Judge: Gail Killefer, Case: 24STCV26432, Date: 2025-04-11 Tentative Ruling
Case Number: 24STCV26432 Hearing Date: April 11, 2025 Dept: 37
HEARING DATE: Friday, April 11, 2025
CASE NUMBER: 24STCV26432
CASE NAME: Priyanga Amarasekare
v. The Regents of the University of California, et al.
MOVING PARTY: Defendants The Regents of the
University of California
OPPOSING PARTY: Plaintiff Priyanga Amarasekare
TRIAL DATE: Not set.
PROOF OF SERVICE: OK
PROCEEDING: Motion to Strike First
Amended Complaint
OPPOSITION: 28 March 2025
REPLY: 4
April 2025
TENTATIVE: Defendant’s motion to strike is granted with
leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the
OSC RE: Amended Complaint for May 16, 2025, at 8:30 a.m. Defendant to give
notice.
Background
On October 10, 2024, Priyanga
Amarasekare (“Plaintiff”) filed this employment discrimination action against
her employer, the Regents of the University of California (“Defendant”).
The operative First Amended
Complaint (“FAC”) alleges four causes of action: (1) Discrimination in violation
of the FEHA, (2) Hostile Work Environment Harassment in violation of the FEHA,
(3) Retaliation in violation of the FEHA, and (4) Failure to Prevent
Discrimination, Harassment, or Retaliation in violation of the FEHA.
The Parties jointly stipulated to the
dismissal of the individual defendants and striking the request for punitive
damages.
Defendant now moves to strike the
FAC on the basis that certain allegations are time-barred. Plaintiff opposes
the Motion. The matter is now before the court.
LEGAL STANDARD
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 thereof.
(CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any
time in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of any pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford
v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not
essential to the claim is surplusage; probative facts are surplusage and may be
stricken out or disregarded”].)¿¿¿¿
“Where the defect raised by a motion to strike or by demurrer
is reasonably capable of cure, leave to amend is routinely and liberally
granted to give the plaintiff a chance to cure the defect in question.” (CLD
Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)
The burden is on the complainant to show the Court that a pleading can be
amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿
I. Request for Judicial Notice
The court may
take judicial notice of “official acts of the legislative, executive, and
judicial departments of the United States and of any state of the United
States,” “[r]ecords of (1) any court of this state or (2) any court of record
of the United States or of any state of the United States,” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Defendant requests judicial
notice of the following:
Exhibit
1: Plaintiff’s November 4, 2022, Charge of Discrimination filed with the
U.S. Equal Employment Opportunity Commission (“EEOC”) and California Department
of Fair Employment & Housing (“DFEH”), EEOC Charge No. 480-2023-00429.
Exhibit
2: November 4, 2022, California Department of Fair Employment & Housing
(“DFEH”) Notice to Complainant of Right to Sue regarding EEOC Charge No.
480-2023-00429.
Exhibit
3: October 10, 2024, California Civil Rights Department (“CRD”) Notice of
Case Closure and Right to Sue, CRD Matter No. 202410-26624011.
Defendant’s request for judicial notice is granted.
Plaintiff requests judicial
notice of the following:
Exhibit
1: A true and correct copy of Plaintiff’s “Charge of Discrimination” filed
with the EEOC and Department of Fair Employment and Housing, with received date
of November 4, 2022.
Exhibit
2: A true and correct copy of the Notice to Complainant and Respondent and
Notice to Complainant of Right to Sue, with filing date of November 4, 2022.
Exhibit
3: A true and correct copy of the EEOC Form 212-A Form to the California
Department of Fair Employment and Housing, with November 4, 2022 date of
receipt.
Exhibit
4: A true and correct copy of the Determination and Notice of Rights,
Determination of Charge and Notice of Right to Sue, dated October 10, 2023.
Exhibit
5: A true and correct copy of the EEOC Letter to University of California
Los Angeles, dated April 3, 2023, requesting information from Respondent for
the EEOC investigation.
Exhibit
6: A true and correct copy of the Email Communications between Plaintiff
and Investigator from the EEOC, dated July 31, 2023.
Exhibit
7: A true and correct copy of Plaintiff’s October 10, 2024 Complaint and
Right to Sue From the California Civil Rights Department.
Plaintiff’s request for judicial notice is granted.
II. Discussion
Defendant moves to strike the
allegations in Paragraph 19 subdivision (e) through (w) on the basis that these
allegations are time-barred.
