Regents of the U. of Cal. v. Murphy CA4/1

Opinion

Filed 9/10/26 Regents of the U. of Cal. v. Murphy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

REGENTS OF THE UNIVERSITY OF D084092 CALIFORNIA, Plaintiff and Appellant, (Super. Ct. No.

v. 37-2020-00032541-CU-BT-CTL)

KEVIN T. MURPHY, Defendant and Respondent.

KEVIN T. MURPHY, M.D.

Plaintiff and Respondent, (Super. Ct. No.

37-2020-00032789-CU-OE-CTL)

v.

REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.

APPEALS from a judgment and postjudgment order of the Superior Court of San Diego County, James A. Mangione, Judge. Affirmed in part; conditionally reversed in part.

Horvitz & Levy, Bradley S. Pauley, Scott P. Dixler, Sheridan L.

Caldwell; Duane Morris, Robert D. Eassa, Paul J. Killion and Michael L. Fox, for Plaintiff and Appellant.

Pettit Kohn Ingrassia Lutz & Dolin, Douglas A. Pettit, Matthew C.

Smith; Greene Broillet & Wheeler, Mark T. Quigley, Ivan Puchalt; Esner, Chang, Boyer & Murphy, Stuart B. Esner and Rowena J. Dizon, for Defendant and Respondent.

Kevin T. Murphy, M.D. was a radiation oncologist and professor at the University of California, San Diego (the University). He developed a procedure called personalizing repetitive transcranial magnetic stimulation (PrTMS) for the treatment of psychological and cognitive symptoms. Murphy used PrTMS to treat one of his cancer patients, Charles Kreutzkamp. Kreutzkamp was so encouraged by the results that he promised Murphy he would donate $10 million after his death for the purpose of funding Murphy’s clinical studies of PrTMS.

Kreutzkamp made good on his promise and established a trust, donating $10 million to the University’s cancer center. Upon learning of the University’s plan to allocate the donation to the cancer center generally, Murphy challenged the decision as a misuse of donor funds, successfully pressing University officials to honor Kreutzkamp’s intent and allocate the money to Murphy’s PrTMS research. Unhappy with this result, the University retaliated against Murphy in various ways over the next several years, culminating in the University’s decision not to renew his employment contract.

In actions that were later consolidated, the Regents of the University of California (the Regents) sued Murphy for breaching his duty of loyalty, and Murphy sued the Regents for violating the California Whistleblower Protection Act (CWPA) (Gov. Code, § 8547 et seq.). At trial, the jury found in the Regents’ favor on their claim of breach of duty of loyalty, awarding

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$67,131 in damages. At the same time, the jury found in Murphy’s favor on his CWPA claim and awarded him over $9.6 million in past and future economic damages and $30 million in past and future noneconomic damages.

The Regents appeal the judgment and postjudgment order on attorney’s fees and costs. They argue that Murphy’s CWPA claim fails as a matter of law, Murphy cannot recover damages based on his CWPA claim because it is premised on the Regents’ privileged communication, the trial court erred by excluding evidence, it committed instructional error, and it abused its discretion in awarding enhanced attorney’s fees. We find none of these arguments persuasive.

More concerning is the Regents’ contention that the damages are excessive. In particular, the jury awarded past noneconomic damages that were more than six times what Murphy himself requested. While the amount of damages sought by a plaintiff does not create a cap on what a jury can award, it does signal a need for the court—both trial and appellate—to scrutinize the record for evidence that would justify such an enhanced award, as well as any indication that the jury might have been motivated by passion and prejudice. Here, giving Murphy the benefit of every reasonable inference the jury could have drawn, we cannot find a basis for an award of $20 million in past noneconomic damages. Accordingly, we will affirm the judgment conditioned on Murphy accepting a $12 million reduction of the total damage award. If he chooses to reject that reduction, we will order a new trial on the issue of noneconomic damages.

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FACTUAL AND PROCEDURAL BACKGROUND

A. Murphy’s Work at the University and Development of PrTMS

In 2005, the University hired Murphy, a board certified radiation oncologist, as a clinical professor. He maintained his employment with the University for some 15 years, ultimately holding the positions of vice chair and director of business development and strategy for the department of radiology. During that time, he was instrumental in starting various practices and programs.

Through his treatment of his son for symptoms related to autism, Murphy developed a personal interest in the use of transcranial magnetic stimulation (TMS) for patients with psychological and brain disorders. This interest resulted in his development of PrTMS for the treatment of conditions such as autism, cerebral palsy, addiction, posttraumatic stress disorder, and traumatic brain injuries.

B. Kreutzkamp’s Donation and Murphy’s Challenge to Its Allocation

Murphy treated Kreutzkamp for cancer in 2015. Kreutzkamp’s chemotherapy treatment caused impairments in his ability to ambulate and focus, for which Murphy treated him with PrTMS. Kreutzkamp was so encouraged by the results of the PrTMS in himself and other patients that he donated $50,000 to allow Murphy to keep administering the treatment. Kreutzkamp then told Murphy he intended to donate $10 million to fund Murphy’s clinical studies of the treatment.

Kreutzkamp established a trust to donate the $10 million, but the language of the trust stated only that the donation was to be distributed “to the UC San Diego Foundation … to be used for cancer research.” Kreutzkamp passed away at the end of 2015.

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In March 2016, Murphy’s department chair, AJ Mundt, M.D., informed him the University would allocate Kreutzkamp’s donation to the University’s cancer center generally, rather than allocating it specifically to Murphy’s research. Mundt asked Murphy to keep the allocation secret. Murphy thought this was “the wrong use of donor funds” and told Mundt such an allocation would not comply with Kreutzkamp’s intent for the donation. At that time, Murphy understood University policy to require adherence to a donor’s intent.

After speaking with Mundt, Murphy took his concerns to Scott Lippman, M.D., the director of the cancer center. Mundt was upset with Murphy for raising his concerns to Lippman. When Lippman confirmed that the donation would be allocated to the cancer center, Murphy informed him it was Kreutzkamp’s intent for the funds to be allocated to Murphy for his PrTMS research.

Murphy then discussed the matter with Kreutzkamp’s widow, Ernestina Kreutzkamp. With the assistance of her lawyer and Murphy, Ernestina authored a letter to the University explaining it was Kreutzkamp’s intent that the $10 million donation be allocated to Murphy for his clinical studies of PrTMS. She also informed University officials of Kreutzkamp’s intent at an in-person meeting. Meanwhile, Murphy informed various people within the cancer center that Kreutzkamp’s intent was for the donation to fund Murphy’s research.

In June 2016, the University agreed to allocate Kreutzkamp’s donation to Murphy for his PrTMS clinical studies. Lippman was “irate” and “angry” that the donation would not be allocated to his own research. He repeatedly told a University official involved in the allocation decision that she needed to “make it right.” He then contacted various University officials attempting to

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get the money reallocated to the cancer center. These efforts failed and by the end of November 2016 the University finalized its allocation of the donation to Murphy for his PrTMS clinical studies.

C. Murphy’s Clinical Studies and Private Practice

Meanwhile, Murphy created a private practice through which he administered PrTMS treatment to patients. He also started a software development company to create technology that would support PrTMS treatment.

After multiple delays in the University’s release of resources for his clinical studies, Murphy signed a Facility Use Agreement in March 2018 to lease space from the University for both his clinical studies and his private practice. Murphy then used funds from the Kreutzkamp donation to hire personnel for his clinical studies, as well as to buy equipment and furnishings. Some University-owned equipment ended up at outside facilities where Murphy was conducting private business. And multiple people paid by the University performed work both for the University and Murphy’s private businesses.

Murphy believed he obtained the proper authorization to conduct his private practice, so as to not violate a University policy forbidding its doctors from the unauthorized private practice of medicine for profit. He also thought he was in compliance with a University policy requiring its doctors to remit outside income above a certain threshold of their University salary. In addition, he claimed to have obtained authorization to exchange equipment he privately owned for University equipment that he had sent to off-sight locations for his personal endeavors.

