Filed 3/20/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


ASHLEY ELLIS,

        Plaintiff and Appellant,                     A136028

v.                                                   (Solano County
                                                     Super. Ct. No. FCS038885)
U.S. SECURITY ASSOCIATES et al.,

        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, and 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 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




                                                 1
the shortened limitation provision was enforceable. We conclude otherwise, and reverse,
holding that the shortened limitation provision is unreasonable and against public policy.
                                      BACKGROUND
                                          The Facts
       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 the University of California (2012)
205 Cal.App.4th 338, 350). 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


                                                    2
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 the California 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 § 129401;
(2) failure to maintain environment free from harassment (§ 12940(k)); (3) retaliation in
violation of § 12940(h); (4) intentional infliction of emotional distress; and (5) negligent
hiring, supervision, and retention. The first four causes of action were against both
defendants, the fifth against U.S. Security only.




       1
        All further statutory references are to the Government Code unless otherwise
specified.


                                                    3
       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.2
       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
contract provision at issue is unenforceable as a matter of law.”
       U.S. Security filed a brief reply, and the matter came on for hearing on May 22,
2012, prior to which the court had apparently issued a tentative ruling requiring




       2
         Haynes was served with the complaint. The record does not reflect any pleading
filed by him, and the brief of U.S. Security represents that Haynes “has not appeared in
the action.”


                                                  4
appearances.3 The hearing was brief indeed, and that same day the court entered a
seven-line order that, without discussion, explanation, or citation, granted the motion
without leave to amend and ordered Ellis’s complaint dismissed.
       Ellis filed a timely notice of appeal.
                                       DISCUSSION
       The issue before us is whether the six months limitation provision in the
application for employment is enforceable?4. We hold it is not, as it is unreasonable and
against public policy.
                         FEHA, Its Significance, and Its Operation.
       California’s Fair Employment and Housing Act (FEHA) is an elaborate statutory
scheme consisting of more than 80 sections. (§§ 12900 to 12996). Section 12920, in
Chapter 3 entitled “Findings and Declarations of Policy,” declares it the “public policy”
of California to “protect and safeguard” the rights of employees against discrimination.
Section 12920 also states that “[T]he practice of denying employment opportunity and
discriminating in the terms of employment . . . foments domestic strife and unrest,
deprives the state of the fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the interests of employees,
employers, and the public in general.” And the section concludes that “[i]t is the purpose
of this part to provide effective remedies that will eliminate these discriminatory
practices.”
       FEHA is not just any statutory scheme. As our Supreme Court observed in
Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83,
100-101, “[t]here is no question that the statutory rights established by the FEHA are ‘for

       3
         We say apparently based on comments by the court at the hearing. No tentative
ruling is in the record.
       4
        No issue was raised below that judicial notice of the application was improper.
(See Gould v. Maryland Sound Industries (1995) 31 Cal.App.4th 1137, 1145 [existence
of employment contract between private parties not proper subject of judicial notice.] As
confirmed at oral argument, Ellis did not raise the point as the application could have
been the basis of a later summary judgment motion.


                                                  5
a public reason.’ ‘The broad goal of the FEHA is set forth at . . . section 12920, which
states in pertinent part: ‘It is hereby declared as the public policy of this state that it is
necessary to protect and safeguard the right and opportunity of all persons to seek, obtain,
and hold employment without discrimination or abridgement on account of race, religious
creed, color, national origin, ancestry, physical handicap, medical condition, marital
status, sex or age.’ [Citation.] . . . As we stated in Rojo [v. Kliger (1990) 52 Cal.3d 65,
90]: ‘The public policy against sex discrimination and sexual harassment in employment,
moreover, is plainly one that ‘inures to the benefit of the public at large rather than to a
particular employer or employee.’ [Citation.] No extensive discussion is needed to
establish the fundamental public interest in a workplace free from the pernicious
influence of sexism. So long as it exists, we are all demeaned.” [Citation.] It is
indisputable that an employment contract that required employees to waive their rights
under the FEHA to redress sexual harassment or discrimination would be contrary to
public policy and unlawful.”
       Prior to suing for violation of the FEHA, an employee must exhaust all
administrative remedies by filing a timely and sufficient complaint with the California
Department of Fair Employment and Housing (DFEH). (§§ 12960, 12965, subd. (b).) If
the employee chooses to undergo DFEH’s investigation process, the DFEH will either
file a civil action against the employer or issue a right-to-sue letter. (§ 12965, subds. (a)
& (b).) 5 If the DFEH fails to file a civil action against the employer within 150 days
after the charge is filed, or earlier determines not to file a civil action, it must inform the
employee, in writing, that it will issue a right-to-sue letter on request. If the employee
fails to request the right-to-sue letter, the DFEH must still issue such letter on completion
of its investigation, and in no event more than one year after the charge was filed.
(§ 12965, subd. (b).)




