Filed 4/15/14 Villalobos v. Community Redevelopment Agency CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



SAMUEL B. VILLALOBOS,                                                      B243229

         Plaintiff and Appellant,                                          (Los Angeles County
                                                                           Super. Ct. No. BC454584)
         v.

COMMUNITY REDEVELOPMENT
AGENCY,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,

Maureen Duffy-Lewis, Judge. Affirmed.

         Samuel Villalobos, in pro. per., for Plaintiff and Appellant.

         Baker & Hostetler and Ellen S. Gross for Defendant and Respondent.



                            _______________________________________
       Samuel Villalobos sued his employer, the Community Redevelopment Agency of

Los Angeles (CRA/LA), for age discrimination and retaliation under the California Fair

Employment and Housing Act (FEHA) after the CRA/LA denied him a promotion. The

trial court granted the CRA/LA’s motion for summary judgment on the grounds that the

lawsuit was untimely filed. On appeal, Villalobos argues that he raised triable issues of

fact as to whether the substantive time limit for filing suit under FEHA should be

equitably tolled.1 We disagree and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Villalobos was working for the CRA/LA as an Associate Planner when he

applied for the position of Regional Administrator on April 7, 2008. The following

week, the CRA/LA informed him that he would not be considered for the position.

Villalobos filed an internal grievance against the CRA/LA regarding its decision not to

interview him for the position, and the parties commenced arbitration.

       In March 2009, Villalobos filed a complaint with the Equal Employment

Opportunity Commission (EEOC) and the Department of Fair Employment and

Housing (DFEH) alleging that the CRA/LA had discriminated against him “due to [his]

age, 58, [his] national origin, Mexican, and in retaliation for filing past grievances”

when it denied him the opportunity to interview for the Regional Administrator

position. Villalobos thereafter received a “right-to-sue” notice dated April 30, 2009

from the DFEH informing him that the EEOC would be responsible for processing his


1
       The time limit at issue here is a “condition on a substantive right” and not
a procedural statute of limitations, as explained below.

                                             2
complaint, and that Villalobos could “bring a civil action under the provisions of

[FEHA]” against the CRA/LA “within one year from the date of this notice.”

Furthermore, the notice stated that “this one-year period will be tolled during the

pendency of the EEOC’s investigation of your complaint.” On February 9, 2010, EEOC

sent Villalobos a letter informing him that the agency was “closing its file on this

charge,” that he “may file a lawsuit against the [CRA/LA(s)] under federal law based on

this charge . . . WITHIN 90 DAYS of [] receipt of this notice,” and that “the time limit

for filing suit based on a claim under state law may be different.” (Emphasis in

original.)

       After receiving the letter on February 12, 2010, Villalobos went to the EEOC

office and attempted to reopen his case. An EEOC employee told him he had 90 days to

file a lawsuit in federal court or a year to file a lawsuit in the “local courts.” On

February 24, 2010, Villalobos received a letter from the EEOC stating that it would not

reopen his case, and that he had “90 days of [his] receipt of the February 9, 2010 final

dismissal notice” to file a “private lawsuit.” Villalobos returned to the EEOC office and

was told again by an employee that he had 90 days to file a lawsuit in federal court and

a year to file a lawsuit in “local court.”

       On February 8, 2011, Villalobos filed the underlying lawsuit for FEHA

violations in which he alleged that the CRA/LA engaged in age discrimination and

retaliation when it declined to hire him for the position of Regional Administrator. The

CRA/LA moved for summary judgment on the grounds that the action was untimely

filed. In opposition, Villalobos argued that the limitations period should be equitably


                                              3
tolled because he had been pursuing “part of his claim with [the CRA/LA]” through an

alternate legal remedy − arbitration − in good faith. However, he acknowledged that the

arbitration did not address the alleged age discrimination and retaliation but only

whether he was qualified for the new position. Villalobos also argued that equitable

tolling was proper because his failure to timely file his claim was due to

misrepresentations by EEOC employees regarding the limitations period.

       The court granted summary judgment on the grounds that the lawsuit was

untimely filed. Judgment was entered in favor of the CRA/LA and Villalobos timely

appealed.

                                    CONTENTIONS

       Villalobos contends that the evidence created a triable issue of fact as to whether

the substantive time limit on filing suit under FEHA should be equitably tolled.2

                                     DISCUSSION

       1.     Standard of Review

       A motion for summary judgment is properly granted when there are no triable

issues of material fact and the moving party is entitled to judgment as a matter of law.

(Code Civ. Proc., § 437c, subd. (c).) We review an order granting a motion for

summary judgment de novo. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 931.)

2
       Villalobos also generally argues that the CRA/LA should be estopped from
taking advantage of its wrongful actions because the EEOC misrepresented the filing
deadline. This argument was not raised in the trial court and, thus, has been forfeited
here. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006)
136 Cal.App.4th 212, 226.) Furthermore, Villalobos’s argument that the EEOC
misrepresented the filing deadline to him does not constitute evidence of any
misconduct by the CRA/LA.

                                            4
In conducting our de novo review, we employ the same three-step analysis as the trial

court. (Benson v. Superior Court (2010) 185 Cal.App.4th 1179, 1185.) “The three

steps are (1) identifying the issues framed by the complaint, (2) determining whether the

moving party has made an adequate showing that negates the opponent’s claim, and

(3) determining whether the opposing party has raised a triable issue of fact.” (Food

Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.)

