Filed 6/1/15 Sapronetti v. County of San Bernardino CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


PATRICK J. SAPRONETTI,

     Plaintiff and Appellant,                                          G050723

         v.                                                            (Super. Ct. No. CIVDS1105688)

COUNTY OF SAN BERNARDINO,                                              OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Bryan Foster, Judge. Reversed and remanded with directions.
                   Law Offices of Sandra L. Noël and Sandra L. Noël for Plaintiff and
Appellant.
                   Wade & Lowe, Edwin B. Brown, Richard W. Miller and Geoffrey T. Hill
for Defendant and Respondent.


                                          *                  *                  *
                                     INTRODUCTION
              Patrick J. Sapronetti appeals from the judgment entered after the trial court
sustained, without leave to amend, the demurrer filed by his former employer, the County
of San Bernardino (the County), to his third amended complaint. The third amended
complaint asserted a single claim for retaliation in violation of the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court
concluded Sapronetti failed to timely file his retaliation claim.
              Although the trial court properly sustained the County’s demurrer to the
third amended complaint, we reverse the judgment and remand with directions.
Sapronetti’s retaliation claim was primarily based on acts that occurred more than a year
before he presented his retaliation claim to the California Department of Fair
Employment and Housing (DFEH) and filed his original complaint. Those acts included
the County’s decision in April 2009 to transfer Sapronetti from the adult supervision unit
to the juvenile investigation unit. Because he failed to present his retaliation claim to the
DFEH within a year of the alleged retaliatory conduct, the claim was time-barred to the
extent it is based on those acts. (Gov. Code, § 12960, subd. (d).)
              Sapronetti argues his retaliation claim was not time-barred because he
alleged continuing retaliation since April 2009 in the form of the County’s repeated
denials of his requests to reassign him back to the adult supervision unit. The continuing
violation doctrine did not apply here to indefinitely toll the applicable statute of
limitations for as long as Sapronetti continued to unsuccessfully request reassignment.
The pleaded facts show the County unequivocally denied his request in April 2009 and
that decision had acquired permanence. Allegations of the County’s subsequent refusals
to change its decision, therefore, do not save the retaliation claim from being time-barred.
              Sapronetti further argues that his retaliation claim is timely because he
alleged he was suspended in August 2012. The continuing violation doctrine does not

                                              2
operate to extend the statute of limitations to the August 2012 suspension because the
suspension was both unique in form and remote in time, in relation to other instances of
alleged retaliation. It therefore did not constitute an instance of continuing retaliation
within the meaning of the continuing violation doctrine. Furthermore, although not
argued by Sapronetti, were we to view the retaliation claim as based solely on the August
2012 suspension, his claim would not survive demurrer because it failed to allege
sufficient facts regarding the circumstances of the suspension and its causal connection to
his engaging in protected activity.
              Although the trial court properly sustained the demurrer, we reverse the
judgment and remand with directions that the trial court grant Sapronetti leave to file an
amended pleading or a supplemental complaint. Our review of the appellate briefs and
counsel’s presentation at oral argument show it is reasonably possible for Sapronetti to
file an amended pleading or a supplemental complaint that states a retaliation claim based
solely on the August 2012 suspension. We therefore afford Sapronetti that opportunity.


                   SUMMARY OF THE ALLEGATIONS OF THE
               THIRD AMENDED COMPLAINT AND CHRONOLOGY
              In reviewing the order sustaining the demurrer, we accept the factual
allegations of the third amended complaint as true, and also accept as true facts appearing
in exhibits attached to the complaint. (Lueras v. BAC Home Loans Servicing, LP (2013)
221 Cal.App.4th 49, 55-56.)
              In February 1998, the County hired Sapronetti as a probation corrections
officer; he exceeded expectations in his performance of his duties and responsibilities in
that position. In March 2007, he was promoted to the position of probations officer II.
He performed well and quickly advanced to an “enhanced armed field assignment.”
              In December 2008, while assigned to the “Central Adult Enhanced
Supervision Unit,” Sapronetti complained to his supervisor, Robert Wyatt, that some of


