Opinion
B308429
04-08-2022
CICELY FLEMING, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Twila S. White for Plaintiff and Appellant. Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall; and Anthony J. Bejarano for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from the judgment of the Superior Court of Los Angeles County No. 19STCV02490 Gregory W. Alarcon, Judge. Affirmed.
Twila S. White for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall; and Anthony J. Bejarano for Defendant and Respondent.
HARUTUNIAN, J.
Plaintiff and Appellant Cecily Fleming appeals the judgment of the trial court following its order sustaining Defendant and Respondent Los Angeles Unified School District's demurrer to her third amended complaint without leave to amend. The basis for the decision was that Fleming's claims were not timely asserted. Fleming contends that her claims should have survived demurrer because (1) they were asserted within the applicable statutory period, (2) the time to assert the claims was tolled, (3) the claims related back to the commencement of her related administrative proceeding, and (4) the applicable statutory period restarted when she commenced a new administrative proceeding. We disagree and affirm. Because the reasons for our decision render it moot, we further deny LAUSD's request for judicial notice.
Because we are reviewing a judgment after a demurrer, the operative factual background is drawn exclusively from the properly pleaded allegations in Fleming's third amended complaint, which, except as otherwise noted, we accept as true for the limited purposes of our review.
Fleming began working for Los Angeles Unified School District (LAUSD) in April 2000 as a special education assistant. In this capacity, she was responsible to, among other things, assist with breakfast in the classroom, arrange and clean the classroom, assist teachers and bus drivers with maintaining student discipline, and otherwise provide assistance to students, including lifting them in and out of holding devices.
In September 2015, Fleming suffered a fall while on the job, which resulted in injuries to her head, wrist and back. Fleming opened a workers' compensation claim in November of 2015 and remained medically unable to work in any capacity until January of 2017.
In January of 2017, Fleming was medically cleared to return to work subject to restrictions on the use of her left, non-dominant hand. Specifically, she could not use her left hand to lift more than five pounds or torque or pinch with her left hand or wrist. Fleming notified LAUSD of her eligibility to return to work and was referred by her school principal to a "Return to Work Specialist." The Return to Work Specialist reviewed the requirements of the special education assistant position and concluded that (i) Fleming's medical restrictions would render her unable to perform most functions of the job; and (ii) no accommodation would permit Fleming to perform the job.
Fleming complained to LAUSD that its failure to accommodate her constituted harassment, discrimination, and retaliation for her workers' compensation claim and disability. In her complaint, consistent with the assessment of the Return to Work Specialist, Fleming acknowledged that she was unable to perform 17 of 19 of the specified job duties with ease (presumably including lifting students). However, she noted that there were roles within LAUSD that did not require lifting students and that LAUSD successfully employed other Special Education Assistants who had physical limitations.
In April 2017, in response to her complaint, LAUSD denied Fleming's request for accommodations but offered her a campus aide position. This position had a lower pay rate and offered fewer hours per day than the special education assistant role she held previously. Fleming declined the campus aide position.
Around this time, in March or April of 2017, Fleming "reached out" to the California Department of Fair Employment and Housing (DFEH) and "complained about her separation and other complaints regarding harassment, discrimination, and retaliation, inter alia."
In May of 2017, Fleming again complained to LAUSD that she was not offered an accommodation to resume the special education assistant role. Together with her union representative, Fleming participated in a telephone conference with LAUSD's reasonable accommodation committee to request reconsideration of LAUSD's decision not to accommodate Fleming in the special education assistant role. On May 30, 2017, LAUSD gave Fleming written notice that it had reaffirmed its original denial of Fleming's request for accommodations in that role.
In June of 2017, Fleming contacted DFEH again regarding her March or April 2017 complaint. She did not receive a response from DFEH.
On August 3, 2017, Fleming was notified that she had abandoned her position as special education assistant because she was a "no show." About three weeks later, on August 25, 2017, she wrote an email to an LAUSD human resources specialist requesting an explanation about an email Fleming received that morning concerning her separation from LAUSD. The specialist explained that Fleming had been separated because her benefit time had been exhausted in April 2017. As a result, the specialist further explained, Fleming had been added to a 39-month reemployment list pursuant to Education Code section 45195. On August 26, 2017, Fleming responded via email to dispute her benefits exhaustion date and contended that she should not have been separated. LAUSD provided a formal written response adjusting Fleming's separation date to May 15, 2017.