       5
       The employee may choose to receive an immediate right-to-sue letter and waive
the DFEH’s investigation. (Cal. Code of Regs. tit. 2, § 10005, subd. (a).)


                                                    6
       The time limit for filing the administrative claim with the DFEH is one year from
the date of the unlawful act, which may be extended up to 90 days if the employee did
not learn of the unlawful act until more than a year after its occurrence. (§ 12960.
subd. (d).) Finally, any lawsuit must be filed within one year from the date of the
right to-sue letter. (§ 12965. subd. (b).)
           Statutes of Limitations and the Law Regarding Shortening Them
       A statute of limitations “prescribes the period[ ] beyond which an action may not
be brought.” (See generally 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 430,
p. 546). As we have described them, such statutes “come into the law not through the
judicial process but through legislation. They represent a public policy about the
privilege to litigate.” (O’Neill v. Tichy (1993) 19 Cal.App.4th 114, 120.)
       As distilled by our Supreme Court, there are “several policies underlying such
statutes. One purpose is to give defendants reasonable repose, thereby protecting parties
from ‘defending stale claims, where factual obscurity through the loss of time, memory
or supporting documentation may present unfair handicaps.’ [Citations.] A statute of
limitations also stimulates plaintiffs to pursue their claims diligently. [Citations.] A
countervailing factor, of course, is the policy favoring disposition of cases on the merits
rather than on procedural grounds. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal.4th 797, 806 (Fox).
       As mentioned above, FEHA has its own prescribed period, which requires that an
administrative claim must be filed with the DFEH within one year from the date of the
wrongful act, with the employee then having one year from the date on which the DFEH
issues a right-to-sue letter to file a complaint. (§§ 12960, 12965, subd. (b).)
       Three of Ellis’s five causes of action arise out of FEHA: the first, for sexual
discrimination and harassment (§ 12940); the second, for failure to maintain an
environment free from harassment (§ 12940, subd. (k)); and the third, for retaliation.
(§ 12940, subd. (h)). As to them, and as applied to the facts here under FEHA, Ellis
would have had one year from the December 14, 2010 right-to-sue letter to file her
statutory claims. As to the nonstatutory claims, the limitation period is two years. (Code


                                                  7
Civ. Proc., § 335.1; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 485
[infliction of emotional distress].) Ellis’s complaint, filed November 17, 2011, was
timely under the applicable statutory limitation provisions.
       Despite that, the trial court dismissed Ellis’s complaint, apparently on the basis
that the statutorily proscribed periods could be shortened, and here was, to six months
after the wrongful act. Doing so, the court was apparently relying on the rule that parties
may agree to shorten the limitations period. (See generally Fageol T. & C. Co. v. Pacific
Indemnity Co. (1941) 18 Cal.2d 748, 753 [twelve month limitation provision in insurance
contract “cannot be ignored with impunity so long as the limitation is not so unreasonable
as to show imposition or undue advantage”].)
       Various cases in various contexts recognize this rule, all of them emphasizing that
the shortened limitation must be reasonable. As Witkin puts it, such provisions will be
upheld if the shorter period is “reasonable, i.e. if it gives sufficient time for the effective
pursuit of the judicial remedy.” Interestingly, the author goes on, “[a]s a practical matter
these [shortening] provisions are found only in contracts habitually drawn by the obligor,
such as bills of lading, warehouse receipts, and insurance policies.” (3 Witkin, Cal.
Procedure, supra, Actions, § 469, p. 595.) This hardly describes Ellis’s application for
employment.
       Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430 (Moreno), a case relied on
by U.S. Security, recognizes the rule, describing it this way: “It is true California courts
have afforded contracting parties considerable freedom to modify the length of a statute
of limitations. Courts generally enforce parties’ agreements for a shorter limitations
period than otherwise provided by statute, provided it is reasonable. ‘Reasonable’ in this
context means the shortened period nevertheless provides sufficient time to effectively
pursue a judicial remedy. It is a well-settled proposition of law that the parties to a
contract may stipulate therein for a period of limitation, shorter than that fixed by the
statute of limitations, and that such stipulation violates no principle of public policy,
provided the period fixed be not so unreasonable as to show imposition or undue
advantage in some way. [Citing Beeson v. Schloss (1920) 183 Cal. 618, 622-623.]”


