Alch v. Superior Court (122 Cal. App. 4th 339, 2004)

Opinion

BOLAND, J.

SUMMARY

These appeals and writ petitions involve 23 separate class action lawsuits filed by hundreds of television writers against (a) 12 different groups of related television networks, studios and production companies (collectively, employers or networks and studios), and (b) 11 talent agencies. The writers, who are over the age of 40 and members of the Writers Guild of America (WGA), assert that each of the networks and studios has for many years maintained a systemwide policy or practice of age discrimination. The talent agencies, which represent writers seeking television writing opportunities, are alleged to be well aware of the pattern or practice of age discrimination by the employers, and to engage in a pattern or practice of discrimination of their own by refusing to represent and refer older writers to the networks and studios for writing opportunities, instead referring their younger clients. Some of the writers allege they applied and were rejected for television writing employment by the employers, or for representation by the talent agencies. Many more writers allege they were deterred from seeking television writing employment, or representation by the talent agencies for the purpose of obtaining television writing opportunities, as a result of each employer’s and talent agency’s discriminatory practices.

These lawsuits come to us with a significant history. Many of the same writers (51 of them, or about one-third) first sought relief in federal court, filing a single class action lawsuit against all of the networks, studios and talent agencies. The federal suit resulted in an order dismissing several of the writers’ claims with prejudice, and dismissing other claims without prejudice and with leave to amend. (Wynn v. National Broadcasting Co., Inc. (C.D.Cal. 2002) 234 F.Supp.2d 1067 (Wynn).) After the federal court’s ruling, the writers voluntarily dismissed all remaining causes of action without prejudice. They, along with more than 100 other writers, then filed the 23 lawsuits that are now, after demurrer rulings by the trial court, the subject of two sets of appeals and two successive writ petitions, all of which we are considering concurrently.

We summarize our principal conclusions as follows:

1. Government Code section 12965, subdivision (b), provides that a Fair Employment and Housing Act (FEHA) action may not be filed or maintained as a class action where the persons claiming to be aggrieved “have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination” against the same defendants. We construe this provision to proscribe concurrent, not successive, class actions, and conclude it does not bar the writers who filed and dismissed claims in Wynn from filing a FEHA class action in state court.

2. The claims of “deterred applicants”—writers who did not apply for television writing opportunities or agency representation during the limitations period, allegedly because of a long-standing and long-known policy of discrimination against older writers—are not barred by FEHA’s one-year statute of limitations.

3. The writers have properly alleged classwide claims of a pattern or practice of age discrimination in violation of FEHA, and are not required to plead facts supporting individual prima facie cases of discriminatory refusal to hire as a predicate for their classwide claims.

4. Claims asserted by “deterred applicants” of a classwide pattern or practice of discrimination may not be dismissed at the pleading stage on the ground that statistics alleged in the federal complaint in Wynn—e.g., that writers over 40 comprised one-third or more of the writing staffs of most employers in 1997/1998—were inconsistent with viable deterred applicant claims.

5. The writers did not waive appellate review of their FEHA or Unruh Civil Rights Act class claims by declining to assert individual FEHA claims or refusing to amend their Unruh Civil Rights Act class claims in their second amended complaints.

6. The writers’ first amended complaints sufficiently pled a classwide claim against the talent agencies for aiding and abetting violations of FEHA by the employers.

7. Allegations that the talent agencies systematically refuse to represent older writers seeking television writing opportunities are cognizable under the Unruh Civil Rights Act.

8. Amendments to FEHA effective on January 1, 2003, adding age to the bases of discrimination constituting unlawful employment practices by employment agencies, do not apply retroactively.

9. The trial court erred in ruling that the writers must allege potential competitive harm or likely consumer deception in order to state a claim under the unfair competition law. (Bus. & Prof. Code, § 17200 et seq.)

10. The trial court correctly concluded it has no authority under the unfair competition law to effectuate an injunctive decree through an award of classwide backpay.

FACTUAL AND PROCEDURAL BACKGROUND

These 23 class action lawsuits were filed after the dismissal of a class action age discrimination lawsuit filed by some of the same plaintiffs against all of the same defendants in federal court. (Wynn, supra, 234 F.Supp.2d 1067.) We begin by providing background information on the hiring process for television writers and the writers’ claims in this litigation. Since the details of the Wynn case are pertinent to some of the issues in the appeals and writ petitions before us, we summarize that lawsuit and its results. We then turn to a description of the 23 lawsuits filed in the superior court; the trial court’s January 16, 2003 rulings in those actions; the ensuing “death knell” appeals, writ petitions and motion to dismiss the appeals; the trial court’s August 14, 2003 rulings; and the subsequent writ petition and death knell appeals.

1. Background information.

The hiring process for television writers is similar throughout the television industry, but quite different from the ordinary job application process. Television writing opportunities are not publicly advertised, and resumés or scripts are not accepted from the general public. Instead, networks or studios communicate the availability of television writing opportunities in WGA publications, through talent agents and by word of mouth. A writer generally seeks a television writing opportunity by submitting a script through a talent agency, or by obtaining an interview or “pitch meeting” with a television hiring official through personal connections. In the usual case, the writer procures an agent, who submits a script or information about the writer’s background and writing history to a studio or network hiring official. The hiring official, alone or with others, rejects or hires the applicant for a particular show or project. In some cases, licensing agreements for the show or project also require the approval of the writer by the other party to the licensing agreement.

