Rudnicki v. Farmers Insurance Exchange CA2/2

Filed 1/2/24 Rudnicki v. Farmers Insurance Exchange CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ANDREW RUDNICKI, B321691

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC630158)
v.

FARMERS INSURANCE
EXCHANGE et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of
Los Angeles County. Ruth Ann Kwan, Judge. Affirmed in part
and dismissed in part.

Shegerian & Associates, Carney R. Shegerian and Jill
McDonell for Plaintiff and Appellant.
 Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr.,
Julian W. Poon, Jeremy S. Smith, Patrick J. Fuster, Matthew N.
Ball and Yan Zhao for Defendants and Appellants.

______________________________

Andrew Rudnicki (Rudnicki) brought this wrongful
termination action against his former employers, Farmers
Insurance Exchange (FIE) and Farmers Group, Inc. (FGI)
(collectively Farmers). Following a 24-day trial, the jury found in
favor of Rudnicki on his claim for retaliation, awarding him $5.4
million in compensatory damages and $150 million in punitive
damages. The trial court reduced the punitive damage award to
$18.9 million, but left the rest of the verdict standing.
Farmers appeals, first arguing that we should reverse the
judgment on liability because (1) Rudnicki could not prevail on a
claim for retaliation; and (2) the trial court issued certain
erroneous evidentiary rulings. Alternatively, if we do not reverse
on liability, Farmers asks us to eliminate or substantially reduce
the damage award.
Because Farmers’s arguments are unconvincing, we affirm
the judgment. It follows that Rudnicki’s protective cross-appeal
is dismissed as moot.

2
 1
FACTUAL AND PROCEDURAL BACKGROUND
Rudnicki’s employment
Farmers hired Rudnicki in 1979. He worked his way up as
a trial lawyer to supervising attorney, comanaging the
Los Angeles office, and divisional supervisor. In 2013, he was
promoted to senior vice president of claims litigation (meaning
head of claims litigation) and led Farmers’s branch legal offices
(BLO’s). The BLO’s provide legal representation to Farmers’s
insureds. In this role, Rudnicki was responsible for outside
counsel that represented Farmers’s insureds, legal bill review,
and legal vendors.
Initially, Rudnicki’s department reported to Farmers’s
general counsel. But in 2008 or 2009, the department began
reporting to FIE’s chief claims officer, Keith Daly (Daly).
Female attorneys’ 2013 inquiries regarding gender disparity
In 2013, Lisa Sepe-Wiesenfeld reported to Rudnicki, who
tasked her with participating on a conference call with multiple
attorneys to address some of their gender-based concerns
regarding women in leadership/promotions. Participants
included Catherine Meta Pugh (Pugh), who worked in human
resources (HR), and attorneys Christine Campbell (Campbell),
Karen Wasson (Wasson), and Bethany Soule (Soule). Rudnicki
then had multiple phone conversations with these three
attorneys (Campbell, Wasson, and Soule) regarding gender
issues.

1
“In summarizing the facts, we view the evidence in favor of
the judgment.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
693–694 (Roby).)

3
 In September 2013, Soule e-mailed Wasson, “Andy said he
was considering asking [Pugh] to run the numbers to determine if
women were paid equally to men,” and thought “there might be
some disparity.”
Rudnicki asked Pugh for demographic information about
women versus men in leadership, particularly in claims
litigation; Rudnicki requested pay information to determine if a
pay differential existed. Pugh had access to the information but
needed Suzanne Elliott’s (Elliott) approval. Elliott apparently
2
then went to Laura Rock (Rock) for approval. At the time they
discussed whether to provide this information to Rudnicki, Elliott
and/or Rock “rais[ed] the concern that release of this data could
possibly expose Farmers to liability.” Ultimately, both Elliott
and Rock refused the request.
Coates class action
On April 29, 2015, Lynne Coates filed a class action lawsuit
against Farmers (Coates), alleging, inter alia, that “Farmers
systematically pays female attorneys less than similarly-situated
male attorneys. Not only are male attorneys paid more, they are
routinely given higher profile work assignments; are given raises
and promotions more frequently; and are recognized for their
accomplishments while female attorneys are not. In general,
Farmers advances the careers of its male attorneys more quickly
while treating its female attorneys more like support staff.” In
October or November of that year, Wasson became the lead
plaintiff in Coates.

2
At the time, Elliott and Rock were both high level HR
employees. Elliott was a head HR business partner for claims,
and Rock was FGI’s HR head.

4
 Farmers retained Paul Hastings, LLP (Paul Hastings) to
represent it in the Coates action.
Rudnicki’s intended deposition testimony
In late 2015, Rudnicki went to Daly’s office to explain that
he had been prepared by Paul Hastings and expected to give a
deposition in Coates; he stated that he would be testifying about
what he believed were some HR failures, specifically, the fact
that the gender disparity issue had been raised and that HR
denied his requests for gender demographics and pay disparity
3
documents in 2013. Daly became red-faced and agitated. Daly
unhappily said something like “I don’t see that you need to testify
about that.” Rudnicki replied that he did not get to dictate which
questions were asked of him.
Daly testified at the trial in this matter that he knew that
Rudnicki was going to be deposed in Coates. He agreed that had
Rudnicki testified that he believed a pay disparity existed but
documentation about it had been refused, that could have been
potentially “very bad” for Farmers.
Daly’s treatment of Rudnicki changes
On December 22, 2015, Daly sent Rudnicki an e-mail titled
“Seasons greetings” and attaching an article: “Insurer facing
class action threat in California.” Rudnicki took the e-mail
sarcastically; Daly agreed that it was not a greeting.

3
In a declaration filed in support of Farmers’s motion for
summary judgment, Daly declared: “Rudnicki certainly never
told me that he had previously escalated gender concerns” or that
HR denied that request. At trial, Daly admitted that this was
false.

5
 Thereafter, Daly treated Rudnicki with an icy chill. For
example, in February and March 2016, Daly did not ask Rudnicki
to speak at Farmers’s big conference, even though he had spoken
there every year for the preceding 10 years. At another event,
when every other department head was asked to speak, Rudnicki
was excluded.
The Coates litigation settles
The Coates litigation settled in principle on April 13, 2016,
before Rudnicki was ever deposed.
Termination of Rudnicki’s employment
One month later, on May 13, 2016, Farmers terminated
4
Rudnicki’s employment. When asked for a reason, Daly and
Elliott told Rudnicki that there were “HR issues” and that he was
responsible for the Coates settlement. Elliott told Rudnicki that
his “behavior ha[d] become a risk to the organization.” But, Daly
did not review Rudnicki’s personnel file before terminating his
employment; he was only familiar with his own reviews of
Rudnicki. Elliott also did not review Rudnicki’s personnel file
5
before Rudnicki’s employment was terminated.

4
The evidence was inconsistent regarding who was involved
in the decision to terminate Rudnicki’s employment. At one
point, Daly testified that he discussed it with FGI’s chief
executive officer and chairman of the board Jeffrey Dailey
(Dailey) and FGI’s general counsel, Steven Weinstein. Daly also
testified that the only two people involved in the decision to
terminate Rudnicki’s employment were Daly and Elliott.
5
Deborah Aldredge (Aldredge), FGI’s chief administrative
officer since 2013, testified that Farmers does not necessarily
require review of a personnel file in executive terminations, but it

6
Rudnicki’s lawsuit
On August 10, 2016, Rudnicki filed the instant lawsuit,
alleging nine causes of action against Farmers. Only five claims
survived Farmers’s motion for summary judgment/adjudication:
(1) age discrimination, (2) gender discrimination, (3) disability
discrimination, (4) retaliatory termination, and (5) a derivative
claim for wrongful termination.
As is relevant to the issues in this appeal, the retaliation
6
claim, as set forth in the operative first amended complaint,
alleges that in or around 2014, “a few female attorneys from
Farmers’ in-house legal department brought a class action
against Farmers. The women alleged that they were underpaid
compared to the men in the same departments. This simply was
not true.” After Farmers retained Paul Hastings to represent it
in the Coates litigation, Coates settled. “Right after the
settlement, Rudnicki was fired.”
Pretrial evidentiary rulings
A. Rudnicki’s comment about his potential deposition
testimony in Coates
Prior to trial, Farmers moved to exclude testimony from
Rudnicki about his conversation with Daly about his potential
deposition testimony in Coates; according to Daly, that
conversation did not occur. The trial court denied Farmers’s
motion, reasoning that notwithstanding Rudnicki’s role as in-

was Farmers’s practice to review personnel files pretermination
as a component of the decision.
6
Portions of the pleading are redacted.

