Opinion
B161173.
7-31-2003
LORITA SEATON, Plaintiff and Appellant, v. CALIFORNIA STATE DEPARTMENT OF CORRECTIONS, Defendant and Respondent.
Frank Sanes Jr. for Plaintiff and Appellant. Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Laura Lee Gold, Supervising Deputy Attorney General, and Patricia A. Nevonen, Deputy Attorney General for Defendant and Respondent.
INTRODUCTION
After she was discharged from her position as a parole officer with the State Department of Corrections (the Department), plaintiff Lorita Seaton, pursued her administrative remedies before the State Personnel Board (the Board) and thereafter brought a civil action against the Department. The Department successfully demurred to the six causes of action in the third amended complaint and Seaton appeals. Viewing the various complaints as well as judicially noticeable documents, no amount of amendment can cure the defects in each of the causes of action. We hold the trial court properly sustained the demurrer without leave to amend. Seaton also sought a writ of mandate against the trial judge for bias, without having first filed a challenge in the trial court. (Code Civ. Proc., § 170.1.) We deny the petition and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Seaton was employed by the Department as a parole agent from 1991 until she was discharged from employment "effective February 8, 1999."
Seaton appealed her discharge to the Board, which upheld the termination on November 23, 1999. The Board denied Seatons petition for rehearing effective May 11, 2000.
Seatons original complaint for damages, filed on April 19, 2001, named as defendants the Board and Does 1 through 50.
Seaton amended her complaint to substitute the Department as defendant instead of the Board. Filed on August 14, 2001, Seatons first amended complaint sought damages for employment discrimination in violation of the Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940 et seq.) and in violation of Title VII (42 U.S.C. § 2000e-5). Seaton alleged she "filed an oral charge with the California Department of Fair Employment and Housing [the DFEH] and received a Right to Sue Letter." (Italics added.) She also alleged a conspiracy against her by her supervisors and the Los Angeles Police Department, in part because of her race.
The Department demurred to the first amended complaint on the grounds Seatons Title VII and FEHA claims failed because she had not exhausted her administrative or judicial remedies, and the Boards decision barred her claims under the doctrine of res judicata.
Seaton filed her second amended complaint on December 18, 2001, alleging violations of the FEHA and Title VII, and adding new causes of action under the federal Civil Rights Act (42 U.S.C. §§ 1983, 1985, & 1988) based on a conspiracy to deprive her of her job and prevent the Board from investigating Seatons discrimination claims, and a claim entitled intentional infliction of emotional distress.
The Department demurred to the second amended complaint raising the same grounds as before. The Department attacked the new causes of action by asserting that Seatons civil rights claims were barred by the statute of limitations because they were not raised until the second amended complaint; the Department is not a person within the meaning of section 1983; the Department is immune to suit under the Eleventh Amendment of the United States Constitution; and the emotional distress claim was barred because Seaton failed to present her claim to the State Board of Control. Seaton did not oppose the demur to the civil rights causes of action.
After the Department filed its demurrer to the second amended complaint, on February 28, 2002, Seaton filed her charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) alleging a sham hearing before the Board. She also described a hostile work environment, that Levan Bell, Regional Parole Administrator, Region III, discharged her for misconduct, and her belief she was harassed and discharged because of her race. The EEOC issued a right to sue letter that same day.
The trial court sustained the Departments demurrer to the civil rights causes of action (42 U.S.C. §§ 1983, 1985, & 1988) without leave to amend. The court gave Seaton leave to amend the intentional infliction of emotional distress and Title VII claims. The court overruled the demurrer to the cause of action for wrongful termination in violation of the FEHA, without prejudice.
Seatons third amended complaint was filed on March 21, 2002, against the Department re-alleging wrongful termination in violation of the FEHA (first cause of action) and Title VII (sixth cause of action), and seeking damages for intentional infliction of emotional distress (second cause of action). Seaton identified six Doe defendants as Regional Administrator Levan Bell, Department Director C. Terhune, Unit Supervisor Jerry Cutler, Unit Supervisor Fernando Rios, Special Investigator Linda Hidy, and Acting District Director C.M. Toombs, and re-alleged the civil rights claims (42 U.S.C. §§ 1983, 1985, & 1988) (third, fourth, and fifth causes of action, respectively) against such six individual defendants only.
The Department demurred on the same grounds as before. The court sustained the Departments demurrer as to the entire complaint and denied Seaton leave to amend. The court noted, as to the FEHA and intentional infliction of emotional distress claims, that Seaton was required to seek a writ of mandamus to challenge the findings of the Board or she was bound by the Boards findings. As for Seatons Title VII claim, the court found she had failed to file the claim in a timely manner. Finally, the court ruled the causes of action under 42 United States Code sections 1983, 1985, and 1988 had already been dismissed with prejudice when the court sustained the demurrer to the second amended complaint without leave to amend and Seaton could not revive those claims by naming new defendants. Seatons timely appeal followed.
