Filed 8/29/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GUILLERMO AVILES-RODRIGUEZ,

Plaintiff and Appellant,

v.

LOS ANGELES COMMUNITY 

COLLEGE DISTRICT,

Defendant and Respondent.

B278863

(Los Angeles County

 Super. Ct. No. BC599158)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Barbara A. Miers, Judge. Reversed.

Knapp, Petersen & Clarke, André E. Jardini, Gwen 

Freeman, and K.L. Myles for Plaintiff and Appellant.

Wood, Smith, Henning & Berman, Stacey F. Blank, and 

Shannon M. Benbow for Defendant and Respondent.

___________________________________________
2

INTRODUCTION

This case calls upon us to decide an issue previously 

addressed, though not definitively decided, by our Supreme 

Court. In Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 

479 (Romano), the court held that under the Fair Employment 

and Housing Act (FEHA), Government Code section 12900 et 

seq.,

1

a party alleging that a discriminatory act led to the 

termination of his or her employment has until one year from the 

date the employment terminated to file an administrative claim. 

Romano involved an at-will employee; the instant case involves a 

professor denied tenure. These factual distinctions arguably are 

of legal significance. Nevertheless, based on our Supreme Court’s 

criticism of a United States Supreme Court case involving a 

denial of tenure and its disapproval of a California case deemed 

analogous to a denial of tenure, we interpret the court’s reasoning 

as a directive to apply the holding of Romano to the instant case.

Appellant Guillermo Aviles-Rodriguez previously was 

employed by respondent Los Angeles Community College District 

(LACCD) as a professor. On November 21, 2013, a tenure review 

committee voted to deny appellant tenure. Following a February 

26, 2014 review and final vote by the Board of Trustees, 

appellant received written notice on March 5 that tenure had 

been denied. Before receiving notice of the Board’s final decision, 

appellant initiated a grievance procedure, the third and final step 

of which was denied by a grievance review committee on May 21, 

2014. That same month appellant allegedly contacted the 

Department of Fair Employment and Housing (DFEH) to discuss 

 

1 All further statutory citations are to the Government Code, 

unless otherwise indicated. 
3

the filing of a claim alleging racial discrimination including, but 

not limited to, the denial of tenure, and was advised that he had 

until one year from the last day of his employment to file a 

complaint with the DFEH. Appellant’s employment terminated 

June 30, 2014, the last day of the academic year, and on June 29, 

2015, he filed his complaint with DFEH. After being issued a 

right-to-sue letter, appellant filed the instant action against 

LACCD. Following several demurrers, appellant filed his third 

amended complaint (TAC), the operative complaint. The TAC 

alleged a single cause of action under the FEHA against LACCD 

for denial of tenure and termination based on racial 

discrimination. 

LACCD demurred to the TAC, arguing that appellant’s 

claim was barred because he failed to file his DFEH complaint 

within one year “from the date upon which the alleged unlawful 

practice . . . occurred.” (§ 12960, subd. (d).) It asserted the 

trigger date for the commencement of the one-year period was the 

date tenure was denied. Relying on Romano, appellant argued 

he had one year from the last day of his employment to file the 

DFEH complaint. The trial court sustained the demurrer

without leave to amend and ordered the case dismissed. 

Were we writing on a blank slate, we might conclude that 

the one-year limitations period to file a DFEH complaint begins 

to run on the date the employee is notified of the final tenure 

decision. However, although Romano did not involve a wrongful 

termination resulting from the denial of tenure, we read its 

discussion of both federal and state cases involving the denial of 

tenure or analogous facts as a clear directive that its holding 

should be applied here. In light of Romano, we conclude the oneyear limitations period for appellant to file a timely DFEH 
4

complaint began to run from the last day of his employment. As 

he filed his DFEH complaint within that period, his claim was 

timely. Accordingly, we reverse the judgment dismissing the 

TAC.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

On October 27, 2015, appellant, an Hispanic man of 

Mexican heritage, filed a complaint for damages alleging causes 

of action against LACCD for (1) employment discrimination 

(failure to grant tenure - race) in violation of the FEHA; (2) 

employment discrimination (termination - race) in violation of the 

FEHA; and (3) discrimination [in] violation of public policy.

