that the verdict should be affirmed because it
is supported by substantial evidence. We agree with Kaiser.

11
We review the jury’s findings on Yu’s discrimination and wrongful
termination claims for substantial evidence. (Hoglund v. Sierra Nevada
Memorial-Miners Hospital (2024) 102 Cal.App.5th 56, 75; Wilson v. County of
Orange (2009) 169 Cal.App.4th 1185, 1188.) “ ‘[T]he power of [the] appellate
court begins and ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will support the
[verdict].’ ” (Wilson, at p. 1188.)
“Substantial evidence is evidence that a rational trier of fact could find
to be reasonable, credible and of solid value. We view the evidence in the
light most favorable to the judgment and accept as true all evidence tending
to support the judgment, including all facts that reasonably can be deduced
from the evidence. We affirm the judgment if an examination of the entire
record viewed in this light discloses substantial evidence to support the
judgment.” (Faigin v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th
726, 736.)
As relevant to Yu’s age and disability discrimination claims, a
“ ‘substantial motivating reason’ ” is “a reason that actually contributed to
the” adverse employment action rather than a “remote or trivial reason.”
(CACI No. 2507.) It is not enough that the discrimination was “simply a
motivating factor” for the disputed employment decision. (Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 232.)
Substantial evidence supports the jury’s finding that Yu’s age and
disability were not substantial motivating factors in Kaiser’s decision to
terminate her. McElwee testified that Yu requested a leave of absence of
nearly one and one-half years. McElwee further testified that Kaiser’s policy
for medical leaves that exceed six months requires the employee to provide
“medical certification” from their physician “regarding any work limits or

12
restrictions” to support an extension of the leave, but Yu did not provide
medical certification after McElwee requested it. McElwee said she
terminated Yu for these reasons. Yu claimed that she mailed McElwee a
five-page “evaluation” from her physician, but McElwee said she did not
receive the document. Moreover, the five-page document did not provide
adequate information regarding Yu’s work limitations or restrictions and an
expected return to work date. McElwee further testified that Yu’s age had no
bearing on the decision to terminate Yu. The “only factors that we were
looking at” were “leave of absence [and] reasonable accommodations[.]” The
jury could have reasonably concluded from this evidence that Kaiser
terminated Yu not because of her age or disability but because she did not
return to work after her leave of absence expired or provide Kaiser with
sufficient information demonstrating her need for an extended leave. Though
Yu points out evidence favorable to her, we cannot reweigh the evidence or
resolve evidentiary conflicts. (Huang v. Board of Directors (1990) 220
Cal.App.3d 1286, 1293–1294.)
The sole authority Yu presents in her appellate briefs as support for
her argument that defendants discriminated against her, Jensen v. Wells
Fargo Bank (2000) 85 Cal.App.4th 245, does not persuade us that reversal is
required here. Yu cites Jensen for the proposition that an employer’s failure
to reasonably accommodate a disabled employee violates Government Code
section 12940, subdivision (a). (Jensen, at pp. 256–257.) She contends that
defendants failed to engage in the interactive process and provide her an
accommodation and failed to offer a “legitimate business reason” for not
accommodating her. Kaiser asserts that Yu was required to support her
request for an accommodation with sufficient medical documentation.

13
Although questions regarding the employer’s failure to accommodate
and engage in the interactive process may be relevant to a disability
discrimination claim (see Zamora v. Security Industry Specialists, Inc. (2021)
71 Cal.App.5th 1, 39), we agree with Kaiser that the verdict should not be
disturbed based on Yu’s interactive process and accommodation claims.
Where an employee has a disability that is not obvious, that employee has a
duty to “ ‘ “specifically identify the disability and resulting limitations, and to
suggest the reasonable accommodations.” ’ ” (Doe v. Department of
Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738–739; see
Wentworth v. Regents of University of California (2024) 105 Cal.App.5th 580,
598 [“[w]hen ‘the disability or the need for accommodation is not obvious’ and
the employer requests it, an employee must provide reasonable medical
documentation to confirm the employee’s relevant limitations”]; Cal. Code.
Regs., tit. 2, § 11069, subd. (d)(1).) The employee’s failure to provide the
required information is fatal to his or her interactive process and
accommodation claims. (Doe, at p. 740.) Here, the jury could have concluded
from the evidence that Yu’s mental and physical conditions were not obvious
and, as discussed, that Yu failed to provide Kaiser with reasonable medical
documentation to support an accommodation as requested by McElwee.
Yu next argues that the special verdict was “incomplete.” She seems to
suggest that the special verdict form omitted elements of her wrongful
termination claim, though she does not identify the elements of her claim
that she believes were omitted from the special verdict form or present
relevant authority. Regardless, we disagree that reversal is required here.
“A special verdict presents to the jury each ultimate fact in the case, so
that ‘nothing shall remain to the Court but to draw from them conclusions of
law.’ ” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,

