Cortez v. Wilshire Aesthetics Med. Associates

Filed 7/8/09 Cortez v. Wilshire Aesthetics Med. Associates CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory Alarcon, Judge. Affirmed.

Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich and D. Aaron Brock for Plaintiff and Appellant.

Wendy L. Slavkin for Defendants and Respondents.

* * * * * *

Roberta Cortez appeals from a judgment after a jury verdict in favor of her former employer, Wilshire Aesthetics Medical Associates, Inc. (Wilshire), in her action for disability discrimination under the California Fair Employment and Housing Act (Gov. Code, 12940 et seq.) (FEHA). Appellant asserts the court erred in granting a nonsuit on her claims of failure to accommodate and engage in the interactive process, and in denying her motion for leave to amend her complaint to allege age discrimination. Appellant further contends the court erred in excluding evidence attacking the credibility of a witness. We affirm.

FACTS AND PROCEDURAL HISTORY

1. Employment

Appellant started working for Wilshire as a billing clerk in July 1995. In August 2004, she was promoted to office manager. Appellant was a good employee who performed well in her job.

2. Disability

In January 2005, appellant began having medical problems and underwent a biopsy. About late February or early March 2005, appellant informed Wilshire she had contracted cervical cancer and would need additional tests to determine its extent. From February 2005 to April 2005, Wilshire allowed her to take time off from work to undergo tests and procedures. Appellant went on disability leave in early April 2005 to undergo surgery related to her cancer.

3. Termination of Employment

In late May 2005, after appellant told a fellow employee she was ready to return to the office, Wilshire informed appellant her services were no longer required. Wilshire purportedly was undergoing financial difficulties and no longer needed an office manager. Wilshire therefore terminated appellant as of June 13, 2005. Appellant believed she was terminated because of her disability.

Following her termination by Wilshire, appellant did not work again for about four months, until October 2005, and lost about $21,000 in income.

4. Complaint

After filing a claim with the Department of Fair Employment and Housing (DFEH) on July 5, 2005, and receiving a right to sue letter on July 22, 2005, appellant filed a complaint against Wilshire on May 31, 2006. In a first amended complaint, appellant asserted causes of action for disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination and failure to prevent discrimination, all in violation of FEHA, and wrongful termination in violation of public policy.^[1]

During discovery, Wilshire provided a sworn interrogatory response stating appellant was terminated for the sole reason that her position, as office manager, was eliminated as part of a downsizing process and that [o]ther employees had been let go for this same reason. Wilshires response further stated that Wilshires principal, Dr. Harvey Abrams, had been in partnership with another doctor, Jason Diamond, M.D., and, when that partnership fell apart, the practice could no longer support [appellant] and certain other employees. [Appellants] position was eliminated and no one replaced her.

Appellant deposed Dr. Abrams on May 14, 2007. Dr. Abrams was questioned regarding the reasons appellant, a long-term employee, was terminated rather than her administrative assistant, Christie Khouri, who was a short-term employee. Dr. Abrams responded that he terminated appellant because she was making significantly more money than Ms. Khouri, which he stated was of crucial and significant importance to me. However, Dr. Abrams denied appellants age was one of the reasons he terminated appellant rather than Ms. Khouri. In further questioning, Dr. Abrams referred to the fact that appellants health insurance was more expensive because appellant was much older than Ms. Khouri and the older the employee the more it does cost.^[2]

5. Proposed Amendment to Complaint

On the basis of Dr. Abramss deposition testimony, appellant filed a new claim with the DFEH for age discrimination and obtained a right to sue letter on June 19, 2007.^[3] On August 3, 2007, about three weeks before trial, appellant applied ex parte for an order shortening the notice time for a motion to amend her complaint to allege an additional claim for age discrimination. The trial court granted appellants application and set the matter for hearing on August 21, 2007, the same day as the final status conference.

