Opinion
D070099
05-25-2017
RUBEN CASAREZ, Plaintiff and Appellant, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Respondent.
Ruben Casarez, in pro. per., for Plaintiff and Appellant. Oswalt & Associates and William S. Smerdon for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ECU08791) APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Reversed and remanded with directions. Ruben Casarez, in pro. per., for Plaintiff and Appellant. Oswalt & Associates and William S. Smerdon for Defendant and Respondent.
In this employment litigation, Ruben Casarez appeals from a judgment of dismissal after the court sustained a demurrer without leave to amend in favor of his former employer, the Imperial Irrigation District (IID). We reverse because Caserez's causes of action under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) are neither time barred nor barred by res judicata, and, on Casarez's remaining causes of action, the court should have sustained IID's demurrer with leave to amend.
All statutory references are to the Government Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
A. Introduction—Preliminary Issues
Because this is an appeal following a successful demurrer, the facts are derived from those properly alleged in Casarez's complaint (Complaint), exhibits attached to the Complaint, and facts properly subject to judicial notice. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.)
Casarez's opening brief contains a five-page "Statement of Facts" with no record citations. We disregard these asserted facts to the extent they differ from the record. (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.)
Although Casarez was represented by counsel in the trial court, he is self-represented on appeal. Getting to step 1—stating the facts—is an immediate problem because in designating the documents to be included in the clerk's transcript, Casarez omitted his Complaint. Although IID filed a respondent's counter designation, it also omitted the Complaint.
On appeal, IID urges the absence of the Complaint in the record compels the judgment to be affirmed. That argument is logical and correct, as far as it goes. As appellant, Casarez has the burden of demonstrating error by an adequate record. (Bains v. Moores (2009) 172 Cal.App.4th 445, 478.) Without the Complaint, it is impossible to determine if the court erred in sustaining IID's demurrer. Therefore, by default, we would be required to affirm the judgment of dismissal. (Ibid.)
Nevertheless, we decline to decide this appeal on forfeiture grounds. The Complaint is easily accessible in the superior court file. Its contents cannot come as any surprise to IID, since the Complaint was necessarily the centerpiece of its demurrer. Moreover, by its very nature, this appeal involves only questions of law, which can be raised even for the first time on appeal. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1396-1397.) Although a self-represented litigant is not entitled to special privileges in the appellate court, certain realities of in propria persona status are properly taken into account under these circumstances. Therefore, in the interest of justice to reach the merits, we exercised our discretion under California Rules of Court, rule 8.155(a)(1)(A) to augment the record to include the Complaint and so notified the parties over a month before oral argument.
California Rules of Court, rule 8.155(a)(1)(A) provides in part that "[a]t any time" on a party's motion or its own motion, the reviewing court may order the record augmented to include "[a]ny document filed or lodged in the case in superior court."
B. The Employment Relationship and 2008 Lawsuit
Casarez is a 55-year old Hispanic man who IID employed from 1988 through approximately May 2014 when IID terminated his employment.
In 2008 Casarez filed a first amended complaint against IID for alleged employment discrimination and retaliation. There, Casarez alleged IID hired him in 1988, he suffers from hypertension, is Hispanic, and "has been a vocal advocate within the company for employee rights and Hispanic employee rights over the past decade." Casarez alleged IID discriminated by not giving him cost of living salary increases since 2004, "while other similarly situated non-Hispanic, non-disabled, and/or younger individuals have received cost of living increases." He also alleged that in 2006 IID wrongfully denied him a promotion or transfer for which he was "the most qualified person for the job opening." Casarez alleged IID gave these jobs "to a less qualified and non-Hispanic, non-disabled, and/or a notably younger individual." Further, he alleged that in 2006 IID disciplined him for minor incidents "when other similarly-situated employees" were not disciplined.
In July 2010 Casarez dismissed this complaint with prejudice.
C. 2013 FEHA Complaint, No. 135954-58369
The FEHA prohibits unlawful employment discrimination and contains procedures for the Department of Fair Employment and Housing (DFEH) to follow in handling discrimination complaints. (§ 12900 et seq.) Before filing a civil action asserting claims under the FEHA, a claimant must first exhaust administrative remedies by filing an administrative complaint with the DFEH. (§ 12960, subd. (b).) A DFEH-issued right-to-sue notice informs the claimant that he or she may file a civil action. The civil action must be filed within one year of the date of the right-to-sue notice. (Hall v. Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 729 (Hall).)