       2.     The Trial Court Did Not Err in Concluding that Villalobos Had
              Failed to Raise Triable Issues of Fact Regarding Equitable Tolling

       Pursuant to Government Code section 12960, a plaintiff alleging an unlawful

employment practice under FEHA must file a complaint with the DFEH within a year

after the date of the last occurrence of the unlawful practice. (Gov. Code, § 12960,

subd. (d).) If the DFEH decides not to file a civil action on the complainant’s behalf, it

must provide a right-to-sue notice to the person indicating that he may bring a civil

action under FEHA based on the allegations in the complaint within one year from the

date of that notice. (Gov. Code, § 12965, subd. (b).) This time provision is “a condition

on a substantive right” rather than a procedural statute of limitations.3 (Williams v.

Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949.)


3
       “Among the significant distinctions between a condition on a substantive right
and a statute of limitations is that ‘[t]he defense of the statute of limitations must be
specially pleaded or otherwise appropriately raised by the defendant; but where
a substantive time limit is involved the plaintiff must allege facts which show that the
right has not expired.’ [Citation.]” (Williams v. Pacific Mutual Life Ins. Co., supra,
186 Cal.App.3d at p. 949-950.) Regardless of whether the time provision is
a procedural statute of limitations or a substantive time limit, it may be tolled by the
doctrine of equitable tolling. (Downs v. Department of Water & Power (1997)
58 Cal.App.4th 1093, 1101, fn. 3.)

                                             5
       The one-year substantive time limit − commencing from the date of the DFEH’s

right-to-sue notice − shall be tolled when (1) a charge of discrimination is filed

concurrently with the EEOC and DFEH, (2) the investigation of the charge is deferred

by the DFEH to the EEOC, and (3) a right-to-sue notice is issued to the complainant

“upon deferral of the charge by the [DFEH] to the [EEOC].” (Gov. Code, § 12965,

subd. (d)(1)(C).) When such tolling applies, the time for commencing an action under

FEHA expires “when the federal right-to-sue period to commence a civil action expires,

or one year from the date of the right-to-sue notice by the [DFEH], whichever is later.”

(Gov. Code, § 12965, subd. (d)(2).) The federal right-to-sue period is 90 days and runs

from the receipt of the EEOC right-to-sue notice. (42 U.S.C. § 2000e-5(f)(1).)

       Here, the parties agree that pursuant to Government Code section 12965

[Section 12965], the one-year substantive time limit was tolled during the EEOC

investigation because (1) Villalobos’s complaint was filed concurrently with the EEOC

and the DFEH, (2) the DFEH deferred the investigation of the charge to the EEOC, and

(3) upon deferral of the charge, the DFEH issued a right-to-sue letter to Villalobos.

Accordingly, pursuant to Section 12965, Villalobos had one year from the date of the

DFEH right-to-sue notice or 90 days from the receipt of the EEOC right-to-sue notice to

file a civil action under FEHA, whichever was later. The later of the two dates was

90 days from Villalobos’s receipt of the EEOC notice on February 12, 2010. Thus, the

Section 12965 tolling period ended on May 13, 2010. Villalobos did not file this action

until approximately nine months later.




                                             6
       The parties dispute whether the time period established by Section 12965,

subdivision (b), and tolled pursuant to Section 12965, subdivision (d), should be further

tolled under the doctrine of equitable tolling. Villalobos contends that equitable tolling

was proper because he was pursuing an alternate legal remedy − arbitration − at the time

he filed this action.

       “[T]he running of a limitations period is equitably tolled when an injured person

has several formal legal remedies and reasonably and in good faith pursues one.”

(Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 108.) “Three factors determine

whether the statute of limitations is equitably tolled in a particular case: (1) timely

notice to defendants in filing the first claim; (2) lack of prejudice to defendants in

gathering evidence to defend against the second claim; and (3) good faith and

reasonable conduct by plaintiffs in filing the second claim. [Citations.]” (Downs v.

Department of Water & Power, supra, 58 Cal.App.4th at p. 1100.)

       “The timely notice requirement essentially means that the first claim must have

been filed within the statutory period . . . [and] must alert the defendant in the second

claim of the need to begin investigating the facts which form the basis for the second

claim.” (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924 (Collier).) “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.” ( Id. at p. 925.) “The third

prerequisite of good faith and reasonable conduct on the part of the




                                              7
plaintiff . . . [requires] that the plaintiff file[] his second claim a short time after tolling

end[s].” (Id. at p. 926.)

       Here, it was undisputed that the arbitration at issue only addressed whether

Villalobos was qualified for the Regional Administrator position, and not the issues of

age discrimination and retaliation. Accordingly, the facts of Villalobos’s claim in

arbitration were not “identical or at least so similar” to those in the claims asserted in

this action such that the CRA/LA was given adequate notice of “the need to begin

investigating the facts which form the basis for the second claim.” (Collier, supra,

142 Cal.App.3d at p. 924.) On these grounds, Villalobos failed to raise triable issues of

fact regarding whether equitable tolling was applicable, and summary judgment was

proper.4




4
        We also note that Villalobos filed this action before the subject arbitration was
completed. This does not suggest that Villalobos waited to file this action because he
was pursuing the alternate legal remedy of arbitration such that he should be granted
equitable relief. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 489,
fn. 6 [equitable tolling only applies “when a litigant has made a rational decision to
pursue one remedy before attempting the alternative.”].)

                                                8
                                DISPOSITION

    The judgment is affirmed. The CRA/LA shall recover its costs on appeal.



    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                               CROSKEY, J.

WE CONCUR:




    KLEIN, P. J.




    KITCHING, J.




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