Atashkar v. CA Horse Racing Bd. CA3

Filed 6/13/14 Atashkar v. CA Horse Racing Bd. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

MORTEZA ATASHKAR, C069875

Plaintiff and Appellant, (Super. Ct. No. 34-2011- 00102154-CU-OE-GDS) v.

CALIFORNIA HORSE RACING BOARD,

Defendant and Respondent.

The California Whistleblower Protection Act (Gov. Code, § 8547 ff.; hereafter Act)1 provides that a state employee, who suffers an intentional act of reprisal, retaliation, or threat for the purpose of interfering with protected conduct, the employee’s right to report waste, fraud, abuse of authority, or violation of law, may file a civil action for damages against the offending party, providing that the employee first files a complaint setting forth the alleged acts of retaliation with his or her supervisor and files a copy with

1 A reference to a section is to the Government Code unless otherwise designated or apparent from the context.

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the State Personnel Board (Board) within twelve months of the most recent act of retaliation. (§§ 8547.1, 8547.3, 8547.8.) The plaintiff Morteza Atashkar, a former employee of the defendant California Horse Racing Board (CHRB), brought a civil action for damages in 2011 against the CHRB and designated Does, alleging retaliatory conduct by the Does in 2007 that caused him to retire. A demurrer to the complaint was sustained by the trial court without leave to amend on the ground that Atashkar, as a former employee, lacked standing to file a complaint with the Board and hence was barred from filing a damages action. The parties tender two issues in dispute; first, whether, by amendment, the Act applies retroactively to a former employee, and, second, whether compliance with the Government Tort Claims Act is a predicate to a civil action for damages. We shall conclude that the first issue is irrelevant and the second unnecessary to decide.2 The reason is that the complaint with the Board was filed more than 12 months after the most recent acts of retaliation alleged in the complaint to his supervisor. This precludes his civil case whether or not the Act applies retroactively to former employees, and whether or not compliance with the Government Tort Claims Act is a predicate to a civil action for damages. We shall affirm the judgment of the trial court. FACTS The complaint alleges in relevant part: The plaintiff was chief information officer of the CHRB. He retired as an employee of the CHRB on July 24, 2007. On June 18, 2008, he “filed a complaint with the California State Personnel Board (SPB) pursuant to Government Code section 8547.8.” He does not state what the complaint contained.