Filed 9/5/24 Suleimanyan v. UTLA CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ASTINE SULEIMANYAN,

Plaintiff and Appellant,

v.

UTLA et al.,

Defendants and 

Respondents.

 B326607

 (Los Angeles County

 Super. Ct. No. 

20STCV10892)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard J. Burdge, Jr., Judge. Affirmed.

Greene Broillet & Wheeler, Tobin M. Lanzetta, Aaron L. 

Osten; Esner, Chang, Boyer & Murphy and Stuart B. Esner for

Plaintiff and Appellant.
2

Cohen Williams, Kathleen M. Erskine and Roya S. Ladan

for Defendants and Respondents. 

* * * * * *

Astine Suleimanyan (plaintiff) sued her former employer 

and two of its staffers for various employment-related claims as 

well as claims under the Tom Bane Civil Rights Act (Bane Act) 

(Civ. Code, § 52.1) and the Ralph Civil Rights Act (Ralph Act)

(id., § 51.7). The trial court entered summary adjudication for 

the employer and summary judgment for the staffers on 

plaintiff’s sexual harassment claim due to her failure to timely 

exhaust her administrative remedies and on plaintiff’s Bane Act 

and Ralph Act claims due to the absence of any evidence of 

physical violence or a threat of such violence. Because we 

independently conclude that these rulings were correct, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

A. Plaintiff’s employment

Plaintiff was hired by United Teachers Los Angeles (UTLA) 

in September 2015 to work as a political organizer. She resigned 

1 Consistent with the pertinent standard of review, we 

resolve all conflicts in the evidence in favor of plaintiff (as the 

party opposing summary adjudication and judgment) except in 

the many instances in which plaintiff’s declaration in support of 

her opposition conflicts with her prior deposition testimony, with 

her discovery responses, or with other statements in her 

declaration (because a party is not allowed to manufacture 

disputes of fact by contradicting herself). (Scalf v. D. B. Log 

Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522; Whitmire v. 
3

from her position in November 2019, although she took several 

leaves of absence (from October 2017 to January 2018, from April 

2018 to January 2019, and from August 2019 to November 2019). 

UTLA also employed field director Brian McNamara 

(McNamara) and representation coordinator Carl Joseph 

(Joseph). Although plaintiff worked with those individuals, 

neither of them served as her supervisor. 

B. McNamara’s conduct

Plaintiff and McNamara did not get along, and they had 

several tense interactions between the time she was hired and 

October 12, 2017. Those include:

– When plaintiff did not arrive on time for a phone 

bank event she was responsible for leading in the fall of 2015, 

McNamara called her on the phone, and “yelled” and “cursed” at 

her. When plaintiff eventually arrived, McNamara continued 

their discussion in the hallway outside the event by “yelling” “in 

[plaintiff’s] face” about how her tardiness was “unacceptable.”

Plaintiff felt “trapped” in the corner of the hallway with 

McNamara, who was “a tall guy.” When event volunteers exited 

the elevator into the hallway, McNamara ended the interaction

and plaintiff went into the event. 

– When plaintiff at an April 2017 staff meeting raised 

concerns that her assignments were too much to handle, 

McNamara responded by “rais[ing] his voice” and commenting, 

“How is this too much?” Plaintiff reported that this made her feel 

“ambushed.” 

– When plaintiff at a spring 2017 staff meeting said she 

could not attend a meeting on the date proposed, McNamara 

Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087; Davis v. 

Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731, 736.)
4

“raised his voice” when asking why plaintiff could not attend. 

Plaintiff responded that she would be on vacation. Plaintiff later 

reported that McNamara had required her to disclose her 

“private information” “public[ly]” (namely, that she would be on 

vacation), and that this constituted a “tactic[]” of “public 

humiliation” that was “abusive” and motivated to “sabotag[e]” 

plaintiff and “tarnish[ her] reputation.” 

– When plaintiff asked McNamara in May 2017 if she 

could call into a staff meeting (rather than attend in person), 

McNamara responded with the word “Yep” instead of the word 

“Yes.” 

– When plaintiff got up to leave a meeting early, 

McNamara “pulled a chair in front [of her]” and asked, “Where 

the fuck are you going?” Plaintiff went back to her seat, but 

walked out of the meeting a few minutes later; when she did, 

McNamara gave her “a very, very nasty look.” 

– When plaintiff and McNamara attended a workrelated retreat in July 2017, McNamara asked plaintiff and 

another UTLA employee whether they had completed the 

assigned reading. After plaintiff confirmed that she had and 

McNamara commented, “Well, that was fast,” plaintiff responded, 

“Would you prefer I read out loud?” and “It’s always something 

with you, [McNamara].” McNamara then “stepped forward,” “got 

really close” to her face, and “aggressive[ly]” asked, “What did 

you say?” Plaintiff reported this interaction—as well as her 

feeling that McNamara was displaying “obsessive attention” 

toward her at the retreat because he on two occasions

“immediately followed” her out of the meeting rooms into the 

hallway—as amounting to “stalking” and “harassing” that made 
5

her “feel unsafe” and afraid that McNamara would “physically 

harm” her. 

– When plaintiff and McNamara attended a work 

retreat at the Westin Bonaventure Hotel in July 2016, 

McNamara rode the hotel’s iconic exterior glass elevator. 

Plaintiff reported that, from the elevator, McNamara could see 

into her hotel room (because plaintiff had not drawn the blinds) 

and characterized McNamara’s use of the public elevator as 

“peeping.” 

McNamara never touched plaintiff and never engaged in 

any sexually inappropriate conduct toward her. 

McNamara’s last act toward plaintiff was on October 12, 

2017. 

C. Joseph’s conduct

Joseph repeatedly made vulgar and sexually charged 

comments and gestures toward plaintiff between July 2016 and 

October 2017. Those include:

– In 2016 and 2017, Joseph on three or four occasions 

told plaintiff that there were things he “wanted to do to her.” 