2 On 

January 13, 2016, appellant filed a first amended complaint 

(FAC) alleging a single cause of action for employment 

discrimination (termination - race) in violation of the FEHA. In 

the cause of action for wrongful termination, the FAC alleged 

that “LACCD has engaged in endemic race based employment 

discrimination, affecting Plaintiff, and resulting in his denial of 

tenure.” It further alleged that “LACCD has engaged in endemic 

race based employment discrimination, affecting Plaintiff, and 

resulting in his termination from employment.” 

LACCD demurred to the FAC on the ground that appellant 

had failed to exhaust his administrative and judicial remedies.

After the trial court sustained the demurrer with leave to amend, 

appellant filed a second amended complaint (SAC). LACCD 

demurred to the SAC on the ground that the action was barred by 

 

2 A cause of action for defamation-slander against an 

individual defendant was later abandoned. 
5

the applicable statute of limitations.

3

It argued that because 

appellant filed his DFEH complaint more than one year after 

becoming aware of the decision to deny him tenure, his action 

was barred under the one-year limitations period in section 

12960, subdivision (d).

4

The trial court sustained the demurrer to the SAC with 

leave to amend, after determining that the limitations period 

began to run on November 21, 2013 (the date of the tenure review 

committee’s vote) and that appellant failed to plead facts showing 

equitable tolling. Appellant then filed his TAC, the operative 

complaint. Similar to the prior amended complaints, the TAC’s

sole cause of action under the FEHA alleged that “LACCD has 

engaged in endemic race based employment discrimination, 

affecting Plaintiff, and resulting in his denial of 

tenure . . . [¶] . . . [and] in his termination from employment.” 

The TAC re-alleged that appellant was denied tenure on 

November 21, 2013 due to his Mexican ethnicity. It further 

alleged that on November 25, 2013, Deborah Paulsen, chair of the 

art department, directed appellant in writing to refrain from 

 

3 LACCD reiterated its argument on the exhaustion of 

administrative and judicial remedies in subsequent demurrers, 

but the trial court did not rule on the issue, and LACCD does not 

raise it on appeal. 

4 LACCD did not specify when the one-year limitations 

period began to run. Rather, it argued that appellant became 

aware of the tenure committee’s decision -- and the statute of 

limitations began to run -- no later than February 18, 2014, when 

appellant initiated his grievance contesting the decision, or no 

later than February 26, 2014, when LACCD’s Board of Trustees 

“reviewed the decision for a final vote.” 
6

raising any questions about the tenure decision. Appellant 

received written notice of the Board of Trustees’ final tenure

decision on March 5, 2014, and his employment terminated the 

last day of the academic year, June 30, 2014. 

The TAC alleged that appellant grieved the tenure 

decision, and his grievance was finally denied May 21, 2014. It 

further alleged that appellant made a “Pre Complaint Inquiry 

with the DFEH in May of 2014 and was provided with an advisor, 

Elida Ramirez (‘Ramirez’) for the express purpose of assisting 

Plaintiff to properly and timely assert his claim. Plaintiff

explained the basis for his complaint of discrimination, including 

but not limited to the decision to deny him tenure. Ramirez 

expressly told Plaintiff that he had one year from his last day of 

employment to file his DFEH complaint, or June 30, 2015.” The 

TAC alleged that appellant filed his DFEH complaint on June 29, 

2015. 

