1

Filed 3/20/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ASHLEY ELLIS,

Plaintiff and Appellant,

v.

U.S. SECURITY ASSOCIATES et al.,

Defendants and Respondents.

 A136028

 (Solano County

 Super. Ct. No. FCS038885)

Appellant Ashley Ellis went to work for respondent U.S. Security Associates (U.S. 

Security) in September 2009, as a security guard. Quickly promoted, Ellis came under 

the supervision of Rick Haynes, who began sexually harassing her in August 2010. 

Employees complained to U.S. Security, and Haynes was counseled, apparently to no 

avail, and he was terminated in December 2010. Ellis was again promoted, but never to 

be paid the raise she was promised, and she resigned in January 2011.

In November 2011, Ellis filed a complaint alleging three claims under the Fair 

Employment and Housing Act (Government Code § 12900 et seq.) and two nonstatutory 

claims, claims clearly timely under the applicable statutes of limitations. U.S. Security 

nevertheless moved for judgment on the pleadings, based on Ellis’s signed application for 

employment where she agreed that “any claim or lawsuit . . . must be filed no more than 

six (6) months after the date of the employment action,” and she waives “any statute of 

limitations to the contrary.” In a seven-line order, without discussion or explanation, the 

trial court granted the motion and dismissed Ellis’s complaint, apparently concluding that 
2

the shortened limitation provision was enforceable. We conclude otherwise, and reverse, 

holding that the shortened limitation provision is unreasonable and against public policy.

BACKGROUND

The Facts

As indicated, Ellis’s complaint was dismissed based on a judgment on the 

pleadings. Since it was, “We accept, and liberally construe, the truth” of her facts. 

(Caldera Pharmaceuticals, Inc. v. Regents of the University of California (2012) 

205 Cal.App.4th 338, 350). Those facts are as follows:

In September 2009, U.S. Security hired Ellis as a security guard, and she began 

work at a Union Pacific railroad site in Benicia. 

In early 2010, Ellis became a field training officer in Benicia, where her direct 

supervisor was Rick Haynes, who also supervised his wife, Tina. On August 25, 2010,

Haynes called Ellis and proposed that she join him and his wife in sexual activities, 

telling Ellis that he and his wife had an open marriage, and asking whether Ellis “wanted 

to be his sexual partner.” Ellis rejected the proposition. Later that day, Haynes texted 

Ellis at work, telling her “he wanted to kiss her and he was sorry she did not want to be 

lovers.” 

Thereafter, Haynes subjected Ellis to a pattern of offensive and unwanted sexual 

behavior at work, including: making suggestive sexual comments to her; making 

comments about her appearance; telling her (and coworkers) about his and his wife’s 

sexual activities; pulling up his pants in front of Ellis to expose the size of his sexual 

organ; asking her to join him and his wife in sexual activities; and giving her gifts. In 

addition, Haynes’s wife Tina frequently spoke in Ellis’s presence of her and Haynes’s 

sexual behavior, commenting about having multiple partners, and describing sexual 

activities and sexual fantasies. 

Sometime prior to September 25, 2010, “multiple . . . female employees” 

complained to management that Haynes was sexually harassing them at the Benicia 

worksite, and management required Haynes to participate in a sexual harassment class. 

Later, in November 2010, a coworker complained to management about Haynes’s 
3

continued harassing comments. The complaining worker was put on unpaid leave, and 

Haynes transferred Ellis to the back gate of the Benicia site, a less desirable location than 

the front gate where she had been working. 

In November 2010, Ellis notified someone at U.S. Security headquarters of 

Haynes’s inappropriate conduct, including his August proposals and text message, and 

his subsequent harassing conduct. In December 2010, Haynes was terminated. 

Following Haynes’s termination, Ellis was promoted to a supervisor position, and 

promised a raise to $14 per hour. A U.S. Security employee later told Ellis she would be 

paid only $11 per hour, and her first paycheck as supervisor was based on a rate of 

$10.50 per hour. Ellis attempted to contact management to correct what she believed at 

the time was a mistake in the rate of compensation. Ellis received no response and, when 

her second paycheck as supervisor was at the same hourly rate, she gave her two-week 

notice. Her last day of employment was January 13, 2011. 

The Proceedings Below

Ellis had filed a complaint with the California Department of Fair Employment 

and Housing (DFEH), and on December 14, 2010, she received a right-to-sue letter. 

On November 17, 2011, Ellis filed a complaint for damages naming U.S. Security 

and Haynes. The complaint alleged five causes of action, styled as follows: (1) sex 

discrimination and sexual harassment, in violation of Government Code § 129401; 

(2) failure to maintain environment free from harassment (§ 12940(k)); (3) retaliation in 

violation of § 12940(h); (4) intentional infliction of emotional distress; and (5) negligent 

hiring, supervision, and retention. The first four causes of action were against both 

defendants, the fifth against U.S. Security only. 

 

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

specified.
4

U.S. Security filed an answer, and then an amended answer, which contained 

several affirmative defenses, one of which was based on Ellis’s failure to bring her 

lawsuit within six months.2

On April 17, 2012, U.S. Security filed a motion for judgment on the pleadings. 

