2017-00224171-CU-WT

William Bowen vs. Button Transportation, Inc.

Nature of Proceeding: Hearing on Demurrer to Complaint

Filed By: Vierra, Sierra

Defendant Button Transportation, Inc.’s demurrer to Plaintiffs William and Anna

Bowen’s complaint is ruled upon as follows.

Defendant’s request for judicial notice is addressed more fully below.

In this employment action, Plaintiff William Bowen alleges claims for disability discrimination in violation of FEHA, wrongful termination in violation of FEHA, IIED, and NIED. Mr. Bowen alleges that he Defendant wrongfully terminated him on or about November 14, 2014 based on his medical condition/physical disability (cancer). Plaintiff Anna Bowen alleges a claim for loss of consortium.

First and Second Causes of Action (FEHA Discrimination/Wrongful Termination)

Defendant’s demurrer is overruled. Defendant argues that these causes of action are barred by the statute of limitations. Pursuant to FEHA, an administrative complaint must be filed within one year if the alleged discriminatory conduct. (Gov’t Code § 12960(d).) In the event the DFEH decides not to pursue the matter, or an immediate right to sue is requested, and a right to sue notice is issued, the complainant has one year from the date of the right to sue notice to file a civil lawsuit. (Gov’t Code § 12965 (b), (d)(2).)

Plaintiff alleged that he exhausted his administrative remedies by filing a DFEH complaint on November 2, 2015, for which he received a right to sue notice dated December 23, 2016. (Comp. ¶ 8.) The complaint was filed on December 20, 2017, within one year.

Defendant argues that the action is untimely because despite the allegations in the complaint, and as revealed from its RJN, Plaintiff had previously filed duplicate DFEH complaints dated February 5, 2016, and February 10, 2016 with the same allegations that are contained in the instant lawsuit. Defendant asserts that the RJN shows that Plaintiff requested and received an immediate right to sue notice on February 10, 2016 indicating that his civil action must be filed within one year. (RJN Exh. B.) Defendant argues that the FEHA causes of action are untimely because the complaint filed on December 20, 2017, was filed more than one year after the February 10, 2016 right to sue notice and that this notice controls, not the later December 23, 2016 right to sue notice alleged in the complaint.

Section 12965 establishes a “strict ‘one-year statute of limitations, commencing from the date of the right-to-sue notice issued by the [DFEH],’ except for certain statutory exceptions.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1413 [citations omitted].) “Section 12965’s one year deadline for bringing a civil action after a right to sue notice has been issued “is a condition on a substantive right rather than a procedural limitation period for commencement of an action.” (Id. [citations omitted].) In Acuna, an employee filed three administrative complaints. The third administrative complaint related to the employee’s termination which postdated the conduct set forth in the previous two DFEH complaints. (Id. at 1419-1420.) The lawsuit was filed within one year after receiving a right to sue notice on the third DFEH complaint. The retaliation claim was timely as it was based at least in part on the termination which postdated the conduct in the earlier DFEH complaints. The fact that the retaliation claim may have also included conduct that was not actionable because it was not timely did not mean that the claim which also contained alleged wrongful acts that were committed during the limitations period could not form the basis of a timely cause of action. (Id.) This was contrasted with the plaintiff’s racial

discrimination claim. Acuna concluded that the plaintiff could not “revive these expired claims by filing a new DFEH complaint many years after the alleged racial discrimination complaint took place.” (Id. at 1418.)

Resolution of the statute of limitations is normally a question of fact. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810.) To that end, “[a] demurrer based on a statute of limitations “[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972 [citation omitted]. [emphasis added].)

Here, the Court cannot find on this demurrer that the statute of limitations clearly bars the first and second causes of action as a matter of law. Plaintiff alleges that he filed his DFEH complaint on November 2, 2015 and that he received a right to sue notice on December 23, 2016. (Comp. ¶ 8.) This allegation must be accepted as true on the instant demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Based on these allegations, the complaint filed on December 20, 2017 was timely as it was filed within one year of receiving the right to sue notice as required by Government Code § 12965. Defendant’s argument to the contrary hinge on its assumption that the documents attached to its RJN demonstrate that Plaintiff submitted two duplicate DFEH complaints in the beginning of February 2016, and that he received a right to sue notice on February 10, 2016 in connection with one of those complaints. However, as explained below, these documents raise factual questions regarding the timeliness of these two causes of action that cannot be resolved on this demurrer.

At the outset, the Court must note that the documents attached to Defendant’s RJN are not authenticated and are simply attached to the RJN. There is no declaration from anyone, much less a custodian of records, etc. attempting to authenticate the document. “[W]e cannot take judicial notice of these documents [because]…no proper evidentiary foundation was laid.” (Pastoria v. Nationwide Insurance (2003) 112 Cal.App.4th 1490, 1495, n.4.) The request for judicial notice can be denied on this basis alone.

