Guzman v. NBA Automotive, Inc. ( 2021 )

Filed 9/17/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GLORIA GUZMAN, B303655
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC675851)
v.
NBA AUTOMOTIVE, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Los Angeles County
Superior Court, Michael P. Linfield, Judge. Affirmed.
McCreary and Duncan J. McCreary for Defendant and
Appellant.
Lyon Law, Geoffrey C. Lyon; and Henry Harmeling IV for
Plaintiff and Respondent.
INTRODUCTION
Gloria Guzman timely filed an administrative complaint
with the Department of Fair Housing and Employment (DFEH)
after her employer, NBA Automotive, Inc. dba Hooman Chevrolet
of Culver City (NBA Automotive),1 terminated her employment.
DFEH issued Guzman a right-to-sue letter, and Guzman filed
this action against NBA Automotive, alleging wrongful
termination and various causes of action under the Fair
Employment and Housing Act (Gov. Code, § 12900 et seq.)
(FEHA).2 A jury found in favor of Guzman and awarded her
monetary damages, and the trial court entered judgment in her
favor.
NBA Automotive appeals from the judgment, challenging
the trial court’s orders denying its motions for judgment
notwithstanding the verdict and for a new trial. NBA
Automotive argues Guzman failed to exhaust her administrative
remedies under FEHA because her administrative complaint,
though it named something very close (“Hooman Chevrolet”) to
NBA Automotive’s correct fictitious business name (“Hooman
Chevrolet of Culver City”), it incorrectly identified “Hooman
Enterprises, Inc.,” rather than “NBA Automotive, Inc.,” as the
corporation doing business as Hooman Chevrolet of Culver City.
Because Guzman’s administrative complaint sufficiently
identified her employer, she exhausted her administrative
1 NBA is an initialism for Nissani Brothers Automotive.
2 Undesignated statutory references are to the Government
Code.
2
remedies within the statutory limitations period. Therefore, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Guzman Files an Administrative Complaint
On September 8, 2017 Guzman filed an administrative
complaint with DFEH asserting various employment claims,
including discrimination, harassment, retaliation, failure to
engage in the interactive process, denial of family or medical
leave, and denial of reasonable accommodations. The caption of
the complaint named “Hooman Enterprises, Inc.” as the
respondent, and in the first sentence, under the heading
“Additional Complaint Details,” Guzman alleged she “was
employed by Defendant Hooman Enterprises Inc. DBA Hooman
Chevrolet (Employer)” from February 2002 to May 2017 in,
among several locations, Culver City. Guzman also named her
supervisors, including “owner Hooman Nissani.” Guzman
requested, and DFEH issued the same day, a right-to-sue letter.3
DFEH sent Hooman Enterprises, Inc. a copy of Guzman’s
administrative complaint and the right-to-sue letter.
3 See Cal. Code Regs., tit. 2, § 10005, subd. (a) (“Any person
claiming to be aggrieved by an employment practice made
unlawful by the FEHA may forgo having the department
investigate a complaint and instead obtain an immediate right-
to-sue notice. A right-to-sue notice issued by the department
shall state that the aggrieved party may bring a civil action
against the person or entity named in the complaint within one
year from the date of the notice.”).
3
B. Guzman Files This Action
On September 14, 2017 Guzman filed this action, naming
as defendants “Hooman Enterprises Inc. DBA Hooman Chevrolet;
and DOES 1 to 10.” The operative first amended complaint
alleged 12 causes of action, including for wrongful termination,
retaliation (§ 12940, subd. (h)), disability discrimination (§ 12940,
subd. (a)), age discrimination (§ 12940, subd. (a)), failure to make
reasonable accommodations (§ 12940, subd. (m)), and failure to
engage in the interactive process (§ 12940, subd. (n)). On
January 23, 2018 NBA Automotive, using the name “Hooman
Chevrolet of Culver City,” filed an answer to Guzman’s first
amended complaint.
C. Guzman Learns the Legal Name of Her Employer and
Amends Her Complaint in This Action and Her
Administrative Complaint
Guzman stated (and NBA Automotive did not dispute) that
in October 2018 she learned the legal name of NBA Automotive
and asked the court to amend the complaint in this action to
substitute the “true name” of the defendant, “NBA Automotive,
Inc. dba Hooman Chevrolet of Culver City,” in place of the
“incorrect name” of “Hooman Enterprises, Inc. dba Hooman
Chevrolet.” On January 3, 2019 the trial court signed the order
amending the complaint. On April 25, 2019 Guzman filed an
amended administrative complaint with DFEH naming
“NBA Automotive, Inc.” as the respondent and stating in the
body of the complaint that her employer was “NBA Automotive,
Inc., DBA Hooman Chevrolet.” DFEH accepted the amended
complaint and deemed it “to have the same filing date of the
original complaint.”