In 2013 Casarez filed an administrative complaint against IID with the DFEH, No. 135954-58369. There, Casarez asserted that since 2004 the "European [C]aucasions" at IID had "harassed, retaliated and discriminated" against him. Casarez asserted IID retaliated against him for taking family medical leave, and he alleged IID has "a culture of abusing and suppressing Mexican Americans," which resulted in his not receiving pay increases and sick leave. Casarez further alleged that his supervisor "believes Mexican Americans should be forced to work harder than European [C]aucasions."
On July 1, 2013, the DFEH issued Casarez a right-to-sue notice, informing him a civil action against IID under the FEHA based on this complaint must be filed within one year. Casarez did not do so.
D. 2013 FEHA Complaint, No. 157286-68625-R
Later in 2013 Casarez filed another administrative complaint against IID with the DFEH, No. 157286-68625-R. There, Casarez asserted that his supervisor, Phil Falkenstein, prevented him from receiving sick pay and disciplined Casarez for trivial complaints. Casarez alleged that "Falkenstein has refused to train the Mexican-Americans under him . . . and ridicules Casarez at times." Casarez asserted Falkenstein's discriminatory actions were motivated by racial and political animus.
On September 22, 2013, the DFEH issued Casarez a right-to-sue notice, informing him a civil action against IID under the FEHA on this complaint must be filed within one year. Casarez did not do so.
E. FEHA Complaint, No. 306119-116320
In July 2014 Casarez filed another administrative complaint against IID with the DFEH, No. 306119-116320. There, Casarez asserted that IID took adverse actions against him, including termination, because of his age, ancestry, disability, engagement in protected activity, use of medical leave, medical condition, national origin, and gender.
On October 6, 2014, the DFEH issued Casarez a right to sue notice.
F. FEHA Complaint, No. 306119-116320-R
In February 2015 Casarez filed another DFEH administrative complaint against IID. There, he asserted IID's discrimination against him culminated in the termination of his employment on or around May 21, 2014. Additionally, in this complaint, Casarez recounted years of past discrimination by IID based on his union activities and Hispanic ancestry. Casarez also alleged that Falkenstein became his manager in 2010 and "repeatedly discriminated and retaliated" against him "because of his race." Casarez stated the discrimination, harassment, and retaliation resulted in his being subjected to numerous unwarranted disciplinary actions and his eventual termination in 2014.
G. The Complaint
In July 2015 Casarez filed the Complaint. In a section entitled "Factual Allegations," Casarez alleges he began his employment with IID in 1988 and subsequently became a union advocate. He alleges IID retaliated against him for his union activities by transferring him to a lower position with a 50 percent wage decrease. Casarez alleges IID "continued to retaliate and discriminate" against him by redlining his salary and terminating his cost of living increases because he was Hispanic. He alleges that throughout his employment, IID repeatedly denied Casarez promotions because of his race and union involvement. Casarez alleges that Falkenstein became his manager in 2010 and "repeatedly discriminated and retaliated" against him because of his race. The Complaint also alleges that after Casarez ran for election to IID's board of directors, Falkenstein discriminated and retaliated against Casarez because he did not believe Hispanics should be on the board.
The Complaint alleges that in 2013 Casarez complained to IID human resources about ongoing discrimination; however, instead of investigating his complaints, IID increased its discriminatory and retaliatory actions by transferring Casarez to a position with lower pay. Casarez alleges that one of his managers, Sabrina Barber, also retaliated against him for telling the press that IID gave money to a casino to purchase solar panels. He alleges that IID's discrimination and retaliation against Casarez culminated in his termination on May 21, 2014.
1. First cause of action—FEHA
The Complaint's first cause of action is for discrimination based on race, color, and ethnicity under the FEHA. In addition to incorporating by reference all previous allegations, here Casarez alleges his "race, color, and ethnicity were, in part, a determining factor in . . . IID's decision to discriminate against him, harass him, and to ultimately terminate his employment." He also alleges that IID authorized or ratified the misconduct of Falkenstein, Barber, and other IID employees. The Complaint alleges that IID's actions in "permitting and/or condoning the actions of Falkenstein, Barber, and their associates . . . constituted unlawful race, color, and ethnicity discrimination, and caused [Casarez] to work in an intolerable working environment."
2. Second cause of action—FEHA
The Complaint's second cause of action incorporates by reference all previous allegations and states IID failed to take reasonable steps to prevent discrimination and harassment, violating section 12940, subdivision (k).