14
285.) The elements of a cause of action constitute the ultimate facts in a civil
case. (Stoner v. Williams (1996) 46 Cal.App.4th 986, 1002; see Saxena v.
Goffney (2008) 159 Cal.App.4th 316, 326 [element of a battery claim missing
from special verdict].)
If the jury’s findings are dispositive of the action and leave nothing for
the court but to enter judgment for the defendants, the special verdict is “not
fatally incomplete.” (Contreras v. Goldrich (1992) 10 Cal.App.4th 1431,
1433–1434.) In Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, for
example, the jury found that a necessary element of the plaintiffs’ negligence
claim was not proven. (Id. at p. 1189.) The appellate court rejected the
plaintiffs’ argument that the special verdict was legally insufficient to
support the judgment, because the jury’s finding that the plaintiffs did not
prove an essential element of their cause of action was “ ‘dispositive of [the
defendant’s] nonliability.’ ” (Ibid.; see also Contreras, at p. 1433 [failure to
reach agreement on negligence issue on special verdict was not ground for
reversal where the jury found a lack of causation, which was dispositive].)
Here, the jury’s verdict was not fatally incomplete. Question numbers
one and three on the special verdict form asked the jury whether Yu’s age or
physical or mental condition were “substantial motivating reason[s]” for
Kaiser’s decision to terminate Yu’s employment. These questions reflect an
essential element of Yu’s wrongful discharge and disparate treatment claims
based on age and disability discrimination. (See CACI No. 2500 [element of
disparate treatment claim is that the plaintiff’s protected characteristic “was
a substantial motivating reason for” the decision to discharge the plaintiff];
Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th
1224, 1234–1235 [same for wrongful discharge claim].) The jury answered
“[n]o” to question numbers one and three on the verdict form. Thus, the jury

15
found that Yu did not prove a necessary element of her wrongful discharge
and disparate treatment claims. Therefore, “nothing remained for the court
but to draw the conclusion of law that respondent is not liable to appellant.”
(Contreras v. Goldrich, supra, 10 Cal.App.4th at p. 1433.)
Finally, Yu contends the special verdict form and jury instructions were
inaccurate, pointing to question number two on the form, which asks, “Did
Kaiser know that Yu had or treat Yu as if she had a physical or mental
condition that limited her ability to work.” Yu notes that when the jury
asked the trial court whether question number two was asking about the
point in time subsequent to Yu’s leave of absence or to the time she worked at
Kaiser prior to her leave of absence, the court responded, “I think it refers to
the time she worked at [Kaiser] prior to her discharge.” Kaiser disagrees
that the verdict form and jury instructions were inaccurate and additionally
asserts that any such error did not prejudice Yu.
Even assuming without deciding that the trial court incorrectly
answered the jury’s question about the verdict form, Yu fails to demonstrate
that the error was prejudicial. Instructional error is prejudicial “only when it
appears probable that the improper instruction misled the jury and affected
the verdict.” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213.) Yu does not
address how the alleged instructional error prejudiced her, and we do not see
how Yu can show prejudice. The jury answered “[y]es” to question number
two on the special verdict form, and thus they answered the question in Yu’s
favor. (See CACI No. 2540 [requiring plaintiff to prove that defendant knew
plaintiff had a history of having a physical or mental condition].) Moreover,
the jury found that Yu did not prove a different element of her claims, as
discussed above. Therefore, the jury’s answer to question number two on the
special verdict form could not have affected the verdict.