4
D. A Jury Returns a Split Verdict in Favor of Guzman,
and NBA Automotive Files Motions for Judgment
Notwithstanding the Verdict and for a New Trial
After a four-day trial, the jury found in favor of Guzman on
her causes of action for wrongful termination and retaliation,
awarded her $245,892 in damages, and found in favor of NBA
Automotive on her causes of action for disability discrimination,
failure to provide reasonable accommodation, failure to engage in
the interactive process, and age discrimination.4 NBA
Automotive moved for judgment notwithstanding the verdict on
the grounds that “there was an error in law and insufficiency of
the evidence to justify the verdict” because the “evidence set forth
during trial did not establish that all of the necessary elements of
the causes of action were present.” Specifically, NBA Automotive
argued Guzman did not comply with section 12960,
subdivisions (b) and (d), because she did not file her
administrative complaint “within one year of the last allegedly
illegal act identifying her employer.” NBA Automotive moved for
a new trial on the same grounds, arguing Guzman’s “failure [to]
file a DFEH Complaint against NBA [Automotive] should have
resulted in [Guzman] not prevailing on the causes of action for
wrongful termination and retaliation because [she] failed to
exhaust her administrative remedies under . . . § 12960(b)
[and] (d).”
4 On August 12, 2019, the first day of trial, NBA Automotive
filed a motion for judgment on the pleadings, arguing Guzman
failed to exhaust her administrative remedies under FEHA. On
August 15, 2019 the trial court denied the motion.
5
The trial court denied both motions. The court ruled
Guzman exhausted her administrative remedies because DFEH
“confirmed that the amendment to the DFEH complaint naming
the proper defendant applied retroactively to the initial
September 8, 2017 filing date.” The court also ruled NBA
Automotive “was described as a perpetrator of discriminatory
acts, [it] would have been put on notice of the charges, and [it]
would have had an opportunity to participate, had DFEH
investigated.” NBA Automotive timely appealed.
DISCUSSION
NBA Automotive contends the trial court “erred in law” in
denying its motions for judgment notwithstanding the verdict
and for a new trial because Guzman failed to exhaust her
administrative remedies, as required by section 12960,
subdivisions (b) and (d).5 NBA Automotive argues Guzman did
not exhaust her administrative remedies because her
administrative complaint “identified Hooman Enterprises, Inc.,”
5 In the “Statement of the Case” section of its brief, NBA
Automotive asserts the trial court erred in denying a motion for
judgment on the pleadings based on the same exhaustion
argument. NBA Automotive, however, does not in its brief
provide any argument relating to that motion. Therefore, we do
not address it. (See Dinslage v. City and County of San Francisco
(2016) 5 Cal.App.5th 368, 377, fn. 3 [“‘we do not consider . . . the
loose and disparate arguments that are not clearly set out in a
heading and supported by reasoned legal argument’”]; Cal. Rules
of Court, rule 8.204(a)(1)(B) [a brief must “[s]tate each point
under a separate heading or subheading summarizing the point,
and support each point by argument and, if possible, by citation
of authority].)
6
rather than “NBA Automotive, Inc. dba Hooman Chevrolet of
Culver City,” as her employer. Because NBA Automotive’s
expansive view of the exhaustion requirement under FEHA is
incorrect, the trial court did not err in denying the motions for
judgment notwithstanding the verdict and for a new trial.
A. Standards of Review
“‘A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support. [Citation.] [¶] . . . As in
the trial court, the standard of review [on appeal] is whether any
substantial evidence—contradicted or uncontradicted—supports
the jury’s conclusion.’” (Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 770; see Webb v. Special Electric Co., Inc. (2016)
63 Cal.4th 167, 192; Morgan v. J-M Mfg. Co., Inc., (2021)
60 Cal.App.5th 1078, 1085.) But where the “sole question before
us . . . is one of law” and the “jury . . . was not asked to resolve
any factual questions bearing on the question,” we “address the
issue under a de novo standard of review.” (Sweatman v.
Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; see
Brown v. City of Sacramento (2019) 37 Cal.App.5th 587, 598 [“to
the extent a motion for judgment notwithstanding the verdict
raises legal issues such as the application of law to undisputed
facts . . . , we review the trial court’s ruling on the motion de
novo”]; Wolf v. Walt Disney Pictures & Television (2008)
162 Cal.App.4th 1107, 1138 [same].)
We generally review orders granting or denying a motion
for a new trial for abuse of discretion. (See Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 859; Denton v. City and
County of San Francisco (2017) 16 Cal.App.5th 779, 794.) But
7
“any determination underlying any order is scrutinized under the
test appropriate to such determination.” (Aguilar, at p. 859;
accord, Tun v. Wells Fargo Dealer Services, Inc. (2016)
5 Cal.App.5th 309, 323.) Here, because whether Guzman
exhausted her administrative remedies is a question of law (see
Foster v. Sexton (2021) 61 Cal.App.5th 998, 1023), we review the
trial court’s ruling de novo. (See Aguilar, at p. 860 [superior
court’s order granting a new trial “was predicated, specifically, on
its determination that . . . it made an error in law,” which “is
itself scrutinized de novo”]; Estill v. County of Shasta (2018)
25 Cal.App.5th 702, 708 [“[b]ecause the trial court granted [the
plaintiff] a new trial based on a question of law, we review the
order de novo”].)
B. The Exhaustion Requirement Under FEHA
“In enacting the FEHA, California’s Legislature sought to
safeguard the rights of all persons to seek, obtain, and hold
employment without discrimination on account of various
characteristics, including race, national origin, physical
disability, and medical condition.” (Salas v. Sierra Chemical Co.
(2014) 59 Cal.4th 407, 420; see § 12920; Pollock v. Tri-Modal
Distribution Services, Inc. (2021) 11 Cal.5th 918, 934 (Pollock);
Saavedra v. Orange County Consolidated Transportation etc.
Agency (1992) 11 Cal.App.4th 824, 828 (Saavedra).) “Section
12960 delineates the procedures by which aggrieved employees
are to state their complaints.” (Saavedra, at p. 826.) Section
12960, former subdivision (b),6 stated: “Any person claiming to
6 “Effective January 1, 2020, former section 12960,
subdivision (b) was redesignated without material change as
8
be aggrieved by an alleged unlawful practice may file with
[DFEH] a verified complaint, in writing, that shall state the
name and address of the person, employer, labor organization, or
employment agency alleged to have committed the unlawful
practice complained of, and that shall set forth the particulars
thereof and contain other information as may be required by the
department.” (See Clark v. Superior Court (2021) 62 Cal.App.5th
289, 299 (Clark).) “[S]ection 12960, former subdivision (d)
requires litigants seeking relief under the FEHA to file an
administrative complaint with the DFEH within one year ‘from
the date upon which the alleged unlawful practice . . . occurred.’”
(Pollock, at p. 929; see Alexander v. Community Hospital of Long
Beach (2020) 46 Cal.App.5th 238, 250 (Alexander).)7
“Once the DFEH receives an aggrieved person’s complaint,
it must investigate the alleged unlawful practice and determine
whether it can resolve the matter ‘by conference, conciliation, and
persuasion.’ [Citation.] If such measures fail, the department
may issue an accusation to be heard by the Fair Employment and
Housing Commission. [Citations.] If that council finds a
violation, it may issue a cease and desist order and grant other
appropriate relief. [Citation.] If the department issues no
accusation, it must give the aggrieved person notice and a right-
to-sue letter. [Citation.] The aggrieved person may, within one
section 12960, subdivision (c).” (Clark v. Superior Court (2021)
62 Cal.App.5th 289, 299, fn. 11.)
7 Effective January 1, 2020, the Legislature amended section
12960 to “enlarge[ ] the time for filing a [DFEH] claim to three
years from the date of the challenged conduct.” (Brome v.
California Highway Patrol (2020) 44 Cal.App.5th 786, 793, fn. 2;
see § 12960, subd. (e).)
9
year after receiving notice, bring a civil action against the
‘person, employer, labor organization, or employment agency’
named in the charge.” (Alexander, supra, 46 Cal.App.5th at
p. 250.)
“An employee who wishes to file suit under the FEHA
‘must exhaust the administrative remedy provided by the statute
by filing a complaint with the’ DFEH, ‘and must obtain from the
[DFEH] a notice of right to sue.’ [Citation.] ‘The timely filing of
an administrative complaint’ before the DFEH ‘is a prerequisite
to the bringing of a civil action for damages.’” (Pollock, supra,
11 Cal.5th at p. 931; accord, Clark, supra, 62 Cal.App.5th at
p. 301.) “The administrative exhaustion requirement is satisfied
if FEHA claims in a judicial complaint are ‘“like and reasonably
related to”’ those in the DFEH complaint [citation] or ‘likely to be
uncovered in the course of a DFEH investigation.’” (Clark, at
p. 301.)
