BENKE, Acting P. J.
Plaintiff and Appellant George Gerber, Jr., appeals from the judgment after the court granted the summary judgment motions of defendants and respondents Sweetwater Union High School District (District) and Gary Gauger, Henry "John" Allshouse, Todd Torgerson, Mike Kelley, Vincent Andrilli, Fred Ferguson, Jr., Rip Courter and Jesus Gandara (collectively, individual defendants)
Gerber on appeal contends the court erred in granting the summary judgment motions because he presented admissible evidence to show there was actionable conduct by the District—namely his termination from employment—that occurred within one year of the date he filed his administrative complaint with the Department of Fair Employment and Housing (DFEH). (See Gov. Code, § 12960, subd. (d).) Gerber alternatively contends the court erred in granting such motions because he proffered sufficient admissible evidence to show one or more equitable exceptions applied to toll the applicable one-year limitations period.
Finally, Gerber contends the court erred when it granted the summary judgment motions of the individual defendants on his second cause of action for harassment and on his eighth cause of action for intentional infliction of emotional distress (IIED), which also named the District as a defendant.
As we explain, we independently conclude the court properly granted the motions for summary judgment in favor of the District and the individual defendants. Affirmed.
The District—a public entity school district—in 1990 hired Gerber as a "classified long[-]term substitute HVAC Mechanic" in the maintenance department. Gerber subsequently became a full-time District employee and worked as an HVAC mechanic. District employee defendant Henry "John" Allshouse served as Gerber's direct supervisor. Between 2001 and 2005, Gerber received favorable employment evaluations.
In early 2006 Gerber reported to Allshouse and both to the District's Hazmat and safety supervisor, defendant Mike Kelley and to the District's Hazmat technician, defendant Vince Andrelli, various safety issues he had discovered at the District. Gerber contended these reports were "not taken well" by his supervisors because they were already under pressure after an audit allegedly criticized the District's maintenance department. As a result of the audit, the District hired a new maintenance director, defendant Rip Courter.
Gerber further contended that in January, February and March 2006, per District policy, he reported to his supervisors the presence of asbestos at several repair sites within the District. In early March 2006, Gerber sought medical treatment for exposure to asbestos while making a repair at a District school. According to Gerber, Allshouse was "furious" with him for seeking medical attention regarding his alleged exposure to asbestos.
In mid-March 2006, Gerber filed a complaint with OSHA regarding the safety and asbestos issues he had encountered during his employment with the District. Gerber reported the District and its supervisors were retaliating against him for reporting these safety issues and as such, his work environment was becoming increasingly hostile. According to Gerber, the retaliation became worse as he continued to report ongoing safety violations within the District, including additional reports of asbestos, to supervisors Allshouse, Kelley and Courter.
Gerber was subsequently disciplined by the District as a result of what Gerber contended were false statements, including that the District previously had provided Gerber asbestos training when in fact he claimed he had not received such training. Gerber also contended his supervisors contrived "false issues and incidents to `paper' [his] file" and claimed these efforts were an abuse of their "power and authority" as they retaliated against him "for reporting health and safety issues he observed at the District."
In mid-April 2006, Gerber filed an administrative complaint with the DFEH alleging retaliation, harassment and discrimination by supervisors Courter, Allshouse and Kelley allegedly for his reporting of OSHA violations and for what he termed was a "mental disability." Gerber also sought a right-to-sue letter in connection with his administrative complaint. The DFEH issued notices of case closure in May 2006. Gerber, however, did not file suit on his 2006 administrative complaint.
Gerber contended that throughout the remainder of 2006, Courter, Allshouse and Kelley "escalated their efforts to retaliate against [him]," in response to his administrative complaint, his internal grievances against the District and his presentation of a letter to the District's superintendent complaining of the abuse of authority by his supervisors. Gerber in this letter complained his supervisors made up "`new rules'" to set him up for failure.
