Filed 10/18/13 Simon v. Health Net 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                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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



MARINE SIMON,                                                                  B240167

         Plaintiff and Appellant,                                             (Los Angeles County
                                                                              Super. Ct. No. BC455432)
         v.

HEALTH NET OF CALIFORNIA, INC., et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Rita Miller, Judge. Affirmed.
         Shegerian & Associates and Carney R. Shegerian for Plaintiff and Appellant.
         Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Jonathan Rosenberg
and Christine T. Hoeffner for Defendants and Respondents.

                                        _________________________
       Plaintiff and appellant Marine Simon (Simon) appeals a judgment following a
grant of summary judgment in favor of defendants and respondents Health Net of
California, Inc. (Health Net of California) and Health Net, Inc. (Health Net).
       The essential issue presented is whether Simon complied with the California
Fair Employment & Housing Act‟s (FEHA) exhaustion requirement before filing suit.
(Gov. Code, § 12900 et seq., § 12960.)1
       With respect to Health Net, we conclude the instant action is barred because
Simon failed to file an administrative complaint with the Department of Fair
Employment & Housing (DFEH) prior to filing suit. Simon‟s DFEH complaint, which
solely named Health Net of California, cannot be construed to extend to Health Net.
       As for Health Net of California, this action is barred because, as the trial court
found, Health Net of California was not Simon‟s employer at the time of the acts
alleged in the complaint.
       Therefore, the judgment is affirmed.
                FACTUAL AND PROCEDURAL BACKGROUND
       1. Pertinent facts.
       Simon initially worked for Health Net of California, from March 1, 2004 until
May 2005, as a commissions specialist.
       In May 2005, Simon became an employee of Health Net. Simon applied for,
and was hired as, a treasury analyst in Health Net‟s treasury department, with a start
date of May 2, 2005. Simon remained in the treasury department during the remainder
of her employment at Health Net. Kevin Low was Simon‟s supervisor, while Jonathan
Rollins headed the treasury department at Health Net.2



1
        All statutory references are to the Government Code, unless otherwise
specified.
2
        Simon‟s lawsuit also named Low and Rollins as defendants. However, on
December 22, 2011, prior to the hearing on the motion for summary judgment, Simon
filed a request to dismiss her action, with prejudice, as against Low and Rollins.
Therefore, no discussion is necessary with respect to the two individual defendants.
                                            2
       Simon became pregnant in March 2009. On November 3, 2009, Simon
submitted a Certification of Health Care Provider for Medical Leave form, requesting
a pregnancy/maternity leave of absence. Simon requested a leave of absence from
November 16, 2009 to January 27, 2010, and that she anticipated returning to work on
April 22, 2010. Simon planned to use accrued vacation time for the period between
January 28, 2010 and April 19, 2010.
       Simon‟s request for a leave of absence from November 16, 2009 to April 19,
2010 was approved.
       On February 23, 2010, Simon‟s doctor submitted a Physician‟s Supplementary
Certificate to Health Net, indicating that Simon had a condition known as
spondylolisthesis, which necessitated a disability related leave of absence from
February 23, 2010 to April 6, 2010. This condition caused Simon to experience pain
in her lower back, right arm and shoulder. Health Net approved the request for a
medical leave of absence from February 23, 2010 to April 6, 2010, as requested.
Health Net approved two subsequent requests to extend the medical leave of absence
through May 17, 2010, and then until June 18, 2010.
       In May or June of 2010, Simon‟s physician requested that her leave of absence
be extended to November 15, 2010.
       On June 14, 2010, Simon received a letter informing her that her time allowed
under Health Net‟s medical leave policy would expire on June 18, 2010. Following
Simon‟s receipt of said letter, she spoke by telephone to Christine Artinian, Senior
Absence Management Consultant of Absence and Disability Management. Artinian
offered Simon the alternate accommodation of working a reduced schedule or working
from her home, and informed Simon that she would be sending her an accommodation
packet.
       On June 29, 2010, Simon received a letter from Artinian notifying her that her
employment would be terminated effective July 7, 2010, because Simon would not
accept either of the accommodations offered by Health Net, and because Simon was


