DFEH Charge Does Not Toll Statute of Limitations Under the Labor Code

In Statutes of Limitation on October 19, 2010 at 12:30 pm
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The Court of Appeal for the Second District held that a “DFEH complaint will [not] toll the statute on a claim for unpaid wages under the Labor Code.”  Parvizian v. California Department of Transportation, No. B215608, 2010 WL 4012070 (Cal. Ct. App. 2d Dist. Oct. 14, 2010).


Plaintiff-appellant Syrus Parvizian brought a suit against his former employer, respondent State of California Department of Transportation (“DOT”).  Id. *1.  The operative first amended complaint brought six causes of action, titled Damages for Violation of Statutory Duty to Pay Wages and Compensation, Unpaid Wages, Accounting, Conversion, Money Had and Received, and Discrimination, Harassment and Retaliation in Violation of Government Code section 12940.  Id. DOT’s demurrer was sustained with leave to amend as to the causes of action for Damages of Violation of the Statutory Duty to Pay Wages and Compensation, Accounting, Conversion, and Money Had and Received.  Id. The court ruled that the claims were not properly pled, noting that “the state can only be sued if it authorizes a lawsuit, and you don’t plead the proper statutory authority to do so.”  Id. The court overruled the demurrer to the cause of action for unpaid wages, which was brought under Labor Code sections 201 and 202. Id. The court found that the cause of action for violation of Government Code section 12940 had been dismissed with prejudice in the earlier case, and sustained the demurrer as to that cause of action without leave to amend. Id. Plaintiff elected not to amend his complaint, and DOT filed a motion for judgment on the pleadings on the cause of action under the Labor Code, on the defense of statute of limitations.  Id. The court granted the motion and dismissed the complaint. Id.

Statute of Limitations

Plaintiff’s cause of action for unpaid wages alleged violations of Labor Code sections 201 and 202. Id. *3.  The statute of limitations under Cal. Code Civ. Proc. § 338(a) is three years.  Plaintiff’s employment with respondent ended in 2003, and the complaint was not filed until late in 2007.  The court concluded that the statute of limitations barred this action, rejecting plaintiff’s argument that the statute was tolled, under the doctrine of equitable tolling, while appellant pursued his administrative remedies before the Department of Fair Employment and Housing. Id. Plaintiff contended that his complaint to that agency included the claim for unpaid wages, and argued that the statute began to run when he received from DFEH right to sue letter.  The court disagreed:

We do not see that appellant’s administrative complaint included his claim for unpaid wages, and in any event do not believe that a DFEH complaint will toll the statute on a claim for unpaid wages under the Labor Code. “Though equity will toll the statute of limitations while a plaintiff, who possesses different legal remedies for the same harm, reasonably and in good faith pursues one, it will not toll the statute while a plaintiff, who has allegedly suffered several different wrongs, pursues only one remedy as to one of those wrong.” (Aerojet General Corp. v. Superior Court (1986) 177 Cal. App. 3d 950, 956.) The claim for discriminatory treatment and the claim for unpaid wages are, simply put, different wrongs.


Judges and Attorneys

Justice Orville A. Armstrong wrote the opinion for the court.  Justices Paul Turner and Richard M. Mosk concurred.

Appeal from a judgment of the Superior Court of Los Angeles County, Hon. William F. Fahey.

Syrus Parvizian, in pro per., for Plaintiff and Appellant.

Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Jill Siciliano-Okoye, Helen Lemmon-Alarcon for Defendant and Respondent.


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