Case Name: Ascarie v. California State University
Case No.: 2015-1-CV-288296
Defendant Board of Trustees of the California State University (erroneously sued herein as California State University San Jose State University) (?Defendant?) demurs to the complaint (?Complaint?) filed by plaintiff Mahmoud Ascarie (?Plaintiff?).
In a vaguely-worded Complaint, Plaintiff appears to allege national origin and age discrimination and retaliation under the Fair Employment and Housing Act (the ?FEHA?) based on his termination from employment from San Jose State University in December 1999 and his subsequent attempts to be rehired into the same position.? Plaintiff?s Complaint does not identify specific causes of action.
On April 20, 2016, Defendant filed the instant demurrer to the Complaint in its entirety and to unspecified claims for discrimination, retaliation, and conspiracy to the extent that they can be determined from Defendant?s allegations on the ground of failure to state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ? 430.10, subd. (e).)? Plaintiff opposes the demurrer.
Defendant?s request for judicial notice is GRANTED.? (Evid. Code, ? 452, subd. (d).)
The thrust of Defendant?s demurrer is that Plaintiff?s claims are time-barred and he is barred from litigating his failure to be rehired because the face of his pleadings (or matters which are judicially noticeable) establish that he was not a qualified applicant.? With respect to Defendant?s first argument regarding timeliness, to the extent that Plaintiff?s claims are predicated on any purportedly wrongful conduct that he experienced when he was terminated from his employment as a chemistry instructor at San Jose State University in December 1999, they are time-barred.? The statute of limitations for a claim for unlawful employment practices under the FEHA is one year ?from the date upon which the alleged unlawful practice or refusal to cooperate occurred.?? (Gov. Code,????????? ? 12960, subd. (d).)? Clearly, any conduct arising out of Plaintiff?s termination is not actionable because it occurred well over a year ago.? Plaintiff responds that his claims are not predicated on the events underlying his termination in 1999, but this is not readily apparent based on how the Complaint is written, including an allegation which refers to his ?discharge? as an actionable unlawful employment practice.? (Complaint, ? 9.)? In any event, to the extent that Plaintiff?s claims are predicated on his termination, they are not actionable.
Defendant next argues that Plaintiff has failed to allege any failure-to-hire action within the one-year statute of limitations, with April 2011 pleaded as the date of his most recent attempt to be rehired as a chemistry lecturer.? (Complaint, ? 7.)? Indeed, April 2011 is the only date pleaded in the Complaint in connection with Plaintiff?s allegations concerning his efforts to be rehired by Defendant and conduct relating thereto clearly falls outside of the applicable limitations period.? (Gov. Code, ? 12960, subd. (d).)? Thus, the Court finds persuasive Defendant?s contention that Plaintiff?s claims, as currently pleaded, are time-barred.
The Court is not persuaded, however, by Defendant?s remaining argument that Plaintiff is barred from asserting that he was a qualified applicant (a necessary element of a claim under the FEHA for wrongful failure to hire) because he took a contrary position in a prior legal proceeding, specifically an action filed in federal court in 2013 challenging an administrative determination that he was not entitled to social security benefits because he was not disabled.? (Defendant?s Request for Judicial Notice.)? To the extent that Defendant is attempting to argue that Plaintiff?s claims are barred by the doctrine of judicial estoppel (which is not entirely clear because no authority is cited by Defendant in support), its efforts are unavailing.? Judicial estoppel, which is also referred to as the doctrine of preclusion of inconsistent position, ?prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.?? (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.)? Here, Defendant has not demonstrated that all of the elements necessary to apply the doctrine are present, including that Plaintiff was successful in asserting the contradictory position in the prior proceeding.? (Id. at 183 [holding that the doctrine of judicial estoppel applies where (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the first position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake].)? In fact, the judicially noticed materials establish that Plaintiff was not successful.? Thus, Defendant?s contention that Plaintiff cannot plead that he was a qualified applicant because he previously claimed to be disabled at that time is without merit.
Because Plaintiff?s claims, as currently pleaded in the Complaint, are untimely, Defendant?s demurrer to the Complaint and each of the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.