                                                   8
       As the rule is generally described, “a contractually shortened limitation period, in
order to be reasonable, must provide a party sufficient time to effectively pursue a
judicial remedy. A contractual period of limitation is reasonable if the plaintiff has a
sufficient opportunity to investigate and file an action, the time is not so short as to work
a practical abrogation of the right of action, and the action is not barred before the loss or
damage can be ascertained. On the other hand, a contractual limitation provision that
requires the plaintiff to bring an action before any loss can be ascertained is per se
unreasonable.” (51 Am. Jur. 2d (2011) Limitation of Actions, § 81, p. 552, fns. omitted.)
       Of particular interest here, Moreno went on: “However, a contractually shortened
limitations period has never been recognized outside the context of straightforward
transactions in which the triggering event for either a breach of a contract or for the
accrual of a right is immediate and obvious. . . . [M]ost reported decisions upholding
shortened periods involve straightforward commercial contracts plus the unambiguous
breaches or accrual of rights under those contracts.” (Moreno, supra, 106 Cal.App.4th at
p. 1430.) This hardly describes Ellis’s claims here.
             U.S. Security’s Shortened Limitation Period is Not Reasonable.
       The leading treatise on California employment law cautiously wonders whether
shortened limitations provisions would be enforceable in FEHA cases, given the already
short limitation provision in the statute. The treatise puts it this way:
       “Compare-Contract Provisions Shortening Time to Sue:
       “[¶] . . .[¶] Discrimination claims? It is not clear whether provisions shortening
the time to sue are enforceable where employment discrimination claims are involved
(e.g., Title VII, FEHA, ADA, ADEA, etc.) . . . because discrimination claims are already
subject to shortened statute of limitations (see ¶16:387 ff.). [See Thurman v.
DaimlerChrysler, Inc. (6th Cir. 2004) 397 F.3d 352, 358—upholding 6-month limitations
period in job application form as to employee’s claims under 42 U.S.C. § 1981 for racial
discrimination and harassment where waiver of longer statute of limitations was
‘knowing and voluntary’] [¶] One court has invalidated an employment agreement that
required employees to sue on Title VII claims within six months after the violation.


                                                  9
Because the EEOC maintains exclusive jurisdiction during the 180-day period, ‘the effect
of the limitation clause at issue could ultimately leave plaintiff without redress, given the
EEOC filing requirements.’” [Lewis v. Harper Hosp. (ED MI 2002) 241 F.Supp.2d 769,
772.] (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2013)
§ 16:545-546.5, pp. 16-94-16-95 (Chin).)
       One Court of Appeal case has addressed the subject, and found a six month
limitation provision to be unreasonable: Martinez v. Master Protection Corp. (2004)
118 Cal.App.4th 107. There, Martinez sued his former employer for violation of the
Labor Code, national origin discrimination in violation of FEHA, and wrongful
termination. The employer moved to compel arbitration based on the agreement
Martinez was required to sign as a condition of employment, one provision of which
stated that each party had six months to notify the other of a claim. (Id. at pp. 111-112,
fn. 1.) The American Arbitration Association twice refused to conduct arbitration, for
two reasons, the second of which was that the agreement gave parties less time to assert
claims than would otherwise be available by statute. Despite that, the trial court
appointed a new arbitrator, and the arbitration proceeded to an award. Martinez objected
to the award and then petitioned to vacate it. The trial court denied the petition,
confirmed the award, and entered judgment. Martinez appealed. (Id. at p. 112.)
       The Court of Appeal reversed, finding the arbitration agreement to be
unconscionable, “permeated with illegality, and unenforceable.” (Martinez v. Master
Protection Corp., supra, 118 Cal.App.4th at p. 119.) Elaborating, the court held as
follows: “The statutes upon which Martinez’s claims are premised provide significantly
longer periods of time than six months within which to assert a claim of violation.
Specifically, Martinez’s claim of national origin discrimination arises out of the FEHA.
That statute provides that Martinez’s administrative charge must be filed within one year
from the date of the discriminatory act, and that he must file any civil action within one
year of the date on which the administrative agency issues a ‘right to sue’ letter.
(Gov. Code, §§ 12960, subd (d), 12965, subd. (b).) ‘[A]n arbitration agreement cannot
be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.’


