Judge: Michael Small, Case: 19STCV45102, Date: 2023-06-22 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 19STCV45102    Hearing Date: August 17, 2023    Dept: 57

Reza Ali Jazirehi is a cancer researcher.  For over a decade, Jazirehi worked in the laboratory of Dr. James Economou at the University of California of Los Angeles ("UCLA").  Jazirehi was terminated from his job in Economou's laboratory after an internal investigation conducted by UCLA concluded that Jazirehi had committed research misconduct. 

Jazirehi sued the Regents of the University of Southern California (“the Regents”), challenging the propriety of his termination from Economou’s laboratory.  Jazirhei's current operative pleading is his Second Amended Complaint (“SAC”).  The first cause of action in the SAC is for whistleblower retaliation in violation of Labor Code section 1102.5.  The Court previously granted the Regents’ motion for summary adjudication as to that cause of action. 

Pending before the Court is the Regents’ demurrer to the remaining five causes of action in the SAC, all of which are asserted under the Fair Employment and Housing Act (“FEHA”).  The second cause of action alleges discrimination on the basis of Jazirehi’s gender.  The third cause of action alleges discrimination on the basis of Jazirehi’s disability.  The fourth cause of action alleges failure to prevent discrimination.  The fifth and sixth causes of action allege, respectively, a failure to provide Jazirehi with reasonable accommodation in light of his disability and failure to engage with Jazirehi regarding his disability in a good faith interactive process.   The sum and substance of these five causes of action is that Economou was not terminated based on research misconduct as the Regents claim, but rather, on the grounds of his gender and disability.   For the reasons set forth below, the demurrer is sustained with leave to amend as to the third, fifth, and sixth causes of action, and overruled as to the second and fourth causes of action.

Regents’ Objection to the Brasinikas Declaration

As a preliminary matter, the Court is sustaining the Regents’ objections to the Declaration of Vasili Brasinikas, which Jazirehi submitted in support of his opposition to the demurrer.  Attached to the Brasinikas Declaration are excerpts from transcripts of depositions of witnesses in this case.  Jazirehi’s citation to, and reliance on, those transcripts is inappropriate at the demurrer stage.  In ruling on a demurrer that challenges the sufficiency of the allegations in a pleading, the trial court is confined to the pleading’s four corners.  The court cannot consider evidence beyond the pleadings, such as excerpts from deposition transcripts.  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Kervian v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)  Evidence beyond the pleadings can (and must) be considered in connection with rulings on motions for summary judgment or summary adjudication, for those motions call on the court to assess whether discovery (including discovery adduced during depositions) in the case shows that there are disputed issues of material fact as to a pleading’s claims or defenses.  (Code of Civil Procedure Section 437c(b), (c).)  The transcripts attached to the Brasinikas Declaration thus would be fair game if the Court were considering at present a motion by the Regents for summary judgment or summary adjudication.  They are not fair game for purposes of the Regent’s demurrer, however, and the Court has not reviewed them.

Causes of Action Related to Discrimination on the Basis of Disability (Third, Fifth, and Sixth)

A.   Statute of Limitations

The Regents argue in their demurrer that the SAC’s causes of action under FEHA that relate to the Regents’ alleged discrimination against Jazirehi on the basis of his disability -- the third, fifth, and sixth causes of action -- are barred on the face of the SAC by the applicable statute of limitations.[1]  The Court agrees.

Under the FEHA statute of limitations that was in effect during the time period in question here, Jaziheri had one year from the date of the challenged adverse employment action -- the Regents’ termination of Jazirehi from his position in Economou’s laboratory – to file an administrative complaint with the Department of Fair Employment and Housing (now called the Civil Rights Division) alleging violations of FEHA.  (See Acuna v. San Diego Gas and Electric Co. (2013) 217 Cal.App.4th 1402, 1412 [discussing one-year statute of limitations for filing administrative complaints alleging violations of FEHA that was then-codified in Government Code Section 12960(d)].)   The filing of an administrative complaint is necessary before the complainant can sue in court over alleged violations of FEHA.  (See Rickards v. United Parcel Service, Inc. (2012) 206 Cal.App.4th 1523, 1526.)  According to the SAC, Jazirehi was terminated on March 21, 2018.  Jazirehi thus had until March 31, 2019 to file his administrative complaint.  He missed that deadline.  Jazirehi did not file his administrative complaint until March 23, 2023.  Thus, the Regents are correct that Jazirehi’s causes of action related to alleged discrimination on the basis of disability in violation of FEHA are time-barred.[2]

Jazirehi argues that the causes of action related to alleged discrimination on the basis of disability in violation of FEHA fall within the one-year statute of limitations by virtue of the “relation-back doctrine” and “discovery rule.”  In the Court’s view, neither the relation- back doctrine nor the discovery rule saves these causes of action from application of the statute of limitations.

