FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE FLORES; RYAN REYES; BRIAN 

PEREZ,

Plaintiffs-Appellees,

v.

CITY OF WESTMINSTER; MITCHELL 

WALLER; ANDREW HALL; RON 

COOPMAN; KEVIN BAKER, in their 

individual capacities,

Defendants-Appellants.

No. 14-56832

D.C. No.

8:11-cv-00278-

DOC-RNB

OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted August 11, 2017

Pasadena, California

Filed October 11, 2017

Before: Jerome Farris, Consuelo M. Callahan,

and John B. Owens, Circuit Judges.

Opinion by Judge Farris
2 FLORES V. CITY OF WESTMINSTER

SUMMARY*

Employment Discrimination

The panel affirmed in part and vacated in part the district 

court’s judgment, after a jury trial, in favor of three police 

officers of Latino descent who alleged discrimination and 

retaliation in violation of 42 U.S.C. § 1981 and the 

California Fair Employment and Housing Act.

The panel affirmed the district court’s denial of the 

defendant City of Westminster’s motions for a new trial and 

judgment as a matter of law on Officer Jose Flores’s claim 

of retaliation in violation of FEHA. Viewing the evidence 

in the light most favorable to Officer Flores and drawing all 

reasonable inferences in his favor, the panel held that Officer 

Flores established that the City subjected him to one or more 

adverse employment actions, that his protected conduct was 

a substantial motivating factor behind the adverse 

employment actions, and that the City’s proffered reasons 

for its actions were pretextual. The panel also affirmed the 

jury’s award of damages to Officer Flores on the FEHA 

retaliation claim. The panel concluded that Officer Flores 

was not awarded a double recovery because the FEHA 

damages award did not necessarily overlap with the damages 

awarded against the defendant police chiefs for their 

individual retaliatory actions in violation of § 1981.

The panel held that the district court did not err in 

denying the officers’ discrimination and retaliation claims 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
FLORES V. CITY OF WESTMINSTER 3

against the police chiefs under § 1981, which prohibits 

discrimination in the making and enforcement of contracts 

by reason of race. The panel held that California law 

providing that the employment relationship between the 

state and its civil service employees is governed by statute 

rather than contract should not be read to bar public 

employees from bringing claims under § 1981. The panel 

distinguished Judie v. Hamilton, 872 F.2d 919 (9th Cir. 

1989), which predated the 1991 amendments to § 1981 

expanding the reach of the statute’s “make and enforce 

contracts” term.

The panel held that the district court did not abuse its 

discretion in evidentiary rulings. The panel held that there 

was no prejudicial error in allowing a jury instruction on the 

Uniform Services Employment and Reemployment Rights 

Act.

The panel held that the jury’s verdict against two police 

chiefs for race discrimination in violation of § 1981 was not 

fatally inconsistent. In addition, the verdict finding the 

chiefs individually liable, and awarding punitive damages, 

was not against the clear weight of the evidence. The panel 

declined to reduce the punitive damages awards as 

unconstitutionally excessive.

The panel vacated the judgment against Chief Mitchell 

Waller, who died before trial, and remanded for the district 

court to grant two officers leave to substitute Chief Waller’s 

estate pursuant to Fed. R. Civ. P. 25(a)(1).
4 FLORES V. CITY OF WESTMINSTER

COUNSEL

Justin Reade Sarno (argued), Steven J. Rothans, and Jill 

Williams, Carpenter Rothans & Dumont, Los Angeles, 

California, for Defendants-Appellants Mitchell Waller,

Andrew Hall, Ron Coopman, and Kevin Baker.

Alison McIlvaine Turner (argued) and Timothy T. Coates,

Greines Martin Stein & Richland LLP, Los Angeles, 

California; Leighton D. Henderson, Jeffery E. Stockley, and 

Melanie M. Poturica, Liebert Cassidy Whitmore, Los 

Angeles, California; for Defendant-Appellant City of 

Westminster.

Oliver B. Dreger (argued), Michael L. Kibbe, and Joseph M. 

Preis, Godes & Preis LLP, Irvine, California, for PlaintiffsAppellees.

OPINION

FARRIS, Senior Circuit Judge:

Jose Flores, Ryan Reyes, and Brian Perez, three police 

officers of Latino descent (collectively, “Plaintiffs”), sued 

their employer and, after a nine-day jury trial, they won. The 

officers alleged that the City of Westminster (“the City” or 

“the Department”) as well as current and former 

Westminster Police Chiefs Mitchell Waller, Andrew Hall, 

Ronald Coopman, and Kevin Baker (“the Chiefs”), 

discriminated and retaliated against them on the basis of race 

and national origin. As relevant here, the officers alleged 

causes of action for violation of the California Fair 

Employment and Housing Act (“FEHA”), Cal. Gov’t Code 

§§ 12900–12996, and 42 U.S.C. § 1981. Specifically, they 
FLORES V. CITY OF WESTMINSTER 5

claimed they were denied special assignments that could 

increase their chances of promotion. Officers Flores and 

Reyes also alleged that the defendants retaliated against 

them for filing administrative complaints, in violation of 

FEHA and 42 U.S.C. § 1981.

After reviewing the evidence, the jury largely sided with 

the officers, finding that: 1) the City had retaliated against 

Officer Flores in violation of FEHA; 2) Chiefs Coopman and 

Hall had racially discriminated against all three officers in 

violation of 42 U.S.C. § 1981; and 3) Chiefs Coopman and 

Waller had retaliated against Officers Flores and Reyes and 

Chief Baker had retaliated against Officer Flores in violation 

of section 1981. The jury awarded the officers a total of 

$3,341,000.00 in general and punitive damages, and the 

court awarded $3,285,673.00 in attorney fees, $40,028.49 in 

expert fees, and $18,684.12 in costs. The City and the 

Chiefs1 appeal numerous aspects of the trial, the judgment, 

and the resulting award of fees and costs. We affirm in part, 

and vacate and remand in part.

I

Our review of this case is circumscribed by the evidence 

presented to, and the facts as found, by the jury. The 

following evidence was adduced at trial:

A. Officer Jose Flores

Officer Flores was hired by the City of Westminster in 

2002, after serving for ten years as a police officer with the 

 1 Throughout this opinion we will refer to Appellants either as “the 

City” or “the Chiefs” in order to distinguish between the various points 

of appeal raised by each. We will refer to the City and the Chiefs, 

collectively, as “Defendants.”
6 FLORES V. CITY OF WESTMINSTER

City of South Gate. In 2004 or 2005, he applied for, but did 

not receive, a detective position with the fraud unit. He 

applied for one of three “motors” special assignments in

2006, but withdrew from consideration because he felt 

“demeaned” after the first two positions were awarded to 

others with less experience, and after he saw a sergeant 

asking another officer if she would be interested in testing 

out a motorcycle. In 2008, Officer Flores applied for, but 

did not receive, a domestic violence detective position, and 

in 2009 did not receive the juvenile detective position for 

which he applied. Again, he felt those positions were 

awarded to officers with less experience. Officer Flores 

received only one special assignment—a mall assignment—

in twelve years with the Department. At times, he was called 

names by other officers, including “Dirty Sanchez,” “Jorge,” 

and “Silver” or “Silverback,” and he was told that the gray 

streak in his hair was his “INS mark.” In July 2010, Officer 

Flores filed an administrative complaint with the California 

Department of Fair Employment and Housing (“DFEH”) in 

which he alleged discrimination on the basis of national 

origin. After that, he did not apply for further special 

assignments. On December 6, 2011, eighteen months after 

filing his first complaint, Officer Flores filed a second 

complaint with DFEH alleging retaliation.

