Filed 7/14/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JASON BRILEY, B295666
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BC630552)
CITY OF WEST COVINA, ORDER MODIFYING
OPINION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:*
It is ordered that the opinion filed July 1, 2021 be
modified as follows:
On page two, line four replace the word “Alberts” with
“Albers”.
The modification does not change the judgment.
________________________________________________________
*MANELLA, P. J.
Filed 7/1/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JASON BRILEY, B295666
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BC630552)
CITY OF WEST COVINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry Green, Judge. Vacated in part,
affirmed in part, and remanded with directions.
Jones & Mayer and Krista Macnevin Jee for Defendant
and Appellant.
Liebert Cassidy Whitmore, J. Scott Tiedemann, David
A. Urban and Alex Y. Wong for League of California Cities
and California Special Districts Association as Amici Curiae
on behalf of Defendant and Appellant.
Public Employees Legal and Oshea V. Orchid; Benedon
& Serlin, Douglas G. Benedon and Wendy S. Alberts for
Plaintiff and Respondent.
___________________________________
INTRODUCTION
Respondent Jason Briley worked for appellant, the City
of West Covina (the City), as a deputy fire marshal. During
his employment, Briley complained that various City
officials, including his then-direct superior Larry Whithorn,
had ignored his reports of safety issues and engaged in
misconduct. He later complained that Whithorn and others
had retaliated against him in various ways. The City
commissioned an investigation of Briley’s claims but
ultimately concluded they were unfounded. While this
investigation was still pending, the City commissioned an
investigation of allegations that Briley had repeatedly
engaged in misconduct and unprofessional behavior. At the
conclusion of this second investigation, Whithorn initiated
Briley’s termination, and another City official upheld the
decision.
Briley contended his termination was the result of
retaliation for his prior complaints and initiated an appeal to
the City’s Human Resources Commission (HR Commission).
The commission was to hold an evidentiary hearing and
3
deliver its findings and recommendations to Whithorn and
City Manager Chris Freeland, who were the ultimate
decisionmakers in the appeal. However, Briley later
abandoned the appeal, asserting, among other things, that
the commission had no jurisdiction to consider his retaliation
claims, and that the appeal procedure was futile and
violated due process because Whithorn and Freeland were
biased against him and had prejudged his claims. He then
filed this action against the City, alleging retaliation under
Labor Code section 1102.5.
The City asked the trial court to dismiss Briley’s action
for failure to exhaust available administrative remedies, but
the court concluded that an appeal to the HR Commission
was unnecessary. It found that the commission had no
authority to consider Briley’s retaliation claim, and that an
appeal would have been futile because Whithorn and
Freeland had been personally embroiled in appellant’s
matter. The case proceeded to trial, and the jury found for
Briley and awarded him about $4 million, including $2
million in past noneconomic damages and $1.5 million in
future noneconomic damages. The trial court later denied
the City’s motion for a new trial. On appeal, the City claims
the trial court: (1) erred in concluding Briley was not
required to exhaust his administrative remedies;
(2) committed various evidentiary errors at trial; and (3)
abused its discretion in failing to reduce the jury’s excessive
awards for noneconomic damages.
4
We conclude that Whithorn’s involvement in the
underlying dispute, on one hand, and his expected role in
deciding Briley’s appeal, on the other, violated the
requirements of due process and therefore excused Briley
from proceeding with his administrative appeal. We also
find no reversible evidentiary error by the trial court.
However, we agree with the City that the $3.5 million
noneconomic damages award -- comprising $2 million in past
and $1.5 million in future noneconomic damages -- was so
excessive as to suggest it resulted from passion or prejudice.
We therefore vacate the awards for past and future
noneconomic damages and remand for a new trial on these
issues, unless Briley accepts a reduction of the awards to $1
million and $100,000, respectively. In all other respects, the
judgment is affirmed.
BACKGROUND
A. Briley’s Employment with the City and His
Subsequent Complaints Against Whithorn and Others
In 2007, the City hired Briley as a fire-protection
specialist and later promoted him to deputy fire marshal. As
deputy fire marshal, Briley oversaw the operations of the
Fire Prevention Bureau, which included checking building
code plans for Fire Code compliance, inspecting existing
buildings for compliance, and conducting fire investigations.
Briley was initially supervised by Whithorn, then the fire
marshal and assistant fire chief.
5
In June 2014, Briley complained to the City’s HR
director, Nita McKay, that several City officials, including
Whithorn and then-City Manager Chris Chung, had failed to
address his reports of Fire Code violations and had allowed a
building permit to issue for a development before the
building plans had passed fire inspection. McKay hired a
private firm to investigate Briley’s allegations and notified
Chung and Whithorn. After making his initial complaints,
Briley additionally complained that Whithorn and others
had retaliated against him. Among other things, he alleged
that Whithorn had canceled his scheduled overtime, moved
him to a smaller office, and changed his take-home vehicle.
These new allegations were included in the pending
investigation. Briley also filed grievances against the City
with the City’s HR Commission, raising the same claims of
retaliation and alleging that Whithorn had engaged in
additional retaliation by giving him a poor performance
review. 1 McKay resigned from her position in October 2014,
before the investigation concluded. In January 2015, the
investigating firm delivered its findings to then-Assistant
City Manager Freeland, who also served as the acting HR
director at the time. The firm concluded that Briley’s
allegations were largely unfounded, and Freeland adopted
these findings. Whithorn later testified at his deposition
that his working relationship with Briley had become
1 The HR Commission ultimately concluded that most of
Briley’s claims did not constitute grievances within the
commission’s jurisdiction under the City’s personnel rules.
6
“strained,” that Briley had undermined his authority by
bringing “trumped up charges,” and that Briley had tried to
intimidate him.
B. Complaints Against Briley and the Larson
Investigation
While the investigation of Briley’s allegations against
City officials was still pending, Whithorn, Chung, and others
informed Freeland of multiple complaints against Briley
involving allegations of misconduct and unprofessional
behavior. Among other things, Briley was alleged to have:
(1) addressed a fire captain in an unprofessional manner and
used profanity in addressing a local worker when responding
to a fire alarm at a Victoria’s Secret store; (2) improperly
obtained a prospective City employee’s personnel form; and
(3) used profanity in addressing individuals at a CrossFit
gym. Freeland then retained another firm to investigate the
allegations against Briley. Carolin Larson, a private
investigator and retired police officer, conducted the
investigation.
During her investigation, Larson interviewed many
witnesses, including Briley. Briley denied most of the
allegations against him. In May 2015, Larson completed her
investigation and delivered her 157-page report to the City.