A. Plaintiff’s
Claims are Subject to a Three-Year Statute of Limitations Under Gov. Code §
12960
“FEHA claims are governed by two statutory deadlines: section
12960 and section 12965.” (Acuna v. San Diego Gas & Electric Co.
(2013) 217 Cal.App.4th 1402, 1411.) On January 1, 2020, the Legislature
enlarged the time to file a FEHA claim from one year to three years from the
date of the challenged conduct as outlined in Labor Code § 12960. (Ramirez
v. Charter Communications, Inc. (2022) 75 Cal.App.5th 365, 374, fn. 3.)
Gov. Code § 12960(e)(5) requires an employee to file a FEHA
complaint with the California Civil Rights Department (“CRD)”, formerly the
California Department of Fair Employment and Housing (“DFEH”), within three
years of suffering an alleged adverse employment action. The CRD
has up to one year from the filing of the administrative claim to complete its
investigation and issue a right-to-sue letter. (Gov. Code, § 12965(c)(1)(A).) An employee has one year from the
issuance of the right-to-sue letter to file an lawsuit. (Gov. Code, §§ 12960(f)(1)(B);
12965(c)(1)(C); see Ramirez v. Charter Communications, Inc. (2022) 75
Cal.App.5th 365, 374; Campbell v. Los Angeles Unified School Dist.
(2024) 102 Cal.App.5th 151, 155.)
Defendant asserts that, according to Gov. Code § 12960(e)(5), any
adverse employment actions that occurred before November 4, 2019, are
barred by the three-year statute of limitations. (Defendants RJN, Ex. 1-2;
Plaintiff’s RJN Ex. 1-3.) Gov. Code § 12960(f)(3) states: “This subdivision is
not intended to revive claims that have already lapsed.” The fact that
Plaintiff’s EEOC charge asserted discrimination stemming since 2006 does not
mean that Plaintiff’s lapsed discrimination claims are revived by being
included in the complaint to the EEOC.
Plaintiff may only refer to past discriminatory acts under the
continuing violation doctrine, as discussed below.
B. The Continuing
Violation Doctrine Does Not Apply to Failure to Promote Claims where the
Plaintiff is on Notice that They Were Not Promoted
The California Supreme Court in Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798 (Richards) explained that the continuing violation
doctrine extends the limitations period for individual claims when acts inside
and outside the limitations period are: (1) sufficiently similar in kind; (2)
have occurred with reasonable frequency; (3) and have not acquired a degree of
permanence. (Id. at p. 823.)
Like the court in Willis v. City of Carlsbad (2020) 48
Cal.App.5th 1104, 1127 (Willis), this court may focus on the last
element of the continuing violation doctrine to determine if the claims alleged
in Paragraph 19 subdivisions (e) through (w) fall within the doctrine. Under
the third element, permanence “means
that an employer's actions make clear to a reasonable employee that any further
efforts to end the alleged unlawful conduct will be futile, or the employer ‘mak[es]
clear to the employee in a definitive manner’ that the employee's requests have
been rejected. [Citations.]” (Id. at p. 1127.)
The Willis Court found that
the continuing violation doctrine did not apply a failure to promote action
because permanence occurred each time the employee became aware they were not
promoted:
Willis unambiguously alleges that after City denied him
transfer and promotion in 2013, 2014 and early 2015, City hired a different,
less-qualified officer. There can be no other conclusion in view of that
allegation but that City’s independent promotion decisions each became
permanent when a different applicant was put in the position.
(Willis, supra, 48 Cal.App.5th at p. 1127.) “There
are no other allegations that suggest Willis could have perceived City’s
actions on these discrete job openings as anything other than definitive and
final.” (Id. at p. 1128.) “The fact Willis continued to apply for
promotions in response to new openings does not establish a lack of permanence
as to his past applications; we decline to hold his conduct in applying for
future jobs revived his claims of retaliation for the City's prior decisions.”
(Ibid.)
The allegations in Paragraph 19
subdivision (e) through (w) relate
to instances since 2009 where Defendant failed to promote Plaintiff by denying
her an acceleration that would have permitted her to advance at a faster pace while
Caucasian males received multiple accelerations.
(FAC, ¶ 19(e)-(w).) The FAC
asserts that Plaintiff was aware she was denied these accelerations, thus
establishing permanence.
