Filed 5/1/20 Claggett v. County of Los Angeles CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SANDRA CLAGGETT,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES et al.,

Defendant and Respondent.

B295420

(Los Angeles County

Super. Ct. No.BC618877)

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Mike Pincher for Plaintiff and Appellant.

Los Angeles County Employees Retirement Association Steven P. Rice, Chief Counsel, Johanna M. Fontenot and Michael D. Herrera Staff Counsel for Defendant and Respondent Los Angeles County Employees Retirement Association.

Miller Barondess, Mira Hashmall and Emily A. Sanchirico for Defendants and Respondents County of Los Angeles, Richard Onibasa and Stacey Winters.

INTRODUCTION

Plaintiff Sandra J. Claggett was employed by the County of Los Angeles from 1972 to 1980, then from 1985 until her retirement in January 2020. Before she retired, she filed this action against the County, County employees Richard Onibasa and Stacey Winters, and the Los Angeles County Employees Retirement Association (LACERA). Claggett’s extensive allegations fell into three general categories. First, Claggett asserted that LACERA failed to inform her of her rights regarding retirement “Plan A” upon her departure from the County in 1980, and that it gave her incorrect information about buying back into Plan A upon her return in 1985. Second, Claggett alleged that the County violated her rights under California’s Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, § 12945.2), part of the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.), by giving her notice upon her return from a medical leave that her work position and location were going to be transferred to a different department half a mile away. The transfer never took place. Third, Claggett alleged that based on several events spanning multiple years, the County and individual defendants harassed her, retaliated against her, and discriminated against her in violation of FEHA. The defendants filed demurrers to Claggett’s first amended complaint and second amended complaint. The trial court sustained the second set of demurrers without leave to amend. Claggett appealed.

We affirm. Claggett’s allegations about misrepresentations regarding retirement Plan A are time-barred, and the delayed discovery rule does not save her claims. Claggett’s CFRA claim fails because the transfer never occurred so there was no adverse employment action, and Claggett did not allege facts supporting a violation of CFRA rights. Finally, Claggett has not alleged facts sufficient to state a cause of action under FEHA, because she has not alleged facts showing adverse employment action or harassment. We also reject Claggett’s contention that the trial court abused its discretion in denying Claggett leave to further amend her complaint.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual allegations
B.
Claggett filed a 40-page complaint with more than 200 pages of exhibits on November 3, 2017; she never served it on the defendants. Claggett filed a first amended complaint (FAC) on January 9, 2018. She filed a second amended complaint (SAC) on August 6, 2018. The following facts are summarized from Claggett’s complaints.

Claggett is “a female of African-American national origin.” She worked for the County from August 28, 1972 to July 18, 1980, and again from September 4, 1985 to the present. Claggett’s “last job before going out on disability leave” was as a Senior Management Secretary II in the Chief Information Office (CIO) at the Los Angeles World Trade Center. As of January 7, 2020, Claggett has retired.

Claggett alleged, “Starting with Claggett’s initial resignation from [the County] in 1980 and then her return to work in 1985, she has been targeted by first one and then eventually two cliques” at the County and LACERA. These cliques allegedly schemed against Claggett in two ways: first, by barring Claggett from rejoining the County’s retirement “Plan A” after she returned to the County workforce, and second, by engaging in ongoing discrimination, harassment, and retaliation in an effort to force Claggett to resign.

1. Retirement Plan A
2.
Regarding her retirement plan, Claggett alleged that during her first employment with the County from 1972 to 1980, she participated in the County’s retirement Plan A. When she left the County’s employment in 1980, the County and LACERA “failed to advise her . . . of the significance of her accepting her Plan A contributions check for $3804.48, which eliminated her from restoring Plan A should she ever return to [the County] without first reimbursing the plan for the contributions she would have made had she never left.”

When Claggett returned to County employment in 1985, the County and LACERA “combined to deny her restoration rights under Plan A of [the County’s] retirement system by grossly overstating what contributions amount she would have to pay . . . in order to restore the plan.” (Claggett alleged that she was erroneously told that to restore her rights in a Plan A, she would have to pay “about $20,000, which was cost-prohibitive at the time and an erroneous reflection of what she should have paid based on a $3804.48 contribution and only four-and-a-half years away from [the County].” Claggett’s inability to buy back into Plan A “forced her into Plan E, a plan with substantially lower benefits of all kinds.” Claggett alleged this misrepresentation by the County and LACERA was a concerted scheme “to deny Claggett her Plan A rights.”

Claggett alleged that she “was not aware of Plan A restoration rights at all” upon her return to County employment. After learning from a peer that restoration was possible, in 2004 and 2006 Claggett “inquired to [the County] and LACERA on her own.” Claggett attached a letter dated August 26, 2004, stating that Claggett had requested to change from Plan E to Plan A. To rejoin Plan A, Claggett was required to “pay, in full, the employee contributions for Plan A, plus the interest those contributions would have earned had they been on deposit from the date you first became a member of LACERA.” The total cost was $97,263.88. Claggett attached a second letter, which included similar information but was dated March 29, 2006 and marked “updated.” This letter stated that the total cost to re-join Plan A would be $114,355.67. Claggett alleged that “any disclosures of the conditions leading to Plan A forfeiture and its prevention should have been put in writing in both 1980 and 1985 just like they later were to Claggett during 2004 and 2006. By those years, however, the restoration amounts were $97,263.88 and $114,335.67, respectively, cost prohibitive for her as they would be for most returning [County] employees.”

Claggett also attached a letter dated September 29, 2017 from LACERA’s assistant executive officer, JJ Popowich, addressing Claggett’s “Second Level Administrative Appeal.” The Popowich letter noted that Claggett alleged that she was denied the right to re-join Plan A. Popowich stated that he and his staff “have determined that Ms. Claggett has not been denied the right to restore to Plan A. We also determined staff provided Ms. Claggett with numerous opportunities to restore to Plan A and that Ms. Claggett has chosen not to avail herself of those opportunities.” Popowich noted Claggett alleged that when she returned to County employment in 1985, she was told it would be approximately $20,000 to restore her rights under Plan A. Popowich stated, “It is difficult to determine what information Ms. Claggett received when she returned to service in 1985.” Popowich “requested staff to estimate the cost to restore [Claggett] to Plan A, had she elected to enroll in Plan D upon her return and it would have been around $5,512.87.” He also noted that “there is a record of her requesting to complete an Open Window Plan Transfer as early as October 27, 1988—three years after her return. The lump sum cost provided to her on March 29, 1989 was $5,946.04.” The March 29, 1989 letter, which was also attached as an exhibit to the SAC, shows that in 1989, Claggett was informed that she could transfer to “Plan D” if she made a deposit of $5,946.04.

A letter dated December 15, 2017 from Stephen P. Rice, Chief Counsel, LACERA, stated that Claggett’s “third level administrative appeal” was also denied, “except that Ms. Claggett may be restored to Plan A if she makes full payment of all contributions and interest due to the present. . . . We estimate this amount to be $315,918.54 as of December 31, 2017.” The letter also stated that Claggett “has now exhausted her administrative remedies with LACERA,” and if she wanted to challenge the decision, she could file a writ petition within six months. Claggett alleged that LACERA “had predetermined the outcome” of the appeal as part of the scheme against her.

3. Discrimination, Harassment, and Retaliation
4.
Claggett alleged that the second “clique” operated “from 2003 on . . . against Claggett as the only African-American female in the CIO and also for her standing up for her employee rights on a consistent basis.” Claggett alleged that the County, individual defendants Richard Onibasa and Stacey Winters, and others “tacitly or directly agreed . . . in a concert of action to frustrate Claggett’s rights . . . for the purpose of promoting the clique by covering each other’s backs despite any rule-breaking they performed.”

Claggett’s allegations are complex and intertwined, but essentially involve six separate incidents, as follows:

(1) The Clark incident, October 2011 to November 2012. Claggett alleged that in October 2011, a complaint was filed against her by a fellow employee, Sir Clark, “who is also black.” Claggett “used the ‘N’ word against” Clark, but claimed that Clark “had made unwanted sexual body movements toward her that provoked the remark.” Claggett alleged that the County chose to discipline Claggett and not Clark, which was part of the scheme to force Claggett to quit. Claggett alleged that her resulting three-day suspension, imposed in November 2012, occurred a “prejudicially long time” after the incident. She alleged that the County’s “malice, oppression and fraud” against her was “reflected in the handling” of the Clark incident.