She concluded Briley had exhibited a pattern of unbecoming
conduct, unprofessional behavior, and incompetence, and
that he had been untruthful in denying the allegations
7
against him. By this time, Chung had left the City, and
Whithorn had been elevated to fire chief.
C. Briley’s Termination and His Withdrawn Appeal to
the HR Commission
After reading Larson’s report, Whithorn issued Briley a
notice of intent to terminate. The City’s finance director,
Christa Bughagiar, conducted a pre-termination hearing,
and in September 2015, decided to uphold Briley’s
termination and issued him a notice of termination. Around
the same time, Freeland was elevated to city manager.
Through his counsel, Briley protested his termination and
asserted it was “clearly further retaliation against [him] for
his reporting of safety concerns and filing of grievances.” In
December 2015, Briley initiated an administrative appeal to
the City’s HR Commission.
Under the City’s municipal code, eligible employees
who have suffered certain adverse employment actions may
appeal to the commission. (West Covina Mun. Code,
§ 2-254.) The City’s personnel rules provide that the HR
Commission must grant the employee an evidentiary
hearing “to determine the accuracy and sufficiency of the
facts attendant to the disciplinary action imposed.” After
the hearing, the HR Commission must deliver its findings
and recommendations to relevant City officials and to the
employee. (West Covina Mun. Code, § 2-257.) “The official
from whose action the appeal was made shall then review
such findings and recommendations with the city manager[,]
8
and upon approval of the city manager, shall then affirm,
revoke or modify the original action taken.” (Ibid.) The
parties agree that in the case of Briley’s administrative
appeal, the ultimate decisionmakers following the HR
Commission’s review would have been Whithorn, as the
original decisionmaker, and Freeland, as the city manager.
The HR Commission scheduled hearings on Briley’s
appeal for May 2016. However, in April 2016, Briley’s
counsel notified the commission that Briley would not be
proceeding with his appeal because doing so would be futile.2
Among other complaints, counsel asserted there had been
inordinate delays in the process and claimed the commission
had no jurisdiction over Briley’s claims of retaliation.
Counsel also claimed it would be futile to proceed because
Freeland, the ultimate decisionmaker in the appeal, had
already found Briley’s retaliation allegations unfounded, and
because one attorney from the firm that served as West
Covina’s city attorney had advised Freeland in making that
2 As discussed below, a party must generally exhaust
available administrative review procedures before seeking the
courts’ intervention. (Coachella Valley Mosquito & Vector
Control Dist. v. California Public Employment Relations Bd.
(2005) 35 Cal.4th 1072, 1080 (Coachella Valley).) However, the
exhaustion doctrine is subject to several recognized exceptions,
including the agency’s lack of jurisdiction (id. at 1081-1082),
futility based on the certainty of the agency’s adverse ruling
(Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313),
and the remedy’s failure to satisfy due process (Imagistics
Internat., Inc. v. Department of General Services (2007) 150
Cal.App.4th 581, 591 (Imagistics)).
9
determination, while another served as the commission’s
counsel.
D. Briley’s Complaint and the Trial Court’s Ruling on
the City’s Lack of Exhaustion Defense
In August 2016, Briley filed this action against the
City, asserting a single cause of action for retaliation in
violation of Labor Code section 1102.5. Shortly before trial,
the City moved for a separate trial under Code of Civil
Procedure section 597, on its defense that Briley had failed
to exhaust the City’s administrative remedies. 3 In a trial
brief on the issue, Briley argued he was not required to
pursue an appeal to the HR Commission, contending, inter
alia, that: (1) the procedure was inadequate because the
commission lacked authority to consider his retaliation
claims; (2) the procedure violated the requirements of due
process because the ultimate decisionmakers, Whithorn and
Freeland, were biased against Briley, and because the
commission’s counsel had a conflict of interest; and (3) for
essentially the same reasons, pursuing the procedure would
have been futile. The City argued in its brief that no
exception to the exhaustion requirement applied.
3 Code of Civil Procedure section 597 provides for the
separate trial of any defense “not involving the merits of the
plaintiff’s cause of action but constituting a bar or ground of
abatement to the prosecution thereof . . . .” (Code Civ. Proc.,
§ 597.)
10
Following a hearing, the trial court concluded that
Briley was excused from pursuing an appeal to the HR
Commission. The court found that the procedure would have
been futile because the ultimate decisionmakers, Whithorn
and Freeland, had been personally embroiled in the dispute
and had prejudged Briley’s claims. It further found that the
procedure did not provide an adequate remedy because the
commission lacked authority to consider claims of
retaliation. The matter proceeded to trial in October 2018.
E. The Trial and the Jury’s Verdict
Numerous witnesses testified at trial, including Briley,
Whithorn, Freeland, Larson, McKay, and Chung.4 Briley
generally sought to show (1) that his initial complaints
against City officials were justified, (2) that the City had
retaliated against him in various ways, including by
initiating the investigation against him, (3) that the
allegations against him were largely false, and ultimately,
(4) that the City terminated him in retaliation for his
complaints. The City, on the other hand, generally sought to
show (1) that Briley had made false and frivolous
allegations, in part to support a future claim of retaliation,
(2) that he had been repeatedly rude and unprofessional
with members of the public and repeatedly dishonest during
4 The trial court allotted each side 18 hours to question
witnesses and make its case to the jury.
11
Larson’s investigation, and (3) that the City had relied in
good faith on Larson’s findings in terminating Briley.
After trial, and following brief deliberations, the jury
found for Briley on all issues. It awarded him over $500,000
in economic damages, $2 million in past noneconomic
damages, and $1.5 million in future noneconomic damages.
The City moved for a new trial, asserting, inter alia, that the
jury’s award was excessive, but the trial court denied this
motion.
DISCUSSION
A. The Exhaustion Requirement and the Due Process
Exception
The City claims the trial court erred in concluding that
Briley need not have exhausted his administrative appeal to
the City’s HR Commission. As explained below, we conclude
Whithorn’s expected role in deciding Briley’s appeal violated
the requirements of due process and therefore excused Briley
from exhausting this remedy. 5
5 In their initial appellate briefs, the parties debated
whether Briley was excused from exhausting his administrative
appeal based on his claims that (1) bias by Freeland and
Whithorn and a conflict of interest by the HR Commission’s
counsel rendered the procedure futile, and (2) that the HR
Commission lacked jurisdiction to consider his claim of
retaliation. With our permission, the League of California Cities
and the California Special Districts Association filed a brief as
amici curiae, also addressing the futility exception. At our
invitation, the parties filed supplemental briefs addressing the
(Fn. is continued on the next page.)