16
For these reasons, Yu’s challenges to the jury verdict fail.
D. The Trial Court’s Evidentiary Rulings
Yu challenges several of the trial court’s orders regarding the
presentation of evidence at trial. As the party challenging a trial court’s
evidentiary ruling, Yu has the burden to establish an abuse of discretion,
“ ‘which we will find only if the trial court’s order exceeds the bounds of
reason. [Citation.] “Where a trial court has discretionary power to decide an
issue, an appellate court is not authorized to substitute its judgment of the
correct result for the decision of the trial court.” [Citation.] We will only
interfere with the lower court’s judgment if appellant can show that under
the evidence offered, “ ‘no judge could reasonably have made the order that
he did.’ ” ’ ” (Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45,
52.)
1. Exclusion of Evidence
Yu contends the trial court improperly excluded relevant evidence. We
conclude that she has not shown reversible error.
As support for her argument, Yu points to the exclusion of a
communication between Kaiser’s in-house counsel and Yu’s attorney, Yu’s
Kaiser paystubs, evidence regarding “MetLife’s” denial of Yu’s claim for long-
term disability benefits, evidence regarding Kaiser’s opposition to the
DFEH’s discovery requests, an e-mail from El-Daoushy announcing that
three individuals accepted new positions with Kaiser, and documents from
the Costanzo Law Firm, who Yu allegedly hired to investigate her claims of
discrimination and retaliation.4 She asserts that this evidence proves

4 In the background section of her opening brief, Yu asserts that the

court excluded client comments about her work and “Shady’s Age
discrimination and retaliations evidence.” She does not develop the
argument further, and neither party indicates the basis for the trial court’s

17
Kaiser’s “bad faith,” the timeliness of her DFEH complaint, that Kaiser made
errors in her wage statements, and that she hired the Costanzo Law Firm as
“protective conduct” in response to Shady’s violation of “Kaiser PIP policy and
procedures.” (Boldface omitted.) She further asserts that the excluded
communication between Kaiser’s in-house counsel and her attorney
demonstrates that negative comments about her work performance were
untrue.
Kaiser contends the trial court properly excluded the foregoing
evidence because it was irrelevant to Yu’s causes of action and the allegations
in her complaint. Kaiser also argues that the court properly excluded the
communication between Kaiser’s in-house counsel and Yu’s counsel under
Evidence Code sections 350, 1152, 1200.
Yu has not met her burden to show the court abused its discretion in
excluding evidence. She does not explain how the evidence she contends was
improperly excluded is relevant to her claims by citation to the record and to
legal authority. (See Evid. Code, § 210 [defining “[r]elevant evidence” as
evidence “having any tendency in reason to prove or disprove any disputed
fact that is of consequence” to the parties’ claims].) For example, she does not
present any authority demonstrating that hiring counsel in response to
Shady’s violation of “PIP policy” may constitute protected conduct under the
FEHA. Nor does she refute Kaiser’s claim that communications between
Kaiser’s in-house counsel and her attorney were properly excluded under
Evidence Code sections 350, 1152, and 1200. Yu’s conclusory assertion that

decision to exclude this evidence. Absent a contrary showing, we presume
the court excluded the evidence for a proper reason, such as the evidence
being cumulative of other evidence that was admitted. (See Horn v. General
Motors Corp. (1976) 17 Cal.3d 359, 371 [“[t]he trial court has discretion to
refuse to admit cumulative evidence”]; Evid. Code, § 352.)