The assertion that an employee’s
notice about the lack of promotion is not just supported by the cases cited in Willis
but also by the California Supreme Court in Pollock v. Tri-Modal
Distribution Services, Inc. (2021) 11 Cal.5th 918, 935. There, the Court stated “[t]he better view,
in light of the FEHA's purposes, is that such a claim does not accrue, and the
limitations period does not begin to run, until an aggrieved employee knows or
reasonably should know of the employer's decision not to promote him or her.”
For this reason, the court agrees
that allegations about the lack of promotion are not subject to the continuing
violation doctrine and should be stricken because they are time-barred.
Moreover, the fact that Plaintiff continued to apply for accelerations does not
mean that her lapsed claims are revived.
C. Plaintiff
Fails to Show that Discriminatory Conduct Occurring Outside of the Limitations
Period May be Admitted as Relevant Background Evidence
Plaintiff asserts that any
allegations in the Complaint that related to discriminatory conduct occurring
outside the limitations period is admissible as “relevant background” by
relying on a footnote cited in Alch v. Superior Court (2004) 122
Cal.App.4th 339, 374, fn. 30 (Alch) which cites National R.R.
Passenger Corp. v. Morgan (2002) 536 U.S. 101, 102 (Amtrak).
First, Alch is
distinguishable because it involves proving disparate treatment in a class
action suit under FEHA by establishing a pattern or practice of discriminatory
conduct. “‘Pattern-or-practice suits, by their very nature, involve claims of class
wide discrimination. Such claims involve an allegation that the defendant's
actions constitute a pattern of conduct in which the defendant intentionally
has discriminated against the plaintiff's protected class.’” (Alch, supra,
122 Cal.App.4th at p. 379.) The Alch court explained that the continuing
violation doctrine applies differently to class action suits because it hinges
on allegations of a systematic corporate policy of discrimination whereas an
individual suit asserts a series of discriminatory acts directed at an
individual. (Id. at pp. 268-370.) “The first seeks relief for
pervasive companywide discrimination against a protected class, and the second
involves a series of discriminatory acts, in most cases targeting a single
individual.” (Id. at p. 370.)
As this action is an individual
suit and not a class action, Plaintiff may only refer to past acts of
discrimination under the continuing violation doctrine established in Richard
and not as relevant background evidence. In other words, if “a series of
discriminatory acts against an individual constitute a continuing violation,
such that acts outside the statute of limitations may be used to establish the
employer's liability.” (Alch, supra, 122 Cal.App.4th at p.
370; see Carroll v. City and County of San Francisco (2019) 41
Cal.App.5th 805, 821 [“The [Alch] court distinguished the legal issues
presented in systemic discrimination cases from those at issue in cases such as
Richards where individual employees seek relief for discrimination
inside and outside of the limitations period.”].)
Similarly, Plaintiff’s reliance on
Amtrak is misplaced as it involved a Title VII suit and specifically held that barred claims
are not actionable and cannot be revived:
First, discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed
charges. Because each discrete act starts a new clock for filing charges
alleging that act the charge must be filed within the 180– or 300–day period
after the act occurred. The existence of past acts and the employee's prior
knowledge of their occurrence, however, does not bar employees from filing
charges about related discrete acts so long as the acts are independently discriminatory
and charges addressing those acts are themselves timely filed. Nor does the statute
bar an employee from using the prior acts as background evidence to support a
timely claim . . . While Morgan alleged that he suffered from numerous
discriminatory and retaliatory acts from the date he was hired through the date
he was fired, only those acts that occurred within the applicable 300–day
filing period are actionable. All prior discrete discriminatory acts are
untimely filed and no longer actionable.
(Amtrak, supra, 536
U.S. 101 at p. 102-103.)
At most, Amtrak supports
the assertion that a plaintiff may refer to prior acts in charges filed with
the EEOC/CRD but this does not mean that those past acts may be referenced in
the complaint of a lawsuit or that, if referenced in the EEOC/CRD charges, those
prior acts become actionable and are not time-barred.
The court agrees that unless the
continuing violation doctrine applies, Plaintiff may not refer to prior acts of
discrimination in the Complaint, as those claims are time-barred on their face.
The motion to strike is granted
with leave to amend.
Conclusion
Defendant’s motion to strike is
granted with leave to amend. Plaintiff is granted 10 days leave to amend. The
court sets the OSC RE: Amended Complaint for May 16, 2025, at 8:30 a.m. Defendant
to give notice.