Filed 1/19/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STATE OF CALIFORNIA ex rel.

ROBERT G. BARTLETT,

Plaintiff and Appellant,

v.

GENE MILLER et al.,

Defendants and Respondents.

 B259472

 (Los Angeles County

 Super. Ct. No. BC469191)

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. 

Green, Judge. Reversed and remanded.

Howarth & Smith, Don Howarth, Suzelle M. Smith, Jessica L. Rankin; Berney 

Law Corporation and Russell L. Berney, for Plaintiff and Appellant.

Foley & Lardner and Thomas F. Carlucci, for Defendants and Respondents Gene 

Miller and ClubCorp Porter Valley Country Club, Inc.

Kamala D. Harris, Attorney General, Martin H. Goyette, Senior Assistant 

Attorney General, Frederick W. Acker, Acting Supervising Deputy Attorney General, 

Courtney Towle, Deputy Attorney General, for the People of the State of California. 

______________
2

Robert G. Bartlett appeals from the order entered after the trial court granted the 

State of California’s motion to dismiss his amended qui tam

1

complaint, filed on behalf of 

himself and the State under the California False Claims Act (CFCA) (Gov. Code, 

§ 12650 et seq.),

2

alleging ClubCorp Porter Valley Country Club, Inc. and several related 

ClubCorp entities (collectively ClubCorp) had defrauded the State by failing to escheat 

the unclaimed initiation deposits of ClubCorp’s members and former members. The trial 

court ruled Bartlett’s qui tam action was based on business practices ClubCorp had 

previously disclosed in publicly available filings with the United States Securities and 

Exchange Commission (SEC) and thus precluded by CFCA’s public disclosure bar. 

Because the trial court applied an incorrect, overly broad interpretation of CFCA’s public 

disclosure bar, we reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Bartlett’s Original Action 

ClubCorp owns and operates a large number of country clubs throughout the 

United States, including Porter Valley Country Club in Los Angeles County where 

Bartlett had been a member for many years. In September 2011 Bartlett sued ClubCorp 

and three of its managerial employees asserting contract and tort-related claims based on 

the Porter Valley club’s termination of his membership. In part, Bartlett alleged 

ClubCorp had breached its contract with him by refusing to refund his $7,500 initiation 

deposit. 

2. Bartlett’s Amended Qui Tam Complaint

On March 7, 2012 Bartlett filed a first amended complaint adding a qui tam claim 

alleging ClubCorp had knowingly concealed and avoided its obligation to escheat to the 

 

1 “Qui tam is short for ‘qui tam pro domino rege quam pro se ipso in hac parte 

sequitur,’ which means ‘who pursues this action on our Lord the King’s behalf as well as 

his own.’” (Rockwell International Corp. v. United States (2007) 549 U.S. 457, 463, 

fn. 2 [127 S.Ct. 1397, 167 L.Ed.2d 190]; accord, City of Hawthorne ex rel. Wohlner v.

H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1672, fn. 2.) 

2 Statutory references are to this code unless otherwise indicated.
3

State millions of dollars in unclaimed initiation deposits in violation of California’s 

Unclaimed Property Law (Code Civ. Proc., § 1500 et seq.). In support of this claim 

Bartlett cited statements made in ClubCorp’s June 27, 2011 Form 424B3 Prospectus and 

September 6, 2011 Form 10-Q, both filed with the SEC and publicly available on the 

agency’s online database, acknowledging ClubCorp’s business practice of not escheating 

any of its members’ unclaimed deposits. 

3. The State’s Motion To Dismiss

As required, Bartlett filed his qui tam action under seal and served the Attorney 

General with the amended complaint to permit the State to decide whether to intervene 

and prosecute the action on its own behalf. (See § 12652, subd. (c)(2), (c)(3).) On 

December 30, 2013 the State moved to dismiss the CFCA claim as jurisdictionally barred 

under former subdivision (d)(3)(A) of section 12652 (former subdivision (d)(3)(A)),

which then provided, “No court shall have jurisdiction over an action under this article 

based upon the public disclosure of allegations or transactions in a criminal, civil, or 

administrative hearing, in an investigation, report, hearing or audit conducted by or at the 

request of the Senate, Assembly, auditor, or governing body of a political subdivision, or 

by the news media, unless the action is brought by the Attorney General or the 

prosecuting authority of the political subdivision, or the person bringing the action is an 

original source of the information.”3

 

 

3 CFCA, including former subdivision (d)(3)(A), was amended effective January 1, 

2013. Section 12652, subdivision (d)(3)(A), currently provides, “The court shall dismiss 

an action or claim under this section unless opposed by the Attorney General or 

prosecuting authority of a political subdivision, if substantially the same allegations or 

transactions as alleged in the action or claim were publicly disclosed in any of the 

following: [¶] (i) A criminal, civil or administrative hearing in which the state or 

prosecuting authority of a political subdivision or their agents are a party. [¶] (ii) A 

report, hearing, audit, or investigation of the Legislature, the state, or governing body of a 

political subdivision. [¶] (iii) The news media.” 

