State of Cal. v. Santa Clara County Off. of Educ.

Filed 6/5/08 State of Cal. v. Santa Clara County Off. of Educ. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

John Stoner, on behalf of himself and as a qui tam plaintiff for the State of California and County of Santa Clara, seeks review of an order sustaining the demurrer of school officials in the California public school system and another order granting summary adjudication to the Santa Clara County Office of Education (SCCOE) and Colleen Wilcox, the county superintendent of schools. Appellant contends that he should be permitted to proceed with his allegations under the California False Claims Act and various statutory and contractual provisions related to his non-reelection as a teaching intern. We find no error and affirm the judgment.

Background[1]

In January 2002 appellant was hired as an intern teacher of students with severe disabilities in a pilot program at Foothill Pilot High School, a continuation school in the East Side Union High School District (ESUHSD or the District). The position was probationary, and appellant understood that continued employment was conditioned on satisfactory performance. The term was to end on June 30, 2002.

Before the termination date, appellant was rehired as an intern for the 2002-2003 school year. In February 2003, however, David Wong, the principal of the Foothill Pilot Program, informed appellant that he would be recommending that appellant not be reelected for the 2003-2004 year. Wong had evaluated appellant as "Non-Satisfactory" based on his "continued lack of demonstrated understanding" of content and his "defensiveness and reluctance in accepting suggestions, guidance, or critique." On March 7, 2003, appellant was officially notified that his employment would be terminated as of June 30, 2003. He then submitted a letter to Superintendent Wilcox, with detailed responses to Wong's negative comments and a request that certain teaching evaluations, reports, and termination notices be removed from his file.

On October 14, 2003, appellant filed a complaint for damages in the United States District Court, alleging violations of the Federal False Claims Act (FFCA), violations of the California False Claims Act (CFCA), retaliation, and breach of contract. The district court dismissed all of appellant's claims, and appellant sought review in the Ninth Circuit Court of Appeals.[2]

On June 30, 2004, while his federal appeal was pending, appellant filed the present action in superior court, purporting to represent himself, the United States Department of Education, the State of California, and Santa Clara County. He named as defendants SCCOE; ESUHSD; Superintendent Wilcox; Joe Fimiani, the Assistant Superintendent of Student Services; and David Wong. In the first cause of action, appellant asserted against all defendants a violation of the California False Claims Act (CFCA), specifically Government Code section 12651. The second cause of action alleged a violation of the FFCA, but he subsequently dismissed that claim and asserts no issues related to it in this appeal. The third cause of action asserted a violation of the CFCA by SCCOE. SCCOE, appellant alleged, had discriminated and retaliated against him in violation of Government Code section 12653 by failing to continue his employment because he had complained about the conditions under which he was teaching, and he had participated in-- and complained about-- the "fraudulent conduct of purporting to teach under circumstances that prevented the students from obtaining a free appropriate public education." This alleged fraud was created by the county's "harassing [appellant] by having him work toward the wrong credential and refusing [him] and his class the support and benefits to which they were entitled."

Finally, the fourth cause of action, alleged against SCCOE and the individual defendants, stated that in spite of "quite favorable" evaluations and no indication of unsatisfactory performance, he was terminated without cause and for the sole reason that he had complained about defendants' "lack of support in violation of the claims the defendants made to receive funds from the governmental plaintiffs." Within this cause of action, appellant asserted five counts: breach of contract; failure to support and supervise him adequately, in violation of a statutory public policy to train interns and special-education teachers properly (Educ. Code, 44451); failure to adhere to a public policy "inherent in the Intern Program" to keep intern teachers employed for the full two years of the program; discontinuing his employment without affording him notice, a statement of reasons, and an opportunity to appeal; and terminating him in retaliation for reporting to other SCCOE employees what he reasonably believed were violations of state and federal statutes and regulations, in violation of Labor Code section 1102.5. Appellant sought triple damages, civil penalties, reinstatement with double back pay, special damages for time he had spent on tutoring, punitive damages, and even the tax he would have to pay on his damages award. He further requested an injunction to ensure defendants' compliance with the Individuals with Disabilities Education Act, 20 United States Code sections 1400, et seq. (IDEA).

