Ward v. Cal. Dept. of Corrections and Rehabilitation CA4/2 ( 2022 )


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  • Filed 2/23/22 Ward v. Cal. Dept. of Corrections and Rehabilitation CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    JAMES M. WARD,
    Plaintiff and Appellant,                                       E073567
    v.                                                                      (Super.Ct.No. BLC1600074)
    CALIFORNIA DEPARTMENT OF                                                OPINION
    CORRECTIONS & REHABILITATION,
    Defendant and Appellant.
    APPEAL from the Superior Court of Riverside County. David M. Chapman,
    Judge. Affirmed.
    Derek T. Anderson and Derek T. Anderson for Plaintiff and Appellant.
    Xavier Becerra and Rob Bonta, Attorneys General, Chris A. Knudsen, Assistant
    Attorney General, Jodi L. Cleesattle and Jennifer L. Santa Maria, Deputy Attorneys
    General, for Defendant and Appellant.
    1
    I. INTRODUCTION
    Plaintiff and appellant James M. Ward (plaintiff) was hired as the chief dentist for
    the Ironwood State Prison (ISP) in July 2007 for a two-year limited term. In 2008, he
    applied for a permanent chief dentist position at ISP, but he was notified in February
    2009 that he had not been selected for the position. As a result, plaintiff filed a civil
    action against defendant and appellant California Department of Corrections and
    Rehabilitation (CDCR).
    Ultimately, two causes of action for whistleblower retaliation in violation of Labor
    Code1 sections 1102.5 and 6310 were tried before a jury, and plaintiff was awarded
    $1,994,109 in damages. CDCR filed a notice of intent to move for judgment
    notwithstanding the verdict (JNOV) and for a new trial. The trial court granted the
    motion for new trial on the ground of insufficiency of the evidence to support the verdict
    and excessive damages, but it denied the motion for JNOV.
    Plaintiff appeals from the order granting a new trial, arguing (1) the trial court
    applied the wrong legal standard to evaluate the sufficiency of plaintiff’s section 1102.5
    claim; (2) the trial court abused its discretion in concluding there was insufficient
    evidence to support the jury’s verdict; and (3) the trial court abused its discretion in
    granting a new trial based upon excessive damages. CDCR appeals from the order
    denying its motion for JNOV, arguing the trial court did not go far enough in granting a
    new trial because the evidence compelled a verdict in its favor.
    1   Undesignated statutory references are to the Labor Code.
    2
    We find no error in the trial court’s application of the law with respect to
    plaintiff’s section 1102.5 claim. We further conclude that there is sufficient evidence in
    the record to support the jury’s verdict, but also, sufficient evidence to support the
    contrary conclusions expressed by the trial court in granting a new trial. Thus, we affirm
    both the trial court’s order denying the JNOV and the order granting a new trial. Finally,
    because we conclude the trial court’s grant of a new trial may be affirmed on the ground
    of insufficiency of the evidence to support the verdict, we need not discuss the alternative
    grounds argued by the parties on appeal.
    II. FACTS AND PROCEDURAL HISTORY
    A. Background
    The CDCR entered into a settlement to resolve ongoing litigation with a class of
    inmates alleging inadequate dental care in violation of their rights under the Eighth
    Amendment to the United States Constitution. The settlement resulted in a court
    approved stipulation mandating the level of dental care that CDCR would provide to
    inmates housed in its correctional facilities, known as the “Perez mandates.” Thereafter,
    CDCR hired numerous dental professionals throughout the state in order to bring its
    facilities and practices into compliance with the Perez mandates.
    As part of this extensive hiring, plaintiff was hired to fill a limited-term position as
    the chief dentist at ISP. Toward the expiration of his term, plaintiff applied for the
    permanent chief dentist position at ISP but was not selected for the position. As a result,
    plaintiff filed a civil action against CDCR alleging various causes of action. Ultimately,
    3
    only claims for whistleblower retaliation in violation of sections 1102.5 and 6310 were
    tried before a jury.
    B. Relevant Evidence at Trial2
    At trial, it was undisputed that the individual at CDCR with the hiring authority to
    approve plaintiff’s hiring packet, and who ultimately made the decision not to do so, was
    Dr. John Culton. Further, plaintiff testified that the only communications made to Dr.
    Culton that he claimed constituted protected disclosures under the whistleblower statutes
    occurred in a conversation on January 26, 2009, and in follow-up communications
    thereafter. The only two individuals who testified to the existence and nature of
    plaintiff’s alleged whistleblowing disclosures were plaintiff and Dr. Culton.
    1. Testimony of Plaintiff
    Plaintiff testified that he is a licensed dentist, who was hired by CDCR in 2007 for
    a limited-term position as the chief dentist for a correctional facility. The position
    included responsibility for oversight of all dental employees and hiring authority for the
    dental department at ISP. It was his responsibility to ensure that his department complied
    with applicable rules and regulations, including implementation of the Perez mandates,
    which he understood to be a court order requiring inmates to receive a minimum level of
    care. In his role as chief dentist, he developed and implemented new policies in order to
    bring ISP into compliance with the Perez mandates. These new policies included the
    2  Because we affirm the trial court’s order granting a new trial on the ground of
    insufficiency of the evidence to support the verdict, we summarize only the testimony
    necessary to resolve that issue on appeal.
    4
    introduction of an appointment system and a system for management of dental tools, the
    modification of staff scheduling, and the implementation of an on-call requirement for
    staff.
    Plaintiff testified that he faced considerable resistance from staff as a result of his
    policies. He complained to his direct supervisors regarding his difficulties implementing
    policy changes, and they collaborated with him to address this staff resistance, including
    taking disciplinary action against staff members who resisted these new policies.
    Plaintiff acknowledged that several staff members had filed complaints against him with
    the Equal Employment Opportunity Commission (EEOC) but maintained that such
    complaints were motivated by staff resistance to the policy changes that he implemented.
    At some point, plaintiff was notified of an opportunity to apply for a permanent
    position as the chief dentist at ISP. Plaintiff applied and was interviewed for the position.
    He was selected as a highly competitive candidate, and CDCR issued a hiring packet to
    the hiring authority for approval. However, before the packet was signed, the hiring
    authority retired, and Dr. Culton became the temporary hiring authority for ISP.
    Plaintiff arranged to personally meet with Dr. Culton on January 26, 2009.
    Plaintiff testified that his meeting had a twofold purpose: (1) to make Dr. Culton aware
    of difficulties plaintiff had been experiencing in the dental department at ISP, and (2) to
    inquire regarding the status of plaintiff’s hiring packet. Plaintiff discussed various
    personnel matters involving ongoing disciplinary action against staff, expressed the belief
    that staff complaints filed against him were false and motivated by resistance to the new
    5
    policies that he had implemented at ISP, and further expressed the belief that his policies
    were important to ensure ISP met the Perez mandates.
