Vanessa Singh vs. State of California, Department of General Services

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided

Defendant California Department of General Services’ (“Defendant”) Motion to Strike Potions of Plaintiff Vanessa Singh’s (“Plaintiff”) Third Amended Complaint (“TAC”) is ruled upon as follows.

Defendant’s unopposed request for judicial notice is granted for the purposes appropriate for judicial notice. (See Evid. Code § 452, subd. (d); see also Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768 [court may take judicial notice of the existence of court documents but not to the truth of the statements contained therein].)

Factual Background

In the TAC, Plaintiff alleges causes of action for retaliation in violation of FEHA, discrimination in violation of FEHA, failure to prevent in violation of FEHA, retaliation in violation of Labor Code § 1102.5, and constructive discharge. The TAC arises from Plaintiff’s employment with Defendant. Plaintiff alleges that she was demoted from her position as a Staff Services Manager in late September 2019. (TAC ¶ 5.) She alleges that she demanded a Skelly hearing and filed a complaint with the State Personnel Board (“SPB”). (Id., at ¶ 8.) Plaintiff alleges that on April 15, 2020, an Administrative Law Judge sustained the charges in the Notice of Adverse Action and that the Skelly hearing was fair. (Ibid.) Plaintiff alleges that she filed a complaint in case no. 2020-00287975 which named her supervisor Amy Applegate and DGS. Plaintiff dismissed the action in July 2022. (Id., at ¶ 9.)

Defendant moves to strike the following allegations from Plaintiff’s TAC:  The sentences, “Around June 28, 2019, Estela Gonzales assigned Vanessa Singh to hear the adverse action of an employee of the Office of Administrative Hearings (OAH). After listening to the employee, Singh recommended overturning the action because the supervisor failed to document a corrective process to afford an opportunity for the employee to improve, no training was offered, and emails claimed work-related stress yet no workers compensation or EAP was offered,” within Paragraph 47, beginning on page 10, line 13 and ending on page 10, line 18.  The sentences, “On or around July/August 2019, on a Sunday, Chief

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

Gonzales telephoned to reprimand Singh. The Chief was angry. She stated in essence that it was not Singh’s place to overturn an adverse action in a Skelly conference; she could only recommend. Further, Interim Director Andrew Sturmefels would not overturn the action because the OAH would not have it; therefore, the employee could use the State Personnel Board route to file their complaint. Singh did not argue, but conveyed she did not agree with Gonzales’ position regarding the decision to approve the OAH’s adverse action regarding this employee,” within Paragraph 48, beginning on page 10, line 19 and ending on page 10, line 25.  The sentences, “DGS’ informal practice that a Skelly officer will approve the personnel decision of the various offices within the department renders such a Skelly conference within DGS a sham proceeding.

The practice violates the due process procedures of the California Constitution and the directions set forth in the applicable case law, Skelly v. State Personnel Board (1975) 15 Cal.3d 194. The practice violates CalHR’s policies and training,” within Paragraph 49, beginning on page 11, line 1 and ending on page 11, line 5.  The sentences, “Further, the practice of failing to recommend overturing an adverse action provides the employees of DGS with no recourse other than to file a complaint with the SPB.

It violates Gov. Code section 8547.2 (c) (2) and (3). The practice wastes the states resources sending a dispute to SPB, which could have been resolved at the department level, earlier and more economically,” within Paragraph 50, beginning on page 11, line 6 and ending on page 11, line 9.  The sentences, “Although the protected incident occurred before the SPB hearing conducted in February/March 2020, the incident of Gonzales’ reprimand was not among the facts or legal issues adjudicated during the SPB hearing and is onto barred by collateral estoppel or res judicata,” within Paragraph 51, beginning on page 11, line 6 and ending on page 11, line 9.  The sentences, “Plaintiff’s protected opposition to DGS’ practice of a Skelly officer approving the employer’s adverse action as matter of course,” within in Paragraph 52, beginning on page 11, line 14 and ending on page 11, line 15.  The sentences, “Once Plaintiff returned to DGS, Chief Estela Gonzales continued to retaliate against Plaintiff because she opposed OHR’s informal policy and practice of requiring a Skelly Officer to confirm each adverse action brought against employees by any office of DGS,” within Paragraph 62, beginning on page 13, line 19 and ending on page 13, line 21.  The sentences, “DGS’ practice is in violation of Cal.

