1

Filed 8/27/20 Brown v. City of Oakland CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

KEVIN BROWN,

Plaintiff and Appellant,

v.

CITY OF OAKLAND,

Defendant and Respondent.

 A157706

 (Alameda County

 Super. Ct. No. RG17883799)

After plaintiff and appellant Kevin Brown injured his knee at his job

with respondent the City of Oakland (the City), he was placed on leave and 

eventually given permanent medical restrictions by his doctor. The City 

conducted a six-month interactive process with Brown to attempt to return 

him to work, considering him for several vacant positions but ultimately 

finding none of them suitable. The trial court granted summary judgment to 

the City on Brown’s claims for failure to accommodate and failure to engage 

in the interactive process under the Fair Employment and Housing Act 

(FEHA) (Govt. Code, §§ 12940 et seq.)1, and then denied his motion for leave 

to amend his complaint. We affirm. 

1 Further undesignated statutory references are to the Government 

Code. 
2

FACTUAL AND PROCEDURAL BACKGROUND2

Brown’s Injury and Medical Evaluations

In 2012, Brown was a Sewer Maintenance Leader employed by the 

City. 

On June 6, 2012, Brown injured his left knee at work while climbing 

over a downed fence. He was placed on light duty until he had surgery on his 

knee that November. After the surgery, Brown returned to work on light 

duty, but his condition did not improve, and he had a second surgery

performed in November of 2013. He was then placed on unpaid 

administrative leave. 

In June of 2014, Brown was examined by Dr. Peter Mandell. After that 

examination, Dr. Mandell prepared a nine-page report in which he wrote that 

“Mr. Brown’s condition is permanent, stationary, and ratable as of now.” He 

also wrote: “Mr. Brown describes his job as heavy and physical. In all 

probability, he will not be able to return to that type of work. He is limited to 

sedentary work.” 

On August 20, the City wrote to Dr. Mandell, enclosing a description of 

the Sewer Maintenance Leader position and asking whether there was “any 

possibility” that Brown could return to work in that position. Dr. Mandell 

responded: “You ask whether there is ‘ . . . any possibility . . . ’ that Mr. 

Brown can go back to the job described in the enclosure. My answer is there 

is a small possibility that he can do that. One can read this document to 

focus on the supervisorial aspect of the position. If Mr. Brown can do the 

paperwork of the job, the driving around of crews of the job, the supervising 

2 The factual background is drawn from Brown’s response to the City’s 

statement of undisputed material facts, the City’s response to Brown’s 

separate statement of undisputed material facts, and the various documents 

in the record, and is undisputed, except where noted. 
3

of the crews (with the ability to stand or sit at will throughout the workday), 

the operation of closed circuit television cameras for inspection of sewer 

systems, and the use of such things as gas detectors with the approval of his 

employer, then he probably could do that kind of work. As the parties can see 

from page 3 of my report, he should not do work which requires running, 

squatting, or kneeling. He should not do work which requires walking 

around for more than about 20 minutes or so before he can sit down and rest 

for maybe 15 minutes and then get up and walk around again.” 

On August 26, Brown was seen by his primary treating physician, Dr. 

David Contreras. Dr. Contreras wrote to the City that Brown was 

“complaining of ongoing bilateral knee pain and stiffness, which varies in 

intensity depending on his activity level.” He also wrote: “I do agree with the 

evaluation by Dr. Peter Mandell with regard to apportionment and disability. 

I do feel that Kevin has reached the point of maximum medical improvement 

and would consider him permanent and stationary as of today 8/26/14.” 

The Six-Month Interactive Process

Brown contends that his case was essentially ignored over the next 

year. He repeatedly contacted Worker’s Compensation Manager Mary 

Costello, who eventually referred him to Disability Benefits Coordinator 

Annie Chin, for whom he left numerous voicemails. Brown spoke with 

Disability Benefits Coordinator Mary Baptiste in March of 2015. 

Annie Chin spoke with Brown on the phone on September 11, 2015, 

and the City sent him a letter notifying him that an interactive process 

meeting had been scheduled for September 25. The meeting was rescheduled 

for October 19, and ended prematurely on that date. 

A second interactive process meeting took place on December 11. In 

attendance were Brown, his union representative, Chin, and other City 
4

employees. According to a detailed ten-page written summary3 of that 

meeting:

“Kevin indicated there was a lot on the Leader position that he cannot 

do. Reggie [another Sewer Maintenance Leader] described that the leader on 

the crew has to do all the same functions as the workers. Mr. Sommers 

[Brown’s union representative] indicated since Mr. Brown can’t squat, or 

kneel that makes sense to him that (since he believes that Mr. Brown will not 

be able to do the job) that we move past accommodation in the job of the 

Sewer Maintenance Leader to the alternate job search. Annie noted wanting 

Kevin to be comfortable with this dialogue plan prior to avoiding the 

accommodation discussion of the Sewer Maintenance Leader. Annie noted 

that Kevin had made similar requests during interactive calls with Annie in 

Sept. As Kevin began to express his seeming comfort with that plan, Dwight 

[another Sewer Maintenance Leader] asked to consider other options. 

[¶] . . . [¶]” 

“Mr. Sommers asked if we could simply move forward to the alternate 

job search. Kevin indicated that he was comfortable with moving forward to 

the alternate job search because he was tired of discussing accommodation 

for the Sewer Maintenance Leader.” 

