Filed 12/24/13 Lopez v. Stone Brewing Co. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

KEVIN B. LOPEZ,

Plaintiff and Appellant,

v.

STONE BREWING COMPANY et al.

Defendants and Respondents.

 D062431

 (Super. Ct. No. 37-2011-00052402-

 CU-WT-NC)

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

M. Casserly, Judge. Reversed.

Law Office of David A. Miller and David A. Miller for Plaintiff and Appellant.

Gordon & Rees, James J. McMullen, Jr., Eric M. Volkert and Tara J. Gillman for 

Defendants and Respondents.

Kevin B. Lopez appeals a judgment entered after the trial court granted summary 

judgment in favor of his former employer, Stone Brewing Company (Stone) and 

Koochenvagners Brewing Company (together, Defendants), in this action arising out of 

his termination from employment. He contends that the court erred in summarily 
2

adjudicating his claims against Defendants. As we shall explain, the trial court erred in 

summarily adjudicating two of Lopez's claims; accordingly, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2007, Defendants hired Lopez to work as a line cook in Stone's 

bistro. In July 2009, Lopez became a bottling line operator, reporting to Kris Ketcham, 

Stone's packaging supervisor. In December 2009, Ketcham filled out a team lead 

statement reporting that Lopez had rashes on his skin that went away after Lopez took 

one week off of work, concluding that sanitizing chemicals caused the rashes. Stone sent 

Lopez to its corporate clinic, Palomar Pomerado Health (the Clinic). The Clinic

recommended that Lopez avoid contact with known irritants, use appropriate personal 

protective equipment when using products and rotate job tasks.

In late December 2009, the Clinic concluded there was no "clear work place 

etiology" and referred Lopez to a primary care physician for further assessment of his 

upper extremity dermatitis because Lopez's rashes did not go away after he avoided 

contact with the known irritants. In early April 2010, a work status report from the Clinic 

indicated that Lopez should avoid the use of gloves, hand contact with hot water, 

chemicals and known irritants. (All further date references are to 2010.) Stone

transferred Lopez to its distribution center for about a month where he performed 

warehouse work that did not require wearing gloves, such as driving a forklift and 

stacking pallets.
3

In late April, a work status report from the Clinic instructed Lopez to wear glove 

liners. The glove liners that Stone purchased did not improve Lopez's symptoms. In 

early May, the Clinic again advised Lopez to wear glove liners and avoid contact with hot 

water and chemicals. Around this time, Stone offered Lopez a keg line operator position, 

but Lopez declined this reassignment because the shifts interfered with his class schedule.

On May 12, Lopez's dermatologist advised that Lopez must avoid wearing gloves 

altogether because it "worsens his skin condition." Lopez's supervisor shifted job duties 

to provide Lopez with additional forklift duties so that Lopez could avoid wearing gloves.

Lopez, however, took a turn too quickly while driving a forklift that caused half of the 

cases on the pallet to fall off. Lopez met with Vickie Motte, Stone's human resources 

director, to discuss job reassignment, but they postponed the discussion until after Lopez 

finished his exams.

On May 18, Motte sent Lopez a letter explaining that Stone was not aware of an 

effective accommodation to return him to the bottling line as a result of his recent "no 

glove" restriction. Two days later, Lopez met with Motte to discuss available jobs within 

his restrictions. Motte inquired if Lopez would be interested in a busser position, but he 

declined believing he would contact water when bringing dishes to the kitchen. Lopez

and Motte also discussed prep cook and Chef de Partie positions, but Lopez believed he 

did not have the skills for the Chef de Partie position and that both positions required him 

to get his hands wet.
4

When Motte informed him that there were no other available positions, Lopez

believed he had no choice but to agree to a separation from Stone. On his unemployment 

application form, Lopez stated he could "no longer fulfill the responsibilities" of his 

position due to a skin condition.

