Filed 2/2/21 Ramos v. National Steel and Shipbuilding Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

EVARISTO RAMOS,

Plaintiff and Appellant,

v.

NATIONAL STEEL AND 

SHIPBUILDING COMPANY,

Defendant and Respondent.

 D076008

 (Super. Ct. No. 37-2017-

 00020399-CU-WT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Ronald L. Styn, Judge. Reversed and remanded with directions.

Efaon Cobb for Plaintiff and Appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, Vince M. Verde and 

Tiffany S. Woods for Defendant and Respondent.

Plaintiff Evaristo Ramos appeals from a judgment after the trial court 

sustained a demurrer by defendant National Steel and Shipbuilding 

Company (NASSCO) in his action for wrongful termination based on age 

discrimination in violation of public policy. On appeal, Ramos contends that 

the court erred in finding that the doctrine of equitable tolling could not 
2

apply to toll the applicable statutes of limitations based on the factual 

allegations in his second amended complaint. For the reasons set forth 

below, we reverse and remand with directions that the court vacate its order 

sustaining the demurrer and issue a new order overruling the demurrer.

FACTUAL AND PROCEDURAL BACKGROUND

Ramos was hired by NASSCO and worked as a fitter and sheet metal 

worker for several years, receiving exemplary work evaluations.1 On 

December 5, 2013, NASSCO terminated Ramos’s employment.

On December 17, Ramos’s union, Boilermakers Union, Local 1998, filed 

a grievance on his behalf, claiming that his termination was in violation of 

his rights under the collective bargaining agreement (CBA) between the 

union and NASSCO. On May 9, 2014, his union filed a second grievance on

his behalf after it learned that NASSCO had hired subcontractors to fill his 

position, thereby violating the CBA. The two grievances were merged and 

the grievance process continued.

On January 13, 2015, during the grievance process, the union 

discovered that the subcontractors hired to replace Ramos and other 

NASSCO workers who were terminated on or around the same time as he 

was, were all under 30 years of age. According to the allegations in the 

operative complaint, the union then demanded that NASSCO rehire Ramos 

and pay him his back wages because of its violation of the CBA “and the age 

of the [sub]contractors violating state law.”

1 In his opening brief, Ramos represents that he was hired by NASSCO 

in 1995.
3

On February 27, NASSCO offered to rehire Ramos, but refused to pay 

him back wages. On that date, Ramos returned to work, ending the formal 

grievance process. However, his union continued informal negotiations with 

NASSCO to obtain back wages for him.

On October 10, 2015, after NASSCO continued to refuse to pay him 

back wages, Ramos filed a complaint with the California Department of Fair 

Employment and Housing (DFEH), alleging, among other things, age 

discrimination. On June 6, 2016, the DFEH issued a notice of case closure 

and sent Ramos a right-to-sue letter.

On June 5, 2017, Ramos filed the instant action. After the trial court 

sustained, with leave to amend, NASSCO’s demurrers to his original 

complaint and first amended complaint, Ramos filed his operative second 

amended complaint (SAC), alleging the following causes of action: 

(1) wrongful termination in violation of public policy; (2) age discrimination in 

violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, 

§ 12940, subd. (a)2); and (3) failure to take all reasonable steps to prevent 

discrimination and/or harassment in violation of FEHA (§ 12940, subd. (k)). 

NASSCO demurred to the SAC, arguing that the causes of action were barred 

by the applicable one-year and two-year statutes of limitations (i.e., §§ 12960, 

12965, subd. (b) [one-year statute of limitations]; Code Civ. Proc., § 335.1 

[two-year statute of limitations]). Ramos opposed the demurrer, arguing that 

his causes of action were timely filed because the doctrine of equitable tolling 

applied to toll the statutes of limitations while he was engaged with NASSCO 

in the internal grievance process. NASSCO argued in reply that the SAC’s 

2 All statutory references are to the Government Code unless otherwise 

specified.
4

allegations showed that the doctrine of equitable tolling was inapplicable and 

therefore, Ramos’s causes of actions were time-barred.

On February 15, 2019, the trial court issued a minute order sustaining 

NASSCO’s demurrer to the SAC, without leave to amend. The court 

reasoned that the SAC’s factual allegations were insufficient to support a 

finding that the doctrine of equitable tolling applied to toll the statutes of 

limitations. In particular, the court found that the second element of the 

equitable tolling three-part test was not satisfied because the SAC did not 

allege sufficient facts to support a finding that Ramos’s two grievances were 

identical to, or at least so similar to, the SAC’s age discrimination claims 

such that NASSCO was placed in a position to fairly defend those subsequent 

age discrimination claims. On March 25, the court entered a judgment in 

favor of NASSCO and dismissed Ramos’s action. Ramos timely filed a notice 

of appeal challenging the judgment.

