Appellant George Rickards sued respondent United Parcel Service, Inc. (UPS), for violating the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court granted UPS's summary judgment motion on the sole ground that Rickards did not file a verified complaint with the Department of Fair Employment and Housing (DFEH) and thus failed to satisfy this jurisdictional prerequisite for filing a lawsuit under FEHA (Gov. Code, § 12960, subd. (b)). In the published portion of this opinion, we conclude that the complaint Rickards's attorney filed through DFEH's online automated system was sufficient under FEHA. In the unpublished portion of the opinion, we affirm the summary judgment because Rickards failed to raise a triable issue of material fact on his FEHA claims against UPS. We also conclude in the unpublished portion of the opinion that the trial court did not abuse its discretion in awarding respondent Bob Esqueda $40,000 in attorney fees upon granting Esqueda's unopposed summary judgment motion and finding that Rickards's refusal to dismiss the age and disability harassment claims against Esqueda was unreasonable.
Summary judgment is proper when no triable issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law.
We review the trial court's decision on a summary judgment motion de novo, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) We consider all of the evidence the parties offered in connection with the motion, except that which the court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal.Rptr.2d 370, 28 P.3d 116].) If the trial court did not expressly rule on specific evidentiary objections, "it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal." (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [113 Cal.Rptr.3d 327, 235 P.3d 988].)
The trial court granted UPS's summary judgment motion on the ground that Rickards's failure to file a verified DFEH complaint was a jurisdictional defect. It is undisputed that Rickards's attorney filed a form complaint through DFEH's automated online system on Rickards's behalf and received an immediate right-to-sue letter. At his deposition, Rickards testified he did not know anything about the DFEH complaint. In declarations, Rickards and his attorney stated that the attorney was authorized to file the complaint on Rickards's behalf. The parties disagree whether the complaint was properly verified under the circumstances. We conclude that it was.
The question of who may verify a DFEH complaint was addressed in Blum, supra, 141 Cal.App.4th 418. The DFEH form complaint filed on the plaintiff's behalf in that case contained the following printed statement: "`I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct of my own knowledge except as to matters stated on my information and belief, and as to those matter[s] I believe it to be true.'" (Id. at p. 425.) The form contained a line for "`COMPLAINANT'S SIGNATURE.'" (Ibid.) The attorney subscribed his own name and wrote beneath the signature line, "`LAW OFFICES OF MARK WEIDMANN ON BEHALF OF BARRY BLUM.'" (Ibid.)
The Blum court reasoned that Government Code section 12960, subdivision (b) does not expressly require that the complainant personally verify the information in the complaint, nor does DFEH require complaints to be filed only on personal knowledge. (Blum, supra, 141 Cal.App.4th at pp. 422, 425.) It approved the practice of attorney verification of a DFEH complaint for a client, so long as the attorney signs the complaint with his or her own name, rather than the client's name. (Id. at p. 428.) The court cautioned attorneys "about verifying such complaints unless they believe the allegations made therein to be true and they are acting in good faith as they are subject to penalties for perjury if they sign their name to DFEH complaints." (Ibid.)
In 2008, DFEH announced its online automated system for issuing right-to-sue letters, "designed for complainants with private counsel who wish to proceed directly to court on employment discrimination, harassment and retaliation complaints."
With the exception of the introductory phrase, "[b]y submitting this complaint, I am declaring ...," the declaration on the electronically filed complaint in this case was the same as the one printed on the paper form used in Blum. But unlike the paper complaint in Blum, the online complaint did not have a line for "COMPLAINANT'S SIGNATURE."
In 2010, DFEH proposed regulations designed to replace its procedures of general application for processing discrimination complaints, known as "DFEH Directives." (Cal. Reg. Notice Register 2010, No. 8-Z, pp. 269-270.) The regulations became effective in 2011. Several of them make clear that an online verified complaint need not be signed. (Cal. Code Regs., tit. 2, §§ 10001, subd. (u) ["`Verified complaint' means a complaint submitted to the department with the complainant's oath or affidavit stating that to the best of his or her knowledge, all information contained in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true. To be `verified' a complaint filed with the department need not be signed; verification need only confirm the truth of the allegations submitted, including by submitting the allegations under penalty of perjury."], 10002, subd. (a)(9) ["complaints filed electronically need not be signed; complaints filed electronically shall state that by submitting the complaint, the complainant declares under penalty of perjury under the laws of the State of California that to the best of his or her knowledge, all information stated in the complaint is true and correct, except matters stated on information and belief, which the complainant declares he or she believes to be true"], 10005, subd. (d)(9) [same].)
The instructions on DFEH's automated system make clear that requests for an immediate right-to-sue letter are accepted from complainants who have decided to go directly to court without an investigation by DFEH, and such a decision is advisable only if the complainant has an attorney. The right-to-sue letter that can be immediately printed after inputting information into the automated system is accompanied by a notice to the complainant's attorney. Since the system is essentially intended to be used by complainants who have counsel, such complainants should not be penalized for retaining counsel. (Blum, supra, 141 Cal.App.4th at p. 428.)
The summary judgment in favor of UPS and the order awarding Esqueda attorney fees are affirmed. Esqueda is entitled to his costs on appeal. Rickards and UPS are to bear their own costs.
Willhite, J., and Manella, J., concurred.