2017-00221985-CU-WT

Maria Barraza vs. Volt Management Corp.

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Egbert, Douglas M.

Defendant Volt Management Corp’s demurrer to Plaintiff Maria Barraza’s first amended complaint is ruled upon as follows.

Defendant’s request for judicial notice is granted.

In this employment action, Plaintiff alleges FEHA related causes of action for disability discrimination, retaliation, failure to accommodate and failure to engage in the interactive process. She also alleges a cause of action for wrongful termination in violation of public policy.

The Court previously sustained Defendant’s demurrer with leave to amend of the basis that Plaintiff failed to timely exhaust her administrative remedies. The Court found that the allegations and the exhibits attached to the complaint show that Plaintiff was terminated on October 30, 2015, or “[s]hortly thereafter” and that the DFEH complaint was not filed until approximately 17 months later on March 23, 2017. The complaint therefore revealed that Plaintiff failed to timely exhaust her administrative remedies pursuant to Government Code § 12960(d)(1) by filing a complaint with the DFEH within

one year. As stated by the Court, the timely filing of an administrative complaint is a prerequisite to FEHA civil action. (Medix Ambulance Serv. v. Superior Court (2002) 97 Cal.App.4th 109, 116.) The Court noted that Plaintiff’s opposition referred to an August 2, 2016 inquiry to the DFEH and the DFEH accepting her complaint that same day but that there were no such allegations in the complaint and Plaintiff had not alleged any circumstances to demonstrate equitable tolling.

In the FAC, Plaintiff now alleges that she timely filed an online complaint with the DFEH on August 2, 2016 which was accepted by the DFEH that day. (FAC ¶ 25.) She alleges that she requested an investigation into her complaint which the DFEH began, including conducting a formal interview with her. (Id.) She attaches an “Acknowledgement of Inquiry Filing” from the DFEH as Exhibit A to the FAC. That document indicates that DFEH received her “inquiry” and identifies Plaintiff as the complainant and sets forth the facts related to her claim. Plaintiff alleges that she notified Defendant in September 2016 that she had retained counsel relating to her termination. (Id. ¶ 26.) She alleged that she was interviewed by the DFEH in fall of 2016 in furtherance of the investigation into her claim. (Id. ¶ 27.) She alleged that in March 2017 she inquired with the DFEH regarding the status of the investigation. She alleged that she was informed that the DFEH sent her a letter on November 19, 2016 containing a complaint for her to verify and was awaiting her response. Plaintiff alleged that she never received that letter. (Id. ¶ 28.) On March 24, 2017 Plaintiff requested that the DFEH terminate the investigation and requested a Right-to-Sue notice. (Id. ¶ 29.) Plaintiff alleged that based “upon the policies of equitable tolling and on reliance of DFEH’s representations that an investigation was timely being conducted, Plaintiff received the Right-to-Sue notice.” (Id.)

As it did with respect to the original complaint, Defendant demurs to the FAC on the basis that Plaintiff timely failed to exhaust her administrative remedies.

First through Fourth Causes of Action (FEHA)

Defendant’s demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

Defendant demurs to the first through fourth causes of action for FEHA violations on the basis that Plaintiff failed to timely exhaust her administrative remedies. An employee bringing a FEHA action may not sue an employer directly but must first file a complaint with the Department. (Gov’t Code § 12960; Rojo v. Kliger (1990) 52 Cal.3d 65, 88 [exhaustion of administrative remedy required for action on FEHA statute].) This section constitutes a statute of limitation. (International Union of Operating Engineers, Local No. 12. v. Fair Employment Practice Commission (1969) 276 Cal.App.2d 504, 509.) Thus, the one-year period is a statute of limitation on the filing of any civil action. (Gov. Code § 12965(d).) .) Generally, in FEHA actions, “[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred…” (Gov’t Code § 12960(d)

(1).) “Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [Department] and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Medix Ambulance Serv., supra, 97 Cal.App.4th at 116.) “It is the plaintiff’s burden to plead and prove the timely filing of the DFEH complaint.” (Jumaane v. City of Los Angeles

(2015) 241 Cal.App.4th 1390, 1402.) In the FEHA context, the failure to exhaust an administrative remedy is a jurisdictional defect. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.)