LACCD demurred to the TAC, arguing that the action was 

barred because appellant had failed to file a timely DFEH 

complaint and had not pleaded facts sufficient to support 

equitable tolling of the statute of limitations. According to 

LACCD, as set forth in the TAC, appellant was employed under a 

third contract of employment covering the 2012 through 2014 

academic years. Pursuant to Education Code section 87609, with 

respect to an employee under a third contract, a community 

college district has only two options: (1) to employ the 

probationary employee as a tenured employee for all subsequent 

academic years or (2) to not employ the probationary employee as 

a tenured employee. Here, the TAC alleged that the decision to 

deny tenure was made November 21, 2013, and appellant was 

aware of the tenure decision as of November 25, 2013. LACCD 
7

asserted that the adverse employment action was the denial of 

tenure. Because appellant was aware of the denial of tenure as of 

November 25, 2013, LACCD argued he had one year from that 

date to file his DFEH complaint.5

LACCD further contended that appellant’s claim was not 

saved by equitable tolling. Although LACCD acknowledged that 

misrepresentations by the DFEH may equitably toll the time for 

filing a complaint, it argued that appellant had failed to plead

that he diligently pursued his claim after receiving the allegedly 

erroneous advice from the DFEH advisor. 

Relying on the Supreme Court’s decision in Romano, 

appellant argued the statute of limitations for filing his 

administrative claim did not begin to run until the date his 

employment ended. He further argued that even if the statute

began to run before that date, he was entitled to equitable tolling, 

as he reasonably relied on the advice of DFEH advisor Ramirez to 

believe he had until June 30, 2015 to file his DFEH complaint. 

 

5 LACCD did not address Education Code section 87610, 

subdivision (b). That section provides: “The governing board 

shall give written notice of its decision under Section 87609 and 

the reasons therefor to the employee on or before March 15 of the 

last academic year covered by the existing contract. The notice 

shall be by registered or certified mail to the most recent address 

on file with the district personnel office. Failure to give the 

notice as required to a contract employee under his or her third 

consecutive contract shall be deemed a decision to employ him or 

her as a regular employee for all subsequent academic years.” 

(Ed. Code, § 87610, subd. (b).) Thus, under LACCD’s 

interpretation, the statute of limitations would begin to run 

before written notice was given and before the decision to deny 

tenure had legal effect. 
8

On September 22, 2016, the trial court issued a ruling 

sustaining the demurrer to the TAC without leave to amend and 

dismissing the action. In its decision, the court ruled that 

appellant’s failure to file his DFEH complaint “within one year 

from denial of tenure in November 2013” barred his claim for 

unlawful “‘discharge’” under the FEHA. The court distinguished 

Romano on factual and legal grounds. It also rejected his claim 

of equitable tolling. 

Judgment dismissing the TAC was entered October 26, 

2016. Appellant timely appealed. 

DISCUSSION

Appellant contends the trial court erred in sustaining the 

demurrer to the TAC. Specifically, he argues that the court 

misapplied the applicable statute of limitations and failed to 

consider his allegations of equitable tolling. We review a 

judgment of dismissal entered after an order sustaining a 

demurrer de novo. (Zelig v. County of Los Angeles (2002) 27 

Cal.4th 1112, 1126.) “We must take the allegations of the 

operative complaint as true and consider whether the facts 

alleged establish [appellant’s] claim is barred as a matter of law.” 

(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 

1191.) As explained below, under the reasoning in Romano, we 

conclude appellant timely filed his DFEH complaint when he did 

so within one year of the last day of his employment, June 30, 

2014. 

In the sole cause of action under the FEHA, appellant 

alleged that he was denied tenure and his employment was

terminated as a result of illegal discrimination. The filing of a 

DFEH complaint within one year of “the date upon which the 
9

alleged unlawful practice . . . occurred” is a condition precedent to 

the filing of a civil action. (§ 12960, subd. (d).) Appellant 

contends that under the reasoning of Romano, the one-year 

limitations period to file a DFEH complaint for wrongful denial of 

tenure resulting in employment termination begins to run from 

the last day of employment. LACCD contends the one-year 

limitations period began to run when “the decision to deny tenure

was made,” as the tenure decision inevitably resulted in the 

termination of appellant’s employment.