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D. Retaliation and Subsequent Complaints

After Murphy complained about the University’s intent to allocate the Kreutzkamp donation to the cancer center as a whole, Mundt told Lippman that Murphy was “crazy,” he had “been a real challenge in [Mundt]’s department,” and Mundt intended to remove him. Mundt then stopped speaking to Murphy, began excluding him from meetings, and removed him from committee assignments.

In December 2017, the University conducted a performance review of Murphy and faulted him for not spending enough time teaching or participating in committees, even though Mundt controlled Murphy’s access to teaching opportunities and had removed him from committees. As a result of this review, the University denied Murphy a promotion for the first time.

When Murphy signed the Facility Use Agreement in March 2018 to lease space from the University, it included an inventory list that was dated January 2018. The inventory list detailed the University’s equipment allocated to Murphy for his clinical studies. But, after Murphy and the University executed the Facility Use Agreement, University personnel replaced the January 2018 inventory list with a list dated April 2018. The two lists reflected different pieces of equipment in some instances, giving the impression that University equipment allocated to Murphy was missing.

University officials testified at trial that everyone knew they would be updating the inventory list after confirming what equipment to include, and the list would be an evolving document as they found and/or replaced equipment. However, the University employee who prepared the April 2018 inventory list knew it was “fake,” as it contained false information, although she testified at trial that Murphy directed her to enter the false information on the list. Later, an unknown individual removed the original January 2018

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inventory list from the University’s files without permission, prompting a police report regarding the missing document.

In May 2018, an anonymous source reported Murphy for misappropriating University resources. This report caused the University to halt Murphy’s research activity and conduct an internal investigation. Investigators knew multiple versions of the inventory list existed, but did not pursue this discrepancy as part of their investigation into whether Murphy misappropriated University property, instead relying on their own assessment of what equipment the University allocated to Murphy. In addition, investigators only looked for the equipment allocated to Murphy at a single campus location, despite his use of multiple locations for his research. Notably, during this investigation, Mundt’s business officer told an investigator that “ ‘Dr. Mundt would like to move forward with putting Dr. K. Murphy under a[] [parttime] contract. … that will make it easier for them to manage later and possibly terminate the contract if needed.’ ”

While the internal investigation proceeded, the University delayed Murphy’s salary bonus, apparently due to confusion over the required paperwork. The University also removed Murphy’s information from the department’s website.

In late 2018, Murphy made two complaints that University officials were retaliating against him for challenging the allocation of the Kreutzkamp donation. Mundt and the University’s chief compliance officer, Dan Weissburg, told Murphy to stop complaining. Several months later, Murphy filed a complaint against Mundt and Weissburg for urging him to cease his complaints.

University officials, including Mundt, then advised Murphy his private endeavors had resulted in conflicts of commitment and interest that violated

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University policies. They suggested that transitioning to a parttime position with the University could resolve these conflicts and allow his research to proceed. Alternatively, if Murphy severed his employment relationship with the University, he would no longer be able to use the funds from the Kreutzkamp donation for his research. Murphy agreed to a parttime position mainly so he could continue his clinical studies.

Around this time, investigators completed a draft report of their internal investigation. The draft report stated that Murphy had improper conflicts of interest and commitment, had not obtained the proper authorization for his private business endeavors, and had misused University resources based on the discovery of University equipment at out-of-state businesses related to Murphy’s personal endeavors.1 Before the investigators issued their final report, Murphy filed a complaint alleging the University initiated the investigation because of his efforts to stop the allocation of Kreutzkamp’s donation to the cancer center.

Sometime around the end of 2018 or beginning of 2019, the University of California Office of the President retained the law firm of Boies Schiller Flexner LLP (Boies Schiller) to conduct an external investigation of Murphy. Boies Schiller did not attempt to compile its own list of University equipment that should have been in Murphy’s possession, instead relying on the information provided by the University. When he was interviewed during the Boies Schiller investigation, Murphy admitted, among other things, that he

1 Murphy sold at least one piece of University equipment to an outside business with which he was partnered. He justified this to a University official by explaining he believed he obtained authorization to exchange his privately-owned equipment for University equipment he sent to off-sight locations.

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had used University equipment for his private business and there had been “mistakes made.”

Murphy transitioned to a parttime contract in July 2019. Murphy’s colleagues complained that Murphy’s parttime schedule negatively impacted patient care and was not permanently sustainable.

Early in 2020, Boies Schiller issued its report on the investigation. The report found that Murphy violated a number of University policies through his PrTMS work, including policies against conflicts, outside patient care, and improper use of University resources. It identified 28 items of University equipment, worth $158,005, that was missing.

Around the time Boies Schiller issued its report, a local news outlet called inewsource published two articles about Murphy and his use of PrTMS. One article detailed Murphy’s treatment of a military veteran for posttraumatic stress disorder and a traumatic brain injury. The article stated that Murphy embellished the success of his PrTMS and detailed the veteran’s claims that the treatment caused him to suffer a psychotic break. The article also references the University’s investigation into Murphy’s potential policy violations. The other article implies that Murphy squandered the funds from the Kreutzkamp donation, portrays him as an untruthful individual who used the Kreutzkamp donation for personal profit, and details the University’s investigation of him.

In March 2020, Murphy filed another complaint accusing University personnel of retaliating against him for blowing the whistle on the misallocation of the Kreutzkamp donation.

In June 2020, Mundt informed Murphy that the University declined to renew his employment contract. Mundt testified at trial he decided not to extend Murphy’s contract because the University “no longer needed a part-

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time person.” The nonrenewal of his contract prompted Murphy to file yet another complaint, alleging continued retaliation.

The month after Murphy learned the University would not renew his contract, the University released to inewsource a summary of Boies Schiller’s findings against Murphy. Included in the list of findings communicated to inewsource was that Boies Schiller identified 28 items of University property allocated to Murphy that were missing, for a total of $158,005 worth of missing property.

Following this communication, inewsource published a third article detailing the University’s investigation into Murphy, explaining he had “violated a litany of university policies,” and stating that the Boies Schiller report “found 28 items [identified on an inventory list of equipment] were missing for a total of $158,005.” Murphy then filed another complaint, alleging that the University retaliated against him by releasing the Boies Schiller findings to inewsource.

E. Subsequent Audits of Allocated Equipment

During the summer of 2020, the University conducted two audits of equipment allocated to Murphy. Unlike the 2018 internal investigation, these audits found that all the equipment was accounted for, with “just a couple small items” not found.

F. Litigation

In September 2020, the Regents commenced this action by filing a complaint against Murphy for breach of duty of loyalty, among other causes of action. The next day, Murphy filed a complaint against the Regents for

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violating the CWPA.2 At a consolidated jury trial, Murphy argued he blew the whistle on the University’s misuse of donor funds and the University retaliated against him by denying him promotions, declining to renew his employment contract, and releasing the findings of the Boies Schiller report to inewsource. The Regents contended that Murphy breached his duty of loyalty as a University employee by earning income for unauthorized outside endeavors and misusing University resources.

The jury found in the Regents’ favor on their claim that Murphy breached his duty of loyalty and awarded it $67,131 in damages, representing a portion of Murphy’s earnings from outside professional activities. The jury did not award any damages to the Regents for University equipment Murphy allegedly misappropriated. The jury further found in Murphy’s favor on his CWPA claim and awarded him a total of over $39 million in economic and noneconomic damages.

After trial, the Regents filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for new trial. The trial court heard argument on both motions, denying them by minute order without analysis. The court later granted Murphy’s motion for attorney’s fees, awarding $2,921,370 in fees and $210,233.46 in costs.