                                              3
his colleagues (officers and a clerk) were engaging in “inappropriate, offensive,
unethical, unprofessional and illegal behavior in the workplace, including conduct that
rose to the level of misconduct, health and safety violations, and breaches of
confidentialit[y].” Specifically, he complained that (1) on two occasions in the
August-September 2008 timeframe, he observed a coemployee’s 17-year-old daughter
inputting confidential information into a probationer’s case file; (2) in October 2008, a
probation officer in his unit brought her two children to work where they filed legal
documents and were watched by another employee for six hours during worktime; (3) on
at least five occasions, two probation officers (Brady Lock and Jarod Linell) “join[ed] in
the horseplay” with an employee’s child; (4) probation officers placed intake photographs
of criminal defendants with unusual physical attributes on the counter to be gawked at by
other officers; (5) on a daily basis, Lock and Linell banged on walls, partitions, windows,
and cubicles; shot rubberbands at coworkers; and deployed their batons in an unsafe
manner while others were nearby; and (6) during the Christmas season, Lock and Linell
removed trash from one of the receptacles and stuffed the trash into Christmas stockings.
Wyatt “threatened” Sapronetti to get along with the other officers or he would be
transferred out of the unit.
              In January 2009, Sapronetti found out that Linell had taken a photograph of
Sapronetti’s official county identification badge picture, put the picture of Sapronetti’s
face on a picture of an overweight movie character (“Paul Blart Mall Cop”), and placed it
on the break room bulletin board. Sapronetti alleged the altered photograph depicted him
as an “old overweight and goofy officer.” Sapronetti complained that Linell had rifled
through his personal belongings in his desk to obtain the identification badge and had
used the County’s Internet connection to obtain the picture from the movie. Linell made
an effort to point the picture out to others and to poke fun at it. Wyatt saw it and laughed.
He did not order that the picture be taken down; it remained posted there for a month.



                                              4
              Sapronetti told Wyatt that because of the complaints he had made about the
inappropriate behavior in the workplace, he had reservations about going out in the field
to perform law enforcement duties with other probation officers.
              On January 28, 2009, Wyatt told Sapronetti that he would be transferred
from the adult supervision unit as a field officer to another unit due to budgetary
concerns. Wyatt also told Sapronetti that two caseload positions were being eliminated.
              Sapronetti was worried his involuntary transfer would result in his
becoming a 90-day probationary employee. He met with the deputy director, Dan
Bautista, and expressed his desire not to be transferred; Bautista said he would reverse
the transfer. On February 4, 2009, however, Bautista informed Sapronetti that he would
be transferred to the juvenile investigation unit, effective April 27, 2009.
              In early April 2009, during a meeting with the chief probation officer,
Sapronetti expressed his concerns about his coworkers’ behavior and going out in the
field with them in dangerous situations. He also requested that he be returned to the
assignment in the adult supervision unit.
              In April 2009, Sapronetti was transferred to the juvenile investigation unit,
which he considered a “substandard and inferior position” that required him to relinquish
his weapon and work at a desk; he considered it a demotion. Wyatt immediately replaced
Sapronetti with a less senior probationary employee who was in his late 20’s and of
average weight. Sapronetti’s replacement had no training that qualified him to do field
compliance checks or participate in law enforcement sweeps.
              On April 28, 2009, Sapronetti began a medical leave of absence during
which he communicated with, inter alia, a judge, the County’s human resources
department, and the County’s board of supervisors, about his complaints.
              On December 30, 2009, Sapronetti filed a charge of discrimination with the
DFEH, claiming discrimination and harassment based on his age and physical disability
(the 2009 DFEH Charge). He claimed the wrongful conduct occurred from January 2009