                                           3
unable to return to work and perform the essential functions of her job for at least
another five months.
       2. Simon’s DFEH complaints.
       On February 1, 2011, Simon filed three complaints of discrimination with the
DFEH against Health Net of California, Rollins and Low, alleging she had been
discriminated against and harassed based upon her medical condition and pregnancy,
that she had been retaliated against, and that her request for an accommodation had
been denied.
       On February 1, 2011, the DFEH issued Simon notices of case closure,
indicating her three complaints were being closed “because an immediate Right-To-
Sue Notice was requested.”
       3. Superior court proceedings.
               a. Pleadings.
       On February 17, 2011, Simon commenced this action against Health Net of
California, alleging various causes of action pursuant to the FEHA (§ 12900 et seq.)
and the California Family Rights Act (CFRA) (§ 12945.2), which is a part of the
FEHA. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 868.)3
       A first amended complaint followed on March 11, 2011.
       On April 11, 2011, Health Net of California served its answer to the first
amended complaint, asserting as affirmative defense No. 14 that “Plaintiff was not
employed by Health Net of California, Inc.” (Italics added.)4
       On October 11, 2011, Simon filed an amendment to the operative first amended
complaint, substituting “Health Net, Inc.” for Doe 1.


3
        The exhaustion requirement applies to CFRA claims as well as FEHA claims.
Because the CFRA is part of the FEHA, before bringing a cause of action under the
CFRA, the employee must exhaust administrative remedies provided by FEHA by
filing an administrative complaint with the DFEH, and obtaining a notice of right to
sue. (Mora v. Chem-Tronics, Inc. (1998) 16 F.Supp.2d 1192, 1201.)
4
        As of April 11, 2011, only nine months had elapsed since Simon‟s July 2010
termination by Health Net.
                                            4
              b. Motion for summary judgment.
       On November 23, 2011, Health Net and Health Net of California filed a motion
for summary judgment or alternatively, summary adjudication.
Health Net of California asserted, inter alia, it was entitled to summary adjudication as
to each of Simon‟s causes of action “because Health Net of California, Inc. was not
Simon‟s employer at any time relevant to this action.” It presented evidence that
Simon had not worked for Health Net of California since May 2005.
       Health Net, in turn, contended it was entitled to summary adjudication on the
ground, inter alia, that “Simon failed to exhaust her administrative remedies against
Health Net, Inc. by filing a Complaint of Discrimination against it with the DFEH.”
Health Net presented evidence that Simon‟s DFEH complaints had only named her
previous employer, Health Net of California, as well as Rollins and Low, and had
failed to mention Health Net in her DFEH complaints.
              c. Simon files an “amended” charge with the DFEH, purporting to
amend the closed administrative complaint to name Health Net as her employer.
       On December 15, 2011, Simon filed an “amended” complaint of discrimination
with the DFEH, purporting to amend the closed complaint against Health Net of
California to name “Health Net, Inc.” as her employer.
       On January 18, 2012, the DFEH issued a “Notice of Filing of Amended Closed
Discrimination Complaint,” indicating that Simon had filed an amended charge of
discrimination in a matter that had already been closed. The notice from the DFEH to
Simon‟s counsel advised: “You previously received a copy of your client‟s Notice of
Case Closure, which constitutes your client‟s right-to-sue notice.”
              d. Simon’s opposition papers.
       In resisting summary judgment, Simon contended the evidence was disputed as
to whether Health Net of California was also her employer. Simon cited Low‟s
testimony that while working in Health Net‟s treasury department, Simon handled
work for both Health Net and Health Net of California.