At the hearing, the trial court denied the motion for leave to amend the complaint. The court ruled appellants age discrimination causes of action were time-barred, stating: The motion for leave to amend is denied because the claim is a different primary right and does not relate back to the filing of the original complaint.^[4]

6. Trial

Trial commenced on August 28, 2007.

A. Appellants Evidence

i. Dr. Abrams Testimony

Appellant called Dr. Abrams as an adverse witness. He testified that he is the owner and managing director of Wilshire, and it was he who was responsible for the decision to terminate appellant. Dr. Abrams testified he let appellant go because her position of office manager had been eliminated. Dr. Abrams had formed a partnership with Dr. Diamond in 2004. That partnership resulted in the hiring of several more employees and appellants promotion to a recently created position of office manager.

Dr. Abrams testified that the partnership suddenly dissolved in February 2005, and the dissolution created turmoil in his practice and a substantial reduction in revenue. It was at this time that he first thought about eliminating the office manager position to reduce expenses.^[5] However, appellant was present only part-time from February to April due to her illness. In April 2005, Dr. Abrams was informed by appellants coworkers that appellant had taken medical leave. Although Dr. Abrams was surprised, he was not opposed to appellants taking leave. Dr. Abrams attempted to call appellant a couple of times, but she did not return his calls. He did not know the extent of appellants surgery and had no conversation with her regarding her condition. He did not dispute that appellant had suffered from a disability.

According to Dr. Abrams, one of his other employees, Irene Kozak, informed him on May 27, 2005, that appellant intended to return to work on June 6, 2005. Ms. Kozak was a close friend of appellant. Dr. Abrams then telephoned appellant on June 2, confirmed her intent to come back and, upon learning that was the case, terminated appellant and offered her a severance package.^[6] Dr. Abrams admittedly did not offer to have appellant return or offer her a part-time job, a reduction in salary or another position at Wilshire. The doctor testified appellant did not ask him to consider cutting her hours or reducing her salary and letting her return to work. Wilshire never hired another office manager to replace appellant. Dr. Abrams stated he chose to terminate appellant over other employees because she was making more money and he did not know if she would be able to or would choose to return to work.^[7]

Dr. Abrams indicated Wilshire employed other persons with disabilities including some with severe depression, cancer, diabetes or Parkinsons disease, and one person who was HIV positive. Some of those employees required periods of hospitalization for which Wilshire allowed time off, and they returned to work.^[8] Dr. Abrams asserted he had never terminated an employee because of a disability and would not do so. He specifically denied terminating appellant because of her cancer. During appellants absence, Dr. Abrams had taken over appellants supervisory and administrative duties, and the office was running smoothly. He needed to reduce expenses because of the breakup of the partnership, and eliminating the office manager position made sense to him from a business point of view.

ii. Appellants Testimony

Appellant testified she kept Dr. Abrams apprised of her medical condition during her absence. She further testified that, when Dr. Abrams terminated her employment, he told her he had sold the practice and she was no longer needed because the purchaser had an office manager. She testified she would have been willing to work part time or in another position or take a pay cut had Dr. Abrams requested or offered the arrangement. She decided after learning Dr. Abrams was not selling the practice there was no other reason she was fired but that she had cancer. Appellant had testified at deposition that I dont know why I was let go. . . . The only thing I can assume is because I was sick. I have no idea.

Appellant admitted on cross-examination that when she spoke with Dr. Abrams on June 2, 2005, she had recovered from her surgery and did not need any accommodation to return to work. She had obtained her disability leave and had received disability benefits for the entire six to eight week period she was away from work. She testified she was still recovering on June 2 but could perform all her duties and did not consider herself disabled. She believed Dr. Abrams had acted maliciously toward her on June 2, 2005, in telling her he was letting her go because he was selling the business, which was not true.

iii. Other Witnesses Testimony

Ms. Kozak, who handled billings for Wilshire, testified she did not agree with the manner in which appellant was let go. At first, the only reason she could think of for appellant being let go was that appellant was sick and had cancer. Later, she thought it was because Dr. Abrams didnt really care for [appellant] and this was a way to let appellant go. Ms. Kozak testified she didnt really . . . have an idea of why appellant was let go. She did not know of anyone Dr. Abrams discriminated against hiring because of a disability.

