Docket No. S269456
P. ex rel. Garcia-Brower v. Kolla's, Inc.
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE ex rel. LILIA GARCIA-BROWER, as Labor
Commissioner, etc.,
Plaintiff and Appellant,
v.
KOLLA’S, INC.,
Defendant and Respondent.
S269456
Fourth Appellate District, Division Three
G057831
Orange County Superior Court
30-2017-00950004
May 22, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
S269456
Opinion of the Court by Liu, J.
The Labor Code prohibits employers from retaliating
against employees for “disclosing information” concerning
suspected violations of the law either internally or to
government or law enforcement agencies. (Lab. Code, § 1102.5,
subd. (b) (section 1102.5(b)); all undesignated statutory
references are to the Labor Code.) Violators are subject to
various sanctions, including civil penalties remitted to the
Division of Labor Standards Enforcement (DLSE) of the
Department of Industrial Relations. (Id., subd. (f).) In this case,
employee A.C.R. complained to the owner of the nightclub where
she worked about unpaid wages she was owed. In response, her
employer fired her, threatened to report her to immigration
authorities, and told her never to return to the nightclub. (We
follow the practice of the trial court and the Court of Appeal in
using the complainant’s initials in light of the immigration-
related threats against her.) It is undisputed that the
employer’s conduct was prohibited by the Labor Code. The
question here is whether a report of unlawful activities made to
an employer or agency that already knew about the violation is
a protected “disclosure” within the meaning of section 1102.5(b).
We hold it is.
I.
From May 2010 to April 2014, complainant A.C.R. worked
as a bartender at Kolla’s, Inc., a nightclub in Orange County.
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
Because neither Kolla’s nor the club’s owner, Gonzalo Sanalla
Estrada, has participated in this litigation, we take the facts as
presented in the Labor Commissioner’s complaint and accepted
by the trial court. On April 5, 2014, A.C.R. complained to
Estrada that she had not been paid wages owed for her previous
three shifts of work. Estrada responded by threatening to report
A.C.R. to immigration authorities,
terminating her
employment, and telling her never to return to the club. In June
2014, A.C.R. filed a complaint against Estrada and Kolla’s with
DLSE, which opened an investigation. After determining that
Estrada’s immigration-based threats and termination of A.C.R.
violated California law, DLSE notified Estrada and Kolla’s of
proposed remedies, including payment of lost wages to A.C.R.,
reinstatement of A.C.R.’s previous position, and payment of civil
penalties to A.C.R. and DLSE. After Estrada and Kolla’s
declined to accept DLSE’s proposed remedies, the Labor
Commissioner sued them for violations of the Labor Code,
including retaliation in violation of section 1102.5(b).
The trial court entered an order granting in part the Labor
Commissioner’s application for default judgment but ruled
against the Labor Commissioner on the section 1102.5(b) claim.
The court held that the Labor Commissioner did not state a
valid cause of action under section 1102.5(b) because A.C.R.
reported her complaints to her employer rather than a
government agency. The Labor Commissioner appealed.
The Court of Appeal held that the trial court had relied on
an outdated version of section 1102.5(b) and that the current
version of the law protects disclosures made to one’s employer.
The Court of Appeal nonetheless affirmed the trial court’s
judgment on the section 1102.5(b) claim, concluding that a
private employee’s report of unlawful activity directly to his or
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
her wrongdoing employer is not a protected disclosure under
section 1102.5(b). The court reasoned that the term “disclose”
requires “the revelation of something new, or at least believed
by the discloser to be new, to the person or agency to whom the
disclosure is made.” The court explained that Estrada, as the
owner of the nightclub, “was at least aware of — if not
responsible for — the non-payment of wages” and that an
“ ‘employee’s report to the employee’s supervisor about the
supervisor’s own wrongdoing is not a “disclosure” and is not
protected whistleblowing activity, because the employer already
knows about his or her wrongdoing.’ ” (People v. Kolla’s
Inc. (May 10, 2021, G057831) [nonpub. opn.], quoting Mize-
Kurzman v. Marin Community College Dist. (2012) 202
Cal.App.4th 832, 859 (Mize-Kurzman).
Justice Fybel dissented on this point, explaining that the
court’s narrow reading of “disclosure” did not accord with the
term as used throughout section 1102.5, was “thoroughly
inconsistent with clear legislative intent,” and relied indirectly
on outdated federal precedent that was overruled by Congress’s
revision of federal whistleblower protections. Justice Fybel
noted that the Courts of Appeal appear to be split on the proper
meaning of “disclose” as used in section 1102.5(b), with Kolla’s
and Mize-Kurzman taking a different view than Hager v. County
of Los Angeles (2014) 228 Cal.App.4th 1538, 1549–1550 (Hager).