3. Third and fourth causes of action—Emotional distress
The third cause of action incorporates by reference all previous allegations and alleges such conduct constitutes intentional infliction of emotional distress.
The fourth cause of action alleges the same facts as constituting negligent infliction of emotional distress.
4. Fifth cause of action—Negligent supervision
The fifth cause of action incorporates by reference the previous allegations and alleges IID was negligent in supervising and retaining its employees.
5. Damages
In addition to seeking special and general damages in an amount according to proof, the Complaint also seeks "punitive damages against IID where applicable."
H. Demurrer
IID demurred to the Complaint and filed a request for judicial notice of (1) Casarez's 2008 lawsuit against IID, (2) his request for dismissal with prejudice of that 2008 case and the order of dismissal, and (3) Casarez's first two DFEH complaints, Nos. 135954-58369 and 157286-68625-R.
The record on appeal does not contain any opposition to IID's request for judicial notice.
In its demurrer, IID asserted the two FEHA causes of action were time barred because they are based on facts alleged in Casarez's two DFEH complaints (135954-58369 and 157286-68625-R), and Casarez filed the Complaint more than one year after the DFEH issued a right-to-sue letter on each.
Alternatively, IID asserted the court should sustain the demurrer based on the res judicata effect of Casarez's dismissal with prejudice of his 2008 lawsuit against IID.
IID demurred to the third, fourth, and fifth causes of action on the grounds that the face of the Complaint showed Casarez mailed his government claim to "IID Legal Counsel." Citing section 915, which requires a government claim to be mailed to "the clerk, secretary or auditor" or to "the governing body," IID asserted the facts alleged showed Casarez failed to comply with the Government Claims Act (§ 800 et seq.; Claims Act).
Additionally, IID asserted the Complaint did not allege sufficiently outrageous conduct necessary to support the third cause of action for intentional infliction of emotional distress.
IID also asserted the fifth cause of action was based on acts Casarez alleged Falkenstein had committed. Without citing any authority, IID asserted that because a FEHA cause of action could not be timely maintained based on these allegations, a "non-discriminatory cause of action based on the same facts must be barred as well."
IID does not repeat this argument in its respondent's brief and therefore we do not consider it. Moreover, this is not a ground for demurrer as stated in IID's notice of demurrer.
Alternatively, if the court sustained the demurrer with leave to amend, IID concurrently filed a motion to strike various paragraphs of the Complaint, including the punitive damage allegations.
I. Opposition
Opposing the demurrer, Casarez asserted the two FEHA causes of action were not time barred because they were based on DFEH complaint No. 306119-116320. That complaint alleged IID wrongfully terminated Casarez's employment in 2014. The DFEH issued the right-to-sue letter on that complaint in October 2014, making the Complaint (filed in July 2015) timely. Casarez asserted the allegations of pre-termination discrimination merely set the "historical context" under which the current claims arose and established a continuing course of actionable discrimination.
Regarding the third, fourth, and fifth causes of action, Casarez asserted that by mailing his claim to IID's legal counsel, he had substantially complied with section 915, which is all the law requires.
With respect to the fifth cause of action for intentional infliction of emotional distress, Casarez responded, "What conduct could be more outrageous than an employer harassing an employee because of his race? What conduct could be more outrageous than an employer discriminating against an employee because of his race?"
IID filed a reply that mostly reiterated points made in its moving papers.
J. Ruling
The court conducted an unreported hearing. After taking the matter under submission, the court sustained IID's demurrer without leave to amend. The court determined the voluntary dismissal of Casarez's 2008 action triggered a res judicata bar on the Complaint because the Complaint was "based on the same nucleus of operative facts and legal issues alleged therein." The court also determined Casarez's action was time barred because the Complaint contains allegations also stated in Casarez's two DFEH complaints filed in 2013, Nos. 135954-58369 and 157286-68625-R. Additionally, the court ruled Casarez alleged noncompliance with the Claims Act because mailing his claim to IID's legal department without showing actual receipt by a statutorily designated recipient violated section 915. Despite sustaining the demurrer without leave to amend, the court also granted IID's motion to strike.
DISCUSSION
I. THE STANDARD OF REVIEW
A demurrer tests the sufficiency of a complaint. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) "'On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.'" (Ibid.) Where, as here, the demurrer has been sustained without leave to amend, "'we decide whether there is a reasonable possibility 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.'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
II. THE COURT ERRED IN SUSTAINING THE DEMURRER
TO THE FIRST AND SECOND CAUSES OF ACTION
A. The Court Should Have Overruled the Demurrer to the First Cause of Action
1. Statute of limitations
Casarez's first cause of action is for unlawful employment discrimination under the FEHA, section 12940, subdivision (a). IID's demurrer did not attack the Complaint for failing to allege facts constituting a FEHA cause of action. Rather, IID asserted the FEHA causes of action were either time barred or barred by res judicata.