The motion was accompanied by a request for judicial notice, which sought judicial 

notice of “Plaintiff’s Application for Employment with U.S. Security, dated 

September 24, 2009 (redacted).” The application was four pages long, and the final page 

contained the following heading: “IT IS EXTREMELY IMPORTANT THAT YOU 

CAREFULLY READ THE FOLLOWING.” Immediately below was “CONDITIONS 

OF EMPLOYMENT,” which set forth four conditions, and below that the application 

said this: “STATEMENT OF APPLICANT—READ CAREFULLY BEFORE 

SIGNING.” Three paragraphs followed, the last of which read as follows: “I 

understand, agree and acknowledge that any claim or lawsuit relating to my service with 

[U.S. Security] must be filed no more than six (6) months after the date of the 

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

limitations to the contrary.” 

The basis of U.S. Security’s motion was that all of Ellis’s claims were time-barred 

by the six-month limitation provision in the application.

Ellis filed opposition, which did not object to the request for judicial notice or 

argue any claimed unconscionability in the application. Rather, addressing only the 

validity of the shortened limitation period, Ellis argued that the court “find that the 

contract provision at issue is unenforceable as a matter of law.”

U.S. Security filed a brief reply, and the matter came on for hearing on May 22, 

2012, prior to which the court had apparently issued a tentative ruling requiring 

 

2 Haynes was served with the complaint. The record does not reflect any pleading 

filed by him, and the brief of U.S. Security represents that Haynes “has not appeared in 

the action.”
5

appearances.

3

 The hearing was brief indeed, and that same day the court entered a 

seven-line order that, without discussion, explanation, or citation, granted the motion 

without leave to amend and ordered Ellis’s complaint dismissed. 

Ellis filed a timely notice of appeal. 

DISCUSSION

The issue before us is whether the six months limitation provision in the 

application for employment is enforceable?

4

. We hold it is not, as it is unreasonable and 

against public policy. 

FEHA, Its Significance, and Its Operation.

California’s Fair Employment and Housing Act (FEHA) is an elaborate statutory 

scheme consisting of more than 80 sections. (§§ 12900 to 12996). Section 12920, in 

Chapter 3 entitled “Findings and Declarations of Policy,” declares it the “public policy” 

of California to “protect and safeguard” the rights of employees against discrimination. 

Section 12920 also states that “[T]he practice of denying employment opportunity and 

discriminating in the terms of employment . . . foments domestic strife and unrest, 

deprives the state of the fullest utilization of its capacities for development and 

advancement, and substantially and adversely affects the interests of employees, 

employers, and the public in general.” And the section concludes that “[i]t is the purpose 

of this part to provide effective remedies that will eliminate these discriminatory 

practices.” 

FEHA is not just any statutory scheme. As our Supreme Court observed in 

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 

100-101, “[t]here is no question that the statutory rights established by the FEHA are ‘for 

 

3 We say apparently based on comments by the court at the hearing. No tentative 

ruling is in the record. 

4 No issue was raised below that judicial notice of the application was improper. 

(See Gould v. Maryland Sound Industries (1995) 31 Cal.App.4th 1137, 1145 [existence 

of employment contract between private parties not proper subject of judicial notice.] As 

confirmed at oral argument, Ellis did not raise the point as the application could have 

been the basis of a later summary judgment motion.
6

a public reason.’ ‘The broad goal of the FEHA is set forth at . . . section 12920, which 

states in pertinent part: ‘It is hereby declared as the public policy of this state that it is 

necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, 

and hold employment without discrimination or abridgement on account of race, religious 

creed, color, national origin, ancestry, physical handicap, medical condition, marital 

status, sex or age.’ [Citation.] . . . As we stated in Rojo [v. Kliger (1990) 52 Cal.3d 65, 

90]: ‘The public policy against sex discrimination and sexual harassment in employment, 

moreover, is plainly one that ‘inures to the benefit of the public at large rather than to a 

particular employer or employee.’ [Citation.] No extensive discussion is needed to 

establish the fundamental public interest in a workplace free from the pernicious 

influence of sexism. So long as it exists, we are all demeaned.” [Citation.] It is 

indisputable that an employment contract that required employees to waive their rights 

under the FEHA to redress sexual harassment or discrimination would be contrary to 

public policy and unlawful.”

Prior to suing for violation of the FEHA, an employee must exhaust all 

administrative remedies by filing a timely and sufficient complaint with the California 

Department of Fair Employment and Housing (DFEH). (§§ 12960, 12965, subd. (b).) If 

the employee chooses to undergo DFEH’s investigation process, the DFEH will either 

file a civil action against the employer or issue a right-to-sue letter. (§ 12965, subds. (a) 

& (b).) 5If the DFEH fails to file a civil action against the employer within 150 days 

after the charge is filed, or earlier determines not to file a civil action, it must inform the 

employee, in writing, that it will issue a right-to-sue letter on request. If the employee 

fails to request the right-to-sue letter, the DFEH must still issue such letter on completion 

of its investigation, and in no event more than one year after the charge was filed. 