We granted review. Because Kolla’s has not participated
in this case, we appointed Christopher Hu of Horvitz & Levy,
LLP, to “brief and argue this case, on a pro bono basis, in support
of the Court of Appeal’s holding that Labor Code section 1102.5,
subdivision (b) does not protect an employee from retaliation for
disclosing unlawful activity to a person or agency that already
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
knows about the unlawful activity.” We thank Mr. Hu for his
service as amicus curiae.
II.
The Legislature enacted section 1102.5 in 1984 to provide
whistleblowers with protection from employer retaliation. (See
Assem. Com. on Labor and Employment, Analysis of Assem. Bill
No. 2452 (1983–1984 Reg. Sess.) as introduced Jan. 24, 1984,
p. 1 [“The intent of this measure is to afford employees some
minimum protection against retribution by an employer when
the employee reports crimes or violations of the law occurring at
his or her place of employment.”].) Section 1102.5(b) initially
applied only to employees who disclose suspected unlawful
activity to a government or law enforcement agency.
(Stats. 1984, ch. 1083, § 1, p. 3698.
In 2003, in the wake of a “recent spate of false business
reports and other illegal activity by Enron, WorldCom and
others,” the Legislature amended section 1102.5(b) to include
several additional employee protections. (Assem. Com. on
Judiciary, Analysis of Sen. Bill No. 777 (2003–2004 Reg. Sess.
as amended May 29, 2003, p. 1.) These amendments provided
new antiretaliation protections to workers who refuse to
participate in activities that violate the law or who had engaged
in protected whistleblowing activity in past employment, while
adding a civil penalty of up to $10,000 for corporations and
limited liability companies that violate the statute.
(Stats. 2003, ch. 484, § 2, p. 3518.) The Legislature also added
section 1102.5, subdivision (e) (section 1102.5(e)) in order to
codify the holding in Gardenhire v. Housing Authority (2000) 85
Cal.App.4th 236, 243 (Gardenhire) that a public employee’s
report to his or her own agency is a protected disclosure under
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
section 1102.5, subdivisions (a) and (b). (Stats. 2003, ch. 484,
§ 2, p. 3518.
In 2013, the Legislature again amended section 1102.5(b),
expanding its protections to include an employee’s disclosure
made “to a person with authority over the employee or another
employee who has the authority to investigate, discover, or
correct the violation or noncompliance.” (Stats. 2013, ch. 781,
§ 4.1; see id., § 5.) We have repeatedly held that section
1102.5(b) “reflects the broad public policy interest in
encouraging workplace whistle-blowers to report unlawful acts
without fearing retaliation.” (Green v. Ralee Engineering
Co. (1998) 19 Cal.4th 66, 77 (Green); Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (Lawson);
Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
287.
In full, section 1102.5(b) provides: “An employer, or any
person acting on behalf of the employer, shall not retaliate
against an employee for disclosing information, or because the
employer believes that the employee disclosed or may disclose
information, to a government or law enforcement agency, to a
person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the
violation or noncompliance, or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s job duties.”
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
Our analysis is informed by two Court of Appeal decisions
that disagree on the meaning of “disclose” in section 1102.5(b).
First, the court in Mize-Kurzman held that “the report of
information that was already known [does] not constitute a
protected disclosure.” (Mize-Kurzman, supra, 202 Cal.App.4th
at p. 858.) The court explained that the “ ‘ordinarily understood
meaning’ ” of disclose is “ ‘to reveal something that was hidden
and not known.’ ” (Ibid., citing Webster’s 3d Internat. Dict.
(1968) p. 645.) The court found further support in precedent
interpreting the federal Whistleblower Protection Act of 1989
(Pub.L. No. 101-12 (Apr. 10, 1989) 103 Stat. 16). (Mize-
Kurzman, at p. 858, citing Huffman v. Office of Personnel
Management (Fed.Cir. 2001) 263 F.3d 1341, 1349–1350; see
Huffman, at p. 1350 [“When an employee reports or states that
there has been misconduct by a wrongdoer to the wrongdoer, the
employee is not making a ‘disclosure’ of misconduct.”].) The
Mize-Kurzman court reasoned that “the employer already knows
about his or her wrongdoing” and “criticism delivered directly to
the wrongdoers does not further the purpose of . . . California
whistleblower laws to encourage disclosure of wrongdoing to
persons who may be in a position to act to remedy it.” (Mize-
Kurzman, at p. 859.
