Trial Judge: Honorable Verna Alana Adams Trial Court: Marin County Superior Court (Marin County Super. Ct. No. CV073384)
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
Plaintiff Pamela Mize-Kurzman appeals from a judgment in favor of defendants Marin Community College District and its Board of Trustees (collectively "district"), following a jury trial on her claims that the district was liable under two California "whistleblower" protection statutes, Labor Code section 1102.5 and Education Code section 87160 et seq. Plaintiff contends the trial court committed reversible error in jury instructions it gave that were patterned upon federal law; that the errors were compounded by erroneous answers to the jury's questions; that the court unduly pressured the jury to return a verdict; and that the court committed reversible error when it allowed the district to present evidence of plaintiff's retirement pension on the issue of her mitigation of damages and instructed the jury that it could determine whether such retirement pension should reduce any damages. We shall conclude that three of the court's instructions were erroneous and require reversal and remand for a new trial.
FACTS AND PROCEDURAL BACKGROUND*fn1
Plaintiff has been employed by the district since July 1, 1973. From 1981 through June 30, 2007, she was employed as an administrator. She was promoted to Dean of Enrollment Services in 1994, pursuant to the settlement of a previous lawsuit against the district. (The Dean was an "at will" position.) In July 2004, Frances White became the Superintendent and President of the District. Plaintiff was one of several Vice Presidents and Deans who reported directly to White. In January 2005, in addition to plaintiff's regular duties as Dean of Enrollment Services, Development and Special Programs, White assigned plaintiff the duties of the recently vacated position of Dean of Student Development and Special Services. Plaintiff was also appointed to act as interim Dean for Social and Behavioral Sciences. On January 29, 2006, Anita Martinez was hired as the Vice President of Student Learning and was plaintiff's direct supervisor.
Beginning in April 2006, plaintiff made four claimed disclosures of what she believed to be violations of law or regulations to various individuals and entities:
1.) Alleged tampering with the hiring process. In April 2006, plaintiff reported to White her concerns that there had been an interference in the hiring process for the position of Director of Student Support Services and English as a Second Language (ESL). Plaintiff was on the interview committee that was to recommend candidates to White. The committee met and unanimously recommended one candidate. The Human Resources clerk immediately made a call and then informed the committee that the "President" wanted it to recommend an additional candidate, and the committee did so. The Human Resources clerk then told the committee that the President wanted three candidates from which to choose. The committee refused to recommend a third candidate. After the committee made its recommendation of two candidates, plaintiff sought out White, who was not on campus. Plaintiff realized the Human Resource clerk had been talking to Martinez and not to White. Plaintiff met with Martinez and told her what had happened in the committee. Martinez was visibly angry and told plaintiff that Martinez wanted a specific person for the position. On April 8, 2006, plaintiff sent an e-mail to White, stating that the committee had "the strong opinion that the job was being set up for a specific candidate." Although plaintiff did not advise White that she thought the interference by Martinez was illegal, she believed White would know this because White's website contained an Education Code section stating jobs could not be promised to someone and that the process was required to be fair and open. Plaintiff testified that she viewed Martinez's apparent effort to include a particular person as a finalist as "tampering with the process." She believed Martinez's interference was a violation of the Education Code and she wanted to warn White.
2.) La Academia grant. Also in April 2006, plaintiff reported to Martinez and White that she believed certain provisions of the La Academia Project in the Educational Excellence Innovation Fund (EEIF) proposal for 2006-2007, were unconstitutional in targeting scholarship moneys to Hispanic students. Plaintiff had no involvement with the EEIF program, which was unrelated to her department. Plaintiff had heard that the EEIF proposal granted scholarships from district funds for Latino students only. (White, who had created the EEIF at the College of Marin, testified that was not in fact the case.) Plaintiff was concerned this might be an illegal use of public funds "to fund a specific ethnic group or provide services for a specific ethnic group . . . ." She checked with the district's outside legal counsel (colloquially referred to as "Bob Henry's office"), and was given general advice that "the Latino student scholarship fund violates the California Constitution if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin."