(§ 12965, subd. (b).)

 

5

The employee may choose to receive an immediate right-to-sue letter and waive 

the DFEH’s investigation. (Cal. Code of Regs. tit. 2, § 10005, subd. (a).)
7

The time limit for filing the administrative claim with the DFEH is one year from 

the date of the unlawful act, which may be extended up to 90 days if the employee did 

not learn of the unlawful act until more than a year after its occurrence. (§ 12960. 

subd. (d).) Finally, any lawsuit must be filed within one year from the date of the 

right to-sue letter. (§ 12965. subd. (b).)

Statutes of Limitations and the Law Regarding Shortening Them

A statute of limitations “prescribes the period[ ] beyond which an action may not 

be brought.” (See generally 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 430,

p. 546). As we have described them, such statutes “come into the law not through the 

judicial process but through legislation. They represent a public policy about the 

privilege to litigate.” (O’Neill v. Tichy (1993) 19 Cal.App.4th 114, 120.) 

As distilled by our Supreme Court, there are “several policies underlying such 

statutes. One purpose is to give defendants reasonable repose, thereby protecting parties 

from ‘defending stale claims, where factual obscurity through the loss of time, memory 

or supporting documentation may present unfair handicaps.’ [Citations.] A statute of 

limitations also stimulates plaintiffs to pursue their claims diligently. [Citations.] A 

countervailing factor, of course, is the policy favoring disposition of cases on the merits 

rather than on procedural grounds. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc.

(2005) 35 Cal.4th 797, 806 (Fox). 

As mentioned above, FEHA has its own prescribed period, which requires that an 

administrative claim must be filed with the DFEH within one year from the date of the 

wrongful act, with the employee then having one year from the date on which the DFEH 

issues a right-to-sue letter to file a complaint. (§§ 12960, 12965, subd. (b).)

Three of Ellis’s five causes of action arise out of FEHA: the first, for sexual 

discrimination and harassment (§ 12940); the second, for failure to maintain an 

environment free from harassment (§ 12940, subd. (k)); and the third, for retaliation. 

(§ 12940, subd. (h)). As to them, and as applied to the facts here under FEHA, Ellis 

would have had one year from the December 14, 2010 right-to-sue letter to file her 

statutory claims. As to the nonstatutory claims, the limitation period is two years. (Code 
8

Civ. Proc., § 335.1; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 485

[infliction of emotional distress].) Ellis’s complaint, filed November 17, 2011, was 

timely under the applicable statutory limitation provisions. 

Despite that, the trial court dismissed Ellis’s complaint, apparently on the basis 

that the statutorily proscribed periods could be shortened, and here was, to six months 

after the wrongful act. Doing so, the court was apparently relying on the rule that parties 

may agree to shorten the limitations period. (See generally Fageol T. & C. Co. v. Pacific 

Indemnity Co. (1941) 18 Cal.2d 748, 753 [twelve month limitation provision in insurance 

contract “cannot be ignored with impunity so long as the limitation is not so unreasonable 

as to show imposition or undue advantage”].) 

Various cases in various contexts recognize this rule, all of them emphasizing that 

the shortened limitation must be reasonable. As Witkin puts it, such provisions will be 

upheld if the shorter period is “reasonable, i.e. if it gives sufficient time for the effective 

pursuit of the judicial remedy.” Interestingly, the author goes on, “[a]s a practical matter 

these [shortening] provisions are found only in contracts habitually drawn by the obligor, 

such as bills of lading, warehouse receipts, and insurance policies.” (3 Witkin, Cal. 

Procedure, supra, Actions, § 469, p. 595.) This hardly describes Ellis’s application for 

employment.

Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430 (Moreno), a case relied on 

by U.S. Security, recognizes the rule, describing it this way: “It is true California courts 

have afforded contracting parties considerable freedom to modify the length of a statute 

of limitations. Courts generally enforce parties’ agreements for a shorter limitations 

period than otherwise provided by statute, provided it is reasonable. ‘Reasonable’ in this 

context means the shortened period nevertheless provides sufficient time to effectively 

pursue a judicial remedy. It is a well-settled proposition of law that the parties to a 

contract may stipulate therein for a period of limitation, shorter than that fixed by the 

statute of limitations, and that such stipulation violates no principle of public policy, 

provided the period fixed be not so unreasonable as to show imposition or undue 

advantage in some way. [Citing Beeson v. Schloss (1920) 183 Cal. 618, 622-623.]”
9

As the rule is generally described, “a contractually shortened limitation period, in 

order to be reasonable, must provide a party sufficient time to effectively pursue a 

judicial remedy. A contractual period of limitation is reasonable if the plaintiff has a 

sufficient opportunity to investigate and file an action, the time is not so short as to work 

a practical abrogation of the right of action, and the action is not barred before the loss or 

damage can be ascertained. On the other hand, a contractual limitation provision that 

requires the plaintiff to bring an action before any loss can be ascertained is per se 

unreasonable.” (51 Am. Jur. 2d (2011) Limitation of Actions, § 81, p. 552, fns. omitted.)

