Opinion
In LeVine v. Weis
(1998)
Facts
In 1993, Robert LeVine began work at the McBride School at Ventura County Juvenile Hall. Juveniles at McBride who were considered too dangerous to be let out of the units in which they were housed, were taught within the units. Classrooms in each of the four housing units were collectively called the “Unit School.” LeVine was the only teacher for between 90 and 120 students spread among the four locked classrooms.
The McBride School, including the Unit School, is operated by VCSS. From the first few months оf LeVine’s employment he met regularly with the VCSS’s court schools director, Philip Gore, and complained about the lack of staffing. Gore said LeVine would have to work on a mission statement before they could discuss
Like other California schools, the McBride School receives money from the state based on the average daily attendance (ADA). A former Unit School teacher testified that simple mathematics showed ADA money generated by the Unit School was not being spent there.
In August of 1994, LeVine wrote to Superintendent Charles Weis complaining about the lack of staffing. LeVine’s letter included a memorandum in which he stated his intention to “move to whatever level in the state or federal government is necessary to have these matters effectively resolved.” The memorandum recommended that VCSS “follow-up ... to insure the law is being complied with.”
Dale Strayhom was appointed principal in Octobеr of 1994. At a staff meeting held on December 14, 1994, LeVine asked Strayhorn why the most profitable program in court school history could not afford to have teaching personnel in each unit. LeVine threatened to contact the state Department of Education if he did not get an acceptable answer. Strayhorn became upset and began yelling. She told LeVine not to do something he would be sorry for. Strayhom ended the meeting and stormed out of the room.
LeVine received a memorandum from Strayhom dated December 19, 1994. The memorandum purported to reflect LeVine’s comments at the December 14 meeting. It characterized LeVine’s threat to bring unit school staffing matters to the attention of the Department of Education as a refusal to cooperate with Strayhom to resolve the problem. The memorandum stated it would be placed in LeVine’s personnel file.
On December 20, 1994, Strayhom called the assistant superintendent, Sandra Shakelford, concerning LeVine. Shakelford sent VCSS’s human resources director, Cary Dritz, to Strayhom’s office. Shakelford told Dritz to evaluate the situation and remove LeVine, if necessary.
LeVine was supervising a basketball game when he was told Strayhom wanted to talk with him. When he arrived in Strayhom’s office, Dritz was there. LeVine tape-recorded the conversation. Strayhom told LeVine that correctional staff had reported he was acting irrationally. She ordered him to go home for the rest of the week on sick leave. She said he could come back when he had a note from his doctor saying he was capable of coming back to work. Strayhom refused to tell LeVine the person who had reported irrational behavior. Shakelford admitted that she ratified the actions of Strayhom and Dritz.
No correctional staff member testified he or she told Strayhom that LeVine was acting irrationally. The two persons Strayhom identified in her deposition as having told her so, denied it. Members of the staff testified that LeVine was not behaving irrationally.
LeVine filed a grievance with the teachers union. On January 9, 1995, LeVine met with Dritz and the union president. After the meeting, Dritz sent LeVine a memorandum. The memorandum claimed that LeVine hаd agreed to return to work under nine conditions. The conditions included: 1) remain calm in a crisis; 2) listen without becoming defensive; 3) avoid “win-lose” conflicts; 4) maintain a “problem solving orientation”; 5) be courteous and considerate; 6) show respect for people in authority; 7) maintain a spirit of collegiality; 8) report all problems to the site administrator; and 9) communicate regularly with the site administrator.
By letter, dated January 23, 1995, Dritz notified LeVine that unless he returned to work on January 23, 1995, his position would be terminated. Dritz sent the letter to LeVine’s attorney. LeVine said he was not surprised that the letter was sent on the same day he was required to return to work. He believed it was consistent with the type of behavior he had experienced since he had been at the Unit School.
LeVine wrote to Dritz asking to be placed on leave. LeVine believed it would be better for future employment if his contract was allowed to expire instead of having his employment terminated. Weis dеtermined, however, that LeVine’s employment should be terminated for abandoning his position. On February 7, 1995, Dritz wrote to LeVine notifying him that his employment had been terminated.