– In 2016 and 2017, when plaintiff would arrive at 

office meetings and scan the room for a vacant seat, Joseph on 

three or four occasions invited her to “sit on Big Papa’s lap.”2

These comments made plaintiff feel “devalued” and “humiliated.” 

– Sometime in 2016 or 2017, plaintiff spit out her 

chewing gum at a meeting and Joseph asked for the gum so he 

could “taste” her. 

2 This was Joseph’s self-ascribed nickname; plaintiff 

requested that Joseph give her a nickname and he anointed her

“High Maintenance.” Plaintiff denied having “any type of feeling 

about” that moniker. 
6

– In July 2017, Joseph told plaintiff he wanted to 

perform a sexual act and then crudely gestured that act during a 

dinner at a work retreat. 

Plaintiff would confront Joseph about his comments and 

gestures: She told him that his comment about wanting to “do 

her” and his crude gesture made her feel uncomfortable. In 

response, Joseph would “laugh . . . off” his conduct and claim he 

was “just joking.” 

Joseph did not physically touch plaintiff, restrict her 

movement, or aside from the one gesture, do “anything physically 

toward [her] that made [her] feel intimidated.” 

Joseph did not make any comments or gestures after 

October 2017, although plaintiff claims that he “looked [her] up 

and down” when they passed on a stairwell in January or 

February 2018. 

II. Procedural Background

A. The pleadings

On March 17, 2020, plaintiff sued UTLA, McNamara, and 

Joseph (collectively, defendants). In the operative second 

amended complaint, plaintiff alleged various employment and 

tort claims: Against all defendants, she alleged claims for (1) 

sexual harassment under the Fair Employment and Housing Act 

(FEHA) (Gov. Code, § 12900 et seq.); (2) violation of the Bane Act;

and (3) violation of the Ralph Act; against UTLA alone, she 

alleged claims for (1) gender discrimination under FEHA; (2) 

retaliation under FEHA and the Labor Code; (3) failure to 

prevent discrimination, harassment, and retaliation under 

FEHA; and (4) constructive discharge in violation of public policy. 
7

B. Motion for summary adjudication/judgment

Defendants moved for summary adjudication and/or 

judgment as to the sexual harassment, Bane Act, and Ralph Act 

claims asserted against them. They argued that (1) plaintiff’s 

sexual harassment claim was barred because she failed to timely 

exhaust her administrative remedies as required under FEHA, 

and (2) plaintiff’s Bane Act and Ralph Act claims failed as a 

matter of law because there was no evidence that she faced a 

threat of physical violence.3 

After a full round of briefing and a hearing, the trial court 

issued a 20-page ruling on November 3, 2021 granting 

defendants’ motion. The court ruled that plaintiff’s sexual 

harassment claim was barred for failure to exhaust her 

administrative remedies, finding there was “no evidence” to 

support “equitable tolling” of the statutory deadlines. The court

ruled that, although there were triable issues of fact regarding 

whether plaintiff “truly felt intimidated,” defendants were 

entitled to judgment on her Bane Act and Ralph Act claims 

because she adduced no evidence of any “violence or threats of 

violence” against her. 

C. Trial 

Plaintiff proceeded to trial on her remaining claims against 

UTLA in the fall of 2022. She voluntarily dismissed the claims 

for gender discrimination under FEHA and retaliation under the 

Labor Code, and the jury rendered a verdict for UTLA on the

remaining claims for retaliation under FEHA, failure to prevent 

retaliation, and constructive discharge.

3 Defendants also argued that the Bane Act claim was timebarred, but the trial court did not rule on that issue and we 

likewise need not reach it here. 
8

D. Appeal

Following the entry of judgment for defendants, plaintiff 

timely filed this appeal. 

DISCUSSION

Plaintiff argues that the trial court erred in summarily 

adjudicating (1) her FEHA sexual harassment claim due to the 

failure to exhaust administrative remedies; and (2) her Bane Act 

and Ralph Act claims due to the absence of any evidence of 

violence, threats of violence, or intimidation.

A trial court may grant summary adjudication or judgment

to a defendant on a “cause of action” if “there is no triable issue of 

material fact” and the defendant “is entitled to a judgment as a 

matter of law” on that cause of action. (Code Civ. Proc., § 437c, 

subds. (c), (f)(1) & (o)(1); Jimenez v. Superior Court (2002) 29 

Cal.4th 473, 480; QDOS, Inc. v. Signature Financial, LLC (2017) 

17 Cal.App.5th 990, 998; State of California v. Continental Ins. 

Co. (2017) 15 Cal.App.5th 1017, 1031 [summary adjudication is 

“‘procedurally identical to [a] motion[] for summary judgment’”].) 

The moving party (usually, the defendant) bears the initial 

burden of showing that the plaintiff cannot establish “[o]ne or 

more of the elements of [her] cause[s] of action” or by showing a 

valid affirmative defense. (Code Civ. Proc., § 437c, subds. (o)(1) & 

(p)(2).) Once that initial burden is met, the plaintiff bears the 

burden of “show[ing] that a triable issue of one or more material 

facts exists as to the cause of action or [an affirmative] defense.” 

(Id., subd. (p)(2).) Summary adjudication or judgment should be 

denied only when there are “genuine” or “triable” issues of fact to 

be resolved at trial—that is, when “the evidence would allow a 

reasonable trier of fact to find . . . in favor of the party opposing 

the motion.” (Serri v. Santa Clara University (2014) 226 
9

Cal.App.4th 830, 860; Wall Street Network, Ltd. v. New York 

Times Co. (2008) 164 Cal.App.4th 1171, 1176, fn. 2 [applying 

these standards to motions for summary adjudication].) 

We independently review a grant of summary adjudication 

or summary judgment. (Hampton v. County of San Diego (2015) 

62 Cal.4th 340, 347.) We also independently review whether the 

doctrine of exhaustion of administrative remedies bars a claim. 

