Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an employment dispute.  Plaintiff Elsie Coleman was employed by Defendant The Regents of the University of California (“the Regents”) as an administrative nurse II.  She claims she was terminated in retaliation for reporting incidents that endangered patient safety, a pattern which she claims began in October 2019, when Plaintiff issued a disciplinary memo against an employee who left his shift early without approval.  (Second Amended Complaint (“SAC”) ¶¶ 14-15.)   

After this memo, she claims Defendant Rakeisha Edmonson, a management services officer, began a retaliatory campaign against Plaintiff.  (Id. ¶17.)  Edmonson began micromanaging, overruling Plaintiff’s decisions, usurping her authority and complaining about the quality of her work.  (Id.)   

Plaintiff claims she would repeatedly observe and report patient care concerns, including underperforming or incompetent nurses, medication and charting errors, and nurses not performing their telemedicine phone calls.  (Id. ¶¶ 18-36.)  Plaintiff claims that as a result of her reporting, she was terminated.  (Id. ¶ 15.)  She also alleges she was subjected to discrimination and harassment because of her age (65) and race (Hispanic).  (SAC ¶2.) 

The operative complaint alleges nineteen causes of action for (1) age discrimination, (2) age harassment, (3) race discrimination, (4) race harassment, (5) failure to prevent, correct and remedy discrimination and harassment, (6) whistleblower retaliation in violation of Labor Code § 1102.5, (7) retaliation for engaging in protected activity, (8) whistleblower retaliation in violation of Labor Code § 6310, (9) whistleblower retaliation in violation of Health and Safety Code § 1278.5, (10) retaliation for complaints of discrimination and harassment, (11) failure to pay wages due, (12) failure to provide meal and rest breaks, (13) failure to pay overtime compensation, (14) failure to provide itemized and accurate wage statements, (15) waiting time penalties, (16) violation of Bus. & Prof. Code §17200, (17) wrongful termination, (18) intentional infliction of emotional distress, and (19) negligent infliction of emotional distress.  

This hearing is on the Regents’ demurrer to the first to sixth and tenth causes of action.  The Regents argues that (1) Plaintiff’s FEHA claims are time-barred as they were not filed within one year of receiving her right-to-sue notice, (2) Plaintiff’s sixth cause of action for whistleblower retaliation fails for failure to exhaust internal grievance procedures, and (3) Plaintiff’s FEHA claims fail because she has not alleged any facts showing she was discriminated against or harassed on the basis of her race or age.   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A general 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.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a general demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term “uncertain” means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendant submits the Declaration of Jenny Yu, which shows the parties met and conferred by telephone.  This satisfies the meet and confer requirements of § 430.41.   

REQUEST FOR JUDICIAL NOTICE 

The Regents requests judicial notice of (1) the University of California Whistleblower Protection Policy, (2) Plaintiff’s January 7, 2022 DFEH right-to-sue letter in DFEH Complaint number 202201-15770704, (3) Plaintiff’s May 13, 2021 DFEH right-to-sue letter in DFEH Complaint number 202105-13556614, and (4) Plaintiff’s responses to the Regents’ requests for admissions, set one.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(d), 452(h) and 453. 

DISCUSSION 

FEHA Claims 

The Regents argues that Plaintiff’s FEHA claims are time-barred.  The Court agrees. 

Plaintiff’s first through fifth and tenth causes of action all arise under FEHA.  Under FEHA, “the employee must exhaust the administrative remedy provided by statute by filing a complaint with the Department of Fair Employment and Housing … and must obtain … a notice of right to sue in order to be entitled to file a civil action in court”.  (Romano v. Rockwell Int’l Inc. (1996) 14 Cal.4th 479, 492.)   

Once a complainant receives her right-to-sue notice, she may bring a civil action within one year from the date of that notice.  (Gov. Code § 12965, subd. (b).)  The failure to comply with the statutory deadline to file a lawsuit causes the right “which previously arose and on which a suit could have been maintained to expire.”  (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949 (italics in original).) 