                                                 10
(Armendariz, supra, 24 Cal.4th at p. 101.) Similarly, the Labor Code, which provides the
bases for Martinez’s causes of action for unpaid wages and penalties, affords an
employee three or four years to assert the claims sued upon here. [Citations.] If there
was any doubt, after Armendariz, it is clear that ‘parties agreeing to arbitrate statutory
claims must be deemed to “consent to abide by the substantive and remedial provisions of
the statute. . . .” ’ The shortened limitations period provided by FireMaster’s arbitration
agreement is unconscionable and insufficient to protect its employees’ right to vindicate
their statutory rights.” (Id. at p.117-118.)
       Martinez is compelling. Similar to Martinez, Ellis is asserting FEHA claims, and
the provision in the application—which she was apparently required to sign as a
condition of even seeking employment—seriously truncates the time she has to vindicate
her statutory rights, drastically reducing the time to sue allowed by the FEHA by as much
as five-sixths. Specifically:
       As noted above, an administrative complaint must be filed with the DFEH within
one year of the alleged unlawful action (§ 12960, subd.(d). If the department decides not
to pursue the matter, it must issue a right-to-sue letter no later than one year after a
complaint is filed. (§ 12965, subd. (b).) The employee then has one year from the date of
that letter to file a civil action. (Id. subd. (d)(2); Pearson Dental Supplies, Inc. v. Superior
Court (2010) 48 Cal.4th 665, 671, fn.1) In sum, the outside limit to sue under FEHA is
as long as three years—and necessarily somewhat more than two. That period, the
Legislature has determined, will provide an effective remedy (§ 12920). Six months does
not. It does not provide “sufficient time for the effective pursuit of the judicial remedy.”
(3 Witkin, Cal. Procedure, supra, Actions, § 469, p. 595.) It violates the public policy in
section 12920. It is too short.
       We find support for our conclusion in some general discussion of limitation
provisions, illustrated by that of the Supreme Court in Fox, supra, 34 Cal.4th 797. There,
addressing the discovery rule in the context of a products liability case, the court noted
that “At present, the statute of limitations for an action for injury to an individual caused
by the wrongful act or neglect of another must be commenced within two years from the


                                                  11
date of accrual. (Code Civ. Proc., § 335.1.) This change was effected in 2002, when the
Legislature found the one-year limitations period of section 340, former subdivi111sion
3, ‘unduly short’ and adopted a two-year period ‘to ensure fairness to all parties.’
(Stats. 2002, ch. 448, § 1.)” (Id. at p. 809, fn 3.) If one year was “unduly short” for
personal injury actions in general, a fortiori is a six month limitation provision “unduly
short” in a FEHA case, which requires that the employee first report the claimed
misconduct to the DFEH and await its action before any suit is ripe, necessarily delaying
the filing of the complaint.
       When the Legislature extended the statute of limitations for personal injuries from
one to two years, it also found that “[m]any such matters would be resolved without the
need to resort to litigation if California’s statute of limitations permitted such actions to
be filed within two years . . . .” (Stats. 2002, ch. 448, § 1, p. 2522.) Or, as the
Legislature also found: “Extending the statute of limitations will reduce litigation in
these cases as well, because [victims] will have the opportunity to fully evaluate and use
other alternatives, rather than being forced to litigate prematurely.” (Ibid.) In other
words, a longer period allows a victim time for development and investigation of a case,
for assessment, for evaluation—and for the possibility of settlement. The six-month
limitation provision here precludes that.
       Moreover, the shortened limitation provision would thwart one aspect of the
FEHA that is critical in some cases: the administrative enforcement by DFEH itself.
(§ 12930, subd. (f); Cal. Code of Regs., tit. 2 § 10026.)6 Again, the leading treatise is apt,
describing the significance of the DFEH involvement this way: “Filing charges with the
DFEH is often the only remedy for employees with modest salaries and small claims;
they need the DFEH because they are not likely to find a private lawyer to represent