(Alexander v. Community Hospital of Long Beach (2020) 46 

Cal.App.5th 238, 251.)

I. Plaintiff’s FEHA Sexual Harassment Claim

A. Pertinent law

1. FEHA and its administrative exhaustion 

requirement, generally

FEHA is meant to “safeguard the rights of all persons to 

seek, obtain, and hold employment without discrimination” or 

harassment. (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 

420.) FEHA contemplates a two-step process—namely, (1) the 

Department of Fair Employment and Housing (the Department) 

enforces FEHA administratively by “‘receiv[ing], investigat[ing] 

and conciliat[ing] complaints of unlawful employment 

discrimination’” and harassment; and (2) if and only if this 

administrative process is exhausted, individual employees may 

then sue their employers in court. (Kim v. Konad USA 

Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 (Kim); 

Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 

918, 931 (Pollock); Rojo v. Kliger (1990) 52 Cal.3d 65, 83 

[“exhaustion of FEHA administrative remedies is a prerequisite 

to judicial relief on a statutory cause of action”].)

To exhaust FEHA’s administrative remedies, an employee 

must first file a “verified complaint” with the Department within 
10

“one year from the date upon which the alleged unlawful 

practice” occurred. (Former Gov. Code, § 12960, subds. (b) & (d); 

Cal. Code Regs., tit. 2, § 10009, subd. (e); Romano v. Rockwell 

Internat., Inc. (1996) 14 Cal.4th 479, 492.) Even after this 

administrative complaint is filed with the Department, the 

employee may sue her employer in court only after the 

Department issues a “right-to-sue notice,” which happens (1) 

when the employee elects to “forgo having the [D]epartment 

investigate [her] complaint” by requesting an “immediate rightto-sue notice” (Cal. Code Regs., tit. 2, §§ 10005, 10004, subd. (c); 

Clark v. Superior Court (2021) 62 Cal.App.5th 289, 305); or (2) 

when no immediate right-to-sue notice is sought, when the 

Department has investigated the verified complaint for 150 days 

(as well as pursuing any attempts at “conciliation and/or 

settlement”) without filing its own civil complaint against the 

employer or has, prior to the 150-day window, determined it will 

not pursue legal action (Gov. Code, § 12965, subd. (b); Cal. Code 

Regs., tit. 2, §§ 10005, subd. (e), 10024, subd. (a), 10025, subd. (a), 

10026, subd. (a), 10004, subd. (a), 10031, subd. (a); Martin v. 

Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1726

(Martin); Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 

1120-1121.) An employee has one year to file suit after receiving 

the right-to-sue notice. (Acuna v. San Diego Gas & Electric Co.

(2013) 217 Cal.App.4th 1402, 1413 (Acuna).)

If the employee does not submit a “right-to-sue complaint” 

with the Department seeking to bypass any investigative process 

and obtain an “immediate right-to-sue notice” (Cal. Code Regs., 

tit. 2, § 10005), then the process of filing a verified complaint has 

many steps. The process starts with the employee filing a “PreComplaint Inquiry” designed to have the Department gather 
11

factual information about the alleged FEHA violation. (Cal. Code 

Regs., tit. 2, § 10002, subd. (a).) Consistent with well-settled, 

pre-2020 law that this initial inquiry filing is not a verified 

complaint (Cole v. Antelope Valley Union High School Dist. (1996) 

47 Cal.App.4th 1505, 1515; Holland v. Union Pacific Railroad Co.

(2007) 154 Cal.App.4th 940, 946, fn. 8 (Holland)),4 the 

standardized form used for the Department’s pre-complaint 

inquiry is captioned “Pre-Complaint Inquiry” and explicitly 

indicates that it “is not a filed complaint.” Once the inquiry form 

is filed, the Department then “initiate[s] the investigative 

process” by “conducting an intake interview” with the employee. 

(Cal. Code Regs., tit. 2, §§ 10002, subd. (b), 10007, subd. (a).) 

Using the information it acquires in that process, the 

Department then “draft[s] the language” of the administrative 

complaint. (Id., § 10009, subd. (a).) Because the complaint must 

be verified by the employee (id., § 10009, subd. (c)), the employee 

“may propose modifications” to the Department’s draft complaint, 

but the Department is not obligated to accept those proposed 

edits (id., § 10009, subd. (f)). The final step is for the employee to 

sign and verify the complaint, and the date of the employee’s

signature is the date on which the verified complaint is deemed 

filed with the Department. (Id., § 10009, subds. (c) & (d).)

An employee’s failure to file a timely verified complaint 

with the Department—that is, within one year of the “alleged 

4 Our Legislature changed the law effective January 1, 2020 

to provide that “filing a complaint means filing an intake form” 

(Gov. Code, § 12960, subd. (b)), but the Legislature clarified in a 

new subdivision effective January 1, 2022 that this provision does 

not apply retroactively to revive claims—like plaintiff’s—that 

became untimely prior to the new law (id., subd. (f)(3)). 
12

unlawful practice”—constitutes a failure to exhaust FEHA’s 

administrative remedies (Holland, supra, 154 Cal.App.4th at p. 

945; Kim, supra, 226 Cal.App.4th at p. 1345 [“[e]xhaustion 

includes the timely filing of administrative complaints”]; Pollock, 

supra, 11 Cal.5th at p. 931 [“‘The timely filing of an 

administrative complaint’ before the [Department] ‘is a 

prerequisite to the bringing of a civil action for damages’”]; 

Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052 

(Valdez)), and is a basis for dismissing a FEHA claim on 

summary judgment (Martin, supra, 29 Cal.App.4th at p. 1724). 

It is the employee-plaintiff who bears the burden of proving that 

she exhausted her administrative remedies. (Kim, at p. 1345.)