                                            5
       Simon also asserted she fully exhausted her administrative remedies as against
Health Net, in that she “filed her initial DFEH charges, naming Health Net of
California, Inc., then filed her suit within the statutorily allotted time. She
subsequently amended her DFEH charges to name Health Net, Inc. and amended her
civil complaint. Health Net, Inc., which shares corporate offices with Health Net of
California, Inc., and is a subsidiary of Health Net, Inc., was aware of the DFEH
charges when they were filed, . . . . Simon properly exhausted her claims against
Health Net, Inc.” (Italics omitted.)
       4. Trial court’s ruling.
       On February 8, 2012, the matter came on for hearing. The trial court granted
summary judgment in favor of both Health Net of California and Health Net, ruling in
pertinent part: “there is no triable issue of fact that defendant Health Net of California,
Inc. was not plaintiff‟s employer at the time of the acts alleged in the complaint, . . .
[and] plaintiff was aware of Health Net, Inc. and aware that Health Net, Inc. was her
employer at the time the original DFEH complaints and this action were filed,
precluding plaintiff from filing a new or amended DFEH complaint or action
following expiration of the one-year statute of limitations[.] . . . Because this resolves
the issue of liability of Health Net of California, Inc., [and] Health Net, Inc. . . . the
Court grants summary judgment. The Court does not address the remaining issues as
they are moot.”
                                     CONTENTIONS
       Simon contends the grant of summary judgment was error because she satisfied
the FEHA exhaustion requirement and defendants did not negate liability on Simon‟s
claims for discrimination, harassment, failure to accommodate and retaliation in
violation of the FEHA and the CFRA.




                                              6
                                     DISCUSSION
       1. Standard of appellate review.
       “We independently review an order granting summary judgment. [Citation.]
We determine whether the court‟s ruling was correct, not its reasons or rationale.
[Citation.] „In practical effect, we assume the role of a trial court and apply the same
rules and standards which govern a trial court‟s determination of a motion for
summary judgment.‟ [Citation.] We review for abuse of discretion any evidentiary
ruling made in connection with the motion. [Citation.]” (Shugart v. Regents of
University of California (2011) 199 Cal.App.4th 499, 504-505.)
       2. The state of the record with respect to Simon’s knowledge that her employer
was Health Net, Inc.
       Before addressing Simon‟s contentions on appeal, we summarize the
undisputed evidence as to the identity of Simon‟s employer.
       The W-2 wage and tax statements for the years 2005 through 2010 listed
Simon‟s employer as “Health Net, Inc.” Likewise, her paycheck stub indicated
“Health Net, Inc.” was her employer.
       On December 21, 2009, Simon filed a claim with the State of California
Employment Development Department for disability insurance benefits, signed under
penalty of perjury. In said claim, Simon listed her employer as “Health Net, Inc.”
       The June 29, 2010 letter from Artinian to Simon, terminating Simon‟s
employment effective July 7, 2010, was signed by Artinian as “Sr. Absence
Management Consultant” at “Health Net, Inc.”
       Following Simon‟s termination, she wrote a resume indicating she had
been employed by “Health Net, Inc.”
       Thus, the evidence established Simon was aware her employer was Health Net.
       Moreover, early on the litigation, after Simon had named Health Net of
California as her employer, Health Net of California advised Simon that it was not her
employer. As indicated, Health Net of California, in its answer to the first amended


                                            7
complaint, asserted “Plaintiff was not employed by Health Net of California, Inc.”
(Italics added.)
         We now turn to the issues raised on appeal.
         2. Trial court properly granted summary judgment in favor of Health Net of
California because Health Net of California was not Simon’s employer at the relevant
time.
               a. At the time of the conduct alleged in the complaint, Health Net of
California was not Simon’s employer.
         The operative first amended complaint alleged that after Simon became
pregnant in 2009, she suffered discrimination, harassment and retaliation.
         However, as set forth above, at the relevant time in 2009 and 2010, Health Net
of California was not Simon‟s employer. The undisputed evidence established that
commencing in May 2005, Simon was employed by Health Net, not Health Net of
California.
         Because Health Net of California was not Simon‟s employer at the time of the
acts alleged in the complaint, the trial court properly granted summary judgment in its
favor.
               b. No triable issue as to dual employment.
         In resisting summary judgment, Simon contended that during her employment
at Health Net, she continued to be employed by Health Net of California. Simon
relied on evidence that while working in Health Net‟s treasury department, she also
did work for Health Net of California.
         Simon relies on Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, which states:
“The possibility of dual employment is well recognized in the case law. „Where an
employer sends an employee to do work for another person, and both have the right to
exercise certain powers of control over the employee, that employee may be held to