Wilshires accountant testified that after the partnerships break up, the business could afford only one salary in the business office and he advised Dr. Abrams expenses should be cut in every way possible.

B. Defense Evidence

Dr. Abrams was recalled to testify for the defense. He denied telling appellant in the June 2, 2005 phone call that she was being terminated because he was selling the practice. He stated he was thinking of retiring and may have had someone interested in purchasing the practice. However, he never sold the practice. He testified appellants termination was a financial decision as well as a management decision. Wilshires accountant had advised the practice could only afford one person in the business office. Ms. Khouri made significantly less money than appellant and was performing more than adequately. Moreover, Dr. Abrams found he enjoyed dealing with his employees directly rather than through an office manager. Other employees had absorbed appellants remaining duties, and he did not know where appellant would fit in any longer.

C. Partial Nonsuit and Verdict

After receiving the evidence, the trial court granted Wilshires motion for nonsuit on appellants claims of failure to engage in the interactive process and failure to accommodate.

The jury returned a verdict for the defense on the remaining claims of disability discrimination, wrongful termination and failure to prevent discrimination. The jurys special verdict found, among other things, that (1) appellants disability (cancer) was not a motivating reason for her discharge or for Wilshires decision to discharge her; (2) Wilshire did not have any employment practice of not investigating or preventing discrimination on persons with cancer or with disabilities; (3) Wilshire did not have an employment practice of discriminating against employees or individuals with disabilities or cancer, or that had any disproportionate adverse effect on persons with cancer; and (4) appellants cancer disability request for reasonable accommodation or for medical leave was not a motivating reason for Wilshires decision to discharge her.

Appellant timely appealed from the resulting judgment.

STANDARD OF REVIEW

We review the grant or denial of leave to amend a complaint for abuse of discretion. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) A trial court has broad discretion in granting or denying leave to amend a complaint, and we will uphold the courts ruling unless there is a manifest or gross abuse of discretion. (Ibid.)

We independently review an order granting a nonsuit, assessing the evidence in the light most favorable to the plaintiff and resolving all presumptions, inferences and doubts in the plaintiffs favor. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1124; see also Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to allow the jury to find in the plaintiffs favor. (Ibid.)

An order admitting or excluding evidence is reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the courts ruling exceeds the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in Denying Leave to Amend

In the present case, appellant sought to amend her complaint to add additional allegations including two causes of action related exclusively to age discrimination. The trial court ruled the claim of age discrimination, alleged more than two years after the purported incident, was time-barred. The court also ruled the age discrimination claims did not relate back to appellants original claims of disability discrimination. On appeal, appellant apparently concedes the age discrimination claim is barred by the statute of limitations, unless her age discrimination claims relate back to her disability discrimination claims.

A new cause of action in an amended complaint is held to relate back to the earlier pleaded claims if the later cause of action (1) rests on the same general set of facts, (2) involves the same injury, and (3) refers to the same instrumentalities as the original complaint. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409;Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 323.) Wilshire contends the relation-back doctrine does not apply because the amended complaint does not rest on the same general facts, does not involve the same injury, and does not refer to the same instrumentality as the original one. We hold the age discrimination claims do not relate back to the disability discrimination claims.

Appellants original complaint alleged that she was disabled and Wilshire terminated her because she was disabled. The proffered amendment alleged appellant was old and Wilshire terminated her because of age. There was no allegation in the original complaint relating to age or age discrimination. Appellant argues that this is a distinction without a difference, because the same general set of facts supports both causes of action. Specifically, appellant states both of her complaints alleged that Wilshires decision to terminate her employment while she was out on medical leave to have surgery for cervical cancer was wrongful and in violation of FEHA. She asserts her proposed second amended complaint simply alleged that one of the reasons for the termination was her age, and the factual allegations were the same. We disagree.