According to Officer Flores, the following incidents 

were retaliation for his discrimination complaint:

• In November 2010, five months after Officer Flores 

filed his discrimination complaint, Chief Waller 

removed him from the list of available Field Training 

Officers (“FTO”) (officers chosen to perform the 

collateral duty of mentoring and training new 

recruits).
FLORES V. CITY OF WESTMINSTER 7

• In June 2011, following an internal affairs (“IA”) 

investigation, Officer Flores and Reserve Officer 

Phan received a written reprimand for failing to take 

reasonable action while on duty. The reprimand 

stemmed from a domestic violence call in April 2011 

to which the officers did not respond, instead 

returning to the station to book evidence from a 

different crime scene. Although Officers Flores and 

Phan were the closest unit to the scene of the 

domestic violence incident, the dispatcher sent three 

other cars, and Officer Flores assumed those cars 

were closer than he was and that he did not need to 

respond. The incident resulted in serious injuries to 

the victim, and the perpetrator fled.

• In July 2011, Officer Flores received a Supervisor’s 

Log entry2 for a remark he made to a 14-year-old boy 

during a domestic violence call. As Officer Flores 

was working to deescalate the situation, he instructed 

the boy to go inside, whereupon the boy asked: 

“When did you become my dad?” Officer Flores 

responded: “I would not want to be your dad.” The 

remark was deemed “mean spirited and 

discourteous,” “not necessary,” and “disrespectful.”

• In June 2012, Officer Flores received a Supervisor’s 

Log entry for his accidental discharge of a Taser 

during testing.

• In late 2013 or early 2014, Officer Flores was 

interviewed as part of an IA investigation into the 

failure to report criminal and/or policy violations, 

 2 A Supervisor’s Log entry documents verbal counseling given to an 

officer by a supervisor.
8 FLORES V. CITY OF WESTMINSTER

and was asked whether he was surreptitiously 

recording co-workers or knew of anyone doing so.

Before he filed his first DFEH complaint, Officer Flores 

had never been disciplined as a police officer or the subject 

of an IA investigation during his tenure with the City.3 

Officer Flores also continued to receive commendations 

after filing his DFEH complaints, and was chosen by Chief 

Baker in August 2012 to serve on a patrol advisory group. 

He received regular pay increases throughout his 

employment with the City.

B. Officer Ryan Reyes

Officer Reyes was hired by the City in 1998 after 

graduating at the top of his class at the police academy, was 

named “Rookie of the Year,” and performed collateral duties 

as an FTO and on the Department’s SWAT team. Between 

2002 and 2007, he applied for fourteen special assignments 

but received only a mall assignment. A more junior, white 

officer was selected over Officer Reyes as a narcotics 

detective,4 despite feedback from some supervisors that the 

junior officer was not ready for the position. Another white 

officer, whom Officer Reyes had trained as an FTO, was 

selected over Officer Reyes for a detective position in 2009. 

 3 Although the parties stipulated to this fact before trial, the record 

includes an Administrative Memorandum dated February 22, 2007, 

describing another instance of Officer Flores accidentally discharging 

his Taser during testing, for which he was verbally counseled on the 

proper handling, testing, and use of the Taser. The record does not 

indicate whether the memo constituted discipline, non-disciplinary 

verbal counseling, or simply administrative paperwork required when a 

Taser is discharged.

4 Officer Perez also applied for, but did not receive, this position.
FLORES V. CITY OF WESTMINSTER 9

In January 2010, Officer Reyes filed a DFEH complaint 

alleging discrimination on the basis of national origin.

According to Officer Reyes, he suffered retaliatory 

actions after filing his discrimination complaint including 

Supervisor’s Log entries, written reprimands, and a 10-hour 

suspension for late submission of daily logs, traffic citations, 

and an accident report. He was also placed into an IA 

investigation and disciplined in December 2010 for untimely 

booking of a pen into evidence, despite the fact that during 

the period of the delay Officer Reyes was away from the 

Department testifying in federal court in an unrelated work 

matter.

C. Officer Brian Perez

Officer Perez, an officer in the U.S. Marine Corps 

Reserve, was hired by the City in January 2004. He 

performed collateral duties including serving as an FTO and 

on SWAT, and creating, formalizing, and serving on the 

Department’s Honor Guard. Between 2004 and 2014, 

Officer Perez applied for, but was denied, twelve special 

assignments. In particular, on four occasions special 

assignments for which he applied were awarded to allegedly

less-qualified white officers, one of whom had lied 

extensively on his resume. Officer Perez was also threatened 

with termination when Chief Hall believed Officer Perez 

was not testifying truthfully regarding a use of force incident 

involving another officer. That officer was ultimately 

cleared, but the charge that Officer Perez lied remained in 

his record with a finding of “not sustained” rather than a full 

exoneration, and he was removed from his SWAT and 

Honor Guard duties by Chief Hall. Officer Perez spent 

considerable time away from the Department fulfilling his 

duties with the Marine Corps, and the jury heard evidence 
10 FLORES V. CITY OF WESTMINSTER

that he was not informed of potential openings within the 

Department while he was away on deployments.

D. Defendants

The City and the Chiefs disputed Plaintiffs’ evidence and 

presented evidence that all officers, whether white, Latino, 

or Asian, had to apply numerous times before being 

promoted to Sergeant. The jury heard testimony that eight 

sergeants applied between two and five times before 

receiving their promotions. Defendants also presented 

evidence that at least seven officers identified by the City as 

Latino received special assignments between 2006 and 2013.

II

We first address the City’s contention that as a matter of 

law Officer Flores failed to establish his claim of retaliation 

in violation of FEHA. After the jury returned its verdict, the 

City moved for a new trial and renewed its motion for 

judgment as a matter of law on this issue. The record reflects 

that the district court properly denied both motions.

The district court’s denial of a motion for a new trial is 

reviewed for abuse of discretion. Martin v. Cal. Dep’t of 

Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir. 2009). We 

will grant a new trial only if the verdict is against the clear 

weight of the evidence, and not simply because the evidence 

might have led us to arrive at a different verdict. Id. The 

denial of a renewed motion for judgment as a matter of law 

is reviewed de novo, viewing the evidence in the light most 

favorable to the nonmoving party and drawing all reasonable 

inferences in that party’s favor. Id. “A renewed motion for 

judgment as a matter of law should be granted if the evidence 

permits only one conclusion and that conclusion is contrary 

to the jury’s verdict.” Id. The district court’s interpretation 
FLORES V. CITY OF WESTMINSTER 11

of state law also is reviewed de novo. See Strother v. S. Cal. 

Permanente Med. Grp., 79 F.3d 859, 865 (9th Cir. 1996).

FEHA makes it unlawful to “discharge, expel, or 

otherwise discriminate against any person because the 

person has opposed any practices forbidden [by FEHA] or 

because the person has filed a complaint, testified, or 

assisted in any proceeding under this part.” Cal. Gov’t Code 

§ 12940(h). To succeed on his FEHA retaliation claim,

Officer Flores was required to show that the City subjected 

him to one or more adverse employment actions and that his 

filing of a DFEH complaint was a substantial motivating 

reason behind those actions. See Harris v. City of Santa 

Monica, 56 Cal. 4th 203, 232 (2013); Alamo v. Practice 

Mgmt. Info. Corp., 219 Cal. App. 4th 466, 479 (2013). The 

City contends that none of its conduct with respect to Officer 

Flores constituted adverse employment actions under 

California law, that Officer Flores failed to prove his 

protected conduct was a substantial motivating factor behind 

those actions, and that Officer Flores failed to show that the 

City’s proffered reasons for its actions were pretextual.

