Judge: Daniel S. Murphy, Case: 20STCV02115, Date: 2023-10-23 Tentative Ruling

Case Number: 20STCV02115    Hearing Date: October 23, 2023    Dept: 32

BACKGROUND

            Plaintiff Jose De Anda initiated this employment discrimination action on January 16, 2020, asserting causes of action under FEHA for (1) failure to accommodate, (2) failure to engage in an interactive process, and (3) retaliation. Plaintiff filed the First Amended Complaint on September 18, 2020, asserting the same three causes of action. On January 13, 2021, the Court sustained Defendant’s demurrer to all three causes of action in the FAC without leave to amend and thereafter entered judgment accordingly. Plaintiff appealed.

            On April 7, 2023, the Court of Appeal issued an opinion affirming this Court’s order as to the first and second causes of action and reversed the order as to the third cause of action. The Court of Appeal acknowledged that the FAC as written exposed a statute of limitations issue as to the retaliation claim but held that Plaintiff had sufficiently articulated a potential cure through amendment. Specifically, the Court of Appeal agreed with Plaintiff that he could allege facts to support equitable tolling. The Court of Appeal declined to opine on whether Plaintiff had alleged sufficient facts to support a prima facie claim of retaliation.

            On July 5, 2023, Plaintiff filed the operative Second Amended Complaint, asserting a single cause of action for retaliation, the sole surviving claim. Plaintiff alleges that he was subjected to retaliation for reporting a racist remark made by his supervisor towards another coworker and for reporting a threat that the supervisor made against Plaintiff himself. (SAC ¶¶ 19-22.) The supervisor’s remarks and Plaintiff’s reporting occurred in April 2014, and the retaliation occurred over the following four months. (Ibid.) The retaliation consisted of unusual scrutiny, excessive workloads, unwarranted negative feedback, pretextual investigation and surveillance, public criticism, intimidation, failure to accommodate disability, and refusal to engage in an interactive process. (Id., ¶ 66.)

            On September 20, 2023, Defendant filed the instant demurrer and motion to strike as to Plaintiff’s SAC. Plaintiff filed his opposition on October 10, 2023. Defendant filed its reply on October 16, 2023.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) 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.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Jones Decl.)

DISCUSSION

I. Demurrer

            a. Statute of Limitations

            As discussed in this Court’s prior demurrer ruling and in the Court of Appeal opinion, the applicable statute of limitations is one year. Plaintiff admittedly did not file a DFEH complaint until February 2018, four years after the alleged retaliation. (SAC ¶ 9.) On its own, this would establish as a matter of law that the claim is time-barred.

            However, “[e]quitable tolling is a judicially created doctrine that, where applicable, will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’” (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 554-55.) The equitable tolling doctrine “applies ‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100.) “Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable tolling is automatic.” (Id. at p. 101.) Equitable tolling may extend to voluntary pursuits of other remedies, such as when “the employee and employer pursue resolution of any grievance through an internal administrative procedure.” (Id. at p. 108.)

When a plaintiff pursues internal administrative resolution of a grievance as to one claim, the defendant’s investigation of that claim will put it in a position to fairly defend against a second claim so long as the two claims are based on essentially the same set of facts. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 925.) In such a circumstance, the defendant is adequately protected from stale claims and deteriorated evidence so as to permit equitable tolling. (Ibid.) A plaintiff seeking the benefits of equitable tolling must show three elements: (1) timely notice, (2) lack of prejudice to the defendant, and (3) reasonable and good faith conduct on the part of the plaintiff. (Long, supra, 33 Cal.App.5th at p. 555.)   

Here, for Plaintiff to rely on other proceedings to toll the statute of limitations on his FEHA retaliation claim, the claims in the prior proceedings must have been similar enough to retaliation such that Defendant can fairly defend against the retaliation claim in this action. Plaintiff alleges that he participated in Defendant’s internal process to obtain a different position to escape the purported retaliation. (SAC ¶ 13.) Plaintiff also filed a worker’s compensation claim stemming from medical issues aggravated by the alleged retaliation. (Ibid.) As part of the worker’s compensation claim, Plaintiff’s physician recommended a change to a different department, presumably to get away from the retaliating supervisor. (Ibid.) Plaintiff alleges that his worker’s compensation claim and internal grievances were nearly identical to his DFEH claim. (Id., ¶ 17.)

When the allegations are read in context and interpreted liberally, they support a reasonable inference that Defendant’s investigation of the prior claims would have implicated evidence relevant to the retaliation claim. (See Collier, supra, 142 Cal.App.3d at p. 925 [“The critical question is whether notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim”].) “[T]he two ‘causes of action’ need not be absolutely identical.” (Ibid.) Additionally, DFEH misinformed Plaintiff that his complaint would be amended to include a retaliation claim. (SAC ¶¶ 10-11.) The Court of Appeal held that Plaintiff could allege equitable tolling by providing facts regarding the worker’s compensation claim and internal remedies pursued with DWP, as well as allegations regarding DFEH misleading Plaintiff. (Appeal Opinion, p. 18.) Plaintiff provides these facts in the SAC.

The Court of Appeal held that “these allegations, coupled with specific allegations concerning the racist remark De Anda reported to DWP, could conceivably cure the defect.” (Appeal Opinion, p. 18.) Defendant argues that the allegations are not coupled with “specific allegations” regarding the racist remark. The allegations regarding the racist remark are sufficiently specific for pleading purposes. (SAC ¶ 19.) The precise nature of the remark can be addressed in discovery. Lastly, Plaintiff has sufficiently alleged his reasonable and good faith conduct for pleading purposes. (SAC ¶ 13.) Therefore, the complaint adequately pleads equitable tolling. Whether equitable tolling actually applies is a factual issue. (See Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434 [“Equitable tolling is a fact intensive issue and it is determined based upon evidence”].)

b. Prima Facie Case

Defendant also argues that Plaintiff fails to allege facts supporting the elements of a prima facie case of retaliation. Specifically, Defendant argues that Plaintiff has not alleged an adverse employment action. An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) The allegations discussed above sufficiently support a reasonable inference that Plaintiff suffered an adverse employment action. (See, e.g., SAC ¶¶ 22-31, 66.) Plaintiff alleges that his supervisor’s actions “demoralized and distracted [him] to the point that he could no longer focus on his work duties.” (Id., ¶ 34.) These are “facts which evidence both a substantial and detrimental effect on her employment.” (See Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 512.)

II. Motion to Strike

            Defendant moves to strike allegations from the SAC that it contends relate solely to the dismissed causes of action. However, the allegations are relevant as background information regarding the events leading up to the purported retaliation. The paragraphs at issue also contain facts directly pertinent to the retaliation itself, such as whether Plaintiff suffered an adverse employment action. The challenged allegations, when read in context, describe a “course or pattern of conduct” that materially affected the terms of Plaintiff’s employment. (See Holmes, supra, 191 Cal.App.4th at p. 1063.) Plaintiff’s position and qualifications are also relevant. Additionally, facts about Plaintiff’s participation in internal procedures are relevant to Plaintiff’s equitable tolling theory, as discussed above. (See Appeal Opinion, p. 18 [facts relevant to equitable tolling include the fact that Plaintiff “worked within DWP’s internal administrative process to locate a reasonable accommodation”].)

            These allegations do not revive old claims, as Defendant contends, because it is undisputed that the failure to accommodate and failure to engage claims have been dismissed. Defendant is not liable for those claims as a matter of law. But allegations can be relevant to multiple causes of action.

CONCLUSION

            Defendant’s demurrer is OVERRULED. Defendant’s motion to strike is DENIED.