When it applies, the relation-back doctrine assesses statutes of limitations on claims in an amended complaint with reference to the time that the original complaint was filed.  (Hutcheson v. Superior Court (2002) 74 Cal.App.5th 932, 940.)  According to Jazirehi, the disability-related causes of action that he asserted in his administrative complaint five-years after he was terminated relate back to the date of the filing of his initial complaint in this Court, which was on December 13, 2019. 

The relation-back doctrine is inapplicable here.  Under the relation-back doctrine, an amendment that adds a new claim relates back to the original complaint “if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality.”  (Norgart v. Upjohn Co. (1999) 21 Cal.App.4th 383, 408-409; see also Pointe San Diego Residential Community L.P. v. Procopio, Cory, Hargreaves, and Savitch (2011) 195 Cal.App.4th 265, 276-277.)  Jazirehi’s original complaint asserted just one cause of action: it was for whistleblower retaliation in violation of Labor Code Section 1102.5.   Jazirehi’s claims of disability-related discrimination in the SAC do not rest on the game general set of facts as his whistle-blower retaliation claim.  In his whistleblower-relation claim, Jazirehi alleged that he was terminated in retaliation for his submission of a report that Economou misused grant funds for personal research.   In his disability-related claims, Jazirehi’s alleges that his termination was based on his disability.  The claims thus are factually distinct.   A firing for being a whistleblower is not the same thing as a firing for being disabled.

Kim v. Regents of the University of California (2000), 80 Cal.App.4th 160, is instructive.  The plaintiff in Kim was terminated from unionized employment.  In her initial complaint, she alleged violations  of overtime provisions of the Labor Code and a breach of the pertinent collective bargaining agreement; in the latter claim, she challenged the validity of the stated grounds for her termination.  (Id. at pp. 162–164.)  In a third amended complaint, the plaintiff added a claim for age discrimination, alleging that her employer replaced her with two younger employees.  (Id. at p. 168.)  The Court of Appeal concluded that her age discrimination claim was barred by the statute of limitations and did not relate back to the initial complaint.  In so holding, the Court stated that “[w]hile there is just one employer and one termination, the wrongful conduct described in the [age] discrimination claim does not arise out of the same set of facts that support [the] contractual and overtime claims.  (Id. at p. 169.) Jazirehi’s attempt to come within the ambit of the relation-back doctrine fail for the same reason.  While there is just one employer and one termination in both the initial complaint and the SAC, the alleged wrongful conduct of the employer in terminating Jazirehi is not the same in the two pleadings.

Dudley v. Department of Transportation (2001) further demonstrates why the relation-back doctrine is inapplicable here.  In that case, the plaintiff originally claimed that her employer terminated her in retaliation for her decision to take medical leave on account of a disability, which violated the Family Rights Act.  In an amended complaint, the plaintiff added a claim that she was terminated due to the disability.  The Court of Appeal held that the relation-back doctrine applied because the claim for disability arose out of the same facts as the claim for violation of the Family Rights Act.  In short, both claims involved her disability.   (Id. at pp. 265–266.)  By contrast here, the whistleblower retaliation claim shares no facts in common with the disability-related claims, other than that they both arise from the Regents’ decision to terminate Jazirehi. 

Jazirehi’s invocation of the discovery rule is unavailing as well.  The discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)  Put another way, “[t]he discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.”  (Ibid.)  This means that plaintiffs “are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.”  (Id. at p. 808.)  “The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry.”  (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1251, citation omitted).  The discovery rule imposes a pleading requirement on a party seeking the protection of the rule in the face of a demurrer.  Specifically, “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery, and (2) the inability to have made earlier discovery despite reasonable diligence.”  (Fox, supra, 35 Cal.4th at p. 809, citation omitted.)   

Jazirehi alleges in the SAC that he did not discover the basis of his disability-related claims until he conducted depositions of certain UCLA personnel in the early part of 2023.   That allegation satisfies the requirement of the discovery rule that the plaintiff show the time and manner of discovery.  The SAC does not, however, satisfy the requirement of the discovery rule that plaintiff allege why he or she was unable to have made the discovery earlier despite reasonable diligence.  Jazirehi alleges that he was aware of his disability, which he says is a medical condition that affects his life activities.  The problem for discovery rule purposes is that Jazirehi alleges that the internal UCLA committee that investigated him for research misconduct (“the Investigative Committee”) and that recommended to the Regents that he be terminated was aware of his medical condition as well, and that he was aware contemporaneously of the Investigative Committee’s awareness of his condition.  Under these circumstances, Jazirehi needs to allege that he nevertheless was unable prior to the depositions in early 2023 to discover that the Investigative Committee may have decided to terminate him without accommodating his disability.