2. Equitable tolling

Because an employee’s failure to exhaust administrative 

remedies does not divest a trial court of subject matter 

jurisdiction (Holland, supra, 154 Cal.App.4th at p. 946; 

McDonald v. Antelope Valley Community College Dist. (2008) 45 

Cal.4th 88, 107), courts retain an equitable power to excuse the 

untimely filing of a complaint with the Department (Accardi v. 

Superior Court (1993) 17 Cal.App.4th 341, 349). As pertinent 

here,5 courts may deem the one-year deadline to file an 

administrative complaint equitably “tolled” in situations where 

the Department (1) “misleads the [employee] about filing 

5 Courts also retain the equitable power to reach back and 

excuse unexhausted claims that are part of a “continuing 

violation” (Acuna, supra, 217 Cal.App.4th at p. 1412; Valdez, 

supra, 231 Cal.App.3d at p. 1052), but that doctrine is not 

implicated here.
13

obligations,” or (2) “commits errors in processing the [employee’s]

complaint.” (Cal. Code Regs., tit. 2, § 10018.)6

Because the power to equitably toll is, by its very nature, 

grounded in “equity” (Denney v. Universal City Studios, Inc. 

(1992) 10 Cal.App.4th 1226, 1234 (Denney)) and requires a 

“balancing [of] the equities” (Rodriguez v. Airborne Express (9th 

Cir. 2001) 265 F.3d 890, 901-902), the doctrine of equitable tolling 

is more likely to be invoked when “[t]he equities favor” the 

employee, such as when she (1) “diligently pursued [her] claim,” 

(2) “was misinformed or misled by the [Department],” (3) “relied 

in fact on the misinformation or misrepresentations of that 

agency, causing [her] to fail to exhaust [her] administrative 

remedies,” and (4) “was acting pro se at the time.” (Rodriguez, at 

p. 902.) Critically, an employee’s diligence and lack of negligence 

while exhausting her administrative remedies is not merely a 

pertinent factor to equitable tolling—it is an absolute 

prerequisite. (Id. at p. 902, fn. 12 [“Diligence is required for the 

successful invocation of virtually any equitable doctrine”]; 

Scholar v. Pacific Bell (9th Cir. 1992) 963 F.2d 264, 268 

[“claimant’s failure ‘to exercise due diligence’” is fatal]; Watson v. 

Chubb & Sons, Inc. (9th Cir. 2002) 32 Fed. Appx. 827, 828-829; 

Lehman v. United States (9th Cir. 1998) 154 F.3d 1010, 1016 

[equitable tolling is “not available to avoid the consequences of 

6 Equitable tolling is also appropriate when the Department 

“improperly discourages or prevents the [employee] from filing at 

all” (Cal. Code Regs., tit. 2, § 10018), but that basis is not 

implicated here. Although plaintiff argues that there may be 

other grounds for equitable tolling, her argument points to the 

various circumstances bearing on the propriety of tolling due to 

misleading conduct or errors in processing, rather than setting 

forth an additional, independent basis for tolling. 
14

one’s own negligence”]; cf. Holland, supra, 154 Cal.App.4th at p. 

947 [“diligen[ce] in pursuit of [administrative] remedy” counsels 

in favor of equitable tolling].)

Because equitable tolling is a defense to the failure to 

exhaust, once an administrative complaint is shown to be 

untimely (and hence unexhausted), the burden shifts to the 

employee to prove the propriety of equitable tolling. (Holland,

supra, 154 Cal.App.4th at p. 945.)

B. Facts pertinent to administrative exhaustion7

1. Pre-complaint inquiry form

On October 16, 2017, plaintiff filled out and filed the 

Department’s “Pre-Complaint Inquiry” form. Plaintiff’s handwritten responses on the form state that the conduct at issue 

occurred from April 17, 2017 to October 13, 2017. Her narrative 

response on the form discussed only McNamara’s conduct;

plaintiff did not mention Joseph and, unlike McNamara and 

UTLA, she did not list Joseph as a “respondent.” 

7 To sidestep plaintiff’s assertions that the trial court 

wrongly excluded portions of her declaration and wrongly 

resolved factual disputes between her declaration and the 

employment agency’s business records, we will consider the 

excluded portions of her declaration and, as noted above, resolve 

all factual disputes, including those between plaintiff’s 

declaration and the records, in plaintiff’s favor except those 

created by inconsistencies in plaintiff’s declaration or by 

contradictions between that declaration and plaintiff’s prior 

discovery responses. 
15

2. Pre-complaint investigation by the Department

a. Initial interview in November 2017

On November 4, 2017, the Department sent plaintiff an 

acknowledgement that her “inquiry ha[d] been received,” and 

assigned a Department analyst to her case five days later. 

On November 13, 2017, the analyst emailed plaintiff asking 

to schedule an interview “to obtain more information about [her] 

complaint.” They agreed to conduct the interview the next week. 

The analyst confirmed the interview in a letter to plaintiff 

summarizing that she had “filed a Pre-Complaint Inquiry” with 

the Department, and the Department would “determine if [her] 

complaint warrants further investigation” or “prosecution.” 

The interview occurred on November 20, 2017. 

b. Requests for further information in 2018

The Department analyst next reached out to plaintiff on 

March 14, 2018 to ask her for a copy of her UTLA paystub. 

Plaintiff responded that she did not remember the analyst, and 

asked him to “hold off” until they had another conversation 

because she does not “know what this [is] for.” 

On June 11, 2018, the Department analyst reached out to 

plaintiff again, this time to ask her to “explain” what 

“professional growth opportunities” she was denied (which was 

an adverse action she listed on her inquiry form). Although we 

accept as true plaintiff’s statement in her declaration that she 

“described in detail all specifics that [the analyst] requested,” she 

provides no date for her response beyond asserting she was 

“always prompt in responding.” It is undisputed, however, that 

on September 4, 2018, the Department analyst called and 

emailed plaintiff stating that he did not have the information he

had requested in June 2018 and needed it so it could “be included 
16

in the complaint.” Plaintiff did not respond to the analyst’s early 

September entreaties.