Section 12940, subdivision (a) provides in part: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] (a) For an employer, because of the race . . . color, national origin, ancestry . . . of any person, to . . . bar or to discharge the person from employment or . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment."
A statute of limitations defense may be raised by demurrer "'if the complaint shows on its face that the statute bars the action.'" (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) "'"[F]or the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred."'" (Carloss v. County of Alameda (2015) 242 Cal.App.4th 116, 123.) If the cause of action is not necessarily time barred, the court should overrule the demurrer. (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.)
IID correctly asserts Casarez's first cause of action contains some discrimination allegations that are time barred. Casarez's January 2013 DFEH complaint mirrors several of the allegations of discrimination contained in the Complaint, as demonstrated in the table below:
| 2013 DFEH Complaint 135954-58369 | Complaint (Lawsuit) |
|---|---|
| Casarez has become a "target" because ofhis union activities. | 13. "After [Casarez] became involvedwith IBEW 465, he was subjected tocontinuing harassment andretaliation . . . ." |
| IID supervisor believes "MexicanAmericans should be forced to workharder than European [C]aucasions." | 15. "IID continued to retaliate anddiscriminate against [Casarez] because ofhis race . . . ." |
| IID discriminated against Casarez becausehe ran for a political position as an IIDdirector. | 20. "Falkenstein began to discriminateand retaliate against [Casarez] . . . becausehe did not believe that Hispanics shouldbe on the [b]oard of [d]irectors." |
| IID management prevented Casarez fromusing sick leave when no "European[C]aucasion is subject to refusal of sickleave. | 23. "Barber harassed Casarez for usingsick leave he was entitled to use." |
On July 1, 2013, the DFEH issued Casarez a right-to-sue letter on these claims. Casarez was therefore required to commence an action on such claims by July 1, 2014. (Hall, supra, 193 Cal.App.4th at p. 729.) However, Casarez filed the Complaint a year later, on July 2, 2015. Such claims are time barred.
The narrative in Casarez's other 2013 DFEH complaint also mirrors several of the factual allegations contained in the Complaint, as demonstrated post:
The comparison in these two tables is representative only and not necessarily inclusive of all facts alleged in the 2013 DEFH administrative complaints and the Complaint.
On September 22, 2013, the DFEH issued Casarez a right-to-sue letter on these claims. Casarez was, therefore, required to commence an action on such claims by September 22, 2014. (Hall, supra, 193 Cal.App.4th at p. 729.) However, Casarez filed the Complaint on July 2, 2015. These claims are also time barred.
However, in addition to alleging these time-barred claims, Casarez also alleges IID violated the FEHA by wrongfully terminating his employment in May 2014. Paragraph 24 of the Complaint alleges, "The discrimination, harassment, and retaliation . . . resulted in [Casarez] being subjected to numerous unwarranted disciplinary actions and write ups, and his eventual termination on May 21, 2014 . . . ." (Italics added.) Consistent with this allegation, in his opening brief Casarez emphasizes he is "not suing for discriminatory acts committed more than [one] year from his legal complaint, but is suing for termination resulting from IID's discriminatory actions. . . ." (Italics added.)
In the trial court, Casarez's lawyer tried to make the same point, stating the past discriminatory acts alleged in the Complaint merely "set the historical context under which [Casarez's] current complaints arose" and culminated when IID "terminated" his employment in 2014.
A claim brought under FEHA, which embodies the state's fundamental policy prohibiting racial discrimination, will support a cause of action for wrongful termination. (§ 12920 ["It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to . . . hold employment without discrimination or abridgment on account of race . . . color, national origin, ancestry . . . ."].)
Casarez's first cause of action—alleging wrongful termination under the FEHA—is not time barred on the face of the Complaint. Casarez filed his DFEH complaint (No. 306119-116320) alleging IID terminated his employment because of his race on July 18, 2014. The DFEH issued Casarez a right-to-sue letter on this administrative complaint on October 6, 2014. The Complaint was filed within a year of the right-to-sue letter, on July 2, 2015, and is therefore not untimely on its face.
