The opinion
IN THE SUPREME COURT OF
CALIFORNIA
PAMELA POLLOCK,
Plaintiff and Appellant,
v.
TRI-MODAL DISTRIBUTION SERVICES, INC., et al.,
Defendants and Respondents.
S262699
Second Appellate District, Division Eight
B294872
Los Angeles County Superior Court
BC676917
July 26, 2021
Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger, Groban, and Jenkins concurred.
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
S262699
Opinion of the Court by Liu, J.
Plaintiff Pamela Pollock is a customer service
representative at defendant Tri-Modal Distribution Services,
Inc. (Tri-Modal), a corporation that ships freight by truck. She
alleges that Tri-Modal passed her over for several promotions in
part because she refused to have sex with defendant Michael
Kelso, Tri-Modal’s executive vice-president. We granted review
to address two questions. First, when does the statute of
limitations begin to run in a failure to promote case brought
under the harassment provision of the Fair Employment and
Housing Act (FEHA) (Gov. Code, §§ 12940, subd. (j), 12960)? We
hold that such a FEHA claim accrues, and thus the statute of
limitations begins to run, at the point when an employee knows
or reasonably should know of the employer’s allegedly unlawful
refusal to promote the employee.
Second, does Government Code section 12965,
subdivision (b)’s directive that a prevailing FEHA defendant
“shall not be awarded fees and costs unless the court finds the
action was frivolous, unreasonable, or groundless when brought,
or the plaintiff continued to litigate after it clearly became so,”
apply to an award of costs on appeal? The answer is yes. The
Court of Appeal in this case erred in awarding costs on appeal
to defendants without first finding that Pollock’s underlying
claim was objectively groundless.
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
I.
Kelso initiated a dating relationship with Pollock in 2014.
He wanted the relationship to become sexual, but Pollock
refused and ended the relationship in 2016. In this action,
Pollock alleges that Tri-Modal and Kelso denied her a series of
promotions even though she was the most qualified candidate,
and that her refusal to have sex with Kelso was a substantial
factor motivating those adverse employment actions. On
April 18, 2018, she filed an administrative complaint with the
Department of Fair Employment and Housing (DFEH), alleging
quid pro quo sexual harassment in violation of the FEHA.
Although Pollock’s administrative complaint challenged
the promotion of several individuals, this appeal concerns the
promotion that went to Leticia Gonzalez. Gonzalez received and
accepted an offer of promotion in March 2017, and the promotion
took effect on May 1, 2017. There is no evidence as to whether
or when Tri-Modal notified Pollock that she did not receive the
promotion that went to Gonzalez. And there is no evidence that
Pollock knew or had reason to know that Gonzalez was offered
the promotion and accepted it in March 2017.
The March 2017 and May 2017 dates are relevant because
when Pollock filed her administrative complaint, Government
Code section 12960, former subdivision (d) required litigants
seeking relief under the FEHA to file an administrative
complaint with the DFEH within one year “from the date upon
which the alleged unlawful practice . . . occurred.” (All
undesignated statutory references are to the Government Code.)
If the failure to promote “occurred” on May 1, 2017, as Pollock
argues, then her April 2018 administrative complaint was
timely filed. If the failure to promote “occurred” in March 2017,
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Opinion of the Court by Liu, J.
as Kelso argues, then her April 2018 administrative complaint
was filed one month too late.
The trial court concluded that the failure to promote
occurred in March 2017, when Gonzalez was offered the
promotion and accepted it. Because Pollock did not dispute that
Gonzalez received and accepted the promotion offer in
March 2017, the court found no triable issue of fact as to Kelso’s
statute of limitations defense and granted his motion for
summary judgment.
The Court of Appeal agreed that Pollock’s claim was time-
barred. (Ducksworth v. Tri-Modal Distribution Services (2020)
47 Cal.App.5th 532, 545–547 (Ducksworth); the named plaintiff,
Bonnie Ducksworth, is not a party to this appeal.) It explained
that “[t]he statute of limitations for a failure to promote runs
from when the employer tells employees they have been given
(or denied) a promotion. That date is key, and not the date when
the promoted worker actually starts the new work.” (Id. at
p. 546.) Construing the term “occurred” in section 12960, the
Court of Appeal said that “[l]ogically and thus textually, an
employer injures the employee by denying a deserved promotion
as an instrument of sexual harassment. That moment ‘occurred’
when Tri-Modal allegedly did not promote the deserving Pollock
because of sexual harassment. That was in March 2017. So
Pollock’s injury ‘occurred’ in March 2017, according to the plain
meaning of the word ‘occurred.’ [¶] This definition of ‘occurred’
is simple and straightforward and thus desirable and correct.”
(Id. at pp. 546–547.)
After concluding that the trial court properly granted
Kelso’s summary judgment motion and the summary judgment
motions of two other defendants, the Court of Appeal awarded
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Opinion of the Court by Liu, J.
costs on appeal to all three defendants. (Ducksworth, supra,
47 Cal.App.5th at p. 547.) The court did not find, as a predicate
to awarding costs, that Pollock’s underlying claim “was
frivolous, unreasonable, or groundless when brought” or that
she “continued to litigate after it clearly became so.” (§ 12965,
subd. (b).) Pollock petitioned for rehearing on the award of costs,
and the Court of Appeal summarily denied her petition.
We granted review.
II.
We begin with the statute of limitations. A statute of
limitations “does not begin to run until the cause of action
accrues,” and a cause of action accrues at the moment when the
party alleging injury is entitled to “ ‘ “begin and prosecute an
action thereon.” ’ ” (Romano v. Rockwell Internat., Inc. (1996)
14 Cal.4th 479, 487 (Romano).) An employee who wishes to file
suit under the FEHA “must exhaust the administrative remedy
provided by the statute by filing a complaint with the” DFEH,
“and must obtain from the [DFEH] a notice of right to sue.”
(Romano, at p. 492.) “The timely filing of an administrative
complaint” before the DFEH “is a prerequisite to the bringing of
a civil action for damages.” (Ibid.)
At the time of the alleged misconduct here, the FEHA
provided that no administrative complaint alleging a violation
of its provisions could be filed with the DFEH “after the
expiration of one year from the date upon which the alleged
unlawful practice or refusal to cooperate occurred.” (§ 12960,
former subd. (d).) The current statute uses virtually identical
language but allows for a period of three years. (§ 12960,
subd. (e).) This requirement is “[t]he statute of limitations for
FEHA actions.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th
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798, 811 (Richards).) The question is whether Tri-Modal’s
allegedly unlawful refusal to promote Pollock “occurred” within
the then-applicable one-year statute of limitations period.
Pollock says Tri-Modal’s failure to promote her occurred on
May 1, 2017, the effective date of Gonzalez’s promotion. Kelso,
echoing the Court of Appeal, says the promotion denial occurred
in March 2017, when Tri-Modal offered the promotion to
Gonzalez and she accepted. We conclude that neither is correct.
A.
At the outset, we note that Pollock’s failure to promote
claim was pleaded as a quid pro quo sexual harassment claim
under section 12940, subdivision (j), not as a discrimination
claim under section 12940, subdivision (a). FEHA
discrimination claims focus on the conduct of employers.
(§ 12940, subd. (a) [it is an unlawful employment practice “[f]or
an employer . . . to discriminate against [a] person in
compensation or in terms, conditions, or privileges of
employment” on the basis of a protected characteristic, subject
to certain exceptions].) By contrast, FEHA harassment claims
focus on the conduct of employers and the conduct of “any other
person.” (§ 12940, subd. (j).)
