MARSHALL TUBBS vs. COUNTY OF SOLANO GENERAL SERVICES DEPARTMENT; ET AL.

Plaintiff’s opposition declaration attached a copy of a right-to-sue letter from the CRD, dated March 19, 2025, which confirmed that the charge Plaintiff had filed with the EEOC “is being dual filed with the [CRD] by the [EEOC]”, with EEOC responsible for investigating, although CRD was immediately confirming Plaintiff’s right to file a private lawsuit in state court, “within one year from the date of this notice.”

Plaintiff’s complaint, filed on October 10, 2025, was filed within seven months of the date of the CRD right-to-sue letter.

While Plaintiff’s complaint does not contain any allegations about the CRD’s right-to-sue letter, it can easily be amended to do so.

The court therefore sustains the demurrer by COUNTY OF SOLANO GENERAL SERVICES (“GS”) to causes of action 1-4 of Plaintiff’s complaint, all FEHA-based causes of action, with 30 days leave to file a first amended complaint to allege the CRD right-to-sue letter and reallege these four causes of action.

As to causes of action five through seven (5th cause of action for constructive discharge in violation of public policy, 6th cause of action for intentional infliction of emotional distress, and 7th cause of action for negligent supervision, hiring and retention), exhaustion of or excuse from compliance with a different administrative remedy must be alleged.

For any claim for “money or damages” against a public entity, before filing the complaint, the plaintiff must first timely present a government claim to the entity, and wait for it to be rejected or deemed rejected.

Government Code sections 905 and 945.4 . . . require, as a condition precedent to bringing suit against a local public entity, the timely presentation to the defendant of a written claim and the rejection of the claim in whole or in part . . .

Where compliance with the Tort Claims Act is required, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. (Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355 [138 Cal.Rptr. 20]; San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 559 [127 Cal.Rptr. 856]; see Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 5.77, p. 569, hereafter cited as Van Alstyne.) Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865.

FEHA causes of action are exempt from the claims presentation requirement, as they are subject to their own pre-filing notice and investigation process.

[T]he purposes and procedures of the FEHA demonstrate a legislative intent that actions against governmental entities brought under the FEHA are to be excepted from the general requirements of the Tort Claims Act. The FEHA constitutes a comprehensive scheme for combating employment discrimination, with specific time limitations related to the remedies provided. Id. at 865.

The pre-filing notice and investigation process for FEHA claims includes the option that DFEH/CRD pursue administrative remedies on behalf of the claimant, although it often instead simply issues a right-to-sue letter to the claimant.

In order to bring an action under FEHA, an individual is required to exhaust his administrative remedies under the act. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 214, 218; Hollon v. Pierce (1967) 257 Cal.App.2d 468, 475-476 [64 Cal.Rptr. 808].) It was the intent of the Legislature to provide an administrative forum for eliminating unlawful employment practices "by conference, conciliation, and persuasion." (Gov. Code, § 12963.7, subd. (a).) ". . . [There] is no right to sue, even after conciliation breaks down, unless the Department fails to file an accusation before the Commission.

To that extent the availability of court remedies remains within the Department's control. [Also], the compliance structure of the FEHA encourages cooperation in the administrative process. While that process continues the Department acts on the victim's behalf and absorbs costs of pursuing his claim. Court action inevitably is speculative, and the FEHA makes civil suit the claimant's sole responsibility." (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218.) Id. at 866- 867.

Thus, FEHA causes of action are exempt from the government claims procedure, because of the special other prior notice procedure established for FEHA claims.

The above provisions demonstrate a legislative intention to exempt actions under the FEHA from the general Tort Claims Act requirements. The procedural guidelines and the time framework provided in the FEHA are special rules for this particular type of claim which control over the general rules governing claims

against governmental entities. The FEHA not only creates a statutory cause of action, but sets out a comprehensive scheme for administrative enforcement, emphasizing conciliation, persuasion, and voluntary compliance, and containing specific limitations periods. (See Tobriner, California FEPC (1965) 16 Hastings L.J. 333.) Id. at 868.