Lopez filed this action alleging causes of action for wrongful termination, 

disability discrimination, retaliation, failure to prevent retaliation and discrimination, 

failure to accommodate, failure to engage in interactive process, violation of Labor Code 

section 132a and unsafe working conditions. Defendants moved for summary judgment, 

alternatively summary adjudication of each of Lopez's causes of action. The trial court 

issued a tentative ruling granting the motion. The trial court later confirmed its tentative 

ruling and entered judgment in favor of Defendants.

DISCUSSION

I. Objections

A. Defendants' Separate Statement

Lopez objected to Defendants' separate statement of undisputed facts as "fatally 

defective." Lopez asserted that Defendants improperly lumped numerous facts into each 

"undisputed fact" to tell a story, thus making it difficult to respond to the motion. The 

trial court overruled Lopez's objection to the format of Defendants' separate statement. 

Lopez claims the ruling amounted to a prejudicial abuse of discretion.
5

Subdivision (b)(1) of Code of Civil Procedure section 437c requires that summary 

judgment motions include a separate statement that "plainly and concisely" sets forth "all 

material facts which the moving party contends are undisputed. Each of the material 

facts stated shall be followed by a reference to the supporting evidence. The failure to 

comply with this requirement of a separate statement may in the court's discretion 

constitute a sufficient ground for denial of the motion." The rules of court further 

provide that the moving separate statement "separately identify each cause of action, 

claim, issue of duty, or affirmative defense, and each supporting material fact claimed to 

be without dispute with respect to the cause of action, claim, issue of duty, or affirmative 

defense. In a two-column format, the statement must state in numerical sequence the 

undisputed material facts in the first column followed by the evidence that establishes 

those undisputed facts in that same column. Citation to the evidence in support of each 

material fact must include reference to the exhibit, title, page, and line numbers." (Cal.

Rules of Court, rule 3.1350(d).)

Defendants' separate statement follows this format, however, each "undisputed 

fact" is a collection of facts. For example, Defendants' first "undisputed fact" consists of 

the following: "On November 26, 2007, [Lopez] was hired to work as a line cook in 

Stone's Bistro earning $9.00/hour. Soon thereafter, in or around February 1, 2008, his 

title changed to "Commis" or prep cook. While working as a line and prep cook in the 

Bistro, he was accommodated by being allowed to leave early for his classes and other 

class-related work to finish his Bachelors [sic] Degree in Philosophy. At no time while 
6

working in the Bistro did he complain about any medical condition or otherwise." These 

numerous facts are then followed by citations to the supporting evidence.

The purpose of the separate statement requirement is to give the parties notice of 

the material facts at issue and to allow the trial court to focus on those facts. (Parkview 

Villas Assn., Inc. v. State Farm Fire Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) 

This purpose is defeated when background information is mixed with facts material to a 

cause of action or defense. With that said, putting background information in a separate 

statement can save the trial court a substantial amount of time by allowing it to focus on 

facts that are truly disputed. Accordingly, if background facts are put into a separate 

statement each fact should be separately listed. Because facts were lumped together, 

Lopez was required to list those facts he agreed were undisputed and then those facts he 

contended were disputed. While this may have increased his burden in opposing the 

motion, we cannot conclude that the trial court prejudicially abused its discretion in 

accepting Defendants' separate statement.

B. Evidentiary Objections

In ruling on the motion, the trial court expressly sustained or overruled numerous 

objections to evidence submitted by the parties. In summary judgment proceedings, the 

weight of authority holds that appellate courts review evidentiary rulings under an abuse 

of discretion standard. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 

1326, 1335.) Here, however, the parties do not challenge any of the trial court's 

evidentiary rulings as erroneous or prejudicial; accordingly, we accept the trial court's 

evidentiary rulings and deem any challenge to them as waived. (Cahill v. San Diego Gas 
7

& Electric Co. (2011) 194 Cal.App.4th 939, 956 [" ' "When an appellant fails to raise a 

point, or asserts it but fails to support it with reasoned argument and citations to 

authority, we treat the point as waived." ' "].) In reviewing this appeal we considered 

only evidence to which the parties did not object, or to which the trial court overruled the 

objections.

