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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Jose Perez vs Lewa Properties Inc

Case No: 1414378
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Demurrer to First Amend.Complt

CASE: Jose Perez v. LeWa Properties, Inc., et al., Case No. 1414378 HEARING DATE: January 27, 2014 MATTER: Demurrer to First Amended Complaint TENTATIVE RULING: The demurer to the FAC is overruled. LeWa, Inc. shall file its answer to the FAC on or before February 5, 2014. DISCUSSION: This is a disability discrimination and wrongful termination case. Plaintiff Jose Perez is the former ranch manager of a horse and cattle ranch located at 684 Cuatro Caminos Road, Solvang, California. Plaintiff began his employment in December 2009 and was terminated on July 13, 2011, allegedly due to his poor performance. Plaintiff claims that he was terminated because he had been diagnosed with thyroid cancer and was undergoing radiation therapy and because of his age (plaintiff was 60 years of age when he was terminated). Plaintiff claims that he was replaced by a younger, non-disabled employee. Plaintiff was employed by defendant LeWa, Inc. (“LWI”) during the first year of his employment and by LWI’s subsidiary, defendant LeWa Properties, Inc. (“LWP”), at the time of his termination. On November 13, 2012, plaintiff filed suit against LWP for (1) disability discrimination in violation of FEHA, (2) failure to engage in interactive process in violation of FEHA, (3) failure to accommodate disability in violation of FEHA, (4) retaliation in violation of FEHA, (5) failure to maintain an environment free of discrimination and retaliation, (6) age discrimination in violation of FEHA, and (7) wrongful termination in violation of public policy. Before filing suit, plaintiff filed an administrative claim with the Department of Fair Employment and Housing (“DFEH”) and obtained a right-to-sue notice. On September 26, 2013, plaintiff filed a Doe amendment adding LWI as a defendant to each of the seven causes of action. After being granted leave to amend, plaintiff on October 21, 2013 filed a first amended complaint (“FAC”) adding alter ego allegations against LWI. LWI now demurs to the FAC based on the statute of limitations and failure to exhaust administrative remedies. ANALYSIS: The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300. The court assumes the truth of allegations in the complaint which have been properly pleaded and gives the complaint a reasonable interpretation by reading it as a whole and with all its parts in their context. Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558. The court also assumes the truth of reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083. However, the court does not assume the truth of “contentions, deductions, or conclusions of law or fact, and may disregard allegations that are contrary to the law or to facts which may be judicially noticed.” Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 745. Defendants challenge the FAC on the ground that plaintiff was not truly ignorant of LWI’s identity at the time the original complaint was filed and therefore the claims against LWI are barred by the statute of limitations. LWI was added to the case as a Doe defendant on September 26, 2013, but defendants contend that the Doe amendment was a shame because documents produced in discovery conclusively demonstrate that plaintiff was aware of LWI’s identity before he initiated the action. Under the fictitious name statute, “[w] hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .” Code Civ. Proc. §474. The statute of limitations is tolled as to a “Doe” defendant, but only if the plaintiff was truly ignorant of the fictitious defendant’s identity or the facts giving rise to the fictitious defendant’s liability when the action was filed. Miller v. Thomas (1981) 121 Cal.App.3d 440, 445. Defendants claim that plaintiff was aware of LWI’s existence and its involvement in his employment long before he was terminated. Plaintiff’s FAC alleges seven causes of action, six under FEHA, including disability discrimination and age discrimination, and one common law cause of action for wrongful termination in violation of public policy. Before an employee may file an action under FEHA, the employee must file an administrative claim with the DFEH and obtain a “right-to-sue notice.” Gov. Code §§ 12960, 12965, subd. (b); see also, Martin v. Lockheed Missiles & Space Company (1994) 29 Cal.App.4th 1718, 1724. The administrative claim must be filed within one year of the date the unlawful employment action or practice occurred. Gov. Code § 12960, subd. (d). The employee’s civil action, in turn, must be brought within one year after the DFEH issues its notice of right to sue. Gov. Code §12965, subd. (b). These time limits are strictly enforced. See, Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 327 (upholding trial