                                              5
through April 2009; he did not check the box stating that the wrongful conduct
constituted a “continuing action.”
              In the 2009 DFEH Charge, Sapronetti described the “particulars” of his
charge as follows: “On or about 1/7/09, I was subjected to a hostile working environment
which included, but is not limited to: having an altered picture of my face put on top of
an overweight movie character. I reported the harassment, among other things, to
Mr. Wyatt on or about 2/17/09. On or about 3/16/09, I was re-assigned from Field
Supervision to Juvenile Investigation.” He also stated that “[n]o reason was provided for
the hostile working environment. Mr. Wyatt stated that my position at Field Supervision
was being cut due to budgetary issues.” Sapronetti stated he was “subject to a hostile
working environment and re-assigned due to age (44) and being perceived as disabled.”
              Sapronetti received a “right-to-sue” notice from the DFEH, dated
January 8, 2010. The notice informed him that he must bring a lawsuit in state court
within one year from the date of the notice.
              Sapronetti returned to work from his medical leave of absence in August
2010. In September 2010, he filed a claim under the Government Claims Act (Gov.
Code, § 900 et seq.); the County served the notice of its rejection of Sapronetti’s claim in
November 2010. (Although not alleged in the third amended complaint, Sapronetti filed
the instant lawsuit against the County on May 2, 2011.)
              On May 9, 2011, Sapronetti filed a second charge of discrimination with
the DFEH, in which he alleged that as most recently as May 2, 2011, he had been
demoted, harassed, denied transfer, and retaliated against for reporting harassment and
because of his age. Sapronetti stated he “was demoted and transferred out of unit based
on budgetary concerns.” Sapronetti stated he had made numerous attempts to transfer
back into the unit, which had been refused based on budgetary concerns, a reason he
believed to be pretextual “as another employee was given his position.” In a letter dated
May 10, 2011, Sapronetti was informed of his right to sue within one year.

                                               6
              In December 2011, supervising probation officer Dennis Williams
informed Sapronetti that an “administrative investigation interrogation” had been
scheduled for December 21, 2011, concerning an allegation that Sapronetti had been
discourteous on October 7, 2011, when he had asked a minor in the presence of his
mother: “Does your mom have a love meeting to get to?”
              On July 27, 2012, the County served Sapronetti with a notice of proposed
disciplinary action in the form of a three-day suspension without pay because of
allegations that he had discourteously treated the public or other employees; willfully or
negligently disobeyed the law; and engaged in conduct, which discredited the County,
department, or agency, or which was incompatible with the due and faithful discharge of
his duties. (The third amended complaint did not address the truth, or lack thereof, of the
allegations of misconduct or the merit of the proposed suspension.)
              On August 23, 2012, the County served Sapronetti with an order of
suspension sustaining the notice of proposed disciplinary action.
              On August 29, 2012, Sapronetti filed a third charge of discrimination with
the DFEH, alleging that as recently as August 23, 2012, he was discriminated against,
harassed, and retaliated against. In the charge itself, he stated, “I believe that the Order of
Suspension sustaining the Notice of Proposed Disciplinary Action, as well as the refusal
to reverse my transfer/demotion, was retaliatory, harassment, pretextual and motivated by
my efforts to complain and report ongoing discrimination, retaliation and harassment.”


                                PROCEDURAL HISTORY
              In May 2011, Sapronetti filed a complaint against the County, containing
claims for “retaliation in violation of public policy re reporting unsafe working
conditions” (capitalization omitted), retaliation for reporting harassment/hostile work
environment harassment, and intentional infliction of emotional distress. The County



