SOSE FRANKYAN VS CITY OF LOS ANGELES

Tentative Rulings

Case Number: ****8507    Hearing Date: April 16, 2021    Dept: 37

HEARING DATE: April 16, 2021

CASE NUMBER: ****8507

CASE NAME: Sosa Frankyan v. City of Los Angeles

MOVING PARTY: Defendant, City of Los Angeles

OPPOSING PARTY: Plaintiff, Sose Frankyan

TRIAL DATE: May 25, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion for Summary Judgment

OPPOSITION: April 2, 2021

REPLY: None as of April 13, 2021

TENTATIVE : Defendant’s motion is denied. Plaintiff is to give notice.

Background

This action arises out of Plaintiff, Sose Frankyan’s (“Plaintiff”) employment with Defendant, City of Los Angeles. (“Defendant”) Plaintiff alleges that she was employed in the Los Angeles Police Department from March 23, 2015 to May 6, 2015, at which time she was pressured to resign in lieu of termination by her superiors based on false allegations about her character and work performance. After Plaintiff’s resignation, she was allegedly subject to negative personnel documentation indicating that she was not recommended for rehire. According to the Complaint, Plaintiff was subject to sexist, sexual and lewd comments throughout her employment. Further, Plaintiff also allegedly applied for a Liberty Interest Hearing on August 6, 2015 regarding her resignation, but Defendant rejected the Hearing Officer’s recommendation on March 2, 2017. Defendant’s rejection of the Hearing Officer’s recommendation was allegedly based on discrimination against Plaintiff on the basis of her sex.

Plaintiff’s Complaint, filed December 27, 2017, alleges the following causes of action: (1) discrimination on the basis of gender (Government Code ;; 12940, et seq.), (2) harassment (Government Code ;; 12940, et seq.), (3) failure to prevent discrimination/harassment (Government Code ;; 12940, et seq.), (5) retaliation (Gov Code ;; 12940, et seq.), (5) wrongful termination in violation of public policy.

On January 2, 2019, Plaintiff filed her operative Second Amended Complaint. (“SAC”) The SAC alleges the following causes of action: (1) discrimination on the basis of gender (Government Code ;; 12940, et seq.), (2) harassment (Government Code ;; 12940, et seq.), (3) failure to prevent discrimination/harassment (Government Code ;; 12940, et seq.), (5) retaliation (Gov Code ;; 12940, et seq.)

Defendant now moves for summary judgment on Plaintiff’s SAC. Plaintiff opposes the motion.

Request for Judicial Notice

Defendant requests that the court take judicial notice of the following in support of its motion:

1. Complaint in this action;

Additionally, Plaintiff requests that the court take judicial notice of the following in support of her opposition:

1. Petition for Writ of Mandate (Los Angeles Superior Court Case No. BS156227) (Exhibit 1);

2. Stipulation for Entry of Judgment (Los Angeles Superior Court Case No. BS156227) (Exhibit 2);

3. Stipulated Judgment of Remand (Los Angeles Superior Court Case No. BS156227) (Exhibit 3);

4. Petition for Peremptory Writ of Mandate (Los Angeles Superior Court Case No. BS163223) (Exhibit 4);

5. Order Granting Petition for a Writ of Mandate (Los Angeles Superior Court Case No. BS163223) (Exhibit 5);

6. Judgment Granting Peremptory Writ of Mandamus (Los Angeles Superior Court Case No. BS156227) (Exhibit 6);

7. Complaint in this action.

Both parties’ requests are granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code ; 452, subds. (d), (h).)

Discussion

1. Legal Authority

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., ; 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., ; 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., ; 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., ; 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

(Code Civ. Proc., ; 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

1. Factual Summary

The parties do not dispute the facts submitted in support of Defendant’s motion. Plaintiff alleges that she was a recruit with the Los Angeles Police Department (“LAPD”) in 2015 and that on May 6, 2016, she resigned under pressure due to “sexist” and “lewd” comments she was subjected to at LAPD. (Separate Statement in Support Motion (“DSS”), ¶¶ 1-4.) Plaintiff filed the Complaint in 2017, two years after her resignation. (DSS ¶ 5.) The operative SAC alleges four causes of action under the Fair Employment and Housing Act (“FEHA”) for discrimination, retaliation, and wrongful termination. (DSS ¶ 6.)

In opposition, Plaintiff submits additional facts in support of her argument that the one-year statute of limitations was tolled.

On July 1, 2015, Plaintiff filed a Verified Petition for Peremptory Writ of Mandate to rescind her resignation with LAPD and to provide her with a Liberty Interest Hearing. (Additional Facts in Support of Opposition (“PSF”), ¶ 4; Plaintiff Declaration, ¶ 5.a, Exh. C.) On August 6, 2015, Plaintiff filed an Administrative Appeal to rescind resignation and to provide a Liberty Interest Hearing. (PSF ¶ 5, Plaintiff Decl. ¶ 5.b, Exh. D.) On October 28, 2015, Plaintiff and Defendant entered into a Stipulation for Entry of Judgment. (PSF ¶ 6, Plaintiff Decl. ¶ 6, Exh. E.)

On January 19, 2016, a hearing on Plaintiff’s Administrative Appeal occurred. (PSF ¶ 7, Plaintiff Decl. ¶ 7, Exh. B.) On February 8, 2016, the Administrative Appeal Hearing Officer issued a recommendation indicating that the termination should not be sustained. (PSF ¶ 8, Plaintiff Decl. ¶8, Exh. B.) On March 2, 2016, the Chief of Police issued a decision (the “Decision”) to reject the recommendation of the Hearing Officer. (PSF ¶9, Plaintiff Decl. ¶9.) The decision was served by mail on March 29, 2016. (Id.)

