Judge: Jon R. Takasugi, Case: 21STCV22100, Date: 2022-09-28 Tentative Ruling

Case Number: 21STCV22100    Hearing Date: September 28, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer to the first cause of action is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND.

On 6/11/2021, Plaintiff Johnnie Mcgee (Plaintiff) filed suit against Defendant County of Los Angeles (County). On 6/17/2022, Plaintiff filed a third amended complaint (TAC) against Defendant, alleging: (1) discrimination; (2) harassment; (3) retaliation; (4) failure to prevent discrimination, harassment, and retaliation; and (5) failure to pay overtime wages.

Now, Defendant demurs to Plaintiff’s first cause of action.

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 (Hahn).) ¿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 via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (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.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Discussion

            The County argues that Plaintiff’s first cause of action is time-barred. Specifically, the County argues that Plaintiff alleges that he was discriminated against in 2017, yet did not file his charge with the Department of Fair Employment and Housing (DFEH) until 2021.

Here, Plaintiff’s first cause of action is based on allegations that he was wrongfully denied a promotion to the rank of Fire Prevention Engineering Assistant Two (FPEA2) based on both his race (African American) and his age (48 years old). (Complaint ¶ 9.)

An employee must exhaust the administrative remedy by filing a complaint with the DFEH and must obtain a notice of right to sue to be entitled to file a civil action based on FEHA violations. (Gov. Code §§ 12960, 12965 (b); Rojo v. Kliger (1990) 52 Cal.3d65, 88; Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. (Gov. Code § 12960; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63; Romano v. Rockwell Internat, Inc. (1996) 14 Cal.4th 479, 492.)

With limited exceptions, this administrative complaint must be filed within “one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .” (Gov. Code § 12960(d); Romano, supra, 14 Cal.4th at 492.) Failure to timely and sufficiently follow these requirements is a jurisdictional defect and thus grounds for dismissal. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.)

            Here, Plaintiff alleges that in 2017, he was wrongfully denied promotion to the rank of Fire FPEA2 based both on his race and age. (TAC, ¶ 12.) Plaintiff, therefore, must have filed his DFEH complaint in 2018 or one-year after the alleged unlawful act occurred. (Gov. Code § 12960(d); Romano, supra, 14 Cal.4th at 492.) Plaintiff, however, alleges that he filed his DFEH complaint on May 4, 2021. (TAC, ¶ 6.)

            As such, Defendant argues that Plaintiff’s FEHA Charge is untimely. In so arguing, Defendant argues that neither Assembly Bill (AB) 9, the continuing violation doctrine, or equitable tolling works to save either claim.

As to the first contention, AB 9, which extended the statutory period to file a DFEH Complaint from 1 to 3 years, was applicable as of January 1, 2020, and specifies that “it shall not interpreted to revive lapsed claims.” (AB 9, Sec. 3.) Defendant argues that, “AB 9, therefore, does not apply to Plaintiff’s claim for failure to promote because the limitations period lapsed in 2018, prior to December 31, 2019. Indeed, even if AB 9 applied in this case, the claim would still be barred given that 3 years prior to May 2021 is May 2018, and the failure to promote issues in Plaintiff’s complaint occurred in 2017.” (Motion, 5: 9-12.)

            As to second, under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into the covered period. The continuing violation doctrine requires proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 850-851.)Therefore, when no act occurs within the statutory period prior, the continuing violation doctrine does not apply, and the employee’s claim is time barred. (Trovato v. Beckman Coulter, Inc. (2011) 191 Cal.App.4th 319, 326; see also Acuna v. San Diego Gas & Elect. Co. (2013) 217 Cal. App.4th 1402, 1417 [a plaintiff cannot “revive” expired discrimination claim by filing a new DFEH complaint, years after the alleged discrimination occurred].) Here, Defendant argues that “Plaintiff has not alleged and cannot allege that any unlawful acts related to his failure to promote in 2017, occurred inside the statutory period, i.e., in 2020, so the continuing violation doctrine is inapplicable, and the doctrine articulated in Acuna is applicable here.” (Demurrer, 6: 1-6.)

            As to the third, Plaintiff acknowledges that he filed a grievance in 2017 to contest the process for how the Candidates were selected for promotion. (TAC, ¶ 16.) Plaintiff states the grievance was summarily denied and although an internal investigation followed, the County ultimately concluded McGee’s grievance/complaint to be unsubstantiated. (TAC, ¶ 16.)

Moreover, the Court in Wassmann v. South Orange County Community College Dist., supra, 24 Cal.App.5th at 850-851 expressly found that an employee’s pursuit of one remedy for a wrong (i.e., the grievance over the promotional process), does not negate the requirement to file a DFEH Charge for a remedy not provided for the same injury. Specifically, the Court held:

Wassmann's pursuit of administrative remedies for the termination of her employment did not toll the time for filing a complaint with the DFEH for discrimination and harassment leading to other injuries. The time for filing a DFEH complaint is equitably tolled while the employee pursues an administrative remedy, whether or not exhaustion of that remedy is a prerequisite to filing suit. (McDonald, supra, 45 Cal.4th at pp. 96, 106-108.) However, in her administrative proceeding, Wassmann pursued a remedy only for the termination of her employment and not for any other injury brought about by the Defendants' allegedly unlawful conduct. If Wassmann had claims of injury other than loss of employment, she had to file a DFEH complaint on those claims within one year of when the injury occurred.

            Finally, Plaintiff has not presented any authority that would support the idea that Plaintiff’s second grievance, filed in 2020, but arising out the same failure to promote exam in 2017, would revive this lapsed claim. The recent Supreme Court decision Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918 strongly suggests otherwise. In Pollock, the Supreme Court found the limitations period to file an administrative complaint based on failure to promote begins to run when the aggrieved employee knows or reasonably should know of the employer’s decision not to promote them, indicating “what starts the clock is the employee’s actual or constructive knowledge of the employer’s decision.” (Id. at p. 939.) This approach, the Court stated, “protect[s] defendants from the necessity of defending stale claims and require[s] plaintiffs to pursue their claims diligently.” (Id. at p. 941.) Therefore, the statute of limitations on Plaintiff’s claim based on his failure to promote in 2017, ran before he ever submitted his second grievance or filed a charge with the CPOE in 2020.

            In opposition, Plaintiff cites McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947 for the proposition that Plaintiff has not waived his claims. In McCaskey, Plaintiff brought a lawsuit after being fired in 2005 because of a discriminatory scheme that Plaintiff’s employer had introduced in 2001. (McCaskey, supra, 189 Cal.App. at p. 953-955.) As such, in McCaskey, the Plaintiff’s conduct in not bringing a DFEH complaint within the statutory period was excusable, as it was not until 2005 that he became aware of the extent of the damage of the events that occurred in 2001. The event was the termination in 2005. Such is not the case here – Plaintiff was aware of his alleged discriminatory failure to promote since 2017, yet failed to bring his DFEH claim within the limitations period. Plaintiff has not alleged any facts, or set forth any persuasive authority, to indicate that the statute of limitations for the 2017 failure to promote claim was tolled. 

The Court agrees that Plaintiff’s first cause of action appears to be time-barred on its face.

Based on the foregoing, Defendant’s demurrer to the first cause of action is sustained. Given that all prior amendments have been pursuant to agreement between the parties, the Court grants leave to provide one final opportunity for Plaintiff to allege facts which could show that the claim is not time-barred.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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