II. Motion

A. General Legal Principles

We independently review an order granting summary judgment or adjudication, 

viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. 

Advanced Group 400 (2001) 25 Cal.4th 763, 768.) We first identify the issues framed by 

the pleadings because it is those issues the papers must address. (Clark v. Baxter 

Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) Second, we determine if the 

moving party's evidence demonstrates the opponent cannot establish its claim and 

justifies a judgment in the moving party's favor. (Ibid.) Lastly, we determine whether 

the opposing party's evidence demonstrates a triable issue of material fact. (Ibid.) In 

determining whether there are triable issues of fact, we consider all the evidence set forth 

by the parties, except that to which objections have been made and properly sustained. 

(Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 

334 (Guz).) In performing our review, we are not bound by the trial court's stated 

rationale, but independently determine whether the record supports the trial court's 

conclusion that the plaintiff's claims failed as a matter of law. (Prilliman v. United Air 

Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
8

B. Disability Discrimination

The Fair Employment and Housing Act (FEHA; Gov. Code § 12940 et. seq.)

"prohibits employment discrimination based on a physical disability." (Colmenares v. 

Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1022.) (Undesignated statutory 

references are to the Gov. Code.) To resolve discrimination claims California courts use 

the three-stage burden-shifting test established by the United States Supreme Court in 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Guz, 

supra, 24 Cal.4th at p. 354.) Under this test, the plaintiff has the initial burden of 

establishing a prima facie case of discrimination. (Guz, at p. 354.) "A prima facie case 

generally means the plaintiff must provide evidence that (1) the plaintiff was a member of 

a protected class, (2) the plaintiff was qualified for the position he or she sought or was 

performing competently in the position held, (3) the plaintiff suffered an adverse 

employment action, such as termination, demotion, or denial of an available job, and (4) 

some other circumstance suggests a discriminatory motive." (Scotch v. Art Institute of 

California (2009) 173 Cal.App.4th 986, 1004 (Scotch).)

"If the plaintiff establishes a prima facie case, then a presumption of 

discrimination arises, and the burden shifts to the employer to rebut the presumption by 

producing admissible evidence sufficient to raise a genuine issue of material fact the 

employer took its actions for a legitimate, nondiscriminatory reason. [Citation.] If the 

employer meets that burden, the presumption of discrimination disappears, and the 

plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or
9

offer other evidence of a discriminatory motive." (Scotch, supra, 173 Cal.App.4th at

p. 1004.)

To establish a prima facie case for disability discrimination under the FEHA a

plaintiff must show he: (1) suffers from a disability; (2) is otherwise qualified to do his 

job; and (3) was subjected to adverse employment action because of his disability. 

(Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) The FEHA, 

however, " 'does not prohibit an employer from . . . discharging an employee with a 

physical or mental disability, . . . where the employee, because of his or her physical or 

mental disability, is unable to perform his or her essential duties even with reasonable 

accommodations . . . .' " (Scotch, supra, 173 Cal.App.4th at p. 1005.) Where an 

employee claims discriminatory discharge under section 12940, subdivision (a), the 

employee has the burden of showing "(1) that he or she was discharged because of a 

disability; and (2) that he or she could perform the essential functions of the job with or 

without accommodation . . . ." (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 

Cal.App.4th 952, 962 (Nadaf-Rahrov).)

Defendants moved for summary adjudication of this claim on two grounds:

(a) Lopez could not establish a prima facie case of disability discrimination because he 

could not perform the essential functions of his job as a bottling line operator even with 

reasonable accommodation, and (b) they had a legitimate, nondiscriminatory reason for 

terminating Lopez's employment because he refused other available vacant positions. 

The trial court granted the motion on the second ground noting that Defendants presented 

evidence that they had a nondiscriminatory reason for terminating Lopez's employment
10

because he refused other available vacant positions. Although not addressed by the trial 

court, we first examine whether Defendants' evidence shows Lopez could not establish a 

prima facie case of discrimination because he could not perform the essential functions of 

any available position with or without reasonable accommodation.