DISCUSSION

I

Doctrine of Equitable Tolling

In the 1970’s, the California Supreme Court adopted the doctrine of 

equitable tolling. (See Elkins v. Derby (1974) 12 Cal.3d 410, 412, 417–418 

(Elkins); Addison v. State of California (1978) 21 Cal.3d 313, 316, 318–319 

(Addison).) “The equitable tolling of statutes of limitations is a judicially 

created, nonstatutory doctrine.” (McDonald v. Antelope Valley Community 

College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) The doctrine applies 

when an injured person has several legal remedies and, reasonably and in 

good faith, pursues one of those remedies. (Id. at p. 100.) Further, “equitable 

tolling may extend . . . to the voluntary pursuit of alternative remedies.” (Id.

at p. 101; see, e.g., Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 
5

407–409 [equitable tolling applies during pursuit of internal grievance 

procedure].) In particular, McDonald concluded that “FEHA claims may be 

equitably tolled during the voluntary pursuit of alternative remedies.” 

(McDonald, at p. 106.) The court explained that the same legislative policy 

that favors liberal construction of FEHA statutes of limitations “supports an 

interpretation of the FEHA under which the limitations period is equitably 

tolled while the employee and employer pursue resolution of any grievance

through an internal administrative procedure.” (Id. at p. 108, italics added.) 

McDonald stated: “By alleviating the fear of claim forfeiture, it affords 

grievants the opportunity to pursue informal remedies . . . .” (Id. at p. 100.) 

Based on its consideration of past legislative measures, McDonald inferred 

that “the Legislature accepts equitable tolling under the FEHA, including 

during the period when an aggrieved party’s claims are being addressed in an 

alternate forum, and did not intend section 12960 to foreclose judicial 

acknowledgement and application of equitable tolling principles.” (Id. at 

p. 110.)

Prior to McDonald, the California Supreme Court had similarly 

concluded in Elkins that the one-year statute of limitations for filing a 

personal injury action was equitably tolled for the period during which the 

plaintiff had pursued his workers’ compensation claim. (Elkins, supra, 

12 Cal.3d at pp. 412–413.) Elkins reasoned:

“Defendants’ interest in being promptly apprised of claims 

against them in order that they may gather and preserve 

evidence is fully satisfied when prospective tort plaintiffs 

file compensation claims within one year of the date of their 

injuries. To be sure, an employer notified of a 

compensation claim may fail to gather evidence of fault, 

and such evidence could prove critical in a subsequent tort 

action. [Citation.] The likelihood, however, that the 

employer will suffer prejudice if the compensation claimant 
6

files a tort action more than one year after the date of 

injury is minimal. After the filing of a compensation claim, 

the employer can identify and locate persons with 

knowledge of the events or circumstances causing the injury. 

By doing so, he takes the critical steps necessary to 

preserve evidence respecting fault. Although he may 

choose not to gather evidence bearing on fault from these 

parties when faced only with a compensation claim, he will 

be able in most instances to recontact these people, 

particularly if they are continuing employees, for further 

evidentiary contributions should a controversy as to fault 

later arise in a tort action.” (Elkins, supra, 12 Cal.3d at 

pp. 417–418, italics added and fns. omitted.)

Elkins continued:

“Furthermore, an employer who suspects that the facts 

underlying a compensation claim fall near the elusive 

boundary that separates the claimant’s mutually exclusive 

compensation and tort remedies may well choose to obtain 

evidence of fault immediately upon the filing of a 

compensation application even though no court action has 

yet been initiated. Regardless of whether we recognize a 

tolling rule, such an employer cannot assume that the 

claimant will fail to file a timely tort action. He thus may 

elect to gather evidence of fault immediately in order to save 

himself the trouble later.” (Elkins, supra, 12 Cal.3d at 

p. 418, italics added.)

In Collier v. City of Pasadena (1983) 142 Cal.App.3d 917 (Collier), the 

court concluded that the trial court erred by sustaining the respondent’s 

demurrer because the factual allegations of the petition for writ of mandate 

challenging the denial of the petitioner’s disability retirement benefit claim 

could support a finding that the one-year statute of limitations for filing a 

disability pension claim was equitably tolled for the period during which the 

petitioner had first pursued a workers’ compensation claim for an 

employment-related disability. (Id. at pp. 919, 922, 926, 935.) In so doing, 
7

Collier described the three-part test for application of the doctrine of 

equitable tolling, stating:

“[The] three-core elements are: (1) timely notice to the 

defendant in filing the first claim; (2) lack of prejudice to 

defendant in gathering evidence to defend against the 

second claim; and, (3) good faith and reasonable conduct by 

the plaintiff in filing the second claim.” (Collier, supra, 

142 Cal.App.3d at p. 924, fn. omitted.)

Discussing the first element, Collier stated:

“The timely notice requirement essentially means that the 

first claim must have been filed within the statutory 

period. Furthermore the filing of the first claim must alert 

the defendant in the second claim of the need to begin 

investigating the facts which form the basis for the second 

claim. Generally this means that the defendant in the first 

claim is the same one being sued in the second. As an 

example, a workers’ compensation claim equitably tolls a 

personal injury action against that same employer for 

injuries sustained in the same incident.” (Collier, supra, 

142 Cal.App.3d at pp. 924–925, italics added.)

Regarding the second element, Collier stated:

“The second prerequisite essentially translates to a 

requirement that the facts of the two claims be identical or 

at least so similar that the defendant’s investigation of the 

first claim will put him in a position to fairly defend the 

second. Yet the two ‘causes of action’ need not be 

absolutely identical. The critical question is whether notice 

of the first claim affords the defendant an opportunity to 

identify the sources of evidence which might be needed to 

defend against the second claim. . . . So long as the two 

claims are based on essentially the same set of facts timely 

investigation of the first claim should put the defendant in 

position to appropriately defend the second [claim]. Once 

he is in that position the defendant is adequately protected 

from stale claims and deteriorated evidence. In terms of 

the underlying policies of the statutes of limitation, it is 

irrelevant whether those two claims are alternative or 
8

parallel, consistent or inconsistent, compatible or 

incompatible.” (Collier, supra, 142 Cal.App.3d at pp. 925–

926, italics added and fn. omitted.)