7
house counsel, he was merely “telling his superior, as a witness,
this is what [he] intend[s] to testify.”
B. Alleged instances of Rudnicki’s mistreatment of women
at work
Rudnicki moved to exclude evidence of his prior
misconduct, including inappropriate comments and behavior
towards female employees. According to Farmers, this evidence
would have corroborated Daly’s stated reasons for firing him and
significantly undermined Rudnicki’s claims of pretext. The trial
court ruled that Farmers could rely only on Daly’s stated reasons
to show a lack of retaliatory motive, because evidence of
Rudnicki’s other bad acts would be “more prejudicial than
probative” and an “undue consumption of time.” But, the trial
court cautioned that Rudnicki’s counsel could not “open the door
to character evidence of what a great leader he is and how much
we love him.” “[I]f [Rudnicki’s counsel] ask[s] an inartful
question [that] opens that door[,] that’s [his] problem.”
Trial
A. Farmers’s explanation and evidence as to why
Rudnicki’s employment was terminated
Daly disputed that Rudnicki ever told him about the
substance of what Rudnicki might say in a deposition in Coates:
Because both Daly and Rudnicki were potential deponents, Daly
said he would not have discussed that with Rudnicki. Daly also
believed Rudnicki had an obligation to testify truthfully, no
matter the “potentially” bad effect, “and then we would have to
respond as an organization.” Finally, Daly testified he fired
Rudnicki not for potential deposition testimony, but because

8
Rudnicki was unfit to continue in senior management, as
7
multiple examples of his misconduct demonstrated.
First, Farmers asserted that Rudnicki did not escalate the
female attorneys’ complaints to Bryan Murphy (Murphy),
Rudnicki’s supervisor prior to Daly, or Daly. This failure fell
short of Murphy’s and Daly’s expectations of how a senior
executive and department head should have handled the
complaint, and prevented leadership from responding
8
proactively. It also violated Murphy’s “no surprises” policy for
his direct reports.
Second, Rudnicki asked another employee, Kami Gray
9
(Gray), in a buffet line at a work event, “[h]ow [can] you eat all
that and keep a girlish figure?” A witness testified that Gray
appeared “shocked” and “offended” with her “eyes wide open.”
Daly cautioned Rudnicki that “this couldn’t happen again.”
10
Third, Rudnicki allegedly told a lesbian employee, Mikyla
Moody (Moody), that the departure of an openly lesbian colleague

7
Rudnicki contends that Farmers fabricated these
pretextual reasons to retaliate against him.
8
Daly admitted at trial that no written policy required
Rudnicki to escalate this issue to his supervisor, as opposed to
HR. Rather, Pugh, the HR partner assigned to Rudnicki’s
department, was the right person to bring the gender
disparity/discrimination issue to.
9
Her name is also spelled “Grey” in the appellate record.
10
Rudnicki denied making this comment.

9
in February 2016 meant that Farmers would need to find
“another lesbian to fill the lesbian quota,” which Moody found
“derogatory and demeaning.”
Fourth, in 2015, when Rudnicki met with a female
subordinate, Valerie Labarba (Labarba), he sat in a “V position”
“within inches” of her in her cubicle, where his legs “straddled”
and “touch[ed]” her knee. She felt “uncomfortable” and “leaned
back as much as [she] could,” while Rudnicki “lean[ed] forward.”
When Farmers investigated this incident, Rudnicki treated it as
a joke, asking the investigator, “was I wearing a kilt?”
Fifth, Rudnicki commented on the physical appearance of a
fellow senior executive, Aldredge, in front of her husband at a
11
2011 work event. Aldredge recalled Rudnicki saying, “‘I know I
was staring at you. Couldn’t help. I saw these two attractive
people in the room and I just had to say, who are these folks’”;
she found these comments “embarrassing” and “trivializing to
[her] job.” Aldredge also testified that she felt that Rudnicki’s
remark was a “little over the top” and inappropriate, but she
never talked to him about it, complained, or documented it.
Daly learned about this incident after he had initially
decided to let Rudnicki go, but considered this “additional
interaction” as a factor in his final decision.
Sixth, Rudnicki resisted Daly’s dismissal of attorney
Timothy O’Shea for destroying documents subject to a litigation
hold in Coates. But, based on the relevant timeline, Daly
admitted that “it could not have physically been a factor” in
Daly’s decision to terminate Rudnicki’s employment.

11
According to Aldredge, this interaction occurred in 2010.

10
 B. Work reviews
The parties offered conflicting evidence regarding
Rudnicki’s work reviews.
1. Rudnicki’s evidence
During the time Daly supervised him, Rudnicki received no
complaints from the 850-plus employees who reported to
Rudnicki.
For many years, Rudnicki received positive reviews. In
2012, he was ranked overall “Exceeds expectations.” In 2013,
Murphy noted that Rudnicki was “driving superior performance
across all areas of his responsibility” and promoted him to senior
vice president. In 2014, Rudnicki “continue[d] to be a valued
member of the Claims team, he brings a style and grace that
makes our team better.” And in 2015, Daly rated Rudnicki as
outstanding regarding customer centricity and successful in all
other areas; no ratings were below “successful.” There is no
indication in any of the written performance reviews that
Rudnicki behaved unprofessionally, and Daly never questioned
Rudnicki’s leadership ability.
2. Farmers’s evidence
According to Farmers, Murphy warned Rudnicki about
improperly “seeking attention” and about being a “class clown”
and a “‘feudal lord.’”
C. No progressive discipline
Pugh testified Farmers utilized a corrective action policy
for all employees, giving them an opportunity to correct their
alleged misconduct before other action is taken. Despite the
claims at trial of Rudnicki’s misconduct, no progressive discipline
was ever used with Rudnicki. Elliott never warned him about

11
improving his behavior, offered him a performance improvement
plan, or suggested counseling.
D. Rudnicki’s character evidence
Although the trial court had cautioned Rudnicki against
opening the door into character evidence, he elicited evidence
that he was supportive and respectful of women and LGBTQ
individuals. Rudnicki’s counsel repeatedly coaxed evidence out of
Daly that Rudnicki was “very supportive of women in the
workplace,” “always respectful of female employees” “in [Daly’s]
presence,” and “very supportive of LGBTQ inclusivity,” and that
Daly had personally never heard Rudnicki “say anything that
was inappropriate.”
After hearing this testimony, the trial court said it “may”
allow rebuttal evidence of Rudnicki’s bad acts “because [Rudnicki
had] opened that door.” Later, the trial court again warned,
before Rudnicki testified, that “I am not going to allow
Mr. Rudnicki to start talking about” what a “great” and “fair”
manager he was. “If you do, you risk having me allowing specific
instance[s] of allege[d] bad conduct.” Nevertheless, Rudnicki
testified that he was a “great ambassador for the Claims
Department” and “cheerleader for [his] people,” received the
“opposite” of criticism for how he addressed “females in the
workplace,” helped women “lean in,” was a “very strong advocate
of the LGBTQ,” and “had a good sense of humor that most people
appreciated.” The trial court observed once again that “the door
has been opened” and admonished Rudnicki’s counsel that “you
need to stop pushing the envelope to the point where you are
going to get the whole thing busted.”
On appeal, Farmers complains that as soon as this evidence
was presented to the jury, it should have been allowed to

12
introduce evidence of six instances of Rudnicki’s misconduct
(evidence excluded prior to trial):
(1) Labarba was not only subjected to Rudnicki’s V-position
straddle during a one-on-one meeting with him, but she also
“recall[ed] maybe a half a dozen times where [Rudnicki] would,
during the conversation, put his . . . hand on [her] shoulder while
talking,” which she found “inappropriate”;
(2) Rudnicki put his hand on Elliott’s back as they walked
offstage after participating in a panel at a conference;
(3) The night before he commented on her “girlish figure,”
Rudnicki told Gray that she should not drink too much or she
might “end up dancing on a table”, which would have undercut
Rudnicki’s characterization of Gray as “thin-skinned” and
“overreacting”;
(4) Catherine Morris, who shared a cubicle with Labarba in
Rudnicki’s department, complained about him “touching someone
on the shoulder or arm” and “invading her physical space” at
work;
(5) Rudnicki referred to one of his female subordinates as
“exotic” in a talent review with his peers; and
(6) Rudnicki made another female subordinate, Kamala
Wedding, uncomfortable by insisting on carrying her suitcase into
her hotel room.
E. Rudnicki’s evidence of damages
In addition to evidence in support of his request for
economic damages, Rudnicki offered evidence in support of his
claim for noneconomic damages. Rudnicki testified that his
termination adversely impacted every aspect of his life. He found
being unemployed at 64 years old sad and humbling, only
experiencing flashes of his old enthusiastic and outgoing