Code Regs. Tit. 15 § 3392.8 (k). The regulation’s directive is mandatory that the Skelly officer ‘shall’ take one of the four listed actions independent of the adverse decision by the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

respective office. The practice of OHR to approve every adverse action taken by the supervising office regardless of the contrary evidence presented by the employee violates the regulation and conflicts with the California Supreme Court ruling in Skelly v. State Personnel Board (1974) 43 Cal.App.3d 541,” within Paragraph 63, beginning on page 13, line 22 and ending on page 13, line 27.  The sentence, “[S]ince she opposed DGS’ unlawful practice of rubber stamping every adverse actions by DGS offices,” within Paragraph 64, beginning on page 14, line 1 and ending on page 14, line 3. Defendant seeks to strike these allegations on the grounds that the allegations are irrelevant, false, or improper matter, and not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code of Civ. Proc. § 436.) Plaintiff opposes.

Legal Standard

Under Code of Civil Procedure section 435, a defendant, within the time to respond to a complaint, may file a motion to strike the whole or any part of the pleading. (Code Civ. Proc. § 435, subd. (b)(1).)

“The court may, upon a motion made pursuant to [Code of Civil Procedure] Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) The use of the motion to strike should be cautious and sparing. It should not be a procedural “line item veto.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)

Discussion

Defendant argues that portions of Plaintiff’s Fourth Cause of Action for Retaliation should be stricken because: (1) Plaintiff failed to comply with the Government Claims Act, (2) the claim is barred by the statute of limitations, and (3) the claim is barred by res judicata and collateral estoppel. The Court notes that none of these issues were raised in a demurrer to the Fourth Cause of Action in the TAC

Failure to Comply with Government Claims Act

As noted above, Defendant’s request for judicial notice was granted. This included a previous tort claim from September 2020 premised on a claim that Plaintiff’s demotion was unlawful, and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

which did not encompass any allegations in the instant cause of action. “The Court may take judicial notice of the filing and contents of a government claim but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, fn. 1.) If the public record does not reflect compliance, the government entity can request the court take judicial notice, pursuant to Evidence Code section 452(c), that the entity's records do not show compliance. (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752.)

Pursuant to the Government Claims Act, a claimant must present a civil complaint for money damages to the Government Claims Board before filing a lawsuit against a public entity or public employee, including a judicial officer. (Gov't Code §§ 810.2, 811.2, 811.4, 911.2, 945.4, and 950.2.) A claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after the accrual of the cause of action. (Govt. Code § 911.2(a).) Failure to allege compliance with the presentation requirements of the Act and that the claim has been rejected is fatal to a cause of action. (State v. Superior Court (2004) 32 Cal.4th 1234, 1240- 1241.)

Plaintiff alleges that she filed Government Tort Claims on September 10, 2020 (TAC, ¶ 78), March 18, 2024 (TAC, ¶ 79), and August 9, 2024. (TAC, ¶ 80.) Plaintiff further alleges that she received a right to sue letter from the DFEH on October 19, 2022. (TAC, ¶ 77.) Plaintiff’s fourth cause of action alleges retaliation which occurred in July-August of 2019, September of 2019, and February of 2024.

Defendant argues that Plaintiff failed to file a government tort claim within six months after she allegedly suffered retaliation in 2019. As such, Defendant seeks to strike all allegations “addressing the alleged 2019 Skelly-related retaliation that she now seeks to include in the latest version of her lawsuit.

A review of Plaintiff’s Government Claims shows that the claims submitted in 2020 do not include any discussion of the retaliation allegations contained in Plaintiff’s fourth cause of action. Plaintiff’s March 2024 and August 2024 Government Claims raise the issue of retaliation in relation to her reinstatement.