Finally, regarding the third element, Collier stated: “The third prerequisite 

of good faith and reasonable conduct on the part of the plaintiff is less clearly 

defined in the cases. But in [Addison,] the Supreme Court did stress that the 

plaintiff filed his second claim a short time after tolling ended. Perhaps, if a 

plaintiff delayed filing the second claim until the statute on that claim had 

nearly run, even after crediting the tolled period, his conduct might be 

considered unreasonable. [Citation.] Or if the plaintiff deliberately misled 

the defendant into believing the second claim would not be filed, that action 

might be deemed to constitute bad faith.” (Collier, supra, 142 Cal.App.3d at 

p. 926.)

Collier described the policy considerations underlying the doctrine of 

equitable tolling, stating:

“First, it secures the benefits of the statutes of limitation 

for defendants without imposing the costs of forfeiture on 

plaintiffs. Secondly, it avoids the hardship upon plaintiffs 

of being compelled to pursue simultaneously several 

duplicative actions on the same set of facts. Thirdly, it 

lessens the costs incurred by courts and other dispute 

resolution tribunals, at least where a disposition in the case 

filed in one forum may render the proceeding in the second 

unnecessary or easier and cheaper to resolve.” (Collier, 

supra, 142 Cal.App.3d at p. 926, fns. omitted.)

Based on the facts of its case, Collier found, in particular, that the second 

element for equitable tolling was satisfied because the “essential factual 

elements” of the workers’ compensation claim and the subsequent disability 

pension action were “nearly identical” and therefore, the defendant was not 
9

prejudiced in gathering evidence that may have been needed to defend the 

second action. (Collier, supra, 142 Cal.App.3d at p. 929.)

In construing California’s doctrine of equitable tolling, Lucchesi v. BarO Boys Ranch (9th Cir. 2003) 353 F.3d 691 (Lucchesi), at page 695, stated: 

“The fact that two claims may be separate, distinct and independent insofar 

as they are founded upon different laws, involve different procedures or seek 

different remedies does not compel the conclusion that they arise from 

separate wrongs.” Lucchesi observed: “California law does not require that 

the two claims seek the same remedies, involve the same procedures, or arise 

from the same laws in order for equitable tolling to apply.” (Ibid.)

In Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, this court 

concluded: “[W]hether a plaintiff has demonstrated the elements of equitable 

tolling presents a question of fact.”3 (Id. at p. 755, italics added; see also 

Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1012 [“we are 

hard pressed to think of more fact-specific issues than ‘accrual’ and ‘tolling’ ”]; 

Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434 [“Equitable tolling is a 

fact intensive issue and it is determined based upon evidence”]; Campbell v. 

Graham-Armstrong (1973) 9 Cal.3d 482, 490 [“Plaintiffs’ [equitable tolling] 

theory . . . requires a factual determination as to whether they reasonably 

and in good faith pursued their remedies”].) Accordingly, “[u]nder 

California’s equitable tolling test, ‘similarity’ is less a legal conclusion and 

more a factual exploration of the contentions and evidence relevant to each 

claim. As such, ‘similarity’ is not easily resolved as a matter of law, without 

3 In Hopkins, we also concluded that the factual determination whether 

the doctrine of equitable tolling applies must be made by a trial court and not 

a jury. (Hopkins v. Kedzierski, supra, 225 Cal.App.4th at pp. 745–746.)
10

receiving evidence.” (Cervantes v. City of San Diego (9th Cir. 1993) 5 F.3d 

1273, 1276 (Cervantes), italics added.) On that point, Cervantes stated:

“[E]ach of the three factors in California’s test for equitable 

tolling requires a practical inquiry. At a minimum, 

determining the applicability of equitable tolling 

necessitates resort to the specific circumstances of the prior 

claim: parties involved, issues raised, evidence considered, 

and discovery conducted. Thus, the question ordinarily 

requires reference to matters outside the pleadings, and is 

not generally amenable to resolution on a [demurrer or] 

[Federal Rules of Civil Procedure] Rule 12(b)(6) motion, 

where review is limited to the complaint alone. 

[Citations.]” (Cervantes, supra, 5 F.3d at p. 1276, fn. 

omitted.)

