Doe v. Santa Clara University CA6 ( 2024 )

Filed 9/25/24 Doe v. Santa Clara University CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JANE DOE, H050798
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 22CV397478)
v.
SANTA CLARA UNIVERSITY,
Defendant and Respondent.
THE COURT*
Jane Doe was an adjunct lecturer at Santa Clara University (SCU) from 2016 to
2018. In April 2022, nearly four years after her employment with SCU ended, Doe sued
SCU, asserting race, sex, and gender discrimination, harassment, hostile work
environment, and other claims. SCU filed a demurrer, which the trial court sustained,
primarily on the ground that Doe’s claims were not timely filed. The trial court also
denied Doe leave to amend and entered judgment. Representing herself, Doe appeals.
For the reasons explained below, we affirm.
*
Before Grover, Acting P. J.; Lie, J.; and Bromberg, J.
I. BACKGROUND
A. Doe’s Appointment
Doe was appointed as an adjunct lecturer at SCU several times. The first
appointment was for the 2016-2017 academic year, in which she was hired to teach seven
courses over the full year. Doe also was appointed for the 2017-2018 winter quarter,
apparently for two courses, and for the 2017-2018 spring quarter, apparently for one
course. The last appointment ended June 15, 2018.
B. Doe’s Allegations
In her first amended complaint, Doe alleges the following facts, which we take as
true for purposes of assessing the demurrer. (See, e.g., First Nationwide Savings v. Perry
(1992) 11 Cal.App.4th 1657, 1662.)
1. Winter 2018
Doe is an Asian-American woman. In February 2018, she began experiencing
headaches, dizziness, blurry vision, pain, and fatigue at work. She then engaged an
engineering firm to “evaluate the ergonomic and environmental aspects” of her
workplace.
Shortly after Doe engaged the engineering firm, SCU’s “management behavior”
changed. Before the change, Doe was well respected, and the environment at SCU was
supportive and inclusive. Afterwards, management marginalized, micromanaged, and
ostracized her. Among other things, the chair of Doe’s department refused to write Doe a
recommendation letter for tenure-track faculty positions, berated Doe at a faculty
meeting, and excluded her from the faculty podium during graduation ceremonies.
2. May 2018
In May 2018, while walking on campus, Doe experienced a sharp pain. Later that
day, she extracted small objects from her “intimate parts,” which she submitted for lab
evaluation. Upon information and belief, Doe asserts the objects in her intimate parts
constituted sexual assault and battery. Based on this experience and her sickness at work,
2
Doe began to prepare a complaint for the California Office of Safety and Health
Administration (Cal-OSHA).
3. June 2018
Although there is no allegation that Doe had submitted a complaint to Cal-OSHA,
she alleges that SCU became aware of the concerns she planned to raise and SCU
retaliated against her for them. On or about June 13, 2018, the chair of Doe’s department
revoked funding for Doe’s end-of-year Asian-American oral history film festival. In
addition, Doe’s summer 2018 course was cancelled, and she was not invited to teach at
SCU again.
SCU also failed to investigate Doe’s complaints. On June 14, 2018, Doe wrote to
her department chair and to SCU’s director of environment, health and safety asking the
university for “assistance with conducting an inquiry.” She also advised the director that
she was submitting her “inquiry regarding workplace environment/safety matters” to Cal-
OSHA. Several days later, the director told Doe that SCU would respond to any inquiry
received from Cal-OSHA concerning Doe’s complaint.
4. December 2018
In early December 2018, Doe asked the director of environment, health and safety
for an update on the investigation into her claims. The director told Doe that Cal-OSHA
had informed SCU that no follow-up was required by SCU, and he encouraged Doe to
reach out to Cal-OSHA with any questions. Cal-OSHA replied that Doe’s complaint was
beyond Cal-OSHA’s “regulatory confines,” but that Cal-OSHA had not instructed SCU
on taking further action.
On or about December 10, 2018, Doe filed an online report with SCU regarding
her May 2018 sexual assault and battery. Two days later, Doe found “another suspect
specimen that had penetrated her intimate parts.” Doe had this specimen evaluated by
experts, who identified it as a “device with semiconductor components.” (Doe also
discovered similar technology in her body in July 2019 and August 2020.)
3
5. Winter 2019
In January 2019, Doe met with SCU’s equal employment and Title IX officer and
informed the officer that she believed the specimen discovered in December 2018
constituted sexual assault and battery. The officer responded that she was aware of Doe’s
prior complaint to Cal-OSHA and that SCU did not work on micro technology. On or
about February 14, 2019, the officer notified Doe that SCU would not proceed with an
investigation.