6

In selecting the date when the statute of limitations

commences, we are mindful of the public policy animating the 

FEHA. The purpose of the FEHA is to “safeguard the employee’s 

right to seek, obtain, and hold employment without experiencing 

discrimination.” (Romano, supra, 14 Cal.4th at p. 493, citing §§ 

12920, 12921.) “The FEHA itself requires that we interpret its 

 

6 Before the trial court, LACCD argued that the one-year 

limitations period set forth in section 12960 began to run either 

from the date of the tenure review committee’s vote (November 

21, 2013) or the date appellant became aware of the vote. It 

characterized the latter as either when appellant spoke with 

Paulsen about the committee’s vote (November 25, 2013) or when 

he initiated his grievance contesting the committee’s tenure 

decision (February 18, 2014). In its appellate brief, LACCD 

argued the FEHA statute of limitations began to run from the 

date of the tenure committee’s vote (“November 2013”). During 

oral argument, LACCD argued for the first time that the statute 

began to run from the date the tenure decision became final, 

identifying that date as May 21, 2014, when appellant’s grievance 

was finally denied by the grievance review committee. At no time 

did LACCD suggest the statute began to run on March 5, 2014, 

the date appellant was notified of the Board’s final tenure 

decision. 
10

terms liberally in order to accomplish the stated legislative 

purpose.” (Ibid., citing § 12993, subd. (a).) “‘This liberal 

construction extends to interpretations of the FEHA’s statute of 

limitations.’” (McDonald v. Antelope Valley Community College 

Dist. (2008) 45 Cal.4th 88, 108 (McDonald), quoting Richards v. 

CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819.) 

In Romano, our Supreme Court was asked to determine 

when the one-year limitations period begins to run for wrongful 

termination of an at-will employee. The employer argued the 

statute of limitations should run from the date the employee was 

notified he would be terminated; the employee argued it should 

run from the date his employment was terminated. In a 

unanimous opinion authored by Chief Justice George, in which 

Justice Kennard separately concurred, our Supreme Court 

concluded that the purpose of the FEHA would be better served 

by interpreting the statute of limitations on a wrongful 

termination claim to run from “the date of actual termination, 

and not from notification of termination.” (Romano, supra, 14 

Cal.4th at p. 494.) The court determined that the remedial 

purpose of the FEHA would be furthered if the statute of 

limitations began to run on the latter date, as many employees do 

not begin to pursue their legal remedies for unlawful discharge 

until after a dismissal has occurred. (Ibid., citing Ross v. Stouffer 

Hotel Co. (Hawai'i) Ltd. (1994) 76 Hawai’I 454 [879 P.2d 1037, 

1045] (Ross).) Interpreting the limitations period to begin 

running from the date of actual termination, the court reasoned,

would “promote the resolution of potentially meritorious claims 

on the merits.” (Romano, supra, at p. 494.) 

The court concluded that such an interpretation would not 

impose an undue burden on employers by forcing them to defend 
11

stale claims because the period between notification and 

termination usually is short. (Romano, supra, 14 Cal.4th at p. 

494, citing Ross, supra, 879 P.2d at p. 1045.) The court further 

observed that its interpretation had “the obvious benefit of 

simplicity,” as, inter alia, “the date of actual termination is a date 

that in most cases is subject to little dispute.” (Ibid.) Finally, the 

court noted, a contrary interpretation -- “that the statute of 

limitations on a claim under the FEHA runs from the time of 

notification of termination [--] would promote premature and 

potentially destructive claims, in that the employee would be 

required to institute a [DFEH] complaint . . . while he or she still 

was employed, thus seeking a remedy for a harm that had not yet 

occurred.” (Id. at p. 494.) 

