Judge: Mark H. Epstein, Case: 23SMCV02312, Date: 2024-02-09 Tentative Ruling

Case Number: 23SMCV02312    Hearing Date: February 9, 2024    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND.  Plaintiff will have 30 days’ leave.

The court is concerned about the statute of limitations here.  To be timely, two things must be alleged.  First, that a claim was brought to the DFEH.  Second, suit must be filed within a year of issuance of the right to sue letter by the DFEH.  For claims that occurred before January 1, 2020, a plaintiff had one year to file with the DFEH.  For incidents that occurred after1/1/20, plaintiff has 3 years to go to the DFEH.  The incidents here seem to have occurred in 2019, so plaintiff had 1 year to go to the DFEH.  (It is not 100% clear that all of the conduct took place in 2019—the complaint is a bit vague on that.)

Plaintiff alleges that she filed a timely claim with the DFEH.  Although the actual claim is not attached, there is no requirement that it be attached and the court will presume that the allegation that it was timely filed will be sufficient.  That means that it must have been filed some time in 2019 or 2020.  Although the court is unsure when the notice to sue letter was issued, the complaint here was filed on May 17, 2023.  That means that the right to sue letter had to have been issued after May 17, 2022 for the complaint to be timely.  Plaintiff does not state when she filed her claim with the DFEH or when she obtained a right to sue letter, or even that the complaint was filed within a year of obtaining the letter.

Under these circumstances, plaintiff can and should do better.  Plaintiff alleges that she filed a timely claim with the DFEH.  The court will take that at face value given that this is a demurrer.  But plaintiff should allege when she obtained the right to sue letter, which will establish whether the complaint is timely or not at least in that regard.  Because of the lag time between when she likely went to the DFEH and when she filed the complaint, at least on its face it would appear that this action is not timely.

The court notes that this one might be a wobbler for demurrer purposes.  One might infer that plaintiff is claiming a timely filing even though it is not alleged, and at a minimum one could argue that because she does not list the date of the right to sue letter the potential untimeliness is not on the complaint’s face, which would preclude a demurrer.  But the court can read a calendar and take judicial notice of the dates thereon.  That is enough for the court to believe that plaintiff must do more than rely on silence to get by this demurrer.

Of course, if the right to sue letter was issued within a year of the date the complaint was filed, then the statute of limitations defense will fail.  On the other hand, if the letter was issued before that, then the complaint would appear to be out of time at least absent some form of tolling (which would have to be alleged).  Because this seems such an easy question to resolve, the court will require plaintiff to so plead.  If the action is clearly barred, better for everyone to know now rather than find out later.  If it is timely, then at least that issue is put to bed for good and all.

The court also turns to the emotional distress cause of action alleged only against Nyunt.  The statute of limitations on that cause of action is 2 years.  The allegations against Nyunt appear to have occurred well over two years before suit was filed, and therefore the demurrer on statute of limitations grounds is SUSTAINED WITH LEAVE TO AMEND.

Because the court is sustaining the demurrer on the statute of limitations ground, it need not, and does not, address the other issues raised in the demurrer.  Plaintiff might, however, want to think about those issues if and when she files her second amended complaint.  While defendant’s arguments on worker’s compensation exclusivity appear to be questions of law alone, plaintiff might want to consider bolstering the allegations to fortify the second amended complaint as against another demurrer.  The court is not saying plaintiff must do so—the court is not ruling that the present allegations are insufficient.  The court is merely saying that plaintiff might want to consider doing so.