12
1. Principles
We review the application of the exhaustion doctrine to
undisputed facts de novo. (Citizens for Open Government v.
City of Lodi (2006) 144 Cal.App.4th 865, 873.) Under this
doctrine, a party must generally exhaust all available,
nonduplicative administrative review procedures before
resorting to the courts. (Coachella Valley, supra, 35 Cal.4th
at 1080.) This requirement “is principally grounded on
concerns favoring administrative autonomy (i.e., courts
should not interfere with an agency determination until the
agency has reached a final decision) and judicial efficiency
(i.e., overworked courts should decline to intervene in an
administrative dispute unless absolutely necessary).” (Ibid.)
The exhaustion doctrine is subject to several
recognized exceptions. Under one such exception, the
exhaustion requirement is excused if the relevant
administrative remedy fails to satisfy the standards of due
process. (E.g., Imagistics, supra, 150 Cal.App.4th at 591;
Unnamed Physician v. Board of Trustees (2001) 93
Cal.App.4th 607, 620.) As relevant here, due process entitles
a person seeking administrative review to “‘a reasonably
impartial, noninvolved reviewer.’” (Burrell v. City of Los
Angeles (1989) 209 Cal.App.3d 568, 581 (Burrell), quoting
Williams v. County of Los Angeles (1978) 22 Cal.3d 731,
due process exception. Given our conclusion that the due process
exception applied due to Whithorn’s expected role in the process,
we need not discuss Briley’s other claims and proffered
exceptions, including his claims pertaining to bias by Freeland.
13
736-737; accord, Nasha v. City of Los Angeles (2004) 125
Cal.App.4th 470, 483.)
“The standard of impartiality required at an
administrative hearing is less exacting than that required in
a judicial proceeding.” (Gai v. City of Selma (1998) 68
Cal.App.4th 213, 219.) For instance, the right to a fair and
impartial tribunal is not violated merely because the official
who made the initial disciplinary decision has the final say
in the administrative review process. (Burrell, supra, 209
Cal.App.3d at 579-580.) “It is also very typical for the
members of administrative agencies to receive the results of
investigations, to approve the filing of charges or formal
complaints instituting enforcement proceedings, and then to
participate in the ensuing hearings.” (Withrow v. Larkin
(1975) 421 U.S. 35, 56.) But “various situations have been
identified in which experience teaches that the probability of
actual bias on the part of the . . . decisionmaker is too high to
be constitutionally tolerable” (Kloepfer v. Commission on
Judicial Performance (1989) 49 Cal.3d 826, 834 (Kloepfer)),
including when the decisionmaker “has been the target of
personal abuse . . . from the party before him [or her]” (ibid.),
or “has become personally ‘embroiled’ in the controversy to
be decided” (Mennig v. City Council (1978) 86 Cal.App.3d
341, 351 (Mennig), quoting Taylor v. Hayes (1974) 418 U.S.
488, 501-503).
14
2. Analysis
Whithorn’s expected role in deciding Briley’s
administrative appeal presented an unacceptable risk of bias
that excused Briley from exhausting this remedy, given both
Whithorn’s personal embroilment in the controversy and the
significant animosity between Whithorn and Briley
stemming from the same controversy. Briley initially
accused Whithorn of failing to perform his professional
duties. He then complained that Whithorn had retaliated
against him for these initial allegations by cancelling his
overtime, moving him to a smaller office, and changing his
take-home vehicle. Briley also filed grievances asserting the
same claims of retaliation and alleging that Whithorn had
engaged in additional retaliation by giving him a poor
performance review.
Unsurprisingly, Whithorn did not appreciate Briley’s
allegations against him. He testified at his deposition that
their working relationship had become “strained,” that
Briley had undermined his authority by bringing “trumped
up charges,” and that Briley had tried to intimidate him.
Whithorn was among those who informed Freeland of
complaints against Briley, leading to the investigation
against Briley, and he was the one who later issued Briley
the notice of intent to terminate. After Whithorn initiated
Briley’s termination, Briley protested that this was simply
further retaliation.
Briley’s series of attacks against Whithorn’s integrity
would have been enough to raise concerns about Whithorn’s
15
ability to be impartial in reviewing any claim by Briley. (See
Kloepfer, supra, 49 Cal.3d at 834; Tincher v. Piasecki (7th
Cir. 1975) 520 F.2d 851, 855 [“as a matter of fundamental
due process, it is inherently improper for a person who has
been charged by an accused in a collateral proceeding to
participate as a committee member in the accused member’s
disciplinary hearing”]; cf. Hicks v. Watonga (10th Cir. 1991)
942 F.2d 737, 740-742, 751 (Hicks) [in action against city
councilmember who had voted to uphold plaintiff’s dismissal,
genuine issue existed whether councilmember was biased at
time of vote because plaintiff had previously filed grievance
against her and repeatedly criticized her].) Of course, the
claim Whithorn would have been called to consider in
reviewing Briley’s appeal was not just any claim, but a claim
that Whithorn himself had retaliated against Briley in
initiating his termination. Relevant to this claim would
have been Briley’s prior allegations that Whithorn had
retaliated against him and had failed to do his job.
Whithorn’s own integrity would have been front and center
in Briley’s appeal, all but compelling him to defend his
character (and possibly his career). (See Mennig, supra, 86
Cal.App.3d at 351 [where police chief had accused city
councilmembers of misconduct, was dismissed by city
council, and received reinstatement recommendation from
civil service commission on administrative appeal,
councilmembers were too personally embroiled in
controversy to be permitted to overturn commission’s
decision; councilmembers were “impelled to seek
16
vindication”].) Given that Whithorn had been among those
who had triggered the investigation against Briley, had been
repeatedly accused of misconduct and retaliation by Briley,
and had initiated Briley’s termination -- the allegedly
retaliatory decision he was to review -- he could hardly be
seen as a reasonably impartial decisionmaker in Briley’s
appeal. (See Today’s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 223 [“‘“[n]o man is
allowed to be a judge in his own cause; because his interest
would certainly bias his judgment, and, not improbably,
corrupt his integrity”’”].)
Under the City’s municipal code, Whithorn was to
review the HR commission’s findings and recommendations
“with the city manager,” and upon the city manager’s
approval, was to “affirm, revoke or modify” his own decision
to terminate Briley. (West Covina Mun. Code, § 2-257.)
This procedure would have given Whithorn a key role in
deciding Briley’s appeal, thus failing to satisfy the standards
of due process and excusing Briley from exhausting this
remedy. (See Imagistics, supra, 150 Cal.App.4th at 591;
Burrell, supra, 209 Cal.App.3d at 581.)