(2) Claggett’s transfer requests, 2012 (and perhaps earlier). Claggett alleged that she requested a transfer to a different work group on some unspecified date. She asserted that in 2012, a social worker working with Claggett stated in a February 2012 letter that after Claggett “participated actively in a very intensive program designed to assist patients who are having difficulty in the work place [sic],” Claggett was “not prepared to work [at] the same work location,” and therefore “a transfer of departments seems the most appropriate plan at this time.” A worker’s compensation doctor also stated in a July 2012 letter that due to Claggett’s “ongoing conflict” with her coworkers, transfer to a different department might bring resolution. Claggett alleged that “it was essential for Claggett to be transferred since at least 2012 re the workers comp recommendations really since 2008 after Claggett’s attempts to transfer on her own.” She asserted that the County “refused” her “efforts” to transfer her “out of the World Trade Center work force.”

(3) The County’s transfer notice to Claggett, March 1, 2016. Claggett alleges that on March 1, 2016, upon returning to work after a medical leave, she received notice that her work location was going to be transferred. She had been on medical leave from January 20, 2016 to March 1, 2016. Due to a restructuring plan of the County workforce, Claggett was reassigned to a new work location one half-mile away, and to a new division, the Internal Services Department (ISD). The proposed transfer, according to Claggett, amounted to a demotion and failed to take seniority into account, because a less senior employee, Patricia Almaguer, should have been transferred instead. The transfer also would have caused serious transportation problems, because the new work location was not directly adjacent to Claggett’s bus stop, and Claggett had physical difficulties that would make traveling the half-mile to the bus stop problematic. Claggett alleged that the proposed transfer was intended to “force her to quit under a constructive discharge” as part of a plan by non-defendant employees to ensure the “administration . . . contain only Hispanics.” Claggett alleged that she “protested so much” that the transfer was cancelled “pending resolution,” but there had been no resolution. This transfer notice, separate from the other incidents, also serves as the basis for Claggett’s CFRA cause of action.

(4) The County’s failure to process Claggett’s worker’s compensation claims, March 2016. Claggett alleged that following the transfer notice, the “anxiety over her future with [the County] caused Claggett to file multiple continuous trauma workers’ compensation claims between 3/3/16 and 3/16/16,” which the County “failed to process” as part of the scheme to force Claggett to quit. Claggett asserted that she only discovered that the claims were not processed on November 15, 2016, when she received an email from defendant Onibasa stating that Claggett had filed forms declining medical treatment—not forms initiating a worker’s compensation claim. Claggett alleged that Onibasa’s response and explanation was “nothing but ruse and pretext,” and Onibasa deliberately and maliciously “caused the failure to process the workers comp claims.”

(5) CPOE denial of Claggett’s complaint, April 13, 2016. Claggett alleged that she filed a complaint with the County Policy of Equity (CPOE) regarding the transfer notice. The complaint does not appear to be included in the record on appeal. In a letter signed by defendant Winters, dated April 13, 2016, the CPOE denied Claggett’s complaint, stating, “[T]he facts as alleged, even if taken as true, are not jurisdictional to the” CPOE. Claggett alleged that the denial was based “on the legally fallacious grounds of ‘lack of jurisdiction,’” which was “clearly improper because [Claggett’s] complaint focused on how such move was harassing, discriminatory and retaliatory against her for the Clark incident.” Claggett also alleged that Winters was defendant Onibasa’s immediate supervisor, who “handles transfers as well as all personnel matters.”

(6) The $29.95 check, March 15, 2017. Claggett further alleged that on March 15, 2017, she received a check for $29.95, an amount that “sharply contrast[ed]” with her other checks, which ranged from $933.01 to $1885.65. The County explained that this was done as a correction for an earlier overpayment, but Claggett alleged that “the loss could have been more evenly distributed among other successive checks.” Claggett contended that this “deliberative activity with Claggett’s pay checks [sic] fit perfectly” into the County’s plan “to frustrate Claggett into quitting.”

B. Procedural background

1. First amended complaint

Claggett asserted seven causes of action in her FAC. Her first cause of action was for violation of California’s Moore-Brown-Roberti Family Rights Act (CFRA) against the County only. Claggett alleged that the County “had no legal right to impose a TRANSFER upon Claggett” to a different work group and a location half a mile away.

Claggett’s second and third causes of action were for “national origin and age 40 and over discrimination” under FEHA section 12940; the second cause of action was asserted against the County, and the third cause of action was asserted against the County and individual defendants Onibasa and Winters. Claggett asserted that the County’s “officers and supervisors . . . made numerous discriminatory remarks and otherwise directed acts and conduct” toward Claggett “because of her female African-American national origin and being age 40 and over.” Specific instances of discrimination included the 2012 discipline over the Clark incident, the 2016 transfer order, the “constant necessitating of filing workers’ comp claims even for stress related actions,” and the County’s failure to process those claims.

Claggett’s fourth cause of action was for retaliation under FEHA section 12940, subdivision (h), alleged against the County. Claggett alleged that the adverse employment actions alleged in the FAC “were in retaliation for and motivated by the protected activity of opposing the pled harassment and discrimination she experienced.”

The fifth cause of action against the County was for “failure to take remedial action” in violation of FEHA section 12940, subdivision (k), which states that an employer may not “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Claggett alleged that the County failed to prevent discrimination, harassment, and retaliation against her.

In her sixth cause of action for breach of fiduciary duty, Claggett alleged two “counts.” In the first count, “negligent misrepresentation” against LACERA, Claggett stated that the misrepresentations were “four-fold,” and focused on misrepresentations regarding Plan A and Claggett’s ability to restore her rights in Plan A. She contended that “LACERA failed to inform Claggett of her respective rights and duties for Plan A retention or restoration and in so doing breached its duties as a fiduciary to her to do so and fell below the standard of care in the industry.” As damages, Claggett alleged the “inability to receive the enhanced retirement benefits of Plan A over what she would receive under Plan E.” In the second count, “fraud and deceit” against LACERA and the County, Claggett alleged that the buy-in amount represented to her in 1985 was incorrect, and that Claggett relied on that figure to her detriment.

Claggett’s seventh cause of action was for “impairment of contract—California Constitution—Article 1, @9 [sic],” against LACERA and the County. Again Claggett asserted two “counts,” which were nearly identical to the counts asserted in the sixth cause of action regarding negligent misrepresentation and fraud. Again, Claggett asserted that she was damaged by not receiving the benefits of Plan A.

Claggett alleged that with respect to her claims against the County, she filed a claim and an application to file a late claim under the Government Claims Act (§ 810 et seq.) on March 20, 2017, and “[b]oth were rejected on 5/5/17.” She also alleged that on March 23, 2017, she filed a complaint with the California Department of Fair Employment and Housing (DFEH). Her DFEH complaint stated that “[o]n or around March 15, 2017” the County engaged in discrimination, harassment, and other wrongs. Claggett alleged that she “got a right to sue letter on that same date,” so “all causes of action filed under the FEHA are timely.” Claggett further alleged that because the County “deliberately failed to address the merits of any of Claggett’s allegations,” all of her causes of action “are subject to the ‘continuing violation’ accrual rule.” Claggett asserted that equitable estoppel, equitable tolling, and fraudulent concealment “are being asserted to prevent a one-year [statute of limitations] from being strictly applied.” She stated that “all acts complained of are timely when all of the above tolling mechanisms are collectively considered.”

Claggett prayed for workers’ compensation damages for the claims that were denied, the difference in retirement benefits between Plan A and Plan E, damages for emotional distress and pain and suffering, treble damages under Civil Code section 3345 because Claggett was both a senior and disabled, punitive damages, costs, and attorney fees.

2. Demurrers and motions to strike
3.
The County filed a demurrer to the FAC. (Code Civ. Proc.

§ 430.10.) LACERA filed a separate demurrer and a motion to strike (Code Civ. Proc. §§ 435, 436) relating to the sixth and seventh causes of action, the only two causes of action asserted against LACERA.

