Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC344988, Edward A. Ferns, Judge.
Mary Jones, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman, Rand D. Carstens, Jeffry A. Miller and Matthew B. Stucky for Defendant and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.
Plaintiff, Mary Jones, appeals from the judgment on jury verdict in favor of defendant, the Regents of the University of California, in an action for employment discrimination and retaliation. She contends that the court erred by: (1) restricting her discrimination claims because of failure to exhaust administrative remedies; (2) similarly limiting her retaliation claims; (3) declining to enter defendant’s default; and (4) striking allegations of injuries covered by workers’ compensation. We find these claims unavailing and affirm the judgment.
FACTS
Plaintiff formerly worked as an operating room nurse at defendant’s University of California at Los Angeles (UCLA) hospital. Her operative, first amended complaint (FAC) alleged two primary causes of action: for discrimination, under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.; and for retaliation, in violation of FEHA, and of Labor Code section 1102.5 and section 8547.10, which provide whistleblower retaliation remedies for defendant’s employees. The remaining three causes of action were for asserted violations of “public policy,” including a First Amendment challenge to the claim form defendant had promulgated pursuant to section 8547.10.
All undesignated statutory references are the Government Code.
Defendant demurred to the latter three causes of action, and the demurrers were sustained on January 3, 2007, with 15 days leave to amend. By the same order, the court granted defendant’s motion to strike, from the discrimination and retaliation causes, numerous allegations of conduct as to which plaintiff had not exhausted administrative remedies under FEHA (first cause) or section 8547.10 (second cause), by timely filing administrative complaints. The effect of this ruling was to bar plaintiff from proceeding with claims for discrimination occurring before February 15, 2004, for retaliation under FEHA before August 24, 2004, and for any violations of Labor Code section 1102.5 or section 8547.10. Among other things, the ruling also struck two paragraphs of the retaliation cause of action alleging improper treatment by defendant after plaintiff suffered a work injury that resulted in her leaving UCLA. The rulings on motion to strike were made without leave to amend, the court having previously granted a similar motion to strike with respect to the original complaint.
Plaintiff filed a purported appeal from the order sustaining demurrer and granting motion to strike on January 12, 2007, five days after it was rendered. On April 23, 2007, this division dismissed the appeal because the order was not appealable. The dismissal order did not disturb another appeal plaintiff had commenced, from the denial of a motion for an injunction concerning defendant’s whistleblower complaint form.
Defendant answered the FAC on February 13, 2007. Defendant then filed a motion to amend the answer, which the court on April 4 placed off calendar, while staying proceedings pending disposition of plaintiff’s pleadings appeal. On August 3, 2007, the court vacated its stay. Defendant urged that the time for filing a second amended complaint (SAC) had expired, and hence the FAC was the operative complaint. Plaintiff replied that she had withheld the SAC because of the stay. Without ruling, the court told plaintiff she could either file a motion for leave to file the SAC, or file the pleading, which would be subject to a motion to strike.
On August 20, 2007, plaintiff filed a document entitled “Notice of Plaintiff’s Second Amended Complaint,” which consisted of a cover sheet and the 64-page SAC itself. Both before and after that filing, plaintiff also filed two notices of motion for leave to file the SAC. On September 20, 2007, defendant filed opposition to all these filings.
Before these matters could be heard, plaintiff, on October 1, 2007, began presenting a series of requests for default or default judgment, all of which the superior court clerk rejected. The requests were premised on the assumption that plaintiff had filed the SAC on August 20, and defendant had not timely responded to it.
On October 3, 2007, the court denied plaintiff’s motion for leave to file the SAC, on numerous grounds, including its noncompliance with the rulings and directions contained in the court’s January 3, 2007 order sustaining demurrer and granting motion to strike. The FAC, as limited by that order, remained the operative pleading. Nevertheless, on October 15, 2007, plaintiff filed a motion for default judgment, which the court denied.
The action went to trial on January 20, 2009. At the outset, the court granted defendant’s motion in limine to exclude evidence of claims outside the time limits set by the order granting motion to strike. This apparently led the court to exclude testimony by a witness plaintiff called regarding her one-week suspension without pay on June 10, 2003. On February 5, 2009, the jury rendered a verdict for defendant on both the discrimination and retaliation causes of action, and judgment was entered accordingly.
DISCUSSION
1. Exhaustion of Remedies -- FEHA Claims.
Plaintiff’s first assertion of error concerns the trial court’s restriction of her claims of discrimination because of failure to exhaust administrative remedies under FEHA. FEHA prohibits, and authorizes a civil action to remedy, discrimination against an employee on a number of bases, including age, sex, and race or color. (§§ 12940, subd. (a), 12965, subd. (b).) Before commencing such an action, however, the plaintiff must file a complaint with the Department of Fair Employment and Housing (DFEH) and receive a notice of right to sue. (§§ 12960, subd. (b), 12965, subd. (b).) The administrative complaint must be filed within one year following the unlawful practice. (§ 12960, subd. (d).)