Gerber claimed Kelley struck him in mid-January 2007, after he reported the discovery of additional asbestos at a school within the District. Gerber reported this incident to the District and its new director of maintenance, Rick Carlton. According to Gerber, Carlton advised Gerber to file a police report after work. Subsequently, defendant Fred Ferguson, the District's director of classified personnel, gave Gerber notice he was being reassigned to work in a District warehouse shredding paper. Gerber claimed the warehouse had no phone or heat and the poor working conditions made him ill. Gerber subsequently submitted to Ferguson several unsafe working condition forms. Gerber went out on disability leave in early February 2007 for "work-related injuries."
While on leave, the District moved to terminate Gerber from employment because the District viewed Gerber's complaints and claimed stress as an excuse for his poor work performance. The District also claimed Gerber should be terminated for making false accusations against Courter, Allshouse and Kelley. Gerber in response claimed the District's efforts to terminate him was further evidence of its retaliation, harassment and discrimination against him for reporting ongoing safety issues within the District.
In March 2007, Gerber filed a tort claim against the District, Courter, Allshouse, Kelley and Ferguson. Gerber sought damages for Kelley's alleged assault and for the retaliation and harassment he claimed he continued to endure for reporting health and safety violations. In early May 2007, Gerber also filed a worker's compensation claim for injuries he received while working in the "deplorable" conditions at the District's warehouse.
In early May 2007, District Superintendent Jesus Gandara presented Gerber with a notice of proposed dismissal in which defendant Gandara accused Gerber of "lying," stated Gerber could not be "trusted" to work in the District again and found Gerber's actions to be "`dishonest, immoral, and illegal . . . and threatening." Gerber denied these accusations.
In early August 2007, the District placed Gerber on unpaid administrative leave pending final action by the District school board. In late August 2007, the District school board rejected the District's recommendation to terminate Gerber and instead suspended him for 20 days without pay. Gerber protested the suspension and claimed it was premised on false information.
After returning to work, Gerber contended the District provided him "constantly changing directives and work assignments" and the District held him to "different terms and conditions of employment than other maintenance department employees." As discussed post, the hearing officer that presided over Gerber's multi-day hearing in 2009 found that Gerber made a number of reports regarding safety suggestions/unsafe conditions within the District, many having to do with asbestos.
However, the hearing officer also found that the District "promptly responded and remedied, where called for, the safety concerns" Gerber raised; that on more than one occasion Gerber "intentionally set the thermostats" at San Ysidro Adult School (SYA) to "extreme temperatures and locked out controls in several classrooms, thereby endangering the health and wellbeing of students, faculty and staff at that location"; that from late June 2008 through December 2008, Gerber "repeatedly remained in the maintenance yard more than 15 minutes beyond the start of his shift with no legitimate work-related purpose in defiance of repeated oral and written directives"; that Gerber "repeatedly returned to the District maintenance yard during his lunch break in direct defiance of repeated oral and written directives"; that on October 1 and October 2, 2008, Gerber without justification refused the "reasonable request of his supervisor . . . to sign for keys so that he could commence his work"; that in mid-October 2008, Gerber "refused to follow the reasonable directive of his supervisor to order HVAC parts through John Allhouse"; that in early November 2008, Gerber was disrespectful to his supervisor when he refused to answer questions from his supervisor and when he continued to make personal copies with District supplies and equipment; that after November 5, 2008, Gerber "failed to properly detail and account for his time on his time sheets as directed by his supervisor [based on] the sample time sheet given to him"; and that Gerber "failed to meet the expectations of his supervisor and the District's [r]isk [m]anager to resume working a full 8-hour shift and took unauthorized `work comp' leave on at least six days between November 18 and December 4, 2008."
In April 2009, the District placed Gerber on administrative leave with pay pending termination charges that as noted, were the subject of a multi-day hearing as required by District policy and regulations and by the Education Code. The charges against Gerber brought by the District included: "1. inefficiency, inattention to and dereliction of duty and failure to perform assigned duties in a satisfactory manner; 2. insubordination and failure to observe reasonable rules of school District superiors; 3. persistent discourteous, abrasive, and offensive conduct toward the public, fellow employees, and students, or other willful failure of good conduct tending to injure the public service; 4. insolence and disrespect toward his supervisor; and 5. improper use and abuse of sick leave and other leave privileges."