The County contended that Claggett’s first cause of action under CFRA relating to the transfer must fail. It explained that in 2016, the County underwent a restructuring in which “the CIO (where Claggett worked) was dissolved and its personnel were redistributed between the Chief Executive Office (‘CEO’) and the Internal Services Department (‘ISD’).” Claggett was slated to go to ISD when she returned to work after her medical leave. Pointing out that Claggett’s transfer was never completed, the County stated that Claggett failed to allege that the County took any actions that interfered with Claggett’s CFRA rights, or that the County engaged in any retaliation.

The County asserted that Claggett’s other FEHA-based claims (the second, third, fourth, and fifth causes of action) failed because they were untimely. The County noted that under section 12960, a complaint about unlawful action under the FEHA must be filed within one year. Claggett alleged that she filed her claim with the DFEH on March 23, 2017, so any timely claim must have occurred after March 23, 2016. Claggett’s FEHA claims based on County actions in 2008 and 2012, and the transfer notice on March 1, 2016, were therefore untimely.

The County also asserted that the continuing violation doctrine would not save Claggett’s untimely claims, because Claggett had not alleged a continuous pattern of wrongful conduct. The County argued that Claggett’s claims that the County failed to properly process her workers’ compensation claims were preempted because they “fall within the exclusive jurisdiction of the Workers’ Compensation administrative scheme and must be adjudicated there.” The County further asserted that none of Claggett’s allegations amounted to adverse employment action or showed unlawful harassment.

LACERA and the County argued that the sixth cause of action for breach of fiduciary duty and the seventh cause of action for impairment of contract were time-barred. LACERA asserted that the applicable statute of limitations was three years, and Claggett alleged that the defendants’ wrongful actions occurred in 1980 and 1985. Claggett conceded in the FAC that in 2004 and 2006 she received information about restoration rights regarding Plan A, and therefore “she was aware of these issues and alleged deprivation of rights” long before she filed suit. Both LACERA and the County argued that Claggett’s claims were barred because she failed to comply with the Government Claims Act, and because defendants, as public entities, were immune from liability.

The County contended that Claggett’s seventh cause of action for impairment of contract also failed because “she does not identify how the County is liable” on this theory. LACERA asserted that the seventh cause of action “is barred as a matter of law because [Claggett] has no vested right to a free retirement benefit.” In its motion to strike, LACERA requested that the court strike various allegations that LACERA acted deliberately and maliciously, as well as Claggett’s request for punitive damages.

Claggett opposed the demurrers and motion to strike. Regarding the transfer, Claggett argued that the County could not use reorganization as an excuse to deny her rights under CFRA. She reasserted that the proposed transfer was an adverse employment action that was “part of an overall plan . . . to make life miserable enough for Claggett to be constructively discharged.” In addition, she contended that her claim did not accrue on March 1, 2016 when she received notice of the transfer, but “when it became clear that internal remedies would prove useless, which was 4/13/16.”

Claggett asserted that her FEHA claims were not time-barred. She alleged that she was “denied a good faith interactive process” and “denied reasonable accommodations,” which showed that she had exhausted other remedies. She also contended that the County and LACERA “fraudulently conceal[ed] their misdeeds to Claggett, who they knew was ignorant of her rights.” Claggett further asserted that a continuing violation had been adequately alleged in the FAC. Claggett also argued that the individual defendants were personally liable because their actions were “pretexts for illegal activities.”

Regarding her allegations relating to retirement Plan A, Claggett asserted that LACERA waived its affirmative defenses because it “designated its appellate system for denial of retirement benefits.” She also contended that due to the nature and timing of LACERA’s appeal process, it was equitably estopped from asserting the statute of limitations or “resort[ing] to the GTCA.” Claggett further argued that because she was pursuing a claim for retirement benefits she was not required to comply with the Government Claims Act, and defendants were not entitled to immunity. Claggett also opposed LACERA’s motion to strike.

The County and individual defendants filed a reply in support of their demurrer. No other replies are in the record on appeal.

4. July 19, 2018 hearing and ruling
5.
The court expressed some skepticism of Claggett’s claims. “[W]hat you are asking me to do here is to order the County and LACERA to give you Plan A for nothing. Plan A is expensive.” The court continued, “[I]f the relief you want in this case is to get a County retirement, a very lucrative County retirement for nothing when everybody else in the world had to pay substantial amounts of money for 30 some years . . . that’s going to be a tough sell.”

Regarding the first cause of action relating to CFRA rights based on the notice of transfer, the court noted that Claggett had not been transferred. The court suggested that if Claggett was interested in enjoining a future transfer her claim could be timely, but for damages associated with the March 2016 notice of transfer “you have blown the statute.” The court sustained the demurrer to the first cause of action with leave to amend.

Regarding the FEHA-based causes of action, the court noted that many of the alleged violations were remote in time, and “I am trying to figure out what the continuous course of conduct was because it sounds to me like a series of isolated acts.” The court also noted a lack of any connection between the alleged employment actions and Claggett’s age or national origin. Claggett’s attorney said, “The management, et cetera, is basically all Hispanic there.” The court responded, “[S]o you think because she is black and they are Hispanic, ipso facto it is racism?” The court said it would sustain the demurrer, and “I will give you a chance to replead it and show me a continuous course of conduct.” The court also noted that the allegations were disorganized and confusing, and said, “[Y]ou are going to have to focus” the amended pleading.

Regarding the cause of action for breach of fiduciary duty, Claggett’s counsel stated, “I admit there is no fiduciary duty regarding the County.” The court asked why the claim was not time-barred, and Claggett’s counsel said that Claggett only recently learned that the amount LACERA told her in 1985 that was required to buy back into Plan A was incorrect. The court noted that Claggett did not allege that LACERA knew the information was false or intended Claggett to rely on it. The court also sustained the demurrer with leave to amend.

On the seventh cause of action for impairment of contract, the court sustained the demurrers without leave to amend. The court found LACERA’s motion to strike moot. At the hearing, the court set a date for the next demurrer hearing.

6. Second amended complaint
7.
Claggett filed a second amended complaint (SAC) on August 6, 2018. The SAC included the same allegations as the FAC regarding the two cliques, the Plan A issue, the 2016 transfer notice, the County’s alleged mishandling of the Clark matter in 2012 and workers’ compensation documents in 2016, and the alleged scheme to get Claggett to quit. The SAC expanded on Claggett’s allegations that LACERA owed her a fiduciary duty.

Regarding the transfer, Claggett expanded her allegations and stated that it was irrelevant that the transfer had not yet occurred, because “the prospect of it remains.” She asserted that there was no guarantee the County would not transfer her “just to create a situation where [Claggett] refuses to comply and she gets wrongfully fired for insubordination or wherein this creates such a hostile working environment” that Claggett “is forced to quit, creating a constructive discharge.” Claggett also added additional allegations about the County’s denial of Claggett’s requests “since at least 2012 [and] really since 2008” to transfer to a different work location.

Claggett also expanded her allegations regarding the Clark incident, which apparently arose over a disagreement concerning a coffee pot. According to the SAC, Clark stated that Claggett called him the “N word,” while Claggett reported that she said, “I’m nobody’s n . . . ,” thus directing the word at herself. Claggett also alleged that her three-day suspension was imposed over Thanksgiving in 2012, so Claggett was in fact not paid for ten days of work.

The SAC alleged the same first six causes of action from the FAC. The first cause of action was for violation of CFRA relating to the transfer notice. Claggett also alleged that this “CFRA violation can stand independently on its own,” but also it was part of the scheme, orchestrated by the chief information officer at CIO, non-party Richard Sanchez, to get Claggett to quit in order to “eventually convert the Administrative Staff into exclusively Hispanic.”

The second cause of action for age and national origin discrimination under FEHA also included the allegation that Sanchez was attempting to make the department fully Hispanic. Sanchez “wanted to see [Claggett] become so frustrated and aggravated with her job and the surrounding work environment as to make her quit so he could continue his campaign to create an all-Hispanic Administrative work force and yet do it in a way that would most humiliate those he targeted and therefore show his extreme racial animus.” Claggett again asserted it was a continuing violation, and stated, “It is only in hindsight when viewed under the ‘totality of the circumstances’ and their cumulative effect that unlawful connections could be logically made” regarding Sanchez’s actions.

