Blum v. Superior Court

• Citation: 45 Cal.Rptr.3d 902,141 Cal.App.4th 418
• Decision Date: 17 July 2006
• Docket Number: No. B189560.,B189560.
• Parties: Barry BLUM, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Copley Press, Inc. et al., Real Parties in Interest.
• Court: California Court of Appeals

45 Cal.Rptr.3d 902

141 Cal.App.4th 418

Barry BLUM, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Copley Press, Inc. et al., Real Parties in Interest.

No. B189560.

Court of Appeal, Second District, Division 7.

July 17, 2006.

Mark Weidmann and Lee Franck, Los Angeles, for Plaintiff and Petitioner.

No appearance for Respondent.

Sheppard, Mullin, Richter & Hampton, Tara Wilcox and Karin Dougan Vogel, San Diego, for Defendants and Real Parties in Interest.

WOODS, J.

Barry Blum sued Copley Press, Inc., Daily Breeze and Vicki Tally for wrongful termination.¹ The operative pleading, the first amended complaint ("FAC"), contained 22 causes of action; 12 of which asserted various violations of the FEHA (the California Fair Employment and Housing Act, Gov.Code, §² 12900 et seq.); the other 10 asserted parallel public policy violations.³ The court sustained without leave to amend defendants' demurrer to the FEHA causes of action on the basis Blum's attorney, not Blum, had verified the discrimination complaints filed with the Department of Fair Employment and Housing ("DFEH"). The issue presented by this writ petition is whether a DFEH complaint must be verified by the complainant or whether an attorney may verify the complaint. We conclude an attorney may verify a DFEH complaint for his or her client.

FACTUAL BACKGROUND

On May 5, 2005, plaintiff filed complaints of discrimination with the DFEH against Copley Press, Inc., Daily Breeze, Caryn Ratcliff, Vicky Tally and Kevin McCarthy.

On May 5, 2005, plaintiff filed this action against the same parties. In general, the complaint alleged that plaintiff was wrongfully terminated because of his age, race, disabilities, family medical leave, and association with a person of protected status.

On May 17, plaintiff received right to sue letters effective May 5.

On December 23, plaintiff filed the FAC against Copley Press, Inc., Daily Breeze and Tally. Defendants demurred to the FAC on the basis plaintiff had failed to exhaust his administrative remedies. On January 18, 2006, the court sustained without leave to amend defendants' demurrer to the 12 FEHA causes of action.

In its ruling, the superior court found: "With respect to the FEHA claims, Plaintiff never verified his DFEH charges. Although there is no California authority on point, federal decisions dealing with the analogous Title VII provision [of the Federal Civil Rights Act, 42 U.S.C. § 2000e et seq.] require a party to verify EEOC [Equal Employment Opportunity Commission] charges before commencement of a lawsuit; failure to verify an EEOC charge amounts to a failure to exhaust administrative remedies."⁴

On March 10, 2006, plaintiff filed with this court a petition for a writ of mandate challenging the superior court's demurrer ruling. This court issued an order to show cause.

DISCUSSION

Plaintiff contends the court abused its discretion when it sustained defendants' demurrer and dismissed his FEHA causes of action on the basis he failed to exhaust his administrative remedies because his attorney verified the DFEH complaints. In reviewing an order sustaining a demurrer, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose." (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415, 106 Cal.Rptr.2d 271, 21 P.3d 1189.)

Section 12960, subdivision (b) provides: "Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, . . . and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint."⁵ (Emphasis added.)

"`Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [DFEH] and must obtain from the [DFEH] a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. [Citations.]'" (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116, 118 Cal.Rptr.2d 249.) There is no dispute that plaintiff timely filed his DFEH complaints or that he received right to sue letters from the DFEH.

Plaintiff suggests that "even unsworn and unsigned complaints satisfy the timely filing of an administrative complaint." (Emphasis deleted.) In the cases cited by plaintiff, the court determined that even though the formal EEOC charge was not filed under oath or affirmed, there was a possible waiver by the EEOC in that the employee met with the EEOC and filled out some sort of intake form. (See e.g. Casavantes v. California State University, Sacramento (9th Cir.1984) 732 F.2d 1441, 1442-1443 [questionnaire not signed or verified constituted charge as deficiencies were cured by amendment when employee signed formal charge]; Price v. Southwestern Bell Telephone Co. (5th Cir.1982) 687 F.2d 74, 78-79, & p. 79, fn. 6 [timely filing of charge is not jurisdictional prerequisite to suit in federal court, but subject to "`waiver, estoppel and equitable tolling'"]; Choate v. Caterpillar Tractor Company (7th Cir.1968) 402 F.2d 357, 360 [court treated omission of oath in charge of discrimination as a permissive waiver by the EEOC as it processed the charge].)