    When plaintiff inquired about his hiring packet, Dr. Culton indicated he was not
    inclined to approve it. Dr. Culton told plaintiff that plaintiff’s actions reporting matters
    related to the Perez mandates compliance made Dr. Culton look bad and requested that
    plaintiff first obtain permission from Dr. Culton before raising those issues outside the
    institution. Plaintiff believed Dr. Culton followed up with written communication,
    specifying that any concerns should be reported within plaintiff’s chain of command.
    According to plaintiff, Dr. Culton expressly stated he would not hire plaintiff following
    this exchange and proffered that he would not do so as a result of the staff complaints
    against plaintiff.
    Plaintiff received a formal letter dated February 3, 2009, notifying him that CDCR
    had not selected him for the permanent chief dentist position at ISP. He testified that
    following receipt of this letter, CDCR continued to advertise for the position.
    On cross-examination, plaintiff stated that he also complained of health and safety
    concerns during his discussion with Dr. Culton. Specifically, plaintiff made comments
    about the lack of space for staff to take breaks and eat lunch, requiring them to do so in a
    room designated for sterilization. Plaintiff believed this constituted a violation of
    Occupational Safety and Health Administration guidelines. On redirect, plaintiff made
    no further mention of a health and safety complaint and, instead, agreed that all of his
    complaints to Dr. Culton involved patient access to care.
    6
    2. Testimony of Dr. Culton
    Dr. Culton testified that he worked for CDCR as the chief medical officer of
    Chuckawalla Valley State Prison. However, at some point, he was also assigned to
    temporarily oversee ISP when its chief medical officer retired in December 2008. As
    part of this process, he would have received the hiring packet related to plaintiff’s
    application for the permanent chief dentist position at ISP.
    Dr. Culton testified that he would have remembered if an employee made a
    whistleblowing complaint directly to him and would have reported any such matters up
    the chain of command, but he did not recall any such complaints in his discussions with
    plaintiff.
    Dr. Culton explained that he did not want to sign off on plaintiff’s hiring packet
    because he did not participate in the interview or selection process and knew nothing
    about plaintiff. He further stated that when he reached out to individuals who had been
    involved in that process, they appeared unwilling to comment or otherwise unwilling to
    endorse plaintiff for the position. Finally, Dr. Culton stated that at the time of his
    meeting with plaintiff, he had already been made aware that CDCR was going to
    implement a hiring freeze as a result of budgetary constraints. Thus, he considered the
    permanent chief dentist position at ISP “essentially a nonfillable position.”3 He initially
    testified that he could not recall whether he requested the position be readvertised, but he
    3  Testimony by other witnesses confirmed that CDCR did in fact implement a
    hiring freeze impacting the chief dentist positions at all institutions in February 2009,
    shortly after plaintiff received his formal notice that CDCR had declined to hire him.
    7
    later denied ever instructing that the position be readvertised following the decision to not
    hire plaintiff.
    C. Verdict and Post-trial Motions
    The jury returned a verdict in favor of plaintiff on both causes of action for
    violation of sections 1102.5 and 6310. It awarded plaintiff a total of $1,994,109 in
    damages, and judgment was entered on April 24, 2019. CDCR timely moved for JNOV
    and a new trial. The trial court denied the motion for JNOV but granted the motion for a
    new trial on the ground of insufficiency of the evidence to support the verdict and
    excessive damages.
    In its statement of reasons, the trial court concluded that the evidence was
    insufficient to show plaintiff engaged in protected activity under either section 1102.5 or
    6310; the evidence was insufficient to establish a causal link between any alleged
    protected activity and the failure of CDCR to hire plaintiff for a permanent position; and
    that CDCR had proffered a legitimate, nonretaliatory reason for declining to hire plaintiff
    on a permanent basis. The trial court also expressed the view that the damages were
    excessive in light of the fact that the evidence also showed the chief dentist position was
    formally eliminated for budgetary reasons only a year after plaintiff was not hired for the
    position. Plaintiff appeals from the order granting a new trial, and CDCR appeals from
    the order denying its motion for JNOV.
    8
    III. DISCUSSION
    A. Legal Background
    Both of plaintiff’s causes of action are retaliation claims based upon the Labor
    Code’s whistleblower statutes. Section 1102.5, subdivision (b), is “ ‘California’s general
    whistleblower statute’ [citation], which provides: ‘An employer may not retaliate against
    an employee for disclosing information . . . where the employee has reasonable cause to
    believe that the information discloses a violation of state or federal statute, or a violation
    or noncompliance with a state or federal rule or regulation.’ ” (McVeigh v. Recology San
    Francisco (2013) 
    213 Cal.App.4th 443
    , 468.) Similarly, “[s]ection 6310, subdivision (b),
    permits an action for damages if the employee is discharged, threatened with discharge,
    or discriminated against by his or her employer because of the employee’s complaints
    about unsafe work conditions.” (Daly v. Exxon Corp. (1997) 
    55 Cal.App.4th 39
    , 44.)
    However, each claim is subject to a different analytical framework.
    Our Supreme Court has recently clarified that “[s]ection 1102.6 provides the
    governing framework for the presentation and evaluation of whistleblower retaliation
    claims brought under section 1102.5. First, it places the burden on the plaintiff to
    establish, by a preponderance of the evidence, that retaliation for an employee’s protected
    activities was a contributing factor in a contested employment action. . . . Once the
    plaintiff has made the required showing, the burden shifts to the employer to
    demonstrate, by clear and convincing evidence, that it would have taken the action in
    question for legitimate, independent reasons even had the plaintiff not engaged in
    9
    protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 
    12 Cal.5th 703
    ,
    718 (Lawson).)
    In contrast, no parallel statute exists setting forth the respective parties’ burdens
    for a whistleblower retaliation claim brought pursuant to section 6310, subdivision (b).
    Thus, this claim is analyzed under the traditional McDonnell Douglas4 framework that
    applies generally to retaliation and whistleblower claims. (Husman v. Toyota Motor
    Credit Corp. (2017) 
    12 Cal.App.5th 1168
    , 1193 [“Like claims for discrimination,
    retaliation claims are subject to the McDonnell Douglas burden-shifting analysis.”];
    Armin v. Riverside Community Hospital (2016) 
    5 Cal.App.5th 810
    , 830 [applying
    McDonnell Douglas framework to whistleblower claim under Health & Saf. Code,
    § 1278.5 whistleblower protections]; Akers v. County of San Diego (2002)
    
    95 Cal.App.4th 1441
    , 1453 [applying McDonnell Douglas framework to whistleblower
    provisions in Gov. Code, § 12940, subd. (h)].)
    “In the first stage [of the McDonnell Douglas framework], the ‘plaintiff must
    show (1) he or she engaged in a “protected activity,” (2) the employer subjected the
    employee to an adverse employment action, and (3) a causal link existed between the
    protected activity and the employer’s action.’ ” (Loggins v. Kaiser Permanente Internat.
    (2007) 
    151 Cal.App.4th 1102
    , 1109 (Loggins); see Patten, supra, 134 Cal.App.4th at p.
    1384.) “If the employee successfully establishes these elements and thereby shows a
    prima facie case exists, the burden shifts to the employer to provide evidence that there
    4   McDonnell Douglas Corp v. Green (1973) 
    411 U.S. 792
     (McDonnell Douglas).