On January 23, 2018, represented by trial and appellate counsel, Fleming obtained a "right to sue" letter from the DFEH. Such letter provides, in relevant part, that (a) Fleming's complaint with the DFEH "has been closed effective January 23, 2018"; (b) "DFEH will take no further action on the complaint"; and (c) any action against LAUSD had to "be filed within one year from the date of th[e] letter." A copy of the "right to sue" letter was also sent to Fleming's counsel. Despite DFEH's clear statement in the right to sue letter that Fleming's complaint was "closed," Fleming "left another message" with DFEH in February 2018 about her complaints. Again, DFEH did not respond.
On January 24, 2019, 366 days after the date of the DFEH right to sue letter, Fleming, through counsel, filed an initial complaint in the Los Angeles Superior Court alleging violations of the California Fair Employment and Housing Act (FEHA). Her initial complaint contained the following six counts (1) discrimination based on disability/medical condition; (2)failure to reasonably accommodate; (3) failure to engage in the interactive process; (4) retaliation; (5) failure to take all reasonable steps necessary to prevent discrimination and retaliation; and (6) violation of the California Family Rights Act (CFRA). Fleming subsequently filed a first amended complaint which added no new counts or substantive allegations.
By order dated September 4, 2019, the trial court sustained LAUSD's July 19, 2019 demurrer to Fleming's first amended complaint. In its written ruling, the trial court noted Fleming's concession that she had filed outside of the limitations period made applicable by Government Code section12965, subdivision (b). It further rejected her argument for equitable tolling, noting that she had failed to allege facts to support application of the doctrine. Nevertheless, the trial court gave Fleming 60 days to amend and "plead around" LAUSD's statute of limitations defense.
Appellant acknowledged her "one-day delay" in her opposition to LAUSD's demurrer.
Fleming filed her second amended complaint on November 4, 2019. In an attempt to "plead around" the statute of limitations defense, she alleged only that she received the right to sue letter "[i]n or around January, 2018" rather than acknowledging the actual date of the letter. Additionally, Fleming added new allegations concerning her contact with the DFEH "in or around March and April 26, 2017" and "June 2017" (prior to its issuance of the right to sue letter); in "February 2018" (immediately following receipt of the right to sue letter); and "on or around August 21, 2019" (five weeks after LAUSD had filed its demurrer to the first amended complaint). While her second amended complaint contained the same six counts as her prior complaints, she added new allegations based on subsequent conduct. Specifically, she alleged that, after she had filed her lawsuit, LAUSD denied her the opportunity to apply for new jobs at LAUSD and that, as of the date of her second amended complaint she "ha[d] been unable to apply for jobs."
LAUSD again demurred on, among others, timeliness grounds. The trial court again sustained the demurrer. In its March 4, 2020 ruling, the trial court found that Fleming had failed to plead facts to establish a right to equitable tolling on the basis that she alleged no contact with the DFEH during the pendency of the limitations period. The trial court further rejected as a matter of law arguments that her initial trial court complaint could relate back to her DFEH complaint on the theory that LAUSD had wrongfully refused to rehire her subsequent to the date of the initial complaint. Still, the trial court again gave Fleming leave to amend.
The amendments reflected in Fleming's third amended complaint were predominantly in the nature of argument. However, one new factual allegation was that Fleming had obtained, (i) on November 4, 2019 (the same date as her second amended complaint), an amended right to sue letter from the DFEH; and (ii) on March 24, 2020 (the same date as her third amended complaint), a "new" right to sue letter from the DFEH.
The DFEH complaint underlying the March 24, 2020, right to sue letter is substantially the same as that submitted on January 23, 2018, as amended on November 4, 2019, except that the March 2020 DFEH complaint cursorily alleges denial of rehire despite eligibility, including subsequent to the January 24, 2019 lawsuit.