On June 23, 2016, Plaintiff filed a Petition for Writ of Mandate to set aside the Decision and reinstate Plaintiff. (PSF ¶ 10, Plaintiff Decl. ¶ 10.)A Liberty Interest Hearing in connection with this Petition took place over 3 days from August 11, 2016. (PSF ¶ 11, Plaintiff Decl. ¶ 11.)

On December 28, 2016, Plaintiff filed her first Charge with the Department of Fair Employment and Housing. (PSF ¶ 12, Plaintiff Decl. ¶ 12, Exh. H.) On August 25, 2017, Plaintiff’s Writ of Mandamus was granted. (PSF ¶ 13, Plaintiff Decl. ¶ 13, Exh. I.) Judgment granting Peremptory Writ of Mandamus was entered on September 12, 2017. (PSF ¶ 14, Plaintiff Decl. ¶ 13, Exh. J.) Plaintiff filed a second Charge with the DFEH on December 8, 2017 and filed her initial Complaint on December 27, 2017. (PSF ¶¶ 15-16, Plaintiff Decl. ¶¶ 14-15.) Plaintiff filed a third charge with the DFEH on January 12, 2018. (PSF ¶ 17, Plaintiff Decl. ¶ 15, Exh. M.)

1. Analysis

Government Code, section 12960 requires an employee bringing a claim to first file an administrative complaint with the Department of Fair Employment and Housing (“DFEH”) within one year of the date the alleged unlawful action occurred.  (Gov. Code, ; 12960, subd. (d).)  “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.”  (Romano v. Rockwell (1996) 14 Cal.4th 479, 492 (Romano).)  Furthermore, “the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery. . . .”  (Ibid., emphasis in original.)  

equitable tolling

Defendant contends that Plaintiff’s entire action is time-barred because Plaintiff filed her initial Complaint more than two years after her resignation in 2015 and more than one year after her 2016 DFEH charge. (Motion, 3-5.) Additionally, Defendant contends that Plaintiff’s cause of action for failure to prevent discrimination and retaliation under FEHA must fail because it is derivative of Plaintiff’s other FEHA causes of action, all of which are time-barred. (Id.)

In opposition, Plaintiff contends that her claims are not time-barred because she engaged in judicial review and internal administrative hearings prior to filing the original Complaint such that the statute of limitations was tolled. (Motion, 6-12.) Plaintiff cites to Friends of Mammoth v. Board of Supervisors of Mono County (1972) 8 Cal.3d 247, 268-269 (Friends) for the argument that the statute of limitations is tolled during the pendency of a writ of mandamus. Additionally, Plaintiff cites to Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 598 (Aguilera) for the argument that the Plaintiff’s claims should not be barred by the statute of limitations unless failure to do so would unfairly prejudice Defendant.

First, in Friends, a company filed for a conditional use permit with Defendant, Mono County Planning Commission. (“Commission”) (Friends, supra, 8 Cal.3d at 252.) The permit was approved, and other individuals challenged issuance of the permit, including through an administrative mandamus. (Id. at 252-253.) In response to this challenge, the company argued that Plaintiffs did not properly exhaust their administrative remedies. (Id. at 267.) In ruling on the company’s argument, the Court of Appeal noted that ““[t]he rule is well settled that a denial by this or the appellate court of an application for a writ without opinion 'is not res judicata of the legal issues presented by the application unless the sole possible ground of the denial was that the court acted on the merits, or unless it affirmatively appears that such denial was intended to be on the merits.”” [citation omitted] (Id. at 268.) Based on this principle, the Court of Appeal concluded that the company was not prejudiced by the denial of Plaintiffs’ writ of mandamus and subsequent prompt refiling in superior court because the denial was without prejudice. (Id. at 269.)

Second, Plaintiff’s reliance on Aguilera is misplaced. Aguilera did not analyze whether the one-year statute of limitations for FEHA claims was tolled by Plaintiff’s actions in the interim. Instead, Aguilera analyzed the general concept of equitable tolling in the context of whether the statute of limitations under code of Civil Procedure section 340, subdivision (3) had expired. Thus, the holding in Aguilera is not applicable to the instant motion.

It is undisputed that Plaintiff resigned on May 6, 2015. As such, Plaintiff’s initial deadline to file a Charge with DFEH was May 6, 2016.

Plaintiff has demonstrated that she challenged her resignation and LAPD’s decisions regarding her employment by filing a Petition for Peremptory Writ of Mandate on July 1, 2015, which ended on October 28, 2015 with the Stipulation for Entry of Judgment. Additionally, Plaintiff has also demonstrated that she filed an Administrative Appeal with LAPD, which led to an Administrative Hearing, a Decision, a Liberty Interest Hearing challenging the Decision from August 11 to August 13, 2016 and concluding with the Order Granting Plaintiff’s Petition for Writ of Mandate challenging the Decision on August 25, 2017.

Thus, because Plaintiff was pursuing various internal and other grievance procedures, the statute of limitations on Plaintiff’s claims was tolled during this period. Plaintiff’s pursuit of alternative grievance procedures commenced with Plaintiff’s Petition for Peremptory Writ of Mandate on July 1, 2015 and concluded with the Order Granting Petition for Writ of Mandate on August 25, 2017.

Plaintiff’ first DFEH Charge was filed on December 28, 2016 and is thus timely filed. Further, Plaintiff’s Complaint was filed on December 27, 2017, a year later, and is thus also timely filed. Because Plaintiff’s DFEH Charge was timely filed and Defendant does not move for summary judgment on any other grounds, Defendant’s motion is denied.

Conclusion

Defendant’s motion is denied. Plaintiff is to give notice.