Filed 6/26/24 Neels v. Silver Oak Management CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SETH NEELS,

Plaintiff and Appellant,

v.

SILVER OAK MANAGEMENT, LLC,

et. al.,

Defendants and Respondents.

 D082379

 (Super. Ct. No. 37-2021-

00014832-CU-WT-CT)

APPEAL from a judgment of the Superior Court of San Diego County, 

James A. Mangione, Judge. Reversed.

Downtown LA Law Group and Liliuokalani H. Martin for Plaintiff and 

Appellant.

The Spangler Firm, Arie L. Spangler; Reden Riddell, Justin G. Reden, 

Michael J. Riddell and Collin E. Cresap for Defendants and Respondents.

INTRODUCTION

Seth Neels appeals from the trial court’s grant of summary judgment

on his claim for wrongful termination in violation of public policy. Silver Oak 

Management, LLC (Silver Oak) and Mission Apartments No. 1, LTD 
2

(Mission) (together, defendants) sought summary judgment on a single 

targeted ground: Defendants contended there was no triable issue of 

material fact that Neels suffered a “disability” within the meaning of the Fair 

Employment and Housing Act (FEHA). (Gov. Code,1 § 12900 et seq.) The 

trial court agreed. We reverse. 

By explicit pronouncement of the Legislature, FEHA’s definition of 

disability is “broad.” (§ 12926.1, subd. (b).) It not limited to actual 

disabilities. (Ibid.) It is not coextensive with federal law under the 

Americans with Disabilities Act (ADA); it provides much “broader coverage.” 

(§ 12926.1, subds. (a), (c).) It is “construed so that applicants and employees 

are protected from discrimination due to an actual or perceived physical or 

mental impairment that is disabling, potentially disabling, or perceived as 

disabling or potentially disabling.” (§ 12926.1, subd. (b), italics added.) We

find triable issues of material fact under this broad definition.

FACTUAL BACKGROUND2

Neels was hired by Silver Oak in April 2018 to be the property manager 

for Silver Spray Apartments. The property was owned by Mission. 

Sometime between March 10 and March 14, 2019, Neels received a 

work order to fix a heavy door. While fixing it, he felt a sharp pain in his rib 

1 Undesignated statutory references are to the Government Code. 

2 As required on appeal from a grant of summary judgment, we recite the 

evidence in the light most favorable to Neels, the nonmoving party. (Ennabe 

v. Manosa (2014) 58 Cal.4th 697, 703.) We also consider all of the evidence 

submitted by the parties. This is because the trial court overruled all 

evidentiary objections.
3

area. He reported the injury to his supervisors, Kristy McCormick and 

Garret McCormick.3 

On March 15, 2019, Neels “started experiencing sharp pains in his

abdomen and began urinating blood.” He sought medical treatment, and his 

physician placed him off work for three days, from March 15 to March 17. 

Neels’s physician did not know the cause of his injury, but thought he might 

have pneumonia or a partially collapsed lung caused by the earlier rib injury. 

The physician prepared a “Work Status Report,” which stated, “This patient 

is placed off work from 3/15/2019 through 3/17/1019.” Neels told Kristy his 

doctor directed him to refrain from working for three days, and that the 

doctor thought he might have pneumonia or a partially collapsed lung. 

Neels returned to work on March 18, 2019. He was still experiencing 

pain and urinating blood. He had “issues breathing, . . . mobility issues, 

limitations [as] to what [he] could lift, stand, and walk.” One week later, on 

March 25, 2019, Neels told Kristy he was not feeling any better, and “had 2 

call 911 last night.” Neels asked if his shifts and job duties could be covered 

while he spoke with his urologist and scheduled a CAT scan. Kristy allowed 

him to attend his medical appointment, but directed him to close the office

because she could not find someone to cover. 

On March 30, 2019, Neels’s doctor placed him off work for another 

three days, from March 30 through April 1. The physician prepared a second 

“Work Status Report,” which stated, “This patient is placed off work from 

3/30/2019 through 4/1/2019.” The report provided a diagnosis of “gross 

hematuria,” which the parties agree means blood in the urine. 