California defines adverse employment actions as those 

“materially affect[ing] the terms, conditions, or privileges of 

employment.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 

1028, 1052 (2005). FEHA does not just protect against 

“adverse employment actions that impose an economic 

detriment or inflict a tangible psychological injury upon an 

employee.” Id. Rather, “[a] discriminatorily abusive work 

environment . . . can and often will detract from employees’ 

job performance, discourage employees from remaining on 

the job, or keep them from advancing in their careers.” Id.

at 1053 (emphasis omitted) (quoting Harris v. Forklift Sys., 

Inc., 510 U.S. 17, 22 (1995)). “[T]he phrase ‘terms, 

conditions, or privileges’ of employment must be interpreted 
12 FLORES V. CITY OF WESTMINSTER

liberally and with a reasonable appreciation of the realities 

of the workplace in order to afford employees the 

appropriate and generous protection against employment 

discrimination that the FEHA was intended to provide.” Id.

at 1054. Actions that are “reasonably likely to impair a 

reasonable employee’s job performance or prospects for 

advancement or promotion fall[] within the reach of 

[FEHA’s retaliation provisions].” Id. at 1054–55. Further, 

alleged acts of retaliation may be considered collectively to 

determine whether, taken together, they constitute an 

adverse employment action under the statute. See id. at 

1055, 1060.

Here, the evidence at trial—viewed in the light most 

favorable to Officer Flores and with all reasonable 

inferences drawn in his favor—would permit a trier of fact 

to conclude he was subjected to adverse employment 

actions. After filing his DFEH complaint, Officer Flores 

was removed from the FTO list, received negative 

Supervisor’s Log entries, and received his first written 

reprimand. Although the City argues that removal from the 

FTO list was a “relatively trivial incident” and the Log 

entries and reprimand did not impact Officer Flores’s job 

duties or performance, the jury could infer otherwise from 

the evidence. For example, the jury was shown written 

supervisor feedback for officers seeking special assignments 

wherein their performance of collateral duties as FTOs was 

considered and discussed. The jury also saw supervisor 

feedback recommending against awarding a detective 

position to an officer because of performance issues. At the 

very least, the jury could infer that Officer Flores’s removal 

from the FTO list, written reprimand, and negative Log 

entries would have been reviewed as part of any decision 

whether or not to award him special assignments or promote 

him, and would have harmed his prospects. See Yanowitz, 
FLORES V. CITY OF WESTMINSTER 13

36 Cal. 4th at 1055; see also Akers v. County of San Diego, 

95 Cal. App. 4th 1441, 1456 (2002) (negative evaluation and 

counseling memorandum constituted adverse employment 

actions because they potentially rendered employee “no 

longer ‘promotable,’” or at least reduced her opportunities 

for promotion). The jury’s determination that the City 

subjected Officer Flores to one or more adverse employment 

actions was reasonable and not against the clear weight of 

the evidence.

The jury’s finding that the filing of Officer Flores’s 

discrimination complaint was a substantial motivating 

reason for the adverse employment actions taken against him 

likewise was reasonable and not against the clear weight of 

the evidence. To establish a prima facie case of retaliation, 

Officer Flores was required to show that the adverse 

employment actions were linked to his protected activity. 

See McRae v. Dep’t of Corr. & Rehab., 142 Cal. App. 4th 

377, 388 (2006). This causal link “may be established by an 

inference derived from circumstantial evidence.” Id. 

Accordingly, Officer Flores could satisfy his initial burden 

“by producing evidence of nothing more than the [City]’s 

knowledge that [he] engaged in protected activities and the 

proximity in time between the protected action and the 

allegedly retaliatory employment decision.” Id. (citing 

Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 69 

(2000)). Here, it was undisputed that the City knew of 

Officer Flores’s DFEH complaint. And the first alleged 

adverse action by the City occurred in November 2010, five 

months after the DFEH filing, when Officer Flores was 

removed from the FTO list.

Without citation to any supporting case law, the City 

asserts this time period is too attenuated to establish 
14 FLORES V. CITY OF WESTMINSTER

causation.5 However, we have held that, “[d]epending on 

the circumstances, three to eight months is easily within a 

time range that can support an inference of retaliation.” 

Coszalter v. City of Salem, 320 F.3d 968, 977–78 (9th Cir. 

2003) (declining to adopt “any bright-line rule about the 

timing of retaliation”); see also Yartzoff v. Thomas, 809 F.2d 

1371, 1376 (9th Cir. 1987) (plaintiff made a sufficient prima 

facie showing where the adverse employment actions 

“began less than three months after he filed his first 

administrative complaint”); George, 179 Cal. App. 4th at 

1492 (describing four months as “relatively close timing,” 

from which supporting inferences could be drawn). 

Accordingly, the jury could conclude this evidence 

demonstrated the necessary causal link between Officer 

Flores’s discrimination complaint and the subsequent 

adverse employment actions he suffered.

In light of this evidence, the City was “required to offer 

a legitimate, nonretaliatory reason for [its] adverse 

employment action[s]” in order to shift the burden back to 

Officer Flores to prove intentional retaliation. Yanowitz, 

36 Cal. 4th at 1042. On this record, we are not convinced 

the City successfully countered Officer Flores’s evidence, as 

it failed to provide a legitimate reason for at least one of the 

adverse employment actions it took against him. 

Specifically, the City provided no evidence explaining why 

Officer Flores was removed from the FTO list five months 

 5 We are unpersuaded by the City’s citation to Fisher v. San Pedro 

Peninsula Hospital, 214 Cal. App. 3d 590, 615 (1989), for the 

proposition that proximity in time for a prima facie case means “a 

relatively short time” between protected conduct and adverse action. 

Fisher does not analyze the timing issue at all, and at least one 

subsequent California case has held that a period of several months 

constitutes “relatively close timing.” See George v. Cal. Unemployment 

Ins. Appeals Bd., 179 Cal. App. 4th 1475, 1492 (2009).
FLORES V. CITY OF WESTMINSTER 15

after he filed his DFEH complaint. Instead, the City admits 

that “it seems to have happened,” but that it was a “relatively 

trivial incident.” Yet the jury could have found otherwise; 

as we note above, there is evidence in the record to support 

the view that removal from the FTO list affected Officer 

Flores’s chances of receiving special assignments and 

promotions.

Regardless, the evidence presented by Officer Flores 

permits a finding of intentional retaliation by the City. For 

example, the jury heard testimony that workplace policies 

were inconsistently applied to Officer Flores—specifically, 

that Officer Flores was disciplined for his failure to respond 

to a domestic violence call while other officers who also 

failed to respond escaped discipline; and that Officer Flores 

received Supervisor’s Log entries for discourteous language 

and for discharging a Taser, while others did not. See 

Coszalter, 320 F.3d at 978 (concluding a “reasonable fact 

finder could find from the inconsistent application of [an 

employment] policy that the defendants’ motivation for 

enforcing the policy” was retaliatory). Further, evidence of 

a series of adverse employment decisions over the course of 

several years may “itself [be] probative of . . . the elusive 

factual question of [intent].” Yartzoff, 809 F.2d at 1377 

(internal quotation marks omitted). Officer Flores presented 

evidence of alleged adverse employment actions spanning 

approximately three years, and the jury permissibly could 

have inferred from this evidence that the actions taken 

against Officer Flores constituted intentional retaliation.

Viewing the evidence in the light most favorable to 

Officer Flores and drawing all reasonable inferences in his 

favor, we affirm the district court with respect to Officer 

Flores’s FEHA retaliation claim. To conclude otherwise 

would be “to intrude on the province of the jury,” as this is 
16 FLORES V. CITY OF WESTMINSTER

not a case where “a rational trier of fact could not find 

evidence in the record of . . . retaliation.” Winarto v. 

Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1286–

87 (9th Cir. 2001).