"Evidence of whether a particular function is essential includes, but is not limited 

to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶] 

(B) Written job descriptions prepared before advertising or interviewing applicants for 

the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The 

consequences of not requiring the incumbent to perform the function. [¶] (E) The terms 

of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in 

the job. [¶] (G) The current work experience of incumbents in similar jobs." (§ 12926, 

subd. (f)(2).)

Additionally, "[a] job function may be considered essential for any of several 

reasons, including, but not limited to, any one or more of the following: [¶] (A) The 

function may be essential because the reason the position exists is to perform that 

function. [¶] (B) The function may be essential because of the limited number of 

employees available among whom the performance of that job function can be 

distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the 

position is hired for his or her expertise or ability to perform the particular function."

(§ 12926, subd. (f)(1).)
11

In moving for summary adjudication, Defendants argued that they terminated 

Lopez because he could not perform the essential functions of his job with or without 

accommodation. Defendants asserted that working with sanitizing chemicals was an 

essential function of Lopez's job. This assertion, however, is not supported by a citation 

to any evidence showing that sanitizing equipment was an essential job function and that 

wearing gloves and being exposed to sanitizing chemicals or water were essential 

characteristics of Lopez's job as a bottling line operator. Nor did Defendants present 

evidence showing that sanitizing equipment was an essential job function because of the 

limited number of employees available among whom the performance of this job function 

could be distributed or that the job was highly specialized.

Moreover, Defendants' own evidence does not support their assertion. 

Defendants' separate statement listed Lopez's job duties and included a written job 

description signed by Lopez. The "essential duties and responsibilities" of Lopez's job 

included: glass thrower, case-packer operator, taper, stamper, stacker, forklift driver and 

filler operator. Each of these categories listed specific job duties; the duties listed did not 

include sanitizing equipment. Additionally, the description of the work environment 

noted physical demands of the job and listed several characteristics, including exposure 

to airborne particles; however, wearing gloves and exposure to sanitizing chemicals or 

water are not listed.
12

Furthermore, a triable issue of fact exists as to whether Lopez's exposure to 

chemicals while sanitizing equipment caused his rashes. In December 2009, Lopez's 

supervisor concluded that sanitizing chemicals caused Lopez's rashes because the rashes 

went away after Lopez took one week off work. Admissible portions of Lopez's 

declaration suggest that his use of chemicals while sanitizing equipment caused his 

rashes. Namely, he did not suffer from rashes when he first began working as a bottling 

line operator. While working in that position he worked with chemicals such as 

Dioxychlor and Diactolate to sanitize the bottle filling machine and these chemicals 

splashed on his body and collected in his gloves. His rashes developed thereafter and 

worsened the longer he was exposed to them. Although Defendants also presented 

evidence suggesting there was "[n]o clear workplace etiology" for Lopez's rashes, this 

merely shows a conflict in the evidence for the trier of fact to resolve.

We now turn to the second basis for summary adjudication, whether Defendants 

presented evidence that they had a nondiscriminatory reason for terminating Lopez's

employment. On this ground the trial court concluded Defendants had a 

nondiscriminatory reason for terminating Lopez's employment because he refused other 

available vacant positions. The record supports Defendants' contention that Lopez 

refused other available vacant positions; namely, busser, prep cook and Chef de Partie.

Thus, the burden of proof shifted to Lopez to present evidence showing "the employer's 

proffered reasons as pretexts for discrimination or offer other evidence of a 

discriminatory motive." (Scotch, supra, 173 Cal.App.4th at p. 1004.)
13

Here, the entirety of the evidence creates a reasonable inference that Defendants 

had a discriminatory motive or that their nondiscriminatory reason for the adverse action 

was untrue. Motte stated in her declaration that Defendants discussed reassigning Lopez 

when they realized he "could not perform the essential duties and functions of his 

position as a Bottling Line Operator." As our earlier discussion reveals, the evidence 

suggests that sanitizing equipment using chemicals was not an essential function of 

Lopez's job. Defendants' own evidence also suggests a number of reasonable 

accommodations existed that might have allowed Lopez to retain his existing position, 

such as wearing additional protective gear, not using the chemicals or avoiding sanitation. 