3 We refer to the McCormicks by their first names.
4

Neels provided the doctor’s work status report to his supervisors.4 He 

then had a conversation with Garret and told him that his doctors were 

unable to determine the cause of the blood in his urine, and that he had been

placed off work until April 2, 2019. Instead of allowing Neels to return on 

April 2, Garret arranged for his position to be covered from April 1 through 

April 5, and instructed Neels that he could not return to work until he 

obtained “clearance” from his doctor. 

On April 3, 2019, Neels responded to a request for his timecard from 

Kristy. In a text message, he told her, “I’ll text you a copy shortly[.] I just 

became functional again after that procedure today.” Neels also let Kristy 

know that he was “still treating with [his] doctor.” 

Defendants terminated Neels two days later, on April 5, 2019.5 

PROCEDURAL BACKGROUND

Neels sued Mission and Silver Oak. The operative complaint alleges a 

single cause of action for wrongful termination in violation of public policy.6 

In the complaint, Neels alleged defendants wrongfully terminated him 

4 Defendants claim “there is no evidence [Neels] provided the physician’s 

note to [defendants].” This is not accurate. Neels’s declaration states he 

provided this document to his supervisors. A text message from Neels to 

Kristy states, “the doctor wrote me a note till [sic] the 17th. I’ll fax it over 

when I get back.” The note itself indicates it was faxed from “SILVER

SPRAY APTS” on “3/15/2019” at “04:09PM.”

5 In a footnote, with no record citation, defendants claim in their 

respondents’ brief that they had legitimate reasons for terminating Neels. 

They acknowledge this issue is not relevant to their motion for summary 

judgment. We thus disregard the assertion.

6 The original complaint included five causes of action for violations of 

FEHA. Neels voluntarily dismissed the FEHA counts for procedural reasons 

not relevant here.
5

because he had either a “disability or perceived disability.” Silver Oak 

propounded interrogatories directed at both factual theories. 

Silver Oak moved for summary judgment, contending that Neels’s 

claim for wrongful termination “fails as a matter of law because [Neels] is not 

‘disabled’ by any legal definition of the term[.]” Mission joined the motion. 

Defendants’ motion did not address any other element of Neels’s claim for 

wrongful termination. 

Defendants asserted the only documentary evidence that Neels was 

disabled was the diagnosis of hematuria in the second work status report. 

Relying heavily on a federal case that applied federal ADA law, defendants

contended that “[Neels’s] alleged disability, [h]ematuria (blood in the urine), 

is not by any definition a legally recognizable ‘disability.’ ” Defendants 

argued, “[Neels] only suffered from hematuria at the time of his termination. 

The [Work Status] Reports do not include any restrictions from doctors 

establishing that accommodations needed to be made for [Neels] to return to 

work. The only symptom that [Neels] exhibited were bouts of pain, which 

alone cannot constitute a disability. Based on the general understandings of 

what a disability is under ADA and FEHA and the representations made by 

[Neels] and his doctors, there was no legally recognizable ‘disability.’ ” 

In opposition, Neels asserted “[t]he ADA has a different standard and 

definition of what is considered a disability than the FEHA.” Neels argued 

he was suffering from a disability under FEHA’s broad definition, which does 

not require a medical diagnosis. He argued in the alternative, “[a]t a 

minimum, [d]efendants perceived [Neels] to be disabled,” pointing to Garret’s 

refusal to allow him to return to work on April 2, 2019 unless he obtained 

clearance from his doctor: “If [defendants] did not perceive [him] to be 
6

disabled, [Neels] would not have been asked to get a doctor’s clearance to be 

returned to work.” 

Neels also disputed that the only evidence to support his claim that he 

had a physical disability was the diagnosis of hematuria in the second work 

status report. As evidence to support his contention he had a physical 

disability within the meaning of FEHA, he submitted a declaration.7 He also 

submitted the two work status reports, a set of supplemental interrogatory 

responses prepared by Silver Oak, an excerpt from Garret’s deposition, and 

screenshots of text messages between himself and Kristy.8

In reply, drawing again on the ADA definition of “disability,” 

defendants asserted that Neels’s injury was not a disability, because it was 

shown in retrospect to have been “temporary,” “undefined,” and “a relatively 

mild aliment when compared to true disabilities[.]” Defendants argued, 

“[Neels] has provided no evidence that his injury extended past his 

termination date, and in reality, whatever injury [Neels] had sustained, he no 

longer suffers from.” Defendants did not address Neels’s argument that he 

was perceived to have been disabled. 