Our precedent explains that the primary difference
between discrimination claims and harassment claims is that
discrimination claims “address[] only explicit changes in the
‘terms, conditions, or privileges of employment’ [citation]; that
is, changes involving some official action taken by the employer.”
(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby),
italics added by Roby.) “In the case of an institutional or
corporate employer, the institution or corporation itself must
have taken some official action with respect to the employee,
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
such as hiring, firing, failing to promote, adverse job
assignment, significant change in compensation or benefits, or
official disciplinary action.” (Ibid.) Harassment claims, on the
other hand, “focus[] on situations in which the social
environment of the workplace becomes intolerable because the
harassment . . . communicates an offensive message to the
harassed employee.” (Ibid.) Such conduct becomes actionable
as quid pro quo harassment when, as alleged in this case, “ ‘ “a
term of employment is conditioned upon submission to
unwelcome sexual advances . . . .” ’ ” (Hughes v. Pair (2009)
46 Cal.4th 1035, 1043 (Hughes); cf. ibid. [harassing conduct also
actionable as hostile work environment when so pervasive or
severe that it “ ‘ “alter[s] the conditions of employment and
create[s] an abusive work environment” ’ ”].) In sum,
“discrimination refers to bias in the exercise of official actions
on behalf of the employer, and harassment refers to bias that is
expressed or communicated through interpersonal relations in
the workplace.” (Roby, at p. 707.)
“The FEHA’s distinction between discrimination and
harassment does not mean that harassment claims are
relegated to a lower status.” (Roby, supra, 47 Cal.4th at p. 707.)
To the contrary, “an aggrieved employee can obtain full
compensation for any resulting injury,” whether the alleged
unlawful employment practice at issue constitutes
discrimination, harassment, or both. (Ibid.) An employee who
is the victim of discrimination based on some official action, such
as a failure to promote, can “also be the victim of harassment”
based on the same or similar underlying conduct. (Ibid.)
Indeed, “[a]lthough discrimination and harassment are
separate wrongs, they are sometimes closely interrelated, and
even overlapping, particularly with regard to proof.” (Roby,
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Opinion of the Court by Liu, J.
supra, 47 Cal.4th at p. 707.) In a case where a supervisor
threatens to deny an employee a promotion unless the employee
provides the supervisor with sexual favors and the threat is
realized after the employee refuses, the aggrieved employee can
bring suit against both the employer and the supervisor. The
cause of action against the employer may take the form of a
section 12940, subdivision (a) discrimination claim, a
subdivision (j) harassment claim, or both. The cause of action
against the supervisor would take the form of a subdivision (j)
harassment claim. In such a case, the promotion decision itself
“constitute[s] the evidentiary basis of the harassment cause of
action, because the supervisor used [an] official action[] as [a]
means of conveying his offensive message.” (Roby, at p. 708.) In
other words, sometimes “the hostile message that constitutes
the harassment is conveyed through official employment
actions, and therefore evidence that would otherwise be
associated with a discrimination claim can form the basis of a
harassment claim.” (Id. at p. 708.) As noted, a supervisor can
be liable for harassment but not discrimination; the Legislature
did not make co-employees liable under the FEHA’s
discrimination provision. (§ 12940, subd. (a).)
With this backdrop in mind, we note there are two ways to
understand a quid pro quo harassment claim. We express no
view on whether one or both views are correct; our case law has
not addressed this issue, and it was not briefed by the parties
here. One view is that a quid pro quo harassment claim targets
essentially the same unlawful conduct as a hostile work
environment claim: the communication of an offensive message
in the workplace. Hostile work environment harassment occurs
when a sufficiently severe or pervasive offensive message is
communicated to the aggrieved employee in the workplace
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
(Hughes, supra, 46 Cal.4th at p. 1043); a quid pro quo
harassment claim challenging an official employment action can
be understood to target the offensive message conveyed by that
action — namely, the message that an employment benefit has
been conditioned on submission to unwanted sexual advances.
Alternatively, quid pro quo harassment may be
understood as the very act of conditioning an employment
benefit on submission to unwanted sexual advances. The notion
is that the act itself comprises a distinct wrong, separate and
apart from communication of an offensive message in the
workplace. On this view, a quid pro quo harassment claim
alleging unlawful denial of a promotion directly challenges the
denial as based on forbidden considerations; the promotion
denial does not play a meaningfully different role from the one
it would play in a discrimination lawsuit brought against an
employer.
In this case, we are addressing a quid pro quo sexual
harassment claim that Pollock raised against Kelso, her
supervisor and the executive vice-president of Tri-Modal. Our
task is to determine when the actionable harassment “occurred”
within the meaning of section 12960, former subdivision (d).
Under either conception of quid pro quo harassment set forth
above, the focus of our statute of limitations analysis is on the
employment action itself. Pollock’s claim can be understood to
mean that an offensive message was allegedly communicated
through an official employment action or that the official
employment action allegedly constitutes Kelso’s act of
conditioning a job benefit (i.e., a promotion) on her submission
to his unwanted sexual advances. Either way, our analysis
must focus on when the promotion denial occurred.
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
B.
As a textual matter, it is reasonable to say that a failure
to promote has “occurred” when the person seeking the
promotion has been informed or is otherwise put on notice that
he or she will not receive the promotion. But there are other
plausible understandings of when a failure to promote has
“occurred,” such as the moment when the employer decides not
to promote the aggrieved employee or when the employer
decides to promote someone else. The term “occurred,” by itself,
is susceptible to more than one interpretation.
Our task in construing any statute is “ ‘to determine the
Legislature’s intent and give effect to the law’s purpose.’ ”
(Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 633–634.)
When enacting the FEHA, “the Legislature spoke at length
about its purposes.” (Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 223.) Section 12920 explains: “It is hereby
declared as the public policy of this state that it is necessary to
protect and safeguard the right and opportunity of all persons
to seek, obtain, and hold employment without discrimination or
abridgment on account of . . . sex,” and “[i]t is recognized that
the practice of denying employment opportunity and
discriminating in the terms of employment for [that reason]
foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the
interests of employees, employers, and the public in general.”
The Legislature further declared that in order to eliminate
discrimination and harassment in the workplace, “it is
necessary to provide effective remedies that will both prevent
and deter unlawful employment practices and redress the
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
adverse effects of those practices on aggrieved persons.”
(§ 12920.5.) It framed “[t]he opportunity to seek, obtain, and
hold employment without” experiencing discrimination or
harassment as a “civil right,” and instructed that the FEHA
“shall be construed liberally for the accomplishment of [its]
purposes.” (§§ 12921, subd. (a), 12993, subd. (a).)
The Court of Appeal took the view, adopted by Kelso here,
that “according to the plain meaning of the word ‘occurred,’ ”
Pollock’s injury occurred when Tri-Modal decided not to
“promote the deserving Pollock because of sexual harassment.”
