2017-00221985-CU-WT

Maria Barraza vs. Volt Management Corp.

Nature of Proceeding: Hearing on Demurrer

Filed By: Egbert, Douglas M.

Defendant Volt Management Corp.’s demurrer to Plaintiff Maria Barraza’s complaint is sustained with leave to amend.

This matter was continued from March 9, 2018, to allow moving party to comply with CCP § 430.01. The moving party has now complied with CCP § 430.01.

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

First through Fourth Causes of Action (FEHA)

Defendant’s demur 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. 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. v. Superior Court (2002) 97 Cal.App.4th 109, 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.4 th 1607, 1613.)

Here, Plaintiff alleges that she “exhausted her administrative remedies for proceeding with her claims under the [FEHA]…by timely filing an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and receiving a Notice of Case Closure and Right to Sue Letter.” (Comp. ¶ 9.) Plaintiff attached the DFEH Complaint and Right to Sue Letter to the complaint. (Comp. Exh. A.) The DFEH Complaint is dated March 23, 2017 and the Right to Sue Letter is dated March 24, 2017. (Id.) However, the complaint alleges that she was terminated on or about October 30, 2015 or “[s]hortly thereafter.” (Id. ¶ 22.) Here, based upon Plaintiff’s own allegations and the exhibits attached to the complaint, Plaintiff had until October 30, 2016 to file her DFEH complaint. (Gov’t Code § 12960(d)(1).) However, her allegations and exhibits demonstrate that a DFEH complaint was not filed until March 23, 2017 approximately 5 months after the one year period expired.

In opposition, Plaintiff argues that the one year time period to file a complaint is subject to equitable tolling in numerous circumstances which suspends the limitations period. (E.g., Gov’t Code § 12965(d)(3).) 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].)

Plaintiff’s opposition cites to case law indicating that tolling is appropriate where the employee awaits the outcome of a pending EEOC investigation. (Mitchell v. State Department of Public Health (2016) 1 Cal.App.5th 1000, 1010-1011.) Government Code § 12965(d) and the cited cases, deal with the tolling of the one year statute of limitations to file a civil action after receiving a right to sue notice from the DFEH. In any event, there are no allegations that Plaintiff timely submitted an EEOC charge concurrent with any DFEH charge, or any other circumstances which would allow for the tolling of the time to file a DFEH complaint. Argument does not supplant the pleadings and required allegations contained therein.

Plaintiff argues that she timely filed her action because her DFEH complaint was accepted by the DFEH as referenced in an August 2, 2016, letter and the DFEH drafted a complaint which was sent to her in November 19, 2016. Apparently Plaintiff made an inquiry to the DFEH in August 2016, though there are no allegations in the complaint regarding the inquiry. As the complaint currently stands, there are no allegations demonstrating that the DFEH complaint was timely or that equitable tolling applies. There are no allegations in the complaint supporting the argument that the DFEH accepted her DFEH complaint on August 2, 2016. The August 2, 2016 letter is not referenced in the complaint and instead is attached to Plaintiff’s counsel’s declaration in opposition. The Court does not consider Plaintiff’s counsel’s declaration submitted in opposition to the instant demurrer. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79.) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

Here, the complaint alleges that Plaintiff was terminated on October 30, 2015 and the exhibits demonstrate that the DFEH complaint was not actually submitted to the DFEH until March 23, 2017. (Comp. Exh. A.) While it is true that the complaint also attached a November 19, 2016 letter from the DFEH indicating that Plaintiff filed an “inquiry” and was interviewed, that letter also states that Plaintiff was required to approve, sign, and return a complaint and that if she did not so within 10 days the inquiry would be closed and no further action taken. (Id.) The actual DFEH complaint was not signed until

March 23, 2017. (Id.) 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 administrative charge. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 158.) While Plaintiff argues that she was communicating with the DFEH regarding a DFEH complaint through March 2017, and that DFEH was conducting an investigation that whole time, no such allegations currently exist in the complaint. There are no allegations that Defendant was ever provided notice of any claim with the DFEH other than the March 23, 2017 complaint attached to the complaint and as set forth above, notice is a key factor in whether the doctrine applies. (McDonald, supra, 45 Cal.4th at 102.) Further, Plaintiff has not alleged that she had several remedies and reasonably pursued only one in good faith. Again, there are no allegations regarding her August 2016 inquiry or any legal forum in which Plaintiff was pursuing her claims against Defendant.

As currently pled, 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 reveals 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. Again, the timely filing of an administrative complaint is a prerequisite to FEHA civil action. (Medix Ambulance Serv., surpa, 97 Cal.App.4th at 116.)

Defendant argues that leave to amend should not be given because even if the allegations regarding the August 2016 inquiry were added, the allegations would not satisfy equitable tolling. However, leave to amend is given as this is the first challenge to the complaint and the Court is not yet convinced that Plaintiff will be unable to state a cause of action.

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.

Plaintiff simply argues that this cause of action is tolled for the same reasons the FEHA causes of action were tolled. But as set forth above, the complaint as currently pled lacks sufficient allegations of tolling,

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 April 19, 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.