C. Administrative Proceedings
On or around October 8, 2021, Doe filed a complaint with the California
Department of Fair Employment & Housing (the Department),1 alleging sexual assault,
harassment based on gender and race, and failure to investigate.2
On November 5, 2021, a letter from the Department notified Doe that her case
would be closed because her administrative complaint was “[o]utside of jurisdictional
time frame.” The letter invited Doe to provide more information if she disagreed with the
Department’s determination. Doe does not appear to have done so, and on
December 24, 2021, the Department notified Doe that it had closed her case and issued a
“Right to Sue” notice.
In January 2022 Doe also presented a discrimination charge to the Equal
Employment Opportunity Commission (EEOC), attaching a copy of her administrative
complaint to the Department. Later that month, the EEOC dismissed the charge and
issued Doe a notice of right to sue.
1
In July 2022, the Department was renamed the Civil Rights Department.
(<https://calcivilrights.ca.gov> [as of Sept. 25, 2024], archived at:
<http://perma.cc/HR89-FXFA>.)
2
Although Doe asserts on appeal that her administrative complaint was submitted
on May 27, 2021, she does not cite any evidence supporting this assertion. The
May 27, 2021 date appears to be based on submission of an intake form, which did not
assert any claims.
4
D. Proceedings Below
In April 2022, Doe filed complaints in two separate actions3 against SCU, both
asserting similar claims of discrimination, harassment, retaliation, hostile work
environment, and negligence. Doe filed a motion to consolidate the two actions, which
the trial court granted.
While the motion to consolidate was pending, Doe filed an amended complaint in
the earlier of the actions. The amended complaint asserted seven claims under the Fair
Employment & Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and Title VII of the
Civil Rights Act of 1964: failure to prevent harassment, discrimination, or retaliation;
gender discrimination; sex discrimination; race discrimination; harassment; hostile work
environment; and retaliation. The amended complaint also asserted three Labor Code
claims, for violating sections 98.6, 1102.5, and 6310, respectively. Finally, the amended
complaint asserted a claim for breach of contract.
SCU demurred, arguing that Doe failed to timely file her administrative complaint
with the Department on her FEHA and Title VII claims, that her Labor Code claims were
time barred, and that she had failed to state valid claims. The trial court sustained the
demurrer without leave to amend.4
The trial court held that Doe’s FEHA and Title VII claims were time-barred
because Doe did not file an administrative complaint with the Department until more than
a year after her last day of employment. Doe, the court reasoned, was required to exhaust
her administrative remedies with the Department, but prior to January 1, 2020, FEHA
required that administrative complaints be filed with a year of the alleged unlawful
3
Santa Clara Superior Court case Nos. 22CV397478 and 22CV398192.
4
Doe moved to augment the record on appeal to include the reporter’s transcript
of the December 8, 2022 demurrer hearing. Because the reporter’s transcript was already
included in the record filed in this matter, Doe’s motion is denied.
5
employment practices. In addition, the trial court rejected Doe’s arguments concerning
the continuing violation and equitable tolling doctrines and Emergency Rule 9.
The trial court also dismissed Doe’s Labor Code and contract claims. The court
held that Doe’s Labor Code claims were barred because the statute of limitations for
those claims is three years and Doe did not file suit until April 2022, more than three
years after her employment terminated in June 2018. The court further held that Doe had
failed to state a valid claim for breach of contract because her appointment letter did not
contain the term that SCU allegedly breached.
Finally, the trial court denied Doe leave to amend. It reasoned that Doe could not
cure the defects in her FEHA claims in light of her admission that she did not file her
administrative complaint until more than two years after SCU’s equal employment and
Title IX officer informed her in February 2019 that SCU would not proceed with an
investigation of Doe’s claims. The trial court also found that Doe had failed to show how
she could cure the defects in her Labor Code and contract claims.
The trial court entered judgment on January 21, 2023, and on February 6, 2023.
Doe filed a timely notice of appeal.
II. DISCUSSION
Doe argues on appeal that her causes of action were timely and stated valid claims.
In the alternative, she argues that the trial court should have granted her leave to amend
her claims. We review the dismissal of Doe’s claims de novo (see, e.g., Aviles-Rodriguez
v. Los Angeles Community College District (2017) 14 Cal.App.5th 981, 987 (Aviles-
Rodriguez)) and the denial of leave to amend for abuse of discretion (see, e.g., Blank v.
Kirwan (1985) 39 Cal.3d 311, 318 (Kirwan)). We conclude that for the most part Doe’s
claims are time-barred and that, to the extent they are not, they fail to state valid claims.
As Doe has failed to explain how an amendment would cure these defects, we also
conclude that the trial court did not abuse its discretion in denying leave to amend.
6
A. The Labor Code Claims
We begin with Doe’s Labor Code claims. Doe alleged that SCU violated Labor
Code sections 98.6, 1102.5, and 6310 by retaliating against her for investigating unsafe
work conditions and reporting those conditions and sexual assaults to government and
university officials. We conclude that these claims are time barred because Doe did not
file her complaints raising them until April 2022, more than three years after the claims
accrued.