(Ducksworth, supra, 47 Cal.App.5th at p. 546.) This reading of
“occurred” is not unreasonable. But it includes no mention of
notice to the employee. The Court of Appeal’s holding would
presumably allow an employer or supervisor to decide not to
promote an employee but never inform the employee of that
decision, and then later rely on the employer’s or supervisor’s
own record of when the decision was made to assert that the
limitations period for challenging the decision has expired. This
is at odds with the principle that “section 12960 should not be
interpreted to impose serious practical difficulties on an
employee’s ability to vindicate” the right to hold employment
without experiencing discrimination or harassment “if it can be
reasonably interpreted otherwise.” (Richards, supra, 26 Cal.4th
at p. 821; see People v. Gonzales (2018) 6 Cal.5th 44, 50
[“The words of a statute must be construed in context, keeping
in mind the statutory purpose.”].)
“In order to carry out the purpose of the FEHA to
safeguard [this right], the limitations period set out in the
FEHA should be interpreted so as to promote the resolution of
potentially meritorious claims on the merits.” (Romano, supra,
14 Cal.4th at pp. 493–494.) We have difficulty seeing how it
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
would serve the goal of promoting resolution of potentially
meritorious claims to hold that the limitations period for a
harassment claim based on a failure to promote may start to run
without any notice of the promotion denial to the aggrieved
employee. The better view, in light of the FEHA’s purposes, is
that such a claim does not accrue, and the limitations period
does not begin to run, until an aggrieved employee knows or
reasonably should know of the employer’s decision not to
promote him or her.
Aspects of the Court of Appeal’s opinion implicitly
recognize the importance of notice. At one point, the court said
that “[t]he statute of limitations for a failure to promote runs
from when the employer tells employees they have been given
(or denied ) a promotion.” (Ducksworth, supra, 47 Cal.App.5th
at p. 546, italics added.) In light of this statement, it is unclear
why the court focused on “when Tri-Modal offered and Gonzalez
accepted the promotion” (ibid.) instead of when Tri-Modal told
Pollock she had been denied the promotion.
Toward the end of its opinion, the Court of Appeal posed a
hypothetical in which “Kelso would tell Pollock [in March 2017],
‘Today I am giving this promotion to someone else, even though
you deserve it, because you rejected my sexual advances.’ Such
a candid admission would describe grossly illegal discrimination
that ‘occurred’ in March 2017, when Kelso denied Pollock a
benefit she deserved because Kelso wanted sex from her and she
would not give it. So that date triggered the one-year clock.
That Kelso allegedly was less than candid would not change
anything fundamental about this analysis.” (Ducksworth,
supra, 47 Cal.App.5th at p. 547.) Kelso need not have spelled
out an illicit reason for giving the promotion to someone else for
the clock to start running. (See Williams v. City of Belvedere
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
(1999) 72 Cal.App.4th 84, 92–93 (City of Belvedere); post, at
p. 17.) But a key fact in the hypothetical is that Kelso informed
Pollock of his decision not to promote her. The Court of Appeal
did not elucidate the full import of its hypothetical when it held
that the moment of injury “ ‘occurred’ ” simply when Tri-Modal
decided not to promote Pollock. (Ducksworth, at p. 546.) “To the
extent [Kelso] may be understood to ask this court to adopt a
rule that discourages lawsuits alleging wrongful [failure to
promote] by setting the statute of limitations to run at a time
that makes it inconvenient or impossible for the employee to
bring a lawsuit, we decline to do so. We do not view the statute
of limitations as properly performing such a function.”
(Romano, supra, 14 Cal.4th at p. 500.)
C.
The parties do not cite, and we have not found, any
published authorities on the meaning of “occurred” in
section 12960 when the alleged unlawful practice involves quid
pro quo harassment based on a failure to promote. In Romano,
we addressed the meaning of “occurred” in a FEHA wrongful
discharge action where the employer notified the plaintiff
William Romano, two and a half years before the actual
termination, that he would be terminated. We held that the
limitations period began to run at the time of actual termination
rather than at the time of notification. (Romano, supra,
14 Cal.4th at p. 503.) If an “administrative complaint must be
filed within one year ‘after’ the unlawful practice — here, a
discharge — ‘occurred,’ then for the purpose of that complaint,
the administrative cause of action must accrue and the statute
of limitations must run from the time of actual termination. It
would not run from the earlier date of notification of discharge,
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Opinion of the Court by Liu, J.
because on that date the unlawful practice (that is, the
discharge) had not yet ‘occurred.’ ” (Id. at p. 493.)
Pollock contends that under Romano, the limitations
period for her harassment claim did not begin to run until
Gonzalez’s promotion took effect. But this conflates a promotion
with a failure to promote. Consistent with Romano, a promotion
may be said to occur when an employee begins working in the
new position; until that point, no promotion has occurred, even
if the employee has been selected for promotion. But an
employer’s refusal to promote an employee — the “unlawful
employment practice” alleged here (§ 12940) — does not depend
on any decision by the employer to promote someone else.
Suppose Employees A, B, and C apply for a promotion, and
Employee A is the first applicant to be rejected. Once the
employer tells Employee A that he or she will not be promoted,
the employer’s refusal to promote Employee A has occurred. (Cf.
City of Belvedere, supra, 72 Cal.App.4th at p. 92 [distinguishing
Romano and concluding that the statute of limitations began to
run in a FEHA failure to hire case when the employer informed
the plaintiff by letter that he would not be hired].) It does not
matter whether or when the employer decides to promote
Employee B or Employee C, or whether or when the promotion
takes effect. Pollock’s approach is unpersuasive because, in
many cases, an employer may refuse to promote the aggrieved
employee well before promoting another employee. Moreover,
Pollock’s rule provides no guidance in cases where the denial of
a promotion to one employee is not accompanied by a decision to
promote another. (See Reynolds v. School Dist. No. 1, Denver,
Colo. (10th Cir. 1995) 69 F.3d 1523, 1535 [“the elimination of a
position, if done for racially motivated reasons, can potentially
form the basis of a discrimination claim” in a failure to promote
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case]; Barefield v. Board of Trustees of Cal. State University,
Bakersfield (E.D.Cal. 2007) 500 F.Supp.2d 1244, 1261
[elimination of a position for budgetary reasons does not defeat
prima facie case of unlawful failure to promote if “some vacancy
exist[ed] at the time the application is made”].)
In determining how section 12960 applies to a FEHA
harassment claim based on a failure to promote, we look not only
to California precedent but also to cases interpreting similar
federal employment antidiscrimination laws. (See Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [“Because of
the similarity between state and federal employment
discrimination laws, California courts look to pertinent federal
precedent when applying our own statutes.”].) The statute of
limitations provisions of title VII of the Civil Rights Act of 1964
(Title VII) and the FEHA are substantially the same in their
usage of the word “occurred.” (Compare § 12960, former
subd. (d) [requiring a plaintiff to file an administrative
complaint within one year “from the date upon which the alleged
unlawful practice . . . occurred”] with 42 U.S.C. § 2000e-5(e)(1)
[requiring a plaintiff to file an administrative complaint within
180 days “after the alleged unlawful employment practice
occurred”].) Other federal antidiscrimination laws incorporate
Title VII’s statute of limitations provision by reference. (See,
e.g., 42 U.S.C. § 12117(a) [Americans with Disabilities Act].)
Federal authorities interpreting such provisions thus aid our
interpretation of the FEHA’s statute of limitations, and those
authorities indicate that a failure to promote claim accrues not
simply when the employer has made the adverse promotion
decision, but rather when the employee knows or reasonably
should know of the employer’s decision. In many cases, this
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point in time is when the employer notifies the employee of its
decision.
