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Lindberg v. California Dep't of Education10/31/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this whistle-blower retaliation case brought under Labor Code section 1102.5 and Government Code section 8547.8, a unanimous jury returned a $4.5 million verdict in favor of plaintiff James Lindberg against defendants California Department of Education (CDE) as well as former CDE superintendent Delaine Eastin and former CDE administrator Joan Polster. The trial court also granted Lindberg's postjudgment motion for attorney fees.
Defendants appeal from the judgment, the order denying their motion for judgment notwithstanding the verdict, and the postjudgment order granting attorney fees. They challenge the sufficiency of the evidence to support the jury verdict, as well as raising claims of evidentiary error, instructional error and judicial misconduct. They further contend that the damages award, as well as the trial court's award of attorney fees, were clearly excessive.
We shall affirm the order denying the motion for judgment notwithstanding the verdict and uphold the jury's finding of liability as to all three defendants. However, we agree with defendants that the damages award must be reversed. Because the issue of damages will have to be retried, we shall also vacate the attorney fee award.
FACTUAL BACKGROUND
Inasmuch as this appeal challenges the sufficiency of the evidence to support the verdict, we summarize the evidence in the light most favorable to plaintiff Lindberg as the prevailing party, affording him the benefit of every reasonable inference and resolving all conflicts in his favor. (Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020, 1036.)
Eastin Hires Cervantes; Lindberg Investigates Fraud
Delaine Eastin was elected Superintendent of Public Instruction in 1994. She was reelected to another four-year term in 1998. As superintendent, Eastin headed the CDE, which administers over 40 percent of the state's budget and has more than 3,000 employees.
One of the programs administered by CDE was the English as a Second Language Citizenship (ESL-Citizenship) program, which was established in 1995 as a new program within the Adult Education division. The program was created by the Legislature to redirect federal grant money under the Immigration Reform and Control Act of 1986 (8 U.S.C. 1324a [100 Stat. 3359]) for use in teaching English as a second language, thus helping to prepare immigrants to take the U.S. citizenship test. Ninety-nine percent of the participants in the ESL-Citizenship program are Hispanic. The Legislature decided to redirect funding for this function from traditional educational institutions to private, nonprofit entities known as community-based organizations, or CBO's. These CBO's were well connected with certain members of the state Legislature known as the Hispanic caucus.
Robert Cervantes was hired by CDE in 1977, and served mostly as assistant superintendent. In May 1995, he was appointed to the Youth, Adult and Alternative Education Services Division (YAAES) and put in charge of the ESL-Citizenship program. When he was hired, Eastin told him she wanted him to do two things: clean up the place, and keep the Hispanic caucus "off back."
When Cervantes inherited the ESL-Citizenship program, it was "a mess." He learned from the previous director that there were problems with vendors and lack of documen
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