"A demurrer based on the statute of limitations may not properly be sustained if any part of the cause of action is not barred." (Vassere v. Joerger (1938) 10 Cal.2d 689, 694.) This is because a demurrer cannot "be directed to anything except the entire complaint or a count; it will not lie to part of a cause of action or count." (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 957, p. 371.) Thus, "[i]f there are sufficient allegations to entitle the plaintiff to relief, other allegations cannot be challenged by general demurrer." (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 7:42.2, p. 7(I)-22.)
The first cause of action alleges some time barred claims. However, it also alleges a wrongful termination cause of action under the FEHA that is not time barred. Accordingly, the court erred in sustaining the demurrer to the first cause of action.
2. Res judicata
IID also asserts Casarez's first cause of action is barred by res judicata because the Complaint "pleaded many of the same causes of action as those pleaded in" the 2008 lawsuit.
The order dismissing Casarez's 2008 lawsuit against IID is a judgment on the merits and carries res judicata effects. (Rice v. Crow (2000) 81 Cal.App.4th 725, 733-734.) However, although res judicata bars causes of action that Casarez litigated or could have litigated in that 2008 lawsuit, res judicata does not bar claims first arising after that 2008 complaint was filed. (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) A prior suit does not extinguish claims that did not even then exist and that could not possibly have been sued upon in the previous case. (McCready v. Whorf (2015) 235 Cal.App.4th 478, 482 (McCready).) Indeed, in its demurrer, IID conceded this point, stating, "Res judicata bars any discrimination complaint based on acts occurring prior to January 3, 2008." (Italics added.)
Casarez's cause of action against IID for wrongful termination in violation of the FEHA could not have been litigated in the 2008 action, which he dismissed with prejudice in 2010—because IID did not terminate his employment until 2014. Accordingly, his wrongful termination claim is not barred by res judicata. (See McCready, supra, 235 Cal.App.4th at p. 482.)
A case arising in the Eight Circuit, Lundquist v. Rice Memorial Hospital (8th Cir. 2001) 238 F.3d 975, 978 (Lundquist), is nearly identical and illustrates why res judicata does not bar Casarez's complaint for wrongful termination. There, in January 1997, a nurse sued her employer (hospital) under the Americans with Disabilities Act of 1990 alleging several acts of employment discrimination. (Lundquist, at p. 976.) Almost a year later, on December 31, 1997, the hospital terminated the nurse's employment. (Ibid.) In May 1998 the court dismissed her discrimination lawsuit on summary judgment. (Ibid.) In February 1999 the nurse filed a second lawsuit against the hospital, alleging the wrongful termination occurring on December 31, 1997. (Ibid.)
The district court in Lundquist, supra, 238 F.3d 975 granted the hospital's motion to dismiss the wrongful termination case on the grounds it was barred by the res judicata effect of the dismissal of the first action. (Id. at p. 976.) However, the Court of Appeals reversed because "[c]laim preclusion . . . does not apply to claims that did not exist when the first suit was filed." (Id. at p. 977.) Because the nurse did not even have a claim for wrongful termination when she filed her 1997 discrimination complaint, her second action (filed in 1999) was not barred by res judicata. (Id. at p. 978.)
California's res judicata doctrine is in this respect the same as that applied by the court of appeals in Lundquist, supra, 238 F.3d 975. Under California law, "'[r]es judicata serves as a bar to all causes of action that were litigated or that could have been litigated . . . . This determination is made as of the date the first complaint is filed . . . . [¶] Res judicata is not a bar to claims that arise after the initial complaint is filed. . . . The general rule that a judgment is conclusive as to matters that could have been litigated "does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated . . . ."'" (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 514, italics omitted.) Thus, just as the nurse's claim for wrongful termination in Lundquist, supra, 238 F.3d 975 was not barred by res judicata, similarly here, Casarez's wrongful termination claim is not precluded.
The very distinct issue of whether evidence of past discrimination that is time barred is admissible at trial to prove non-time-barred claim(s) is not before us in this appeal and we express no opinion on that issue.
Citing Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813 (Torrey Pines Bank), IID contends res judicata bars the Complaint because it contains "many of the same causes of action as those pleaded" in the January 2008 lawsuit and "[t]he operative allegations in the two complaints were virtually identical." However, Torrey Pines Bank is factually distinguishable. There, a bank brought an action against two guarantors based on their execution of agreements unconditionally guaranteeing a company's debts to the bank. The guarantors filed a separate action against the bank for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, negligent misrepresentation, and negligence. (Id. at pp. 816-817.) Subsequently, one of the guarantors filed a dismissal with prejudice of his action against the bank. On appeal, this court held that when the guarantor dismissed his separate action with prejudice, his affirmative defenses in the bank's action were barred under principles of res judicata, because res judicata bars not only the "'reopening of the original controversy, but also subsequent litigation of all issues which were or could have been raised in the original suit.'" (Id. at p. 821.)