                                              7
demurred to the complaint on the ground each claim failed to state a cause of action. Our
record does not show the trial court ruled on the demurrer to the original complaint.
               In December 2011, Sapronetti filed a first amended complaint against the
County, asserting the same claims. The County demurred to all the causes of action
contained in the first amended complaint because they were time-barred. The trial court
sustained the demurrer without leave to amend as to the first cause of action for
retaliation in violation of public policy, and sustained the demurrer with leave to amend
as to both the retaliation in violation of the FEHA claim and the intentional infliction of
emotional distress claim.
               In April 2012, Sapronetti filed a second amended complaint containing
claims for “retaliation for reporting harassment/hostile work environment harassment”
(capitalization omitted) and intentional infliction of emotional distress. The County
demurred, and the trial court sustained the demurrer as to the retaliation claim with leave
to amend and the demurrer as to the intentional infliction of emotional distress claim
without leave to amend.
               On August 31, 2012, Sapronetti filed the third amended complaint
containing a single claim of “retaliation for complaining and reporting harassment and
filing complaint for perceived and actual discrimination.” (Capitalization omitted.) All
three charges of discrimination, which Sapronetti filed with the DFEH, were attached to
the third amended complaint and incorporated therein. The County filed a demurrer to
the third amended complaint on the ground Sapronetti’s single claim for retaliation was
time-barred.
               The transcript of the hearing on the demurrer states in relevant part:
               “The Court: . . . Tentative is to grant the demurrer without leave. Basis for
this is that it appears to me it’s barred by the statute of limitations; the adverse action
[occurred] in March of 2009. There was an appropriate complaint filed [i]n December of
2009. The actual complaint in this matter was filed on May 2nd, 2011. There’s a

                                               8
one-year statute of limitations. I don’t see it as a continuing violation. I know that was
the argument in the opposing papers, but it appears to me that the continuing violation is
basically saying they didn’t reinstate me. I asked again and they didn’t reinstate me. [¶]
It appears to me the damage occurred at the time of the discharge. If you believe that’s
the basis for it and that’s all—all of these requests to be reinstated relate back to that and
it appears that’s the operative date. Based on the filing of the complaint the
department—what is it?
              “[The County’s counsel]: DFEH.
              “The Court: The filing at that point I think is the period in which it
indicates that a—the actions were recognized by the plaintiff at that time to be final and
that there was no chance of reconciliation in terms of respective rights. And as such
statute of limitations have to run from that point.”
              The court also stated: “I think if he was terminated that would give rise to a
new action, not a continuation of this action. Based upon that I’m going to confirm the
tentative and grant the demurrer without leave. It doesn’t appear to me you can get
around the statute of limitations.”
              The trial court sustained the demurrer to the third amended complaint
without leave to amend. Counsel for Sapronetti did not ask for leave to amend.
Judgment was entered in favor of the County. Sapronetti appealed.


                                       DISCUSSION
                                              I.
                                   STANDARD OF REVIEW
              A judgment following the sustaining of a demurrer is reviewed under the de
novo standard. (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144;
Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1803-1804.)
Accordingly, we treat the properly pleaded allegations of a challenged complaint as true,

                                               9
and liberally construe them to achieve “‘“substantial justice”’” among the parties.
(American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)
              We consider only the allegations of a challenged complaint and matters
subject to judicial notice to determine whether the facts alleged state a cause of action
under any theory. (American Airlines, Inc. v. County of San Mateo, supra, 12 Cal.4th at
p. 1118.) “‘Further, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citation.]’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)


                                              II.

            THE TRIAL COURT PROPERLY SUSTAINED THE DEMURRER TO THE
             THIRD AMENDED COMPLAINT BECAUSE IT WAS TIME-BARRED.
              Sapronetti contends the trial court erred by sustaining the County’s
demurrer to the third amended complaint asserting a single cause of action for retaliation
in violation of the FEHA. For the reasons we will explain, we find no error because
Sapronetti’s retaliation claim is time-barred; the continuing violation doctrine does not
apply.
              It is an “unlawful employment practice” under the FEHA for “any
employer . . . or person to . . . discriminate against any person because the person has
opposed any practices forbidden under this part or . . . has filed a complaint, testified, or
assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h); see Cal.
Code Regs., tit. 2, § 11021, subd. (a).) “Employees may establish a prima facie case of
unlawful retaliation by showing that (1) they engaged in activities protected by the
FEHA, (2) their employers subsequently took adverse employment action against them,
and (3) there was a causal connection between the protected activity and the adverse
employment action.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.)