In this litigation, the writers allege that the networks and studios have a youth-oriented corporate culture that indiscriminately favors youth over age and experience. Desiring to attract younger viewing audiences in order to generate higher advertising revenues, the networks and studios seek out and hire younger writers to the exclusion of older writers. The networks and studios invidiously stereotype older writers as unable to write television programming that will attract the desired demographic audience, or as lacking the vitality necessary to meet the demands of modem television writing. The writers allege the networks and studios have engaged in a pattern and practice of intentional age discrimination for many years, and they cite several public statements by employees and agents of various studios and networks as evidence of the employers’ desire to hire younger writers to the exclusion of older writers. The talent agencies, the writers assert, are well aware of the employers’ pattern and practice of age discrimination, and have a financial incentive to discriminate themselves by refusing to represent and refer older writers to the employers, since the success of the talent agencies depends on referring writers who are most acceptable to the employers. The writers cite various comments by agents to writers as evidence of each agency’s pattern or practice of age discrimination.

2. Wynn v. National Broadcasting Co., Inc.

In October 2000, 51 writers filed a single class action lawsuit in federal court against all of the networks, studios and talent agencies which are parties to this appeal and writ petition. The action was brought under the Age Discrimination in Employment Act (29 U.S.C. § 621 et seq. (ADEA)), FEHA, and New York State’s Human Rights Law, and alleged an industry-wide pattern or practice of age discrimination. The complaint cited conclusions and statistics from a WGA study of the 1997/1998 television season. The 40 network and studio defendants and the 11 talent agency defendants filed motions to dismiss and, in the alternative, to sever both plaintiffs and defendants as improperly joined. In a lengthy opinion, on January 24, 2002, Judge Stephen V. Wilson granted the motions to dismiss in part, and granted the motions to sever. (Wynn, supra, 234 F.Supp.2d 1067.) As pertinent here, the court:

1. Dismissed with prejudice:

i. the writers’ claims against the talent agencies under the ADEA and the FEHA;

ii. all claims alleging joint and several liability for industrywide discrimination;

iii. claims of aiding and abetting under the ADEA; and

iv. conspiracy claims against the employers under FEHA.

2. Dismissed without prejudice and with leave to amend:

i. ADEA and FEHA claims against the employers;

ii. all deterred applicant claims, to the extent the writers could plead how a particular writer was deterred from applying to a particular employer by that employer’s actions; and

iii. aiding and abetting claims under FEHA.

3. Found that plaintiffs should not be certified as a class under the ADEA, and also granted defendants’ motions to sever, ruling that all claims of discrimination under the ADEA and FEHA alleging companywide discrimination must be brought against each employer or related group of employers separately.

3. These lawsuits.

The federal court’s order was filed January 24, 2002. On February 25, 2002, the writers filed the 23 class action suits now before this court. As in the federal case, the 23 complaints allege a pattern and practice of discrimination; none pleads the elements necessary to state a prima facie case of discrimination against an individual.

The allegations in each of the 23 lawsuits are generally described in part 1, ante. The complaints further allege that the employers have for many years employed, and the talent agencies have contracted to represent, “statistically significant lower numbers of older writers than would be expected absent age discrimination given the relevant qualified applicant pool.” These disparities increase with age. The writers assert, for example, that two out of every three nighttime television series did not employ a single writer over the age of 50, and that writers over 50 held 5 percent of the writing positions on episodic comedy series while approximately 33 percent of the WGA membership during the same period was over 50. The complaints allege that top management at the talent agencies have explicitly and implicitly instructed individual agents to seek out, represent and refer younger writers to the exclusion of older writers, and agents have refused to submit older writer clients for television writing opportunities with the networks and studios. The employers, the writers claim, have adopted several employment practices that are facially neutral, but have a disparate impact on older writers: the refusal to accept script submissions except through agents; the use of word of mouth and nepotistic hiring practices including the preselection of younger writers; and the failure to use defined criteria in order to uniformly evaluate the ability of each applicant to write for a particular show or project.

The writers allege that the anecdotal stories and personal experiences described in the complaints have been widely communicated to and among older writers, so that talent agencies and employers alike have developed a well-deserved reputation among older writers for engaging in a pattern or practice of age discrimination. Older writers have been deterred from seeking television writing opportunities from the employers, and representation from the talent agencies for the purpose of obtaining those opportunities, as a result of each employer’s and each agency’s discriminatory business policies or practices. A few of the writers also generally allege they applied for television writing opportunities and were rejected by the employers, or sought and were refused representation by the talent agencies, but no information is given identifying the position sought, the employer or any other particulars.

The class action allegations of each complaint against the employers define the class as all members of the WGA who were at least 40 years of age and either applied and were rejected, or were deterred from applying, for television writing opportunities with that employer. The complaints state that one or more separate classes, including age-specific subclasses, may be appropriate. The class action allegations of the writers’ complaints against the talent agencies are similar.

Based on these allegations, the writers assert causes of action against the employers for violations of FEHA and the Unruh Civil Rights Act. In addition, they allege each employer has aided and abetted the unlawful practices of the talent agencies in violation of the Unruh Civil Rights Act, and the network employers have aided and abetted the unlawful practices of each of the studio employers in violation of FEHA and the Unruh Civil Rights Act. As to the talent agencies, the writers assert causes of action for (a) violation of the Unruh Civil Rights Act, and (b) aiding and abetting the employers’ age discrimination in violation of FEHA and the Unruh Civil Rights Act.

4. Demurrers and trial court’s January 16, 2003 order.

Each of the employers and talent agencies demurred to the complaints. After a lengthy hearing, the trial court issued a statement of decision and order, ruling as follows:

1. The writers could not state a FEHA class action, because Government Code section 12965, subdivision (b) prohibits a state class action under FEHA if the persons claiming to be aggrieved “have filed” a comparable class action in the federal courts. The demurrers to the class claims were sustained without leave to amend, but without prejudice to the writers’ right to plead individual FEHA claims.