Here, Plaintiff received a DFEH right-to-sue letter on May 13, 2021.  (Ex. 3 to Request for Judicial Notice (“RJN”).)  The right-to-sue letter was issued on the basis of alleged race and age discrimination and harassment, failure to prevent discrimination and harassment, and retaliation on the basis of race and age discrimination and harassment.  (Id.)  Plaintiff was therefore required to file her lawsuit on these claims by May 12, 2022.  This lawsuit was not filed until January 6, 2023.  As such, Plaintiff’s FEHA claims are barred by Gov. Code §12965.  

The time-bar is not cured simply because Plaintiff subsequently filed a second DFEH complaint identifying the same issues raised in her May 13, 2021 complaint.  (Ex. 2 to RJN.)  Plaintiff’s claims are not revived by filing a new DFEH Complaint.  Any other result would render the statute of limitations meaningless because a plaintiff could always file successive and duplicative DFEH complaints to renew the statutory one-year period to file a lawsuit.   

Plaintiff argues that equitable tolling pauses the running of the statute of limitations.  The Court disagrees.  Equitable tolling is a judicially created doctrine that requires “a showing of three elements: ‘timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.’ [Citations.]”  (Mitchell v. State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1008.)  The third element is not met here.  Plaintiff requested DFEH immediately issue a right to sue letter in her May 13, 2021 DFEH Complaint.  The right to sue letter informed Plaintiff that DFEH had closed its file and that she was required to file a civil action within a year.  The only reasonable action was for Plaintiff to file a complaint, particularly as she was represented by counsel.  There was nothing left for the DFEH to do.  This is unlike cases which have found equitable tolling because investigations were ongoing.  (See, e.g., Downs v. Department of Water & Power (1007) 58 Cal.App.4th 1093, 1102.) 

Plaintiff also argues that to the extent equitable tolling does not apply, the Court should nonetheless allow her to bring claims asserted in her second right to sue letter that were not alleged in her first right to sue letter.  The only meaningful difference between the two DFEH complaints is that the latter makes claims of sex harassment-hostile environment, sex harassment-quid pro quo and disability discrimination and adds Robert Oye.  Defendant does not address this argument.  Notwithstanding, these claims are not alleged in the SAC, and therefore, there is no basis for the Court to conclude they survive a statute of limitations challenge.  

The Regents also argues that Plaintiff’s FEHA claims fail because the SAC does not allege any facts showing Plaintiff was discriminated against or harassed on the basis of a protected characteristic.  The Court agrees. 

The SAC alleges Plaintiff experienced a retaliatory campaign beginning on October 16, 2019, when she reported that another employee left work early without approval which resulted in understaffing.  (SAC ¶14.)  Plaintiff then allegedly experienced reprisals because she reported or complained about the poor performance of other co-workers.  (Id. ¶¶19-22, 29-36.)  These specific allegations control over the conclusory allegation that she was discriminated against or harassed because of her age and race.  (Stowe v. Firtzie Hotels (1955) 44 Cal.2d 416, 422 (“Where there is any inconsistency between the specific allegations upon which a conclusion must be based and the conclusion, the specific allegations control.”).)    

Plaintiff’s specific allegations show only that she was targeted for work-related complaints.  They do not support a claim that she was discriminated or harassed because of her age or national origin.  Not a single allegation in the SAC supports these claims.  Further, absent any allegation of race or age discrimination or harassment, the University cannot be liable for failing to prevent discrimination or harassment.  Similarly, without such allegations, Plaintiff cannot allege she was retaliated against for complaining about race or age discrimination.   

Plaintiff points to her two DFEH complaints to argue that she has properly alleged claims of race and age discrimination.  But the SAC controls, not the DFEH complaints.  In any event, the allegations in the DFEH complaints are similarly conclusory and unsupported by specific allegations.  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry, 2 Cal.4th at 967.)  

Accordingly, the Court sustains the demurrer to Plaintiff’s first through fifth and tenth causes of action.   

Whistleblower Claim 

The Regents argues that Plaintiff’s sixth cause of action for whistleblower retaliation in violation of Labor Code § 1102.5 fails for failure to exhaust internal grievance procedures.  The Court agrees. 

The rule of exhaustion of administrative remedies applies to claims under Labor Code § 1102.5.  (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)  “When a private association or public entity establishes an internal grievance mechanism, as the Regents has done, failure to exhaust those internal remedies precludes any subsequent private civil action.”  (Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 904.)   