A claim relates back to the original complaint only if it results from the same operative facts and the same offending instrumentalities. (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) The relation-back doctrine requires the court to compare the factual allegations in the original and amended complaints to determine if the amended complaint relates back to the filing of the original complaint. (Id. at p. 416.) A plaintiff who changes the essential facts upon which he or she seeks recovery is not entitled to the benefits of the relation back doctrine. (See id. at p. 416.)

[D]ifferent acts leading to distinct injuries are not part of the same general set of facts even though they may be part of the same story. (McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1262, quoting Lee v. Bank of America (1994) 27 Cal.App.4th 197, 208.) More than simply an additional theory of recovery, appellants proposed second amended complaint required the allegation of new facts that Wilshire could not reasonably have expected were encompassed in the original complaint. The original complaint, for example, alleged that appellant took disability leave to undergo surgery and that Wilshire then terminated [appellant] from her employment. Appellants proposed amendment, for the first time, inserted age as a consideration, alleging Wilshire terminated [appellant], age 43, from her employment. The original complaint alleged that Wilshire terminated [appellant] because she was diagnosed with cervical cancer . . . , but the amended complaint proposed to add her age as the reason for the termination, stating that Wilshire chose to terminate [appellant] because she was older than the other employees and gave her duties to an employee under 40 . . . . The original complaint alleged that FEHA prohibits employers from discriminating, harassing and retaliating against any individual on the basis of disability, to which appellant sought to append a reference to age, stating that FEHA prohibits employers from discriminating, harassing and retaliating against any individual on the basis of disability and age.

Appellants contention that she was terminated while out on medical leave to have surgery for cervical cancer is not only inaccurate, it paints with too broad a brush. Appellant was terminated after she recovered from her disability. But, a termination as a result of age discrimination stems from a different general set of facts and results in a different injury and from a different instrumentality than a termination as a result of disability discrimination. Indeed, that appellant was required to first file another claim with the DFEH and obtain a right to sue letter with respect to age discrimination before she could bring a motion to amend her existing pleading demonstrates different facts, injuries and instrumentalities.

Our holding that age discrimination and disability discrimination are separate and distinct violations precluding application of the relation-back doctrine finds support in both statutory and case authority. Legislative enactments clearly distinguish between age-related protections and disability-related protections, indicating such rights are separate and distinguishable. (See, e.g., Gov. Code, 12940, subdivision (a) [physical disability, mental disability, . . . age]; Gov. Code, 11135 [age, . . . or disability]; the Unruh Civil Rights Act, Civ. Code, 51 [persons entitled to equal rights despite disability], 51.4 [age].) Courts also have recognized the distinction between disability, age and other types of discrimination. (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 899-900 [claim for disability discrimination under FEHA did not relate back to timely claim for race discrimination]; Stallcop v. Kaiser Foundation Hospitals (9th Cir. 1987) 820 F.2d 1044, 1050 [causes of action for age and sex discrimination in civil complaint not encompassed by claim filed with DFEH charging only national origin discrimination]; see Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617 [untimely claim of unlawful retaliation for filing DFEH claim barred by exhaustion of remedies doctrine under FEHA because claim was neither like nor reasonably related to prior timely claim for discrimination based on race and national origin and was not likely to have been uncovered in investigation of prior claim].) In the present case, the claim of termination because of age discrimination is an entirely different charge from disability discrimination. The allegations that Wilshire discriminated against appellant because of her age was not like or reasonably related to a claim of disability discrimination and was not likely to have been uncovered in any investigation of the prior timely filed claim. (See Rodriguez v. Airborne Express, supra, 265 F.3d at pp. 897, 899-900.)