As this Court previously noted in regard to Defendant’s motion to strike allegations in the FAC, “[n]one of the allegations referred to . . . appear in any manner to violate any prior Court order and instead appear at most to constitute background allegations with respect to the theories now presented in this action, that is that [Defendant] retaliated and/or discriminated against her as a result of either her participation in the Skelly hearing/SPB hearing or the act of filing a complaint in the prior action.” (8/1/2023 Minute Order at 3.) The allegations at issue in the current Motion to Strike likewise provide background allegations to support her current theory of retaliation.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

Therefore, Defendant’s motion to strike is DENIED on this basis.

Statute of Limitations

The Court, in ruling on Defendant’s demurrer to Plaintiff’s first amended complaint found that Plaintiff’s fourth amended complaint for retaliation was barred by the statute of limitations. The Court explained:

In addition, as pled, the cause of action is barred by the statute of limitations. There is no dispute that the cause of action is governed by the three year statute of limitations in CCP § 338(a). Plaintiff alleges only that she was reprimanded on February 17, 2019, for recommending that an adverse action be overturned. (FAC ¶ 44.) The complaint was filed on October 20, 2022, but did not contain a Labor Code § 1102.5 claim. The claim was first raised when Plaintiff filed the FAC on February 3, 2023.

Both filings were beyond the three year statute of limitations. In her opposition, Plaintiff appears to argue that the cause of action did not accrue until April 2021 when she left her employment with DGS after she was not given the promotion. However, the fourth cause of action makes no such allegations and does not even incorporate any allegations from the previous causes of action. As pled, it is premised only on being reprimanded in February 2019. As currently alleged the cause of action is untimely.

(8/1/2023 Minute Order, p. 7 [emphasis added].) In the TAC, Plaintiff both incorporates all prior allegations and alleges specific conduct in 2024 that Plaintiff asserts was taken in retaliation in violation of Labor Code section 1102.7.[1]

Plaintiff has presented no new facts and made no new argument which would result in a different ruling on the issue of statute of limitations for conduct that occurred prior to October 20, 2019, the allegations relating to such conduct also constitute background allegations with respect to the theories now presented in this action.

Therefore, on this ground, Defendant’s motion to strike is DENIED.

Res Judicata/Collateral Estoppel

Finally, Defendant argues that Plaintiff’s “retaliation allegations stemming from her 2019 Skelly hearing officer recommendation” are barred by res judicata/collateral estoppel, because Plaintiff did not present this issue for consideration during her four-day evidentiary hearing in 2020. Plaintiff, in opposition, argues that the retaliation complained of occurred after the 2020 hearing, and the allegations occurring prior to the hearing were not included because they did not constitute adverse actions. Plaintiff further argues that pursuant to Taswell v. Regents of the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00328643-CU-OE-GDS: Vanessa Singh vs. State of California, Department of General Services 05/14/2025 Hearing on Motion to Strike in Department 53

University of California (2018) 23 Cal. App.5th 343, 362, administrative findings do not preclude civil actions.

In this case, it does not appear that the allegations at issue in the motion to strike are included as an attempt to relitigate issues previously decided against Plaintiff in the SPB decision. Rather, these allegations provide facts regarding Plaintiff’s challenge to adverse actions through the SPB procedures and subsequent filing of a civil complaint. Plaintiff alleges that she was subjected to retaliatory action in 2024 as a result of her civil complaint and her opposition to Defendant’s policies relating to Skelly proceedings. (TAC ¶¶ 59-64.)

As such, based on the allegations as pled, Defendant’s motion to strike is DENIED on this basis.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, rule 3.1312 or further notice is required.

[1] In light of the allegations regarding conduct in 2024 and the relevance of other conduct in the context of the

allegations and theories for purposes of pleading, the Court need not reach the issue of whether the one-year or three-year statute of limitations applies at this time.