Both Bartlett and the State assert the 2012 amendment was intended to clarify the 

public disclosure bar and effected no substantive change. We need not evaluate that 

assessment of the amendment because nothing in the amendment or its legislative history 

suggests an intent to make it retroactive; and both Bartlett and the State agree, as do we, 
4

Styled a motion to dismiss rather than a demurrer or a motion for judgment on the 

pleadings, the State’s motion attacked Bartlett’s pleading on its face, arguing the facts 

contained in Bartlett’s amended complaint—ClubCorp’s failure to escheat the unclaimed 

deposits to any state—had been publicly disclosed as early as March 2011 when 

ClubCorp filed its Form S-4 Registration Statement with the SEC. As a result, the 

Attorney General argued, the court should dismiss the complaint in accordance with 

former subdivision (d)(3)(A)’s prohibition of qui tam actions based on certain types of 

publicly disclosed information. In support of the State’s motion the Attorney General 

requested the court take judicial notice of ClubCorp’s March 2011 Form S-4 filing, in 

which ClubCorp acknowledged: “[I]nitiation deposits paid by new members upon 

joining one of our clubs are fully refundable after a fixed number of years. . . . 

Historically, only a small percentage of initiation deposits eligible to be refunded have 

been requested by members. As of December 28, 2010, the amount of initiation deposits 

that are eligible to be refunded currently or within the next twelve months is 

$51.7 million on a gross basis. . . . While we will make a refund to any member whose 

initiation deposit is eligible to be refunded, we may be subject to various states’ 

escheatment laws with respect to initiation deposits that have not been refunded to 

members. All states have escheatment laws and generally require companies to remit to 

the state cash in an amount equal to such unclaimed and abandoned property after a 

specified period of dormancy. We currently do not remit to states any amounts relating 

to initiation deposits that are eligible to be refunded to members based upon our 

interpretation of the applicability of such laws to initiation deposits. The analysis of the 

potential application of escheatment laws to our initiation deposits is complex, involving 

 

the pre-2013 version of section 12652, subdivision (d)(3)(A), applies to this case. (See 

Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 [statute is presumed 

to be prospective only absent clear indication that Legislature intended retroactive 

application]; see also Hughes Aircraft Co. v. United States ex rel. Schumer (1997) 

520 U.S. 939, 951 [117 S.Ct. 1871, 138 L.Ed.2d 135 [“though phrased in ‘jurisdictional’ 

terms, [the amendment to the federal False Claims Act] is as much subject to our 

presumption against retroactivity as any other”].) 
5

an analysis of constitutional and statutory provisions and contractual and factual issues. 

While we do not believe that such initiation deposits must be escheated, we may be 

forced to remit such amounts if we are challenged and fail to prevail in our position.” 

The S-4 Form also contained statements by ClubCorp that it was currently the subject of 

a multi-state audit conducted by a consortium of 20 of the 25 states in which it operated, 

to determine its compliance with those states’ escheatment laws.

4

 

The S-4 Form listed Porter Valley Club as one of the clubs ClubCorp owned and 

operated in California, but did not identify California as one of the 20 states participating 

in the audit. In a reply brief in support of the State’s motion, the Attorney General 

submitted a declaration from Kathleen Imura Delmendo, an auditor with the California 

State Controller’s Office, revealing that, since November 2008, California has been part 

of the multistate consortium conducting a national unclaimed property audit of 

ClubCorp’s and its affiliates’ escheatment practices. 

Bartlett opposed the State’s motion, arguing that information revealed in federally 

mandated SEC filings was not a public disclosure that barred a qui tam action under 

former subdivision (d)(3)(A). He also objected to Delmendo’s declaration, filed together 

with the State’s reply brief, as both untimely and irrelevant. As to the latter objection, 

Bartlett emphasized there had been no public disclosure of the State’s participation in the 

multistate audit of ClubCorp’s escheatment practices, even in ClubCorp’s SEC filings. 

Finally, he asserted that, even if information disclosed in SEC filings qualified as a public 

 

4 In its S-4 filing ClubCorp acknowledged that “20 separate states [of the 25 states 

in which it operates] have hired an independent agent to conduct an unclaimed and 

abandoned property audit of our operations. . . . [W]e expect to vigorously defend our 

position on the matter. However, if we are ultimately unsuccessful in arguing our right to 

continue holding such amounts, we may be forced to pay such amounts to the claiming 

states. While the audit is ongoing and we believe we have strong arguments against any 

potential claims for the escheatment of unclaimed initiation deposits made under state 

escheatment laws, if a material portion of the eligible unclaimed initiation deposits were 

awarded to any states, our financial condition could be materially and adversely 

affected . . . .” 
6

disclosure within one of the categories specified in former subdivision (d)(3)(A), he was 

an original source of the information, an exception to the public disclosure bar.

