Opinion
C079853
08-06-2018
EDNA MILLER, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2012-00132503-CU-HR-GDS)
Edna Miller filed a complaint in the trial court alleging the Department of Corrections and Rehabilitation (CDCR) violated the Fair Employment and Housing Act (FEHA) by demoting and terminating her. The trial court granted CDCR's motion for judgment on the pleadings without leave to amend because Miller did not allege that she filed a complaint with the Department of Fair Employment and Housing (DFEH) within one year after the alleged FEHA violations.
Representing herself, Miller now contends the trial court erred in granting the motion for judgment on the pleadings without leave to amend.
We conclude that although Miller's complaint supported a finding that she failed to file a DFEH complaint within one year after the alleged FEHA violations, she nevertheless successfully asserts facts on appeal -- namely, the filing of a DFEH complaint within one year after the alleged FEHA violations -- that necessitate reversal of the judgment and remand to allow Miller to amend her complaint.
We will reverse and remand for further proceedings.
BACKGROUND
We recount the events and proceedings leading up to the motion for judgment on the pleadings and judgment, accepting as true Miller's factual allegations in her complaint. (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 702.)
In 1999, Miller filed an action against CDCR (case No. 99AS03354) alleging sexual harassment and a hostile environment that exacerbated her preexisting medical problems and caused her to take medical leave. The complaint from that case is not in our appellate record. Ten years later, in 2009, that action was still pending. Miller also filed a retaliation complaint against CDCR with the U.S. Equal Employment Opportunity Commission (EEOC). Miller did not allege the filing date of the EEOC complaint, but the EEOC denied the complaint on August 25, 2009.
On September 5, 2009, Miller contacted CDCR about returning to work. The complaint in the instant case does not allege any wrongful conduct by CDCR with respect to Miller's desire to return to work until almost two years later. Meanwhile, Miller filed a DFEH complaint against CDCR. Again, Miller does not allege the filing date of the DFEH complaint, but the DFEH denied the complaint with a right to sue letter on August 17, 2010. Miller also alleges she filed two claims with the Victim Compensation and Government Claims Board in 2010 and that those claims were denied, but she does not explain the legal relevance of those filings.
Miller filed a federal action against CDCR in the Eastern District of California. She does not allege the exact filing date of the federal complaint, but she alleges it was dismissed on September 21, 2011, because the federal claims were without merit and the federal court declined to exercise jurisdiction over the state claims. The federal complaint does not appear in the record on appeal, so we do not know what the allegations were in that complaint.
Miller alleges that on June 13, 2011, CDCR retaliated against her by not allowing her to return to an equivalent position. Miller calls this a medical demotion. She alleges she sent a notice to CDCR stating that she refused to accept the medical demotion but never heard back from CDCR.
According to the instant complaint, on August 31, 2011, CDCR terminated Miller because she was absent without approved leave from her job. Miller was given notice, and she had until September 21, 2011 to file a request for reinstatement appeal. On October 21, 2011, Miller filed a request for reinstatement appeal, which was denied as untimely.
On October 21, 2011, Miller filed her original complaint in this case, titled as a "Verified Civil RICO Complaint" against CDCR, asserting, among other things, that CDCR's pre-2011 conduct violated FEHA. However, the original complaint did not make factual allegations concerning a violation of FEHA. On March 27, 2012, Miller filed a first amended complaint in which she alleged a medical demotion.
The original and first-amended complaints were filed in the Los Angeles County Superior Court as case No. BC472073. The case was subsequently transferred to the Sacramento County Superior Court as case No. 34-2012-00132503-CU-HR-GDS.
On September 28, 2012, Miller filed a discrimination complaint with the DFEH and, on the same day, received a right-to-sue letter.
On May 31, 2013, Miller filed her second amended complaint, the operative complaint in this case, alleging a single cause of action for violation of FEHA.
