Stockett v. Assoc. of CA Water Agencies

1
Filed 5/30/02
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JERRY STOCKETT et al.,
Plaintiffs and Respondents,
v.
ASSOCIATION OF CALIFORNIA WATER
AGENCIES JOINT POWERS INSURANCE
AUTHORITY,
Defendant and Appellant.
C035330
(Sup.Ct.No. 96AS04669)
JERRY STOCKETT et al.,
Plaintiffs and Appellants,
v.
ASSOCIATION OF CALIFORNIA WATER
AGENCIES JOINT POWERS INSURANCE
AUTHORITY,
Defendant and Respondent.
C035469
(Sup.Ct.No. 96AS04669)

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After plaintiff Jerry Stockett’s employment with defendant
Association of California Water Agencies Joint Powers Insurance
Authority (JPIA) was terminated, he and his wife, Judith, filed
the required government claim and then brought suit for unlawful
termination and loss of consortium. The case proceeded to trial
on the theory of unlawful termination in violation of public
policy, based on alleged retaliation for the following acts:
supporting claims of sexual harassment and objecting to an
attempt to weaken JPIA’s sexual harassment policy, objecting to
a conflict of interest that violated Government Code section
87100, and free speech to the press. A jury awarded the
Stocketts over $4.5 million dollars in damages. JPIA appeals
from the judgment, contending the trial court improperly allowed
the case to go to the jury on factual theories not set forth in
the government claim; there was juror misconduct; and the
million dollar damage award for loss of consortium was
excessive. The Stocketts also appeal, contending it was error
to strike their memorandum of costs.
We find merit in JPIA’s first contention. While the
Stocketts’s claim included facts that would support an action
for unlawful termination in violation of public policy based on
retaliation for objecting to sexual harassment, it contained no
facts to support theories of recovery based on retaliation for
opposing a conflict of interest or exercising free speech in
speaking to the press. The case was presented to the jury on
all three theories of unlawful termination in violation of
public policy with a general verdict, and there is no way to

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determine that the jury did not rely on the legally improper
theories. Further, a review of the record indicates it is
reasonably probable that a result more favorable to JPIA would
have been reached absent the inclusion of the improper theories
at trial. Therefore, the judgment must be reversed. Since we
reverse the judgment, we need not address the remaining
contentions.
FACTUAL AND PROCEDURAL BACKGROUND
The Association of California Water Agencies is a nonprofit
organization of about 425 water districts, created to advocate
water rights for member agencies. Numerous of these water
agencies joined forces and created JPIA to provide insurance
services and risk management services. In August 1995, JPIA had
three main programs: a liability program, a worker’s
compensation program, and a property program.
Each water agency that is a member of JPIA sends a director
to the JPIA board of directors. This board elects a 10-member
executive committee. In 1995, Warren Buckner was president of
the executive committee and Wesley Bannister was vice-president.
In 1983, Stockett was hired as general manager of JPIA.
The general manager of JPIA was the head staff person and
reported to the executive committee. The general manager made
all day-to-day decisions, analogous to a chief executive officer
of a corporation. Originally, Stockett had employment contracts
for specified periods. In 1992, he signed an employment
contract with no specified period; it was terminable at will.
In January 1995, Stockett received 97 percent of the bonus for

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which he was eligible. His salary was about $120,000 per year.
On August 25, 1995, after a closed meeting of the executive
committee, Stockett’s employment was terminated. He received
$65,000-68,000 in severance pay.
The Stocketts filed a government claim for damages pursuant
to Government Code section 910. In August 1996, they filed a
complaint for damages. After various demurrers, amended
complaints, and an unsuccessful motion for summary judgment, the
case proceeded to jury trial, which lasted over three months.
The central dispute at trial was the reason for Stockett’s
termination. Much of the testimony centered on conflicts
between Stockett and William Malone, JPIA’s insurance broker.
Malone had been involved with JPIA’s excess liability insurance
since 1979; first as an underwriter and since 1991 as a broker.
There were discussions about him becoming JPIA’s in-house
broker, but they could not reach an agreement on salary.
At one time Malone bought dinners for the executive
committee before their meetings. Stockett stopped that
practice. Beginning in 1995, Malone had to fill out Form 730,
Statement of Economic Interests, as a consultant. This practice
stopped after Stockett was terminated.
In the spring of 1995, JPIA was looking into ways to market
its programs and increase membership. John Sacco, JPIA’s risk
manager, presented a proposal for in-house marketing, which
stressed controlled growth and aggressive risk control. Malone
presented a competing proposal for a joint venture marketing