Defendants demurred on the procedural grounds that appellant was not licensed as an attorney in California and therefore could not represent the government entities, and that the court lacked jurisdiction because appellant had failed to exhaust his administrative remedies. Defendants further argued that appellant had failed to state a cause of action for discrimination or violation of the CFCA because (1) the allegations were not pleaded with particularity and (2) they were "simply disguised educational malfeasance claims prohibited by public policy." The fourth cause of action was subject to demurrer, defendants argued, because (1) employees of school districts were employed by statute, not contract; (2) SCCOE had a right not to renew the contract of a probationary employee; (3) because he was not discharged or terminated, appellant could not claim non-renewal or wrongful termination in violation of public policy; and (4) the individual counts relating to his termination were not pleaded with particularity.

The superior court determined that a demurrer was not the proper vehicle for disqualifying appellant from representing the state and county in the first cause of action, and the court declined to dismiss this claim without giving appellant the opportunity to obtain licensed counsel. The court therefore overruled the demurrer to the first cause of action without prejudice to a motion by defendants to disqualify appellant from prosecuting the CFCA claim. As to the defendants Fimiani, Wong, and ESUHSD, however, the court sustained the demurrer with leave to amend, for failure to state sufficient facts. As to the third cause of action, the court overruled the demurrer, but it again sustained the individual defendants' demurrer to the fourth cause of action for failure to state sufficient facts. Addressing SCCOE's motion to strike the prayer for relief, the court also struck appellant's request for specific injunctive relief for special education students[3]and for punitive damages.

Subsequently, SCCOE and Wilcox moved to disqualify appellant from representing the State of California and the County of Santa Clara in the first cause of action for violation of the CFCA. In July 2005 the court granted the motion and struck this cause of action, subject to a period in which appellant would be allowed to find counsel to represent the government plaintiffs. Meanwhile, appellant did not amend the first and fourth causes of action, and the court therefore dismissed the first cause of action as to ESUHSD, Fimiani, and Wong, and the fourth cause of action as to Wilcox, Fimiani, and Wong.

In February 2006, however, the superior court vacated the dismissal of the first cause of action, appellant having obtained counsel to represent the state and county, both of which had declined to intervene. Appellant was to represent himself in the third and fourth causes of action against SCCOE.

In July 2006, SCCOE and Wilcox moved for summary judgment or, in the alternative, summary adjudication of the first, third, and fourth causes of action, drawing from the same defenses it had raised previously. On February 27, 2007, the court granted summary adjudication of all three causes of action and thereafter entered judgment for defendants.

Discussion

In its order granting summary adjudication the trial court explained its reasons for ruling on each cause of action. As to the first and third causes of action, SCCOE was not a "person" that could be sued under the CFCA, and Wilcox was entitled to summary adjudication because she had discretionary immunity under Government Code section 820.2. Within the fourth cause of action, count one -- breach of contract -- failed because appellant was not entitled to reelection under Education Code section 44929.21, subdivision (b). Counts two through five could not succeed, the court ruled, because "no cause of action exists for tortious nonrenewal of an employment contract in violation of public policy." Appellant challenges each of these rulings, along with the dismissal of defendants Fimiani, Wong, and (from the fourth cause of action) Wilcox.

1. Standard and Scope of Review

Because the arguments pertaining to the individual defendants are directed at the rulings on demurrer, we briefly note the standard by which we evaluate those claims on appeal. When a complaint or portion of a complaint has been dismissed following the sustaining of a demurrer, this court reviews the allegations de novo to determine whether they state a cause of action under any legal theory. (Kamen v. Lindly (2001) 94 Cal.App.4th 197, 201.) We assume the truth of all properly pleaded facts as well as matters that may be judicially noticed. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495; Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1007.) Whether the plaintiff will be able to prove these allegations is not relevant. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)

The plaintiff bears the burden of demonstrating error by the superior court. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) Our only task is to determine whether the complaint states a cause of action as a matter of law. (Garcia v. Superior Court (1990) 50 Cal.3d 728, 732; Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 490.) If the plaintiff has failed to plead, or if the defendants have negated, any essential element of a particular cause of action, this court should uphold the sustaining of the demurrer. (Kamen v. Lindly, supra, 94 Cal.App.4th at p. 201.)