18
the court improperly excluded evidence and abused its discretion does not
satisfy her burden to show error affirmatively. (See Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 [“an appellant must
do more than assert error and leave it to the appellate court to search the
record and the law books to test his claim”].)
2. Limiting the Number of Witnesses
Yu also appears to take issue with the trial court’s decision to limit the
number of witnesses she could call to testify at trial. We disagree that this
decision constituted error.
In general, the trial court has discretion to control the evidence
presented at trial and to limit the witnesses called if admission of the
evidence will “necessitate undue consumption of time.” (Evid. Code, § 352;
see People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 149
[“[t]he Evidence Code expressly empowers trial judges to limit the
presentation of evidence, even evidence that is relevant and probative”].)
Thus, “[t]he court in its discretion may limit the number of witnesses who
may be called upon to testify with reference to a single question, . . . and the
court can refuse to receive evidence which is purely cumulative.” (Redondo
Beach School Dist. of Los Angeles County v. Flodine (1957) 153 Cal.App.2d
437, 449.)
The record in this case shows that the trial court imposed time limits
on the parties’ presentation of their case, including, for the liability phase of
trial, a limit of 12 hours for Yu’s direct examination of witnesses. On the
second day of testimony, the court warned Yu that she was not using her
time efficiently.
After the third day of testimony, the trial court again warned Yu that
she needed to use her time efficiently and avoid presenting evidence that was

19
“cumulative and repetitive.” The court told Yu that if she was using her time
well and needed to go over the time limits, the court would exercise its
discretion to give her more time to examine witnesses. On the fourth day of
testimony, the court advised Yu that the next day would be her last day to
call and examine witnesses. After some discussion about the relevance of the
remaining witnesses that Yu wanted to call, Yu decided to call only three
more witnesses.
On the fifth day of testimony, Yu told the court she wanted to call four
or five more witnesses. In response, the court indicated that her 12 hours
were nearly finished. The court further said to Yu, “[D]espite many warnings
from the court, you have repeatedly asked questions about issues that are
cumulative and only somewhat relevant to the case.” The court told Yu that
she could file a motion specifying the additional witnesses she wanted to call
and their relevance to her case. Yu filed an application seeking to call seven
additional witnesses, and the court granted the application as to one of the
witnesses.
On this record, the trial court did not abuse its discretion. It was
within the court’s authority to impose time limits on the parties’ presentation
of evidence. (California Crane School, Inc. v. National Com. for Certification
of Crane Operators (2014) 226 Cal.App.4th 12, 22 (California Crane School).)
The court repeatedly warned Yu throughout trial that she was not using her
time efficiently and was eliciting cumulative testimony on tangential issues.
The court also gave Yu multiple opportunities to show that she needed more
than 12 hours for direct examination. On appeal, Yu points to nothing in the
record indicating that the additional witnesses she sought to call could have
presented relevant testimony that was not cumulative. Therefore, she has

20
not shown that the court abused its discretion in not allowing her to call
additional witnesses.
Yu hints that she was prejudiced by the trial court’s limitation on the
number of witnesses she could call because the witnesses that were called to
testify were biased, and there “were many contradicted testimonies among
them.” She also asserts that Kaiser “kept misleading the jurors by quoting
the incorrect document.” These arguments are forfeited for Yu’s failure to
support them with authority and citations to the record.
3. Exclusion of Expert Witnesses
Yu next appears to contend the trial court prejudicially erred in
excluding expert witnesses from testifying at trial. She asserts that Kaiser
designated several doctors as its expert witnesses in the joint witness list and
had deposed three of the doctors, but the court failed to call them as
witnesses at trial. Kaiser responds that it was Yu’s responsibility to call the
doctors as witnesses, and she cannot now claim prejudice because of her own
failure to do so. Kaiser’s point is well taken. “[T]he decision to call witnesses
is ordinarily a trial tactic within the attorney’s control.” (People v. Penrod
(1980) 112 Cal.App.3d 738, 750.) Yu presents no authority or legal analysis
indicating that reversal is required here for the trial court’s failure to call
witnesses on its own motion. We therefore see no reason to reverse on that
basis.
4. Limits on Witness Questioning
Finally, Yu contends that she could not examine El-Daoushy and David
Frizzell, Kaiser’s human resources consultant manager, because the trial
court ordered her to provide her questions for those witnesses to the court in
advance, the court limited the questions allowed to be asked those witnesses,
and the court performed the direct examination of those witnesses. However,