       6
        Before January 1, 2013, the DFEH could pursue the matter itself by issuing an
accusation and prosecuting the claim before the Fair Employment and Housing
Commission (FEHC) (§ 12930, subd. (h)). Effective January 1, 2013, the FEHC has
been eliminated, and the DFEH will have to file a civil action in court in order to pursue
the matter itself. (See Stats. 2012, Ch. 46, § 35; Gov. Code, § 12930.)


                                                  12
them. [¶] A DFEH filing may be helpful in any case because it requires a prompt,
detailed response from the employer, giving the employee a free, quick look at the
defenses the employer is likely to raise. A DFEH filing may also induce the employer to
hire an attorney, and the legal advice received may lead to prompt settlement of minor
disputes.” (Chin, supra, § 7:1031.2, p. 7-156.) The six-month provision here effectively
eliminates any meaningful participation by the DFEH. It is not reasonable.7
       The shortened limitation provision here would be against public policy in the
further respect that it would have anomalous effects. That is, since the provision runs six
months from the “date of the employment action” on which the employee’s suit is based,
it would mean different limitation periods for different FEHA claims. As applied here,
for example, one date would run from the time Haynes harassed Ellis, another when her
claim that U.S. Security failed to prevent harassment finally accrued, and yet another
when she was retaliated against. This is not how FEHA is designed to operate, with all
claims timely if filed within one year from the right-to-sue letter.
       Another anomaly, and again making the provision incongruous with FEHA, is that
application of the six-month limitation would mean that Ellis’s claims could be time-
barred as against U.S. Security, yet be timely against Haynes, who does not have the
benefit of the employment application.




       7
         Ellis’s position below was that the FEHA statute of limitations can never be
shortened. While we need not reach this issue, it may be that any attempt to shorten the
limitation provision in the FEHA statutory scheme would be against the law. Chin
indicates as much. So, too, does the governing policy behind the FEHA set forth in
section 12920, a policy expounded on in Armendariz: FEHA is for the good of the
public. Civil Code section 3513 provides that “Anyone may waive the advantage of a
law intended solely for his benefit. But a law established for a public reason cannot be
contravened by a private agreement.”


                                                 13
       U.S. Security’s Attempts to Support the Limitation Provision Are
       Unpersuasive.

       Seeking to persuade us to uphold the trial court’s order, U.S. Security first cites
the general rule that parties can shorten a limitation provision, acknowledging that it can
be done only if “the shortened period itself shall be a reasonable period.” U.S. Security
then briefly discusses what it claims is the policy behind a limitation provision, to
“ ‘encourage promptness in the bringing of actions, [so] that the parties shall not suffer by
loss of evidence from death or disappearance of witnesses, destruction of documents, or
failure of memory.’ ” As to this, it is probably enough to note the warning to employees
in the leading California treatise, in italics yet: “CAUTION: A short statute of limitations
applies. (e.g., one year for FEHA claims.)” (Chin, supra, § 1.64, p. 1-16.13.) Such a
short limitation provision necessarily implies a prompt case, not to mention that the
presuit administrative requirements necessarily mean notice to the employer of the
claimed misconduct. No claim can ever be stale under the FEHA limitation period.
       Returning to U.S. Security’s position, its brief then asserts this: “California law is
in accord. (Soltani v. Western & Southern Life Ins. Co. (9th Cir. 2001) 258 F.3d 1038,
1042 [“Many California cases have upheld contractual shortening of statutes of
limitations in different types of contracts, including employment situations.”] [emphasis
added]; Han v. Mobil Oil Corp. (9th Cir. 1995) 73 F.3d 872, 877 [“California permits
contracting parties to agree upon a shorter limitations period for bringing an action than
that prescribed by statute, so long as the time allowed is reasonable.”][collecting cases];
Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430 [“California courts have afforded
contracting parties considerable freedom to modify the length of a statute of limitations.
Courts generally enforce parties’ agreements for a shorter limitations period than
otherwise provided by statute, provided it is reasonable.”]; Zalkind v. Ceradyne, Inc.
(2011) 194 Cal.App.4th 1010, 1030 [“agreements to shorten the statute of limitations do
not violate public policy and are enforced if reasonable”]; Charnay v. Cobert (2006)
145 Cal.App.4th 170, 183 [same].)” The passage is unpersuasive.