3. Initial draft complaint 

On September 7, 2018, the Department analyst sent 

plaintiff a draft complaint. The draft complaint alleged that (1) 

plaintiff experienced sexual harassment by McNamara between 

July 2016 and October 2017, and (2) plaintiff was denied equal 

pay on the basis of her gender. 

Accompanying the draft complaint was a cover letter. That 

letter asked plaintiff to “sign and return” the complaint if she 

“agree[s] with the language,” but if not, to contact the analyst to 

discuss any “concerns.” The cover letter also explicitly advised 

plaintiff that (1) “[t]he law requires that a complaint be filed 

within one (1) year from the date of the discriminatory act,” so 

plaintiff should sign it or discuss any concerns with the language 

“as soon as possible,” and (2) plaintiff’s failure to respond within 

10 days would result in the Department closing her case. 

On September 9, 2018, plaintiff contacted the analyst and 

told him that the draft complaint was “inaccurate.” On a 

September 10, 2018 call, plaintiff elaborated that she was 

confused over whether she was sexually harassed by McNamara 

or was discriminated against on the basis of gender. Plaintiff did 

not at that time provide any edits, and instead promised the 

analyst she would email him proposed language. 

When plaintiff did not send the analyst her proposed edits, 

he left her voicemails on September 21, 2018 and September 28, 

2018 and sent her an email on September 28, 2018: Each 

communication requested “the edited complaint language” so the 

complaint could be finalized for her signature; the analyst cut 
17

and pasted the draft complaint’s allegations into the email as a 

reminder. 

4. October 2018 edits

Although no edits from plaintiff appear in the 

Department’s file and plaintiff did not during discovery produce 

any email from her containing those edits (because she 

inconsistently blamed her email provider for intentionally 

deleting them and herself for accidentally deleting them), we 

accept as true plaintiff’s declaration that she emailed her

proposed (but unspecified) edits at some unspecified time in 

October 2018. 

5. January 2019 edits including Joseph

On January 8, 2019, plaintiff emailed the Department 

analyst to complain that she had sent her proposed edits to him

“a few months ago” and had not heard back.8 When the analyst 

told plaintiff on a January 10, 2019 call that he never received 

her edits, plaintiff asked for the draft complaint language once 

again. The analyst emailed plaintiff that language later that 

day. 

Two weeks later, on January 23, 2019, plaintiff provided 

edits and for the first time included allegations regarding Joseph. 

Plaintiff also for the first time requested an immediate right-tosue letter from the Department. 

6. Revised draft complaint

After plaintiff made two more requests for status updates

in February 2019, the Department analyst sent plaintiff a revised

8 Because plaintiff provides no greater specificity, we cannot 

construe this as indicating that the proposed edits were sent any 

earlier than the uncertain October 2018 timeframe she provided 

elsewhere.
18

draft complaint for signature on March 1, 2019. The revised

draft complaint alleged that (1) plaintiff experienced sexual 

harassment by McNamara and Joseph between July 2016 and 

October 2017, (2) plaintiff was denied equal pay on the basis of 

her gender, and (3) a reprimand plaintiff received in April 2018 

was retaliation for her complaints of harassment. The cover 

letter accompanying the revised draft complaint contained the 

same provisos as the cover letter sent in September 2018. 

Plaintiff refused to sign the revised draft complaint 

because, “according [to] the research [she had] done,” the 

complaint should bear the date she filed her inquiry form—not 

the date of the draft. 

The Department analyst referred plaintiff to a supervisor, 

and plaintiff—now represented by counsel—worked with the 

supervisor to finalize the complaint. Plaintiff forwarded the 

supervisor all of her email correspondence with the analyst; there 

were no emailed edits from October 2018. 

7. Verified complaint and right-to-sue notice

Plaintiff signed and verified the revised draft complaint on 

April 19, 2019 and, in accordance with the law, the verified 

complaint was dated as of that date (rather than the date 

plaintiff filed the inquiry form).

The Department issued plaintiff a right-to-sue notice on 

February 21, 2020. 

C. Analysis

Because UTLA’s liability for sexual harassment turns on 

the conduct of McNamara and Joseph, and because the last 

alleged unlawful act committed by McNamara and Joseph differs, 

we analyze the timeliness of plaintiff’s exhaustion of 

administrative remedies as to McNamara and Joseph separately.
19

1. Claim based on McNamara’s conduct

Plaintiff’s allegation in her verified complaint with the 

Department that McNamara’s alleged harassment ended on 

October 12, 2017 is conclusive, and obligated her to file her 

administrative complaint by October 12, 2018.9 Because it was 

not filed until April 19, 2019, plaintiff did not timely exhaust her 

administrative remedies. The burden thus shifted to plaintiff to 

establish triable issues of material fact as to the applicability of 

equitable tolling.10 Plaintiff resists that the burden shifted to 

her, arguing that it remained on the Department to show that 

any delay was her fault, but plaintiff’s argument misapplies the 

above-cited precedent: Although defendants as the moving 

parties had the initial burden of showing their entitlement to 

relief on summary adjudication or judgment, defendants met this 

burden when they showed plaintiff’s verified complaint was 

9 Although plaintiff hand-wrote on the inquiry form that the 

“last date of harm” was October 13, 2017, her verified complaint 

with the Department states that the conduct occurred “on or 

before” October 12, 2017; we need not tarry over this one-day 

discrepancy because plaintiff failed to timely exhaust her 

administrative remedies based on either date.

10 We note that, contrary to plaintiff’s assertion, equitable 

tolling is an issue for the court, not the jury. (Hopkins v. 