In its August 20, 2020 ruling, the trial court again found that Fleming's claims were time barred for the following reasons: (i) the one year limitations period in Government Code section 12965, subdivision (c), applied to Fleming's claims and she filed her complaint outside of this period; (ii) the relation-back doctrine is inapplicable because Fleming filed no timely complaint to which her untimely complaint could relate back; and (iii) Fleming is not entitled to equitable tolling because she did not file a timely initial claim in the trial court. In the course of its discussion, the trial court also noted (a) that claims based on new allegations that she was unable to apply for other positions are distinct employment actions that are separately actionable; and (b) whether Fleming was "terminated" or "separated" was irrelevant to whether her claims were time barred. On this basis, the trial court sustained LAUSD's demurrer to Fleming's third amended complaint and denied Fleming leave to amend.
Fleming appealed the August 2020 ruling, which was not a final order susceptible to appeal. On November 12, 2020, this court notified Fleming of the deficiency and gave her 15 days to provide an appealable order. Eighteen days later, Fleming provided the requisite order and this appeal proceeded.
In connection with LAUSD's responding brief, it filed a request for judicial notice which Fleming opposed. This court deferred ruling on that request to final determination of the appeal.
Shortly after LAUSD filed its responding brief in this appeal, Fleming commenced a new action in the trial court on March 22, 2021, styled Cicely Fleming v. Los Angeles Unified School District, No. 21STCV11014, purportedly in response to the trial court's comments regarding claims she may have based on events subsequent to the filing of her lawsuit. According to Fleming's statements in her reply, the trial court ordered that matter related to the proceeding which is the subject of this appeal.
In her reply, Fleming recites the counts of her new complaint, makes certain arguments about the propriety of relating the new matter to the one on appeal, and "seeks clarification from Court of Appeal as to the issue of retaliation post separation and failure to rehire claims, so that Fleming can get a fair day at court." As the new matter is not before us, we do not pass on its procedural propriety or its substantive merit.
DISCUSSION
I. Demurrer Standard and Standard of Review
A general demurrer challenges whether the allegations of a complaint are sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e); SLPR, L.L.C. v. San Diego Unified Port Dist. (2020) 49 Cal.App.5th 284, 316 (SLPR).) In opposing a demurrer, "the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) In evaluating the sufficiency of the allegations, the trial court must accept the truth of all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law, and may also consider matters that may be judicially noticed. (SLPR, supra, 49 Cal.App.5th at p. 316.) "A statute of limitations defense may be asserted by general demurrer if the complaint shows on its face that the statute bars the action." (Ibid.) Where the complaint so shows, the plaintiff must specifically plead facts to support equitable tolling. (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550, 555.)
In reviewing a trial court's decision to sustain a general demurrer, we consider de novo the question of whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (SLPR, supra, 49 Cal.App.5th at p. 317.) For the purposes of this review, we generally "accept as true all material factual allegations of the complaint, unless contrary to law or facts of which a court may take judicial notice." (Ibid.) It is the plaintiff's burden on appeal to show error by the trial court in sustaining a demurrer and we may affirm on any grounds without regard to the trial court's basis for decision. (Ibid.)
We separately review a trial court's denial of leave to amend in connection with sustaining a demurrer for abuse of discretion. (SLPR, supra, 49 Cal.App.5th at p. 317.) A plaintiff seeking leave to amend by appeal must show that "there is a reasonable possibility that the defect in the complaint can be cured by amendment." (Ibid.)
A. LAUSD's Demurrer Was Properly Sustained Because Fleming Failed to State a Claim on Which Relief Can Be Granted
1. Fleming's Claims Made Actionable by the January 23, 2018 Right to Sue Letter Were Untimely Under Government Code section 12965, subdivision (c)
Government Code section 12965, subdivision (c), provides that claims under Government Code title 2, division 3, part 2.8 (sections 12900-12999) must be brought "within one year from the date" of the right to sue letter. (Gov. Code, § 12965, subd. (c)(1)(C).) This limitation is applicable to, among other things, employee claims under FEHA (Gov. Code, § 12940) and FEHA's subsidiary CFRA provisions (Gov. Code, § 12945.2).
After the matter was fully briefed, we requested supplemental letter briefing on the issue of whether Fleming's January 24, 2019 initial complaint was filed within one year from the date of the January 23, 2018 right to sue letter issued by DFEH to Fleming. For the reasons stated in LAUSD's letter brief, we conclude that it was not, rendering Fleming's action untimely pursuant to Government Code section 12965, subdivision (c).