2. The FEHA one-year statute of limitations barred the claims of “deterred applicants,” that is, claims by writers who did not apply for positions because they were allegedly deterred from applying by the employers’ long-standing and continuing discriminatory practices. The court applied principles stated in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 [111 Cal.Rptr.2d 87, 29 P.3d 175], and concluded the statute of limitations began to run when applying for employment first became “a futile, vain gesture.” That point appeared, on the face of the complaints, to have occurred more than one year before the complaints were filed. The demurrers to the deterred applicant FEHA claims were sustained, but “with leave specifically to plead individual claims not barred by the applicable statute of limitations.”

3. In their federal complaint, the writers alleged statistics “substantially inconsistent with viable deterred applicant claims.” As an example, the federal complaint alleged that in the 1997/1998 broadcast season, writers over 40 comprised one-third or more of the writing staffs of most employers. This allegation contradicts the claims of deterred applicants, who generally allege that application would have been a futile gesture. As a result, the demurrers to the deterred applicant FEHA claims were sustained, but “with leave to plead individual claims with facts showing a legal basis for overcoming the federal pleading contradictions sufficient to satisfy” the deterred applicant futility requirements stated in Teamsters v. United States (1977) 431 U.S. 324, 366-367 [52 L.Ed.2d 396, 97 S.Ct. 1843] and Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031 [128 Cal.Rptr.2d 660],

4. To state a prima facie age discrimination claim under FEHA, writers who allege they were actual applicants must specifically aver the identity of the employer, position applied for, and age classification involved in order to provide employers with sufficient notice to permit adequate responsive pleadings. Because the actual applicants did not do so, the employers’ demurrers to actual applicant FEHA claims were sustained, with leave to amend.

5. The Unruh Civil Rights Act, which prohibits discrimination by business establishments, does not reach employment discrimination claims, and the complaints “do not allege sales transactions of the sort that qualify for Unruh [Civil Rights] Act treatment.” Demurrers to Unruh Civil Rights Act claims were sustained, with leave to amend to allege business transactions of the kind governed by the Unruh Civil Rights Act.

6. Rulings on the aiding and abetting claims followed those on the underlying substantive violations: demurrers were sustained without leave to amend as to class claims relying on predicate FEHA claims, and with leave to amend for claims relying on predicate Unruh Civil Rights Act violations and individual claims relying on predicate FEHA claims. For the last category, the writers must plead the basic elements of viable aiding and abetting claims, alleging at a minimum the identity of the aider and abettor, knowledge that the primary violator’s conduct constituted a breach of duty, and the manner in which the named employer or agency assisted in or encouraged the predicate violation.

7. Writers cannot sue the talent agencies directly for FEHA violations because FEHA did not create direct liability for employment agencies until the passage of amendments effective January 1, 2003. Those amendments constituted a change in the law and do not have retroactive effect.

8. Demurrers on class certification grounds were overruled, and requests for severance were denied, in each case without prejudice; the court indicated its preference to address those issues in the context of amended pleadings. The 23 lawsuits were deemed related, without prejudice to the formulation of a different view in future, and questions relating to consolidation, coordination and joinder were ruled premature.

9. The writers were granted leave to amend their complaints to plead violations of the unfair competition law. (Bus. & Prof. Code, § 17200 et seq.)

5. Proceedings after the January 16, 2003 rulings.

The trial court’s order, filed January 16, 2003, precipitated several actions by the writers. First, they filed second amended complaints, both in the 11 lawsuits against the talent agencies and in the 12 suits against the networks and studios. In the talent agency cases, the writers did not attempt to amend their class claims under the Unruh Civil Rights Act or to assert individual FEHA claims, instead alleging only representative claims (not class claims) under the unfair competition law (UCL). In the employer cases, the writers alleged only claims under the UCL, including a class action claim. Second, they filed notices of appeal from the trial court’s order in the 11 talent agency lawsuits under the “death knell” doctrine, which permits direct appeal of an order that is tantamount to the death knell of a class action. Third, the writers in the 12 lawsuits against the employers filed a petition for writ of mandate, citing three errors of law they assert require immediate correction: the dismissal of the class claims under FEHA based on the earlier filing of the federal class action; the ruling that deterred applicants’ claims were time-barred; and the ruling that individual claims of both actual and deterred applicants must be pled with particularity.

The talent agencies then filed a motion to dismiss the “death knell” appeals, along with a request for judicial notice of several documents, including the second amended complaints filed by the writers on February 28, 2003, and the writers’ writ petition in the lawsuits against the employers. We deferred consideration of the talent agencies’ motion to dismiss the appeal. With respect to the writ petition, we issued an order to show cause, and advised the parties the writ petition would be heard in conjunction with the appeals in the lawsuits against the talent agencies.

6. Trial court’s August 14, 2003 order and subsequent proceedings.

Meanwhile, in the trial court, the employers and agencies demurred to the second amended complaints. The employers also filed a motion to stay all proceedings in the trial court pending a decision in the Court of Appeal. On August 14, 2003, the trial court issued a statement of decision with the following principal rulings:

1. Employers’ demurrers to the writers’ UCL class claims were sustained without leave to amend. The court ruled the writers were not entitled to restitution or disgorgement, or to ancillary monetary relief in conjunction with their request for injunctive relief, under the UCL. Only injunctive relief was available, and that could be obtained through representative actions.

2. Employers’ demurrers to the writers’ UCL representative claims were sustained, but the writers were given leave to amend “to include general allegations showing potential competitive harm or likely consumer deception.”

3. Talent agencies’ demurrers to the writers’ UCL representative actions were sustained, but the writers were given leave to amend “to include allegations generally explaining how Agency Defendant’s aided and abetted Employer Defendants’ potential competitive harm or likely consumer deception.”