In Delaware State College v. Ricks (1980) 449 U.S. 250
(Ricks), the high court addressed whether a college professor,
Columbus Ricks, “timely complained under the civil rights laws
that he had been denied academic tenure because of his national
origin.” (Id. at p. 252.) On March 13, 1974, the college board of
trustees formally voted to deny Ricks tenure. On June 26, 1974,
the college, following its usual practice after denying tenure,
offered Ricks a one-year “ ‘terminal’ ” contract expiring on
June 30, 1975, which he accepted. (Id. at p. 253 [“When that
contract expires, the employment relationship ends.”].)
Meanwhile, Ricks filed a grievance with the college board of
trustees to contest the tenure denial, and the board denied his
grievance on September 12, 1974. On April 4, 1975, Ricks filed
a complaint under Title VII with the Equal Employment
Opportunity Commission (EEOC). As mentioned, Title VII
requires a plaintiff to file a complaint with the EEOC within 180
days “after the alleged unlawful employment practice occurred.”
(42 U.S.C. § 2000e-5(e)(1); see Ricks, at p. 256.) After the EEOC
issued a “right to sue” letter, Ricks proceeded to district court
and argued that the limitations period on his claim of unlawful
tenure denial did not begin to run until his one-year contract
expired. (Ricks, at pp. 252–257.)
Rejecting this argument, the high court held that the
“alleged discrimination occurred — and the filing limitations
period[] therefore commenced — at the time the tenure decision
was made and communicated to Ricks.” (Ricks, supra, 449 U.S.
at p. 258, italics added; see id. at p. 259 [“the only challenged
employment practice” was the denial of tenure, and it
“occur[red] before the termination date”].) The EEOC urged the
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alternative view that the limitations period did not begin until
the board denied Ricks’s grievance on September 12, 1974
because the board could have changed its decision if it had found
Ricks’s grievance meritorious. (Id. at pp. 260–261.) The high
court rejected this argument as well, observing that “[t]he
grievance procedure, by its nature, is a remedy for a prior
decision, not an opportunity to influence that decision before it
is made.” (Id. at p. 261.)
The district court in Ricks concluded that the limitations
period “had commenced to run by June 26, 1974,” when the
college offered Ricks a “ ‘terminal’ ” one-year contract. (Ricks,
supra, 449 U.S. at p. 261.) The high court declined to decide
“whether the District Court correctly focused on the June 26
date, rather than the date the Board communicated to Ricks its
unfavorable tenure decision made at the March 13, 1974,
meeting,” because Ricks’s EEOC complaint was “not timely filed
even counting from the June 26 date.” (Id. at p. 262, fn. 17.) The
high court explained: “By June 26, the [faculty committee on
promotions and tenure] had twice recommended that Ricks not
receive tenure; the Faculty Senate had voted to support the
tenure committee’s recommendation; and the Board of Trustees
formally had voted to deny Ricks tenure. In light of this
unbroken array of negative decisions, the District Court was
justified in concluding that the College had established its
official position — and made that position apparent to Ricks —
no later than June 26, 1974.” (Id. at p. 262, fn. omitted, italics
added; see id. at p. 262, fn. 16 [“We recognize . . . that the
limitations periods should not commence to run so soon that it
becomes difficult for a layman to invoke the protection of the
civil rights statutes. [Citations.] But . . . there can be no claim
here that Ricks was not abundantly forewarned.”].)
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In Romano, we declined to apply Ricks’s holding under
Title VII to a wrongful discharge claim under the FEHA.
(Romano, supra, 14 Cal.4th at pp. 495–499.) But nothing we
said in Romano casts doubt on Ricks’s persuasive value in a
FEHA failure to promote case. We explained that the FEHA
differs from Title VII insofar as “the FEHA defines a ‘discharge’
as a discriminatory practice” in contrast to “the federal law’s
focus . . . on the decision” to terminate employment. (Romano,
at p. 498; see id. at pp. 492–493, quoting §§ 12940, former
subd. (f), 12941.) But an employer’s decision not to promote the
aggrieved employee is the gravamen of a failure to promote
claim under either Title VII or the FEHA; there is no distinction
like the one we drew in Romano between the decision and the
wrongful act. Further, in explaining Ricks’s inapplicability to
Romano’s wrongful discharge claim, we observed that the high
court in Ricks “was at pains to assert that it was the denial of
tenure, and not the ultimate dismissal, that was the
discriminatory act alleged by the plaintiff.” (Romano, at p. 497;
see Ricks, supra, 449 U.S. at pp. 257–258.) That aspect of
Ricks’s claim makes it analogous to a failure to promote claim
and highlights the relevance of the high court’s analysis to the
case before us. Finally, Romano expressed concern that
following Ricks would “ ‘increase the number of unripe and
anticipatory lawsuits . . . that should not be filed until some
concrete harm has been suffered, and until the parties, and the
forces of time, have had maximum opportunity to resolve the
controversy.’ ” (Romano, at p. 498.) But this concern, which
applies where an employee receives notice of termination before
the date of actual termination, has no applicability here. Once
the employer has told the employee that he or she will not be
promoted or the employee otherwise gains actual or constructive
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
knowledge of the allegedly unlawful promotion decision, a
“ ‘concrete harm has been suffered’ ” (ibid.), and any FEHA
claim contesting the promotion denial accrues.
In Lukovsky v. City and County of San Francisco (9th Cir.
2008) 535 F.3d 1044, the court observed that Ricks “focused on
when the plaintiff became aware of the adverse employment
decision” and applied this focus to determine when the
limitations period began to run on an unlawful failure to hire
claim. (Lukovsky, at p. 1050, citing Ricks, supra, 449 U.S. at
pp. 258–259, 261–262.) The Ninth Circuit clarified that “the
claim accrues upon awareness of the actual injury, i.e., the
adverse employment action, and not when the plaintiff suspects
a legal wrong.” (Lukovsky, at p. 1049; see id. at p. 1051
[plaintiffs’ claims accrued, and the limitations periods began to
run, when they “knew they had been injured and by whom,
[citation], even if at that point in time the plaintiffs did not know
of the legal injury, i.e., that there was an allegedly
discriminatory motive underlying the failure to hire”].) Other
federal circuits are in accord. (See, e.g., Hanani v. State of N.J.
Dept. of Environmental Protection (3d Cir. 2006) 205 Fed.Appx.
71, 76 [failure to promote]; Amini v. Oberlin College (6th Cir.
2001) 259 F.3d 493, 498–500 (Amini) [failure to hire]; Merrill v.
Southern Methodist Univ. (5th Cir. 1986) 806 F.2d 600, 605
[tenure denial].)
Although many cases, like Ricks, involve clear notification
by the employer to the employee of the adverse employment
decision, others do not. In assessing when a limitations period
begins to run, courts have spoken in terms of actual or
constructive notice — i.e., “ ‘[o]nce the employee is aware or
reasonably should be aware of the employer’s decision, the
limitations period commences.’ ” (Amini, supra, 259 F.3d at
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
p. 498, quoting EEOC v. United Parcel Service, Inc. (6th Cir.
2001) 249 F.3d 557, 561–562; see Harris v. City of New York (2d
Cir. 1999) 186 F.3d 243, 247 (Harris); Miller v. Beneficial
Management Corp. (3d Cir. 1992) 977 F.2d 834, 843 (Miller).)
Determining what an employee knew or should have known
requires a careful examination of the circumstances in each
case.
In Harris, a police officer, Gerard Harris, alleged (among
other claims) that he had been denied promotion to sergeant.