Though she conceded to the trial court that it was untimely, Fleming argues on appeal that her initial complaint was timely because she filed it "exactly 365 days (one year) after January 24, 2018, excluding the first day (January 23, 2018) as required by Government Code section 6800." By counting only days "after" the day after the right to sue letter, Fleming applies the rule of section 6800 twice. Under Government Code section 6800 (and Code of Civil Procedure section 12), the proper calculation is to count one year-365 days-after the January 23, 2018 right to sue letter. This results in the exclusion of the day of the triggering event. The result of that calculation is the deadline of January 23, 2019. (Cf. Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 856 ["His 18th birthday-December 3, 2011-was the triggering event because that was the first day he was no longer a minor. Excluding this date and including the last date two years later, plaintiff was required to file suit no later than December 3, 2013."].) These provisions are not susceptible to other possible interpretations and the one-year time limitation of Government Code section 12965 is strictly construed. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1413 (Acuna).)
Because her initial complaint was filed on January 24, 2019, a year and a day after she received her right to sue letter, Fleming failed to timely commence her action under Government Code section 12965.
Fleming argues that, even if filed outside the applicable statutory period, her complaint could be rendered timely under the doctrines of equitable tolling, relation back, or continuing violations. We disagree that any of these doctrines applies under the facts presented.
a. Equitable Tolling
LAUSD correctly notes that, though she offers some discussion of equitable tolling in her opening brief, the concept is effectively buried in passing and Fleming fails to apply the facts of her case to the standards she articulates. As she fails to offer reasoned argument on the point, we consider her equitable tolling arguments forfeited. (Cal Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.) However, even if we were to consider whether equitable tolling applied to the facts alleged, we would conclude that it does not.
"[E]quitable tolling is a narrow remedy that applies to toll statutes of limitations only 'occasionally and in special situations.'" (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 724 (St. Francis).) It is not a" 'cure-all for an entirely common state of affairs'" and should apply only where the court, following a careful examination of the facts, concludes that" 'justice and fairness'" demand tolling. (Ibid.) For equitable tolling to apply, the following three elements must be present: (1) timely notice; (2) lack of prejudice; and (3) reasonable and good faith conduct on the part of the plaintiff. (Id. at p. 725.)
To satisfy the timely notice requirement, the plaintiff's actions must have "caused the defendant to be 'fully notified within the [statute of limitations] of [the] plaintiff['s] claims and their intent to litigate.'" (St. Francis, supra, 9 Cal.5th at p. 726.) Here, between the date of the triggering event (the right to sue letter) and the date the limitations period expired, we find no allegation that Fleming communicated her intent to litigate to LAUSD. In fact, the only action that Fleming alleges she took vis-à-vis her claims between January 23, 2018 and January 23, 2019 was that she "left another message" with DFEH in February 2018 about her complaints, to which DFEH did not respond. This action was not a notice to LAUSD and not an expression of an intent to litigate.
We do not consider obtaining a right to sue letter from the DFEH to be independently sufficient to convey an intent to litigate for equitable tolling purposes as it would cause timely notice to be found in every FEHA case. (Cf. St. Francis, supra, 9 Cal.5th at p. 728 [declining to infer prejudice from a condition that would result in "prejudice in just about every equitable tolling case"].) This would be contrary to treating Government Code section 12695 as a "strict 'one-year statute of limitations'" (Acuna, supra, 217 Cal.App.4th at p. 1413) and the Supreme Court's stated policy of limiting equitable tolling only to the occasional, special case (St. Francis, supra, 9 Cal.5th at p. 724). In any event, a right to sue letter is notice to the employer of its amenability to suit within one year, not a declaration by the employee that he or she intends to sue.
We also find that the allegations do not support the requirement that Fleming acted reasonably for the purposes of the reasonableness and good faith requirement. Whether a party's actions were reasonable is objective, focusing on "whether that party's actions were fair, proper, and sensible in light of the circumstances." (St. Francis, supra, 9 Cal.5th at p. 729.) Although reasonableness is typically a question of fact, it may be determined at the pleading stage as a matter of law where the facts permit reasonable minds to come to just one conclusion. (See, e.g., Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1076 [reasonableness for purposes of estoppel reliance susceptible to determination at demurrer stage where allegations permit only one conclusion]; Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921 [reasonableness for purposes of delayed discovery rule and fraud reliance susceptible to determination at demurrer stage where allegations permit only one conclusion]; see also Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298, 306 [affirming demurrer where equitable tolling allegations failed to show reasonable conduct as a matter of law].)
