                                                                            FILED
                                                                            DEC 14 2016
                           NOT FOR PUBLICATION                           MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


SHAD THOMAS,                                     No.   14-56462

              Plaintiff-Appellant,               D.C. No.
                                                 8:13-cv-00275-DOC-JPR
 v.

COSTCO WHOLESALE                                 MEMORANDUM*
CORPORATION,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                         Judge David O. Carter, Presiding

                           Submitted October 19, 2016**
                               Pasadena, California

Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
      Appellant Shad Thomas appeals from the denial of his motions for a new

trial pursuant to Federal Rule of Civil Procedure 59 and attorneys’ fees pursuant to

California Code of Civil Procedure section 1021.5. His appeal follows a jury

verdict in favor of appellee on Thomas’s claims for violation of California Labor

Code section 1102.5 and for unlawful termination in violation of public policy. On

appeal, Thomas argues that the jury verdict was not supported by the weight of the

evidence, that certain jury instructions were improper, and that his motion for

attorneys’ fees should have been granted. We have jurisdiction pursuant to 28

U.S.C. section 1291 and now affirm.

      We review the district court’s ruling on a Rule 59 motion on the grounds

that a verdict is against the weight of the evidence for an abuse of discretion, and

we reverse “‘only where there is an absolute absence of evidence to support the

jury’s verdict.’” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (quoting

Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952, 957 (9th Cir. 1998)). We

review de novo the district court’s rulings as to: (i) challenges to statements of law

within jury instructions, Gantt v. City of Los Angeles, 717 F.3d 702, 706 (9th Cir.

2013), and (ii) whether a party has met the criteria for attorneys’ fees pursuant to




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California Code of Civil Procedure section 1021.5, Kona Enterprises, Inc. v. Estate

of Bishop, 229 F.3d 877, 883 (9th Cir. 2000).

      The district court did not abuse its discretion in concluding that the jury’s

verdict was not against the weight of the evidence. We see no “absolute absence

of evidence.” Desrosiers, 156 F.3d at 957. On the contrary, there was ample

evidence for the jury to have concluded that Thomas was terminated for

insubordination and not in retaliation for whistleblowing. Nor do we see errors in

the two categories of jury instructions that Thomas challenges, which we conclude

were in conformity with applicable law. California law allows “same decision”

instructions in this context. See Davis v. Farmers Ins. Exch., 245 Cal. App. 4th

1302, 1319–24 (2016) (citing Harris v. City of Santa Monica, 56 Cal. 4th 203

(2013)). We also conclude that the district court’s “business judgment”

instructions were proper. See generally Veronese v. Lucasfilm Ltd., 212 Cal. App.

4th 1, 20–24 (2012).

      Finally, we conclude that Thomas was not entitled to attorneys’ fees under a

“catalyst” theory because his sought-after relief was entirely unrelated to the

change in appellee’s behavior that Thomas claims he effected. See Graham v.

DiamlerChrysler Corp., 34 Cal. 4th 553, 560 (2004) (“Under the catalyst theory,


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attorney fees may be awarded even when litigation does not result in a judicial

resolution if the defendant changes its behavior substantially because of, and in the

manner sought by, the litigation.” (emphasis added), as modified (Jan. 12, 2005)).

      We have considered Thomas’ remaining contentions and find them to be

without merit.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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