(Harris, supra, 186 F.3d at pp. 246–247.) Harris had taken a
civil service exam that placed him on a four-year eligibility list
for sergeant from April 7, 1989 to April 7, 1993. In August 1991,
Harris suffered a back injury in the line of duty; he was placed
on “ ‘restricted duty’ ” status and later applied for and received
disability benefits. (Id. at p. 246.) On August 31, 1994, he filed
an EEOC complaint alleging that the city unlawfully
discriminated against him on the basis of disability in refusing
to promote him to sergeant, and he filed suit in district court on
October 4, 1996. (Id. at pp. 247–248; see id. at p. 247 [statute of
limitations under the Americans with Disabilities Act, 42 U.S.C.
§ 12117(a), incorporates by reference the statute of limitations
under Tit. VII, 42 U.S.C. § 2000e-5(e)(1)].) The Second Circuit
held that because civil service eligibility lists “are ordinarily in
effect for no more than four years” under state law, and because
a 1990 police department policy memo said the department
“would not promote any officer on less than full duty,” Harris
“should have known” by April 7, 1993 that “he was not going to
be promoted to sergeant.” (Harris, at p. 248; see ibid. [“we look
not only at what Harris actually knew but also at what he had
reason to know”].) The commencement of the applicable
limitations periods on that date meant that his claims before the
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
EEOC and in court challenging the denial of promotion to
sergeant were filed too late. (Harris, at pp. 248–249.)
In Miller, an attorney, Elizabeth Miller, alleged that her
employer refused to promote her to vice-president in violation of
Title VII, the Age Discrimination in Employment Act (ADEA),
and other laws. (Miller, supra, 977 F.2d at p. 841; see id. at
p. 842 [limitations periods for filing EEOC complaint under
Tit. VII, 42 U.S.C. § 2000e-5(e)(1), and the ADEA, 29 U.S.C.
§ 626(d)(1), start to run after the alleged unlawful practice
“occurred”].) In July 1984, Miller was transferred from the
company’s legal department to an associate counsel position in
the government relations department. In assuming that role,
she replaced a man, Charles Walsh, who was serving as vice-
president of government relations, and another man who
worked with the vice-president. (Miller, at pp. 836–837.) Miller
kept working in the government relations department until
October 1998 and was never promoted to vice-president. (Id. at
p. 840.)
The district court held that the limitations periods for her
failure to promote claim began to run in July 1984, reasoning
that “ ‘Miller does not assert she was unaware that Walsh’s
position was Vice President when she accepted the position as
Associate Counsel. Accordingly, Miller had actual knowledge of
any alleged discrimination [in the company’s failure to promote
her to vice-president] at the time she accepted and assumed the
position in July 1984.’ ” (Miller, supra, 977 F.2d at p. 842.) But
the Third Circuit cited evidence that from September 1987 to
June 1988, Miller’s supervisor had told her that “she deserved
to be a Vice President” and “she would soon be getting the title
of Vice President,” and had “recommended Miller for promotion
to Vice President.” (Id. at p. 843.) Miller argued it was not until
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
October 1988, when she was removed from the government
relations department, that “it became apparent that she would
not be made a Vice President.” (Ibid.) On these facts, the Third
Circuit held that the timeliness of her complaint presented a
triable issue. (Ibid. [“A reasonable jury could agree with Miller
that the statute did not begin to run until October 1988, when
she knew or should have known that she would never be made
a Vice President.”].)
In this case, Pollock focuses on the effective date of
Gonzalez’s promotion, and Kelso focuses on when Gonzalez
received and accepted the promotion offer. Both dates,
depending on how Tri-Modal communicated the information,
may be relevant evidence of when Pollock knew or should have
known she did not get the promotion. But neither is sufficient
by itself to trigger the limitations period.
Consistent with the case law construing analogous
language in federal antidiscrimination statutes, we hold that a
FEHA harassment claim based on a failure to promote accrues,
and the limitations period under section 12960 begins to run,
when the aggrieved employee knows or reasonably should know
of the employer’s decision not to promote him or her. It is not
enough to identify when an employer made its decision not to
promote the employee; what starts the clock is the employee’s
actual or constructive knowledge of the employer’s decision.
D.
The approach we elucidate today “protect[s] defendants
from the necessity of defending stale claims and require[s]
plaintiffs to pursue their claims diligently.” (Romano, supra,
14 Cal.4th at p. 488; see ibid. [statutes of limitation “are
‘ “designed to promote justice by preventing surprises through
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses
have disappeared” ’ ”].) Focusing the analysis on when the
employee knew or should have known of the adverse promotion
decision in many cases gives the employer control over when the
clock begins to run. Once the employee obtains actual or
constructive notice, he or she is then prompted to diligently
pursue any claims.
This approach also protects the employee’s interests.
Because the clock starts running only when the employee knows
or reasonably should know of the adverse promotion decision,
any period of time during which the decision is not disclosed or
otherwise known to the employee does not count against the
limitations period. The rule urged by Kelso, which focuses on
the employer’s moment of decision without requiring notice to
the employee, would reward secrecy by employers to the
potential detriment of employees with legitimate claims. As
noted, we must interpret section 12960 “so as to promote the
resolution of potentially meritorious claims on the merits.”
(Romano, supra, 14 Cal.4th at p. 494.)
Further, by leaving an employee guessing as to when an
employer has made an adverse promotion decision, Kelso’s rule
may incentivize plaintiffs to file claims as early as possible to
avoid being time-barred, even if the employer (unbeknownst to
the employee) has not yet “established its official position.”
(Ricks, supra, 449 U.S. at p. 262.) Requiring actual or
constructive notice reduces the risk of plaintiffs filing unripe
claims. (Cf. Romano, supra, 14 Cal.4th at pp. 494–495 [§ 12960
should be interpreted so that DFEH and the courts are not
prematurely drawn into investigating and adjudicating FEHA
claims].)
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
In Pollock’s view, starting the limitations period in a
failure to promote case at the point of notice would depart from
Romano and thereby create different rules for different
circumstances within the FEHA statute of limitations case law.
But lack of notice was not at issue in Romano, so we had no
occasion to address situations where it may be unclear when the
aggrieved employee knew or should have known of the allegedly
unlawful conduct. In Romano, the plaintiff was told he would
be discharged, but at that point, the employer had not yet
discharged him. Here, Tri-Modal denied Pollock a promotion,
but we do not know when Pollock learned of the denial. Both
cases are consistent with a rule requiring both wrongful conduct
by the employer and actual or constructive notice to the
employee for the limitations period to start.
Finally, our construction of the FEHA statute of
limitations is not at odds with section 12960, former
subdivision (d)(1), which provided that the one-year limitations
period may be extended “[f]or a period of time not to exceed
90 days following the expiration of that year, if a person
allegedly aggrieved by an unlawful practice first obtained
knowledge of the facts of the alleged unlawful practice after the
expiration of one year from the date of their occurrence.” (See
§ 12960, subd. (e)(1) [similar language in current statute].)
Citing this provision, Kelso contends that “the Legislature has
provided a remedy for delayed discovery of unlawful
discriminatory employment acts”; the implication is that
construing the statute of limitations to require notice before the
clock begins to run would render the delayed discovery provision
surplusage.
