Filed 1/20/15 Kohl v. Del Amo Hospital CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

KEITH KOHL,

Plaintiff and Appellant,

v.

DEL AMO HOSPITAL, INC., et al.,

Defendants and Respondents.

 B255428

 (Los Angeles County Super. Ct. 

 No. BC502941)

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory 

W. Alarcon, Judge. Reversed and remanded.

Henry J. Josefsberg for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Alan R. Zuckerman, Keri 

Lynn Bush, for Defendants and Respondents. 

________________________
2

Plaintiff and appellant Keith Kohl appeals from a judgment in favor of defendants 

and respondents Del Amo Hospital, Inc. and UHS of Delaware, Inc. (collectively, Del 

Amo) after the trial court determined a contractual six-month limitations period barred all 

the causes of action stated in Kohl’s complaint. The court ruled the shortened statute of 

limitations was not invalid as being unconscionable or a public policy violation. Kohl 

contends Ellis v. U.S. Security Associates (2014) 224 Cal.App.4th 1213 (Ellis) provides 

grounds for reversing the trial court’s decision with respect to the causes of action he 

asserts under the Fair Employment and Housing Act (FEHA) (Gov. Code, §§12900-

12996.)

1

 Kohl further contends that the shortened limitations period is unenforceable as 

to his nonstatutory, common law claims. We conclude that enforcement of the shortened 

limitations period would be unreasonable, not only as to Kohl’s FEHA claims, but as to 

his common law claims for wrongful termination in violation of public policy and 

wrongful demotion in violation of public policy as well.2 We reverse the judgment and 

remand the cause for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

On August 1, 2011, Kohl signed and submitted an online application seeking 

employment with Del Amo as a registered nurse. The last part of the application 

consisted of a certification and agreement, about three-quarters of a page long, in which 

the applicant certifies that the facts provided in the application are true, and agrees to 13 

separate items “[i]n consideration of being employed.” Item number 13 stated: “READ 

CAREFULLY BEFORE SIGNING. I agree that any claim or lawsuit relating to my 

service with [Del Amo] must be filed no more than six (6) months after the date of the 

 

1 All further statutory references are to the Government Code, unless otherwise 

stated.

2 Based on our conclusions, we decline to address other contentions raised on 

appeal by Kohl. 
3

employment action that is the subject of the claim or lawsuit. I waive any statute of 

limitations to the contrary.” 

Kohl’s employment with Del Amo began on August 25, 2011, and continued until 

his termination on April 6, 2012. According to Kohl, while he was employed at Del Amo 

as a night shift supervisor, he reported to his direct supervisor “multiple issues regarding 

patient safety, medication consent, and staffing issues.” He was demoted to the position 

of night shift charge nurse in February 2012, and terminated in April 2012. In a 

complaint filed with the California Department of Fair Employment and Housing 

(DFEH) on August 3, 2012, Kohl asserted he “was demoted and then terminated due 

to . . . whistleblowing activity in an atmosphere of gender discrimination.” DFEH issued 

a right to sue letter the same day. 

On March 14, 2013, Kohl filed an action against Del Amo, alleging eight causes 

of action based on allegations of discrimination, retaliation, and wrongful termination. 

Three of Kohl’s causes of action arose under FEHA and the remaining were nonstatutory, 

common law causes of action. Del Amo’s answer included an affirmative defense based 

on a contractual limitations period. 

Del Amo filed a pretrial motion seeking a bifurcated trial, requesting the court to 

first decide whether Kohl’s claims were barred by a contractual limitations period. Del 

Amo contended that all of Kohl’s claims were barred by the agreement imposing a sixmonth limitations period on any claim or lawsuit relating to Kohl’s employment with Del 

Amo.

The court held a bench trial limited to the question of whether the contractually 

shortened limitations period barred Kohl’s claims. Noting that there were no contested 

factual issues and that neither side had cited governing law directly on point, the trial 

court concluded that “the shortened statute of limitations is enforceable and a bar to this 
4

lawsuit, and not invalid as being unconscionable, or a public-policy violation per se.” 

