Filed 8/5/14 Modified and Certified for Partial Publication 8/19/14 (order attached) 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

DARREN HAGER, 

 Plaintiff and Respondent, 

 v. 

COUNTY OF LOS ANGELES et al., 

 Defendants and Appellants. 

 B238277 

 (Los Angeles County 

 Super. Ct. No. BC370326) 

DARREN HAGER, 

 Plaintiff and Appellant, 

 v. 

COUNTY OF LOS ANGELES et al., 

 Defendants and Respondents. 

 B239897 

 (Los Angeles County 

 Super. Ct. No. BC370326) 

 APPEALS from a judgment and order of the Superior Court of Los Angeles 

County, Victor E. Chavez, Judge. Judgment is affirmed in part and reversed in part. The 

order is affirmed. 

Love & Erskine, Richard A. Love and Beth A. Shenfeld for Plaintiff and 

Appellant and for Plaintiff and Respondent.. 

Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall for Defendants and 

Appellants and for Defendants and Respondents. 

_________________________
2

 In a whistleblower retaliation lawsuit brought under Labor Code section 1102.5, 

subdivision (b) (hereafter section 1102.5(b)),1

 the plaintiff must establish a prima facie 

case of retaliation. The plaintiff must show he engaged in protected activity, his 

employer subjected him to an adverse employment action, and there is a causal link 

between the two. If the plaintiff meets his prima facie burden, the defendant has the 

burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail, the 

plaintiff has to show that the explanation is a pretext for the retaliation. (Patten v. Grant 

Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) 

 In Hager v. County of Los Angeles ((Apr. 22, 2010, B208941) [nonpub. opn.]) 

(Hager I), we held that plaintiff Darren Hager could pursue his whistleblower retaliation 

lawsuit against his employers, defendants the County of Los Angeles and the 

Los Angeles County Sheriff’s Department (collectively, County). The County appeals 

from a judgment entered after a substantial jury verdict in Hager’s favor. Hager appeals 

from the postjudgment order denying his request for attorney fees. 

 The County’s principal contentions on appeal address two errors with respect to 

the parties’ burdens of proof. The County contends Hager did not prove that he engaged 

in a protected activity to establish a prima facie case of whistleblower retaliation 

(§ 1102.5(b)) because he did not “disclose information,” as that term has been defined in 

Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 858-859 

(Mize-Kurzman). The County also contends the trial court erred in relying on the Public 

 

1 At the time of the trial, former section 1102.5(b) provided: “An employer may not 

retaliate against an employee for disclosing information to a government or law 

enforcement agency, where the employee has reasonable cause to believe that the 

information discloses a violation of state or federal statute, or a violation or 

noncompliance with a state or federal rule or regulation.” Amendments to this 

subdivision that became effective on January 1, 2014 (Stats. 2013, ch. 781, § 4.1) are not 

pertinent to our analysis. Subdivision (e) of section 1102.5 provided: “A report made by 

an employee of a government agency to his or her employer is a disclosure of 

information to a government or law enforcement agency pursuant to subdivisions (a) and 

(b).” All further citations to section 1102.5 are to the former version of the statute. 

 All further undesignated statutory references are to the Labor Code. 
3

Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.) to 

exclude the County’s evidence of past conduct not included as a basis to terminate Hager 

during the administrative proceedings but presented in this civil action as additional 

reasons to support its decision to terminate Hager. The County also challenges the 

sufficiency of the evidence to support the damages award, raises evidentiary errors, and 

asserts juror misconduct. 

 We initially affirmed in part and reversed in part, concluding the trial court did not 

err in excluding evidence of past conduct and there was no substantial evidence to 

support the economic damages awarded to Hager. The County and Hager petitioned for 

rehearing. The County argued in its petition that we affirmed the exclusion of evidence 

of its undisclosed reasons to terminate Hager by improperly relying on Evidence Code 

section 352 without any support in the record that the trial court engaged in balancing the 

probative value of this evidence against the prejudicial impact. Hager argued in his 

petition that we omitted key facts that his termination constituted a “blot on his resume” 

and significantly impaired his future earning capacity, which is sufficient evidence to 

support the jury’s award of economic damages. We granted the petitions for rehearing to 

address these issues. 

 We conclude the trial court did not abuse its discretion in excluding evidence of 

undisclosed reasons for terminating Hager. The record contains affirmative indications 

the trial court considered and understood that the introduction of undisclosed reasons for 

the decision to terminate Hager was not relevant and was prejudicial. We further 

conclude there is no substantial evidence to support the jury’s award of economic 

damages. Accordingly, we reverse that portion of the judgment, but in all other respects 

we affirm. We also affirm the order denying Hager’s motion for attorney fees. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Hager worked for the Los Angeles County Sheriff’s Department (LASD) as a 

deputy sheriff from 1988 to 2003. In 2000, Hager was appointed as the LASD liaison to 

a federal Drug Enforcement Agency (DEA) task force (DEA task force) investigating a 

large methamphetamine organization in the Antelope Valley. The DEA task force was 
4

formed after Hager brought information to his command staff that a felony suspect was 

willing to provide the names of several methamphetamine dealers in the Antelope Valley 

in exchange for leniency. By all accounts, the DEA task force was a success. 

 The informant also gave Hager information that linked the disappearance of a 

deputy sheriff with the methamphetamine organization in the Antelope Valley. While 

working on the DEA task force, Hager obtained information that led him to believe the 

missing deputy sheriff had been murdered. Hager accused another deputy of being 

involved in the murder, the cover up, and the illicit methamphetamine trade in the 

Antelope Valley. It is the disclosure of deputy misconduct that is central to Hager’s 

whistleblower retaliation lawsuit. 

1. Alleged Disclosure of Deputy Misconduct 

 In June 1998, then off-duty deputy sheriff Jonathan Aujay, an ultra-marathon 

runner, disappeared while on a long-distance run at the Devil’s Punchbowl County Park 

in Antelope Valley. The initial missing person’s investigation concluded that Aujay 

disappeared or committed suicide. 

 In December 1999, homicide detective Larry Joseph Brandenburg learned from 

another deputy sheriff that Aujay may have been murdered and that deputy sheriff 

Richard Engels may have been involved. Brandenburg’s captain, Frank Merriman, gave 

Brandenburg permission to reopen the cold case and investigate Aujay’s disappearance. 

 On March 2, 2000, Brandenburg contacted Hager and asked Hager to speak to his 

informant about “dirty deputies.” The informant told Hager that Engels was involved in 

narcotics and possibly in the disappearance of Aujay. Hager informed Brandenburg. 

a. March 23, 2000 Disclosure of Deputy Misconduct 

 In a March 23, 2000 meeting, then assistant sheriff Larry Waldie was briefed on 

the information Hager had obtained regarding (1) the methamphetamine organization in 

the Antelope Valley, and (2) Engels’s possible involvement in narcotics and Aujay’s 

disappearance. Based on this information, Waldie approved LASD’s participation in the 

DEA task force. The DEA task force’s primary mission was to disrupt narcotics 

trafficking in the Antelope Valley. Hager, as a DEA task force officer, was ordered to 
5

conduct only the narcotics investigation. Waldie specifically ordered Hager and the DEA 

task force not to investigate deputy sheriff wrongdoing or Aujay’s disappearance. Any 

information the DEA task force learned concerning deputy sheriff wrongdoing was to be 

documented and passed on to either the Internal Criminal Investigations Bureau (ICIB) or 

the Internal Affairs Bureau (IAB), and any information concerning Aujay was to be 

passed on to the homicide bureau and Brandenburg. 

b. Hager’s Daily Reports to Shreves 

 While a member of the DEA task force, Hager reported to lieutenant Ronald 

Shreves on a daily basis. The DEA task force followed federal drug enforcement 

protocol and obtained information from cooperating sources, and as the investigation 

continued, obtained information through corroborating sources. The DEA task force also 

filed warrants and federal wiretap applications. The DEA task force made hundreds of 

arrests. 

 During the course of the DEA task force investigation, Hager asked informants 

about the missing deputy and received information that Aujay was killed because he 

discovered a methamphetamine lab while out on a long-distance run. Informants told 

Hager that Engels was at the methamphetamine lab when Aujay was killed. Hager’s 

informants also linked Engels with Tom Hinkle, one of the targets of the DEA task force 

and a known methamphetamine dealer. 

c. Hager’s Summary (September 2000) 

 In September 2000, Shreves requested a meeting with command staff to update 

them regarding the DEA task force and to inform them of potential deputy misconduct. 

Hager prepared a summary that disclosed information the DEA task force had received 

regarding Aujay’s disappearance. The “main” thrust of the meeting was the “potential 

that Aujay was murdered and a deputy sheriff might be involved.” 

d. Hager’s Summary (May 9, 2001) 

 After the DEA task force arrested Hinkle, one of the targeted methamphetamine 

dealers in the Antelope Valley, Shreves asked Hager to prepare a summary of the 

information the DEA task force had received regarding Engels. The summary revealed 
6

information linking Engels to Hinkle and to Aujay’s disappearance. Shreves passed this 

information through the chain of command. 

2. Independent Investigation Discredits Hager’s Disclosure of Deputy Misconduct 

 As ordered, Hager also was disclosing information to Brandenburg as 

Brandenburg pursued the homicide investigation. During the course of his investigation, 

Brandenburg obtained information that Aujay had discovered a methamphetamine lab 

adjacent to Devil’s Punchbowl County Park while on a long-distance run. Brandenburg 

was convinced that Engels was involved in an ongoing criminal drug conspiracy, and that 

Engels and some other unidentified individuals had murdered Aujay to prevent him from 

arresting them or exposing their criminal enterprise. Brandenburg prepared an affidavit 

for a search warrant to serve on Engels, but his captain would not let him take it to a 

judge. Brandenburg’s partner testified that their captain did not think the information 

they had obtained was credible. Brandenburg’s partner agreed with the captain. 

