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Judith Bjorndal v. the Superior Court of Sonoma County

December 12, 2012


Trial Court: Sonoma County Superior Court Trial Judge: Hon. Elliot Lee Daum (Sonoma County Super. Ct. No. SCV225398)

The opinion of the court was delivered by: Margulies, J.


Defendant Judith Bjorndal filed this petition for a writ of mandate (petition) after the trial court overruled her demurrer to plaintiff Van A. Pena's amended complaint. Pena had originally sued Bjorndal in 2002 for retaliatory termination in essentially identical state and federal lawsuits. While the state lawsuit languished, Pena pursued the federal action for nearly 10 years, twice successfully appealing adverse judgments. Following the second federal reversal in 2011, he changed his strategy and filed an amended complaint in the state lawsuit, alleging a single cause of action under the Whistle Blower Protection Act, Government Code*fn1 section 8547 et seq. (Act).

Bjorndal filed a demurrer contending Pena's lawsuit was barred because he had not filed a timely administrative complaint, which is a statutory prerequisite to a civil action under the Act. The trial court overruled the demurrer, concluding the doctrine of equitable tolling excused Pena's failure to file the administrative complaint while he was litigating the federal action. Finding equitable tolling inapplicable in these circumstances to extend the deadline for pursuing an administrative remedy under the Act, we grant the writ of mandate and direct the trial court to sustain Bjorndal's demurrer.


On April 9, 2002, Pena served a first amended complaint in this action alleging claims for "retaliation for opposing illegal activities" under title 42 United States Code section 1983 (hereafter section 1983), violation of "Plaintiff['s] . . . right to oppose . . . illegal activities" under the state Constitution and unspecified state statutes, and violation of Labor Code section 1102.5.*fn2 In essence, the first amended complaint alleged Pena, a former employee of the Department of Developmental Services (Department), was fired from his job at the Sonoma Developmental Center (Center), a facility for care of the "severely handicapped," because he reported incidents of "patient abuse and gross negligence" at the Center. Bjorndal, the medical director of the Center, and several other state officials were joined as defendants. A few months later, in June, Pena filed a "Supplemental Complaint" in a federal lawsuit joining most of the same defendants and alleging the same three causes of action.*fn3

The parties' litigation proceeded in federal, rather than state court. In February 2004, the federal trial court entered an order granting in part defendants' motion for summary judgment. Within days, Pena settled with all defendants other than Bjorndal and dismissed them from the litigation. Pena then appealed the grant of summary judgment on his section 1983 claim against Bjorndal, but not the rulings on his other two causes of action against her. After a reversal and remand from the Ninth Circuit Court of Appeals, the section 1983 claim against Bjorndal proceeded to trial in federal court in 2009. Bjorndal was successful, but the judgment in her favor was reversed in a May 2011 appellate decision.*fn4

Soon thereafter, in July 2011, Pena filed a second "first amended complaint" in the state action, which had apparently been slumbering for the prior nine years. The new first amended complaint, also based on Pena's experiences at the Center prior to his termination in 2001, joined the original defendants, contained considerably more detailed factual allegations, and pleaded a single cause of action, this time under the Act.*fn5

Defendants filed a demurrer to the new first amended complaint, contending the action was barred as to all defendants other than Bjorndal by the prior settlement and, as to all defendants, by Pena's failure to file a timely administrative complaint. As a prerequisite to any suit for damages under the Act by a state employee, Government Code section 8547.8 requires the employee to file a complaint with the State Personnel Board (Personnel Board) "within 12 months of the most recent act of reprisal complained about." (Id., subds. (a), (c).) As acknowledged in the new first amended complaint, Pena's claim with the Personnel Board was not filed until early 2011, over nine years too late. Opposing the demurrer, Pena contended the deadline for filing his administrative complaint had been stayed by the doctrine of equitable tolling while he pursued the federal lawsuit.

The trial court overruled the demurrer in an order filed December 13, 2011, accepting Pena's equitable tolling argument.*fn6 This petition for a writ of mandate followed. We entered an order directing the issuance of an alternative writ directing the superior court to set aside its order, noting Pena "failed to timely exhaust his administrative remedy." After the trial court failed to comply with the alternative writ, Pena filed a timely return.


Bjorndal argues the doctrine of equitable tolling is inapplicable to remedy Pena's failure to file a timely administrative complaint under the Act because his claim constitutes a splitting of the cause of action. Pena reiterates his argument for equitable tolling and contends, in the alternative, his claim under the Act relates back to his original state filing. Because we find the doctrines of equitable tolling and relation back inapplicable to extend the time for filing an administrative complaint in these circumstances, we do not address Bjorndal's contention of claim-splitting.

On review from an order sustaining a demurrer, " 'we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.' " (Committee for Green Foothills ...

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