Putting aside the question of authentication, and even if the Court were to take judicial notice of these documents purportedly contained in the DFEH’s files, the documents do not show as a matter of law that the FEHA causes of action are untimely. Taking judicial notice of documents is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) “When judicial notice is taken of a document, however, the truthfulness and proper interpretation are disputable.” (Id.) Judicial notice may be taken of official acts of a governmental entity, but this does not mean that judicial notice may be taken of the truth of factual matters set forth therein “since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually associated with or flow therefrom.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [while judicial notice could be taken of government practice of mailing notice of rejection, inappropriate to resolve on demurrer the disputed fact as to whether the practice had been followed in the specific instance].) “A court cannot determine based on only the four corners or a document, without provisionally considering any extrinsic evidence offered by the parties, that the meaning of a

document is clear and unambiguous.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) “For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper. A court ruling on a demurrer therefore cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.” (Id. at 114-115.) A hearing on a demurrer cannot be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. ( Unruh-Haxton v. Regents of Univ. of Cal. (2008) 162 Cal.App.4th 343, 365.)

Here, Defendant asserts that Exhibit B to the RJN is a DFEH complaint filed by Plaintiff on February 10, 2016 which relates to the identical conduct in the instant lawsuits and as to which he obtained a right to sue notice on February 10, 2016. However, as pointed out by Plaintiff in opposition, the DFEH letter dated February 10, 2016, attached a complaint which is not dated and not signed. Plaintiff’s opposition indicates that he would dispute this document and would testify that neither he nor his attorneys know the origin of the document. (Oppo. 5:27-6:4.) Plaintiff is correct that nothing in the documents as for which judicial notice is requested resolve these questions. Further, the unsigned and undated DFEH complaint for which the right to sue notice on February 10, 2016 was issued, was not based on termination and instead was premised on allegations that Plaintiff was denied a good faith interactive process and a reasonable accommodation. There is no mention of termination in that complaint. (RJN Exh. B.) The instant action is based entirely on Plaintiff’s termination. This raises a factual issue as to what claims, if any, were presented to the DFEH for which a right to sue notice was issued on February 10, 2016.

In addition, the DFEH letter attached as Exhibit A to the RJN, which Defendant argues reflects a DFEH complaint filed by Plaintiff on February 5, 2016, contains statements that the “complaint was untimely filed” but that DFEH is pursuing the complaint because the one year time limit for filing a complaint may be tolled where the “DFEH itself, through no fault of the complainant, misleads the complainant about filing obligations, commits errors in processing the complaint, or improperly discourages or prevents the complainant from filing at all.” (Id.) This raises additional factual questions regarding what errors may have occurred in the DFEH administrative process with respect to filing the complaint, issuing a right to sue notice, etc., none of which can be resolved on demurrer.

In short, the Court concludes that even if it were to take judicial notice of the unauthenticated documents purportedly from the DFEH, it could only take judicial notice of the existence of the documents. The Court cannot take judicial notice of the truth of the matters asserted in the documents and the documents raise more questions than answers. Plaintiff has disputed the authenticity and/or meaning of the documents. As set forth above, a hearing on a demurrer cannot be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. ( Unruh-Haxton, supra, 162 Cal.App.4th at 365.) There are factual questions including but not limited to the authenticity/origin of the February 10, 2016, right to sue notice attached as Exhibit B to the RJN and/or questions as to what claims were presented to the DFEH in connection with the DFEH complaint on which the February 10, 2016 right to sue notice was issued, and/or questions regarding mistakes that DFEH made in the administrative process.

The Court notes that Defendant’s reply actually confirms the factual questions raised by the demurrer. Indeed, it argues that Plaintiff cannot “feign ignorance” of the February 10, 2016 complaint because his own law firm served the document on Defendant as seen from its RJN. Such a credibility determination cannot be made on a demurrer. Further, as mentioned above, the February 10, 2016 right to sue notice seems to have been issued with respect to the complaint which did not even mention termination and instead mentioned that Plaintiff was denied a good faith interactive process and a reasonable accommodation. While Defendant is correct that DFEH complaints can be construed to include incidents that may have been uncovered in an investigation, whether termination would have been uncovered in any investigation of this complaint is a factual question that cannot be resolved here.

Defendant has failed to demonstrate that the statute of limitations clearly bars the first and second causes of action as a matter of law. At most, factual questions have been raised. Plaintiff’s allegations which must be accepted as true demonstrate, at least for pleading purposes, that the action was filed within one year of the right to sue notice issued by the DFEH on December 23, 2016. (Comp. ¶ 8.)

Given the above, the Court need not address Plaintiff’s additional arguments in opposition attempting to distinguish Acuna, supra, 217 Cal.App.4th 1402 nor the arguments regarding equitable tolling.

Defendant’s demurrer to first and second causes of action based on the argument that the complaint was not filed within one year of receiving a right to sue notice as required by Government Code § 12965 is overruled.

Third, Fourth and Fifth Causes of Action (IIED, NIED, and Loss of Consortium)

Defendant’s demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Defendant argues that these causes of action are barred by the two year statute of limitations in CCP § 335.1. The entire complaint is premised on allegations that Defendant wrongfully terminated Plaintiff on or about November 10, 2014. The complaint was filed more than two years later on December 20, 2017. The filing of a DFEH administrative complaint does not toll the statute of limitations for common law tort claims. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4 th 1174, 1189-1190.) These causes of action are untimely. Plaintiff does not address these causes of action in opposition.

In light of the above, the Court need not address Defendant’s argument that the fourth cause of action is also barred by the Workers’ Compensation Exclusivity Rule.

As a result, the demurrer is overruled as to the first and second causes of action and sustained without leave to amend as to the third, fourth and fifth causes of action.

No later than April 2, 2018, Defendant shall file and serve its answer to the complaint.