III

Next, the City seeks a new trial on damages, arguing 

Officer Flores was awarded a double recovery. According 

to the City, the $150,000 the jury awarded to Officer Flores 

for the City’s retaliation against him in violation of FEHA 

necessarily overlaps with the damages awarded against 

Chiefs Coopman, Waller, and Baker for their individual 

retaliatory acts in violation of 42 U.S.C. § 1981. Generally, 

we review a jury verdict of compensatory damages for 

substantial evidence. See In re Exxon Valdez, 270 F.3d 

1215, 1247 (9th Cir. 2001). We reject the City’s position 

here, as the verdict is not “hopelessly ambiguous” with 

respect to the damages awarded to Officer Flores, Woodcock 

v. Fontana Scaffolding & Equipment Co., 69 Cal.2d 452, 457 

(1968), but rather can be satisfactorily explained to avoid 

double recovery, see Roby v. McKesson Corp., 47 Cal. 4th 

686, 705 (2009).

As the district court noted: “The jury heard a wide range 

of evidence spanning many years, including conduct by 

many different employees of the Police Department. The 

Court is aware of no reason that the jury could not have

identified conduct rendering the City liable [for retaliation in 

violation of FEHA] but not constituting personal 

participation or ratification by a Chief.” For instance, the 

jury saw evidence that Officer Flores received a Supervisor’s 

Log entry from Sergeant Knauerhaze for his accidental Taser 

discharge. Likewise, the Supervisor’s Log entry for Officer 

Flores’s discourteous remark to a teenage boy was written 

by Lieutenant Panella. Sergeant Vandergrift investigated 
FLORES V. CITY OF WESTMINSTER 17

Officer Flores for his failure to respond to a domestic 

violence call, and Lieutenant Panella concurred with the 

resulting Administrative Report and recommended a written 

reprimand. It is conceivable that the jury’s verdict awarding 

$150,000 to Officer Flores from the City was for the 

retaliatory conduct of supervisors other than the Chiefs, and 

therefore does not overlap with the separate award of 

damages against the Chiefs in their individual capacities.

The City argues that whether this is actually what the 

jury intended “cannot be determined to a reasonable 

certainty” from the verdict and therefore a new trial on 

damages is required under Roby, 47 Cal. 4th at 705. In Roby, 

however, the California Supreme Court explained that a new 

trial was required because even the plaintiff’s proposed 

approach to interpreting the verdict so as to avoid double 

recovery created “an inconsistency” in the amounts actually 

awarded, and the plaintiff admitted there was “no evidence

of an act of discrimination that [wa]s separate from her 

failure-to-accommodate and wrongful-termination claims.” 

Id. at 704–05. Here, by contrast, Officer Flores’s proposed 

interpretation of the verdict does not create an inconsistency, 

and there is evidence in the record to support a finding that 

retaliatory acts were committed by other City employees in 

addition to the Chiefs. Accordingly, Roby does not require 

a remand in this case.

When appellate courts review a verdict, “reasonable 

inferences may be drawn which will support rather than 

defeat a judgment.” Weddle v. Loges, 52 Cal. App. 2d 115, 

119–20 (1942). We hold Officer Flores’s $150,000 award 

against the City for FEHA retaliation may stand because 

substantial evidence permits “a correct interpretation” that 

avoids double recovery. Roby, 47 Cal. 4th at 705 (quoting 

Woodcock, 69 Cal. 2d at 457).
18 FLORES V. CITY OF WESTMINSTER

IV

Moving next to the issues specifically raised by the 

Chiefs, we first address their argument that the district court 

erred in refusing to dismiss Plaintiffs’ claims under 

42 U.S.C. § 1981. We review questions of statutory 

interpretation de novo. Ileto v. Glock. Inc., 565 F.3d 1126, 

1131 (9th Cir. 2009). The district court’s interpretation of 

state law likewise is reviewed de novo. See Strother, 79 F.3d 

at 865.

Section 1981 prohibits discrimination in the making and 

enforcement of contracts by reason of race, including color 

or national origin differences. 42 U.S.C. § 1981. “[T]he 

term ‘make and enforce contracts’ includes the making, 

performance, modification, and termination of contracts, and 

the enjoyment of all benefits, privileges, terms, and 

conditions of the contractual relationship.” Id. The Chiefs 

argue that because, under California law, the employment 

relationship between the state and its civil service employees 

is governed by statute rather than contract, Plaintiffs cannot 

seek recovery under section 1981. We disagree, and we 

hold—in a matter of first impression—that California law 

should not be read to bar public employees from bringing 

section 1981 claims in cases such as this one.

In Judie v. Hamilton, 872 F.2d 919, 922–23 (9th Cir. 

1989), we outlined the proper analytical framework for 

determining whether a state public employee can recover 

under section 1981. In that case, a Washington state civil 

service employee claimed he was not permitted to perform 

all of the supervisory duties included in his job description. 

We examined whether state or federal law controlled the 

determination of the legal status of the plaintiff’s job 

description. Id. at 922. As the language of section 1981 

provides no specific guidance, we applied the Supreme 
FLORES V. CITY OF WESTMINSTER 19

Court’s three-step process, based on 42 U.S.C. § 1988, for 

borrowing an appropriate rule. Id. (citing Burnett v. Grattan, 

468 U.S. 42, 47 (1984)).

First, we explained, courts must look to the laws of the 

United States “so far as such laws are suitable to carry [the 

civil and criminal civil rights statutes] into effect.” Id.

(quoting Burnett, 468 U.S. at 48). If, as here:

no suitable federal rule exists, courts 

undertake the second step by considering 

application of state common law, as modified 

and changed by the constitution and statutes 

of the forum State. A third step asserts the 

predominance of the federal interest: courts 

are to apply state law only if it is not 

inconsistent with the Constitution and laws of 

the United States.

Id. (quoting Burnett, 468 U.S. at 48 (internal quotation 

marks omitted)). Following this procedure, we determined 

that under Washington law the plaintiff in Judie could not 

bring a cognizable claim for violation of the right to contract 

under section 1981. Id. at 923. We reach a different 

conclusion here.

Like Washington law, California law provides that 

“public employment is not held by contract but by statute.” 

Miller v. State of Cal., 18 Cal. 3d 808, 813 (1977). 

According to the Chiefs, Judie therefore dictates dismissal 

of Plaintiffs’ section 1981 claims. But, as the district court 

recognized, the Judie decision predates the 1991 

amendments to section 1981 expanding the reach of the 

statute’s “make and enforce contracts” term following the 

Supreme Court’s decision in Patterson v. McLean Credit 

Union, 491 U.S. 164 (1989). See 42 U.S.C. § 1981(b). 
20 FLORES V. CITY OF WESTMINSTER

Moreover, in Judie we analyzed Washington rather than 

California law, and did not have occasion to consider the 

California Supreme Court’s decision in White v. Davis, 

30 Cal. 4th 528, 564–65 (2003), declaring that “a long line 

of California cases establishes that with regard to at least 

certain terms or conditions of employment that are created 

by statute, an employee who performs services while such a 

statutory provision is in effect obtains a right, protected by 

the contract clause, to require the public employer to comply 

with the prescribed condition.” This language indicates a 

broader view of the applicability of section 1981 to public 

employees under California law than under Washington law 

at the time we decided Judie. See 872 F.2d at 923. 

California law weighs in favor of allowing Plaintiffs’ section 

1981 claims to proceed in this case.

The third step of the test set forth in Judie—assessing the 

predominance of the federal interest at stake—also leads us 

to conclude Plaintiffs’ section 1981 claims are proper. The 

Civil Rights Act of 1866 implemented the Thirteenth 

Amendment, which was enacted with an intent to remedy 

“the most self-evident deprivation of slavery, the right to 

contract freely for one’s labor.” 2 Joseph G. Cook & John 

L. Sobieski, Jr., Civil Rights Actions ¶ 5.13 (Lexis-Nexis 

1983 & Supps.). See also Gen. Bldg. Contractors Ass’n v. 