    10
    was a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If
    the employer produces evidence showing a legitimate reason for the adverse employment
    action, ‘the presumption of retaliation “ ‘ “drops out of the picture,” ’ ” ’ [citation], and
    the burden shifts back to the employee to provide ‘substantial responsive evidence’ that
    the employer’s proffered reasons were untrue or pretextual.” (Loggins, at p. 1109; see
    Guz v. Bechtel National, Inc. (2000) 
    24 Cal.4th 317
    , 354-355.)
    Here, the trial court concluded that the evidence was insufficient to support
    necessary elements under each of these analytical frameworks. Thus, our review of the
    trial court’s order denying CDCR’s motion for JNOV and order granting a motion for
    new trial based upon insufficiency of the evidence is guided by this framework.
    B. The Trial Court Did Not Abuse Its Discretion in Granting a New Trial
    Here, plaintiff contends the trial court’s order granting a new trial must be
    reversed because (1) the trial court applied the wrong legal standard to evaluate the
    sufficiency of his whistleblower claim under section 1102.5; (2) the trial court abused its
    discretion in concluding there was insufficient evidence to support the jury’s verdict; and
    (3) the trial court abused its discretion in granting a new trial based upon excessive
    damages. We conclude the trial court applied the correct legal principles and further
    conclude the trial court did not abuse its discretion in granting a new trial based upon
    insufficiency of the evidence to support the verdict. Given this conclusion, it is
    unnecessary for us to consider the alternative ground of excessive damages or other
    arguments raised by the parties regarding other aspects of the trial court’s statement of
    reasons.
    11
    1. General Legal Principles and Standard of Review
    “ ‘The authority of a trial court in this state to grant a new trial is established and
    circumscribed by statute. [Citation.] [Code of Civil Procedure] [s]ection 657 sets out
    seven grounds for such a motion: (1) “Irregularity in the proceedings”; (2) “Misconduct
    of the jury”; (3) “Accident or surprise”; (4) “Newly discovered evidence”; (5) “Excessive
    or inadequate damages”; (6) “Insufficiency of the evidence”; and (7) “Error in law.” ’ ”
    (Jackson v. Park (2021) 
    66 Cal.App.5th 1196
    , 1213 (Jackson).)
    “We review the order granting a new trial for an abuse of discretion. [Citation.]
    ‘ “The determination of a motion for a new trial rests so completely within the court’s
    discretion that its action will not be disturbed unless a manifest and unmistakable abuse
    of discretion clearly appears. This is particularly true when the discretion is exercised in
    favor of awarding a new trial, for this action does not finally dispose of the matter. So
    long as a reasonable or even fairly debatable justification under the law is shown for the
    order granting the new trial, the order will not be set aside.” ’ ” (Jackson, supra,
    66 Cal.App.5th at p. 1213.)
    When a trial court grants a new trial on the ground of insufficiency of the evidence
    to support the verdict or excessive damages, the trial court “ ‘is not bound by a conflict in
    the evidence, and has not abused its discretion when there is any evidence which would
    support a judgment in favor of the moving party. [Citations.] . . . “It is only where it can
    be said as a matter of law that there is no substantial evidence to support a contrary
    judgment that an appellate court will reverse the order of the trial court.” ’ ” (McFarland
    v. Voorheis-Trindle Co. (1959) 
    52 Cal.2d 698
    , 707; see Code Civ. Proc., § 657.) Thus,
    12
    the appellant bears the burden to demonstrate “ ‘that no reasonable finder of fact could
    have found for the movant on [the trial court’s] theory,’ ” and “the trial court’s factual
    determinations, reflected in its decision to grant the new trial, are entitled to the same
    deference that an appellate court would ordinarily accord a jury’s factual determinations.”
    (Lane v. Hughes Aircraft Co. (2000) 
    22 Cal.4th 405
    , 412.)
    2. Section 1102.5 Does Not Require an Actual Violation of a Statute, Rule, or
    Regulation
    Initially, we address plaintiff’s argument that the trial court applied an incorrect
    legal standard in evaluating the sufficiency of the evidence to support the jury’s verdict as
    to his section 1102.5 claim. Plaintiff contends the trial court granted a new trial upon the
    mistaken belief that reporting a suspected violation of the Perez mandates could not
    constitute protected activity because the mandates do not constitute a state or federal
    statute, rule, or regulation. According to plaintiff, the Perez mandates are no different
    than statutes, rules, or regulations because they were approved by a federal court order
    and, as such “created rules with the force of federal law.” In response, CDCR contends
    that, under a plain reading of section 1102.5, disclosures that involve anything other than
    suspected violations of state or federal statutes, rules, or regulations fall outside the scope
    of section 1102.5’s protection. In our view, both of these arguments are misplaced and
    misconstrue the trial court’s reasoning.
    By its very terms, section 1102.5, subdivision (b), prohibits employer retaliation
    when an employee discloses information if the employee “has reasonable cause to
    believe” that the information discloses a violation of a statute, rule or regulation. Thus,
    13
    “[a]n employee engages in protected activity when she discloses . . . ‘ “reasonably based
    suspicions” of illegal activity.” ’ ” (Mokler v. County of Orange (2007) 
    157 Cal.App.4th 121
    , 138.) A disclosure is protected as long as the employee reasonably believes a
    violation has occurred, regardless of whether the employee’s beliefs prove to be true.
    (Mize-Kurzman v. Marin Community College Dist. (2012) 
    202 Cal.App.4th 832
    , 854
    [actual violation is not required under statute]; Mokler, at p. 139 [Evidence that plaintiff
    reasonably believed a violation occurred is sufficient, even if it is highly disputed
    whether the reported conduct actually constitutes a violation.].)
    This distinction was recently highlighted in Ross v. County of Riverside (2019)
    
    36 Cal.App.5th 580
     (Ross). In Ross, the plaintiff deputy district attorney reported to his
    supervisors the belief that one of the cases he was assigned to prosecute could not be
    proven beyond a reasonable doubt and that a continued prosecution would constitute
    malicious prosecution in violation of a criminal defendant’s due process rights. (Id. at
    pp. 584-585.) The Court of Appeal concluded that such a disclosure was sufficient to
    support a whistleblower claim under section 1102.5, explaining that “[a]lthough
    [plaintiff] did not expressly state in his disclosures that he believed [his employer] was
    violating or not complying with a specific state or federal law, Labor Code section
    1102.5, subdivision (b), does not require such an express statement. It requires only that
    an employee disclose information and that the employee reasonably believe the
    information discloses unlawful activity.” (Ross, at pp. 592-593.) As Ross makes clear,
    the focus of section 1102.5 is not whether the employee’s disclosure identifies an actual
    14
    violation of statute, rule, or regulation, but the reasonableness of the employee’s belief
    that the information disclosed reveals such a violation.
    Thus, contrary to both parties’ arguments on appeal, the question of whether the
    Perez mandates are the legal equivalent of a statute, rule, or regulation is not dispositive.