On April 10, 2006, plaintiff sent an e-mail to White, copying Martinez and others, incorporating the response from outside legal counsel that "A Latino student scholarship fund violates the law if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin" and stating she had confirmed this with Bob Henry's office. Martinez at some point met with the grant proposer and pointed out that publicly funded programs, including the EEIF, could not discriminate against students and that the grant had to be rewritten so that it would serve all qualified and eligible students. The grant was revised to take out the singular reference to Latinos. White testified that she told plaintiff the EEIF was not for scholarships. Martinez testified she already knew about these types of programs, that what plaintiff said about the unlawfulness of using state money in targeted scholarships was accurate, but that Martinez did not need to see a legal opinion about it. Martinez verbally ordered plaintiff not to contact outside counsel without checking with her first.
3.) Registration without payment of fee. In July and August 2006, plaintiff told Martinez that she believed the district's new policy of allowing students who owed fees to register even if they had outstanding unpaid fees, and also without paying the then current registration fee, was illegal. Plaintiff based her assertion on information she had received in the past from Bob Henry's office and from the Chancellor's Office. She also conducted an internet survey on a list-serv of colleagues on this issue. On August 24, 2006, plaintiff sent an e-mail to Martinez raising the issue of the legality of the directive. By late August, White knew plaintiff was questioning whether it was appropriate for the district to register students who owed fees to the college. Plaintiff testified she was "fairly certain" the policy directive from Martinez violated the Education Code. She believed there was a significant risk of liability to the district and could result in penalties upon the college. On September 19, 2006, plaintiff reviewed a legal opinion on the Chancellor's Office Web site and sent an e-mail to Ralph Black, Counsel for the Chancellor's Office, on the topic. Plaintiff received a response from Black, citing an opinion of the Chancellor's Office on October 26, 2006, and forwarded it to Martinez, who shared it with White. White knew of this opinion that the district should not allow indefinite deferral of fees. At trial, the legal experts for the parties disagreed as to whether a community college was required to deny enrollment to students who owed money.
4.) Citizenship inquiries. In February 2006, Martinez had directed plaintiff to remove questions asking students to provide citizenship and residency information from the credit class application for admission. Based on information she had received from Bob Henry's office and the Chancellor's Office over the years, plaintiff told Martinez she believed the policy was illegal. In March, Martinez made statements at a meeting of the college's Management Council that plaintiff attended, stating that the college did not have to ask for citizenship information on the noncredit application. In connection with this directive, plaintiff inquired of Black of the Chancellor's Office whether student residency information should be retained for noncredit students. In March 2007, plaintiff informed Martinez that the information was a legally required element of data collected by the California Community Colleges Chancellor's Office. At trial, the parties' experts disagreed as to whether community college districts were required to classify every student, including those enrolling exclusively in noncredit classes, as either residents or nonresidents.
Following plaintiff's April 10, 2006 e-mail to White and others stating that she believed the La Academia Project violated the California Constitution, White responded to her that the EEIF was "not for scholarships." A trail of e-mails ensued and on April 11, 2006, Martinez directed plaintiff in writing "per my last email, could you please delay further inquiry until we discuss how best to proceed." On April 11, 2006, White directed plaintiff to "please stop the email discussion." Martinez directed plaintiff that she "should not call Bob Henry's office," because the district's legal expenses "were getting high." (Martinez testified she directed plaintiff not to contact any legal counsel--and did not limit the prohibition to Bob Henry's office.)
In July 2006, plaintiff discovered via an organizational chart that the district had reorganized her position, changing her title to Dean of Enrollment Services, and taking away a significant number of her duties including her membership in the Academic Standards committee, which she considered one of the most important elements of her job, as it involved policy-making and ensuring the district complied with education laws. She considered this a demotion.
In the Fall 2006, White implemented a new policy restricting contact with outside counsel. She directed that Deans and Directors should not contact attorneys without prior approval.
Plaintiff sent Martinez an email on October 30, 2006, alleging Martinez had directed her to do "something illegal" by allowing students to register with outstanding debts and that this could expose the district to a large monetary penalty. In response, Martinez issued four written orders to plaintiff, reprimanding her for seeking a legal counsel opinion from the Chancellor's Office in violation of Martinez's previous directive and for attempting "to cast [herself] in the role of a whistleblower." Martinez ordered plaintiff to speak with Martinez first, in the event she believed some action the college had taken or would take was impermissible, illegal or fiscally unsound and that Martinez would request a legal opinion or advice and/or speak with Cabinet. Second, plaintiff was to seek Martinez's permission before circulating questions or participating in any email discussion on any official community college list-servs on any topic related to the legality or permissibility of college actions. Third, she was to provide Martinez a copy of any correspondence she undertook on behalf of the college regarding general policy or practice, especially if questions of legality or permissibility could arise. Fourth, she was not to contact legal counsel in the Chancellor's Office, unless she had gone through the administrative process, including receiving Martinez's express permission. Failure to comply with the directives would "be seen as insubordination."
