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Clifford v. American Drug Stores8/22/2005
scriminatory policy or system]; City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 983 [same].)
Sav-On asserted the statute of limitations as its 11th affirmative defense in its answer. It then moved for summary adjudication of the sexual harassment claim contending that it was time barred. Clifford opposed the motion arguing the continuing violation doctrine, citing Accardi, supra, 17 Cal.App.4th 341. The trial court denied the motion. Sav-On sought reconsideration, which was also denied.
On January 17, 2001, at the final status conference, Sav-On lodged a number of special jury instructions, among which was special instruction no. 4, as follows:
"In order to pursue a claim under the Fair Employment and Housing Act, Plaintiff must establish that she filed an administrative complaint of discrimination with the Department of Fair Employment and Housing within one year of the date upon which the unlawful employment practices occurred. Thus, any acts of sexual harassment or retaliation which occurred more than one year before Plaintiff filed an administrative complaint alleging such acts of sexual harassment or acts of retaliation do not constitute a violation of the Fair Employment and Housing Act and Plaintiff may not be awarded any damages arising from such acts.
"Plaintiff may, however, raise acts of sexual harassment or acts of retaliation which occurred more than one year prior to her filing of an administrative complaint with the Department Fair Employment and Housing if she proves that such acts constitute a continuing violation. In order for her to establish a continuing violation, Plaintiff must prove the following: (1) that at least one act of sexual harassment, or one act of retaliation, respectively, occurred within one year of the filing of the administrative complaint alleging such sexual harassment or retaliation; and (2) that she did not know, nor should she have known with reasonable diligence, that at the time such acts were committed, they constituted either sexual harassment or retaliation, respectively. Once the Plaintiff knew or, with reasonable diligence, would have known that an act was sexual harassment or was retaliation, she was required to file an administrative complaint with the Department of Fair Employment and Housing within one year of that act in order for that act to be found a violation and for her to be awarded damages."
During trial, Sav-On sought to obtain a ruling by the trial court precluding Clifford from testifying to any acts of sexual harassment which occurred prior to one year before the filing of her DFEH complaint, July 8, 1997. Clifford's counsel, citing Accardi, supra, 17 Cal.App.4th 341, objected, arguing that summary adjudication had been denied because triable issues of fact existed regarding the continuing violation doctrine. Counsel for Sav-On countered that he believed Acca
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