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plan between JPIA and his company; he offered a reduced
commission. The executive committee adopted the joint venture.
There was tension between Malone and Stockett over the
marketing plan. Stockett did not think Malone could effectively
do the marketing. Malone thought Stockett was not being
supportive. Malone also got upset that Stockett was not
providing him all the information he sought. The conflict
between Stockett and Malone was discussed in a closed session of
the executive committee. Afterwards Stockett, Malone and
Bannister met to discuss the conflicts. After a candid
discussion, Stockett believed they came to a resolution and each
would make an effort to make the joint venture work. The joint
venture was not a success.
In October 1994, JPIA agreed to a three-year contract of
excess liability insurance. Malone was the broker for this
insurance. In the Spring of 1995, Stockett asked an old friend,
Gary Rimler of Jardine Insurance, to check out the market for
this insurance. Stockett did not tell the executive committee
he was testing the market.
Malone learned Rimler was soliciting bids; he asked
Stockett for a meeting in Tahoe to discuss the apparent conflict
with the existing contract and asked that Buckner and Bannister
be included. Stockett declined to include Buckner and Bannister
in the meeting, so Malone invited them himself. Two
representatives from the insurer and Dan Klaff, the assistant
general manager for JPIA, were also in attendance. Malone
expressed the concern that Stockett was in the marketplace when

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there were three years left to run on the contract. Stockett
said he had every right to be in the marketplace and Buckner
agreed, but Stockett had no right to change insurance without
the executive committee’s approval. At the end of the meeting,
Stockett understood he could be in the market and make
inquiries, but that he was not to solicit formal bids.
Stockett later reported to Buckner and Bannister that
Rimler was indeed soliciting proposals and the bidder had been
told that JPIA would break its existing contract if adequate
savings were shown. He took “full responsibility for any
misunderstandings that now exist” and apologized for the
position he had put JPIA in. He requested advice on whether he
should “kill the Jardine proposals at this time” or accept them
and use them only for market information.
Buckner responded with a harshly worded handwritten memo to
Stockett, that began: “I am appalled at your duplicity and lack
of ethics.” Buckner stated he expected both sides to honor the
existing contract and ordered Stockett to kill the Jardine
proposal. At trial Bannister explained that going into the
market while a contract is in place gives one the image of a
shopper who does not honor contracts and that image is very
injurious. He further explained that it is difficult to get
quotes if there is more than one broker. If you use multiple
brokers, you should allocate the market, so two brokers do not
contact the same carrier.

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Malone then proposed a contract extension at a substantial
savings. This proposal was adopted immediately after Stockett
was terminated.
Another dispute over competing bids for insurance arose
with respect to property insurance. For two years JPIA had been
attempting to change some policy language in an excess property
coverage policy. The problem became acute when there was a mud
slide that was not covered. The executive committee instructed
Malone to get quotes for coverage. Malone reported he was
having trouble dealing with insurers because another broker,
Goldman, was shopping the same market. Bannister called Klaff
and told him to get Goldman out of the market.
John Sacco, JPIA’s risk control manager, reported to
Stockett that one of his administrative assistants, Ashley
Smalley, complained that Malone came up behind her at the copy
machine and rubbed against her. Sacco also mentioned another
incident where Malone had stroked a woman’s hair. Stockett
showed Malone Sacco’s memo and Malone said he was sorry and it
would not happen again. Stockett told Buckner and Bannister
about the incident and considered it closed.
Bannister then wrote Stockett about a perceived problem
with sexual harassment claims. He asked that the current
procedures be reviewed and perhaps revised, particularly since
the accused person was being confronted by someone other than
the accuser. Although Bannister expressed no tolerance for
sexual harassment or abuses of any kind, he was also concerned
about damaging the party accused and potential litigation

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against JPIA. He proposed a detailed agenda item about handling
sexual harassment situations. Among his suggestions were
consideration of a unisex uniform and training in dress codes.
Bannister had not reviewed JPIA’s sexual harassment policies.
Bannister continued to dwell on the Malone incident,
telling Stockett that Malone had denied the conduct and was
threatening to sue. In response to Bannister’s concerns,
Stockett conducted an additional investigation of the incident,
which included obtaining a statement from Smalley. Stockett
admitted part of his motivation for the investigation was to
protect himself in the event of a confrontation with Malone.
At a personnel committee meeting, Bannister expressed his
concern about revising the policies to protect the “innocently
accused.” Stockett was directed to meet with counsel to draft
new procedures for handling sexual harassment complaints and
present them at the next executive committee meeting. Stockett
and others met with counsel; they believed Bannister’s
suggestions were nonsense, but made changes to placate him. No
one took Bannister’s suggestion for unisex uniforms seriously.
Bannister complained that the changes to the sexual harassment
policy were not occurring quickly enough. No one else was
concerned.
When Bannister received a copy of the tentative agenda for
the August 25 executive committee meeting he was unhappy that
the agenda item concerning sexual harassment was directed to the
executive committee rather than to staff. He wrote Stockett,
castigating him for his inability to follow instructions.

