Balloon v. Superior Court (39 Cal. App. 4th 1116, 1995)

Opinion

SPARKS, Acting P. J.

The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff’s minority by application of Code of Civil Procedure section 352, or on equitable grounds. We hold it was not.

Petitioners, Walter Balloon, WVB Enterprises, Inc., and Foodmaker, Inc., collectively doing business as Jack In The Box, and Hargit Singh (hereafter defendants), are the former employers and supervisors of Tiffany Rodway, real party in interest (hereafter plaintiff). Plaintiff’s complaint in the underlying superior court action seeks damages for alleged sexual harassment and discrimination in her employment, in violation of the FEHA. Defendants moved for summary judgment on the ground that plaintiff had not exhausted her administrative remedies. They contended that she failed to comply with the requirement of Government Code section 12960 that she file a complaint with the Department of Fair Employment and Housing (DFEH) within one year after the last alleged unlawful act. The superior court denied defendants’ motion, and they now seek review of that order in this court by way of a petition for writ of mandate, as authorized by Code of Civil Procedure section 437c, subdivision (Z). We conclude that defendants are entitled to summary judgment on plaintiff’s FEHA claim, and shall grant the requested relief.

Plaintiff was employed at defendants’ Jack In The Box restaurant from February to September 1990, when, according to her DFEH complaint, the prohibited acts occurred. During the time she worked for defendants, plaintiff was 15 or 16 years old. Plaintiff’s 18th birthday fell on August 17, 1992. She filed her administrative complaint on August 13, 1993, within one year after reaching the age of majority, but nearly three years after her employment had terminated, which was the last possible date on which the alleged sexual discrimination and harassment could have taken place. The DFEH issued a “right to sue letter” (the record does not disclose the date of that letter), after which plaintiff had one year to commence a civil action. (Gov. Code § 12965, subd. (b).) She did so, filing her superior court complaint on March 9, 1994. A first amended complaint was filed on January 23, 1995.

The timely filing of an administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 349 [21 Cal.Rptr.2d 292]; Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1232 [13 Cal.Rptr.2d 170]; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052 [282 Cal.Rptr. 726].) Defendants, as we have noted, moved for summary judgment on the ground that plaintiff’s delay of approximately three years in filing a complaint with the DFEH bars her civil complaint.

In response, plaintiff relied primarily on Code of Civil Procedure former section 352 (section 352), which, at the time of the filing of her complaint, provided in pertinent part that: “(a) If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time the cause of action accrued, either: [U 1. Under the age of majority; or, [*]□ 2. Insane; or, [