Torrey Pines Bank, supra, 216 Cal.App.3d 813 is off-point because in the 2008 lawsuit against IID, Casarez could not have litigated his alleged wrongful termination because it had not yet occurred. Casarez is suing for wrongful termination, which could not have been litigated in the 2008 action because it he was not terminated until 2014. (McCready, supra, 235 Cal.App.4th at p. 482.)
Because the judgment must be reversed on these grounds, it is unnecessary to consider or decide Casarez's assertions that the Complaint properly alleges a "continuing course of conduct" under certain federal employment law or that the judgment violates Casarez's constitutionally protected civil rights.
B. The Court Erred in Sustaining the Demurrer to the Second Cause of Action
In his second cause of action, Casarez alleges IID violated the FEHA by "fail[ing] to take the necessary steps to prevent such discrimination and harassment from occurring" in violation of section 12940, subdivision (k). Because Casarez has alleged a claim for wrongful termination based on racial discrimination, he has stated a cause of action against IID for violating section 12940, subdivision (k). Accordingly, the court erred in sustaining IID's demurrer to the second cause of action.
Section 12940, subdivision (k) provides in part: "It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
III. THE COURT ABUSED ITS DISCRETION IN SUSTAINING THE DEMURRER
TO THE THIRD, FOURTH, AND FIFTH CAUSES OF ACTION
WITHOUT LEAVE TO AMEND
A. Factual Background
The Complaint alleges that IID "is a public entity." Casarez also alleges, "On November 13, 2014, [Casarez] timely filed a tort claim with IID. A copy of [Casarez's] tort claim is attached hereto as Exhibit '3'." Exhibit 3 contains a United States postal receipt showing the claim was mailed to "IID Legal Counsel" at "P.O. Box 937, Imperial CA 92251."
The Complaint incorporates these allegations by reference into the third (intentional infliction of emotional distress), fourth (negligent infliction of emotional distress), and fifth (negligent infliction of emotional distress) causes of action.
The attached claim is a five-page singled-spaced rambling and repetitive account of Casarez's employment history with IID. There, Casarez asserts he intends to sue IID for "[d]iscrimination, [h]arassment and [r]etaliation because of age, medical condition, and ancestry, [w]histleblowing, [u]nion activities, [f]reedom of [s]peech and [f]reedom of the [p]ress."
Because IID's demurrer attacked the manner in which Casarez mailed his claim, rather that the claim's contents, we omit further details of its contents.
B. Legal Context
"[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon . . . or has been deemed to have been rejected . . . ." (§ 945.4.) Thus, "'the failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.'" (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738.)
"'[A]ctions seeking redress for employment discrimination pursuant to the [FEHA] are not subject to the claim-presentation requirements of the Tort Claims Act.'" (Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711.)
Under section 915, subdivision (a)(2), a claim shall be presented to a local public entity "by either of the following means: [¶] . . . (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office." Even if a claimant does not comply with this section, a claim will be deemed to have been presented in compliance with section 915 if it is actually received by the clerk, secretary, auditor, or board of the local public entity. (§ 915, subd. (e)(1).)
Where claims presentation is a condition precedent to maintaining a cause of action, it is an essential element of a prima facie case. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240.) Accordingly, the "failure to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action." (Id. at p. 1239.)
"[A] plaintiff may allege compliance with the claims presentation requirement . . . by including a general allegation that he or she timely complied with the claims statute." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237 (Perez).)
In its demurrer, IID asserted the third, fourth, and fifth causes of action were fatally defective because the Complaint showed Casarez mailed his claim to IID's "Legal Counsel," who is not the clerk, secretary, or auditor, as section 915 requires.
C. The Complaint Does Not Adequately Allege Claim Presentation
Casarez's Complaint alleges, "On November 13, 2014, [Casarez] timely filed a tort claim with IID." If the Complaint stopped here, it would have adequately alleged claims presentation. (Perez, supra, 209 Cal.App.4th at p. 1237 [allegation that "[o]n January 15, 2010, Plaintiff filed a timely claim complying with the required claims statute" is sufficient against a demurrer].)