Subsequently, the Court of Appeal in Hager held that
section 1102.5(b) “does not limit whistleblower protection only
to an employee who discloses unlawful conduct that had not
been previously disclosed by another employee.” (Hager, supra,
228 Cal.App.4th at p. 1549.) The Hager court “accept[ed] the
dictionary definition of ‘disclosure’ as used by the court in Mize-
Kurzman. . .,” but concluded that “the [Mize-Kurzman] court did
not construe the statutory language in the context of the statute
as a whole.” (Id. at p. 1550.) Hager went on to find that neither
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
the legislative intent of section 1102.5(b) nor the Court of
Appeal cases relied on by Mize-Kurzman supported limiting
whistleblower protection to the first employee to disclose a
violation. (Hager, at pp. 1550–1552.) “Protection only to the
first employee to disclose unlawful acts would defeat the
legislative purpose of protecting workplace whistleblowers, as
employees would not come forward to report unlawful conduct
for fear that someone else already had done so.” (Id. at p. 1550.
In this case, the Court of Appeal relied on Mize-Kurzman
and sought to distinguish Hager on the ground that Hager
focused on whether section 1102.5 includes a “ ‘first report’
rule” — that is, whether whistleblower protections apply only to
the first employee to report wrongdoing, such that a “disclosure”
cannot include information previously reported by other
employees. (Hager, supra, 228 Cal.App.4th at p. 1550.) The
Court of Appeal also reasoned that because Hager, like Mize-
Kurzman but unlike the present case, involved a public
employee, section 1102.5(e) governed the court’s analysis and
protected an employee’s “report” of wrongdoing.
III.
When interpreting a statute, we adopt the construction
that best reflects the Legislature’s purpose. (Ferra v. Loews
Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 865 (Ferra).
When construing provisions of the Labor Code, “ ‘ “[t]ime and
again, we have characterized that purpose as the protection of
employees — particularly given the extent of legislative concern
about working conditions, wages, and hours when the
Legislature enacted key portions of the Labor Code.” ’ ” (Ibid.
We therefore “ ‘ “liberally construe the Labor Code . . . to favor
the protection of employees.” ’ ” (Ibid.
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
A.
We begin by examining the text of the statute. The Court
of Appeal held that the word “disclosure” means “the revelation
of something new, or at least believed by the discloser to be new,
to the person or agency to whom the disclosure is made.” But
dictionary definitions of “disclose” include “to make openly
known” (4 Oxford English Dict. (2d. ed. 1989) p. 738, col. 1) and
to “open up to general knowledge” (Webster’s 3d New Internat.
Dict. (2002) p. 645, col. 2). The Labor Commissioner argues that
according to these definitions the information disclosed need not
be previously unknown to the recipient. We agree. To “make
[something] openly known” (4 Oxford English Dict., supra,
p. 738, col. 1) or “open [something] up to general knowledge”
(Webster’s 3d New Internat. Dict., supra, p. 645, col. 2) does not
require that the “something” be unknown to the current
recipient.
Although the word “disclose” often refers to sharing
previously unknown information, the word also means bringing
into view in a particular context a type of information to which
the discloser tends to have special access. The Legislature has
invoked this latter meaning in other statutes. For example,
various public officials are required to “file a[n annual]
statement disclosing the person’s investments, interests in real
property, and income.” (Gov. Code, § 87203.) Judges are
required to “disclose any [campaign] contribution from a party
or lawyer in a matter before the court” (Code Civ. Proc., § 170.1,
subd. (a)(9)(C)), an obligation that applies in “any matter before
[the] judge” (Cal. Code Jud. Ethics, canon 3E(2)(b)(i)). Provision
of information in compliance with these requirements, which
focuses attention on potential conflicts of interest, constitutes a
“disclosure” whether or not the information is already known to
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
some or all of the recipients. Residential landlords are required
to provide “written disclosure to prospective and current
tenants” where any mold that “poses a health threat” is found,
even when that mold is visible or first noticed by the tenants
themselves. (Health & Saf. Code, § 26147, subd. (a).) Sellers of
single-family homes are required to complete an extensive
“disclosure form” that includes information that would likely be
known by many prospective buyers. (Civ. Code, §§ 1102.6
[seller’s required disclosures include the presence or absence of
an oven, patio, and gazebo]; 1102.155 [seller “shall disclose”
statutory requirement for the installation of water-conserving
plumbing fixtures].) These disclosures again derive their import
from the particular context in which they are required, and they
involve information to which the discloser tends to have special
access, whether or not any particular recipient lacks prior
knowledge of the specific information disclosed.
While mandatory disclosure requirements found in a wide
range of statutes cannot define the term “disclose” as used in
section 1102.5(b), these usages illustrate that “disclose” need not
mean only the revelation of information previously unknown to
the recipient. The text of section 1102.5(b) includes protection
for disclosures made to “another employee who has the
authority to investigate . . . or correct the violation,” without
regard to whether the recipient already knew of the violation.