Defendant argues that because the FAC alleged that Plaintiff was terminated on October 30, 2015, she had until October 2016 to file a verified administrative complaint. Defendant argues that while Plaintiff alleged that she filed a complaint on August 2, 2016, the document attached to the FAC as Exhibit A shows that it was an unverified “inquiry.” To that end, it points out that the document is titled an “Acknowledgment of Inquiry Filing”, states that Plaintiff’s “inquiry has been received. Thank you for filing an inquiry…” (FAC Exh. A.) The November 2016 letter from the DFEH also states that “you have filed an inquiry” and that Plaintiff had to “approve, sign and return the complaint [emphasis added] before it can be investigated. If you do not approve the language on the complaint, please do not sign the compliant; instead, contact me to discuss your concerns. If you do not return the signed complaint within 10 days, your inquiry will be closed and no further action will be taken.” (FAC Exh. B [emphasis in original].) The DFEH sent Plaintiff a letter on March 9, 2017 stating that the DFEH closed her “pre-complaint inquiry” because she never returned a signed complaint. (RJN Exh. 1.) Defendant argues that Plaintiff’s “inquiry” was not sufficient to satisfy the verified complaint requirement.

As the Court stated in its previous ruling, Government Code § 12960(b) requires a “verified complaint” not an “inquiry.” “Moreover, it would not be practical to allow an employee to substitute unverified information relayed to the DFEH in correspondence, or orally, for a formal administrative charge.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1515.) Unverified oral or written information conveyed to the DFEH is not a substitute for a formal [verified] administrative charge. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 158.) The plain text of Government Code § 12960(b) requires a “verified” complaint. Indeed, as a mandatory precondition to filing a lawsuit based on a violation of the FEHA, an aggrieved party, within one year after the date the alleged unlawful practice occurred, must file with the DFEH a verified administrative complaint in writing which identifies the perpetrator(s) and describes the particulars of the offense(s) and must obtain from the DFEH a notice of right to sue. (Gov. Code, §§ 12960, 12965, subd. (b).)

In opposition Plaintiff argues that her online submission to the DFEH on August 2, 2016 was a formal complaint. Plaintiff cites no case law supporting this assertion. Rather she cites to a number of regulations, none of which support her argument. First she cites to 2 § CCR 10007 which states that in determining whether it has jurisdiction over the conduct at issue about which a person seeks to complain, the DFEH shall screen “pre-complaint inquiries requesting investigation by conducting an intake interview” and that the DFEH shall provide persons “who file a pre-complaint inquiry with a confirmation of the receipt of their inquiry. The department will contact persons who have filed a pre-complaint inquiry to conduct or schedule an intake interview.” (2 CCR § 10007(a), (b).) That regulation shows that DFEH accepts pre-complaint inquires, which is what is referred to in Exhibit A to the FAC, not that an inquiry is a complaint. Indeed, the cited regulation makes a clear and unambiguous distinction between “pre-complaint inquires” and the “complaint.” 2 CCR § 10007 (c) provides, in part, that persons for whom an intake appointment has been made should prepare to provide the department with (1) the name, address, (etc.) “of the person seeking to file the complaint.” And (2) the name, and address (etc.) “of the entity or person against whom the individual wishes to file a complaint.” 2 CCR § 10007 (d)

provides that “The department shall liberally construe the facts alleged by a potential complainant when evaluating whether to accept a complaint.” Again, this language would plainly appear to indicate that the inquiry is not a “complaint.” On the facts alleged and the attached exhibit, the Court cannot find the inquiry to be a complaint. Plaintiff proffers no authority for this proposition.