The trial court granted the motion. It ruled that Neels’s alleged 

injuries did not “rise to the level” of an actual disability as defined by FEHA. 

7 Defendants contend Neels’s declaration contradicts his interrogatory 

responses. They do not point to any specific contradiction and we do not 

observe one.

8 Defendants claim the “purported recipient” of the text messages has 

not been identified. This is not accurate. Neels identified Kristy as the 

recipient of these messages in his declaration, and defendants did not dispute 

this asserted fact in the proceedings below. As noted, defendants’ objections 

to the statement of undisputed facts were all overruled. 
7

The trial court addressed Neels’s alternate factual theory he had a 

qualifying disability based on defendants’ perception that he was disabled. 

The court acknowledged, “FEHA protects against discrimination for ‘not only 

physical impairments that are actually disabling, but also physical 

impairments that are potentially disabling or are perceived as disabling or 

potentially disabling.’ [Citations.] ‘A physical disability is perceived as 

potentially disabling when an employer regards or treats an employee as 

having a physical impairment that has no present disabling effect but may 

become . . . disabling in the future.’ ” The court resolved the issue, however,

based on the “ ‘substantial[ ] motivat[ion]’ ” element of FEHA discrimination, 

an element that had not been identified by defendants for summary 

adjudication.9 

This aspect of the trial court’s ruling relied on Garret’s deposition

testimony. Garret testified the reason he told Neels he could not return to 

work until he had clearance from his doctor was that he “was trying to be 

accommodating to [Neels] because of the situation” and that he gave him 

time off “even though the doctors didn’t . . . put him on . . . light work duty or 

anything.” The court found, “This is insufficient to create a triable issue of 

fact as to whether [d]efendants’ termination of [Neels] was ‘substantially 

motivated by’ perceived disability discrimination under FEHA.” (Italics 

added.) As noted, defendants did not move on this ground. 

9 See Yau v. Allen (2014) 229 Cal.App.4th 144, 154 (Yau) [explaining that 

a plaintiff who asserts a common law wrongful termination claim must prove 

the termination was “substantially motivated” by a violation of public policy]. 
8

DISCUSSION

I.

Standard of Review

A motion for summary judgment is properly granted only when “all the 

papers submitted show that there is no triable issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” 

(Code Civ. Proc., § 437c, subd. (c).) “A defendant may make this showing by 

demonstrating that the plaintiff cannot establish one or more elements of all 

of his or her causes of action, or that the defendant has a complete defense to 

each cause of action.” (Nosal-Tabor v. Sharp Chula Vista Medical Center 

(2015) 239 Cal.App.4th 1224, 1234 (Nosal-Tabor).)

“The moving party bears the initial burden to make a prima facie 

showing that no triable issue of material fact exists. . . . If this burden is met, 

the party opposing the motion bears the burden of showing the existence of 

disputed facts.” (Sosa v. CashCall, Inc. (2020) 49 Cal.App.5th 42, 47, citation 

omitted.) 

“In reviewing a trial court’s ruling on a motion for summary judgment, 

the reviewing court makes an independent assessment of the correctness of 

the trial court’s ruling, applying the same legal standard as the trial court in 

determining whether there are any genuine issues of material fact or 

whether the moving party is entitled to judgment as a matter of law.” 

(Nosal-Tabor, supra, 239 Cal.App.4th at p. 1234 [cleaned up].) Reviewing 

courts “ ‘construe the moving party’s affidavits strictly, construe the 

opponent’s affidavits liberally, and resolve doubts about the propriety of 

granting the motion in favor of the party opposing it.’ ” (Seo v. All-Makes 

Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.) The reviewing 

court “should draw reasonable inferences in favor of the nonmoving party.” 
9

(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470 (Miller), 

italics omitted.) “[S]ummary judgment cannot be granted when the facts are 

susceptible of more than one reasonable inference.” (Rosas v. BASF Corp.

(2015) 236 Cal.App.4th 1378, 1392.) 

II.