21
Yu does not specify what testimony she sought (but was unable) to elicit from
El-Daoushy and Frizzell, nor does she address how such evidence would have
affected the outcome of trial.
“A trial court has the inherent authority and responsibility to fairly and
efficiently administer the judicial proceedings before it. [Citations.] This
authority includes the power to supervise proceedings for the orderly conduct
of the court’s business and to guard against inept procedures and
unnecessary indulgences that tend to delay the conduct of its proceedings.”
(California Crane School, supra, 226 Cal.App.4th at p. 22.)
The court’s inherent authority includes “broad authority over the
admission of evidence” (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367,
1379) and “the power to expedite proceedings” (California Crane School,
supra, 226 Cal.App.4th at p. 22) or restrict the length of witness testimony,
where further testimony would not significantly aid the trier of fact (id. at pp.
20, 22). Nonetheless, a court’s broad discretion to manage the litigation may
not deprive a party of a fair trial by denying the party the right to be heard
and “have his day in court.” (Id. at pp. 22–23.)
Here, the trial court warned Yu several times during trial that she was
testifying and “telling the witness what happened as fact” when she was
examining witnesses. On the fifth day of testimony, the court told Yu that if
the issue persisted, the court would either “cut[] off [her] ability to ask
questions” or require her to write out her questions and give them to the
judge to ask the witness. After Yu continued to ignore the court’s warnings,
the court ordered Yu to write out her final questions for El-Daoushy “so she
can be thoughtful about it.” In doing so, the court indicated that the 12 hours
it had allotted to Yu for direct examination of her witnesses were nearly
finished, but “despite many warnings from the court, [she had] repeatedly

22
asked questions about issues that [were] cumulative and only somewhat
relevant to the case.”
On this record, the trial court reasonably focused witness questioning
to enable Yu to adduce admissible, relevant, and non-cumulative evidence
within the estimated time of trial. This was within the court’s broad
authority to control and manage the proceedings efficiently. (California
Crane School, supra, 226 Cal.App.4th at p. 22.) Yu has not shown that the
court’s actions unduly restricted her ability to present her case.
E. Yu’s Remaining Contentions
Finally, Yu contends the trial court committed reversible error by
failing to poll the jury after the jury returned the special verdict, requiring
the parties to exchange deposition designations for trial witnesses, and
“fail[ing]” in the jury selection process. (Boldface omitted.) We address and
reject each contention in turn.5
1. Failure to Poll the Jury
Yu argues that the special verdict is “incomplete.” She contends that
the jury “had questions and got confused” about the special verdict form and
that due to this confusion, she asked the trial court to poll each juror to see if
they agreed with the verdict but the court refused to do so.

5 Yu appears to raise several other arguments that are mixed

indiscriminately throughout her opening brief. We need not consider these
arguments as they were not identified under a proper heading nor adequately
developed by Yu. (See Dinslage v. City and County of San Francisco (2016) 5
Cal.App.5th 368, 377, fn. 3 [“ ‘we do not consider all of the loose and disparate
arguments that are not clearly set out in a heading and supported by
reasoned legal argument’ ”].) Moreover, we decline to consider the new issues
Yu raises in her reply brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th
754, 764.)

23
What Yu omits from her appellate briefing is that the jurors were
confused about how to answer the poll, not the special verdict form, and this
confusion prompted the jury foreperson to tell the court that “all answers
were unanimous.” The court then asked if “every juror agree[d].” After the
jurors responded in the affirmative, the court asked if there was any juror
who disagreed. The record shows that “no one disagreed.” Although Yu told
the court that she “would like to know in every detail” how each individual
juror voted, the court said it was “not inclined to poll the jury further”
because “all of the jurors have indicated that they voted as indicated.”
“When a jury is composed of 12 persons, it is sufficient if any nine
jurors arrive at each special verdict.” (Keener v. Jeld-Wen, Inc. (2009) 46
Cal.4th 247, 255, italics omitted.) The jury’s verdict is signed by the
presiding juror and given to the clerk, who reads the verdict and asks the
jury whether it is their verdict. (Code Civ. Proc., § 618.) “Either party may
require the jury to be polled, which is done by the court or clerk, asking each
juror if it is the juror’s verdict.” (Keener, at p. 256.)
Code of Civil Procedure section 618 provides in part, “If upon inquiry or
polling, more than one-fourth of the jurors disagree [with the verdict], the
jury must be sent out again, but if no disagreement is expressed, the verdict
is complete and the jury discharged from the case.” That statutory provision
“effectively creates a ‘rebuttable presumption: If a verdict appears complete,
it is complete unless there is an affirmative showing [during polling] to the
contrary.’ ” (Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 257.) Code of
Civil Procedure “section 618 requires affirmative disagreement—an
utterance, statement, or some similar active conduct—of ‘more than one
fourth’ of the jurors in order to prevent a trial court from finding the verdict
to be complete and from then discharging the jury.” (Id. at p. 259.) “[A]