With regard to the summary adjudication rulings, we apply a different standard. Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., 437c, subd. (c).) A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no meritthat is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., 437c, subds. (a), (p)(2).) The defendant can satisfy that burden by presenting affirmative evidence that negates an essential element of plaintiff's claim or by submitting evidence "that the plaintiff does not possess, and cannot reasonably obtain, needed evidence" supporting an essential element of its claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

Once the defendant has met that burden, the burden shifts to the plaintiff "to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., 437c, subd. (p)(2); Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.)

On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel Nat., Inc. (2000) 24 Cal.4th 317, 334; Lyle v. Warner Bros. Television Productions, supra, 38 Cal.4th at p. 274.) We apply "the same three-step analysis as that of the trial court: (1) identification of issues framed by the pleadings; (2) determination of whether the moving party has established facts [that] negate the opponent's claim and justify a judgment in movant's favor; and (3) determination of whether the opponent demonstrates the existence of a triable, material factual issue." (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887; see also Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85.) "We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty, supra, 123 Cal.App.4th at p. 85.)

2. Alleged Violations of the CFCA

Appellant begins his discussion with the first cause of action, contending that neither SCCOE nor Wilcox is exempt from liability under the CFCA. His argument with respect to SCCOE cannot succeed. Appellant cannot escape from the clear import of Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, where our Supreme Court held that the prohibited acts described in Government Code section 12651 were not intended to apply to public entities. The statute specifically refers to "Any person," which, the Supreme Court stated, means private individual or entity, not a school district or other public or governmental agency. (Id. at pp. 1190-1193.) SCCOE, a county agency, clearly falls within the holding of Wells and is thus exempt from liability under the CFCA. Moreover, to the limited extent that appellant challenges the exemption of ESUHSD, the Wells holding applies even more clearly, as it did to the defendant school district in that case.[4] Appellant's attempt to save his claim by arguing that SCCOE and ESUHSD should nonetheless be held accountable for "misusing governmental funds" is unavailing, as it is a new theory we may not entertain on appeal.

The third cause of action, which also asserted a violation of the CFCA, named only SCCOE as a defendant. As we have concluded that SCCOE, a public governmental entity, is protected from liability under Wells, the same result applies to this claim.[5]

As to Wilcox, appellant observes that she is a "[n]atural person" within the reach of the CFCA. Further, he argues, she is entitled to none of the exemptions for government officials specified in Government Code section 12652, subdivision (d)(1). The trial court nevertheless agreed with defendants that Government Code section 820.2 gave Wilcox discretionary immunity for certifying that its special-education plan complied with state and federal laws and regulations.

Government Code section 820.2 states: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Immunity under this section protects acts that amount to "basic policy decisions" involving "quasi-legislative policy-making," as opposed to implementation of policy or ministerial operational functions, even if those functions involve some choice. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 981.) "Moreover . . . immunity applies only to deliberate and considered policy decisions, in which a '[conscious] balancing [of] risks and advantages  . . . took place. The fact that an employee normally engages in "discretionary activity" is irrelevant if, in a given case, the employee did not render a considered decision.' . . ." (Ibid, quoting Johnson v. State (1968) 69 Cal.2d 782, 795, fn. 8.)

In appellant's complaint he alleged that defendants, including Wilcox, conspired to defraud the state and county "by knowingly and falsely representing how the funds received from these plaintiffs were used. They knowingly used a false record or records to conceal an obligation to repay, and after becoming a beneficiary of funds from these plaintiffs and having subsequently discovered the falsity of their claims, they failed to disclose the false claims to the governmental authorities within a reasonable time. Consequently, these defendants violated the California False Claims Act . . . Government Code 12651 (a)(1), (2), (3), (7) and (8)." Appellant identified three kinds of false claims: statements given "in order to qualify for a program such as plans and letter agreements"; statements made during the time funds were being spent, relating to progress reports and reviews; and statements by others (e.g. compliance reports and audits) of which they were the beneficiary.