However, the Complaint goes beyond this general allegation. Casarez attached the claim as an exhibit, along with proof of its mailing to "IID Legal Counsel." Legal counsel is not the "clerk, secretary or auditor" of IID, nor the "governing body." Accordingly, the Complaint actually alleges noncompliance with section 915.
Where, as here, a pleading includes a general allegation that conflicts with other specific allegations, the specific allegations control. (Perez, supra, 209 Cal.App.4th at pp. 1235-1236.) Thus, although paragraph 4 of the Complaint adequately alleges Claims Act compliance, the exhibit attached to the complaint conflicts—and controls.
Citing Insolo v. Imperial Irrigation District (1956) 147 Cal.App.2d 172 (Insolo), Casarez contends mailing the claim to IID's legal counsel constitutes "substantial compliance with the statute," which he contends is sufficient. This argument fails, however, because Insolo is no longer good law.
In DiCampli-Mintz v. County of Santa Clara (2015) 55 Cal.4th 983, which Casarez does not cite, the California Supreme Court held the substantial compliance doctrine does not apply to section 915. Rather, the court held "a claim must satisfy the express delivery provisions language of [section 915]." (DiCampli-Mintz, at p. 987.) Delivery of the claim to someone other than a statutorily designated recipient does not satisfy the claim presentation requirement. (Id. at pp. 991-992.) In so holding, the court noted that Insolo, supra, 147 Cal.App.2d 172 was decided before the Legislature enacted section 915, and therefore was inapposite. (Dicampli-Mintz, at p. 997 & fn. 11.)
D. The Court Should Have Granted Casarez Leave to Amend
When the trial court sustains a demurrer without leave to amend, we must also consider whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. If the defect can be cured, then the judgment of dismissal must be reversed to allow the plaintiff an opportunity to do so. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432.) This showing may be made for the first time on appeal. (Code Civ. Proc., § 472c, subd. (a); Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).)
There appears to be a reasonable possibility Casarez can cure the claims presentation defect by amending his complaint. Under section 915, subdivision (e)(1), a claim shall be deemed to have been presented in compliance with section 915 if it is "actually received by the clerk, secretary, auditor, or board of the local public entity."
Thus, a public entity may not lightly disregard misaddressed claims because they will be deemed sufficient if "actually received" by the clerk, secretary, auditor, or governing body.
Here, Casarez mailed the claim to IID's "Legal Counsel" at P.O. Box 937, Imperial, California 92251. We take judicial notice that the address for "general correspondence" to the IID is the same—P.O. Box 937, Imperial, California 92251. (Evid. Code, §§ 452, subd. (g) & 459, subd. (a).) The claim itself is addressed: "To Imperial Irrigation Directors." Moreover, in his opening brief, Casarez represents that IID's "legal counsel" is Ross Simmons, who is "an employee of the Board of Director[s]." Casarez states Simmons's responsibility "is to submit all potential lawsuits to the Board of Directors, and it would be appropriate to have named him [l]egal [c]lerk of the IID Directors." Casarez's brief adds that "IID does not have any individual with the title [s]ecretary or [c]lerk whose responsibility is to provide for the administrative needs of the IID Directors. IID probably has not assigned any particular person the title of [c]lerk or [s]ecretary to deliberately make it more difficult [] for the public to file a claim."
The "Contact Us" page of IID's website states "general correspondence" should be sent to Imperial Irrigation District, P.O. Box 937, Imperial, CA 92551-0937. <http://www.iid.com/about-iid/an-overview/contact-us> (as of May 23, 2017).
IID asserts we should ignore these representations because none is supported by the record. However, on appeal after a demurrer is sustained without leave to amend, the appellant may seek leave to amend, even for the first time on appeal, by stating how he could cure the pleading's defect. (Rakestraw, supra, 81 Cal.App.4th at p. 43.)
Construing Casarez's representations as akin to an offer of proof of what he could allege in an amended complaint, and liberally construing them in Casarez's favor, as we must on a demurrer—they suffice to allege IID "actually received" his claim within the meaning of section 915, subdivision (e) for purposes of surviving a demurrer. Therefore, the trial court abused its discretion in not giving Casarez the opportunity to amend the third, fourth, and fifth causes of action to allege facts showing compliance with section 915.
E. The Court Abused Its Discretion in Not Granting Casarez Leave to Amend the Third Cause of Action for Intentional Infliction of Emotional Distress
Casarez's third cause of action incorporates by reference previous allegations that IID discriminated against him and alleges, "The aforementioned conduct of [IID] was outrageous, intentional, malicious, and done with reckless disregard for the fact that [IID's] actions would certainly cause [Casarez] to suffer severe emotional distress, and was so extreme as to exceed all bounds usually tolerated in a civilized community."