2 The Regents also pled causes of action for breach of fiduciary duty, constructive fraud, intentional misrepresentation, concealment, a violation of the False Claims Act (Gov. Code, § 12650 et seq.), conversion, unjust enrichment, violation of University policies, and accounting. And, in addition to his CWPA claim, Murphy originally pled a cause of action for retaliation under Labor Code section 1102.5. Before the jury at trial were the Regents’ causes of action for breach of duty of loyalty, violation of the False Claims Act, and conversion, and Murphy’s CWPA claim.

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DISCUSSION

A. California Whistleblower Protection Act (Gov. Code, § 8547 et seq.)

The Regents argue that Murphy’s CWPA claim fails as a matter of law because his whistleblower complaint regarding the allocation of the Kreutzkamp’s donation did not report the requisite “improper governmental activity,” as that term is defined by the CWPA. They raised this same argument in their JNOV motion, where the trial court implicitly rejected it. We are likewise unpersuaded.

1. Standard of Review

“On appeal from the denial of a JNOV motion, an appellate court must review the record de novo and make an independent determination whether there is any substantial evidence to support the jury’s findings. [Citations.] This review is limited to determining whether there is any substantial evidence to support the jury’s verdict. [Citation.] The court must accept as true the evidence supporting the verdict, disregard conflicting evidence, and indulge every legitimate inference to support the verdict. [Citation.] If sufficient evidence supports the verdict, a reviewing court must uphold the court’s denial of the JNOV motion. [Citation.] If the appellant raises purely legal questions, we conduct a de novo review.” (Hirst v. City of Oceanside (2015) 236 Cal.App.4th 774, 782.)

2. The CWPA

The CWPA prohibits retaliation against state employees who “report waste, fraud, abuse of authority, violation of law, or threat to public health.”

(Gov. Code,3 § 8547.1.) Section 8547.10 applies the CWPA to University

3 Subsequent undesignated references are to the Government Code.

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employees. Under this section, “any person who intentionally engages in acts of reprisal [or] retaliation … against a university employee, including an officer or faculty member … for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” (§ 8547.10, subd. (c).)

The CWPA defines a protected disclosure as “ ‘a good faith communication … [that] discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity, or (2) a condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.’ ” (Levi v. Regents of University of California (2017) 15 Cal.App.5th 892, 902 (Levi); § 8547.2, subd. (e)(1).) “ ‘[I]mproper governmental activity’ ” is defined to include “an activity by a state agency or by an employee” which “is in violation of any state or federal law or regulation.” (§ 8547.2, subd. (c)(1)(A).)

Under certain circumstances, a university policy can have the force and effect of state law so that its violation will constitute unlawful government activity for purposes of the CWPA. To do so, the policy must not relate merely to an internal personnel or administrative matter and must “serve the public’s interest” by “correspond[ing] to a more general policy reflected in state statutes applicable to other state entities.” (Levi, supra, 15 Cal.App.5th at 903; see id. at p. 905.) As we stated in Levi, “[e]xposing … misuse of funds … at a public agency [is a] matter[] of significant public concern that go[es] well beyond the scope of a similar problem at a purely private institution.” (Id. at p. 905.) Such a disclosure, we explained, would “implicate[] [a] polic[y] that ha[s] the force and effect of [a] statute[].”

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(Id. at p. 904.) We confirmed that “[s]tate employees should be free to report violations of [such] policies without fear of retribution.” (Id. at p. 905.)

3. Analysis

The disclosure at issue here is Murphy’s report that University employees planned to allocate Kreutzkamp’s donation contrary to the donor’s intent, which violated the University Policy and Procedure Manual (UC) policy 410-20. The purpose of UC policy 410-20 is “[t]o provide campus guidelines for the administration of gift funds when a donor to the University is no longer living … , and has not provided all necessary information for the administration of a gift … . It states that “[g]ifts and bequests are allocated … consistent with the legal and fiduciary responsibility to fulfill the donor terms of the gift and bequest[,] … demonstrate[ing] the utmost respect for the interests of the donor,” and “[t]he role of the benefitting unit, division, or area of the campus is to ensure the donor intent for the gift or bequest is carried out.” In a nutshell, UC policy 410-20 prohibits the misuse of donated funds by allocating them inconsistently with the donor’s intent.

By reporting the University’s misallocation of donor funds in violation of UC policy 410-20, Murphy may have disclosed an actual violation of a University policy that had the force and effect of state law. (Levi, supra, 15 Cal.App.5th at pp. 904–905.) But the parties dispute whether the University policy at issue here is sufficient to have the force of state law because they disagree on whether the policy requiring adherence to donor intent implicates a public interest that is unique to a public institution. We need not resolve this dispute here, as Murphy did not need to disclose actual improper government activity to be entitled to protection under the CWPA.

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In Contreras v. Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251 (Contreras), we confronted a case involving California’s general whistleblower statute, Labor Code section 1102.5, subdivision (b). There, Contreras reported what he believed to be his employer’s violation of the Equal Pay Act (EPA) (Lab. Code, §1197.5). (Contreras, at pp. 1256–1257.) But Contreras was mistaken; his employer had not violated the EPA. (Id. at p. 1258.) In determining whether Contreras nevertheless was entitled to whistleblower protection, we explained that the relevant provision was applicable “ ‘where the disclosing employee “has reasonable cause to believe that the information discloses a [legal] violation” ’ ” and, thus, “ ‘the relevant inquiry is not whether the conduct [disclosed] “actually violated” any specific statute or regulation, but whether the plaintiff “reasonably believed that there was a violation.” ’ ” (Id. at p. 1259; see id. at p. 1260; Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 854 (Mize- Kurzman) [“Disclosures of a[n] [action] that the employee reasonably believes violates a statute or regulation are protected disclosures, whether or not the existence of an actual violation or the wisdom of the [action] are debatable” (italics omitted)].)

We found Contreras disclosed what he believed to be a legal violation and there existed “ ‘ “some legal foundation for his suspicion.” ’ ” (Contreras, supra, 116 Cal.App.5th at p. 1260.) And because he was required to maintain only reasonable cause to believe the law had been violated, rather than proving an actual violation, he was entitled to whistleblower protection where the evidence supported a finding as to the reasonable cause requirement. (Id. at pp. 1261–1263.) We explained that such a result was consistent with the purpose of the whistleblower statute, “which is to ‘ “encourage[e] workplace whistle-blowers to report unlawful acts without

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fearing retaliation.” ’ ” (Id. at p. 1261.) A contrary finding, we reasoned, “would deprive employees of the statute’s protection simply because the workers have no legal training and lack the expertise to properly interpret a statute. Such employees would be reluctant to report suspected violations for fear they misunderstood the law.” (Ibid.)

As we have stated, the CWPA defines a protected disclosure to include “a good faith communication … that discloses or demonstrates an intention to disclose information that may evidence” improper governmental activity. (§ 8547.2, subd. (e)(1).) We so no reason to distinguish between the language of Labor Code section 1102.5, subdivision (b) requiring reasonable cause to believe a legal violation has occurred and the CWPA’s requirement that the disclosure by made in good faith and report information that may evidence improper governmental activity.

Notably, the trial court instructed the jury here in accordance with this precedent, informing the jurors that to prove his CWPA claim Murphy had to show he made the disclosure in good faith and the disclosure reported suspected improper governmental activity. And the evidence presented at trial supports a finding that Murphy reasonably believed he was disclosing a violation of the law based on UC policy 410-20 and the policy provided some legal foundation for his suspicion. Murphy informed Mundt that allocation of the donation to the cancer center was “the wrong use of donor funds” and would not comply with Kreutzkamp’s intent for the donation. Similarly, he informed Lippman it was Kreutzkamp’s intent for the funds to be allocated to Murphy for his PrTMS research. When he raised his concerns, Murphy understood University policy to require adherence to a donor’s intent and even the University’s chief ethics and compliance officer believed UC policy 410-20 entitled Murphy to whistleblower protection.

