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Larry V. Espinoza, Sr v. Sutter Medical Center Sacramento

December 16, 2011

LARRY V. ESPINOZA, SR., PLAINTIFF AND APPELLANT,
v.
SUTTER MEDICAL CENTER SACRAMENTO, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34-2009-00046832-CU-WT-GDS)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Espinoza v. Sutter Med. Center Sacramento

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Larry V. Espinoza, Sr. (Espinoza), sued his former employer Sutter Medical Center Sacramento (Sutter), in 2009 for wrongfully terminating his employment in 2004. Sutter's demurrer to the complaint, on the ground that Espinoza's claims are barred by the statutes of limitation, was sustained without leave to amend.

Espinoza brings this pro se judgment roll appeal from the subsequent judgment. He argues that, in sustaining the demurrer, the trial court (1) failed to give him "the opportunity to ask for a continuance" and (2) erred in finding that his claims are time-barred because the time limits should have been equitably tolled while Espinoza pursued his administrative remedies.

We find no error and affirm the judgment.

BACKGROUND

Because this is an appeal following a successful demurrer, we accept as true all facts properly pleaded in Espinoza's complaint, and also incorporate any facts of which we may take judicial notice. (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 200.)

Espinoza was employed by Sutter Medical Center Sacramento from September 1992 until January 27, 2004. He began as an environmental service technician and was eventually promoted to equipment technician.

On January 21, 2004, while he was working, Espinoza was physically assaulted by a co-worker. Espinoza called 911 to make a "citizen's arrest" of the co-worker, and reported to police that the co-worker had slapped him on the upper back; the police responded.

Sutter investigated and concluded that Espinoza's co-worker had merely "patted" Espinoza on the back in a way that seemed to onlookers to be "very collegial, as though [the co-worker] was thanking or congratulating [him] for something." It concluded that the co-worker's actions did not warrant Espinoza's bypassing the appropriate chain of command and Espinoza's actions were therefore inappropriate; by telephoning 911 instead of reporting the event to his supervisor, manager or human resources, Espinoza caused extreme disruption to the hospital staff and patients by summoning armed police officers to the scene; and Espinoza's failure in this instance to follow established procedures was "consistent with a pattern of behavior demonstrated by [Espinoza] over the last several months" for which he had received warnings. Sutter terminated Espinoza's employment on January 27, 2004.

The following month, Espinoza pursued internal grievance procedures with Sutter and filed a timely claim with the Department of Fair Housing and Employment (DFEH), in which he alleged he had been harassed and wrongfully terminated "due to [his] disability (back injury and knee injury)." After those claims were rejected and he received a right-to-sue letter from DFEH on February 27, 2004, Espinoza filed a wrongful termination complaint with the Department of Industrial Relations, in which he claimed Sutter had terminated him in retaliation for making a complaint of workplace violence to a governmental entity. The Labor Commissioner issued a decision in 2005 in Espinoza's favor, and ordered Sutter to reinstate him and pay back wages. But that decision was reversed and a final decision issued in Sutter's favor in August 2007. After he appealed unsuccessfully ...


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