FEHA causes of action are also deemed to be primarily for injunctive relief, with money damages being “incidental” to that primary relief.

[T]he claim is not for "money or damages" within Government Code sections 905 and 945.4, and therefore not subject to demurrer for failure to comply with the Tort Claims Act. The notice of claim provisions do not apply to an action which seeks principally injunctive relief for employment discrimination. The action under the FEHA basically is nonpecuniary, the claims for damages and back pay being incidental to the claim for injunctive relief.

The general scope of the Tort Claims Act notice-of-claim provisions is limited to "claims for money or damages . . . ." (Gov. Code, §§ 905, 905.2.) This language exempts actions seeking specific relief other than money or damages, such as injunctive or declaratory relief, and certain actions in mandamus. (See Van Alstyne, supra, § 5.7, pp. 436-437, § 5.23, pp. 460-462; see also Gov. Code, § 814: "Nothing in this part affects . . . the right to obtain relief other than money or damages against a public entity . . . .") Because appellant's complaint clearly states a cause of action for injunctive relief, the general demurrer was sustained improperly. (See Minsky v. City of Los Angeles, supra, 11 Cal.3d 113, 121, fn. 12; L. A. Brick etc. Co. v. City of Los Angeles (1943) 60 Cal.App.2d 478, 486 [141 P.2d 46].)

Furthermore, an action for specific relief does not lose its exempt status solely because incidental money damages are sought. (See People v. City of Los Angeles (1958) 160 Cal.App.2d 494, 508 [325 P.2d 639]; L. A. Brick etc. Co. v. City of Los Angeles, supra, 60 Cal.App.2d 478, 486, cited in Minsky, supra, 11 Cal.3d at p. 121, fn. 12.) Id. at 869-870.

The 5th through 7th causes of action are not FEHA causes of action, and thus are subject to the government claims presentation requirement, not the DFEH/CRD charge filing requirement.

Plaintiff’s complaint does not allege facts showing compliance with or excuse from the government claims presentation requirement.

The court therefore sustains GS’s demurrer to the non-FEHA causes of action (5th cause of action for constructive discharge in violation of public policy, 6 th cause of action for intentional infliction of emotional distress, and 7th cause of action for negligent supervision, hiring and retention) for failure to allege facts showing compliance with or excuse from the government claim presentation requirement.

Plaintiff’s opposition declaration claims that on October 2, 2025, via email he sent written notice of his claims against the county “by email to the civil division of the Solano County Superior Court . . ., with a copy to the Clerk of the Board of Supervisors . . . ” which “included a detailed formal complaint describing the workplace harassment, retaliation, discrimination, and constructive discharge I experienced while employed with the County of Solano General Services Department, along with the names of the responsible parties”, and received from the Board of Supervisors “an automated acknowledgement confirming my correspondence had been received and forwarded to the appropriate office for review”.

The declaration attached a copy of an email Plaintiff claims to have sent to the Board of Supervisors (and the court) to accompany what he called a Board of Supervisors complaint letter. But no copy of that “detailed letter” was attached anywhere to Plaintiff’s declaration.

Even if the detailed letter had been attached, per the County’s website instructions for presenting a government claim, email transmission of it to the Board of Supervisors may not have been sufficient, nor did Plaintiff wait for the claim to be rejected or deemed rejected before filing the complaint (as the letter was sent only about a week before the filing of the complaint).

While it is not clear to the court that Plaintiff can successfully allege facts sufficient to show compliance with or excuse from the government claims presentation requirement, in an abundance of caution, the court sustains GS’s demurrer to these three non-FEHA causes of action, with 30 days leave to amend.

Thus, the court sustains GS’s demurrer to the entirety of Plaintiff’s complaint, with 30 days leave for Plaintiff to file a first amended complaint, to reallege any or all of the FEHA causes of action and the non-FEHA causes of action.

FRANCISCO ARRIAGA; ET AL. vs. SUTTER VALLEY HOSPITALS; ET AL.