LeVine did not have full-time employment for the next two years. Finally, in February of 1997, he obtained employment with the Los Angeles County Office of Education, teaching at a juvenile hall. In August of 1997, Dritz notified the California Commission on Teacher Credentialing that LeVine had abandoned his job. Weis was aware of and approved of Dritz’s action. The commission rejected the charge but the charge caused LeVine to be unemployed for seven months without pay.
The state Department of Finance investigated the McBride School’s claim for ADA funds. The investigation resulted in a letter to Weis. The letter stated that VCSS had no lawful basis for receiving state ADA funds in the absence of a showing that “each pupil was under the immediate supervision and control of an appropriately certified teacher” The letter concluded, “In summary, Mr. Weis, it would appear that your office has received state funds on the basis of reported ADA that dоes not comply with the law. . . .”
The Department of Education disagreed with the Department of Finance whether immediate supervision by a certified teacher was necessary to claim ADA funds. At the time of trial, each classroom in the Unit School had its own teacher.
The jury found VCSS, Weis, Dritz, Shakelford and Strayhom liable for violation of the False Claims Act. The jury awarded LeVine $350,000 for emotional distress, $86,158 for lost backpay and $50,000 for other economic loss. The trial court doubled the award of backpay and added interest pursuant to section 12653, subdivision (c). The total award was $627,207. The trial court also awarded $241,975 in attorney’s fees pursuant to section 12653, subdivision (c).
Discussion
I
The False Claims Act concerns claims made against the state or any of its political subdivisions for money, property or services. (§ 12650, subd. (b)(1).) The act provides for civil penalties against a person who, among other matters, “[kjnowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval.” (§ 12651, subd. (a)(1).)
Sеction 12653, subdivision (b), provides: “No employer shall discharge, demote, suspend, threaten, harass, deny promotion to, or in any other manner discriminate against, an employee in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652 [tо enforce the False Claims Act].”
II
VCSS contends the False Claims Act does not apply to it. VCSS concedes that in
LeVine
v.
Weis, supra,
Under the law of the case doctrine, our earlier opinion in this case determines the law governing any retrial or appeal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.) VCSS relies on the change of law exception to justify a departure from the doctrine. The doctrine does not apply where, in the interval between two appeals, the case law changed because former decisions werе overruled, or controlling authority established new precedent. (Id. at § 915, p. 951.)
But neither Vermont nor Trinkle overrules a former decision nor establishes new precedent by controlling authority. Neither case concerns, or even mentions, the California False Claims Act.
Vermont
concerns whether a private individual can bring suit on behalf of the United States against a state under the federal False Claims Act (31 U.S.C. § 3729 et seq.). The court concluded that the state was not a “person” subject to liability under the federal act. Although the California act is derived from, and is similar to the federal aсt, they are not the same. Most significantly, the federal act, unlike the California act, does not define “person.” Government Code section 12650, subdivision (b)(5), defines “person” as “any natural person, corporation, firm, association, organization, . . . business, or trust.” In addition, the court’s analysis of whether the state is a “person,” within the meaning of the act, included such concepts as the “usual constitutional balance between States and the Federal Government,” and whether such an action “would run afoul of the Eleventh Amendment. . . .”
(Vermont Agency of Nаtural Resources v. United States ex rel. Stevens, supra,
Vermont was influenced by a provision in the federal act allowing treble damages. (31 U.S.C. § 3729.) This provision if applied to the state would violate the federal policy against awarding punitive damages against a public entity. (Vermont Agency of Natural Resources v. United States ex rel. Stevens, supra, 529 U.S. at pp. 784-786 [120 S.Ct. at pp. 1868-1870].)
The California False Claims Act has a treble damages provision identical to the federal act (§ 12651) and a policy against awarding punitive damages against a public entity § 818).
This does not change the law of the case. We are not bound by a federal court’s interpretation of a federal act, even where both acts may contain some identical language. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 943, p. 984 [“Federal decisions are, of course, not controlling on matters of state law”].) Moreover, unlike Vermont, where the action was brought on behalf of the federal government, here LeVine brought his action on his own behalf under section 12650, subdivision (b)(1). The treble damages provision of section 12651 applies only to liability to the state or a political subdivision. Treble damages are not an. issue here.
