Thursday, October 19, 2006
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Appeals Court’s Holding on Lawyer’s Right to Sign DFEH Complaint for Client Left Standing by S.C.
By Kenneth Ofgang, Staff Writer
A Court of Appeal ruling that allows a lawyer to verify an administrative complaint to the Department of Fair Employment and Housing on behalf of a client remains binding precedent after the state Supreme Court yesterday declined to depublish it.
The justices, by a vote of 5-0, denied a petition by the newspaper publishing company Copley Press, Inc., which owns the Daily Breeze, among other papers. Chief Justice Ronald M. George and Justice Marvin Baxter were absent from the court’s weekly conference and did not participate.
Copley sought depublication of a June 17 ruling by this District’s Div. Seven in the case of Blum v. Superior Court, B189560.
A former Daily Breeze employee, Barry Blum, contended that he was terminated because of his age, race, disabilities, use of family medical leave, and association with a person of protected status.
Under the Fair Employment and Housing Act, a person alleging a violation of the act must file an administrative complaint with the DFEH. In order to bring a lawsuit, the complainant must obtain a right-to-sue letter from the department, indicating that it has completed its investigation of the complaint or that the complainant has chosen to litigate the claim without the benefit of a department probe.
Blum filed his DFEH complaint through an attorney and sued in Los Angeles Superior Court after receiving a right-to-sue letter. Los Angeles Superior Court Judge Mary Thornton House dismissed his FEHA cause of actions—the complaint also included common law claims—after sustaining a demurrer based on Blum’s failure to personally verify his DFEH complaint, which the judge ruled constituted a failure to exhaust administrative remedies.
The Court of Appeal, however, granted a writ of mandate directing that the dismissed claims be reinstated.
Justice Fred Woods, writing for the Court of Appeal, said it was not clear from the statute, which requires the complainant to “file with the department a verified complaint” setting forth the allegations of discrimination, that the verification must be personally signed by the complainant.
Woods noted that the FEHA is interpreted liberally in favor of plaintiffs in light of its remedial purpose, and that attorneys as a general rule are permitted to verify pleadings on behalf of their clients.
The justice rejected the argument that allowing an attorney to verify a complaint containing allegations about matters outside the attorney’s personal knowledge is inconsistent with the purpose behind the verification requirement. A verifying attorney, Woods noted, “would be subject to perjury penalties [if] he knowingly declared facts to be true when he knew the facts were not true,” distinguishing a case holding that a verification was invalid where the attorney signed the client’s name rather than his own.
Since “an attorney is bound by ethical and legal standards,” Woods added, “an attorney’s signature attests to the good faith of the allegations and the client’s concurrence in them.”
Attorneys on appeal were Mark Weidmann and Lee Franck for the plaintiff and Tara Wilcox and Karin Dougan Vogel for Copley.
Copyright 2006, Metropolitan News Company