    Instead, the correct inquiry is whether, in making his disclosures, plaintiff reasonably
    believed he was disclosing a violation of a statute, rule, or regulation.5
    On this point, the trial court’s statement of reasons granting a new trial reflects a
    correct understanding of the law. After explaining why, in its view, it believed the Perez
    mandates did not constitute a statute, rule, or regulation, the trial court went on to state:
    “However, the provisions of Labor Code [section] 1102.5 provide protection from
    retaliation where the ‘employee has reasonable cause to believe that the information
    discloses a violation of state or federal statute, or a violation or noncompliance with a
    state or federal rule or regulation,’ such disclosure is protected.” It then evaluated the
    evidence to determine whether plaintiff’s communications constituted a disclosure under
    5  Clearly, this is a fact-intensive inquiry. Where an employee identifies an actual
    state or federal statute, rule, or regulation in making a disclosure, doing so may support a
    finding of reasonable belief. (Ross, supra, 36 Cal.App.5th at p. 592 [“ ‘To have a
    reasonably based suspicion of illegal activity, the employee must be able to point to some
    legal foundation for his suspicion.’ ”].) However, nothing in section 1102.5 requires the
    employee to identify such in his disclosure or that the employee’s belief ultimately be
    proven correct in order to be considered reasonable. In our view, reading such a
    requirement into section 1102.5 would be contrary to the very purpose of the statute,
    which is to encourage workplace whistle blowers to report unlawful acts without fearing
    retaliation. (Green v. Ralee Engineering Co. (1998) 
    19 Cal.4th 66
    , 77.) Depriving an
    employee of the statute’s protection simply because the employee may not have the
    expertise to properly interpret a statute, rule, or regulation would discourage rather than
    encourage employees to disclose reasonable suspicions of illegal activity.
    15
    the statute and whether plaintiff could have had a reasonable belief he was disclosing
    illegal activity under the circumstances. Thus, the trial court did not apply an incorrect
    understanding of the law when evaluating the motion for new trial. We proceed to
    consider whether substantial evidence in the record supports the trial court’s reasons for
    granting a new trial.
    3. Substantial Evidence Supports a Finding That Plaintiff Failed To Show He
    Engaged in Protected Activity under Section 1102.5
    Here, the trial court concluded that the evidence was insufficient to show a prima
    facie case plaintiff engaged in protected activity under section 1102.5. Under
    section 1102.6, this was part of plaintiff’s initial burden to establish that the employer
    engaged in an “activity proscribed by section 1102.5” by a preponderance of the
    evidence. (§ 1102.6; Lawson, supra, 12 Cal.5th at p. 711.)
    As we have already explained, in order to qualify for protection under section
    1102.5, an employee must make a disclosure and hold a reasonable belief that the
    information discloses unlawful activity. (Ross, supra, 36 Cal.App.5th at p. 593.) In
    analyzing the evidence, the trial court concluded that (1) general comments regarding
    noncompliance with the Perez mandates did not constitute disclosures within the meaning
    of the statute; (2) discussions regarding personnel matters did not constitute disclosures
    under the statute; and (3) any additional disclosures could not reasonably have been
    understood by plaintiff to constitute illegal activity. Substantial evidence in the record
    supports the trial court’s reasons.
    16
    First, the report of publicly known or already known information does not
    constitute a protected disclosure under section 1102.5. (Mize-Kurzman, supra,
    202 Cal.App.4th at pp. 858-859.) This is because the statute protects “ ‘disclosure[s]’ ”
    and “ ‘[t]he term “disclosure” means to reveal something that was hidden and not
    known.’ ” (Ibid.) Here, plaintiff testified that CDCR provided both written guidance and
    in-person training emphasizing that one of his primary duties as chief dentist was to bring
    CDCR’s institutions into compliance with the Perez mandates. CDCR provided him
    increased incentives specifically because it was having difficulty retaining staff to
    comply with the Perez mandates. Consistent with this understanding, plaintiff reported
    noncompliant conditions at ISP to his supervisors and collaborated with them to try to
    implement steps to bring ISP into compliance during his employment. The trial court
    could reasonably rely on this testimony to conclude not only that CDCR already knew
    ISP needed to work on becoming compliant with the Perez mandates, but that plaintiff
    also knew general statements that ISP was noncompliant revealed nothing new to
    CDCR.6 Thus, substantial evidence supports the trial court’s conclusion that any such
    comments were not disclosures within the meaning of section 1102.5.
    6  Given this evidence, we believe plaintiff’s reliance on Hager v. County of Los
    Angeles (2014) 
    228 Cal.App.4th 1538
     is misplaced. Hager declined to read a “ ‘first
    report’ rule” into section 1102.5 and stands for the proposition that an employee may still
    be protected under the statute, even if another employee has already disclosed the same
    information to the employer and, therefore, the employer already knows of the
    information disclosed. (Id. at pp. 1548-1553.) However, the Court of Appeal in Hager
    did not disagree with the rule set forth in Mize-Kurzman but, instead, explained that
    “[t]he report of ‘publicly known’ information or ‘already known’ information is distinct
    from a rule in which only the first employee to report or disclose unlawful conduct is
    [footnote continued on next page]
    17
    Second, California courts have made clear that discussions regarding personnel
    matters do not qualify for protection under section 1102.5. (Patten, supra,
    134 Cal.App.4th at p. 1385 [Discussions regarding “internal personnel matters involving
    a supervisor and her employee . . . [¶] . . . [¶] . . . do not amount to whistleblowing as a
    matter of law.”]; Carter v. Escondido Union High School Dist. (2007) 
    148 Cal.App.4th 922
    , 933-934 (Carter) [A disagreement between employees over proper protocol is a
    “routine ‘internal personnel disclosure’ ” “not encompassed by section 1102.5.”].) On
    appeal, plaintiff concedes that the majority of his discussions with Dr. Culton would fall
    into this category, but he argues that this is “irrelevant” because these discussions also
    included “intertwined” and “simultaneous” complaints about violations of the Perez
    mandates. However, as we have already explained, simply making general statements
    that ISP was not in compliance with the Perez mandates would not qualify as protected
    disclosures.
    Finally, plaintiff argues that, in addition to general comments regarding ISP’s
    noncompliance with the Perez mandates, his discussions “involved more than just what
    entitled to protection . . . .” (Id. at p. 1552.) This case does not present a situation in
    which multiple employees independently made disclosures regarding the same suspected
    illegal activity. Instead, it involves a factual scenario in which the employee already
    knows the employer is aware of the matter allegedly disclosed, which is not the type of
    activity normally considered to constitute whistleblowing. There would be no need to
    encourage disclosure by employees who actually know that the alleged wrongdoing has
    already been reported or is already generally known by the employer, who is
    investigating or acting on it. An employee would have no reason to believe he or she was
    acting as a whistleblower, or was in need of protection from retaliation, when the
    employee merely repeated information the employee knew had already been reported, or
    information the employee had learned from the employer itself.