Of particular interest here, Moreno went on: “However, a contractually shortened 

limitations period has never been recognized outside the context of straightforward 

transactions in which the triggering event for either a breach of a contract or for the 

accrual of a right is immediate and obvious. . . . [M]ost reported decisions upholding 

shortened periods involve straightforward commercial contracts plus the unambiguous 

breaches or accrual of rights under those contracts.” (Moreno, supra, 106 Cal.App.4th at 

p. 1430.) This hardly describes Ellis’s claims here.

U.S. Security’s Shortened Limitation Period is Not Reasonable.

The leading treatise on California employment law cautiously wonders whether 

shortened limitations provisions would be enforceable in FEHA cases, given the already 

short limitation provision in the statute. The treatise puts it this way:

“Compare-Contract Provisions Shortening Time to Sue:

“[¶] . . .[¶] Discrimination claims? It is not clear whether provisions shortening 

the time to sue are enforceable where employment discrimination claims are involved 

(e.g., Title VII, FEHA, ADA, ADEA, etc.) . . . because discrimination claims are already 

subject to shortened statute of limitations (see ¶16:387 ff.). [See Thurman v. 

DaimlerChrysler, Inc. (6th Cir. 2004) 397 F.3d 352, 358—upholding 6-month limitations 

period in job application form as to employee’s claims under 42 U.S.C. § 1981 for racial 

discrimination and harassment where waiver of longer statute of limitations was 

‘knowing and voluntary’] [¶] One court has invalidated an employment agreement that 

required employees to sue on Title VII claims within six months after the violation. 
10

Because the EEOC maintains exclusive jurisdiction during the 180-day period, ‘the effect 

of the limitation clause at issue could ultimately leave plaintiff without redress, given the 

EEOC filing requirements.’” [Lewis v. Harper Hosp. (ED MI 2002) 241 F.Supp.2d 769, 

772.] (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2013) 

§ 16:545-546.5, pp. 16-94-16-95 (Chin).)

One Court of Appeal case has addressed the subject, and found a six month 

limitation provision to be unreasonable: Martinez v. Master Protection Corp. (2004)

118 Cal.App.4th 107. There, Martinez sued his former employer for violation of the 

Labor Code, national origin discrimination in violation of FEHA, and wrongful 

termination. The employer moved to compel arbitration based on the agreement 

Martinez was required to sign as a condition of employment, one provision of which 

stated that each party had six months to notify the other of a claim. (Id. at pp. 111-112, 

fn. 1.) The American Arbitration Association twice refused to conduct arbitration, for 

two reasons, the second of which was that the agreement gave parties less time to assert 

claims than would otherwise be available by statute. Despite that, the trial court 

appointed a new arbitrator, and the arbitration proceeded to an award. Martinez objected 

to the award and then petitioned to vacate it. The trial court denied the petition, 

confirmed the award, and entered judgment. Martinez appealed. (Id. at p. 112.)

The Court of Appeal reversed, finding the arbitration agreement to be 

unconscionable, “permeated with illegality, and unenforceable.” (Martinez v. Master 

Protection Corp., supra, 118 Cal.App.4th at p. 119.) Elaborating, the court held as 

follows: “The statutes upon which Martinez’s claims are premised provide significantly 

longer periods of time than six months within which to assert a claim of violation. 

Specifically, Martinez’s claim of national origin discrimination arises out of the FEHA.

That statute provides that Martinez’s administrative charge must be filed within one year 

from the date of the discriminatory act, and that he must file any civil action within one 

year of the date on which the administrative agency issues a ‘right to sue’ letter. 

(Gov. Code, §§ 12960, subd (d), 12965, subd. (b).) ‘[A]n arbitration agreement cannot 

be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.’ 
11

(Armendariz, supra, 24 Cal.4th at p. 101.) Similarly, the Labor Code, which provides the 

bases for Martinez’s causes of action for unpaid wages and penalties, affords an 

employee three or four years to assert the claims sued upon here. [Citations.] If there 

was any doubt, after Armendariz, it is clear that ‘parties agreeing to arbitrate statutory 

claims must be deemed to “consent to abide by the substantive and remedial provisions of 

the statute. . . .” ’ The shortened limitations period provided by FireMaster’s arbitration 

agreement is unconscionable and insufficient to protect its employees’ right to vindicate 

their statutory rights.” (Id. at p.117-118.)