Plaintiff disputed Martinez's imposition of discipline as unwarranted. Martinez responded that "a further response from you will be deemed an act of insubordination."
At the last regular board meeting before the March 15, 2007 deadline to give notice of removal to an administrator, upon the recommendations of White and Martinez, the Board released plaintiff from her administrative assignment and placed her on immediate paid administrative leave. Earlier that day, White and Martinez had signed a negative performance evaluation of plaintiff. Plaintiff was not shown the evaluation on that date, although she testified she had been available. Because plaintiff had tenure rights in the district, she was reassigned to a counselor position with the district. She was serving in that position at the time of trial.
Plaintiff filed her initial complaint on July 19, 2007, and a first amended complaint on January 16, 2008. The court dismissed four of plaintiff's causes of action and the case proceeded to trial on three causes of action alleging violations of Labor Code sections 1102.5, subdivisions (a) and (b) and violation of Education Code section 87160, et seq. On September 8, 2009, plaintiff dismissed her Education Code claim against individual defendants White and Martinez.
The jury deliberated from September 9 through 11, 2009. It found against plaintiff on all three of her claims. This timely appeal followed.
The court gave two special instructions explaining the requirements for whistleblower claims under the Labor Code and Education Code sections at issue. Plaintiff contends Special Jury Instructions Nos. 2 and 3 contained five federally-based limitations on what constituted "disclosures" that were inapplicable to her California "whistleblower" claims under Labor Code section 1102.5, subdivision (b)*fn2 and Education Code sections 87160 through 87164.*fn3 She further contends that even if federal law provided applicable standards, the instructions given were erroneous interpretations of the federal law.
Plaintiff challenges that portion of special instruction number 2 regarding violation of Labor Code section 1102.5, subdivision (b) that read:
"Plaintiff must prove that any disclosure of information was made in good faith and for the public good and not for personal reasons. Debatable differences of opinion concerning policy matters are not disclosures of information within the meaning of paragraph 1. Information passed along to a supervisor in the normal course of duties is not a disclosure of information within the meaning of paragraph 1. Reporting publicly known facts is not a disclosure of information within the meaning of paragraph 1. Efforts to determine if a practice violates the law are not disclosures of information within the meaning of paragraph 1."
Similarly, plaintiff contends the court erroneously included the following paragraph in special instruction number 3 regarding retaliation for whistleblowing in violation of Education Code section 87160 et seq.:
"A 'protected disclosure' means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence an improper governmental activity. In that regard, Plaintiff must prove that any disclosure was made in good faith and for the public good and not for personal reasons. Debatable differences of opinion concerning policy matters are not protected disclosures. Information passed along to a supervisor in the normal course of duties is not a protected disclosure. Reporting publicly known facts is not a protected disclosure. Efforts to determine if a practice violates the law are not protected disclosures."
" 'The propriety of jury instructions is a question of law that we review de novo. [Citation.]' (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)" (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 961.) Where it is contended that the trial judge gave an erroneous instruction, we view the evidence in the light most favorable to the claim of instructional error. (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra,¶ 8:120, pp. 8-75 to 8-76.) In other words, we assume the jury might have believed the evidence favorable to the appellant and rendered a verdict in appellant's favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674; Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655; Eisenberg, at ¶ 8:120, p. 8-76.)
" 'That is not to say, however, that a failure properly to instruct a jury is necessarily or inherently prejudicial.' [Citation.]" (Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 655.) "In Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule), the California Supreme Court definitively held, '[T]here is no rule of automatic reversal or "inherent" prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) . . . [¶] Instructional error in a civil case is prejudicial "where it seems probable" that the error "prejudicially affected the verdict." [Citations.]' (Soule, at p. 580.)" (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 961.)