13
personality and unreasonably lashing out at his family in anger.
His wife explained that his Farmers job meant absolutely
everything to him; he lived, breathed and worked Farmers, the
most important thing to him along with his family. Rudnicki
went from being the most positive person to withdrawn, angry
and unapproachable. And, Rudnicki’s relationships with both of
his daughters deteriorated.
Experts agreed. Clinical psychologist Craig Snyder
administered the Personality Assessment Inventory (PAI) and
SIRS-2 (malingering test) and testified that Rudnicki suffered
from moderate to severe major depressive disorder and
generalized anxiety disorder to a moderate degree. The PAI
noted Rudnicki’s withdrawal, difficulty engaging, fatigue, feeling
demoralized, and futility in engaging, which meant that he was
not a candidate for cognitive behavioral therapy.
Defense expert Dr. Matthew Carroll concurred that
Rudnicki suffered from symptoms of depression and anxiety after
the termination of his employment.
And, Rudnicki’s cardiologist, Dr. Sanjiv Goel, testified that
on November 29, 2016, Rudnicki went to the emergency room
with chest discomfort/angina, not a heart attack. Dr. Goel
believed that stress due to his job loss contributed to the chest
pain.
Nonsuit
The trial court nonsuited Rudnicki’s gender discrimination
claim and instructed the jury on age discrimination, disability
discrimination, retaliation, and wrongful termination.
Jury verdict
The jury rejected Rudnicki’s age and disability
discrimination claims. But the jury sided with Rudnicki on

14
wrongful termination and retaliation, finding that his role as a
“witness or potential witness in the Coates v. Farmers lawsuit”
was a “substantial motivating reason” for his termination. It also
found that Farmers’s “stated reason of . . . Rudnicki’s
unprofessional behavior and failure to meet [its] expectations for
a leader of its branch legal offices” was not “a substantial
motivating reason” for its decision to discharge Rudnicki. And, it
found that Farmers engaged in “malice, oppression, and/or
fraud.” He was awarded $5,413,344 in compensatory damages
($3,413,344 in past economic damages; $1 million in future
economic damages; and $1 million in noneconomic damages) and
$150 million in punitive damages.
Farmers’s motion for judgment notwithstanding the verdict
(JNOV) and motion for new trial
Farmers moved for JNOV, arguing that Rudnicki did not
engage in protected activity that could support a retaliation claim
under the Fair Employment and Housing Act (FEHA); no
reasonable juror could have found causation between Rudnicki’s
potential deposition in Coates and his termination; the attorney-
client and attorney-work-product privileges foreclosed Rudnicki’s
claims; and punitive damages could not be awarded. Farmers
alternatively moved for a new trial, arguing that the $150 million
punitive damages award was excessive; as such, it was
unconstitutional. It also asserted that the $1 million award of
noneconomic damages was excessive. Last, it asserted that the
trial court wrongfully excluded “rebuttal evidence of Rudnicki’s
inappropriate treatment of women.”

15
Trial court order denying JNOV, but reducing the punitive
damage award from $150 million to $18.5 million
A. Participation in private FEHA lawsuits is protected
activity
The trial court denied the JNOV motion, finding that
participation in private FEHA lawsuits is protected activity. In
so ruling, the trial court expressly found that Rudnicki assisted
in a FEHA lawsuit: “[T]he record contains evidence that Farmers
knew that Rudnicki was identified as a witness in Coates, he
prepared for his deposition in that case with Farmers’s counsel
Paul Hastings, and his testimony would be adverse to them.
Specifically, at trial, Rudnicki testified that in around November
2015, he told Daly that he ‘was going to be giving a deposition in
the Coates matter,’ had ‘been prepared to give a deposition in the
Coates matter,’ and ‘was going to have to be testifying about what
[he] believed [were] some failures of Farmers[’s] human resources
department.’ [Citation.] As he made that last statement, he
observed Daly become ‘kind of red faced and agitated.’ [Citation.]
And as set forth above, the third claim in Coates was a FEHA
violation. [Citation.] Those facts are sufficient to establish that
Farmers perceived that Rudnicki had, at minimum, ‘assisted in
any proceeding under this part.’ (Gov. Code, § 12940, subd. (h).)”
The trial court further rejected Farmers’s contention that
retaliation claims can only be brought in administrative
proceedings, reasoning: “Farmers’s interpretation would give
employers carte blanche to retaliate against their employees for
testifying adversely to them in in-court FEHA lawsuits—an
absurd result that would be contrary to FEHA’s purpose and
policy.” “[T]hus, Rudnicki’s participation in Coates is a qualifying
protected activity.”

16
 The trial court also rejected Farmers’s argument that
Rudnicki could not “establish the protected activity element
because it decided to terminate his employment after Coates had
settled, thus obviating him as a witness and any incentive for
them to discourage or prevent him from testifying.” “FEHA does
not allow an employer to make an end-run around its protections
because the protected activity ended.” “Thus, Rudnicki engaged
in a protected activity (or Farmers perceived him as such) even
though he did not actually testify in Coates.”
B. Attorney-client privilege and work product doctrine do
not warrant dismissal
The trial court next rejected Farmers’s contention that
“Rudnicki’s claims should be dismissed because he could not have
established them without breaching the attorney-client privilege
or attorney work product doctrine, and Farmers could not have
defended them without doing so.” It found that “Rudnicki acted
in his capacity as a percipient witness. [He] testified that he ‘was
not even indirectly involved’ in hiring counsel to defend Farmers
in Coates, ‘handling the litigation,’ or making ‘tactical decisions.’
[Citation.] Rather, Farmers’s general counsel was. [Citation.]
As the Court observed in hearing Farmers’s motion in limine
about evidence of Rudnicki’s conversation with Daly about his
anticipated Coates testimony [citation], the dynamic of that
conversation was that Rudnicki merely communicated that he ‘is
going to be a subpoenaed witness, and he’s telling his superior, as
a witness, this is what [he] intend[s] to testify.’ [Citation.] So
too, when Rudnicki’s attorney delivered his closing argument, he
merely stated that ‘Rudnicki explained to Mr. Daly this is just
the real[i]ty of what I saw.’ [Citation.] Nothing about . . . that
conversation discloses that Rudnicki was providing his legal

17
opinion or otherwise acting as Farmers’s counsel in that
communication, thus negating the existence of a requisite
attorney-client relationship, or divulging any communications he
had with outside counsel when preparing for his Coates
deposition.”
“Indeed, Farmers retained an outside law firm (Paul
Hastings) to defend it in Coates. There is no evidence that
Rudnicki was charged with mounting Farmers’s defense in that
case. And there is no dispute that Rudnicki’s duties as a senior
vice president at Farmers were focused on managing its in-house
branch legal offices overseeing claims litigation, not outside
litigation.”
“Farmers also asserts that Rudnicki’s testimony about the
reasons Coates settled” was improper. “Even if that testimony
were omitted, the evidence that Farmers perceived Rudnicki’s
anticipated testimony as adverse to them—prior to the Coates
settlement—would supply the jury with sufficient evidence to
find retaliation and need not require Farmers to divulge
privileged information or communications in proffering contrary
evidence about its decision-makers’ state of mind. Indeed,
Rudnicki’s testimony focused on his conversation with Daly and
Daly’s verbal and non-verbal responses that supported a
reasonable inference that Farmers perceived Rudnicki’s
anticipated testimony as adverse to it, which testimony would
supply the jury with sufficient evidence to find retaliation.
Rudnicki did not make arguments or testify about why Coates
settled. Rudnicki’s testimony regarding Daly’s statement (‘You
are responsible for the [Coates] litigation settlement’) was offered
to show Daly’s state of mind, not for the truth of the matter
asserted. Thus, Farmers’s claim that it could not defend its case

