Second District, Division 6 Uses Analogous Federal Case Law in Reaching Result.
Under the False Claim Act (Gov Code, § 12650 et seq.), former section 12652(g)(9) provided that a trial court may award the prevailing defendant attorney’s fees if “the claim was clearly frivolous, clearly vexatious, or brought for purposes of harassment.” (Now, the current section effective January 1, 2010 has liberalized the discretionary award to encompass actions “brought primarily for purposes of harassment.”) This former section was front and center in the next case we examine, which is County of Kern v. Jadwin, Case No. B227276 (2d Dist., Div. 6 July 5, 2011) (certified for publication).
Plaintiff County of Kern was hit with a $50,820 fee award under FCA after the trial court found that its FCA claim had no support and was brought to retaliate against a former employee’s federal employment retaliation lawsuit in which he garnered a $505,457 judgment against County. A judicial arbitrator denied the FCA claim, and a trial court vacated County’s attempt to dismiss without prejudice and awarded $50.820 in fees to plaintiff after finding the FCA action was frivolous and brought to harass plaintiff.
County’s appeals of the merits and fee determinations were sustained on appeal.
Justice Yegan, writing on behalf of a unanimous panel of the 2/6 appellate court, used federal False Claims Act cases specifying that fee shifting will occur if the action has no reasonable chance of success from an objective standpoint. (Mikes v. Straus, 274 F.3d 687, 704 (2d Cir. 2001); U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 356 (4th Cir. 2009).) The total pattern of conduct showed that there was a “bad smell” to the FCA claim, with the appellate court seeing the same picture of harassment as did the trial court.
BLOG UNDERVIEW--Justice Yegan began by stating that post hoc, ergo propter hoc is a Latin phrase used to describe the logical fallacy that the propinquity of two events necessarily establishes cause and effect. Although County argued at the appellate argument that plaintiff’s lawsuit and the FCA action had nothing to do with each other, both the trial and appellate courts rejected this proposition, finding the FCA complaint was caused by the plaintiff employee’s lawsuit against County.
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