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


December 16, 2011


(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



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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 from the final decision, Espinoza petitioned for a writ of mandate directing the Department of Industrial Relations to set aside its final decision in Sutter's favor; his petition was ultimately dismissed in April 2009.

Espinoza initiated this action in June 2009. The original complaint sought damages for wrongful or tortious termination, lost wages, and reinstatement of employment with Sutter.

Sutter demurred to the original complaint, asserting that Espinoza's complaint was time-barred and should be dismissed with prejudice. Espinoza filed a written opposition to the demurrer, in which he argued he had alleged facts sufficient to state a cause of action, and any applicable statutes of limitation should be tolled while he sought relief from the Department of Industrial Relations.

The trial court sustained Sutter's demurrer, on the grounds his claims for wrongful termination are barred by the statute of limitations or premised upon inapplicable Labor Code provisions. "It does not appear from the allegations of the complaint or the opposition," the court opined, "that [Espinoza] can state a claim against defendant that is not time barred. However, as this is the first pleading, the Court will give [him] leave to amend."

Espinoza then filed the operative "1st Amended Complaint for Personal Injury," in which he had alleged he suffered nine incidents of physical abuse, verbal abuse and/or harassment by nurse co-workers, between 1999 and January 21, 2004. Following all but the last event, Espinoza alleged, he followed all proper procedures and reported the incidents to the supervisor; the January 21, 2004, assault was an "isolated incident," and he "was not given prior training or guidance on how to handle an incident of this magnitude." Sutter had previously warned him only that "future lack of communications in regards to being late or absent will be considered job abandonment and will result in termination."

Finally, Espinoza alleged that Sutter's failure to provide its employees with a safe and healthful work environment and its negligent failure to properly investigate and/or discipline his assaultive and harassing co-workers violated Labor Code sections 6401 through 6404, inclusive [requiring employers to provide a safe work environment]; Code of Civil Procedure section 527.8 [permitting an employer to seek a restraining order on behalf of an employee threatened by a co-worker]; and Penal Code section 646.9 [criminalizing stalking].*fn1

Sutter demurred to the first amended complaint, on the grounds it alleged new legal theories, but no new facts; each of its claims are time-barred, barred by workers' compensation exclusivity, or fail to state a claim upon which relief may be granted.

Espinoza filed no opposition to the demurrer. Following a hearing at which both sides appeared and argued (although no transcript of the proceeding appears in the record on appeal), the court sustained the demurrer without leave to amend. "The Court previously ruled that plaintiff's claims appeared to be barred by the statute of limitations as his termination was in 2004. Plaintiff's amended pleading has not cured the defects. The failure to oppose this motion indicates that the defects cannot be cured. The demurrer was filed and served in November [and heard on March 2, 2010], and plaintiff has had ample time to prepare an opposition. Therefore, no leave to amend is granted as to plaintiff's claims for personal injury, harassment, wrongful termination and violation of the Labor Code."



Standards of Review

A demurrer may be sustained without leave to amend where the facts are not in dispute and the nature of the plaintiff's claim is clear but, under substantive law, no liability exists. (Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1233.) On appeal from a judgment of dismissal after an order sustaining a demurrer without leave to amend, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded, but we do not assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) It is the plaintiff's burden to show either that the demurrer was sustained erroneously or that the trial court's denial of leave to amend was an abuse of discretion. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655; Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1576; Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200.)

The general rules of appellate practice also apply to our review of a dismissal following a demurrer sustained without leave to amend. (See Keyes v. Bowen, supra, 189 Cal.App.4th at p. 655.) Those rules require the appellant to follow the California Rules of Court (subsequent references to rules are to the California Rules of Court) by: (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made (rule 8.204(a)(1)(B), (a)(2)(A)); (2) providing an adequate record that affirmatively demonstrates error (rule 8.120 et seq.); (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record (rule 8.204(a)(1)(C)); and (4) showing exactly how the error caused a miscarriage of justice (rule 8.204(a)(2)(A); Cal. Const., art. VI, § 13). If the appellant fails to comply with any of these rules, the contentions are forfeited. (Rule 8.204(a)(1)(B); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.) Because the arguments on appeal must be restricted to evidence in the record, any reference to matters outside the record on appeal generally will not be considered. (Rule 8.204(a)(2)(C).)