Both Fleming and her counsel received a letter from DFEH informing them that any action on the DFEH complaint had to be filed within one year from the date of the January 23, 2018 letter. The letter further stated that DFEH would take "no further action on the complaint." Even accepting the allegation that Fleming believed DFEH was continuing to investigate her complaint, this was manifestly unreasonable in the face of DFEH's direct, written statement to the contrary (as well as the fact that DFEH did not return her call or communicate with her at all during the limitations period). It was also manifestly unreasonable to disregard DFEH's explicit instruction that her complaint had to be filed within one year of the letter. To excuse Fleming's inattention to the explicit notices in her right to sue letter, without more, would permit equitable tolling to operate in the" 'entirely common state of affairs'" of untimely FEHA complaints. (St. Francis, supra, 9 Cal.5th at p. 724; cf. J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 658 [denying equitable tolling for lack of injustice where plaintiff "simply failed to comply with the claims statutes, missing an easily ascertainable deadline that has been in place for over 50 years"]; Bonifield v. County of Nevada, supra, 94 Cal.App.4th at p. 306 [attorney neglect in late filing cannot satisfy equitable tolling's reasonableness requirement as a matter of law].)
Citing a case from the United States Court of Appeals for the Ninth Circuit, Fleming asserts that equitable tolling may be available to an employment discrimination plaintiff that (1) diligently pursued his or her claim; (2) was misinformed or misled by the agency responsible for processing his or her charge; (3) relied on misinformation or misrepresentations; and (4) was acting pro se. Even to the extent this is correct, Fleming satisfies none of these requirements. She alleges no pursuit of her claim during the limitations period beyond a voicemail to the DFEH, which the DFEH did not return. Rather than being misinformed, the DFEH made clear in her right to sue letter that it would "take no further action on [her] complaint." Fleming identifies no misinformation or misrepresentations by the DFEH on which she relied in waiting until January 24, 2019 to file her lawsuit. Indeed, the allegations are that they did not return her calls. And while she may have been the one to try to phone the DFEH from time to time, she was represented by counsel in this matter both in obtaining the right to sue letter and in late filing her complaint. She is not "pro se."
The allegations of the third amended complaint do not show an entitlement to equitable tolling.
b. Relation-Back
The relation-back doctrine does not save Fleming's claims from the effect of Government Code section 12965's one-year limitations period because there was no timely action to which her untimely action could relate back.
Fleming argues that "LAUSD's further retaliation against [her] relates back to her original DFEH Complaint," meaning that her "second DFEH complaint would be deemed filed at the time the first one was filed" and that her "amended complaint in the civil action would be deemed filed at the time the original complaint was filed." Even if correct, none of this would render her original complaint filed the day before it was filed.
To the extent Fleming's papers can be read to suggest a civil complaint filed in superior court can relate back to an administrative DFEH complaint, she offers no authority for the proposition. Such a rule would render Government Code section 12965's one-year limitations period a nullity as a complaint under FEHA necessarily rests on the same set of facts as the DFEH complaint that rendered it actionable in the superior court. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 931 [" 'The timely filing of an administrative complaint' before the DFEH 'is a prerequisite to the bringing of a civil action for damages.' "].) We therefore reject it.
Fleming only cites to authority whereby a civil complaint can relate back to an earlier civil complaint or an administrative complaint can relate back to an earlier administrative complaint. Neither is analogous to her efforts to render her initial civil complaint timely.
Finally, neither Fleming's November 2019 amendment to her January 2018 DFEH complaint nor her March 2020 DFEH complaint save her claims on the January 2018 DFEH complaint. We agree with the Acuna court that, once the time to file a civil action on a FEHA claim has expired, a claimant cannot revive the expired claims by filing a new DFEH complaint based on the same facts. (Acuna, supra, 217 Cal.App.4th at p. 1417.)