Martinez is compelling. Similar to Martinez, Ellis is asserting FEHA claims, and 

the provision in the application—which she was apparently required to sign as a 

condition of even seeking employment—seriously truncates the time she has to vindicate 

her statutory rights, drastically reducing the time to sue allowed by the FEHA by as much 

as five-sixths. Specifically: 

As noted above, an administrative complaint must be filed with the DFEH within 

one year of the alleged unlawful action (§ 12960, subd.(d). If the department decides not 

to pursue the matter, it must issue a right-to-sue letter no later than one year after a 

complaint is filed. (§ 12965, subd. (b).) The employee then has one year from the date of 

that letter to file a civil action. (Id. subd. (d)(2); Pearson Dental Supplies, Inc. v. Superior 

Court (2010) 48 Cal.4th 665, 671, fn.1) In sum, the outside limit to sue under FEHA is 

as long as three years—and necessarily somewhat more than two. That period, the 

Legislature has determined, will provide an effective remedy (§ 12920). Six months does

not. It does not provide “sufficient time for the effective pursuit of the judicial remedy.” 

(3 Witkin, Cal. Procedure, supra, Actions, § 469, p. 595.) It violates the public policy in 

section 12920. It is too short.

We find support for our conclusion in some general discussion of limitation 

provisions, illustrated by that of the Supreme Court in Fox, supra, 34 Cal.4th 797. There, 

addressing the discovery rule in the context of a products liability case, the court noted 

that “At present, the statute of limitations for an action for injury to an individual caused 

by the wrongful act or neglect of another must be commenced within two years from the 
12

date of accrual. (Code Civ. Proc., § 335.1.) This change was effected in 2002, when the 

Legislature found the one-year limitations period of section 340, former subdivi111sion 

3, ‘unduly short’ and adopted a two-year period ‘to ensure fairness to all parties.’ 

(Stats. 2002, ch. 448, § 1.)” (Id. at p. 809, fn 3.) If one year was “unduly short” for 

personal injury actions in general, a fortiori is a six month limitation provision “unduly 

short” in a FEHA case, which requires that the employee first report the claimed 

misconduct to the DFEH and await its action before any suit is ripe, necessarily delaying 

the filing of the complaint. 

When the Legislature extended the statute of limitations for personal injuries from 

one to two years, it also found that “[m]any such matters would be resolved without the 

need to resort to litigation if California’s statute of limitations permitted such actions to 

be filed within two years . . . .” (Stats. 2002, ch. 448, § 1, p. 2522.) Or, as the 

Legislature also found: “Extending the statute of limitations will reduce litigation in 

these cases as well, because [victims] will have the opportunity to fully evaluate and use 

other alternatives, rather than being forced to litigate prematurely.” (Ibid.) In other 

words, a longer period allows a victim time for development and investigation of a case, 

for assessment, for evaluation—and for the possibility of settlement. The six-month 

limitation provision here precludes that.

Moreover, the shortened limitation provision would thwart one aspect of the 

FEHA that is critical in some cases: the administrative enforcement by DFEH itself. 

(§ 12930, subd. (f); Cal. Code of Regs., tit. 2 § 10026.)

6 Again, the leading treatise is apt, 

describing the significance of the DFEH involvement this way: “Filing charges with the 

DFEH is often the only remedy for employees with modest salaries and small claims; 

they need the DFEH because they are not likely to find a private lawyer to represent 

 

6 Before January 1, 2013, the DFEH could pursue the matter itself by issuing an 

accusation and prosecuting the claim before the Fair Employment and Housing 

Commission (FEHC) (§ 12930, subd. (h)). Effective January 1, 2013, the FEHC has 

been eliminated, and the DFEH will have to file a civil action in court in order to pursue 

the matter itself. (See Stats. 2012, Ch. 46, § 35; Gov. Code, § 12930.)
13

them. [¶] A DFEH filing may be helpful in any case because it requires a prompt, 

detailed response from the employer, giving the employee a free, quick look at the 

defenses the employer is likely to raise. A DFEH filing may also induce the employer to 

hire an attorney, and the legal advice received may lead to prompt settlement of minor 

disputes.” (Chin, supra, § 7:1031.2, p. 7-156.) The six-month provision here effectively 

eliminates any meaningful participation by the DFEH. It is not reasonable.7

The shortened limitation provision here would be against public policy in the 

further respect that it would have anomalous effects. That is, since the provision runs six 

months from the “date of the employment action” on which the employee’s suit is based, 

it would mean different limitation periods for different FEHA claims. As applied here, 

for example, one date would run from the time Haynes harassed Ellis, another when her 

claim that U.S. Security failed to prevent harassment finally accrued, and yet another 

when she was retaliated against. This is not how FEHA is designed to operate, with all 

claims timely if filed within one year from the right-to-sue letter. 

Another anomaly, and again making the provision incongruous with FEHA, is that 

application of the six-month limitation would mean that Ellis’s claims could be timebarred as against U.S. Security, yet be timely against Haynes, who does not have the 

benefit of the employment application. 

 

7

Ellis’s position below was that the FEHA statute of limitations can never be 

shortened. While we need not reach this issue, it may be that any attempt to shorten the 

limitation provision in the FEHA statutory scheme would be against the law. Chin 

indicates as much. So, too, does the governing policy behind the FEHA set forth in 

section 12920, a policy expounded on in Armendariz: FEHA is for the good of the 

public. Civil Code section 3513 provides that “Anyone may waive the advantage of a 

law intended solely for his benefit. But a law established for a public reason cannot be 

contravened by a private agreement.”
14

U.S. Security’s Attempts to Support the Limitation Provision Are 

Unpersuasive. 