Kohl filed a timely appeal.3

DISCUSSION

Standard of Review

“It is a question of law whether a case or a portion of a case is barred by the statute 

of limitations, and we are not bound by the trial court’s determination and instead 

conduct a de novo review.” (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 

1448; see also City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 

64, 71 [contracts are reviewed de novo unless interpretation turns on extrinsic evidence]; 

Price v. Connolly-Pacific Co. (2008) 162 Cal.App.4th 1210, 1218 [issues presented based 

on stipulated facts are reviewed de novo].)

FEHA Claims

It is well-settled under California law that parties to a contract may agree to 

shorten the statute of limitations, “provided the period fixed be not so unreasonable as to 

show imposition or undue advantage in some way.” (Beeson v. Schloss (1920) 183 Cal. 

618, 622 (Beeson).) In order to be reasonable, a contractually shortened limitations

period “‘must provide a party sufficient time to effectively pursue a judicial remedy. A 

contractual period of limitation is reasonable if the plaintiff has a sufficient opportunity to 

investigate and file an action, the time is not so short as to work a practical abrogation of 

the right of action, and the action is not barred before the loss or damage can be 

 

3 Kohl filed a notice of appeal on March 28, 2014, before judgment was signed 

and entered on April 9, 2014. We treat the premature notice of appeal as a valid appeal 

from the judgment. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 

1262.) 
5

ascertained. On the other hand, a contractual limitation provision that requires the 

plaintiff to bring an action before any loss can be ascertained is per se unreasonable.’ 

[Citation.]” (Ellis, supra, 224 Cal.App.4th at p. 1223.) The reasonableness of the 

agreement is determined based on the circumstances existing at the time the parties enter 

into an agreement, not at the time the suit is filed. (Capehart v. Heady (1962) 206 

Cal.App.2d 386, 389 (Capehart).) 

California courts have upheld contractual agreements to shorten applicable 

limitations periods in a variety of contexts. (Tebbets v. Fidelity and Casualty Co. (1909) 

155 Cal. 137, 139 [six-month limitations period on actions for benefits under an accident

life insurance policy not unreasonable]; Beeson, supra, 183 Cal. 618, 622 [six-month 

period to bring action for unpaid commissions reasonable]; Capehart, supra, 206 

Cal.App.2d 386, 391 [reasonable to require tenant to sue within three months of 

landlord’s notice to quit].) 

Courts have examined whether it is substantively unconscionable to shorten the 

applicable statute of limitations, particularly in the employment context. Some courts 

have found unconscionability (see, e.g., Martinez v. Master Protection Corp. (2004) 118 

Cal.App.4th 107, 117-118 (Martinez) [contractual six-month limitations period for 

bringing statutory discrimination claims is unconscionable and insufficient to protect 

employees’ right to assert their statutory rights]), while others have not (see, e.g., Soltani 

v. Western & Southern Life Ins. Co. (9th Cir. 2001) 258 F.3d 1038, 1043 (Soltani) [“the 

weight of California case law strongly indicates that the six-month limitation provision is 

not substantively unconscionable”]; West v. Henderson (1991) 227 Cal.App.3d 1578, 

1588 [six-month contractual limitations period in a lease not unconscionable, despite lack 

of mutuality], overruled on other grounds in Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Ass’n (2013) 55 Cal.4th 1169).

At the time the trial court ruled on the enforceability of the six-month limitations 

period in the present case, no California court had examined whether it would be 

unreasonable for parties to contractually shorten the statute of limitations applicable to 

FEHA claims. Less than a month after the court held its bench trial and found the 
6

contractually shortened limitations period enforceable, the First District Court of Appeal 

published Ellis, examining the very issue before the trial court in our case and holding 

that an agreement for a six-month limitations period applicable to FEHA claims was 

unreasonable and against public policy. (Ellis, supra, 224 Cal.App.4th at pp. 1220-

1232.) We briefly summarize the reasoning in Ellis below.

