SELENA v. THE SUPERIOR COURT OF ORANGE COUNTY

Filed 6/16/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Mary Fingal Erickson, Judge. Petition granted.

Danz & Gerber, Stephen F. Danz and Fernando A. Vicente for Petitioner.

No appearance for Respondent.

Eli M. Kantor for Real Party in Interest.

In 2003, the Legislature made minor procedural amendments to the Fair Employment and Housing Act (FEHA) to lessen administrative burdens in handling complaints of unlawful employment practices. Investigative complaints now must be served by an employee's attorney (if the employee has retained counsel) rather than by the Department of Fair Employment and Housing (the Department). (Gov. Code, § 12962.)

The trial court misapplied this statute to create a nonexistent jurisdictional hurdle to FEHA claims. Here, a shoe store manager, allegedly fired because of her pregnancy, elected a civil action rather than an administrative investigation. Two days later, the Department issued a right-to-sue letter and closed the case. Petitioner hired an attorney, and timely filed and served a civil complaint within the limitations period.

But her FEHA claim was thrown out of court. The trial court construed the 2003 amendments to require, as a jurisdictional prerequisite to a FEHA civil claim, that the unrepresented employee serve a copy of her moribund administrative complaint upon her employer within 60 days of its original filing with the Department.

We issue a peremptory writ in the first instance because the trial court's error is clear and the statutory language is plain. Government Code section 12962 only imposes a service requirement upon FEHA claims that are submitted to the Department for â€