                                                 14
       To begin with, except for Soltani, discussed below, none of the other four cases
involves any dispute involving any employer. More significantly, two of the cases found
the shortened limitation provision unenforceable. Moreno found the public policy
considerations behind the delayed discovery rule precluded enforcement of the one-year
contractual limitation provision in the homebuyer’s contract with the inspection
company. (Moreno, supra, 106 Cal.App.4th at p. 1434). And Charnay held
unenforceable a provision in a client’s retainer agreement with his attorney that required
the client to dispute legal bills within 10 days of receipt. The court found the provision
“inherently unreasonable” (Charnay, supra, 145 Cal.App.4th at p. 183), and also one that
would “eviscerate the delayed discovery rule, [and be] void as against public policy.”
(Id. at p. 184.)
       The Charnay court also reiterated its earlier statement in Moreno, quoted above,
that “ ‘[A] contractually shortened limitations period has never been recognized outside
the context of straightforward transactions in which the triggering event for either a
breach of a contract or for the accrual of a right is immediate and obvious. . . .’ ”
(Charnay, supra, at p. 183). Here, of course, Ellis’s claims are not all based on conduct
that is “immediate or obvious,” illustrated, for example, by her claims for failure to
prevent and for retaliation, both of which require the development of facts occurring over
a period of time.
       We recently described a claim for failure to prevent discrimination in Veronese v.
Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 28: “Government Code section 12940,
subdivision (k), prohibits an employer from failing ‘to take all reasonable steps necessary
to prevent discrimination.’ As the leading California treatise states it, ‘This provision
creates a statutory tort action with the usual tort elements (duty of care to plaintiff, breach
of duty, causation and damages). (Trujillo v. North County Transit Dist. (1998)
63 Cal.App.4th 280, 286.)’ (Chin, [supra,] § 7.671, p. [7-711].)” It is easy to imagine
cases where such a claim could easily take months to develop, certainly more than six
months, necessitating a suit that was premature. This is against public policy. Again,
Fox is apt: “It would be contrary to public policy to require plaintiffs to file a lawsuit “at


                                                  15
a time when the evidence available to them failed to indicate a cause of action.”
[Citations.] Were plaintiffs required to file all causes of action when one cause of action
accrued . . . they would run the risk of sanctions for filing a cause of action without any
factual support. [Citations.] It would be difficult to describe a cause of action filed by a
plaintiff, before that plaintiff reasonably suspects that the cause of action is a meritorious
one, as anything but frivolous. At best, the plaintiff's cause of action would be subject to
demurrer for failure to specify supporting facts [citation]. In sum, the interest of the
courts and of litigants against the filing of potentially meritless claims is a public policy
concern that weighs heavily against the Bristol–Myers Squibb formulation of the
discovery rule.” (Fox, supra, 35 Cal.4th at p. 815.)
       Along these same lines, given the time involved while the DFEH conducts its
investigation, the six-month provision here could force an employee to file a lawsuit
without having exhausted all administrative remedies, which, under the FEHA is a
“ ‘jurisdictional prerequisite to resort to the courts.’ ” (Johnson v. City of Loma Linda
(2000) 24 Cal.4th 61, 70.) It is ground for dismissal. (Okoli v. Lockheed Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space
Co., Inc. (1994) 29 Cal.App.4th 1718, 1724.)
       Turning to Soltani, while it in fact involved a claim by insurance agents against
their former employer, it was not in any setting applicable here. The case was described
by the Ninth Circuit as follows: “Appellants’ complaint basically contends that
Western-Southern wrongfully terminated Appellants’ employment in violation of public
policy because they refused, as required by Western-Southern, to pay certain premiums
for policy holders to prevent policies from lapsing. The suit contends that this
requirement is an unfair business practice under California law.” (Soltani, supra,
258 F.3d at p. 1040.) The court then went on to discuss the six-month limitation
provision there which, unlike the six-month limitation provision here, required suit within
six months of termination of employment. And the only discussion was whether the