18
without revealing privileged communications is unsupported by
the testimony at trial or established cases.”
“In sum, under these facts, Rudnicki’s communications
with Daly were not privileged attorney-client communications,
and Farmers was not deprived of its defense in allegedly being
precluded from introducing evidence that Rudnicki’s anticipated
adverse testimony was not the reason Coates settled.”
C. Noneconomic damage award is not excessive
The trial court went on to find the noneconomic damage
award appropriate. “Rudnicki’s diagnosis was moderate to
severe, and he experienced numerous symptoms resulting from
his retaliatory employment termination.” He was diagnosed with
depression and anxiety, stemming from the termination of his
employment. Rudnicki’s cardiologist testified that “he thought
the stress from Rudnicki’s losing his job caused Rudnicki’s chest
pain.” And, Rudnicki’s wife testified that his “relationship with
her and their children declined, he was withdrawn, he lost his
social life that was previously connected with other Farmers
employees including golf outings, and he did not regularly shower
or change clothes.”
Finally, the trial court specifically noted that “the $1
million [the jury] awarded [Rudnicki] in noneconomic damages is
relatively small in comparison to [the amount of economic
damages] and does not appear to be punitive.”
D. Reduction of punitive damage award
The trial court found that “the record contains sufficient
evidence to support punitive liability against” Farmers. But, it
granted a new trial as to the amount of punitive damages,
conditioned on Rudnicki’s acceptance of a remittitur to an award

19
of $18,945,000 (representing a punitive-to-compensatory damages
ratio of 3.5-to-one).
Judgment
Rudnicki accepted the remittitur. The trial court then
entered an amended judgment awarding Rudnicki $24,358,344 in
total damages, as well as costs and attorney fees.
Appeal and cross-appeal
Farmers’s timely appeal from the judgment ensued.
Rudnicki timely filed a protective cross-appeal.
DISCUSSION
I. Rudnicki’s retaliation claim
A. Relevant law
Government Code section 12940, subdivision (h), makes it
unlawful “[f]or any employer . . . to discharge . . . any person
because the person has opposed any practices forbidden under
this part or because the person has . . . testified, or assisted in
any proceeding under this part.” To make out a prima facie case
of retaliation under the statute, the plaintiff-employee must show
that (1) he engaged in a protected activity, (2) the defendant-
employer subjected him to an adverse employment action, and
(3) a causal link existed between the protected activity and the
employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042.)
“[S]ection 12940, subdivision (h) encompasses a broad
range of protected activity.” (Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652, superseded by
statute on other grounds as stated in Castro-Ramirez v.
Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028,
1039 & fn. 3.) “[P]rotected activity takes the form of opposing
any practices forbidden by FEHA or participating in any

20
proceeding conducted by the [Department of Fair Employment
and Housing] or the Fair Employment and Housing Council
(FEHC). [Citations.]” (Nealy v. City of Santa Monica (2015)
234 Cal.App.4th 359, 380; see also Dinslage v. City and County of
San Francisco (2016) 5 Cal.App.5th 368, 382 [protected activity
includes “opposition to practices one could reasonably believe are
unlawful under the FEHA”].)
Relevant here, “[o]pposing practices forbidden by FEHA
includes . . . participating in an activity perceived by the
employer as opposition to discrimination.” (Nealy v. City of
Santa Monica, supra, 234 Cal.App.4th at p. 380, citing, Cal. Code
Regs., tit. 2, § 11021, subd. (a)(1).) Accordingly, it includes
“evidence an employer believed the plaintiff was a potential
witness in another employee’s FEHA action.” (Rope v. Auto-
Chlor System of Washington, Inc., supra, 220 Cal.App.4th at
p. 652.)
“Actions for retaliation are ‘inherently fact-driven’; it is the
jury, not the court, that is charged with determining the facts.
[Citation.]” (McCoy v. Pacific Maritime Assn. (2013)
216 Cal.App.4th 283, 299.)
B. Analysis
Rudnicki proved all elements of retaliation. (1) He engaged
in a protected activity, namely he prepared for a deposition that
would have gone against Farmers’s interests. (2) He was
subjected to an adverse employment action—his employment was
terminated. And, (3) Rudnicki proved a causal link between the
two—Rudnicki told Daly about his intended deposition testimony,
and a reasonable jury could infer that Rudnicki’s employment
was terminated because Farmers did not want him to offer
adverse testimony in Coates.

21
 C. Farmers’s challenges to the judgment
Urging us to reverse the judgment, Farmers argues that
Rudnicki failed to prove either a protected activity or causation
under FEHA.
1. Rudnicki was engaged in protected activity
Farmers asserts that Rudnicki was not engaged in a
protected activity because FEHA protects participation in
administrative proceedings only, not civil actions. To the extent
this issue calls for statutory interpretation, we conduct a de novo
review. (Lopez v. Ledesma (2022) 12 Cal.5th 848, 857.)
a. Relevant law
Government Code section 12940, subdivision (h), provides,
in relevant part, that an employer may not discharge an
employee “because the person has filed a complaint, testified, or
assisted in any proceeding under this part.” The statute is
encompassed within FEHA; and Government Code section 12965,
subdivision (b), “creates a private right of action to enforce
FEHA.” (Patterson v. Superior Court (2021) 70 Cal.App.5th 473,
486.)
Code of Civil Procedure section 22 defines an “‘action’” as
“an ordinary proceeding in a court of justice by which one party
prosecutes another for the declaration, enforcement, or protection
of a right, the redress or prevention of a wrong, or the
punishment of a public offense.” Similarly, Evidence Code
section 901 defines “proceeding” as “any action . . . in which,
pursuant to law, testimony can be compelled to be given.”
b. Analysis
Applying these legal principles, we conclude that protected
activity for purposes of a FEHA retaliation claim includes
participation or assistance with a civil action. As the trial court

22
aptly noted, Farmers’s contrary contention makes no sense.
“Farmers’s logic ignores that ‘this part’ . . . encompasses
Government Code section 12965, which statute ‘creates a private
right of action to enforce FEHA’ [citation], thus effectively
bringing private FEHA actions into the type of proceedings in
which an employee may have participated in asserting a
protected activity. Moreover, it ignores the case law, public
policy referenced therein, and related regulation that require
FEHA’s liberal construction.” The trial court continued:
“Farmers’s interpretation would give employers carte blanche to
retaliate against their employees for testifying adversely to them
in in-court FEHA lawsuits—an absurd result that would be
contrary to FEHA’s purpose and policy.”
Simply put, Farmers’s interpretation of “retaliation” is far
too narrow and unsupported by legal authority.
In making this argument, Farmers misleadingly directs us
12
to only part of section 11021 of title 2 of the California Code of
Regulations, which provides that an employer may not retaliate
against an employee for assisting or participating “in any manner
in an investigation, proceeding, or hearing conducted by the
Council or Department or its staff.” (Cal. Code Regs., tit. 2,

12
In its reply brief, Farmers asserts that Rudnicki “appears”
to be making an argument under Government Code section
12940, subdivision (h), which provides, in relevant part, that it
shall be unlawful for an employer to “discriminate against any
person because the person has opposed any practices forbidden”
by FEHA (the opposition clause). According to Farmers,
Rudnicki did not preserve this argument on appeal. Our analysis
should not be construed as a finding that Rudnicki proved his
claim under the opposition clause.

23
§ 11021(a).) But the entire regulation provides, in relevant part:
“It is unlawful for an employer to [retaliate against an employee]
because that individual has opposed practices prohibited by
[FEHA] or has . . . assisted or participated in any manner in an
investigation, proceeding, or hearing conducted by the [State
Civil Rights] Council or [Civil Rights] Department or its staff.”
(Cal. Code Regs., tit. 2, § 11021(a), italics and bold added.) Even
if Farmers were correct and a retaliation claim could only be
raised in connection with an administrative proceeding, that
theory accounts for just part of the regulation. It ignores the first
part of the regulation, which specifically notes that an employer
cannot retaliate against an employee for opposing practices
prohibited by FEHA. And opposing practices prohibited by
FEHA includes “[p]articipating in an activity that is perceived by
the employer . . . as opposition to discrimination.” (Cal. Code
Regs., tit. 2, § 11021(a)(1)(C) & (D).) Offering deposition
testimony contrary to Farmers’s interests falls squarely within
the scope of this language.
Farmers further contends that “No Appellate Decision Has
Extended FEHA’s Participation Clause to Civil Litigation.”
(Bolding omitted.) Again, Farmers’s argument is misleading.
While none of the cases cited by Farmers applies FEHA’s
participation clause to civil litigation, that is because that was
not the issue before them. For example, McGrory v. Applied
Signal Technology, Inc. (2013) 212 Cal.App.4th 1510 held:
“Government Code section 12940, subdivision (h), does not shield
an employee against termination or lesser discipline for either
lying or withholding information during an employer’s internal
investigation of a discrimination claim.” (McGrory, supra, at

