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Memo of the Week

Minute Order After Hearing

Bruce Anderson, plaintiff, versus

Kendall Smith et al, defendants.

Bruce Anderson brought a small claims action against County Supervisor Kendall Smith and County Auditor Meredith Ford alleging that Smith owed the County of Mendocino $3,087 for false travel claims that were submitted to the County and paid by County Auditor Ford. Anderson sought no funds for himself but rather sought an order that Smith repay the County. Anderson characterized this action as a “taxpayer” suit. Anderson claims that the amounts due were established by a series of grand jury determinations dating back to 2006.

The Small Claims Court provides a forum for resolving suits in an expeditious manner with relaxed rules of evidence but it does not abrogate the government code or provide a forum for a private individual to bring a representative action on behalf of “taxpayers” against a government official or agency for an alleged false claim without compliance with the False Claims Act set forth in Government Code sections 12652 et seq.

The false claims act allows a private citizen to bring a whistleblower type action under certain limited circumstances. A private citizen would be required to file the action under seal in Superior Court and give notice to the appropriate prosecutorial agencies to give those agencies an opportunity to proceed or decline to proceed with the action. The defendant in such a case must not be served until a 60 day period from the date of filing has passed.

Government Code section 12652(b)(1) requires the prosecutorial agency of a political subdivision like a County to vigorously investigate violations involving political subdivision funds. The County Counsel and or the District Attorney is specifically authorized to bring a criminal or civil action against the false claimant.

Anderson's attempt to take the action in his own hands is explained to some extent by the District Attorney's prior handling of this issue. The District Attorney apparently did consider the issue and the grand jury recommendation and therefore directed the Auditor to withhold funds from Supervisor Smith's pay to reimburse the County. The Auditor, after getting legal advice, balked at withholding funds from Supervisor Smith without first having a judgment. Despite feeling strongly enough about the issue to direct the Auditor to withhold funds from Smith's pay, after the auditor balked, the DA apparently let the matter drop without seeking a court judgment.

As stated by the court during this proceeding, the Auditor is not a proper defendant in his action. Meredith Ford is hereby dismissed from this action with prejudice. If a citizen could bring a damages action against a public official for acts occurring within the scope of her employment the government code would require the county to step in and defend and indemnify her. The legislature didn't intend to embroil local government agencies in this type of action. See Dockstader v. Handy (2008) 162 Cal 4th 480.

There may be several insurmountable hurdles to Anderson's ability to proceed with this action against Kendall Smith. It is likely that the statute of limitations has run on the claims which accrued before 2007. Additionally, Government Code section 12652(d)(1) provides that no court has jurisdiction over such an action brought by a private citizen if the action is brought against an elected official and the action is based on evidence or information available to the political subdivision when this action was brought. Given the public nature of this controversy, that element is unlikely to be met.

Because this court lacks jurisdiction to reach the merits of the claim, the action against Supervisor Smith is hereby dismissed. The claim as to Supervisor Smith is, however, dismissed without prejudice so as not to foreclose a procedurally compliant claim by a prosecutorial authority or a private citizen if one can be made.

Dated January 11, 2011

John A. Behnke, Judge of the Superior Court

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