LeVine v. Weis (2001)

ROBERT LeVINE, Plaintiff and Respondent, v. CHARLES WEIS, as Superintendent, etc., et al., Defendants and Appellants.

[Modification of opinion (90 Cal. App. 4th 201; 108 Cal.Rptr.2d 562) on denial of petition for rehearing.]

THE COURT.-

It is ordered that the opinion filed herein on June 26, 2001, be modified as follows:

1. On page 7, before the first full paragraph [90 Cal. App. 4th 208, advance report, foll. the 2d full par.], add the following paragraphs:

"Vermont was influenced by a provision in the federal act allowing treble damages. (31 U.S.C., § 3729.) This provision if applied to the state would violate the federal policy against awarding punitive damages against a public entity. (Vermont Agency of Natural Resources v. U.S. ex rel Stevens, supra, 529 U.S. at pp. 784-786.)

The California False Claims Act has a treble damages provision identical to the federal act (§ 12651) and a policy against awarding punitive damages against a public entity (§ 818). [90 Cal. App. 4th 1413b]

"This does not change the law of the case. We are not bound by a federal court's interpretation of a federal act, even where both acts may contain some identical language. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 943, p. 984 ["Federal decisions, of course, are not controlling on matters of state law"].) Moreover, unlike Vermont, where the action was brought on behalf of the federal government, here LeVine brought his action on his own behalf under section 12650, subdivision (b)(1). The treble damages provision of section 12651 applies only to liability to the state or a political subdivision. Treble damages are not an issue here."

There is no change in the judgment.

Appellants' request for rehearing is denied.