California Court of Appeals, First District, Fourth Division
Modified on Denial of Rehearing 11/27/2019
Cal.Rptr.3d 521] San Francisco City & County Superior Court,
Hon. Mary E. Wiss (San Francisco City & County Super. Ct. No.
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& Marcy, Randall B. Aiman-Smith, Reed W. L. Marcy, Hallie L.
Von Rock, Carey A. James, Oakland, Brent A. Robinson, San
Francisco, for Plaintiff and Appellant.
J. Herrera, City Attorney, Katherine H. Porter, Joseph M.
Lake, Deputy City Attorneys, for Defendants and Respondents.
Plaintiff Joyce Carroll appeals the trial court’s entry of a
stipulated dismissal with prejudice of her age discrimination
complaint under the Fair Employment and Housing Act (FEHA)
(Gov. Code, � 12900 et seq.). The dismissal
followed the court’s order sustaining defendants’ demurrer on
the ground that plaintiff did not file a complaint with the
Department of Fair Employment and Housing (DFEH) within one
year of the date the alleged unlawful employment practice
occurred. (� 12960, subd. (d).) We conclude that plaintiff’s
disparate treatment and disparate impact claims were timely
with respect to the allegedly discriminatory disability
retirement payments plaintiff received within one year of the
date on which she filed her DFEH complaint. We therefore
reverse the judgment.
was 43 years old when she began working for the City and
County of San Francisco (City or defendants). She worked for
the City for approximately 15 years before retiring at age 58
due to rheumatoid arthritis. On June 22, 2000, plaintiff
applied for disability retirement, and the City granted her
request "[s]hortly thereafter." Since then,
plaintiff has received monthly disability retirement benefit
payments from defendants.
Cal.Rptr.3d 522] Plaintiff brought a putative class action
lawsuit on behalf of herself and others similarly situated,
alleging that defendants discriminate on the basis of age in
violation of FEHA by providing reduced disability retirement
benefits to older employees who took disability retirement
after working for the City for less than 22.22 years.
Charter for the City and County of San Francisco (Charter)
contains the formula that defendants use to calculate the
benefit for employees who retire due to
disability. Charter section A8.584-3 applies to
individuals, like plaintiff, who were classified as
miscellaneous employees and who began working for the City
after November 1, 1976. Charter section A8.584-3 provides the
following formula for disability benefits for employees whose
retirement allowance does not exceed one-third of their
average final compensation: "1 1/2 percent of [the
employee’s] average final compensation multiplied by the
number of years of City service which would be credited to
[the employee] were such City service to continue until
attainment by [the employee] of age 60." Under this
formula, when an employee has worked for the City for at
least 10 years but must retire due to disability, the City
credits additional service time to the employee to increase
his or her disability retirement benefit if his or her
retirement allowance falls below one-third of his or her
average final compensation. However, the City limits this
imputed service time to the number of years the disabled
employee would have worked for the City had he or she
continued City employment until age 60. Defendants referred
to these imputed service years as "bonus years" in
the letter to plaintiff explaining her retirement disability
example, plaintiff retired at age 58 after 15 years of
service with two "bonus years," resulting in
approximately 17 years of service. Defendants
credited her with 16.75 years of service, estimating her
retirement benefit to be "equal to 25.125% of her final
average salary." In contrast, an employee who was hired
at age 18 with 15 years of service and 27 years of imputed
service, resulting in a total of 42 years of service, would
receive a retirement benefit of 33.33 percent of her final
average salary (Charter, � A8.584-3 sets a maximum benefit of
one-third). Plaintiff alleges that because Charter section
A8.584-3 provides employees who were hired over the age of 40
with "reduced retirement benefit[s]," defendants
violate FEHA by intentionally discriminating against these
employees on the basis of age and by using a standard policy
that has a disparate impact on older employees.
Plaintiff alleged that she became aware that defendants paid
her retirement benefits based on her age after seeing an
advertisement on or about July 20, 2017, which was more than
17 years after her retirement. She filed her complaint with
the DFEH on November 17, 2017.
demurred, arguing that the statute of limitations barred her
claims because she failed to timely file an administrative
charge with the DFEH. The court sustained the demurrer with
leave to amend to allow the substitution of a new [254
Cal.Rptr.3d 523] named representative to properly represent
the class. Plaintiff appealed.
I. Standard of Review
trial court sustains a demurrer, we independently review the
complaint to determine whether it states a valid cause of
action, accepting all factual allegations as true.
(McCall v. PacifiCare of Cal., Inc. (2001) 25
Cal.4th 412, 415, 106 Cal.Rptr.2d 271, 21 P.3d 1189.) We
construe the allegations liberally and draw all reasonable
inferences in the plaintiff’s favor. (Coleman v.
Medtronic, Inc. (2014) 223 Cal.App.4th 413, 422, 167
Cal.Rptr.3d 300.) " ‘A demurrer based on a statute of
limitations will not lie where the action may be, but is not
necessarily, barred. [Citation.] In order for the bar of the
statute of limitations to be raised by demurrer, the defect
must clearly and affirmatively appear on the face of the
complaint; it is not enough that the complaint shows that the
action may be barred.’ "
(Guardian North Bay, Inc. v. Superior Court (2001)
94 Cal.App.4th 963, 971-972, 114 Cal.Rptr.2d 748.) When a
court sustains a demurrer without leave to amend, we review
for abuse of discretion the determination that amendment
could not cure the defects, reversing only if the plaintiff
bears his or her burden of establishing a reasonable
possibility that amendment could cure the defects. (Brown ...