1. The Limitations Period
The Labor Code does not specify a limitations period for claims alleging
violations of sections 98.6, 1102.5, and 6310. As a consequence, we look to the general
statutes of limitations in the Code of Civil Procedure for the limitations periods
governing these claims. Section 340 of the Code of Civil Procedure imposes a one-year
limitations period for “action[s] upon a statute for a penalty or forfeiture” (Code Civ.
Proc., § 340), and section 338 imposes a three-year period for “action[s] upon a liability
created by a statute, other than a penalty or forfeiture” (id., § 338, subd. (a)). Doe seeks
damages rather than penalties or forfeitures. Consequently, as Doe acknowledges, the
three-year limitations period in Code of Civil Procedure section 338 governs her Labor
Code claims. (Aubry v. Goldhor (1988) 201 Cal.App.3d 399, 404 [applying Code of
Civil Procedure section 338 to Labor Code claim seeking damages]; see also Ayala v.
Frito Lay, Inc. (E.D. Cal. 2017) 263 F.Supp.3d 891, 915-916 [applying Code of Civil
Procedure section 338 to damages claims under Labor Code sections 98.6 and 1102.5];
Minor v. FedEx Office & Print Services (N.D. Cal. 2016) 182 F.Supp.3d 966, 988
[applying Code of Civil Procedure section 338 to damages claims under Labor Code
section 1102.5].)
2. Timeliness
Doe did not timely file her Labor Code claims. Doe filed her civil complaint
asserting the claims on April 16, 2022. However, the claims accrued, and the statute of
7
limitations began to run, no later than June 15, 2018, when Doe’s employment with SCU
terminated. As a consequence, Doe did not file her claims until more than three years
and 10 months after they accrued, after the three-year limitations period had expired.
A claim accrues “when the party alleging injury is entitled to ‘ “ ‘begin and
prosecute an action thereon’ ” ’ ” (Pollock v. Tri-Modal Distribution Services, Inc. (2021)
11 Cal.5th 918, 931 (Pollock)), which normally occurs when the claim “ ‘ “is complete
with all of its elements”—those elements being wrongdoing, harm, and causation.’ ”
(City of Pasadena v. Superior Court (2017) 12 Cal.App.5th 1340, 1348.) Claims under
Labor Code sections 98.6, 1102.5, and 6310 require proof that the plaintiff “was
subjected to adverse employment action after engaging in protected activity and that there
was a causal connection between the two.” (Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1546 (Hansen) [Labor Code, § 1102.5]; see
St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 304 [Labor Code sections
1102.5, 6310, and 98.6].) As a consequence, Doe’s Labor Code claims accrued when
SCU took “adverse employment action” against Doe in retaliation for engaging in
protected activity.
Doe alleges that SCU took adverse employment actions retaliating against her in
the winter, spring, and early summer of 2018. In particular, Doe alleges that after she
engaged an engineering firm to investigate environmental conditions—which she
contends is a protected activity—in February 2018, SCU’s treatment of her “changed
dramatically” and she was “marginalized.” Among other things, Doe alleges that her
department chair refused to provide a letter of recommendation, berated her in a faculty
meeting, and excluded her from the podium during graduation. Doe also alleges that in
the late spring and early summer of 2018, after she began putting together a Cal-OSHA
complaint and requested assistance in investigating workplace environment and safety
matters, her department chair eliminated funding for her Asian-American film festival,
her summer class was canceled, and she was not invited to teach at SCU after her
8
appointment expired on June 15, 2018. Thus, the alleged adverse employment actions
retaliating against Doe’s protect activities all occurred by June 15, 2018, and therefore
her Labor Code claims accrued by that point.
Doe does allege some conduct after June 2018. For example, she alleges that in
December 2018 she contacted an SCU official to inquire about the investigation into the
workplace safety concerns she had raised and that she filed an online report about the
May 2018 sexual assault and battery. In addition, Doe alleges that in February 2019 an
SCU official informed her that the university would not conduct an investigation into the
reported assault. However, no retaliation claim arose at these points because, as noted
above, retaliation claims are based on “adverse employment action[s]” (Hansen, supra,
171 Cal.App.4th at p. 1546), and therefore “a prerequisite” to a Labor Code retaliation
claim is “the existence of an employer-employee relationship at the time the allegedly
retaliatory action occurred.” (Soukup v. Law Office of Herbert Hafif (2006) 39 Cal.4th
260, 288 (Soukup).) Doe’s employment relationship with SCU ended on June 15, 2018
when her last appointment expired. Consequently, SCU could not have taken any
adverse employment actions, and no retaliation claim accrued, after that point. (Soukup,
supra, 39 Cal.4th at p. 288; Hansen, supra, 171 Cal.App.4th at p. 1546.)
We therefore conclude that Doe’s Labor Code claims accrued, and the statute of
limitations upon those claims began to run, by June 15, 2018, that the three-year statute
of limitations under Code of Civil Procedure section 338 expired on June 15, 2021, and
therefore the complaint filed by Doe on April 16, 2022 was 10 months late.