As noted by the hearing officer, Gerber in response maintained the District sought to terminate him as retaliation for his "`whistleblower' reports concerning asbestos." The hearing officer ruled as follows on this point in what the hearing officer found was the "overarching allegation" that was "oft-repeated" by Gerber and his union representative throughout the multi-day proceeding:
As noted ante, the hearing officer found the District had more than met its burden to prove just cause to discharge Gerber from employment. The District terminated Gerber from employment in late January 2010.
Gerber did not challenge by writ of mandate the hearing officer's report, findings and recommendation to terminate him from employment with the District. (See Cal. Code Civ. Proc., § 1094.5.) Instead, on June 28, 2010, Gerber filed a claim with the District for wrongful termination under the Government Code, in which he sought damages in excess of $100,000. Gerber alleged in his claim that District employees "Gary Gauger, John Allhouse and Todd Torgerson have for the past [four] years harassed and retaliated against [him] for `whistle blowing' re[garding] asbestos, [and] health [and] safety issues."
Gerber also filed on July 1, 2010,
Gerber sued the District and the eight individual District employees/former employees in mid-December 2010. As relevant here,
The defendants filed three motions for summary judgment/adjudication. The District filed its own motion, and Gauger, Allshouse, Torgerson, Kelley and Gandara, on the one hand, and Courter, Andrilli and Ferguson on the other hand, also each filed a separate motion for summary judgment/adjudication.
After hearing oral argument and taking the matter under submission, the court granted each of the defendants' motions for summary judgment. With regard to the FEHA-based claims, the court found that Gerber filed his complaint after the expiration of the one-year limitations period for filing an administrative claim with the DFEH (see Gov. Code, § 12960, subd. (d)). The court rejected Gerber's contention the one-year limitations period was tolled under the equitable-tolling and continuing violations doctrines.
Moreover, the court alternatively found that Gerber did not raise "a triable issue of retaliation. Assuming that plaintiff has established a prima facie case of retaliation, defendant must provide evidence of a legitimate, non-retaliatory explanation for its acts. [Citation.] The hearing officer's report recommending plaintiff be discharged meets defendant's burden. [Exhibit J.] The hearing officer considered and rejected plaintiff's claims that he was being harassed because of his whistleblowing activities. [The hearing officer] describes how plaintiff intentionally sabotaged the thermostats at a school [i.e., SYA] so they were set uncomfortably high and were locked out so they could only be adjusted by a technician. Plaintiff's separate statement fails to set forth any facts to refute the findings."
With regard to Gerber's eighth cause of action for IIED, the court found his government claim was untimely for the same reasons it found his FEHA-based claims untimely. Finally, with regard to the individual defendants, the court applied the same reasoning it used to grant the motion of the District to grant their similar motions for summary judgment.
Gerber contends the court erred when it granted summary judgment on his FEHA-based claims. Specifically, he contends that because he was terminated from employment in late January 2010 following the multi-day administrative hearing, the court erred when it found there was no evidence of retaliation, harassment and/or discrimination within the one-year limitations period applicable to administrative complaints filed with the DFEH. He alternatively contends the court erred when it failed to apply one or more of the equitable exceptions to toll the applicable limitations period.
Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.) If the defendant makes such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of one or more material facts as to that cause of action or as to a defense to the cause of action. (Aguilar, at pp. 850-851.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action. . . ." (Id. at p. 853.)
On appeal from the entry of summary judgment, "[w]e review the record and the determination of the trial court de novo." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "While we must liberally construe plaintiff's showing and resolve any doubts about the propriety of a summary judgment in plaintiff's favor, plaintiff's evidence remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact `if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.'" (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; see Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 ["responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact"].)
