Mitchell v. Cal. Dep't of Pub. Health

• Decision Date: 27 July 2016
• Docket Number: B265769
• Citation: 1 Cal.App.5th 1000,205 Cal.Rptr.3d 261
• Court: California Court of Appeals Court of Appeals
• Parties: Reginald MITCHELL, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, Defendant and Respondent.

1 Cal.App.5th 1000

205 Cal.Rptr.3d 261

Reginald MITCHELL, Plaintiff and Appellant

v.CALIFORNIA DEPARTMENT OF PUBLIC HEALTH, Defendant and Respondent.

B265769

Court of Appeal, Second District, Division 4, California.

Filed July 27, 2016

As Modified on Denial of Rehearing August 22, 2016

Ivie, McNeill & Wyatt, Rodney S. Diggs, Los Angeles, and Elvin I. Tabah for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Mark Schreiber, Deputy Attorneys General, for Defendant and Respondent

EPSTEIN

, P.J.

Appellant Reginald Mitchell sued his former employer, respondent California Department of Public Health (the Department), for racial discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.

).¹ The trial court dismissed the complaint after sustaining a demurrer on the statute of limitations ground. In this appeal from the judgment of dismissal, we find the allegations of the complaint are sufficient to establish a claim of equitable tolling, and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mitchell was employed by the Department as a health facilities investigator. He was the only non-white emplo

yee in his division. Mitchell resigned from the Department in 2011 after complaining to his employer that he was being discriminated against because of his race (African American). He filed his original complaint with the United States Equal Employment Opportunity Commission (EEOC). Pursuant to a work sharing agreement between the California Department of Fair Employment and Housing (DFEH) and EEOC, EEOC automatically lodged a copy of the complaint with DFEH. DFEH issued a right-to-sue notice and deferred investigation of the charges to EEOC.

The September 9, 2011 right-to-sue notice issued by DFEH stated in relevant part that “EEOC will be responsible for the processing of this complaint. DFEH will not be conducting an investigation into this matter. EEOC should be contacted directly for any discussion of the charge. DFEH is closing its case on the basis of ‘processing waived to another agency.’ [¶] NOTICE TO COMPLAINANT OF RIGHT-TO-SUE [¶] Since DFEH will not be issuing an accusation, this letter is also your right-to-sue notice. According to Government Code section 12965, subdivision (b)

, you may bring a civil action under the provisions of the [FEHA] against the person, employer, labor organization or employment agency named in the above-referenced complaint. The lawsuit may be filed in a State of California Superior Court. Government Code section 12965, subdivision (b), provides that such a civil action must be brought within one year from the date of this notice. Pursuant to Government Code section 12965, subdivision (d)(1), ^[

²

] this one-year period will be tolled during the pendency of the EEOC's investigation of your complaint. You should consult an attorney to determine with accuracy the date by which a civil action must be filed. This right to file a civil action may be waived in the event a settlement agreement is signed. Questions about the right to file under federal law should be referred to the EEOC. [¶] The DFEH does not retain case records beyond three years after complaint is filed. [¶] Remember: This Right–To–Sue Notice allows you to file a private lawsuit in State court. ”

EEOC issued its letter of determination on September 30, 2013, stating there was “reasonable cause” to believe Mitchell had suffered racial discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.

(Title VII)). After conciliation efforts failed, the Department of Justice issued a federal right-to-sue notice, which Mitchell received on March 21, 2014.

Mitchell filed his FEHA civil action for racial discrimination on July 8, 2014. This was 19 days beyond the 90–day federal right-to-sue period, which, as we shall explain, is the basis for the Department's statute of limitations defense. In anticipation of that defense, the complaint and first amended complaint (FAC) alleged that:

• DFEH provided its right-to-sue notice (exhibit A to the FAC) on September 9, 2011, deferred investigation of the charges to the EEOC, and stated that Mitchell would have one year from the date of the notice to file a FEHA action, which “will be tolled during the pendency of the EEOC's investigation of your complaint.”