“California’s fact-intensive test for equitable tolling is more appropriately 

applied at the summary judgment or trial stage of litigation.” (Cervantes, 

supra, 5 F.3d at p. 1276.) Therefore, in cases where a demurrer to a 

complaint is based on a statute of limitations and the plaintiff argues the 

doctrine of equitable tolling applies, “[t]he sole issue is whether the 

complaint, liberally construed . . . , adequately alleges facts showing the 

potential applicability of the equitable tolling doctrine.” (Id. at p. 1277.) 

Accordingly, “ordinarily equitable tolling is not properly resolved at the 

pleading stage.” (Ibid.)

II

Trial Court’s Order Sustaining NASSCO’s Demurrer

Ramos asserts that the trial court erred by sustaining NASSCO’s 

demurrer to the SAC after concluding that the SAC’s factual allegations 

could not support a finding that the doctrine of equitable tolling applied to 

toll the applicable statutes of limitations.
11

A

In his SAC, Ramos alleged causes of action for: (1) wrongful 

termination in violation of public policy; (2) age discrimination in violation of 

the FEHA; and (3) failure to take all reasonable steps to prevent 

discrimination and/or harassment in violation of FEHA. NASSCO demurred 

to the SAC, arguing that the causes of action were barred by the applicable 

one-year and two-year statutes of limitations. In opposition, Ramos argued 

that his causes of action were timely filed because the doctrine of equitable 

tolling applied to toll the applicable statutes of limitations while he was 

engaged with NASSCO in the internal grievance process. In reply, NASSCO 

argued that the SAC’s allegations showed that the doctrine of equitable 

tolling was inapplicable and therefore, its causes of actions were time-barred.

At the hearing on NASSCO’s demurrer to the SAC, the trial court 

initially noted that the issue of age discrimination was not raised as part of 

Ramos’s two grievances. Ramos’s counsel argued that the facts in the two 

grievances and the SAC were the same -- namely, “[t]he fact that my client 

was wrongfully terminated.” He argued that case law did not require that 

Ramos’s grievances allege the same legal basis as he alleged for relief in the 

SAC. Ramos’s counsel argued that because Ramos’s two grievances alleging 

his wrongful termination gave NASSCO ample time to gather evidence and 

preserve it for his subsequent claims, equitable tolling should apply. Counsel 

further argued that the two grievances “would have still put [NASSCO] on 

notice to investigate the underlying termination of my client and subsequent 

[hiring] of subcontractors in place of my client. [¶] [T]he underlying facts still 

have to be evaluated. It still gives [NASSCO] the opportunity to gather 

evidence, to preserve evidence while it’s still fresh.”
12

Ramos’s counsel represented that age discrimination was not the basis 

of Ramos’s two grievances because the CBA did not cover instances of 

discrimination. The court then asked: “[I]f the CBA doesn’t even cover [an 

age discrimination] claim, how could the filing of the grievance[s] toll the 

statute?” Ramos’s counsel argued that based on the two grievances, 

NASSCO had an opportunity to preserve evidence for its defense of the 

subsequent age discrimination action.

The trial court asked Ramos’s counsel: “But why would [NASSCO] be 

preserving evidence about a claim [i.e., for wrongful termination based on age 

discrimination] that was never asserted [in the two grievances]? . . . [W]hy 

would [NASSCO] go out and interview and find out the age of everybody [i.e., 

the subcontractors]?” Ramos’s counsel replied: “It’s simply the fact that both 

claims involve the nexus, the cluster of facts of my client being terminated and 

then being rehired. [¶] So [NASSCO had] the opportunity to evaluate why my 

client was terminated and evaluate the basis for the rehiring of these 

individuals. . . . [¶] The reasons for the termination and the rehiring are the 

crux of both claims. [The two grievances gave NASSCO] ample opportunity to 

gather the evidence to address both claims.” (Italics added.)

Conceding that it did not understand the grievance procedure “all that 

well,” the court stated: “[I]t has to be the same wrong, which is the [age] 

discrimination [for equitable tolling to apply].” Noting that Ramos’s two 

grievances alleged violations of the CBA, the court observed that the SAC 

alleged age discrimination and stated, “I don’t see how [NASSCO was] on 

notice to have investigated that based on those earlier claims. [¶] And the 

facts used to prove the discrimination are different from whatever facts 

would prove the hiring of these other people, these outside contractors and 

that sort of thing.” Ramos’s counsel argued: “[W]hen the grievance[s] [were] 
13

filed, [NASSCO was] able to take in all the evidence related to why [it] 

terminated my client, and then subsequently the basis for why [it] hired 

these new workers. And that will be their defense in a wrongful termination 

claim that was filed subsequently.” He argued: “[T]he orientation of 

[NASSCO’s] investigation is not a point of analysis in these cases. It’s just 

whether the defense was given the opportunity to gather the evidence and 

preserve it while it was still fresh.” NASSCO’s counsel interjected, arguing 

that NASSCO was “never put on notice of the actual discrimination claim [by 

the two grievances], which is what the case law requires in equitable tolling.” 

The court agreed and sustained NASSCO’s demurrer. In its minute order 

sustaining NASSCO’s demurrer, the court stated that the SAC’s factual 

allegations were insufficient to support a finding that the doctrine of 

equitable tolling applied to toll the statutes of limitations. The court entered 

a judgment in favor of NASSCO and dismissed Ramos’s action against it.