(Italics added.) The term “disclosure” may reasonably
encompass an employee’s report or complaint that calls
attention to a legal violation or potential violation in the
workplace. Workplace wrongdoing is the type of information to
which an employee tends to have special access, whether or not
any particular recipient of such information has prior
knowledge.
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Opinion of the Court by Liu, J.
Indeed, two Court of Appeal decisions support this
definition of “disclose” as the term is used in section 1102.5. (See
Hager, supra, 228 Cal.App.4th at pp. 1549–1550 [finding public
employee’s
disclosure
to
wrongdoer
covered
by
section 1102.5(b)]; Jaramillo v. County of Orange (2011) 200
Cal.App.4th 811, 826 (Jaramillo) [same].) In Jaramillo, the
Court of Appeal held that section 1102.5 protected an assistant
sheriff who confronted the county sheriff about the latter’s
wrongdoing. (Jaramillo, at pp. 825–827.) The court concluded
that “there is no question” that the assistant sheriff’s disclosure
“fits within the literal definition of whistleblowing under Labor
Code section 1102.5.” (Id. at pp. 825–826.) Although the
assistant sheriff’s disclosure would have been covered under
section 1102.5(e), which applies to “[a] report made by an
employee of a government agency to their employer,” the
Jaramillo court referenced only section 1102.5(b) and made no
distinction based on Jaramillo’s public employment.
Instead, the court noted that the defendant county’s “real
complaint” about the statute was that a disclosure made directly
to the wrongdoer might ultimately prove ineffective, as that
individual “may be the last person . . . willing to do anything
about [the violation].” (Jaramillo, supra, 200 Cal.App.4th at
p. 827.) On this point, the court responded that “the injunction
obtained by Jaramillo established a ‘public benefit’ ” (ibid.
because it “will . . . inure to the benefit of the citizens and
taxpayers of the County by lessening the probabilities of abuse
and corruption in the sheriff's office” (id. at p. 829), and that any
“anomaly is properly addressed to the Legislature, not this
court” (id. at p. 827). In a recent decision, the Ninth Circuit
agreed with this reading of section 1102.5(b). (Killgore v.
SpecPro Professional Services, LLC (9th Cir. 2022) 51 F.4th 973,
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988 [“[T]he district court misapplied California law when it
rejected evidence of [the employee’s] disclosures . . . because [the
recipient] was assertedly involved in the wrongful conduct.”].
Parallel whistleblower protections in federal law are also
instructive. As noted in Justice Fybel’s dissent and the Labor
Commissioner’s briefing here, Mize-Kurzman rested on federal
precedent subsequently abrogated by Congress. In 2012,
Congress passed the Whistleblower Protection Enhancement
Act of 2012 (WPEA) (Pub.L. No. 112-199 (Nov. 27, 2012) 126
Stat. 1465), an update to the Whistleblower Protection Act
(WPA), that “clarif[ied] the broad meaning” of disclosure to
correct Federal Circuit precedent that had “wrongly accorded a
narrow definition to the type of disclosure that qualifies for
whistleblower protection.” (Sen.Rep. No. 112-155, 2d Sess.,
pp. 2, 5 (2012) [WPEA overruled, among other cases, Horton v.
Department of Navy (Fed.Cir. 1995) 66 F.3d 279, 282, which
held disclosures to an alleged wrongdoer are not protected
because disclosures were not made to someone in a position to
remedy wrongdoing, and Meuwissen v. Department of Interior
(Fed.Cir. 2000) 234 F.3d 9, 12–13, which held disclosures must
reveal information that is concealed or not publicly known]; see
also 5 U.S.C. § 2302(f)(1)(A)–(B) [confirming that antiretaliation
protection is available for disclosures that are “made to a
supervisor or to a person who participated in” the alleged
wrongdoing or that “reveal[] information that had been
previously disclosed”].
Of course, congressional disapproval of federal court
decisions interpreting similar statutes does not control the
meaning of the term “disclose” as used in California law. But
Congress’s clear statement that the protection of disclosures
made to the alleged wrongdoer is “required by the plain
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
language of the WPA” (Sen.Rep. No. 112-155, 2d Sess., supra, at
p. 5) weighs against the textual argument that “disclosure” can
only mean the revelation of information that was previously
unknown, or perceived by the discloser to be unknown, to the
recipient. Congress did not think the word “disclose”
necessitates such a narrow reading. Neither do we.
B.
Where a statute is subject to “more than one reasonable
interpretation, we consider ‘the ostensible objectives to be
achieved by the statute, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative
construction and the statutory scheme of which the statute is a
part.’ ” (Ferra, supra, 11 Cal.5th at p. 865.) The legislative
history of section 1102.5(b), its purpose, and its placement
within a larger statutory scheme designed to protect workers
support a broad reading of the term “disclose” that covers
A.C.R.’s conduct here.