• EEOC issued a letter of determination on September 30, 2013 (exhibit B to the FAC), which stated there was “reasonable cause” to believe he had suffered racial discrimination in violation of Title VII.

• The complaint was filed on July 8, 2014, within one year of the EEOC's letter of determination.

The Department demurred to the FAC on the ground that the complaint was not filed within the federal right-to-sue period. Judicial notice was taken of the date on which Mitchell received the federal right-to-sue notice (March 21, 2014), and the date when the federal right-to-sue period expired (June 19, 2014). These events are summarized in the following timeline:

Mitchell argued the one-year limitation period of the FEHA was equitably tolled throughout EEOC's investigation, and did not expire until September 30, 2014, one year from the date of EEOC's letter of determination. Mitchell cited Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1102, 68 Cal.Rptr.2d 590

(Downs ), which held the one-year FEHA statute was tolled “until the EEOC completes its determination,” and McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 110, 111, 84 Cal.Rptr.3d 734, 194 P.3d 1026 (McDonald ), which held that FEHA does not preclude equitable tolling during “voluntary pursuit of internal administrative remedies” and “the Legislature accepts equitable tolling under the [FEHA], including during the period when an aggrieved party's claims are being addressed in an alternate forum.”

The trial court overruled the Department's demurrer.³ In its February 10, 2015 order, the trial court, citing Downs

' holding that all of the necessary factors for equitable tolling—timely notice to defendant, lack of prejudice to defendant, and reasonable conduct by plaintiff—were present, stated: “Here, with a delay of not even two full weeks, a reasonable good faith explanation for the delay, a seemingly valid claim for racial discrimination, and no prejudice caused to Defendant, there is no good reason not to permit equitable principles to toll the statute of limitations ever so slightly.”

The Department challenged the February 10, 2015 order in a petition for writ of mandate. (No. B262452.) We issued an alternative writ of mandate, directing the trial court to vacate its order overruling the demurrer and enter a new and different order sustaining the demurrer in its entirety, or to show cause why a peremptory writ of mandate should not issue. (Citing § 12965, subd. (d)(2)

; Downs, supra, 58 Cal.App.4th 1093, 68 Cal.Rptr.2d 590 ; Hall v. Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 721, 730, 123 Cal.Rptr.3d 274.)

In compliance with our alternative writ, the trial court held a noticed hearing, vacated its February 10, 2015 order, and entered a new order sustaining the demurrer without leave to amend. Mitchell moved for reconsideration, which was denied. Upon being informed of the trial court's new ruling, we dismissed the petition for writ of mandate in the B262452 proceeding as moot, and discharged the alternative writ.

The trial court entered an order of dismissal based on its new order sustaining the demurrer without leave to amend. Mitchell timely appealed.

DISCUSSION

Mitchell contends the order sustaining the demurrer must be reversed because the complaint sufficiently alleges that the FEHA one-year limitations period was equitably tolled during the period of the EEOC investigation. We agree.

I

A “demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459, 80 Cal.Rptr.2d 329

.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662, 15 Cal.Rptr.2d 173.)

The statute of limitations defense “ ‘may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ (1 Schwing, Cal. Affirmative Defenses (2007) Statute of Limitations, § 25:78, p. 1609, fns. omitted; see Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 550

.) There is an important qualification, however: ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874 [31 Cal.Rptr. 603, 382 P.2d 875] ; see also, e.g., Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781 [129 Cal.Rptr.2d 107, 60 P.3d 692].) ‘The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.’ (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 358

.)” (E–Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315–1316, 64 Cal.Rptr.3d 9.)

II

EEOC and DFEH have a work-sharing agreement that has resulted in a common fact pattern: an employee files his or her original complaint with the EEOC; the EEOC automatically files a copy of the complaint with the DFEH, following which DFEH, without...