In arguing that Whithorn’s role as a decisionmaker did
not violate due process, the City asserts, “The decision was
not Whithorn’s, alone, but was subject to both the
independent evaluation of the Commission after a thorough
hearing, as well as the City Manager’s independent
approval.” We are not persuaded. Initially, the City’s
statement is inaccurate. Whithorn’s decision was not
17
“subject to” the HR Commission’s evaluation. Rather the
commission was to deliver findings and recommendations
that, with Freeland’s approval, Whithorn would have been
free to reject. Moreover, while any action by Whithorn
would have been subject to Freeland’s approval, the City’s
municipal code provided for a collaborative process, in which
Whithorn and Freeland were to review together the HR
Commission’s conclusions. Under these circumstances, one
biased decisionmaker was one too many. (See, e.g., Woody’s
Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th
1012, 1022-1023 [“allowing a biased decision maker to
participate in the decision is enough to invalidate the
decision”]; Stivers v. Pierce (9th Cir. 1995) 71 F.3d 732, 747
[single panel member’s bias tainted entire panel despite
unanimous vote; “on a small board . . . a single person’s bias
is likely to have a profound impact on the decisionmaking
process”]; Hicks, supra, 942 F.2d at 748 [single
councilmember’s bias sufficient to taint entire council;
“‘“Litigants are entitled to an impartial tribunal whether it
consists of one [person] or twenty[,] and there is no way
which we know of whereby the influence of one upon the
others can be quantitatively measured”’”].)
We do not hold that any prior conflict between an
employee and a superior will disqualify the latter from
serving as a decisionmaker in the employee’s administrative
proceeding. Nor do we hold that a decisionmaker must be
completely insulated from any matter relevant to the
proceeding to be reasonably impartial. In most cases, an
18
employee will be required to pursue an available
administrative remedy, notwithstanding some level of
adverse interactions with the ultimate decisionmakers or
prior involvement by them. We hold only that as a matter of
due process, an official whose prior dealings with the
employee have created substantial animosity and whose own
conduct and character are central to the proceeding may not
serve as a decisionmaker. Under the totality of the
circumstances here, we conclude Briley was excused from
exhausting the City’s administrative appeal procedure. 6
6 For the first time on appeal, the City argues that Briley
was required to: (1) raise the issue of Whithorn’s bias before the
HR Commission; and (2) challenge the City’s termination decision
in a petition for a writ of mandate. The City’s failure to raise
these contentions before the trial court constitutes forfeiture.
(See People v. Clark (2016) 63 Cal.4th 522, 584 [argument raised
for first time on appeal is forfeited].)
The City contends it did not forfeit these arguments
because “being ‘jurisdictional,’ exhaustion ‘can be addressed “at
any point in the proceedings . . . .”’” It is mistaken. Under the
weight of authority, the exhaustion doctrine does not implicate
the court’s subject matter jurisdiction, and its application may be
forfeited. (See, e.g., Green v. City of Oceanside (1987) 194
Cal.App.3d 212, 222 [our Supreme Court “ma[de] it abundantly
clear that the exhaustion doctrine does not implicate subject
matter jurisdiction”; “It is ‘jurisdictional’ only in the sense that a
court’s failure to apply the rule in a situation where the issue has
been properly raised can be corrected by the issuance of a writ of
prohibition”]; Kim v. Konad USA Distribution, Inc. (2014) 226
Cal.App.4th 1336, 1347 [“‘[T]he administrative exhaustion
requirement does not implicate the court’s subject matter
jurisdiction’”]; Planning & Conservation League v. Castaic Lake
(Fn. is continued on the next page.)
19
B. Evidentiary Challenges
The City challenges multiple evidentiary rulings by the
trial court. We review the court’s evidentiary rulings for
abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th
258, 266.) “Specifically, we will not disturb the trial court’s
ruling ‘except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.’”
(Ibid.) A miscarriage of justice results only if “it is
reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of
the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Water Agency (2009) 180 Cal.App.4th 210, 251 [failure to exhaust
administrative remedies is generally forfeited unless timely
raised]; see also Asimow et al., Cal. Practice Guide:
Administrative Law (The Rutter Group 2021) ¶ 15:125 [“the
emerging majority view” appears to be that exhaustion doctrine
may be forfeited].)
Moreover, the rule requiring a mandate proceeding as a
prerequisite to an action for damages, where applicable, is not a
matter of administrative exhaustion but “a form of res judicata,
of giving collateral estoppel effect to the administrative agency’s
decision.” (Briggs v. City of Rolling Hills Estates (1995) 40
Cal.App.4th 637, 646.) “Res judicata is not a jurisdictional
defense, and may be waived by failure to raise it in the trial
court.” (David v. Hermann (2005) 129 Cal.App.4th 672, 683.)
20
1. The Exclusion of Larson’s Report and Her
Testimony About the Statements of Others
a. Background
At trial, Larson testified about her investigation of the
allegations against Briley, including the nature of the
allegations, the witnesses she had interviewed in connection
with each incident, and the general basis for the findings she
had communicated to the City, which were unfavorable to
Briley. For instance, in relation to the Victoria’s Secret
incident, she testified that Briley had been accused of
speaking unprofessionally with a fire captain and using
profanity in addressing a local worker. Larson stated she
had concluded Briley’s denial of the allegations was
untruthful, and explained her conclusion was based on
statements from Briley and five others who were present,
noting that four of the others provided consistent versions
and supported the allegations.
During Larson’s testimony, the City’s counsel
attempted to introduce into evidence the 157-page report she
had submitted to the City, summarizing the statements of
witnesses she had interviewed and detailing her conclusions.
Briley’s counsel objected on hearsay grounds, and the trial
court sustained the objection.
The City’s counsel later sought to admit the executive
summary portion of Larson’s report, arguing outside the
jury’s presence that it was admissible to show the City had a
legitimate reason to terminate Briley, regardless of the truth
of the matters included in the report. The court disagreed,
21
suggesting that legitimate reasons existed only if the
statements relayed by the report were true. The court
further stated that a limiting instruction to the jury not to
consider the report for the truth of the matters asserted
“would be perfunctory,” as the jury would not be able to
“separate this out.”