2 CCR § 10009 indicates that the DFEH shall draft the language of the complaint filed for investigation on a complaint form prescribed by the DFEH. Once drafted, the complaint is verified by the complainant. 2 CCR § 10010 provides that if the statute of limitations would expire before an intake interview could be scheduled and completed, the DFEH can initiate the intake interview by phone or waive the intake process and accept a complaint for investigation using a written statement or correspondence from the complainant verified under penalty of perjury. (2 CCR § 10010.) That regulation does not indicate that a pre-filing inquiry that has not been verified under penalty of perjury can somehow constitute a formal complaint. Plaintiff has not alleged that her pre-filing inquiry was verified under penalty of perjury. Plaintiff also cites to Government Code § 12930(f) but that section only indicates that the DFEH has certain functions, powers, and duties, including to receive and investigate complaints. Gov’t Code § 12965(b) deals with the ability of the DFEH to bring a civil action after the complaint has been filed and the ability of the complainant to receive a right to sue notice.

In short, Plaintiff has not cited any authority which would support her argument that her August 2, 2016 pre-filing inquiry constitutes a verified administrative complaint required by Government Code § 12960(b). Plaintiff’s own exhibits summarized above make clear that Plaintiff filed an inquiry and not a complaint. In fact, Exhibit C to the FAC contains the actual verified administrative complaint which was signed and verified on March 23, 2017. It would be anomalous to conclude that the August 2, 2016 pre-filing inquiry constitutes a complaint for purposes of Government Code § 12960(b) in light of all the DFEH communications indicating its receipt of her “inquiry” and discussing the need to approve and sign a complaint and Plaintiff’s subsequent filing of an actual verified administrative complaint .

Plaintiff is correct that the exhibits attached to her FAC indicate that the DFEH did not contact her regarding the need to approve and sign a complaint until November 19, 2016, which was after the statute of limitations to file an administrative complaint had expired. (FAC Exh. B.) That may be the case, but that does not mean that the on-line inquiry from August 2, 2016 constituted a complaint for purposes of Government Code

§ 12960(b). As noted above 2 CCR § 10010 provides that if the statute of limitations would expire before an intake interview could be scheduled and complaint, the DFEH can accept a complaint for investigation using a written statement or correspondence from the complainant verified under penalty of perjury. (2 CCR § 10010.) But the FAC contains no allegations that this occurred. The Court notes that 2 CCR § 10018 provides that the one-year time limit for filing a complaint “may be tolled where the department misleads the complainant about filing obligations, commits errors in processing the complaint, or improperly discourages or prevents the complainant from filing at all.” (2 CCR § 10018.) To the extent that Plaintiff is suggesting that the DFEH’s November 19, 2016 letter demonstrated that the DFEH made an error in processing or that the DFEH misled Plaintiff with respect to filing requirements, there are no such allegations in the FAC.

Plaintiff also attempts to distinguish the cases cited by Defendant for the proposition

that unverified information is not a substitute for a formal administrative charge. (E.g,., Cole, supra, 47 Cal.App.4th 1505, 1515; Wills, supra, 195 Cal.App.4th 143, 158.) Plaintiff argues that none of the cases involved a detailed on-line submission. This is a distinction without a difference as the cases made clear that a formal charge was required.

While the Court concludes that the on-line inquiry was not a formal administrative complaint for purposes of Government Code § 12960(b), this does not end the Court’s necessary analysis.

Defendant next argues that equitable tolling does not apply. Equitable tolling of the statute of limitations is a judicially created non-statutory doctrine. (Elkins v.Derby (1974) 12 Cal.3d 410.) It is “designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations – timely notice to the defendant of the plaintiffs claims has been satisfied.” (Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App.3d 1) Where applicable, the doctrine will “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370). The doctrine of equitable tolling rests upon the reasoning that a claim should not be barred unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed. Equitable tolling relieves the plaintiff from the bar of a limitation statute when, possessing several legal theories she, reasonably and in good faith pursues one designed to lessen the extent of the injuries or damage. (Cervantes v. City of San Diego (9th Cir 1993) F.3d 1273.) Equitable tolling requires a showing of: (1) timely notice to the defendant; (2) lack of prejudice to the defendant; and (3) reasonable and good faith conduct on the part of the plaintiff. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 102.) In addition, application of equitable tolling is only appropriate if the plaintiff “has satisfied the notification purpose of a limitations statute.” (Id, at 102.) Application of the doctrine must not compromise a defendant’s “signification ‘interest in being promptly apprised of claims against them.’” (Id. at 100.) Further, equitable tolling applies “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” (Id. [citations omitted].)