Appellant relies on Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, stating she had asserted from the beginning her claims stemmed from Wilshires decision to terminate her employment when she was out of leave. She argues the same facts supporting her disability claims would also support her age claims, specifically, Wilshires motivation in the decision to terminate her employment. In Dudley, the court held that because an action for retaliation in violation of the Family Rights Act arose out of the same facts alleged in a federal complaint for disability discrimination in violation of the Americans With Disabilities Act and FEHA, the retaliation action would relate back to the federal complaint. (Id. at pp. 265-266.) Unlike in the case at hand, the plaintiff in Dudleyclaimed from the outset that her employer subjected her to various employment actions because of a diabetic condition and need for medical leave. (Id. at p. 266.) Appellants proposed amendment here, however, seeks to allege Wilshire terminated her because of her age rather than because she took medical leave, i.e., a fact different from the allegations in her original complaint.

Goldman v. Wilsey Foods, Inc. (1989) 216 Cal.App.3d 1085 is distinguishable as well, because in Goldman the plaintiffs statutory civil rights claims for emotional distress related back to his original common law claim. The facts set forth in Goldmans original complaint match[ed] those of the initial complaint in every particular, and the defendants could not have been unaware of or misled concerning the nature of the plaintiffs claims. (Id. at p. 1094.) Here, of course, appellants allegations concerning age discrimination were never set forth in her original complaint, and Wilshire reasonably could have assumed appellant was not claiming any discrimination on account of her age in investigating her claim and preparing for its defense.

The trial court, therefore, did not abuse its discretion in denying appellant leave to file a second amended complaint to add a claim of age discrimination.

2. The Trial Court Properly Granted Nonsuit

We disagree with appellants contention that the trial court improperly granted a nonsuit on the claims that Wilshire failed to engage in the interactive process and failed to accommodate her disability, finding no substantial evidence to support such allegations. (See Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 518, fn. 6, 519, fn. 7 [interactive process is exchange between employer and employee to reach an agreement concerning accommodations, and failure to accommodate claim under FEHA requires threshold showing of disability].) Appellant admitted in her complaint and in her testimony that her medical condition was made known to Wilshire and she was appropriately accommodated with leave for her diagnosis, treatment and recovery.

Appellant maintains, however, that the evidence established that Dr. Abrams thought about eliminating appellants position in February 2005, and he had no conversations with appellant regarding her condition, did not dispute she suffered from a disability and offered her a severance package when she indicated she was ready to come back to work. Appellant asserts these facts support an inference that Wilshire failed to ascertain the extent of appellants condition before deciding to terminate her employment. She argues a failure to accommodate a disability and a failure to engage in the interactive work process are distinct causes of action and do not require a finding of disability discrimination. Therefore, she argues, we should disregard the jurys finding that she was not terminated on account of her disability. Appellant does not proffer any legal citation for this argument, and we reject it.

The evidence, even interpreted in the light most favorable to appellant, establishes that appellant was accommodated prior to her medical leave in the form of time off for her diagnosis, treatment and recovery. Although Dr. Abramss testimony established he had no direct communication with appellant before she left on medical leave, the evidence showed he was informed of her medical condition and did not oppose her going on medical leave. Direct communication between Dr. Abrams and appellant was not essential, because appellant received through indirect communication all the benefits that the interactive process would have accomplished. More importantly, appellant admitted that later, when Dr. Abrams terminated her, she was no longer in need of accommodation because she was no longer disabled. Because appellant was not disabled when she sought to return to work, Wilshire had no obligation to further accommodate her or to engage in any interactive process with respect to a nonexistent disability. (See Neisendorf v. Levi Strauss & Co., supra, 143 Cal.App.4th at pp. 518, fn. 6, 519, fn. 7.) The jury found that there was no disability discrimination and appellants termination was unrelated to appellants medical condition. Wilshire was not required at that point to engage in a pointless attempt to accommodate appellant or engage in a useless interactive process that could have no real significance. As an at-will employee, appellant could be dismissed for any or no reason, with or without cause. (See Lab. Code, 2922.)