 Brandenburg went over his captain’s head to present his investigation results to the 

command staff. Brandenburg was taken off the investigation. 

a. Shreves’s Memo 

 In February 2001, Shreves sent a memorandum to his command in which he 

addressed Brandenburg’s homicide investigation. Shreves formed the opinion that the 

homicide bureau and the command staff were failing to “credibly investigate the 

disappearance and possible murder of . . . Aujay.” Shreves also felt that the members of 

the DEA task force were “being cruelly and unnecessarily besmirched to a wide audience 

of department personnel.” 

b. Holmes’s Investigation 

 In March 2001, after Shreves submitted his memo, sergeant Joe Holmes was 

assigned to investigate the information Brandenburg and Hager reported concerning 

Aujay’s disappearance. Holmes interviewed Hager’s initial informant who admitted 

during the tape-recorded session with Holmes that he had lied to Hager. Holmes testified 

he interviewed 60 people and there was not one piece of credible evidence linking Engels 

to drug trafficking in the Antelope Valley or to the murder, death, or disappearance of 
7

Aujay. Many of the individuals previously interviewed by Hager denied making the 

statements attributed to them. Holmes also discovered that many of the reported 

statements were not credible. Holmes described the accusations against Engels as a 

“misinterpretation of information” on a “large scale.” 

 Holmes did not believe that Engels was a suspect in Aujay’s disappearance. He 

thought Hager was actively investigating Aujay’s disappearance in violation of direct 

orders. Holmes also dismissed Brandenburg’s conclusions that Aujay had been murdered 

and stated that the most likely scenario was Aujay had committed suicide. 

 At the conclusion of his investigation, Holmes met with command. Both Hager 

and Shreves were present. Shreves was critical of Holmes’s conclusions and believed 

Holmes had not conducted a comprehensive investigation. 

 Shreves was ordered to write a memorandum identifying the deficiencies in 

Holmes’s investigation. Shreves prepared a 56-page memorandum. Shreves explained in 

the memorandum that the DEA task force had received information that a deputy sheriff 

may have been involved with the methamphetamine organization, and Aujay may have 

been murdered by that organization. He noted the DEA task force had been “admonished 

not to conduct follow-up [regarding] alleged personnel wrongdoing or the alleged 

murder.” Shreves felt the DEA task force was being “criticized for bringing forth 

uncorroborated information,” but was ordered not to corroborate the information. As 

Shreves noted, “[t]o do no follow-up and also corroborate information is an impossible 

task.” 

 In preparing the 56-page memorandum, Shreves relied on a synopsis Hager 

prepared. The synopsis contained representations regarding the content of federal 

wiretapped conversations. 

3. Hager’s Termination 

 Hager became the subject of an IAB investigation. Engels and four other deputy 

sheriffs filed a complaint against Hager. Shreves’s 56-page memorandum focused the 

investigation on whether Hager had violated a direct order not to investigate Aujay’s 

disappearance. 
8

 At the conclusion of the year-long IAB investigation, Hager was charged with 

conducting a personnel investigation and making false statements to his supervisors. The 

internal affairs investigator believed that Hager had misrepresented wiretapped 

conversations to support his theory that (1) Engels was involved in the methamphetamine 

organization in the Antelope Valley, and (2) Engels was one of the individuals involved 

in Aujay’s murder, death, or disappearance. 

 Chief Neal Tyler reviewed the IAB investigation and concluded the appropriate 

discipline was termination. Tyler had been given a range of discipline options, which 

indicated the recommended discipline was suspension for 10 to 15 days. Tyler 

considered suspension, but he testified that suspension was not appropriate “for the series 

of offenses that [he] saw in this investigation over the two-year period.” 

 In December 2002, Hager received a letter of intent to discharge. The letter 

indicated the IAB investigation had established Hager “conducted a personnel 

investigation regarding Deputy Richard Engels and recklessly accused Deputy Engels of 

associating with drug dealers and having knowledge/involvement in the alleged murder 

of Deputy Jonathan Aujay.” The letter also stated the IAB investigation established 

Hager made false statements to Shreves “concerning information gleaned from Federal 

wire taps and/or various informants, which was used to support [his] theory that Deputy 

Richard Engels was involved in criminal acts with known drug dealers and may have 

been involved in the alleged murder of Deputy Aujay.” LASD held two Skelly2

 hearings 

addressing these charges in January and July 2003, at which Hager was represented by 

counsel. On July 28, 2003, Hager learned he had been terminated. 

 In April 2003, before his second Skelly hearing, Hager filled out an application for 

disability retirement. Hager suffered neck and back injuries in March 2002 while on 

duty. His disability retirement was granted on September 3, 2003. 

 

2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194. 
9

4. Hager’s Evidence of Retaliation 

 Hager attacked the results of the IAB investigation, presenting evidence that he 

did not conduct an investigation into Engels’s wrongdoing or Aujay’s disappearance. 

Hager also discredited Holmes’s investigation, and the IAB investigation because there 

was no mention of Hager’s work on the DEA task force, and the investigators failed to 

interview other members of the DEA task force. Specifically, Hager noted that the 

foundation of both the Holmes investigation and the IAB investigation was that Hager’s 

sources were not credible, but the investigators completely ignored that these same 

informants had given reliable and corroborated information to the DEA task force that led 

to numerous arrests. Hager also pointed out the inconsistency of being charged with 

conducting an unauthorized investigation and being criticized for conducting an 

incompetent investigation. 

 With respect to the charge that Hager had falsely reported wiretapped 

conversations, Hager testified that the information he relayed to Shreves were summaries 

prepared by others, and not verbatim transcriptions. Hager had been ordered to pass this 

information along so other deputy sheriffs could investigate deputy misconduct. When 

questioned about the false statements in the summaries, Hager took exception to the 

internal affairs investigator’s conclusions that the information Hager relayed to Shreves 

was false or failed to include exculpatory statements. The jury also heard testimony that 

wiretapped conversations must be interpreted in context because the drug culture has its 

own language and code. 

5. Jury Verdict, Motion for New Trial, Appeal 

 The jury returned a special verdict in Hager’s favor, awarding $4,506,015 in 

damages. The award included $2,006,015 in lost earnings ($806,041 in backpay and 

$1,199,974 in future lost income), and $2,500,000 in non-economic damages. 

 The trial court denied the County’s motion for new trial. Thereafter, the trial court 

denied Hager’s request for attorney fees. 

 The County timely appeals from the judgment. Hager filed an appeal from the 

order denying attorney fees. We consolidated the appeals. 
10

6. Petitions for Rehearing 

 After our original opinion issued, the County filed a petition for rehearing in 

which it again argued that the trial court erred in excluding evidence of Hager’s past 

conduct (motions in limine), and erred in excluding Tyler’s testimony of his undisclosed 

reasons for terminating Hager. The County contended our conclusion that this evidence 

was properly excluded under Evidence Code section 352 was legal error. 

 Hager filed a petition for rehearing in which he contended we omitted key facts 

that would have supported the jury’s award of economic damages. 

 We granted the petitions to clarify our opinion on these two issues. Additional 

facts will be presented with the relevant issue in the discussion section. 

DISCUSSION 

County’s Appeal 

1. Section 1102.5(b) 

 Relying on Mize-Kurzman, supra, 202 Cal.App.4th 832, the County contends that 

Hager did not “disclose information” under section 1102.5(b) because the LASD already 

knew that Engels might have been involved in drug trafficking and in Aujay’s 

disappearance before Hager disclosed this information. The County cites to evidence that 

Brandenburg or other unidentified deputy sheriffs, and not Hager, were the first to 

disclose Engels’s alleged unlawful conduct. 

 As a preliminary matter, we are concerned here with whether Hager disclosed 

information in March 2000.3

 After that date, the reports to Shreves and up the chain of 

command cannot be considered “blowing the whistle,” as Hager was ordered as part of an 

 

3 In Hager’s brief, he alternatively argues that he made a disclosure to the DEA that 

is protected under section 1102.5(b). This assertion is not supported by citation to the 

record, nor does the record reflect any factual or legal theory that there is a causal 

connection between Hager’s report to the DEA and retaliation by the LASD. We also 

reject Hager’s arguments that the County has forfeited the issue, or is estopped from 

raising the issue because in Hager I the County admitted that Hager made a protected 

disclosure. An admission in a summary judgment motion or separate statement is not 

binding on the parties in subsequent proceedings. (Myers v. Trendwest Resorts, Inc.

(2009) 178 Cal.App.4th 735, 746-747.) 
11

internal personnel matter to report any further information he obtained during the course 

of the DEA task force investigation. 

 Section 1102.5(b) protects an employee from retaliation by his employer for 

making a good faith disclosure of a violation of federal or state law. (§ 1102.5(b); Patten 

v. Grant Joint Union High School Dist., supra, 134 Cal.App.4th at p. 1384.) A report 

made by an employee of a government agency to his employer is a disclosure of 

information to a government or law enforcement agency pursuant to section 1102.5(b). 

(§ 1102.5, subd. (e); Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1308, 

1312-1313.) “This provision reflects the broad public policy interest in encouraging 

workplace whistle-blowers to report unlawful acts without fearing retaliation.” (Green v. 

Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) 

a. Mize-Kurzman 

 In Mize-Kurzman, supra, 202 Cal.App.4th 832, the court considered whether a 

jury had been adequately instructed on federal law limits applicable to state 

whistleblower protection. (Id. at pp. 844-845.) A special instruction to the jury stated, 

“[r]eporting publicly known facts is not a disclosure of information” within the meaning 

of section 1102.5. (Mize-Kurzman, at p. 845.) Consistent with federal law, the MizeKurzman court held reporting information that already was known to the employer did 

not constitute a protected disclosure. (Id. at p. 858.) Citing the Legislature’s choice of 

the word “disclosing,” and “discloses,” in section 1102.5(b), the court reasoned the plain 

meaning and dictionary definition of “disclosure,” is to “ ‘reveal something that was 

hidden and not known.’ ” (Mize-Kurzman, at p. 858.) The Mize-Kurzman court 

supported this interpretation of “disclosure” by relying on federal and state cases 

addressing protected disclosures. (Id. at p. 859.) 

 The County reads Mize-Kurzman, supra, 202 Cal.App.4th 832 as limiting the 

protections of section 1102.5(b) to the first employee who discloses a violation of state or 

federal law that had not been previously disclosed by another employee. No such “first 

report” limitation was discussed in Mize-Kurzman, appears in section 1102.5(b), or is 

addressed in the federal and state cases cited and relied on by the Mize-Kurzman court. 
12

 b. Mize-Kurzman Does Not Adopt a “First Report” Rule

 In Mize-Kurzman, supra, 202 Cal.App.4th 832, the plaintiff made four disclosures 

of unlawful conduct to the alleged wrongdoers. (Id. at pp. 840-842.) With respect to one 

of the disclosures of unlawful activity, Mize-Kurzman’s supervisor testified at trial that 

she already was aware that programs receiving state funds could not discriminate against 

students, and with respect to two of the other disclosures, it was disputed at trial whether 

the community college policies Mize-Kurzman viewed as unlawful actually violated the 

law. (Ibid.) It was in this factual context that the court considered whether MizeKurzman made a protected disclosure under section 1102.5(b). The court never 

considered whether a second employee who disclosed the same unlawful activity that 

Mize-Kurzman disclosed would or would not have been protected under section 

1102.5(b). 

 c. Section 1102.5(b) Does Not Support a “First Report” Rule

 The plain language of section 1102.5(b) also does not limit whistleblower 

protection only to an employee who discloses unlawful conduct that had not been 

previously disclosed by another employee. The verb “disclose” is not defined in the 

statute, and the Mize-Kurzman court gave the statutory term its plain and common sense 

meaning. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) 

But, words and phrases are construed according to context and approved usage of 

language. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844.) 