When the City’s counsel asked Larson what various
witnesses had told her during her investigation, Briley’s
counsel again objected on hearsay grounds, and the court
similarly sustained the objection. Outside the presence of
the jury, the court stated that its concerns regarding the
relevant statements were “two-fold”: first, the statements
could justify Briley’s termination only if they were true,
meaning they would be relevant only for hearsay purposes;
and second, it would be very hard for the jury to distinguish
between relying on the statements for the truth of the
matters asserted and relying on them only to establish that
the investigation was conducted in good faith. However, the
court allowed Larson to relay statements by Briley, as a
party opponent, and certain other witnesses, either because
they had testified at trial or because Briley’s counsel did not
object.
b. Analysis
The City contends the trial court abused its discretion
in excluding Larson’s report and her testimony about the
statements she had gathered from other witnesses. It
argues this evidence was admissible for the non-hearsay
22
purpose of establishing the City’s state of mind as to Briley’s
termination, regardless of the truth of the excluded
statements. However, the City does not address the trial
court’s alternative ground for excluding the evidence: that
even with a limiting instruction, the jury would be unable to
consider the evidence for purposes of establishing the City’s
state of mind while refraining from considering the
statements for the truth of the matters asserted. Because
this ground was an independent basis supporting the court’s
ruling, the City’s failure to discuss it forfeits its challenge to
the ruling. (See Goncharov v. Uber Technologies, Inc. (2018)
19 Cal.App.5th 1157, 1167, fn. 8 [issue not briefed is
forfeited]; Christoff v. Union Pacific Railroad Co. (2005) 134
Cal.App.4th 118, 125 [where trial court granted summary
judgment against plaintiff on multiple independent grounds,
plaintiff’s failure to brief one of those grounds required
affirmance].)
Moreover, the trial court’s exclusion of the evidence
based on the risk that it would confuse the jury was not an
abuse of discretion. Under Evidence Code section 352, trial
courts have discretion to exclude relevant evidence upon
concluding that its probative value is substantially
outweighed by the probability that its admission will, among
other things, create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury. (Evid. Code,
§ 352.) As relevant here, even if evidence is otherwise
admissible, “it is subject to exclusion under Evidence Code
section 352 in the event the court determines that the
23
probative value of the evidence is outweighed by the risk
that the jury will consider it for impermissible hearsay
purposes.” (People v. Brown (1994) 8 Cal.4th 746, 763.) The
trial court made this determination with respect to Larson’s
report and her testimony about the statements she had
obtained. Given that Larson was able to testify about the
nature of the allegations she had investigated, the witnesses
she had interviewed in connection with each incident, the
basis for her findings, and in some cases the very statements
she had relied on, nothing in the record suggests the court’s
determination was an abuse of discretion. 7
7 We observe that contrary to the trial court’s conclusion, the
contested evidence was otherwise admissible for the non-hearsay
purpose of establishing that the City had terminated Briley for
valid, non-retaliatory reasons, regardless of whether those
reasons were correct. (See Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 358 [to constitute legitimate reasons for adverse
action, employer’s true reasons need not have been wise or
correct].) Briley cites People v. Sanchez (2016) 63 Cal.4th 665 for
its explanation that “[w]hen an expert relies on hearsay to
provide case-specific facts, considers the statements as true, and
relates them to the jury as a reliable basis for the expert’s
opinion, it cannot logically be asserted that the hearsay content is
not offered for its truth.” (Id. at 682.) This proposition is
inapposite, as Larson offered no expert opinion regarding the
truth of the allegations against Briley; instead, she testified
about her investigation and the findings she had presented to the
City, tending to show that the City had relied on her report in
good faith.
24
2. The Admission of McKay’s Testimony about
Her Conversation with Chung After Leaving
the City
a. Background
After McKay, the City’s former HR director, left her
position with the City, she was offered a position with
another employer pending a background investigation.
McKay then called Chung, the former city manager who had
also left the City by that time, because the prospective
employer wanted to speak with him about McKay.
At trial, Chung testified, without objection, that he had
told McKay not to offer him as a reference because things did
not end well between them. He stated he explained “the
issues that [he] saw” to McKay. In response to questioning
by Briley’s counsel, Chung confirmed he had mentioned
Briley’s name to McKay and told her he had heard that after
she left the City, she “came back as a witness for Briley . . . .”
However, he denied telling McKay that he would give her a
poor evaluation.
When McKay testified, Briley’s counsel asked her
about her conversation with Chung. The City objected on
relevance grounds, but the trial court overruled the
objection. The court noted that Chung had already testified
about the conversation without objection and stated that
Briley was entitled to impeach him. McKay then testified
she had told Chung that her prospective employer wanted to
speak with him and that she assumed he would give her a
25
good evaluation. According to McKay, Chung replied, “No,
you sided with Mr. Briley.”
b. Analysis
The City challenges the trial court’s admission of
McKay’s testimony about her conversation with Chung,
arguing this evidence was irrelevant and unduly prejudicial
because both McKay and Chung were no longer city
employees at the time. 8 We disagree.
In determining the credibility of a witness, a jury may
consider “any matter that has any tendency in reason to
prove or disprove the truthfulness of his testimony at the
hearing,” including “[t]he existence or nonexistence of a bias,
interest, or other motive.” (Evid. Code, § 780.) According to
McKay’s testimony, Chung had either refused to serve as a
reference for her or said he would not provide a favorable
evaluation because she had “sided with” Briley, thus
revealing his hostility to Briley. This evidence was thus
relevant to establish Chung’s bias against Briley.
McKay’s testimony was not unduly prejudicial for
purposes of Evidence Code section 352. “The ‘prejudice’
8 The City also suggests in a conclusory manner that
McKay’s testimony about her conversation with Chung
constituted inadmissible hearsay. (Appellants opening brief, 76-
77 [“neither were City employees at the time, so no hearsay
exception would apply”].) The City’s failure to develop the
argument forfeits the issue on appeal. (See Sviridov v. City of
San Diego (2017) 14 Cal.App.5th 514, 521 (Sviridov) [failure to
present reasoned argument constitutes forfeiture].)
26
referred to in Evidence Code section 352 is ‘evidence that
uniquely tends to evoke an emotional bias against a party as
an individual, while having only slight probative value with
regard to the issues.’” (People v. Cole (2004) 33 Cal.4th 1158,
1197.) Chung’s statement regarding Briley during his
conversation with McKay was by no means inflammatory,
especially given that the jury had already heard Chung
testify, without objection, that he had noted McKay’s support
for Briley in refusing to serve as her reference. (See People
v. Karis (1988) 46 Cal.3d 612, 638; People v. Roberts (1992) 2
Cal.4th 271, 305 [where jury had already properly heard
similar evidence, prejudice from contested evidence was
“slight”].) The trial court did not abuse its discretion in
allowing McKay’s testimony.
3. The Admission of Testimony About the Lack of
Disciplinary Action Against Briley’s Co-Worker
a. Background
As noted, one of the allegations against Briley was that
he used profanity in addressing individuals at a CrossFit
gym. When interviewed by Larson, both Briley and Shari
Miller, a co-worker who was also present, denied that Briley
had used profanity. Larson concluded that both were lying
and reported this conclusion to the City.
