S.C. Declines to Revive Whistleblower Suit Against NFL Raiders

Friday, August 16, 2013

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S.C. Declines to Revive Whistleblower Suit Against NFL Raiders

Court Will Also Hear Cases on Retroactivity of Three-Strikes Changes in Proposition 36

By KENNETH OFGANG, Staff Writer

The California Supreme Court has left standing a First District Court of Appeal ruling that an Oakland taxpayer waited too long to sue the Los Angeles Raiders football team for allegedly defrauding the city and other public entities in connection with the millions of dollars the team received for returning to the Bay Area.

At their weekly conference in San Francisco Wednesday, the justices unanimously denied Joseph Debro’s petition for review of a May 29 ruling by Div. Three. That decision held that a 2001 ruling that a previous suit by Debro was untimely precluded him from claiming that his suit filed last year was brought within the three-year limitations period.

The justices also took a number of actions in other cases, including agreeing to hear several cases regarding the retroactivity of the Three-Strikes reform initiative adopted lost year.

Lots of Lawsuits

Debro has been filing suits against the Raiders, the city, Alameda County, the Oakland-Alameda County Coliseum Authority, and others since 1995. All of the actions relate to the decision of the public agencies to lend the football team up to $85 million to finance the renovation of the stadium, $10 million to finance the construction and development of a training facility, and $53.9 million for operations purposes.

The Raiders began their existence, as a member of the old American Football League, in Oakland in the early 1960s. They moved to Los Angeles for the 1982 season, engaged in failed negotiations with other Southern California cities during a dispute with the Los Angeles Memorial Coliseum Commission over alleged failures to make agreed-upon improvements, and went back to Oakland in 1995, the year Debro filed his first lawsuit.

In 1999, Debro filed a suit claiming that the Raiders had violated the California False Claims Act by accepting public money in exchange for relocating and then conspiring “to hide the relocation payment in a public document by calling said relocation payment a loan.” The Court of Appeal ruled two years later in Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940 that the suit was untimely because the responsible officials would have known of any intent on the part of the Raiders not to repay the money in 1995, triggering the act’s three-year statute of limitations.

Under the CFAC, a public entity may sue any person or entity for treble damages if the defendant has submitted a false or fraudulent claim for payment. If the entity does not sue, a private citizen with personal knowledge of the fraud may sue on the entity’s behalf and receive a percentage of the recovery.

In the 2012 suit, Debro claimed that the Raiders violated a separate provision of the CFAC that requires a contractor who inadvertently submits an erroneous claim for payment to disclose the error to the public entity within a reasonable period of time. But the trial judge and the Court of Appeal held that the 2001 ruling barred the newest claim, and that the claim was untimely even if estoppel did not apply.

Unpublished Opinion

Presiding Justice William McGuiness, in an unpublished opinion for the Court of Appeal, explained that the requirements for issue preclusion were met. The statute of limitations for the new claim was exactly the same as for the earlier CFAC claim, the limitations trigger date was fully litigated, the issue was decided, and the decision is now final.

“Although his cause of action…presents a new theory of liability, the cause of action turns on the same alleged false claim and primary right considered by the court in Debro I—i.e., the 1995 loans that were allegedly a gift of public monies to the Raiders,” he wrote. “Because the cause of action rests on the same alleged false claim as the causes of action held to be time-barred in Debro I, the new ‘inadvertent beneficiary’ theory of liability is immaterial to the direct estoppel analysis.”

Even if there had been no prior litigation, McGuiness added, the suit was untimely. Based on Debro’s own allegations, he said, the new suit should have been filed, at the latest, in 2005—three years after a Los Angeles Superior Court judge held that what were ostensibly loans to the team from the public agency defendants were actually revenues under the National Football League’s constitution and bylaws.

If the payments were based on a false claim, as Debro alleged, that ruling would have aroused the suspicions of a prudent public official and thus triggered the limitations period, McGuiness wrote.

The case is Debro v. Los Angeles Raiders, A136456.

In other conference action, the justices:

•Agreed to hear several cases regarding the retroactivity of Proposition 36, which changed the Three-Strikes Law.

The initiative, approved by a large majority of voters last November, provides that, with limited exceptions, a third “strike” that is not a serious or violent felony will result in the same sentence as a second strike—twice the usual sentence—rather than a sentence of 25 years to life in prison.

The law has a limited retroactivity provision. A current inmate whose conviction and sentence are final, but who would otherwise qualify for a lesser sentence under Proposition 36, is eligible to be resentenced under the new law unless prosecutors prove that the inmate is dangerous.

The Court of Appeal has divided, however, over whether the measure is fully retroactive as applied to a defendant who had been sentenced, but whose conviction was not yet final, at the time Proposition 36 was passed, or whether those defendants only receive the benefit of the limited retroactivity provision.

Some cases, including People v. Conley 2013 Cal. App. LEXIS 351, have held that only the limited retroactivity applies to such cases, while others, including People v. Lewis (2013) 216 Cal. App. 4th 468 have held that the new law is fully retroactive with respect to those defendants.

•Ordered the disbarment of Glendora attorney Karl Schoth.

The State Bar Court Review Department found last year that Schoth’s admitted misconduct, which included the misappropriation of $136,000 from five clients, outweighed his “impressive” mitigating evidence. Schoth, the panel found, practiced for 25 years without discipline, was a respected member of the American Board of Trial Advocates and of the board of Consumer Attorneys of California and a court mediator, and—prior to the misconduct for which he was disbarred—had gone into a serious emotional downturn after learning that one of his daughters had been raped.

•Agreed to decide whether claims that an elderly woman’s doctors, who saw her only on an outpatient basis, did not refer to a specialist despite clear indications over a substantial period of time that specialized care was necessary, and despite the urgings of her family, were sufficient to plead an elder abuse claim. Div. Eight of this district’s Court of Appeal ruled in Winn v. Pioneer Medical Group, Inc. (2013) 216 Cal.App.4th 875.that the allegations were sufficient to survive demurrer.