24
p. 1528.) It did not limit FEHA retaliation claims to
administrative proceedings.
2. Rudnicki participated in Coates
Alternatively, Farmers argues that because Rudnicki never
participated in Coates, the verdict must be reversed. Applying
the same de novo standard of review set forth above, we are not
convinced.
“Employer retaliation against employees who are believed
to be prospective complainants or witnesses for complainants
undermines this legislative purpose just as effectively as
retaliation after the filing of a complaint. To limit FEHA in such
a way would be to condone ‘an absurd result’ [citation] that is
contrary to legislative intent. . . . FEHA protects employees
against preemptive retaliation by the employer.” (Steele v.
Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1255;
see also Jute v. Hamilton Sundstrand Corp. (2d Cir. 2005)
420 F.3d 166, 169–170.)
The fact that Rudnicki may not have been “on the verge of”
offering deposition testimony does not alter our analysis.
Rudnicki was prepared for deposition by defense counsel
regardless of how soon that deposition was scheduled and
regardless of whether that deposition actually occurred.
“Accepting [Farmers’s] argument would mean, for example, that
an employer could freely retaliate against a Title VII
whistleblower, as long as it did so before the employee actually
testified.” (Jute v. Hamilton Sundstrand Corp., supra, 420 F.3d
at p. 175.)

25
 3. A reasonable jury could have found (and did find)
that Rudnicki’s potential deposition testimony caused his
termination
Finally, Farmers contends that no reasonable jury could
have found that Rudnicki’s hypothetical deposition testimony
caused his termination.
“‘Where findings of fact are challenged on a civil appeal, we
are bound by the “elementary, but often overlooked principle of
law, that . . . the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,” to support the findings
below. [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative
Services USA, Inc. (2020) 46 Cal.App.5th 1007, 1015.)
“‘“In applying this standard of review, we ‘view the
evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference and resolving
all conflicts in its favor . . . .’ [Citation.]” [Citation.]
“‘Substantial evidence’ is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid
value.” [Citation.] We do not reweigh evidence or reassess the
credibility of witnesses. [Citation.] We are “not a second trier of
fact.” [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative
Services USA, Inc., supra, 46 Cal.App.5th at p. 1015.)
“‘Our role is to determine the legal sufficiency of the found
facts and not to second guess the reasoning or wisdom of the fact
finder.’ [Citation.] ‘“Only when there is a complete absence of
probative facts to support the conclusion reached does a
reversible error appear. But where, as here, there is an
evidentiary basis for the jury’s verdict, the jury is free to discard
or disbelieve whatever facts are inconsistent with its conclusion.

26
And the appellate court’s function is exhausted when that
evidentiary basis becomes apparent, it being immaterial that the
court might draw a contrary inference or feel that another
conclusion is more reasonable.” [Citation.]’ [Citation.]”
(Reynaud v. Technicolor Creative Services USA, Inc., supra,
46 Cal.App.5th at p. 1017.)
Ample evidence supports the jury verdict. Rudnicki
testified that he told Daly that he was going to offer evidence
contrary to Farmers’s interests if and when he was deposed in
Coates. Shortly thereafter, Daly began treating Rudnicki coolly.
Then, within months, Rudnicki was terminated. The jury could
reasonably infer that Rudnicki was wrongfully terminated
because of his anticipated deposition testimony. The fact that
there may have been evidence to support Farmers’s narrative as
well does not compel reversal. (Pope v. Babick (2014)
229 Cal.App.4th 1238, 1245 [“We do not review the evidence to
see if there is substantial evidence to support the losing party’s
version of events, but only to see if substantial evidence exists to
support the verdict in favor of the prevailing party”].)
II. Alleged evidentiary errors
A. Privileged evidence
Farmers contends that Rudnicki wrongfully established his
retaliation and wrongful termination claims through privileged
evidence, specifically privileged communications about Coates
with Daly.
1. Standard of review
“‘The question whether the attorney-client privilege applies
to a particular communication is a question of fact if the evidence
is in conflict.’ [Citation.] ‘“When the facts, or reasonable
inferences from the facts, shown in support of or in opposition to

27
the claim of privilege are in conflict, the determination of
whether the evidence supports one conclusion or the other is for
the trial court, and a reviewing court may not disturb such
finding if there is any substantial evidence to support it . . . .”’
[Citation.]” (DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th
653, 664.)
2. Relevant law
“[T]here is no reason inherent in the nature of an attorney’s
role as in-house counsel to a corporation that in itself precludes
the maintenance of a retaliatory discharge claim, provided it can
be established without breaching the attorney-client privilege or
unduly endangering the values lying at the heart of the
professional relationship.” (General Dynamics Corp. v. Superior
Court (1994) 7 Cal.4th 1164, 1169 (General Dynamics).) “Except
in those rare instances when disclosure is explicitly permitted or
mandated by an ethics code provision or statute, it is never the
business of the lawyer to disclose publicly the secrets of the
client.” (Id. at p. 1190; see also O’Gara Coach Co., LLC v. Ra
(2019) 30 Cal.App.5th 1115, 1130, fn. 5 [“in-house counsel could
sue a former employer for wrongful termination as long as
confidential information was not publicly disclosed”].)
“The dual status of in-house counsel—acting as both
employee and attorney—and the dual status of the company—
acting as both employer and client—can pose some challenging
questions about when one role takes precedence over another.”
(Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th
630, 651.)
“‘The attorney-client privilege “authorizes a client to refuse
to disclose, and to prevent others from disclosing, confidential
communications between attorney and client.” [Citations.]’

28
[Citation.]” (People ex rel. Herrera v. Stender (2012)
212 Cal.App.4th 614, 645.) “‘[C]onfidential communication
between client and lawyer’” is defined as “information
transmitted between a client and his or her lawyer in the course
of that relationship and in confidence by a means which, so far as
the client is aware, discloses the information to no third persons
other than those who are present to further the interest of the
client in the consultation or those to whom disclosure is
reasonably necessary for the transmission of the information or
the accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and the advice
given by the lawyer in the course of that relationship.” (Evid.
Code, § 952.)
“[T]he attorney-client privilege attaches only where the
communication is made in confidence pursuant to a client-
attorney relationship with respect to the particular matter.
[Citations.] Furthermore, ‘[t]o make the communication
privileged the dominant purpose must be for transmittal to an
attorney “in the course of professional employment”’ [citations].
The privilege does not apply to communications to an attorney
who is transacting business that might have been transacted by
another agent who is not an attorney [citation].” (Montebello
Rose Co. v. Agricultural Labor Relations Bd. (1981)
119 Cal.App.3d 1, 32.) Thus, “[t]he privilege protects only the
disclosure of communications between attorney and client. It
does not protect disclosure of the underlying facts which were
communicated.” (Triple A Machine Shop, Inc. v. State of
California (1989) 213 Cal.App.3d 131, 143.)
“Whether a particular communication is predominantly in
furtherance of the attorney-client relationship is a question of

29
fact.” (Montebello Rose Co. v. Agricultural Labor Relations Bd.,
supra, 119 Cal.App.3d at p. 33.)
“[T]rial courts can and should apply an array of ad hoc
measures from their equitable arsenal designed to permit the
attorney plaintiff to attempt to make the necessary proof while
protecting from disclosure client confidences subject to the
privilege.” (General Dynamics, supra, 7 Cal.4th at p. 1191.)
3. Analysis
Here, Rudnicki was able to prove his claim without
breaching the attorney-client privilege. As the trial court aptly
noted, “Rudnicki’s testimony focused on his conversation with
Daly and Daly’s verbal and non-verbal responses that supported
a reasonable inference that Farmers perceived Rudnicki’s
anticipated testimony as adverse to it, which testimony would
supply the jury with sufficient evidence to find retaliation.” We
agree. Rudnicki’s claim is based upon what he told Daly about
his intended deposition testimony in the Coates litigation. His
statement, and resulting conversation with Daly, was not a
confidential communication between client and attorney. It did
not involve legal strategy. The communication could have been
made by any employee who had information concerning
13
Farmers’s HR failures; it was not made in the course of
Rudnicki’s representation of Farmers.
In fact, Rudnicki was not “acting as an attorney in being
the person responsible for handling” the Coates litigation.