The third cause of action for age and national origin discrimination under FEHA and the fourth cause of action for retaliation under FEHA incorporated the expanded allegations from the SAC, but did not include additional allegations specific to the causes of action compared to the FAC.

In the fifth cause of action for failure to take remedial action in violation of FEHA, Claggett added an allegation that the County failed to provide her “an interactive process to see how her needs could be best accommodated,” including a possible transfer to a different work location.

Claggett’s sixth cause of action for breach of fiduciary duty again included two counts, negligent misrepresentation and fraud, asserted against LACERA and the County. Claggett added an allegation that the County participated with LACERA to frustrate Claggett’s rights to Plan A, and therefore the County was “an aider and abettor and co-tortfeasor.” Claggett also added an allegation that the California Constitution imposes a fiduciary duty upon pension plan administrators. Claggett slightly expanded her allegation that she relied on LACERA’s representations.

In addition to re-alleging the first six causes of action from the FAC, Claggett included four new causes of action in the SAC. In the new seventh cause of action for breach of written contract against LACERA, Claggett alleged that pension plans comprise a contract between pension plan administrators and beneficiaries. Claggett alleged that LACERA breached that contract by failing to provide accurate information to Claggett regarding Plan A.

In the eighth cause of action for breach of the implied covenant of good faith and fair dealing against LACERA and the County, Claggett repeated her allegations regarding LACERA’s representations to her about Plan A. Claggett alleged that a breach of the covenant of good faith and fair dealing can occur even without a breach of contract, and “coupled with the independent duty owed by LACERA toward Claggett of a fiduciary duty as described above, tort remedies are also available” for such a breach.

In the ninth cause of action for failure to provide reasonable accommodation under FEHA, Claggett alleged that in 2012, the County “completely ignored” the “professional recommendations” that Claggett be transferred to a different work area. Had the County considered Claggett’s requests, she “would have had an excellent shot at even working at ISD Palmdale/Lancaster,” which was much closer to Claggett’s home, and issues with the current transfer notice would have been alleviated.

In the tenth cause of action for failure to engage in the interactive process under FEHA, Claggett alleged that the County “breached its requirement to have an interactive process with Claggett” to determine reasonable accommodations for Claggett’s “knee issues,” which were a concern regarding the potential transfer to a location further from Claggett’s bus stop.

The SAC had nearly 250 pages of exhibits. As in the FAC, Claggett prayed for workers’ compensation damages for the claims that were denied, the difference in retirement benefits between Plan A and Plan E, damages for emotional distress and pain and suffering, treble damages under Civil Code section 3345, punitive damages, costs, and attorney fees.

8. Demurrers and motions to strike
9.
The County and LACERA each filed a motion to strike. Both motions asserted that Claggett’s new causes of action were improperly added to the SAC without permission, and therefore should be stricken. Both motions also noted that Claggett’s cause of action for breach of contract was essentially a restatement of the impairment of contract cause of action in the FAC, to which the court sustained the defendants’ demurrers without leave to amend.

The County and LACERA also filed demurrers to the SAC. Regarding the first cause of action under CFRA, the County noted again that the 2016 notice of transfer did not result in an actual transfer or any other employment action, and asserted that the notice could not be the basis for a cause of action. The County also asserted that Claggett failed to exhaust administrative remedies under CFRA, and the facts did not state any viable cause of action.

Regarding the FEHA-based claims, the County asserted that Claggett’s claims were time-barred and the continuing violation doctrine did not apply. The County contended that any workers’ compensation-related claims were not actionable because they fell within the exclusive jurisdiction of the workers’ compensation system. The County also argued that the individual defendants were immune from liability.

Regarding the cause of action for breach of fiduciary duty, the County and LACERA asserted that Claggett’s claim was time-barred, and Claggett failed to comply with the Government Claims Act. LACERA also contended that Claggett’s only remedy for issues related to her County pension was a writ petition, not a lawsuit. LACERA further asserted that it was immune from suit, and that Claggett had no contractual rights.

Claggett opposed the motions to strike and demurrers. Regarding the motions to strike, Claggett argued that her new causes of action were “within the scope of the judge’s order” on the earlier demurrers. She also contended that the Constitution-based contract claim from the FAC was different than the breach of written contract claim in the SAC because “Breach of Written Contract and Impairment of Contract are different critters.”

In response to the demurrers generally, Claggett asserted that her claims were timely under the continuing violation and delayed discovery doctrines. Regarding her CFRA claim based on the notice of transfer, Claggett asserted that the proposed transfer was an actionable adverse employment action because the transfer would be a demotion and constitute a hardship. She also asserted that her claims did not accrue until “it became clear that internal remedies would prove useless, which was 4/13/16.”

Claggett contended that she alleged sufficient facts to show “FEHA exhaustion.” She stated that she “had every right to informally pursue” remedies with the County and LACERA until it became clear that she would not reach a resolution. In addition, “Only upon further reflection did the overall connection between [the alleged] events become clear enough to conclude they were part of a deliberate and concerted plan. . . . The overall scheme was not apparent enough until the flagrant abuse of CFRA. Before then, the other acts could be simply bad judgments. But collectively, fraud and deceit is involved.” Claggett asserted that the County’s failure to process her workers’ compensation claims and the low $29.95paycheck were “part of the overall pattern.” In addition, Claggett contended that the individual defendants’ actions were ministerial, and therefore an immunity defense would not apply.

Claggett asserted that the County “does not owe Claggett a fiduciary duty, [but] LACERA does” and the County aided and abetted LACERA’s actions. She also contended that the County and LACERA “combined to fraudulently conceal their misdeeds to Claggett,” so the delayed discovery rule was applicable. She asserted that she only discovered through her attorney “that she had been had, well after restoral had become cost-prohibitive for her and most people.” No discovery date is included in this argument. Claggett also asserted that LACERA had waived any potential statute of limitations defense and was equitably estopped from asserting the statute of limitations or the Government Claims Act defenses.

10. October 18, 2018 hearing and ruling
11.
At the hearing, the court noted that the proposed transfer that served as the basis for Claggett’s CFRA claim never took place and Claggett’s salary had not changed. The court asked, “How is that an adverse employment action[?]” Claggett’s counsel argued that leaving Claggett “in limbo” about the transfer was “still discriminatory,” it affected Claggett’s “psychological well-being,” and she “should have been warned about the idea of not being offered a . . . reasonable and comparable job” when she returned from sick leave. Claggett’s attorney noted that Claggett “has been off on disability now from 11/16/16 until the present.” The court again emphasized that Claggett had not been transferred anywhere, and observed that Claggett was also “complaining because she wasn’t transferred out to the job of her choice.” The court stated, “[A]nd you’re saying it’s because of her race. It’s discrimination. I just don’t see it. I don’t see the nexus here.”

Turning to the allegations regarding Plan A, the court noted that Claggett had been given additional information about buying into Plan A in 2004 and 2006, she was told she would have to pay a certain amount to restore her rights, and, “I don’t know if that’s accurate or not accurate, but again this is water under the bridge” because it was so remote in time. The court also said, “[T]his is way too long. You’re complaining about this breach of fiduciary duty [from] back in ’80 or ’82 or ’84.” The court noted that Claggett had not complied with the Government Claims Act, “so I would have to agree with the defense on that one.”

Regarding the alleged mishandling of Claggett’s workers’ compensation claims, the court stated, “that is a workers’ comp issue. That’s not an issue we deal with here.” The court also stated that the “breach of contract [cause of action] was added without leave of court.” The court continued, “The bottom line is: I just don’t see this case going anywhere and I don’t know what you can do to rescue it. . . . [T]o the extent you have to comply with the Government Tort Claims Act and other things, you can’t do that. That’s water well under the bridge, and we can’t just go back into [the] ’80’s and . . . try to revive these things.”

Claggett’s counsel asked for leave to amend, stating that the SAC was only the second complaint to be challenged, because the original complaint was never served. The court responded, “Well, the question is can it be remedied, and I don’t think it can be remedied.”