Here Plaintiff argues that equitable tolling applies because she filed an inquiry, requested an investigation and was awaiting a response from the DFEH. She claims that she has alleged that she provided timely notice to Defendant prior to the expiration of the statute of limitations, that there is no prejudice to Defendant and that she has acted reasonably and in good faith.

First, the Court agrees that Plaintiff has not adequately alleged that she provided notice to Defendant. To that end, Plaintiff alleged that in September 2016 “Plaintiff notified Defendant that she had retained legal counsel relating to her wrongful termination.” (FAC ¶ 26.) However, there is no allegation that Plaintiff actually informed Defendant that she had filed an inquiry with the DFEH. The “notice interest is satisfied by the filing of the first proceeding that gives rise to tolling.” (McDonald, supra , 45 Cal.4th at 100.)

In addition, as discussed above, the equitable tolling doctrine generally applies where the plaintiff has multiple legal remedies and pursues one reasonably and in good faith. (McDonald, supra, 45 Cal.4th at 100.) The FAC is devoid of any allegations that Plaintiff had multiple legal remedies and pursued one reasonably and in good faith.

Indeed, the FAC involves a single legal remedy, that is, Plaintiff’s attempt to pursue an administrative complaint with the DFEH. There are no allegations that Plaintiff was, for example, pursuing claims with the EEOC and the DFEH. (Mitchell v. State Department of Public Health (2016) 1 Cal.App.5th 1000, 1010-1011 [tolling appropriate where an employee awaits outcome of pending EEOC investigation].) Plaintiff argues in opposition that the cases simply indicate that “generally” a plaintiff must have multiple legal remedies for equitable tolling to apply, not that this is always so. Plaintiff, however, cites no case showing that this factor is not required.

As the Court noted above, Plaintiff seems to imply in her papers that the DFEH misled her or made a mistake. There is case law recognizing that equitable considerations may excuse noncompliance with exhaustion under FEHA where the failure to comply can be attributed to the DFEH. (Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1233-134 [disapproved on other grounds in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143].) Defendant argues that in order to invoke this principle Plaintiff was required to allege that (1) she diligently pursued her claim; (2) was misinformed or misled by the administrative agency responsible for processing her charge; (3) relied on the misinformation or misrepresentations of the agency causing her to fail to exhaust her administrative remedies; and (4) was acting pro se at the time. (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 901-902.) Defendant argues that Plaintiff alleged that she retained counsel in September 2016 so she cannot satisfy this exception. Rodriquez, however, did not lay down any specific rule. Rather it stated that “[a]lthough there is no formula for doing so, prior cases have set forth some factors meriting consideration” and then listed the four factors cited by Defendant. In any event, Plaintiff has not currently alleged that she was misled or misinformed by the DFEH and thus the Court cannot evaluate this potential exception. The Court will, however, grant leave to amend.

In short, the Court concludes that as currently pled, the first through fourth causes of action remain deficient as Plaintiff has failed to adequately allege that she timely exhausted her administrative remedies as the allegations and the exhibits attached to the FAC show that Plaintiff was terminated on October 30, 2015, or “[s]hortly thereafter” and that the DFEH complaint was not filed until approximately 17 months later on March 23, 2017. In addition, Plaintiff has failed to allege facts to demonstrate tolling.

While the Court previously gave leave to amend and Plaintiff has yet to remedy the defects, the Court will again grant leave to amend as the Court is not convinced that Plaintiff will be unable to cure the defects as a matter of law.

Fifth Cause of Action (Wrongful Termination in Violation of Public Policy)

Defendant’s demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

Code of Civil Procedure § 335.1’s two year statute of limitations applies to claims for wrongful termination in violation of public policy. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382-1383.) Here Plaintiff alleged that she was terminated on October 30, 2015 yet the complaint was not filed until November 8, 2017, more than two years later. The Court previously sustained the demurrer on this basis.

Plaintiff does not specifically address this cause of action in her opposition. The Court is granting leave to amend given that leave to amend is given on the other causes of action.

As a result, the demurrer is sustained in its entirety with leave to amend.

Where leave was given Plaintiff may file and serve an amended complaint no later than July 5, 2018. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.