Lack of legal counsel does not entitle an appellant to special treatment. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)


Espinoza's Contentions Lack Merit

A. Equitable Tolling

Statutes of limitations begin to run when a cause of action accrues. (Code Civ. Proc., § 312 ["Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued"]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Generally speaking, a cause of action accrues at "the time when the cause of action is complete with all of its elements." (Norgart v. Upjohn Co., supra, at p. 397.) Here, the operative complaint alleges Espinoza was harassed and assaulted by co-workers nine times between 1999 and 2004: the most recent injury it alleges resulted in Sutter terminating his employment on January 27, 2004. He received the DFEH right-to-sue letter on February 27, 2004. (See Hall v. Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 730.)

It is somewhat uncertain from Espinoza's complaint precisely what causes of actions, in addition to negligence, he may be attempting to assert. Even giving Espinoza's current complaint its broadest possible reading, his lawsuit -- commenced more than five years after any cause of action accrued -- was filed too late. Espinoza does not argue to the contrary, nor does he attempt to suggest how the complaint could be amended to assert additional facts that would not be time-barred.

To defeat the operation of the statute of limitations bar, Espinoza instead argues the applicable statutes were equitably tolled while he was pursuing his wrongful termination complaint before the Department of Industrial Relations.*fn2 For reasons we explain, he is mistaken.

The equitable tolling doctrine broadly applies "'"[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one."' [Citations.]" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100 (McDonald); Addison v. State of California (1978) 21 Cal.3d 313, 318.) Tolling the statute of limitations during the pendency of an earlier action, even where the two actions are not identical, eases the pressure on parties to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue, affords grievants the opportunity to pursue informal remedies, and benefits the court system by reducing the costs associated with a duplicative filing requirement by (among other things) rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary. (See McDonald, supra, 45 Cal.4th at p. 100, and cases cited therein.)

Equitable tolling extends to the voluntary pursuit of alternate remedies, including voluntary administrative remedies, unless the Legislature expressly negates its application. (McDonald, supra, 45 Cal.4th at pp. 101-103, 105; see also Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 107-109 [holding equitable tolling applies to the two-year limitations period for Lab. Code, § 1197.5 wage discrimination claim while plaintiff pursues related federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) claim]; Elkins v. Derby (1974) 12 Cal.3d 410 [statute of limitations on a personal injury action tolled during the pendency of the plaintiff's workers' compensation claim] (Elkins); Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 407-409 [equitable tolling applies during pursuit of internal labor grievance procedure]; Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1101-1102 [equitable tolling applies during pursuit of title VII complaint (42 U.S.C. § 2000e et seq.) with the Equal Employment Opportunity Commission]; Nichols v. Canoga Industries (1978) 83 Cal.App.3d 956, 963 [equitable tolling applies during pursuit of breach of warranty action in federal court].)*fn3 "The filing of an administrative claim, whether mandated or not, affords a defendant notice of the claims against it so that it may gather and preserve evidence, and thereby satisfies the principal policy behind the statute of limitations. [Citation.] Both courts and legislatures have, and should, 'liberally appl[y] tolling rules or their functional equivalents to situations in which the plaintiff has satisfied the notification purpose of a limitations statute.' [Citation.]" (McDonald, supra, at p. 102, quoting Elkins, supra, 12 Cal.3d at pp. 417-418.)