There is no issue of waiver, estoppel or equitable tolling in the instant case. Thus, a verified DFEH complaint was a prerequisite to bringing a civil action. Moreover, in the context of the FEHA, "`"[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect."'" (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal. App.4th 1607, 1613, 43 Cal.Rptr.2d 57.)

Defendants insist that section 12960, subdivision (b) provides that the plaintiff must verify the DFEH complaint. Although one could infer that interpretation, the plain language of the statute does not expressly state that the employee herself must verify the complaint.

The Equal Employment Opportunity Act "`is a remedial statute to be liberally construed in favor of the victims of discrimination.'" (Casavantes v. California State University, Sacramento, supra, 732 F.2d at p. 1442.) Similarly, in Price v. Southwestern Bell Telephone Co., supra, 687 F.2d at page 78, the court reasoned: "Consistent with the remedial purposes underlying Title VII, we construe employment discrimination charges with the `utmost liberality,' bearing in mind that such charges are generally prepared by laymen untutored in the rules of pleading. [Citation.] We also take into account the principal function of the administrative charge: the provision of an adequate factual basis for the Commission's initiation of the investigatory and conciliatory procedures contemplated by Title VII."

In that same vein, another circuit court noted: "Title VII . . . limits access to the courts by conditioning the filing of suit upon a previous administrative charge with the EEOC whose function is to effectuate the Act's policy of voluntary conference, persuasion and conciliation as the principal tools of enforcement." (Fn.omitted.) (Jenkins v. United Gas Corporation (5th Cir. 1968) 400 F.2d 28, 30.) The court reasoned: "It is in keeping with the purposes of the Act to keep the procedures for initiating action simple. It was anticipated that the charge would be filed by `a person claiming to be aggrieved.' It is not until conciliation efforts have failed and suit is to be filed that the court is authorized to appoint an attorney to prosecute the action." (Id., at p. 30, fn. 3; see also Bethel v. Jefferson (D.C.Cir.1978) 589 F.2d 631, 641-642 [In addressing whether the complainants complied with a time requirement, the court reasoned: "Title VII is remedial legislation dependent for its enforcement on laymen, we must seek in every case `an interpretation animated by the broad humanitarian and remedial purposes underlying the federal proscription of employment discrimination,' and . . . resort to technicalities to foreclose recourse to administrative or judicial processes is `particularly inappropriate.'" (Fns. omitted.)].)

Defendants suggest that in federal cases supporting liberal interpretation of Title VII, the courts referred to the complainant's pro se status (or the fact laypersons initiate the proceedings) and their rationale does not apply here as plaintiff was represented. (See e.g., Love v. Pullman Co. (1972) 404 U.S. 522, 526-527, 92 S.Ct. 616, 30 L.Ed.2d 679; Jenkins v. United Gas Corporation, supra, 400 F.2d at p. 30 & fn. 3; Kaplan v. Intern. Alliance of Theatrical, Etc. (9th Cir.1975) 525 F.2d 1354, 1359; Sanchez v. Standard Brands, Inc. (5th Cir.1970) 431 F.2d 455, 463.) However, a federal court gave an employee the benefit of "loose pleading" even though counsel assisted in the preparation of an EEOC charge. (Murray v. Board of Educ. of City of New York (S.D.N.Y.1997) 984 F.Supp. 169, 176-177.)

Moreover, in California, liberal construction is not dependent on whether or not the employee was represented. "The FEHA itself requires that we interpret its terms liberally in order to accomplish the stated legislative purpose. [Citations.] In order to carry out the purpose of the FEHA to safeguard the employee's right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493-494, 59 Cal.Rptr.2d 20, 926 P.2d 1114.) We conclude the verification requirement should also be interpreted so as to promote the resolution of potentially...