The relation-back doctrine does not save the claims that were the subject of her January 23, 2018 right to sue letter.
c. Continuing Violations
The continuing violations doctrine is inapplicable as Fleming fails to demonstrate how it applies to her untimely civil complaint. As Fleming explains, "the one year statute of limitations under Government Code § 12960(d) may be tolled where an employer engaged in a series of continuing and related violations under [FEHA] . . . ." In support, Fleming cites Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards), which so held. However, Fleming fails to cite any authority that the continuing violations doctrine can extend the time period under Government Code section 12965 , subdivision (c), which is the relevant obstacle to her claims.
According to Fleming, the continuing and related violations she suffered were being placed on the 39-month reemployment list and then not being reemployed. In support of its response to this argument, LAUSD asked us to take judicial notice of a California Public Employment Relations Board decision addressing whether an employee on the 39-month reemployment list is terminated or separated. As we find that the continuing violations doctrine cannot extend Government Code section 12965's deadline to file a civil suit as a matter of law, we do not reach this issue. We therefore deny LAUSD's request for judicial notice as moot. (See, e.g., Miller v. Zurich American Ins. Co. (2019) 41 Cal.App.5th 247, 255, fn. 5 ["Because the documents are not necessary to resolve the issues before us, we deny the request for judicial notice as moot"].)
The Richards court found the continuing violations doctrine applicable based on (i) an analysis of the term "unlawful practice" (which triggers Government Code section 12960's limitation period); and (ii) the policy implications of forcing an employee to file a formal complaint while informal conciliation efforts may remain ongoing between the parties. (Richards, supra, 26 Cal.4th a pp. 818-823.) Neither Richards consideration under section 12960 applies to section 12965. The clock under Government Code section 12965 begins running with the issuance of a right to sue letter, not the occurrence of an "unlawful practice." (Gov. Code, § 12965, subd. (c).) Likewise, extending the continuing violations doctrine to Government Code section 12965 actions would not serve to protect an otherwise cooperative process from the chilling effects of a formal complaint. By definition, once Government Code section 12965 comes into play, the employee has filed a formal complaint with the DFEH and the DFEH has informed the parties that the employee is entitled to sue on the allegations contained therein. (Cf. Acuna, supra, 217 Cal.App.4th at pp. 1414-1415 ["By retaining counsel and filing a DFEH complaint, Acuna manifested an understanding that further attempts at informal, rather than formal, resolution of the disability accommodation process would not be successful and were futile. Under these circumstances, the continuing violations doctrine is inapplicable."] (Italics added.).)
As Fleming had already filed her DFEH complaint and obtained a right to sue letter, we find the continuing violations doctrine inapplicable to save the claims that were the subject of her January 23, 2018, right to sue letter.
For the reasons stated above, all claims that Fleming could have asserted pursuant to the January 23, 2018, right to sue letter-including those asserted in her January 24, 2019, initial complaint-expired on January 23, 2019, when she failed to commence an action on them. Moreover, none of those claims is subject to revival by a later-filed right to sue letter alleging the same conduct. As such, the trial court properly sustained LAUSD's demurrer as to these claims.
However, this analysis does not address claims based on conduct not covered by Fleming's January 23, 2018, right to sue letter. We now turn to those claims.
i. Claims Not Subject to the January 23, 2018, Right to Sue Letter
Because her claims covered by the January 23, 2018, right to sue letter are expired, Fleming has the ability to assert only claims based on conduct occurring after January 23, 2018, that are timely filed pursuant to a new right to sue letter. Fleming obtained such a right to sue letter on March 24, 2020. Save for the recharacterization of her termination as a "separation" and certain other non-substantive changes, the DFEH complaint attached to Fleming's March 24, 2020, right to sue letter is distinguishable from the January 23, 2018, version (as amended on November 4, 2019) only by its final paragraph. This paragraph reads as follows: "I filed a lawsuit on January 24, 2019, and believe that I was also subjected to discrimination and adverse actions, including no rehire/reinstatement/reemployment because of it."
As reflected in FEHA's acknowledgment of Fleming's November 4, 2019 DFEH complaint, such complaint is deemed to have the same filing date as her original DFEH complaint and is therefore covered by the January 2018 right to sue letter.