But the application of equitable tolling requires "timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff." (Addison v. State of California, supra, 21 Cal.3d at p. 319; McDonald, supra, 45 Cal.4th at p. 102, fn. 2 [all of these requirements must be met].) The timely notice requirement essentially means that the first claim must have been filed within the statutory period, and it "'"must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim. Generally this means that the defendant in the first claim is the same one being sued in the second." [Citation.] "The second prerequisite essentially translates to a requirement that the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second." [Citation.] "The third prerequisite of good faith and reasonable conduct on the part of the plaintiff is less clearly defined in the cases. But in Addison v. State of California, supra, 21 Cal.3d 313[,] the Supreme Court did stress that the plaintiff filed his second claim a short time after tolling ended." [Citation.]' [Citation.]" (McDonald, supra, 45 Cal.4th at p. 102, fn. 2.)

Applying these requirements to the case at hand, we conclude equitable tolling cannot be applied to suspend the statutes of limitations applicable to Espinoza's action because the facts of his wrongful termination complaint filed with the Department of Industrial Relations are neither identical to those raised in the operative complaint, nor so similar that Sutter's investigation of that complaint would have put it in a position to fairly defend against his first amended complaint. (See McDonald, supra, 45 Cal.4th at p. 102, fn. 2; Downs v. Department of Water & Power, supra, 58 Cal.App.4th at p. 1100.)

The wrongful termination claim advanced before the Department of Industrial Relations focused wholly on whether Espinoza's January 27, 2004, termination constituted retaliation for his having engaged in the protected activity of reporting an act of "workplace violence" to the police.

In contrast, the current complaint "for personal injury" does not claim he was retaliated against for having reported workplace violence to the police. Rather, it claims Sutter failed to provide a safe work environment in contravention of various Labor Code sections; Espinoza suffered nine separate incidents of physical abuse, verbal abuse and/or harassment by nurse co-workers, dating back to 1999; and Sutter failed to "address" those incidents or to follow "their own policies and guidelines to prohibit those actions from continuing." It contains allegations that the warnings Espinoza received prior to his termination were for taking unapproved time off; that Sutter failed to inform him that he could have taken time under the Family Medical Leave Act and thereby avoided the unapproved absences; and the supervisor to whom he should have directed a request for time off was among the co-workers who had previously assaulted him.

These are not the allegations of Espinoza's wrongful termination complaint before the Department of Industrial Relations. Nor are they so similar to the question of whether Espinoza was retaliated against for engaging in a protected activity that Sutter's defense in the Department of Industrial Relations action would have enabled Sutter to fairly defend against them. As a result, we cannot conclude Sutter would not be prejudiced by the application of the doctrine of equitable tolling. Thus, we conclude this is not a proper case for the application of equitable tolling. (See McDonald, supra, 45 Cal.4th at pp. 100-103.)

B. Request for Continuance

Espinoza also contends the trial court was biased against him because it "did not give [him] the opportunity to ask for a continuance of his civil case to respond" to the demurrer at the hearing, and did not allow him "time to explain."

Espinoza makes no citation to the record to support these contentions. Accordingly, we must deem them forfeited. (Rule 8.204(a)(1)(C); Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at pp. 1239-1240.)

Even were they not forfeited, these contentions have no merit. A motion for continuance is addressed to the sound discretion of the trial court. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) When, as here, the record on appeal omits a reporter's transcript of the hearing, it is commonly referred to as an appeal "on the judgment roll" (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083) and, on a judgment roll appeal, our review is limited to error that appears on the face of the record. (See National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; rule 8.163.) Absent a reporter's transcript of the hearing on the demurrer, we cannot entertain Espinoza's contentions the court "did not give [him] the opportunity" to request a continuance, did not allow him "time to explain," "anxiously pushed" him "out of the Court room," or otherwise abused its discretion. Rather, we presume official duties have been regularly performed (Evid. Code, § 664), and this presumption applies to the actions of trial judges. (People v. Duran (2002) 97 Cal.App.4th 1448, 1462, fn. 5; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 ["If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done"].)

Moreover, our review of the record, on its face, supports the trial court's conclusion that Espinoza had ample time to file an opposition to the demurrer, but that he failed to do so. Sutter's demurrer to the first amended complaint was filed on November 30, 2009; it was set for, and heard on March 2, 2010.


The judgment is affirmed. Sutter is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

We concur: ROBIE , J. MAURO , J.

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