The Ellis court first reviewed the public policies underlying the FEHA statutory 

scheme and the protections it offers to employees, pointing out that the act “declares it 

the ‘public policy’ of California to ‘protect and safeguard’ the rights of employees 

against discrimination.” (Ellis, supra, 224 Cal.App.4th at p. 1220.) It explained the 

administrative process for filing a claim with DFEH, noting that a claimant had one year 

from the date of the unlawful act to file a claim, and one year after DFEH issued a “right 

to sue” letter to file a lawsuit. (Id. at p. 1221.) Next, the court explained the policy

purposes behind statutes of limitations: “As distilled by our Supreme Court, there are 

‘several policies underlying such statutes. One purpose is to give defendants reasonable 

repose, thereby protecting parties from “defending stale claims, where factual obscurity 

through the loss of time, memory or supporting documentation may present unfair 

handicaps.” [Citations.] A statute of limitations also stimulates plaintiffs to pursue their 

claims diligently. [Citations.] A countervailing factor, of course, is the policy favoring 

disposition of cases on the merits rather than on procedural grounds. [Citations.]’ 

[Citation.]” (Ibid.)

Turning next to the question of whether an employment application could contain 

an agreement to shorten the limitations period applicable to FEHA claims, the Ellis court 

pointed out that a leading employment law treatise had already called into question the

enforceability of such a provision, and that Martinez had found such a provision to be 

“unconscionable, ‘permeated with illegality, and unenforceable.’ [Citation.]” (Ellis, 

supra, 224 Cal.App.4th at. p. 1224.) In Martinez, the court emphasized that statutory 

claims such as FEHA claims or wage and hour claims under the Labor Code have a 

different status with respect to whether and how the statutory protections associated with 

such claims may be waived. (Martinez, supra, 118 Cal.App.4th at pp. 117-118.)
7

Specifically, in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 

Cal.4th 83, 101 (Armendariz), the California Supreme Court has emphatically held that 

“parties agreeing to arbitrate statutory claims must be deemed to ‘consent to abide by the 

substantive and remedial provisions of the statute . . . .’” 

The Ellis court then reasoned that because the FEHA statutory scheme provided a 

two to three-year time frame for filing a lawsuit, the Legislature had determined that 

period was necessary to provide an effective remedy under FEHA. In contrast, a sixmonth period would not provide “‘sufficient time for the effective pursuit of the judicial 

remedy.’” (Ellis, supra, 224 Cal.App.4th at p. 1225, quoting 3 Witkin, Cal. Procedure 

(5th ed. 2008) Actions, § 469, p. 595.) Permitting an employee to agree to so 

dramatically reduce the time frame for vindicating his or her statutory rights under FEHA 

(from a maximum of three years down to six months) would violate the public policy 

underpinning FEHA. (Ellis, supra, at p. 1225.) 

The Ellis court went on to discuss other aspects of the law that provided support 

for its conclusion. In 2002, the Legislature had increased the limitations period 

applicable to lawsuits seeking redress for wrongful acts or neglect resulting in personal 

injury, finding a one-year period “unduly short” and adopting a two-year period to ensure 

fairness to all parties. The Ellis court agreed with the legislative finding that an extended 

limitations period would potentially reduce litigation because a victim would have more 

time to investigate and develop a case, and potentially settle it before even filing a suit. 

(Ellis, supra, 224 Cal.App.4th at p. 1226.) The Ellis court also pointed out that a sixmonth limitations period would not be reasonable because it “effectively eliminates any 

meaningful participation by the DFEH,” a key aspect of the FEHA statutory scheme. 

(Ibid.) The court also found a six-month limitations period would lead to some 

anomalous results, including differing deadlines for different acts, rather than a single 

deadline measured from the date DFEH issues a right-to-sue letter, and a situation where 

the corporate employer would have the benefit of a contractually shortened limitation 

period, while individual defendants (who are not parties to the agreement) would not. 

(Ibid.)
8

The Ellis court rejected the defendant’s argument, similar to the one made by 

respondents in this appeal, that California law has historically permitted parties to freely 

contract to shorten applicable limitations periods. It distinguished a number of

employment cases upholding shortened limitations periods, including Soltani. The 

plaintiffs in Soltani sued for wrongful termination in violation of public policy and unfair 

business practices, but did not assert any statutory claims under FEHA. The agreement 

was also different, involving a six-month limitations period that began running from the 

date of termination, therefore permitting a longer time for acts occurring during 

employment. (Ellis, supra, at p. 1229.) The Ellis court instead focused on Soltani’s

striking of a 10-day notice provision as lacking any justification. Because there was no 

proffered or reasonable justification for requiring an employee to provide the company a 

written notification 10 days before filing suit, the Soltani court concluded that the effect 

was “‘merely to “maximize employer advantage” and bar any suits relating to the 

employment agreement.’” (Ellis, supra, at p. 1230, quoting Soltani, supra, 258 F.3d at 

pp. 1046-1047.) 