We reject Kelso’s argument for two reasons that track the
two views of quid pro quo harassment described above. (Ante,
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
at pp. 7–8.) On the first view, which focuses on communication
of an offensive message, a quid pro quo harassment claim cannot
accrue until the offensive message — here, that an employee
was denied a promotion because of her refusal to submit to a
supervisor’s sexual advances — actually or constructively
reaches the employee. In other words, notice of the employment
action is integral to the existence of a claim of quid pro quo
harassment. Such notice cannot be characterized as “delayed
discovery of unlawful discriminatory employment acts”; rather,
the notice — by virtue of its communicative impact — is a
necessary component of the unlawful discriminatory
employment act. On this view, the 90-day delayed discovery
provision is not relevant to this case.
Under the second view of quid pro quo harassment, the
failure to promote Pollock is relevant not because it
communicates an offensive message, but instead because it
demonstrates that Kelso in fact conditioned a job benefit on
Pollock’s submission to his sexual advances. Kelso asserts that,
on this view, the 90-day delayed discovery provision is relevant
to Pollock’s claim because section 12960, former
subdivision (d)(1) indicates that the Legislature did not intend
for notice to be part of the accrual rule for FEHA claims,
including discrimination and quid pro quo harassment claims.
But Kelso’s argument misapprehends the import of
section 12960, former subdivision (d)(1), which the court in City
of Belvedere, supra, 72 Cal.App.4th 84, elucidated. The plaintiff
in that case, Lewis Williams, applied to be a police officer. On
June 21, 1994, the city notified Williams by letter that he had
not been selected. On October 27, 1995, he learned that racial
discrimination may have played a part in the city’s decision not
to hire him. On November 13, 1995, he filed a complaint with
24
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
the DFEH alleging racial discrimination and thereafter
proceeded to superior court. (Id. at pp. 87–88.) In assessing the
timeliness of his DFEH complaint, the Court of Appeal held that
“the unequivocal wording of the June 21, 1994, letter” notified
Williams that the city had made a “final” decision not to hire
him, and thus the limitations period began to run on that date.
(Id. at p. 91; see id. at pp. 91–92 [distinguishing Romano].) The
court then addressed Williams’s argument that the limitations
period “was tolled during the period he did not know he was the
subject of discrimination” as a matter of “equitable principles.”
(Id. at p. 92.) On this point, the court cited section 12960’s
delayed discovery provision (a predecessor version virtually
identical to the provision at issue here) and explained: “Thus
the Legislature anticipated there may be situations where a
person does not learn he was the subject of discrimination until
after the one-year period has passed, and it provided a remedy
when that occurs: an extension ‘not to exceed 90 days.’ Since
the Legislature has provided a remedy for the problem Williams
has identified, we decline to formulate a different remedy.” (City
of Belvedere, at p. 93.) Because Williams had filed his DFEH
complaint more than 90 days beyond the one-year limitations
period, the court concluded that it was untimely. (Id. at p. 94.)
We express no view on whether City of Belvedere correctly
held that equitable tolling is unavailable in light of the delayed
discovery provision. (Cf. McDonald v. Antelope Valley
Community College Dist. (2008) 45 Cal.4th 88, 107 [“We discern
in [section 12960, former subdivision (d)(1)–(4)] no basis for
limiting the application of equitable tolling.”]; id. at p. 107, fn. 4
[distinguishing without approving City of Belvedere’s holding].)
For present purposes, we simply observe that City of Belvedere’s
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
understanding of the scenario addressed by the 90-day delayed
discovery provision flows from a natural reading of its terms.
The provision addresses a situation where “a person
allegedly aggrieved by an unlawful practice first obtained
knowledge of the facts of the alleged unlawful practice after the
expiration of one year from the date of their occurrence.”
(§ 12960, former subd. (d)(1), italics added; see § 12960,
subd. (e)(1).) The provision does not address a situation where
a person “first obtained knowledge of the alleged unlawful
practice” after the one-year limitations period. The phrase
“knowledge of the facts of the alleged unlawful practice”
suggests the discovery of specific features or circumstances of
the alleged unlawful practice, not its mere existence. (§ 12960,
former subd. (d)(1), italics added.) The scenario, as in City of
Belvedere, is one in which a person is aware of the alleged
unlawful practice (i.e., the person knows he or she has been
harassed, fired, not promoted, not hired, or otherwise injured)
but does not become aware of relevant facts until after the
ordinary limitations period has expired. As case law suggests,
this scenario is not uncommon (ante, at p. 17), and the provision
is naturally read to address it. By contrast, there is scant
indication of cases where a person was entirely unaware of the
alleged unlawful practice throughout the ordinary limitations
period and only later became aware of it. There is little basis to
infer that the provision was meant to address such a scenario.
In sum, section 12960, former subdivision (d)(1) does not
undermine our conclusion that a FEHA quid pro quo
harassment claim based on a failure to promote begins to run at
the point when the aggrieved employee knows or reasonably
should know of the allegedly unlawful promotion decision.
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
E.
A further question that divides the parties is whether the
burden of proving when the employee knew or should have
known of the adverse promotion decision falls on the plaintiff or
defendant. Pollock argues that because notice to the aggrieved
employee is an element the statute of limitations defense, the
burden falls on the defendant. Kelso contends that the burden
falls on the aggrieved employee to prove lack of knowledge in
response to the defendant’s statute of limitations defense. We
hold that Pollock has the better view.
The statute of limitations is an affirmative defense, and as
with any affirmative defense, the burden is on the defendant to
prove all facts essential to each element of the defense. (Evid.
Code, § 500 [“Except as otherwise provided by law, a party has
the burden of proof as to each fact the existence or nonexistence
of which is essential to the . . . defense that he is asserting.”]; see
Samuels v. Mix (1999) 22 Cal.4th 1, 10 [“a defendant must prove
the facts necessary to enjoy the benefit of a statute of
limitations”]; Kaiser Foundation Hospitals v. Workers’ Comp.
Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8 [“The running of the
statute of limitations is an affirmative defense . . . and the
burden of proving it has run, therefore, is on the party opposing
the claim” (citation omitted)].) In a FEHA harassment case
based on a failure to promote, an element of the statute of
limitations defense is that the plaintiff knew or should have
known about the employer’s adverse promotion decision more
than one year (or now, three years) before filing his or her
administrative complaint. (§ 12960, former subd. (d); see
§ 12960, subd. (e).) The burden is on the defendant to prove all
facts essential to that element.
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
This approach makes sense because the timing and
manner of notifying an employee of an adverse promotion
decision are often uniquely within the defendant’s control. The
defendant is often a supervisor or employer that has control over
the promotion process, and it is such a defendant’s prerogative
to decide if, when, and how an employee will be notified of a
promotion decision. To be sure, the employee has personal
knowledge that is relevant to the inquiry. And there may be
cases where the defendant does not have control over the
notification process or where express notification is difficult to
effectuate. But, on balance, placing the burden of proof on the
defendant properly incentivizes clear and timely notification to
the employee by the party that is in the best position to promote
clarity and certainty as to when the limitations period begins.
Kelso argues that “[e]ven if it is true that the statute of
limitations is an affirmative defense and defendants must prove
that the plaintiff’s claim is untimely, a plaintiff seeking to
establish a triable issue of material fact regarding the
affirmative defense has the burden of producing evidence to
create a dispute.” In his view, once he “proved that Pollock’s
claimed harm accrued before the one-year limitation period, the
burden shifted to Pollock to prove that she did not have
knowledge, did not discover, and did not know of facts that
would cause a reasonable person to suspect she has suffered
harm that was caused by someone’s wrongful conduct.”