Seeking to persuade us to uphold the trial court’s order, U.S. Security first cites 

the general rule that parties can shorten a limitation provision, acknowledging that it can 

be done only if “the shortened period itself shall be a reasonable period.” U.S. Security 

then briefly discusses what it claims is the policy behind a limitation provision, to 

“ ‘encourage promptness in the bringing of actions, [so] that the parties shall not suffer by 

loss of evidence from death or disappearance of witnesses, destruction of documents, or 

failure of memory.’ ” As to this, it is probably enough to note the warning to employees 

in the leading California treatise, in italics yet: “CAUTION: A short statute of limitations

applies. (e.g., one year for FEHA claims.)” (Chin, supra, § 1.64, p. 1-16.13.) Such a 

short limitation provision necessarily implies a prompt case, not to mention that the 

presuit administrative requirements necessarily mean notice to the employer of the 

claimed misconduct. No claim can ever be stale under the FEHA limitation period.

Returning to U.S. Security’s position, its brief then asserts this: “California law is 

in accord. (Soltani v. Western & Southern Life Ins. Co. (9th Cir. 2001) 258 F.3d 1038, 

1042 [“Many California cases have upheld contractual shortening of statutes of 

limitations in different types of contracts, including employment situations.”] [emphasis 

added]; Han v. Mobil Oil Corp. (9th Cir. 1995) 73 F.3d 872, 877 [“California permits 

contracting parties to agree upon a shorter limitations period for bringing an action than 

that prescribed by statute, so long as the time allowed is reasonable.”][collecting cases]; 

Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1430 [“California courts have afforded 

contracting parties considerable freedom to modify the length of a statute of limitations. 

Courts generally enforce parties’ agreements for a shorter limitations period than 

otherwise provided by statute, provided it is reasonable.”]; Zalkind v. Ceradyne, Inc. 

(2011) 194 Cal.App.4th 1010, 1030 [“agreements to shorten the statute of limitations do 

not violate public policy and are enforced if reasonable”]; Charnay v. Cobert (2006) 

145 Cal.App.4th 170, 183 [same].)” The passage is unpersuasive.
15

To begin with, except for Soltani, discussed below, none of the other four cases 

involves any dispute involving any employer. More significantly, two of the cases found 

the shortened limitation provision unenforceable. Moreno found the public policy 

considerations behind the delayed discovery rule precluded enforcement of the one-year 

contractual limitation provision in the homebuyer’s contract with the inspection 

company. (Moreno, supra, 106 Cal.App.4th at p. 1434). And Charnay held 

unenforceable a provision in a client’s retainer agreement with his attorney that required 

the client to dispute legal bills within 10 days of receipt. The court found the provision 

“inherently unreasonable” (Charnay, supra, 145 Cal.App.4th at p. 183), and also one that 

would “eviscerate the delayed discovery rule, [and be] void as against public policy.” 

(Id. at p. 184.) 

The Charnay court also reiterated its earlier statement in Moreno, quoted above, 

that “ ‘[A] contractually shortened limitations period has never been recognized outside 

the context of straightforward transactions in which the triggering event for either a 

breach of a contract or for the accrual of a right is immediate and obvious. . . .’ ” 

(Charnay, supra, at p. 183). Here, of course, Ellis’s claims are not all based on conduct 

that is “immediate or obvious,” illustrated, for example, by her claims for failure to 

prevent and for retaliation, both of which require the development of facts occurring over 

a period of time. 

We recently described a claim for failure to prevent discrimination in Veronese v. 

Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 28: “Government Code section 12940, 

subdivision (k), prohibits an employer from failing ‘to take all reasonable steps necessary 

to prevent discrimination.’ As the leading California treatise states it, ‘This provision 

creates a statutory tort action with the usual tort elements (duty of care to plaintiff, breach 

of duty, causation and damages). (Trujillo v. North County Transit Dist. (1998) 

63 Cal.App.4th 280, 286.)’ (Chin, [supra,] § 7.671, p. [7-711].)” It is easy to imagine 

cases where such a claim could easily take months to develop, certainly more than six 

months, necessitating a suit that was premature. This is against public policy. Again, 

Fox is apt: “It would be contrary to public policy to require plaintiffs to file a lawsuit “at 
16

a time when the evidence available to them failed to indicate a cause of action.” 

[Citations.] Were plaintiffs required to file all causes of action when one cause of action 

accrued . . . they would run the risk of sanctions for filing a cause of action without any 

factual support. [Citations.] It would be difficult to describe a cause of action filed by a 

plaintiff, before that plaintiff reasonably suspects that the cause of action is a meritorious 

one, as anything but frivolous. At best, the plaintiff's cause of action would be subject to 

demurrer for failure to specify supporting facts [citation]. In sum, the interest of the 

courts and of litigants against the filing of potentially meritless claims is a public policy 

concern that weighs heavily against the Bristol–Myers Squibb formulation of the 

discovery rule.” (Fox, supra, 35 Cal.4th at p. 815.) 