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Where the parties disagree as to whether UC policy 410-20 had the force and effect of state law as to entitle Murphy to whistleblower protection, it would be unreasonable to expect Murphy to have accurately assessed this complex legal issue before he could be entitled to whistleblower protection. We find he was protected under the CWPA even if he was mistaken as to whether he reported improper government activity. (See Contreras, supra, 116 Cal.App.5th at pp. 1261–1263; Mize-Kurzman, supra, 202 Cal.App.4th at p. 854.)4

B. The First Amendment and the Fair Reporting Privilege

1. Additional Background

Murphy alleged that the Regents retaliated against him in several different ways for filing a whistleblower complaint, including by authorizing the release of knowingly false information to inewsource about Murphy’s alleged misappropriation of University equipment. After trial, the Regents argued for the first time that it had a defense to Murphy’s CWPA claim based on privilege. Specifically, in its motion for new trial, the Regents argued they could not be held liable for Murphy’s CWPA claim because it was based on its communication to inewsource, which was privileged under both the First Amendment and the fair reporting privilege.

At the hearing on the motion for new trial, the Regents maintained that privilege was not an affirmative defense but, instead, imposed on Murphy the burden to prove additional elements of his cause of action. As to the First Amendment, the Regents argued that Murphy was a limitedpurpose public figure and, thus, he was required to prove the Regents acted

4 Because we find Murphy’s CWPA claim was supported on this basis, we do not address the Regents’ arguments regarding alternative bases to support Murphy’s claim.

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with actual malice when communicating with inewsource. As for the fair reporting privilege, the Regents asserted they could not be liable for a claim based on the accurate disclosure of information to the media.

Murphy responded that he never took the position he was a limitedpurpose public figure for purposes of the First Amendment, and privilege was an affirmative defense the Regents had a duty to raise before trial. The trial court was skeptical of the Regents’ tardy invocation of privilege, suggesting they should have raised the issue earlier in a motion for nonsuit or directed verdict. Ultimately, the court denied the Regents’ motion for new trial without further explanation.

2. Analysis

The Regents now challenge the trial court’s failure to grant the motion for new trial, asserting that the conduct on which Murphy’s whistleblower complaint was based is constitutionally protected and/or subject to a statutory privilege. We generally review the denial of a motion for new trial for abuse of discretion, “with the appellate court making an independent determination as to whether any error was prejudicial.’ ” (Higginson v. Kia Motors America, Inc. (2026) 118 Cal.App.5th 732, 756.)

a. First Amendment

When a private individual brings a defamation claim based on an allegedly false statement about a private matter, the First Amendment protects the defendant from liability unless the plaintiff proves the defendant was at least negligent as to the truth of the statement. (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 273–274.) Where the plaintiff is a public figure, or where the allegedly false statement is about a matter of public concern, the plaintiff is held to a higher burden and required to show

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by clear and convincing evidence that the defendant made the allegedly false statement with actual malice, i.e., with knowledge of, or reckless disregard for, the statement’s falsity. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 721–722.) This actual malice standard applies equally to a “limited purpose public figure”— an otherwise private plaintiff “who ‘ “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” ’ ” (Balla v. Hall (2021) 59 Cal.App.5th 652, 676.) Whether a plaintiff is a public figure is a question of law for the trial court. (Khawar, at p. 264.) Although the First Amendment privilege historically has been applied to claims of defamation, “First Amendment limitations are applicable to all claims, of whatever label, whose gravamen is the alleged injurious falsehood of a statement.” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1044–1045.)

The parties do not appear to dispute that these requirements apply where the First Amendment privilege has been put in play. What we must decide, then, is which party had the duty to invoke the First Amendment and when.

The First Amendment privilege is an affirmative defense. (See No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1028–1029, fn. 4; Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 376; Maher v. Devlin (1928) 203 Cal. 270, 275.) And a defendant generally forfeits an affirmative defense by failing to raise it in a demurrer or answer to the complaint. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807 (Quigley); Green v. Healthcare Services, Inc. (2021) 68 Cal.App.5th 407, 415–416 (Green); Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 538; see Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 435–

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436.) An exception to this rule allows for a defendant to raise an affirmative defense based on privilege as late as a summary judgment motion, but only “so long as the opposing party has adequate notice and opportunity to respond.” (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367; see id. at p. 368.)

Under this authority, the Regents were required to invoke the First Amendment privilege as an affirmative defense. And, even if we could find that the First Amendment privilege was apparent from the face of the complaint or that Murphy had notice of the defense and an opportunity to respond, the Regents had a duty to invoke this affirmative defense no later than the summary judgment stage. The Regents have not presented any authority or precedent to support a contrary conclusion. In fact, it has not cited a single case in which a defendant invoked the First Amendment privilege after trial, let alone a case in which a court held such a tardy invocation was permitted.

Instead, the Regents argue Murphy failed to carry his burden of obtaining a finding as to each essential element of his CWPA cause of action, including a showing of malice or negligent falsity to overcome the claim of Regents’ First Amendment privilege. But Murphy would have had no occasion to prove these additional elements until the Regents put him on notice that they were invoking this affirmative defense. (See Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 657–660 [plaintiff not

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required to plead lack of justification as an element of cause of action].)5 And the Regents could not raise by new trial motion an issue of law that they could have, but neglected to, raise at an earlier time. (See In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155 [“[I]t is now well established that there is ‘no provision for a new trial on account of mistake of law of a party or his attorney.’ ” “ ‘There have been times no doubt in the experience of every lawyer when he would have liked to have been relieved of a situation brought about by his failure to do the proper thing at the proper time. But after judgment it is too late for relief on such ground’ ”].)

Because the First Amendment privilege is an affirmative defense that a defendant must raise before trial, we conclude the Regents forfeited this defense by failing to timely raise it in the trial court.

b. Fair Reporting Privilege

Under Civil Code section 47, a statement is privileged where it is made “[b]y a fair and true report in, or a communication to, a public journal, of … [a] public official proceeding … .” (Id., subd. (d)(1).) As with the First Amendment privilege, the fair reporting privilege is an affirmative defense that a defendant must raise before trial to avoid forfeiture. (Quigley, supra, 7 Cal.5th at p. 807; Green, supra, 68 Cal.App.5th at pp. 415–416; Osborne v. Pleasanton Automotive Co., LP (2024) 106 Cal. App. 5th 361, 386 & fn. 11.) Because the Regents did not invoke the fair reporting privilege until after trial, they forfeited this affirmative defense.

5 We note that, had the Regents timely put Murphy on notice of its intent to invoke the affirmative defense of First Amendment privilege, Murphy could have amended his complaint to exclude the allegations regarding the Regents’ communication to inewsource. Murphy’s CWPA claim was premised on multiple alleged acts of retaliation. His allegation regarding the inewsource communication was but one.

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The Regents attempt to get around this forfeiture by arguing Murphy suffered no prejudice from the Regents’ belated invocation of the fair reporting privilege, as the Regents raised this issue in their motion for new trial, Murphy was able to oppose the new trial motion, and Murphy has been able to respond to the Regents’ argument again on appeal. But the Regents fail to acknowledge the prejudice to Murphy from being forced to proceed with a jury trial without any notice that the Regents would raise an affirmative defense of privilege after it was too late for Murphy to amend his complaint or present additional evidence at trial. (See Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222 [“We think it would be grossly unfair to allow a defendant to ignore [a] potential procedural defense at a time when facts and memories were fresh and put a plaintiff to the time and expense of a full trial, knowing it could assert the [the procedural defense] if it received an adverse jury verdict”].) To the extent the Regents acknowledge any potential prejudice, they dismiss as speculative Murphy’s argument that he might have sought a special verdict form asking the jury to make findings on the issues material to the fair reporting privilege. But had the Regents provided Murphy notice before trial that they intended to rely on the fair reporting privilege, he could have litigated the trial differently and the need for a special verdict form would not have been left to speculation.