                                              10
              An employee who believes he or she has suffered an unlawful employment
practice under the FEHA may file a complaint with the DFEH within a one-year period.
(Gov. Code, § 12960.) The DFEH must then investigate the claim (id., § 12963), and has
150 days to issue either an accusation for hearing (id., § 12965, subds. (a), (b)), or a
“right-to-sue notice” (id., § 12965, subd. (b)). (Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1082.) Employees who receive a “‘right to sue’” letter from the DFEH
may then pursue their statutory causes of action in superior court. (Ibid.) “They have
one year from the date the letter is issued to do so. ([Gov. Code, ]§ 12965, subd. (b).)”
(Ibid.)
              The first time Sapronetti raised his retaliation claim in violation of the
FEHA was in the original complaint that he filed in this action on May 2, 2011. The
complaint alleged he was retaliated against for complaining in early 2009 to his superiors
about harassing and retaliatory conduct. The complaint alleged the retaliation consisted
of his complaints going unaddressed, and his being transferred out of the adult
                                                                                           1
supervision unit and into the juvenile investigation unit, over his repeated objections.
              At the time of filing the complaint, however, Sapronetti had not asserted a
retaliation claim in a DFEH charge (the 2009 DFEH Charge that he had submitted in
December 2009 only asserted a claim for discrimination and harassment). Therefore,
Sapronetti had not exhausted his administrative remedies as to his retaliation claim before
filing his lawsuit. Even if we were to read the 2009 DFEH Charge as including a
retaliation claim, the complaint was filed in May 2011, and, thus, over a year after the
DFEH issued Sapronetti a right-to-sue letter (dated January 8, 2010) as to the 2009
DFEH Charge. (See Gov. Code, § 12965, subd. (b) [requiring that a civil suit be filed

          1
         Although the third amended complaint alleged that Sapronetti “was placed” on a
medical leave of absence, beginning April 28, 2009, which continued until August 2010,
the pleading did not allege facts showing the leave was compulsory or that he considered
his leave to be retaliatory; Sapronetti has not argued otherwise in the trial court or in this
appeal.

                                             11
within one year of the date of the right-to-sue notice].) Sapronetti’s retaliation claim was
therefore time-barred at the time the complaint was filed and the County demurred to the
complaint on that basis.
              Sapronetti filed a second charge of discrimination with the DFEH on
May 9, 2011, which included a claim for retaliation. In the second charge, he alleged that
he had been “demoted and transferred out of [the adult supervision] unit” under the
pretext the probation department was having budgetary issues when the transfer was
actually in retaliation for reporting harassment and discrimination. Sapronetti’s
retaliation claim on the basis he was demoted and transferred out of the adult supervision
unit was presented to the DFEH too late—those acts occurred in April 2009.
Government Code section 12960, subdivision (d) requires that a claim of an unlawful
practice under the FEHA be filed with the DFEH within one year of its occurrence.
              In the second DFEH charge of discrimination, Sapronetti’s claim for
retaliation was also based on the allegation that since April 2009, he had “made
numerous attempts to transfer back into the unit, all refused based on budgetary
concerns,” which, he believed, “[were] pretextual.” In the third amended complaint,
which incorporated by reference the second DFEH charge, Sapronetti alleged the
County’s retaliatory acts continued beyond the date he was transferred to the juvenile
investigation unit in April 2009 because, since that time, he had repeatedly requested to
be transferred back to the adult supervision unit. Sapronetti contends each denial of his
request by the County constituted a continuing injury that extended the running of the
statute of limitations period. Sapronetti’s argument is without merit.
              The continuing violation doctrine “allows liability for unlawful employer
conduct occurring outside the statute of limitations if it is sufficiently connected to
unlawful conduct within the limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 802.) In Richards v. CH2M Hill, Inc., the California Supreme Court adopted
a three-prong test to determine whether the continuing violation doctrine applies to