At trial, Whithorn testified he was more concerned
about Briley being untruthful than about his use of profanity
and his unprofessional conduct. On cross-examination,
Briley’s counsel asked Whithorn if Miller had been
27
disciplined for lying about the CrossFit incident. The City
objected, arguing the inquiry would be unduly prejudicial.
However, the trial court overruled the objection, and
Whithorn testified that Miller had not been disciplined for
lying. On re-direct, Whithorn explained that he had not
punished Miller because he did not believe her
misstatements were malicious or made with the intent to
deceive.
b. Analysis
The City claims the trial court abused its discretion in
allowing Whithorn’s testimony that Miller had not been
disciplined. It argues the court erred in failing to inquire
about the degree of similarity between Briley’s and Miller’s
circumstances and that Whithorn’s testimony was unduly
prejudicial. We disagree.
Whithorn testified that he was more concerned about
Briley’s lack of candor than about his use of profanity and
his unprofessional conduct. His failure to discipline Miller,
who had allegedly lied about the same CrossFit incident
Briley had allegedly lied about, tended to show that
Whithorn was not genuinely concerned about Briley’s
dishonesty but instead used the CrossFit incident as pretext
to terminate Briley. (See Iwekaogwu v. City of Los Angeles
(1999) 75 Cal.App.4th 803, 816 [employer’s disparate
treatment of plaintiff tends to prove pretext].) Nothing
required the trial court to conduct a searching assessment of
the similarity of the two employees’ circumstances before
28
allowing the contested testimony. The two cases the City
cites are inapposite. In one, the court held that without a
showing of sufficient similarity, evidence of other bad acts
was “nothing more than run-of-the mill propensity evidence,
which should have never been presented to the jury.”
(Pinter-Brown v. Regents of University of California (2020)
48 Cal.App.5th 55, 98.) Whithorn’s testimony did not
concern other bad acts or propensity. In the other case the
City cites, the Court of Appeal reversed the trial court’s
exclusion of evidence of other bad acts. (See Andrews v. City
and County of San Francisco (1988) 205 Cal.App.3d 938,
947.)
The City suggests the contested testimony was unduly
prejudicial because the time limits the trial court had
imposed on each side prevented it from eliciting testimony
about the differences between Briley’s and Miller’s
circumstances. The record belies this contention, as the City
did elicit Whithorn’s explanation for not punishing Miller,
viz., that he did not think Miller’s misstatements were
malicious or made with the intent to deceive. Moreover, no
significant amount of time would have been required for the
City to ask Whithorn such questions as whether Miller had
lied on multiple occasions and had been rude to members of
the public, similar to the allegations against Briley. Finally,
the City cites no authority, and we are aware of none,
holding that evidence may be excluded simply because its
opponent has run out of time to contend with it to the
opponent’s satisfaction. In short, the trial court did not
29
abuse its discretion in allowing Whithorn’s testimony
regarding the lack of disciplinary action against Miller.
4. The Exclusion of Evidence Regarding Briley’s
Subsequent Termination by the City of
Murrieta
a. Background
Several months after the City terminated Briley’s
employment, he was hired by the City of Murrieta as a fire
marshal, where he remained for about 10 months until his
employment was terminated. However, after Briley initiated
administrative proceedings challenging his termination, the
City of Murrieta agreed that his separation from
employment would be classified as a resignation, and that
the surrounding circumstances would not be disclosed to
others.
Before trial, Briley moved to exclude evidence of the
circumstances surrounding his separation from the City of
Murrieta, arguing, among other things, that this evidence
constituted inadmissible character evidence under Evidence
Code section 1101, subdivision (a). In opposing Briley’s
motion, the City represented to the trial court that Murrieta
had terminated Briley because he had (1) improperly
obtained and shared another employee’s confidential
personnel form, (2) engaged in “inappropriate behavior in
front of a school board superintendent,” and (3) told another
employee that he was going to “gut” a third employee with
whom he disagreed on a certain matter. The City argued the
30
evidence was admissible to prove that Briley had a
propensity to steal files and to retaliate against other
employees. The trial court disagreed and granted Briley’s
motion to exclude the evidence. At trial, the parties
stipulated that Briley had resigned from the City of
Murrieta and that his resignation was unrelated to his
termination from the City of West Covina.
b. Analysis
The City claims the trial court abused its discretion in
excluding evidence of the circumstances surrounding Briley’s
departure from the City of Murrieta. It argues, conclusorily,
that this evidence was admissible as probative of habit
under Evidence Code section 1105: “For instance, Briley had
engaged in verbally abusive behavior at Murrieta that could
support a habit or custom of doing so with businesses while
employed by West Covina (cursing or intimidating).” The
City’s perfunctory assertion is insufficient to raise a
challenge on appeal. (See Sviridov, supra, 14 Cal.App.5th at
521.) Moreover, the City forfeited any contention that
Briley’s verbally abusive behavior constituted a habit by
failing to raise it before the trial court, instead arguing only
that Briley had the propensity to steal personnel forms and
retaliate against other employees. (See Perez v. Grajales
(2008) 169 Cal.App.4th 580, 591-592 [“arguments raised for
the first time on appeal are generally deemed forfeited”].)
Finally, were we to consider the merits of the City’s
challenge, we would reject it. Evidence Code section 1101,
31
subdivision (a), prohibits admission of evidence of a person’s
character, including in the form of specific instances of his or
her misconduct, to prove the person’s conduct on a specified
occasion. (Evid. Code, § 1101, subd. (a).) However, under
Evidence Code section 1105, “[a]ny otherwise admissible
evidence of habit or custom is admissible to prove conduct on
a specified occasion in conformity with the habit or custom.”
(Ibid.) “[A] habit involves a consistent, semiautomatic
response to a repeated situation.” (Bowen v. Ryan (2008)
163 Cal.App.4th 916, 926.) The City’s offer of proof -- that
Briley had been “inappropriate” in front of a school board
superintendent and told another employee that he would
“gut” a third employee because he disagreed with her --
lacked any specifics that could allow a factfinder to conclude
that Briley’s conduct constituted a semiautomatic response
to a repeated situation. Accordingly, we find no abuse of
discretion by the trial court. 9
C. The Noneconomic Damages Awards
The City does not challenge the jury’s award of
$500,000 in economic damages. However, it challenges the
jury’s total award of $3.5 million in noneconomic damages --
$2 million in past and $1.5 million in future noneconomic
damages -- claiming that it was excessive and that the trial
9 The City contends the cumulative effect of the trial court’s
evidentiary errors warrants reversal. Because we have found no
erroneous ruling, there is no cumulative effect that may have
prejudiced the City.