The court also granted the employers’ motion to stay all matters in their entirety, pending a decision by the Court of Appeal.

After the trial court’s August 14, 2003 order, the writers undertook two actions. First, in the 12 lawsuits against the employers, the writers appealed the August 14 order insofar as it finally disposed of all class claims under the UCL (another set of death knell appeals). Second, the writers in one of the 11 lawsuits against the talent agencies (the suit against William Morris Agency) filed a petition for writ of mandate. The petition asks the court to consider whether the trial court erred in holding that a plaintiff is required to allege “potential competitive harm or likely consumer deception” in order to state a claim for relief under the UCL.

This court granted the writers’ motion to consolidate the death knell appeals in the 12 employer lawsuits with the earlier writ petitions in those lawsuits, for purposes of briefing, argument and decision. With respect to the writ petition, we issued an order to show cause, and advised the parties that the petition would be considered with the pending appeals and writs.

DISCUSSION

I. The order sustaining the talent agencies’ demurrers to the writers’ class claims under FEHA (without leave to amend) and the Unruh Civil Rights Act (with leave to amend) is appealable under the death knell doctrine.

An order sustaining a demurrer with or without leave to amend is ordinarily not appealable, since the order is not a final judgment. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 [63 Cal.Rptr. 724, 433 P.2d 732], An exception to this rule applies in a class action if the legal effect of the order is “tantamount to a dismissal of the action as to all members of the class other than plaintiff,” and if the order “has virtually demolished the action as a class action.” (Ibid.) California allows direct appeal of such a “death-knell” order as a matter of state law policy. Indeed, some cases state that a plaintiff who fails to appeal a death knell order “loses forever the right to attack it.” (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 811 [1 Cal.Rptr.2d 130].)

The talent agencies urge dismissal of these appeals, pointing out that the trial court’s January 16, 2003 order itself did not entirely dispose of all class-based claims; rather, the order allowed the writers to replead their Unruh Civil Rights Act claims, and to amend their complaints to plead UCL violations. The writers chose not to replead the Unruh Civil Rights Act claims, and likewise chose not to try to plead class claims under the UCL, instead amending their complaints to state only representative claims under the UCL. Because the writers elected not to assert any class claims in their amended complaints, the talent agencies contend it was not the trial court’s order that extinguished their class claims; instead it was the writers’ own choice that “rang the ‘death knell’ for their class claims.” They argue the writers cannot “kill” their own class claims in order to give this court jurisdiction to hear a death knell appeal.

We are persuaded these are proper death knell appeals. The cases illustrate two aspects of a single point. An appeal may be taken if the order in question “has virtually demolished” the action as a class action. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 699.) On the other hand, no appeal lies if, after the trial court’s order, a viable class claim remains pending in the trial court. That was the case in Vasquez v. Superior Court (1971) 4 Cal.3d 800 [94 Cal.Rptr. 796, 484 P.2d 964] (Vasquez), upon which the talent agencies rely. Vasquez concluded that an order sustaining demurrers to the class action allegations of one cause of action, but overruling demurrers to a second class-based cause of action, was not appealable. (Id. at p. 807 & fn. 4.)

Vasquez, however, does not settle the point. In Vasquez, the second cause of action in the plaintiffs’ complaint remained fully viable after the trial court’s order; the demurrers to the plaintiffs’ class claim in that cause of action were overruled, not sustained. In this case, by contrast, the trial court’s order sustained the demurrers, albeit with leave to amend in one case, and left no class claim pending as originally pled. As Daar stated, the order “determine[d] the legal insufficiency of the complaint as a class suit. . . .” (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 699), at least as originally pled. Thus, the legal effect of the trial court’s order was that no class claims remained, absent some further action by the writers, who chose not to attempt to plead sales transactions under the Unruh Civil Rights Act or class claims under the UCL. In short, the trial court’s order disposed of all the class claims plaintiffs wanted to bring, allowing them only to try to plead different class claims which, as it happens, they did not want to bring.

It is plaintiffs, not defendants, who determine the claims to pursue; no principle of law requires plaintiffs to attempt to replead claims or to assert additional class claims that might or might not be available. We see no legitimate basis for depriving the writers of a death knell appeal in circumstances where all the class claims they choose to assert have been eliminated by the trial court’s order. Nothing in Vasquez or the other cases requires us to consider the trial court’s order in a vacuum; the writers’ repleading “election” is a direct result of the trial court’s order. In this case, the trial court’s order was plainly “tantamount to a dismissal” of and “virtually demolished” every class claim that the writers sought to bring.

The talent agencies insist that a death knell appeal may not be “manufacture[d],” and must be struck by the trial court’s order, not by plaintiffs’ election. The agencies warn that if a death knell appeal is allowed in these circumstances, “litigants could easily circumvent the ‘one final judgment’ rule and the ‘death knell’ doctrine by simply re-pleading at any time during the litigation.” The agencies do not explain what they mean by this, and we can discern no substance to the argument. Under any circumstances, a plaintiff will have one, and only one, opportunity to appeal an order that has the legal effect of disposing of all class claims. (See Stephen v. Enterprise Rent-A-Car, supra, 235 Cal.App.3d at p. 811.) We fail to see any possibility of circumventing the death knell rule.

The motion to dismiss the appeals is denied. We turn next to the issues common to both the appeals in the talent agency cases and the writ petitions in the lawsuits against the employers.

II. Government Code section 12965, subdivision (b), does not bar the writers who were plaintiffs in Wynn from filing a FEHA class action in state court.