4. The Trial Court’s Ruling Granting the State’s Motion

After hearing oral argument and taking the matter under submission, the trial court 

granted the State’s motion and dismissed Bartlett’s qui tam claim as prohibited by the 

public disclosure bar in former subdivision (d)(3)(A). Although it found Bartlett’s 

interpretation of the statute superficially persuasive, the court concluded construing 

CFCA as Bartlett proposed would frustrate the Legislature’s purpose of precluding 

parasitic qui tam actions based on information already in the public domain. Because 

ClubCorp’s SEC filing was publicly available, the court reasoned, disclosures contained 

in it simply could not form the basis of a qui tam complaint under CFCA. To support its 

conclusion, the court relied extensively on several, mostly nonpublished, federal cases 

interpreting the federal False Claims Act (31 U.S.C. § 3729 et seq.) that found 

information in SEC filings had been publicly disclosed for purposes of barring a federal 

qui tam action. 

Following the court’s order dismissing his qui tam cause of action, Bartlett 

voluntarily dismissed without prejudice all his remaining claims and filed a timely notice 

of appeal limited to the order regarding his qui tam claim. 

DISCUSSION

1. Governing Law and Standard of Review

Patterned after the federal False Claims Act as amended in 1986, CFCA is 

designed to prevent fraud on the public treasury. (See State of California v. Altus 

Finance (2005) 36 Cal.4th 1284, 1296 [“California courts have consistently reaffirmed 

that the Legislature ‘obviously designed [the CFCA] to prevent fraud on the public 

treasury’”].) By its terms, CFCA permits the State or a political subdivision of the State 

to recover civil penalties and treble damages from any person who knowingly presents a 

false claim for payment to the State or one of its political subdivisions (§ 12651, 
7

subd. (a)(1)) or who knowingly files a false record or statement to conceal or decrease an 

obligation to pay the State or local governments (§ 12651, subd. (a)(7)).

5

 

To assist the State and its political subdivisions in their efforts to protect the public 

fisc, CFCA also authorizes private parties, referred to as qui tam plaintiffs or relators, to 

prosecute the claim for, and in the name of, a government entity. (Campbell v. Regents of 

University of California (2005) 35 Cal.4th 311, 325; City of Hawthorne ex rel. Wohlner 

v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668, 1676-1677 (Wohlner).) CFCA 

requires the qui tam plaintiff to file the lawsuit under temporary seal (§ 12652, 

subd. (c)(2)) and immediately notify the Attorney General and disclose all pertinent 

information about the lawsuit in his or her possession. (§ 12652, subd. (c)(3).) After 

investigation the State or political subdivision may elect to intervene in the qui tam action 

and assume control of the lawsuit. (§ 12652, subd. (c)(4)-(c)(8).) If intervention occurs, 

the qui tam plaintiff may continue as a party in the action. (§ 12652, subd. (e)(1).) If 

there is no intervention, the qui tam plaintiff may prosecute the action for, and in the 

name of, the State or the relevant political subdivision. (§ 12656, subd. (c)(6)(B), 

(c)(7)(D)(ii), (c)(8)(D)(iii); see State ex rel. Harris v. PricewaterhouseCoopers, LLP 

(2006) 39 Cal.4th 1220, 1228 (Harris).) 

If a governmental entity does intervene, the qui tam plaintiff remains entitled to 

receive between 15 percent and 33 percent of the proceeds the State or its political 

subdivision recovers in the action or settlement, depending on the extent to which the qui 

tam plaintiff substantially contributed to the prosecution of the action. (§ 12652, 

subd. (g)(2).) If the State or its political subdivision does not intervene and the qui tam 

plaintiff prevails, the qui tam plaintiff is entitled to receive, in the court’s discretion,

between 25 percent and 50 percent of the proceeds recovered in the action or settlement. 

(§ 12652, subd. (g)(3).) In addition, a successful qui tam plaintiff may also recover his or 

 

5 The filing of a false record or statement to conceal or decrease an obligation to pay 

the government, the allegation in this case, is sometimes referred to as a “reverse false 

claim.” (See State ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal.App.4th 225, 

236, 240.) 
8

her reasonable costs of suit, including reasonable attorney fees. (§ 12652, subd. (g)(8); 

see generally Harris, supra, 39 Cal.4th at pp. 1228-1229.) 

a. The public disclosure bar of former subdivision (d)(3)(A)

Qui tam claims based on certain categories of publicly disclosed information are 

barred unless the plaintiff is an original source of the information.