(Post, pt. II.C.) Although Defendants shifted Lopez's job duties so that he could avoid 

wearing gloves, wearing gloves is not listed as a characteristic of Lopez's work 

environment and Defendants presented no evidence showing that Lopez was required to 

wear gloves to perform the various duties listed in his written job description.

Finally, Defendants terminated Lopez shortly after he presented a doctor's note 

and requested to be accommodated to eliminate the wearing of gloves. The timing of 

Lopez's termination, combined with the above evidence and weaknesses in the evidence, 

is sufficient to raise a triable issue of fact as to whether the reason for Lopez's termination 

was pretextual. Accordingly, the trial court erred in summarily adjudicating Lopez's 

claim for disability discrimination.

C. Failure to Provide Reasonable Accommodation

The FEHA prohibits an employer from "fail[ing] to make reasonable 

accommodation for the known physical or mental disability of an . . . employee."
14

(§ 12940, subd. (m).) "The elements of a failure to accommodate claim are (1) the 

plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the 

essential functions of the position, and (3) the employer failed to reasonably 

accommodate the plaintiff's disability." (Scotch, supra, 173 Cal.App.4th at pp. 1009-

1010.) A reasonable accommodation is "a modification or adjustment to the workplace 

that enables the employee to perform the essential functions of the job held or desired." 

(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 974.)

Under the California Code of Regulations, examples of reasonable 

accommodations include reassignment to a vacant or temporary position. (Cal. Code 

Regs., tit. 2, § 11068, subd. (d) & (d)(3).) "If the employee cannot be accommodated in 

his or her existing position and the requested accommodation is reassignment, an 

employer must make affirmative efforts to determine whether a position is available." 

(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223 (Raine).) As with a FEHA 

discrimination claim, the plaintiff bears the burden of proving that he or she had the 

"ability to perform the essential functions of a job with accommodation." (NadafRahrov, supra, 166 Cal.App.4th at p. 977.)

Defendants moved for summary adjudication of the failure to accommodate claim 

arguing the undisputed facts show they did everything they were required to do under the 

FEHA to reasonably accommodate Lopez. The trial court granted the motion on this 

claim finding Defendants' evidence revealed that Lopez refused to accept two vacant 

positions, that the burden shifted to Lopez to show a triable issue of fact as to whether a 

reasonable accommodation was offered and that Lopez failed to meet this burden. 
15

Significantly, however, only when an employee cannot be accommodated in his existing 

position must an employer make affirmative efforts to determine whether another 

position is available. (Raine, supra, 135 Cal.App.4th at p. 1223.) Here, a triable issue of 

fact exists as to whether Defendants could have reasonably accommodated Lopez in his 

current position.

As discussed above, Defendants failed to present evidence showing that sanitizing 

equipment, using chemicals and wearing gloves were essential functions of Lopez's job. 

As such, a triable issue of fact exists as to whether a reasonable accommodation included 

eliminating equipment sanitizing or tasks involving chemicals or wearing gloves. 

Lopez's supervisor stated that "after taking a week off" Lopez's rashes "went away" and 

that when Lopez began sanitizing again, the rashes returned. Although Defendants 

presented other evidence suggesting that Lopez's sanitizing work and chemical exposure 

did not cause the rashes, a trier of fact must resolve this conflict.

To the extent that sanitizing equipment, using chemicals and wearing gloves were

essential functions of Lopez's job, Defendants' own evidence suggests a number of 

reasonable accommodations existed that might have allowed Lopez to retain his existing 

position. For example, Lopez's supervisor recommended that Lopez wear additional 

protective gear, such as a "full body suit," not use the chemicals or avoid sanitation. The 

Clinic also recommended that Lopez avoid contact with known irritants, use appropriate 

personal protective equipment when using products and rotate job tasks. Defendants 

presented no evidence showing they offered Lopez additional personal protective 

equipment, such as a full body suit as suggested by Lopez's supervisor. While 
16

Defendants provided Lopez with cotton glove liners as suggested by the Clinic, Lopez 

presented evidence that the chemicals saturated the liners and the liners held the 

chemicals against his skin.

