Judge Yolanda Orozco, Case 22STCV01023 2022-08-29 Tentative Ruling

Judge: Yolanda Orozco, Case: 22STCV01023, Date: 2022-08-29 Tentative Ruling

Case Number: 22STCV01023 Hearing Date: August 29, 2022 Dept: 31

DEMURRER IS SUSTAINED, IN PART

Background

On January 10, 2022, Plaintiff filed a Complaint against Defendant Akash Management LLC and Does 1 to 10 for:

1) Sex Discrimination (Govt. Code § 12940(a))

2) Disability Discrimination (Govt. Code § 12940(a))

3) Failure to Accommodate Disability (Govt. Code § 12940(m)(1))

4) Failure to Accommodate Disability (Govt. Code § 12940(m)(1))

5) Wrongful Termination in Violation of Public Policy

6) Failure to Timely Provide Pay Records Upon Request (Labor Code § 226(c))

7) Failure to Timely Provide Personnel Records Upon Request (Labor Code § 1198.5))

On April 20, 2022, Defendant filed a demurrer to Plaintiff’s Complaint without a motion to strike.

Plaintiff filed Opposition papers on August 15, 2022. Defendant filed a Reply on August 17, 2022.

Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred, in person or telephonically, to determine whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. (CCP) § 430.41.)¿

Defense counsel attests they tried to meet and confer with Plaintiff’s counsel who declined to dismiss the Complaint. (Chacon Decl. ¶¶ 3.4.) Thus, the meet and confer requirement is met.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.¿ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Request for Judicial Notice

Defendant’s request for Judicial Notice of California Assembly Bill No. 9 (A.B. 9), passed on October 10, 2019, with all legislative history, notes and amendments, is GRANTED pursuant to Evidence Code section 452 and 453.

Discussion

Plaintiff alleges that on or around April 18, 2019, she informed Defendant that she was pregnant and requested medical leave due to pregnancy-related medical conditions, including rapid weight loss and severe vomiting. Plaintiff alleges that due to her pregnancy she was fired on April 24, 2019.

Plaintiff alleges that she filed a complaint with FEHA on January 13, 2021 and that the Department of Fair Employment and Housing (DFEH) issued a Right to Sue Notice that same day. (Ainsworth Decl. Ex. A.)

Defendant’s demurrer alleges that Plaintiff’s claims arising from violations of the Fair Employment and Housing Act (FEHA) are time-barred by the one-year statute of limitations. The Court disagrees.

i. Revised Gov. Code § 12960 Applies to Plaintiff’s FEHA Claims (1, 2, 3, and 4 causes of action)

California Assembly Bill 9 (A.B. 9) extended the statute of limitations for filing a claim with FEHA for harassment, discrimination, retaliation, or other actionable conduct from one year to three years, effective January 1, 2020. (See Cal. Gov. Code § 12960(e) (as amended by A.B. No. 9 § 1, 2019–20 Sess. (Cal. 2019)).

In enacting A.B. 9, the California legislature expressly stated: “This act shall not be interpreted to revive lapsed claims.” (Cal. A.B. 9 § 3, 2018-19 Leg., Reg. Sess. (Cal. 2019).) Defendant is correct in asserting that section 12960 does not apply retroactively. In Quarry v. Doe I (2012), the California Supreme Court explained:

“Once a claim has lapsed (under the formerly applicable statute of limitations), revival of the claim is seen as a retroactive application of the law under an enlarged statute of limitations. Lapsed claims will not be considered revived without express language of revival.”

(53 Cal.4th 945, 957.)

Other courts have interpreted A.B. 9 similarly. (See Gonzalez v. Trojan Battery Company, LLC (C.D. Cal., June 2, 2020, No. 220CV02735SVWMRW) 2020 WL 2857487, at *3 [“The amendment extending that statute of limitations to three years for such claims took effect on January 1, 2020, and does not revive lapsed claims.”]; Hawkins v. Swisher International, Inc. (C.D. Cal., Dec. 7, 2021, No. EDCV21746PSGSHKX) 2021 WL 7707940, at *3 [“However, the extended three-year statute of limitations does not revive claims that previously expired before the change took effect on January 1, 2020.”].)

Defendant erroneously assumes that applying newly amended section 12960 to Plaintiff’s claim would impermissibly revive her claim. This is incorrect because Plaintiff’s claim had not lapsed when amended section 12960 became effective on January 01, 2020. A report by the Senate Judiciary Committee on A.B. 9 explained the new three-year statute of limitations would extend to claims that had not yet lapsed when A.B. 9 became effective. (Senate Judiciary Committee (A.B. 9) dated 07/08/19.) The Committee explained that under Quarry v. Doe 1 (2012):

“As long as the former limitations period has not expired, an enlarged limitations period ordinarily applies and is said to apply prospectively to govern cases that are pending when, or instituted after, the enactment took effect. This is true even though the underlying conduct that is the subject of the litigation occurred prior to the new enactment.”

(Quarry, supra, 53 Cal.4th at 945, 955-957 [internal citations omitted].)