6

 (See former 

subd. (d)(3)(A).) This prohibition, known as the public disclosure bar, is intended to 

prevent “‘parasitic or opportunistic actions by persons simply taking advantage of public 

information without contributing to or assisting in the exposure of the fraud.’” (Wohlner, 

supra, 109 Cal.App.4th at pp. 1677-1678; accord, Mao’s Kitchen, Inc. v. Mundy (2012) 

209 Cal.App.4th 132, 146 [“‘[w]here there has been a public disclosure[,] the 

governmental authority is ‘already in a position to vindicate society’s interests, and a qui 

tam action would serve no purpose’”]; State of California v. Pacific Bell Telephone Co.

(2006) 142 Cal.App.4th 741, 752 (Pacific Bell) [“‘[a] relator’s ability to recognize the 

legal consequences of a publicly disclosed fraudulent transaction does not alter the fact 

that the material elements of the violation have already been publicly disclosed’”].) In 

light of CFCA’s purpose of protecting the public fisc, “the public disclosure bar should 

be applied only as necessary to preclude parasitic or opportunistic actions, but not so 

broadly as to undermine the Legislature’s intent that relators assist in the prevention, 

identification, investigation, and prosecution of false claims.” (Wohlner, supra, 

109 Cal.App.4th at p. 1687.)

Notwithstanding the broad policy underlying the public disclosure bar, however, 

former subdivision (d)(3)(A), like the current version of the statute, does not preclude 

qui tam lawsuits based on any public disclosure of the material information concerning 

the alleged false claim. Rather, to trigger the bar, the information must have been 

publicly disclosed in one of the specific fora identified in the statute. (Pacific Bell, supra, 

142 Cal.App.4th at p. 749 [“the fora identified in the statute further limit our review” of 

 

6 The federal False Claims Act has a similar public disclosure restriction on federal 

qui tam actions. (See 31 U.S.C. § 3730(e)(4).)
9

whether a matter is subject to the public disclosure bar; “[w]hile plaintiff’s alleged 

conversations might suggest that the issue was plainly in the public domain, 

conversations, even in very public venues, do not satisfy the public disclosure 

requirements of the statute”]; see Sylvia, The False Claims Act: Fraud Against the 

Government (May 2015) (§ 12:16 ( [“[t]he California [false claims] statute prohibits 

actions based upon information already publicly disclosed in certain fora unless the 

relator is an original source of the information”]; see also id., § 11:34 [the public 

disclosure bar in the federal False Claims Act does not prohibit a qui tam lawsuit based 

on all publicly disclosed information; it affects “only public disclosures in certain fora. If 

those fora are not implicated the inquiry is at an end”].) 

b. Standard of review

The State’s motion to dismiss the qui tam complaint, which was based on the facts 

pleaded and matters subject to judicial notice, is reviewed de novo. (Wohlner, supra, 

109 Cal.App.4th at p. 1678 [standard of review of order granting motion for judgment on 

pleadings based on CFCA’s jurisdictional bar is same as general demurrer, that is, 

de novo; we must accept as true all facts properly pleaded and judicially noticed]; Pacific 

Bell, supra, 142 Cal.App.4th at p. 748.) Similarly, interpretation of CFCA’s statutory 

public disclosure bar presents a question of law subject to independent review. (See 

Mao’s Kitchen, Inc. v. Mundy, supra, 209 Cal.App.4th at p. 147; Pacific Bell, at p. 748; 

see also In re Clarissa H. (2003) 105 Cal.App.4th 120, 125 [“interpretation of statutes 

presents questions of law subject to independent review on appeal”].)

In interpreting former subdivision (d)(3)(A), we begin with the plain language of 

the statute, giving the words their ordinary and common meaning. (Voices of the 

Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519.) “If the 

language is unambiguous, the plain meaning controls,” and no further analysis is 

warranted. (Id. at p. 518; Wells v. One2One Learning Foundation (2006) 39 Cal.4th 

1164, 1190.) If the language allows more than one reasonable construction, we consider 

“such aids as the legislative history of the [statute] and maxims of statutory construction. 
10

In cases of uncertain meaning, we may also consider the consequences of a particular 

interpretation, including its impact on public policy.” (Wells, at p. 1190.) 

2. The Trial Court Erred in Dismissing the Qui Tam Complaint as Barred by the 

Public Disclosure Provision in Former Subdivision (d)(3)(A) 

a. An SEC filing is not one of the disclosures identified in 

former subdivision (d)(3)(A) as barring a qui tam action

Former subdivision (d)(3)(A) deprived the court of jurisdiction over a qui tam 

false claim based on matters that had been publicly disclosed (1) in a criminal, civil or 

administrative hearing; (2) “in an investigation, report, hearing, or audit conducted by or 

at the request of the Senate, Assembly, auditor, or governing body of a political 

subdivision”; or (3) by the news media. (See Pacific Bell, supra, 142 Cal.App.4th at 

p. 750.) The second category—disclosure in an investigation, report, hearing or audit 

conducted by or at the request of the Senate, Assembly, auditor or governing body of a 

political subdivision—is at issue in this case: Bartlett contends the trial court erred in 

concluding the information in ClubCorp’s Form S-4 report filed with the SEC amounted 

to a public disclosure barring a qui tam action within the meaning of this provision. 

