Judge: Malcolm Mackey, Case: 20STCV00890, Date: 2023-01-05 Tentative Ruling

Case Number: 20STCV00890    Hearing Date: January 5, 2023    Dept: 55

ENGELS v. STATE OF CA, DEPT. OF CORRECTIONS AND REHAB.     20STCV00890

Hearing Date:  1/5/23,  Dept. 55

#9:   DEMURRER TO SECOND AMENDED COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiff

Summary

On 1/7/20, Plaintiff TRISTIN ENGELS filed a Complaint.

On 7/22/22, Plaintiff filed a Second Amended Complaint, alleging that Defendant retaliated against Plaintiff, after she reported acts of misconduct to Defendant, Defendant failed to engage in a good-faith interactive process or reasonably accommodate Plaintiff’s disability and discriminated and retaliated against Plaintiff based on her disability and whistleblowing.

MP Positions

Moving party requests an order sustaining the demurrer to the Fourth Cause of action for

Whistleblower Retaliation of the Second Amended Complaint, and granting the motion to strike, on grounds including the following:

·         Plaintiff failed to present a timely claim for the adverse employment actions that are not reflected by date and place of occurrence in her November 8, 2019 government claim, and that occurred more than six months before November 8, 2019, and any time after November 8, 2019. (Gov. Code, §§910, 911.2.)

·         Plaintiff untimely filed beyond six months the government entity claim for whistleblower retaliation on November 8, 2019, as to retaliatory events occurring before April 30, 2019.

·         Plaintiff filed her government claim on or about November 8, 2019, and alleged in her government claim and the SAC that the adverse employment actions occurred on or before April 30, 2019. (SAC, ¶101, Exh. 2, pp. 2-10; SAC, ¶¶10, 13-23, 25-40, 43-46, 48, 50, 63-64, 95-99.)

·         Plaintiff fails to allege that on September 27, 2019 she failed to submit her government claim with a $25 filing fee. Instead, Plaintiff attaches a November 6, 2019 letter from the Department of General Services stating that the documents Plaintiff submitted on September 27, 2019 did not comply with Government Code section 905.2, subdivision (c) as it failed to include the $25 filing fee. (SAC, ¶101, Exh. 2, p. 12.)  (Gov. Code, §§905.2, subds. (b)(3), (c) and (d)(1), 911.2, subd. (b)(1).)

·         This court lacks jurisdiction to consider Plaintiff’s Labor Code section 1102.5, non-FEHA claim, premised on alleged events or adverse actions that occurred outside the claims presentation period as reflected in Plaintiff’s November 8, 2019 government claim.

RP Positions

Opposing party advocates overruling, for reasons including the following:

·         On September 27, 2019, Plaintiff filed a government entity claim via certified mail against Defendant for retaliation in violation of Labor Code §1102.5(b). (Avrahamy Dec. ¶2 Exhibit A.) The government claim included retaliatory acts occurring within the six-month period of the filing of the claim.

·         Pursuant to Government Code §910.8, Defendant had 20 days to notify Plaintiff that the government entity claim was defective due to the lack of the filing fee, or waive any defense based on the defect. Government Code §910.   The letter was received on November 8, 2019, and on the same day Plaintiff cured the defect by refiling the government entity claim with the $25.00 fee. (Avrahamy Dec. ¶3 Exhibit C.)

·         Even if the Court considers that the effective date of filing of the government claim was November 8, 2019, the allegations contained on pages 8 and 9 of the government claim, were within the six-month period.  Pages 8 and 9 of the of the Government Entity Claim form were inadvertently omitted, which show some alleged retaliatory acts occurred within six months.

·         Retaliatory acts that occurred before April 27, 2019 are actionable under the continuing violation doctrine. Yanowitz v. L’Oreal USA Inc. 36 Cal. 4th 1028, 32 Cal. Rptr. 3d 436, 459, (2005).

·

·         Plaintiff alleged in the government claim that, in July of 2019, Defendant retaliated against her when it started an investigation into groundless charges of misconduct, to build up a case for her wrongful termination, giving Defendant sufficient notice of her claim within the government entity claim.

Tentative Ruling

The demurrer is sustained.

Twenty days’ leave to amend.

The Court finds a reasonable possibility of successful amendment, based on evidence attached to the opposition, and the notice of errata rejected by minute order dated 8/25/22, both proffered to add new dates for Court consideration.

“[L]eave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.”  Gami v. Mullikin Medical Ctr. (1993) 18 Cal. App. 4th 870, 876. 

Courts will not consider affidavits filed in opposition to a demurrer, but only the pleading and judicially noticeable matters.  Knickerbocker v. City of Stockton (1988) 199 Cal. App. 3d 235, 239.

A notice of errata has been treated as a motion for leave to file an amended document.  Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal. App. 5th 583, 594 n. 5. 

Causes of action are vulnerable to demurrers where the alleged factual basis for recovery is not fairly reflected in the written claim.  Stockett v. Assoc. of Cal. Water Agencies Joint Powers Ins. Auth. (2004) 34 Cal. 4th 441, 447.  A material variance between a government claim and a complaint based on a different set of facts from those set out in the claim, is a ground to bar a claim, and to sustain a demurrer, unless the allegations are additions of details or elaborations on the facts and fairly included within the facts in the claim.   Stevenson v. San Francisco Housing Authority (1994) 24 Cal. App. 4th 269, 275-78.

For purposes of calculating time limits for a government claim, the date of action accrual is the same date of accrual pursuant to the applicable statute of limitations.  Loehr v. Ventura County Cmty. College Dist. (1983) 147 Cal. App. 3d 1071, 1078.  If requirements for the continuing-violations doctrine exist to postpone accrual to a time within six months of government claim presentation, then a government claim may be timely, because the six-month claim period is triggered by accrual of the cause of action.  Willis v. City of Carlsbad (2020) 48 Cal. App. 5th 1104, 1124.  California courts have rejected arguments for limiting the continuing violations rule to only certain FEHA claims, and instead have referenced a liberal policy covering other claims.  See, e.g., Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1056 (rejecting argument to limit the rule to only harassment claims to the exclusion of discrimination and retaliation, stating "an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.").

“[A] claim under Government Code section 910 is sufficient if (1) there is ‘some compliance with all of the statutory requirements’; and (2) the claim discloses sufficient information to enable the public entity adequately to investigate the merits of the claim so as to settle the claim, if appropriate.”  County of L. A. v. Sup. Ct. (2008) 159 Cal. App. 4th 353, 360.  Government claims are sufficient in content where they provide sufficient information to enable public entities to investigate adequately, and are not required to identify causes of action, or to contain the detail required in pleading.  Kempton v. City of L.A. (2008) 165 Cal.App.4th 1344, 1350.