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Salim v. Hocking3/3/2003
Plaintiff and appellant Tracey Salim (Salim) brought this action alleging sexual harassment, retaliation, and wrongful termination in violation of public policy after her related federal action was dismissed without prejudice. Defendants and respondents Thomas Hocking (Hocking) and Hocking Denton Palmquist (HDP) (collectively respondents) demurred on the ground that the state action was untimely. The trial court sustained the demurrer with leave to amend. After respondents brought two successive demurrers on the same grounds, the trial court eventually sustained the demurrer without leave to amend and entered a judgment of dismissal.
On appeal, Salim contends (1) the state court action was timely because the statute of limitations was tolled during the pendency of the federal action pursuant to 28 United States Code section 1367(d), and (2) in any event, the state action was timely under the principles of California's equitable tolling doctrine. We conclude that the trial court erred in sustaining the demurrer because Salim has plead facts sufficient to establish equitable tolling, and will reverse.
FACTUAL AND PROCEDURAL HISTORIES
Salim is a former employee of HDP. Her employment was terminated on or about November 10, 1997. On December 29, 1997, Salim filed an administrative complaint of discrimination with the California Department of Fair Employment and Housing (DFEH) alleging Hocking sexually harassed her. On December 31, 1997, the DFEH sent Salim a "right-to-sue" notice. The notice stated:
"This letter is also your Right-To-Sue Notice. According to Government Code section 12965, subdivision (b), you may bring a civil action under the provisions of the Fair Employment and Housing Act .... The civil action must be filed within one year from the date of this letter. [ ] If you want a federal notice of Right-To-Sue, you must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier."
Salim did not file a complaint with the EEOC.
On November 2, 1998, Salim filed an action against respondents in the United States District Court for the Eastern District of California. Salim's federal complaint alleged violations of title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. ยง 2000e et seq.), as well as state law claims for violations of the Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. Salim alleged in the complaint she had complied with all prerequisites to jurisdiction in federal court under Title VII and California Government Code section 12940 because the DFEH had issued a right-to-sue notice and "California is a cross-filing state with the United States Equal Employment Opportunity Commission."
On December 11, 1998, respondents brought a motion to dismiss or, in the alternative, a motion for summary judgment, in which they sought to dismiss Salim's federal complaint in its entirety. On February 8, 1999, the district court held the hearing on respondents' motion and it took under submission. On February 19, 1999, the district court's memorandum opinion and order was filed, in which the district court granted respondents' motion for summary adjudication on Salim's Title VII claims based on Salim's failure to exhaust her federal administrative remedies. The district court declined to exercise supplemental jurisdiction over Salim's state law claims, and therefore dismissed them without prejudice.
On March 8, 1999, Salim filed the instant lawsuit in Kern Superior Court, alleging causes of ac
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