(Super. Ct. No. 56-2009-00336219-CU-MC-VTA) Henry J. Walsh, Judge Superior Court County of Ventura
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Post hoc, ergo propter hoc is a Latin phrase ". . . used in logic to describe the fallacy of thinking that a happening which follows another must be its result . . . ." (Webster's New World Dict. (2d College ed. 1989) p. 1113, col. 1.) In other words, the propinquity of two events does not necessarily establish cause and effect. The key word here is "necessarily." County of Kern (County) argues that its filing of a False Claim Act (FCA, Gov. Code, § 12650 et seq.)against its former employee was not, and is not, a result of the employee's federal lawsuit against it.*fn1 At oral argument, County adamantly claimed that the two lawsuits have nothing to do with each other. But, as we shall explain, a trier of fact, i.e., the superior court, factually found that the propinquity of these two lawsuits was not a mere happenstance. Instead, it expressly found that the FCA complaint was filed to harass the employee and that it was frivolous. (§ 12652, subd. (g)(9).) It implicitly found that maintaining the FCA action was caused by the employee's lawsuit against County.
County ". . . has no appreciation for the trial court's order which can only be viewed as an adverse factual finding." (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) Where, as here, circumstantial evidence supports the adverse factual finding, it should be, and will be, affirmed on appeal. (Ibid.) We affirm the order awarding Doctor David F. Jadwin $50,820 attorney fees under the FCA.
Facts and Procedural History
Jadwin is the former chairman of the pathology department at Kern Medical Center, a hospital owned and operated by County. In 2006, County placed Jadwin on paid administrative leave after he complained about deficient patient care and hospital regulatory violations.
Jadwin sued County in federal court for employment retaliation, denial of his due process rights, and violation of federal and state employment laws. (Jadwin v. County of Kern, United States Dist. Ct., Eastern District of Cal., Case No. 1:07-cv-0026 OWW DLB.) While the federal lawsuit was pending, Jadwin remained on administrative leave and attended continuing medical education classes. He requested that County reimburse him for the continuing education and travel-related expenses which totaled $3,125.
County did not pay this claim and instead sued Jadwin in state court based on the theory that he falsely requested $3,125 in reimbursement within the meaning of the FCA. (§ 12651, subd. (a).)*fn2 The action was transferred to Ventura County and assigned to mandatory judicial arbitration. (Code Civ. Proc., § 1141.11.)
Jadwin propounded discovery, including requests for admission (RFAs) and written interrogatories. The RFAs asked County to admit that Jadwin actually incurred the continuing education related expenses and to admit that he did not knowingly submit false reimbursement claims. County denied the RFAs saying that "[w]e have no facts" and speculated that "Defendant may have knowingly submitted the false claims." Jadwin's motion to compel further responses was granted and County was ordered to pay $1,750 sanctions.*fn3 Thereafter, on January 29, 2010, the arbitrator denied the FCA claim and awarded Jadwin statutory costs. County then filed a dismissal without prejudice.
Jadwin filed an ex parte application to vacate the dismissal. He claimed that County was making a "mockery of the judicial arbitration process" and trying to avoid entry of judgment and attorney fees. His attorney declared that County was retaliating against Jadwin for filing the federal action which resulted in a $505,457 judgment against it. County filed ". . . the instant California False Claims Action against Dr. Jadwin in unlimited jurisdiction superior court, apparently in the hopes of recovering nominal damages . . . ."
County requested a hearing on the motion to vacate the dismissal. When the motion was argued, County claimed that the arbitrator "refused to allow" an indispensable witness, Chief Deputy Counsel Karen Barnes, to testify.
In his reply papers, Jadwin stated that County was granted numerous continuances and "the arbitrator held, not one, but two arbitration sessions: the first on 11/19/09 and the second on 1/18/10. Defendant [Jadwin] subpoenaed Ms. Barnes to appear at both arbitration sessions and she attended the first session. [County] had plenty of opportunity to examine Ms. Barnes at the 11/19/09 session but did not do so. [¶] In addition, when Ms. Barnes failed to show at the second session due to what [County] described as 'pre-existing work commitments', the arbitrator asked [County] to give an offer of proof as to Ms. Barnes' unavailability. [County] declined . . . . [¶] . . . [A]t the conclusion of the arbitration, Defendant invited [County] to state in closing argument whatever testimony Ms. Barnes would have given had she attended the second session, assuring [County] that he would not object. The arbitrator immediately agreed and added that he would in fact be 'very interested' to hear what Ms. Barnes 'essential' and 'indispensable' testimony would have been. [County] declined the invitation. [¶] [County's] insinuation that the arbitrator somehow denied [County] a fair trial by barring the testimony of Ms. Barnes is false and does a disservice to the arbitrator and to the arbitration process itself."
The trial court vacated the dismissal and entered judgment on the arbitration award. The trial court found that County did not have the unfettered right to dismiss the action to avoid entry of judgment or attorney fees. (See Kelly v. Bredelis (1996) 45 Cal.App.4th 1819, 1826-1827.) The court noted that the arbitrator awarded Jadwin ...