CONTENTIONS
Seaton contends the trial court erred (1) in refusing to give reasons for his ruling sustaining the demurrers, and (2) in sustaining the demurrer without leave to amend.
DISCUSSION
1. Standard of review. " "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citations.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.] [Citation.]" (Carden v. Getzoff (1987) 190 Cal. App. 3d 907, 912, 235 Cal. Rptr. 698, quoting from Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58.)
2. The court gave reasons for its ruling.
Seaton contends pursuant to Code of Civil Procedure section 472d that the trial court erred in refusing to give reasons for its ruling sustaining the demurrers. Seaton is wrong. We have reviewed the entire reporters transcript and the courts minute order. Therein, the court adequately explained its reasons for sustaining the demurrer as to each cause of action. The court clearly stated the FEHA and intentional infliction of emotional distress claims "should have been addressed by [a petition for] writ [of administrative mandamus];" the "statute has run" on the Title VII cause of action; and the demurrer to the remaining causes of action under 42 United States Code sections 1983, 1985, and 1988 had already been sustained without leave to amend.
3. The first cause of action for wrongful termination in violation of the FEHA is barred.
A. The Boards findings are final and binding on Seaton.
To "avoid giving binding effect to the administrative agencys decision . . . . " under the FEHA (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70), the plaintiff must pursue his or her judicial remedies, namely, a petition for writ of mandamus and any appeals that may be taken following the grant or denial of the writ petition. (Code Civ. Proc., §§ 1094.5, 1085.) Where internal remedies are available, as in this case, an administrative finding is "binding on discrimination claims under the FEHA" unless it is reversed through the judicial process of section 1094.5 or section 1085 of the Code of Civil Procedure. (Johnson, supra, at p. 76.)
Seaton appealed her discharge to the Board. The Board found she was properly discharged for inexcusable neglect of duty, dishonesty, discourteous treatment of the public, and using confidential information for private gain or advantage. The first cause of action in Seatons complaint alleges that she was wrongfully terminated in violation of the FEHA based on a conspiracy to deny her job. In opposing the demurs, Seaton argued her FEHA claim was tolled while she pursued her administrative remedies, thereby effectively conceding she raised the discrimination claim to the Board. She also acknowledges in her third amended complaint that this issue was adjudicated by the Board.
Seaton never sought a writ of administrative mandamus to challenge the Boards findings. Therefore, the Boards decision " has achieved finality [citation] and has the effect of establishing the propriety of the [Boards] decision [citation]" and is binding on Seaton. (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 71.) Seaton may not raise that issue in her complaint. (Id. at pp. 71, 76.)
B. Seaton is barred from raising her FEHA claims under the doctrine of res judicata.
Notwithstanding her assertion she raised the discrimination issue before the Board, Seaton also argued to the trial court she never raised a discrimination claim before the Board with the result that her failure to seek a writ of mandamus to challenge the Boards findings does not preclude her from asserting a FEHA claim in her complaint. The contention is unavailing because the doctrine of res judicata bars Seaton from raising her FEHA claim for wrongful termination in the third amended complaint.
"The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent." (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065, italics added.) That is, " if the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. " (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377-378, original italics.)
"For purposes of identifying a cause of action under the doctrine of res judicata, California has consistently applied the "primary rights" theory, under which the invasion of one primary right gives rise to a single cause of action. But . . . the "cause of action" is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. " (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340-341, citations and fn. omitted.) In the context of wrongful termination of employment, the primary right is the right to continued employment. Therefore, a discharged employees claim of discrimination involves the same primary right, and hence the same cause of action, as a claim of wrongful termination of employment. (Balasubramanian v. San Diego Community College Dist . (2000) 80 Cal.App.4th 977, 992; Takahashi v. Board of Education (1988) 202 Cal. App. 3d 1464, 1474-1477, 249 Cal. Rptr. 578.)
Applying the foregoing rules here, even if Seaton did not raise the discrimination claim to the Board, she could have raised it. (Warga v. Cooper, supra, 44 Cal.App.4th at pp. 377-378.) Seaton claimed not only the same wrongful termination based on the same set of facts, but the very same conspiracy that underlies her discrimination claim. Thus, Seatons primary right to her claim of continued employment encompassed being free from discriminatory treatment, with the result Seaton cannot split that claim and bring a second lawsuit for discrimination. The trial court properly sustained without leave to amend the demurrer to the first cause of action.
