Mize-Kurzman v. Marin Cmty. Coll. Dist., 202 Cal. App. 4th 832 (2012)

Pamela Mize-Kurzman, who had been promoted to Dean of Enrollment Services as part of a settlement of a previous lawsuit against the district, claimed the district retaliated against her for disclosing what she believed to be violations of the law or regulations to various individuals and entities. Mize-Kurzman went to trial against the district on claims alleging violation of the whistleblower protection provisions codified in Cal. Labor Code § 1102.5 and the Education Code. The jury deliberated two days before finding against Mize-Kurzman on all of her claims. In this appeal, Mize-Kurzman asserted instructional error on the part of the trial court. The Court of Appeal reversed the judgment and ordered a new trial after concluding the trial court had erroneously instructed the jury. Specifically, the Court held the trial court had erroneously instructed the jury that a plaintiff must prove that any disclosure was made in good faith and for the public good and not for personal reasons, holding that “it may often be the case that a personal agenda or animus towards a supervisor or other employees will be one of several considerations motivating the employee whistleblower to make a disclosure regarding conduct that the employee also reasonably believes violates a statute or rule or constitutes misconduct.” The Court also held that it was error to instruct the jury that “debatable differences of opinion concerning policy matters are not protected disclosures” and “information passed along to a supervisor in the normal course of duties is not a protected disclosure.” However, the Court found no error in the instructions that “reporting publicly known facts is not a protected disclosure” and “efforts to determine if a practice violates the law are not protected disclosures.” The Court did find error in the trial court’s admission of evidence of Mize-Kurzman’s retirement eligibility and income with respect to the issue of mitigation of her damages. See also Chaaban v. Wet Seal, Inc., 203 Cal. App. 4th 49 (2012) (prevailing party that served Cal. Code Civ. Proc. § 998 may recover fees paid to opposing party’s expert witness).