Bartlett does not dispute that ClubCorp’s March 2011 SEC filing is publicly

available and therefore constitutes a public disclosure in the literal sense. Nonetheless, 

he argues SEC filings do not constitute a public disclosure within one of the specific,

statutorily enumerated fora or by the news media and therefore do not come within the 

statute’s prohibitory language. The Attorney General, in contrast, attempting to fit an 

SEC filing into one of former subdivision (d)(3)(A)’s categories, insists the SEC filing is 

a publicly available “report,” full stop. The term “report,” she urges, is unmodified by 

the qualifying phrase “conducted by or at the request of the Senate, Assembly, auditor or 

governing body of a political subdivision.” Yet the Attorney General offers no 

explanation for the presence of that phrase at all, in effect intimating that we should 

simply ignore it. That we cannot do. (See Smith v. Superior Court (2006) 39 Cal.4th 77, 

83 [it is a fundamental principle of statutory construction that we “‘give “significance to 

every word, phrase, sentence and part of an act in pursuance of the legislative 

purpose”’”]; People v. Canty (2004) 32 Cal.4th 1266, 1276 [same].)
11

The best argument we can construct from the Attorney General’s silence about this 

qualifying language is that she would interpret it as modifying only its nearest antecedent, 

that is, the term “audit,” and not the three other nouns in the sentence, “investigation, 

report, hearing.” (See Barnhart v. Thomas (2003) 540 U.S. 20, 26 [124 S.Ct. 376, 157 

L.Ed.2d 333] [under the rule of the last antecedent, “a limiting clause or phrase . . . 

should ordinarily be read as modifying only the noun or phrase that it immediately 

follows”]; White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [the “‘last 

antecedent rule’” of statutory construction “provides that ‘qualifying words, phrases and 

clauses are to be applied to the words or phrases immediately precedent and are not to be 

construed as extending to or including others more remote’”].) Yet that rule “is not an 

absolute and can assuredly be overcome by other indicia of meaning.” (Barnhart, at 

p. 26; accord, People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 

107 Cal.App.4th 516, 530 [“the last antecedent rule is ‘“not immutable”’ and should not 

be ‘rigidly applied’”].) “‘“[W]hen several words are followed by a clause which is 

applicable as much to the first and other words as to the last, the natural construction of 

the language demands that the clause be read as applicable to all.”’” (White, at p. 680; 

accord, Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743 [“[W]hen the sense of the 

entire act requires that a qualifying word or phrase apply to several preceding words, its 

application will not be restricted to the last. [Citation.] ‘This is, of course, but another 

way of stating the fundamental rule that a court is to construe a statute “‘so as to 

effectuate the purpose of the law.’”’”]; see also Mt. Hawley Ins. Co. v. Lopez (2013) 

215 Cal.App.4th 1385, 1412-1414 [last antecedent rule has several exceptions and should 

not be rigidly applied]; Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 

158 Cal.App.4th 705, 717 [the last antecedent rule is “not applicable when the natural 

construction of the language demands the clause be read as applicable to the first and 

other words, as well as to the last, or when the sense of the entire statute requires a 

qualifying word or phrase apply to several preceding words”].)

Here, restricting the phrase “conducted by” state and local authorities to its nearest 

antecedent, “audit,” makes little sense. First, the Legislature identified civil, criminal and 
12

administrative hearings as disqualifying venues in the first category of former 

subdivision (d)(3)(A). The term “hearing” in the second category, if left unmodified, 

would effectively swallow the entire first category, making it both unnecessary and 

redundant. (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 345 [reviewing 

court must avoid statutory interpretations that would render related words or provisions 

unnecessary or redundant]; Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. 

(1981) 29 Cal.3d 101, 114 [whenever reasonable court should indulge in statutory 

interpretations that “avoid redundancy, and accord significance to each word and 

phrase”].) Similarly, an audit is necessarily conducted by or at the request of an auditor. 

If the modifying phrase applied solely to an audit, there would be no need for the 

qualifying phrase at all, effectively rendering it surplusage. (See Reno v. Baird (1998) 

18 Cal.4th 640, 658 [“[i]t is a maxim of statutory construction that ‘[c]ourts should give 

meaning to every word of a statute if possible, and should avoid a construction making 

any word [or phrase] surplusage’”]; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22 [same].)

Rather than focusing on the statutory language in former subdivision (d)(3)(A), the 

Attorney General relies on federal cases interpreting the public disclosure bar in the 

federal False Claims Act. (See, e.g., United States ex rel. Saldivar v. Fresenius Med. 

