Judge: Christopher K. Lui, Case: 24STCV01844, Date: 2024-06-06 Tentative Ruling

Case Number: 24STCV01844    Hearing Date: June 6, 2024    Dept: 76

            Plaintiff alleges he suffered racial harassment and discrimination by his supervisor and was retaliated against for complaining to human resources.

Defendant North American Security and Investigations, Inc. demurs to the First Amended Complaint.

TENTATIVE RULING

Defendant North American Security and Investigations, Inc.’s demurrer to the First Amended Complaint is OVERRULED as to the fifth cause of action.

Defendant is ordered to answer the First Amended Complaint within 10 days.

ANALYSIS

Demurrer To First Amended Complaint

Meet and Confer

            The Declaration of Kimberly A. Westmoreland reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Discussion

Defendant North American Security and Investigations, Inc. demurs to the First Amended Complaint.

1.         Fifth Cause of Action (Retaliation in Violation of Labor Code, § 1102.5).

            Labor Code § 1102.5(b) prohibits an employer from retaliating against an employee for disclosing information to a person with authority over the employee or another employee who has the authority to investigate, discovery or correct the violation of noncompliance of a state or federal statute, rule or regulation.

            Defendant argues that this cause of action is time-barred by the three-year of statute of limitations set forth in Civ. Proc. Code, § 338(a), because Plaintiff alleges that his employment ended on October 29, 2020, yet he did not file his Complaint in this action until January 24, 2024.

            Plaintiff argues that the statute of limitations was tolled during the time that Plaintiff’s charge with the EEOC was pending until Plaintiff received a Right-To-Sue letter from the EEOC.

            The Court finds Plaintiff’s argument to be persuasive.

Equitable tolling allows a plaintiff who has a choice of legal remedies to pursue one remedy without simultaneously pursuing another remedy. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99–100 [84 Cal. Rptr. 3d 734, 194 P.3d 1026] (McDonald); California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1593–1594 [126 Cal. Rptr. 3d 160].) The doctrine relieves the plaintiff claiming employment discrimination from the hardship of pursuing duplicate and possibly unnecessary procedures to enforce the same rights or obtain the same relief. (Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1100 [68 Cal. Rptr. 2d 590].)

The equitable tolling doctrine generally requires a showing that the plaintiff is seeking an alternate remedy in an established procedural context. (See McDonald, supra, 45 Cal.4th at pp. 102–104; Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1082.) Informal negotiations or discussions between an employer and employee do not toll a statute of limitations under the equitable tolling doctrine. (See 65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1063 [83 Cal. Rptr. 2d 40].) Acuna does not allege any facts showing she was pursuing an alternate remedy that excused her from timely filing her administrative claim and/or from filing her lawsuit.

 [*1417] 

Moreover, the equitable tolling doctrine is inapplicable once the employee is on notice that his or her rights had been violated and that her alternate remedies will be unsuccessful. (Richards, supra, 26 Cal.4th at p. 814.) As discussed above, Acuna acknowledged that by February 2007 she understood that SDG&E was refusing to accommodate her disability and was not interested in informally resolving her claims.

(Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416-17 [bold emphasis added].)

“As the name suggests, equitable estoppel is an equitable issue for court resolution.” (Hoopes v. Dolan, supra, 168 Cal.App.4th at p. 161; see C & K Engineering Contractors, supra, 23 Cal.3d at p. 9 [“equitable estoppel may be tried by the court without a jury”].)

. . .  [*746] . . .

 “The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. [Citations.] 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 plaintiff's claims—has been satisfied.’ [Citation.] Where applicable, the doctrine will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’ [Citation.]” (McDonald, supra, 45 Cal.4th at p. 99.)

In Elkins v. Derby (1974) 12 Cal.3d 410, 414 [115 Cal.Rptr. 641, 525 P.2d 81] (Elkins), the Supreme Court held that the doctrine of equitable tolling may apply to toll the statute of limitations on a claim during the period in which a plaintiff pursues another remedy for the harm that the plaintiff suffered. The Elkins court adopted a line of cases in which courts had concluded that “if the defendant is not prejudiced thereby, the running of the limitations period is tolled ‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’” (Id. at p. 414, quoting Myers v. County of Orange (1970) 6 Cal.App.3d 626, 634 [86 Cal.Rptr. 198] (Myers).)

. . . [*747]  . . .

The Elkins court reasoned that the primary purpose of a limitations statute is to “‘(prevent) surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’” (Elkins, supra, 12 Cal.3d at p. 417, quoting Telegraphers v. Ry. Express Agency (1944) 321 U.S. 342, 348–349 [88 L.Ed. 788, 64 S.Ct. 582].) According to the Elkins court, that purpose is “normally satisfied when the defendant receives timely notification of the first of two proceedings.” (Elkins, supra, at p. 416, fn. 3.)

In the wake of Elkins, the California Supreme Court has stated that in order to prove the applicability of the equitable tolling doctrine, a party must establish “three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’ [Citations.]” (McDonald, supra, 45 Cal.4th at p. 102.) “‘“The timely notice requirement essentially means that the first claim must have been filed within the statutory period. Furthermore[,] the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim. Generally this means that the defendant in the first claim is the same one being sued in the second.” [Citation.] “The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second.” [Citation.] “The third prerequisite of good faith and reasonable conduct on the part of the plaintiff is less clearly defined in the cases. But in Addison v. State of California [(1978)] 21 Cal.3d 313 [146 Cal.Rptr. 224, 578 P.2d 941][,] the Supreme Court did stress that the plaintiff filed his second claim a short time after tolling ended.” [Citation.]’ [Citation.]” (McDonald, supra, at p. 102, fn. 2.)

(Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745-47 [bold emphasis added].)

            Here, at least a part of Plaintiff’s Labor Code, § 1102.5 whistleblower claim is based on a series of retaliatory conduct which occurred before he was terminated[1], including immediately after he complained to Human Resources on August 27, 2019. (See 1AC, ¶¶ 11 -  24.) Plaintiff alleges that on July 15, 2020, he filed with complaint with the Equal Employment Opportunity Commission concerning the statement Lieutenant Figueroa made and the repeated issues of unsubstantiated reprimands in retaliation for making a complaint. (1AC, ¶ 25.) Plaintiff was terminated on October 29, 2020, but negotiated to have is position reinstated. (Id. at ¶ 32.)

            Plaintiff alleges that after the EEOC attempted reconciliation for three and one-half years, the parties were unable to come to an agreement and Plaintiff received a Right-to-Sue letter on December 5, 2023, against North American. (1AC, ¶ 40; Exh. A.) Plaintiff filed his Complaint in this action on January 24, 2024.

            The foregoing facts pled in the 1AC are sufficient to satisfy the elements of timely notice, lack of prejudice to defendant, and reasonable and good faith conduct on the part of the plaintiff. Plaintiff’s EEOC complaint was filed within the statutory period, the EEOC claim alerted defendant of the need to investigate underlying facts, and Plaintiff filed this Complaint a little less than 2 months after receiving the right-to-sue letter from the EEOC.

            Courts have found that filing a complaint with the EEOC justifies application of the equitable tolling doctrine in the context of a FEHA claim.  (Mitchell v. State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1010.)

            In that the application of equitable tolling of the statute of limitations is a question for the Court, the Court finds there are sufficient facts pled to justify application of the equitable tolling doctrine at this stage of the pleadings.

            As such, the demurrer to the fifth cause of action is OVERRULED. Defendant is ordered to answer the First Amended Complaint within 10 days.