Failure to Exhaust Administrative Remedies – OUCH!

Here’s an embarrassing case for plaintiff’s attorney:

This is a case where plaintiff failed to exhaust her administrative remedies under FEHA by obtaining her right-to-sue letter before filing her lawsuit. Things are made worse after defendant files the expected demurrer:

  • Plaintiff does not have a right-to-sue letter from DFEH.
  • Plaintiff files complaint alleging FEHA violations.
  • Defendant files demurrer for failure to exhaust administrative remedies – No RTS.
  • Plaintiff then amends complaint, this time adding two additional causes of action – still no RTS.
  • Defendant demurs for failure to exhaust administrative remedies (again!).
  • Plaintiff replies to defendant’s demurrer and includes a DFEH RTS dated two weeks after the complaint was filed.

As expected, the trial court sustained the demurrer without leave to amend.

Plaintiff appealed and in an unpublished decision, the Second District Court of Apeals upheld trial court’s decision to sustain defendant’s demurrer because FEHA requires, as a precondition to filing a lawsuit under FEHA, that plaintiff exhaust her administrative remedies by obtaining a right-to-sue letter.

It seems so obvious, right?

The Court then instructed plaintiff on how she could have proceeded. Here are the options the court suggested:

  1. Plaintiff could have filed the original complaint with no FEHA causes of action, obtained a RTS and then amended the complaint to include the FEHA causes of action.
  2. Plaintiff could have pursued her internal administrative remedies with her employer, and once that was exhausted, she could have started the process with DFEH.
  3. Plaintiff could have simply filed a second lawsuit alleging that she exhausted her remedies under FEHA after she obtained her RTS.

Such a simple issue, such a waste of court and attorney time. All attorneys make mistakes – it’s what the attorney does after making a mistake that often determines final outcomes for clients.

I recommend cracking open a book.

Pelayo v. Los Angeles County Dept. of Children and Family Services, et al., 2012 WL 590780 (February 22, 2012).

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