Pennsylvania, 458 U.S. 375, 383–88 (1982) (summarizing 

legislative history of section 1981). Reading California law 

to bar all public employees from bringing section 1981 

claims hinders a preeminent federal interest: preventing 

discrimination on the basis of race in the “enjoyment of all 

benefits, privileges, terms, and conditions of the contractual 

relationship.” 42 U.S.C. § 1981(b). Such an interpretation 

of California law would be inconsistent with the Constitution 

and laws of the United States—specifically, with the 1991 

amendment expansively defining the meaning of the term 
FLORES V. CITY OF WESTMINSTER 21

“make and enforce contracts” in section 1981. In light of 

these considerations, we hold Plaintiffs’ discrimination and 

retaliation claims were properly brought under section 

1981.6

V

The Chiefs next argue the district court erred by denying 

several of Defendants’ motions in limine and by allowing 

submission of an instruction to the jury on the Uniform 

Services Employment and Reemployment Rights Act 

(“USERRA”). We review evidentiary decisions for an abuse 

of discretion. Hill v. Rolleri, 615 F.2d 886, 891 (9th Cir. 

1980). Evidentiary errors will not lead to reversal absent 

some resulting prejudice. Haddad v. Lockheed Cal. Corp., 

720 F.2d 1454, 1459 (9th Cir. 1983). We review a district 

court’s formulation of civil jury instructions for abuse of 

discretion in light of the instructions as a whole, Altera Corp. 

v. Clear Logic, Inc., 424 F.3d 1079, 1087 (9th Cir. 2005), 

and must determine whether any error was “more probably 

than not harmless,” Swinton v. Potomac Corp., 270 F.3d 

794, 805 (9th Cir. 2001).

 6 We reject the Chiefs’ alternative argument that because Plaintiffs 

were employed by the City rather than by the Chiefs, and because the 

jury did not find section 1981 liability against the City, the judgment 

against the Chiefs cannot stand. Numerous cases, including our own, 

have allowed individual liability under section 1981. Cf. Jett v. Dallas 

Indep. Sch. Dist., 491 U.S. 701, 711 (1989) (noting jury verdict finding 

individual supervisor violated plaintiff’s rights under section 1981); Bell 

v. Clackamas County, 341 F.3d 858, 867 (9th Cir. 2003) (upholding jury 

verdict imposing individual liability against defendants under section 

1981). See also, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 

223 F.3d 62, 75 (2d Cir. 2000) (collecting cases and holding that 

individual liability under section 1981 is permitted).
22 FLORES V. CITY OF WESTMINSTER

The Chiefs claim they were prejudiced by the district 

court’s denials of motions in limine to exclude: 1) evidence 

of events that occurred outside of the statute of limitations 

period; 2) evidence of racial slurs used within the 

Department; 3) evidence of Sergeant Mize’s alleged 

unprofessional emails to women and involvement with a coworker and a bar employee; 4) evidence of Officer Turner’s 

involvement with a bar employee; and (5) evidence of a prior 

discrimination claim from 1997 involving a “Whites Only” 

sign posted in the police station. The district court did not 

abuse its discretion in denying these motions.

Allowing the jury to hear evidence of Defendants’ acts 

outside the statute of limitations was not reversible error. 

This evidence was relevant to Plaintiffs’ claims that they 

were discriminated against under a custom or policy of the 

Department. See Nat’l R.R. Passenger Corp. v. Morgan, 

536 U.S. 101, 113 (2002) (explaining a statute of limitations 

does not “bar an employee from using the prior acts as 

background evidence in support of a timely claim”); Raad v. 

Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1192 

(9th Cir. 2003) (same).7 Similarly, evidence regarding the 

alleged inappropriate conduct and resulting disciplinary 

histories of Sergeant Mize and Officer Turner was properly 

admissible because both men served as appropriate 

comparators to Plaintiffs for the jury. Each received special 

assignments and promotions despite serious violations of the 

Department’s policies, and the district court did not abuse its 

discretion in finding their similarities with Plaintiffs 

 7 Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003), cited 

by the Chiefs, addresses the “continuing violations doctrine” where the 

plaintiffs had not brought a pattern or practice claim, and does not stand 

for the proposition that evidence outside the statute of limitations cannot 

be admitted to support such a claim.
FLORES V. CITY OF WESTMINSTER 23

sufficient for the evidence to survive the balancing test under 

Federal Rule of Evidence 403. Cf. Vasquez v. County of Los 

Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (explaining that 

“individuals are similarly situated when they have similar 

jobs and display similar conduct”).

The district court denied the motions to exclude the 

evidence of racial slurs and the lawsuit stemming from the 

“Whites Only” sign without prejudice. The Chiefs did not 

renew their objections to the introduction of evidence on 

these subjects at trial, therefore their objections are waived. 

See Palmerin v. Riverside, 794 F.2d 1409, 1413 (9th Cir. 

1986) (holding that unless a trial court’s ruling concerning 

introduction of evidence is “explicit and definitive,” an 

unsuccessful motion in limine must be renewed at trial to be 

preserved for appeal). Regardless, allowing the jury to hear 

this evidence was not an abuse of discretion, as in both 

instances the evidence was relevant to discriminatory intent, 

and to the City’s knowledge, customs, and policies.

Finally, delivering a USERRA instruction to the jury was 

not prejudicial error. The instruction to which the Chiefs 

objected states:

Military Leave

The Uniformed Services Employment 

and Reemployment Rights Act (USERRA) is 

a federal law that prohibits discrimination 

against service members and protects their 

job rights while in military service.

Under USERRA, a service member has 

the right to reemployment in the job position 

that the service member would have obtained 

with reasonable certainty if not for absence 
24 FLORES V. CITY OF WESTMINSTER

due to uniformed service. USERRA also 

requires that a service member be treated the 

same way that the employer treats other 

employees on leave or furlough. The rights 

protected by USERRA can include the right 

to be notified of an open job opportunity.

There is no USERRA claim before you, 

and you are not deciding any questions 

associated with USERRA. You should 

consider any evidence about whether 

Westminster notified Plaintiff Perez of open 

job opportunities only in terms of the stated 

race discrimination claims.

The Chiefs argue this instruction left the jury “with the 

conflicted, uninformed impression that [Defendants] must 

have violated Perez’s USERRA rights,” and explains why 

the jury awarded Officer Perez more punitive damages than 

Officer Reyes even though Officer Reyes prevailed on more 

claims.

We conclude the USERRA instruction was more 

probably than not harmless. The instruction informed the 

jury it was not to consider Officer Perez’s military service 

except to the extent the evidence demonstrated the City

failed to notify Officer Perez of open job opportunities 

because of race discrimination.8 Furthermore, the jury heard 

sufficient evidence from which it could have concluded that 

Chiefs Coopman and Hall discriminated against Officer 

 8 Given Officer Perez’s extensive testimony about his military 

deployments, the limiting instruction may actually have lessened the 

harm Defendants otherwise might have suffered from this potentially 

prejudicial line of testimony.
FLORES V. CITY OF WESTMINSTER 25

Perez absent any reference to his military service, including 

that he was denied twelve special assignments for which he 

applied between 2004 and 2014 and that Chief Hall removed 

Officer Perez from his SWAT and Honor Guard duties 

because he continued to believe Officer Perez was lying 

about a use of force incident. As for the difference in 

punitive damages awarded, the jury may have determined 

Officer Perez was entitled to greater damages because the 

Chiefs’ actions against him were more egregious than those 

against Officer Reyes—for instance, the jury may have 

concluded that some of the actions taken against Officer 

Reyes were justified because of his prior poor record of 

turning in paperwork on time, or his relationship with a 

female officer that culminated in unproven rape charges and 

a reprimand for engaging in sexually explicit conversations 

at work. We affirm the district court’s denials of the motions 

in limine and delivery of the USERRA instruction.