Campbell v. Regents of University of Califiornia is instructive.  There, the Regents established a policy to handle complaints of retaliatory dismissal for whistleblowing.  The Campbell court concluded that “[b]ecause we may treat such a policy as equivalent to a statute in this action, and because the policy required [Plaintiff] to resort initially to internal grievance practices and procedures,” Plaintiff was required to first pursue the internal grievance procedures before she may file a lawsuit.  (Campbell, 35 Cal.4th 311, 321.)   Her failure to do so thus justified sustaining a demurrer to the pleadings without leave to amend.  (Id. at 333.) 

So it is here.  The University established an internal grievance policy requiring Plaintiff to submit a sworn statement and file a whistleblower retaliation complaint with the Regents within 12 months of the most recent act of retaliation she complains about.  (Ex. 1 to RJN.)  Plaintiff’s last act of retaliation was her termination, which occurred on March 4, 2021.  (SAC ¶¶ 37, 67.)  Plaintiff admits she did not submit a whistleblower retaliation complaint or a sworn statement regarding the retaliation within 12 months of her termination.  (Ex. 4 to Yu Decl., RFA Nos. 2, 4.)   

Plaintiff argues that her Labor Code §1102.5 claim is not barred because Labor Code §244 subd. (a) exempts her from exhausting administrative remedies.  Plaintiff’s argument has no merit. 

The California Court of Appeal has held that Labor Code §244, enacted after Campbell, did not act to overturn Campbell as it related to internal administrative remedy exhaustion requirements, but merely operated to clarify whether a Labor Commission claim was part of the administrative exhaustion requirement.  (Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 557-558.)  Section 244 subd. (a) “eliminated the requirement that a claim must first be brought before the Labor Commissioner before filing a civil action,” it did not overrule the Court’s “respect for internal grievance procedures and the exhaustion requirement where the Legislature has not specifically mandated its own administrative review process.”  (Id. at 558.)  Accordingly, Plaintiff’s §244 argument is without merit as it has been expressly rejected by the California Court of Appeal.   

Plaintiff also argues that if she was required to exhaust the University’s internal grievance procedure, she is entitled to conduct discovery to determine if the internal procedures were adequate or satisfied the standards for due process.  This argument is equally meritless. 

The rule requiring exhaustion of internal grievance procedures has important benefits: “(1) it serves the salutary function of mitigating damages; (2) it recognizes the quasi-judicial tribunal’s expertise, and (3) it promotes judicial economy by unearthing the relevant evidence and by providing a record should there be a review of the case.”  (Campbell, 35 Cal.4th at 322.)  These benefits would be eroded if the Court were to accept Plaintiff’s position that a plaintiff should be able to conduct discovery, based on nothing more than speculation and conjecture, that the internal grievance procedures are inadequate and therefore excuse plaintiff’s failure to comply with them. 

In any event, the University’s procedures have already withstood appellate scrutiny.  In Campbell, the court rejected the plaintiff’s argument that the University’s internal grievance procedure failed to provide an inadequate remedy.  (Id. at 323.) 

Plaintiff’s citations to Payne v. Anaheim Mem’l Med. Ctr. (2005) 130 Cal.App.4th 729 and Briley v. City of West Covina (2021) 66 Cal.App.5th 119 are unavailing.  In Payne, the Court concluded that the plaintiff did not have a right to any quasi-judicial internal process.  Therefore, he was not obligated to exhaust that remedy before proceeding in Court. (Id. at 744.)  Here, it is undisputed that the University had an internal grievance process which Plaintiff could have used to raise her whistleblower claims.   

In Briley, the quasi-judicial internal procedure was deemed inadequate because the officer in charge of reviewing the complaint was personally embroiled in the controversy.  (66 Cal.App.5th at 129.)  This created “an unacceptable risk of bias that excused Briley from exhausting this remedy.”  (Id.)  No such conflict exists here; the University’s procedures assign adjudication to an entirely different department.  (Ex. 1 to RJN.)  

Accordingly, the Court sustains the demurrer to Plaintiff’s sixth cause of action for violation of Labor Code §1102.5. 

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Defendant The Regents of the University of California’s demurrer without leave to amend, as there is no reasonable possibility for a successful amendment when a claim is time-barred or fails for exhaustion of remedies.   

 

DATED:  February 21, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court