Government Code section 12965, subdivision (b) (hereafter section 12965(b)) prohibits a state class action under FEHA if the persons claiming to be aggrieved “have filed” a comparable class action in the federal courts. The writers contend, in their appeals in the talent agency suits and in their writ petition in the employer lawsuits, that this provision does not bar their FEHA class action. The only reading of section 12965(b) that is consistent with the remedial purposes of FEHA, they assert, and that does not produce absurd results, is that the provision bars a state class action only when a comparable federal claim is pending. We agree.

Section 12965(b) governs FEHA actions, and states in pertinent part: “Those actions [civil actions under FEHA] may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants.”

Section 12965(b) has not been previously construed, and the parties point to no assistance in its legislative history to guide us. To the extent there is ambiguity, we must follow the statutory mandate to interpret the provision liberally for the accomplishment of FEHA’s purposes (Gov. Code, § 12993, subd. (a)), and adhere to established principles of statutory construction, including the avoidance of absurd results. In summary, our conclusion is that the provision is ambiguous, and the Legislature intended to forbid the filing or maintaining of a FEHA class action in state court if a comparable action has been filed and is pending in federal court—that is, duplicative parallel litigation. Obviously, to the extent federal class claims have been adjudicated, principles of res judicata and collateral estoppel will preclude further litigation in state courts. However, we perceive no reason the Legislature would wish to forbid a FEHA class action on issues never adjudicated in federal court. We turn to a point-by-point analysis.

A. The statutory language is ambiguous.

Both the employers and the talent agencies contend the statute is clear: it bars a state FEHA class action where the persons claiming to be aggrieved “have filed” a class action in the federal courts alleging a comparable claim of employment discrimination against the same defendants. The trial court found this “plain language” contrary to the writers’ claim that the statute forbids only concurrent class actions; the court indicated that “have filed” is the “past tense” and that the statute plainly intends to impose a bar on successive class actions.

We do not agree that “have filed” is the past tense or that the language is unambiguous. In fact, “have filed” is the present perfect tense, a tense which indicates either that an action was completed at some point in the past (arguably supporting the trial court’s construction) or that the action began in the past and continues up to and including the present. The latter alternative comports with the view that class claims in state court are prohibited only where a federal class action is ongoing. Accordingly, we are unwilling to conclude, without more, that the Legislature’s use of the words “have filed” necessarily means that any past filing of a federal class action, regardless of its procedural or substantive status or consequences, bars any subsequent FEHA class action in state court. We therefore turn to the question of legislative purpose and intent to find the proper construction of the provision.

B. Policies underlying FEHA, as well as the principle that statutes should be interpreted to avoid absurd consequences, support the conclusion that section 12965(b) bars only concurrent federal and state class actions.

The employers state that the statute prohibits successive class suits, because class actions are expensive to litigate and consume substantial judicial resources, and the statute was designed to prevent forum shopping. They cite, however, no legislative history supporting these statements.

Certainly class actions consume substantial judicial resources, and the prevention of forum shopping is a worthy objective. The fact of the matter is, however, that there is no indication of the Legislature’s intention when it forbade the filing of FEHA class claims in circumstances where plaintiffs “have filed” comparable class claims in federal courts. We have no reason to suppose the Legislature intended anything more than to conserve judicial resources by prohibiting FEHA class claims where, for example, plaintiffs are already pursuing comparable Title VII class claims under the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) in federal court.

Since we do not know, from any documentary evidence, the legislative intent in enacting the class action provision of section 12965(b), we turn to what we do know. We know that the Legislature mandated that every provision of FEHA be constmed liberally for the accomplishment of FEHA’s purposes. (Gov. Code, § 12993, subd. (a).) We know that the elimination of age and other invidious bases for discrimination in employment is the public policy of this state. (Id., § 12920.) We know that it is the purpose of FEHA “to provide effective remedies that will eliminate . . .” discriminatory practices. (Ibid.)

In light of these clear legislative mandates, we will not adopt a more restrictive reading of section 12965(b) than its words require. The employers have offered no persuasive reason to conclude the Legislature meant to forbid successive, rather than concurrent, class actions. Moreover, reading the statute as the employers suggest, to mean that a class action filing in federal court by any member of the plaintiff class bars any subsequent class claim in state court, under any circumstances, would have consequences that cannot have been intended. (See In re J.W. (2002) 29 Cal.4th 200, 210 [126 Cal.Rptr.2d 897, 57 P.3d 363] [courts will not give statutory language a literal meaning if doing so would result in absurd consequences that the Legislature could not have intended].) As amici curiae point out, any number of procedural errors in a federal court filing could prompt the dismissal of the federal action, long before class certification questions or the merits of the litigation are ever reached. If such a filing bars a subsequent class suit in state court, meritorious class claims could go unheard. We cannot conclude that the Legislature, whose stated objective was to provide effective remedies for the elimination of discriminatory practices (Gov. Code, § 12920), could have intended such a result.

We are cognizant of the fact that our interpretation of section 12965(b) effectively requires some duplication of judicial effort where successive class suits are filed. However, it does not, as the employers argue, give the writers, or anyone else, “a second bite at the class action apple in state court . . . .” The writers have not yet had their first bite at the class action apple so far as FEHA is concerned. Indeed, in the course of its adverse ruling on class action status under the ADEA, the Wynn court indicated that had the writers brought a class action against any one employer, under a pattern or practice claim against that particular employer, “the class would most likely be conditionally certified at this point, or at some point later in the proceedings.” (Wynn, supra, 234 F.Supp.2d at p. 1084.) In short, much remained to be done, whether in federal or state court, and the employers’ claim that our interpretation of the statute allowing it to be done in state court “runs counter to sound judicial administration” is considerably overblown.