Appellant offered no evidence to support her claim that Wilshire failed to accommodate her disability or failed to participate in an interactive process regarding such accommodation. Such allegations therefore had no foundation. The trial courts grant of nonsuit must not be reversed if the plaintiffs proof raises nothing more than speculation, suspicion, or conjecture. (Wolf v. Walt Disney Pictures & Television, supra, 162 Cal.App.4th at p. 1124.)

We thus hold the trial court did not err in granting a nonsuit as to the claims of failure to accommodate and failure to engage in the interactive process.

3. The Trial Court Properly Excluded Evidence of a Prior Unsubstantiated Claim

Wilshires counsel cross-examined Dr. Abrams during appellants case in chief. Over a relevancy objection, Dr. Abrams testified that Wilshire had never been sued for discriminating against an employee. He further testified he had never been accused of discriminating against any employee. Later during the trial, appellant sought to introduce evidence of a 2003 sexual harassment complaint. The trial court excluded the complaint under Evidence Code section 352, observing mere allegations were not proof of anything and introduction of the pleading would entail a mini-trial of a case that never went anywhere.

Evidence Code section 352 grants the trial court discretion to exclude evidence if its probative value is substantially outweighed by the probability its admission will (1) require undue consumption of time or (2) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Appellant states the evidence would not have caused an undue consumption of time, as the evidence was limited to impeachment and was not being used to prove the truth of the prior allegations. Further, appellant argues, the proposed evidence would not have been unduly prejudicial to Wilshire since it had placed the lack of prior discrimination actions at issue. Moreover, appellant maintains, the impeachment of Wilshires false statement only would have permitted the jury to see that Wilshire was presenting false evidence and would have influenced the jury into believing many of the explanations provided by Wilshire for appellants termination were false and misleading.

Evidence of allegations of harassment never tried to judgment at best had minimal relevance to appellants claim of discrimination. The trial court properly weighed the limited relevance of the excluded evidence against the probability of jury confusion, undue time consumption and prejudice. Its introduction very likely would have blurred the issues the jury was to decide. The evidence was prejudicial to Wilshire because the jury might have considered such evidence as improper propensity evidence. (See Evid. Code, 1101, subd. (a) [evidence of persons character or trait of his or her character inadmissible when offered to prove conduct on specified occasion].) Introduction of the excluded evidence also almost certainly would have unduly lengthened the trial, as Wilshire would feel obliged to refute the unsubstantiated allegations, resulting in a mini-trial of charges having no bearing on the facts of this case.

Appellant minimizes Wilshires assertion that the proposed evidence was a complaint of harassment, not discrimination, and was therefore not impeachment. A complaint of harassment is substantively different than a claim of discrimination. Indeed, our Supreme Court has recognized a claim for harassment is so fundamentally distinguishable from a claim of discrimination as to allow an individual to be personally liable for harassment but not discrimination under FEHA. (Reno v. Baird (1998) 18 Cal.4th 640, 657, 663.) As the Supreme Court stated, Harassment claims are legitimately distinguished from discrimination claims because they are based on different types of conduct. Behavior that gives rise to a harassment claim is not related to performing ones job duties except insofar as it occurs within the work environment. Behavior that gives rise to a discrimination claim, on the other hand, is often indistinguishable from performing ones job duties. (Id. at p. 657.)

Citing Fremont Indemnity Co. v. Workers Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 971, appellant asserts the trial court committed per se reversible error by precluding her from impeaching Dr. Abrams. The facts in Fremont, however, bear no relation to the facts in this case. In Fremont, the court held a workers compensation judge denied the petitioner a fair trial and due process of law by contacting an independent medical examiner and obtaining additional medical reports from him after submission of the case. (Id. at p. 970.) The circumstances in Fremontare wholly distinguishable from this case.

The trial court did not therefore abuse its discretion in ruling the probative value of evidence of a prior harassment complaint was substantially outweighed by undue consumption of time and prejudice from the admission of such evidence.

DISPOSITION

The judgment is affirmed. Respondent is to recover costs on appeal.

FLIER, Acting P. J.

We concur:

BIGELOW, J.