    18
    was in the public realm” because he “informed Dr. Culton of specific knowledge within
    [plaintiff’s] purview as the chief dentist at Ironwood about deficiencies in the dental care
    practice unique to that prison.” However, every record citation in plaintiff’s brief
    regarding the problems he purportedly revealed to Dr. Culton refers to a complaint that
    subordinate employees were resisting the implementation of internal policies regarding
    staff hours, patient scheduling, and tool counts. Generally, disclosure of an internal
    policy violation, standing alone, is an inadequate basis for a claim of whistleblower
    retaliation under section 1102.5. (Mueller v. County of Los Angeles (2009) 
    176 Cal.App.4th 809
    , 822 [firefighter’s reports “about perceived violations of the
    department’s own policies” are not protected disclosures under the statute]; Patten,
    supra, 134 Cal.App.4th at p. 1385 [complaint regarding staffing policy “made in an
    exclusively internal administrative context” does not qualify as protected disclosure].)
    Because disclosure of an internal policy violation is not generally the type of
    disclosure protected under section 1102.5, the question of whether plaintiff engaged in
    protected activity turns on whether plaintiff held a reasonable belief that such a disclosure
    could reveal a violation of a statute, rule, or regulation. Even where a plaintiff
    subjectively holds such a belief, there must be evidence “that would support a conclusion
    that his belief was ‘reasonable.’ ” (Carter, supra, 148 Cal.App.4th at p. 933; see Ross,
    supra, 36 Cal.App.5th at p. 592 [employee must be able to point to a reasonable basis of
    support for his beliefs].) Here, plaintiff testified that as chief dentist, he was the
    individual tasked with developing and implementing policies to bring ISP into
    compliance with the Perez mandates, and that he was the individual who developed each
    19
    of the specific policies he claimed staff had violated. This is substantial evidence on
    which the trial court could rely to conclude that plaintiff did not hold a reasonable belief
    that he was reporting illegal activity. Clearly, where plaintiff used his own discretionary
    authority to develop the very internal policies at issue, it would be unreasonable for him
    to hold the belief that his own policies had the same force or effect as a statute, rule, or
    regulation.
    Substantial evidence in the record supports the trial court’s conclusion that
    plaintiff did not have “reasonable cause to believe that the information disclosed a
    violation of state or federal statute, or a violation or noncompliance with a state or federal
    rule or regulation.” Accordingly, the trial court did not abuse its discretion in granting a
    new trial for insufficiency of the evidence to show plaintiff engaged in protected activity
    under section 1102.5.
    4. Substantial Evidence Supports a Finding That Plaintiff Failed To Show He
    Engaged in Protected Activity under Section 6310
    The trial court also concluded that there was insufficient evidence to show plaintiff
    engaged in protected activity under section 6310. Under the McDonnell Douglas
    framework applicable to this claim, plaintiff also bore the burden to establish protected
    activity by a preponderance of the evidence. (Loggins, supra, 151 Cal.App.4th at
    p. 1109.) On appeal, plaintiff identifies only a single statement that would qualify as a
    protected disclosure under this statute. Plaintiff argues that because such testimony exists
    in the record, the trial court necessarily erred in concluding the evidence was insufficient
    on this point. We disagree.
    20
    A motion for new trial is not the equivalent of a motion for summary judgment.7
    The trial court is not bound to accept a fact simply because some admissible evidence in
    the record could support that fact. Instead, “[t]he powers of a trial court in ruling on a
    motion for new trial are plenary. The California Supreme Court has held that the trial
    court, in ruling on a motion for new trial, has the power ‘to disbelieve witnesses, reweigh
    the evidence, and draw reasonable inferences therefrom contrary to those of the trier of
    fact’ [citation], that the court sits as ‘an independent trier of fact’ [citation] and that it
    must ‘independently assess[] the evidence supporting the verdict’ [citation]. The trial
    judge has ‘to be satisfied that the evidence, as a whole, was sufficient to sustain the
    verdict; if he was not, it was not only the proper exercise of legal discretion, but his duty,
    to grant a new trial.’ ” (Barrese v. Murray (2011) 
    198 Cal.App.4th 494
    , 503.) Thus,
    even where there is evidence to sustain the jury’s finding, “the trial judge, who is, in
    effect, the thirteenth juror, is not bound by the finding of the jury if there is any
    substantial conflict in the evidence.” (Kawecki v. Maguire (1950) 
    97 Cal.App.2d 80
    , 83-
    84.)
    7   We observe that many of the authorities discussing the McDonnell Douglas
    framework arise in the context of summary judgment proceedings. However, “ ‘ “we
    must keep in mind that the McDonnell Douglas test was originally developed for use at
    trial [citation], not in summary judgment proceedings.” ’ ” (Sandell v. Taylor-Listug, Inc.
    (2010) 
    188 Cal.App.4th 297
    , 309.) Thus, in order to defeat summary judgment, a
    plaintiff need only produce evidence from which a trier of fact could conclude a prima
    facie case exists. (Ibid.) However, at trial, the burden is reversed and the plaintiff also
    bears the burden of persuasion regarding the existence of a prima facie case. (Sada v.
    Robert F. Kennedy Medical Center (1997) 
    56 Cal.App.4th 138
    , 150.)
    21
    Here, plaintiff’s testimony was far from consistent with respect to a purported
    complaint related to employee health and safety. During direct examination, plaintiff’s
    initial description of his conversation with Dr. Culton contained no mention of any such
    complaint. Plaintiff made the single reference to a purported health and safety complaint
    upon which he now relies during cross-examination. However, plaintiff did not describe
    when this conversation occurred and also implied his comments were actually made in
    the context of lost tools. On redirect examination, plaintiff again made no mention of a
    health and safety complaint and, instead, agreed that “all of the complaints that [he] made
    to Dr. Culton related to limitations on access to care.” For his part, Dr. Culton testified
    that he would have remembered if an employee made a whistleblower complaint directly
    to him, but he did not recall plaintiff ever making such a complaint.
    Thus, the evidence on this point was in conflict. Plaintiff’s brief answer to a
    single question during cross-examination is the only evidence claimed to support his
    prima facie case under section 6310. To the extent the trial court found this testimony
    lacked credibility or that Dr. Culton’s testimony was entitled to more weight, the trial
    court could reasonably conclude that the evidence was insufficient to show plaintiff
    engaged in protected activity under section 6310.
    5. Substantial Evidence Supports a Finding That Plaintiff Failed To Show a
    Causal Link
    The trial court also granted a new trial on both causes of action because of the
    insufficiency of the evidence to show a causal link between the alleged protected activity
    and adverse employment action. While section 1102.6 uses the phrase “contributing
    22
    factor” and the traditional McDonnell Douglas framework uses the phrase “causal link,”
    under both tests, the plaintiff bears an initial burden to show by a preponderance of the
    evidence that some causal connection exists between the alleged protected activity and
    the alleged adverse employment action.8 (§ 1102.6; Loggins, supra, 151 Cal.App.4th at
    p. 1109.) Substantial evidence supports the trial court’s conclusion on this issue.