Governing Law: Wrongful Termination in Violation of Public Policy

“[W]hen an employer’s discharge of an employee violates fundamental 

principles of public policy, the discharged employee may maintain a tort 

action and recover damages traditionally available in such actions.” (Tameny 

v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170.) “The elements of a claim 

for wrongful discharge in violation of public policy are (1) an employeremployee relationship, (2) the employer terminated the plaintiff’s 

employment, (3) the termination was substantially motivated by a violation 

of public policy, and (4) the discharge caused the plaintiff harm.” (Yau, 

supra, 229 Cal.App.4th at p. 154.) The third element of a common law

wrongful termination claim—that the termination was substantially 

motivated by a violation of public policy—can be satisfied by showing a 

violation of FEHA. (Prue v. Brady Co./San Diego, Inc. (2015) 242 

Cal.App.4th 1367, 1383.) 

FEHA makes it an “unlawful employment practice . . . [f]or an 

employer, because of the . . . physical disability [or] mental disability . . . of 

any person, . . . to bar or to discharge the person from employment . . . or to 

discriminate against the person in compensation or in terms, conditions, or 

privileges of employment.” (§ 12940, subd. (a).) To establish a prima facie 

case of disability discrimination, a plaintiff must show: “(1) plaintiff suffers 

from a disability; (2) plaintiff is a qualified individual; and (3) plaintiff was 
10

subjected to an adverse employment action because of the disability.” 

(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236, italics added.) 

As noted, defendants’ motion was directed at the physical disability 

element of a FEHA claim. “Physical disability” is defined under FEHA to 

include “[h]aving any physiological disease, disorder, condition, cosmetic 

disfigurement, or anatomical loss” that both (1) affects one or more of the 

“body[’s] systems,” including the “musculoskeletal,” “genitourinary,” and 

“hemic” systems, and (2) “[l]imits a major life activity.” (§ 12926, subd. 

(m)(1).) The Legislature has specifically found and declared: “The law of this 

state contains broad definitions of physical disability, mental disability, and 

medical condition.” (§ 12926.1, subd. (b).) 

Significant here, under FEHA, “[a] physical disability may be 

temporary or short term[.]” (Ross v. County of Riverside (2019) 36 

Cal.App.5th 580, 594 (Ross).) FEHA further protects employees not only 

from discrimination based on an existing physical disability, but also from 

discrimination based on the employer’s perception that the individual has an 

existing or potential disability. (§§ 12926, subd. (m)(1), (4)(5), 12926.1, 

subd. (b).) “A physical disability is perceived as potentially disabling when 

an employer regards or treats an employee as having a physical impairment 

that has no present disabling effect but may become disabling in the future.” 

(Ross, at p. 594, citing Cal. Code Regs., tit. 2, § 11065, subd. (d)(6).) 

The meaning of “major life activity” is also “broadly construed” and 

includes “working.” (§ 12926, subd. (m)(1)(B)(iii).) A limit on a major life 

activity means simply that “it makes the achievement of the major life 

activity difficult.” (Id., subd. (m)(1)(B)(ii).) “Repeated or extended absences

from work may constitute a limitation on the major life activity of working.” 

(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 588; 
11

id. at p. 578 [finding that a series of nine doctor appointments and the 

possibility of missing more work for surgery limited plaintiff’s major life 

activity of working]; see also Ross, supra, 36 Cal.App.5th at p. 595 

[“[Plaintiff’s] physical impairment limited the major life activity of working 

because it required [plaintiff] to be absent from work periodically over several 

months to travel to an out-of-state clinic for medical testing.”].) 

By contrast, the ADA requires a physical disability to cause a

“ ‘substantial limitation’ ” on major life activities in order to meet its 

definition. (§ 12926.1, subd. (c), italics added; 42 U.S.C. § 12102.) Our 

Legislature has specifically found and declared that California’s definition is 

broader:

“The law of this state in the area of disabilities provides 

protections independent from those in the federal 

Americans with Disabilities Act of 1990 [citation]. 

Although the federal act provides a floor of protection, this 

state’s law has always, even prior to passage of the federal 

act, afforded additional protections.

* * *

“In addition, the Legislature has determined that the 

definitions of ‘physical disability’ and ‘mental disability’

under the law of this state require a ‘limitation’ upon a 

major life activity, but do not require, as does the federal 

Americans with Disabilities Act of 1990, a ‘substantial 

limitation.’ This distinction is intended to result in broader 

coverage under the law of this state than under that federal 

act.” (§ 12926.1, subds. (a), (c).)