While we accept the dictionary definition of “disclosure” as used by the court in MizeKurzman, supra, 202 Cal.App.4th 832, the court did not construe the statutory language 

in the context of the statute as a whole. 

 Subdivision (e) of section 1102.5, provides that a “report,” by an employee of a 

government agency to his or her employer is a disclosure of information under section 

1102.5(b). A report does not necessarily reveal something hidden or unknown. To the 

extent Mize-Kurzman has highlighted an inconsistency in the statute, that is, a public 

employee must merely “report” unlawful conduct, and other employees must “disclose,” 

unlawful conduct, it is up to the Legislature to resolve this issue, not this court. 
13

 We also view the “first report” rule the County proposes as contrary to the 

legislative intent in enacting section 1102.5(b). Protection only to the first employee to 

disclose unlawful acts would defeat the legislative purpose of protecting workplace 

whistleblowers, as employees would not come forward to report unlawful conduct for 

fear that someone else already had done so. The “first report” rule would discourage 

whistleblowing. Thus, the County’s interpretation is a disincentive to report unlawful 

conduct. We see no such reason to interpret the statute in a manner that would contradict 

the purpose of the statute. 

 d. Cases Cited in Mize-Kurzman Do Not Support a “First Report” 

 Rule 

 The federal cases cited in Mize-Kurzman, supra, 202 Cal.App.4th 832, do not 

articulate a “first report” rule. Mize-Kurzman cites to federal law for the proposition that 

the report of information “that was already known did not constitute a protected 

disclosure.” (Id. at p. 858.) One of those federal cases is Huffman v. Office of Personnel 

Management (Fed.Cir. 2001) 263 F.3d 1341 (Huffman),4

 which addressed, among other 

things, the question of whether complaints to a supervisor about the supervisor’s conduct 

constitute a protected disclosure under the federal Whistleblower Protection Act of 1989 

(codified in scattered sections of 5 U.S.C.) (hereafter, the federal Act). (Huffman, supra, 

at pp. 1344, 1347.) Huffman did not articulate a “first report” rule as between two 

employees reporting unlawful conduct. 

 The Huffman court followed its precedent that disclosures to the wrongdoer are 

not protected because the wrongdoer already knew of the misconduct. (Huffman, supra, 

263 F.3d at pp. 1349-1350.) The court also supported its decision by relying on the 

dictionary definition of “disclosure.” (Ibid.) The court found “significant” that 

“Congress in the [federal] WPA did not use a word with a broader connotation such as 

‘report’ or ‘state.’ ” (Id. at p. 1350.) As the Huffman court noted, the purpose of the 

 

4 Huffman, supra, 263 F.3d 1341, was superseded by the Whistleblower Protection 

Enhancement Act of 2012 (WPEA) (Pub.L. No. 112-199 (Nov. 27, 2012) § 101(b)(2)(C), 

126 Stat. 1465, 1465-1466). 
14

federal Act is to encourage disclosures to those that are likely to remedy the wrong, and 

“[t]he wrongdoer is not such a person.” (Ibid.) 

 On this point, Huffman is not consistent with California courts applying section 

1102.5(b) when public employees report unlawful conduct. (See, e.g., Jaramillo v. 

County of Orange (2011) 200 Cal.App.4th 811, 825-827.) In Jaramillo, the court held 

that a report of wrongdoing by a public employee to the very person who is engaged in 

the wrongdoing is covered by the statute. (Id. at pp. 825-826; see also Gardenhire v. 

Housing Authority (2000) 85 Cal.App.4th 236, 240, 242-243 [housing authority 

employee who reported to authority commissioners illegal conduct of employee and 

contractor is covered by the statute].) 

 Although the Mize-Kurzman court cites our decision in Colores v. Board of 

Trustees, supra, 105 Cal.App.4th 1293, as in line with Huffman, in that case we did not 

address the issue of whether a report to a wrongdoer is a protected disclosure, or what 

constitutes a protected disclosure. Rather, we concluded that a public employee is 

entitled to the protection of section 1102.5(b) if she reported wrongdoing to her agency 

and had no need to inform some other governmental agency in order to qualify as a 

whistleblower. (Colores v. Board of Trustees, at pp. 1312-1313.) 

 Likewise, Patten v. Grant Joint Union High School Dist., supra, 134 Cal.App.4th 

1378, also cited by the Mize-Kurzman court, does not discuss what constitutes a protected 

disclosure, but relies on Colores v. Board of Trustees for the proposition that a state 

employee discloses information protected under section 1102.5(b) when she reports the 

activity to the supervisor in her own agency. (Patten v. Grant Joint Union High School 

Dist., at pp. 1385-1386.) Cases are “not authority for propositions neither considered nor 

discussed in the opinion.” (In re Muszalski (1975) 52 Cal.App.3d 500, 504.) 

Mize-Kurzman, supra, 202 Cal.App.4th 832, also cited two federal cases that held 

reporting publicly known information was not a protected disclosure under the federal 

Act. (Id. at p. 8585.) These cases involve an administrative judge’s disclosure in an 

opinion that a federal agency had incorrectly interpreted federal laws reflected in prior 

decisions of administrative judges (Meuwissen v. Department of Interior (Fed.Cir. 2000) 
15

234 F.3d 9, 12-13),5

 and a disclosure that a federal agency failed to reopen a claim for 

retirement benefits after it was revealed to the agency that it had incorrectly interpreted 

civil service laws (Francisco v. Office of Personnel Management (Fed.Cir. 2002) 

295 F.3d 1310, 1313-1314). In these cases, the agency’s alleged misconduct was 

publicly known in the erroneous decision of the administrative judge, and in the agency’s 

decisions erroneously denying benefits. 

 The report of “publicly known” information or “already known” information is 

distinct from a rule in which only the first employee to report or disclose unlawful 

conduct is entitled to protection from whistleblower retaliation. Section 1102.5(b) should 

be given a broad construction commensurate with its broad purpose. (Green v. Ralee 

Engineering Co., supra, 19 Cal.4th at p. 77.) 

 After the issues were fully briefed, Hager brought to the court’s attention that 

Congress has amended the federal Act to clarify that a disclosure is protected even if the 

information has been previously disclosed. (See ante, fn. 4.) Although instructive, we 

reach our conclusion based on the plain language of section 1102.5(b). 

 We also reject the County’s interpretation that the statutory protections of section 

1102.5(b) do not apply when the disclosure of information addresses the wrongdoing of a 

fellow employee. In support of its argument, the County relies on an uncodified 

preamble to the 2003 amendments to section 1102.5. (Stats. 2003, ch. 484, § 1; McVeigh 

v. Recology San Francisco (2013) 213 Cal.App.4th 443, 469-470.) The County 

highlights in the preamble that the protection of section 1102.5 applies only to those 

employees reporting “corporate wrongdoing.” We agree with the conclusion reached in 

McVeigh v. Recology San Francisco, that section 1102.5(b) protects disclosure of 

unlawful activity by third parties such as contractors and employees, and thus by its terms 

 

5 Meuwissen v. Department of Interior, supra, 234 F.3d at pages 12 through 13 was 

legislatively overruled by the WPEA to the extent that the court found the appellant did 

not make a “disclosure” because the administrative ruling with which he disagreed was 

already publicly known. (See ante, fn. 4.) 
16

cannot be interpreted to be limited to unlawful conduct on the part of an employer or 

other high-ranking official. (McVeigh v. Recology San Francisco, at pp. 469-472.) 

2. The Trial Court Did Not Err in Excluding the County’s Undisclosed Reasons to 

Justify Hager’s Termination 

 The County contends the trial court committed prejudicial error when it granted 

Hager’s motions in limine to exclude certain incidents in Hager’s employment history 

unrelated to the charged policy violations, and further erred when it barred Tyler from 

testifying as to the undisclosed reasons for his decision to terminate Hager. As shall be 

discussed, we conclude the trial court’s rulings were a proper exercise of discretion, and 

therefore there was no miscarriage of justice. (Evid. Code, § 354.) 

a. Background Facts 

 (1). Motions in Limine

The County notified Hager that he was terminated for two policy violations, 

namely, conducting an unauthorized personnel investigation and falsely reporting federal 

wiretapped conversations. Before trial, Hager filed motions in limine to exclude 

evidence unrelated to the charged policy violations, including evidence of: (1) “off-duty 

actions which resulted in IAB, ICIB, or District Attorney inquiries, or civilian 

complaints, which were not resolved or a basis for termination” (motion in limine no. 2); 

(2) Hager’s “relationship with [his former girlfriend] Liza Mattos” and “any civil 

complaints or investigations which Liza Mattos initiated against plaintiff” (motion in 

limine no. 4); (3) “evidence of on-duty use of force incidents which [LASD] found to be 

within policy” (motion in limine no. 5); and (4) the “Mandalay Bay Hotel incident” 

(motion in limine no. 6). (Capitalization omitted.) Hager moved to exclude this evidence 

on several grounds, including it was inadmissible under provisions of POBRA (Gov. 

Code, § 3304, subd. (d)), or under the Evidence Code as instances of prior specific 

conduct (Evid. Code, § 1101, subd. (a)), impermissible character evidence (Evid. Code, 

§§ 786, 787), or inadmissible hearsay (Evid. Code, § 1200). Hager also argued the 

evidence should be excluded as not relevant (Evid. Code, § 210), and under Evidence 
17

Code section 352 as the evidence was unduly prejudicial, collateral, too remote, and 

required or constituted an undue consumption of time. 