    Generally, a plaintiff can establish a causal link through circumstantial evidence of
    “ ‘the employer’s knowledge that the [employee] engaged in protected activities and the
    proximity in time between the protected action and allegedly retaliatory employment
    decision.’ ” (Morgan v. Regents of University of California (2000) 
    88 Cal.App.4th 52
    ,
    69-70 (Morgan); see Hawkins v. City of Los Angeles (2019) 
    40 Cal.App.5th 384
    , 394
    (Hawkins).) Here it is undisputed that plaintiff’s purported protected disclosures
    occurred in a January 26, 2009 conversation with Dr. Culton, and that CDCR sent
    plaintiff notice of its decision not to hire him on February 3, 2009. As a result, plaintiff
    argues the trial court could not have concluded there was insufficient evidence of a causal
    link.
    However, as we have already explained, in the context of a trial, plaintiff bore not
    only the burden of proof, but also the burden of persuasion to convince the trier of fact
    that it was more likely than not that each element of a prima facie case exists. (Harris v.
    8 As explained by our Supreme Court, the tests differ to the extent that the burden
    shifting under McDonnell Douglas requires the plaintiff to provide evidence of pretext in
    rebuttal to the employer’s presentation of a legitimate, nonretaliatory reason for its
    decisions. (Lawson, supra, 12 Cal.5th at p. 714.) That distinction is not relevant here
    because the trial court never analyzed the sufficiency of any rebuttal evidence regarding
    pretext but instead concluded that plaintiff’s initial prima facia showing was insufficient.
    23
    City of Santa Monica (2013) 
    56 Cal.4th 203
    , 214; Heard v. Lockheed Missiles & Space
    Co. (1996) 
    44 Cal.App.4th 1735
    , 1749 [A plaintiff’s burden is to prove a prima facie case
    by a preponderance of the evidence.]; (Lawson, supra, 12 Cal.5th at p. 718 [Section
    1102.6 “places the burden on the plaintiff to establish by a preponderance of the
    evidence, that retaliation for an employee’s protected activities was a contributing
    factor.”].) In considering the sufficiency of the evidence to meet this burden, the trial
    court “was permitted to assess the credibility of witnesses, weigh the evidence, and draw
    inferences from the evidence different from those the jury may have drawn.” (Johnson &
    Johnson Talcum Powder Cases (2019) 
    37 Cal.App.5th 292
    , 337 (Johnson & Johnson).)
    Here, Dr. Culton testified that he did not recall plaintiff ever making a
    whistleblowing complaint. Dr. Culton further testified that his decision not to sign
    plaintiff’s hiring packet was motivated by the fact that he did not personally participate in
    the evaluation and selection process; he communicated with some of the individuals
    involved, but they declined to “be involved” or otherwise endorse plaintiff for the
    position; and he had been given information that the position would soon be eliminated
    regardless. The trial court expressly found this testimony credible. Thus, substantial
    evidence supports the trial court’s conclusion that Dr. Culton was not aware plaintiff had
    engaged in protected activity and was not motivated by any such knowledge in declining
    to sign plaintiff’s hiring packet.
    Plaintiff’s argument that Dr. Culton’s testimony lacked credibility, was
    inconsistent or otherwise impeached is not grounds for reversal. “Conflicting evidence—
    far from supporting [a] decision to reinstate the jury’s verdict—actually places the new
    24
    trial order beyond review so long as the conflict relates to the trial court’s reasons for
    granting a new trial.” (Lane v. Hughes Aircraft Co. (2000) 
    22 Cal.4th 405
    , 416.) The
    trial court’s order granting a new trial for insufficiency of the evidence will not be
    disturbed on appeal merely because a different trier of fact could have reached a different
    conclusion with respect to a witness’s credibility or drawn conflicting inferences from the
    testimony.
    6. Substantial Evidence Supports a Finding That CDCR Presented a Legitimate,
    Nonretaliatory Reason for Its Decision Not To Hire Plaintiff
    Finally, the trial court concluded that, even if plaintiff had met his initial burden to
    show a prima facie case of retaliation, CDCR met its corresponding burden to show a
    legitimate, nonretaliatory reason for its decision not to hire plaintiff. Both section 1102.6
    and the McDonnell Douglas framework recognize that an employer may negate liability
    by establishing a nonretaliatory reason for its decision. (§ 1102.6; Yanowitz v. L’Oreal
    USA, Inc. (2005) 
    36 Cal.4th 1028
    , 1042 [Under the McDonnell Douglas framework, “[i]f
    the employer produces a legitimate reason for the adverse employment action, the
    presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to
    the employee to prove intentional retaliation.”].) However, section 1102.6 imposes a
    higher standard of proof on an employer than the McDonnell Douglas framework, by
    requiring that an employer “demonstrate by clear and convincing evidence that the
    alleged action would have occurred for legitimate, independent reasons” in the context of
    retaliation claims brought under section 1102.5. (§ 1102.6.)
    25
    On appeal, plaintiff argues that CDCR’s evidence was insufficient to meet the
    higher clear and convincing standard imposed by section 1102.6. We disagree. “[W]hen
    reviewing a finding that a fact has been proved by clear and convincing evidence, the
    question before the appellate court is whether the record as a whole contains substantial
    evidence from which a reasonable fact finder could have found it highly probable that the
    fact was true.” (Conservatorship of O.B., supra, 9 Cal.5th at pp. 995-996.) We believe
    substantial evidence in this case supports the trial court’s finding, even under this
    heightened standard.
    Here, the evidence was undisputed that CDCR formally imposed a hiring freeze a
    mere two weeks after plaintiff’s notice of rejection for the permanent chief dentist
    position, and that CDCR later eliminated the position in its entirety as a result of budget
    constraints. This is sufficient evidence upon which a trier of fact could conclude that it
    was highly probable CDCR’s nonretaliatory reason for not hiring plaintiff into a
    permanent position was true.
    The only argument offered by plaintiff on appeal is that the trial court’s reasoning
    is a “logical fallacy” because the hiring freeze was not officially implemented until after
    plaintiff was rejected for the permanent position. However, Dr. Culton testified that at
    the time he declined to sign plaintiff’s hiring packet, he had already been made aware that
    a hiring freeze was forthcoming and that as a result, he believed the chief dentist position
    at ISP was essentially unfillable. The trial court expressly found Dr. Culton’s testimony
    to be credible and, even when the clear and convincing standard is considered on review,
    an appellate court does not substitute its views for that of the trier of fact on issues of
    26
    credibility. (Conservatorship of O.B., supra, 9 Cal.5th at p. 996 [the reviewing court
    continues to “give due deference to how the trier of fact may have evaluated the
    credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
    inferences from the evidence”].)
