Roman v. County of Los Angeles
| Decision Date | 09 November 2000 |
| Citation | 102 Cal.Rptr.2d 13,85 Cal.App.4th 316 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 2 Dist. 2000) EDWARD ROMAN, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. B133625 Filed |
APPEAL from an order of the Superior Court of Los Angeles County. Richard C. Hubbell, Judge. Reversed with directions.
Law offices of Duane R. Folke and Duane R. Folke for Plaintiff and Appellant.
Kohrs & Fiske, Conrad Kohrs, Luciana P. O'Brien; Greines, Martin, Stein & Richland, Martin Stein, and Carolyn Oill for Defendant and Respondent.
Appellant Edward Roman appeals from an order dismissing his verified first amended complaint after the trial court sustained the County of Los Angeles's (County) general demurrer, without leave to amend, to each of its eight causes of action. All of the causes of action in the amended complaint arose from County's alleged discriminatory treatment of appellant, its employee. The trial court concluded that six causes of action were barred by the statute of limitations and the other two by appellant's failure to exhaust his administrative remedies. Appellant's primary contentions on appeal are that his claims for employment discrimination under the Fair Employment and Housing Act (FEHA) and title VII were timely filed because filed within one year of his receipt of a right-to-sue letter from the Department of Fair Employment and Housing (DFEH) and because the continuing violation doctrine is applicable.
We reverse with directions.
Appellant filed a verified complaint "For Employment Discrimination" on September 30, 1998. County's general demurrer to each of the eight causes of action in that complaint was sustained with leave to amend.
Appellant then filed a first amended verified complaint that alleged: Appellant was of Mexican-American descent. He "is, and at all times material herein was, employed by the . . . County," beginning his County career in 1992. Paragraph 27 alleged that "plaintiff continues to suffer the injustice of unfair, unequal treatment on the job on the basis of his national origin," paragraph 30 alleged that appellant "continues to experience the repercussions from his filing of charges against his co-worker, as this individual is now in a position above the [appellant]," while paragraph 34 alleged that as a result of County's wrongdoing, appellant "has suffered . . . a loss in standing on the job which has effected his promotability and caused him to receive pay in a diminished capacity. . . ."
On June 28, July 11, and July 17, 1995, appellant alleged that he had a series of incidents with a co-worker, Jirair Issaghoolian. In the first, Issaghoolian made ethnic slurs against appellant. In the second incident, he physically attacked appellant and in the last, he accosted appellant and shouted racial epithets. Appellant alleged that he was also discriminated against because his complaints about these incidents were improperly investigated and resolved because of his national origin. He contended that the person chosen to investigate was biased because she was married to a person of the same ethnic background as his assailant.
Appellant also alleged that he experienced disparate treatment "in conjunction with an incessant series of alleged rule violations" against him "to make [appellant] either resign or succumb to the various attempts to remove him through administrative procedures from his employment or to be forced out [or] constructively discharged . . . based solely on his race as a Mexican-American."
Without alleging the times of the incidents, appellant further alleged that he had been subjected to "racial discriminatory conduct" including constant racial epithets, acts of intimidation, deprivation of training and seminars, deprivation of various supplies, reprimands so as to sabotage his employment opportunities, and unequal promotion and transfer opportunities, all as compared to White counterparts.
Appellant filed a complaint with the DFEH on May 30, 1997 and was issued a right-to-sue letter on October 6, 1997, attached to the amended complaint as an exhibit. That letter stated that a lawsuit must be filed within one year from the date of its issuance. It also advised appellant that if he desired a federal right-to-sue letter, he had to file a timely complaint with the Equal Employment Opportunity Commission (EEOC).
Each cause of action in the amended complaint incorporated all of the facts recited above. The first cause of action alleged a violation of appellant's constitutional rights. The second and seventh causes of action alleged intentional and negligent infliction of "mental disturbance," respectively. The third cause of action alleged that that conduct violated title 42 of the United States Code section 1983. The fourth cause of action alleged that County's actions constituted a violation of title VII of the Civil Rights Acts of 1964 and 1991 and the provisions of title 42 of the United States Code section 2000e. The fifth cause of action asserted a violation of title 42 of the United States Code section 1981 et seq. The sixth cause of action was substantively the same as the fourth cause of action. The eighth cause of action sought declaratory relief pursuant to title 28 of the United States Code section 2001. It alleged that "On or about January, 1996, [appellant] was terminated without a complete review by the defendants and was initally [sic] summarily denied a hearing regarding his job performance . . . ."1
County demurred to the first amended complaint on the grounds that "[Appellant] has made no substantial 'amendments' whatsoever" to the original complaint, setting out the changes that were made. It reasserted the same grounds for its demurrer as its demurrer to the original complaint; that all but the fourth and sixth causes of action were barred by the statute of limitations, and those two causes of action were barred because appellant failed to obtain a right-to-sue letter from the EEOC. The demurrer pointed out that the amended complaint, as in the original complaint, alleged in the eighth cause of action that appellant was terminated from his employment.
Appellant's opposition attached (without a request for judicial notice), among others, the following documents: (1) appellant's employment grievance, dated September 15, 1995; (2) another grievance by appellant, dated January 10, 1996 and response to it. The response indicated that the grievance regarded appellant's "termination from my appointment to Acting GAIN Services Worker, Exam # 4 9165-C"; (3) a June 26, 1997 grievance by appellant, reflecting a complaint against his supervisor at the County who had docked his pay that month, he claimed, as a pretext for discrimination, harassment and retaliation for his having filed an FEHA complaint; (4) a grievance by appellant, dated February 6, 1998, complaining about a supervisor's allegedly suppressing his "Early Action Fraud Referrals." This grievance made no suggestion that race or national origin was involved; and (5) the complaint filed with the DFEH on May 30, 1997, claiming that "Gail Esfahaniha, Perri Threatt and Jirair Issaghoolian harassed me and failed to discipline the harasser." It asserted that these events occurred "[f]rom June 1995 to May 6, 1997," and that the discrimination was based on appellant's "ancestry." Appellant also checked the box signifying that the discrimination was based on race.
The trial court entered its minute order sustaining the County's demurrer to all causes of action without leave to amend. An order dismissing the amended complaint with prejudice based on the sustaining of the demurrer was entered and notice duly given. Timely notice of appeal was filed.
A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court's discretion. Therefore, an appellate court employs two separate standards of review on appeal. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.)
The complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279.) The properly pleaded material factual allegations, together with facts that may be properly judicially noticed, are accepted as true. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.)
Where a demurrer is sustained without leave to amend, the reviewing court must determine whether the trial court abused its discretion in doing so. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Regardless of whether a request therefore was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304.) The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) Plaintiff can make this showing in the first instance to the appellate court. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
With respect to each of the causes of action in the amended complaint, we first consider whether the demurrer was properly sustained, and if it was, whether the trial court abused its discretion in denying leave to amend.
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