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Buckner took Stockett’s side that the agenda item was
appropriate; Buckner thought Bannister was over-reacting.
Bannister then put Stockett’s performance on the agenda for the
next executive committee meeting.
In June 1995, JPIA decided to purchase group worker’s
compensation insurance from California Compensation Insurance
Company (Cal Comp), rather than continue to self-insure.
Stockett was interviewed about the change by Smart’s Worker’s
Comp Bulletin. In an article published in early August,
Stockett was quoted as saying Cal Comp was willing to incur some
losses on the business to obtain the JPIA account. “The big
thing from my perspective is that they’re buying business and
willing to take some loss on it.” Buckner was very upset about
the article; he thought the comments were ill-advised and did
not reflect well on JPIA. He sent Stockett a copy of the
article with a note that read in part: “Calling Cal Comp liars
and accusing them of breaking the law by selling insurance below
cost are very serious accusations.” Buckner indicated apologies
had been made to Cal Comp and Malone was trying to avert a
cancellation of the policy.
In anticipation of his performance being evaluated by the
executive committee, Stockett obtained Buckner’s permission to
contact the members of the executive committee about their
concerns. After speaking with several members of the executive
committee, Stockett prepared a defense of his position,
responding to their concerns. He apologized for the Smart’s
article and insisted he was only answering a reporter’s

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question. With respect to the Goldman situation, he explained
that Klaff had asked to permit Goldman to bid on property
coverage and Stockett told him market assignments would need to
be made. When Malone was asked his preference for markets, he
made his plea for assignment of all remaining markets directly
to Buckner and Bannister, without responding to staff. Stockett
relied on Buckner’s letter to show that he had followed the
instructions to review and revise sexual harassment policies.
Stockett defended his comments that were perceived as lacking in
support of the marketing plan and he blamed staff for the
failure to get an acceptable property program in two years.
At the August 25 meeting of the executive committee, a
closed session was held to discuss Stockett’s performance. Nine
members voted to terminate his contract; there was one
abstention. Stockett was not allowed to address the executive
committee and was not certain all members saw his written
defense. Klaff was immediately appointed interim general
manager.
Buckner testified there were four incidents that showed
Stockett’s disregard for executive committee orders and poor
judgment, which were the reasons for his termination. At the
meeting in Tahoe Stockett loudly proclaimed his right to be in
the market. Jardine was procuring quotes that would require
JPIA to break its existing contracts. In Buckner’s view JPIA
should honor its contracts. When there was a flood and mudslide
in San Diego County they thought they were covered, but
discovered they were not. Stockett resisted any action except

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maybe filing a lawsuit. The executive committee asked Malone to
get replacement coverage. He ran into difficulty because there
was another broker shopping the market. Buckner had to tell
Klaff to call Goldman and tell him to cease and desist. Buckner
claimed everyone agreed you do not have two brokers shopping the
same market. Finally, Stockett told Smart’s that Cal Comp was
buying their insurance by quoting a rate lower than what they
could hope to sustain.
Bannister testified repeatedly two things triggered his
desire to terminate Stockett: his marketing the liability
program midstream against Buckner’s instructions and his
comments to Smart’s. He said Stockett’s delay in reviewing the
sexual harassment policy was discussed in the closed session,
but was not part of the decision to terminate him.
Ronald Vickery, a member of the executive committee,
testified Stockett was terminated due to his unwillingness to
carry out the requests of the executive committee, his inability
to deal with people, and because he wanted to take JPIA
nationwide and it was hard to get him to stop pursuing that.
Stockett used JPIA funds to get involved in nationwide pools and
the executive committee told him to stay out.
Jim Edwards described the closed executive committee
meeting discussing Stockett as a “general gripe session.” He
suggested that if everyone was unhappy, they should buy out
Stockett’s contract. Buckner thought that was premature. After
a 20-minute discussion, the executive committee voted to
terminate the contract. There was no discussion of sexual

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harassment or Malone, but the Smart’s article did play a role in
the decision.
The jury returned a general verdict, finding JPIA liable
for wrongful termination in violation of public policy. It
awarded Stockett $2,514,615 in economic damages and $1,000,000
in noneconomic damages. The jury awarded Judith Stockett
$1,000,000 for loss of consortium.
DISCUSSION
JPIA contends the trial court committed reversible error in
allowing the jury to consider theories of recovery based on
facts that differed from those in the claim form.
The Stocketts filed a claim against JPIA pursuant to
Government Code section 910, a prerequisite to a suit for
damages. (Gov. Code, § 954.4.) The claim stated that in the
spring and summer of 1995, Stockett became aware that Malone was
sexually harassing members of the JPIA staff. Stockett brought
this behavior to the attention of the executive committee and
was instructed to relax his position on sexual harassment
issues; he was told that he was being too harsh on Malone.
During the same time, Stockett became aware there were other
brokers who might be able to provide insurance services to JPIA
at a lower cost than that provided by Malone and he considered
the possibility of placing a brokerage account to competitive
bid. Malone learned of this and lobbied for the survival of his
exclusive contract and for Stockett’s removal as general
manager. Stockett also became aware of a growing alliance
between Dan Klaff, assistant general manager, and Malone.