    The only question for this court to resolve is whether the evidence, if found
    credible, was sufficient to permit the trial court to find that it was highly probable that
    CDCR’s proffered nonretaliatory reason was true. The undisputed evidence that CDCR
    did, in fact, implement a hiring freeze shortly after declining to hire plaintiff and
    Dr. Culton’s testimony that he was aware of the impending hiring freeze at the time he
    declined to sign plaintiff’s hiring packet is substantial evidence upon which the trial court
    could reach this conclusion. Given this conclusion, the same evidence was also
    necessarily sufficient to support the trial court’s finding with respect to plaintiff’s claim
    under section 6310, subdivision (b), which is governed by the lower evidentiary standard
    articulated in McDonall Douglas.
    7. We Need Not Resolve Other Grounds Contested by Plaintiff on Appeal
    Plaintiff also asserts that the trial court abused its discretion in granting a new trial
    because it erroneously concluded that his section 6310 complaint was barred for failing to
    identify the matter in a prior administrative claim,9 and that the jury’s award of damages
    9   We observe that plaintiff’s characterization of the trial court’s statement on this
    point does not appear accurate. In full, the trial court stated: “Plaintiff’s opposition
    asserts that in addition to tool counts he made a health and safety violation complaint to
    Dr. Culton about lack of space for the staff to take a break or eat their lunch, forcing them
    to eat in the sterilization area. However, the record reflects that this alleged complaint
    [footnote continued on next page]
    27
    was excessive. However, because we affirm the trial court’s order granting a new trial on
    the ground of insufficiency of the evidence to support the verdict, we need not discuss
    these alternative grounds. (Code Civ. Proc., § 657 [“[o]n appeal from an order granting a
    new trial the order shall be affirmed if it should have been granted upon any ground
    stated in the motion”]; Henderson v. Drake (1953) 
    118 Cal.App.2d 777
    , 790 [the
    appellate court must affirm the order granting the new trial if any one ground upon which
    it might have been granted is supported by the record]; Malkasian v. Irwin (1964)
    
    61 Cal.2d 738
    , 745 [order granting new trial may be affirmed on any of the grounds
    presented in motion, regardless of whether alternative grounds presented have merit].)
    C. The Trial Court Correctly Denied CDCR’s Motion for JNOV
    CDCR has separately appealed from the order denying its motion for JNOV,
    arguing that the trial court “should have gone further” than merely granting a new trial
    because the evidence was incapable of supporting the jury’s verdict. We disagree.
    was not contained in Plaintiff’s administrative claim and therefore cannot form the basis
    for his claim under Labor Code [section] 6310. Therefore, any jury determination that
    relied solely or in part on this alleged violation would be improper.” Thus, in context, the
    trial court was merely responding to an argument made by plaintiff and expressing the
    view that, even if it had been convinced by plaintiff’s argument, such a hypothetical
    scenario might have resulted in the grant of new trial based upon an error of law.
    Contrary to plaintiff’s argument on appeal, the trial court was permitted to comment on
    this matter, even if CDCR did not make such an argument in its supporting
    memorandum, as error of law was identified as a ground for new trial in CDCR’s notice.
    (See McCarty v. Department of Transportation (2008) 
    164 Cal.App.4th 955
    , 983 [trial
    court may grant motion for new trial on error in law, even if “it happened to be a different
    error in law” than that identified by the moving party].)
    28
    1. General Legal Principles and Standard of Review
    “An appeal may be taken from an order denying a motion for [judgment
    notwithstanding the verdict] even where the trial court has granted, or denied, a new trial
    motion.” (Saxena v. Goffney (2008) 
    159 Cal.App.4th 316
    , 324.) “ ‘ “ ‘A motion for
    judgment notwithstanding the verdict may be granted only if it appears from the
    evidence, viewed in the light most favorable to the party securing the verdict, that there is
    no substantial evidence in support. . . . [T]he standard of review [on appeal] is whether
    any substantial evidence—contradicted or uncontradicted—supports the jury's
    conclusion.’ ” [Citation.]’ . . . ‘ “When an appellate court reviews an order granting
    JNOV, it will ‘ “ ‘resolve any conflict in the evidence and draw all reasonable inferences
    therefrom in favor of the jury’s verdict.’ ” ’ ” ’ ” (Johnson & Johnson, supra,
    37 Cal.App.5th at pp. 313-314.)
    We emphasize that this is a different standard of review than that employed to
    review the sufficiency of the evidence for purposes of granting a motion for new trial.
    (Johnson & Johnson, supra, 37 Cal.App.5th at pp. 336-337.) Thus, where the evidence is
    in conflict, the same record may be sufficient to conclude that the jury’s verdict is
    supported by substantial evidence for purposes of affirming the trial court’s denial of a
    motion for JNOV and also sufficient to support a contrary verdict for purposes of
    affirming the trial court’s order granting a new trial. (Ibid.)
    2. Manavian Is Not Controlling
    Initially, we address CDCR’s argument that plaintiff’s communications cannot be
    considered protected whistleblowing as a matter of law under Manavian v. Department of
    29
    Justice (2018) 
    28 Cal.App.5th 1127
     (Manavian). In Manavian, the plaintiff was a high
    level government administrative employee who asserted he engaged in whistleblower
    activity by sharing concerns over the legality of proposed policies regarding intelligence
    collection and information sharing by state and federal law enforcement organizations.
    (Id. at p. 1143.) The Court of Appeal concluded that the plaintiff’s actions could not
    constitute protected activity under section 1102.5 because the plaintiff’s “discussions of
    his concerns were within his job duties as an upper-level administrator and were not
    protected disclosures.” (Id. at p. 1145.) However, we find the reasoning of Manavian
    unpersuasive.
    In reaching its conclusion, the Court of Appeal in Manavian looked to “federal
    cases interpreting the federal Whistleblower Protection Act (WPA) of 1989 to guide [its]
    interpretation of the California whistleblower statutes.” (Manavian, supra,
    28 Cal.App.5th at p. 1144.) While we find no fault in its interpretation of federal
    authorities, we respectfully question whether this was the appropriate analytical
    framework to employ in order to interpret the scope of protected activity under section
    1102.5.
    Unlike the WPA, section 1102.5, subdivision (b), includes an express provision
    that states an employee may be entitled to protection under the statute “regardless of
    whether disclosing the information is part of the employee’s job duties.”10 Thus, we
    10  The Court of Appeal in Manavian appears to have acknowledged this language
    in the statute but gave it no consideration in conducting its analysis. (Manavian, supra,
    28 Cal.App.5th at p. 1141, fn. 5.)
    30
    believe the issue is more appropriately resolved by employing the traditional rules of
    statutory interpretation rather than looking to federal cases interpreting a parallel, but
    different statutory scheme. Under these rules, “ ‘ “[t]he statute’s words generally provide
    the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘there
    is no need for judicial construction and a court may not indulge in it.’ . . . ‘[I]f there is
    no ambiguity in the language, we presume the Legislature meant what it said and the
    plain meaning of the statute governs.’ ” ’ ” (MCI Communications Services, Inc. v.
    California Dept. of Tax & Fee Administration (2018) 
    28 Cal.App.5th 635
    , 643.) Here,
    the phrase “regardless of whether disclosing the information is part of the employee’s job
    duties” is clear and unambiguous. At the very least, the language precludes the
    interpretation urged by CDCR that an employee cannot be considered to have engaged in
    protected activity if the employee’s disclosures were part of her regular job duties.