Starting with the original debate, passage, and
codification of section 1102.5(b) in 1984, the terms “report,”
“inform,” and “complain” have been used interchangeably to
describe disclosures protected by the statute. Legislative
analyses of the original 1984 bill used these terms
interchangeably. (See, e.g., Assem. Com. on Labor and
Employment, Analysis of Assem. Bill No. 2452, supra, as
introduced Jan. 24, 1984, p. 1 [bill protects employees who are
“reporting or contacting the . . . government” about violations of
the law]; Sen. Com. on Industrial Relations, Analysis of Assem.
Bill No. 2452 (1983–1984 Reg. Sess.) as amended Apr. 26, 1984,
pp. 1–2 [bill protects “providing information” to a government
agency and “reporting crimes”]; Dept. of Industrial Relations,
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
Div. of Labor Standards Enforcement, Enrolled Bill Rep. on
Assem. Bill No. 2452 (1983–1984 Reg. Sess.) Aug. 22, 1984, p. 1
[intent of bill is to protect workers who “report[] crimes” by
making “complaints” to the Labor Commissioner].
When the Legislature first amended section 1102.5 in
2003, these terms were again used interchangeably. (See, e.g.,
Sen. Judiciary Com., Analysis of Sen. Bill No. 777 (2003–2004
Reg. Sess.) as introduced Feb. 21, 2003, p. 9 [describing
codification of Gardenhire to mean “employee who has made a
disclosure to his or her employing agency is deemed to have
made the disclosure to a government or law enforcement
agency” before, in the next sentence, saying public employee’s
“report” would be protected].) In 2013, committee reports once
more used these terms interchangeably. (See, e.g., Assem. Com.
on Labor and Employment, Analysis of Assem. Bill No. 263
(2013–2014 Reg. Sess.) as amended Apr. 11, 2013, p. 1 [bill
protects employees who “fil[e] a complaint or inform[] any
person of an employer’s [wrongdoing] so long as the complaint
or disclosure is made in good faith”].) Committees in both
chambers of the Legislature repeatedly stated that “complaints
about alleged violations of local law are covered, as well as
internal complaints.” (Sen. Rules Com., Off of Sen. Floor
Analysis, Analysis of Sen. Bill No. 496 (2013–2014 Reg. Sess.
as amended Sept. 6, 2013, pp. 4–5; Off. of Assem. Floor
Analyses, 3d reading analysis of Sen. Bill No. 496 (2013–2014
Reg. Sess.) as amended Sept. 6, 2013, p. 2.) Thus, the legislative
history suggests that the term “disclose” in section 1102.5(b
was intended to mean “report,” “inform,” or “complain” — which
readily encompasses A.C.R.’s complaint to Estrada in this case.
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
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Amendments to section 1102.5(b) in 2013, which are
directly implicated by this case, further support a broad reading
of the term “disclose.” In that year, three proposed bills sought
to amend section 1102.5(b): Senate Bill No. 666 (2013–2014
Reg. Sess.) (Senate Bill 666), Assembly Bill No. 263 (2013–2014
Reg. Sess.) (Assembly Bill 263), and Senate Bill No. 496 (2013–
2014 Reg. Sess.) (Senate Bill 496). The first two bills centered
on immigration-related protections; the third focused on
expanding whistleblower protections to cover internal
disclosures. The section 1102.5 amendments within the three
bills were closely related, with each bill containing changes to
section 1102.5(b) originally proposed by Senate Bill 496 and a
provision that those changes would take effect through
whichever bill was enacted last. (Stats. 2013, ch. 577, §§ 5, 5.5,
7; Stats. 2013, ch. 732, §§ 6, 6.5, 9; Stats. 2013, ch. 781, §§ 4, 4.1,
5.) Because these three bills were enacted at the same time on
the same subject, we read them as having a common policy goal
and an intention to take effect together. (Singer, Sutherland
Statutes and Statutory Construction (7th ed. 2013) § 23:18 [“If
the same legislative session enacts two or more acts on the same
subject they are presumed to embody the same policy and have
been intended to have effect together.”].) As enacted, Assembly
Bill 263 declared: “It is in the public policy interest of the State
of California that workers be able to report concerns to their
employers without fear of retaliation or discrimination.”
(Stats. 2013, ch. 732, § 1, subd. (h).) The Legislature’s stated
aim to protect workers who “report concerns to their employers”
(ibid.) is entitled to significant weight in discerning the statute’s
purpose.
The 2013 amendments also expanded whistleblower
protections beyond disclosures made to a government or law
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
enforcement agency to include disclosures made “to a person
with authority over the employee or another employee who has
the authority to investigate, discover, or correct the violation.”
