Government Liability Update

Although False Claims Action Cannot Be Brought against Public Agency, Agency Is Subject to Whistleblower Actions under Act

In Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, the California Supreme Court held that a public agency could not be a defendant in an action under the California False Claims Act (Government Code section 12650 et seq.) because it was not a "person" subject to that statute.  In so ruling, the court disapproved LeVine v. Weis (1998) 68 Cal.App.4th 758 and LeVine v. Weis (2001) 90 Cal.App.4th 201, in which the Second District Court of Appeal, Division 6 ruled that public entities and agencies could be sued under the Whistleblower provisions of the Act.

In Cordero-Sacks v. Hous. Auth. of L.A., however, published November 17, 2011, DIvision 8 of the Second District Court of Appeal ruled that while a public agency is not a "person" under the False Claims Act, it is an "employer" under the Act; and it is therefore subject to the whistleblower provisions of the Act.  The Cordero-Sacks court concluded that although Wells disapproved the LeVine cases, Wells did not discuss whether a governmental agency was an “employer” subject to liability for retaliatory discharge.

Third Party Co-Participant's Conviction May Not Bar Wrongful Death Lawsuit

Heck v. Humphrey (1994) 512 U.S. 477 and Yount v. City of Sacramento (2008) 43 Cal.4th 885 hold that a plaintiff convicted of a crime cannot sue the police for violation of the plaintiff's civil rights, under either 42 U.S.C. section 1983 (Heck) or analogous California state law torts (Yount), if proving the civil case would necessarily imply the plaintiff's conviction was invalid.  In Beets v. County of Los Angeles, published November 9, 2011, the Second District Court of Appeal, Division Eight, ruled that this rule did not apply in a case where one co-participant in a crime is killed in the course of the crime, and the other co-participant is convicted of the crime.     Agreeing with the Ninth Circuit's decision in Cunningham v. Gates (9th Cir. 2002) 312 F.3d 1148, the Beets court concluded that unless the elements of collateral estoppel applied -- i.e., the issues in the wrongful death suit for the deceased co-participant are identical to those raised in the living co-participant's criminal trial; the living co-participant is convicted; and the heirs to the deceased co-participant are in privity with the living co-participant during the trial, Heck and Yount do not bar the wrongful death suit.