2. The Continuing Violation Doctrine
Doe argues that her Labor Code claims were timely because the continuing
violation doctrine delayed their accrual. We disagree for two reasons.
First, the continuing violation doctrine does not apply to Doe’s Labor Code claims
to the extent the claims are based on discrete actions. “The continuing violation doctrine
aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating
9
the limitations period as accruing for all of them upon commission or sufferance of the
last of them.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192
(Aryeh).) It applies to claims for matters such as harassment or failure to accommodate a
disability based on a course of conduct where it may be unclear exactly when the conduct
rose to the level of a violation, and where the employee may have some hope of informal
resolution (which immediate accrual might hinder). (Richards v. CH2M Hill, Inc. (2001)
26 Cal.4th 798, 820-822 (Richards).) The doctrine does not apply to discrete,
independently actionable wrongs. (Aryeh, supra, 55 Cal.4th at p. 1198; see also National
Railroad Passenger Corp. v. Morgan (2002) 536 U.S. 101, 113 [“[D]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges.”].) As a consequence, the continuing violation doctrine
does not apply to Doe’s allegations that SCU eliminated her film festival funding,
canceled her summer 2018 course, or failed to invite her to teach after her last
appointment expired in June 2018.
Second, while Doe makes other allegations involving a course of conduct rather
than discrete acts, the requirements for applying the doctrine to those actions are not
satisfied here. To invoke the continuing violation doctrine, a plaintiff must satisfy three
requirements: (1) There was unlawful employer action within the limitations period
similar in kind to the unlawful employer conduct outside the period; (2) the misconduct
was reasonably frequent; and (3) the misconduct had not acquired a degree of
permanence. (Richards, supra, 26 Cal.4th at p. 823; see also Birschtein v. New United
Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1004-1005 [applying Richards
test to sexual harassment and retaliation context].) Doe’s Labor Code claims fail the first
requirement. Doe contends that SCU retaliated against her by creating an intolerable
work environment in which she was marginalized and ostracized. While an unlawful
hostile environment may constitute a continuing violation, Doe does not allege that she
was marginalized or ostracized during the limitations period in a manner similar to the
10
alleged actions of her department chair in the spring of 2018. As a consequence, there
was no unlawful conduct similar in kind within the limitations period. Indeed, no
retaliatory course of conduct could have continued beyond June 15, 2018, when Doe’s
appointment at SCU terminated, because an adverse employment action and the existence
of an employer-employee relationship are prerequisites to any retaliation claim. (Soukup,
supra, 39 Cal.4th at p. 288.)
3. Equitable Tolling
Doe also argues that her Labor Code claims were timely because the equitable
tolling doctrine suspended, or “tolled,” the running of the statute of limitations. This
argument is also unpersuasive.
The equitable tolling doctrine is “ ‘designed to prevent unjust and technical
forfeitures of the right to a trial on the merits when the purpose of the statute of
limitations—timely notice to the defendant of the plaintiff’s claims—has been
satisfied.’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th
88, 99 (McDonald).) It applies “ ‘ “[w]hen an injured person has several legal remedies
and, reasonably and in good faith, pursues one” ’ ” because in that situation the
defendant’s interest in receiving notice of the claims against it is “satisfied by the filing
of the first proceeding that gives rise to tolling.” (Id. at p. 100.)
Doe asserts that she “put Defendant Santa Clara University on notice in
June 14, 2018 . . . when she made a simultaneous internal complaint seeking
administrative remedy regarding workplace safety and a May 2018 sexual assault/battery
on campus” and again in December 2018 when she filed a complaint concerning sexual
assault. The allegations actually in the first amended complaint are more modest. It
alleges only that on June 14, 2018 Doe “request[ed] assistance with conducting an
inquiry,” which appears to have been “regarding workplace environment/safety matters,”
and that in December 2018 she filed a “report online,” not a complaint, concerning sexual
11
assault. As a consequence, it is not clear that Doe sought a legal remedy from SCU in
either June 2018 or December 2018.
Even more important, there is no allegation that Doe submitted a retaliation claim,
much less provided notice of the Labor Code claims in her first amended complaint.
Nothing in the allegations concerning either the June 2018 request for assistance or the
December 2018 report suggests that SCU took any adverse employment action against
Doe in retaliation for engaging in protected activity. Indeed, the allegations concerning
the June 2018 request or the December 2018 do not mention protected activities, adverse
employment actions, or retaliation. As a consequence, the allegations fail to provide any
notice of Doe’s claims for retaliation under the Labor Code and therefore do not
equitably toll those claims.