B

A demurrer challenges the legal sufficiency of a complaint. (Johnson v. 

County of Los Angeles (1983) 143 Cal.App.3d 298, 306.) On appeal from a 

judgment after a trial court sustains a demurrer based on a statute of 

limitations defense, we review the complaint de novo, or independently, to 

determine whether it alleges facts sufficient to state a cause of action under 

any legal theory. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 

879; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[A]ll material facts 

properly pleaded and those which arise by reasonable implication therefrom 

are deemed true.” (Platt v. Coldwell Banker Residential Real Estate Services

(1990) 217 Cal.App.3d 1439, 1444.) We also review de novo, or 

independently, any questions of law, such as the scope and meaning of the 

three-part test for application of the doctrine of equitable tolling. (Cantu, at 
14

p. 879; cf. Lucchesi, supra, 353 F.3d at p. 694.) A trial court reversibly errs 

“when it sustains a demurrer without leave to amend where [the plaintiff] 

has alleged facts showing entitlement to relief under any possible legal 

theory.” (Platt, at p. 1444; Blank, at p. 318.)

C

Based on our independent review of the SAC, we conclude that the trial 

court erred in determining, as a matter of law, that the SAC’s factual 

allegations could not possibly support a finding that the doctrine of equitable 

tolling applied to preclude the statutes of limitations from barring Ramos’s 

causes of action. Considering the three-part test for application of the 

doctrine of equitable tolling, we conclude that the SAC adequately alleges 

facts showing the potential applicability of equitable tolling. (Collier, supra, 

142 Cal.App.3d at pp. 924–926.)

First element. Regarding the first element of timely notice to NASSCO 

in Ramos’s filing his first claim, i.e., the two grievances, we initially focus on 

whether Ramos timely filed his first grievance. (Collier, supra, 

142 Cal.App.3d at p. 924.) Ramos filed his first grievance within two weeks 

of the termination of his employment. There is nothing in the SAC’s 

allegations that shows that a two-week delay in filing that grievance was 

untimely under the CBA or otherwise and precluded Ramos from pursuing 

that grievance. Also, because Ramos’s second grievance was filed five months 

later, while the first grievance was still being processed, there is nothing

showing that the filing of that second grievance, which was merged with his 

first grievance, was untimely. Further, the SAC’s allegations do not show 

that the filing of Ramos’s two grievances could not have alerted NASSCO of 

its need to begin investigating the underlying facts relevant to its defense of 

Ramos’s subsequent action for wrongful termination based on age 
15

discrimination in violation of public policy. (Ibid.) Accordingly, although the 

trial court found its ruling on the second element dispositive and therefore 

did not address the first element, we conclude, at the demurrer stage and 

based solely on the SAC’s allegations, that a court could not find that the first 

element for equitable tolling was not satisfied.

Second element. Regarding the second element of the three-part test 

for application of the doctrine of equitable tolling, we focus on whether the 

SAC’s allegations show, as a matter of law, that NASSCO was prejudiced in 

gathering evidence to defend against Ramos’s second claim, i.e., the instant 

action. (Collier, supra, 142 Cal.App.3d at p. 925.) In so doing, we consider 

whether the SAC’s allegations could support a finding that the underlying 

facts of Ramos’s two claims were identical or at least so similar that 

NASSCO’s investigation of Ramos’s two grievances could have placed it in a 

position to fairly defend his subsequent claim for wrongful termination based 

on age discrimination. (Ibid.) As Collier stated: “The critical question is 

whether notice of the first claim affords the defendant an opportunity to 

identify the sources of evidence which might be needed to defend against the 

second claim. . . . So long as the two claims are based on essentially the same 

set of facts timely investigation of the first claim should put the defendant in 

position to appropriately defend the second [claim].” (Ibid., italics added.) 

We must therefore consider whether the SAC’s allegations show, as a matter 

of law, that Ramos’s two grievance claims could have afforded NASSCO an 

opportunity to identify evidence that could be used to defend against Ramos’s 

subsequent claim for wrongful termination based on age discrimination. 

