California Court of Appeals, First District, Second Division
Solano County Super. Ct. No. FCS038885 Honorable Harry S. Kinnicutt.
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Wiseman Law Group and Joseph J. Wiseman for Plaintiff and Appellant.
PinedoLaw and Craig A. Pinedo for Defendants and Respondents.
Appellant Ashley Ellis went to work for respondent U.S. Security Associates (U.S. Security) in September 2009, as a security guard. Quickly promoted, Ellis came under the supervision of Rick Haynes, who began sexually harassing her in August 2010. Employees complained to U.S. Security, and Haynes was counseled, apparently to no avail; he was terminated in December 2010. Ellis was again promoted, but never to be paid the raise she was promised, and she resigned in January 2011.
In November 2011, Ellis filed a complaint alleging three claims under the California Fair Employment and Housing Act (Government Code § 12900 et seq.) and two nonstatutory claims, claims clearly timely under the applicable statutes of limitations. U.S. Security nevertheless moved for judgment on the pleadings, based on Ellis’s signed application for employment where she agreed that “any claim or lawsuit... must be filed no more than six (6) months after the date of the employment action . . . ," and she waives “any statute of limitations to the contrary.” In a seven-line order, without discussion or explanation, the trial court granted the motion and dismissed Ellis’s complaint, apparently concluding that the shortened limitation provision was enforceable. We conclude otherwise, and reverse, holding that the shortened limitation provision is unreasonable and against public policy.
As indicated, Ellis’s complaint was dismissed based on a judgment on the pleadings. Since it was, “We accept, and liberally construe, the truth . . ." of her facts. (Caldera Pharmaceuticals, Inc. v. Regents of University of California (2012) 205 Cal.App.4th 338, 350 [140 Cal.Rptr.3d 543].). Those facts are as follows:
In September 2009, U.S. Security hired Ellis as a security guard, and she began work at a Union Pacific railroad site in Benicia.
In early 2010, Ellis became a field training officer in Benicia, where her direct supervisor was Rick Haynes, who also supervised his wife, Tina. On August 25, 2010, Haynes called Ellis and proposed that she join him and his wife in sexual activities, telling Ellis that he and his wife had an open marriage, and asking whether Ellis “wanted to be his sexual partner.” Ellis rejected the proposition. Later that day, Haynes texted Ellis at work, telling her “he wanted to kiss her and he was sorry she did not want to be lovers.”
Thereafter, Haynes subjected Ellis to a pattern of offensive and unwanted sexual behavior at work, including: making suggestive sexual comments to her; making comments about her appearance; telling her (and coworkers) about his and his wife’s sexual activities; pulling up his pants in front of Ellis to expose the size of his sexual organ; asking her to join him and his wife in sexual activities; and giving her gifts. In addition, Haynes’s wife Tina frequently spoke in Ellis’s presence of her and Haynes’s sexual behavior, commenting about having multiple partners, and describing sexual activities and sexual fantasies.
Sometime prior to September 25, 2010, “multiple... female employees” complained to management that Haynes was sexually harassing them at the Benicia worksite, and management required Haynes to participate in a sexual harassment class. Later, in November 2010, a coworker complained to management about Haynes’s continued harassing comments. The complaining worker was put on unpaid leave, and Haynes transferred Ellis to the back gate of the Benicia site, a less desirable location than the front gate where she had been working.
In November 2010, Ellis notified someone at U.S. Security headquarters of Haynes’s inappropriate conduct, including his August proposals and text message, and his subsequent harassing conduct. In December 2010, Haynes was terminated.
Following Haynes’s termination, Ellis was promoted to a supervisor position, and promised a raise to $14 per hour. A U.S. Security employee later told Ellis she would be paid only $11 per hour, and her first paycheck as supervisor was based on a rate of $10.50 per hour. Ellis attempted to contact management to correct what she believed at the time was a mistake in the rate of compensation. Ellis received no response and, when her second paycheck as supervisor was at the same hourly rate, she gave her two-week notice. Her last day of employment was January 13, 2011.
The Proceedings Below
Ellis had filed a complaint with California's Department of Fair Employment and Housing (DFEH), and on December 14, 2010, she received a right-to-sue letter.
On November 17, 2011, Ellis filed a complaint for damages naming U.S. Security and Haynes. The complaint alleged five causes of action, styled as follows: (1) sex discrimination and sexual harassment, in violation of Government Code § 12940; (2) failure to maintain environment free from harassment (§ 12940, subd. (k)); (3) retaliation in violation of section 12940, subdivision (h); (4) intentional infliction of emotional distress; and (5) negligent hiring, supervision, and retention. The first four causes of action were against both defendants, and the fifth against U.S. Security only.
U.S. Security filed an answer, and then an amended answer, which contained several affirmative defenses, one of which was based on Ellis’s failure to bring her lawsuit within six months.
On April 17, 2012, U.S. Security filed a motion for judgment on the pleadings. The motion was accompanied by a request for judicial notice, which sought judicial notice of “Plaintiff’s Application for Employment with U.S. Security, dated September 24, 2009 (redacted).” The application was four pages long, and the final page contained the following heading: “IT IS EXTREMELY IMPORTANT THAT YOU CAREFULLY READ THE FOLLOWING.” Immediately below was “CONDITIONS OF EMPLOYMENT, ” which set forth four conditions, and below that the application said this: “STATEMENT OF APPLICANT—READ CAREFULLY BEFORE SIGNING.” Three paragraphs followed, the last of which read as follows: “I understand, agree and acknowledge that any claim or lawsuit relating to my service with [U.S. Security] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.”
The basis of U.S. Security’s motion was that all of Ellis’s claims were time-barred by the six-month limitation provision in the application.
Ellis filed opposition, which did not object to the request for judicial notice or argue any claimed unconscionability in the application. Rather, addressing only the validity of the shortened limitation period, Ellis argued that the court “find that the ...