BAUER, J.^*

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^[1] Appellant also asserted claims for retaliatory wrongful termination and violation of the Labor Code, as to which the court sustained Wilshires demurrer. Those causes of action are not at issue in this appeal.

^[2] Dr. Abrams full deposition testimony regarding the matter was as follows:

Q. Was there any reason why you would terminate a long-term employee such as [appellant] rather than terminating a short-term employee like Ms. Khouri?

A. Sure.

Q. Why?

A. [Appellant] was making significantly more money and that was of crucial and significant importance to me.

Q. How much more was [appellant] making at this time?

A. In salary and benefits about -- it would cost me, her salary, maybe $68,000 a year plus all the other kinds of things that go along with that like health insurance. She was much older than Ms. Khouri, et cetera. It was costing me over $80,000 a year for her employment.

Q. So one of the reasons that you terminated [appellant] rather than Ms. Khouri was because she was older than Ms. Khouri, correct?

A. No. []  . . .  []

Q. What did you mean by when you said she was older than Ms. Khouri?

A. She is. And thats what I mean by that. And thats pretty clear. Health insurance is more expensive. . . . []  . . .  [] So one of the considerations ‑‑ you asked me this, I am going to answer this ‑‑ is the money. And one of the things that cost more money is the older the employee the more it does cost. At trial, Dr. Abrams denied being worried the cost of medical insurance would go up because of appellants cancer, saying Wilshire had a group policy and individuals were not singled out for any increase in premiums.

^[3] Appellant was in her 40s when she was terminated.

^[4] The trial court reasoned as follows: [Appellant] was terminated June 13, 2005. [Citation.] She filed her FEHA complaint on July 5, 2005. [Citation.] She received her Right To Sue letter on July 22, 2005. [Citation.] The complaint was filed on May 31, 2006. [Citation.] FEHA received [appellants] new FEHA complaint on June 19, 2007. [Citation.] A Right To Sue[] [l]etter[] was issued that very day. [Citation.] [Appellant] received it on June 28, 2007. [Citation.] [] The second FEHA complaint was received more than two years after the termination of the plaintiff. [] The one-year deadline for filing FEHA charges, and the one-year limitation for commencing suit after issuance of the right-to-sue letter are statutes of limitations. [Citation.] [] [Appellant] argues the claim of age discrimination relates back to the charge of disability discrimination and the failure to accommodate her therefore relates back. It does not. [] Although the same injury at the same location may be involved, injury from a different offending instrumentality is not the same accident. [Citation omitted.] [Citation.] [] Here, the original complaint and the amended complaint charged [appellants] employer with disability discrimination and a failure to accommodate thereof. Now [appellant] is attempting to amend her complaint to allege that her injuries resulted from age discrimination. The proposed amended complaint does not relate back because it involves the different legal instrumentality of age discrimination. [Citation.] [] An injury is defined as a primary right and here there are two. The first is to be free from disability discrimination (a statutory right) and the right to be reasonably accommodated. The second is to be free from age discrimination (a separate statutory right). They are separate and distinct causes of action even though they both may result from the same incident. [Citation.]

^[5] As office manager, appellant wrote letters terminating other Wilshire employees about this time citing the downsizing.

^[6] Dr. Abrams offered appellant full pay and medical insurance for four months. Appellant asked him to put that in writing, which he did. However, appellant never returned the paperwork, which included a general release. The severance package would have cost Wilshire about $20,000 plus health insurance. Wilshire nevertheless continued with appellants health insurance for six months after her termination.

^[7] Appellant was being paid $68,000 plus benefits as office manager. When appellant assumed the duties of office manager in August 2004, Ms. Khouri took over her clerical duties. After appellant went on leave, Ms. Khouri continued with the same duties, except without appellants supervision. Ms. Khouri was paid about $30,000-35,000.

^[8] Several present or former employees testified they or other employees had disabilities and had been accommodated by Wilshire. Appellant also admitted that several employees had disabilities and were accommodated by Wilshire.

^* Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.