4. The sixth cause of action under Title VII is untimely.
Seaton alleges in her sixth cause of action that the Department violated Title VII (42 U.S.C. §§ 2000e et seq., 12117(a), & 2000d) prohibiting racial discrimination in employment. In its demurrer, the Department asserted her cause of action was untimely because she did not comply with the statutory requirement to file a charge with the EEOC.
Before she can file suit alleging a claim under Title VII, Seaton must file a charge with the EEOC and obtain a right-to-sue letter. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325.) The failure to file a timely charge with the EEOC is a failure to satisfy all administrative prerequisites to filing a complaint and precludes a trial on the merits. (Ellis v. Wal-Mart Stores, Inc . (M.D.Ala. 1996) 952 F. Supp. 1513, 1519.)
As for the timing, an unlawful employment practice charge under 42 United States Code section 2000e must be filed either: (1) 180 days after the alleged unlawful employment practice occurred, or the earlier of (2) 300 days after the alleged unlawful employment practice occurred if the employee initially instituted proceedings with a State agency, such as the DFEH, and (3) within 30 days after receiving notice that the State agency has terminated the proceedings. (42 U.S.C. § 2000e-5(e)(1).)
42 United States Code section 2000e-5(e)(1) states in relevant part, "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency."
When viewed in a light most favorable to Seaton, the complaints and judicially noticeable documents (Carden v. Getzoff, supra, 190 Cal. App. 3d at p. 912) reveal she failed to file a timely charge with the EEOC. The charge was filed on February 28, 2002, which is more than 300 days after her termination in February 1999, and more than 30 days after receiving a right-to-sue letter from the DFEH. Therefore, Seatons Title VII claim is time-barred. (Choi v. Chemical Bank (S.D.N.Y. 1996) 939 F. Supp. 304, 310-311.)
Seatons charge to the EEOC also alleges that her hearing before the Board was a "sham." Assuming that hearing constitutes part of the alleged "unlawful employment practice" (42 U.S.C. § 2000e-5(e)(1)), such violation ended on May 11, 2000, when the Board denied her petition for rehearing. Calculating the 300-day time-period from that later date (ibid.), Seaton had to have filed her charge with the EEOC by March 2001, and so her charge filed on February 2, 2002, was almost a year late.
Citing Daviton v. Columbia/HCA Healthcare Corp. (9th Cir. 2001) 241 F.3d 1131 (en banc), Seaton argued to the trial court that her claims were equitably tolled while she pursued her remedies with the Board. In Daviton, the Ninth Circuit held in the context of 42 United States Code section 1983 that the California statute of limitations may be tolled under California rules of equitable tolling while the plaintiff is pursuing his or her administrative remedies. (Id. at pp. 1137-1138.)
Seatons reliance on Daviton is unavailing because she was not pursuing any administrative remedies between May 11, 2000, - the close of the proceedings before the Board - and February 2, 2002 - when she filed her claim with the EEOC. During that period nothing occurred that would toll the timeframe for filing a charge with the EEOC. There was no justification therefore, for Seatons delay in filing her charge with the EEOC for nearly a year beyond the applicable deadline.
Zipes v. Trans World Airlines, Inc. (1982) 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127, upon which Seaton relies is unavailing. Zipes held "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." (Id. at p. 393, fn. omitted.) The requirement operates as a statute of limitations. (Id. at pp. 393-395.) We have never said that filing a charge with the EEOC is jurisdictional. Filing is, however, a requirement that is subject to waiver, estoppel, and equitable tolling. Seaton has failed to make a showing that equitable tolling applies and does not argue waiver or estoppel. Therefore, she has failed to meet the requirement.
We reject Seatons assertion she complied with the administrative prerequisites under Title VII by receiving a right-to-sue letter from the DFEH. A DFEH claim is not a substitution for an EEOC claim. (Roman v. County of Los Angeles, supra, 85 Cal.App.4th at p. 326.) Similarly unavailing is her assertion an "oral" filing with the DFEH complies with the EEOCs filing requirement. 42 United States Code section 2000e-5(b) specifies "charges shall be in writing under oath . . . ."
Therefore, the trial court properly sustained the Departments demurrer to the Title VII claim. Because no amount of amendment could make Seatons Title VII timely, the trial court properly denied leave to amend that cause of action.
5. The third, fourth, and fifth causes of action for violation of Seatons civil rights (42 U.S.C. §§ 1983, 1985, & 1988) are untimely.
A. The claims were untimely.
Claims under 42 United States Code sections 1983 and 1985 carry a one-year statute of limitations. (See Daviton v. Columbia/RCA Healthcare Corp., supra, 241 F.3d at p. 1135; McDougal v. County of Imperial (9th Cir. 1991) 942 F.2d 668, 673-674 [one-year statute of limitations applies to § 1985 suits].)