CDCR filed a motion for judgment on the pleadings. It asserted that the 2009 and 2010 DFEH complaints preceded the discriminatory conduct alleged in the second amended complaint, and that the September 28, 2012 DFEH complaint was filed more than one year after the alleged discriminatory conduct.
The trial court granted the motion for judgment on the pleadings without leave to amend, agreeing with CDCR's assertion that there was no timely DFEH complaint concerning the discriminatory conduct alleged in the second amended complaint. The trial court ruled that the conduct alleged in the complaint took place in September 2011; Miller had until September 12, 2012, to file her DFEH complaint; but she did not file her DFEH complaint until September 28, 2012. It is not clear why the trial court referenced alleged conduct in September 2011, as the conduct alleged in the complaint occurred in June and August of 2011, and Miller does not allege later conduct. In any event, the trial court determined the deadline for filing the DFEH complaint was not equitably tolled because Miller "failed to allege equitable tolling or plead around the bar of the statute of limitations based upon her failure to exhaust administrative remedies."
We need not recount additional background as it is not relevant to the issue on appeal, whether the trial court erred in granting the motion for judgment on the pleadings without leave to amend.
STANDARD OF REVIEW
An order granting judgment on the pleadings is reviewed de novo. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321.) "All properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law; judicially noticed matters may be considered." (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Moreover, "[c]ontrary to longstanding rules generally precluding a party from changing the theory of the case on appeal [citations], a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court 'abused its discretion' (§ 472c, subd. (a)) in not granting leave to amend. The plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citations.]" (Connerly v. State of California (2014) 229 Cal.App.4th 457, 460, fn. omitted (Connerly).)
DISCUSSION
Miller contends the trial court erred in ruling that she did not timely exhaust her administrative remedies, and the trial court abused its discretion by not granting her leave to amend the complaint.
"The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. [Citations.]" (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, fn. omitted.) Leave to amend the pleadings is liberally granted if the plaintiff can allege facts sufficient to overcome the demurrer or motion on the pleadings, even if those alleged facts come to light on appeal after the granting of a motion for judgment on the pleadings. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 162-163, review granted Feb. 15, 2017, S238941 (Goonewardene).)
Government Code section 12960 provides that an employee making a FEHA claim must exhaust the administrative remedy by filing an administrative complaint with the DFEH within one year after the alleged unlawful action occurred. (§ 12960, subd. (d); see Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613.) This one-year period is subject to equitable tolling under various doctrines. (See, e.g., Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-824 [discussing continuing violation doctrine].)
Undesignated statutory references are to the Government Code.
Miller argues she timely filed her DFEH complaint because she did not learn she had been terminated until June 19, 2012. Although Miller alleged in her second amended complaint that she was informed of her termination by opposing counsel in this case on June 19, 2012, she provides no authority for the proposition that the time to file a DFEH complaint runs from when an employee discovers wrongful conduct rather than when the wrongful conduct occurs, and we know of no such authority. An appellate brief must "support each point by argument and, if possible, by citation of authority." (Cal. Rules of Court, rule 8.204(a)(1)(B).) Where a party fails to cite authority or present argument, the party forfeits the issue on appeal. (Estate of Cairns (2010) 188 Cal.App.4th 937, 949 (Cairns).)
In any event, the time to file a DFEH complaint begins to run from the date of the employer's alleged unlawful conduct, which was August 31, 2011. (§ 12960, subd. (d).) According to the second amended complaint and the exhibits attached to the complaint, Miller did not file her DFEH complaint regarding the termination until September 28, 2012, more than one year after her demotion and termination.