The court issued an eight-page written ruling sustaining the demurrers. Regarding the first cause of action under CFRA, the court noted that Claggett was aware of the proposed transfer on March 1, 2016, so in order to be timely, any related claim should have been filed by March 1, 2017. The court stated that Claggett’s “March 23, 2017 filing was three weeks too late. But perhaps more important than [Claggett’s] long notice of the transfer is that it hasn’t happened yet.” The court noted that Claggett “remains at her prior work location,” and therefore she “failed to timely exhaust her administrative remedies because the claim itself is not yet ripe.” The court rejected Claggett’s argument that mere knowledge of the possibility of a transfer was actionable, because Claggett knew of that possibility as of March 1, 2016, and she did not file a claim within a year. The court therefore sustained the demurrer to the CFRA cause of action without leave to amend.

Turning to the FEHA-based claims and the statute of limitations, the court rejected Claggett’s allegations that she suffered continuing violations over several years. The court found that Claggett “has not clearly pled her requests for a transfer.” Noting that Claggett alleged that she requested transfers in 2008 and 2012, the court stated that there was “too much intervening time to allow those things to stand as part of a pattern.” Similarly, the incident involving Clark in 2011 was “insufficiently connected with anything else to form part of a chain.”

Nevertheless, the court found that “[a]ll of the events in 2016 happened within four months of each other,” including Claggett’s receipt of a $29.95 check and the CPOE’s April 13, 2016 denial of her complaint about the transfer notice, and “it is a question of fact whether they all formed part of a singular pattern. Therefore, no statute of limitations defense is clear on the face of the pleadings with regard to these claims.”

However, the court stated that Claggett’s “FEHA claims all hinge on two things: the existence of an adverse employment action, and some fact showing that [Claggett’s] membership in a protected class is the reason for this treatment. Neither of those things appear to be present.” There were no “facts to show that [Claggett] has been discriminated against on the basis of race or age.” The court also found that all of Claggett’s claims regarding the County’s responses to her requests for workers’ compensation were “subsumed by the workers’ compensation scheme” and not actionable. The court therefore sustained the demurrers as to the FEHA-based causes of action without leave to amend.

Regarding Claggett’s allegations about Plan A, the court noted that the Government Claims Act requires late claims to be brought no later than one year after accrual. Claggett’s cause of action regarding Plan A “accrued in 1985. It was then that [Claggett] learned the consequences of her cash-out, and the rules for repayment.” The court continued, “Even if her cause of action is dated from 2006 (her most recent inquiry into re-entry into Plan A), her causes of action are nearly teenagers,” which meant that they were “too old for the Government Claims Act.” The court therefore sustained the demurrers on this basis without leave to amend.

The court noted that Claggett added her four new causes of action to the SAC without leave of court, and “over this court’s denial of leave to amend her previous contract-based claim.” The court therefore sustained the demurrers to the four new causes of action. The court deemed the motions to strike moot.

The court entered a judgment of dismissal on November 15, 2018. Claggett timely appealed.

DISCUSSION

Claggett asserts on appeal that “the respective demurrers should have been overruled in their entirety and ALL causes of action ruled valid,” and that the court “abused its discretion in not permitting one more amendment before dismissing Claggett’s case.” She sets out 11 “salient issues” to be addressed on appeal: nine that concern her CFRA cause of action, one regarding the effect of delayed discovery on the statute of limitations with no reference to any particular cause of action, and one relating to the County’s handling of the Clark incident. The meandering argument section in Claggett’s opening brief focuses largely on her sixth cause of action involving LACERA and Plan A; her reply brief focuses more on the individual cases cited in the respondents’ briefs than on the issues on appeal. We consider her assertions below.

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.)On appeal after a demurrer has been sustained, we determine de novo whether the complaint states facts sufficient to constitute a cause of action. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100 (Loeffler).) We “‘assume the truth of the complaint’s properly pleaded or implied factual allegations.’” (Ibid.) “[F]acts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.” (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.)

“On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law.” (Williams v. Sacramento River Cats Baseball Club, LLC (2019) 40 Cal.App.5th 280, 286.) “We will affirm ‘if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.’” (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 399.)

A. Breach of fiduciary duty regarding Plan A
B.
We begin with Claggett’s sixth cause of action for breach of fiduciary duty, because Claggett’s arguments on appeal focus heavily on this claim. This cause of action in the SAC included two counts, negligent misrepresentation and fraud, asserted against LACERA and the County. Claggett alleged that both the negligent misrepresentations and the “deliberate factual misrepresentations” are “five-fold”: (1) in 1980, not making Claggett aware of the repercussions of cashing out her Plan A retirement; (2) in 1985, failing “to advise Claggett entirely of the possibility of the restoration of Plan A to her after she returned to work”; (3) in 1985, representing to Claggett that it would cost about $20,000 to restore her rights in Plan A, when the real figure was $3,804.48; (4) “LACERA has nothing in writing to support any proper advisement of Claggett’s rights. . . .”; and (5) LACERA failed to advise Claggett of her right to make up reimbursement payments.

Claggett did not allege that she was entitled to re-enroll in Plan A, nor that she is now entitled to receive its benefits. Instead, she asserted only a tort claim based on alleged misrepresentations in the 1980’s, and prayed for damages in the amount of the difference in benefits under Plan A and under Plan E.

LACERA asserts that Claggett’s claim is barred by the statute of limitations and by Claggett’s failure to comply with the Government Claims Act. In a mixture of arguments, Claggett contends that: LACERA waived its right to assert a statute of limitations defense; Claggett complied with the Government Claims Act because her appeal to LACERA was a “claim as presented”; her cause of action accrued in 2017 due to delayed discovery and therefore it is not time-barred; equitable estoppels both tolls LACERA’s statute of limitations defense and voids application of the Government Claims Act; the Government Claims Act does not apply because of the exception for pensions in section 905, subdivision (f); again, that her LACERA appeal was effectively a claim under the Government Claims Act; and Claggett’s compliance with the Government Claims Act would have been futile.

We first address LACERA’s contention that Claggett failed to comply with the Government Claims Act. We agree, and Claggett’s claim is barred as a result. As such, we do not address the remainder of the parties’ contentions.

1. Claggett was required to comply with the Government Claims Act
2.
First, we address whether Claggett was required to comply with the Government Claims Act. “As part of the California Tort Claims Act, Government Code section 900 et seq.[,] establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requirement. Otherwise, his complaint is subject to a general demurrer for failure to state facts sufficient to constitute a cause of action.” (Id. at p.1243.)

On appeal, Claggett contends that her cause of action regarding Plan A is excepted from the requirements of the Government Claims Act under section 905, subdivision (f), which excepts “[a]pplications or claims for money or benefits under any public retirement or pension system.” This exception “only applies where an individual seeks money due under the terms of an existing pension system.” (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.)

LACERA asserts the exception does not apply to Claggett’s claims, because Claggett is seeking only damages, not money due under a pension plan. It relies on Dalton v. East Bay Municipal Utility District (1993) 18 Cal.App.4th 1566 (Dalton), in which the plaintiffs were a class of former and retired employees of the East Bay Municipal Utility District who were members of a first-tier pension plan. The plaintiffs alleged that due to misallocation of the members’ investments, members of the second-tier pension plan received increased benefits that were funded by first-tier member contributions. (Id. at p. 1570.) The plaintiffs alleged that “the Retirement Board, the board members, the directors and the Retirement System breached its fiduciary duty by improperly favoring [tier two] participants over [tier one] participants.” (Ibid.) The plaintiffs did not file a government claim before filing their lawsuit, and asserted that they were not required to under the exception in section 905, subdivision (f). (Id. at p. 1571.)

The Court of Appeal found that the plaintiffs’ claims did not fall within the exception in section 905, subdivision (f), and that their claim was barred by the Government Claims Act. The court noted that “commentators have construed the section 905 exceptions as essentially nontortious claims ‘for which some other adequate claims procedure has already been devised or for which the procedural protection of the Tort Claims Act is believed to be unnecessary.’” (Dalton, supra, 18 Cal.App.4th at p. 1574.) The court continued, “The instant action is not such a case. Plaintiffs are basically alleging tortious wrongdoing by defendants. They do not seek money due to them under the terms of the existing pension system; rather, they claim defendants treated them unfairly in administrating the system and seek to change the 1989 administrative decisions. Consequently, we conclude plaintiffs were required to file a claim pursuant to section 905. Having failed to file their claim, plaintiffs’ suit is barred by section 911.2.” (Ibid.)