In sum, we conclude that the statutory proscription on filing or maintaining a FEHA class action in state court, when the same persons “have filed” a class action in federal court alleging a comparable claim, was intended to proscribe concurrent, not successive, class actions. Our conclusion on this point eliminates any need to address the writers’ contentions that class relief in state court is available because the alleged FEHA violations are ongoing, or that construing section 12965(b) to prohibit a class action in state court on claims that were voluntarily dismissed under rale 41(a) of the Federal Rule of Civil Procedure (28 U.S.C.) would violate the supremacy clause.

We turn next to the matter of the statute of limitations.

III. FEHA’s one-year statute of limitations does not bar the claims of “deterred applicants, ” that is, writers who allege they did not apply for positions because of an entrenched policy of discrimination.

The writers contend the trial court erred in concluding that the one-year FEHA statute of limitations barred the claims of nonapplicants or “deterred applicants,” those who did not apply for positions during the statutory period because of an allegedly long-entrenched policy of discrimination against older writers. We agree with the writers.

The fundamental issue to be decided is whether FEHA’s one-year statute of limitations prevents nonapplicant writers (deterred applicants) from prosecuting a claim that, within the statutory period, employers and agencies enforced a systemic policy of age discrimination that deterred the writers from applying for positions as television screenwriters. The answer depends upon whether a principle announced in Richards v. CH2M Hill, Inc., supra, 26 Cal.4th 798 (Richards) applies. Richards involved an application of the continuing violation doctrine. Richards decided that the statute of limitations in disability harassment cases involving an employer’s series of unlawful actions against an employee begins to run when the employee is on notice that further efforts to end his employer’s unlawful conduct will be futile. If the Richards futility formulation also applies to cases of an ongoing corporate policy of discrimination against a protected class, the writers’ complaints themselves tend to show that the statute of limitations ran long ago on most claims by deterred applicants, because the complaints generally allege that the discriminatory policies in question have been entrenched for many years.

We conclude the Richards formulation does not apply. We first describe the continuing violation doctrine, then discuss its application as mandated by Richards, and finally explain the reason the doctrine does not apply in the cases under review.

A. Continuing violation doctrine.

We begin by agreeing, as did Richards, with the observation that the continuing violation doctrine is “ ‘arguably the most muddled area in all of employment discrimination law.’ ” (Richards, supra, 26 Cal.4th at p. 813, quoting 2 Lindemann & Grossman, Employment Discrimination Law (3d ed. 1996) p. 1351.) The continuing violation doctrine is muddled because, as Richards points out, it “refers not to a single theory, but to a number of different approaches, in different contexts and using a variety of formulations, to extending the statute of limitations in employment discrimination cases.” (Richards, supra, 26 Cal.4th at p. 813.)

Both federal and earlier California cases have distinguished two different types of continuing violations, both of which also are identified in Richards. One is a systematic corporate policy of discrimination, and the other is a series of discriminatory acts directed at an individual. (See, e.g., Morgan v. The Regents of the University of California (2000) 88 Cal.App.4th 52, 64 [105 Cal.Rptr.2d 652] [a continuing violation may be established by demonstrating either a companywide policy or practice or a series of related acts against a single individual]; Bullington v. United Air Lines, Inc. (10th Cir. 1999) 186 F.3d 1301, 1311 [“a continuing violation may be based on either a series of related acts taken against a single individual or the maintenance of a company-wide policy or practice of discrimination”]; Sabree v. United Broth. of Carpenters and Joiners (1st Cir. 1990) 921 F.2d 396, 400 & fn. 7 [distinguishing serial and systemic continuing violations; a “systemic violation has its roots in a discriminatory policy or practice; so long as the policy or practice itself continues into the limitation period, a challenger may be deemed to have filed a timely complaint”].) Commentators have drawn a similar distinction.

Richards examined federal case law on continuing violations and identified “essentially four approaches” used in federal cases. The first involves a systematic corporate policy of discrimination which was initiated before the limitations period, but continues in effect within that period to the detriment of the employee. (Richards, supra, 26 Cal.4th at p. 813.) For example, a discriminatory promotions policy, implemented long before suit is brought, is actionable if it continues into the limitations period to wrongfully deny an employee a promotion. Richards cited California cases similarly concluding that a policy of systematic discrimination in promotions constitutes a continuing violation. (Richards, supra, 26 Cal.4th at p. 813, citing Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052-1054 [282 Cal.Rptr. 726] (Valdez), and City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 983 [236 Cal.Rptr. 716] (City and County of San Francisco).) It is this type of “continuing violation”—a systematic, companywide corporate policy of discrimination against a protected class—that is alleged in the cases under review.

Richards identified three other approaches, all of them used in cases involving an entirely different context: a series of discriminatory acts directed at an individual, rather than a systematic corporate policy of discrimination. In one approach, a series of discriminatory acts may delay the deadline for suing with respect to earlier acts in the series, only if the character of the earlier acts was not apparent when they were committed, but became apparent in light of later acts committed during the limitations period. (Richards, supra, 26 Cal.4th at pp. 813-814.) Another approach is the multi-factored approach first described in Berry v. Board of Sup’rs of L.S.U. (5th Cir. 1983) 715 F.2d 971 (Berry), to determine when a number of discriminatory acts are related closely enough to constitute a continuing violation, and when they are merely discrete acts which must be regarded as individual violations. The three nonexclusive factors identified in Berry were whether the acts involve the same type of discrimination, whether the acts are frequent, and whether the acts have a degree of permanence that would trigger an employee’s awareness that his or her rights have been violated. (Richards, supra, 26 Cal.4th at p. 814, discussing Berry, supra, 715 F.2d at p. 981.) The final approach is a broader “course of conduct” approach. That approach dispenses with the Berry permanence factor and examines whether the separate acts of discrimination are so closely related as to form a continuing violation. (Richards, supra, 26 Cal.4th at p. 816.) After reviewing these approaches to the continuing violation doctrine, Richards adopted a modified version of the Berry approach for application to a case involving an employer’s series of unlawful actions in failing to reasonably accommodate an employee’s disability.