Additionally, "[h]olding a job open for a disabled employee who needs time to 

recuperate or heal is in itself a form of reasonable accommodation and may be all that is 

required where it appears likely that the employee will be able to return to an existing 

position at some time in the foreseeable future." (Jensen v. Wells Fargo Bank (2000) 85 

Cal.App.4th 245, 263.) Here, the evidence Defendants presented is conflicting as to 

whether Lopez simply needed additional time to heal. When the rashes first manifested 

Lopez's supervisor noted that they went away after Lopez took a week off sanitizing. In 

contrast, Lopez testified during his deposition that when he stopped doing sanitation for 

an unspecified period of time the rashes remained. Moreover, admissible portions of 

Lopez's declaration suggest that his rashes began to heal after he worked in the 

warehouse for two to three weeks without wearing gloves and without being exposed to 

chemicals, but that he was sent back to the bottling line and his request for 

accommodation of extra time to heal was refused. Thus, the trial court erred in 

summarily adjudicating Lopez's claim for failing to provide a reasonable accommodation.

D. Failure to Engage in Interactive Process

The FEHA makes it unlawful for an employer "to fail to engage in a timely, good 

faith, interactive process with the employee or applicant to determine effective reasonable 

accommodations, if any, in response to a request for reasonable accommodation by an 

employee or applicant with a known physical or mental disability or known medical 
17

condition." (§ 12940, subd. (n).) The essential elements of a cause of action for failure 

to engage in an interactive process are: (1) the plaintiff has a disability that was known to 

his employer, (2) the plaintiff requested that his employer make a reasonable 

accommodation for that disability so he would be able to perform the essential job 

requirements, (3) the plaintiff was willing to participate in an interactive process to 

determine whether a reasonable accommodation could be made, (4) the employer failed 

to participate in a timely, good faith interactive process with the plaintiff, (5) the plaintiff 

was harmed, and (6) the employer's failure to engage in a good faith interactive process 

was a substantial factor in causing the plaintiff's harm. (§ 12940, subd. (n); CACI

No. 2546.)

"Once the interactive process is initiated, the employer's obligation to engage in 

the process in good faith is continuous. '[T]he employer's obligation to engage in the 

interactive process extends beyond the first attempt at accommodation and continues 

when the employee asks for a different accommodation or where the employer is aware 

that the initial accommodation is failing and further accommodation is needed. This rule 

fosters the framework of cooperative problem-solving contemplated by the ADA, by 

encouraging employers to seek to find accommodations that really work . . . .' " (Scotch, 

supra, 173 Cal.App.4th at p. 1013.) To prevail on a claim for failing to engage in the 

interactive process, the plaintiff must prove not only that the employer failed to engage in 

an appropriate interactive process, but that a reasonable accommodation was possible.

(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)
18

Defendants sought summary adjudication of this claim contending the evidence 

shows they continuously engaged in the interactive process and reasonably 

accommodated Lopez in numerous ways over an extended period of time. The trial court 

granted the request, finding that the evidence presented in connection with the 

discrimination and retaliation claims indicate Defendants engaged in the interactive 

process by offering Lopez several alternative jobs and that Lopez had not met his burden 

of showing the existence of a triable issue of material fact. We conclude the trial court 

erred because Defendants' evidence suggests a reasonable accommodation was possible

and they failed to engage in an appropriate interactive process.

