Gonzalez v. Kalu, 140 Cal. App. 4th 21 (2006)

Gabriela Gonzalez, who worked as a cleaner for a building maintenance company, hired an attorney to represent her in a matter involving a possible sexual harassment claim against her employer. The attorney sent a letter to Gonzalez’s employer asserting the employer’s liability, threatening to file a lawsuit and demanding a settlement. The letter also warned the employer not to retaliate against Gonzalez by terminating her employment; Gonzalez’s employment was terminated by the end of the month. The attorney then filed an administrative complaint with the Department of Fair Employment and Housing and sent another letter to the employer, asserting there had been illegal retaliation and stating that he would be filing a lawsuit on Gonzalez’s behalf as soon as he received the right-to-sue letter. Gonzalez alleged that she did not hear from the attorney for three years – until she came to his office to pick up her file in connection with separate litigation against her former employer and was told that the attorney would not be prosecuting the sexual harassment claim on her behalf. The attorney demurred to the malpractice complaint on the ground that it was barred by the one-year statute of limitations. Although the trial court granted the attorney’s motion for summary judgment, the Court of Appeal reversed, concluding there was a triable issue of fact whether the attorney continued to represent Gonzalez, which would toll the statute of limitations. Cf. In re ZiLog, Inc., 450 F.3d 996 (9th Cir. 2006) (Ninth Circuit reverses dismissal and discharge of contract, tort and discrimination claims untimely filed against employer in bankruptcy based upon communication from employer to employees that seemed “designed to lull [them] into a false sense of security about the need to file claims”); Wasti v. Superior Court, 140 Cal. App. 4th 667, 2006 WL 1653385 (2006) (unrepresented employee need not serve upon employer a copy of complaint filed with Department of Fair Employment and Housing before proceeding with FEHA claim).