During oral argument on motion in limine no. 2, Hager’s counsel argued that the 

off-duty incidents were “collateral” as Hager “was allegedly terminated for conducting a 

personnel investigation regarding Deputy Richard Engels and then, secondarily, allegedly 

making a false statement to his supervisor concerning the information gleaned from 

wiretaps and informants.” Hager’s counsel acknowledged that Tyler testified at his 

deposition6

 he considered undisclosed reasons for his decision, but under POBRA the 

Department not only had to “do an investigation, but charge and notify [Hager] of intent 

to impose discipline within one year.” In response, the County argued POBRA did not 

apply in a civil action in which it had the burden of establishing a non-retaliatory reason 

for its decision to terminate Hager. The trial court granted the motion without indicating 

on the record the specific grounds for exclusion. The trial court also granted the 

remaining motions, referring to its ruling on motion in limine no. 2. The trial court, 

however, stated it would reconsider the issue during trial. 

 (2). Evidence Code Section 402 Hearing (402 Hearing)

While Tyler was testifying, the County requested a 402 hearing outside the 

presence of the jury. Tyler testified that it was LASD policy to consider an employee’s 

past performance, disciplinary history, and instances of on- and off-duty conduct when 

determining the appropriate discipline. Tyler took into consideration “the past 

disciplinary history for the three cases that had been founded” and that Hager had been 

 

6 In opposition, the County cited to Tyler’s deposition testimony in which he 

testified: “I believe I informed him that the offenses that I discovered by reading the 

investigative file on this case seemed to have factors in common with previous concerns 

about [Hager’s] performance . . . . [¶] And the factors I was concerned about having to 

do with judgment and care and caution in doing an important, high-stakes job seemed to 

reoccur in this case, whereas they appeared in previous circumstances in [Hager’s] career 

involving law enforcement decision-making or off-duty conduct. [¶] And because of the 

connection between the previous situations I was concerned about and the problems in 

this case, I felt that I had to consider the past performance as well as the current case.” 
18

placed on performance mentoring status “in a running fashion between about 1996 and 

2001,” based upon on- and off-duty behavior. 

Tyler did not specifically identify the three cases. In 1996, Hager accepted a 

written reprimand for an incident in which he threatened his former girlfriend. In 2001, 

his former girlfriend complained that Hager physically assaulted her on or about July 4, 

1996. An investigation into the incident concluded the charge founded, and in October 

2002, two months before Hager received the letter of intent to discharge, a five-day 

suspension was recommended. Tyler signed the disposition sheet recommending the 

discipline. In November 2002, an internal affairs investigation into an incident at the 

Mandalay Bay Hotel (motion in limine no. 6), concluded the charge founded and a fiveday suspension was recommended. Tyler signed the disposition sheet recommending the 

discipline. Hager did not receive notice of intent to discipline him for either of these 

2002 incidents. 

On cross-examination, Tyler conceded Hager had no notice that these undisclosed 

reasons were a basis for his termination. Given the lack of notice, Hager’s counsel posed 

the following question: “And there’s no ability of the deputy to respond to these hidden 

factors that were not disclosed; correct?” Tyler responded, “Well, the opportunity to 

respond would have occurred in a Skelly hearing.” Hager, however, was not formally 

advised of Tyler’s undisclosed reasons for his decision to terminate him in order to 

respond at the Skelly hearing. (See fn. 6, ante.) 

The trial court ruled that the “defense is precluded from going into this area.” 

 (3). Motion for New Trial

Following the jury’s verdict, the County moved for a new trial on several grounds, 

including that the trial court’s evidentiary rulings on the motions in limine and following 

Tyler’s testimony at the 402 hearing denied the jury the opportunity to consider evidence 

of past conduct that Tyler relied on when he decided to terminate Hager. The trial court 

denied the motion. 

In its motion, the County argued that POBRA did not apply in a civil action and it 

was entitled to present evidence of a legitimate, non-retaliatory reason for its decision to 
19

terminate Hager even though Hager had not been notified that his termination was based 

on additional conduct not disclosed during the administrative proceedings. Citing Mays 

v. City of Los Angeles (2008) 43 Cal.4th 313, 321-322, the court reasoned that under 

POBRA (Gov. Code, § 3304, subd. (d)), the officer must be notified of the conduct for 

which discipline may be imposed if he or she wishes “ ‘to defend against possible 

discipline.’ ” Thus, the trial court concluded the undisclosed, past conduct “was not 

relevant to the trial of this action,” and no procedural irregularity occurred at trial 

affecting the County’s rights with respect to these rulings. 

b. Exclusion of Undisclosed Reasons for Hager’s Termination 

We review the trial court’s decision to exclude evidence for abuse of discretion 

and will reverse only if there is a clear showing of abuse of discretion. (Ceja v. 

Department of Transportation (2011) 201 Cal.App.4th 1475, 1480-1481; Tudor Ranches, 

Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) “If evidence is 

excluded on an improper objection but the evidence excluded is subject to objection on a 

different ground, it does not matter that the reason advanced by counsel or relied upon by 

the court was wrong. [Citations.] If the exclusion is proper upon any theory of law 

applicable to the instant case, the exclusion must be sustained regardless of the particular 

considerations which may have motivated the trial court to its decision.” (Philip Chang 

& Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173; 9 Witkin, 

Cal. Procedure (5th ed. 2008) Appeal, § 347, pp. 398-399.) 

Even where evidence has been erroneously excluded, the judgment or decision 

shall not be reversed unless the reviewing court concludes the exclusion resulted in a 

miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) 

Here, the trial court did not abuse its discretion. The evidence of Tyler’s 

undisclosed reasons to terminate Hager, along with other past conduct (motions in 

limine), was not erroneously excluded. 

 (1). Properly Excluded as Not Relevant

Although the County argues that the trial court excluded this evidence by 

importing POBRA rights into a civil action, this characterization does not accurately 
20

reflect the trial court’s discretionary rulings. As a public safety officer, Hager had due 

process rights (Skelly v. State Personnel Bd., supra, 15 Cal.3d at pp. 207-208) and rights 

under POBRA (Gov. Code, § 3301), which included “notice that the public agency, 

having completed its investigation into the alleged misconduct within the statutory 

period, has decided that it may take disciplinary action against the officer for specified 

misconduct.” (Mays v. City of Los Angeles, supra, 43 Cal.4th at p. 325; Townsel v. San 

Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 949.) The 

County’s reasons for its decision to terminate Hager based upon specific misconduct had 

been presented to Hager in accordance with these rights before his Skelly hearing, which 

gave him the “right to review the material on which the discipline was based.” The 

undisclosed reasons were vaguely communicated to Hager’s counsel before the Skelly

hearing, but were not provided to him in violation of these rights. 

Given this employment context, in which the County’s discipline decisions affect 

vested rights and must satisfy certain notice requirements, the trial court exercised its 

discretion to exclude evidence of undisclosed reasons for Tyler’s decision to terminate 

Hager on relevancy grounds, and not based upon a POBRA violation.7

 Even Tyler 

testified during the 402 hearing that much of the evidence sought to be excluded in the 

motions in limine did not factor into his decision to terminate Hager. 

The County draws a distinction between Hager’s employment rights and its right 

to defend this civil action arising from Hager’s termination. The County argues that even 

if it were later determined that its stated reasons for terminating Hager were untrue, it 

would not be liable under section 1102.5(b) because the whistleblower statute does not 

prohibit lying, it prohibits retaliation for engaging in a protected activity. This legal 

principle addresses an employer’s honest belief in the stated reasons for terminating the 

 

7 In its petition for rehearing, the County cites to the trial court’s ruling on the 

motion for new trial, stating that the trial court specifically held that evidence of other 

acts of misconduct was properly excluded under POBRA. The County omits the final 

sentence of the trial court’s reasoning in which it concludes that the “past conduct in 

question, therefore, was not relevant to the trial of this action.” 
21

employee, not the situation in which the employer states reasons for its decision to 

terminate based upon specific misconduct, and then adds additional reasons to justify the 

termination. (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 151, 170-171.) 

We reject the County’s contention that the trial court abused its discretion because 

the evidence of its legitimate and non-retaliatory reasons, whether disclosed or 

undisclosed, cannot be excluded as it is a main issue in the case. The trial court’s 

evidentiary ruling did not preclude the County from offering into evidence nonretaliatory reasons for terminating Hager based upon the charged policy violations, only 

evidence of undisclosed reasons that, on balance, had no probative value. 

Moreover, none of the cited cases the County relies on to challenge the trial 

court’s evidentiary rulings presents the unique circumstances of this case or holds the 

trial court lacks discretion to make evidentiary rulings in a given case to exclude evidence 

that is not relevant. Many of the cited cases reversing evidentiary rulings address the 

admission of “pattern and practice” evidence, sometimes referred to as “me-too” 

evidence, which was offered to show pretext. (See Johnson v. United Cerebral 

Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 759-767 [evidence 

admissible to show employer’s intent]; Pantoja v. Anton (2011) 198 Cal.App.4th 87, 109-

116 [evidence admissible to show defendant’s intent]; Bihun v. AT&T Information 

Systems, Inc. (1993) 13 Cal.App.4th 976, 988-989, disapproved on other grounds by 

Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [evidence relevant as 

“operative facts” of employer’s knowledge of a supervisor’s reputation and complaints 

from other female employees].) In contrast, evidence of an employee’s conduct unrelated 

to his termination, is properly excluded under section 352 of the Evidence Code. (See 

McLain v. Great American Ins. Companies (1989) 208 Cal.App.3d 1476, 1487.) 

 (2). Properly Excluded under Evidence Code Section 352

The undisclosed reasons for Hager’s termination also were properly excluded 

under Evidence Code section 352. The trial court has discretion to exclude evidence “if 

its probative value is substantially outweighed by the probability that its admission will 

(a) necessitate undue consumption of time or (b) create substantial danger of undue 
22

prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The 

prejudicial effect of this evidence was significant. There was a risk the undisclosed 

reasons that Tyler considered, such as Hager lacked judgment, which justified 

performance mentoring status in 1996, and that Hager was embroiled in a tumultuous 

relationship with his former girlfriend, would have been used as improper character 

evidence. If admitted into evidence, there was a potential for the jury to use this 

information to punish Hager because he is a bad person, and not to logically evaluate the 

misconduct associated with the charged policy violations that occurred while Hager was a 

member of the DEA task force. 

The County contends that we cannot affirm the exclusion of this evidence on 

alternate grounds because the trial court did not make an affirmative record of its exercise 

of discretion to facilitate meaningful review. (See Ramona Manor Convalescent Hospital 

v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1137.) We disagree. 