Care Holdings, Inc. (N.D. Ga. 2012) 906 F.Supp.2d 1264, 1273; United States ex rel. 

Jones v. Collegiate Funding Services, Inc. (4th Cir., Mar. 14, 2012, No. 11-1103) 

469 Fed. Appx. 244, 257 [2012 U.S. App. Lexis 5574]; United States ex rel. Barber v. 

Paychex, Inc. (S.D. Fla. Jul. 15, 2010) [2010 U.S. Dist. Lexis 83789], affd. (11th Cir. 

2011) 439 Fed. Appx. 841 [2011 U.S. App. Lexis 18184].) Those cases found, with

minimal statutory analysis, that an SEC filing qualified as an administrative report, one of 

the types of public disclosures then identified in the statute as barring federal qui tam 

actions. (See former 31 U.S.C. § 3730(e)(4) (2006) [“[n]o court shall have jurisdiction 

over an action under this section based upon the public disclosure of allegations or 

transactions in a criminal, civil, or administrative hearing, in a congressional, 

administrative, or Government Accounting Office report, hearing, audit, or investigation, 
13

or from the news media unless the action is brought by the Attorney General or the 

person bringing the action is an original source of the information”].)

7

The Attorney General’s (and the trial court’s) reliance on those federal cases is 

misplaced. Although CFCA is patterned after the federal False Claims Act as amended 

in 1986, and federal authorities interpreting the federal act are often looked to for 

guidance “to the extent the language of the two acts is similar” (Fassberg Construction 

Co. v. Housing Authority of the City of Los Angeles (2007) 152 Cal.App.4th 720, 735; 

accord, State of California v. Altus Finance, supra, 36 Cal.4th at p. 1299; Wells v. 

One2One Learning Foundation, supra, 39 Cal.4th at p. 1197), on this critical point the 

language in the two statutes is markedly different. (See Harris, supra, 39 Cal.4th at 

p. 1234 [“though the CFCA was patterned after the [federal False Claims Act] as then 

recently amended, there are significant differences between the two statutes”].) 

Fundamentally, the two Acts are designed to protect against similar but distinct harms. 

The federal False Claims Act was intended to assist the federal government in identifying 

and prosecuting fraud committed against it and its agencies; CFCA, as discussed, was

designed to do the same thing as to fraud committed against the State and its political 

subdivisions. The rationale for limiting the types of public disclosures that invoke the 

 

7 Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson

(2010) 559 U.S. 280, 293 [130 S.Ct. 1396, 176 L.Ed.2d 225] (Graham), interpreting the 

same provision, held the federal bar encompassed all administrative reports, whether 

federal or state. In reaching that conclusion, the Court relied on the absence of any 

qualifying language in the governing statute limiting the type of administrative report that 

would act to bar a qui tam action. (Id. at p. 293.) Former subdivision (d)(3)(A), in 

contrast, contains significant qualifying language. 

Graham has little precedential value. Shortly before Graham was decided, 

Congress had amended the federal public disclosure provision, making clear its bar 

applied only to disclosures made in certain federal fora. (See 31 U.S.C. § 3730(e)(4)(A)) 

[court shall dismiss a qui tam action if “substantially the same allegations or transactions 

as alleged in the action or claim were publicly disclosed [¶] (i) in a Federal criminal, 

civil, or administrative hearing in which the Government or its agent is a party; [¶] (ii) in 

a congressional, Government Accountability Office, or other Federal report, hearing, 

audit, or investigation; or [¶] (iii) from the news media”].) 
14

statutes’ disclosure bars is thus readily apparent: “Federal government officials will often 

have no reason to be aware of information that is disclosed in state and local proceedings. 

A person who brings that information to the federal Government may still be providing 

the Government information about which it is unaware and about which it is unlikely to 

learn.” (Sylvia, The False Claims Act, supra, § 11:39.) Likewise, state officials may be 

unaware of information disclosed solely to or by the federal government; and a relator 

with information about a state or local fraud, even if that misconduct has been publicly 

disclosed in a federal forum, may still be making a valuable contribution to state or local 

authorities that is properly rewarded under CFCA. 

The legislative history of CFCA reinforces our analysis. The California statute 

was enacted in 1987 after the Center for Law in the Public Interest, the source of both the 

1986 amendments to the federal False Claims Act and Assembly Bill No. 1441 (1987-

1988 Reg. Sess.), which ultimately became CFCA, recognized that the federal act applied 

to frauds against the federal fisc, but not those that victimized state and local 

governments: “[T]he federal [False Claims] Act, however, applies only to federal claims, 

and the Center found that many complaints involve misappropriation of state, county, 

school district or municipal funds. The finding has prompted the Center to draft this state 

version of the federal legislation.” (See Sen. Com. on Judiciary, 1987-1988, Reg. Sess. 

