Filed 12/15/05 Fujii v. Immecor CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CLIFFORD FUJII, H028663
Plaintiff and Appellant, (Santa Clara County
Superior Court
v. No. 1-04 CV013870)
IMMECOR CORPORATION, et al.,
Defendants and Respondents.
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Plaintiff Clifford Fujii was dismissed from his employment with defendant Immecor Corporation (Immecor).[1] He appeals from a judgment of dismissal entered after the trial court sustained defendants' demurrer to his complaint. We conclude that Fujii was required to exhaust his administrative remedies for statutory violations of Labor Code section 230, subdivision (a) prior to filing a civil action.[2] Accordingly, we affirm the judgment.
I. Statement of Facts
We treat as true the material allegations of Fujii's complaint. (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1087.) Those allegations are as follows:
On February 21, 2000, Fujii was employed by Immecor. On December 18, 2002, Fujii received notice that he was to report for jury duty on January 13, 2003. The following day, Fujii notified his supervisor, Jason Lai, regarding the jury summons. Lai ordered Fujii to avoid jury duty by lying to the court. On January 15, 2003, Fujii told Lai that he would not be able to work because he was reporting for jury duty. Fujii was then chosen to be on the jury panel for a trial that lasted several weeks. Until Fujii was dismissed from his employment on May 19, 2003, he experienced discrimination and harassment because he reported for jury duty.
II. Statement of the Case
On February 5, 2004, Fujii filed a complaint for damages in which he alleged discrimination and harassment based on his physical disability and his acceptance of jury duty. He alleged six causes of action: (1) physical disability discrimination (Gov. Code, § 12940 et seq.); (2) harassment on the basis of physical disability (Gov. Code, § 12940 et seq.); (3) termination in violation of public policy; (4) failure to take steps necessary to prevent discrimination (Gov. Code, § 12940, subd. (k)); (5) wrongful termination for accepting jury duty (§ 230, subd. (a)); and (6) harassment for accepting jury duty. The complaint did not allege that Fujii exhausted his administrative remedies prior to filing his statutory claims for violations of section 230.
Immecor demurred to the fifth and sixth causes of action on the ground that they failed to state facts sufficient to constitute causes of action for violations of section 230, because Fujii failed to plead that he had exhausted his administrative remedies by filing a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations pursuant to section 98.7. The trial court sustained the demurrer to the fifth and sixth causes of action with leave to amend. Fujii did not amend the complaint. However, he did dismiss with prejudice the first, second, third and fourth causes of action. Following a judgment of dismissal, Fujii filed a timely appeal.
III. Discussion
A. Standard of Review
On appeal from a judgment of dismissal after a demurrer is sustained, â€