Miller further argues, again without authority, that the time to file a DFEH complaint did not begin to run until October 21, 2011 because she had until that date to file a reinstatement appeal. Her argument has no persuasive value because she lacks authority for the proposition that the time to file a DFEH complaint for discriminatory termination does not begin to run until the time for filing a reinstatement appeal has expired. (Cairns, supra, 188 Cal.App.4th at p. 949.) The argument also lacks merit. Section 19996.2, subdivision (a) gives the employee 15 days to file a reinstatement appeal. Because Miller was terminated on August 31, 2011, she had until September 15, 2011 to file her reinstatement appeal. The Department of Personnel Administration added additional days to that deadline in the event Miller had mailed her appeal, concluding she had until September 21, 2011, but Miller did not meet that deadline. Under section 599.904 of title 2 of the California Code of Regulations, the Department of Personnel Administration or the CDCR Director may allow an additional 30 days to file a reinstatement appeal if good cause is shown for a late filing. An additional 30 days would have given Miller until October 21, 2011, but she makes no attempt to show that she had good cause for failing to meet the September 21 deadline, and thus fails to support her argument that the one-year limitation under section 12960, subdivision (d) did not begin to run until October 21, 2011 because she had until then to file a reinstatement appeal.
Nevertheless, even though the face of the second amended complaint supports the trial court's conclusion that Miller failed to file a DFEH complaint within one year after the demotion and termination, Miller credibly asserts on appeal that she filed a DFEH complaint on March 26, 2012, a fact that she failed to allege in her complaint. A party may assert facts for the first time on appeal to establish a reasonable possibility the party can amend the complaint to cure a defect. (See Code Civ. Proc., § 472c, subd. (a); Goonewardene, supra, 5 Cal.App.5th at pp. 162-163, review granted; Connerly, supra, 229 Cal.App.4th at p. 460; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041-1042.)
Here, Miller asserts on appeal that, on March 26, 2012, she filed a DFEH complaint alleging that CDCR denied her accommodations and equal pay, retaliated against her, and failed to reinstate her. She also asserts that, on March 28, 2012, the DFEH issued a right-to-sue letter. If she filed that DFEH complaint in March 2012, then it was within one year of her alleged medical demotion (June 13, 2011) and termination (August 31, 2011) and was therefore timely filed under section 12960, subdivision (d).
Miller brings the March 26, 2012 DFEH complaint to this court's attention by mentioning it in her appellant's opening brief and attaching an unauthenticated copy of the DFEH complaint and the resulting right-to-sue letter to the brief. While this is not a proper way to establish a fact on appeal (see, e.g., Cal. Rules of Court, rule 8.252(c) [procedure for offering additional evidence on appeal]), the plaintiff need only propose sufficient facts on appeal to obtain reversal after a motion for judgment on the pleadings is granted without leave to amend. (Connerly, supra, 229 Cal.App.4th at p. 460, italics added.) Attaching what appears to be a DFEH complaint to the opening brief was sufficient to propose the fact that Miller filed such a complaint within one year after the demotion and termination.
In its respondent's brief on appeal, CDCR argued this court should not consider Miller's March 26, 2012 DFEH complaint or the March 28, 2012 right-to-sue letter because those documents were unauthenticated. As we have explained, however, a plaintiff need only propose sufficient facts on appeal to obtain reversal. Then, at oral argument, CDCR argued for the first time that even if Miller obtained a right-to-sue letter on March 28, 2012, the action is still time-barred because Miller did not file her complaint until May 31, 2013, more than one year after the issuance of the right-to-sue letter. The May 31, 2013 complaint was actually a second-amended complaint; but we need not address whether that complaint, or some prior complaint, was authorized or timely in connection with the March 28, 2012 right-to-sue letter, because CDCR did not make this particular assertion until oral argument and did not cite supporting authority. "We will not consider an issue not mentioned in the briefs and raised for the first time at oral argument." (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854.) CDCR may raise this issue in the trial court on remand.
Having alleged facts on appeal that would cure the time bar on her single FEHA cause of action, Miller is entitled to reversal with a remand for an opportunity to amend her complaint to satisfactorily plead the March 2012 DFEH complaint. Because there is only one cause of action in the complaint and it appears Miller will be able to plead around the time bar in section 12960, subdivision (d), we need not consider Miller's other contentions, such as the applicability of equitable tolling in this case.
DISPOSITION
The judgment is reversed and remanded for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.