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Malone also had several private phone calls with Bannister.
Thereafter, Stockett received hostile calls and memoranda from
Bannister. He was terminated as general manager and replaced by
Klaff.
The claim stated it was based on a conspiracy to violate
the Brown Act (Gov. Code, § 54953 et seq.), conspiracy to
deprive Stockett of the benefits of his employment contract, a
knowing and willful determination to purchase insurance products
from one who did not offer the lowest price or best value in
violation of JPIA’s duty to provide the best insurance product
at the lowest cost, intentional acts designed to disrupt
Stockett’s employment relationship, and retaliation for
Stockett’s support of staff complaints against Malone for sexual
harassment. The claim asserted violations of the Brown Act and
the Fair Employment and Housing Act, which were violations of
public policy.
The initial complaint mirrored the claim. After demurrers
and amended complaints, the surviving causes of action were
wrongful termination in violation of public policy based on
retaliation for supporting complaints of sexual harassment and
an accompanying loss of consortium claim.
The Stocketts then sought to file a fourth amended
complaint and their motion was granted. This complaint alleged
Stockett was a member of a protected class, discriminated
against in retaliation for objecting to sexual harassment in
violation of Government Code section 12940 and the First

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Amendment. It further alleged that Malone and Bannister
persuaded JPIA to discharge Stockett in retaliation for
(1) objecting to sexual harassment, (2) his reluctance to change
JPIA’s policies on sexual harassment, and (3) advocating the
purchase of insurance policies on the open market rather than
from Malone, who Stockett believed had a conflict of interest in
violation of Government Code section 87100. The complaint
alleged Stockett’s termination violated his First Amendment
rights.
JPIA opposed the filing of this amended complaint,
contending it failed to comply with the claims act. JPIA
continued, unsuccessfully, to raise this point in its trial
brief, a motion in limine for a trial on a special defense, a
nonsuit, and a motion for a judgment notwithstanding the verdict
or a new trial.
The trial court ruled the claim adequately stated the
grounds set forth in the complaint. The court later ruled the
pleadings were broad enough to cover the Smart’s article and if
not, leave to amend would be granted. The Stocketts argued
termination for Stockett’s comments in the Smart’s article was a
violation of his First Amendment rights.
JPIA contends the trial court erred in all these rulings
and in instructing the jury on theories of violation of public
policy that were not included in the claim.1 JPIA contends these
1 The court instructed the jury: “To establish termination of
employment in violation of public policy, it must be established

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errors are reversible because with a general verdict it is not
possible to determine whether the jury reached its verdict based
on a legally impermissible theory.
The Stocketts contend any claim of defect in the verdict
has been waived because JPIA did not appeal the general verdict
form. The Stocketts misunderstand JPIA’s contention. JPIA does
not contend it was error to use a general verdict.2 Instead, it
contends that it was error to permit the jury to find unlawful
termination based on theories whose factual underpinnings were
not set forth in the claim.
that the termination of plaintiff’s employment was a violation
of public policy. [¶] Relevant public policies of the State of
California are as follows: [¶] (1) An employer shall not
terminate an employee in retaliation for disclosing a practice
that violates the conflict of interest provisions of the
Political Reform Act. [¶] It is a violation of the conflict of
interest provisions of the Political Reform Act for a public
official to make, participate in making, or in any way attempt
to use his or her official position to influence a governmental
decision in which he knows, or has reason to know, he has a
financial interest. [¶] (2) An employer shall not terminate
an employee in retaliation for opposing sexual harassment in the
workplace, as prohibited by the Fair Employment and Housing Act.
[¶] It is an unlawful employment practice for an employer or
any other person to harass an employee because of sex. An
entity shall take all reasonable steps to prevent harassment
from occurring. [¶] (3) An employer shall not terminate an
employee in retaliation for the exercise of the right to freedom
of speech, protected by the First Amendment of the Constitution
of the United States. The First Amendment protects the right to
speak out on matters of public concern.”
2 A special verdict could have clarified the basis of the
finding of a public policy violation. As recognized by the
parties and the trial court, use of the general verdict carried
the risk of reversal if one or more of the theories of recovery
was struck down on appeal.

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At trial, Stockett claimed his termination violated public
policy based on three distinct sets of fact: his objection to
the watering down of JPIA’s policies on sexual harassment, his
objection to Malone’s conflict of interest in participating in
decisions in which he had a financial interest, and his exercise
of free speech, particularly in speaking to Smart’s. JPIA
contends the claim gave notice only of the retaliation related
to sexual harassment. It argues the claim is devoid of any
facts relating to Malone’s conflict of interest, his
participation in JPIA’s decisions, or Stockett’s exercise of his
free speech rights.
The Stocketts retort that this contention is specious and
the claim was adequate because it identified the cause of the
injury as Stockett’s wrongful termination. It was not necessary
to specify the legal theory that made the termination unlawful.
As JPIA is a public agency, the Stocketts were required,
under Government Code section 945.4, to file a claim against the
agency before proceeding with a civil action for damages.
“[T]he factual circumstances set forth in the written claim must
correspond with the facts alleged in the complaint;” and a
plaintiff may not proceed on “a factual basis for recovery which
is not fairly reflected in the written claim.” (Nelson v. State
of California (1982) 139 Cal.App.3d 72, 79.)
“A claim served on a governmental entity must fairly
describe what that entity is alleged to have done. A theory of
recovery not included in the claim may not thereafter be
maintained. [Citations.] However, while the circumstances