Corresponding allegations are found in paragraph 48 of the third amended complaint, where Fleming alleges "[o]n information and belief, [she] believes that LAUSD has flagged [her] identifying information which prevents [her] to apply for jobs at LAUSD." She contends that this was "in direct retaliation [for her] filing [her] lawsuit, among other reasons, as well as discrimination due to her disability." She further alleges that "as of March 2020, [she] ha[d] been unable to apply for jobs" at LAUSD. These bare allegations are inadequate to state a claim for retaliation.
In her opening brief, Fleming elaborates that, when she entered her social security number while attempting to apply for jobs with LAUSD "she received a message in red preventing her from applying" and was unsuccessful in applying for jobs on "several attempts." These allegations do not appear in her third amended complaint. In evaluating the sufficiency of a complaint, we do not consider new allegations made in an appellate brief.
First, Fleming fails to allege the basis for her purported belief that LAUSD "flagged" her identifying information and prevented her from applying for jobs. "[W]here factual allegations are based on information and belief, the plaintiff must allege 'information that "lead[s] [the plaintiff] to believe that the allegations are true."' [Citation.]" (Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.) In her briefing on appeal Fleming elaborates that, among other things, she "applied for various positions, and each time she was prevented from applying as her social security number was flagged." Even assuming these allegations would suffice to establish the basis for her belief, they are not in her third amended complaint and therefore cannot be considered in evaluating its sufficiency.
Second, the allegations are directly contradicted by statements Fleming made and other evidence she offered in opposition to LAUSD's demurrer. While it is ordinarily true that facts extrinsic to the complaint are not considered on demurrer, a demurrer may be sustained where allegations necessary to the plaintiff's claims "are directly contradicted by an affidavit filed voluntarily in opposition to the defendant's demurrer." (Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734; see also Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 ["the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff"].)
In her August 7, 2020, declaration filed in opposition to LAUSD's demurrer, Fleming states that she "was able to apply for positions at LAUSD around November 4, 2019 and as such applied for multiple positions . . . ." (Italics added.) She backs up her statement by attaching four letters from LAUSD, each dated November 4, 2019, confirming receipt of applications for four different positions. These facts cannot be squared with allegations that LAUSD flagged her identifying information and successfully prevented her from applying for new jobs through March of 2020.
Third, to state a FEHA retaliation claim a plaintiff must plead the following elements: (1) the employee's engagement in a protected activity; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation. (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243.) Fleming's filing of a complaint constitutes a protected activity under Government Code section 12940, subdivision (h). Even if we were to accept (her contrary testimony notwithstanding) that Fleming suffered an adverse action in being blocked from applying for LAUSD jobs, Fleming fails to show her third amended complaint alleges retaliatory animus on account of her civil complaint or a link between the retaliatory animus and the adverse action. Fleming does not discuss the elements of a retaliation claim in her opening brief and the only fact she refers to as establishing retaliatory animus in reply is that she was "immediately plac[ed]" on the 39-month reemployment list. This, however, occurred in 2017, long before she filed the civil complaint on January 24, 2019. Assuming, but not deciding, that placement on the 39-month reemployment list could evidence retaliatory animus, any such animus could not have been the result of an action that Fleming took nearly two years later.
In short, after reconciliation with contrary allegations in her declaration, Fleming's allegations concerning LAUSD's conduct after she sued in 2019 (and, indeed, after she obtained the January 23, 2018, right to sue letter) amount to nothing more than that LAUSD did not hire Fleming for new jobs for which she applied. While it affords aggrieved employees substantial protections, the FEHA does not guarantee future employment in roles of their choosing to individuals that merely invoke the statute.
For these reasons, we affirm the trial court's decision to sustain LAUSD's demurrer to Fleming's third amended complaint for failure to state a claim.
A. No Leave to Amend
"The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect by amendment." (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) Though she acknowledges this burden in her opening brief, Fleming neither identified new allegations that could cure the deficiencies in the third amended complaint nor so much as requested that we grant leave to amend. She had four opportunities to state a viable cause of action, and was unsuccessful. Accordingly we have no basis on which to find the trial court abused its discretion in denying Fleming leave to file a fourth amended complaint. (See Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 42.) We affirm the trial court's order sustaining LAUSD's demurrer without leave to amend in all respects.
DISPOSITION
The judgment is affirmed. LAUSD's request for judicial notice is denied. LAUSD shall recover its costs on appeal.
We concur: STRATTON, Acting P. J., WILEY, J.
[*] Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.