Clark v. Superior Court of San Diego Cnty.

62 Cal.App.5th 289

276 Cal.Rptr.3d 570

Alicia CLARK, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Arthroscopic & Laser Surgery Center of San Diego, L.P., Real Party in Interest.

D077711

Court of Appeal, Fourth District, Division 1, California.

Filed March 19, 2021

Lyon Law and Geoffrey C. Lyon, Long Beach, for Petitioner.

No appearance for Respondent.

Hickman Robinson Yaege and Kyle E. Yaege, San Diego, for Real Party in Interest.

AARON, J.

I.INTRODUCTION

In this writ proceeding, we consider whether petitioner, Alicia Clark, exhausted her administrative remedies under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12940 et seq. )¹ prior to bringing this action against her former employer, real party in interest, Arthroscopic & Laser Surgery Center of San Diego, L.P. (ALSC).

Clark filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) (DFEH Complaint) that alleged that her former employer had committed various acts of employment discrimination against her. While Clark's DFEH Complaint contained an inaccuracy as to ALSC's legal name, it clearly and unequivocally reflected Clark's intent to name ALSC as a respondent. Specifically, Clark's DFEH Complaint named, as respondents, "Oasis Surgery Center LLC," and "Oasis Surgery Center, LP," which are variants of ALSC's registered business name, "Oasis Surgery Center." In addition, Clark's DFEH Complaint referenced the names of her managers, supervisors, and coworkers.

The same day that Clark filed her DFEH Complaint, the DFEH issued a right-to-sue notice and Clark filed this action against "Oasis Surgery Center LLC," and "Oasis Surgery Center, LP." One week after filing her DFEH Complaint and the initial complaint in this action, Clark filed an amended complaint in this action, properly naming ALSC as a defendant.

Notwithstanding that Clark's DFEH Complaint clearly identified her former employer as the intended respondent, the trial court granted ALSC's motion for summary adjudication as to all of Clark's FEHA claims brought against it because Clark "named the wrong entity in her DFEH [C]omplaint, and ... never corrected that omission." Clark then filed a petition for writ of mandate in this court, requesting that we vacate the trial court's order granting ALSC's motion for summary adjudication.

After considering the text and purpose of the relevant statutory exhaustion requirement, administrative regulations, and applicable case law, we conclude that Clark exhausted her administrative remedies against ALSC. FEHA's exhaustion requirement should not be interpreted as a " ‘procedural gotcha’ " ( People v. Matthews (2019) 32 Cal.App.5th 792, 798, 244 Cal.Rptr.3d 331 ) that absolves an alleged perpetrator of discrimination from all potential liability merely because a plaintiff makes a minor mistake in naming the respondent in an administrative complaint when the intended respondent's identity is clear. This is particularly true in a case such as this, in which the plaintiff's error could not possibly have hampered any administrative investigation or prejudiced the defendant in any judicial proceedings. Accordingly, we grant Clark's writ petition and direct the trial court to vacate its order granting ALSC's motion for summary adjudication.

II.FACTUAL AND PROCEDURAL BACKGROUND

A. The DFEH proceedings

1. Clark's DFEH Complaint

On May 30, 2018, Clark, through her counsel, filed her DFEH Complaint. In the caption of her DFEH Complaint, Clark listed "Oasis Surgery Center LLC," "Oasis Surgery Center, LP" and, an individual, Michael Reibold, as respondents. Clark claimed that she was a former employee of Oasis Surgery Center LLC and Oasis Surgery Center, LP and that Reibold was her former manager and supervisor. Clark stated that respondents had taken numerous "adverse actions" against her, and that she had suffered harassment, discrimination, and retaliation in the workplace. Clark also alleged that several individuals working with her, including Reibold and Dr. Douglas Wemmer, had engaged in various discriminatory acts against her.

In addition to Reibold, Clark's DFEH Complaint referred, by name, to several other managers and supervisors for whom she worked. She also stated her job title, her period of employment, and the names of numerous individuals alleged to have information related to her claims.

2. DFEH's Right-to-Sue Notice

Pursuant to Clark's request, DFEH issued an immediate right-to-sue notice on the same day that she filed her DFEH Complaint.² The caption of the notice stated in relevant part, "Right to Sue: Clark / Oasis Surgery Center LLC et al." (Some capitalization omitted.) The notice stated in relevant part:

"This letter informs you that the above-referenced complaint [that] was filed with the ... DFEH[ ] has been closed effective May 30, 2018 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint.