B. Federally-Based Limitations on What Constitutes a Disclosure Protected Under the California Statutes Incorporated Into Special Jury Instructions Nos. 2 and 3
In explaining its decision to include the federally-based limitations in its special instructions number 2 and 3, the court acknowledged the absence of CACI jury instructions on what constitutes a "disclosure of information" (Lab. Code, § 1102.5, subd. (b)) or a "protected disclosure" (Ed. Code, § 87162, subd. (e)) and the dearth of California law on the subject. The court recognized it was not bound by federal decisions interpreting the federal "whistleblower" statutes, but found it "not inappropriate . . . to consider them on similar subject matter, particularly where a California statute is based on a [f]ederal statute." The court concluded that the Education Code statute was modeled on the federal Whistleblower Protection Act (WPA). Acknowledging the "linkage as to the Labor Code provision is not so obvious," the court, nevertheless, found no indication that the California Legislature intended the terms "disclosing information" (Lab. Code, § 1102.5, subd. (b)) and "protected disclosure" (Ed. Code, § 87162 subd. (e)) to have different meanings in those statutes. Finally, the court observed that "it would be a disservice to the jury not to tell them, based on well reasoned and . . . pertinent [f]ederal authority" what does not constitute "disclosing information" or "protected disclosure." "In my view, to do otherwise would be a disservice to the jury, and would not be in keeping with the mandate of Rule of Court 2.1050 [s]ubdivision (e)."
As the court recognized, California Rules of Court, rule 2.1050(e) provides in relevant part: "[w]henever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument."
As a general proposition, we conclude the court could properly craft instructions in conformity with law developed in federal cases interpreting the federal whistleblower statute. As the court acknowledged, it was not bound by such federal interpretations. Nevertheless, the court could properly conclude that the jury required guidance as to what did and did not constitute "disclosing information" or a "protected disclosure" under the California statutes.
The legislative history of the Education Code sections at issue leaves no doubt that they were intended to extend "whistleblower" protections of the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.) that apply to state employees, to public school and community college employees. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2472 (1999-2000 Reg. Sess.) as amended May 26, 2000, pp. 3, 7.) The California WPA, in turn, was "intended to align state 'whistleblower' statutes with those in existing federal law." (Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended Aug. 30, 1999, p. 2.) Contrary to plaintiff's suggestion that the "entire foundation" for the district's argument that the California WPA was based on the federal WPA was "one remark in a 1999 Senate Rules Committee analysis of a proposed amendment to the C[alifornia] WPA," virtually every analysis of that bill [Sen. Bill No. 951] stated that the "sponsor contends that this bill is intended to align state 'whistleblower' statutes with those in existing federal law." (See Assem. Bill Floor Analysis, 3d reading analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended Aug. 30, 1999, p. 2; Assem. Com. on Appropriations, Analysis of Sen. Bill 951 (1999-2000 Reg. Sess.) as amended July 15, 1999, p. 2; Assem. Com. on Public Employees, Retirement and Social Security, Analysis of Sen. Bill 951 (1999-2000 Reg. Sess.) as amended May 26, 1999, p. 2; Sen. Rules Com., 3d reading analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) April 28, 1999, p. 3; Sen. Public Employment and Retirement Com., analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) April 12, 1999, p. 2.) In fact, the April 12, 1999 analysis of the Senate Committee on Public Employment and Retirement states the subject matter/title of Senate Bill No. 951 as: "STATE EMPLOYEES: 'WHISTLEBLOWER' PROTECTION ENHANCEMENTS: ALIGNMENT WITH FEDERAL "WHISTLEBLOWER STATUTES". (Italics added.)
Moreover, nothing in the legislative history of the pertinent statutes or the case authorities indicate that the terms "disclosing information" and "a disclosure of information" in Labor Code section 1102.5 and "protected disclosure" in Education Code section 87162 were intended to have significantly different meanings. No particular definition of "disclosing information" or "disclosure of information" is provided in Labor Code section 1102.5. However, pursuant to subdivision (b) of that statute, the disclosure protected under section 1102.5 is one that is made "to a government or law enforcement agency, 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 state or federal rule or regulation." (Labor Code, § 1102.5, subd. (b).) Education Code section 87162 defines " '[p]rotected disclosure' " as "a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the following: [¶] (1) An improper governmental activity. [¶] (2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition." (Ed. Code, § 87162, subd. (e).)
Although the language of the federal Whistleblower Protection Act of 1989 (federal WPA) describing the conduct protected under that act (5 U.S.C. § 2302(b)(8)(A))*fn4 and conferring an individual right of action on the employee (5 U.S.C. § 1221(e))*fn5 , are not the same as used in the California statutes, the language and purpose of the statutes are sufficiently close to permit the court to use ...