The Richards review of the continuing violation doctrine crystallizes one critical point. The cases under review by this court are analogous only to the first category of continuing violations identified in Richards and other authorities; the writers allege a systematic corporate policy of discrimination against a protected class that was enforced during the limitations period, to the detriment of members of the class during that period. No relief is sought for employer conduct predating the limitations period. By contrast, the other three approaches involve an entirely different category of continuing violation. Those three approaches were used by the courts to determine whether a series of discriminatory acts against an individual constitute a continuing violation, such that acts outside the statute of limitations may be used to establish the employer’s liability.

The two categories of so-called continuing violations are thus fundamentally different. The first seeks relief for discrimination during the limitations period, and the second seeks to impose liability for acts outside the limitations period. The first seeks relief for pervasive companywide discrimination against a protected class, and the second involves a series of discriminatory acts, in most cases targeting a single individual.

The Richards case, upon which the trial court relied to find the claims of deterred applicants time-barred, is clearly addressed to the second category of continuing violations: a series of discriminatory acts targeting an individual victim, specifically, refusing reasonable accommodation to a disabled individual. Our examination of Richards compels the conclusion that the principles announced there have no application to the cases before us. We turn to the holdings of the Richards case to illustrate the point.

B. Richards v. CH2M Hill, Inc.

As Richards explains, “the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period.” (Richards, supra, 26 Cal.4th at p. 812.) Specifically, the question posed by Richards was this: “Is an employer liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period?” (Ibid.) In Richards, “[m]any of the incidents of disability discrimination introduced at trial occurred outside the one-year limitations period” for filing FEHA actions. (Id. at pp. 801-802.) Adopting a modified version of the Berry test, the Supreme Court held: “We conclude, consistent with the language and purposes of the FEHA, as well as federal and California case law, that an employer’s series of unlawful actions in a case of failure to reasonably accommodate an employee’s disability, or disability harassment, should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of ‘permanence’ so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile.” (Richards, supra, 26 Cal.4th at p. 802.)

The court expressly addressed the statute of limitations: “Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards, supra, 26 Cal.4th at p. 823.)

The employers seize upon the final factor in the court’s test—whether the victim is on notice that further efforts to end unlawful conduct will be futile—and assert that it applies to start the statute of limitations in every case of ongoing discrimination, including a companywide policy of discrimination against a class. We conclude, to the contrary, that it is manifest from Richards that the principles announced there have no application to the cases before us.

C. The Richards doctrine has no application to a claim of ongoing, companywide, systematic discrimination against a protected class.

We begin by noting the contrasts between Richards and the cases under review. In these cases, the question is not, as it was in Richards, the employer’s liability “for actions that take place outside the limitations period . . . .” (Richards, supra, 26 Cal.4th at p. 812.) The question is the employer’s liability for enforcing a discriminatory policy during the limitations period. The employers and the agencies are not liable—and the writers do not claim they are—for discrimination in hiring that occurred more than one year before the complaints in these cases were filed with the Department of Fair Employment and Housing. As already mentioned, another difference is equally apparent: these cases allege systematic, companywide discrimination against a class of persons, and Richards involved a series of discriminatory acts directed at an individual.

Nonetheless, the employers insist that Richards established, for all cases in which discrimination could be described as a continuing course of conduct, that the statute of limitations begins to run “when a plaintiff first learns that it would be ‘futile’ to change the situation . . . .” The agencies similarly argue that Richards applies “ [b]y its own terms, . . .regardless whether a plaintiff alleges a ‘pattem-or-practice’ of discrimination against a class or merely an ongoing course of discrimination against an individual.” We are compelled to disagree.

First, Richards certainly does not apply “[b]y its own terms.” Richards nowhere addresses the application of the continuing violation doctrine to allegations of ongoing systematic discrimination against a class. To the contrary, Richards repeatedly confines its holding to the circumstances under review, expressly addressing only “the applicability of the continuing violation doctrine to the FEHA when an employer fails to reasonably accommodate a disability or to prevent disability discrimination.” (Richards, supra, 26 Cal.4th at pp. 818, 823 [defining “ ‘permanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment”].) Indeed, Richards is explicitly premised on the rationale that the limitations period should not begin to run, in such a case, at the first notice that an employee’s rights have been violated, because that would “short-circuit the reasonable accommodation process . . . .” (Id. at p. 822.) Its holding was expressly based on the existence and importance of the informal conciliation and accommodation process. (Id. at pp. 821-822.) The concept of informal conciliation is, of course, completely inapplicable when no employment relationship, and hence no opportunity for informal conciliation, exists. In short, nothing in Richards suggests that its formulation applies, or was intended to apply, to classwide claims of an ongoing, companywide, systematic policy of age discrimination in hiring. And, it is hornbook law that “ ‘an opinion is not authority for a proposition not therein considered.’ ” (Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 422 [9 Cal.Rptr.3d 121, 83 P.3d 518], quoting Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].)