4. Emergency Rule 9
Doe also argues that Emergency Rule 9 tolled the statute of limitations. This
argument does not help Doe because tolling under the rule would not save Doe’s Labor
Code claims. In response to the COVID-19 pandemic, the Judicial Council adopted
Emergency Rule 9, which tolled statutes of limitations exceeding 180 days “from
April 6, 2020, until October 1, 2020,” that is, for approximately six months. (See People
v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 39; Cal. Rules of Court,
App. 1, emergency rule 9(a) (amended effective May 29, 2020).) As shown above, Doe’s
Labor Code claims were asserted ten months late. Consequently, even with tolling under
Emergency Rule 9, the statute of limitations bars Doe’s Labor Code claims.
B. FEHA Claims
In her amended complaint Doe asserted seven FEHA claims.5 The trial court
dismissed these claims for failure to exhaust administrative remedies because Doe did not
5
Four claims in the amended complaint were brought under both FEHA and Title
VII of the Civil Rights Act. However, in her opening brief, Doe made no mention of
Title VII, much less asserted any substantive difference between Title VII and FEHA. As
12
timely file them with the Department. We agree that most of Doe’s FEHA claims are
barred for failure to present a timely administrative complaint to the Department and
conclude that, to the extent that they are not, Doe has failed to state a valid claim.
1. FEHA’s Exhaustion and Timeliness Requirements
Plaintiffs claiming FEHA violations must exhaust their administrative remedies by
filing a complaint with the Department and obtaining a notice of right to sue. (Rojo v.
Kliger (1990) 52 Cal.3d 65, 83; Acuna v. San Diego Gas & Electric Co. (2013) 217
Cal.App.4th 1402, 1412-1413.) Failure to exhaust administrative remedies is a
jurisdictional rather than a procedural defect (see, e.g., Martin v. Lockheed Missiles &
Space Co., Inc. (1994) 29 Cal.App.4th 1718, 1724), and timely filing of an administrative
complaint is a prerequisite for exhausting administrative remedies. (Romano v. Rockwell
Internat., Inc. (1996) 14 Cal.4th 479, 492.) Consequently, if a plaintiff fails to file a
timely administrative complaint raising a FEHA claim, any civil action based on that
claim must be dismissed. (Wassmann v. South Orange County Community College
District (2018) 24 Cal.App.5th 825, 850 (Wassmann).) Where an administrative
complaint is untimely on its face, the party asserting the claim bears the burden of
showing that some tolling rule or other exception makes it timely. (Holland v. Union
Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945.)
Before January 1, 2020, FEHA provided that administrative complaints with the
Department shall not be filed “after the expiration of one year from the date upon which
the alleged unlawful practice or refusal to cooperate occurred.” (Gov. Code, § 12960,
former subd. (d).) Effective January 1, 2020, the Legislature amended FEHA to enlarge
the period for filing administrative complaints to three years. (Gov. Code, § 12960,
a consequence, SCU had no opportunity to respond to any argument concerning Title VII
in particular, and Doe has forfeited any argument that Title VII requires different
treatment than FEHA. (See, e.g., Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 554-555 (Golden Door).)
13
subd. (e); 2019 Stats., ch. 709, § 1; Pollock, supra, 11 Cal.5th at p. 931.) However, this
amendment applies only to claims that had not lapsed by January 1, 2020. (Gov. Code,
§ 12960, subd. (f)(3); see also 2019 Stats., ch. 79, § 3 [“This act shall not be interpreted
to revive lapsed claims.”].)
2. The Discrimination Claims
Doe asserts claims for race, sex, and gender discrimination. Doe filed an
administrative complaint with the Department raising such claims on October 8, 2021.
By that time, the deadline for filing had long passed, and the claims had lapsed.
Doe alleges that SCU failed to provide her the environment free from
discrimination provided to men and those who do not share her race by denying her fair
and accurate evaluations, a work environment free of intimidation and harassment, and
the same opportunities as similarly situated men and others similarly situated. It is not
clear exactly what events these allegations reference. However, as FEHA prohibits
discrimination in selection, hiring, the terms, conditions, or privileges of employment,
and discharge (Gov. Code, § 12940, subd. (a)(1)), this discrimination must have taken
place before her employment terminated. (Aviles-Rodriguez, supra, 14 Cal.App.5th at
pp. 987-991; McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th
947, 977.) As a consequence, Doe’s discrimination claims accrued no later than
June 15, 2018, when her appointment expired. Therefore, under the then-applicable one-
year period, she had to file those claims with the Department no later than June 2019—
more than two years before her October 2021 administrative complaint. (Pollock, supra,
11 Cal.5th at p. 931.)
Here again, Doe invokes the continuing violation doctrine, equitable tolling, and
Emergency Rule 9. None of these apply. The continuing violation doctrine does not
apply because, even assuming that Doe’s discrimination claims are based upon a course
of conduct rather than discrete, independently actionable claims, there was no adverse
employment action after the expiration of her appointment in June 2018. As that is well
14
outside the limitations period, the first requirement for applying the continuing violation
doctrine—similar misconduct within the limitations period—is absent. (Richards, supra,
26 Cal.4th at p. 823.) Doe alleges that in July 2019 and August 2020 she discovered
“additional technology of the same type” as previously found. However, there is no
allegation that the technology is connected to any adverse employment action covered by
FEHA. As a consequence, the alleged July 2019 and August 2020 discoveries do not
show the “unlawful employer conduct” needed to trigger the continuing violation
doctrine. (Richards, supra, 26 Cal.4th at p. 823.)