VI

The Chiefs also seek a new trial because of what they 

claim are irreconcilable special verdict findings returned by 

the jury. They contend the jury’s verdict against Chiefs 

Coopman and Hall for race discrimination in violation of 

section 1981 is fatally inconsistent because, while it includes 

findings that Chiefs Coopman and Hall personally 

participated in decisions to select non-Latino applicants with 

qualifications comparable to or worse than Plaintiffs’, it does 

not include a finding of intentional discrimination. We 

review the district court’s denial of a motion for a new trial 

for abuse of discretion, Jorgensen v. Cassiday, 320 F.3d 906, 

918 (9th Cir. 2003), and its reconciliation of the special 

verdict form de novo, California v. Altus Fin. S.A., 540 F.3d 

992, 1004 (9th Cir. 2008). We conclude the district court 

properly denied the Chiefs’ motion.
26 FLORES V. CITY OF WESTMINSTER

At the outset, we note the complexity of the verdict form 

presented to the jury in this case. The Federal Rules of Civil 

Procedure provide for special verdicts (where the jury 

returns written findings on each issue of fact and the court 

then draws legal conclusions) or general verdicts with 

interrogatories (where the jury makes factual findings but 

also applies the law to those findings). See Fed. R. Civ. P. 

49(a), (b). As the district court correctly noted, the jury form 

in this case falls somewhere between the two. Like a special 

verdict form, it included a series of questions that referred 

the jury to answer further questions, or not, based upon their 

responses. Nowhere did the form ask the jury to find “for” 

or “against” Plaintiffs or Defendants. On the other hand, like 

with a general verdict with interrogatories, the jury was 

given lengthy instructions on the applicable law, setting out 

the elements and directing the jury how to apply those 

elements. This suggests the jury was asked to apply law to 

its factual determinations, not just find facts. See Floyd v. 

Laws, 929 F.2d 1390, 1395 (9th Cir. 1991); cf. R. H. Baker 

& Co. v. Smith-Blair, Inc., 331 F.2d 506, 511 (9th Cir. 1964) 

(“Use of the special verdict eliminates the necessity for and 

use of complicated instructions on the law[.]”) (internal 

citations and quotation marks omitted). Whether interpreted 

as a special verdict or as a general verdict with 

interrogatories, however, the answers returned by the jury 

here do not require a new trial.

Significantly, the form posed questions to the jury in a 

cascading sequence, where some elements were presented 

with respect to one claim early in the form and then 

incorporated in later claims without repeating them. Thus, 

the question of intent was presented to the jury in the portion 

of the form addressing the City’s potential liability under 

section 1981, and the jury was instructed to answer that 

question only if it first found that Plaintiffs were 
FLORES V. CITY OF WESTMINSTER 27

discriminated against due to a policy or custom of the City. 

The form next addressed the section 1981 claims against the 

individual chiefs, but did not repeat the question regarding 

intent. The jury ultimately found Chiefs Coopman and Hall 

had discriminated against Plaintiffs in violation of section 

1981 without an explicit finding of intent, but this resulted 

from the parties’ imperfect drafting of the jury form.

If we interpret the jury form in this case as a special 

verdict, the district court properly reconciled this alleged 

inconsistency in the jury’s findings. Courts have a duty 

under the Seventh Amendment to harmonize a jury’s special 

verdict answers, “if such be possible under a fair reading of 

them. A court is also obligated to try to reconcile the jury’s 

findings by exegesis, if necessary.” Floyd, 929 F.2d at 1396 

(citing Gallick v. Baltimore & O.R.R. Co., 372 U.S. 108, 120 

(1963)). A new trial should be granted only “in the case of 

fatal inconsistency,” id., and in attempting to reconcile the 

verdict, the court must “view[] the case in any reasonable 

way that makes the verdicts consistent.” 9 Anheuser-Busch, 

Inc. v. John Labatt Ltd., 89 F.3d 1339, 1347 (8th Cir. 1996). 

Moreover, Rule 49(a)(3) of the Federal Rules of Civil 

Procedure provides that a party waives the right to a jury trial 

on any issue of fact raised by the pleadings or evidence but 

not submitted to the jury if submission is not requested 

before the jury retires to deliberate. “If the party does not 

demand submission, the court may make a finding on the 

issue. If the court makes no finding, it is considered to have 

 9 We hesitate even to characterize the issue here as one of 

inconsistency. As the district court put it, “This is not a problem of 

inconsistency, per se; it is a problem of the parties developing a jury 

verdict form that did not present an element to the jury in both of the 

claims for which the Defendants wanted it presented.”
28 FLORES V. CITY OF WESTMINSTER

made a finding consistent with its judgment on the special 

verdict.” Fed. R. Civ. P. 49(a)(3).

Here, neither party requested a specific finding of 

intentional discrimination by the Chiefs in their individual 

capacities. Accordingly, it was not error for the district court 

to conclude that, “considered in light of [its] instructions to 

the jury,” Altus Fin., 540 F.3d at 1004 (citation omitted), 

including the instructions setting forth the elements of 

section 1981 discrimination claims,10 the jury’s failure to 

answer the question on intent in the portion of the jury form 

dealing with the City’s liability merely indicated it intended 

to find the individual Chiefs liable, but did not find 

municipal liability under a custom or policy.

Alternatively, if we interpret the jury form as a general 

verdict with interrogatories, the Chiefs still are not entitled 

to a new trial. As the district court correctly concluded, the 

Chiefs waived any objection to the jury’s allegedly 

inconsistent answers when they failed to object before the 

jury was discharged.11 See, e.g., Home Indem. Co. v. Lane 

Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995);

Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). We 

affirm the district court’s denial of the Chiefs’ motion for a 

new trial for alleged inconsistencies in the verdict.

 10 The jury instructions clearly stated that Plaintiffs were required to

prove that Defendants intentionally discriminated, and included as an 

element that any purported legitimate business reason given by 

Defendants for their actions must be false.

11 The parties were twice asked if they saw any reason the jury could 

not be discharged and did not object. See L.A. Nut House v. Holiday 

Hardware Corp., 825 F.2d 1351, 1354–55 & n.3 (9th Cir. 1987) 

(discussing cases appropriately applying waiver).
FLORES V. CITY OF WESTMINSTER 29

VII

The Chiefs also moved for a new trial on the grounds that 

the jury verdict finding them individually liable was against 

the clear weight of the evidence and that Plaintiffs failed to 

present evidence of malicious conduct sufficient to support 

punitive damages. The district court declined to order a new 

trial on these grounds; we review its decision for abuse of 

discretion. See Kode, 596 F.3d at 611; Gilbrook v. City of 

Westminster, 177 F.3d 839, 856 (9th Cir. 1999). “An 

appellate court generally will not reverse the denial of a new 

trial motion if there was some reasonable basis for the jury’s 

verdict.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th 

Cir. 2007) (internal quotation marks omitted).

The Chiefs properly can be held liable in their individual 

capacities: 1) if they participated in the deprivation of 

Plaintiffs’ constitutional rights; 2) for their own culpable 

action or inaction in the training, supervision, or control of 

their subordinates; 3) for their acquiescence in the 

constitutional deprivations; or 4) for conduct that showed a 

reckless or callous indifference to the rights of others. See 

Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093 

(1998) (explaining instances in which a supervisor can be 

held individually liable). The jury heard evidence from 

which it could reasonably conclude that all four Chiefs either 

discriminated against or retaliated against Plaintiffs with 

malice, and we therefore uphold the jury’s verdict.

The jury reviewed the following evidence that 

reasonably supports a finding that Chief Coopman retaliated 

against Officers Flores and Reyes in violation of section 

1981:

• Chief Coopman oversaw multiple potentially 

retaliatory IA investigations against Officer 
30 FLORES V. CITY OF WESTMINSTER

Reyes, and imposed a ten-hour unpaid 

suspension against him for submitting late 

reports, even though another officer testified that 

he frequently did not turn in daily logs on the day 

he worked without suffering any consequences, 

and that officers can hold collision reports 

without permission and submit them as they are 

completed. Chief Coopman also participated in 

the review hearing Chief Waller held for Officer 

Reyes.