                                              12
harassment claims: “[A]n employer’s persistent failure to reasonably accommodate a
disability, or to eliminate a hostile work environment targeting a disabled employee, is a
continuing violation if the employer’s unlawful actions are (1) sufficiently similar in
kind—recognizing, as this case illustrates, that similar kinds of unlawful employer
conduct, such as acts of harassment or failures to reasonably accommodate disability,
may take a number of different forms [citation]; (2) have occurred with reasonable
frequency; (3) and have not acquired a degree of permanence. [Citation.]” (Id. at
p. 823.) In Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059-1060, the
California Supreme Court made clear that the continuing violation doctrine may apply to
a claim for retaliation.
              Here, although the County’s consistent denials of Sapronetti’s requests to
be reassigned to the adult supervision unit were inherently similar in kind, the County
unequivocally denied that request in April 2009. No facts were alleged showing the
County’s decision was in any way fluid or temporary. To the contrary, the allegations of
the third amended complaint showed the County’s decision had acquired permanence.
              Although the third amended complaint alleged Sapronetti continued to
unsuccessfully seek transfer back to the adult supervision unit for years, the County’s
refusal to change its decision does not constitute continuing retaliation within the
meaning of the continuing violation doctrine so as to indefinitely toll the statute of
limitations. The continuing violation doctrine therefore does not apply to Sapronetti’s
claim that he was retaliated against from the date of his transfer in April 2009 through the
date of the County’s most recent denial of his request for a reversal of that decision.
Consequently, his retaliation claim based on those allegations is time-barred.
              Sapronetti also argues the continuing violation doctrine applies to his
retaliation claim because the third amended complaint alleged that, as recently as
August 23, 2012, the County suspended him for three days for misconduct. The
continuing violation doctrine does not apply to connect the alleged retaliatory acts in

                                             13
April 2009 to the August 2012 suspension because the suspension is unique in form—
completely unlike any other preceding retaliatory acts alleged by Sapronetti. The
suspension was also remote in time, occurring about three and a half years after the
County’s April 2009 final decision to transfer Sapronetti to the juvenile investigation
unit.
              In sum, the continuing violation doctrine does not save Sapronetti’s
retaliation claim, as alleged in the third amended complaint, from being time-barred. The
trial court did not err by sustaining the demurrer on that ground.


                                              III.

EVEN IF WE WERE TO CONSIDER THE AUGUST 2012 SUSPENSION INCIDENT AS THE SOLE
 BASIS FOR SAPRONETTI’S RETALIATION CLAIM, ALTHOUGH SUCH A BASIS WOULD BE
  TIMELY, THE THIRD AMENDED COMPLAINT FAILED TO STATE SUFFICIENT FACTS.
              A retaliation claim based solely on the August 2012 suspension would have
been timely when the third amended complaint was filed in August 2012; Sapronetti
identified the August 2012 suspension in his third DFEH charge of discrimination (also
filed in August 2012). We, therefore, next consider whether the third amended complaint
stated a claim for retaliation based solely on the August 2012 suspension, as viewed in
isolation from the earlier alleged adverse employment actions that, for the reasons we
discussed ante, are time-barred. We conclude the third amended complaint did not state
such a claim because it failed to allege sufficient facts.
              We begin by noting the third amended complaint never alleged, even in a
conclusory fashion, that the August 2012 suspension constituted an act of retaliation in
violation of the FEHA. Instead, the third amended complaint vaguely alleged that
Sapronetti was retaliated against “by denying and not affording him the equal
employment opportunities, benefits, terms and conditions of employment that must be
afforded to all employees irrespective of protesting and asserting their fundamental