Before commencing this case, plaintiff filed three FEHA complaints, on August 24, 2004, January 4, 2005, and February 15, 2005. Only the 2004 complaint alleged discrimination on the basis of age as well as race. That discrimination, however, was alleged to have occurred upon plaintiff’s suspension in June 2003, more than a year before the complaint was filed. Accordingly, the court struck from the FAC all allegations of age discrimination. The court also struck references to sex discrimination, which none of plaintiff’s administrative complaints had asserted. In addition, the court struck all other allegations of discrimination before February 15, 2004, or one year before plaintiff’s operative administrative complaint.
The January 2004 complaint, which plaintiff physically filed with the federal Equal Employment Opportunity Commission, is not germane.
Plaintiff contends that these rulings improperly and fatally truncated her case, of which the starting event was her June 2003 suspension. She makes two legal arguments why the court should have found sufficient exhaustion of remedies to ground litigation about that incident and events thereafter. First, plaintiff points to a DFEH “Pre-Complaint Questionnaire” that she filed on March 2, 2004, and contends that that document, rather than the actual, verified complaint of August 24, 2004 (which DFEH prepared) should be treated as an effective complaint. The short answer to this contention is that the questionnaire was simply not a complaint.
Concurrently, appellant states that DFEH told her that August 24 was the earliest date they could meet with her, because they “backlogged.”
Plaintiff’s second argument is that her pre-February 15, 2004 allegations were allowable under the “continuing violation” doctrine, which our Supreme Court refined in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798. There the court held that discriminatory acts occurring outside the limitations period of one year before the DFEH complaint could be sued on if they were “similar in kind,” occurred “with reasonable frequency,” and had not achieved “permanence,” in the sense of not being amenable to cure. (Id. at pp. 822, 823.)
Plaintiff has not demonstrated, however, that her excluded claims met these criteria. Certainly, the June 2003 suspension was a singular, permanent act, one that plaintiff challenged as such in both her August 2004 complaint and in an earlier union arbitration (in which she apparently was successful). And plaintiff’s claim that a variety of succeeding conduct qualified because her supervisors committed it with the common aim of frustrating her is not sufficient.
2. Exhaustion of Remedies -- Retaliation Claims.
Plaintiff’s second cause of action sought damages for retaliation, of two types. The first was retaliation for having complained under FEHA (§ 12940, subd. (h)). Under the FEHA exhaustion rules discussed above, the trial court limited plaintiff’s showing in this regard to acts after August 24, 2004, the date of plaintiff’s first administrative complaint. This ruling was unexceptionable.
The second type of retaliation plaintiff alleged was whistleblower retaliation, under section 8547.10 and Labor Code section 1102.5. She complained of retaliation for having reported various allegedly unsanitary or unsafe practices at the hospital. The trial court disallowed these claims entirely, for failure to exhaust administrative remedies, inasmuch as plaintiff had not filed, as required, a complaint with defendant under section 8547.10, subdivision (a).
Exhaustion of the administrative remedy provided in section 8547.10 is required before an employee of defendant may sue under either that statute or Labor Code section 1102.5. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311.) Plaintiff contends, however, that she was justified in refusing to file defendant’s complaint form, because it was improper in several respects, most significantly requiring agreement to a confidentiality policy that violated the First Amendment.
This division rejected this contention on plaintiff’s prior appeal, Jones v. Regents of University of California (2008) 164 Cal.App.4th 1072, 1077. That ruling is the law of the case, and we adhere to it. The rest of plaintiff’s present complaints about defendant’s form -- two of which we also rejected in the prior decision (see id. at. pp. 1076-1077 -- did not justify circumventing it. Indeed, as we previously held, the form was not the exclusive means for filing a valid complaint under section 8547.10, subdivision (a). (Jones, supra, at pp. 1076-1077.) Plaintiff has not established error in the striking of her whistleblower retaliation claims.
Plaintiff also asserts unclear challenges to the statute of which section 8547.10 is a part, and to defendant’s written enforcement policy, which in any event would not excuse her refusal to exhaust remedies.
3. Refusal to Default Defendant.
Appellant contends that the court should have sustained her effort to default defendant for failing to respond timely to the SAC. We disagree. Although plaintiff included her proposed SAC in the notice she filed on August 20, 2007, she also sought leave to file the pleading, which was denied. In these circumstances, defendant cannot be considered to have defaulted on a pleading that was never truly filed.
4. Industrial Injury Allegations.
Finally, plaintiff complains of the trial court’s striking two paragraphs from the FAC, which related that plaintiff had fallen in an operating room on January 21, 2005, and alleged that defendant’s personnel and contractors had mistreated her when she sought medical attention. The court correctly struck these allegations on the ground they alleged injuries compensable under worker’s compensation, not FEHA. Plaintiff apparently theorizes that her fall was the product of a course of retaliatory behavior by her supervisors. But her allegations do not support such a claim.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: BIGELOW, P. J. RUBIN, J.