As discussed above, a triable issue of fact exists as to whether Defendants could 

reasonably accommodate Lopez by eliminating the task of sanitizing equipment from 

Lopez's job duties. (Ante, pt. II.C.) This evidence creates an inference that Defendants 

failed to engage in an appropriate interactive process. Notably, Defendants presented no 

evidence showing they sought to keep Lopez in his current position by eliminating the 

task of sanitizing equipment from Lopez's job duties. Nor did they present evidence 

showing it was impossible to accommodate Lopez by eliminating the task of sanitizing 

equipment. Thus, the trial court erred in summarily adjudicating Lopez's claim for failing 

to engage in the interactive process.

E. Retaliation and Failure to Prevent Retaliation and Discrimination

It is unlawful for an employer to "discharge, expel, or otherwise discriminate 

against any person because the person has opposed any practices forbidden under this 

part or because the person has filed a complaint, testified, or assisted in any proceedings 
19

under this part." (§ 12940, subd. (h).) It is also unlawful for an employer to "fail to take 

all reasonable steps necessary to prevent discrimination and harassment from occurring."

(§ 12940, subd. (k).) A cause of action for failure to prevent retaliation may be stated 

under section 12940, subdivision (k). (Taylor v. City of Los Angeles Dept. of Water & 

Power (2006) 144 Cal.App.4th 1216, 1239-1240.)

Lopez's complaint contains causes of action for retaliation and failure to prevent 

retaliation and discrimination. Lopez alleged that Defendants retaliated against him 

based on his acts of seeking accommodation for his medical condition and complaining 

about broken glass. Retaliation claims, like discrimination claims, are subject to the 

three-stage burden-shifting test. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 

1042.)

"To establish a prima facie case of retaliation, a plaintiff must show that she 

engaged in protected activity, that she was thereafter subjected to adverse employment 

action by her employer, and there was a causal link between the two." (Fisher v.

San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 614 (Fisher).) The prima 

facie evidentiary burden is " 'not onerous.' " (Guz, supra, 24 Cal.4th at p. 355.) "The 

retaliatory motive is 'proved by showing that plaintiff engaged in protected activities, that 

his employer was aware of the protected activities, and that the adverse action followed 

within a relatively short time thereafter.' [Citation.] 'The causal link may be established 

by an inference derived from circumstantial evidence, "such as the employer's knowledge 

that the [employee] engaged in protected activities and the proximity in time between the 
20

protected action and allegedly retaliatory employment decision." ' " (Fisher, supra, at

pp. 614-615.)

Defendants challenged Lopez's prima facie showing of retaliation, arguing that a 

causal link did not exist between the protected activity and their action because there is 

no evidence that an adverse employment action was based on Lopez's medical condition 

or complaining about broken glass. The trial court summarily adjudicated the retaliation 

claim because Lopez failed to show that Defendants were motivated by a discriminatory 

reason or that their reason for termination was unworthy of credence. Because it found 

no discrimination or retaliation, the trial court concluded that Lopez's claim for failure to 

prevent retaliation and discrimination necessarily failed.

We conclude that Lopez made the minimal evidentiary showing necessary to 

sustain a prima facie case of retaliation. Defendants do not challenge that Lopez engaged 

in a protected activity (i.e., seeking an accommodation) and that he suffered an adverse 

employment action (i.e., lost his job). Defendants challenge whether Lopez met his 

prima facie burden of showing that a causal link existed between the two factors.

Significantly, "[a] plaintiff can satisfy his or her initial burden under the test by 

producing evidence of nothing more than the employer's knowledge that the employee 

engaged in protected activities and the proximity in time between the protected action 

and the allegedly retaliatory employment decision." (McRae v. Department of 

Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 388.) Here, admissible 

portions of Lopez's declaration show that on May 12, he obtained a doctor's note 
21

requesting accommodation for his work-related injury and disability. He gave the note to 

Motte on May 14, and was terminated on May 20.

Thus, the trial court erred in summarily adjudicating Lopez's retaliation claim. 