In
Trinkle,
the court concluded that the California State Lottery was not subject to the Unfair Practices Act (Bus. & Prof. Code, § 17200 et seq.) In
our first opinion in this case, we discussed public entity immunity under the Unfair Practices Act and public entity liability under the False Claims Act. The discussion was based on the rule that governmental agencies are excluded from the general provisions of a statute only if their inclusion would result in an infringеment upon sovereign powers.
(LeVine v. Weis, supra,
Finally, VCSS contends section 818 prevents thе act from applying to it. Section 818 provides, in part: “Notwithstanding any other provision of law, a public entity is not liable for . . . damages imposed primarily for the sake of example and by way of punishing the defendant.”
Section 12653, subdivision (c), provides, in part: “An employer who violates subdivision (b) shall be liable for all relief necessary to make the employee whole, including reinstatement with the same seniority status that the employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, comрensation for any special damage sustained as a result of the discrimination, and, where appropriate, punitive damages.”
VCSS argues that the phrase “shall be liable,” as used in the subdivision, makes an award of double backpay mandatory. Assuming that to be so, it does not mean double recovery is punitive. Section 12653, subdivision (c), includes double backpay among those items “necessary to make the employee whole.” Thus the statute treats double backpay as remedial. Punitive damages is stated separately, only to be awarded “where appropriate.”
Moreover, “Damages which are punitive in nature, but not ‘simply’ or solely punitive in that they fulfill ‘legitimate and fully justified compensatory functions,’ have been held not to be punitive damages within the meaning of section 818 . . . .”
(People ex rel. Younger
v.
Superior Court
(1976)
VCSS prоvides no basis for departing from the law of the case as established in the prior appeal.
Ill
VCSS contends that LeVine never threatened to reveal that any defendant made a false claim. VCSS’s theory is that it did not make a false claim, at most, it did nothing more than make an internal misallocation of funds.
The False Claims Act must be construed broadly so as to give the widest possible coverage and effect to its prohibitions and remedies.
(Southern Cal. Rapid Transit Dist.
v.
Superior Court
(1994)
“In viewing the evidence, we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact. [Citation.] Where the trial court or jury has drawn reasonable inferences from the evidence, we have no power to draw different inferences, even though different inferences may also be reasonable. [Citation.]”
(Rodney F. v. Karen M.
(1998)
VCSS’s reliance on
U.S. ex rel. Hopper v. Anton
(9th Cir. 1996)
But here VCSS’s certification of the ADA constituted an actual claim for money based on a representation of fact. In the view of the Department of Finance, at least, one of the facts being represented is that the students for whom ADA is claimed were under the immediate supervision of a certified teacher. That manifestly was not true for the Unit School’s students. There was a reasonable basis for LeVine to believe VCSS had made false claims. To the extent Hopper may be read to the contrary, we decline to follow it.
VCSS argues the trial court erred in refusing to give proposed instructions regarding the definition of “claim.” But VCSS’s proposed defendant’s special instruction No. D-9 concerns liability to the state or a political subdivision.
2
Because
Defendant’s proposed special instruction No. D-10 provides, in part: “ ‘Claim’ includes any request or demand for money, property, or services made to any employee, officer, or agent of the state or of any political subdivision ... if any portion оf the money, property, or services requested or demanded issued from, or was provided by, the state ... or by any political subdivision thereof . . . .”
It is difficult to see how such an instruction would have been of any help to VCSS. It gives no precise definition of “claim,” but only states what that term “includes.” The proposed instruction excludes nothing from the definition of “claim.”
In any event, the term “false claim” employs ordinary English words. It has no technical meaning. No instruction defining the term was necessary.
IV
VCSS contends that individual defendants cannot be held liable under the False Claims Act.
In an unpublished portion of our prior opinion in this case, we concluded that governmental immunity (§ 821.6) barred LeVine’s nonstatutory causes of action for wrongful termination. Here, we consider the different question whether section 12653 imposes liability on anyone other than the employer. It appears to be a case of first impression.
Section 12653, subdivision (b), provides in part: “No employer shall. . . discriminate against, an employee . . . because of lawful acts done by the employee ... in furthering a false claims action . . . .” Subdivision (c) stаtes, in part: “An employer who violates subdivision (b) shall be liable for all relief necessary to make the employee whole . . . .”
