California Court of Appeals, Second District, Third Division
[As modified Aug. 19, 2014.]
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEALS from a judgment and order of the Superior Court of Los Angeles County, No. BC370326 Victor E. Chavez, Judge.
[Copyrighted Material Omitted]
Love & Erskine, Richard A. Love and Beth A. Shenfeld for Plaintiff and Appellant and for Plaintiff and Respondent.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall for Defendants and Appellants and for Defendants and Respondents.
In a whistleblower retaliation lawsuit brought under Labor Code section former 1102.5, subdivision (b) (hereafter section 1102.5(b)),  the plaintiff must establish a prima facie case of retaliation. The plaintiff must show he engaged in protected activity, his employer subjected him to an adverse employment action, and there is a causal link between the two. If the plaintiff meets his prima facie burden, the defendant has the burden to prove a legitimate, non-retaliatory explanation for its actions. To prevail, the plaintiff has to show that the explanation is a pretext for the retaliation. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384 [37 Cal.Rptr.3d 113].)
In Hager v. County of Los Angeles (Mar. 25, 2010, B208941) [nonpub. opn.]) (Hager I), we held that plaintiff Darren Hager could pursue his
whistleblower retaliation lawsuit against his employers, defendants the County of Los Angeles and the Los Angeles County Sheriff’s Department (collectively, County). The County appeals from a judgment entered after a substantial jury verdict in Hager’s favor. Hager appeals from the postjudgment order denying his request for attorney fees.
The County’s principal contentions on appeal address two errors with respect to the parties’ burdens of proof. The County contends Hager did not prove that he engaged in a protected activity to establish a prima facie case of whistleblower retaliation (former $ 1102.5(b)) because he did not “disclose information, ” as that term has been defined in Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 858-859 [136 Cal.Rptr.3d 259] (Mize-Kurzman). The County also contends the trial court erred in relying on the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.) to exclude the County’s evidence of past conduct not included as a basis to terminate Hager during the administrative proceedings but presented in this civil action as additional reasons to support its decision to terminate Hager. The County also challenges the sufficiency of the evidence to support the damages award, raises evidentiary errors, and asserts juror misconduct.
We initially affirmed in part and reversed in part, concluding the trial court did not err in excluding evidence of past conduct and there was no substantial evidence to support the economic damages awarded to Hager. The County and Hager petitioned for rehearing. The County argued in its petition that we affirmed the exclusion of evidence of its undisclosed reasons to terminate Hager by improperly relying on Evidence Code section 352 without any support in the record that the trial court engaged in balancing the probative value of this evidence against the prejudicial impact. Hager argued in his petition that we omitted key facts that his termination constituted a “blot on his resume” and significantly impaired his future earning capacity, which is sufficient evidence to support the jury’s award of economic damages. We granted the petitions for rehearing to address these issues.
We conclude the County's interpretation of former section 1102.5(b) as limiting whistleblower protection to the first employee who discloses a violation of state or federal law
that had not been previously disclosed by another employee is contrary to tie plain statutory language and legislative intent in enacting former section 1102.5(b). In the unpublished portion of this opinion, we further conclude the trial court did not abuse its discretion in excluding evidence of undisclosed reasons for terminating Hager. The record contains affirmative indications the trial court considered and understood that the introduction of undisclosed reasons for the decision to terminate Hager was not relevant and was prejudicial. We further conclude there is no
substantial evidence to support the jury’s award of economic damages. Accordingly, we reverse that portion of the judgment, but in all other respects we affirm. We also affirm the order denying Hager’s motion for attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
Hager worked for the Los Angeles County Sheriff’s Department (LASD) as a deputy sheriff from 1988 to 2003. In 2000, Hager was appointed as the LASD liaison to a federal Drug Enforcement Agency (DEA) task force (DEA task force) investigating a large methamphetamine organization in the Antelope Valley. The DEA task force was formed after Hager brought information to his command staff that a felony suspect was willing to provide the names of several methamphetamine dealers in the Antelope Valley in exchange for leniency. By all accounts, the DEA task force was a success.
The informant also gave Hager information that linked the disappearance of a deputy sheriff with the methamphetamine organization in the Antelope Valley. While working on the DEA task force, Hager obtained information that led him to believe the missing deputy sheriff had been murdered. Hager accused another deputy of being involved in the murder, the cover up, and the illicit methamphetamine trade in the Antelope Valley. It is the disclosure of deputy misconduct that is central to Hager’s whistleblower retaliation lawsuit.
1. Alleged Disclosure of Deputy Misconduct
In June 1998, then off-duty deputy sheriff Jonathan Aujay, an ultra-marathon runner, disappeared while on a long-distance run at the Devil’s Punchbowl County Park in the Antelope Valley. The initial missing person’s investigation concluded that Aujay disappeared or committed suicide.
In December 1999, homicide detective Larry Joseph Brandenburg learned from another deputy sheriff that Aujay may have been murdered and that deputy sheriff Richard Engels may have been involved. Brandenburg’s captain, Frank Merriman, gave Brandenburg permission to reopen the cold case and investigate Aujay’s disappearance.
On March 2, 2000, Brandenburg contacted Hager and asked Hager to speak to his informant about “dirty deputies.” The informant told Hager that Engels was involved in narcotics and possibly in the disappearance of Aujay. Hager informed Brandenburg.
a. March 23, 2000 Disclosure of Deputy Misconduct
In a March 23, 2000 meeting, then assistant sheriff Larry Waldie was briefed on the information Hager had obtained regarding (1) the methamphetamine organization in the Antelope Valley, and (2) Engels’s possible involvement in narcotics and Aujay’s disappearance. Based on this information, Waldie approved LASD’s participation in the DEA task force. The DEA task force’s primary mission was to disrupt narcotics trafficking in the Antelope Valley. Hager, as a DEA task force officer, was ordered to conduct only the narcotics investigation. Waldie specifically ordered Hager and the DEA task force not to investigate deputy sheriff wrongdoing or Aujay’s disappearance. Any information the DEA task force learned concerning deputy sheriff wrongdoing was to be documented and passed on to either the Internal Criminal Investigations Bureau (ICIB) or the Internal Affairs Bureau (IAB), and any information concerning Aujay was to be passed on to the homicide bureau and Brandenburg.
b. Hager’s Daily Reports to Shreves
While a member of the DEA task force, Hager reported to lieutenant Ronald Shreves on a daily basis. The DEA task force followed federal drug enforcement protocol and obtained information from cooperating sources, and as the investigation continued, obtained information through corroborating sources. The DEA task force also filed ...