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described in a claim must substantially correspond with the
causes of action pled, the claim need not conform to pleading
standards. [Citation.] ‘The primary function of the
[Government Tort Claims Act] is to apprise the governmental body
of imminent legal action so that it may investigate and evaluate
the claim and where appropriate, avoid litigation by settling
meritorious claims. [Citations.]’ [Citation.]” (Shoemaker v.
Myers (1992) 2 Cal.App.4th 1407, 1426.)
There are two lines of cases addressing the variance between a
government claim and a subsequent complaint. In the first, the claim
was held inadequate as the complaint referred to different factual
circumstances. In Fall River Joint Unified School Dist. v. Superior
Court (1988) 206 Cal.App.3d 431, decided by this court, the claim
stated the accident was caused by a defective door that closed with
excessive force. The subsequent complaint premised the right to
recover on the school’s negligent failure to supervise students
engaged in “dangerous horse-play.” (Id. at p. 434.) This court
found the attempt to premise liability on an entirely different
factual basis than that set forth in the tort claim was a fatal
variance. (Id. at p. 435.)
In Donohue v. State of California (1986) 178 Cal.App.3d
795, the claim asserted the defendant was negligent in
permitting an uninsured motorist to take a driving test, whereas
the complaint alleged negligence in failing to instruct, direct
and control the motorist during his driving examination. The
court found the act of permitting a uninsured motorist to take a
driving test was not the factual equivalent of failure to

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control or direct the motorist during the test. (Id. at p.
804.)
In Lopez v. Southern Cal. Permanente Medical Group (1981)
115 Cal.App.3d 673, a claim alleged that the State negligently
issued a driver’s license to an epileptic. Plaintiffs later
sought to amend the complaint to allege that the state was
negligent in failing to suspend or revoke a license for failure
to comply with financial responsibility laws. The court found
the proposed complaint alleged facts not in the claim. (Id. at
p. 677.)
The factual circumstances alleged in the claim in Turner v.
State of California (1991) 232 Cal.App.3d 883, also decided by
this court, were failure to warn or take adequate precautions
against anticipated gang-related violence and reckless conduct
of security officers in firing the shot that hit plaintiff.
There was also a general charge of dangerous conditions of
property. This court held a complaint alleging inadequate
lighting constituted a complete shift in theory from what
defendants were alleged to have done. (Id. at pp. 890-891.)
A second line of cases finds variance acceptable where the
difference between the claim and the subsequent complaint is the
result of the addition of factual details, but the basic facts
remain unchanged. In Blair v. Superior Court (1990) 218
Cal.App.3d 221, at page 223, decided by this court, the claim
alleged the accident was due to “‘Negligent maintenance and
construction of the highway surface. Failure to sand and care
for highway for safetyness of automobile transportation.’” We

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found allegations in the complaint relating to lack of guard
rails, slope of the road, and failure to warn were premised on
the same foundation that because of negligent construction and
maintenance, the highway was a dangerous condition of public
property. (Id. at p. 226.)
In White v. Superior Court (1990) 225 Cal.App.3d 1505, the
claim stated a police officer falsely arrested and beat a bus
driver. The subsequent complaint added causes of action for
false imprisonment and negligent hiring, training and retention
of the officer. The court found the claim and the complaint
were premised on the same fundamental facts -- the officer’s
alleged mistreatment of the bus driver. The additional causes
of action merely sought to show direct responsibility of the
City for the officer’s conduct. (Id. at p. 1511.)
In Stevenson v. San Francisco Housing Authority (1994) 24
Cal.App.4th 269, the claim stated claimant’s father fell in his
apartment during an earthquake and was not discovered until
seven days later. He suffered injuries which resulted in his
death. The complaint alleged causes of action for negligent
failure to disclose latent defects in the apartment, breach of
the statutory duty to inspect the premises for safety, and
negligent failure to inspect. The housing authority argued the
claim focused on events after the earthquake while the complaint
focused on events before the earthquake. The court found the
variance permissible; although the legal theories were more
detailed in the complaint, the claim referenced the father’s
fall and negligent maintenance of the apartment. The addition