Along these same lines, given the time involved while the DFEH conducts its 

investigation, the six-month provision here could force an employee to file a lawsuit 

without having exhausted all administrative remedies, which, under the FEHA is a 

“ ‘jurisdictional prerequisite to resort to the courts.’ ” (Johnson v. City of Loma Linda

(2000) 24 Cal.4th 61, 70.) It is ground for dismissal. (Okoli v. Lockheed Technical 

Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Martin v. Lockheed Missiles & Space 

Co., Inc. (1994) 29 Cal.App.4th 1718, 1724.)

Turning to Soltani, while it in fact involved a claim by insurance agents against 

their former employer, it was not in any setting applicable here. The case was described 

by the Ninth Circuit as follows: “Appellants’ complaint basically contends that 

Western-Southern wrongfully terminated Appellants’ employment in violation of public 

policy because they refused, as required by Western-Southern, to pay certain premiums 

for policy holders to prevent policies from lapsing. The suit contends that this 

requirement is an unfair business practice under California law.” (Soltani, supra, 

258 F.3d at p. 1040.) The court then went on to discuss the six-month limitation 

provision there which, unlike the six-month limitation provision here, required suit within 

six months of termination of employment. And the only discussion was whether the 
17

provision was unconscionable, the court concluding it was not. 8In short, Soltani was not 

a FEHA case, manifest perhaps best by the fact that the term is never mentioned in the 

opinion.

To the extent Soltani has possible pertinence here, it is in its discussion of the 

provision in the contract that said no suit could be filed “until ten days after service upon 

the Chairman, President or Secretary of a written statement of the particulars and amount 

of your claim.” (Soltani, supra, 258 F.3d at p. 1041.) The court found this provision 

unenforceable, with no justification for it, with observations that are pertinent here. 

The Ninth Circuit began its analysis with a quotation from Armendariz: “We 

emphasize that if an employer does have reasonable justification for the arrangement—

i.e., a justification grounded in something other than the employer’s desire to maximize 

its advantage based on the perceived superiority of the judicial forum—such an 

agreement would not be unconscionable. Without such justification, we must assume 

that it is.” (Soltani, supra, at p. 1046.) “Applying such reasoning here, we can discern 

little justification for the short ten-day notice provision in the Western-Southern 

contracts. Ten days is simply not enough time for the company to investigate the factual 

basis of a claim, to attempt to settle claims without litigation or consider fiscal 

implications of potential litigation, or to take corrective action to prevent other such 

claims.” (Ibid., fn. omitted.) The court then went on: “Moreover, the ten-day notice 

provision alone does not prevent stale claims. The clause requires notice of any claim, 

whether or not it is within six-months of termination, or even whether it is based upon 

termination. It would bar suits while a plaintiff is employed that arose several years 

earlier (which are not otherwise barred by statutes of limitations) or such suits filed after 

a mere eleven days of accrual. . . . [¶] Further, the ten-day written notice provision 

 

8

That the limitation provision in Soltani ran from termination led to the 

conclusion that the provision was not substantially unconscionable, “because it did not 

depend upon when the claim arose (i.e., a 3-year-old claim could still be filed, as long as 

it was also filed within 6 months after the employee stopped working.” (See Chin, supra, 

§ 18.670.2, p. 18-82.)
18

cannot be for purposes of judicial economy. It is unaccompanied by any corresponding 

requirement to exhaust internal intra-company grievance procedures. Indeed, there is no 

indication that Western-Southern would do anything during that ten-day period. Where 

the effect of a failure to comply with the provision is to lose all legal remedies for 

wrongdoing regardless of the merits, the clause can work substantial prejudice to an 

employee. The notice-of-suit clause should not serve as ‘a technical escape-hatch by 

which to deny [relief].” (Insurance Company of Pennsylvania [v. Associated 

International Ins. Co. (1990)] 922 F.2d [516], 523.) Its effect, with no discernable 

justification by Western-Southern, is merely to ‘maximize employer advantage’ and bar 

any suits relating to the employment agreement.” (Id. at pp. 1046-1047.) That discussion 

well demonstrates why the six-month limitation provision here cannot be enforced.

Two other California cases cited in U.S. Security’s brief deserve mention. The 

first is Beeson v. Schloss, supra, 183 Cal. 618, which it cites as follows: “Beginning with 

our Supreme Court’s decision in Beeson v. Schloss (1920) 183 Cal. 618, courts applying 

California law have upheld six month—and shorter—limitation provisions.” Beeson was 

a suit by a travelling salesman for commissions due from his former employer. One 

clause of the salesman’s contract said that a statement rendered to the salesman “ ‘shall 

be deemed . . . correct’ ” and “ ‘binding’ ” unless objections were filed “ ‘within ten days 

of rendering,’ ” and that no suit could be brought “ ‘after the lapse of six months from the 

rendering.’ ” (Beeson, supra, 183 Cal. at pp. 620-621.) Upholding the limitation 

provision there, the Supreme Court began with the recitation that “It is a well-settled 

proposition of law that the parties to a contract may stipulate therein for a period of 

limitation, shorter than that fixed by the statute of limitations, and that such stipulation 

violates no principle of public policy, provided the period fixed be not so unreasonable as 

to show imposition or undue advantage in some way. (Tebbetts v. Fidelity etc. Co., 