The equitable tolling doctrine does not apply either. Neither Doe’s June 2018
request for assistance nor her December 2018 report asserted any unlawful
discrimination. The June 2018 request concerned “workplace environment/safety
matters,” which failed to provide notice of any race, sex, or gender discrimination by
SCU. (McDonald, supra, 45 Cal.4th at p. 99.) Similarly, the December 2018 report
concerned “sexual assault and sexual battery” by unspecified persons and therefore
likewise failed to provide notice of any discrimination by SCU.
Finally, Emergency Rule 9 does not help Doe because the time for filing an
administrative complaint concerning her discrimination claims expired in June 2019, long
before April 2020, when the rule began tolling statutes of limitations.
3. The Harassment and Hostile Work Environment Claims
In addition to asserting claims for race, sex, and gender discrimination, Doe
asserts claims for harassment and hostile work environment. Her October 2021
administrative complaint was also untimely as to these claims. Doe’s harassment and
hostile work environment claims appear to be based on the marginalization and ostracism
that Doe allegedly suffered in the winter and spring of 2018. Moreover, any harassment
or hostile work environment suffered by Doe necessarily ended when her employment
terminated in June 2018. (Richards, supra, 26 Cal.4th at p. 823 [statute of limitations for
harassment claims begins to run “when the course of conduct is brought to an end, as
15
by . . . the employee’s resignation”].) Consequently, Doe’s harassment and hostile work
environment claims accrued no later than June 2018, and the deadline for filing those
claims expired in June 2019. (Pollock, supra, 11 Cal.5th at p. 931.) Doe’s October 2021
administrative complaint asserting harassment was therefore untimely. (Wassmann,
supra, 24 Cal.App.5th at p. 850.)
Nor are these claims saved by the continuing violation doctrine, the equitable
tolling doctrine, or Emergency Rule 9. Although the continuing violation doctrine
applies to harassment and hostile work environment claims, it does not help Doe because,
as just noted, any harassment or hostile work environment necessarily ended by
June 15, 2018 and therefore Doe cannot show the unlawful employer conduct within the
limitations period needed to trigger the doctrine. (Richards, supra, 26 Cal.4th at p. 823.)
The equitable tolling doctrine does not apply either. Doe’s June 2018 inquiry concerned
“workplace environment/safety matters” and her December 2018 report concerned sexual
assault rather than harassment and hostile work environment claims and therefore failed
to provide any notice of those claims. (McDonald, supra, 45 Cal.4th at p. 99.) Finally,
Emergency Rule 9 does not apply because the time for filing an administrative complaint
concerning her harassment and hostile work environment claims expired in June 2019,
before the rule began tolling the statute of limitations.
4. The Retaliation Claim
Doe also asserts a FEHA retaliation claim that, much like her Labor Code claims,
alleges SCU “subjected [her] to adverse employment action and other adverse treatment”
in retaliation for her complaints about workplace safety, harassment, discrimination, and
other (unspecified) wrongful conduct. Doe’s retaliation claim was untimely as well.
To establish retaliation under FEHA, a plaintiff must show, among other things,
that “the employer subjected the employee to an adverse employment action.” (Yanowitz
v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) In some unusual circumstances,
such as where an employer provides a negative job reference, a retaliation claim may
16
arise out of conduct after termination of employment. (See, e.g., Robinson v. Shell Oil
Co. (1997) 519 U.S. 337, 345-346; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56
Cal.App.4th 138, 162.) Doe has not alleged any negative job reference or other adverse
employment action after her termination. As a consequence, any adverse employment
action taken by SCU in retaliation for protected conduct occurred when Doe was
employed by SCU and thus before her employment terminated on June 15, 2018.
(Soukup, supra, 39 Cal.4th at p. 288.) Consequently, Doe’s FEHA retaliation claim
accrued, and the statute of limitations began to run, no later than June 15, 2018, which
means that once again the deadline for filing an administrative complaint raising her
claims expired in June 2019 (Pollock, supra, 11 Cal.5th at p. 931), and her October 2021
administrative complaint was untimely.
In addition, the continuing violation doctrine, the equitable tolling doctrine, and
Emergency Rule 9 do not apply to Doe’s retaliation claim for the same reasons that they
do not apply to her discrimination, harassment, or hostile work environment claims.
