Mitchell v. California Dept. of Health

REGINALD MITCHELL,

Plaintiff and Appellant,

v.

STATE DEPARTMENT OF

PUBLIC HEALTH,

Defendant and Respondent.

No. B265769

(Los Angeles County

Super. Ct. No. BC550911)

California Courts of Appeal

Second Appellate District

Division Four

Filed August 22, 2016

ORDER MODIFYING OPINION

AND DENYING PETITION

FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT*

           It is ordered that the opinion filed on July 27, 2016, be modified as follows: 

     1.  At page 3, second sentence of the second full paragraph, ?17? is deleted and replaced with ?19.? 

     2.  At page 5, in the first line, ?July 9? is deleted and replaced with ?July 8.?

     3.  At page 5, in the third line, ?17? is deleted and replaced with ?19.?  

     4.  At page 9, at the end of the last paragraph after the sentence ending ?equitable tolling under Downs,? add as footnote 5 the following footnote, which will require renumbering of all subsequent footnotes:  

     ⁵After filing our opinion, we received a timely petition for rehearing from the Department.  Its main argument is that our opinion ?does not account for the legislative history and intent of Government Code section 12965.?  (Caps. omitted.)  The Department provided several documents---described as legislative history materials---not found in the record, which purportedly demonstrate a legislative intent to preclude equitable tolling of the FEHA limitations period beyond the federal right-to-sue period.  None of these is cited by the Department in its briefing.  It does not seek to take judicial notice of these extrinsic materials, nor does it claim the statute is ambiguous.  (See Coso Energy Developers v.    County of Inyo (2004) 122 Cal.App.4th 1512, 1524 [a court may consider legislative history if a statute is ambiguous].)  Even were we to consider them, the documents would not alter our analysis.  The statutory language, which is the most reliable indicator of legislative intent (ibid.), is not ambiguous and does not support the Department?s position.

     The petition for rehearing is denied.  There is no change in the judgment.

*EPSTEIN, P. J.          

WILLHITE, J.             

MANELLA, J.