13
As Farmers agrees in its reply brief, “many other
employees could have testified that HR did not share gender-
related data.” In fact, that is what defense counsel argued to the
jury.

30
(Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551,
561.) Paul Hastings was acting as Farmers’s counsel in Coates.
Rudnicki “was not even indirectly involved” in hiring Paul
Hastings to defend Coates; he was not “handling the litigation” or
14
making “tactical decisions.” Rather, Farmers’s general counsel
was, and Rudnicki did not report to the general counsel.
Rudnicki’s role as in-house counsel was limited to leading the
BLO’s in their representation of Farmers’s insureds. He did not
publicly disclose Farmers’s secrets. (General Dynamics, supra,
7 Cal.4th at p. 1190.)
And, the trial court took steps to ensure that confidential
information was not disclosed during trial. Rudnicki did not
testify about his conversations with Paul Hastings in preparation
for his deposition. Rudnicki did not testify as to the substance of
the settlement reached in Coates. While he did testify that Daly
told him that he was responsible for the Coates settlement, that
evidence was offered to show Daly’s state of mind—he blamed
Rudnicki for the Coates litigation and resulting settlement
because he either did not escalate the women’s concerns and/or
did not resolve the gender concerns.
Citing Carroll v. Commission on Teacher Credentialing
(2020) 56 Cal.App.5th 365, Farmers asserts that “[t]he only way
to rebut the charge that Daly had a retaliatory state of mind was
to prove that Coates actually settled for reasons unrelated to
Rudnicki’s potential deposition testimony. Those reasons are

14
Farmers argued to the jury: “Rudnicki was not a decision-
maker in that [Coates] litigation. As a witness he was kept at
arms-length and had no role in decisions regarding Farmers’s
defense.”

31
invariably privileged. Thus, Rudnicki’s testimony on this
privileged subject put Defendants ‘in an untenable position’ in
which they could defend themselves fully only by ‘effectively
waiving the attorney-client privilege.’ [Citation.]” We disagree.
Farmers never had to disclose its confidential reasons for
settling Coates. There was never a suggestion that Coates settled
because of Rudnicki’s anticipated deposition testimony. In fact,
as argued by Farmers on appeal, Daly’s statement does not refer
to Rudnicki’s deposition testimony—it “refers to Rudnicki’s years-
long mismanagement of a department experiencing gender-equity
concerns that he failed to properly escalate to Murphy or Daly—a
perfectly legitimate reason to let him go.” Under these
circumstances, Farmers was not denied an opportunity to fully
defend itself without waiving the attorney-client privilege and/or
work product doctrine.
B. Trial court’s exclusion of rebuttal evidence of other
instances of Rudnicki’s alleged misconduct
Farmers contends that the trial court erred in prejudicially
excluding rebuttal evidence that Rudnicki mistreated women at
work.
1. Standard of review and relevant law
“Pursuant to Evidence Code section 352, the trial court has
discretion to exclude evidence ‘if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ [Citation.]” (Thompson v. County of
Los Angeles (2006) 142 Cal.App.4th 154, 171.) “‘[T]he trial court
has broad discretion to exclude otherwise relevant evidence

32
under Evidence Code section 352.’ [Citation.]” (Thompson,
supra, at p. 171.)
2. Analysis
Applying these legal principles, we conclude that the trial
court did not abuse its discretion. Simply put, the trial court
acted well within its discretion when it determined prior to trial
that the excluded evidence was more prejudicial than probative
and would have necessitated an undue consumption of time.
Farmers contends that even if the trial court did not err in
granting Rudnicki’s motion in limine, it should have revisited
this evidence after Rudnicki elicited character evidence. There
are multiple problems with this argument. First, Farmers failed
to raise this argument with the trial court. As soon as the alleged
“floodgates” of character evidence came into evidence, Farmers
should have asked the trial court to revisit its ruling on the
motion in limine. (People v. Karis (1988) 46 Cal.3d 612, 634,
fn. 16 [a trial court may reconsider its ruling on a motion in
limine during the course of a trial].) In the context of the trial
here, there is no reason to think that such a request would have
been futile.
Second, although Farmers directs us to the six alleged
instances of prior bad acts, after Rudnicki allegedly “opened the
floodgates” of character evidence, it only sought to introduce
evidence of one of those six instances. Again, if Farmers wanted
the trial court to reconsider its prior order concerning these six
instances of alleged misconduct, it should have raised all six with
the trial court at the appropriate time.

33
 Third, Farmers ignores the fact that the trial court gave a
15
limiting instruction concerning much of the alleged character
evidence. It told the jury: “You have heard evidence about
Andrew Rudnicki’s work history, some of which relates to the
support of women and members of the LGBTQ community in the
workplace at Farmers during his employment. You must not
consider such evidence to determine whether Andrew Rudnicki
made certain comments or behaved in certain ways on specific
occasions.” We presume the jury followed this instruction.
(Garcia v. Myllyla (2019) 40 Cal.App.5th 990, 1005.)
Andrews v. City and County of San Francisco (1988)
205 Cal.App.3d 938 does not compel a different result. In
Andrews, the Court of Appeal reversed a trial court’s evidentiary
ruling that kept “out all of the misconduct incidents.” (Id. at
p. 947, italics added.) Here, the trial court did not exclude all
prior instances of alleged mistreatment of women; rather, it
managed this otherwise lengthy trial with numerous witnesses
and limited Farmers to some instances of misconduct and
excluded evidence of those of which Farmers (through Daly) was
unaware when the decision to terminate Rudnicki’s employment
was made. (See Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1377 [courts have the inherent power to control litigation
before them]; Hernandez v. Superior Court (2004)
115 Cal.App.4th 1242, 1246–1247 [discussing trial court’s
discretion to manage its calendar].)

15
Both parties agreed to this language.

34
III. Compensatory damage award
“A . . . retaliatory termination is undoubtedly upsetting and
warrants reasonable compensation for any accompanying
emotional distress.” (Briley v. City of West Covina (2021)
66 Cal.App.5th 119, 142 (Briley).) The issue on appeal is whether
the $1 million award of noneconomic damages was unreasonable.
Farmers contends that the award is excessive and not supported
by the evidence.
A. Relevant law
Code of Civil Procedure section 657 sets forth the grounds
for a new trial, stating in pertinent part: “The verdict may be
vacated and any other decision may be modified or vacated, in
whole or in part, and a new or further trial granted on all or part
of the issues, on the application of the party aggrieved, for any of
the following causes, materially affecting the substantial rights of
such party: [¶] . . . [¶] 5. Excessive or inadequate damages.
[¶] . . . [¶] A new trial shall not be granted upon the ground of
. . . excessive or inadequate damages, unless after weighing the
evidence the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury clearly
should have reached a different verdict or decision.”
The amount of damages is a question of fact first committed
to the discretion of the jury and next to the discretion of the trial
judge on a motion for new trial. (Code Civ. Proc., § 43; Behr v.
Redmond (2011) 193 Cal.App.4th 517, 533.) “‘They see and hear
the witnesses and frequently, as in this case, 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].’ [Citation.]” (Horsford v. Board of Trustees of

35
California State University (2005) 132 Cal.App.4th 359, 389
(Horsford).)
A “contention that the evidence does not support the
verdict is reviewed under the substantial evidence standard. In
reviewing a claim of insufficiency of evidence, the appellate court
must consider the whole record, view the evidence in the light
most favorable to the judgment, presume every fact the trier of
fact could reasonably deduce from the evidence, and defer to the
trier of fact’s determination of the weight and credibility of the
evidence.” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614.)
After reviewing the record in light of this standard, an
appellate court may reduce an award found to be excessive and
unsupported by the record. (Behr v. Redmond, supra,
193 Cal.App.4th at p. 535.)
“‘[T]here is no fixed or absolute standard by which to
compute the monetary value of emotional distress.’” (Pool v. City
of Oakland (1986) 42 Cal.3d 1051, 1067, fn. 17.) “It is only in a
case where the amount of the award of general damages is so
disproportionate to the injuries suffered that the result reached
may be said to shock the conscience, that an appellate court will
step in and reverse a judgment because of greatly excessive or
grossly inadequate general damages.” (Daggett v. Atchison,
Topeka and Santa Fe Railway Company (1957) 48 Cal.2d 655,
666.) “‘The question is not what this court would have awarded
as the trier of fact, but whether this court can say that the award
is so high as to suggest passion or prejudice.’” (Seffert v.
Los Angeles Transit Lines (1961) 56 Cal.2d 498, 507.)
“‘In making this assessment, the court may consider, in
addition to the amount of the award, indications in the record
that the fact finder was influenced by improper considerations.’