Lastly, the Regents argue we may still consider its appellate claim regarding the fair reporting privilege because it raises purely a question of law involving no disputed facts. An appellate court can consider on appeal an argument that was not raised in the trial court if it raises purely “a question of law that can be decided ‘from facts which not only are uncontroverted in the record, but which could not be altered by the presentation of additional evidence.’ ” (FCM Investments, LLC v. Grove Pham, LLC (2023) 96

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Cal.App.5th 545, 553.) Courts have found, however, that a defendant cannot rely on an affirmative defense on appeal where it failed to raise the defense before trial. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1065–1066 [where defendant neither raised defense nor requested jury instructions at trial, defense “may not be raised for the first time on appeal”]; Bardis v. Oates (2004) 119 Cal.App.4th 1, 13, fn. 6 [“New theories of defense … may not be asserted for the first time on appeal”].)

C. Exclusion of Investigation Report

A trial court may, in its discretion, exclude otherwise admissible evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “ ‘ “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” ... ‘In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.) “ ‘A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [of discretion] [citation] and will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Alliance San Diego v. California Taxpayers Action Network (2025) 114 Cal.App.5th 1121, 1151.)

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At trial, Murphy moved to exclude the Boies Schiller report because, among other things, the Regents asserted that many of the report’s contents were covered by attorney-client privilege, the report could not be properly relied on by the Regents’ experts, it was more prejudicial than probative, and the Regents could admit the relevant information from the report through witness testimony. The trial court admitted into evidence the report’s conclusions, and ruled that the parties could question relevant witnesses about the contents of the report and “the actions taken by … anyone … at the Boies firm regarding the investigations.” But the court excluded the actual report from evidence based on a finding it was more prejudicial than probative under Evidence Code section 352, and further prohibited the parties from questioning witnesses about “the appropriateness of the investigation or conclusions that [were] reached personally outside the conclusions reached or set forth in the … report.”

On appeal, the Regents argue that the trial court abused its discretion in excluding the actual report because its probative value outweighed its potential prejudicial impact. It argues the report had significant probative value because its “conclusions” that Murphy violated University policies showed that the University’s investigation of Murphy was legitimate and unbiased, thus disproving Murphy’s claim of retaliation. It further argues that the report’s “findings,” which were “meticulously documented,” refuted Murphy’s claim of bias and would have allowed the jury to “evaluate Dr. Murphy’s accusations of bias, unfairness, or retaliation in the investigation.” The Regents contend admission of the report would not have resulted in prejudice because “nothing about [the report] would have inflamed the jury’s passions or evoked an emotional bias” and its admission would not have “resulted in confusion or time-wasting.”

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The Regents do not point to any specific portion of the report that was critical to their defense, other than highlighting its “conclusions,” “findings,” and “meticulous[] document[ation].” But the trial court admitted evidence of the report’s conclusions and findings, and the parties were free to elicit witness testimony regarding other contents of the report to demonstrate the meticulousness of the investigation. The Regents have not explained why the report itself was not merely cumulative of this other evidence, nor have they offered any basis on which we could find the permitted evidence was insufficient to establish that the investigation was legitimate, unbiased, and not conducted with a retaliatory intent. (See People v. Gurule (2002) 28 Cal.4th 557, 625 [fact that evidence is cumulative is a relevant factor in deciding whether its probative value outweighs the potential for prejudice under Evidence Code section 352].)

In addition, the Regents fail to account for the fact that the report is more than 50 pages long and is rife with the investigators’ beliefs that Murphy and others engaged in various types of wrongdoing, and conclusions that went to the heart of the issues to be decided by the jury here. Had the trial court admitted the full report, the parties might have spent considerable time eliciting witness testimony about each detail of the dense report. In addition, the jury might have been confused as to what weight to afford the investigators’ conclusions, or it might have afforded those findings undue weight. (See Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 123 [trial court abused its discretion under section 352 where it admitted evidence that “was largely used to predetermine the case and confuse the jury”].)

To the extent there was some hypothetical probative value in the general thoroughness of the report that could not have been explored through

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witness testimony, it could be viewed as minimal and outweighed by the potential for prejudice. Thus, the trial court’s exclusion of the report was not arbitrary, capricious, or patently absurd as to amount to an abuse of discretion.

D. Instructional Error

“ ‘A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him [or her] which is supported by substantial evidence.’ ” (Haytasingh v. City of San Diego (2021) 66 Cal.App.5th 429, 457 (Haytasingh).) “ ‘[I]t is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition [Citation.]’ Finally, ‘[e]rror cannot be predicated on the trial court’s refusal to give a requested instruction if the subject matter is substantially covered by the instructions given.’ ” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217 (Major).)

“ ‘The propriety of jury instructions is a question of law that we review de novo.’ [Citation.] When the contention on appeal is that the trial court failed to give a requested instruction, we review the record in the light most favorable to the party proposing the instruction to determine whether the instruction was warranted by substantial evidence.’ ” (Haytasingh, supra, 66 Cal.App.5th at p. 457.) “[R]eversal is appropriate where it is reasonably probable that the party complaining of the instructional error would have obtained a more favorable result in its absence.” (Ibid.)

With respect to the Regents’ claim against Murphy for breach of duty of loyalty, the trial court instructed the jury, in relevant part, that the Regents

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could “[r]ecover[] [only once] … Dr. Murphy’s University compensation for any period during which he breached his duty of loyalty to [t]he Regents.” The court also provided the jury a special verdict form that required it to determine the amount of damages the Regents were due for Murphy’s breach. As relevant here, the special verdict form included a line on which the jury could set damages for “[t]he value of Dr. Murphy’s UC San Diego compensation for the period during which he breached his duty of loyalty to [t]he Regents.”

In addition to the instruction and the special verdict form issued to the jury, the Regents requested a special instruction informing the jury, in relevant part, that Murphy was “specifically subject to disgorgement of his entire salary, benefits, and bonuses for the entire period of his breach.” Murphy’s counsel argued the Regents were “trying to create a special [instruction] that says you have to award disgorgement.” Murphy’s argument “resonate[d]” with the court. The court then noted that the special verdict form prompted the jury to consider disgorgement when setting damages for breach of duty of loyalty and counsel could further argue disgorgement was warranted during closing arguments. It suggested that the requested instruction would improperly highlight the issue of disgorgement by including a specific instruction on the availability of that remedy. The court indicated it would reserve ruling on the requested instruction but then omitted the instruction without further discussion of the Regents’ request.

After returning a verdict in the Regents’ favor on its claim for breach of duty of loyalty, the jury set “[t]he value of Dr. Murphy’s UC San Diego compensation for the period during which he breached his duty of loyalty to [t]he Regents” at $0.

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On this record, we find the trial court properly rejected the requested instruction because it was duplicative of another instruction and the special verdict form on breach of duty of loyalty and, thus, would have improperly overemphasized the Regents’ demand for disgorgement. (Major, supra, 169 Cal.App.4th at p. 1217.)

And even if the court erred by refusing the instruction, for similar reasons the Regents cannot show it is reasonably probable they would have obtained a more favorable result had the court issued the requested instruction. Again, the jury was informed through the instruction on damages and the special verdict form that disgorgement was an available remedy. In addition, counsel argued during closing that they were entitled to recover all of Murphy’s University compensation for the time he breached his duty of loyalty. Nevertheless, the jury did not award any damages to the Regents based on Murphy’s University compensation. There is no basis on which we could find the jury would have rendered a different verdict had it received an additional instruction that disgorgement was an available remedy.