Assem. Bill No. 1441, com., July 9, 1987.) The Center’s section-by-section analysis of 

CFCA prepared in 1987 similarly showed that the relevant public disclosures barred by 

former subdivision (d)(3)(A) were those made in State fora. (See Center for Law in the 

Public Interest, California False Claims Act: Section-by-Section Analysis of Assem. Bill 

No. 1441 (1987) [identifying investigations, reports, hearings and audits by “State 

Senate, State Assembly State Auditor, or governing body of a political subdivision” as 

the relevant fora in category two of the public disclosure bar].)

At its core, the State’s real objection to this lawsuit is rooted in public policy: 

Bartlett’s lawsuit, the Attorney General argues, is exactly the kind of parasitic action the 

public disclosure bar was intended to prevent. This is not a case, she observes, where 

Bartlett assisted the State in ferreting out fraud. To the contrary, the State had been 
15

investigating ClubCorp’s escheatment practices since 2008, long before Bartlett

discovered the issue and filed this action. Thus, far from enlightening the State about 

ClubCorp’s escheatment practices, the effect of Bartlett’s qui tam action is simply to 

require the State to share any recovery it may obtain with someone who added nothing to 

the endeavor. (See Mao’s Kitchen, Inc. v. Mundy, supra, 209 Cal.App.4th at p. 146.) 

We are not unsympathetic to the State’s argument. In light of the State’s on-going 

investigation, it is difficult to imagine what benefit Bartlett’s lawsuit adds to the State’s 

effort to discover and prosecute the alleged fraud against it. Nonetheless, the 

government’s knowledge and behind-the-scenes investigation of the facts alleged in the 

relator’s qui tam action is not, by itself, a public disclosure, and is insufficient to trigger 

that jurisdictional bar. (See Mao’s Kitchen, Inc. v. Mundy, supra, 209 Cal.App.4th at 

p. 149 [“‘A “public disclosure” requires that there be some act of disclosure to the public 

outside of the government. The mere fact that the disclosures are contained in 

government files someplace, or even that the government is conducting an investigation 

behind the scenes, does not itself constitute public disclosure’”]; see also United States 

ex rel. Rost v. Pfizer, Inc. (1st Cir. 2007) 507 F.3d 720, 728 [same analysis under federal 

False Claims Act]; Kennard v. Comstock Res., Inc. (10th Cir. 2004) 363 F.3d 1039, 1043 

[the public disclosure requirement “clearly contemplates that the information be in the 

public domain in some capacity and the Government is not the equivalent of the public 

domain”].)

8

 Absent a public disclosure of the State’s audit or investigation in one of the 

 

8 Prior to 1943 nothing in the federal False Claims Act precluded a qui tam plaintiff 

from bringing an action based on information that was a matter of public record or in the 

government’s possession. In 1943, however, after parasitic qui tam actions based on 

information in public reports and public government hearings had skyrocketed, Congress 

amended the federal False Claims Act to bar qui tam actions “‘based upon evidence or 

information in the possession of the United States, or any agency, officer, or employee 

thereof, at the time such suit was brought.’ [Citation.] This amendment erected what 

came to be known as a Government knowledge bar: ‘[O]nce the United States learned of 

a false claim, only the Government could assert its rights under the [federal False Claims 

Act] against the false claimant.’ [Citation.] In the years that followed the 1943 

amendment, the volume and efficacy of qui tam litigation dwindled.” (Graham, supra, 

559 U.S. at p. 294.) Concluding “that a total bar on qui tam actions based on information 
16

venues or by the means identified in CFCA, there is no basis for dismissal of the action 

under CFCA’s public disclosure bar, which is all the court considered in this case.

b. Audit

The Attorney General also contends Bartlett’s qui tam claim is barred because it is 

based on allegations or transactions that were the subject of a State audit. (See former 

subd. (d)(3)(A) [claims based on allegations publicly disclosed in State audit are barred].) 

However, as the Attorney General effectively concedes, there was no public disclosure of 

the audit apart from statements in the SEC filing. Because, as we have explained, the 

SEC filing is not a public disclosure in one of the fora identified in CFCA, this argument 

necessarily fails. Moreover, ClubCorp’s SEC filings did not identify California as one of 

the states participating in the multistate audit, and it is apparent from the information that 

was disclosed that not all states in which ClubCorp owns private clubs were participants 

in that audit.

c. The SEC filings are not disclosures in the news media

ClubCorp Porter Valley Country Club, Inc. and Gene Miller have also filed a 

responsive brief on appeal, arguing the information in the SEC filings qualifies as a 

public disclosure by the news media because those filings are accessible on the SEC’s 

online public database,

9

a theory not advanced by the State or considered by the trial 

 

already in the Government’s possession [had] thwarted a significant number of 

potentially valuable claims,” in 1986 Congress amended the federal False Claims Act and 

replaced the “Government knowledge bar” with the public disclosure bar, an amendment 

widely recognized as “an effort to strike a balance between encouraging private persons 

to root out fraud and stifling [purely] parasitic lawsuits . . . .” (Id. at p. 295.) 