Kedzierski (2014) 225 Cal.App.4th 736, 745-746; Doe v. Marten

(2020) 49 Cal.App.5th 1022, 1029; cf. Brome v. Dept. of the 

California Highway Patrol (2020) 44 Cal.App.5th 786, 790-791 

[discussing how “reasonable jury” could find disputed issues as to 

equitable tolling, but not confronting issue of which trier of fact 

must address issue on the merits]; see generally People v. Knoller 

(2007) 41 Cal.4th 139, 155 [“‘“An opinion is not authority for 

propositions not considered”’”].)
20

untimely and hence not exhausted; that showing itself shifted the 

burden to plaintiff to show equitable tolling applies, which 

dovetails neatly with the general rule that the burden of showing 

administrative exhaustion rests with the plaintiff (accord,

Holland, supra, 154 Cal.App.4th at p. 945).

a. Misleading conduct

An employee may be entitled to equitable tolling of the oneyear deadline for filing a verified complaint with the Department 

if the Department “misle[d]” the employee about her “filing 

obligations.” (Cal. Code Regs., tit. 2., § 10018.) To trigger 

equitable tolling, the Department must make an affirmative 

statement or action, such as giving the employee “inaccurate 

advice” or “assurances” that procedural noncompliance will be 

overlooked. (Holland, supra, 154 Cal.App.4th at pp. 946-947 

[Department inaccurately “assured” employee that he “need not 

be concerned” about upcoming administrative deadlines]; Denney, 

supra, 10 Cal.App.4th at p. 1234 [agency inaccurately told 

employee that administrative complaint alleging one claim was 

“sufficient” to exhaust as to different claims]; Albano v. ScheringPlough Corp. (9th Cir. 1990) 912 F.2d 384, 386-387 [same].)

The trial court here correctly ruled that the undisputed 

facts show plaintiff’s untimely verified complaint is not excused 

by any misleading conduct by the Department. At no point did 

the Department incorrectly advise or assure plaintiff that she 

could ignore pending deadlines; to the contrary, the Department 

analyst when transmitting the draft complaint on September 7, 

2018 explicitly advised plaintiff of the pending one-year deadline 

and the need for alacrity. 

Plaintiff responds with what boils down to three 

arguments.
21

First, plaintiff argues that the Department analyst in some 

correspondence referred to plaintiff’s “Pre-Complaint Inquiry” 

form as a “complaint,” such that plaintiff was misled into 

believing that she had already filed her verified complaint once

she filed her Pre-Complaint Inquiry. We reject this argument. 

The inquiry form itself said that it was not a complaint. (And 

contrary to what plaintiff suggests, our Legislature’s decision to 

amend the law to make the filing of an inquiry form synonymous 

with the filing of a verified complaint—and to not make that 

change retroactive—indicates that, prior to this amendment, the 

inquiry form and the verified complaint were not synonymous.) 

The analyst reminded plaintiff in September 2018 that the 

complaint was due “within one (1) year from the date of the 

discriminatory act,” and plaintiff knew—because she wrote it on 

the inquiry form—that McNamara’s acts ended on October 13, 

2017. What is more, the whole purpose of the months-long backand-forth between plaintiff and the analyst was to prepare and 

file the verified complaint, which would have made no sense if—

as plaintiff now asserts—she had already filed a qualifying 

complaint. Taking all of this together, the analyst’s occasional 

use of informal shorthand in calling the “Pre-Complaint Inquiry” 

form the “complaint” could not have misled plaintiff as a matter 

of law. We decline to adopt a rule that rests on the notion that 

employees are effectively potted plants who cannot read, do 

math, or understand the context in which statements are made.

Second, plaintiff argues that even if the Department did 

not affirmatively mislead her, she was “[]reasonabl[y]” confused 

and the Department therefore misled her by not clarifying and 

correcting her unstated confusion. This argument relies on the 

wrong legal standard.
22

Third and lastly, plaintiff argues that she is not a lawyer. 

This is true, but it does not alter the fact that the Department did 

nothing to mislead her. 

b. Errors in processing the complaint

An employee may be entitled to equitable tolling of the oneyear deadline for filing a verified complaint with the Department 

if the Department “commits errors in processing [her] complaint.” 

(Cal. Code Regs., tit. 2, § 10018.)

The trial court here correctly ruled that plaintiff’s untimely 

verified complaint is not excused by any Department errors in 

processing her complaint because, contrary to what she asserts 

on appeal, the undisputed facts show she was, as matter of law, 

not diligent in prosecuting her complaint. Although she filed her 

inquiry form soon after McNamara’s conduct ended and she 

responded quickly to the Department analyst’s request for an 

interview in November 2017, plaintiff thereafter (1) told the 

analyst in March 2018 to “hold off” on processing her complaint;

(2) did not contemporaneously dispute the analyst’s report that 

he never received the information he requested from plaintiff in 

June 2018; and (3) waited between three and seven weeks to 

provide proposed edits to the analyst in response to the initial 

draft complaint sent in September 2018, despite being warned 

that the deadline was looming (and, at that time, was just five 

weeks away). Even if we indulge in speculation that plaintiff 

sent edits to the analyst at the beginning of the vague “October 

2018” timeframe plaintiff provided in opposition to the summary 

adjudication motion, that would have still left the Department 

less than two weeks to consider whether to accept or reject her 

edits, redraft the complaint, and recirculate it for her 

consideration. Plaintiff accuses the Department of “slow 
23

walking” the processing of her complaint, but the undisputed 

facts show she was the slow walker.

Plaintiff responds with what boils down to four arguments.

First, plaintiff argues that the Department committed 

errors in processing her complaint because the analyst did not 

produce a draft complaint until early September 2018, five weeks 

before the one-year deadline was to expire. For support, she 

argues that the Department’s regulations require analysts to 

assign “priority” when a statute of limitations is about to expire, 

and to accept any “written statement or correspondence” as the 

employee’s administrative complaint when “necessary to avoid 

missing the statute of limitations for filing [a verified compliant] 

with the [D]epartment.” (Cal. Code Regs., tit. 2, §§ 10008, subds. 