(§ 1102.5(b), as amended by Stats. 2013, ch. 732, § 6.) As noted,
the statute does not limit its protections to a disclosure directed
to a person with the authority to “discover” the alleged violation
(i.e., a person who previously did not know about the alleged
violation); instead, it also protects a disclosure made to a person
with the authority to “investigate . . . or correct” the violation,
even if the disclosure does not cause the person to “discover” the
violation. (Ibid.
Relying on Mize-Kurzman, supra, 202 Cal.App.4th 832,
859, the Court of Appeal reasoned that “ ‘criticism delivered
directly to the wrongdoer[] does not further the purpose of . . .
encourag[ing] disclosure of wrongdoing to persons who may be
in a position to act to remedy it.’ ” However, the Legislature
reasonably could have believed that wrongdoers themselves
may often be well positioned to correct their own violations and
that being confronted by an employee about violations could
motivate an employer to correct those violations. Moreover,
whether or not such confrontation leads to a remedy in a given
case, providing employees with an internal disclosure option
and protecting those employees who disclose wrongdoing
directly to the wrongdoer further the purpose of whistleblower
protection laws. Estrada, as the owner of Kolla’s, was a “person
with authority” over employee A.C.R., and he appeared well
situated to “correct the violation” disclosed by A.C.R.
(§ 1102.5(b).) Construing section 1102.5(b) to cover A.C.R.’s
complaint here is fully consistent with the statute’s text and
with the Legislature’s purpose in adding the internal disclosure
protections to the statute in 2013.
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
Applying the Court of Appeal’s reasoning here would
result in outcomes contrary to the Legislature’s purpose. First,
although the Court of Appeal purported to reject a “first report”
rule, the court’s opinion appears to prescribe what amounts to a
“first known report” rule. This rule would exclude from
section 1102.5(b)’s protection a worker who discloses a
workplace violation to his or her employer or to a government or
law enforcement agency with the knowledge that another
employee has disclosed the same violation, or with the
unreasonable belief that no one has disclosed the violation. But
denying protection for these corroborating disclosures
undermines the purpose of section 1102.5(b). Because multiple
disclosures would not receive protection, employers and
government agencies would miss out on potentially
corroborating information that may be valuable in investigating
and confirming violations of the law. Without antiretaliation
protections, an employee who knows that his or her coworker
has already disclosed a violation may be hesitant to disclose the
same violation.
Conversely, an employee may reasonably feel more willing
to approach an employer about workplace safety hazards,
unpaid wages, or overtime violations knowing that his or her
coworkers were also disclosing the same unlawful activity. An
employer may also be more likely to ameliorate violations, and
less able to sweep them under the rug, when multiple employees
have disclosed the same wrongdoing. The Court of Appeal
decision would limit the ability of employees to report violations,
corroborate a coworker’s disclosure, or encourage their
employers to remedy violations of the law.
Although it is the Legislature’s prerogative to impose such
limitations, nothing in the legislative history indicates an intent
16
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
to do so. In developing the statute, the relevant committees
spoke clearly and repeatedly about the purposes and reasoning
behind the enactment and expansion of section 1102.5(b): to
protect workers, to encourage disclosure, and to promote
compliance with employment-related laws and regulations.
(See, e.g., Assem. Com. on Labor and Employment, Analysis of
Assem. Bill No. 2452, supra, as introduced Jan. 24, 1984, p. 1
[“The intent of this measure is to afford employees some
minimum protections against retribution by an employer when
the employee reports crimes or violations of the law occurring at
his or her place of employment”]; Sen. Judiciary Com., Analysis
of Sen. Bill No. 777, supra, as introduced Feb. 21, 2003, p. 7
[Senate Bill No. 777 is intended to be the “strongest
whistleblower protection and corporate accountability law in the
nation” to provide “ ‘an effective early warning system . . . [to
detect] corporate fraud’ ”]; Stats. 2013, ch. 732, § 1, subd. (j) [“It
is essential to the enforcement of this state’s labor laws that we
have broad, clear, and effective protections for workers engaging
in conduct protected by law from all forms of employer
retaliation . . . .”].
Moreover, the language of section 1102.5(b) does not
support a “first known report” rule. The only reference to an
employee’s state of mind in section 1102.5(b) is the requirement
that the employee “has reasonable cause to believe that the
information discloses a [legal] violation.” (Ibid.) The statute
thus does not protect employees who do not believe or who
unreasonably believe that the information they are disclosing
shows a violation of the law. However, there is no indication
that an employee must also have reasonable cause to believe
that he or she is the first to report the alleged violation, and we
see no basis for reading such a requirement into the statute.