Moreover, "`[w]hile resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.'" (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 419 (Deveny), quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
For employment discrimination claims such as in the instant case, the plaintiff has the initial burden of establishing a prima facie case of discrimination. The burden of going forward with the evidence then shifts to the defendant to produce evidence of a legitimate nondiscriminatory reason for the action taken against the plaintiff. The burden of going forward with the evidence then shifts back to the plaintiff to produce evidence showing the employer's reason is false and a pretext for unlawful discrimination. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-803; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-356.) On a motion for summary judgment, California applies "the burden-shifting analysis of McDonnell Douglas Corp. v. Green[, supra,] 411 U.S. 792" to a claim for retaliation. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109). This "burden-shifting analysis" therefore applies to Gerber's FEHA-based claims.
However, a defendant employer's motion for summary judgment "slightly modifies the order of these showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing [the] evidence while strictly scrutinizing defendant's." (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 (Kelly).)
California law prohibits sexual harassment in the workplace. (Gov. Code, § 12940, subd. (j)(1).) "The FEHA `declares certain kinds of discrimination and harassment in the workplace to be "unlawful employment practice[s]."'" (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471.) Generally, absent certain exceptions not applicable here, an administrative complaint must be filed within one year from the date of the alleged unlawful practice. (See Gov. Code, § 12960, subd. (d) ["No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred."].)
In our independent review of the record and the operative complaint, we conclude the District satisfied its initial burden to show there is a complete defense to Gerber's FEHA-based claims, namely his first through fifth causes of action. (See Aguilar, supra, 25 Cal.4th at pp. 839-840.)
The undisputed evidence (see Deveny, supra, 139 Cal.App.4th at p. 419) here shows that after the District placed Gerber on paid administrative leave in April 2009, the only contact between Gerber, on the one hand, and the District and its employees, on the other hand, was to attend the multi-day hearing held between May and October 2009. The undisputed evidence further shows that Gerber did not file his DFEH complaint until late June/early July 2010, or more than a year after any alleged unlawful employment practice. Because statements made in the course of an official hearing are privileged (see e.g., Civ. Code, § 47, subds. (b) & (c)), and thus cannot form the basis of any alleged unlawful employment practice under the FEHA, and because Gerber waited more than a year from the date of any alleged unlawful employment practice by the District to file his administrative complaint, we conclude the District satisfied its burden to show a complete defense to Gerber's FEHA-based claims. The burden then switched to Gerber to proffer admissible evidence raising a triable issue, which would permit a trier of fact to find by a preponderance that the District engaged in an alleged unlawful employment practice within one year from the date he filed his DFEH complaint.
As noted, Gerber contends he satisfied his burden to make this showing because the trial court "completely ignore[d] the most critical piece of undisputed evidence in this case—[his] termination," which occurred in late January 2010 or within a year of when he filed his DFEH complaint.
However, we conclude the termination "evidence" proffered by Gerber—even when viewed in the light most favorable to him (see Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), is insufficient to satisfy his burden to establish a triable issue of material fact in connection with his FEHA-based claims. For one thing, merely because a person is terminated from employment does not ipso facto mean the person was subject to an unlawful employment practice, as is clearly demonstrated here.
Indeed, the hearing officer in the instant case issued a 34-page report, after a multi-day hearing where numerous witnesses testified. As noted, that report and the subject matter of that proceeding involved the same allegations that also formed the basis of Gerber's June/July 2010 DFEH complaint—retaliation, harassment and discrimination allegedly for being a whistleblower in reporting asbestos and other safety issues. As also noted, the hearing officer found these allegations by Gerber to be baseless and recommended, based on the findings in the report, that Gerber be terminated for a variety of reasons including because: he was inefficient and inattentive to his duties; he failed to perform his duties satisfactorily; he was insubordinate
We conclude the hearing officer's findings, and the recommendation to terminate Gerber based on those findings—which Gerber did not challenge by writ of mandate (see Cal. Code Civ. Proc., § 1094.5), preclude as a matter of law a showing of a triable issue of material fact that Gerber was terminated based on some unlawful employment action.
That does not end the analysis, however. Gerber alternatively contends the one-year limitations period applicable to filing an administrative claim with the DFEH was tolled based on equitable principles. We now turn to that issue.
"The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine. [Citations.] It is `designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff's claims—has been satisfied.' [Citation.] Where applicable, the doctrine will `suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.'" (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).)