While we do not subscribe to defendants' view that a basic policy decision is involved in representing that an entity is in compliance with the law, we nonetheless conclude that summary adjudication was warranted here for a different reason. As defendants have repeatedly pointed out, the conduct that appellant claimed to be in violation of the law occurred after Wilcox certified SCCOE's plan. There is no evidence that Wilcox knew at the time she submitted statements to governmental authorities that SCCOE would not thereafter be in compliance with the education laws and regulations of the state and county. Nor can we join appellant in surmising that Wilcox "had to have known" about violations of the Education Code when she certified her plan for 2003. The March 9, 2003 letter appellant describes was confined to complaints about the treatment of him by the school officials who terminated him: not giving him, as an intern, special supervision and assistance "above and beyond" that given to other new employees (Educ. Code, 44465); failing to make available the results of his participation in the Peer Assistance and Review Program for Teachers as part of his evaluation (Educ. Code, 44662, subd. (d)); not making specific recommendations to help him improve his performance (Educ. Code, 44664); and allowing Wong to supervise his work without holding a certificate to teach students with severe disabilities (Educ. Code, 44870). None of these complaints establishes a basis for finding that Wilcox knowingly submitted a false statement in connection with the 1999-2002 Local Plan for Special Education, the basis of appellant's complaint. Nor does appellant provide any evidence of a false statement associated with a subsequent claim.[6] This cause of action was not dismissed as to Wilcox on demurrer; we therefore do not assume the truth of the facts pleaded in the complaint. As we explained earlier, to successfully oppose a summary adjudication motion, appellant may not rely on the allegations of his complaint to show that a triable issue of material fact exists; he must instead "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., 437c, subd. (p)(2); Lyle v. Warner Bros. Television Productions, supra, 38 Cal.4th at p. 274.) We thus agree with defendants that there is no triable issue of material fact, and summary adjudication was properly granted as to the first cause of action.

The liability of Fimiani and Wong for violation of the CFCA was adjudicated upon the sustaining of defendants' demurrer on March 29, 2005, with leave to amend. The court dismissed the first cause of action as to them on August 30, 2005, as appellant had not taken advantage of the opportunity to amend his complaint. Appellant now argues that they were not exempt from liability, but he does not identify what false claims they made. Government Code section 12651 prohibits the making of a false claim, using a false record or statement to get a false claim approved or paid, and conspiring to defraud the government by getting a false claim approved or paid. Appellant did not allege in what ways Fimiani or Wong did any of these proscribed acts. His failure to amend within the 20-day period allowed by the court establishes that appellant was unable to state facts sufficient to constitute a cause of action. Moreover, his arguments on appeal, like those directed at Wilcox, merely suggest that Fimiani (assistant superintendent, compliance officer, and former special education director) made statements in 1998 about plans that did not produce adequate results in later years. Failing to correct perceived educational deficiencies is not a basis for liability under Government Code section 12651. Likewise, Wong, the principal and appellant's supervisor for 2002-2003, did not even participate, directly or indirectly, in making claims to the government; the basis of his alleged misconduct amounted to his running of the program and his supervision of appellant. The trial court did not err in sustaining the demurrer on the ground that the first cause of action failed to state facts sufficient to constitute a cause of action as to those defendants.

3. Liability of Defendants for Terminating Him Without Cause

Appellant's fourth cause of action essentially claimed that he was terminated because he had complained about defendants' lack of support and inadequate supervision. Furthermore, although Wong had given him negative performance reviews, he did not give appellant specific recommendations for improvement, and other observers had given appellant "quite favorable" evaluations. On appeal, he contends that the demurrer in favor of the individual defendants was erroneously sustained. He does not offer any reasons to overturn the summary adjudication order in favor of SCCOE, but argues generally that he was entitled to continued employment under Education Code section 44840, under his contract, and under laws protecting whistleblowers against retaliation.