9 The database, named EDGAR—Electronic Data Gathering, Analysis, and 

Retrieval—“performs automated collection, validation, indexing, acceptance, and 

forwarding of submissions by companies and others who are required by law to file forms 

with the U.S. Securities and Exchange Commission (SEC). Its primary purpose is to 

increase the efficiency and fairness of the securities market for the benefit of investors, 

corporations, and the economy by accelerating the receipt, acceptance, dissemination, and 

analysis of time-sensitive corporate information filed with the agency.” (U.S. Securities 

and Exchange Commission, Important Information About EDGAR 

<https://www.sec.gov/edgar/aboutedgar.htm> [as of January 19, 2016].)
17

court. Even if these defendants have standing on appeal,

10

their argument lacks merit. To 

be sure, the advent of online news sites, blogs and social media has blurred the line 

between what has traditionally been considered news media and other forms of public 

discussion. (See generally Sherman, Using the Internet To Your Company’s Advantage 

In Defending Against a Whistleblower Action (2012) 15 No. 8 J. Internet L. 3 [“[w]ith the 

exponential growth of the internet, the meaning of news media has expanded to include 

blogs, online news, and social networking sites”].) Still, wherever that fuzzy line now is 

between news media and some other form of publicly accessible information, we have 

little difficulty concluding that disclosures in forms available only on the SEC’s online 

public database are not disclosures by the news media no matter how broadly that term is 

interpreted. 

For the policy reasons articulated by the Attorney General in her brief, the 

Legislature may well conclude it should amend CFCA to include information available 

through the Internet as one of the categories within the public disclosure bar. However, 

given the plain language of both former and current section 12652, subdivision (d)(3)(A), 

and the rules of statutory construction, we have no power to do what the Legislature has 

to date chosen not to do. (See Stavropoulos v. Superior Court (2006) 141 Cal.App.4th 

190, 197.) Should the case proceed,

11 the value of Bartlett’s assistance will have to be 

 

10 ClubCorp Porter Valley Country Club Inc. and Gene Miller were served with the 

original complaint but not the amended qui tam complaint, which was properly filed 

under seal. They did not participate in the State’s motion to dismiss and filed their brief 

on appeal after the sealing order was lifted. 

11 ClubCorp has advanced an alternative argument not raised by the State in the trial 

court or on appeal. Rather than focusing on the SEC filings, as did the State, ClubCorp 

argues the allegations regarding ClubCorp’s handling of initiation deposits in Bartlett’s 

original complaint constituted a disqualifying public disclosure in a civil hearing of its 

allegedly unlawful escheatment practices (former § 12652, subd. (d)(3)(A)), and 

Bartlett’s qui tam action can proceed only if he qualifies as “an original source” under the 

statute, which ClubCorp asserts he does not. (See former § 12652, subd. (d)(3)(B) 

[“original source” means “an individual who has direct and independent knowledge of 

the information on which the allegations are based, who voluntarily provided the 

information to the state or political subdivision before filing an action based on that 
18

assessed not by barring the qui tam action, but by determining the extent to which he 

“substantially contributes,” if at all, to its prosecution. (See § 12652, subd. (g)(2)

[authorizing measure of recovery for qui tam plaintiff dependent upon extent to which he 

or she “substantially contributed” to State’s prosecution of the action].) 

DISPOSITION

The order dismissing Bartlett’s qui tam claim is reversed, and the matter is 

remanded for further proceedings not inconsistent with this opinion. Bartlett is to recover 

his costs on appeal. 

PERLUSS, P. J. 

We concur:

SEGAL, J. BECKLOFF, J.*

 

information, and whose information provided the basis or catalyst for the investigation, 

hearing, audit, or report that led to the public disclosure as described in subparagraph 

(A)”].) 

The trial court has not had the opportunity to consider whether the sparse 

allegations concerning ClubCorp’s escheatment practices in the original complaint 

amounted to a public disclosure sufficient to trigger the statutory bar of former section 

12652, subdivision (d)(3), and, if so, whether Bartlett is an original source as that term is 

statutorily defined. Those questions, which will necessarily include a determination

whether Bartlett voluntarily provided the information to the State before filing his 

qui tam action, may require a more fully developed factual record and, in any event, are 

properly decided by the trial court in the first instance. (See generally Mao’s Kitchen, 

Inc. v. Mundy, supra, 209 Cal.App.4th at pp. 146-150 [deciding question of applicability 

of public disclosure bar on summary judgment rather than as a pleading motion].) 

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.