Sullivan v. Santa Ana Unified School District

“An employee who wants to bring an action under FEHA must exhaust the administrative remedy provided by the statute by filing a complaint with the Civil Rights Department and obtaining from the Department a notice

of right to sue. [Citations.] “ ‘ “The timely filing of an administrative complaint” before the [Department] “is a prerequisite to bringing a civil action for damages.” ’ [Citations.]” (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 694.) “Effective January 1, 2020 the Legislature amended section 12960 to change this deadline to three years, . . . .” (Ibid.) “Under the ’continuing violation’ doctrine, however, ‘an employer is liable for actions that take place outside the limitations period of these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.’ [Citation.]

The continuing violation doctrine requires proof that ‘(1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.’ [Citations.]” (Id. at pp. 694-695.) “ ‘Permanence’ means that an employer’s actions and statements make clear to a reasonable employee that any further informal efforts to end the discrimination will be futile. [Citation.]” (Id. at p. 695.) “Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA by . . . engaging in [] harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run . . . either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be vain.

Accordingly, an employer who is confronted with an employee seeking . . . relief from . . . harassment may assert control over its legal relationship with the employee either by accommodating the employee’s requests, or by making clear ot the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations.’ [Citation.]” (Hoglund v. Sierra Nevada Memorial-Miners Hospital (2024) 102 Cal.App.5th 56, 71- 72.) Whether the employer had made clear that any further efforts to resolve the harassment and discrimination would be futile is based primarily on the employer’s actions and statements, not the employee’s subjective belief. (Id. at p. 72.)

With regards to exhaustion of administrative remedies, the SAC alleges: “On or about October 3, 2023, PLAINTIFF filed complaint(s) of discrimination and retaliation with the California Department of Fair Employment and Housing ("DFEH"). The DFEH complaint(s) alleged PLAINTIFF was discriminated based upon gender-based harassment which created a hostile or abusive work environment and retaliation.” (SAC, ¶

31.) The DFEH issued a Notice of Right to Sue on that same date. (SAC, ¶ 32.)

As to alleged wrongful acts by Defendants, the SAC alleges that on or about June 2019, Plaintiff was hired as a Coordinator of Special Education/Mental Health by SAUSD; that at all times, Plaintiff was under the supervision of Helguera; and that “[t]hroughout Plaintiff’s employment, PLAINTIFF encountered from HELGUERA a continuing course of anonymous complaints, threatening statements which were severe or pervasive, creating a hostile or abusive work environment based on PLAINTIFF’S gender.” (SAC, ¶¶ 12-13, 15.)

It is alleged that in October 2019, Plaintiff reported Helguera’s gender harassment and discriminatory behavior to SASSA; that on December 19, 2019, Plaintiff met with SAUSD Administrators to discuss Helguera’s actions towards Plaintiff and shared Helguera’s gender harassment and discriminatory behavior; that following this December 19, 2019 meeting, Helguera threatened Plaintiff and ostracized Plaintiff; that on February 28, 2020, Helguera called Plaintiff into a meeting and told Plaintiff that they were taking her name to the board as a recommendation for a non-reelect year and that Helguera would recommend that Plaintiff resign; that on March 2, 2020, Plaintiff was brought to Helguera’s office where Helguera against stated that Plaintiff should resign as soon as possible; that on March 4, 2020, Plaintiff met with the Director of Human Resources and provided details regarding Plaintiff’s concerns about being pressured to resign and the hostile work environment; and that on March 11, 2020, Plaintiff received correspondence from SAUSD confirming that she would not be rehired for the 2020-2021 school year, and informing Plaintiff that her last day of employment was scheduled for June 30, 2020. (SAC, ¶¶ 16-17, 19, 21-24.)