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of details merely elaborated on the basic facts set forth in the
claim. (Id. at p. 278.)
Government Code section 910 sets forth the information a
claim must contain. As pertinent here, the claimant must set
forth: “(c) The date, place and other circumstances of the
occurrence or transaction which gave rise to the claim asserted.
[¶] (d) A general description of the . . . injury, damage or
loss incurred . . . . [¶] (e) The name or names of the public
employee or employees causing the injury, damage, or loss, if
known.”
The basic circumstances in a retaliatory termination of
employment are that the employee engages in a protected activity
and the employer fires him in retaliation. (See Fisher v. San
Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614.) As to
the conflict of interest, the claim states only that Stockett
learned there might be insurance available from a less expensive
source than Malone, and he considered seeking a competitive bid,
but Malone lobbied to keep his exclusive contract and to get rid
of Stockett. The claim makes no mention of a conflict of
interest; it does not state that Stockett objected to a conflict
of interest, took any action to oppose it, or otherwise engaged
in any protected activity. Stockett only “considered”
competitive bidding. In the claim, Stockett is a passive victim
of Malone’s greed; in the complaint, he is punished for his
virtuous actions in protecting the public interest.
The claim also stated Buckner, Bannister, Klaff and Malone
decided to purchase insurance that was not the best value and

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lowest cost and refused to select insurance through competitive
bidding, all in violation of JPIA’s duty to provide the best
insurance product to its members. While the claim describes a
conspiracy by Malone and others to get rid of Stockett to
protect Malone’s financial interest, JPIA’s improper act is
identified only as spending too much money on insurance. The
claim does not allege that JPIA allowed Malone to participate in
decisions where he had a financial interest and then fired
Stockett for his objection to this practice. The complaint
changes the act and actors. This case, therefore, falls into
the first line of cases where the variance between the claim and
the complaint is unacceptable because the complaint sought
recovery based on different facts.
The Stocketts contend all that was necessary to give the
notice required by the claims act was to identify the claim as
wrongful termination in violation of public policy. At oral
argument, they argued it was not possible to give all the
details of the termination as Stockett had not been allowed to
attend the closed meeting of the executive committee and was not
told the reason for his discharge. Until they conducted
discovery, they were not able to describe fully the violations
of public policy. The Stocketts contend it is unfair to require
a terminated employee to give factual details in his government
claim for wrongful termination in violation of public policy.
We reject this argument for two reasons. First, the
premise that Stockett was wrongfully denied proper notice of the
reasons for his termination is fundamentally at odds with his at

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will employment. Second, Stockett was able to file a factually
detailed claim within six months and was aware of the concerns
that led to his termination. His complaint did not merely
supplement his claim, but changed its factual underpinning.
It was undisputed that Stockett’s employment was at will.
“Labor Code section 2922 establishes the presumption that an
employer may terminate its employees at will, for any or no
reason. A fortiori, the employer may act peremptorily,
arbitrarily, or inconsistently, without providing specific
protections such as prior warning, fair procedures, objective
evaluation, or preferential reassignment.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 350.) Part of the
employment bargain that an employer obtains with at will
employment is a freedom from cumbersome reasons and procedures
for terminating an employee. The employer may terminate an
employee “for any or no reason.” Thus, an at will employee has
no right to be present at the discharge meeting or to be given
reasons for the discharge. Of course, “an employer has no right
to terminate employment for a reason that contravenes
fundamental public policy as expressed in a constitutional or
statutory provision. [Citation.]” (Turner v. Anheuser-Busch,
Inc. (1994) 7 Cal.4th 1238, 1252.) There is nothing unfair in
requiring a discharged employee to describe the facts showing
his discharge violated a public policy.
As the record shows, Stockett was able to provide very
detailed factual allegations in his claim as to the public
policy violations in his termination. He outlined his stand

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against Malone’s sexual harassment, Malone’s attempts to protect
his exclusive contract at the cost of higher priced insurance,
and the conspiracy to remove Stockett. This is not a case where
a broad general claim is supplemented by additional facts in the
complaint. Rather, the detailed allegations of the claim were
replaced by different detailed allegations in the complaint.
Stockett did not merely expand on his claim; he changed both the
acts and the actors. To permit such a drastic change in the
factual underpinnings of the claim would permit the claimant to
mislead the public entity as to the nature of the claim and
would abrogate the value of the claim as an investigative tool.
Further, Stockett cannot maintain that he was completely
unaware of any reasons for his termination. Once his
performance was placed on the agenda for the meeting, he
contacted the various members of the executive committee about
their concerns. There was considerable testimony about his
notes of these conversations and the various concerns raised;
several members of the executive committee mentioned the Smart’s
article as a concern. Thus, Stockett had adequate notice that
the Smart’s article was a reason for his termination and the
ability to claim his termination violated his free speech rights
if he so believed. Instead, in his written defense, he
apologized to the executive committee for the article. “In
retrospect, I am sorry that I was so candid about expressing my
personal views.”
“The primary function of the claims act is to apprise the
governmental body of imminent legal action so that it may