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PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
The Court of Appeal’s interpretation risks limiting
internal disclosures, as employees may fear that reporting
wrongdoing to their employers, who may know of the alleged
violations, would leave them unprotected under section
1102.5(b). Although employees might instead report the
violations to a government agency, the Legislature’s 2013
amendments expanded antiretaliation protections to cover
internal disclosures, simultaneously providing employees with
protection and employers with the opportunity to correct
wrongdoing without government involvement. (Stats. 2013,
ch. 732, § 1, subd. (h) [expressing state interest “that workers be
able to report concerns to their employers without fear of
retaliation”].
C.
Amicus curiae raises several arguments that section
1102.5(b) should be given the narrow reading endorsed by the
Court of Appeal.
Amicus curiae argues that allowing coverage under
section 1102.5(b) for a disclosure of known information to an
employer would render duplicative section 98.6, which also
provides protection against employer retaliation. In general,
“we must avoid interpretations [of statutes] that would render
related provisions unnecessary or redundant.” (Kleffman v.
Vonage Holdings Corp. (2010) 49 Cal.4th 334, 345.) But a canon
of construction cannot supersede the Legislature’s clear intent.
By its terms, section 98.6 incorporates violations of other
sections of the Labor Code, including section 1102.5. (§ 98.6,
subd. (a) [prohibiting retaliation against any employee based on
“conduct delineated in . . . Chapter 5 . . . of Part 3 of Division 2”
of the Labor Code].) It appears that the Legislature
18
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
intentionally crafted a statutory scheme with such redundancy
in order to provide robust worker protections.
In any event, the relief available under section 98.6 is not
identical to the relief available under section 1102.5. (Compare
§ 98.6, subd. (b)(3) [civil penalties paid to employee] with
§ 1102.5, subd. (f) [authorizing civil penalties remitted to
government].) In addition, only section 1102.5 authorizes courts
to award reasonable attorney’s fees to any “plaintiff who brings
a successful action.” (§ 1102.5, subd. (j).) And section 1102.5
claims are evaluated on the basis of a distinct evidentiary
standard and framework set by statute. (See § 1102.6; Lawson,
supra, 12 Cal.5th at p. 712 [“section 1102.6 . . . supplies the
applicable framework for litigating and adjudicating section
1102.5 whistleblower claims”].
Amicus curiae also argues that the Legislature’s use of the
word “report” in section 1102.5(e) provides evidence that
“disclose” as used in section 1102.5(b) was intended to have a
different, narrower meaning. But this construction would
provide broader protection to public employees who disclose
wrongdoing to their own employer (where only a “report” is
needed) than to public employees who disclose wrongdoing to an
outside agency (where the “first known report” rule would
apply). There is no indication that the Legislature intended
such a distinction.
Moreover, the legislative history of section 1102.5(e) does
not support amicus curiae’s argument. Prior to the 2013
amendments, section 1102.5(b) covered only disclosures made to
a government or law enforcement agency rather than those
made to one’s own employer. (See Green, supra, 19 Cal.4th at
77 [previous version of § 1102.5(b) “does not protect plaintiff,
19
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
who reported his suspicions directly to his employer”].) Under
then-current law, it was uncertain whether section 1102.5(b
protected a public employee who made a disclosure to his or her
own employing agency: Was the disclosure protected because it
was made to a government agency or unprotected because it was
internal? The Court of Appeal in Gardenhire answered this
question by holding that a public employee’s disclosure to his or
her own agency was a protected disclosure under former section
1102.5(b). (Gardenhire, supra, 85 Cal.App.4th at p. 243.
In enacting section 1102.5(e) in 2003, the Legislature
sought to codify the holding in Gardenhire and thus clarify, not
expand, the existing scope of section 1102.5 protections. (Assem.
Com. on Judiciary, Analysis of Sen. Bill No. 777, supra, as
amended May 29, 2003, p. 5 [“The author further states that this
bill also would codify the appellate court’s ruling in Gardenhire
v. City of Los Angeles Housing Authority”], italics added.) In
discussing the proposal to codify Gardenhire, committees in both
the Assembly and Senate used “report” and “disclosure”
interchangeably. (See, e.g., Sen. Judiciary Com., Analysis of
Sen. Bill No. 777, supra, as introduced Feb. 21, 2003, p. 9.
Instead of creating a new standard for public employees, as
amicus curiae argues, the intent of the Legislature in enacting
section 1102.5(e) was to clarify that a public employee’s internal
“report” is a protected “disclosure.” (Compare Assem. Com. on
Judiciary, Analysis of Sen. Bill No. 777, supra, as amended May
29, 2003, p. 5 [by codifying Gardenhire “a government employee
who has made a disclosure to his or her employing agency is
deemed to have made the disclosure to a government or law
enforcement agency under the whistleblower statute”] with
§ 1102.5(e) [“A report made by an employee of a government
agency to their employer is a disclosure of information to a
20
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
government or law enforcement agency . . . .”].) Moreover, it
would be odd to read the 2003 amendments, enacted after “a
series of high profile corporate scandals and reports of illicit
coverups” (Lawson, supra, 12 Cal.5th at p. 710, italics added), to
have the effect of strengthening protections only for public
employees.