E. Excessive Damages

1. Standard of Review

“The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses … . As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is

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so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507 (Seffert); Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299 (Bigler-Engler).) Stated differently, an appellate court can reverse a compensatory damages award as excessive only if, viewing the evidence in the light most favorable to the judgment, the court concludes “the award is so grossly disproportionate to the harm suffered as to raise the presumption that it resulted from passion or prejudice.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 419.)

Whether the amount of an award of noneconomic damages is appropriate in a particular case “must be determined from its own peculiar facts and circumstances [citation] and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is ordinarily allowed in such cases.” (Daggett v. Atchison, T. & S.F.R. Co. (1957) 48 Cal.2d 655, 666.) “ ‘In making this assessment, the court may consider, in addition to the amount of the award, indications in the record that the fact finder was influenced by improper considerations. [Citation.] The relevant considerations include inflammatory evidence, misleading jury instructions, improper argument by counsel, or other misconduct.’ ” (Bigler- Engler, supra, 7 Cal.App.5th at p. 299.)

Ultimately, determining the amount a plaintiff is to be awarded to compensate for pain and suffering is “ ‘ “[o]ne of the most difficult tasks imposed upon a jury … . No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. [Citation.] In a very real sense, the jury is asked to evaluate in terms of money a determent for which monetary compensation cannot be ascertained with any demonstrable accuracy.” ’ ” (Bigler-Engler,

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supra, 7 Cal.App.5th at p. 300.) “The duty of an appellate court is to uphold the jury and trial judge whenever possible. [Citation.] The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion’.” (Seffert, supra, 56 Cal.2d at p. 508.) “ ‘ “The question is not what this court would have awarded as the trier of fact, but whether this court can say that the award is so high as to suggest passion or prejudice.” ’ ” (Bigler- Engler, at p. 299.) But “ ‘[w]hen the award, as a matter of law appears excessive, or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.’ ” (Cunningham v. Simpson (1969) 1 Cal.3d 301, 308–309 (Cunningham).)

“We review the jury’s damages award for substantial evidence, giving due deference to the jury’s verdict and the trial court’s denial of the new trial motion.” (Bigler-Engler, supra, 7 Cal.App.5th at p. 300.) “ ‘In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent’s favor, and must give him the benefit of every inference reasonably to be drawn from the record.’ ” (Ibid.)

2. Additional Background

During closing arguments, Murphy’s counsel urged the jury to find in Murphy’s favor on the CWPA claim and award him economic and noneconomic damages. Counsel suggested the jury might set the damages as follows: (1) monetary damages for Murphy’s lost past and future income in an amount between $9 million and $9.6 million—calculated by multiplying the number of Murphy’s expected working years by his expected annual earnings; (2) past noneconomic damages for his emotional distress during

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the seven years preceding trial in the amount of $3.2 million—calculated by taking one-third of the proposed economic damages for an average of $450,000 per year; and (3) an unspecified amount of future noneconomic damages calculated at the same annual rate as the past noneconomic damages, i.e. $450,000 per year, for the rest of Murphy’s life.6 Upon returning a verdict in Murphy’s favor on the CWPA claim, the jury awarded him past economic damages in the amount of $1,459,394 and future economic damages in the amount of $8,169,378, for a total of more than $9.6 million. The jury also awarded him $20 million in past noneconomic damages—which calculates to an average of more than $2.8 million per year—and $10 million in future noneconomic damages—which calculates to about $416,000 per year.

The Regents argue the jury’s damages award is excessive on its face and is not supported by the evidence. They largely focus their argument on the noneconomic damages, asserting the $30 million total amount was not supported by the limited evidence regarding Murphy’s emotional injuries

6 The jury heard testimony at trial that Murphy’s life expectancy was 24 years. An award of future noneconomic damages at a rate of $450,000 per year over 24 years would amount to $10.8 million.

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and was excessive because it was “substantially more” than the $14 million

total in past and future noneconomic damages Murphy requested. 7

3. Future Noneconomic Damages

With respect to the award of future noneconomic damages, the jury’s $10 million award, which calculated to an annual amount of about $416,000 per year, tracks closely with Murphy’s request for $10.8 million at an annual rate of $450,000. This amount is not grossly disproportionate to Murphy’s allegations that he will suffer mental anguish, humiliation, and anxiety for the remainder of his 24-year life expectancy due to the loss of his ambitious career and hard-earned professional reputation.

4. Past Noneconomic Damages

More central to the Regents’ argument is the jury’s $20 million award for past noneconomic damages. This award for the discreet seven-year period of past noneconomic damages is double the amount the jury awarded Murphy for all future noneconomic damages. And it is more than six times Murphy’s requested amount of $3.2 million. Although the unique circumstances of this case support a considerable award for Murphy’s past noneconomic damages, we conclude that $20 million is not supported by substantial evidence and is

7 In a single paragraph, the Regents also challenge the economic damages award. Although they suggest the entire economic damages award is excessive, they focus their argument only on the $8.1 million in future economic damages. They argue the future economic damages award is excessive because it is premised on Murphy’s claimed reputational damage, which the Regents argue separately is legally untenable in light of its First Amendment and fair reporting privileges. As we have already explained, the Regents forfeited their privilege defenses. (See ante, part B. of Discussion.) Thus, we reject their argument that the damages award is impermissible because it rests on claims to which the Regents now assert privilege.

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so grossly disproportionate to the harm suffered in this case as to be deemed excessive.

The jury heard testimony that Murphy was a successful oncologist when he blew the whistle on the University’s attempt to misuse donor funds that had been intended for his research. As a result, he endured serious retaliation from his superiors, including: (1) University officials convincing him to reduce his employment to parttime, which may have been a ruse to justify ending his contract; (2) the University delaying the release of the donor funds he was entitled to for his research; (3) Mundt removing him from the committees and teaching assignments he needed to be eligible for promotions; (4) the University commencing investigations into his conduct, including an allegation that he misappropriated University equipment, which was based, at least in part, on a “fake” inventory list; and (5) the University declining to renew his employment contract.

The jury also heard testimony that, as a result of this retaliation, Murphy experienced severe mental anguish. Murphy was upset, confused, and angry by the way the University was treating him, and he was humiliated by the public disclosures of his alleged wrongdoings and the need to repeatedly explain himself to others. He was stressed and nervous, which caused him to lose sleep. He would drink in the middle of the night. He was exhausted, stopped exercising, and started overeating, which caused him to gain weight. When he found out the University was not renewing his contract, he was emotionally devastated.

At the same time, however, the jury was not presented with any evidence that Murphy suffered any injury, either mental or physical, so catastrophic as to elevate his case into the category of cases in which a jury might award damages of a comparable amount. Although we maintain our

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focus on the facts presented here (Seffert, supra, 56 Cal.2d at p. 508 [“While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances”]), we note that plaintiffs in other cases in which substantial noneconomic damages have been awarded suffered devastating, permanent injuries. (See, e.g., Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 330, 343–345 [upholding award of $5 million in past noneconomic damages and $20 million in future noneconomic damages where plaintiff suffered from mesothelioma, from which “ ‘patients ... d[ie] in horrible pain”]; Burchell v. Faculty Physicians & Surgeons etc. (2020) 54 Cal.App.5th 515, 519–521, 526– 532 [affirming judgment where plaintiff awarded $9.25 million after botched penial surgery left him disfigured and with permanent impairments]; Pearl v. City of Los Angeles (2009) 36 Cal.App.5th 475, 492 [affirming judgment where plaintiff awarded $10 million in total noneconomic damages, reduced by the trial court from a jury award of $15 million, after suffering “severe and unremitting harassment [that] caused [the plaintiff] to suffer a ‘catastrophic emotional and physical breakdown’ that resulted in malignant and chronic hypertension, organ damage, partial hearing and vision loss, and disabling and chronic psychiatric illness”].)