The Dalton court discussed Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670 (Baillargeon). In that case, the plaintiff was a member of the City of Los Angeles Water and Power Employees Retirement Plan, and alleged that she relied on a booklet stating that supplemental disability benefits were included in the plan. (Id. at p. 676.) When plaintiff applied for those benefits a few years later, her claim was denied because such benefits were not actually included in the plan. (Id. at p. 677.) The plaintiff sued on an estoppel theory.

The Court of Appeal held that the exception in section 905, subdivision (f) did not apply. That subdivision “specifically exempts ‘[applications] or claims for money or benefits under any public retirement or pension system.’ A preliminary issue, then, is whether plaintiff’s claim was one for ‘money or benefits under’ a public retirement or pension system. Plaintiff argues that her claim was actually made pursuant to The Plan — as she understood it to be. The Plan, however, never contained the provisions set forth in the booklet, but only a severely limited version of them. Plaintiff’s claim is grounded upon the doctrine of estoppel. The written promise upon which she relied was not in The Plan but was contained in a separate document, the booklet. This is the essence of her claim. In our view, plaintiff was not suing for benefits payable pursuant to or under a public pension system, and thus Government Code section 905, subdivision (f), is not applicable.” (Baillargeon, supra, 69 Cal.App.3d at p. 681.)

Claggett asserts that Dalton is inapposite because “[t]he instant case does not involve adjusting two benefit formulas in its retirement pension system.” Then, conflating multiple theories, Claggett asserts, “The behavior is tortious but the entitlement itself is a contractual duty owed by the public entity based on State Constitutional, statutory and case law (though punitive damages are only available against Winters and Onibasa) unrelated to tort as intended by the Act. Thus, Gov. Code §905, subd. (f) DOES apply, exempting Claggett from filing under the” Government Claims Act.

Claggett contends this case is more similar to Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, in which the plaintiff alleged that the police seized $7,720.00, held it as evidence, and did not return it when the case was completed. The Supreme Court held, “[T]he instant complaint, seeking the recovery of property seized and wrongfully withheld by defendants, does not involve a claim for ‘money or damages’ within the meaning of section 905, and thus would not fall within the presentation requirements of sections 911.2 and 945.4.” (Id. at p. 124.) Claggett contends that in this case “[t]he real issue is denial of and seeking recovery of a public employee contractual ‘property right’ akin to” that in Minsky.

We do not agree with this interpretation of Minsky or Claggett’s cause of action. “The Minsky rationale is that a claim for specific property effectively held by the government as a ‘bailee’ for the claimant is not one for ‘money or damages’ under the Government Claims Act. . . . Subsequent cases have limited the Minsky exception to situations in which the defendant had a duty to return seized property, enforceable by way of mandamus. [Citations.] When a claim for ‘money or damages’ is not based on a governmental obligation to return specific property, it is subject to the claim requirements.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 743.) Neither Claggett’s complaint in general, nor the breach of fiduciary duty cause of action specifically, includes any claim for recovery of property seized by the defendants.

We find the reasoning of Dalton and Baillargeon more applicable here. Claggett has asserted a tort claim against LACERA for its alleged misrepresentations about re-joining Plan A in 1985, and she has prayed for damages resulting from that breach. Where a plaintiff alleges “tortious wrongdoing” by the defendant, section 905, subdivision (f) does not apply. (Dalton, supra, 18 Cal.App.4th at p. 1574; see also Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 339; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071, 1080-1081 [where the plaintiff sought monetary damages for defendants’ alleged misconduct that had the effect of limiting potential pension benefits, the exception in section 905, subdivision (f) did not apply].)

We note that in her appeal to LACERA in April 2017, Claggett requested “that Ms. Claggett be granted Plan A retirement benefits extending back to 1985 when she returned to work, the exact terms of which need to be negotiated.” In her complaints, however, Claggett did not allege that she was entitled to participate in Plan A. She only sought damages for the alleged tort. Claggett was therefore required to comply with the Government Claims Act.

Claggett asserts in passing that equitable estoppel “voids application of the [Government Claims Act] through ‘impossibility of performance’ based on its [sic] false disclosures and nondisclosures in 1980 and 1985.” She cites two cases, Estate of Bonzi (2013) 216 Cal.App.4th 1085 and Bradley v. Breen (1999) 73 Cal.App.4th 798, probate cases that address estoppel involving estate executors. Claggett does not cite any authorities suggesting that estoppel excuses her from the requirements of the Government Claims Act. We therefore reject this contention.

3. Claggett’s cause of action accrued before 2006, so her 2017 claims were time-barred
4.
Under the Government Claims Act, claims for personal injury and property damage generally must be presented within six months after accrual; all other claims must be presented within a year after their accrual. (§ 911.2.) “When a claim . . . is not presented within that time, a written application may be made to the public entity for leave to present that claim.”

(§ 911.4, subd. (a).) “The application shall be presented to the public entity . . . within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” (§ 911.4, subd. (b).) Accrual of the cause of action for purposes of the Government Claims Act is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants. (§ 901; Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906.)

Claggett filed “Claim for Damages to Person or Property,” with the County on March 20, 2017, and filed an application for leave to file a late claim the same day. Claggett concedes that she did not file a claim against LACERA, which is an entity distinct from the County. (See, e.g., Traub v. Board of Retirement (1983) 34 Cal.3d 793, 798.) Claggett argues instead that her April 25, 2017 appeal to LACERA constituted a “claim as presented,” which substantially complies with the Government Claims Act. “A ‘claim as presented’ is a claim that is defective in that it fails to comply substantially with Government Code sections 910 and 910.2, but nonetheless puts the public entity on notice that the claimant is attempting to file a valid claim and that litigation will result if it is not paid or otherwise resolved.” (Alliance Financial v. City and County of San Francisco (1998) 64 Cal.App.4th 635, 643.)

Even assuming for the sake of argument that the appeal to LACERA constituted a “claim as presented,” both it and the claim to the County were untimely. There is no dispute that the alleged misrepresentations at issue occurred in 1980, when Claggett left Plan A and cashed out her contributions, and in 1985, when Claggett was re-employed by the County.

However, Claggett asserts that under the delayed discovery rule, her cause of action did not accrue until February 2017, when she met with her attorney and he suggested that the amount Claggett was told she would need to pay to buy back into Plan A in 1985—about $20,000—was incorrect. Claggett asserts that her cause of action did not accrue until then, or at least a factual question exists “as to when she was put on reasonable inquiry notice.”

The County and LACERA assert that the delayed discovery rule does not apply, because Claggett knew by 1985 that she was not entitled to re-join Plan A without a financial contribution, and that she would not be entitled to receive Plan A benefits in the future. LACERA also asserts that there is no question Claggett was aware of her cause of action by 2004 and 2006 at the latest, when she made additional inquiries about re-joining Plan A.

“An exception to the general rule for defining the accrual of a cause of . . . is the discovery rule,” which “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) A plaintiff “has reason to discover the cause of action when [she] has reason at least to suspect a factual basis for its elements.” (Id. at p. 398.) “[P]laintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox).) Thus, “[i]n order to adequately allege facts supporting a theory of delayed discovery, the plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he or she could not have reasonably discovered facts supporting the cause of action within the applicable statute of limitations period.” (Id. at p. 809.)

Claggett alleges in her complaint that she requested information about rejoining Plan A multiple times—in 1985, 2004, and 2006. Clearly, therefore, Claggett was interested in re-joining Plan A multiple times over the decades she was employed at the County, and to the extent she felt she was wrongly prevented from doing so, it was incumbent upon her to seek out facts to support such a claim. Claggett asserts that she “trusted LACERA as her fiduciary,” but where there are facts sufficient to put a plaintiff on inquiry notice, a cause of action for fraud or misrepresentation accrues even when the defendant is a fiduciary. (See Britton v. Girardi (2015) 235 Cal.App.4th 721, 725.)