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investigate and evaluate the claim and where appropriate, avoid
litigation by settling meritorious claims. [Citations.]”
(Elias v. San Bernardino County Flood Control Dist. (1977) 68
Cal.App.3d 70, 74.) The claim did not serve that function here.
An investigation of the claim would have centered on the cost of
the insurance purchased, not on Malone’s role in JPIA decisions.
There would be no basis to investigate Stockett’s role as a
whistleblower. The Stocketts sought successfully “to impose
upon the defendant public entity the obligation to defend a
lawsuit based upon a set of facts entirely different from those
first noticed. Such an obvious subversion of the purposes of
the claims act, which is intended to give the governmental
agency an opportunity to investigate and evaluate its potential
liability, is insupportable. [Citation.]” (Fall River Joint
Unified School Dist. v. Superior Court, supra, 206 Cal.App.3d at
pp. 435-436.)
Different facts are involved to an even greater extent with
respect to the free speech theory. The claim gave no notice
that Stockett contended he engaged in the protected activity of
free speech. There was no mention of Stockett speaking out or
of the Smart’s article. There was nothing to alert JPIA that
Stockett contended that firing him was illegal because it was in
retaliation for his exercise of free speech. This is especially
true since the defense Stockett prepared for the executive
committee apologized for his remarks to Smart’s.
It was error to allow the case to proceed to the jury on
the theories based on conflict of interest and free speech.

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JPIA contends this error was prejudicial because it cannot
be determined from the general verdict on which theory of a
public policy violation the jury’s verdict was based. JPIA
argues the rule applied in criminal cases should be followed;
where the verdict is based on a legally, not factually,
inadequate ground, the verdict must be reversed absent a basis
in the record to find the verdict was actually based on a valid
ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1129
(Guiton).)
The Stocketts, on the other hand, argue any error was
harmless under the settled rule that a general verdict will not
be disturbed for uncertainty if one issue is sustained by the
evidence and unaffected by error. “When a situation of this
character is presented it is a matter of no importance that the
evidence may have been insufficient to sustain a verdict in
favor of the successful party on the other issues or that
reversible errors were committed with regard to such issues.
[Citation.]” (Hume v. Fresno Irr. Dist. (1937) 21 Cal.App.2d
348, 356-357.) Since JPIA does not challenge the sufficiency of
the evidence to support a verdict based on the public policy of
opposing sexual harassment, the Stocketts contend the judgment
must be affirmed.
Although the rule regarding general verdicts is expressed
in broad terms in Hume, it has not always been so broadly
applied. “Although the rule does not appear to have been
universally so limited, we are of the opinion that it applies
only to situations where it reasonably may be presumed that the

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jury, following the court’s instructions, reached a proper
verdict.” (Carpiaux v. Peralta Community College Dist. (1989)
215 Cal.App.3d 1220, 1224.) In Carpieux, the court
distinguished between a theory that is factually inadequate and
one that is legally inadequate, in that case due to
misinstruction. In the former case it would be presumed the
general verdict was based on the supported theory, but in the
latter it was likely the jury reached an improper verdict that
must be reversed. (Id. at pp. 1224-1225.)
The same distinction between a factually inadequate theory
and a legally inadequate theory was made in Lundy v. Ford Motor
Co. (2001) 87 Cal.App.4th 472. “Where two theories are
presented to a jury, of which only one is supported by
substantial evidence, and a general verdict is returned in favor
of the plaintiff, it is presumed that the verdict was based on
the theory that is supported by the evidence. But where the
jury is permitted to choose between two factual theories, is
misinstructed as to the legal requisites for one of them, and
there is no way to eliminate the likelihood that the jury chose
the theory affected by the instructional error, ‘it is likely
that the jury, following the instructions, reached an improper
verdict.’” (Id. at p. 480.)
The reason for distinguishing between factual and legal
inadequacy is explained in People v. Guiton, supra, 4 Cal.4th
1116. In Guiton, the jury was allowed to convict defendant if
it found he either sold or transported cocaine. There was
insufficient evidence he sold cocaine. The California Supreme

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Court had to determine whether to apply the Green rule (People
v. Green (1980) 27 Cal.3d 1), which requires reversal where the
case was presented on alternate theories, some legally correct
and some not, and the reviewing court cannot determine from the
record on which theory the jury based its verdict, or the
Griffin rule (Griffin v. United States (1991) 502 U.S. 46 [116
L.Ed.2d 371]), under which it is presumed the jury based its
verdict on the factually supported theory rather than the one
lacking evidentiary support. The court harmonized the two rules
by applying the Griffin rule where the inadequacy of a theory
presented to the jury is factual and the Green rule where the
inadequacy is legal. (Guiton, supra, 4 Cal.4th at pp. 1128-
1129.)
The Guiton court accepted the Griffin court’s distinction
between legal and factual error: “Jurors are not generally
equipped to determine whether a particular theory of conviction
submitted to them is contrary to law -- whether, for example,
the action in question is protected by the Constitution, is time
barred, or fails to come within the statutory definition of the
crime. When, therefore, jurors have been left the option of
relying upon a legally inadequate theory, there is no reason to
think that their own intelligence and expertise will save them
from that error. Quite the opposite is true, however, when they
have been left the option of relying upon a factually inadequate
theory, since jurors are well equipped to analyze the evidence
[citation].’” (Guiton, supra, 4 Cal.4th at p. 1125, quoting
Griffin, supra, 502 U.S. at p. 59.)