On the other hand, damages awards have been reduced, either by the trial court or on appeal, where the plaintiff’s relevant injuries amounted to common psychological symptoms and/or were treatable. (See, e.g., Bigler- Engler, supra, 7 Cal.App.5th at 298–306 [finding award of $5,127,950 in noneconomic damages excessive where plaintiff suffered knee injury requiring multiple surgeries but, after treatment, her permanent symptoms included only some hypersensitivity and pain to touch, weakness and pain when kneeling, inability to ride horses competitively, difficulty performing

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some dance moves, and inability to ride her bike while holding her dog’s leash]; Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 873–875, 882–884 [upholding trial court’s reduction of award for noneconomic damages from $3.5 million to $2.25 million where plaintiff suffered significant facial and head injuries but brain trauma was mild and resulted in no cognitive dysfunction or neurological deficit and plaintiff’s persistent impairments resulted from treatable depression].) And awards for the emotional distress resulting from retaliatory termination historically are even lower. (Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 142 (Briley) [citing cases].)

Two relatively recent opinions from the Second Appellate District are helpful both in framing the issue and illustrating difficulties in evaluating a claim that noneconomic damages are excessive. In Briley, a jury awarded the plaintiff $3.5 million in total noneconomic damages—including $2 million in past noneconomic damages incurred over a three-year period—after finding in his favor on an employment retaliation claim. (Briley, supra, 66 Cal.App.5th at p. 123.) On appeal, the court summarized the evidence Briley presented in support of his claim for damages as follows: “Briley testified his termination was ‘pretty devastating’ and caused him distress because his livelihood had been taken away, because he had been dedicated to the City for eight years, and because he had spent his entire career in fire service. He stated that he thought about his termination almost every day and that the ordeal impacted almost every aspect of his life. ... He noted only having sleep-related ‘issues’ associated with financial uncertainty, prior worries about his ability to provide for the 17- and 19-year-old children of his romantic partner at the time of his termination, and feeling wronged by the City’s unfair process and the false allegations against him.” (Id. at 141.)

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The court further explained “[t]here was no evidence that any of the problems Briley described was particularly severe[,] [h]e described no physical symptoms beyond his unspecified sleep-related issues[,] [and] [h]e had seen a counselor once or twice but reported no mental health issues.” (Id. at 142.) In sum, “Briley confirmed he had experienced the gamut of emotions anyone would experience upon his or her termination from employment.” (Ibid.)

In finding that the noneconomic damages the jury awarded to Briley were excessive, the appellate court first recognized “[a] discriminatory or retaliatory termination is undoubtedly upsetting and warrants reasonable compensation for any accompanying emotional distress.” (Briley, supra, 66 Cal.App.5th at p. 142.) But, it explained, “without evidence of significant, concrete harm, ... typical posttermination difficulties” cannot support a disproportionately large noneconomic damages award. (Ibid.) Accordingly, it vacated the noneconomic damages awards and “remanded for a new trial on those issues, unless Briley accept[ed] a reduction of the awards to $1 million and $100,000, respectively.” (Id. at p. 144.)

More recently in Glick v. City of Los Angeles (2026) 122 Cal.App.5th 151 (Glick), the Second Appellate District revisited the appropriateness of a jury’s noneconomic damages award for employment retaliation premised only on “ ‘garden-variety emotional distress’ ” (id. at p. 157), and found a large jury award based on such was not excessive (id. at p. 163). There, a jury found in favor of the plaintiffs, police officers with City of Los Angeles, on their gender discrimination and retaliation claims. It awarded one plaintiff $5 million in past noneconomic damages and $3 million in future noneconomic damages, awarding the other plaintiff $3 million in past noneconomic damages and $1.5 million in future noneconomic damages. (Id. at p. 156.) The defendant city filed a motion for new trial, which the

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court conditionally granted unless the plaintiffs consented to a reduction of their total damages awards. (Id. at pp. 156–157.) The plaintiffs refused to accept a reduced damages award and the court granted a new trial as to damages. (Id. at pp. 157–158.)

The evidence in Glick supporting the plaintiffs’ demands for noneconomic damages consisted only of the plaintiffs’ testimony. Specifically, one plaintiff testified that he was upset and cried, “ ‘had a hard time rolling out of bed,’ ” was stressed about family finances, was concerned about his “ ‘upward career trajectory,’ ” and experienced “ ‘a recurrence of his drinking alcohol.’ ” (Glick, supra, 122 Cal.App.5th at p. 159.) “[He] testified that the City’s discrimination and retaliation ‘was probably the single-most difficult thing [he] ha[d] ever gone through in [his] entire life.’ When ‘[a]ll [his] dreams [were] coming true,’ ‘it crushed [his] career goals’ and ‘tore [his] family apart.’ ” (Id. at p. 163.) The other plaintiff testified that he felt “ ‘embarrassed,’ ” “ ‘shocked,’ ” and “ ‘hurt’ ”; experienced “ ‘the lowest point in his entire career’ ”; and was affected by his wife’s emotions because she “ ‘took it pretty hard.’ ” (Id. at p. 160; see id. at p. 163.)

Based on this evidence, “[t]he trial court reasoned that plaintiffs had ‘only sought and argued for garden-variety emotional distress’ and characterized the evidence supporting the noneconomic damages as ‘scant.’ The court noted the absence of any testimony from ‘psychologists, psychiatrists, or treating physicians.’ The court concluded that the jury ‘clearly should have reached a different verdict,’ because the evidence was insufficient to support such large awards. The court denied ‘making a hardand -fast rule as to the maximum amount that can be awarded for garden- variety emotional distress’ but then stated that ‘[a] mid- to high-seven figure award for emotional distress [was] far ‘above and beyond that usually

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associated’ with the discrimination and retaliation’ suffered in this case.” (Glick, supra, 122 Cal.App.5th at p. 157.) “The court explained that in its own ‘experience, only the most extraordinary claims for garden-variety emotional distress can reach a very low six-figure range.’ ” (Ibid.)

On appeal, the appellate court reversed the conditional new trial order, concluding that the trial court erroneously found the jury’s noneconomic damages award was not supported by substantial evidence in the absence of expert testimony. (Glick, supra, 122 Cal.App.5th at pp. 160, 164.) It explained that “expert testimony is not required where, as here, ‘[t]he emotional distress to which [a plaintiff] testifie[s] is not beyond the common experience of the jurors.’ ” (Id. at p. 160.) In addition, it found the trial court “erroneously placed a limit on the amount of damages a jury can award for emotional distress damages,” which “is incompatible with case law’s rejection of a ‘fixed standard to determine the amount of noneconomic damages.’ ” (Id. at p. 161.) It further declined the City’s request to reduce the damages award, as it was “unconvinced that the noneconomic damages awarded here shock the conscience and require reduction.” (Id. at p. 163.) It explained, “ ‘[E]ntrusted with vast discretion in determining the amount of damages to be awarded’ [citation], the jury was entitled to believe plaintiffs’ testimony, make reasonable inferences from it, and award [one plaintiff] $8 million and [the other plaintiff] $4.5 million in noneconomic damages. We will not find the jury’s award ‘ “excessive as a matter of law simply because it exceeds the amount awarded in other cases.” ’ ” (Id. at p. 163.)

Glick persuades us to find that Murphy’s jury was entitled to award a substantial sum for past noneconomic damages based only on the testimony of Murphy and his wife, which might be characterized as detailing garden- variety emotional distress. Glick’s reasoning, however, cannot justify

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upholding the entire $20 million past noneconomic damages award here. First, the $20 million in past noneconomic damages the jury awarded to Murphy far surpasses the $5 million past noneconomic damages award that the Second Appellate District upheld in Glick for similar types of emotional injuries. And we must also balance the Glick opinion with that of Briley, which found excessive a noneconomic damages award that was based on “typical posttermination difficulties” (Briley, supra, 66 Cal.App.5th at p. 142), as well as cases such as Bigler-Engler, which permit the reduction of a damages award where the record suggests that the jury was influenced by improper considerations. (Bigler-Engler, supra, 7 Cal.App.5th at p. 299.) Here, unlike in Glick, there is both a lack of evidence Murphy suffered the type of catastrophic injuries that ordinarily would support a damages award of this magnitude and an implication that the jury was influenced by improper considerations.

