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Hovanec v. Van Nuys Airport Restaurant Corp.12/3/1999
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard B. Wolfe, Judge. Affirmed.
INTRODUCTION
Plaintiff and appellant Linda Hovanec appeals from a judgment of dismissal entered after the trial court sustained a demurrer to her second amended complaint without leave to amend. The trial court sustained the demurrer on the ground that plaintiff had failed to file an administrative complaint with the Department of Fair Employment and Housing ("DFEH") in a timely fashion as a prerequisite to filing the present civil action. (See Gov. Code, § 12960.) We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleged in her second amended complaint that she had been employed by 94th Aero Squadron Restaurant ("defendant") beginning in April 1993. She informed defendant in September 1993 that she had previously worked at Black Angus Restaurant. During her employment at Black Angus, Mike Barnitz had been her manager; his actions led plaintiff to file a complaint of sexual discrimination against him. Subsequent to her employment by defendant, Barnitz became employed by defendant. Shortly thereafter, plaintiff was terminated for the stated reason that she had failed to inform defendant of her previous employment at Black Angus. Plaintiff was informed by letter dated March 31, 1995, that her employment was terminated effective December 29, 1994. Plaintiff alleged that because she was on a disability leave at the time, this notice was the first communication she received with respect to her termination. Plaintiff further alleged that the real reason she was terminated was in retaliation for previously filing a claim of sexual discrimination against Barnitz, in violation of section 12940. On March 11, 1996, plaintiff filed with DFEH a charge of discrimination on the basis of sex and retaliation. She received a notice of right to file a private lawsuit (§ 12965, subd. (b)) from DFEH on March 15, 1996.
Defendant demurred to the second amended complaint on the ground that plaintiff's administrative complaint, filed March 11, 1996, was not filed within one year of her termination on December 29, 1994. Defendant's counsel submitted a declaration requesting the court to take judicial notice of plaintiff's complaint filed with the DFEH on November 14, 1995, alleging discrimination based on her disability and DFEH's September 13, 1996, notice of right to file a private lawsuit.
At oral argument, the trial court took judicial notice as requested and sustained defendant's demurrer without leave to amend. Judgment in favor of defendant was entered and this timely appeal followed.
DISCUSSION
I.
The Fair Employment and Housing Act ("FEHA") provides that "It shall be an unlawful employment practice . . . [ ] . . . or any employer . . . to discharge . . . any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (f).) Under FEHA, an employee must exhaust the administrative remedy provided by the statute by filing a complaint with the DFEH and must obtain from the DFEH a notice of right to sue in order to be entitled to file a civil action based on violations of the FEHA. (§§ 12960, 12965, subd. (b).) The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.)
Section 12960 provides that "No complaint may be filed after the expiration of one year from the date upon wh
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