C. Guzman Exhausted Her Administrative Remedies
Guzman complied with the requirements of section 12960,
former subdivision (b). She filed an administrative complaint
stating “the name and address of the . . . employer” (§ 12960,
former subd. (b)) who she alleged committed the unlawful
employment practices described in the complaint. The
administrative complaint unmistakably identified NBA
Automotive as the respondent. Although Guzman did not state
NBA Automotive’s full correct legal name, she stated that the
fictitious business name of her employer was “Hooman
Chevrolet,” a name virtually identical to “Hooman Chevrolet of
Culver City,” NBA Automotive’s actual fictitious business name.
In addition, Guzman’s administrative complaint listed the
10
address of Hooman Chevrolet in Culver City and named the
owner (Hooman Nissani). (See Clark, supra, 62 Cal.App.5th at
pp. 305-306 [plaintiff sufficiently identified her employer where
the caption of the administrative complaint had names that were
“very similar” to the employer’s “actual fictitious business name,”
and “any administrative investigation into [her] DFEH
Complaint would have certainly identified [the employer] as an
intended respondent”]; Saavedra, supra, 11 Cal.App.4th at p. 827
[plaintiff could maintain a cause of action against her supervisor,
even though she had not named him in her administrative
complaint (and named only the agency that employed her),
because he “was the only person with whom [the plaintiff] dealt”
and “[h]is actions were those of [the employer]”]; see also Myers v.
Checksmart Financial, LLC (9th Cir. 2017) 701 Fed.Appx. 588,
590 [plaintiff sufficiently identified her employer by stating the
fictitious business name and address of the store where she
worked]; Thompson v. George DeLallo Co., Inc. (E.D.Cal. Jan. 16,
2013, No. Civ. S-12-1058 LKK/CMK) 2013 WL 211204, p. 9
[plaintiff exhausted his administrative remedies under FEHA
where, even though the administrative complaint did not name
the proper defendant, “the charge properly identifie[d] the
fictitious business name of his employer and was mailed to the
facility at which he was employed”]; see generally Hawkins v.
Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497,
1504 [plaintiff was entitled to amend his complaint to state the
true name of his employer because “courts have long allowed a
plaintiff to correct the name of a defendant who conducts
business under a fictitious name after the statute of limitations
has run”].)
11
Guzman also provided a detailed description of her
employer, the names of the individuals who engaged in the
allegedly discriminatory practices, and a narrative of multiple
instances of wrongful conduct spanning 15 years. She also
named the supervisors and managers employed by NBA
Automotive who took the adverse employment actions against
her. Any reasonable investigation would have revealed that NBA
Automotive was Guzman’s employer. (See Martin v. Fisher
(1992) 11 Cal.App.4th 118, 122 [“[t]he function of an
administrative complaint is to provide the basis for an
investigation into an employees’ claim of discrimination against
an employer, and not to limit access to the courts”]; Valdez v. City
of Los Angeles (1991) 231 Cal.App.3d 1043, 1060 [same].)8 To
allow NBA Automotive to escape liability for discriminatory
conduct merely because Guzman identified her employer
administratively with a name that was nearly the same as, but
not quite identical to, her employer’s actual fictitious business
name would be contrary to the purposes of FEHA. (See § 12993,
subd. (a) [“[t]he provisions [of FEHA] shall be construed liberally
for the accomplishment of the purposes of” FEHA]; Pollock,
supra, 11 Cal.5th at pp. 934-935 [“‘section 12960 should not be
8 The regulations governing DFEH require it to “liberally
construe all complaints to effectuate the purpose of the laws the
department enforces to safeguard the civil right of all persons to
seek, obtain and hold employment without discrimination.” (Cal.
Code Regs., tit. 2, § 10003; see Clark, supra, 62 Cal.App.5th at
p. 306; see also Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 268 [“what is submitted to the DFEH must
not only be construed liberally in favor of plaintiff, it must be
construed in light of what might be uncovered by a reasonable
investigation”].)
12
interpreted to impose serious practical difficulties on an
employee’s ability to vindicate’ the right to hold employment
without experiencing discrimination or harassment”]; Romano v.
Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493-494 [“the
limitations period set out in the FEHA should be interpreted so
as to promote the resolution of potentially meritorious claims on
the merits”].)