"This letter is also your Right to Sue notice. According to ... section 12965, subdivision (b), a civil action may be brought under the provisions of the [FEHA] against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter."

B. Proceedings in the trial court

1. Clark's initial complaint

Also on May 30, Clark, through her counsel, filed this action against "Oasis Surgery Center LLC," "Oasis Surgery Center, LP" and Reibold. Clark's initial complaint contained numerous FEHA counts against these defendants, including counts alleging race, sex and sexual orientation discrimination, harassment and retaliation.³ Clark attached a copy of her DFEH Complaint and the DFEH's right-to-sue notice to her complaint.

2. Clark's first and second amended complaints

One week later, on June 6, Clark, again through counsel, filed a first amended complaint against ALSC and Reibold. Clark's amended complaint contained the same FEHA counts as her original complaint.

In January 2019, Clark filed the operative second amended complaint against ALSC, Reibold, and Wemmer. Clark alleged that ALSC had violated FEHA in counts for harassment based on sex (count 1), harassment based on sexual orientation (count 2), harassment based on race (count 3), discrimination based on sex (count 4), discrimination based on sexual orientation (count 5), discrimination based on race (count 6), discrimination based on disability (count 7), failure to engage in an interactive process to determine a reasonable disability accommodation (count 8), failure to reasonably accommodate disabilities (count 9), retaliation for opposing FEHA violations (count 10), and failure to prevent harassment, discrimination and retaliation (count 11).

Clark also alleged that ALSC had violated the Labor Code in counts for failure to provide rest breaks (count 12) and whistleblower retaliation (count 13).

Clark alleged count 3 (harassment based on race) against Reibold and Wemmer.⁴

Clark attached a copy of her DFEH Complaint and the DFEH's right-to-sue notice to her second amended complaint.

3. ALSC and Wemmer's motion for summary judgment and/or adjudication

In December 2019, ALSC and Wemmer filed a motion for summary judgment and/or adjudication. As relevant to this writ proceeding, ALSC sought summary adjudication as to the remaining FEHA counts in Clark's second amended complaint (counts 1–6, 10, and 11). ALSC argued Clark could not demonstrate that she had exhausted her administrative remedies as required under FEHA because her DFEH Complaint did not refer to ALSC by its proper legal name.⁵ ALSC argued, "Summary adjudication is appropriate because Clark has failed to fulfill the mandatory administrative claims process with the DFEH as to ALSC, and as a result of that failure Clark's causes of action Nos. 1-6, and 10-11 should be summarily adjudicated in ALSC's favor." (Some capitalization omitted.)

4. Clark's opposition

Clark filed an opposition to ALSC and Wemmer's motion. With respect to ALSC's exhaustion argument, Clark contended in part:

"[A]lthough [Clark] listed ALSC's [doing business name] instead of its name of record, the complaint still clearly described ALSC and the conduct of its employees and contractors. ALSC did not suffer any harm from [Clark's] failure to include ALSC's legal name in the DFEH complaint because the DFEH did not serve the complaint or the Right-to-Sue notice on any party, and did not perform any investigation, but instead directed [Clark] to serve the notice on all relevant parties and proceed with a civil action. The fact that [Clark], as a lay person, did not understand that she should use ALSC's legal business name in her DFEH complaint instead of its commonly used business name, is not a basis to prevent [Clark] from bringing claims here. [Citation.] Accordingly, Defendants' motion for summary adjudication on the ground of failure to exhaust administrative remedies should be denied." (Fn. omitted.)

5. The trial court's order granting ALSC's motion for summary adjudication

In June 2020, after ALSC and Wemmer filed a reply brief and the trial court heard a telephonic oral argument, the trial court granted ALSC's motion for summary adjudication as to counts 1 through 6, 10, and 11. The trial court reasoned in part:

"Counts ... 1-6 and 10-11: failure to exhaust administrative remedies under FEHA. Summary adjudication is granted. [Clark] named the wrong entity in her DFEH complaint, and has never corrected that omission [with the DFEH]. Her responses to [the separate statement of facts numbers] 152-154⁶ are bereft of citation to any evidence supporting her decision to ‘dispute’ these items on the Separate Statement. Her accompanying opposition brief does not contain reasoned argument or citation to authority rescuing these claims.⁷ [Citation.] Summary adjudication of these claims is therefore appropriate."⁸

C. Clark's petition for writ of mandate

The following month, Clark filed a ...