Although Romano did not involve an employment 

termination resulting from the denial of tenure, the court 

discussed at length both federal and state decisions involving a 

denial of tenure or circumstances analogous to tenure denial. It 

first addressed the United States Supreme Court’s decision in 

Delaware State College v. Ricks (1980) 449 U.S. 250 (Ricks), a 

case involving an analogous statute of limitations under Title VII 

of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). There, 

a professor was denied tenure, but given a one-year “‘terminal’” 

contract. In his subsequent suit alleging racial discrimination, 

the Third Circuit held that the time for filing an administrative 

complaint ran from the date the professor’s employment ended. 

Reversing, the Supreme Court held the time ran from the date of 

the alleged unlawful employment practice, viz., the denial of 

tenure. Noting that termination of employment at the end of the

one-year contract was merely the “delayed, but inevitable, 

consequence of the denial of tenure” (Ricks, supra, at pp. 257-
12

258), the court held that the date commenced to run “when the 

tenure decision was made and Ricks was notified.” (Id. at p. 259.)

Romano addressed the Ricks holding. While 

acknowledging the distinction between a faculty member notified 

of the denial of tenure and an at-will employee notified of an 

impending discharge, our Supreme Court expressly “question[ed] 

the reasoning of the high court’s decision[]” and unequivocally 

signaled its unwillingness to follow Ricks. (Romano, supra, 14 

Cal.4th at p. 497.) It noted that because the FEHA itself defines 

a discriminatory discharge as an unlawful employment practice, 

“it would be anomalous for us to conclude that the limitations 

period for that unlawful practice begins to run prior to 

discharge.” (Ibid.) More important, the court found the 

reasoning of Ricks “not . . . persuasive as applied to the FEHA.” 

Observing that “employees should not be required to bring a 

lawsuit before discharge,” the court concluded that the rule 

announced in Ricks would ‘“increase the number of unripe and 

anticipatory lawsuits in the . . . courts -- 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, supra, 14 Cal.4th at pp. 497-

498, quoting Chardon v. Fernandez (1981) 454 U.S. 6, 9 (dis. opn. 

of Brennan, J.).)

Romano then examined a California case, Regents of 

University of California v. Superior Court (1995) 33 Cal.App.4th 

1710 (Regents). There, a surgical resident was told she would 

have to repeat the third year of her residency or leave the 

program, although she would be permitted to work for one year in 

a laboratory position before deciding whether to repeat the year 

of residency. The plaintiff worked in the laboratory for the next 
13

year, declined to repeat her third year, left the program, and 

shortly thereafter filed a DFEH claim alleging sex 

discrimination. Finding the case “analogous to the failure to 

qualify for tenure in Ricks,” the appellate court concluded that as 

the plaintiff was aware her failure to qualify for fourth year 

residency would result in the termination of her employment at 

the close of the next year, “termination of employment was a 

‘delayed, but inevitable, consequence’ of . . . not repeating a year 

in . . . the residency program.” (Regents, supra, at p. 1717.) 

Accordingly, under the reasoning of Ricks, the statute of 

limitations for filing her DFEH complaint ran from the date she 

was told she would be required to repeat her third year. 

Romano expressly disapproved Regents: “[W]e are not 

persuaded by this authority that the limitations period under the 

FEHA for an actual discharge should begin to run at the point 

the employee is notified that his or her employment will be 

terminated, and any contrary assertion in the Regents case is 

disapproved.” (Romano, supra, 14 Cal.4th at pp. 499-500.) Later,

the court reiterated its disapproval of Regents’s holding that “the 

statute of limitations for claims under the FEHA begins to run 

when the adverse employment decision is communicated to the 

employee, not at termination.” (Id. at p. 502.) 

LACCD contends that denial-of-tenure cases are factually 

and legally distinguishable from nontenure cases, noting, inter 

alia, that unlike the private employer in Romano, following the 

denial of tenure, LACCD is statutorily prohibited by Education 

Code section 87609 from employing appellant as a faculty 
14

member.