By its terms section 12653, subdivision (c), imposes liability only on the employer. In contrast, subdivision (d)(2) precludes an employee who participates in presenting a false claim from recovering under the act, unless the employee had been coerced “by the employer or its management.”
If the Legislature had intended to impose liability on individuals or entities other than the employer, it would have said so. Thus, for exаmple, section 53298 prohibits retaliation against an employee of a local public agency who reports gross mismanagement or waste of public funds. Section 53298.5 imposes liability individually on “any local officer, manager, or supervisor” who violates section 53298 with malicious intent.
In
Reno
v.
Baird
(1998)
Although Reno considered a different statute and is based on policy considerations not necessarily relevant here, the case is still instructive. It shows that when the Legislature states that liability shall be on the employer, that should not, without more, be construed to include the employer’s managers as individuals. Here, there is no language in the statute showing the Legislature intended individual managers to be liable.
LeVine argues that Reno is actually favorable to him. He characterizes VCSS’s actions as harassment for which managers may be individually liable under FEHA. But the argument misses the point. FEHA expressly imposes liability for harassment on “an employer ... or any other person.” (§ 12940, subd. (j)(l).) The False Claims Act mentions only the employer and does not include “any other person” or similar language.
Southern California Rapid Transit District v. Superior Court, supra,
Southern California Rapid Transit District's,
relevance to this case is not enhanced by a footnote reference in
Caldwell v. Montoya
(1995)
But the statute under consideration here does not “focus in particular on thоse who act to suppress or punish . . . .” (Caldwell v. Montoya, supra, 10 Cal.4th at pp. 986-987, fn. 7.) It does not mention officers or employees as among those who might be liable. Instead, it imposes liability only on the employer.
The judgments against individual employees of VCSS must be reversed.
V
Finally, VCSS contends the trial court abused its discretion in awarding attorney’s fees without apportionment.
LeVine requested an award of $241,957 in attorney’s fees. The request was based on 976.9 hours at $250 per hour.
The judge who presided at trial is in the best position to determine the reasonableness of the fees. (See
Serrano v. Priest
(1977)
Here all causes of action arose out of the same facts. The nonstatutory wrongful termination claims were dismissed on summary adjudication and the contract cause of action was dismissed for failure to prosecute. The trial court could reasonably conclude that the amount of fees accrued solely on causes of action other than the Fair Claims Act was insignificant in light of the highly favorable judgment and the extreme reasonableness of the fees requested. There was no abuse of discretion.
The judgment against the individual defendants, Weis, Dritz, Shakelford and Strayhorn, is reversed. In all other respects the judgment is affirmed. Costs on appeal are awarded to LeVine.
Yegan, J., and Coffee, L, concurred.
A petition for a rehearing was denied July 25, 2001, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied October 10, 2001.
Notes
All statutory references are to the Government Code unless otherwise stated.
Defendant’s proposed special instruction No. D-9 provides: “Any persоn who commits any of the following acts shall be liable to the state or to the political subdivision for three times the amount of damages which the state or the political subdivision sustains because of the act of that person. A person who commits any of the following acts shall also be liable to the state or to the political subdivision for the costs of a civil action brought to recover any of those penalties or damages, and may be liable to the state or political subdivision for a civil penalty of up to ten thousаnd dollars ($10,000) for each false claim: fi[] (1) Knowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval. flQ (2) Knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the state or by any political subdivision. [1[] (3) Conspires to defraud the state or any political subdivision by getting a false claim allowed or paid by the state or by any рolitical subdivision. fl[] (4) Had possession, custody, or control of public property or money used or to be used by the state or by any political subdivision and knowingly delivers or causes to be delivered less property than the amount for which the person receives a certificate or receipt. [ID (5) Is authorized to make or deliver a document certifying receipt of property used or to be used by the state or by any political subdivision and knowingly makes or delivers a receipt that falsely represents the property used оr to be used. [H (6) Knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who lawfully may not sell or pledge the property. [^[] (7) Knowingly makes, uses or causes to be made or used a false record or statement to conceal, avoid or decease an obligation to pay or transmit money or property to the state or to any political subdivision. [^] (8) Is a beneficiary of an inadvertent submission of a false claim to the state or a political subdivision, subsequently discovers the falsity of the a claim, and fails to disclose the false claim to the state or the political subdivision within a reasonable time after discovery of the false claim.”