Examined in either procedural context, appellant's contentions cannot succeed. Appellant did not dispute defendants' statement that his 2002-2003 agreement was to terminate no later than June 30, 2003. Instead, he called that provision "immaterial" because the agreement "was subject to the laws of California and could not alter [his] rights under those laws."[7] That same reasoning, however, vitiates count one, appellant's contract claim. The intern provisions of the Education Code classify appellant as a probationary employee, a fact he readily acknowledged in his opposing papers. (See Educ. Code, 44885.5.) His notification that he would not be reelected was consistent with Education Code section 1296, which allows probationary employees to be permanent employees after being employed for two complete consecutive school years when they are reelected for the next succeeding school year. That did not happen. As required by the statute, appellant was notified by March 15 of his second year that he would not be reelected. As appellant's non-reelection conformed to the laws regulating employment of district interns, his allegation of breach of contract was properly adjudicated against him.

In count two appellant alleged that he was improperly terminated "before he was given the supervision and support to which he was entitled." Nothing in Education Code section 44451, on which appellant relied in his complaint, supported his assertion that he was entitled to continued employment. That provision expresses the Legislature's intent in enacting the Teacher Education Internship Act of 1967, "to increase the effectiveness of teachers and other professional school service personnel in the public schools of California," and to "encourage the development and maintenance of preparation programs that are realistic and practical in content and theory and are directly related to the individual functions and responsibilities practitioners in the public schools of California face. The desirability of joining theory and practice during the learning period has been demonstrated amply in teaching internship programs during the past several years both within and without the state." Nothing in this statement undermines the authority of county superintendents to deny reelection to underperforming probationary employees, including interns. The court correctly recognized that the second count of appellant's fourth cause of action was without merit.

Appellant cites no applicable authority supporting the assertion of count three that "the public policy inherent in the Intern Program is to have intern teachers employed for the full two years necessary to complete that program." Appellant completed his two years of employment, but the superintendent had already determined that he had not performed adequately and exercised her discretion not to continue using appellant's services. Nothing in the Education Code or public policy of this state deprived the superintendent of that authority on the facts presented.

In count four appellant complained that if his contract had only been allowed to expire naturally, he would not have suffered the consequences of non-reelection, and he would have been able at least to teach as a substitute for the county. Yet he further asserted that when a non-reelection or dismissal violates public policy, "there is no distinction between a discharge and the expiration of a contract." Appellant offered no basis for inferring any violation of public policy; the only concrete allegation in this count was that he did not receive a 30-day notice with a statement of reasons and a notice of the opportunity to appeal under Education Code section 44948.3, subdivision (a)(1). That section applies to dismissals, however, not non-reelections. SCCOE notified appellant on March 7, 2003, that he was not being reelected for the following year. Appellant fails to show how this notice was inconsistent with Education Code section 44840, 44885.5, or 44948.3.

Count five represents the clearest expression of appellant's assertion of retaliatory discharge. The trial court ruled, however, that "no cause of action exists for tortious nonrenewal of an employment contract in violation of public policy." Neither party discusses the authority cited by the court in support of its ruling. (See Motevalli v. Los Angeles Unified School Dist. (2004) 122 Cal.App.4th 97, 102.) Indeed, appellant does not address this order but challenges the sustaining of the demurrer in favor of the individual defendants. Appellant contends that Wong recommended non-reelection in retaliation for the complaints he had made and that the other defendants followed that recommendation. But appellant did not identify what complaints about "unlawful activities" (not merely difficult working conditions) he made before Wong's recommendation and the March 7, 2003 non-reelection notice. His opening brief on appeal is no more specific in providing these facts,[8]and his reply brief only resorts again to contract principles. As we have noted, statutory provisions, with which defendants complied, governed appellant's employment in the school system. Appellant thus failed to state a viable cause of action against the individual defendants under Labor Code section 1102.5.

4. Injunctive Relief

Appellant's complaint included a prayer for an injunction against SCCOE "to prevent it from violating the provisions of IDEA." He specifically requested an order compelling SCCOE and the District to allow special education students who had completed their graduation requirements to receive a diploma and "to attend graduation ceremonies in a regular education school in the district in which they live." In ruling on defendants' demurrer and motion to strike portions of the complaint, the trial court struck appellant's request along with his prayer for punitive damages from SCCOE. Appellant challenges the ruling, contending that the requested injunction is necessary because "it would be difficult to place a money value on this right of special education students that is expressly provided in the Individuals with Disabilities Education Act. (20 U.S.C. 1414(d)(1)(A)(iii) and (iv).)" Appellant further explains that "the right to attend graduation ceremonies is particularly important to students with special needs who substantially increase their self-esteem by participating in such ceremonies . . . . This is exactly the kind of situation where pecuniary compensation would not afford adequate relief." Appellant adds, "Of course, if the institutional Defendants would provide an opportunity for these two students to attend a regular high school graduation and give them a diploma, it might not be necessary to have this relief, but the fact that they did not provide graduation ceremonies and a diploma for at least several years despite it[s] being called to their attention in the Complaint indicates an insensitivity to the needs of students with special needs that is difficult to understand and requires some relief."