36
[Citation.] The relevant considerations include inflammatory
evidence, misleading jury instructions, improper argument by
counsel, or other misconduct. [Citations.]” (Bigler-Engler v.
Breg, Inc. (2017) 7 Cal.App.5th 276, 299.)
B. Analysis
Applying the foregoing legal authorities, we conclude that
16
there was ample evidence to support the $1 million award of
noneconomic damages. Rudnicki testified that he found being
unemployed at 64 years old sad and humbling, only experiencing
flashes of his old enthusiastic and outgoing personality and
unreasonably lashing out at his family in anger. His wife
explained that his Farmers job meant absolutely everything to
him; he lived, breathed and worked Farmers, the most important
thing to him along with his family. Rudnicki went from being the
most positive person to withdrawn, angry and unapproachable.
And, his relationships with both of his daughters deteriorated
and became strained.
Rudnicki’s cardiologist, Dr. Goel, testified that on
November 29, 2016, Rudnicki went to the hospital with chest
discomfort/angina, not a heart attack. Dr. Goel believed that
stress resulting from the loss of his job contributed to the chest
pain. While Dr. Goel stated that what he remembered “at th[e]
time” of his deposition was that Rudnicki had said that he was

16
In reaching this conclusion, we note that Farmers ignores
much of the evidence presented at trial and only relies upon
evidence that supports its contention on appeal. As set forth
above, that is not grounds to reverse. (Pope v. Babick, supra,
229 Cal.App.4th at p. 1245.)

37
stressed about this litigation, that testimony did not vitiate his
undisputed opinion that job loss stress caused Rudnicki’s angina.
Notably, Farmers directs us to nothing in the appellate
record that shows that the jury was influenced by improper
considerations. There is no inflammatory evidence, misleading
jury instructions, improper argument by counsel, or other
misconduct.
As the trial court correctly recognized: “[T]he evidence
shows that Farmers’s termination of Rudnicki directly caused his
moderate to severe depression diagnosis, numerous symptoms of
emotional distress, and angina. Further, there was no dispute
that Rudnicki was not malingering in describing his symptoms.
Moreover, the evidence supports a reasonable inference that
Farmers’s termination of Rudnicki abruptly severed his decades
of social relationships and removed his sense of identity and
purpose.” For this reason, “the evidence more than supports the
$1 million non-economic damages award.”
Briley, supra, 66 Cal.App.5th 119 does not compel a
different result. In that case, the plaintiff-employee prevailed on
his claim for retaliation (Lab. Code, § 1102.5). (Briley, supra, at
p. 123.) He was awarded “$2 million for past noneconomic
damages covering a period of about three years, amounting to
more than $1,700 per day,” even though he failed to present
“evidence of significant, concrete harm.” (Briley, supra, at
p. 142.) Under these circumstances, the award “was so excessive
as to suggest it resulted from passion or prejudice.” (Id. at
p. 124.) Accordingly, the Court of Appeal vacated the award of
noneconomic damages. (Ibid.)

38
 In contrast, Rudnicki was employed by Farmers for 37
years. And, as set forth above, he offered evidence of severe
symptoms stemming from his retaliatory termination.
Mokler v. City of Orange (2007) 157 Cal.App.4th 121 is also
distinguishable for the simple reason that in Mokler, the plaintiff
did not offer sufficient evidence to support the jury’s award of
over $1.6 million in noneconomic damages. (Id. at p. 147.) After
all, the plaintiff did not require medical or professional attention
for her humiliation of being terminated. And, she was
unemployed for only two weeks following her termination,
suggesting that (1) her reputation remained unimpaired, and
(2) she did not suffer emotional distress associated with being
unable to find comparable employment. (Ibid.; see also Horsford,
supra, 132 Cal.App.4th at pp. 389–390 [upholding a trial court’s
reduction of an award of noneconomic damages].) In contrast, as
set forth above, Rudnicki offered such evidence, including his own
testimony, testimony from his wife, and testimony from several
medical experts.
IV. Punitive damage award
A. Entitlement to punitive damages
Farmers argues that Rudnicki is not entitled to any
punitive damages because he failed to prove oppression, fraud, or
malice by clear and convincing evidence.
1. Standard of review and relevant law
A plaintiff may recover punitive damages if he proved at
trial by clear and convincing evidence that the defendant was
guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd.
(a).) For purposes of awarding punitive damages, “malice” means
“conduct which is intended by the defendant to cause injury to
the plaintiff or despicable conduct which is carried on by the

39
defendant with a willful and conscious disregard of the rights or
safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is
“despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights.” (Civ.
Code, § 3294, subd. (c)(2).)
“‘“Something more than the mere commission of a tort is
always required for punitive damages. There must be
circumstances of aggravation or outrage, such as spite or ‘malice,’
or a fraudulent or evil motive on the part of the defendant, or
such a conscious and deliberate disregard of the interests of
others that his conduct may be called [willful] or wanton.”
[Citation.]’ [Citation.]” (Scott v. Phoenix Schools, Inc. (2009)
175 Cal.App.4th 702, 716.)
We review an award of punitive damages for substantial
evidence. (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 679.)
“Because our review is for substantial evidence, we are bound to
consider the evidence in the light most favorable to the prevailing
party, giving him the benefit of every reasonable inference, and
resolving conflicts in support of the judgment. However, since
the jury’s findings were subject to a heightened burden of proof,
we review the record in support of these findings in light of that
burden. Thus, we inquire whether the record contains
‘“‘substantial evidence to support a determination by clear and
convincing evidence . . . .’”’ [Citation.]” (Colucci v. T-Mobile USA,
Inc. (2020) 48 Cal.App.5th 442, 451.)
2. Analysis
Applying these legal principles, we conclude that
substantial evidence supports the award of punitive damages. At
the risk of sounding redundant, Rudnicki convincingly proved
that he was fired in retaliation for testimony he was going to give

40
against Farmers in Coates. And, the appellate record shows that
Farmers attempted to hide its “improper basis” for firing
Rudnicki with a “false explanation,” namely that he mistreated
female employees and failed to comport with Farmers’s standards
for executives. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.)
Farmers further argues that there was no evidence that
FGI ratified FIE Daly’s retaliatory termination of Rudnicki.
Farmers seems to forget, as pointed out in Rudnicki’s
respondent’s brief, that the jury found both FIE and FGI to be
Rudnicki’s employers based upon an integrated enterprise.
Under these circumstances, we agree with the trial court that no
additional evidence of ratification by FGI was required. Farmers
does not offer legal authority or argue otherwise.
B. Amount of punitive damages
Alternatively, Farmers challenges the amount of punitive
damages awarded.
1. Relevant law
“Our Supreme Court has summarized the fundamental
principles of punitive damages under California law. The
purposes of punitive damages are to punish the defendant and
deter the commission of similar acts. [Citations.] Three primary
considerations govern the amount of punitive damages: (1) the
reprehensibility of the defendant’s conduct; (2) the injury suffered
by the victims; and (3) the wealth of the defendant.” (Rufo v.
Simpson, supra, 86 Cal.App.4th at pp. 619–620.)
“Because the quintessence of punitive damages is to deter
future misconduct by the defendant, the key question before the
reviewing court is whether the amount of damages ‘exceeds the
level necessary to properly punish and deter.’ [Citations.] The
question cannot be answered in the abstract. The reviewing

41
court must consider the amount of the award in light of the
relevant facts. The nature of the inquiry is a comparative one.
Deciding in the abstract whether an award is ‘excessive’ is like
deciding whether it is ‘bigger,’ without asking ‘Bigger than
what?’” (Adams v. Murakami (1991) 54 Cal.3d 105, 110.)
2. Due process
Farmers argues that the punitive damage award violates
due process. “In deciding whether an award of punitive damages
is constitutionally excessive . . . , we . . . review the award
de novo.” (Simon v. San Paolo U.S. Holding Co., Inc. (2005)
35 Cal.4th 1159, 1172.)
It is well-settled that “[t]he due process clause of the
Fourteenth Amendment to the United States Constitution places
constraints on state court awards of punitive damages.” (Roby,
supra, 47 Cal.4th at p. 712.) “In particular, due process prohibits
the imposition of grossly excessive or arbitrary punitive damages
awards, ‘“for due process entitles a tortfeasor to ‘“fair notice not
only of the conduct that will subject him to punishment, but also
of the severity of the penalty that a State may impose.”’”
[Citation.]’ [Citation.]” (Contreras-Velazquez v. Family Health
Centers of San Diego, Inc. (2021) 62 Cal.App.5th 88, 104
(Contreras-Velazquez).)
“The United States Supreme Court has articulated ‘a set of
substantive guideposts that reviewing courts must consider in
evaluating the size of punitive damages awards: “(1) the degree
of reprehensibility of the defendant’s misconduct; (2) the
disparity between the actual or potential harm suffered by the
plaintiff and the punitive damages award; and (3) the difference
between the punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparable cases.”’

