Vaca v. Raypak CA2/6

Filed 10/18/22 Vaca v. Raypak CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
FRANCISCO VACA, 2d Civ. No. B313912
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00519590-CU-WT-VTA)
(Ventura County)
v.
RAYPAK, INC.,
Defendant and Respondent.
An employee brought an action alleging causes of action
relating to wrongful termination. The employer moved for
summary judgment. The uncontested evidence showed that at
the time of the employee’s termination he was recovering from a
recent liver transplant and could not work even with reasonable
accommodations for approximately one to two years thereafter.
The trial court granted the employer summary judgment. We
affirm.
FACTS
Francisco Vaca began working as an assembler/machine
operator for Raypak, Inc. (Raypak) in 1989. In September 2015,
Vaca took a medical leave due to a problem with his liver. He
ultimately had a liver transplant in October 2016.
Vaca had been unable to work since September 2015. On
October 24, 2016, Raypak sent him a letter by certified mail
informing him that his unpaid medical leave expired on
December 9, 2015, and that if he did not return to work by
November 1, 2016, Raypak would assume he had voluntarily
resigned. Vaca claims he never saw the letter until his deposition
in this case. Raypak terminated Vaca’s employment on
November 1, 2016.
Raypak sent Vaca another letter dated November 1, 2016,
informing him that his employment had been terminated. Vaca
claims he did not see that letter either. Vaca claims he did not
learn that his employment had been terminated until he went to
Raypak to pick up a check on December 9, 2016.
In interrogatories, Vaca was asked to identify the date
ranges he contends he could have worked 40 hours per week for
Raypak with reasonable accommodations. He answered, “In or
around October/November 2017 to the present.” He also
answered that his doctor first cleared him to return to work for
any employment, “[i]n or about October/November 2017.” Vaca’s
doctor testified that given Vaca’s medical history he would
recommend that Vaca remain off work for at least one year after
his transplant surgery.
On August 16, 2017, Vaca filed a workers’ compensation
claim, alleging multiple hernias and injuries to his neck, back,
and shoulder.1
1In the trial court, Raypak successfully defeated Vaca’s
motion for judicial notice of his workers’ compensation action.
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On November 3, 2017, Vaca filed a complaint with the
California Department of Fair Employment and Housing
(DFEH). The complaint alleged that Raypak engaged in
numerous acts of harassment and discrimination, including
denial of job reinstatement. DFEH issued an immediate right to
sue notice also dated November 3, 2017.
In July 2018, Vaca settled his workers’ compensation
action. The settlement included a stipulation that “[a]pplicant is
medically precluded from performing his essential job duties with
Raypak, either with or without reasonable accommodation.”
On November 1, 2018, Vaca filed the instant action. His
complaint stated eight causes of action: 1) disability
discrimination, 2) retaliation in violation of the Fair Employment
and Housing Act (FEHA), 3) failure to prevent discrimination and
retaliation, 4) failure to prevent reasonable accommodation, 5)
failure to engage in the interactive process in good faith, 6)
violation of the Family Rights Act, 7) declaratory relief, and 8)
wrongful termination.
Raypak’s motion for summary judgment
Raypak moved for summary judgment on three grounds:
First, causes of action one through seven brought under FEHA
fail because Vaca did not timely exhaust administrative claims,
that is, within one year of his November 1, 2016, termination.
Second, all causes of action fail because Vaca cannot prove he
was able to perform the essential duties of his job even with
reasonable accommodations. Third, Vaca is judicially estopped
by a stipulation in his workers’ compensation action that he is
But both parties rely on the workers compensation action on
appeal.
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unable to perform the essential functions of his job with or
without accommodations.
The trial court granted summary judgment on the first and
second grounds stated in Raypak’s motion. In light of Raypak
prevailing on the first two grounds, the court declined to rule on
the third ground.
DISCUSSION
I.
Standard of review
Summary judgment is properly granted only if all papers
submitted show there is no triable issue as to any material fact
and the moving party is entitled to a judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c).) The court must draw all
reasonable inferences from the evidence set forth in the papers
except where such references are contradicted by other inferences
or evidence which raise a triable issue of fact. (Ibid.) In
examining the supporting and opposing papers, the moving
party’s affidavits or declarations are strictly construed and those
of his opponent are liberally construed, and doubts as to the
propriety of granting the motion should be resolved in favor of
the party opposing the motion. (Szadolci v. Hollywood Park
Operating Co. (1993) 14 Cal.App.4th 16, 19.)
The moving party has the initial burden of showing that
one or more elements of a cause of action cannot be established.
(Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
Where the moving party has carried that burden, the burden
shifts to the opposing party to show a triable issue of material
fact. (Ibid.) Our review of the trial court’s grant of the motion is
de novo. (Id. at p. 767.)
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II.
Evidentiary objections
Vaca contends the trial court erred in sustaining Raypak’s
evidentiary objections.
In opposition to Raypak’s motion for summary judgment,
Vaca submitted an affidavit by his counsel purporting to
authenticate various documents including a 2015 certification as
to the state of Vaca’s health and his final paycheck. Raypak
objected on grounds of lack of foundation as to personal
knowledge and hearsay.
Vaca did not file a response to Raypak’s objections even
after the trial court issued a tentative decision sustaining the
objections. Vaca has waived the error by failing to respond to the
objections with an offer of proof. (Evid. Code, § 354, subd. (a).)
Moreover, even had the trial court erred, it is not enough to
show error on appeal; appellant must also show prejudice arising
from the error. (Evid. Code, § 354; Mize v. Atchison, T. & S.F. Ry.