It is difficult to understand the legal or factual underpinnings of appellant's contention. He seems to be attributing defendants' "insensitivity" concerning two students' graduation difficulties to defendants' failure to take action when he alerted them in the complaint. There is no separate cause of action alleging some legally cognizable claim for judicial intervention on behalf of these two students; instead, appellant used the prayer for relief to ask the court to help the students with their graduation problem. The trial court properly struck this portion of the complaint; and the issue is in any event moot, since it is attached to a complaint containing no viable cause of action. None of the other issues raised by the parties are dispositive of the appeal.

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

____________________________

PREMO, J.

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[1] Defendants filed a respondent's brief purporting to relate the factual and procedural history of this case, but with no citations whatsoever to the record. This lapse was inexcusable. "It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.) It should require no reminder that factual statements in an appellate brief must be supported by appropriate reference to the page in the record where that fact may be found. (Rules of Court, rule 8.204(a)(1)(C).) As the respondent's brief offered no assistance to this court in evaluating the issues raised on appeal, we struck the brief and received a new one complying with this long-established rule.

[2] On September 7, 2007, the Court of Appeals upheld the district court's dismissal of the FFCA claims against both SCCOE and ESUHSD, but it found error in the dismissal as to the individual defendants, because they were "persons" within the meaning of the statute. (Stoner v. Santa Clara County Office of Educ. (2007) 502 F.3d 1116, 1123-1124; see 31 U.S.C. 3729, subd. (a)(1).) The court also held that appellant could proceed as a qui tam plaintiff when the government declined to intervene, but he could not prosecute the action pro se. The court remanded the case to the district court to allow appellant time to procure counsel or obtain pro hac vice admission to practice before that court. (Id. at pp. 1126-1128.)

[3] Among appellant's requests for injunctive relief was the request that certain special education students be allowed to attend graduation ceremonies in a regular education school in the district where they live and that they be given a diploma.

[4] In any event, the first cause of action was dismissed as to the District following the sustaining of the District's demurrer and appellant's failure to amend his complaint thereafter.

[5] In light of this conclusion, it is unnecessary to address the issue raised in the amicus brief of the Attorney General, whether appellant is authorized to proceed as a qui tam plaintiff once the Attorney General declines to intervene.

[6] Defendants vigorously argued in their demurrer that the allegations of false claim were too vague to support "false claim" liability under the CFCA.

[7] Education Code section 44924, which appellant cited in his opposing papers, does deem void any contract that creates a waiver of an employee's benefits under Chapter 4, of which it is a part.

[8] In his opening brief, appellant did list facts he believed supported his third cause of action against SCCOE. Appellant refers to a letter he wrote to Wong defending his conduct in an August 2002 classroom incident that Wong had believed had been handled badly. After explaining his version of the incident, appellant described his recent efforts to develop his teaching skills, anticipated the need for release time for staff development, anticipated a request for curriculum materials, and asked for a clarification of performance standards. Appellant also refers us to his response to an unfavorable performance review on February 13, 2003. In his response appellant cited improvements in his handling of classroom behavior, improvements in individual students' achievement, and general progress he had made in the classroom in spite of Wong's delay in providing a textbook for a government class until almost halfway through the course.

Even if this evidence, cited in support of the third cause of action, is relevant to the fourth cause of action against Fimiani, Wilcox, and Wong, it still falls short of constituting pre-termination complaints that defendants were acting illegally. No other pre-termination complaints were supplied as evidence in support of the theory that appellant's non-reelection was the consequence of his complaints about unlawful activity by defendants.