IID demurred to this cause of action on the grounds the facts alleged "don't shock the conscience of reasonable minds or exceed the bounds of decency in a civilized community." The trial court did not address this issue, apparently because it determined this cause of action was barred by noncompliance with section 915. For guidance on remand, we consider IID's demurrer on this ground.
To state a cause of action for intentional infliction of emotional distress a plaintiff must adequately allege, among other elements, outrageous conduct by the defendant. "'"'Conduct, to be "'outrageous'" must be so extreme as to exceed all bounds of that usually tolerated in a civilized society."' [Citation.] In order to avoid a demurrer, the plaintiff must allege with "great[] specificity" the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Yau v. Allen (2014) 229 Cal.App.4th 144, 160-161.) Evidence that reflects "'"mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities"'" is insufficient. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)
California courts have held that the use of racial epithets can support a cause of action for intentional infliction of emotional distress. Where a plaintiff's supervisor shouted to the plaintiff, "'You goddam"niggers" are not going to tell me about the rules. I don't want any"niggers" working for me. I am getting rid of all the "niggers"'"—our Supreme Court reversed a judgment of dismissal after a demurrer was sustained without leave to amend to the plaintiff's cause of action for intentional infliction of emotional distress. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496-497 (Alcorn).)
Relying in part on Alcorn, supra, 2 Cal.3d 493, a court of appeal held that evidence a supervisor intentionally insulted an employee based on his race was sufficient to raise a triable issue of material fact with respect to outrageousness. (Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1130.) In addressing an intentional infliction of emotional distress claim, Robinson states "'[b]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which give him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally . . . with the recognition that the acts are likely to result in illness through mental distress.'" (Ibid., italics added.)
Here, Casarez has alleged IID discriminated against him and terminated his employment because he is Hispanic. These allegations do not rise to the level of outrageousness exemplified by Alcorn, supra, 2 Cal.3d 493 or Robinson, supra, 183 Cal.App.3d 1108; however, the pervasive racial discrimination Casarez does allege suggests there is a reasonable possibility he could amend the Complaint to adequately state a cause of action for intentional infliction of emotional distress. The court should have given him an opportunity to do so. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 321 [it is an abuse of discretion to deny leave to amend if there is a reasonable possibility the pleading can be cured by amendment].)
IV. THE COURT SHOULD NOT HAVE GRANTED THE MOTION TO STRIKE
Once the court sustained IID's demurrer without leave to amend, nothing remained of Casarez's claims as alleged in the Complaint. Therefore, IID's alternative motion to strike was moot because the court, having dismissed the complaint, could afford no additional relief. The court should have denied the motion to strike as moot because the court's ruling could have no practical effect. (See Cuenca v. Cohen (2017) 8 Cal.App.5th 200, 216-217 [discussing mootness doctrine].)
Our reversal of the order granting IID's motion to strike on mootness grounds should not be construed as any reflection on the merits of that motion or the trial court's ruling on same. Among other things, the court ordered the Complaint's allegation of punitive damages stricken under section 818, which provides: "Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." If Casarez chooses to file an amended complaint that alleges punitive damages against IID, nothing in his opinion precludes IID from moving to strike such an allegation.
V. CASAREZ CANNOT CHALLENGE THE TRIAL JUDGE
FOR THE FIRST TIME ON APPEAL
In his opening brief, Casarez states the trial judge "should have recused himself due to potential conflict of interest." However, the record does not show Casarez filed any challenge or motion to disqualify the judge. Accordingly, the contention is not cognizable on appeal. A challenge to the trial judge cannot be made for the first time on appeal. (See County of San Diego v. Miller (1980) 102 Cal.App.3d 424, 435.)
DISPOSITION
The judgment is reversed with directions to enter an order overruling the demurrer to the first and second causes of action, and sustaining the demurrer to the third, fourth, and fifth causes of action with leave to amend. The court shall give Casarez a reasonable time after the remittitur is filed in the superior court to seek representation by counsel and to file a first amended complaint.
Nothing in this opinion precludes IID from filing a demurrer and/or a motion to strike as a responsive pleading to Casarez's first amended complaint, to the extent arguments in such demurrer and/or motion to strike are consistent with the law of the case effect of this decision.
Casarez is entitled to costs incurred on appeal.
NARES, J. WE CONCUR: BENKE, Acting P. J. DATO, J.