Co. (1975) 46 Cal.App.3d 436, 450.) All Vaca has to say about
prejudice is “[A]s shown below, Mr. Vaca would have prevailed on
summary judgment had the trial court considered his evidence.”
Apparently, we are supposed to comb through Vaca’s brief to
make an unaided determination of prejudice. Suffice it to say,
that is far from a sufficient showing.
III.
Raypak not estopped from making a
motion for summary judgment
Vaca contends that Raypak is estopped from making a
motion for summary judgment.
On February 28, 2020, the parties filed a stipulation to
continue the trial for 90 days. The stipulation included a
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provision, “The Parties agree that the requested continuance will
not be used by any Party to file a motion for summary
judgment/adjudication, and the Parties further agree that no
such motion will be filed . . . . ” The trial court granted the
continuance and continued the trial from March 23, 2020 to June
8, 2020.
On March 16, 2020, the courts were closed for civil trials
due to the Covid-19 pandemic. The courts did not begin a phased
reopening until June 15, 2020. On July 30, 2020, the trial court
held a trial setting conference in this case. The court continued
the trial to May 17, 2021, along with all discovery and motion
deadlines. The parties engaged in discovery until late October
2020. Raypak filed its motion for summary judgment on
December 16, 2020.
“‘(1) The party to be estopped must know the facts; (2) he
must intend that his conduct shall be acted upon, or must so act
that the party asserting the estoppel had the right to believe that
it was so intended; (3) the party asserting the estoppel must be
ignorant of the true state of facts; and, (4) he must rely upon the
conduct to his injury.’” (DRG/Beverly Hills, Ltd. v. Chopstix Dim
Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59.)
Here the trial court found that Vaca did not rely on
Raypak’s conduct. Prior to the parties entering into the
stipulation for a continuance, trial had been set to begin on
March 23, 2020. But the courts closed on March 16, 2020. Even
had the parties never entered into the stipulation, the trial would
have been continued long enough to allow Raypak to make a
timely motion. The stipulation was irrelevant. Vaca cannot
claim he relied on it. It was Covid-19 court closures, not the
stipulation, that worked in Raypak’s favor, a circumstance that
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neither party could have foreseen when they made the
stipulation. Raypak is not estopped from bringing its summary
judgment motion.
IV.
Essential element of causes of action
Vaca contends the trial court erred in concluding that he
cannot prove an essential element of his causes of action: his
ability to work.
In response to interrogatories, Vaca admitted he could not
work with or without reasonable accommodations until October
or November 2017, a year after Raypak terminated his
employment.
Government Code2 section 12940, subdivision (a)(1) and (2)
provides:
“(1) This part does not prohibit an employer from refusing
to hire or discharging an employee with a physical or mental
disability, or subject an employer to any legal liability resulting
from the refusal to employ or the discharge of an employee with a
physical or mental disability, if the employee, because of a
physical or mental disability, is unable to perform the employee’s
essential duties even with reasonable accommodations, or cannot
perform those duties in a manner that would not endanger the
employee’s health or safety or the health or safety of others even
with reasonable accommodations.
“(2) This part does not prohibit an employer from refusing
to hire or discharging an employee who, because of the
employee’s medical condition, is unable to perform the employee’s
essential duties even with reasonable accommodations, or cannot
All further statutory references are to the Government
2
Code unless stated otherwise.
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perform those duties in a manner that would not endanger the
employee’s health or safety or the health or safety of others even
with reasonable accommodations. Nothing in this part shall
subject an employer to any legal liability resulting from the
refusal to employ or the discharge of an employee who, because of
the employee’s medical condition, is unable to perform the
employee’s essential duties, or cannot perform those duties in a
manner that would not endanger the employee’s health or safety
or the health or safety of others even with reasonable
accommodations.”
“This part,” in sections (1) and (2), refers to part 2.8
covering sections 12900 to 12999.
Vaca argues only some of his causes of action are barred by
section 12940, subdivision (a)(1) and (2). But his first five causes
of action allege violation of section 12940 et seq. His sixth cause
of action alleges violation of section 12945.2. His seventh cause
of action (declaratory relief) and his eighth cause of action
(wrongful termination in violation of public policy) are derivative
of the first six causes of action. Thus, all of his causes of action
are governed by section 12940, subdivision (a)(1) and (2).
All of Vaca’s causes of action arise from the allegation that
he was wrongfully terminated because of physical disability. The
undisputed evidence shows that he was lawfully terminated
because he could not work. Section 12940, subdivision (a)(1) and
(2) unequivocally bar all of his causes of action.
Vaca cites a number of cases listing the elements of a cause
of action under FEHA. He points out that none of those cases
include the ability to perform essential job functions as an
element. (See, e.g., Yanowitz v. L’Oreal, USA Inc. (2005) 36
Cal.4th 1028, 1042 [plaintiff must show (1) he or she engaged in a
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protected activity, (2) the employer subjected plaintiff to an
adverse employment action, and (3) a casual link between the
protected activity and the employer’s action].) But none of the
cases cited by Vaca involve the employee’s inability to perform
essential job functions or discuss section 12940, subdivision (a)(1)
and (2). (Ibid. [retaliation for refusal to fire a female sales
associate because she was not sufficiently attractive].) A case is
not authority for matters not considered therein. (Satten v. Webb
(2002) 99 Cal.App.4th 365, 383.)
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Jeffrey G. Bennett, Judge
Superior Court County of Ventura
______________________________
Employee Justice Legal Group, Kaveh S. Elihu and Sylvia
V. Panosian for Plaintiff and Appellant.
Fisher & Phillips, Megan E. Walker and Steven D. Eheart
for Defendant and Respondent.
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