5. Failure to Prevent
Doe also brings a claim under FEHA for the failure to prevent, investigate, and
remedy discrimination, harassment, retaliation and “other wrongful conduct.” Unlike
Doe’s other FEHA claims, this claim may not be entirely time-barred. Nevertheless, the
failure-to-prevent claim fails because Doe has not stated a valid claim based on conduct
after her termination.
To the extent that Doe’s failure-to-prevent claim is based on SCU’s failure to
prevent discrimination, harassment, or retaliation that occurred before Doe’s termination,
her administrative complaint was untimely because the claim arose no later than
June 2018, the deadline for filing an administrative complaint was June 2019, and her
2021 complaint was not filed until well past that deadline.
However, to the extent that Doe contends that SCU failed to investigate and
remedy wrongful conduct after January 1, 2019, her claim was timely. Doe alleges that
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SCU declined to proceed with investigation of her December 2018 online report of sexual
battery and assault by February 14, 2019. A claim based on that failure would not have
accrued until February 2019 and, under the then-applicable limitations period, the
deadline for filing an administrative complaint would originally have been
February 2020. However, the amendment enlarging the limitations period to three years
became effective in January 2020, thereby extending the deadline to file an
administrative complaint for her failure-to-prevent claim to February 2022. (Gov. Code,
§ 12960, subd. (f)(2), (3) [applying three-year period retroactively to claims not already
lapsed].) Consequently, to the extent that her failure-to-prevent claim is based on
conduct after January 1, 2019, Doe’s October 2021 administrative complaint was timely
with respect to that claim.
Nonetheless, we affirm the dismissal of the failure-to-prevent claim for another
reason: To the extent that the claim is based on conduct after January 1, 2019, it fails to
state a valid claim. (See Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-
1193 [“[I]t is a settled appellate principle that if a judgment is correct on any theory, the
appellate court will affirm it regardless of the trial court’s reasoning.”].) FEHA does not
impose a duty on employers to prevent all injury to employees or even to prevent all
misconduct against employees. Instead, FEHA requires employers “to take all
reasonable steps necessary to prevent discrimination and harassment from occurring”
(Gov. Code, § 12940, subd. (k)), and it makes harassment of an employee by another
employee unlawful if the employer “knows or should have known of this conduct and
fails to take immediate and appropriate corrective action” (id., § 12940, sub. (j)(1)).
However, the complaint does not allege that the sexual assault and battery suffered by
Doe was the result of workplace discrimination or harassment. In addition, Doe does not
allege that SCU knew or should have known that an employee was sexually assaulting
Doe by placing foreign objects on her body. The complaint alleges only that SCU “knew
or should have known of the conduct,” which is too vague and conclusory to state a valid
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claim. (See, e.g., Wozniak v. YouTube, LLC (2024) 100 Cal.App.5th 893, 925 [“It is well
settled that ‘ “ ‘conclusory allegations will not withstand demurrer.’ ” ’ ”].) As a
consequence, Doe has failed to state a valid claim for failure to prevent under FEHA
based on conduct after January 1, 2019.
We therefore conclude that Doe’s FEHA claims fail either because they are time-
barred or because Doe has not stated a valid claim.
D. Breach of Contract
Doe’s final claim is for breach of her employment contract with SCU. The trial
court ruled that Doe failed to allege breach of any term of her contract with SCU. We
affirm this ruling. Doe has waived any appeal from this ruling by failing to brief this
issue on appeal, and, in any event, the claim fails as a matter of law.
On appeal, Doe makes virtually no argument in support of her contract claim. Her
opening brief contains no discussion of the issue, and the only thing that her reply brief
says about the contract claim is that “[e]mployers have a responsibility to keep their
employees safe in any employment contract, and violations breach the Implied Covenant
to Perform Work in a Good and Competent Manner.” Doe does not support this assertion
with either references to the record or any supporting legal theory or argument. Even
where, as here, we are conducting a de novo review of issues of law, it remains the
appellant’s duty to demonstrate the trial court’s error. (Thomas v. Shewry (2009) 170
Cal.App.4th 1480, 1485.) Accordingly, we conclude that Doe has waived any appeal
from the dismissal of her contract claim. (Golden Door, supra, 50 Cal.App.5th at
pp. 554-555 [issues not adequately raised in appellant’s brief are deemed waived or
abandoned, even on de novo review]; W.S. v. S.T. (2018) 20 Cal.App.5th 132, 153
[argument unsupported by legal analysis and citation waived]; see also Bianco v.
California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126 [litigants proceeding
in propria persona are subject to same rules of procedure as attorneys].)
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Even had Doe not waived the appeal concerning her contract claim, we would
affirm the dismissal of the claim. A written contract is formed “when there is a writing
containing all terms and acceptance by the party to be charged.” (Mitchell v. American
Fair Credit Assn. (2002) 99 Cal.App.4th 1345, 1351; see also Pietrobon v. Libarle (2006)
137 Cal.App.4th 992, 997 [a writing must contain all the terms of the alleged agreement
and that the party to be charged must have accepted those terms].) Moreover, where
breach of a written contract is asserted, the contract generally “must contain the items of
the agreement and the obligations sued upon.” (Bank of America v. Security Pacific Nat.