III.

Triable Issues of Material Fact on Whether Neels Was Disabled Within the 

Meaning of FEHA Preclude Summary Judgment

Neels contends we must reverse summary judgment because there are 

triable issues of material fact as to whether Neels was actually disabled or 
12

perceived to be disabled by defendants within the meaning of FEHA. We 

agree. 

Neels opposed defendant’s motion with evidence sufficient to create a 

triable issue of material fact as to whether, at the time he was terminated, he

was in the midst of experiencing an actual physical impairment that had 

affected his musculoskeletal, genitourinary, and hemic systems over the 

course of two and a half weeks and interfered with the major life activity of 

working. (§ 12926, subd. (m)(1).) The evidence was also sufficient to proceed 

to jury as to whether defendants perceived Neels as having a disability 

within the meaning of FEHA and “regarded or treated” him as having an 

actual disability or having a “health impairment that has no present 

disabling effect but may become a physical disability.” (§ 12926, 

subd. (m)(4)–(5).) 

Viewing the evidence in the light most favorable to Neels, as we must, 

Neels injured his rib to the point where his doctor thought the injury may 

have caused pneumonia or a partially collapsed lung. He went to the doctor 

twice because he was urinating blood. He scheduled a CAT scan with a 

urologist. He was in “a lot of pain.” He called emergency services one 

evening because he was not feeling better. He was diagnosed with “gross 

hematuria,” but doctors “were unable to determine [the] cause of [the] blood 

in [his] urine.” He underwent a medical procedure on April 3, 2019 but was 

still “treating with [his] doctor” afterward. 

At work, Neels had “issues breathing,” “mobility issues,” and 

limitations to what he could lift, as well as limitations on standing and 

walking. He “could not concentrate on [his] work because the pain was so 

great.” He missed work for doctor appointments, including an appointment 

with a urologist, and his doctor placed him off work for six days. 
13

Neels presented evidence defendants were aware of all of the details of 

his physical impairment, with the possible exception of his breathing, 

mobility, and pain issues at work (although communication about these 

issues might be inferred), and that defendants regarded and treated him as if 

he had an actual or potential disability until they decided to terminate him. 

Employers are required to engage in good faith with an employee to 

“determine effective reasonable accommodations” in response to a request for 

reasonable accommodation by an employee “with a known physical . . . 

disability.” (§ 12940, subd. (n).) Drawing all inferences in Neels’s favor, 

defendants’ actions toward Neels were consistent with accommodating him 

because they believed him to have an actual disability or a physical 

impairment that had potential to rapidly become disabling. 

Kristy allowed Neels to attend a medical appointment even though no 

one was available to cover his position and she had to close the office. When 

Garret learned that Neels’s doctors were unable to determine the cause of the 

blood in Neels’s urine, he found someone to cover his position for five days,

from April 1 to April 5, 2019 and he told Neels he was not allowed to come 

back to work until he obtained “clearance from [his] doctor.” At deposition, 

Garret specifically testified, “I think I was trying to be accommodating to 

[Neels] because of the situation.”10 

10 We acknowledge Garret’s statement can be interpreted more than one 

way. Neels’s original complaint asserted that defendants failed to make 

reasonable accommodations for his physical disability in violation of section 

12940, subdivision (k). Neels accordingly interprets Garret’s statement to 

mean he was “accommodating” Neels’s actual, potential, and/or perceived 

disability in the legal sense of the word. Defendants, by contrast, appear to 

interpret this statement to mean Garret was “accommodating” Neels solely in 

the layperson’s sense of showing him compassion (and Garret does go on to 

say, “I think I was just trying to be accommodating to him and be 

compassionate to [his] situation”). We find Neels’s interpretation to be based 
14

As noted, our review of the evidence is conducted in the light most 

favorable to Neels. Defendants submitted no affirmative evidence of their 

own on these issues to consider. We express no opinion as to whether Neels 

will ultimately be able to persuade 12 jurors—who will not be constrained as 

we are by the rules on summary judgment—that he was disabled or perceived 

to be disabled within the meaning of FEHA.11

Defendants’ arguments are not persuasive. Defendants argue Neels’s 

condition did not qualify as a disability, because there was no diagnosis by a 

physician of anything other than “gross hematuria,” and that his condition 

was “a temporary illness, similar to a cold or the flu, neither of which qualify 

as a disability under FEHA.” For support, defendants rely on a federal case, 

Brown v. BKW Drywall Supply, Inc. (S.D. Ohio 2004) 305 F.Supp.2d 814

(Brown). 