Therefore “[a]pplying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in law, but for which the limitations period had not yet expired on the date of enactment.” (Senate Judiciary Committee (A.B. 9) dated 07/08/19 at p. 5.)

Under the previous one-year statute of limitations for section 12960, all claims arising prior to January 13, 2020, would have lapsed within one year of Plaintiff filing her claim with DFEH on January 13, 2021. However, because Plaintiff’s claim had not lapsed when A.B. 9 became effective, Plaintiff’s claims now fall within the three-year statute of limitations.

This interpretation of amended section 12960 has been adopted by some District Courts and the Court is unaware of any other court holding otherwise. For example, in Hector Tapia v. Hyatt Corporation, the district court found that the Plaintiff filed a claim with DFEH on July 26, 2020, for a termination that occurred on May 13, 2017, and although the court found that the claims were time-barred, they were barred due to the three-year statute of limitations. (See Hector Tapia v. Hyatt Corporation (C.D. Cal., June 30, 2021, No. SACV2002346DOCJDEX) 2021 WL 3076650, at *4.) In Hawkins v. Swisher International, Inc the district court found that the under the newly revised section 12960, the statute of limitations bars claims that occurred prior to January 1, 2019. (See Hawkins v. Swisher International, Inc. (C.D. Cal., Dec. 7, 2021, No. EDCV21746PSGSHKX) 2021 WL 7707940, at *3 [“In other words, any unfiled claims that arose prior to January 1, 2019 are time barred.].)

Therefore, section 12960 subdivision (e) does not revive Plaintiff’s FEHA claims because they had not yet lapsed when she filed her complaint with FEHA. Furthermore, under subdivision (b) of section 12960, Plaintiff’s Complaint filed on January 10, 2022, related back to the date she filed her complaint with DFEH, which was January 13, 2021. Plaintiff had one year to file this Complaint in civil court once DFE issued its notice and she did. (Gov. Code, §§ 12960 subds. (f)(1); 10005 subd. (a).)

Accordingly, Plaintiff’s FEHA claims are not time-barred. Defendant’s demurrer to Plaintiff’s first to fourth causes of action is OVERRULED.

ii. COA 5: Wrongful Termination in Violation of Public Policy

Defendant correctly asserts that Plaintiff’s claim under Code Civil Procedure section 335.1 is subject to a two-year statute of limitations and has thus lapsed. (See Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1382.)

However, FEHA also provides a remedy for wrongful termination under Government Code Section 12920. “In enacting the FEHA, California's Legislature sought to safeguard the rights of all persons to seek, obtain, and hold employment without discrimination on account of various characteristics, including race, national origin, physical disability, and medical condition.” (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 420.) Accordingly, the three-year statute of limitations may apply to Plaintiff’s claims for wrongful termination under FEHA.

Because it is unclear under which statutory provision Plaintiff is seeking relief for wrongful termination, and because Plaintiff has not addressed the issue in her Opposition papers, Defendant’s demurrer to Plaintiff’s fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

iii. Causes of Action 6 and 7: Violations of Labor Code §§ 226(c) and 1198.5

Defendant asserts that Plaintiff’s claims for Failure to Timely Provide Pay Records Upon Request (Labor Code § 226(c)) and Failure to Timely Provide Personnel Records Upon Request (Labor Code § 1198.5) are time-barred by the one-year statute of limitation under Code of Civil Procedure section 340 and Plaintiff’s failure to exhaust administrative remedies before the Labor and Workforce Development Agency (LWDA).

Plaintiff again fails to address this issue in her opposing papers. The Court notes that in Murphy v. Kenneth Cole Productions, Inc. (2007), the California Supreme Court explained that Code Civil Procedure section 340 applies a one-year statute of limitation to claims for penalties or forfeiture, while section 338 applies a three-year statute of limitations for claims other than a penalty or forfeiture. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102.)

Section 226 subdivision (f) states:

“A failure by an employer to permit a current or former employee to inspect or receive a copy of records within the time set forth in subdivision (c) entitles the current or former employee or the Labor Commissioner to recover a seven-hundred-fifty-dollar ($750) penalty from the employer.”

Section 1198.5 subdivision (k) states:

“If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer.”

Since both sections refer to the seven hundred fifty dollars ($750) as a “penalty,” the applicable statute of limitations appears to be one year under Code of Civil Procedure section 340.

Plaintiff fails to address Defendant’s contention that she did not exhaust her administrative remedies before asserting a claim for Labor Code violations. The California Supreme Court has explained that:

“Before bringing a civil action for statutory penalties, an employee must comply with Labor Code section 2699.3. (Lab. Code, § 2699, subd. (a).) That statute requires the employee to give written notice of the alleged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and the notice must describe facts and theories supporting the violation.”

(Arias v. Superior Court (2009) 46 Cal.4th 969, 981.)

Since Plaintiff again fails to address this contention, the Court sustains Defendant’s demurrer to Plaintiff's sixth and seventh cause of action WITH LEAVE TO AMEND.

Conclusion

Defendant Akash Management LLC’s Demurrer to Plaintiff’s first to fourth causes of action is OVERRULED, and SUSTAINED WITH LEAVE TO AMEND as to the fifth, sixth, and seventh causes of action.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.