C.A. Scotches $3.5 Million Award to Discharged Employee
Manella Declares That Amount Set by Jury Is ‘Shocking,’ Says ‘Passion or Prejudice’ Is Evident
By a MetNews Staff Writer
The Court of Appeal for this district has capsized a jury’s award of $3.5 million in noneconomic damages to a man it found to have been wrongfully discharged as a deputy fire marshal for the City of West Covina, with the justices giving the plaintiff a choice: agree to the judgment being trimmed to $1.1 million or try the case again.
Writing for Div. Four, Presiding Justice Nora M. Manella said, in an opinion filed Thursday:
“[W]e agree with the City that the $3.5 million noneconomic damages award—comprising $2 million in past and $1.5 million in future noneconomic damages—was so excessive as to suggest it resulted from passion or prejudice.”
Manella termed the award “shockingly disproportionate to the evidence” as to the harm actually suffered by the discharged employee, Jason Briley, and, with respect to the anticipated future detriment to him, said the figure arrived at by the jury “is no less than shocking.”
The $2 million award for past economic damages exceeded by $500,000 the figure Briley’s lawyer had requested during argument to the jury.
The case was tried in the courtroom of Los Angeles Superior Court Judge Terry Green. While terming the award “a bit over the top” and in excess of what he would have determined damages to be, Green denied a motion for a new trial, saying that the jury did not act outside the bounds of reason.
Thursday’s opinion, while vacating the awards for noneconomic damages, affirms the judgment to the extent that $500,000 was awarded for Briley’s economic damages, which West Covina did not contest on appeal.
Briley contended that he was fired for being a whistleblower—such as pointing out that City Hall did not have an adequate fire alarm system and complaining of a business being allowed to stay open during construction—while the city insisted he was discharged based on being difficult to deal with, untruthful, and rude to members of the public.
In declaring the noneconomic damages to be unjustified, Manella wrote:
“Based on our review of the record, and in our collective experience, the jury could have awarded Briley no more than $1 million for past noneconomic damages, reflecting the distress, financial uncertainty, and sleep-related issues he experienced in the aftermath of his termination. We further conclude the jury could have awarded no more than $100,000 for Briley’s future noneconomic damages, reflecting the largely diminished effects of his termination in the wake of the jury’s verdict.”
“While these amounts remain high in relation to the evidence of Briley’s harm, we may not insert our own assessment for that of the jury; instead, we ask only what amount the jury could reasonably have awarded.”
Briley was fired in 2015, and the jury’s verdict came in 2018. In the meantime, with the matter of why he was fired being unresolved in a judicial proceeding, he was unemployed, except for a 10-month stint with the fire department of the City of Murietta, in Riverside County (with the competing versions of the circumstances of his separation from that department being withheld from the jury).
The plaintiff testified that the termination of his employment was “pretty devastating” to him and that he dwelled on the injustice to him every day. His financial insecurity was emotionally harmful, he related, noting that at the time of his discharge, he was supporting the children, aged 17 and 19, of a person with whom he was romantically involved.
Manella said, on the matter of past noneconomic damages:
“A discriminatory or retaliatory termination is undoubtedly upsetting and warrants reasonable compensation for any accompanying emotional distress….But without evidence of significant, concrete harm, the typical post-termination difficulties described by Briley cannot support an award of $2 million for past noneconomic damages covering a period of about three years, amounting to more than $1,700 per day, including the roughly 10 months during which Briley worked for the City of Murrieta.”
The award of $1.5 million for future noneconomic harm, she wrote, “stands on even shakier ground,” explaining:
“By the time of the jury’s verdict, many of the issues Briley identified in his testimony were substantially resolved or significantly diminished. The half a million dollars in economic damages Briley stood to receive should have eliminated any remaining financial concerns tied to his termination from the City, and his testimony did not suggest that he continued to provide for any dependents. The jury’s favorable and sizable verdict also vindicated Briley and counteracted any false or unfair allegations against him.”
Manella provided speculation as to two reasons why the jury’s passion might have been roused in setting noneconomic damages: Briley cried while testifying and improper argument was made to the jury by one of his lawyers.
Beverly Hills practitioner Gregory W. Smith (an unsuccessful candidate for Los Angeles city attorney in 2013) assailed counsel for West Covina, Fullerton attorney Harold Wesley Porter Jr. of Jones & Mayer, telling jurors that he lied to them about having to look up the word “incredulity.” He asserted:
“That was a false statement….He knows exactly what it meant, but he told you he had to look it up in the dictionary….This is part of the game, part of the smoke and mirrors. ‘Hey, I’m a normal guy, I had to look it up in the dictionary.’...He’s probably used it 20 times and he knew exactly what it meant.”
The presiding justice remarked:
“This personal attack on the City’s counsel, shortly before the jury began its deliberations, may have prejudiced the jury against the City and contributed to its excessive award, which went beyond even Briley’s counsel’s exorbitant request.” In a footnote, Manella said:
“We have no occasion to decide whether Briley’s counsel’s ad hominem attack on opposing counsel constituted misconduct, although it reflected a lack of civility. What is important for purposes of the damages award is the statements’ effect on the jury, not attribution of fault.”
Her opinion gives Briley 30 days in which to consent to the remittitur; otherwise, a new trial is ordered. His lawyer, Douglas G. Benedon of the Woodland Hills firm of Benedon & Serlin, said Friday: “No decision has been made at this point.”
The case is Briley v. City of West Covina, 2021 S.O.S. 2927.
Fullerton attorney Krista Macnevin Jee, a senior associate in Porter’s firm, represented West Covina on appeal. Oshea V. Orchid of Public Employees Legal in Palms joined with Benedon and Wendy S. Alberts, of his firm, in acting for Briley.
Jee commented on Friday:
“The city is pleased the court agreed that the damages were so excessive that $3.5 M of the verdict had to be vacated, although the city is disappointed that other grounds for appeal were not found to warrant reversal entirely. The city is still is the process of reviewing and analyzing the opinion and considering all options.”
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