Case Number: EC062264    Hearing Date: October 31, 2014    Dept: A

Armguard Security v Glendale USD

DEMURRER

Calendar: 10
Case No: EC062264
Date: 10/31/14

MP: Defendant, Glendale Unified School District
RP: Plaintiff, Armguard Security, Inc. and Ali Sadri

ALLEGATIONS IN FIRST AMENDED COMPLAINT:
The Defendant unlawfully awarded a project for school security services to another company, ESPY Security and Patrol, even though the Plaintiffs made a lower bid for the project. This was the result of the Defendant engaging in discrimination against the Plaintiffs based on the Persian origin of the CEO and owner.

CAUSES OF ACTION IN FIRST AMENDED COMPLAINT:
Discrimination

RELIEF REQUESTED:
Demurrer to Complaint.

DISCUSSION:
This hearing concerns the Defendant’s demurrer to the First Amended Complaint. The Defendant argues that the First Amended Complaint is barred by the statute of limitations because it was not filed within six months from the notice of rejection of his claim.
Where the dates alleged in the complaint show the action is barred by the statute of limitations, a demurrer lies. Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300. The statute of limitations for claims against a public entity is identified by Government Code section 945.6, which requires the civil lawsuit to be brought not more than six months after the public entity provides notice that it is rejecting the claim for damages.
The Plaintiff’s First Amended Complaint includes a copy of his claim for damages and the Defendant’s notice of rejection in exhibits 5 and 6. The notice of rejection in exhibit 6 is dated January 16, 2013. Under Government Code section 945.6, the Plaintiff had six months, or until July 16, 2013 to commence his lawsuit.
A review of the Court file reveals that the Plaintiff commenced this lawsuit on March 26, 2014. Since this was not on or before July 16, 2013, the dates in the Complaint and the exhibits attached to it reveal that it is barred by the statute of limitations.
The Court identified this same defect on July 11, 2014, when it sustained the Defendant’s demurrer to the original Complaint.

In the opposition, the Plaintiffs argue that they are exempt from this requirement because actions for discrimination are not subject to the Tort Claims Act. Plaintiff rely upon legal authority regarding claims for relief from employment discrimination.
California law holds that claims brought under the Fair Employment and Housing Act (“FEHA”), California’s own statutory scheme to combat employment discrimination, are exempt from the claim-presentation requirements of the general tort claims act. Garcia v. L.A. Unified Sch. Dist. (1985) 173 Cal. App. 3d 701, 710. The exemption arises because FEHA contains specific time limitations related to the remedies provided: a verified complaint must be filed with the Department of Fair Employment and Housing within one year of the unlawful practice, the department must serve the employer with the complaint within 45 days of filing or at the time of initial contact, if an accusation is not issued within 150 days after filing of the complaint, or if the department earlier determines that no accusation will issue, the department shall so notify the charging party in writing, informing that party that he may bring a civil action under the act against the party named in the complaint within one year from the date of that notice. Id.
The Plaintiffs’ citation this authority is unsuitable for the reason that the Plaintiffs are not employees of the Defendant. Instead, they were bidding on a contract. The Plaintiff offers no legal authority holding that a bidder on a public contract can seek relief under FEHA. On the contrary, case law finds that independent contractors may generally not bring statutory discrimination actions. Sistare-Meyer v. Young Men’s Christian Ass’n (1997) 58 Cal. App. 4th 10, 17 (including the FEHA statutes at Government Code sections 12940 and 12941 among the authorities cited for this general principle).
Further, there are no allegations in the First Amended Complaint that plead the violation of any provision of the FEHA, e.g., the identity of a specific statute and the particular conduct that violated the identified statute. In paragraph 62, the Plaintiffs allege that they received a right to sue letter from the Department, but there are no allegations to demonstrate that they complied with the time requirements for filing a FEHA claim. Further, the Plaintiffs have failed to plead any facts to state the statutory claim for relief under California’s statutory scheme to combat employment discrimination.
Accordingly, the Plaintiffs have not demonstrated that they are exempt from the Tort Claims Act.

The Plaintiffs also argue that they provided notice of their claim sufficient to permit the Defendant to investigate and settle the claim. This argument does not address the specific deficiency, which is that the Plaintiffs did not commence their lawsuit within the required time following the date of the notice of rejection of the claim.

The Plaintiffs further argue that paragraph 42 contains an act of discrimination that occurred in 2013. A review of paragraph 42 reveals that it does not plead any discrimination; instead, the Plaintiff alleges that they were repeatedly “put off” by Defendants until February 2013, when the Plaintiffs talked with the Defendants’ attorney to receive documents that had been produced for a “Barry Allen”.
When the surrounding paragraphs are reviewed, it becomes clear that the documents at issue concerned the procedures for the review committee to make a determination on a bid. The Plaintiffs allege that they had requested the documents, but that a “Barry Allen” had sought and received the same documents before the Plaintiffs received theirs. The Plaintiffs claim that this was an act of discrimination because of the difference in names. Accordingly, the Plaintiffs are claiming that they suffered discrimination because another person received documents about bidding procedures from the Defendants before they did. The allegation lacks substance.
There are simply no allegations that the Plaintiffs satisfied any requirement to bring a civil lawsuit based on this claim, e.g., that the Plaintiffs presented a claim that was rejected. In addition, the rest of the pleadings are based on the claim of discrimination based on the outcome of the bidding process. Accordingly, this argument offers no basis to find that the Plaintiffs’ commenced their civil claim based on discrimination in the bidding process within the required time.

Therefore, the Court will sustain the demurrer to the Complaint because the dates in the Complaint show that it is barred by the statute of limitations in Government Code section 945.6.

The Court identified this defect on July 11, 2014 when it sustained the demurrer with leave to amend. After receiving leave to amend, the Plaintiffs were unable to correct this defect. Since the Plaintiffs were unable to correct this defect, the Court will not grant leave to amend.

RULING:
Sustain demurrer to First Amended Complaint without leave to amend.