Although our original opinion did not fully discuss the trial court’s obligation to 

weigh the probative value of this evidence against the prejudicial effect, the record 

contains affirmative indications the trial court fully understood and executed its duty 

before exercising its discretion. The trial court determined this evidence was not relevant 

because it was not the basis for the charged policy violations that resulted in Hager’s 

termination, and by so finding, the admission of this evidence would have been 

prejudicial, collateral, and an undue consumption of time. The record establishes that the 

court considered the matter and took time to exercise its discretion. We do not interpret 

case law as requiring anything more. Under the circumstances of this case, the trial court 

did not abuse its discretion. 

The County maintains this conclusion is at odds with Brown v. County of 

Los Angeles (2012) 203 Cal.App.4th 1529, a decision filed by Division Two of this court. 

We are not bound by decisions of other Courts of Appeal. Brown is nevertheless 

distinguishable because the evidentiary ruling at issue in that case was based upon a 

misunderstanding of the law that led to the exclusion of the reason for the plaintiff’s 

termination. (Id. at pp. 1534-1535, 1537-1538, 1545-1550.) In this case, the rulings on 
23

the motions in limine, revisited during the 402 hearing when Tyler revealed the 

undisclosed reasons for terminating Hager, were based upon an exercise of discretion. 

Unlike Brown, the trial court’s evidentiary rulings did not foreclose the County from 

introducing evidence of the non-retaliatory reasons for its decision to terminate Hager for 

the charged policy violations.8

3. Substantial Evidence Supports the Verdict, But the Economic Damages Must Be 

Reversed for Lack of Substantial Evidence 

 The County contends that Hager did not meet his burden to show that the decision 

to terminate him for falsely reporting wiretapped conversations was a pretext. The 

County also challenges the sufficiency of the evidence to support the economic damages 

awarded for past and future earnings because Hager was disabled and could not perform 

the job of deputy sheriff with or without accommodations. We agree on the second 

contention, as shall be discussed, that portion of the jury’s damages award is not 

supported by substantial evidence. 

 “When a party contends insufficient evidence supports a jury verdict, we apply the 

substantial evidence standard of review. [Citation.]” (Wilson v. County of Orange

(2009) 169 Cal.App.4th 1185, 1188.) “We must ‘view the evidence in the light most 

favorable to the prevailing party, giving it the benefit of every reasonable inference and 

resolving all conflicts in its favor . . . .’ [Citation.]” (Ibid.) “ ‘[N]either conflicts in the 

evidence nor “ ‘testimony which is subject to justifiable suspicion . . . justif[ies] the 

 

8 The County also argues that Hager was permitted to introduce evidence that he 

was a good deputy sheriff, which included his work on the DEA task force, and his 

“outstanding” rating by Tyler on his 2000 performance review, while the County was 

barred from introducing evidence that Hager was a bad deputy sheriff. Hager had the 

burden to show the stated reasons for his termination were a pretext, and his evidence 

focused on the period when he worked on the DEA task force. Our review of the trial 

transcript reveals that the jury heard ample evidence that Hager was not a competent 

deputy sheriff while working as a member of the DEA task force, and Hager acted 

recklessly while a member of the DEA task force. Additionally, Tyler also testified that 

he considered suspension, but did not “feel that it was the right level [of discipline] to 

come in at for the series of offenses that [he] saw in this investigation over the two-year 

period.” 
24

reversal of a judgment, for it is the exclusive province of the trier of fact to determine the 

credibility of a witness and the truth or falsity of the facts upon which a determination 

depends.’ ” [Citations.]’ ” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) 

Therefore, our analysis begins and ends with the determination as to whether there is any 

substantial evidence contradicted or uncontradicted to support the verdict in Hager’s 

favor. 

a. Substantial Evidence Supports the Verdict that Terminating Hager for Falsely 

Reporting Wiretapped Conversations was a Pretext 

 The County asserts there was overwhelming evidence presented at trial that Hager 

falsely interpreted wiretapped conversations, and no relevant contradictory evidence to 

show otherwise. In support of this argument, the County cites to testimony and evidence 

of inaccurate transcriptions, while Hager responds with a citation to the testimony of a 

federal agent and member of the DEA task force who explained to the jury the difficulty 

in translating wiretapped conversations because criminals often talk in “code.” The 

County overlooks the testimony that supports the verdict in Hager’s favor. 

 (1). Background Facts

 During trial, the County presented evidence that in the course of the IAB 

investigation, LASD discovered Hager had falsified certain wiretapped conversations, 

setting forth several examples where the information was inaccurate or exculpatory 

information had not been reported.9

 The County focuses on two illustrative wiretapped 

conversations. In the first conversation, Hager reported that Hinkle, a target of the DEA 

task force, had responded in the affirmative to the caller’s question that he had “the guy 

handled,” which appeared to suggest that Hinkle had “man-handled” someone. The jury 

heard that this statement was inaccurate as the caller asked, “ ‘You got me handled?’ ” 

 

9 As we noted in Hager I, this case has a procedural past in federal district court. 

(Hager I, supra, B208941, at [pp. 3-4].) In the federal action, as the County points out in 

its opening brief, the district court reviewed the wiretapped conversations, and the district 

court concluded that Hager misrepresented several wiretapped conversations. In Hager I, 

we addressed this issue, concluding it was one of numerous, factual issues that needed to 

be resolved at trial. (Id. at [p. 13].) 
25

Testimony elicited indicated the latter interpretation refers to drugs. The second 

conversation also involved Hinkle. The caller advised Hinkle that homicide detectives 

came to the caller’s house to talk to her. Hager reported that the caller “advised Hinkle 

that she and her mother pretended that she was not home so she could talk to Hinkle 

first.” Hager’s report omitted allegedly exculpatory statements made by Hinkle in which 

he told the caller to talk to the homicide detectives because “there ain’t nothing to tell 

them bad.” The internal affairs investigator testified that Hinkle’s statement was 

exculpatory and should have been included in Hager’s report. The internal affairs report 

detailing the inaccuracies in Hager’s reports of the wiretapped conversations was 

admitted into evidence and chronicled several other calls from Hinkle’s home phone 

during a two-month period. 

 Hager explained that he did not listen to transcripts of wiretapped conversations, 

but instead looked at summaries called “line sheets” prepared by civilians. Line sheets 

are not verbatim transcriptions. Asked specifically about failing to report Hinkle’s 

response to the caller in which Hinkle encouraged the caller to talk to homicide 

detectives, Hager testified it was not exculpatory in the sense that it showed Hinkle had 

nothing to hide. Hager also testified about a wiretapped conversation in his reports to 

Shreves between two callers in which Hager reported that one of the callers “sarcastically 

said that Hinkle could kill a cop.” When the actual transcript revealed that the caller said, 

“ ‘Like [Hinkle’s] going to kill a cop,’ with a different connotation than ‘Hinkle could 

kill a cop.’ ” Hager reiterated that he did not write the synopsis of that call.10 Hager 

testified that he accurately reported to Shreves the wiretap information he received 

regarding Hinkle. 

 The jury also had an opportunity to review the IAB investigation report, which 

contained the transcriptions, Hager’s summary, and the investigator’s analysis. 

 

10 Hager was asked, “Sir, isn’t it true that the actual wiretap states, ‘like Tom’s going 

to murder a cop’?” The word “murder” does not appear in the investigator’s report. 

Hager’s response focused on the interchangeable terms of “murder,” and “kill,” which in 

his view did not constitute a false report. 
26

 (2). Inconsistencies in LASD’s Stated Reason for Terminating Hager 

 In order to establish the decision to terminate Hager for falsely reporting 

wiretapped conversation was a pretext, and the real reason was in retaliation for reporting 

deputy misconduct, Hager must show “ ‘weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its 

action that a reasonable factfinder could rationally find them “unworthy of credence,” 

[citation] . . . . [Citations.]’ [Citations.]” (Hersant v. Department of Social Services

(1997) 57 Cal.App.4th 997, 1005.) From this evidence, the factfinder can infer that the 

employer did not act for the stated non-retaliatory reasons. (Ibid.) 

 Hager has set forth several such inconsistencies and implausibilities to support the 

jury’s verdict that the stated reason, that is, falsely reporting wiretapped conversations, 

was unworthy of credence. As part of his work on the DEA task force, Hager obtained 

summaries and synopses of wiretapped conversations, which he believed set forth 

information that he had been ordered to report to Shreves. Hager testified that he did not 

interpret the wiretapped conversations, and took exception to the characterization that, as 

summarized in his reports to Shreves, the information was false or misleading. As 

described above, the jury could have recognized the inherent weakness in the County’s 

stated reason for terminating Hager, when under cross-examination, Hager was asked to 

admit that the summary of a wiretapped conversation in which the word “kill” was used 

instead of “murder,” constituted a false report that justified his termination. Moreover, 

the jury had an opportunity to examine the IAB investigator’s file, setting forth what he 

believed were the false reports. The jury might have agreed with Hager, and not the 

investigator, that the differences between Hager’s report and the IAB investigator’s 

interpretation of the wiretapped conversations were not significant, or the use of “code” 

between the callers was subject to interpretation and did not establish Hager made false 

reports. There was sufficient evidence from which the jury could have concluded this 

stated reason for Hager’s termination was pretextual. 
27

b. Substantial Evidence Does Not Support the Verdict of Economic Damages 

 Lost actual earnings may be proved with reasonable certainty and are recoverable 

as an element of special damages. (Handelman v. Victor Equipment Co. (1971) 

21 Cal.App.3d 902, 906.) The County challenges the jury verdict awarding $2,006,015 

in lost actual earnings. 

 (1). Background Facts

 In March 2002, Hager injured his neck and back while chasing a suspect. He went 

out on medical disability in April 2002. 

 In April 2003, Hager applied for, and was later granted, medical disability 

retirement as a result of his back and neck injuries. In his application, Hager checked 

“no,” to the question of whether he would be willing to accept another position he could 

perform within the County that would not result in a loss of income. Hager explained at 

trial that as of April 2003, his doctor told him that if he did not have a recommended 

surgical procedure he could not perform the physical duties of a deputy sheriff. Hager 

did not undergo surgery, explaining to the jury that he would have, but he had no job to 

return to following the surgery and there were risks associated with the surgery. 