"Broadly speaking, the doctrine applies `"[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one."' [Citations.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason. [Citation.]
"Its application in such circumstances serves `the need for harmony and the avoidance of chaos in the administration of justice.' [Citation.] Tolling eases the pressure on parties `concurrently to seek redress in two separate forums with the attendant danger of conflicting decisions on the same issue.' [Citations.] By alleviating the fear of claim forfeiture, it affords grievants the opportunity to pursue informal remedies, a process we have repeatedly encouraged. [Citations.] The tolling doctrine does so without compromising defendants' significant `interest in being promptly apprised of claims against them in order that they may gather and preserve evidence' because that notice interest is satisfied by the filing of the first proceeding that gives rise to tolling. [Citations.] Lastly, tolling benefits the court system by reducing the costs associated with a duplicative filing requirement, in many instances rendering later court proceedings either easier and cheaper to resolve or wholly unnecessary." (McDonald, supra, 45 Cal.4th at p 100.)
Gerber contends the court erred when it refused to extend the one-year limitations period for filing an administrative complaint with the DFEH based on the equitable tolling doctrine. Specifically, Gerber contends this doctrine applies because he was involved in administrative proceedings during the limitations period under Government Code section 12960, subdivision (d), including the termination proceeding brought by the District and a separate workers' compensation proceeding he filed against the District for injuries he asserts arose from the retaliation he endured at the proverbial hands of the District and its employees. We reject this contention.
We independently conclude the equitable tolling doctrine does not apply in connection with the termination proceeding that took place between May and October 2009, inasmuch as that proceeding was initiated by the District and not by Gerber. Thus, it was not a proceeding where, for example, Gerber was seeking to exhaust his administrative remedies or where there was concern of "`conflicting decisions on the same issue'" if he was simultaneously required to pursue his administrative complaint against the District. (See McDonald, supra, 45 Cal.4th at p. 100.)
With regard to the workers' compensation claim, we note Gerber did not raise this contention or proffer any evidence to support it in his opposition to the motions for summary judgment, despite the fact his renewed request for judicial notice to this court shows the workers' compensation documents were in existence in 2008 and at least one of them was prepared by Gerber and/or his legal counsel. As such, we conclude no exceptional circumstances exist for us to consider this "evidence" and for this reason alone, we deny his contention that his workers' compensation claim equitably tolled the one-year limitations period applicable to his administrative complaint. (See e.g., Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [noting absent exceptional circumstances, "[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court," and thus noting "`when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.'"])
In any event, we reject on the merits Gerber's contention that his pursuit of a workers' compensation claim against the District and its insurer equitably tolled the limitations period for filing his separate administrative claim for retaliation, harassment and discrimination against the District and its employees/former employees. We conclude the two claims are "not alternative remedies for the same harm," but rather "are different remedies for different harms." (See Aeroject Gen. Corp. v. Superior Court (1986) 177 Cal.App.3d 950, 956 [refusing to apply the equitable tolling doctrine to fraudulent concealment claim for aggravation of an injury brought after the plaintiff filed a workers' compensation claim based on that injury].)
The instant case is thus unlike the facts of McDonald, where our Supreme Court held that the equitable tolling doctrine applied to render timely the plaintiff's complaint for racial discrimination under the FEHA when the plaintiff previously filed and pursued a complaint involving the same conduct by invoking a community college's internal grievance procedures that included, among other protections, the right to appeal to a local board of trustees and even to the chancellor's office. (McDonald, supra, 45 Cal.4th at p. 97; see also Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 929 [noting a workers' compensation claim pursued by the plaintiff firefighter tolled the limitations period for a disability retirement claim because both claims were based on the same disabling injury].)
Because a workers' compensation claim is not a prerequisite, is in no way similar, or is required for exhaustion purposes, to the filing of an administrative claim with the DFEH, we conclude as a matter of law the equitable tolling doctrine does not apply on this basis here.
