Case Number: BC645354 Hearing Date: February 27, 2018 Dept: 53

JACQUELINE WHITE VS COUNTY OF LOS ANGELES, BC645354, february 27, 2018

[tentative] order re: A. demurrer of defendant county of los angeles to plaintiff jacqueline white’s second amended complaint; B. demurrer of defendants joseph charney, anna pembedjian, gloria molina, zev yaroslavsky, don knabe, michael antonovich to plaintiff jacqueline white’s second amended complaint; c. demurrer of defendant william fujioka to second amended complaint

The demurrer of Defendant COUNTY OF LOS ANGELES to Plaintiff Jacqueline White’s Second Amended Complaint is SUSTAINED.

The demurrer of Defendants joseph charney, anna pembedjian, gloria molina, zev yaroslavsky, don knabe, michael antonovich to Plaintiff Jacqueline White’s Second Amended Complaint is SUSTAINED.

The demurrer of Defendant WILLIAM FUJIOKA to Second Amended Complaint is SUSTAINED.

background

Plaintiff Jacqueline White (“Plaintiff”) brought this employment action against Defendants the County of Los Angeles (the “County”), William Fujioka, erroneously sued as Michael Fujioka (“Fujioka”), Joseph Charney, Ana Pembedjian, Gloria Molina, Zev Yaroslavsky, Don Knabe, and Michael Antonovich (collectively, “Defendants”) on December 30, 2016. She filed the operative Second Amended Complaint (“FAC”) on October 31, 2017. Plaintiff was employed by Defendant as Deputy Chief Executive Officer until her demotion and subsequent termination in 2012. (SAC ¶ 1.) The gravamen of the SAC is that Plaintiff was demoted, received a cut in her pay, and was finally wrongfully constructively discharged due to her race and as retaliation for her complaining about the discrimination against her and illegal practices by the Board of Supervisors.

The individual defendants (Fujioka, Charney, Pembedjian, Molina, Yaroslavsky, Knabe, and Antonovich) demur to the intentional infliction of emotional distress cause of action on the grounds that it is barred by the two-year statute of limitations, that Plaintiff failed to comply with the claim presentation requirement under the Tort Claims Act, that the individual defendants are immune from liability under Government Code section 820.2, that the IIED claim is preempted by the Workers’ Compensation Act, and that it fails to state facts to constitute a cause of action. Plaintiff does not oppose.

The County demurs to the first cause of action (discrimination under FEHA) on statute of limitations grounds, the second cause of action (wrongful termination/Whistleblower Statute) on statute of limitations grounds as well as on grounds that Plaintiff failed to satisfy the requirements of the Government Tort Claims Act, and the fourth cause of action (retaliatory termination under FEHA) on statute of limitations grounds. The County also demurs to the second and fourth causes of action for failure to state facts sufficient to constitute a cause of action. Plaintiff does not oppose.

Judicial Notice

The County’s Request for Judicial Notice as to Exhibits A and B is granted.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A. FEHA Claims (First Cause of Action and Fourth Cause of Action)

1. Statute of Limitations

The County argues that White’s FEHA claims are barred by the statute of limitations. “When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.” (Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.)

Pursuant to the FEHA, a DFEH complaint must be filed within one year from the date of the unlawful action. (Gov.C. §12960(d).) This period may be extended by 90 days following the expiration of that year, if the aggrieved employee did not discover the unlawful conduct until after the one-year period. (Gov.C. §12960(d)(1).)

Here, the alleged conduct constituting the discrimination and retaliation were her cut in pay, demotion, and subsequent “constructive discharge.” At the latest, her claims accrued when she was “constructively discharged” in December 2012. (SAC ¶ 9.) Therefore, her DFEH claims had to have been presented by spring 2014. White presented her claim to the EEOC and DFEH in September, 2015, more than a year too late. (The County’s RFJN, Ex. A, p. 7 and Ex. B, p. 10.)