(Ibid.)
16

Based on our review of the SAC’s allegations, we conclude that 

determination of prejudice to NASSCO cannot be made at the demurrer 

stage. In paragraphs 9 and 10 of the SAC, Ramos alleged that NASSCO 

terminated his employment and that 12 days later, his union filed a 

grievance claiming that his termination violated the CBA. In paragraph 11 

of the SAC, Ramos alleged that his union filed a second grievance five months 

later, after it learned that NASSCO had hired subcontractors to replace him 

and other workers, thereby violating the CBA. It further alleged that the two 

grievances were merged together for processing because there was a nexus 

between his termination and NASSCO’s subsequent hiring of subcontractors 

to replace him. Paragraph 12 of the SAC alleged that in January 2015, which 

was “during the grievance process,” his union “discovered for the first time 

that the subcontractors hired to replace [him], along with every other worker 

terminated on or around the same date [of his termination], were all under 

30 years of age, and continued to work there.” (Italics added.) Importantly, 

paragraph 12 further alleged: “The Union demanded that [NASSCO] rehire 

[Ramos], and that all of [Ramos’s] back wages be paid due to the 

subcontracted replacements violating the CBA, and the age of the contractors 

violating state law.” (Italics added.) Paragraphs 13 through 15 of the SAC 

alleged that through the grievance process, NASSCO rehired Ramos in 

February 2015, but refused to pay him back wages, and NASSCO and his 

union continued informal negotiations thereafter regarding payment of his 

back wages. Paragraph 16 alleged that after NASSCO unequivocally refused 

to pay Ramos his back wages and, based on his belief that his claims were 

equitably tolled during the grievance process, Ramos filed his complaint with 

DFEH in October 2015, alleging, among other things, age discrimination.
17

At the demurrer stage of these proceedings, lacking any evidence other 

than the SAC’s factual allegations that are assumed to be true, the trial court 

had no factual basis on which it could conclude that NASSCO was, in fact, 

prejudiced under the second element of the equitable tolling doctrine.4 In 

particular, the SAC’s allegations do not support a finding that, based on the 

grievances filed by Ramos’s union, NASSCO necessarily had no opportunity 

to investigate the reasons for its termination of Ramos and/or to obtain 

evidence that it could have preserved and used in its defense of his 

subsequent action for wrongful termination based on age discrimination. The 

SAC’s allegations do not specify the exact nature and scope of the grievance 

process as it proceeded from its initiation through its completion, nor do they 

detail what steps NASSCO took, or could have taken, during the grievance 

process in investigating its termination of Ramos’s employment.

If the instant proceedings were to continue beyond the demurrer stage, 

e.g., to summary judgment proceedings or a bench trial, evidence would 

presumably be submitted that would better inform the trial court as to the 

facts underlying Ramos’s two grievances and those underlying the SAC; the 

court would then be in a position to determine, based on this evidence, 

whether the second equitable tolling element is met, i.e., whether, as a result 

of the two grievances, NASSCO had an opportunity to investigate its reasons 

for Ramos’s termination and thereby identify evidence that could be used to 

4 At the hearing on NASSCO’s demurrer, the trial court found that 

Ramos’s two grievances alleging violations of the CBA could not have notified 

NASSCO to investigate a claim of age discrimination stating, “[T]he facts 

used to prove the discrimination are different from whatever facts would 

prove the hiring of these other people, these outside contractors and that sort 

of thing.” However, at the demurrer stage, the court did not have any 

evidentiary basis for this finding.
18

defend against his subsequent claim for wrongful termination based on age 

discrimination.5 (Collier, supra, 142 Cal.App.3d at p. 925.)

Further, considering solely the SAC’s allegations at this demurrer 

stage and disregarding the contrary representation by Ramos’s counsel at the 

hearing on the demurrer, it appears that there could be support for a finding 

that the issue of age discrimination did in fact arise during the grievance 

process. As noted, paragraph 12 of the SAC alleged that “during the 

grievance process,” “[t]he Union demanded that [NASSCO] rehire 

[Ramos] . . . due to . . . the age of the [subcontractors] violating state law.” 

(Italics added.) That allegation supports a reasonable inference that 

NASSCO was placed on notice during the grievance process that Ramos was 

arguing, in part, that its termination of his employment violated state law 

barring age discrimination. If NASSCO was, in fact, placed on notice of that 

age discrimination allegation during the grievance process, a court could 

reasonably find that NASSCO had an opportunity to investigate the reasons 

for its termination of Ramos and, in particular, whether one of its reasons 

was discrimination based on his age and thus, that the second element of 

equitable tolling is met.

5 Conceivably, during the grievance process, NASSCO could have, or 

arguably should have, investigated its reasons for terminating Ramos’s 

employment. In the course of any such investigation, NASSCO would 

presumably find evidence showing that there were only valid, legitimate 

reasons to terminate Ramos or instead, that a substantial reason for its 

termination of Ramos was its age discrimination or another wrongful basis. 

If, on the basis of the two grievances filed by Ramos, NASSCO, in fact, had 

an opportunity to investigate its reasons for terminating his employment, it 

may have been able to collect and preserve that evidence for its defense of 

any possible second claim Ramos may file based on the underlying facts of its 

termination of his employment, e.g., claim for wrongful termination based on 

age discrimination in violation of public policy.
19

However, at the demurrer stage, based solely on the SAC’s allegations 

without any evidentiary record, a court is not in a position to make a finding 

whether, as a result of Ramos’s two grievances, NASSCO did, in fact, have an 

opportunity to investigate its reasons for its termination of his employment

and thereby identify evidence that could be used to defend against his 

subsequent claim for wrongful termination based on age discrimination. 

(Collier, supra, 142 Cal.App.3d at p. 925.) Accordingly, we conclude that the 

trial court erred by finding, based solely on the SAC’s allegations, that the 

second element for equitable tolling was not satisfied.