                                              14
rights.” The third amended complaint alleged, “the adverse action, demotions and
transfers by the COUNTY [were] pretextual, designed to justify and build a paper trail to
eventually terminate Plaintiff simply due to his perceived physical disability and/or age.”
It further alleged, “[p]laintiff is informed and believes that the County’s refusal to
reinstate Plaintiff to his former position as a Probation Officer is a direct result of his
complaining about retaliation and hostile work environment harassment and their refusal
to reinstate Plaintiff to his former position, a continuing violation.”
              Even if we were to construe the third amended complaint as relying on the
August 2012 suspension as a basis for Sapronetti’s retaliation claim, it did not allege any
facts regarding that incident. The third amended complaint did not allege, for example,
any facts related to whether Sapronetti had engaged in any misconduct that led to the
suspension, or facts related to how the suspension was pretextual. It did not allege facts
showing how the suspension was inappropriate or unjustified, or that it constituted
disproportionately severe punishment as compared to the treatment of other employees in
similar circumstances.
              The third amended complaint incorporated by reference Sapronetti’s third
DFEH charge of discrimination, which included the following conclusory statement: “I
believe that the Order of Suspension sustaining the Notice of Proposed Disciplinary
Action, as well as the refusal to reverse my transfer/demotion, was retaliatory,
harassment, pretextual and motivated by my efforts to complain and report ongoing
discrimination, retaliation and harassment.” The third DFEH charge, however, like the
third amended complaint, did not contain any facts that showed Sapronetti’s suspension
was causally related to his engaging in protected activity.
              The trial court therefore did not err by sustaining the demurrer because the
third amended complaint failed to allege sufficient facts to state a cause of action for
retaliation in violation of the FEHA.



                                              15
                                             IV.

         WE REVERSE THE JUDGMENT AND REMAND WITH DIRECTIONS TO THE
         TRIAL COURT TO GRANT LEAVE TO SAPRONETTI TO FILE AN AMENDED
                   PLEADING OR A SUPPLEMENTAL COMPLAINT.
              If the trial court sustains a demurrer without leave to amend, we must
consider “whether there is a reasonable possibility that the defect can be cured by
amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Leave to amend is liberally
granted. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) “[L]eave
to amend is properly granted where resolution of the legal issues does not foreclose the
possibility that the plaintiff may supply necessary factual allegations.” (City of Stockton
v. Superior Court (2007) 42 Cal.4th 730, 747.) “The issue of leave to amend is always
open on appeal, even if not raised by the plaintiff.” (Id. at p. 746.)
              While an amended pleading relates to matters existing when the original
pleading was filed (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 967),
a plaintiff may move to file a supplemental complaint to allege “facts material to the case
occurring after the former complaint” (Code Civ. Proc., § 464, subd. (a)). “Ordinarily,
leave to file supplemental pleadings is granted even more readily than amended
pleadings. There is far less chance that granting leave will prejudice the opposing parties,
or delay the trial, because of the new rule that supplemental pleadings cannot allege
‘new’ causes of action or defenses.” (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2014) ¶ 6:819, p. 6-202 (rev. # 1, 2006).)
              Here, Sapronetti did not request leave to amend or file a supplemental
complaint in the trial court. Nevertheless, Sapronetti’s appellate briefs, combined with
his attorney’s comments at oral argument, strongly suggest the existence of as yet
unpleaded facts that might support a retaliation claim solely based on the August 2012
suspension. As it appears to us reasonably possible that Sapronetti could amend his third
amended complaint or file a supplemental complaint that states a valid cause of action for


                                              16
retaliation based solely on the August 2012 suspension, we reverse the judgment and
remand with directions that the trial court grant leave to Sapronetti to amend the third
amended complaint or file a supplemental complaint. We emphasize that any proposed
pleading by Sapronetti may not be based on a continuing violation doctrine. We express
no opinion as to whether Sapronetti’s amended or supplemental complaint will also be
                                       2
subject to demurrer or other motion.


                                           DISPOSITION
              Although the trial court properly sustained the demurrer to the third
amended complaint, the judgment is reversed and the matter is remanded with directions
that the trial court grant leave to Sapronetti to file an amended pleading or a supplemental
complaint consistent with the views and limitations expressed in this opinion. In the
interests of justice, all parties shall bear their own costs on appeal.




                                                    FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.



       2
         At oral argument, counsel for both parties referred to a separate lawsuit
involving the same parties and suggested it was based on similar facts and circumstances
as involved in this case. Neither the existence nor the substance of any such action is part
of our record.

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