When the Legislature again amended section 1102.5 in
2013, it expanded the range of protected disclosures to include
internal disclosures made by private employees. (Stats. 2013,
ch. 781, § 4.1.) Because the disclosure requirements did not
otherwise change, the Legislature presumably intended the
protections afforded to public employees to apply also to private
employees. The history of the 2003 amendments indicates that
those protections covered internal employee “reports” because
they are “disclosures”; in other words, the Legislature used the
term “report” in section 1102.5(e) synonymously with “disclose”
in section 1102.5(b). When the Legislature in 2013 expanded
section 1102.5(b) to protect internal disclosures made by all
employees rather than only public employees, it gave no
indication that anything but the same broad reading of
“disclosure” would continue to apply.
Amicus curiae also argues that by not amending section
1102.5 in light of the Mize-Kurzman decision, the Legislature
acquiesced to the holding of that case. Amicus curiae is correct
that when the Legislature amended section 1102.5 in 2013, it
did not respond directly to Mize-Kurzman, which was decided a
year earlier. But “[a]rguments based on supposed legislative
acquiescence rarely do much to persuade.” (Scher v. Burke
(2017) 3 Cal.5th 136, 147.) “Legislative inaction may instead
reflect nothing more than ‘ “ ‘the sheer pressure of other and
more important business, political considerations, or a tendency
21
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
to trust . . . the courts to correct their own errors.’ ” ’ ” (Id. at
p. 148.) Here, the case law has continued to develop in the
decade since the Mize-Kurzman decision, and this is not an
instance where the Legislature has repeatedly amended a
statute while leaving in place a consistent interpretation of the
courts. (Cf. People v. Bouzas (1991) 53 Cal.3d 467, 475 [finding
legislative acquiescence where Legislature amended the
relevant statutes “at least 10 times between 1903 and 1976
without altering the courts’ consistent interpretation” of the
provisions at issue].) The lack of legislative response to Mize-
Kurzman is thus “ ‘ “ ‘a weak reed upon which to lean.’ ” ’ ”
(Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142,
1156.
Further, amicus curiae contends that our reading of
“disclose” threatens “to convert everyday workplace disputes
into whistleblower cases.” But the protections of section
1102.5(b) apply only where the disclosing employee “has
reasonable cause to believe that the information discloses a
[legal] violation.” (Ibid.) This clause imposes a requirement of
objective reasonableness and excludes from whistleblower
protection disclosures that involve only disagreements over
discretionary decisions, policy choices, interpersonal dynamics,
or other nonactionable issues. Moreover, an employer accused
of retaliation in violation of section 1102.5(b) can rebut the
charge by “demonstrat[ing] by clear and convincing evidence
that the alleged [retaliatory] action would have occurred for
legitimate, independent reasons even if the employee had not
engaged in activities protected by Section 1102.5.” (§ 1102.6.
In sum, we hold that a protected disclosure under section
1102.5(b) encompasses reports or complaints of a violation made
to an employer or agency even if the recipient already knows of
22
PEOPLE ex rel. GARCIA-BROWER v. KOLLA’S, INC.
Opinion of the Court by Liu, J.
the violation. We further conclude that complainant A.C.R.
made a disclosure protected by section 1102.5(b). And we
disapprove Mize-Kurzman v. Marin Community College Dist.,
supra, 202 Cal.App.4th 832 to the extent it is inconsistent with
today’s opinion.
CONCLUSION
We remand this case to the Court of Appeal for further
proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
23
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People ex. rel. Garcia-Brower v. Kolla’s, Inc.
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 5/10/21 – 4th
Dist., Div. 3
Rehearing Granted
Opinion No. S269456
Date Filed: May 22, 2023
Court: Superior
County: Orange
Judge: Martha K. Gooding
Counsel:
Nicholas Patrick Seitz for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Horvitz & Levy, Christopher D. Hu, Bradley S. Pauley and Beth J. Jay
as Amicus Curiae upon the request of the Supreme Court.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Nicholas Patrick Seitz
Department of Industrial Relations, Division of Labor Standards
Enforcement
464 West 4th Street, Suite 348
San Bernardino, CA 92401
(909) 521-3853
Christopher D. Hu
Horvitz & Levy LLP
505 Sansome Street, Suite 375
San Francisco, CA 94111-3175
(415) 462-5600
Opinion Information
| Date: | Docket Number: |
| Mon, 05/22/2023 | S269456 |
