NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 27 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC BAHRA, No. 22-55931

Plaintiff-Appellee, D.C. No. 5:16-cv-01756-JGB-SP v.

COUNTY OF SAN BERNARDINO, MEMORANDUM*

Defendant-Appellant,

and

SAN BERNARDINO COUNTY

DEPARTMENT OF CHILDREN AND

FAMILY SERVICES; et al.,

Defendants.

ERIC BAHRA, No. 22-55976

Plaintiff-Appellant, D.C. No. 5:16-cv-01756-JGB-SP v.

COUNTY OF SAN BERNARDINO,

Defendant-Appellee,

and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

SAN BERNARDINO COUNTY

DEPARTMENT OF CHILDREN AND

FAMILY SERVICES; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted November 13, 2023 Pasadena, California

Before: RAWLINSON, CLIFTON, and HURWITZ, Circuit Judges.

After a remand from this Court, a jury found that San Bernardino County fired

Eric Bahra, a child-dependency social worker, in violation of California Labor Code

§ 1102.5, the state whistleblower statute.1 The jury awarded Bahra $503,093 in

compensatory damages and $2,000,000 in noneconomic damages. The County

argues on appeal that the noneconomic damages award is “grossly excessive” and

that the district court erred in not setting it aside. We review the district court’s

denial of a new trial motion for abuse of discretion. Del Monte Dunes at Monterey,

Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996). We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

1 We previously affirmed the dismissal of Bahra’s 42 U.S.C. § 1983 claim but remanded for trial on the whistleblower claim. Bahra v. Cnty. of San Bernardino, 945 F.3d 1231, 1236–37 (9th Cir. 2019).

2 1. Under California law, damages for emotional distress can be premised

on “grief, shame, humiliation, embarrassment, anger, chagrin, disappointment,

worry and nausea.” Young v. Bank of Am., 141 Cal. App. 3d 108, 114 (1983)

(cleaned up). As a result of the County’s retaliation, Bahra developed stomach pains,

headaches, and shortness of breath; gained weight; stopped maintaining his hygiene;

fell into depression; felt shame and humiliation; and experienced significant

financial hardship. Bahra had not found work as a child-dependency social worker

by the time of trial, and he sometimes still felt “upset and agitated and depressed.”

The record therefore clearly supports an award for emotional distress.

The County concedes that some award was proper, but, citing Briley v. City

of West Covina, 66 Cal. App. 5th 119 (2021), argues that California law forbids an

award of more than $1,000,000 absent substantial physical manifestation of

emotional distress. But Briley does not set forth that categorical rule; while

discussing the absence of serious physical injury in that case, the court stressed that

“each case must be decided on its own facts and circumstances.” Id. at 141 (cleaned

up). The facts here are different than those in Briley. And although the award is

large, the issue is not whether we would have reached the same conclusion as the

jury, but rather whether the award is “grossly excessive or monstrous, clearly not

supported by the evidence, or based only on speculation or guesswork.” Del Monte

Dunes, 95 F.3d at 1435. Affording “substantial deference to a jury’s finding of the

3 appropriate amount of damages,” id., we are unable to conclude that the district court

abused its discretion in denying a new trial.

2. We also reject the County’s contention that the award was the product

of passion or prejudice. Given the nature of Bahra’s retaliation claim, evidence and

arguments about child abuse were inevitable. The County failed to object to the

portion of Bahra’s closing argument that it now contests, and we cannot conclude

that the district court plainly erred in denying a new trial because of that argument.

3. California Code of Civil Procedure § 1021.5 allows a fee award if (1)

an action has conferred a “significant benefit” to the public; (2) “the necessity and

financial burden of private enforcement . . . make the award appropriate”; and (3) it

is “not in the interest of justice” for fees to be paid out of the successful party’s

recovery. The district court properly considered those factors before making its

award and we find no abuse of discretion.2

AFFIRMED.

2 Because we affirm the award under § 1021.5, we need not address Bahra’s argument he was also entitled to fees under California Labor Code § 1102.5.

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