Ultimately, we agree with Ellis’s reasoning that a contract that shortens the 

limitations period for pursuing statutory claims, here plaintiff’s FEHA claims, merits

closer scrutiny by virtue of the fact that such agreements involve a statutory scheme 

embodying legislatively enacted public policies that have been given special protection in 

other contexts. (Sonic-Calabasas A., Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145-1152; 

Armendariz, supra, 24 Cal.4th at p. 101.) The Legislature has enacted a limitations 

period and process uniquely applicable to FEHA claims. (§§ 12960, subd. (d); 12965, 

subds. (b) and (d)). Decisions by the California Supreme Court clearly hold that private 

parties cannot contractually waive the statutory protections contained in FEHA and 

similar schemes. Relying on those decisions and Ellis, we conclude that the shortened, 

six-month limitations period is unreasonable and unenforceable with respect to Kohl’s 

FEHA claims. 
9

Common Law Claims

We conclude the six-month limitations period is also unenforceable as to Kohl’s 

common law wrongful termination and demotion causes of action because it would 

undermine public policy and therefore be unreasonable to require the claims to be 

brought in such a short time frame. 

Kohl seeks to proceed on two common law causes of action: wrongful demotion 

in violation of public policy and wrongful termination in violation of public policy.4

Causes of action for wrongful demotion in violation of public policy and wrongful 

termination in violation of public policy are only viable if a plaintiff alleges adverse 

employment actions that contravene fundamental and substantial public policy. (Boston 

v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 947 [plaintiff’s discharge for 

complaining about unsafe work environment supported claim for wrongful termination in 

violation of public policy]; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 670-

671 [wrongful termination in violation of public policy]; Garcia v. Rockwell Internat. 

Corp. (1986) 187 Cal.App.3d 1556, 1561 [wrongful demotion in violation of public 

policy], abrogated on other grounds in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 

1093.) Such claims are often referred to as Tameny5 claims. The discussion in Ellis

about the public policies underlying the FEHA statutory scheme persuades us that 

enforcing a contractually shortened limitations period with respect to Tameny claims 

would also not be reasonable. Doing so would reduce the time to bring a Tameny claim 

from one year (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 

1200, 1209) to six months, and would impact not only the contracting parties, but the 

 

4 Kohl’s counsel conceded at oral argument he would no longer be pursuing the 

cause of action for intentional infliction of emotional distress. The record does not reveal 

why the causes of action for unsafe working conditions and unfair business practices, 

originally pled in Kohl’s complaint, were no longer at issue at trial. Our analysis only 

addresses the remaining two common law causes of action. 

5 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).
10

public that has a generalized interest in continued enforcement of well-established public 

policies. Our conclusion is supported by the holding in Little v. Auto Stiegler, Inc. (2003) 

29 Cal.4th 1064, 1077, where the California Supreme Court concluded that employees 

could not contractually waive their right to bring Tameny claims because “an 

employment agreement that required employees to waive claims that they were 

terminated in violation of public policy would itself be contrary to public policy.” The 

court explained its reasoning as follows: “A Tameny claim is almost by definition 

unwaivable. ‘[The] public policy exception to the at-will employment rule must be based 

on policies “carefully tethered to fundamental policies that are delineated in 

constitutional or statutory provisions . . . .”’ [Citation.] Moreover, the public policy that 

is the basis for such a claim must be ‘“‘public’ in that it ‘affects society at large’ rather 

than the individual, must have been articulated at the time of discharge, and must be 

‘“fundamental”’ and ‘“substantial”’”’ [Citation.] Thus, a legitimate Tameny claim is 

designed to protect a public interest and therefore ‘“cannot be contravened by a private 

agreement.”’ [Citation.]” (Ibid.) 
11

DISPOSITION

The judgment is reversed and the cause is remanded for further proceedings. 

Parties to bear their own costs on appeal.

KRIEGLER, J. 

We concur: 

TURNER, P. J.

GOODMAN, J. *

 

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.