Case 2:90-cv-00520-KJM-DB Document 5969 Filed 10/17/18 Page 1 of 4

Wendy Musell, SBN 203507

1 Stewart & Musell, LLP

2 2200 Powell Street, Suite 440

Emeryville, CA 94608
3 Telephone: 415-593-0083
Facsimile: 415-520-0920
4 E-mail: wmusell@stewartandmusell.com

5 Attorneys for Non-party Witness

6 Michael Golding

7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9

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11 RAPLH COLEMAN, et.al., ) Case No.: 2:90-CV-0520 KMJ DB P

)
12 ) RESPONSE TO ORDER DATED OCTOBER 17,
Plaintiffs, ) 2018 [DOCUMENT 5967] FOR DR. MICHAEL
13 ) GOLDING, WITNESS
v. )
14 )
)
15 EDMUND G. BROWN, JR. et. al., )
)
16 Defendants. )
)
17

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Pursuant to the Court’s Order, dated October 17, 2018, Document 5967, Michael Golding, M.D.
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responds as follows:
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With respect to defendants’ application for reconsideration of paragraphs 3, 4, and 5 of the
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October 12, 2018, Dr. Golding requests that the order be considered in light of the Court’s admonition at
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paragraph 2 that “Defendants shall not retaliate against Dr. Golding or any person who assisted him in
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preparing his report.” Order, dated October 12, 2018, Document 5949.
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Dr. Golding further requests that any investigation or interview related to his report comply with
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California’s whistleblowing statutes that prohibit an employer from adopting or enforcing rules,
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28 RESPONSE TO ORDER DATED OCTOBER 17, 2018 [DOCUMENT 5967] FOR DR.
MICHAEL GOLDING, WITNESS
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 Case 2:90-cv-00520-KJM-DB Document 5969 Filed 10/17/18 Page 2 of 4

1 regulations, or policies that have the effect of preventing or prohibiting disclosure of violations of state

2 or federal law, or noncompliance with regulations or rules.

3 California Labor Code Section 1102.5 (a) provides as follows,

An employer, or any person acting on behalf of the employer, shall not make, adopt,
4 or enforce any rule, regulation, or policy preventing an employee from disclosing
5 information to a government or law enforcement agency, to a person with authority
over the employee, or to another employee who has authority to investigate, discover,
6 or correct the violation or noncompliance, or from providing information to, or
testifying before, any public body conducting an investigation, hearing, or inquiry, if
7 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,
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state, or federal rule or regulation, regardless of whether disclosing the information is
9 part of the employee’s job duties.
Id. 1
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California Labor Code Section 1102.5 further prohibits retaliation against employees for
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disclosing information to a government or law enforcement agency, or to a person who has the authority
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to investigate such complaints. Specifically, California Labor Code Sec. 1102.5 (b)-(c) provide as
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follows:
14 (a) 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
15 the employee disclosed or may disclose information, to a government or law
16 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
17 noncompliance, or for providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry, if the employee has reasonable cause
18 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,
19 regardless of whether disclosing the information is part of the employee’s job duties.
20 (b) An employer, or any person acting on behalf of the employer, shall not retaliate
against an employee for refusing to participate in an activity that would result in a
21 violation of state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation.
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As set forth in Cal. Labor Code Sec. 1106, “For purposes of Sections 1102.5, 1102.6,
24 1102.7, 1102.8, 1104 and 1105, “employee” includes, but is not limited to, any individual employed by
the state or any subdivision thereof, any county, city, city and county, including any charter city or
25 county, and any school district, community college district, municipal or public corporation, political
subdivision, or the University of California.”). Further, Cal. Labor Code Sec. 1102.5 (e) provides, “[a]
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report made by an employee of a government agency to his or her employer is a disclosure of
27 information to a government or law enforcement agency pursuant to subdivisions (a) and (b).”

28 RESPONSE TO ORDER DATED OCTOBER 17, 2018 [DOCUMENT 5967] FOR DR.
MICHAEL GOLDING, WITNESS
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(c) An employer, or any person acting on behalf of the employer, shall not retaliate
1 against an employee for having exercised his or her rights under subdivision (a), (b),
2 or (c) in any former employment.

3 Id. See also Evenfe v. Esalen Inst., 2016 U.S. Dist. LEXIS 96843, 9-10 (N.D. Cal. 2016) ( “Cal. Labor

4 Code § 1102.5 "reflects the broad public policy interest in encouraging workplace whistle-blowers to

5 report unlawful acts without fearing retaliation," McVeigh v. Recology San Francisco, 213 Cal. App. 4th

6 443, (2013).”); Collier v. Superior Court, 228 Cal. App. 3d 1117 (1991) ( Lab. Code § 1102.5 reflects

7 the broad public policy interest in encouraging workplace “whistleblowers,” who may without fear of

8 retaliation report concerns regarding an employer’s illegal conduct. This public policy is the modern day
9 equivalent of the long-established duty of the citizenry to bring to public attention the doings of a law
breaker). See also California Government Code Section 8547.1 (“The Legislature finds and declares
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that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat
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to the public without fear of retribution. The [California] Legislature further finds and declares that
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public servants best serve the citizenry when they can be candid and honest without reservation in
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conducting the people’s business.”).
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Similarly, California Labor Code § 6310 protects employee “whistleblowing” to government
15 agencies about workplace health or safety issues and it is broadly-construed. See, e.g., Browning-Ferris

16 Industries of California, 68 Cal. App. 4th 101, 109 (1998) (holding that employee complaint about “long

17 hours” was a covered health and safety complaint because he believed it posed a hazard). It prevents

18 retaliation both against those who report actual violations and those who, in good faith, “report working
19 conditions they believe to be unsafe” even where there is no violation. Freund v. Nycomed, 347 F. 3d

20 752, 761 (9th Cir. 2003). In fact, an employee need not even make a complaint to be covered by

21 California Labor Code § 6310. Lujan v. Minagar, 124 Cal. App. 4th 1040, 1046 (2004) (holding that §
6310 makes it unlawful for an employer to prospectively retaliate against an employee because it fears
22
he or she may make a health and safety complaint in the future).
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Moreover, federal courts have the inherent power to manage their own proceedings and to
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control the conduct of those who appear before them, including the authority to require submission to
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lawful mandates. Chambers v. Nasco, Inc., 501 U.S. 32, 43-44 (1991) (court has the power to conduct
26
an independent investigation in order to determine whether it has been the victim of fraud).
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28 RESPONSE TO ORDER DATED OCTOBER 17, 2018 [DOCUMENT 5967] FOR DR.
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1 Given the clear statutory authority and case law prohibiting rules or policies that would have the

2 effect of silencing or discouraging whistleblowers from providing testimony before this Court regarding

3 disclosure of violations of state or federal law, or noncompliance with regulations or rules,

4 Dr. Golding requests that the Court’s prior order precluding coercive “voluntary” interviews and non-

5 voluntary interviews be maintained. Further, an Internal Affairs investigation of Dr. Golding, as

6 suggested in Defendants’ papers, would be entirely inappropriate in this context where Dr. Golding, at
significant personal and professional risk, has raised matters of great public concern and has not engaged
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in any alleged wrongdoing.
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Respectfully submitted,
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11 /s/ Wendy Musell

WENDY MUSELL
12 Attorney for Dr. Michael Golding
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28 RESPONSE TO ORDER DATED OCTOBER 17, 2018 [DOCUMENT 5967] FOR DR.
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