But Kelso has not proven that Pollock’s claimed harm
accrued before the beginning of the one-year statute of
limitations period. The Directions for Use for CACI No. 454
explain that “ ‘[c]laimed harm’ refers to all of the elements of the
cause of action, which must have occurred before the cause of
action accrues and the statute of limitations begins.” Kelso has
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
merely shown that Gonzalez received and accepted an offer of
promotion in March 2017. He has not shown that Pollock had
actual or constructive notice of the disputed promotion decision
in March 2017. Thus, he has not shown sufficient facts to make
out his statute of limitations defense.
Kelso relies on Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850, but that case does not help his argument.
Aguilar involved a summary judgment motion contesting a core
element of the plaintiff’s underlying antitrust claim. (Id. at
pp. 838–840.) We noted that “how the parties moving for, and
opposing, summary judgment may each carry their burden of
persuasion and/or production depends on” the issues addressed
in the given summary judgment motion. (Id. at p. 851.) For
example, we explained that how the parties meet their
respective burdens can depend on “which [party] would bear
what burden of proof at trial.” (Ibid.) Because Aguilar does not
discuss how the parties might meet their respective burdens
with regard to a statute of limitations defense, it does not speak
to the question here.
Kelso also relies on CACI Nos. 454 and 455 to argue that
if Pollock did not know of the adverse promotion decision in
March 2017, the burden was on her to invoke the common law
delayed discovery rule. Courts have relied on that rule to toll or
expand the statute of limitations in cases where starting the
limitations period on the date of the plaintiff’s injury would be
“ ‘manifestly unjust’ ” because “[t]he injury or the act causing
the injury, or both, have been difficult for the plaintiff to detect.”
(April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826,
831.) The rule has been applied in cases involving breach of a
fiduciary relationship, professional malpractice, underground
trespass, personal injury, invasion of the right to privacy, libel,
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
and latent defects in real property. (Id. at pp. 827–830.) In such
cases, the burden typically falls on the plaintiff to “plead facts
sufficient to convince the trial judge that delayed discovery was
justified. And when the case is tried on the merits the plaintiff
bears the burden of proof on the discovery issue.” (Id. at p. 832.)
Here, however, discovery of the adverse promotion
decision is part of the accrual rule. (See Cada v. Baxter
Healthcare Corp. (7th Cir. 1990) 920 F.2d 446, 450 [elucidating
the distinction “between the accrual of the plaintiff's claim and
the tolling of the statute of limitations”].) The date of accrual
“is not the date on which the wrong that injures the plaintiff
occurs, but the date — often the same, but sometimes later —
on which the plaintiff discovers that he has been injured. . . .
The discovery rule is implicit in the holding of Ricks that the
statute of limitations began to run ‘at the time the tenure
decision was made and communicated to Ricks,’ 449 U.S. at 258,
101 S.Ct. at 504 (emphasis added).” (Ibid.) As case law
indicates (ante, at pp. 12–20), a refusal to promote has not
“occurred” for purposes of the statute of limitations until the
aggrieved employee has had actual or constructive notice.
In sum, when a defendant asserts a statute of limitations
defense against a FEHA failure to promote claim, the burden is
on the defendant to prove when the plaintiff knew or should
have known of the adverse promotion decision. The Court of
Appeal in this case concluded that the statute of limitations
began to run when Tri-Modal offered the promotion to Gonzalez
and she accepted it. It did not discuss when Pollock knew or
should have known that she was denied the promotion, nor did
it discuss whether Kelso, in asserting his statute of limitations
defense, established any facts concerning Pollock’s actual or
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
constructive knowledge. Accordingly, we reverse and remand
for further proceedings consistent with our opinion.
III.
We now turn to costs on appeal. Code of Civil Procedure
section 1034, subdivision (b) charges the Judicial Council with
establishing “allowable costs on appeal and the procedure for
claiming those costs.” The Judicial Council promulgated
California Rules of Court, rule 8.278 (Rule 8.278), which says:
“Except as provided in this rule, the party prevailing in the
Court of Appeal in a civil case other than a juvenile case is
entitled to costs on appeal.” (Rule 8.278(a)(1).) The rule further
says: “In the interests of justice, the Court of Appeal may also
award or deny costs as it deems proper.” (Rule 8.278(a)(5).)
Separately, the Legislature spoke directly to the subject of
costs and fees in the FEHA itself. Section 12965, subdivision (b)
(section 12965(b)), which provides a private right of action to
enforce the FEHA, says in relevant part: “In civil actions
brought under this section, the court, in its discretion, may
award to the prevailing party . . . reasonable attorney’s fees and
costs, . . . except that . . . a prevailing defendant shall not be
awarded fees and costs unless the court finds the action was
frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.”
The question is whether costs on appeal in a FEHA action
are governed by section 12965(b) or by Rule 8.278(a). The
former requires a finding that the plaintiff’s claim was frivolous
before costs may be awarded to a prevailing defendant; the
latter does not. The Court of Appeal here made no such finding
before awarding costs to defendants.
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
As an initial matter, section 12965(b) by its terms governs
the authority of “the court” to award fees and costs, with no
limitation on “the court” to which the provision applies. There
is no reason why an appellate court cannot determine whether
“the action was frivolous, unreasonable, or groundless when
brought” or whether “the plaintiff continued to litigate” —
including by taking an appeal — “after it clearly became so.”
(Ibid.) Nothing in the text of section 12965(b) suggests it does
not apply to appellate courts.
Kelso argues that Rule 8.278 speaks directly to costs on
appeal, whereas section 12965(b) “is silent regarding its
application to costs on appeal” and should be understood to
govern costs only in the trial court. We rejected a similar
argument in Morcos v. Board of Retirement (1990) 51 Cal.3d 924
(Morcos). The Court of Appeal in Morcos had held that because
section 31536 authorizes “ ‘the superior court in its discretion’ ”
to award reasonable attorney’s fees to prevailing plaintiffs in
cases involving retirement benefits and says “nothing about the
Courts of Appeal or Supreme Court having a similar authority
to award fees, the statute should not be construed to grant such
authority to the appellate courts.” (Morcos, at p. 927, italics
added by Morcos, quoting § 31536.) We disagreed, explaining
that such an interpretation would undermine “the purpose of
section 31536 — to place the government and individual
pensioners on a level playing field when it comes to litigation
over benefits.” (Morcos, at p. 929.) That goal could only be
achieved, we concluded, if successful pensioners could recover
attorney’s fees in appellate courts as well as the superior court.
(Ibid.)
Although the text of section 31536 “only made express
reference to the superior court,” we unanimously concluded in
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POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
Morcos that the statute also applied to appellate courts based on
its purpose and legislative history. (Morcos, supra, 51 Cal.3d at
p. 928.) Section 12965(b), by comparison, makes express
reference to “the court,” without limitation. And construing
section 12965(b) to apply to appellate costs and fees furthers the
statute’s purpose of promoting vigorous enforcement of our civil
rights laws by “ ‘encourag[ing] persons injured by
discrimination to seek judicial relief.’ ” (Williams v. Chino
Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 112
(Williams) [quoting legislative history of § 12965(b)].)
When the Legislature in 2018 amended section 12965(b)
by adding the phrase “a prevailing defendant shall not be
awarded fees and costs unless the court finds the action was
frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so” (Assem.