 Hager called as an expert an orthopedic surgeon who reviewed Hager’s medical 

records and obtained information regarding the job classification of a deputy sheriff. The 

expert opined that Hager could not meet the requisite job classification to perform the 

duties of a deputy sheriff as of 2003. The medical expert testified Hager could undergo a 

procedure called “disk fusion” to ameliorate or cure Hager’s neck injury. There was no 

guarantee, however, that Hager would regain complete mobility in his neck after the 

surgical procedure. Over objection, Hager’s counsel asked the medical expert the 

following question: “Dr. Kreitenberg, assuming a good result, if you will, on a two-level 

fusion, did you have an opinion whether or not Deputy Hager could perform at the end of 

the four to six months the classifications of a deputy sheriff?” The doctor responded: 

“With a good result, yes, he could return to arduous work,” as described in the deputy 

sheriff job classification. 
28

 Hager’s medical expert testified that Hager was not totally disabled from any 

work. The expert, however, clarified that with two-level disk disease, Hager would have 

difficulty with the very arduous work of a Class IV deputy sheriff. 

 Hager’s economic expert stated her opinions on his lost earnings were based upon 

the assumption that he was working as a deputy sheriff. The economist calculated lost 

earnings from the date of termination to the date she prepared her report. Her 

calculations were based on Hager’s rate of pay in effect at the time he last worked. The 

economist calculated backpay at either $952,275 or $915,539, depending upon certain 

variables with a credit of $127,866 for past pension benefits received. Future lost 

earnings, based upon retirement at age 55, were calculated at either $2,765,243 or 

$2,562,213, depending upon certain variables, with a credit of $1,126,343 for past 

pension benefits received. Adding overtime, the economist calculated Hager’s total loss 

of earnings at either $3,514,489 or $3,249,357, depending upon certain variables. These 

calculations were offset by the value of past and future medical pension benefits 

($1,254,206), leaving a net loss of earnings in the range between $2,260,283 and 

$1,995,151. 

 Hager testified that he applied to “places” to obtain employment in the fields of 

private investigation, security management, and personal protection. The salary for these 

positions was in the range of $50,000 to $100,000. Hager testified that during the 

interviews, he had to disclose that he was terminated for falsifying affidavits and making 

false allegations. Hager did not identify the interviews in which the subject came up. 

Hager also did not further testify regarding his efforts to obtain employment. He was 

unable to secure employment in any of these fields. 

 The jury awarded $2,006,015 in economic damages. 

 (2). Substantial Evidence Does Not Support Backpay Damages 

 Citing Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 

152 Cal.App.4th 1122 (Davis), the County contends Hager is not entitled to recover 

backpay ($806,041) because the evidence presented at trial established that when Hager 

was terminated he was medically disabled and was unable to perform the duties of a 
29

deputy sheriff. Our review of the jury’s award of damages is limited. (Pannu v. Land 

Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1321-1322 & fn. 18.) Given 

the nature of the issue framed by the County, we must determine whether the damages 

award is supported by substantial evidence. (Id. at p. 1322, fn. 18.) 

 In Davis, supra, 152 Cal.App.4th 1122, the court concluded that a wrongfully 

demoted employee was not entitled to recover backpay because he had been placed on 

nonindustrial disability by his doctor before being demoted and eventually terminated. 

(Id. at pp. 1127-1128, 1141.) Upon rescinding the demotion, the employee did not obtain 

a release from his doctor stating he was able to work in any capacity and, therefore, he 

was not reinstated. (Id. at p. 1129.) Thus, the employee did not work and could not work 

due to his disability, which predated any wrongful conduct and was not work-related. 

(Id. at p. 1133.) Invoking traditional causation principles, the court concluded the 

employer could not be held responsible for backpay because the employee would have 

sustained the loss due to his disability even in the absence of any wrongful demotion. 

(Id. at pp. 1133-1141.) 

 Like Davis, the County established that Hager took medical disability leave 

(unrelated to the charged policy violations that led to his termination) before he was 

terminated. Hager’s medical expert testified he was disabled as of 2003 and could not 

perform the job functions of a deputy sheriff. Although there was testimony that Hager’s 

condition might have improved with surgery, Hager did not undergo surgery and was not 

“ready, willing, and able” to return to work. Thus, at trial there was no evidence that 

Hager would have been able to work as a deputy sheriff. Accordingly, Hager is not 

entitled to recover backpay because he would have sustained the loss due to his disability 

even if the County had not terminated him. 

 Hager, however, argues that the County’s wrongful conduct in terminating him 

has “forever destroyed [his] ability to secure any replacement employment in the field in 

which he is trained.” Relying on his inability to obtain employment, Hager distinguishes 

Davis, a nonindustrial disability, with his, likening his situation to an industrial disability. 
30

We reject this comparison. Hager’s medical disability, that is, injury to his neck and 

back, is unrelated to his termination or damage to his reputation. 

 Hager also relies on SASCO Electric v. Fair Employment & Housing Com. (2009) 

176 Cal.App.4th 532, to argue that an employee is entitled to backpay unless the 

employer shows the employee is completely unable to work in any capacity because of 

his disability. SASCO is inapposite. In SASCO, unlike in Davis, the employer failed to 

prove that the employee’s work restrictions during her pregnancy could not have been 

accommodated. (SASCO, at pp. 543-544.) In this case, like Davis, Hager obtained a 

medical leave and did not seek an accommodation to return to active duty in any 

capacity. Thus, there was no evidence in the record that Hager would have worked, nor 

could he have worked as a deputy sheriff with or without accommodations, unless he had 

surgery and obtained a “good result.” The award of backpay cannot stand. 

 (3). Future Loss of Earnings was Speculative 

 The County contends the jury’s award of future loss of earnings ($1,199,974) is 

speculative because there is no evidence to show with a reasonable degree of medical 

certainty that had Hager undergone disk fusion surgery he could have returned to work 

and performed the duties of a deputy sheriff. The medical expert testified if Hager 

underwent disk fusion surgery, “[w]ith a good result . . . he could return to arduous work” 

as a deputy sheriff.11 The economist’s calculations of future loss of earnings were based 

upon the assumption that Hager would have returned to work as a deputy sheriff and 

worked until he was 55. The economist agreed that if her assumption was incorrect, that 

is, if Hager could not return to work as a deputy sheriff, her calculations were incorrect. 

 “ ‘Front pay,’ as the term is used in employment litigation, is a measure of 

damages for loss of future income, as opposed to backpay, which is lost-wages damages 

through the time of trial.” (Horsford v. Board of Trustees of California State University

(2005) 132 Cal.App.4th 359, 388.) Front pay is in lieu of reinstatement and is an award 

 

11 Hager’s brief states, without citation to the record, that his medical expert testified 

“to a reasonable medical certainty that with surgery, he would likely be restored to full 

capacity to perform those duties.” There was no such testimony before the jury. 
31

of the salary and benefits a wrongfully discharged plaintiff would have earned had he or 

she been employed after trial. (Mize-Kurzman, supra, 202 Cal.App.4th at p. 873, fn. 17.) 

“Front pay is measured by the employee’s projected earnings and benefits over the period 

of time until he or she is likely to become reemployed or likely to retire, where 

reemployment is unlikely.” (Id. at pp. 873-874, fn. 17.) 

 Hager’s economist based her opinion on the assumption that Hager could return to 

work as a deputy sheriff, which has no evidentiary support. (Jennings v. Palomar 

Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) Because the 

economist’s testimony was based on the salary Hager would have earned as a deputy 

sheriff, it was based upon conclusions or assumptions not supported by the record and 

cannot constitute substantial evidence. (Goehring v. Chapman University (2004) 

121 Cal.App.4th 353, 367-368.) 

 Hager, however, contends substantial evidence supports the jury’s verdict based 

upon the reputational injury or the “blot on his resume,” which prevented him from 

obtaining any employment in related fields. This reputational injury, or loss of future 

earning capacity, is distinct from front pay, which is the earnings the employee would 

have received from the defendant employer but for his wrongful termination. (See Chin 

et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2013) ¶ 17.228, 

p. 17-38; Williams v. Pharmacia, Inc. (7th Cir. 1998) 137 F.3d 944, 952 [“ ‘To recover 

for lost earning capacity, a plaintiff must produce “competent evidence suggesting that 

his injuries have narrowed the range of economic opportunities available to him. . . . [A] 

plaintiff must show that his injury has caused a diminution in his ability to earn a 

living.” ’ ”].) Loss of earning power is an element of general damages. (Civ. Code, 

§ 3333.) 

 The evidence does not support the award of damages for loss of future earning 

capacity. The economist’s calculations, which Hager relies on, were based upon what he 

would have earned as a deputy sheriff, a job he can longer perform. Hager’s vague 

testimony is not sufficient to suggest a diminution in his ability to earn a living caused by 

his reputational injury. The award of front pay cannot stand. 
32

4. The Trial Court Did Not Abuse its Discretion in its Evidentiary Rulings 

 The County argues that the trial court committed prejudicial error in admitting 

evidence that shifted the focus away from the elements of Hager’s whistleblower 

retaliation lawsuit toward whether Engels actually committed criminal acts. This 

contention is based on questions presented during trial to Engels, Brandenburg, and a 

parole officer regarding Aujay’s disappearance and the connection between Engels and 

Hinkle, one of the targets of the DEA task force. Our recitation of the background facts 

is limited to the evidence upon which timely and specific objections were raised in the 

trial court. (Evid. Code, § 353, subd. (a); Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co.

(1993) 14 Cal.App.4th 1595, 1611.) 

a. Background Facts 

 The County cites to Engels’s testimony in which he was questioned regarding his 

whereabouts on the date of Aujay’s disappearance, and his relationship with Hinkle. 

Defense counsel objected to the line of questioning related to Aujay’s disappearance as 

“inappropriate,” because it suggested Engels had “something to do criminally with the 

missing Deputy Aujay.” The objection was overruled. With respect to Engels’s 

testimony regarding his relationship with Hinkle, the County raised an objection to a 

question related to Engels’s response to a radio call from Hinkle’s house reporting an 

attempted murder. 

 The County also cites to Brandenburg’s testimony in which he described the 

information he received from several sources during the course of his homicide 

investigation. The County raised hearsay objections to questions posed to Brandenburg 

eliciting the following testimony: (1) another deputy told him that Aujay had been 

murdered, and the deputy had information about Engels, referring to Engels as a “dirty 

deputy”; (2) a former narcotics officer told him that a methamphetamine lab was located 

adjacent to the area where Aujay’s truck was located; (3) an inmate told him that he 

overheard people talking about murdering Aujay; and (4) an FBI agent also had obtained 

information that Aujay had been murdered. 
33

b. The Trial Court Properly Exercised its Discretion in Admitting Evidence that 

Showed Hager had a Reasonable Belief of Deputy Misconduct 

 The County contends the admission of Engels’s testimony was prejudicial because 

the jury would be more likely to “reward plaintiff for his belief that Deputy Engels was 

involved in illicit activity if, in hindsight, the information [were] true.” As to the hearsay 

evidence, the County contends that this evidence sensationalized the trial resulting in 

prejudicial error. We conclude the trial court properly exercised its discretion. 