32
court abused its discretion in denying its motion for a new
trial on this ground. As discussed below, we agree that the
jury’s awards were grossly disproportionate to the evidence
and cannot stand.
1. Background
At trial, Briley testified about his noneconomic
damages. He claimed that his termination had caused him
“distress” and that the ordeal was “tough” because his
livelihood was taken away and because he had been
dedicated to the City for eight years. In response to
questioning about any physical symptoms resulting from his
termination, he stated his termination was “upsetting,” and
later confirmed that he had “issues with [his] sleep” because
of the financial uncertainty he was experiencing at the time.
He suggested that at the time of his termination, he was
supporting his romantic partner’s children, aged 17 and 19.
Briley testified his termination was “pretty devastating,” as
he had been in fire service since he was 16 years old. When
asked to describe how he felt as a result of his termination,
he replied, “It’s just difficult,” stating that the City’s process
was unfair and that some of the allegations against him
were blatant lies, while others could have been worked
through if he had been notified of any concerns. According to
Briley, he continued to think about his termination almost
every day, and it still impacted his sleep and almost all
aspects of his life.
33
On cross-examination, Briley confirmed he had
experienced “the gamut of emotions” anyone would
experience upon being terminated. He further revealed that
he had seen a counselor once or twice, but reported no
mental health issues. The City’s counsel noted that Briley
had obtained a position as a fire marshal with the City of
Murrieta subsequent to his termination and asked Briley if
his decision to leave this position after about 10 months is
what truly bothered him. In response, Briley admitted he
had “walked away” from this fire-service position, but
claimed that what bothered him were West Covina’s false
allegations against him.
In closing argument, after arguing extensively about
the liability issues, Briley’s counsel asked the jury to award
him $1.5 million for past noneconomic damages and $1.5
million for future noneconomic damages. In the City’s
closing argument, counsel for the City mentioned the word
“incredulity,” said that he had had to look it up in the
dictionary, and explained its meaning to the jury. In Briley’s
rebuttal, his counsel accused the City’s counsel of lying to
the jury about having had to look up the word: “That was a
false statement that [the City’s counsel] made. . . . He knows
exactly what it meant, but he told you he had to look it up in
the dictionary. [¶] This is part of the game, part of the
smoke and mirrors. Hey, I’m a normal guy, I had to look it
up in the dictionary. . . . He’s probably used it 20 times and
34
he knew exactly what it meant. . . . That’s all part of the
smoke and mirrors of this case.”10
After brief deliberations, the jury returned a verdict for
Briley and awarded him over $500,000 in economic damages,
$2 million in past noneconomic damages, and $1.5 million in
future noneconomic damages. The City moved for a new
trial, arguing, inter alia, that the award was excessive and
the result of prejudice, bias, or passion. At a hearing on its
motion, the City suggested that Briley’s counsel’s attack on
its counsel’s character during closing argument prejudiced
the jury against it. The trial court denied the City’s motion
for a new trial, stating that the jury’s award was “a bit over
the top” and that the court would not have awarded that
amount, but that the jury was entitled to do so.
2. Principles
“‘The amount of damages is a fact question, first
committed to the discretion of the jury and next to the
discretion of the trial judge on a motion for new trial. They
see and hear the witnesses and frequently . . . see the injury
and the impairment that has resulted therefrom. As a
result, all presumptions are in favor of the decision of the
trial court [citation]. The power of the appellate court differs
10 After both parties delivered their arguments, counsel for
the City objected to Briley’s counsel’s assertion that he had lied to
the jury, and asked for a mistrial. The trial court denied the
motion, noting that no contemporaneous objection had been
made.
35
materially from that of the trial court in passing on this
question. An appellate court can interfere on the ground
that the judgment is excessive only on the ground that the
verdict is so large that, at first blush, it shocks the
conscience and suggests passion, prejudice or corruption on
the part of the jury.’” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 299 (Bigler-Engler).)
“‘[I]n a case where it appears that a verdict is so
grossly disproportionate to any reasonable limit of
compensation warranted by the facts as to shock the sense of
justice and raise at once a strong presumption that it is
based on prejudice or passion rather than sober judgment
[citations] the appellate court may reverse the judgment and
remand the case for a new trial either on all the issues or on
the issue of damages alone [citations], or it may, in the
interests of justice and with the consent of the party against
whom the modification is made, modify the judgment as to
the amount of damages, and affirm it as modified
[citations].’” (Buell-Wilson v. Ford Motor Co. (2006) 141
Cal.App.4th 525, 548 (Buell-Wilson), judg. vacated on other
grounds sub nom. Ford Motor Co. v. Buell-Wilson (2007) 550
U.S. 931.)
“In reviewing a noneconomic damage award[,] ‘[t]here
are no fixed or absolute standards by which an appellate
court can measure in monetary terms the extent of the
damages suffered by a plaintiff as a result of the wrongful
act of the defendant.’” (Buell-Wilson, supra, 141 Cal.App.4th
at 547-548.) “‘While the appellate court should consider the
36
amounts awarded in prior cases for similar injuries,
obviously, each case must be decided on its own facts and
circumstances.’” (Id. at 548.) In addition to the amount of
the award and its relation to the evidence, the court may
consider indications in the record that the factfinder was
influenced by improper considerations, such as inflammatory
evidence, misleading jury instructions, or improper
argument by counsel. (Bigler-Engler, supra, 7 Cal.App.5th
at 299.)
3. Analysis
We agree with the City that the jury’s total award of
$3.5 million in noneconomic damages is shockingly
disproportionate to the evidence of Briley’s harm and cannot
stand. Initially, the $2 million award in past noneconomic
damages -- covering a period of about three years between
Briley’s termination and the trial -- had no relation to the
evidence. Briley testified his termination was “pretty
devastating” and caused him distress because his livelihood
had been taken away, because he had been dedicated to the
City for eight years, and because he had spent his entire
career in fire service. He stated that he thought about his
termination almost every day and that the ordeal impacted
almost every aspect of his life. When asked, however, Briley
offered little detail regarding the distress he had experienced
or the impact his termination had on his life. He noted only
having sleep-related “issues” associated with financial
uncertainty, prior worries about his ability to provide for the
37
17- and 19-year-old children of his romantic partner at the
time of his termination, and feeling wronged by the City’s
unfair process and the false allegations against him.
There was no evidence that any of the problems Briley
described was particularly severe. He described no physical
symptoms beyond his unspecified sleep-related issues. He
had seen a counselor once or twice but reported no mental
health issues. On cross-examination, Briley confirmed he
had experienced the gamut of emotions anyone would
experience upon his or her termination from employment.