• Chief Coopman opened an IA investigation 

against Officer Flores for failing to respond to a 

domestic violence incident and issued a written 

reprimand but did not investigate the dispatcher 

or other units who did not respond to the call.

Even though the evidence demonstrates Chief Coopman 

signed a commendation for Officer Flores, and testified that 

his wife is Hispanic and he does not discriminate against 

Latinos, the jury was free to accord this evidence whatever 

weight it saw fit, and the Court “cannot substitute its

evaluations for those of the jurors.” Tortu v. Las Vegas 

Metro. Police Dep’t, 556 F.3d 1075, 1084 (9th Cir. 2009) 

(internal quotation marks omitted).

The jury reviewed the following evidence supporting a 

finding that Chief Hall discriminated against all three 

Plaintiffs in violation of section 1981:

• Chief Hall, the “ultimate authority” regarding which 

officers received special assignments, repeatedly 

promoted white officers with serious disciplinary 

histories, as well as less qualified white officers, over 

Plaintiffs.
FLORES V. CITY OF WESTMINSTER 31

• Chief Hall issued a notice of intent to terminate 

Officer Perez based on his testimony regarding a use 

of force incident he witnessed and, although the 

charge was dropped, removed him from SWAT and 

Honor Guard, stopped assigning him FTO trainees, 

and would not give him a position on the Patrol Rifle 

Officer team.

• Chief Hall recommended that Officer Reyes receive 

a written reprimand for an unproven rape allegation, 

and authorized a written reprimand for entering into 

an ongoing inappropriate conversation between two 

white officers, but did not reprimand the white 

officers.

As for the finding that Chief Baker retaliated against 

Officer Flores in violation of section 1981, the jury was 

presented with evidence that:

• Chief Baker felt “sandbagged” by Officer Flores’s 

DFEH Complaint, and thereafter refused to overturn 

the written reprimand Officer Flores received for his 

discourteous remark to a teenager.

• Chief Baker was in charge during the IA investigation 

into whether Officer Flores failed to report criminal 

and/or policy violations.12

 12 The evidence against Chief Baker admittedly is weaker than 

against some of the other defendants, but that is reflected in the jury’s 

verdict finding him liable only for retaliation under section 1981 and 

awarding lesser damages against him. Again, we will not substitute our 

evaluation of the evidence for that of the jury. See Tortu, 556 F.3d at 

1084.
32 FLORES V. CITY OF WESTMINSTER

The jury also was presented with evidence supporting its 

finding that Chief Waller retaliated against Officer Flores in 

violation of FEHA, and Officers Flores and Reyes in 

violation of section 1981, including that:

• Chief Waller removed Officer Flores from the FTO 

list five months after Officer Flores filed his DFEH 

complaint.

• Chief Waller was in charge during the period leading 

into the IA investigations of Officer Flores for failure 

to respond to a domestic violence call and for the 

discourteous remark he made to a teenager.

• Chief Waller was in charge when Officer Reyes filed 

his DFEH complaint in January 2010, and Officer 

Reyes was thereafter placed into multiple IA 

investigations and received discipline for infractions

not enforced against other officers.

We conclude all of this evidence provided a reasonable 

basis for the jury’s verdict against the Chiefs. Likewise, the 

jury’s determination that clear and convincing evidence 

demonstrated the Chiefs’ actions were malicious, 

oppressive, or in reckless disregard of Plaintiffs’ rights was 

not against the great weight of the evidence. Accordingly, 

the district court did not abuse its discretion in allowing the 

jury’s award of punitive damages to stand.13

 13 Additionally, the Chiefs argue the jury’s failure to explicitly find 

intentional discrimination forecloses punitive damages, but we reject this 

argument for the reasons explained in Part VI, supra.
FLORES V. CITY OF WESTMINSTER 33

VIII

Alternatively, the Chiefs seek a reversal or remittitur of 

the punitive damages awards against them as 

unconstitutionally excessive. We review whether punitive 

damages are excessive de novo. Bains LLC v. Arco Prods 

Co., Div. of Atl. Richfield Co., 405 F.3d 764, 775 (9th Cir. 

2005). We conclude the amount of punitive damages 

awarded in this case is not “grossly excessive” to the point 

of arbitrariness in violation of the Due Process Clause of the 

Fourteenth Amendment. TXO Prod. Corp. v. All. Res. 

Corp., 509 U.S. 443, 454 (1993).

Whether an award of punitive damages exceeds the 

bounds of due process is determined on a case-by-case basis 

by examining: (1) the reprehensibility of the conduct being 

punished; (2) the ratio of the punitive damages award to the 

compensatory damages award; and (3) the difference 

between the punitive damages award and the civil penalties 

authorized or imposed in comparable cases. See BMW of N. 

Am., Inc. v. Gore, 517 U.S. 559, 568, 575, 580–83 (1996). 

The degree of reprehensibility of the conduct at issue is 

“[p]erhaps the most important indicium of the 

reasonableness of a punitive damages award.” Id. at 575. 

The Chiefs argue that several of the punitive damages 

awards in this case exceed a 4:1 ratio, which “might be close 

to the line of constitutional impropriety.” State Farm Mut. 

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).14 The 

punitive damages awarded here do not cross that line.

First, the Supreme Court has “consistently rejected the 

notion that the constitutional line is marked by a simple 

 14 A chart setting forth the damages awarded to each plaintiff is 

included in an appendix to this opinion.
34 FLORES V. CITY OF WESTMINSTER

mathematical formula,” BMW, 517 U.S. at 582, and the 

single-digit ratios here are in line with our precedent. See, 

e.g., Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1044 

(9th Cir. 2003) (upholding a 7:1 ratio and noting “[w]e are 

aware of no Supreme Court or Ninth Circuit case 

disapproving of a single-digit ratio between punitive and 

compensatory damages”); Swinton, 270 F.3d at 818–19 

(upholding a ratio of 28:1 and noting that “where the injury 

is primarily personal, a greater ratio may be appropriate” 

(citation omitted)).

Second, we have recognized that intentional 

discrimination on the basis of race or ethnicity is especially 

reprehensible and “a different kind of harm, a serious affront 

to personal liberty.” Zhang, 339 F.3d at 1043 (“There can 

be no question of the importance of our society’s interest in 

combating discrimination; this nation fought the bloodiest 

war in its history in part to advance the goal of racial 

equality, adding several amendments to the Constitution to 

cement the battlefield victory.”); see also Swinton, 270 F.3d 

at 817–18. Accordingly, a more substantial punitive 

damages award may be justified in intentional 

discrimination cases than in cases involving “purely 

economic” harms. Cf. BMW, 517 U.S. at 576.

As to the third factor, we observed in Swinton that 

“[t]here are no ‘civil penalties’ for the type of conduct for 

which [Defendants were] held liable in this case.” Id. at 820. 

While Title VII’s damages cap of $300,000 may sometimes 

serve as a guidepost, “Congress has not seen fit to impose 

any recovery caps under § 1981 . . . , although it has had 

ample opportunity to do so since the 1991 amendments to 

Title VII.” Id. And in any event, only a few of the punitive 

awards here are in excess of $300,000, and only the awards 

against Chiefs Coopman and Hall significantly so. On 
FLORES V. CITY OF WESTMINSTER 35

balance, the differential between the compensatory and 

punitive damages is not so large as to be constitutionally 

excessive on the facts of this case. We decline to reduce the 

jury’s punitive damages awards.