 A trial court’s ruling on the admissibility of evidence is reviewed for abuse of 

discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 

1078; Pannu v. Land Rover North America, Inc., supra, 191 Cal.App.4th at p. 1317.)12 A 

judgment will not be reversed by reason of an erroneous admission of evidence unless a 

miscarriage of justice is shown. (Evid. Code, § 353, subd. (b).) “In civil cases, a 

miscarriage of justice should be declared only when the reviewing court, after an 

examination of the entire cause, including the evidence, is of the opinion that it is 

reasonably probable that a result more favorable to the appealing party would have been 

reached in the absence of the error. [Citation.]” (Huffman v. Interstate Brands Corp.

(2004) 121 Cal.App.4th 679, 692.) 

 As to Engels’s testimony, the trial court’s ruling fell well within its discretion. 

Hager was entitled to the protection of section 1102.5(b) if he had reasonable cause to 

believe that the information he disclosed was a violation of the law. Hager’s reasonable 

belief of Engels’s involvement in Aujay’s disappearance and in the methamphetamine 

organization in the Antelope Valley had been discredited by Holmes during the course of 

 

12 In its reply brief, the County cites Wiz Technology, Inc. v. Coopers & Lybrand

(2003) 106 Cal.App.4th 1, 12-13, for the proposition that our review of the trial court’s 

rulings on hearsay objections is de novo. Wiz Technology is a summary judgment case. 

In citing this standard of review, the court relied on our case, Williams v. Saga 

Enterprises, Inc. (1990) 225 Cal.App.3d 142. (Wiz Technology, Inc. v. Coopers & 

Lybrand, at p. 13.) We noted that the trial court did not rule on the evidentiary 

objections, and we stated “we must determine the validity of those objections ourselves 

since our standard of review is a de novo examination of the order which granted the 

motion for summary judgment.” (Williams v. Saga Enterprises, Inc., at p. 149, fn. 2.) 
34

his investigation. Holmes testified that there was no credible information from which 

Hager could have reasonably believed Engels had violated the law. Thus, the evidence 

elicited from Engels concerning his whereabouts on the day of Aujay's disappearance 

cast doubt on Holmes’s investigation. This evidence was relevant and properly admitted 

to show Holmes did not thoroughly investigate Engels to follow up Hager’s information 

concerning Engels’s involvement in Aujay’s disappearance. 

 We also conclude that the trial court’s rulings on the County’s hearsay objections 

were not an abuse of discretion. Brandenburg testified that he received the same 

information regarding deputy misconduct that Hager reported to Shreves. Brandenburg’s 

testimony was not offered to prove the information was correct, only to show that Hager 

had a reasonable belief that Engels had violated the law. Brandenburg’s testimony also 

cast doubt on Holmes’s conclusion that Hager’s sources were not credible, and Hager’s 

reports regarding deputy misconduct were reckless. 

 Even if we were to conclude that the trial court erred in admitting this evidence, 

the County has not shown prejudice. Several witnesses testified regarding Hager’s 

reports to Shreves, which detailed Hager’s information about Engels. The County 

actually cited to and relied on Brandenburg’s testimony, which it asserts was improperly 

admitted, to show that Brandenburg was the first to report deputy misconduct. Moreover, 

as to the testimony of the parole officer, which the County contends was improperly 

admitted, the County failed to object but thereafter cross-examined the witness. The jury 

heard that the parole officer did not believe the information he received about Engels’s 

wrongdoing. On this record, there was no miscarriage of justice. 

5. The Trial Court Did Not Err in Denying the Motion for New Trial Based upon 

Juror Misconduct 

 The County argues the trial court erred in denying its motion for new trial 

premised on juror misconduct. (Code Civ. Proc., § 657.) The argument on appeal is 

twofold. First, the trial court, upon hearing of misconduct, committed prejudicial error 

by not following the law. Second, the trial court erred in denying the new trial motion 
35

because the presumption of prejudice arising from jurors discussing news reports about 

LASD corruption was not rebutted. We disagree with both arguments. 

a. The Trial Court Did Not Err in Protecting the Privacy of the Jurors by 

Requesting Permission to Release Their Identifying Information 

 The County contends the trial court erred when it denied the County’s application 

for the juror’s personal identifying information (addresses and phone numbers) so the 

County could further investigate whether juror misconduct occurred in light of certain 

news reports. The County argued that it was entitled to the identifying information under 

Code of Civil Procedure section 237, subdivision (a)(1). 

 Code of Civil Procedure section 237, subdivision (a)(1) states: “The names of 

qualified jurors drawn from the qualified juror list for the superior court shall be made 

available to the public upon request unless the court determines that a compelling 

interest, as defined in subdivision (b), requires that this information should be kept 

confidential or its use limited in whole or in part.” Subdivision (b) provides that the 

petition to the superior court for access to these records shall be “supported by a 

declaration that includes facts sufficient to establish good cause for the release of the 

juror’s personal identifying information.” The court is required to set a hearing upon a 

showing of good cause, unless there is a showing that establishes “a compelling interest 

against disclosure.” (Code Civ. Proc., § 237, subd. (b).) “A compelling interest includes, 

but is not limited to, protecting jurors from threats or danger of physical harm.” (Ibid.) If 

the court does not set the matter for hearing, it must make express findings of either lack 

of good cause or the presence of a compelling interest against disclosure. (Ibid.) 

 Contrary to the County’s position, it is not entirely clear whether subdivision (b) 

of section 237 of the Code of Civil Procedure applies in a civil case. The reference to 

“personal juror identifying information,” as used in subdivision (a)(2), and the use of a 

“criminal action” in the first sentence of subdivision (c) suggests that it does not. If 

subdivision (b) applies, then the trial court’s decision to correspond with the jurors to 

seek permission to release their identifying information must have been based upon 

Hager’s counsel’s argument that there was a compelling interest against disclosure. 
36

While the court made no express findings, there is no indication in the record the County 

asked for express findings, or the County objected to the procedure the trial court invoked 

to protect the juror’s privacy. While only one juror granted permission to release his 

identifying information, the jurors had an absolute right not to talk to the County. 

 Notwithstanding subdivision (b) of Code of Civil Procedure section 237, there was 

no abuse of the court’s inherent discretion to protect juror privacy. (See Townsel v. 

Superior Court (1999) 20 Cal.4th 1084, 1091, 1096 [entirely apart from Code Civ. Proc., 

§ 237, court has inherent power to protect juror privacy in civil as well as criminal cases; 

exercise of that power is reviewed for abuse of discretion].) A litigant seeking juror’s 

personal identifying information must make “ ‘a sufficient showing to support a 

reasonable belief that jury misconduct occurred, that diligent efforts were made to contact 

the jurors through other means, and that further investigation is necessary to provide the 

court with adequate information to rule on a motion for new trial. . . . [¶] Absent a 

satisfactory, preliminary showing of possible juror misconduct, the strong public interests 

in the integrity of our jury system and a juror’s right to privacy outweigh the 

countervailing public interest served by disclosure of the juror information as a matter of 

right in each case.’ ” (Id. at pp. 1093-1094.) The County did not make the requisite 

preliminary showing in their ex parte application. 

b. The Record Reveals No Prejudicial Juror Misconduct 

 During jury deliberations, multiple news sources reported on county-wide inmate 

abuse in the Los Angeles County jail system. Upon discharge of the jury, defense 

counsel told the court that the jury “had discussed recent media articles on the conduct of 

the Los Angeles County Sheriff’s Department during deliberations and felt the 

Department was corrupt.” As noted above, before moving for new trial, the County 

asked the court for the juror’s personal identifying information. In response to the court’s 

request, only one juror permitted the court to release his information. This juror did not 

submit a declaration to support the County’s motion. 

 In its motion for new trial, the County offered another juror’s declaration that 

stated: “During trial and before the verdict was reached in this matter, I heard another 
37

juror mention they heard the Los Angeles County Sheriff’s Department was in the news. 

The juror did not state any additional details regarding the story they had heard. In 

response, one or two other jurors stated that they had also heard recent news stories 

regarding the Los Angeles County Sheriff’s Department.”13 

 An order denying a motion for a new trial is not itself appealable. We review the 

order as part of the judgment. (Walker v. Los Angeles County Metropolitan 

Transportation Authority (2005) 35 Cal.4th 15, 19.) The scope of our review from the 

denial of a new trial on the ground of juror misconduct requires an examination of the 

entire record, including the evidence, and we independently determine whether an act of 

misconduct occurred and, if so, whether the act prevented the moving party from having 

a fair trial. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 818; see also 

Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 158.) 

 The County contends that any information obtained about a party or the case from 

news reports creates a presumption of prejudice. In support of its assertion, the County 

cites cases in which jurors read news articles about the case during trial and prejudged the 

case (People v. Ramos (2004) 34 Cal.4th 494, 517-519; Province v. Center for Women’s 

Health & Family Birth (1993) 20 Cal.App.4th 1673, 1678-1679, disapproved on other 

grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 41), heard news reports 

that the defendant made “ ‘threats against the guards . . . if he were given the death 

penalty’ ” (People v. Zapien (1993) 4 Cal.4th 929, 993-994), and were exposed to 

extraneous information during jury selection in the form of defendant’s statements 

directed at the prosecutor that the defendant would “ ‘tear his head off’ and that he had 

‘nothing to lose’ ” (People v. McKinzie (2012) 54 Cal.4th 1302, 1347). Here, the news 

reports had nothing to do with the case. 

 The County also cites People v. Nesler (1997) 16 Cal.4th 561, as support for the 

proposition that any information about a party leads to a presumption of prejudice. In 

 

13 This portion of the declaration supporting the motion was admissible. 

(Evid. Code, § 1150, subd. (a).) 
38

Nesler, a juror overheard damaging information concerning the defendant from a source 

outside the trial, failed to disclose this information to the court, and during deliberations 

passed on that information to other jurors. (Id. at pp. 578-579 (lead opn. of George, 

C.J.).) Unlike here, the information in Nesler was connected to the case. 