                                            8
have two employers ‒ his original or “general” employer and a second, the “special”
employer.‟ ” (Id. at p. 174, italics added.)5
       As the trial court found, assuming arguendo the dual employment doctrine
applies in the FEHA context, Simon‟s reliance thereon was misplaced. To reiterate the
trial court‟s ruling: “Plaintiff did not provide any evidence that Health Net of
California, Inc. had the right to control plaintiff‟s activities. Plaintiff simply provided
evidence that she worked on projects for Health Net of California, Inc. while she was
working for Health Net, Inc. in its treasury department.”
       Thus, Simon did not support her legal argument with an evidentiary showing
that Health Net of California had a right to exercise control over her while she was
employed by Health Net. Merely because Health Net‟s treasury department
employees provided services to a subsidiary, Health Net of California, did not make
Health Net employees also employees of the subsidiary for whom they provided
services.
       In sum, Simon failed to raise a triable issue as to whether she had dual
employers.
              c. No merit to Simon’s argument that Health Net and Health Net of
       California constituted a single employer.
       As an alternative to her dual employer argument, Simon asserts Health Net and
Health Net of California constituted a single employer, consisting of the parent
company and the subsidiary. Simon failed to make this argument below and also
failed to present the necessary evidence to raise a triable issue in this regard.
       The pertinent principles are set forth in Laird v. Capital Cities/ABC, Inc. (1998)
68 Cal.App.4th 727 (Laird), which states: “Two corporations may be treated as a
single employer for purposes of liability under title VII of the federal 1964 Civil



5
       In Kowalski, the defendant argued it was the plaintiff‟s special employer at the
time of the injury and therefore the plaintiff should be limited to his workers‟
compensation remedy. (Kowalski, supra, 23 Cal.3d at p. 174.)
                                                9
Rights Act (42 U.S.C. § 2000e et seq.). [Citation.] Because [FEHA] has the same
nature and purpose as the federal law, California courts frequently look to federal case
law for guidance in interpreting the FEHA. [Citation.]
       “An employee who seeks to hold a parent corporation liable for the acts or
omissions of its subsidiary on the theory that the two corporate entities constitute a
single employer has a heavy burden to meet under both California and federal law.
Corporate entities are presumed to have separate existences, and the corporate form
will be disregarded only when the ends of justice require this result. [Citations.] In
particular, there is a strong presumption that a parent company is not the employer of
its subsidiary‟s employees. [Citation.]
       “The federal courts have developed a test, derived from federal labor case law,
to determine whether two corporations should be considered a single employer for title
VII purposes. Commonly called the „integrated enterprise‟ test, it has four factors:
interrelation of operations, common management, centralized control of labor
relations, and common ownership or financial control. [Fn. omitted.] [Citations.] . . . .
[¶] Under this test, common ownership or control alone is never enough to establish
parent liability. [Citation.] Although courts consider the four factors together, they
often deem centralized control of labor relations the most important. [Citations.]
„The critical question is, “[w]hat entity made the final decisions regarding employment
matters related to the person claiming discrimination?” [Citation.] A parent‟s broad
general policy statements regarding employment matters are not enough to satisfy this
prong. [Citation.] To satisfy the control prong, a parent must control the day-to-day
employment decisions of the subsidiary. [Citations.]‟ [Citation.]
       “To make a sufficient showing of „interrelation of operations‟ on summary
judgment, the plaintiff must do more than merely show that officers of the subsidiary
report to the parent corporation or that the parent benefits from the subsidiary‟s work.
Since these facts exist in every parent-subsidiary situation, such a showing would
create a triable issue of material fact in every case. What the plaintiff must show,
rather, is that the parent has exercised control „to a degree that exceeds the control

