Filed 7/1/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JASON BRILEY, 

Plaintiff and Respondent,

v.

CITY OF WEST COVINA, 

Defendant and Appellant.

 B295666

 (Los Angeles County

 Super. Ct. No.

 BC630552)

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 
2

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.