 Although the County characterizes the news reports as detailing “corruption” in 

the LASD, the news reports at issue here focused on the jail system, which had no 

connection with Hager’s case. This out-of-court information does not appear to be 

information so prejudicial “that it is inherently and substantially likely to have influenced 

a juror,” or resulted in actual bias against the County. (People v. Nesler, supra, 

16 Cal.4th at pp. 578-579.) 

 But, even if we were to agree with the County that a juror who mentioned reading 

about the LASD, without further elaboration, and “one or two others” had heard news 

stories, raised a presumption of prejudice, the presumption was rebutted. “ ‘Some of the 

factors to be considered when determining whether the presumption is rebutted are the 

strength of the evidence that misconduct occurred, the nature and seriousness of the 

misconduct, and the probability that actual prejudice may have ensued.’ ” (Province v. 

Center for Women’s Health & Family Birth, supra, 20 Cal.App.4th at p. 1679, citing 

Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.) 

 In examining the record, we conclude there was no probability actual prejudice 

resulted from juror misconduct. Evidence of misconduct was not serious. The declarant 

was uncertain as to the identity of the jurors, there was no indication of the nature of the 

news they had heard, and the declaration lacks specificity regarding the juror’s statements 

and the circumstances under which they were made. There also is no indication that 

these jurors violated the court’s instructions not to “look for any information outside of 

the court.” Thus, for the foregoing reasons, any juror misconduct was not “of such a 

character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, 

subd. (a).) 
39

Hager’s Appeal 

 Hager appeals from the trial court’s order denying his motion for attorney fees 

under Code of Civil Procedure section 1021.5. Code of Civil Procedure section 1021.5 

codifies the “private attorney general” doctrine of attorney fees. (Conservatorship of 

Whitley (2010) 50 Cal.4th 1206, 1210.) “ ‘[T]he fundamental objective of the doctrine is 

to encourage suits enforcing important public policies by providing substantial attorney 

fees to successful litigants in such cases.” (Graham v. DaimlerChrysler Corp. (2004) 

34 Cal.4th 553, 565.) The statute authorizes the court to award attorney fees to a 

successful party in an action that “has resulted in the enforcement of an important right 

affecting the public interest if: (a) a significant benefit, whether pecuniary or 

nonpecuniary, has been conferred on the general public or a large class of persons, (b) the 

necessity and financial burden of private enforcement . . . are such as to make the award 

appropriate, and (c) such fees should not in the interest of justice be paid out of the 

recovery, if any.” (Code Civ. Proc., § 1021.5.) All of the statutory requirements must be 

met. (Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 80-81.) 

 Because the issues presented here do not require us to construe the statute, we 

review the order denying attorney fees for an abuse of discretion. (Collins v. City of 

Los Angeles (2012) 205 Cal.App.4th 140, 152-153.) The questions we discuss are 

whether the court applied the proper legal standards and, if so, whether the result was 

within the range of the court’s discretion. (Lyons v. Chinese Hospital Assn. (2006) 

136 Cal.App.4th 1331, 1344.) We presume that the trial court properly applied the law 

and acted within its discretion unless affirmatively shown otherwise. (Collins v. City of 

Los Angeles, supra, at p. 153.) 

 As a preliminary matter, Hager appears to contend that the trial court order 

denying attorney fees without any stated reasons constitutes reversible error because, as a 

reviewing court, we cannot assess whether the trial court applied the proper legal 

standard. Hager has offered no legal support for this position and ignores the 

presumption that the court properly applied the law. Moreover, the failure to state 

reasons for a discretionary decision does not constitute, by itself, abuse of discretion. 
40

(Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 555; see also Satrap v. 

Pacific Gas & Electric Co., supra, 42 Cal.App.4th at p. 81, fn. 2.) To be entitled to relief 

on appeal from an alleged abuse of discretion, it must be clear that the resulting injury is 

sufficiently grave to manifest an abuse of discretion. The trial court did not abuse its 

discretion. 

 Hager next contends this action resulted in enforcement of an important right to be 

protected from whistleblower retaliation, which affects the public and satisfies the first 

criterion under Code of Civil Procedure section 1021.5, by conferring “a significant 

benefit . . . on the general public or a large class of persons[.]” There are a number of 

published appellate cases that have awarded attorney fees to public safety officers who 

have sued to enforce rights, but we agree with the County that those cases are 

distinguishable, and the right Hager enforced did not rise to the level of conferring a 

significant benefit on the public. 

In Jaramillo v. County of Orange, supra, 200 Cal.App.4th 811, attorney fees were 

awarded because the plaintiff obtained an injunction requiring the County to amend its 

executive management waiver forms to expressly include language that no POBRA rights 

may be included in the waiver. (Id. at p. 827.) The injunction did not just benefit the 

plaintiff, or the executive-level sheriffs who will now know that they are not waiving 

POBRA protections, but it also inured to the benefit of the County by lessening the 

probabilities of abuse and corruption in the sheriff’s office. (Id. at p. 829.) 

 In Riverside Sheriffs’ Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, a 

sheriff’s association brought an action against the County after the County denied certain 

deputy sheriffs, who were the subject of a criminal investigation, access to employee 

representatives as required under POBRA. (Id. at p. 418.) The appellate court affirmed 

the trial court’s award of attorney fees, reasoning that POBRA rights and protections 

benefit not only public safety officers but the public at large, transcending the employeremployee relationship. (Id. at p. 422.) “These principles hold true even where a party 

enforces an existing right.” (Ibid.) 
41

In Otto v. Los Angeles Unified School Dist. (2003) 106 Cal.App.4th 328, we 

reversed a trial court order denying attorney fees to a school public safety officer who 

successfully challenged his employer’s refusal to afford him an administrative appeal 

from a written memorandum that was critical of his job performance, which was 

allegedly a punitive action implicating POBRA. (Id. at pp. 330-331.) We concluded the 

issue of what constituted a “punitive action” under POBRA had widespread implications 

for law enforcement agencies and their employees across the state, and thus the lawsuit 

had conferred a significant public benefit by “furthering the public’s interest in effective 

law enforcement.” (Id. at pp. 334-335.) 

Hager also directs our attention to Robinson v. City of Chowchilla (2011) 

202 Cal.App.4th 382, 394, but in that case, like those cited above, Robinson successfully 

prosecuted POBRA rights that conferred a significant benefit on the general public. 

Robinson challenged his removal as chief, which resulted in a published case determining 

that the city’s removal of its police chief from office without notice, a statement of 

reasons, or an opportunity for an administrative appeal violates POBRA (Gov. Code, 

§ 3304, subd. (c)). (Robinson v. City of Chowchilla, supra, at pp. 387, 395-399.)14

We do not agree with Hager’s assertion that any action alleging a violation of a 

right, whether under POBRA or the Labor Code, necessarily confers a significant benefit 

to the public, regardless of the nature of the alleged violations or the underlying 

circumstances. Unlike the plaintiffs in Jamarillo, Riverside Sheriffs’ Assn., Otto, and 

Robinson, whose lawsuits benefited all public safety officers and the public at large, this 

action only benefited Hager. An action that rectifies illegal private or public conduct, 

including a suit brought under section 1102.5(b) standing alone, does not establish that 

 

14 Hager also relies on Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, and 

Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, but these cases, unlike Hager’s case, are 

similar to those cited above and vindicated important constitutional rights of due process, 

freedom of speech, and freedom to petition, which conferred a significant benefit on the 

general public. (Bowman, supra, at pp. 179-181; Press, supra, at pp. 318-319.) 
42

the action conferred a significant benefit on the public. (See Satrap v. Pacific Gas & 

Electric Co., supra, 42 Cal.App.4th at pp. 81-82.) 

In sum, Hager has not met the first criterion for obtaining an attorney fees award 

under Code of Civil Procedure section 1021.5. Therefore, the trial court did not abuse its 

discretion in denying Hager’s motion. 
43

DISPOSITION 

 The judgment is reversed as to the award of $2,006,015 in damages, and is 

otherwise affirmed. The order denying the motion for attorney fees is affirmed. The 

parties are to bear their own costs on appeal. 

 ALDRICH, J. 

We concur: 

 CROSKEY, Acting P. J. 

 KITCHING, J.
Filed 8/19/14 

CERTIFIED FOR PARTIAL PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

DARREN HAGER, 

 Plaintiff and Respondent, 

 v. 

COUNTY OF LOS ANGELES et al., 

 Defendants and Appellants. 

 B238277 

 (Los Angeles County 

 Super. Ct. No. BC370326) 

DARREN HAGER, 

 Plaintiff and Appellant, 

 v. 

COUNTY OF LOS ANGELES et al., 

 Defendants and Respondents. 

 B239897 

 (Los Angeles County 

 Super. Ct. No. BC370326) 

 ORDER MODIFYING OPINION 

 AND CERTIFYING OPINION FOR 

 PARTIAL PUBLICATION 

 [NO CHANGE IN JUDGMENT] 

 It is ordered that the opinion filed herein on August 5, 2014, be modified as 

follows: 

 On page 2, before the initial paragraph, insert the heading, “INTRODUCTION.” 

 On page 3, line 13, delete the paragraph beginning with “We conclude the trial 

court did not abuse its discretion” and insert the following paragraph: 

“We conclude the County’s interpretation of section 1102.5(b) as limiting 

whistleblower protection to the first employee who discloses a violation of state or 

federal law that had not been previously disclosed by another employee is contrary 

to the plain statutory language and legislative intent in enacting section 1102.5(b). 

In the unpublished portion of this opinion, we further conclude the trial court did 

not abuse its discretion in excluding evidence of undisclosed reasons for 
2 

terminating Hager. The record contains affirmative indications the trial court 

considered and understood that the introduction of undisclosed reasons for the 

decision to terminate Hager was not relevant and was prejudicial. We further 

conclude there is no substantial evidence to support the jury’s award of economic 

damages. Accordingly, we reverse that portion of the judgment, but in all other 

respects we affirm. We also affirm the order denying Hager’s motion for attorney 

fees.” 

 On the court’s own motion, it appears that our opinion addressing Labor Code 

section 1102.5, subdivision (b), meets the standards set forth in California Rules of Court, 

rule 8.1105(c) and 8.1110. The Introduction, beginning on page 2 of this opinion, the 

Factual and Procedural History, part 1 of the Discussion, ending on page 16, and the 

Disposition of this opinion on page 43 are ordered published in the Official Reports. 

 There is no change in the judgment.