Bill No. 9 (2019–2020 Reg. Sess.); Stats. 2019, ch. 709, § 2,
subd. (b)), it made its intentions clear. The Assembly Judiciary
Committee explained that California courts depart from the “so-
called ‘American Rule’ where each party is responsible for its
own fees and costs” in civil rights cases and that “the provision
in this bill limiting the ability of a prevailing defendant to
recover fees and costs unless the plaintiff’s case is deemed
frivolous or without merit appears to codify existing case law.”
(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1300
(2017–2018 Reg. Sess.) as amended May 25, 2018, p. 8.) The
Senate Judiciary Committee said that “[u]nder existing law,
FEHA provides for an award of attorneys’ fees to a prevailing
plaintiff, but not to a defendant except under narrow
circumstances,” in order to “reflect[] the public policy that
society should incentivize enforcement of our civil rights laws.”
(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1300 (2017–
33
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
2018 Reg. Sess.) as amended Apr. 4, 2018, p. 24.) To allow a
prevailing FEHA defendant to collect fees and costs on appeal
when the plaintiff brought a potentially meritorious suit that
ultimately did not succeed would undercut the Legislature’s
intent to promote vigorous enforcement of our civil rights laws.
(See Williams, supra, 61 Cal.4th at pp. 113–115.)
Kelso contends that costs on appeal are likely lower on
average than costs at the trial level. Even if so, such costs “can
be substantial, and the possibility of their assessment could
significantly chill the vindication of employees’ civil rights.”
(Williams, supra, 61 Cal.4th at p. 114.) In Williams, we held
that the award of ordinary trial court costs in FEHA litigation
is governed by section 12965(b), not by the general fee-shifting
provision of Code of Civil Procedure section 1032,
subdivision (b). (Williams, at p. 99.) Although the language of
section 12965(b) at the time did not “distinguish between
awards to FEHA plaintiffs and to FEHA defendants,” we
concluded on the basis of legislative history and public policy
that “the Legislature intended trial courts to use the
asymmetrical standard of [Christiansburg Garment Co. v.
EEOC (1978) 434 U.S. 412] as to both fees and costs.” (Williams,
at p. 109.) Under that standard, “an unsuccessful FEHA
plaintiff should not be ordered to pay the defendant’s fees or
costs unless the plaintiff brought or continued litigating the
action without an objective basis for believing it had potential
merit.” (Id. at pp. 99–100.) We observed that “ordinary costs in
FEHA cases,” though typically less than attorney’s fees, can still
be substantial and that “[t]he Legislature could well have
believed the potential for a cost award in the tens of thousands
of dollars would tend to discourage even potentially meritorious
suits by plaintiffs with limited financial resources.” (Id. at
34
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
p. 113.) These considerations informed our conclusion that a
trial court must find the plaintiff’s FEHA claim objectively
groundless before awarding costs to a prevailing defendant. (Id.
at pp. 113–115.) Similarly here, even if costs on appeal are
lower on average than the “tens of thousands of dollars” typical
at the trial court level, such costs can still be large enough to
discourage employees from coming forward with potentially
meritorious claims. (Id. at p. 113.)
Kelso says Williams is distinguishable because Rule 8.278,
unlike Code of Civil Procedure section 1032, subdivision (b),
does not include the phrase “except as otherwise expressly
provided by statute.” (See Williams, supra, 61 Cal.4th at p. 105
[“section 12965(b) is an express exception to Code of Civil
Procedure section 1032(b)”].) But even without such language,
a rule of court must yield to an applicable statute when “ ‘it
conflicts with either the statute’s express language or its
underlying legislative intent.’ ” (In re Abbigail A. (2016)
1 Cal.5th 83, 92; see People v. Hall (1994) 8 Cal.4th 950, 960;
Cal. Const., art. VI, § 6, subd. (d) [rules adopted by the Judicial
Council “shall not be inconsistent with statute”].)
Section 12965(b) expressly governs “the court” in FEHA actions
without limitation, and allowing an award of costs on appeal to
a prevailing defendant without a finding that the plaintiff’s
action was objectively groundless would undermine the statute’s
purpose.
Finally, Kelso argues that construing section 12965(b) to
apply to costs on appeal would “incentivize FEHA plaintiffs who
do not prevail in the trial court to appeal nonetheless, even in
appeals that arguably lack merit.” But an appeal that
“arguably” lacks merit may well be recast as an appeal that
“arguably” has merit, and we see no indication that the
35
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
Legislature intended to discourage such appeals. To the
contrary, the Legislature sought to encourage aggrieved
employees to pursue potentially meritorious FEHA claims, and
exposing plaintiffs who bring nonfrivolous appeals to the risk of
paying defendants’ costs if unsuccessful would be inconsistent
with that objective.
In sum, we hold that section 12965(b) applies to costs on
appeal. An appellate court may not award costs or fees on
appeal to a prevailing FEHA defendant without first
determining that the plaintiff’s action was frivolous,
unreasonable, or groundless when brought, or that the plaintiff
continued to litigate after it clearly became so. In making this
determination, the court “should exercise caution to avoid
‘hindsight bias.’ ” (Chavez v. City of Los Angeles (2010)
47 Cal.4th 970, 986; see id. at p. 987 [noting that Christiansburg
Garment Co. v. EEOC, supra, 434 U.S. 412, 421–422,
“caution[ed] courts, in deciding whether to award attorney fees
to a prevailing defendant in an antidiscrimination action, to
‘resist the understandable temptation to engage in post
hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without foundation’ ”]; Williams, supra, 61 Cal.4th at pp. 99–
100 [“an unsuccessful FEHA plaintiff should not be ordered to
pay the defendant’s fees or costs unless the plaintiff brought or
continued litigating the action without an objective basis for
believing it had potential merit”].)
Upon such a finding, an appellate court has discretion to
award the full amount of costs and fees, a reduced amount, or
no amount at all. Because the Court of Appeal made no finding
as to whether Pollock’s claims were objectively groundless, we
vacate its award of costs to defendants.
36
POLLOCK v. TRI-MODAL DISTRIBUTION SERVICES, INC.
Opinion of the Court by Liu, J.
CONCLUSION
We reverse the Court of Appeal’s judgment, vacate its
award of costs on appeal, and remand the matter to that court
so that it may remand the case to the superior court for further
proceedings consistent with this opinion.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
37
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Pollock v. Tri-Modal Distribution Services, Inc.
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 47 Cal.App.5th 532
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S262699
Date Filed: July 26, 2021
__________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Lia R. Martin
__________________________________________________________________
Counsel:
Lipeles Law Group, Kevin A. Lipeles, Thomas H. Schelly and Julian B.
Bellenghi for Plaintiff and Appellant.
Larson & Gaston, Daniel K. Gaston and Gloria G. Medel for
Defendants and Respondents Scotts Labor Leasing Company, Inc., and
Pacific Leasing, Inc.
Lewis Brisbois Bisgaard & Smith, Jack E. Jimenez, Jeffrey B. Ranen,
Lann G. McIntyre and Tracy D. Forbath for Defendant and
Respondent Mike Kelso.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Julian B. Bellenghi
Lipeles Law Group, APC
880 Apollo St., Suite 336
El Segundo, CA 90245
(310) 322-2211
Lann G. McIntyre
Lewis Brisbois Bisgaard & Smith LLP
550 West C St., Suite 1700
San Diego, CA 92101
(619) 699-4976