Bjorndal

Defendant Judith Bjorndal filed this petition for a writ of mandate (petition) after the trial court overruled her demurrer to plaintiff Van A. Pena’s amended complaint. Pena had originally sued Bjorndal in 2002 for retaliatory termination in essentially identical state and federal lawsuits. While the state lawsuit languished, Pena pursued the federal action for nearly 10 years, twice successfully appealing adverse judgments. Following the second federal reversal in 2011, he changed his strategy and filed an amended complaint in the state lawsuit, alleging a single cause of action under the California Whistleblower Protection Act, Government Code 1 section 8547 et seq. (Act).

Bjorndal filed a demurrer contending Pena’s lawsuit was barred because he had not filed a timely administrative complaint, which is a statutory prerequisite to a civil action under the Act. The trial court overruled the demurrer, concluding the doctrine of equitable tolling excused Pena’s failure to file the administrative complaint while he was litigating the federal action. Finding equitable tolling inapplicable in these circumstances to extend the deadline for pursuing an administrative remedy…