court’s grant of summary judgment in favor of employer on ground that one-year statute of limitations on employee’s FEHA claims had run). Defendants argue that the claims against LWI are barred by the one-year statute of limitations because LWI was not added as a Doe defendant until September 26, 2013, which was more than two years after plaintiff was terminated on July 13, 2011, and more than twenty months after FEHA issued its right-to-sue notice on December 27, 2011. Defendants contend that the Doe amendment was improper and does not relate back to the filing of the original complaint for purposes of the statute of limitations because plaintiff was aware of LWI’s identity and its history as plaintiff’s employer since before the original action was filed in 2012. Defendants have asked the court to take judicial notice of documents that plaintiff produced in discovery, including copies of his 2010 paycheck stubs and his 2011 W-2 earnings statement, as proof that plaintiff was aware of LWI’s involvement in the case from the beginning. The court will overrule defendants’ demurrer based on the statute of limitations. While certain of the payroll documents produced in discovery identify LWI as plaintiff’s employer, discovery documents are generally not subject to judicial notice for purposes of demurrer. Evidence Code Section 452, subdivision (d), allows trial courts to take judicial notice of “[r] ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Evidence Code Section 452, subdivision (h), allows trial courts to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The payroll records at issue in this case do not fall within either of these categories. The mere fact that the documents were attached to a declaration filed in response to an earlier motion in the case does not mean that the facts contained in those documents are subject to judicial notice. Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 (“A court cannot take judicial notice of the truth of hearsay statements just because they are part of a court record or file.”). Also, a request for judicial notice may be defeated where a reasonable dispute exists as to the matter at issue. Comings v. State Board of Education (1972) 23 Cal.App.3d 94, 102. Here, plaintiff claims that he was uncertain that LWI was anything other than a payroll entity until the deposition of LWI’s owner was completed in August 2013. (Morrison Decl., ¶7.) A “Doe” allegation need only allege that the plaintiff is “ignorant” of the Doe defendant’s true identity. Code Civ. Proc. §474. A plaintiff is ignorant of a defendant’s identity if the plaintiff was either unaware of the defendant’s name or was unaware of the defendant’s culpability. Snokes v. Bolen (1991) 235 Cal.App.3d 1427, 1431; see also, Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88 (fictitious name statute may be utilized where the plaintiff knew the identity of the person but was ignorant of the facts giving him a cause of action against the person). In his initial complaint, plaintiff asserted “Doe” allegations in connection with each of his causes of action. After learning of LWI’s potential liability, plaintiff filed an amendment, adding LWI as a defendant. “Where a complaint sets forth, or attempts to set forth, a cause of action against a defendant designated by fictitious name and his true name is thereafter discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date of the earlier pleading.” Austin v. Massachusetts Bonding & Insurance Company (1961) 56 Cal.2d 596, 599. Plaintiff’s claims against LWI therefore relate back to the original complaint filed on November 13, 2012, and are not time-barred. Defendants also demur to the FAC on the ground that plaintiff did not exhaust his administrative remedies prior to filing his complaint. The demurrer on this basis will also be overruled. For the purpose of testing the sufficiency of a cause of action, a demurrer admits the truth of all material facts properly pleaded. Stop Youth Addiction, Inc. v. Lucky Stores, Inc., supra, (1998) 17 Cal.4th 553, 558. In the FAC, plaintiff alleges that “[a]ll conditions precedent (exhaustion of administrative remedies) to jurisdiction have been complied with” and that “Plaintiff timely filed charges against Defendants with the California Department of Fair Employment and Housing (‘DFEH’) and has received a ‘Right to Sue’ notice.” (FAC, ¶14.) These facts are presumed to be true. Defendants argue that LWI was not named in the caption or body of either of plaintiff’s discrimination claims that were filed with the DFEH, but this “fact” does not appear anywhere in the FAC. While defendants again point to documents produced in discovery as evidence that a timely DFEH claim was never filed against LWI, as discussed above, discovery documents are not subject to judicial notice simply because they are attached to a court record or file.
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