CACI No. 4600. False Claims Act: Whistleblower Protection - Essential Factual Elements (Gov. Code, § 12653)

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
4600.False Claims Act: Whistleblower Protection - Essential
Factual Elements (Gov. Code, § 12653)
[Name of plaintiff] claims that [name of defendant] [discharged/specify
other adverse action] [him/her/nonbinary pronoun] because
[he/she/nonbinary pronoun] acted [in furtherance of a false claims action/
to stop a false claim by [name of false claimant]]. A false claims action is
a lawsuit against a person or entity that is alleged to have submitted a
false claim to a government agency for payment or approval. A false
claim is a claim for payment with the intent to defraud the government.
In order to establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of plaintiff] was an employee of [name of defendant];
2. That [name of false claimant] was alleged to have defrauded the
government of money, property, or services by submitting a false
or fraudulent claim to the government for payment or approval;
3. That [name of plaintiff][specify acts done in furthering the false
claims action or to stop a false claim];
4. That [name of plaintiff] acted [in furtherance of a false claims
action/to stop a false claim];
5. That [name of defendant] [discharged/specify other adverse action]
[name of plaintiff];
6. That [name of plaintiff]’s acts [in furtherance of a false claims
action/to stop a false claim] were a substantial motivating reason
for [name of defendant]’s decision to [discharge/other adverse
action] [him/her/nonbinary pronoun];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[An act is “in furtherance of” a false claims action if
[[name of plaintiff] actually filed a false claims action [himself/herself/
nonbinary pronoun].]
[or]
[someone else filed a false claims action but [name of plaintiff]
[specify acts in support of action, e.g., gave a deposition in the action],
which resulted in the retaliatory acts.]
[or]
[no false claims action was ever actually filed, but [name of plaintiff]
1294
Copyright Judicial Council of California
had reasonable suspicions of a false claim, and it was reasonably
possible for [name of plaintiff]’s conduct to lead to a false claims
action.]
The potential false claims action need not have turned out to be
meritorious. [Name of plaintiff] need only show a genuine and reasonable
concern that the government was being defrauded.]
New December 2012; Revoked June 2013; Restored and Revised December 2013;
Renumbered from CACI No. 2440 and Revised June 2015
Directions for Use
The whistleblower protection statute of the False Claims Act (Gov. Code, § 12653)
prohibits adverse employment actions against an employee who either (1) takes
steps in furtherance of a false claims action or (2) makes efforts to stop a false
claim violation. (See Gov. Code, § 12653(a).)
The second sentence of the opening paragraph defines a false claims action in its
most common form: a lawsuit against someone who has submitted a false claim for
payment. (See Gov. Code, § 12651(a)(1).) This sentence and element 2 may be
modified if a different prohibited act is involved. (See Gov. Code,
§ 12651(a)(2)-(8).)
In element 3, specify the steps that the plaintiff took that are alleged to have led to
the adverse action.
The statute reaches a broad range of adverse employment actions short of actual
discharge. (See Gov. Code, § 12653(a).) If the case involves an adverse employment
action other than termination, specify the action in elements 5 and 6. These
elements may also be modified to allege constructive discharge. See CACI No.
2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive
Discharge” Explained, for instructions under the Fair Employment and Housing Act
that may be adapted for use with this instruction.
Element 6 uses the term “substantial motivating reason” to express both intent and
causation between the employee’s actions and the discharge. “Substantial motivating
reason” has been held to be the appropriate standard under the Fair Employment
and Housing Act to address the possibility of both discriminatory and
nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial
Motivating Reason” Explained.) Whether the FEHA standard applies to cases under
the False Claims Act has not been addressed by the courts.
Give the last part of the instruction if the claim is that the plaintiff was discharged
for acting in furtherance of a false claims action.
Sources and Authority
• False Claims Act: Whistleblower Protection. Government Code section 12653.
WHISTLEBLOWER PROTECTION CACI No. 4600
1295
Copyright Judicial Council of California
• “The False Claims Act prohibits a ‘person’ from defrauding the government of
money, property, or services by submitting to the government a ‘false or
fraudulent claim’ for payment.” (Cordero-Sacks v. Housing Authority of City of
Los Angeles (2011) 200 Cal.App.4th 1267, 1273 [134 Cal.Rptr.3d 883].)