Third element. Regarding the third element for application of the 

doctrine of equitable tolling, we focus on Ramos’s good faith and reasonable 

conduct in filing the instant action for wrongful termination based on age 

discrimination. (Collier, supra, 142 Cal.App.3d at p. 926.) There is nothing 

in the allegations of the SAC to indicate that Ramos acted in bad faith or 

unreasonably in filing the instant action. The SAC’s allegations do not show 

indisputably that Ramos waited too long after the grievance process ended to 

file his DFEH complaint or too long after he received the DFEH’s right-to-sue 

letter to file the instant action, nor does it show that he misled NASSCO into 

believing that he would not file the instant action. (Ibid.) At the demurrer 

stage, based solely on the SAC’s allegations without any evidentiary record, 

the record is not sufficient to permit a court to make a finding as to whether 

Ramos acted in bad faith or unreasonably in filing his action for wrongful 

termination based on age discrimination. (Ibid.) Accordingly, although the 

trial court found its ruling on the second element dispositive and therefore 

did not address the third element, we conclude, at the demurrer stage and 

based solely on the SAC’s allegations, that a court could not find that the 

third element for equitable tolling was not satisfied.
20

As noted above, in making a determination on the applicability of 

equitable tolling, a court must conduct a practical inquiry regarding each of 

the three elements. (Cervantes, supra, 5 F.3d at p. 1276.) In so doing, a court 

must, at a minimum, consider evidence regarding the specific circumstances 

of the prior claim, such as the parties involved, issues raised, evidence 

considered, and discovery conducted. (Ibid.) In evaluating that evidence, the 

critical question for the court is whether notice of the first claim afforded the 

defendant an opportunity to identify evidence that might be needed to defend 

against the second claim. (Collier, supra, 142 Cal.App.3d at p. 925.) Because 

the determination of whether equitable tolling applies in a particular case 

ordinarily requires reference to matters outside the pleadings, it is not 

generally amenable to resolution on demurrer where review is limited to the 

complaint alone. (Cervantes, at p. 1276.) Here, the SAC adequately alleges 

facts showing the potential applicability of equitable tolling. At the demurrer 

stage of this case, because there is no evidence to support a finding that 

equitable tolling cannot apply to bar the SAC’s causes of action, the trial 

court erred by sustaining NASSCO’s demurrer.

None of the cases cited by NASSCO persuades us to reach a contrary 

conclusion. In support of its position, NASSCO relies primarily on Arnold v. 

United States (9th Cir. 1987) 816 F.2d 1306 (Arnold), in which the plaintiff 

alleged both federal and state claims arising out of an incident on September 

23, 1981, during which her supervisor allegedly fondled her knees, blocked 

the door to prevent her from leaving his office, held her close to him, and 

kissed and fondled her. (Id. at p. 1307.) Without specifically addressing the 

applicability of all three elements of California’s doctrine of equitable tolling 

to the plaintiff’s state tort claims, Arnold focused solely on the second 

element and reasoned that because the plaintiff’s federal Title VII claim and 
21

her state tort claims arose from distinct “wrongs,” equitable tolling did not 

apply to preclude the application of California’s statute of limitations for her 

state tort claims. (Id. at pp. 1312–1313.) Arnold stated, in a conclusory 

manner: “Although sexual harassment may be redressed through a claim 

brought under Title VII [citation], the wrong underlying Arnold’s Title VII 

claim is distinct from that underlying her state-law tort claims. In her statelaw claims Arnold seeks to vindicate not her right to be free from 

discrimination in the workplace, but rather her right to be free from ‘ “bodily 

or emotional injury caused by another person.” ’ [Citations.] Indeed, it is 

precisely because these wrongs are different that Arnold’s state-law claims 

are not precluded by Title VII. [Citation.]” (Ibid.) In so holding, Arnold

apparently interpreted the term “wrong” as referring to the legal theory for 

recovery for an injury, rather than the underlying facts of the incident 

resulting in that injury.

In applying the second element of California’s three-part test for 

equitable tolling, Arnold did not acknowledge, much less apply, Collier’s 

explanation of that element, which the California Supreme Court and other 

California courts of appeal have subsequently adopted and applied. (See, 

e.g., McDonald, supra, 45 Cal.4th at p. 102, fn. 2 [“Collier [has] accurately 

described [the] requirements [for application of the doctrine of equitable 

tolling] in more detail”]; Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 

598–599; Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 

172 Cal.App.4th 1494, 1504; Downs v. Department of Water & Power (1997) 

58 Cal.App.4th 1093, 1100; Structural Steel Fabricators, Inc. v. City of 

Orange (1995) 40 Cal.App.4th 459, 465.) As discussed above, Collier stated 

that the second element requires that “the facts of the two claims be identical 

or at least so similar that the defendant’s investigation of the first claim will 
22

put him in a position to fairly defend the second.” (Collier, supra, 

142 Cal.App.3d at p. 925, italics added.) Collier continued, “So long as the 

two claims are based on essentially the same set of facts timely investigation 

of the first claim should put the defendant in position to appropriately defend 

the second [claim].” (Ibid., italics added.) Accordingly, the second element 

for equitable tolling focuses on the underlying facts of the two claims and not, 

as Arnold apparently presumed, on the legal theories for recovery for an 

injury.

Further, six years after Arnold, the Ninth Circuit Court of Appeals in 

Cervantes distinguished its case from Arnold and, unlike Arnold, considered 

all three elements of Collier’s test for application of equitable tolling. 