155 Cal. 137; [citations].)” (Id. at p. 622.) The Court went on to reverse the judgment 

for the salesman, upholding the limitation provision as reasonable under the 

circumstances there. (Id. at 627.) The circumstances here are a far cry.
19

Moreover, Beeson involved a claim for a salesman’s commissions, clearly a claim 

that, as Moreno would describe it, was “immediate and obvious,” ripe immediately upon 

nonpayment. (Moreno, supra, 106 Cal.App.4th at p. 1430.) This is unlike the fluid 

claims involved here, where there was claimed harassment brought to the attention of the 

employer, and whose conduct in dealing with it formed the basis of one of Ellis’s claims,

and whose ultimate retaliation against her formed the basis of another. 

The second case, which U.S. Security describes as “instructive,” is Perez v. 

Safety-Kleen Sys. (N.D. Cal., June 27, 2007, No. C 05-5338) 2007 WL 1848037, where 

U.S. Security asserts “the court relied on Soltani and California law to conclude that a 

limitation provision that is nearly identical to the provision at issue here was valid and 

enforceable despite plaintiff’s statutory employment claims.” Perez involved two 

separate complaints. The first, by two plaintiffs, alleged seven causes of action; the 

second, by one plaintiff, alleged two of the same seven. None was a FEHA claim. All the 

court did was dismiss the complaint of the second plaintiff as beyond the shortened 

limitation provision, doing so with nothing more than a parroting of Soltani. There was 

no independent analysis, let alone discussion of any public policy issue. And no mention 

of FEHA. Perez is hardly instructive.

Finally, U.S. Security cites cases, both state and federal, from other jurisdictions, 

that it claims support its position here. As quoted from its brief, its argument is that these 

courts upheld shortened limitation provision looking “to statute of limitations in 

employment actions under federal law. (Timko v. Oakwood Custom Coating, Inc. (2001) 

244 Mich.App. 234, 241-243 [six-month limitation provision not unreasonable since six 

months is the time limit within which claims must be brought for breach of the duty of 

fair representation under the Labor Management Relations Act [29 U.S.C. § 160(b)].)” 

U.S. Security also cites Taylor v. Western & Southern Life Ins. Co. (7th Cir. 1992) 

966 F.2d 1188, a Title VII case, and Fink v. Guardsmark, LLC. (D. Or. Aug 19, 2004, 

No. CV 03-1480) 2004 WL 1857114). These cases are unhelpful. 

Whatever Title VII or some other federal law might say, “it is not appropriate to 

follow federal decisions where the distinct language of FEHA evidences a legislative 
20

intent different from that of Congress. (See Fisher v. San Pedro Peninsula Hospital

[(1989)] 214 Cal.App.3d [590,] 606 [FEHC does not rely on title VII precedent that 

appears unsound or conflicts with purposes of FEHA].” (Page v. Superior Court (1995) 

31 Cal.App.4th 1206, 1215-1216.)

A particularly apt illustration of this is in Romano v. Rockwell (1996) 14 Cal.4th 

479, where the Supreme Court held that the FEHA statute of limitations for wrongful 

discharge ran from the date of actual discharge, not the date of notice of discharge—this, 

despite United States Supreme Court authority to the contrary. (Romano v. Rockwell, 

supra, at pp. 496-497.) As our Supreme Court noted, it was “not bound by these 

decisions, because they interpret a federal statutory scheme not at issue here.” (Id. at

p. 497)9 

DISPOSITION

The order granting judgment on the pleadings is reversed.

 

9 U.S. Security’s respondents brief ends with this short statement: 

“B. AT A MINIMUM, APPELLANT’S NON-FEHA CLAIMS FAIL

“Below, and again in her opening brief, appellant did not dispute that her nonFEHA claims—her fourth cause of action for intentional infliction of emotional 

distress and her fifth cause of action for negligent hiring, supervision and 

training—are barred by the six-month limitation provision in her agreement. Her 

sole contention is, and always has been, that application of the six-month 

limitation provision to her FEHA claims is against public policy and 

unenforceable. Thus, at a minimum, her non-FEHA claims are time-barred.” 

We do not reach the issue, as it was not briefed by the parties, neither below nor 

here.
21

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Brick, J.*

A136028, Ellis v. U.S. Security Associates

 

*

Judge of the Alameda County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.
22

Trial Court: Solano County Superior Court

Trial Judge: Honorable Harry S. Kinnicutt

Attorney for Plaintiff and Appellant: Wiseman Law Group, Joseph J. 

Wiseman

Attorneys for Defendants and Respondents: PinedoLaw, Craig A. Pinedo