We find it particularly troubling that the jury awarded Murphy more than six times the amount of past noneconomic damages he requested. Although we do not suggest a jury is limited to the amount of damages a party requests at trial (see Glick, supra, 122 Cal.App.5th at p. 161 [explaining a jury is not limited in the amount it can award for emotional distress]), we find such a disparity in the amount requested and the amount awarded necessarily alerts us to the need for closer scrutiny. And after this closer scrutiny, we find there simply is nothing in the record to support this dramatic deviation from the amount Murphy requested at trial. Again, the evidence Murphy presented showed he suffered the type of mental distress common to those who have unfairly lost their jobs.

In addition, we find there is some evidence in the record to suggest the jury’s award may have been motivated by passion or prejudice rather than

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the merits of Murphy’s claim. In considering the Regents’ arguments related to the merits of Murphy’s whistleblower claim at the hearing on the motion for a new trial, the trial court commented, “Well, frankly, from my perspective, I thought Dr. Mundt was a terrible witness for [the Regents]. In my view, I don’t think the jury liked him at all.” This comment is strikingly similar to one the trial court made in Cunningham. There, when the court denied the defendant’s motion for judgment notwithstanding the verdict it stated, “ ‘I’m sure that [the defendant] made a very poor impression ... on the jury. He is arrogant in his manner, and his whole attitude and demeanor was such as to lend credence to the fact that this is the very thing he did. I’m sure that’s what motivated [the jury].’ ” (Cunningham, supra, 1 Cal.3d at p. 310.) The California Supreme Court concluded this comment by the trial court was evidence “that the motivation of the jury in granting this disproportionate award ... must have been ‘passion (or) prejudice.’ ” (Ibid.) We find this conclusion applies equally here.

“Based on our review of the record, and in our collective experience, the jury could have awarded” Murphy no more than $8 million for past noneconomic damages, reflecting the emotional distress he suffered during the seven-year period before trial. (Briley, supra, 66 Cal.App.5 at p. 144; see Glick, supra, 122 Cal.App.5th at p. 156 [upholding awards of $5 million and $3 million in past noneconomic damages for ordinary emotional distress].) This amount recognizes the clear intention of the jury to award a higher award per annum for Murphy’s past noneconomic damages than it awarded in future noneconomic damages. (See Glick, at p. 156 [jury awarded higher sums for past noneconomic damages than it did for future noneconomic damages].) At the same time, it accounts for the fact that the past noneconomic damages compensates for a discreet seven-year period,

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while the future noneconomic damages cover Murphy’s 24-year remaining life expectancy. Admittedly, even the $8 million amount is high. But “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, at p. 144.) Accordingly, we vacate the past noneconomic damages award and remand for a new trial on this issue, unless Murphy accepts a reduction of the past noneconomic damages award to $8 million. (See ibid.; Bigler-Engler, supra, 7 Cal.App.5th at p. 306.)

F. Attorney’s Fees

A party that prevails on a cause of action under the CWPA “shall also be entitled to reasonable attorney’s fees as provided by law.” (§ 8547.10, subd. (c).) “Unless a statute provides otherwise, it is presumed the Legislature intended that the amount of a statutory award of reasonable attorney fees should be determined by application of the lodestar adjustment method,” which “begins by multiplying the reasonable number of hours worked on a client’s case by the reasonable hourly rate for that work.” (People v. Millard (2009) 175 Cal.App.4th 7, 32; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134–1135 (Ketchum).) The trial court then has discretion to apply a positive or negative multiplier to the lodestar amount based on factors such as “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys[,] [and] (4) the contingent nature of the fee award.” (Ketchum, at p. 1132.) The fact that a defendant is a public entity, such that the cost of an attorney’s fees award would ultimately fall to taxpayers, is a factor a trial court may consider when determining whether to apply a multiplier. (Serrano v. Priest (1977) 20

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Cal.3d 25, 49 (Serrano).) But a court may not “use the ‘public entity’ factor to wholly negate the enhancement of a lodestar that otherwise would be appropriate after consideration of [other] factors.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 401 (Horsford).)

“ ‘ “California courts have long held that trial courts have broad discretion in determining the amount of a reasonable attorney’s fee award. This determination is necessarily ad hoc and must be resolved on the particular circumstances of each case.” [Citation.] In exercising its discretion, the trial court may accordingly “consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney’s fee award.” [Citation.] An attorney fees award “ ‘will not be overturned in the absence of a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence.’ ” ’ ” (The Kennedy Com. v. City of Huntington Beach (2023) 91 Cal.App.5th 436, 465; see generally Serrano, supra, 20 Cal.3d at p. 49 [“ ‘experienced trial judge is the best judge of the value of professional services rendered in [that] court’ ”].) With respect to the application of a multiplier, “ ‘[w]e will not disturb the trial court’s exercise of discretion in deciding whether to increase or reduce the lodestar figure unless the fee award is clearly wrong [citation], and we may “presume the trial court considered all the appropriate factors in choosing the multiplier and applying it to the whole lodestar.” ’ ” (The Kennedy Com., at p. 467.)

Here, the trial court determined all the factors identified in Ketchum “militate in favor” of applying a positive multiplier. The court indicated it considered the Regents’ public entity status, but nevertheless found a

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positive multiplier was not precluded. It applied a 1.5 positive multiplier and awarded attorney’s fees to Murphy in the amount of $2,921,370.

The Regents argue the trial court abused its discretion in applying this positive multiplier because it “did not recognize that it could decline to grant a multiplier or award a smaller multiplier because an enhanced fees award would fall on taxpayers.” In support of their assertion, the Regents quote the trial court’s language in its order granting attorney’s fees. Specifically, the court explained that it “considered the status of the Regents as a public entity, however, if the Legislat[ure] sought to cap attorney’s fees at the lodestar amount without contemplating a multiplier, that desired result would be explicitly stated in [Government Code] section 8547.10. It is not.” This portion of the trial court’s order alone demonstrates that the court understood the Regents’ public entity status was a factor the court could consider in determining whether to apply a multiplier, as it expressly stated it had taken the public entity status into account. But given all the circumstances of the case, that factor was not determinative.

The parties submitted substantial briefing on the issue of attorney’s fees. In this briefing, the Regents detailed the trial court’s discretion with respect to the multiplier and urged the court to decline to apply a multiplier on account of the Regents’ status as a public entity, among other factors. And at the hearing on the motion for attorney’s fees, the court acknowledged the parties’ briefing and indicated it conducted its own research and read the relevant case law. Accordingly, the record shows the court was aware of its discretionary authority regarding application of a multiplier, including with respect to consideration of the public entity factor, and exercised that discretion to apply a multiplier under the circumstances of this case.

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Lastly, we note the Regents have not argued that any other factor weighed against the application of a positive multiplier, and the trial court could not have denied such a multiplier based solely on the fact that the Regents are a public entity. (Horsford, supra, 132 Cal.App.4th at p. 401.)

DISPOSITION

The award for past noneconomic damages is vacated, and the matter is remanded for a new trial on that issue only, unless Murphy consents to the reduction of that award to $8 million. If he agrees to this reduction, Murphy must file his written consent with the clerk of this court and serve it on the Regents within 30 days of this opinion, in which case the trial court shall conduct any further necessary and appropriate proceedings and enter judgment consistent with this opinion. In all other respects, the judgment is affirmed. Murphy is entitled to recover his costs on appeal. (California Rules of Court, rule 8.278(a)(5).)

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

BUCHANAN, J.