(a) & (b), 10010, subds. (a) & (c).) This argument does not negate 

our conclusion that plaintiff was not diligent as a matter of law. 

Moreover, this argument ignores that the reason it took the 

analyst nearly 11 months to produce a draft complaint is because 

plaintiff told him to “hold off” at the four-month mark and 

because the analyst did not receive information plaintiff said she 

transmitted in June 2018. The regulations plaintiff cites do not 

compel a contrary conclusion: The duty to give priority grants a 

“priority for the purpose of scheduling an intake interview” when 

the statute of limitations is about to run (id., § 10008, subd. (a))

(but here, the intake interview was conducted almost 

immediately after plaintiff filed her inquiry form and long before 

the statute of limitations was about to expire), and the 

Department’s ability to accept other filings in lieu of a verified 

complaint applies “[i]f the statute of limitations would expire 

before an intake interview could be scheduled and completed for 

a complaint filed for investigation” (id., § 10010, subd. (a)) (but 
24

again, the intake interview in this case was conducted long before 

the limitations period would expire). 

Second, plaintiff argues that the Department had a duty to 

file the unverified first draft of her complaint by the October 12, 

2018 deadline because one of the Department’s regulations 

obligates the Department to “file the unverified complaint and 

accept it as received” where the employee “cannot verify a 

complaint for investigation before the applicable statute of 

limitations runs.” (Cal. Code Regs., tit. 2, § 10009, subd. (d).) As 

a threshold matter, it is not clear the Department’s duty under 

this regulation is triggered here because the analyst got the 

initial draft complaint to plaintiff five weeks prior to the statute 

of limitations deadline, which may not qualify as a situation 

where the employee “cannot verify a complaint” before the 

deadline. More to the point, plaintiff called the analyst days after 

receiving the draft complaint, told him it was “inaccurate” and 

that she would be sending edits. In effect, she told him to hold off 

and then did nothing for weeks. The regulation does not compel 

the Department to file a knowingly inaccurate complaint when 

the employee has promised to provide edits that would correct 

those inaccuracies. And nothing in the regulation obligates a 

court considering equitable tolling to ignore the employee’s lack 

of diligence and her role in creating the circumstances that may 

implicate the regulation in the first place.

Third, plaintiff argues that the Department’s first draft 

complaint was riddled with errors, and that the analyst’s alleged 

careless drafting constitutes errors in the processing of her 

complaint. This argument overlooks that the allegations 

involving McNamara were largely the same in this initial draft 

complaint and the final complaint plaintiff verified and signed; 
25

the analyst’s initial draft complaint as to McNamara was thus 

not riddled with errors. What plaintiff characterizes as “error” is 

the initial draft complaint’s omission of any facts regarding 

Joseph, but, as noted below, plaintiff presents no evidence that 

she asked the Department to include allegations regarding 

Joseph until January 2019, long after the limitations period ran 

as to McNamara in October 2018.

Fourth and finally, plaintiff argues that any result that 

does not favor her amounts to a “‘procedural gotcha’” because the 

Department “lulled” her “into believing that she had done what 

was necessary to preserve her rights”—leaving her shocked and 

surprised when the trial court concluded her verified complaint 

was untimely. Because, as we have concluded, the undisputed 

facts show that the Department did nothing to mislead plaintiff, 

this argument lacks any factual foundation in the record and 

amounts to a request that an employee’s misapprehension of 

deadlines—no matter how formed—entitles her to ignore those

deadlines. That is not the law, and would obliterate most 

deadlines if it were. 

2. Claim based on Joseph’s conduct

Plaintiff’s allegation in her verified complaint that Joseph’s 

alleged harassment ended in October 12, 2017 is conclusive, and 

thus obligated her to file a verified complaint with the 

Department by October 12, 2018. The first time plaintiff asserted 

that Joseph’s conduct continued into January or February 2018 

was during her deposition.11 Because her verified complaint was 

11 Plaintiff did not identify the early 2018 incident when 

Joseph looked her “up and down” as she walked down a staircase 

in (1) her complaint to UTLA’s human resources department filed 

shortly after the incident, (2) her inquiry form or any iteration of 
26

not filed until April 19, 2019, plaintiff did not timely exhaust her 

administrative remedies under either timeline. The burden thus 

shifted to plaintiff to establish triable issues of fact as to the 

applicability of equitable tolling. 

Because, as noted above, the undisputed facts show no 

misleading conduct by the Department, the sole remaining basis 

for equitable tolling is any errors in the processing of plaintiff’s 

complaint. However, plaintiff’s lack of diligence is even more 

pronounced as to Joseph because the first time that plaintiff even 

mentioned him to the Department was in January 2019, despite 

Joseph’s conduct occurring at a minimum one year prior. 

Although plaintiff’s declaration indicates that she provided the 

Department “edits” to correct “inaccuracies” in the initial draft 

complaint in October 2018, this language says nothing about 

adding new allegations regarding an entirely different person; we 

decline to speculate that plaintiff’s choice of words meant 

something beyond what she said, and plaintiff has offered no 

other evidence as to the content of her October 2018 missive to 

the analyst. Even if we assume that Joseph’s final act of “looking 

[her] up and down” while passing her on a staircase occurred in 

February 2018, that means plaintiff waited 11 months to raise 

the issue. She was not diligent, and that lack of diligence 

dictates that equitable tolling not apply as a matter of law.