Civil Rights Attorneys Fees Awards Act of 1976, 42 United States Code section 1988, is a statute allowing for the award of attorney fees to prevailing parties in vindication of statutory and common law civil rights actions.
Viewing the complaint and documents of which we may take judicial notice, all in the light most favorable to Seaton, her civil rights claims under sections 1983, 1985, and 1988 are untimely. Seaton alleged as violations of her civil rights, her termination from employment and the conspiracy to prevent the Board from investigating her complaints. Thus, Seatons latest alleged injury occurred on May 11, 2000. The first time Seaton alleges anyone deprived or conspired to deprive her of her civil rights was in her second amended complaint filed in December 2001, some 18 months later. Quite apart from whether the Department is a person under the Civil Rights Act or whether the State is immune from suit under the Eleventh Amendment of the United States Constitution, the trial court properly denied leave to amend because no amount of amendment can cure the fact that Seatons third, fifth, and sixth causes of action were untimely brought.
B. Seaton may not amend to include the Doe defendants.
After the trial court sustained the demurrer to Seatons civil rights claims (42 U.S.C. §§ 1983, 1985, & 1988) and denied leave to amend, Seaton re-alleged the same three causes of action, only in the third amended complaint she asserted them against the six individual defendants. Then, she began serving the six individuals. The court denied her request to enter defaults against those defendants apparently because of numerous procedural errors on Seatons part, such as the failure to follow substituted service, and the notice was incomplete or erroneous. The trial court dismissed the civil rights claims without leave to amend when it dismissed the entire complaint. We affirm that ruling on the ground Seatons claims are untimely. Those six individual defendants are not before the trial court and, in any event, Seaton may not revive her untimely civil rights claims by naming new and different defendants.
6. The court properly denied leave to amend the second cause of action entitled intentional infliction of emotional distress.
No suit for money or damages may be brought against the State without first filing a claim with the Victim Compensation and Government Claims Board, formerly known as the State Board of Control. (Gov. Code, §§ 900.2, subd. (b), 905.2, & 945.4.) Claims such as Seatons must be filed within six months of the accrual of the cause of action. (Gov. Code, § 911.2.)
The presentation of a claim to a public entity and its rejection are prerequisites to maintaining suit against the entity. (Nguyen v. Los Angeles County Harbor/UCLA Medical Center
(1992) 8 Cal.App.4th 729, 732.) "The purpose of the claim requirements is to provide a public entity with sufficient information to enable it to investigate and evaluate the merits of claims, assess liability, and, where appropriate, to settle claims without the expense of litigation. [Citation.]" (Ibid.) Hence, "failure to comply with the mandatory requirements is fatal to the cause of action. [Citation.]" (Ibid.)
In order to assert her tort claim, Seaton had until August 8, 1999, which is six months after her discharge, or November 11, 2000, which is six months after the proceedings before the Board were completed. The record contains no evidence whatsoever Seaton filed the requisite claim. Nor does she even argue she has. Hence, Seaton utterly failed to fulfill the statutory requirements.
Nor has Seaton substantially complied with the requirements, as she contends. Neither her pre-inquiry letter to the Director of the Department, nor the proceedings before the Board, nor the DFEH filings satisfy the statutory requirements. "The substantial compliance doctrine has application only when there is a defect in form but the statutory requirements have otherwise been met. [Citations.]" (Nguyen v. Los Angeles County Harbor/UCLA Medical Center, supra, 8 Cal.App.4th at p. 733; Gov. Code, § 910 [listing the notice requirements].) None of the cited documents contains the requisite "amount claimed. . . ." or "general description of the indebtedness, obligation, injury, damage or loss incurred . . . ." (Gov. Code, § 910, subds. (d) & (f).) They are merely letters complaining of certain aspects of her work situation. The DFEH charge put the Department on notice of Seatons FEHA claim but not of her claim for damages for intentional infliction of emotional distress. Therefore, Seatons failure even to substantially comply with the mandatory requirements is fatal to her cause of action for intentional infliction of emotional distress. (Nguyen, supra, at p. 733.) As no amount of amendment could change the result, the denial of leave to amend was proper.
7. Disqualification of the trial court and Attorney Generals office.
We reject that portion of Seatons appeal identified as a "Mandamus action against the trial judge who appears biased against plaintiff . . . ." The record contains no indication that Seaton ever filed a challenge to the judge under Code of Civil Procedure section 170.1 et seq.
DISPOSITION
The judgment is affirmed. The petition for writ of mandate is denied. Each party to bear own costs of appeal.
We concur: KLEIN, P.J., CROSKEY, J.