"There are two main branches" to the continuing-wrong accrual principles, to wit: "the continuing violation doctrine and the theory of continuous accrual." (See Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197 (Aryeh).) "The continuing violation doctrine serves a number of equitable purposes. Some injuries are the product of a series of small harms, any one of which may not be actionable on its own. [Citation.] Those injured in such a fashion should not be handicapped by the inability to identify with certainty when harm has occurred or has risen to a level sufficient to warrant action. [Citations.] Moreover, from a court-efficiency perspective, it is unwise to impose a limitations regime that would require parties to run to court in response to every slight, without first attempting to resolve matters through extrajudicial means, out of fear that delay would result in a time-barred action. [Citations.] Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period." (Id. at pp. 1197-1198.)
We conclude the continuing violation doctrine does not apply to toll the one-year limitations period for filing an administrative complaint with the DFEH. The record here shows that Gerber was placed on administrative leave in April 2009. Significantly, it further shows there were no additional acts or series of acts by the District and/or its employees after April 2009 (excluding from consideration, as noted ante, the administrative hearing itself and Gerber's resulting termination, which was based on just cause). As such, the continuing violation doctrine offers no relief to Gerber, who filed his DFEH administrative claim in late June/early July 2010, or more than a year after any potential unlawful employment practice by the District and/or its employees may have occurred.
For the same reason, we also conclude the theory of continuous accrual (raised by Gerber for the first time on appeal) does not apply here. "Generally speaking, continuous accrual applies whenever there is a continuing or recurring obligation: `When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.' [Citation.] Because each new breach of such an obligation provides all the elements of a claim—wrongdoing, harm, and causation [citation]—each may be treated as an independently actionable wrong with its own time limit for recovery. [¶] However, unlike the continuing violation doctrine, which renders an entire course of conduct actionable, the theory of continuous accrual supports recovery only for damages arising from those breaches falling within the limitations period." (Aryeh, supra, 55 Cal.4th at p. 1199.)
Because there were no additional unlawful employment practices/acts by the District and/or its employees after April 2009 and because Gerber filed his administrative claim more than a year after the cessation of such practices/acts, we conclude the continuous accrual doctrine also does not apply to toll the applicable statute of limitations set forth in section 12960, subdivision (d) of the Government Code. We thus further independently conclude the trial court properly granted summary judgment on Gerber's FEHA-based claims.
Gerber also contends the trial court erred when it found his government tort claim against the district was untimely.
"The Government Claims Act (§ 810 et seq.) `establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. ([Gov. Code,] § 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. ([Gov. Code,] § 945.4.)' (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) `[T]he claims presentation requirement applies to all forms of monetary demands, regardless of the theory of the action. . . .' [Citation.] `The policy underlying the claims presentation requirements is to afford prompt notice to public entities. This permits early investigation and evaluation of the claim and informed fiscal planning in light of prospective liabilities.' (Ibid.)
"Claims for personal injury must be presented not later than six months after the accrual of the cause of action. . . . ([Gov. Code,] § 911.2, subd. (a).) Timely claim presentation is not merely a procedural requirement, but is a condition precedent to the claimant's ability to maintain an action against the public entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) `Only after the public entity's board has acted upon or is deemed to have rejected the claim may the injured person bring a lawsuit alleging a cause of action in tort against the public entity.' (Ibid.)
"The failure to timely present a claim to the public entity bars the claimant from filing a lawsuit against that public entity. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) Moreover, because the purpose of the claim is not `to prevent surprise [but rather] is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation [citations,] . . . [i]t is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel.' (Id. at p. 455.)" (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591-1592.)
Here, we conclude Gerber's IIED claim accrued at the latest in April 2009 when he was placed on administrative leave by the District. As we already have noted, after April 2009 the undisputed evidence shows Gerber had no further contact (other than in the administrative hearing) with the District and/or its employees. As such, any conduct by the District and/or its employees that potentially would constitute "extreme and outrageous" behavior occurred at the latest in April 2009.
We affirm the judgment in favor of the District and the individual defendants/employees/former employees of the District based on the grant of their summary judgment motions. The defendants are awarded their costs of appeal.
NARES, J. and O'ROURKE, J., concurs.