42
[Citation.]” (Contreras-Velazquez, supra, 62 Cal.App.5th at
p. 104.)
a. Reprehensibility
“Of the three guideposts articulated by the United States
Supreme Court, ‘the most important is the degree of
reprehensibility of the defendant’s conduct.’ [Citations.] In
assessing reprehensibility, we must consider the following five
factors: ‘whether “[1] the harm caused was physical as opposed
to economic; [2] the tortious conduct evinced an indifference to or
a reckless disregard of the health or safety of others; [3] the
target of the conduct had financial vulnerability; [4] the conduct
involved repeated actions or was an isolated incident; and [5] the
harm was the result of intentional malice, trickery, or deceit, or
mere accident.”’ [Citation.]” (Contreras-Velazquez, supra,
62 Cal.App.5th at p. 105.)
“The first reprehensibility factor is present here because, as
the trial court found, [Farmers’s] conduct caused [Rudnicki]
physical harm in the form of emotional and mental distress.
[Citations.]” (Contreras-Velazquez, supra, 62 Cal.App.5th at
p. 105.) Testimony from witnesses, including Rudnicki,
Rudnicki’s wife, and various doctors, established that “Rudnicki’s
retaliatory termination caused him a moderate to severe
depression and anxiety diagnosis with numerous symptoms of
emotional distress, abrupt disruption of his lifelong social
relationships, and angina.” In fact, Rudnicki sought noneconomic
damages for mental suffering and the jury awarded him $1
million. “Under these circumstances, the first reprehensibility
factor weighs in favor of an aggravated punitive damages award.”
(Ibid.)

43
 “The second reprehensibility factor is present as well.”
(Contreras-Velazquez, supra, 62 Cal.App.5th at p. 105.) Farmers
could have foreseen that its retaliatory conduct would affect
Rudnicki’s emotional well-being, thereby evincing an indifference
to or reckless disregard of the health or safety of others. (Id. at
p. 106 [second reprehensibility factor may be present where, as
here, the defendant disregarded the health and safety of the
plaintiff alone].) Farmers likely “knew that Rudnicki had a heart
condition because he took a leave of absence from his employment
there in March 2015. [Citation.] It also likely knew it would be
foreclosing Rudnicki’s social relationships and deep-seated sense
of his identity because of his longevity at Farmers and from likely
observing him interacting with company employees at work and
company social events. Further, Farmers intentionally punished
Rudnicki for potentially testifying adversely to its interests and
in favor of a class of approximately 300 women who alleged sex
discrimination in their employment at Farmers. Moreover,
Dailey admitted that he never reviewed Rudnicki’s personnel file
before concurring in Daly’s decision to terminate Rudnicki’s
employment, thus further demonstrating Farmers’s indifference.”
The third factor is minimally present. On the one hand,
Rudnicki had a substantial vested pension and his income was
likely substantial for many years. But, as the trial court noted,
“his future employment prospects are dim.” He was the sole
income earner in the family when his employment was
terminated at age 64, and he had no plans to stop working until
his children were out of college.
The fourth factor does not appear to be present here.
“[T]here was ‘scant evidence [that Farmers engaged in] repeated

44
misconduct of the sort that injured’ [Rudnicki]. [Citation.]”
(Contreras-Velazquez, supra, 62 Cal.App.5th at p. 107.)
Finally, “[t]he fifth reprehensibility factor ‘is of little value
in assessing a California punitive damages award because
“accidentally harmful conduct cannot provide the basis for
punitive damages under our law.”’ [Citation.]” (Contreras-
Velazquez, supra, 62 Cal.App.5th at p. 107.)
b. Disparity between compensatory damages
and punitive damages
“‘[T]he disparity between the actual . . . harm suffered by
[Rudnicki] and the punitive damages award’” (Contreras-
Velazquez, supra, 62 Cal.App.5th at p. 108) does not demonstrate
a violation of due process. The ratio between the compensatory
damage award of $5,413,344 and the reduced punitive damage
award of $18.9 million is 3.5-to-one. This punitive damage award
bears a reasonable and proportionate relationship to the
compensatory damage award. (Bullock v. Philip Morris USA,
Inc. (2011) 198 Cal.App.4th 543, 563 (Bullock).)
c. Comparable civil penalties
Finally, we consider the difference between the punitive
damages and any civil penalties authorized or imposed in
comparable cases. (Roby, supra, 47 Cal.4th at p. 718.) As there
are no comparable civil penalties, this guidepost “plays no
significant role in our analysis.” (Bullock, supra, 198 Cal.App.4th
at p. 570.) Farmers’s argument notwithstanding, the fact that
there is no comparable penalty does not compel the conclusion
that the 3.5-to-one ratio is unconstitutional.
d. Conclusion
Farmers engaged in misconduct that can be characterized
as moderately reprehensible. It caused physical harm in a

45
foreseeable manner. While the jury awarded Rudnicki
approximately $5.4 million in compensatory damages, that
amount does not appear to contain a punitive element. After all,
the jury voted to award Rudnicki $150 million in punitive
damages; from this award, we can reasonably infer that the jury
intended to punish Farmers with the sizeable punitive damage
award, not the compensatory damage award. Given all these
factors, we conclude that the trial court did not err in setting the
ratio for a punitive damages award to compensatory damage
award to 3.5-to-one. (See, e.g., Gober v. Ralphs Grocery Co.
(2006) 137 Cal.App.4th 204, 219–223 [six-to-one punitive to
compensatory damages ratio was appropriate even though the
employer’s conduct was only moderately reprehensible];
Contreras-Velazquez, supra, 62 Cal.App.5th at p. 111 [employer’s
“somewhat or moderately reprehensible” misconduct justified a
ratio for a punitive damages award of two-to-one].)
3. Ratio cap
At a minimum, Farmers contends that the compensatory
damage award caps the ratio of punitive damages to
compensatory damages at no more than one-to-one.
There is no “‘bright-line ratio which a punitive damages
award cannot exceed,’ and ‘there are no rigid benchmarks that a
punitive damages award may not surpass.’ [Citation.]” (Bullock,
supra, 198 Cal.App.4th at p. 563.) That said, “‘in practice, few
awards exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will satisfy due
process. . . . Single-digit multipliers are more likely to comport
with due process, while still achieving the State’s goals of
deterrence and retribution, than awards with” double- or triple-
digit ratios. (Bullock, supra, at p. 563; see also Zirpel v. Alki

46
David Productions, Inc. (2023) 93 Cal.App.5th 563, 580.) Our
Supreme Court “has concluded that an appropriate maximum
ratio between punitive and compensatory damages beyond which
punitive damages in a given case would be excessive, and
therefore unconstitutionally arbitrary, is ‘10 times the
compensatory award.’ [Citation.]” (Zirpel v. Alki David
Productions, Inc., supra, at p. 580.)
“Certainly, a one-to-one ratio of punitive to compensatory
damages can in some cases—or perhaps in many cases where the
compensatory damages award is substantial—be the
constitutional maximum. [Citations.] However, ‘there is no fixed
formula that requires a court to set punitive damages equal to
compensatory damages’ whenever compensatory damages are
substantial. [Citations.]” (Contreras-Velazquez, supra,
62 Cal.App.5th at p. 109.)
“The single-digit [3.5-to-one] ratio between punitive and
compensatory damages in this case falls below the maximum 10-
to-one ratio prescribed by the Supreme Court.” (Zirpel v. Alki
David Productions, Inc., supra, 93 Cal.App.5th at p. 580.) And,
for the reasons set forth above, the facts and circumstances of
this case support an award of punitive damages, as found by the
jury and as appropriately reduced by the trial court.

47
 DISPOSITION
The judgment is affirmed. Rudnicki’s cross-appeal is
dismissed. Rudnicki is entitled to attorney fees and costs (Gov.
Code, § 12965, subd. (c)(6)) on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
CHAVEZ

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