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STENDER v. LUCKY STORES

June 18, 1991

NANCY J. STENDER; DIANE SKILLSKY; JULIE VALENTINE-DUNN; REBA BARBER-MONEY; IRMA HERNANDEZ; ANITA MARTINEZ; and JON GOLD on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
LUCKY STORES, INC., Defendant



The opinion of the court was delivered by: PATEL

 MARILYN HALL PATEL, United States District Judge.

 Plaintiffs bring this class action against defendant Lucky Stores, Inc. ("Lucky") alleging employment discrimination on the basis of sex and race. The parties are now before the court on defendant's motion to dismiss the pendent state law class claims under the Fair Employment and Housing Act, arguing that Cal. Gov't Code § 12965(b) precludes such claims where comparable federal law class claims have already been filed in federal court. Having reviewed the submissions and arguments of the parties, the court DENIES defendant's motion to dismiss.

 BACKGROUND

 Plaintiff class, consisting of women and Black employees of Lucky Stores' Northern Food Division, brings this action alleging discrimination on the basis of race and sex in the initial placement of employees, allocation of work hours, reclassification of part-time employees to full-time positions, and promotions. Claims are made pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the California Fair Employment and Housing Act, Cal. Gov't Code §§ 12900-12990 ("FEHA").

 Defendant Lucky Stores, Inc., moves to dismiss pendent class claims under FEHA, alleging that section 12965(b) of the Act "bars plaintiffs from bringing or maintaining class claims under the FEHA where similar class claims are pending in federal court." Def. Motion to Dismiss at 1. Defendant argues that principles of statutory interpretation and considerations of legislative intent require that section 12965(b) be read not only to preclude plaintiffs from bringing duplicative FEHA class claims in state court where comparable class claims are pending in federal court, but also "precludes them . . . from joining those [FEHA class] claims with their federal class claims in federal court." Id.

 Plaintiffs respond that Lucky Stores' interpretation of section 12965(b) is in fact contrary to principles of statutory interpretation, common sense, and the broad remedial policy and purposes of FEHA; moreover, defendant concedes that it can cite no case law or other authority for its position. Pl. Opp. to MTD at 1-2. Plaintiffs further argue that Lucky has waived this defense, which goes to the form of the action and is therefore not an issue of subject matter jurisdiction, by failing to raise it during the three years of pre-trial litigation. Id. at 8-9, 9 n. 6.

 LEGAL STANDARD

 A motion to dismiss will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 93 L. Ed. 2d 998, 107 S. Ct. 949 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

 Federal Rule of Civil Procedure 12(h)(2) provides that "[a] defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or ordered order Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." *fn1"

 DISCUSSION

 Section 12965(b) provides that after filing a complaint under FEHA with the Department of Fair Employment and Housing, the complainant may bring a civil action if the department either fails to issue an accusation within 150 days of the filing of the complaint or determines that no accusation will issue. The disputed language reads:

 
The superior courts of the State of California shall have jurisdiction of such actions ["the first occurrence"]. Such an action ["the second occurrence"] may be brought in any county in the state in which the unlawful practice is alleged to have been committed. . . . Such actions ["the third occurrence"] may not be filed as class action or may not be maintained as class actions by the person or persons claiming to be aggrieved where such persons have filed a civil class action in ...

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