Additionally, because Lopez has stated actionable claims for discrimination and 

retaliation, his claim for failure to prevent discrimination and retaliation survives. (See 

Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)

F. Wrongful termination

A claim for wrongful termination in violation of public policy requires a plaintiff 

to prove (1) he was employed by the defendant, (2) the defendant discharged him, (3) a 

violation of public policy was a motivating reason for the discharge, and (4) the discharge 

caused him harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 

623, 641.) This claim, however, fails as a matter of law where the plaintiff is unable to 

establish a violation of an underlying statute or constitutional right. (See, e.g., Hobson v. 

Raychem Corp. (1999) 73 Cal.App.4th 614, 632.) Because Lopez's claims alleging 

various violations of the FEHA survived Defendants' motion, this claim survives as well. 

(Ante, pts. II.B-E.)

G. Violation of Labor Code section 132a

Labor Code section 132a prohibits employers from discriminating against 

employees "who are injured in the course and scope of their employment." Lopez alleged 

that Defendants retaliated and discriminated against him when he made it known that he 

intended to file a worker's compensation claim. Relying on City of Moorpark v. Superior 

Court (1998) 18 Cal.4th 1143 (Moorpark), Defendants sought summary adjudication of 
22

this claim on the ground it is improper to bring a claim for violation of Labor Code 

section 132a in civil court. The trial court agreed.

Moorpark provides that "the Workers Compensation Appeals Board [is] the 

exclusive forum" for claims brought under Labor Code section 132a. (Moorpark, supra, 

18 Cal.4th at p. 1156.) Lopez did not argue differently on appeal; rather, relying on 

Moorpark, he claimed that a Labor Code section 132a violation may be used as a public 

policy basis to bring a common law claim for wrongful termination.

Our high court in Moorpark held that Labor Code section 132a does not provide 

an exclusive remedy against disability discrimination and does not preclude an employee 

from pursuing remedies under the FEHA and common law wrongful termination 

remedies. (Moorpark, supra, 18 Cal.4th at p. 1158.) The Moorpark court, however, 

never addressed the precise issue whether a violation of Labor Code section 132a can 

form the basis of a common law action of wrongful termination in violation of public 

policy. Recently, another appellate court addressed this issue and concluded that a 

violation of Labor Code section 132a cannot be the basis of a tort action for wrongful 

termination. (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 

755.) Thus, to the extent Lopez asserts this claim is one for wrongful termination based 

on a violation of Labor Code section 132a, the claim fails. Thus, the trial court properly 

granted summary adjudication of this claim.

H. Unsafe Working Conditions

"Any employee who is discharged . . . by his or her employer because the 

employee has made a bona fide oral or written complaint to . . . his or her employer, . . .
23

of unsafe working conditions, or work practices, . . . shall be entitled to reinstatement and

reimbursement for lost wages and work benefits caused by the acts of the employer." 

(Lab. Code, § 6310, subd. (b).)

Lopez asserted a claim for retaliation for opposing unsafe working conditions in 

violation of Labor Code sections 6300, et seq. and 6400, et seq. Lopez alleged that he 

repeatedly complained to management about unsafe working conditions in the bottling 

department created by excessive broken glass. The trial court granted summary 

adjudication of this claim on the ground Lopez admitted that he never complained about 

excess broken glass. During his deposition, Lopez testified that he believed broken glass 

in the bottle operation constituted a safety issue, but admitted that he never complained 

about the problem. The admissible portions of Lopez's declaration also fail to show he 

complained about the problem; accordingly, his claim for retaliation for opposing unsafe 

working conditions necessarily fails.
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DISPOSITION

The judgment is reversed and the matter is remanded to the trial court for further 

proceedings consistent with this opinion. The trial court is directed to vacate its order 

granting Defendants' summary judgment and to enter a new and different order (1) 

denying Defendants' motion for summary judgment, (2) denying Defendants' motion for 

summary adjudication of Lopez's causes of action for disability discrimination, 

retaliation, failure to prevent retaliation and discrimination, failure to accommodate,

failure to engage in interactive process and wrongful termination, and (3) granting 

Defendants' motion for summary adjudication of Lopez's causes of action for violation of 

Labor Code section 132a and unsafe working conditions. Plaintiff is entitled to his costs 

on appeal.

MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.