The SAC alleges that on May 22, 2020, Plaintiff submitted a formal complaint to SAUSD Human Resources alleging gender harassment and toxic work environment, that on a date unknown in 2020-2021, SAUSD’s risk management assigned Steve Blackwood to conduct an investigative interview relating ot the allegations against Helguera; that on or about June 2021, Plaintiff was interviewed by Blackwood regarding her allegations related to Helguera; that on October 4, 2021, SAUSD was reminded of outstanding issues related to Plaintiff’s SAUSD employment; and that on November 9, 2021, Richard Valero, Alliance of Schools for Cooperative Insurance Program for SAUSD acknowledged the “Claim for Damages” that had been filed with the District citing November 2, 2021 as the date of incident, and “stated that SAUSD would be ‘conducting an investigation into the facts and

circumstances surrounding the claim.’ ” (SAC, ¶¶ 26-28, 30.)

Here, based on the allegations in the SAC, and assuming their truth, conduct by Helguera constituting gender discrimination, harassment, and retaliation against Plaintiff occurred culminated on June 30, 2020, Plaintiff’s last day of employment. Plaintiff’s complaint filed on October 3, 2023 with the DFEH for discrimination based on gender harassment would not have been timely filed within three years from the date upon which the unlawful practice occurred, i.e., end of Plaintiff’s employment on June 30, 2020. The SAC does not allege facts supporting a continuing violation of discriminatory conduct based on gender or retaliation that is sufficiently similar in kind and that occurred with sufficient frequency within three years prior to October 3, 2023, nor does it appear that Plaintiff could do so as her last day of employment was June 30, 2020.

The demurrer based on the failure to exhaust administrative remedies is SUSTAINED, without leave to amend.

In light of the Court’s ruling, the Court need not address Defendants’ argument that the first cause of action fails to state facts sufficient to state a claim.

Motion to Strike Portions of Second Amended Complaint Defendants move for an order striking claims for "substantial losses in past and future wages," "bonuses," and "employment benefits." (SAC ¶¶ 42, 55.)

Contrary to what is stated in the notice of motion, Defendants do not move to strike punitive damages allegations, or other allegations beyond the scope of Plaintiffs’ FEHA Complaint.

In light of the Court’s ruling on the demurrer as to the failure to exhaust administrative remedies, the motion to strike is MOOT.

The Case Management Conference is continued to August 13, 2026 at 1:30 p.m.

Defendants to give notice. 106 Potter vs. Brookdale Irvine, 22-01278030 Defendant, Brookdale Senior Living, Inc., moves for summary judgment, or in the alternative, summary adjudication of the four causes of action asserted in the operative Second Amended Complaint of Plaintiffs, Betty Gregory, in and through her Successor-In-Interest, Kimberly Potter and Kimberly Potter.

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81- day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c(a)(2).)

On February 26, 2026, the Court granted Plaintiffs’ counsel’s motions to be relieved as counsel of record for Kimberly Potter, indicating that the “withdrawal is only effective upon the filing of a proof of service of this [signed] order on Plaintiff.” (ROA 413.)

The Court’s file reflects that proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026. (ROA 463, 465.)

After the Court granted Plaintiff’s counsel motion to be relived as counsel on February 2026, but before proof of service of the order granting the motion to be relieved as counsel of record was filed on April 6, 2026, Defendant, Brookdale Living filed and served the instant motion for summary judgment, or in the alternative, summary adjudication on March 25, 2026.

The proofs of service attached to the moving papers indicate that the moving papers were served on Kimberly Potter on March 25, 2026, by electronic service only.

California Rules of Court, rule 2.253(b)(2) provides that “[s]elf-represented parties or other self-represented persons are exempt from any mandatory electronic filing and service requirements adopted by courts under this rule and Code of Civil Procedure section 1010.6.” Additionally, “[i]n civil cases involving both represented and self-represented parties or other persons, represented parties or other persons may be required to file and serve documents electronically; however, in these cases, each self-represented party or other person is to file, serve, and be served with documents by nonelectronic means unless the self-represented party or other person affirmatively agrees otherwise.” (California Rules of Court, rule 2.253(b)(3).)

“An unrepresented party may consent to receive electronic service.” (Code Civ. Proc. §1010.6(c)(2).)