California Labor Code section 1102.5 prohibits public employers from retaliating against whistleblowing employees, and allows an employee who wins in court to recover attorney’s fees. Employers have an affirmative defense in section 1102.6 if the employer can prove that the alleged retaliatory conduct “would have occurred for legitimate, independent reasons” had the employee not been a whistleblower. This type of defense is commonly known as a “same-decision defense.”
D’Andre Lampkin, a deputy at the Los Angeles County Sheriff’s Department, told his supervisor about a contentious traffic stop involving a former deputy. Thereafter, Lampkin encountered a variety of adverse actions, including a search of his residence, a suspension, and the termination of his medical benefits.
Lampkin sued the County for whistleblower retaliation in violation of section 1102.5. After trial, the jury found that section 1102.5 protected Lampkin from retaliation, and that Lampkin’s complaint was a factor in the Department’s actions against Lampkin. The jury also found the Department would have made the same decisions anyway, for independent and legitimate reasons. The jury awarded Lampkin no damages.
Lampkin then filed a motion for an order declaring him the prevailing party who was entitled to a fee award. Lampkin claimed he was entitled to fees under a prior Court of Appeal case — Harris v. City of Santa Monica. That case held that a same-decision defense does not preclude a fee award in a Fair Employment and Housing Act (FEHA) case. The trial court granted Lampkin’s motion and awarded Lampkin $400,000 in attorney’s fees. The County appealed.
The California Court of Appeal reversed the fee award. The Court distinguished Harris on several grounds. First, FEHA provides discretionary authority to award fees to a “prevailing party,” while section 1102.5(j) only permits fees for one who brings a “successful action.” Also, section 1102.6 provides comprehensive procedural rules specific to whistleblower claims, including the same-decision defense, and does not contain any language permitting fees once that defense is established. The Court held that an employee’s whistleblower action is not “successful” under section 1102.5 if the employer has established the same-decision defense and the employee obtains no relief.
Lampkin v. County of Los Angeles, 2025 Cal.App. LEXIS 434.