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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Appellant,

v.

RAYPAK, INC.,

 Defendant and Respondent.

2d Civ. No. B313912

(Super. Ct. No. 56-2018-

00519590-CU-WT-VTA)

(Ventura County)

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, 
2

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

1 In the trial court, Raypak successfully defeated Vaca’s 

motion for judicial notice of his workers’ compensation action. 
3

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.
4

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.)
5

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 
6

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 
7

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 

2 All further statutory references are to the Government 

Code unless stated otherwise.
8

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 
9

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.
10

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.