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The same analysis applies to a civil case. Here, for
example, the jury was not equipped to determine Stockett should
not recover based on theories not included in his claim.
Indeed, the jury was instructed Stockett could recover on these
theories. Accordingly, we determine whether inclusion of those
theories at trial was harmless. One way to find harmless error
would be if we could determine the jury necessarily found for
Stockett based on his opposition to sexual harassment. (Guiton,
supra, 4 Cal.4th at p. 1130.)
“No judgment shall be set aside, or new trial granted, in
any cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as
to any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of
justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of
justice’ should be declared only when the court, ‘after an
examination of the entire cause, including the evidence,’ is of
the ‘opinion’ that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the
absence of the error.” (People v. Watson (1956) 46 Cal.2d 818,
836.)
Unlike in many criminal cases, here the presentation of
alternate theories did not require the jury to choose among
them. The jury could have found for Stockett based on one, two,
or all three theories presented. Thus, if it is reasonably

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probable the jury would have found for Stockett based solely on
the sexual harassment theory, the error in submitting the other
theories would be harmless.
While JPIA does not challenge the sufficiency of the
evidence on the sexual harassment theory, it is weak. The
incident itself was minor; Stockett described it as “trivial.”
A single inappropriate touching is hardy severe and pervasive
enough to constitute actionable sexual harassment. (Harris v.
Forklift Systems, Inc. (1993) 510 U.S. 17, 21-22 [126 L.Ed.2d
295, 302]; Meritor Savings Bank v. Vinson (1986) 477 U.S. 57,
67, [91 L.Ed.2d 49, 60].)
There is ample evidence that that Bannister used the sexual
harassment incident and its aftermath as a reason to terminate
Stockett, although it is questionable whether Bannister was
actually attempting to soften JPIA’s sexual harassment policy or
merely using the incident as a pretext to remove Stockett.
There is little evidence, however, that the incident had much
effect on the other members of the executive committee. Only
Buckner mentioned it in his conversation with Stockett as a
concern and he sided with Stockett over Bannister on the dispute
over the sexual harassment agenda item and thought Bannister’s
unisex uniform idea was “over the top.” There was no evidence
that the other members of the executive committee considered the
flap over Malone’s inappropriate behavior or Stockett’s
reluctance to revise the sexual harassment polices in deciding
whether to terminate Stockett. Stockett claimed the executive
committee deferred to Bannister and anyone with a strong

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position could sway the others. Bannister’s alleged influence
over the other members of the executive committee was challenged
by evidence of their opposition to Bannister’s position on
various issues.
Indeed, Stockett himself undercut his reliance on the
sexual harassment theory. When asked at trial what he believed
the unlawful reasons for his termination were, Stockett at first
mentioned only retaliation for getting insurance quotes,
objecting to Malone’s conflict of interest, and speaking to the
press. It was only after a recess and his recollection was
refreshed that Stockett added the retaliation for his
investigation of the Malone sexual harassment incident and his
resistance to changing the sexual harassment policies.
By contrast, the connection between Stockett’s termination
and the other two theories was manifest. The evidence that
Stockett’s remarks to Smart’s, which he portrayed as an exercise
of free speech, played a part in his termination was clear and
direct. Almost every member of the executive committee cited
the Smart’s article as a reason for terminating Stockett.
Although there was no evidence that Stockett ever objected that
Malone had an unlawful conflict of interest, he portrayed his
efforts to seek insurance from other sources as conduct in
opposition to such a conflict. Both the Rimler and the Goldman
incidents were cited as reasons for his termination. Thus,
Stockett’s theory based on a conflict of interest had a stronger
connection to his termination than the sexual harassment theory.

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Finally, we consider that much of the evidence at trial was
directed at proving the conflict of interest and free speech
theories. This evidence, which portrayed JPIA and the executive
committee in a negative light, had an inevitable spill-over
effect that made it more likely the jury would also accept the
sexual harassment theory. By allowing the conflict of interest
and free speech theories to be presented to the jury, the trial
court allowed the Stocketts to present a very different case
than one based solely on retaliation for objection to sexual
harassment. In closing argument, counsel for the Stocketts
summarized the case as “truly about a government agency that is
running illegally, and it has no overseer.”
Our review of the entire cause, including the evidence,
leads us to the opinion that it is reasonably probable JPIA
would have achieved a more favorable result absent the inclusion
of the two theories of recovery that were not presented in the
claim. (People v. Watson, supra, 46 Cal.2d 818, 836.)
Accordingly, we reverse the judgment. Any retrial shall be
limited to theories of recovery based on facts set forth in the
claim.
Since we reverse the judgment, we need not address JPIA’s
remaining contentions or the Stocketts’s contention on cross-
appeal.

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DISPOSITION
The judgment is reversed. JPIA shall recover its costs on
appeal.
MORRISON , J.
We concur:
SIMS , Acting P.J.
KOLKEY , J.

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