Further, the Court finds that Plaintiff has failed to allege sufficient facts to assert a continuing violation, fraud, or equitable estoppel. For one, Plaintiff did not allege a continuing violation when she filed her EEOC complaints in 2015. (Ibid.) Furthermore, Plaintiff’s allegations that her retirement checks are lower than they otherwise might have been if she had not been demoted is not a new act of discrimination. (See SAC, ¶ 9(i).) Therefore, Plaintiff has failed to adequately plead a continuing violation to overcome the statute of limitations argument. With respect to the fraudulent concealment argument, as noted by the County, the County is immune from common law tort claims and from liability based on an employee’s alleged misrepresentations and from liability based on discretionary acts. (See Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 899; Gov’t Code, §§ 815(a), 818.8, 820.2.) Lastly, Plaintiff has failed to allege sufficient facts for equitable estoppel to apply. Plaintiff’s claims for equitable estoppel stem from a theory that the County concealed from her that the other DCEOs would not be reorganized or receive a cut in pay contemporaneous with her reorganization. (See SAC ¶¶ 9(g), (o), (p).) However, Plaintiff does not allege any facts that establish that she was directly prevented from filing suit within the limitations period. Plaintiff alleges that she continued working for the County for more than a year, during which she could have determined that her colleagues had not been reorganized as allegedly promised. Accordingly, the Court sustains the demurrer to the FEHA claims without leave to amend.

B. Labor Code § 1102.5 Claim (Second Cause of Action)

1. Statute of Limitations

The statute of limitations period for a Labor Code section 1102.5 claim has not yet clearly been decided. However, under Code of Civil Procedure section 338(a), the limitations period for claims upon a liability created by statute, other than a penalty or forfeiture,” is three years. For the reasons stated above, Plaintiff’s claim under Labor Code section 1102.5 is time-barred, as it accrued, at the latest, when she left her job in 2012, and for the same reasons as discussed above, Plaintiff has not alleged sufficient facts to support a theory of equitable estoppel, fraud, or continuing violations. Accordingly, the section 1102.5 claim is barred by the statute of limitations.

2. Compliance with Tort Claims Act

The County also argues that Plaintiff’s section 1102.5 claim fails because she did not comply with the Tort Claims Act (Cal. Gov’t Code § 900 et seq., which requires “as a condition precedent to bringing suit for money or damages against a local public entity, the timely presentation to the defendant of a written claim and the rejection of that claim in whole or in part.” (Loehr v. Ventura Cty. Cmty. Coll. Dist. (1983) 147 Cal.App.3d 1071, 1078.) Here, because Plaintiff has failed to present any authority that exempts claims under Labor Code section 1102.5 from the Tort Claims Act, the demurrer is also sustained on this ground.

C. IIED Claim (Third Cause of Action)

Defendants William Fujioka, erroneously sued as Michael Fujioka, Joseph Charney, Ana Pembedjian, Gloria Molina, Zev Yaroslavsky, Don Knabe, and Michael Antonovich (collectively, “Individual Defendants”) demur to the IIED claim, which is also unopposed by Plaintiff.

1. Statute of Limitations

Individual Defendants argue that Plaintiff’s IIED claim is barred by the statute of limitations, which is two years after accrual of the claim. (Code Civ. Proc., § 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1449-1450.) An IIED claim accrues when the defendant’s conduct results in severe emotional distress. (Kiseskey v. Carpenters’ Tr. For So. Cal. (1983) 144 Cal.App.3d 222, 232.) Plaintiff alleges that she suffered severe distress while she was still employed by the County, prior to her retirement in December 2012. (See SAC ¶¶ 16(d).) As a result, Plaintiff’s IIED claim, filed in October 2017, is untimely, and the County’s demurrer is sustained without leave to amend.

2. Compliance with Tort Claims Act

The County further argues that Plaintiff’s IIED claim fails for failure to comply with the Tort Claims Act. Section 950.2 of the Tort Claims Act provides that a plaintiff may only sue a public employee for acts undertaken in the scope of employment if the plaintiff first presented a written claim to the public entity within six months of the accrual of a cause of action, as required by section 911.2. (Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 447.) A plaintiff must allege compliance with the Tort Claims Act in her pleadings, and failure to do so bars a civil suit. (C.A. Magistretti Co. v. Merced Irrigation Dist. (1972) 27 Cal.App.3d 270, 274-275.) Because Plaintiff failed to comply with the Tort Claims Act on her IIED claim, the demurrer to this cause of action is also sustained on this ground without leave to amend.

CONCLUSION

For the foregoing reasons, the County’s demurrer to the First, Second, and Fourth Causes of Action is SUSTAINED WITHOUT LEAVE TO AMEND. The Individual Defendants’ demurrer to the Third Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

The County is ordered to provide notice of this ruling.

DATED: February 27, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court