24
juror’s mere silence at polling, brought about by the trial court’s failure to poll
the juror on one of multiple special verdict questions, does not constitute an
expressed disagreement with the verdict under section 618.” (Ibid.)
Here, the record shows that each juror was polled, albeit collectively,
and none of them expressed disagreement with the verdict. Thus, we
conclude that the verdict is complete under Code of Civil Procedure section
618. To the extent Yu is suggesting that the polling was deficient because
the court did not poll each individual juror separately, she has not developed
an argument that reversal is required on that basis despite all jurors
expressing agreement with the verdict.
2. Deposition Designations
Yu argues that the trial court’s requirement that the parties exchange
deposition designations for trial witnesses wasted time and made the court
“impatient and rush[] to end the trial.” Yu provides no supporting authority
or citations to the record other than to the court’s orders requiring the
exchange of deposition designations for witnesses who would not be
appearing live at trial. (Boldface omitted.) Thus, the legal basis for this
argument is unclear, and we decline to speculate. Moreover, Yu has not
shown that the error, if any, affected the outcome of trial. “When an
appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.”
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)
3. Jury Selection Issues
Finally, in arguing that the trial court failed in the jury selection
process, Yu notes that she was entitled to six peremptory challenges and that
the court granted Kaiser’s request for an in-person trial but conducted jury
selection through “Zoom.” Yu appears to be arguing that the court committed

25
reversible error by conducting jury selection over Zoom and by denying her
the use of a peremptory challenge. We disagree on both counts.
For the first issue, Kaiser argues that the court’s decision to conduct
jury selection over Zoom was within the court’s discretion “to control voir dire
and to contain it within reasonable limits.” (People v. Banner (1992) 3
Cal.App.4th 1315, 1324.) Yu provides no authority to the contrary, nor does
she demonstrate that the alleged error resulted in prejudice to her. We
therefore find no reversible error based on the court’s decision to conduct jury
selection over Zoom.
Turning to Yu’s peremptory challenge argument, Yu presents no
argument or citation to the record in her opening brief in support of this
argument. She argues in her reply brief that the trial court denied her
peremptory challenge to remove the jury foreperson, but the few record
citations she provides do not support her factual assertions or indicate
whether the court denied Yu the use of a peremptory challenge. Moreover,
Yu confirms in her reply that there was “no court reporter to record the
improper” jury selection, and that the court clerk “failed to record how each
party exercised the peremptory challenge.” Without an adequate record, we
cannot determine whether the court improperly denied Yu the use of a
peremptory challenge and whether the denial was prejudicial. For these
reasons, we treat the point as forfeited. (See Badie v. Bank of America,
supra, 67 Cal.App.4th at pp. 784–785; Barak v. Quisenberry Law Firm (2006)
135 Cal.App.4th 654, 660 [“[f]ailure to provide an adequate record on an issue
requires that the issue be resolved against appellant”].)6

6 During oral argument, Yu appeared to contend that the trial court

committed cumulative error. We have rejected nearly all of Yu’s claims of
error. For her two remaining claims—that the trial court erroneously
permitted an oral motion for directed verdict and that the jury instructions

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III. DISPOSITION
The judgment in favor of defendants is affirmed.

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LANGHORNE WILSON, J.

WE CONCUR:

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BANKE, Acting P. J.

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SMILEY, J.

Yu v. Kaiser Permanente / A169089

were inaccurate—we have determined that any error was harmless.
Assuming without deciding that these two claims of error are meritorious, the
errors were not significant, even considered collectively. Thus, Yu’s claim of
cumulative error fails. (See People v. Bradford (1997) 15 Cal.4th 1229, 1382.)

27