Moreover, Claggett has not alleged any facts to show that she was unable to discover additional information before 2017—she has asserted only that she did not seek any such information. A plaintiff may not “sit on her rights”; so long as a suspicion of wrongdoing exists, “it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) Claggett’s assertion that she did not know of her claim until her attorney advised her about a potential claim is not compelling. “It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying [her] cause of action.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898.) Where the plaintiff is already aware of the facts underlying her claim or has a suspicion of wrongdoing, “the fact that an attorney has not yet advised [her] does not postpone commencement of the limitations period.” (Ibid.)

Thus, Claggett was on inquiry notice of her claim regarding Plan A at least a decade before she filed her government claim with the County and her appeal to LACERA in 2017. Claggett’s claims were not timely, and her breach of fiduciary duty cause of action is barred as a result.

Claggett asserts that LACERA has waived any defense based on the Government Claims Act or the timeliness of her claims because during the appellate process, LACERA did not assert these defenses. Claggett argues that that she was prejudiced by “exhausting an almost eight-month process,” from her first-level appeal to LACERA in April 2017 to LACERA’s final denial in December 2017. She also contends that because the December 15, 2017 letter denying Claggett’s third-level appeal to LACERA included statutory language advising Claggett of the six-month time limitation to initiate a court action in section 945.6, subdivision (a)(1), “Claggett had every right to presume that if the [Government Claims Act] applied (disputed), LACERA was waiving it.”

We reject this contention. None of the authorities Claggett cites supports her assertion that LACERA’s participation in the appellate process forfeits any defenses it may assert in litigation. In addition, the appellate process is not the reason Claggett’s action is untimely, since her claims accrued in 2006 at the latest. Moreover, Claggett’s assertion that the December 15, 2017 letter misled her about her right to file this lawsuit is contradicted by the record: She filed the original complaint, including the breach of fiduciary duty cause of action against LACERA, on November 3, 2017, more than a month before the December letter. Thus, we find no support for Claggett’s contention that LACERA waived its defense regarding the timeliness of Claggett’s claims.

B. CFRA claim regarding the proposed transfer

Claggett contends that the trial court erred in sustaining the demurrer to her first cause of action under CFRA regarding the County’s notice to Claggett, upon her return from a medical leave, that Claggett’s position was being transferred to a different department in a location half a mile away due to department restructuring. “CFRA ‘is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.’” (Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 558.) “Violations of the CFRA generally fall into two types of claims: (1) ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487-488.)

Claggett is not entirely clear about which type of CFRA claim she is asserting. As the County points out, however, “Claggett does not allege that the County took any actions that interfered with her ability to take CFRA leave or prevented her from receiving the full benefits of CFRA (which she in fact received). Claggett’s allegations focus on events that took place after she returned from CFRA leave.” We agree with this interpretation of Claggett’s pleadings, and find that Claggett has not stated facts to support a cause of action for interference with medical leave in violation of CFRA.

It appears, therefore, that Claggett’s CFRA claim is for retaliation. The elements of a cause of action for retaliation in violation of CFRA are: “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” (Dudley, supra, 90 Cal.App.4th at p. 261.)

Claggett asserts that the position to which she would have been transferred was not comparable to the one she held before she began her medical leave. She points out that when an employee is entitled to medical leave, the employer must “provide[ ] the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave.” (§ 12945.2, subd. (a).) “‘Employment in the same or a comparable position’ means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.” (Id., subd. (c)(4).)

Claggett asserts that the court erred in sustaining the demurrer, arguing, “The bottom line is the court ignored the total impropriety of [the County] even subjecting Claggett to such a TRANSFER when [Almaguer, a less senior employee,] should have gone before her and ignoring its own internal seniority rules and clear CFRA mandate of returning her to comparable employment was so egregious without any credible defenses for it that the jury could EASILY infer it was based on her gender, race and even age.” Claggett also argues that “greater seniority trumps any reorganizational moves made by the employer”; the new work location would have created a transportation burden for her; and work in the new department, ISD, “would reduce Claggett’s compensation and status.”

The County asserts that because Claggett was never actually transferred, the trial court correctly sustained the demurrer because “there was no adverse employment action.” We agree. In general, “an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052 (Yanowitz).) Because Claggett was never transferred, the terms, conditions, or privileges of her employment were not changed. Claggett’s return from medical leave to the same position she left—and her continued employment in that position until she retired—meets the definition of “employment in the same or a comparable position” in section 12945.2. Thus, Claggett has not alleged that she suffered an adverse employment action.

Furthermore, Claggett has not asserted that the proposed transfer was imposed “because of her exercise of her right to CFRA leave.” (Dudley, supra, 90 Cal.App.4th at p. 261.) To the contrary, she alleged that the transfer notice was given to her as part of the County’s scheme to harass her, and contends therefore the threat of transfer—even without any actual transfer—is actionable. Claggett cites Daniel v. Wayans (2017) 8 Cal.App.5th 367, an anti-SLAPP case involving a claim of racial harassment. The Daniel court noted that in order to establish that harassment created a hostile work environment, “a plaintiff ‘“must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.”’” (8 Cal.App.5th at p. 389.) The harassment “‘“cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.”’” (Ibid.) Claggett argues that she demonstrated harassment because “a hostile work environment can be an adverse employment action.”

Even assuming for the sake of argument that a transfer notice could constitute harassment and therefore adverse employment action under CFRA, Claggett has not alleged any facts connecting this purported harassment to her medical leave, as required for a CFRA claim. Instead, Claggett alleged in the SAC that the proposed transfer was part of Sanchez’s scheme to force Claggett out of the department because she is “non-Hispanic,” and she argues on appeal that the County’s violation of the “clear CFRA mandate of returning her to ‘comparable employment’” was “based on her gender, race and even age”—not in retaliation for taking leave. Because Claggett has failed to allege either an adverse employment action or retaliation relating to her use of CFRA leave, she has failed to allege facts supporting the fourth element of a CFRA retaliation claim. The demurrer on this cause of action was properly sustained.

C. FEHA-based causes of action

Claggett asserted four causes of action under FEHA, alleging that the County and the individual defendants engaged in or failed to prevent discrimination, harassment, and retaliation. As noted above, Claggett’s briefing on appeal focuses almost exclusively on her CFRA claim and her allegations regarding Plan A. Her discussions about her FEHA-based causes of action are fleeting, intertwined with other arguments, and focus mostly on re-asserting the facts that make up the substance of her allegations. The “[a]ppellant bears the burden of demonstrating that the trial court erred in sustaining the demurrer.” (Baldwin v. AAA Northern California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 549.) An appellant’s brief that “merely summarizes the allegations of [her] SAC” is not sufficient to demonstrate error. (Davies v. Sallie Mae, Inc. (2008) 168 Cal.App.4th 1086, 1096.) With these guidelines in mind, we address Claggett’s contentions.

We also note that although Claggett alleged discrimination, harassment, and retaliation based on national origin and age, she did not allege any facts suggesting that defendants’ actions were based on her age. In addition, she has not asserted in her briefing on appeal that any of her FEHA-related causes of action relate to age. It therefore appears that Claggett has abandoned this theory, and we focus on her allegations involving national origin.

1. Claggett has not alleged any adverse employment action, and therefore has not alleged facts sufficient to state a cause of action for discrimination or retaliation.
2.
In her second cause of action, Claggett alleged that she was “discriminated against per Gov. Code @12940, [sic] subd. (a) in terms, conditions, or privileges of employment for being a female African-American.” Section 12940, subdivision (a) makes it “an unlawful employment practice . . . [f]or an employer, because of the . . . national origin . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).)

In her fourth cause of action, Claggett alleged that the County violated section 12940, subdivision (h) by engaging in “adverse employment actions . . . in retaliation for and motivated by the protected activity of opposing the pled harassment and discrimination [Claggett] experienced.” Section 12940, subdivision (h) bars retaliation if the employee “has filed a complaint, testified, or assisted in any proceeding” under FEHA.

Both discrimination and retaliation under FEHA require a showing of adverse employment action. “FEHA’s discrimination provision addresses only explicit changes in the ‘terms, conditions, or privileges of employment’ (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.] In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) Similarly, “‘in order to establish a prima facie case of retaliation under FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.’” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75,91.)