                                            10
normally exercised by a parent corporation.‟ [Citation.]” (Laird, supra,
68 Cal.App.4th at pp. 737-738, italics added.)
       In sum, Simon‟s “single employer” argument requires an evidentiary showing
with respect to numerous factors, including centralized control of labor relations,
which Simon failed to make below. Simon‟s attempt to expand the scope of the issues
at this juncture in order to raise a triable issue on appeal must be rejected.6
              d. Conclusion with respect to Health Net of California.
       The trial court properly granted summary judgment in favor of Health Net of
California because Health Net of California was not Simon‟s employer at the time of
the acts alleged in the complaint, i.e., 2009 and 2010.
       3. Trial court properly granted summary judgment in favor of Health Net,
Simon’s employer, due to Simon’s failure to comply with FEHA’s exhaustion
requirement as against Health Net.
              a. FEHA’s exhaustion requirement.
       In Rojo v. Kliger (1990) 52 Cal.3d 65, the Supreme Court explained the
exhaustion requirement and its rationale as follows: “[E]xhaustion of the FEHA
administrative remedy is a precondition to bringing a civil suit on a statutory cause of
action. In cases appropriate for administrative resolution, the exhaustion requirement
serves the important policy interests embodied in the act of resolving disputes and
eliminating unlawful employment practices by conciliation [citation], as well as the
salutory goals of easing the burden on the court system, maximizing the use of
administrative agency expertise and capability to order and monitor corrective
measures, and providing a more economical and less formal means of resolving the
dispute [citation]. By contrast, in those cases appropriate for judicial resolution, as
where the facts support a claim for compensatory or punitive damages, the exhaustion
requirement may nevertheless lead to settlement and serve to eliminate the unlawful


6
      For the same reasons, Simon‟s arguments relating to equitable tolling, waiver,
estoppel and tolling are not properly before this court.
                                             11
practice or mitigate damages and, in any event, is not an impediment to civil suit, in
that the Department‟s practice evidently is to issue a right-to-sue letter (§ 12965) at the
employee‟s request as a matter of course [citations].” (Id. at pp. 83-84.)
       Thus, to bring a civil action under FEHA, a person must first file a claim with
the DFEH within one year of the date upon which the alleged act of discrimination
occurred. (§ 12960, subd. (d); Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893,
895-896.)
              b. Simon’s failure of exhaustion with respect to Health Net.
       Health Net terminated Simon, effective July 7, 2010. Simon did not file a
DFEH complaint against Health Net within the one-year period. (§ 12960, subd. (d).)
       It was not until December 15, 2011, that Simon filed an “amended” charge with
the DFEH, purporting to amend the closed administrative complaint (against Health
Net of California) to name “Health Net, Inc.” as her employer. Shortly thereafter, the
DFEH issued a “Notice of Filing of Amended Closed Discrimination Complaint,”
indicating that Simon had filed an amended charge of discrimination in a matter that
had already been closed.
       In an attempt to overcome her failure to file a DFEH complaint against Health
Net within one year of her termination, Simon argues in essence that notice to Health
Net of California also constituted notice to Health Net, so as to satisfy the exhaustion
requirement. Simon emphasizes that Health Net and Health Net of California share
the same corporate address, are represented by the same attorneys, and have the same
agent for service of process.
       However, the issue is not whether Health Net had actual notice of Simon‟s
DFEH complaint against Health Net of California. As discussed, the FEHA mandates
that the administrative remedy be exhausted, as a condition precedent to bringing a
civil action against a defendant. While Simon seeks to characterize Health Net and
Health Net of California as a unitary entity, so that notice to one constituted notice to
both, Simon failed to make a showing below that Health Net and Health Net of
California are a single employer. (Laird, supra, 68 Cal.App.4th at pp. 737-738.)

                                            12
      In sum, with respect to Health Net, Simon failed to exhaust the FEHA‟s
administrative remedy in accordance with the statutory scheme. (§ 12960.)
Accordingly, the grant of summary judgment in favor of Health Net was proper.
                                  DISPOSITION
      The judgment is affirmed. The parties shall bear their respective costs
on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               KLEIN, P. J.


We concur:



             CROSKEY, J.




             ALDRICH, J.




                                         13