Second, some of the employers urge that the issue in Richards was when the unlawful practice “occurred,” and that Richards “tied its analysis to FEHA’s language indicating that the limitation period is triggered when an ‘unlawful practice’ has ‘occurred.’ ” The employers’ statement is true, but the analysis underlying it is incomplete. Richards did not purport to opine when an unlawful practice has “occurred” for any and every kind of unlawful practice. Richards' s holding and analysis is very plainly addressed only to the question when an employer’s persistent failure to reasonably accommodate an individual employee’s disability, “or to eliminate a hostile work environment targeting a disabled employee,” is a continuing violation. (Richards, supra, 26 Cal.4th at p. 823.) Richards neither discussed nor decided when an employer’s ongoing pattern or practice of systematic discrimination against a protected class has “occurred” for purposes of the statute of limitations. Moreover, federal precedent confirms that the question of timely filing with respect to pattern and practice claims by private litigants is entirely distinct from limitations questions in contexts such as that in Richards. Thus, in National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 105 [153 L.Ed.2d 106, 122 S.Ct. 2061] (Amtrak), the Supreme Court resolved, under federal law, the question whether, and under what circumstances, a Title VII plaintiff may file suit on events that fall outside the limitations period. In doing so, the court expressly noted it had “no occasion here to consider the timely filing question with respect to ‘pattem- or-practice’ claims brought by private litigants . . . .” (Id. at p. 115, fn. 9.)

Third, the Richards test itself shows its inapplicability to claims of a companywide pattern or practice of unlawful discrimination. The very purpose of the Richards test is to determine whether “an employer’s series of unlawful actions . . . should be viewed as a single, actionable course of conduct . . . ,” subjecting the employer to liability for acts outside the limitations period. (Richards, supra, 26 Cal.4th at p. 802.) However, in pattern and practice cases, no test is necessary to determine whether unlawful actions outside the limitations period should be viewed as part of a single, actionable course of conduct, because no relief is sought for actions outside the limitations period. Relief is sought only for enforcement of the discriminatory policy during the limitations period. Moreover, the three prongs of the Richards test—whether the employer’s actions are sufficiently similar in kind, occur with sufficient frequency, and have not acquired a degree of permanence such that further efforts at informal conciliation would be futile—likewise show the test’s irrelevance to claims of ongoing systematic discrimination in hiring. In a pattern and practice case, the employer’s unlawful actions are, by definition, identical in kind and pervasive in frequency. The question of “permanence” similarly does not arise, because no relief is sought for actions outside the limitations period, and the raison d’etre for the permanence requirement is to allow an ongoing process of reasonable accommodation between employer and employee to occur. (Richards, supra, 26 Cal.4th at pp. 820-823.) In short, the Richards test does not address, and plainly was not intended to address, the question when the statute of limitations begins to run on a pattern and practice claim of systematic discrimination.

In sum, the Richards test is entirely inapposite to a case of continuing systemic discrimination against a class. The rationale stated in Valdez and City and County of San Francisco, on the other hand, remains fully viable. Valdez and City and County of San Francisco, as well as many federal cases, have concluded that a continuing violation may be found when a corporate policy is initiated before the limitations period, but continues in effect within that period to the detriment of the employee. (Valdez, supra, 231 Cal.App.3d at pp. 1052, 1054 [critical question is whether any present violation exists; a present violation existed “because the employer, during the limitations period, [was] making promotions from a list tainted by discrimination”]; City and County of San Francisco, supra, 191 Cal.App.3d at p. 983 [because promotions continued to be made from an allegedly discriminatory eligibility list (adopted outside the statutory period) during the year preceding the filing of the complaint, the complaint was timely filed]; Williams v. Owens-Illinois, Inc. (9th Cir. 1982) 665 F.2d 918, 924 [“the relevant strain of continuing violation doctrine is that a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period”]; see Richards, supra, 26 Cal.4th at p. 813.)

The employers assert that Richards implicitly overruled Valdez and City and County of San Francisco, and “expressly rejected” the approach used in those cases. The employers do not specify where in Richards this express rejection may be found, and with good reason: it is not there. Richards nowhere suggests or implies that Valdez and City and County of San Francisco were wrongly decided. Further, for the reasons we have discussed, it is improbable that the Supreme Court would apply the Richards formulation to the entirely different circumstances that existed in Valdez and City and County of San Francisco, where policies of systematic discrimination in promotions existed and were applied during the limitations period to the detriment of the employee. Nothing in Richards suggests that is or should be the law.

Finally, the employers cite Richards and Cucuzza for the proposition that it would be unfair to the employer to allow the employee to extend the limitations period indefinitely. The argument merely demonstrates the inappo-siteness of Richards to a case of companywide systematic discrimination against a class. The court’s concern in Richards about permitting an employee to indefinitely delay the filing of a lawsuit was expressly connected to cases of harassment of or failure to accommodate a disabled employee. (Richards, supra, 26 Cal.4th at pp. 822-823.) The court explained that when an employee’s hope that conditions will improve is unreasonable, justification for delay in taking formal legal action no longer exists. “If the employer has made clear in word and deed that the employee’s attempted further reasonable accommodation is futile, then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights.” (Id. at p. 823.)

The circumstances in the cases under review could scarcely be more dissimilar. It is not the employee—the deterred applicant—who is extending the limitations period indefinitely. It is the employer who allegedly continues to refuse to hire older screenwriters for television writing opportunities that occur during the limitations period. Certainly, the employers and the agencies would not be liable for any discriminatory refusal to refer or refusal to hire that occurred more than one year before the complaints in these cases were filed with the Department of Fair Employment and Housing. However, there is no reason an employer should be at liberty to continue to discriminate in new hires during the limitations period, simply because it has done so, allegedly, for the past 20 years. As one court has said, an employer who continuously and systematically violates the law “ ‘neither deserves nor obtains repose.’ ” (EEOC v. Mitsubishi Motor Mfg. of America, Inc. (C.D.Ill. 1998) 990 F.Supp. 1059, 1087, quoting EEOC v. Home Ins. Co. (S.D.N.Y. 1982)