Bank (1972) 23 Cal.App.3d 638, 645; see also JPMorgan Chase Bank, N.A. v. Ward
(2019) 33 Cal.App.5th 678, 686 [“a claim is founded upon a writing only when it ‘relies
upon the language within a written instrument or contract’ ” (italics omitted)].)
Doe alleges that, under SCU’s contract with her, SCU was “bound to adhere
strictly to respect for persons, honoring Plaintiff’s dignity, autonomy (and individual
rights) and humanity,” and she attaches the contract, her appointment letter, to the
amended complaint. The letter set forth Doe’s appointment (as an Adjunct Lecturer), the
period of the appointment, the courses to be taught and her responsibilities for those
courses, her compensation, and some training requirements. It also stated that Doe’s
appointment was “subject to the applicable terms and conditions set forth in the Faculty
Handbook as amended from time to time, the protocols of the College of Arts and
Sciences, and such special rules and regulations as may be promulgated” and that the
appointment letter “can be altered or extended only by further written agreement signed
by you and the Dean.” (Italics added). However, nothing in the letter imposed on SCU
the duty that Doe asserts to adhere strictly to respect for persons, honoring Doe’s dignity,
autonomy, individual rights, and humanity.
There is a handwritten notation at the end of the letter, but there is no indication
that the Dean or any other SCU official agreed to this notation. Even more important, the
notation does not purport to impose any duty upon SCU. It merely states that “I am
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happy to be a part of SCU, which I understand to be a community of reflection and strict
adherence to respect for persons.” This sentiment appears to have been expressed by
Doe, and while it may reflect Doe’s understanding and expectation, it does not impose
any enforceable duty upon SCU.
Accordingly, we conclude that Doe has failed to state a valid contract claim.
E. Leave to Amend
In addition to arguing that the trial court erred in dismissing her claims, Doe
argues that the trial court abused its discretion in denying her leave to amend. When a
trial court sustains a demurrer without leave to amend, we review the denial of leave for
abuse of discretion and “decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Kirwan, supra, 39
Cal.3d at p. 318.) Moreover, as the Supreme Court repeatedly has stressed, “[t]he burden
of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.; see also
Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“Plaintiff must show in what manner he
can amend his complaint and how that amendment will change the legal effect of his
pleading.”].) Doe has not satisfied this burden.
Doe has not shown a reasonable possibility that any amendments would cure the
substantive defects identified above. For example, Doe does not—and, as far as we can
tell, cannot—argue that any amendment could cure the defects in her contract claim. Nor
does she argue that any amendment would allow her to state a valid claim under the
Labor Code or FEHA based on conduct after her employment at SCU terminated in
June 2018. Finally, she has not argued that she could amend her complaint to allege that
the asserted sexual assault and battery involved any adverse employment action covered
by FEHA.
Instead, Doe asserts that she could amend her complaint to show that her Labor
Code and FEHA claims were equitably tolled and, thus, timely filed. In particular, Doe
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asserts that, if she had been given the opportunity, she would have amended her
complaint to allege that she “provid[ed] the same expert reports and substantial[]
complaints about sexual assault and battery and workplace safety in June of 2018 and
December 2018 internally to SCU” as she later did to the Department and the EEOC.
Such amendments would not save the claims in this case. As we concluded above, Doe’s
complaints about workplace safety and the alleged assault and battery do not involve any
adverse employment actions taken by SCU and thus do not provide notice of any valid
FEHA or the Labor Code claims. Consequently, the amendments proposed by Doe
would not show that any of her complaints provided the notice needed to trigger equitable
tolling of her FEHA and Labor Code claims. We also have examined the
December 8, 2022 hearing on SCU’s demurrer and see nothing there suggesting that an
amendment would cure the defects in Doe’s claims. We therefore conclude that Doe has
not shown a reasonable probability that an amendment would cure the defects in her
complaint.
In reaching this conclusion, we are mindful of the grievous injury Doe has alleged
and her conviction that SCU failed to protect her and to investigate the cause of this
injury, as she believes that it should have. However, the statutes that Doe has invoked
are designed to deal with adverse employment actions, and they are subject to limitations
periods which Doe has not satisfied. We therefore conclude that the trial court properly
sustained SCU’s demurrer and did not abuse its discretion in denying her leave to amend.
III. DISPOSITION
The judgment is affirmed. As SCU has not argued that Doe’s claims were
frivolous when brought or while she continued to litigate them, we conclude that the
parties shall bear their own costs on appeal. (Pollock, supra, 11 Cal.5th at pp. 950-951.)
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____________________________
BROMBERG, J.
WE CONCUR:
____________________________________
GROVER, ACTING P. J.
____________________________________
LIE, J.
Doe v. Santa Clara University
H050798