IX

The final issue we must decide is whether the verdict 

against Chief Waller is valid notwithstanding the fact that he 

died before trial. Waller was the City’s Chief of Police from 

January 2010 to March 2011. On June 28, 2013, he was 

struck and killed by a motorist while riding his bicycle. It is 

undisputed that the parties knew of Chief Waller’s passing; 

the proposed Final Pre-Trial Conference Order filed in 

November 2013 indicated in a footnote that, “Defendant 

Mitchell Waller is recently deceased.” Likewise, it is 

undisputed that no statement of death was served on any 

party or Chief Waller’s estate, and that neither party filed a 

motion to substitute the estate as the defendant under Rule 

25(a) of the Federal Rules of Civil Procedure.15 The jury 

assessed a total of $466,500 against Chief Waller for 

retaliating against Officers Flores and Reyes in violation of 

section 1981—$395,000 was compensatory and $71,500 

punitive.

 15 Federal Rule of Civil Procedure 25(d), providing for automatic 

substitution of a decedent’s successor when a decedent is sued in his 

official capacity, does not apply here. An individual official’s actions in 

violation of federal law cannot establish liability in an official capacity 

action; instead, a governmental policy or custom must be the “moving 

force” behind the official’s unlawful actions. See Monell v. Dep’t of Soc. 

Serv. of City of New York, 436 U.S. 658, 694 (1978). But the jury found 

in this case that the discrimination suffered by Plaintiffs was not due to 

a custom or policy of the City. Accordingly, Chief Waller was found 

liable only in his individual capacity.
36 FLORES V. CITY OF WESTMINSTER

Rule 25(a)(1) allows any party to move for substitution 

in the case of a party’s death, within ninety days of filing a 

statement of death on the record, provided the underlying 

“claim is not extinguished.” Section 1988 directs courts to 

apply state survival laws in civil rights actions when not 

inconsistent with the Constitution and federal law. See 

Robertson v. Wegmann, 436 U.S. 584, 588–90 (1978) 

(holding the survivability of section 1983 claims is governed 

by state law). State law therefore governs the survivability 

of section 1981 claims. In California, no cause of action is 

lost “by reason of” a defendant’s death, as long as the statute 

of limitations for the claim has not expired and the claim is 

filed against the decedent within a year of death. Cal. Civ. 

Proc. Code §§ 377.20, 366.2. Thus, the section 1981 claim 

against Chief Waller survives because it was timely filed 

before his death.

Complicating matters, however, is the fact that Rule 

25(a)(1)’s ninety-day period to move for substitution of the 

estate was never triggered in this case because no party filed 

and served a formal statement noting Chief Waller’s death. 

See Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994); see 

also Fed. R. Civ. P. 25(a)(3).16 And the Chiefs contend that 

because more than a year has passed since Chief Waller’s 

death, it is now too late to substitute his estate under 

 16 The incidental reference to Chief Waller’s death in the parties’ 

pre-trial conference order was insufficient to constitute a formal 

statement of death. See, e.g., Acri v. Int’l Ass’n of Machinists & 

Aerospace Workers, 595 F. Supp. 326, 330 (N.D. Cal. 1983) aff’d on 

other grounds, 781 F.2d 1393 (9th Cir. 1986) (incidental mentions of 

death in the interrogatories were insufficient to establish a formal 

statement of death on the record); see also Blair v. Beech Aircraft Corp., 

39 Fed. R. Serv. 2d 1410 (W.D. Pa. 1984) aff’d without opinion, 

787 F.2d 580 (3d Cir. 1986) (a passing reference to death in the pleadings 

was insufficient).
FLORES V. CITY OF WESTMINSTER 37

California Code of Civil Procedure section 366.2. We note, 

however, that California courts may grant leave to amend a 

complaint to name a decedent’s estate, even where that 

amendment occurs after the expiration of the one-year period 

in section 366.2. See Burgos v. Tamulonis, 28 Cal. App. 4th 

757, 761–63 (1994). Accordingly, we reject the Chiefs’ 

argument that a remand to the district court for substitution 

of Chief Waller’s estate under Rule 25(a) would be futile.

The Chiefs also argue, however, that Officers Flores and 

Reyes are time-barred from seeking recovery from Chief 

Waller’s estate under the requirements of the California 

Probate Code. Enforcement of federal judgments, they 

correctly point out, is subject to procedures in the forum 

state. See Fed. R. Civ. P. 69(a); Duchek v. Jacobi, 646 F.2d 

415, 416 (9th Cir. 1981). In California, surviving causes of 

action may be continued against a decedent’s personal 

representative, subject to the requirements of section 9000 et 

seq. of the California Probate Code. See Cal. Civ. Proc. 

Code §§ 377.40–41. Probate Code section 9370(a) in turn 

states that actions or proceedings pending against a decedent 

“may not be continued against the decedent’s personal 

representatives” unless: “(1) A [probate] claim is first filed 

as provided in this part”; “(2) The claim is rejected in whole 

or in part;” and “(3) Within three months after the notice of 

rejection is given, the plaintiff applies to the court in which 

the action or proceeding is pending for an order to substitute 

the personal representative in the action or proceeding.”

On this record, we cannot determine whether the 

provisions of the Probate Code bar recovery of Plaintiffs’ 

claims against Chief Waller’s estate. The parties have 

provided no evidence indicating whether administration of 

the estate was ever initiated or whether Officers Flores and 

Reyes filed a claim. Accordingly, we vacate the judgment 
38 FLORES V. CITY OF WESTMINSTER

against Chief Waller and remand to the district court to grant 

Officers Flores and Reyes leave to substitute the estate, 

provided they properly follow the procedures set forth in 

Rule 25(a). The district court may then—after reviewing 

additional evidence submitted by the parties as necessary—

determine whether Officers Flores and Reyes can recover 

damages from Chief Waller’s estate.

On remand, the district court also should determine in 

the first instance whether Plaintiffs may recover from the 

estate the punitive damages awarded against Chief Waller, 

or whether the parties waived any argument regarding those 

damages by not raising the issue before trial. The general 

rule in California is that punitive damages are not 

recoverable against a decedent’s personal representative. 

See Cal. Civ. Proc. Code § 377.42 (“In an action or 

proceeding against a decedent’s personal representative . . . 

on a cause of action against the decedent, all damages are 

recoverable that might have been recovered against the 

decedent had the decedent lived except . . . punitive or 

exemplary damages.”).17 Here, however, the parties put the 

question of whether to award punitive damages against Chief 

Waller to the jury, all the while knowing full well that Chief 

Waller had died almost seven months before the trial began. 

The district court may review any additional evidence 

submitted by the parties on this issue and decide, on the 

 17 Plaintiffs argue California courts have at times permitted 

exceptions to this rule, however in those cases, the decedent died after 

the case had reached final judgment. See Whelan v. Rallo, 52 Cal. App. 

4th 989, 991–95 (1997) (citing California cases and statutes supporting 

the proposition that punitive damages awards are only enforceable if the 

defendant dies after final judgment). In this case, Chief Waller died over 

a year before the district court entered judgment.
FLORES V. CITY OF WESTMINSTER 39

unique facts of this case, whether or not it will allow the 

punitive damages award against Chief Waller to stand.

X

For the reasons set forth above, we AFFIRM IN PART, 

AND VACATE AND REMAND IN PART.

Each party shall bear its own costs.
40 FLORES V. CITY OF WESTMINSTER

APPENDIX

Defendant Plaintiff Punitive Compensatory Ratio

Coopman Flores $396,000 $218,000 2:1

Coopman Reyes $176,000 $40,000 4:1

Coopman Perez $308,000 $50,000 6:1

Hall Flores $459,000 $65,000 8:1

Hall Reyes $220,000 $45,000 5:1

Hall Perez $385,000 $100,000 4:1

Baker Flores $49,500 $42,000 1:1

Waller Flores $49,500 $210,000 1:4

Waller Reyes $22,000 $185,000 1:8