    We acknowledge that the phrase, “regardless of whether disclosing the
    information is part of the employee’s job duties,” was added to section 1102.5,
    subdivision (b), after the events subject of this litigation.11 However, even before this
    language was added, the Courts of Appeal had already interpreted the former version of
    section 1102.5, subdivision (b) (Stats. 2003, ch. 484, § 2), to include such protection.
    (See Colores v. Board of Trustees (2003) 
    105 Cal.App.4th 1293
    , 1312-1313 [excluding
    employee from section 1102.5’s protection because she was “simply doing her job”
    “applies the concept of whistleblowing too narrowly”]; Mize-Kurzman, supra,
    11  The phrase was added by amendment in 2013, becoming effective
    January 1, 2014. (Stats. 2013, ch. 577, § 5.)
    31
    202 Cal.App.4th at p. 858 [the trial court “erred in instructing the jury that information
    passed along to a supervisor in the normal course of duties was not a protected
    disclosure” because “it cannot categorically be stated that a report to a supervisor in the
    normal course of duties is not a protected disclosure”];12 McVeigh v. Recology San
    Francisco (2013) 
    213 Cal.App.4th 443
    , 469 [reversing summary judgment because “[a]n
    employee’s report of illegal activity can, in any event, constitute protected conduct under
    Labor Code section 1102.5, subdivision (b) even if she ‘ “was simply doing her job” ’ in
    making the report”].)
    Because the Courts of Appeal had long recognized that section 1102.5,
    subdivision (b), applied even in situations in which an employee’s disclosure might have
    been part of his or her regular job duties, the addition of such language to the statute did
    nothing to change the scope of activity already recognized as protected under existing
    law. Thus, the phrase “regardless of whether disclosing the information is part of the
    employee’s job duties” must necessarily be viewed as a clarification of existing law,
    which applies even to acts that predate its enactment. (Western Security Bank v. Superior
    Court (1997) 
    15 Cal.4th 232
    , 252 [where a legislative enactment does “not effect any
    12 Curiously, Manavian cites to portions of Mize-Kurzman in support of its
    reasoning but does not refer to the portion of Mize-Kurzman that actually considered the
    same issue presented in Manavian. (Manavian, supra, 28 Cal.App.5th at p. 1145.)
    Instead, Manavian, refers to a portion of Mize-Kurzman that discusses whether it was
    appropriate to instruct a jury that “efforts to determine if a practice violates the law are
    not protected disclosures.” (Manavian, at p. 1145; see Mize-Kurzman, supra,
    202 Cal.App.4th at pp. 849, 859-860.) However, Mize-Kurzman separately discussed the
    propriety of an instruction that “[i]nformation passed along to a supervisor in the normal
    course of duties is not a protected disclosure” and reached a conclusion contrary to that
    reached in Manavian. (Mize-Kurzman, at pp. 849, 856-858.)
    32
    change in the law, but simply clarifie[s] and confirm[s] the state of the law” it does “not
    change the legal effect of past actions”]; see Carter v. California Dept. of Veterans
    Affairs (2006) 
    38 Cal.4th 914
    , 922-923 [“ ‘ “ ‘An amendment which in effect construes
    and clarifies a prior statute must be accepted as the legislative declaration of the meaning
    of the original act . . . .’ ” ’ ”].)
    Thus, we disagree with CDCR that it is entitled to JNOV simply because reporting
    noncompliance with Perez mandates was within plaintiff’s regular job duties. The clear
    words of the statute, as clarified by the Legislature, preclude such an interpretation. To
    the extent Manavian can be relied upon to support a different conclusion, we are
    unpersuaded by its reasoning.
    3. Substantial Evidence in the Record Supports the Jury’s Verdict
    Other than its assertion that Manavian entitles it to judgment, as a matter of law,
    on plaintiff’s section 1102.5 claim, CDCR contends the trial court should have granted its
    motion for JNOV “for the same reasons CDCR was properly granted a new trial.”
    However, as we have already explained, the standard of review on a motion for JNOV
    differs substantially from the one used to evaluate the propriety of the trial court’s grant
    of a new trial. On a motion for JNOV, we review the jury’s verdict and determine
    whether it is supported by substantial evidence, even if conflicting evidence would
    support a contrary finding by the trial court in granting a new trial.
    Here, substantial evidence in the record permits a trier of fact to conclude that
    plaintiff engaged in protected activity under both section 1102.5 and section 6310.
    Plaintiff testified that he subjectively believed that the failure of ISP’s dental staff to
    33
    properly follow policies amounted to a violation of rights guaranteed under the Perez
    mandates and the Eighth Amendment of the United States Constitution. Likewise,
    plaintiff testified that he reported what he believed to be a violation of workplace
    occupational health and safety rules to Dr. Culton. While the trial court was not required
    to find this testimony credible in ruling on the motion for new trial, such evidence could
    support a contrary finding that plaintiff engaged in protected activity.
    Further, it was undisputed that plaintiff was given formal notice of CDCR’s
    decision not to hire him for the permanent chief dentist position shortly after his meeting
    with Dr. Culton, in which plaintiff purportedly made whistleblower complaints. This was
    substantial evidence upon which a jury could rely to infer a causal link between the
    alleged protected activity and alleged retaliatory action (Morgan, supra, 88 Cal.App.4th
    at pp. 69-70; Hawkins, supra, 40 Cal.App.5th at p. 394), even if the trial court was not
    required to draw such an inference in ruling on the motion for new trial.
    Finally, while we have concluded that the testimony of Dr. Culton would support a
    finding that CDCR had a legitimate, nonretaliatory reason for declining to hire plaintiff, a
    jury was not required to find Dr. Culton credible. (Howard v. Owens Corning (1999)
    
    72 Cal.App.4th 621
    , 632 [“ ‘ “provided the trier of fact does not act arbitrarily, he may
    reject in toto the testimony of a witness, even though the witness is uncontradicted” ’ ”].)
    Since CDCR bore the burden of proof with respect to the existence of a legitimate,
    nonretaliatory reason for the alleged adverse employment action under both section
    1102.6 or the McDonnell Douglas framework, to the extent a jury found Dr. Culton’s
    testimony lacked credibility, it was entitled to find in favor of plaintiff on this issue.
    34
    In this case, conflicting evidence was presented with respect to each of the reasons
    offered by the trial court for its conclusion that insufficient evidence supported the jury’s
    verdict. While the presence of conflicting evidence permits the trial court to assess the
    relative credibility of a witness and draw its own reasonable inferences in determining the
    sufficiency of the evidence to grant a new trial, it equally precludes a conclusion that
    CDCR was entitled to judgment as a matter of law. We find no error in the trial court’s
    denial of CDCR’s motion for JNOV and affirm that order.
    IV. DISPOSITION
    The orders are affirmed. Each party to bear its own costs on appeal.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    FIELDS
    J.
    We concur:
    RAMIREZ
    P. J.
    RAPHAEL
    J.
    35