In sum, the disability-related claims in the SAC’s third, fifth, and sixth causes of action are time-barred because Jazirehi did not file an administrative complaint alleging that disability discrimination was the basis of his termination within a year of the termination.   The demurrer to those causes of action is thus sustained.    

Where a demurrer is sustained, leave to amend must be allowed “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action.”  (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)  Here, there is no reasonable possibility that Jazirehi can avoid the statute of limitations through the relation-back doctrine.  There is, however, a reasonable possibility that Jazirehi can avoid the statute of limitations through the discovery rule.  Accordingly, the demurrer to the third, fifth, and sixth causes of action is sustained with leave to amend for Jazirehi to seek the protective ambit of the discovery rule.

B.   Failure to State a Claim

The Regents also argue in their demurrer that the allegations in the SAC are insufficient to support the disability-related claims in the third, fifth, and sixth causes of action.   In particular, the Regents argue that allegations do not establish that the Regents terminated Jazirehi on the basis of his disability/medical condition.  Further, the Regents point out that the SAC suggests that the Regents should have accommodated Jazirehi’s disability/medical condition by imposing a lesser penalty for research misconduct than termination.  This suggestion, the Regents say, is at odds with FEHA precedent, which holds that accommodations of disabilities speak to reasonable adjustments in the workplace to enable a person with disabilities to carry out his or her job duties, but not to leniency in penalties for workplace misconduct.  Nor does the SAC allege that Jazirehi requested any accommodation that was denied. 

All of these points are well-taken.  But because the Court is sustaining the demurrer to the disability-related causes of action on statute of limitations grounds with leave to amend, the Court need not decide at this time whether, apart from the statute of limitations problem, the allegations in the SAC are inadequate to support those causes of action.  After all, the allegations may end up changing with the amended complaint that Jazirehi is being afforded the opportunity to file.  The Court observes, however, that, in amending the complaint, it would behoove Jazirehi to heed the arguments that the Regent made in the demurrer as to the sufficiency of the adequacy of the allegations supporting the disability-related causes of action.

Gender Discrimination

In support of the claim in the second cause of action for discrimination on the basis of gender in violation of FEHA, the SAC makes the following allegations.   First, at the same time the Regents were investigating Jazirehi for research misconduct, the Regents were investigating a female employee in another laboratory for research misconduct.  Second, the Regents were poised to conclude that the female researcher had committed research misconduct and were going to terminate her.  Third, the Investigative Committee raised concerns about the optics of a committee full of men accusing a woman of misconduct and terminating her while a man with similar training -- namely, Jazirehi -- was found to be merely negligent and not deserving of termination.  Fourth, in an attempt to avoid any allegations of gender bias against the female researcher, the Investigative Committee decided to find that Jazirehi committed research misconduct that warranted his termination, thereby enabling the Regents to claim in the event of a challenge by the female researcher to her termination that Jazirehi did not receive special treatment on account of his gender.  All told, these allegations posit that if Jazirehi had been a female, he would not have been terminated for the actions for which he was investigated, but because he was a male, he was terminated so that the Regents could point to his case and that of the female researcher under investigation at the same time and proclaim that they were treated equally.

At the demurrer stage, the Court must accept these allegations as true.  And if true, the allegations are sufficient to state a claim for gender discrimination.  The demurrer as to the second cause of action is thus overruled.  

The Regents argue in the demurrer that there are no allegations that the Regents themselves shared the concern of the Investigative Committee about the optics of gender bias, and it was the Regents, not the Investigative Committee, that the SAC alleges terminated Jazirehi. The hitch in that argument is that the SAC alleges that the Regents acted on the basis of the Investigative Committee’s recommendation.  And if the Investigative Committee’s recommendation was tainted by a misplaced concern over the optics of gender bias, then the Regents’ termination decision was so tainted as well.

Because the Court is overruling the demurrer as to the second cause of action for gender discrimination, the fourth cause of action, which is for failure to prevent discrimination, withstands the demurer as well.    The Court notes that Jazirehi failed to address the fourth cause of action in his opposition to the demurrer.  But the Court is overruling the demurrer to that cause of action notwithstanding the non-opposition.