                                                  16
provision was unconscionable, the court concluding it was not. 8 In short, Soltani was not
a FEHA case, manifest perhaps best by the fact that the term is never mentioned in the
opinion.
       To the extent Soltani has possible pertinence here, it is in its discussion of the
provision in the contract that said no suit could be filed “until ten days after service upon
the Chairman, President or Secretary of a written statement of the particulars and amount
of your claim.” (Soltani, supra, 258 F.3d at p. 1041.) The court found this provision
unenforceable, with no justification for it, with observations that are pertinent here.
       The Ninth Circuit began its analysis with a quotation from Armendariz: “We
emphasize that if an employer does have reasonable justification for the arrangement—
i.e., a justification grounded in something other than the employer’s desire to maximize
its advantage based on the perceived superiority of the judicial forum—such an
agreement would not be unconscionable. Without such justification, we must assume
that it is.” (Soltani, supra, at p. 1046.) “Applying such reasoning here, we can discern
little justification for the short ten-day notice provision in the Western-Southern
contracts. Ten days is simply not enough time for the company to investigate the factual
basis of a claim, to attempt to settle claims without litigation or consider fiscal
implications of potential litigation, or to take corrective action to prevent other such
claims.” (Ibid., fn. omitted.) The court then went on: “Moreover, the ten-day notice
provision alone does not prevent stale claims. The clause requires notice of any claim,
whether or not it is within six-months of termination, or even whether it is based upon
termination. It would bar suits while a plaintiff is employed that arose several years
earlier (which are not otherwise barred by statutes of limitations) or such suits filed after
a mere eleven days of accrual. . . . [¶] Further, the ten-day written notice provision


       8
         That the limitation provision in Soltani ran from termination led to the
conclusion that the provision was not substantially unconscionable, “because it did not
depend upon when the claim arose (i.e., a 3-year-old claim could still be filed, as long as
it was also filed within 6 months after the employee stopped working.” (See Chin, supra,
§ 18.670.2, p. 18-82.)


                                                  17
cannot be for purposes of judicial economy. It is unaccompanied by any corresponding
requirement to exhaust internal intra-company grievance procedures. Indeed, there is no
indication that Western-Southern would do anything during that ten-day period. Where
the effect of a failure to comply with the provision is to lose all legal remedies for
wrongdoing regardless of the merits, the clause can work substantial prejudice to an
employee. The notice-of-suit clause should not serve as ‘a technical escape-hatch by
which to deny [relief].” (Insurance Company of Pennsylvania [v. Associated
International Ins. Co. (1990)] 922 F.2d [516], 523.) Its effect, with no discernable
justification by Western-Southern, is merely to ‘maximize employer advantage’ and bar
any suits relating to the employment agreement.” (Id. at pp. 1046-1047.) That discussion
well demonstrates why the six-month limitation provision here cannot be enforced.
       Two other California cases cited in U.S. Security’s brief deserve mention. The
first is Beeson v. Schloss, supra, 183 Cal. 618, which it cites as follows: “Beginning with
our Supreme Court’s decision in Beeson v. Schloss (1920) 183 Cal. 618, courts applying
California law have upheld six month—and shorter—limitation provisions.” Beeson was
a suit by a travelling salesman for commissions due from his former employer. One
clause of the salesman’s contract said that a statement rendered to the salesman “ ‘shall
be deemed . . . correct’ ” and “ ‘binding’ ” unless objections were filed “ ‘within ten days
of rendering,’ ” and that no suit could be brought “ ‘after the lapse of six months from the
rendering.’ ” (Beeson, supra, 183 Cal. at pp. 620-621.) Upholding the limitation
provision there, the Supreme Court began with the recitation that “It is a well-settled
proposition of law that the parties to a contract may stipulate therein for a period of
limitation, shorter than that fixed by the statute of limitations, and that such stipulation
violates no principle of public policy, provided the period fixed be not so unreasonable as
to show imposition or undue advantage in some way. (Tebbetts v. Fidelity etc. Co.,
155 Cal. 137; [citations].)” (Id. at p. 622.) The Court went on to reverse the judgment
for the salesman, upholding the limitation provision as reasonable under the
circumstances there. (Id. at 627.) The circumstances here are a far cry.