The information in Guzman’s administrative complaint
also gave NBA Automotive sufficient notice that she was naming
it in her administrative complaint and would name it in her
subsequent civil action, both of which, as well as the right-to-sue
letter, NBA Automotive does not dispute it received. NBA
Automotive had all the information it needed to participate in
any administrative efforts to resolve the matter informally (had
Guzman not requested a right-to-sue letter) and to engage in
settlement discussions once Guzman filed this action. (See Wills
v. Superior Court (2011) 195 Cal.App.4th 143, 156 [“The purpose
of FEHA’s administrative exhaustion requirement is to ensure
DFEH is provided the opportunity to resolve disputes and
eliminate unlawful employment practices through conciliation.”];
Saavedra, supra, 11 Cal.App.4th at p. 827 [although the plaintiff
did not name her supervisor in the administrative complaint, he
“was put on notice and had an opportunity to pursue a ‘voluntary
settlement had he so desired’”].)
Nor does NBA Automotive contend Guzman’s failure to
state its correct legal name in her original administrative
complaint prejudiced its defense in any way. NBA Automotive
filed an answer to Guzman’s complaint in this action under its
fictitious business name, conducted discovery, and defended
against Guzman’s causes of action at trial (even prevailing on
13
some). Indeed, NBA Automotive refrained from using its true
legal name until after Guzman learned it nine months later in
discovery (apparently after filing a successful motion to compel
on the issue). Such gamesmanship suggests that NBA
Automotive knew Guzman intended to identify it in her
administrative complaint and that NBA Automotive tried to
deprive Guzman of her right to pursue her claims against the
company for its unlawful employment conduct. (See Clark,
supra, 62 Cal.App.5th at p. 293 [“FEHA’s exhaustion
requirement should not be interpreted as a ‘“procedural
gotcha”’”].) And even if, as NBA Automotive suggests, it is
“wholly unrelated” to Hooman Enterprises, Inc., NBA Automotive
was very much related to Hooman Chevrolet, the name that
appears in Guzman’s administrative complaint. Which the
evidence at trial confirmed: NBA Automotive’s service manager
testified the name “Hooman Chevrolet” was on the building
where he and Guzman worked, and NBA Automotive’s general
manager testified he was the general manager at “Hooman
Chevrolet.”9
Cole v. Antelope Valley Union High School Dist. (1996)
47 Cal.App.5th 1505, on which NBA Automotive relies, is
distinguishable. In that case the court held the plaintiff did not
exhaust his administrative remedies before filing an action
against two of his supervisors because those supervisors “were
not mentioned in the administrative charge at all.” (Id. at
p. 1511.) The plaintiff named in the caption and body of the
9 The general manger also testified his employer was
“Nissani Brothers Automotive,” indicating he viewed the two
entities as related, if not the same.
14
complaint only the school district that employed him and a
different supervisor. (Id. at p. 1509.) Unlike the plaintiff in Cole,
who sought to sue individuals who were not identified in the
administrative complaint, Guzman made clear she intended to
sue her employer, whom she knew by the name Hooman
Chevrolet; she did not seek to sue supervisors in their individual
capacities or any entity other than her true employer. (Cf.
Alexander, supra, 46 Cal.App.5th at pp. 243, 251 [plaintiffs’
failure to mention anywhere in their administrative complaint a
corporation that was separate from the named respondents
precluded “their bringing a civil FEHA action against it”]; Valdez
v. City of Los Angeles, supra, 231 Cal.App.3d at pp. 1060-1061
[plaintiff’s failure to name in his administrative complaint
certain supervisors and managers precluded him from bringing a
civil action against them individually].)10
10 Because Guzman exhausted her administrative remedies
by filing her original administrative complaint, we do not decide
whether, as NBA Automotive contends, the trial court erred in
ruling DFEH properly allowed Guzman to amend her
administrative complaint. (See Clark, supra, 62 Cal.App.5th at
p. 310, fn. 25 [because the plaintiff exhausted her administrative
remedies when she filed her original complaint, “her failure to
amend her DFEH Complaint to state [her employer’s] proper
legal name prior to the trial court’s granting of summary
adjudication is immaterial”].) In addition, the trial court did not
err in denying NBA Automotive’s motion for a new trial for the
same reasons it did not err in denying NBA Automotive’s motion
for judgment notwithstanding the verdict.
15
DISPOSITION
The judgment is affirmed. Guzman is to recover her costs
on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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