II. Plaintiff’s Bane Act and Ralph Act Claims

To prevail on a Bane Act claim, a plaintiff must establish 

that (1) the defendant has “interfere[d]” with the “exercise or 

enjoyment” of her constitutional rights, (2) “by threat, 

intimidation, or coercion,” and (3) with the “specific intent to 

her administrative complaint filed with the Department, or (3) 

her operative complaint filed in the trial court.
27

violate” her civil rights. (Civ. Code, § 52.1; Schmid v. City & 

County of San Francisco (2021) 60 Cal.App.5th 470, 483; Shoyoye 

v. County of Los Angeles (2012) 203 Cal.App.4th 947, 956-957

(Shoyoye).) To prevail on a Ralph Act claim, a plaintiff must 

establish that (1) the defendant made a “discriminatory” 

distinction on the basis of a protected characteristic the 

defendant perceived the plaintiff to have, (2) the defendant 

engaged in “violence” or “intimidation by threat of violence,” and 

(3) the defendant acted with a “discriminatory motive.” (Civ. 

Code, § 51.7; Gabrielle A. v. County of Orange (2017) 10 

Cal.App.5th 1268, 1290-1291 (Gabrielle A.); CACI Nos. 3063, 

3064.)

Both the Bane Act and the Ralph Act require proof of (1) 

violence, (2) threatened violence, or (3) intimidation through 

physical acts or words. (Civ. Code, §§ 52.1, 51.7.) A threat of 

violence requires “some expression of intent to injure or damage 

[the] plaintiff[] or [her] property.” (Ramirez v. Wong (2010) 188 

Cal.App.4th 1480, 1486-1487; Civ. Code, § 52.1, subd. (j).) 

Intimidation and coercion are terms of art under the Acts,

reserved for “egregious interferences with constitutional rights, 

[and] not just any tort” such as assault. (Julian v. Mission 

Community Hospital (2017) 11 Cal.App.5th 360, 395; Shoyoye, 

supra, 203 Cal.App.4th at pp. 960-961 [detention of plaintiff 

insufficient].) Speech that does not explicitly threaten violence is 

not actionable as intimidation or coercion unless the plaintiff 

“reasonably fears that, because of the speech, violence will be 

committed against them or their property” by the defendant and 

that the defendant has the present ability to carry out that 

violence (Civ. Code, § 52.1, subd. (k); Gabrielle A., supra, 10 

Cal.App.5th at pp. 1289-1290.) In this situation, the question is 
28

whether “‘a reasonable person, standing in the shoes of the 

plaintiff, [would] have been intimidated by the actions of the 

defendant and have perceived a threat of violence.’” (Winarto v. 

Toshiba Am. Electronics Components, Inc. (9th Cir. 2001) 274 

F.3d 1276, 1289-1290 (Winarto).) 

We independently agree with the trial court that plaintiff’s 

Bane Act and Ralph Act claims fail as a matter of law. It is 

undisputed that neither McNamara nor Joseph engaged in 

violence toward her. It is also undisputed that neither 

McNamara nor Joseph ever threatened violence because at no 

point did either of them express an intent to injure plaintiff or 

her property. There is also insufficient evidence as a matter of 

law to establish that McNamara or Joseph ever intimidated or 

coerced her in a manner that would make a reasonable person 

perceive a threat of violence. To be sure, McNamara raised his 

voice, used profanity, and invaded plaintiff’s personal space, but 

he never balled a fist, pounded a table, or did anything physical 

to create a reasonable belief that the “anger” and “hostility” 

plaintiff perceived would translate into violence. And, to be sure, 

Joseph made foul and offensive sexual remarks that alluded to

sexual conduct to which plaintiff would not have consented, but 

Joseph also never touched plaintiff and never indicated he would 

engage in nonconsensual sexual conduct, so his conduct and 

words would not have caused a reasonable person to perceive a 

threat of violence. 

Plaintiff responds with what boils down to four arguments.

First, plaintiff argues that Joseph is a lawyer, and that 

lawyers are more intimidating because they (ostensibly) know the 

law and what they can get away with. We decline plaintiff’s 
29

invitation to create a separate, more plaintiff-friendly standard of 

liability for defendants who happen to be lawyers.

Second, plaintiff argues that she subjectively felt 

intimidated. We must credit her evidence of such, but the 

definition of intimidation turns on a reasonable person, not on 

subjective perception.

Third, plaintiff argues that precedent compels a ruling in 

her favor. It does not. She cites Winarto, supra, 274 F.3d 1276, 

but the defendant in that case kicked the plaintiff and then 

“feigned kicking her on many other occasions” (id. at pp. 1289-

1290). Such actual use of violence and threatened re-use of 

violence is absent here. Plaintiff also cites Harris v. Stampolis 

(2016) 248 Cal.App.4th 484, Long v. Valentino (1989) 216 

Cal.App.3d 1287, Myers v. Trendwest Resorts, Inc. (2007) 148 

Cal.App.4th 1403, and C.R. v. Tenet Healthcare Corp. (2009) 169 

Cal.App.4th 1094. But none of these cases involves the Bane Act 

or Ralph Act, or their specific requirement of violence, threatened 

violence, or intimidation/coercion. Long involves the Unruh Civil 

Rights Act (Civ. Code, § 51 et seq.), Myers involves sexual 

harassment under FEHA, and C.R. involves common law sexual 

harassment. (Long, at p. 1290; Myers, at p. 1425; C.R., at p. 

1112.) Harris involves the civil harassment statute (Code Civ. 

Proc., § 527.6); while that statute requires a “credible threat of 

violence,” it defines that term of art more expansively than the 

intimidation/coercion requirement under the Bane Act and Ralph

Act because it need only “‘place a reasonable person in fear for . . .

her safety’” rather than perceiving a threat of violence. (Harris, 

at p. 498; Code Civ. Proc., § 527.6, subd. (b)(2).) 

Fourth and finally, plaintiff argues that McNamara’s and 

Joseph’s words and conduct were intimidating when viewed “in 
30

context.” Although we agree that context is important 

(Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal 

Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250, 

disapproved on other grounds by Cohen v. Superior Court (2024) 

102 Cal.App.5th 706, 727, fn. 11), we have already accounted for 

context in examining what a reasonable person in plaintiff’s 

shoes would perceive.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