A discriminatory or retaliatory termination is
undoubtedly upsetting and warrants reasonable
compensation for any accompanying emotional distress.
(See, e.g., Sargent v. Board of Trustees of California State
University (2021) 61 Cal.App.5th 658, 661, 666, fn. 4
[$116,000 noneconomic damages award for retaliation
claims]; Mathews v. Happy Valley Conference Center, Inc.
(2019) 43 Cal.App.5th 236, 247 [$275,000 noneconomic
damages award for retaliatory termination claims];; Roberts
v. Ford Aero. & Communications Corp. (1990) 224
Cal.App.3d 793, 797 [$100,000 noneconomic damages award
for “severe emotional distress” caused in part by racially
motivated termination].) But without evidence of
significant, concrete harm, the typical post-termination
difficulties described by Briley cannot support an award of
$2 million for past noneconomic damages covering a period
of about three years, amounting to more than $1,700 per
day, including the roughly 10 months during which Briley
38
worked for the City of Murrieta. (Cf. Colucci v. T-Mobile
USA, Inc. (2020) 48 Cal.App.5th 442, 449, 461 [award of
$500,000 in past noneconomic damages for retaliatory
termination, covering period between July 2014 termination
and 2017 trial; following termination, plaintiff gained up to
100 pounds, became depressed and lethargic, and suffered
from stomach problems, sleeplessness, and rashes]; Hope v.
California Youth Authority (2005) 134 Cal.App.4th 577, 584-
585 [total award of $1 million in noneconomic damages for
harassment and retaliation where plaintiff suffered anxiety
so severe that it caused him to develop bleeding blister in
retina of his right eye, leading to permanent loss of vision].)
Indeed, not even Briley’s counsel suggested such an
excessive amount was appropriate.
Briley points to his emotional demeanor on the witness
stand, which the court’s comments confirmed. 11 But while a
jury may consider a plaintiff’s demeanor in assessing his or
her noneconomic damages, demeanor alone is no substitute
for testimony or other evidence of harm. (See Scala v. Moore
McCormack Lines, Inc. (2d Cir. 1993) 985 F.2d 680, 684
[“While a jury has broad discretion in measuring damages, it
‘“may not abandon analysis for sympathy”’”].) Giving
outsized weight to the plaintiff’s demeanor may in fact
reflect that the award is the result of passion rather than
measured judgment.
11 Outside the presence of the jury, the court noted Briley had
cried during his testimony.
39
The $1.5 million future noneconomic damages award
stands on even shakier ground. By the time of the jury’s
verdict, many of the issues Briley identified in his testimony
were substantially resolved or significantly diminished. The
half a million dollars in economic damages Briley stood to
receive should have eliminated any remaining financial
concerns tied to his termination from the City, and his
testimony did not suggest that he continued to provide for
any dependents. The jury’s favorable and sizable verdict
also vindicated Briley and counteracted any false or unfair
allegations against him. (Cf. Weller v. ABC (1991) 232
Cal.App.3d 991, 1013 [plaintiff experienced sorrow because
his mother died before jury verdict vindicated him].)
In his respondent’s brief, Briley asserts the City took
away his life’s dream to work in fire service. Yet Briley
admitted at trial that he had “walked away” from a fire
marshal position with the City of Murrieta and pointed
instead to the City’s false allegations as the cause of his
emotional distress, negating the suggestion that the City
was responsible for the loss of his career in fire services.
Under these circumstances, and given the absence of any
evidence of significant lasting harm, a $1.5 million award for
future noneconomic damages is no less than shocking.
Briley’s counsel’s attack on the integrity of opposing
counsel during his rebuttal argument further suggests that
the jury’s noneconomic damages award rested on improper
40
factors. 12 (See Bigler-Engler, supra, 7 Cal.App.5th at 304
[plaintiff’s counsel’s overheated rhetoric in closing argument,
including analogizing opposing counsel’s argument to rapist
saying that the victim “‘liked it,’” contributed to award of
excessive damages].) Without any foundation, Briley’s
counsel accused the City’s counsel of lying to the jury about
having had to look up the meaning of the word “incredulity,”
and suggested that the City’s counsel had similarly
attempted to deceive the jury about the case: “That was a
false statement that [the City’s counsel] made. . . . He knows
exactly what it meant, but he told you he had to look it up in
the dictionary. [¶] This is part of the game, part of the
smoke and mirrors. Hey, I’m a normal guy, I had to look it
up in the dictionary. . . . He’s probably used it 20 times and
he knew exactly what it meant. . . . That’s all part of the
smoke and mirrors of this case.” This personal attack on the
City’s counsel, shortly before the jury began its
deliberations, may have prejudiced the jury against the City
and contributed to its excessive award, which went beyond
even Briley’s counsel’s exorbitant request.
12 We have no occasion to decide whether Briley’s counsel’s ad
hominem attack on opposing counsel constituted misconduct,
although it reflected a lack of civility. What is important for
purposes of the damages award is the statements’ effect on the
jury, not attribution of fault. (Cf. Buell-Wilson, supra, 141
Cal.App.4th at 554 [defendant’s counsel’s inflammatory question
might have explained jury’s excessive award].)
41
Based on our review of the record, and in our collective
experience, the jury could have awarded Briley no more than
$1 million for past noneconomic damages, reflecting the
distress, financial uncertainty, and sleep-related issues he
experienced in the aftermath of his termination. We further
conclude the jury could have awarded no more than
$100,000 for Briley’s future noneconomic damages, reflecting
the largely diminished effects of his termination in the wake
of the jury’s verdict. While these amounts remain high in
relation to the evidence of Briley’s harm, we may not insert
our own assessment for that of the jury; instead, we ask only
what amount the jury could reasonably have awarded. (See
Bigler-Engler, supra, 7 Cal.App.5th at 299.) Accordingly, we
vacate the past and future noneconomic damages awards
and remand for a new trial on those issues, unless Briley
accepts a reduction of the awards to $1 million and $100,000,
respectively. (See id., at 306.)
42
DISPOSITION
The awards for past and future noneconomic damages
are vacated, and the matter is remanded for a new trial on
those issues, unless Briley consents to their reduction to
$1 million and $100,000, respectively. If he agrees to this
reduction, Briley must file his written consent with the clerk
of this court and serve it on the City within 30 days of this
opinion, in which case the trial court shall conduct any
further necessary and appropriate proceedings and enter
judgment consistent with this opinion. In all other respects,
the judgment is affirmed. Each party shall bear its own
costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
43