In Brown, the court conducted an “individualized inquiry” to assess 

whether “loin pain hematuria syndrome,” qualified as a physical disability 

on a reasonable inference and we therefore resolve the conflict in his favor in 

accordance with the standard of review. (Code Civ. Proc., § 437c, subd. (c); 

Miller, supra, 36 Cal.4th at p. 470.) 

11 At oral argument, counsel for defendants argued Neels was not treated 

as if he had a potential disability, because defendants were entitled to rely on 

the second doctor’s note that cleared him to resume work on April 2 and 

reasonably did so. A jury may ultimately find this argument persuasive, but 

as explained, the record supports the conflicting inference that defendants 

perceived and/or treated him as disabled or potentially disabled. “In the 

summary judgment context, . . . the evidence must be incapable of supporting 

a judgment for the losing party in order to validate the summary judgment. 

Thus even though it may appear that a trial court took a ‘reasonable’ view of 

the evidence, a summary judgment cannot properly be affirmed unless a 

contrary view would be unreasonable as a matter of law in the circumstances

presented.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 

864, 877, italics added.) 
15

under the ADA. (Brown, supra, 305 F.Supp.2d at pp. 823, 817.) According to 

defendants’ interpretation of Brown, “The rules may slightly differ between 

the ADA and FEHA, but the guidance from Brown is clear: a temporary 

injury or illness—specifically pain and hematuria—is not a disability.” 

We disagree. Brown is inapposite based on the Legislature’s specific 

directive that FEHA does not follow the ADA’s definition of disability.

(§ 12926.1, subds. (a), (c); 42 U.S.C. § 12102.) Our high court makes clear 

that this is a significant distinction, not a slight difference. (Colmenares v. 

Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1024–1030.) Under 

FEHA, “[a] physical disability may be temporary or short term[.]”12 (Ross, 

supra, 36 Cal.App.5th at p. 594.) Accordingly, absent undisputed expert 

testimony about gross hematuria and Neels’s other symptoms, we are unable 

to say definitively that his condition was “mild” and akin to “the common 

cold; seasonal or common influenza; minor cuts, sprains, muscle aches, 

soreness, bruises, or abrasions; non-migraine headaches, and minor and nonchronic gastrointestinal disorders,” such that a reasonable jury could not 

possibly find him disabled. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).) 

This is also not a case where the plaintiff’s asserted symptoms were 

limited to “pain and numbness [that] did not make work difficult.” (Arteaga 

v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 348.) Neels had symptoms other 

than pain and he attested that the pain he experienced made work difficult.

Finally, relying on Avila v. Continental Airlines, Inc. (2008) 165 

Cal.App.4th 1237, defendants argue, “There is . . . no evidence that 

12 Defendants quote this exact holding from Ross—that a physical 

disability may be temporary or short term—seven pages earlier in the 

respondents’ brief, but they do not acknowledge it during their discussion of 

Brown.
16

[defendants] were notified that [Neels] was ‘disabled.’ ” In Avila, however, 

the defendant moved for summary judgment on the ground that it “had no 

knowledge of plaintiff’s disability and therefore did not terminate him 

because of that disability[.]” (Id. at p. 1245, italics added.) Defendants here 

did not move for summary judgment on the ground of lack of notice. And in 

any event, unlike the evidence in Avila, Neels did not rely solely on the two 

work status reports to support his opposition to summary judgment on the 

physical disability element. 

Neels thus met his shifted burden of demonstrating there is a triable 

issue of material fact on the question of whether he had a physical disability 

under FEHA. The trial court erred when it granted summary judgment.

DISPOSITION

Judgment is reversed. The trial court is directed to vacate its order 

granting summary judgment and to enter a new order denying defendants’ 

motion for summary judgment. Costs are awarded to Neels. (Cal. Rules of 

Court, rule 8.278(a)(1), (2).)

DO, J.

WE CONCUR:

IRION, Acting P. J.

BUCHANAN, J.