As the trial court noted, Claggett has not alleged any changes in the terms, conditions, or privileges of her employment. To the contrary, she alleged that she was a Senior Management Secretary II for over 13 years before she filed this action, and she stated in her reply brief that she has since retired “unrelated to constructive discharge.” Although Claggett alleged that she experienced discrimination because Sanchez wanted to convert the department to “all Hispanic,” nothing about her employment changed. Indeed, Claggett also alleged that Sanchez thwarted her efforts to transfer to a different department. The other actions Claggett discusses—the discipline over the Clark incident, the transfer notice, the CPOE denial, the workers’ compensation claims, the adjusted paycheck—may have frustrated Claggett, but she did not allege facts showing that any of them constituted official action that changed the terms, conditions, or privileges of her employment. “[A] mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a).” (Yanowitz, supra, 36 Cal.4th at p. 1054.)

In her briefing on appeal, Clagget does not contend otherwise; indeed, she does not address this issue. Thus, we find that the demurrer was appropriately sustained with respect to Claggett’s second cause of action for discrimination and fourth cause of action for retaliation under FEHA.

3. Claggett has not alleged facts to support a cause of action for harassment
4.
In her third cause of action alleged against the County and individual defendants Onibasa and Winters, Claggett alleged that “Gov. Code @12940, subd. (j)(1) obligated [the County] and its officers, supervisors, managers and other employees to refrain from harassing and employee on the basis of her female African-American national origin.” Section 12940, subdivision (j)(1) requires “immediate and appropriate corrective action” when an “entity, or its agents or supervisors” “knows or should have known” of any discriminatory conduct. Claggett alleges that the six issues described above—the County’s handling of the Clark incident, the transfer notice, the CPOE’s denial of her complaint, the “constant necessitating of filing workers’ comp claims for stress-related actions,” the failure to process her workers’ compensation claims, and the failure to transfer her “despite her requests from 2011 on”—constituted harassment on the basis of Claggett’s race. She also alleged that “[t]he harassment is traceable to Claggett’s employment with [the County] ever since 1985.”

Claggett’s dissatisfaction with a handful of employment decisions over a span of many years does not constitute harassment. “The law prohibiting harassment is violated ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is “‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’”’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263.) “‘[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) The harassment must “‘create a work environment that qualifies as hostile or abusive to employees because of their [protected status].’” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 564 [emphasis added] (Galvan).)

In addition, “‘[h]arassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.’” (Reno v. Baird (1998) 18 Cal.4th 640, 646.) Notably, “disciplinary suspension does not constitute harassment under FEHA as a matter of law.” (Jumaanev. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407.)

Claggett has not alleged a concerted pattern of harassment of a repeated, routine, or generalized nature. Instead, she expressed dissatisfaction with several discrete employment decisions spanning several years. These facts are very different from those, for example, in Galvan. (Galvan, supra, 37 Cal.App.5th at p. 554.) When defendant Alvarez became the supervisor of the plaintiff’s hospital department, she “singled out unit coordinators who spoke English as a second language for criticism and often focused her comments on their accents and their supposed poor English language skills.” (Id. at p. 555.) Alvarez told others “that the Filipino unit coordinators were ‘too old’ and had ‘been here too long,’ and that she wanted to get rid of all of them.” (Id. at p. 556.) “Alvarez’s criticisms of the Filipino unit coordinators were ongoing and ‘constant.’” (Ibid.) The trial court granted summary judgment and the Court of Appeal reversed, finding that the plaintiff “presented evidence that would allow a reasonable trier of fact to find that she and the other Filipino and foreign-born unit coordinators were subjected to a ‘“concerted pattern of harassment of a repeated or generalized nature.”’ [Citation.] Every time Alvarez met with the unit coordinators, she ‘insult[ed],’ ‘degrad[ed],’ and ‘humiliat[ed] them.’ She consistently criticized the unit coordinators’ accents and English language skills and ‘kept bombarding’ them with negative insults. Based on the evidence presented, a reasonable trier of fact could conclude that the conduct complained of was sufficiently severe or pervasive to interfere with a reasonable employee’s work performance and seriously affect the psychological well-being of a reasonable employee.” (Id. at p. 565.)

Here, by contrast, Claggett has not alleged facts to connect any of the defendants’ actions to her national origin. Although she alleged that she suspected Sanchez wanted Claggett to leave the department because she was not Hispanic, she also alleged that Sanchez thwarted her efforts to transfer out of the department. Claggett has not alleged facts regarding any of the other incidents suggesting that the incidents were motivated by anyone’s perception of Claggett’s national origin. The demurrer to this cause of action was properly sustained.

5. Claggett’s fifth cause of action for failure to take remedial action fails
6.
In her fifth cause of action, Claggett alleged that section 12940, subdivision (k) required the County to “take all reasonable steps necessary to prevent discrimination, harassment, and retaliation from occurring against Claggett,” but that the County “rubber stamped” and “ratified” the actions of other County employees instead. Section 12940, subdivision (k) requires an employer to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

Because we have found Claggett failed to allege facts sufficient to support causes of action for discrimination or harassment, this cause of action also fails. “Where, as here, a plaintiff cannot establish a claim for discrimination, the employer as a matter of law cannot be held responsible for failing to prevent same.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166.) And a “plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 701.)

D. New causes of action added to the SAC

Claggett alleged four new causes of action in the SAC: the new seventh cause of action for breach of written contract against LACERA, the eighth cause of action for breach of the implied covenant of good faith and fair dealing against LACERA and the County, the ninth cause of action for failure to provide reasonable accommodation under FEHA against the County, and the tenth cause of action for failure to engage in the interactive process under FEHA against the County. The trial court sustained defendants’ demurrers as to these causes of action. Claggett contends on appeal that the new causes of action “were allowable without court permission.” She asserts that although the court sustained her seventh cause of action for breach of contract based on the California Constitution in the FAC, the new contract-based causes of action were different and therefore allowable. She also asserts that the new FEHA-based causes of action were “simply natural extensions of what was pled in the FAC” and therefore also should have been allowed.

“Following an order sustaining a demurrer . . . with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Here, the court did not give Claggett leave to add new causes of action to her complaint. In the order sustaining the demurrers to the FAC, the court stated simply that the defendants’ demurrers were sustained “with twenty (20) days leave to amend as to Cause of Action numbers 1-6. Cause of Action number 7 is SUSTAINED without leave to amend.” We do not read the court’s order as granting Claggett permission to add new causes of action to the SAC. On appeal, Claggett does not address this procedural issue; she argues only that her new causes of action should have been allowed based on the substance of the allegations therein. We find no error in the court’s holding that these causes of action were included in the SAC without court permission.

E. Leave to amend

Finally, Claggett asserts that the trial court abused its discretion by denying her request for leave to file another amended complaint. She asserts on appeal that she can add new allegations to an amended complaint about the County “failing to properly maintain her time cards while absent,” failing to “properly inform retirement trust beneficiaries before 1988 such as her of any Plan A restoral rights entirely,” and that there might be a class of hundreds of County employees that “did not even know restoral was possible.”

When a demurrer has been sustained without leave to amend, we determine whether there is a reasonable possibility that the defect can be cured by amendment. If it can be, the trial court has abused its discretion and we reverse. (Loeffler, supra, 58 Cal.4th 1081, 1100.) “A plaintiff has the burden to show what facts could be pleaded to cure defects in the complaint. [Citation.] To meet this burden on appeal, the plaintiff must enumerate the facts and demonstrate how they establish a cause of action.” (Stein v. Axis Ins. Co. (2017) 10 Cal.App.5th 673, 682.)

Claggett’s proposed new allegations would not cure any of the defects in her SAC. She has not suggested any facts that would cure the untimeliness of her claims regarding Plan A, nor has she alleged any facts showing adverse employment action, discrimination, harassment, or retaliation based on her national origin. Moreover, Claggett filed three versions of her complaint, complete with hundreds of pages of exhibits. The trial court advised Claggett’s counsel at the hearing on the demurrers to the FAC that the next round of amendments would be “the end of the game.” Claggett had ample opportunity to plead her allegations to the best of her ability. We find no abuse of discretion.

 

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.