                                                  18
       Moreover, Beeson involved a claim for a salesman’s commissions, clearly a claim
that, as Moreno would describe it, was “immediate and obvious,” ripe immediately upon
nonpayment. (Moreno, supra, 106 Cal.App.4th at p. 1430.) This is unlike the fluid
claims involved here, where there was claimed harassment brought to the attention of the
employer, and whose conduct in dealing with it formed the basis of one of Ellis’s claims,
and whose ultimate retaliation against her formed the basis of another.
       The second case, which U.S. Security describes as “instructive,” is Perez v.
Safety-Kleen Sys. (N.D. Cal., June 27, 2007, No. C 05-5338) 2007 WL 1848037, where
U.S. Security asserts “the court relied on Soltani and California law to conclude that a
limitation provision that is nearly identical to the provision at issue here was valid and
enforceable despite plaintiff’s statutory employment claims.” Perez involved two
separate complaints. The first, by two plaintiffs, alleged seven causes of action; the
second, by one plaintiff, alleged two of the same seven. None was a FEHA claim. All the
court did was dismiss the complaint of the second plaintiff as beyond the shortened
limitation provision, doing so with nothing more than a parroting of Soltani. There was
no independent analysis, let alone discussion of any public policy issue. And no mention
of FEHA. Perez is hardly instructive.
       Finally, U.S. Security cites cases, both state and federal, from other jurisdictions,
that it claims support its position here. As quoted from its brief, its argument is that these
courts upheld shortened limitation provision looking “to statute of limitations in
employment actions under federal law. (Timko v. Oakwood Custom Coating, Inc. (2001)
244 Mich.App. 234, 241-243 [six-month limitation provision not unreasonable since six
months is the time limit within which claims must be brought for breach of the duty of
fair representation under the Labor Management Relations Act [29 U.S.C. § 160(b)].)”
U.S. Security also cites Taylor v. Western & Southern Life Ins. Co. (7th Cir. 1992)
966 F.2d 1188, a Title VII case, and Fink v. Guardsmark, LLC. (D. Or. Aug 19, 2004,
No. CV 03-1480) 2004 WL 1857114). These cases are unhelpful.
       Whatever Title VII or some other federal law might say, “it is not appropriate to
follow federal decisions where the distinct language of FEHA evidences a legislative


                                                 19
intent different from that of Congress. (See Fisher v. San Pedro Peninsula Hospital
[(1989)] 214 Cal.App.3d [590,] 606 [FEHC does not rely on title VII precedent that
appears unsound or conflicts with purposes of FEHA].” (Page v. Superior Court (1995)
31 Cal.App.4th 1206, 1215-1216.)
        A particularly apt illustration of this is in Romano v. Rockwell (1996) 14 Cal.4th
479, where the Supreme Court held that the FEHA statute of limitations for wrongful
discharge ran from the date of actual discharge, not the date of notice of discharge—this,
despite United States Supreme Court authority to the contrary. (Romano v. Rockwell,
supra, at pp. 496-497.) As our Supreme Court noted, it was “not bound by these
decisions, because they interpret a federal statutory scheme not at issue here.” (Id. at
p. 497)9
                                        DISPOSITION
        The order granting judgment on the pleadings is reversed.




        9
            U.S. Security’s respondents brief ends with this short statement:
        “B. AT A MINIMUM, APPELLANT’S NON-FEHA CLAIMS FAIL
        “Below, and again in her opening brief, appellant did not dispute that her non-
        FEHA claims—her fourth cause of action for intentional infliction of emotional
        distress and her fifth cause of action for negligent hiring, supervision and
        training—are barred by the six-month limitation provision in her agreement. Her
        sole contention is, and always has been, that application of the six-month
        limitation provision to her FEHA claims is against public policy and
        unenforceable. Thus, at a minimum, her non-FEHA claims are time-barred.”
        We do not reach the issue, as it was not briefed by the parties, neither below nor
here.


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                                              _________________________
                                              Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




A136028, Ellis v. U.S. Security Associates
      *
        Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                             21
Trial Court:                                     Solano County Superior Court


Trial Judge:                                     Honorable Harry S. Kinnicutt


Attorney for Plaintiff and Appellant:            Wiseman Law Group, Joseph J.
                                                 Wiseman


Attorneys for Defendants and Respondents:        PinedoLaw, Craig A. Pinedo




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