• “To establish a prima facie case, a plaintiff alleging retaliation under the CFCA
must show: ‘(1) that he or she engaged in activity protected under the statute;
(2) that the employer knew the plaintiff engaged in protected activity; and (3)
that the employer discriminated against the plaintiff because he or she engaged
in protected activity.’ ” (McVeigh v. Recology San Francisco (2013) 213
Cal.App.4th 443, 455 [152 Cal.Rptr.3d 595].)
• “ ‘As a statute obviously designed to prevent fraud on the public treasury,
[Government Code] section 12653 plainly should be given the broadest possible
construction consistent with that purpose.’ ” (McVeigh, supra, 213 Cal.App.4th at
p. 456.)
• “The False Claims Act bans retaliatory discharge in section 12653, which speaks
not of a ‘person’ being liable for defrauding the government, but of an
‘employer’ who retaliates against an employee who assists in the investigation or
pursuit of a false claim. Section 12653 has been ‘characterized as the
whistleblower protection provision of the [False Claims Act and] is construed
broadly.’ ” (Cordero-Sacks, supra, 200 Cal.App.4th at p. 1274.)
• “[T]he act’s retaliation provision applies not only to qui tam actions but to false
claims in general. Section 12653 makes it unlawful for an employer to retaliate
against an employee who is engaged ‘in furthering a false claims action,
including investigation for, initiation of, testimony for, or assistance in, an action
filed or to be filed under Section 12652.’ ” (Cordero-Sacks, supra, 200
Cal.App.4th at p. 1276.)
• “Generally, to constitute protected activity under the CFCA, the employee’s
conduct must be in furtherance of a false claims action. The employee does not
have to file a false claims action or show a false claim was actually made;
however, the employee must have reasonably based suspicions of a false claim
and it must be reasonably possible for the employee’s conduct to lead to a false
claims action.” (Kaye v. Board of Trustees of San Diego County Public Law
Library (2009) 179 Cal.App.4th 48, 60 [101 Cal.Rptr.3d 456], internal citation
omitted.)
• “We do not construe Kaye’s requirement that it be ‘reasonably possible for [the
employee’s conduct] to lead to a false claims action’ to mean that a plaintiff is
not protected under the CFCA unless he or she has discovered grounds for a
meritorious false claim action. . . . [T]he plaintiff need only show a genuine and
reasonable concern that the government was possibly being defrauded in order to
establish that he or she engaged in protected conduct. Any more limiting
construction or significant burden would deny whistleblowers the broad
protection the CFCA was intended to provide.” (McVeigh, supra, 213
Cal.App.4th at pp. 457-458, original italics.)
CACI No. 4600 WHISTLEBLOWER PROTECTION
1296
Copyright Judicial Council of California
• “Qui tam claims based on certain categories of publicly disclosed information
are barred unless the plaintiff is an original source of the information. This
prohibition, known as the public disclosure bar, is intended to prevent
‘ “parasitic or opportunistic actions by persons simply taking advantage of public
information without contributing to or assisting in the exposure of the fraud.” ’
In light of CFCA’s purpose of protecting the public fisc, ‘the public disclosure
bar should be applied only as necessary to preclude parasitic or opportunistic
actions, but not so broadly as to undermine the Legislature’s intent that relators
assist in the prevention, identification, investigation, and prosecution of false
claims.’ ” (State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1407
[197 Cal.Rptr.3d 673], footnote and internal citations omitted.)
• “There is a dearth of California authority discussing what constitutes protected
activity under the CFCA. However, because the CFCA is patterned on a similar
federal statute (31 U.S.C. § 3729 et seq.), we may rely on cases interpreting the
federal statute for guidance in interpreting the CFCA. (Kaye, supra, 179
Cal.App.4th at pp. 59-60.)
Secondary Sources
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§ 288
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 767
4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination
and Discipline, § 60.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 468, Public Entities and Offıcers:
False Claims Actions, § 468.25 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Public Entities and Offıcers: False
Claims Actions, § 100.61 (Matthew Bender)
WHISTLEBLOWER PROTECTION CACI No. 4600
1297
Copyright Judicial Council of California

© Judicial Council of California.