Cervantes noted: “[I]n Arnold, the plaintiff failed the three-part equitable 

tolling test because her federal ‘discrimination’ claim was so obviously 

distinct from her state-law ‘personal injury’ claims. There is no such obvious 

distinction between Cervantes’ state and federal claims, both of which involve 

his unlawful termination.”6 (Cervantes, supra, 5 F.3d at p. 1277, fn. 4.) More 

importantly, in addition to distinguishing its case from Arnold, Cervantes 

discussed the three-part test set forth in Collier and, in particular, quoted 

Collier’s detailed description of the second element. (Id. at p. 1276.) 

Cervantes further held: “Application of the three-part test is mandatory.” 

(Id. at pp. 1275–1276, italics added.) Accordingly, Cervantes rejected the 

federal district court’s dismissal of the plaintiff’s action after it found that the 

doctrine of equitable tolling did not apply based solely on a “ ‘threshold 

6 Contrary to Cervantes’s implication that Arnold applied the “threepart” equitable tolling test, our reading of Arnold shows that it focused solely 

on the second element of that test and, in so doing, incorrectly interpreted 

and applied that element as discussed above. (Arnold, supra, 816 F.2d at 

pp. 1312–1313.)
23

inquiry’ into the similarity of the two claims.” (Id. at p. 1275.) Because 

Arnold did not apply all of the elements of the mandatory three-part test for 

equitable tolling and appears to have misunderstood and/or misapplied the 

second element, we decline to adopt its reasoning and conclude, contrary to 

NASSCO’s argument, that the trial court improperly relied on Arnold in 

support of its order sustaining its demurrer.

Further, the circumstances in Cervantes, rather than those in Arnold, 

are more apposite to this case. In Cervantes, the plaintiff’s first claim was a 

state Civil Service Commission administrative claim for wrongful 

termination. (Cervantes, supra, 5 F.3d at p. 1274.) When that claim was 

unsuccessful, he filed a federal action under 42 U.S.C. § 1983 for violation of 

his civil rights based on false accusations made against him by the individual 

defendants that resulted in his alleged wrongful termination by the 

defendant employer. (Cervantes, at p. 1274.) In holding that the federal 

district court erred by sustaining the defendants’ Federal Rules of Civil 

Procedure, rule 12(b)(6) motion (i.e., a demurrer) to the plaintiff’s federal 

action, Cervantes concluded that the underlying facts of the plaintiff’s two 

claims were the same (i.e., his loss of employment). (Id. at p. 1277.) The 

court stated: “Loss of employment is the major injury alleged in his 

complaint . . . .” (Ibid., italics added.) Cervantes held, in effect, that for 

equitable tolling to apply, the first claim did not have to allege a violation of 

the plaintiff’s federal civil rights, but rather, only that he had sustained an 

injury, i.e., termination of his employment, arising out of the same 

underlying facts. (Id. at pp. 1276–1277.)

Significantly, Cervantes stated: “Under California’s equitable tolling 

test, ‘similarity’ is less a legal conclusion and more a factual exploration of 

the contentions and evidence relevant to each claim. As such, ‘similarity’ is 
24

not easily resolved as a matter of law, without receiving evidence.” (Cervantes, 

supra, 5 F.3d at p. 1276, italics added.) The court further observed: 

“California’s fact-intensive test for equitable tolling is more appropriately 

applied at the summary judgment or trial stage of litigation.” (Ibid.) Based 

on its review of the plaintiff’s federal complaint, Cervantes reversed the 

district court’s dismissal of the plaintiff’s action, finding that the allegations 

of the complaint were sufficient to show “the potential applicability of the 

equitable tolling doctrine.” (Id. at p. 1277.) Like the plaintiff in Cervantes, 

Ramos alleged during the grievance process his wrongful loss of employment. 

The allegations of the SAC were sufficient to show the potential applicability 

of equitable tolling. Thus, the trial court erred by sustaining NASSCO’s 

demurrer to the SAC.7 In so holding, we conclude only that at the demurrer 

stage, the SAC’s allegations were sufficient to show the potential applicability 

of equitable tolling. We express no view as to whether equitable tolling 

should be applied in this case. When the trial court has a factual record on 

further proceedings, it may, or may not, find that equitable tolling applies.

7 In support of its position on appeal, NASSCO’s brief repeatedly cites to 

a concurring opinion in Cervantes without attributing it as such. In that 

concurring opinion, Circuit Judge Farris wrote: “If the wrongs are not 

distinct, and the plaintiff merely pursues one of several potential legal 

remedies, tolling applies.” (Cervantes, supra, 5 F.3d at p. 1278 [conc. opn. of 

Farris, J.].) Based on that misleading citation, NASSCO erroneously asserts 

that the “threshold question” for application of equitable tolling is “whether 

two claims seek to remedy distinct wrongs.” We do not read Cervantes as so 

holding and decline to adopt that proffered interpretation of the doctrine of 

equitable tolling.
25

DISPOSITION

The judgment is reversed and the matter is remanded with directions 

that the superior court vacate its order sustaining the demurrer and issue a 

new order overruling the demurrer. Ramos is entitled to costs on appeal.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

DATO, J.