7

 We acknowledge that because Romano was not a 

denial-of-tenure case, the court’s statements about Ricks and 

Regents were not necessary to its holdings. However, “[e]ven if 

properly characterized as dictum, statements of the Supreme 

Court should be considered persuasive. [Citation.]” (United 

Steelworkers of America v. Board of Education (1984) 162 

Cal.App.3d 823, 835.) “To say that dicta are not controlling 

[citation] does not mean that they are to be ignored; on the 

contrary, dicta are often followed.” (9 Witkin, Cal. Procedure (5th 

ed. 2008) Appeal, § 511, p. 575.) As one appellate court has 

advised: “Generally speaking, follow dicta from the California 

Supreme Court.” (Hubbard v. Superior Court (1997) 66 

Cal.App.4th 1163, 1169, citing People v. Trice (1977) 75 

Cal.App.3d 984, 987.) This is especially true when, as here, the 

Supreme Court has reached well beyond the holding necessary to 

its opinion to express its broader view. Romano could easily have 

distinguished Ricks and Regents as cases involving denial of 

tenure or analogous circumstances and stopped there. Instead, it 

went on to question the reasoning of the former decision and to 

expressly disapprove the latter.

8

 

7 During oral argument, LACCD acknowledged that 

appellant could be employed in a nonfaculty position. (See also 

Ed. Code, § 87600 [Education Code section 87609 applies only to 

employment in “faculty positions”].) 

8 As noted, Justice Kennard joined the Romano opinion and 

concurred in the result. She suggested, however, that the court’s 

discussion of Ricks did “not imply that employment terminations 

resulting from denial of tenure would necessarily be subject to 

the holdings announced in this nontenure case.” (Romano, supra, 
15

Here, assuming the denial of tenure was discriminatory, 

the harm resulting from that wrongful act was, as alleged in the 

TAC, the termination of appellant’s employment. While the 

denial of tenure set off the chain of events resulting in the 

termination of appellant’s employment, the resulting harm 

occurred when his employment actually ended. (See Romano, 

supra, 14 Cal.4th at p. 494 [no harm has occurred while employee 

still employed].) Moreover, even if, as in Regents, the termination 

of appellant’s employment constituted a “‘“delayed, but 

inevitable, consequence”’” of the decision to deny tenure, the 

Romano court expressly disapproved using the date of 

notification of termination as the date on which the one-year 

limitations period begins to run. (Romano, at pp. 499, 502.) 

We acknowledge that both case law and rational policy 

considerations may militate in favor of a rule that in cases 

involving an allegedly discriminatory denial of tenure, the statute 

of limitations for filing an administrative complaint runs from 

the date the employee is notified of the final tenure decision. 

Had our Supreme Court in Romano merely distinguished denialof-tenure cases from the case before it, we might well adopt such 

a rule. But we cannot ignore the language of Romano or the fact 

that our highest court expressly questioned and unequivocally 

criticized cases adopting that approach. Until our Supreme 

Court indicates otherwise, we take the language of Romano as a 

 

14 Cal.4th at p. 503 (conc. op. Kennard, J.).) To the extent the 

discussion of Ricks is dicta, we agree nothing in the opinion 

would “necessarily” bind the court in a case alleging termination 

resulting from a discriminatory denial of tenure. As to the 

reasoning underlying the discussion of Ricks, we do not see how 

the implications for denial-of-tenure cases can be avoided.
16

directive and apply its reasoning to the facts before us. Under 

that reasoning, the one-year limitations period set forth in 

section 12960 began to run on the last day of appellant’s 

employment with LACCD. As appellant filed his DFEH 

complaint within one year of that date, it was timely, and the 

trial court erred in sustaining LACCD’s demurrer to the TAC.

9

DISPOSITION

The judgment of dismissal is reversed. Appellant is 

awarded his costs on appeal.

CERTIFIED FOR PUBLICATION.

MANELLA, J. 

We concur:

EPSTEIN, P. J.

WILLHITE, J.

 

9

In light of our holding that the statute of limitations began 

to run on the last day of appellant’s employment, we need not 

address his claim of equitable tolling.