3 On the second page, the summary provided: “The parties were 

verbally notified that this facilitator would take notes as the parties talked 

today. These notes would be printed immediately at the conclusion of the 

meeting and passed out. The parties will all stay at the meeting table and 

individually review their own copy of the drafted notes. Each person will be 

able to make any changes or additions that they feel are needed to correct, 

clarify or add to the discussion. Once all persons have shared all of their 

changes and additions to the notes, a final draft of the notes will be passed 

out and the parties will be asked to review the final draft and sign the 

document if it accurately represents the discussion that occurred and their 

individual statements.” 
5

“The following sections of the report which were originally intended for 

the accommodation discussion have remained to document the impact of Mr.

Brown’s accommodations on the essential job functions of the Sewer 

Maintenance Leader. As noted above, Mr. Brown and Mr. Sommers both 

requested we not discuss them in great detail since they believed already that

Kevin is medically precluded from some essential job functions of the Sewer 

Maintenance Leader position. [¶] . . . [¶]” 

“The parties discussed modified work and it was agreed that based on 

the work restrictions, Mr. Brown could not be accommodated back into his 

position as a(n) Sewer Maintenance Leader as the physical demands of the 

job could not be minimized with accommodations and that he would need to 

perform the activities restricted.” 

A six-month search for an alternative position officially began in 

December 2015. Each week, Brown was sent by email and mail listings of all 

job openings with the City. 

Brown expressed interest during the alternative job search in several 

available positions, including Public Works Maintenance Worker, Street 

Maintenance Leader, a Yard Work Support assignment, and Street Sweeper 

Operator. 

Public Works Maintenance Worker and Street Maintenance 

Leader

The first position in which Brown expressed interest was that of Public 

Works Maintenance Worker, a position that “performs a variety of 

maintenance duties in street and traffic maintenance and construction, 

sanitation and weed abatement.” 

The “Essential Function Job Analysis” for the position indicates that it 

encompasses four assignments, and that “all assignments are considered 

essential and requirements of the position”: “Vegetation Management,” 
6

where an employee “[c]uts and removes vegetation over-growth within 

Oakland, including maintaining pedestrian pathways, City owned lots, 

medians, roadsides and other related sites,” “Removal of Illegal Dumping,” 

where an employee “[r]emoves illegally dumped items within the City of 

Oakland, including appliances, water heaters, refrigerators, furniture, sand, 

concrete rubble, shopping carts, household garbage and other related items. 

Depending on the object, the employee loads items with the assistance of a 

co-worker or mechanical assistance,” “Maintenance of Litter Containers,” in 

which an employee “[m]aintains litter containers located throughout the City 

of Oakland, including using a variety of basic tools to repair doors, hinges 

and other related parts; this activity is performed approximately 50% of the 

time, the remainder is spent removing illegally dumped objects/garbage,” and 

“Downtown Crew/Roving,” which “[c]leans Downtown Oakland, including 

sidewalks, plazas and other related areas, installs litter containers, and 

services transit hubs within the city.” 

According to the declaration of Frank Foster, an Operations Manager 

for the City, the job duties of a Public Works Maintenance Worker “generally 

consist of heavy manual labor on a daily basis, including frequent bending,

squatting, stooping, walking, standing, and climbing. Lifting and carrying 

heavy items is very frequent. It is very physical work. This is true of all 

Workers in the illegal dumping, graffiti abatement and vegetation 

management, and special events sections.” 

Street Maintenance Leaders are Public Works Maintenance Workers 

who “act in a lead capacity over field crews.” Again, according to Foster: 

“The duties and tasks of a Street Maintenance Leader include all the tasks 

and duties of a Public Works Maintenance Worker described above. In 

addition, a Street Maintenance Leader must manage and supervise the crew 
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he is working with on that day. Street Maintenance Leaders also drive the 

trucks that their crews travel in to and from the work site, and are required 

to maintain a Class B license as a condition for the job. The Leader acts as 

an on-site foreman of his crew, but performs all of the same physical tasks 

that a Public Works Maintenance Worker performs, including frequent 

bending, squatting, stooping, walking, standing, climbing, and carrying 

heavy items, all on a daily basis.” 

Yard Work Support Assignment

Brown also expressed interest in a Yard Work Support assignment. 

According to the declaration of Johnny Nicks, a supervisor in the Sewers 

Division: “The people in this assignment manage the inventory of tools,

equipment and supplies used by Sewers employees, at the yard. This 

assignment is generally performed by experienced Sewer Maintenance 

Leaders, and occasionally by Sewer Maintenance Workers. This assignment

is also very physical, requiring lifting and moving pipes, bags of asphalt, 

large hoses, sheets of plywood, tools, and other equipment. The employees in 

this assignment are required to take tools and supplies to locations 

throughout the City where work is being performed and unload those tools 

and supplies from trucks, and reload items back onto trucks. The assignment 

requires significant amounts of standing and walking, climbing in and out of 

trucks, and bending and squatting to lift items, all on a daily basis.

“The ‘Yard Dog’ assignment has never been a position. It is an

assignment that is filled by Sewer Maintenance Leaders and Workers.

“Every Sewer Maintenance Leader or Worker who performs the ‘Yard 

Dog’ assignment must be able to perform all the duties of his position.

Employees in the ‘Yard Dog’ assignment are called out on emergencies. This 

typically happens at least once a month, and usually several times a month. 
8

When called out on an emergency, that Leader or Worker is required to 

perform the usual duties described in paragraph 4 [describing the duties of 

Sewer Maintenance Leader] above. If the employee in the ‘Yard Dog’

assignment is a Sewer Maintenance Leader, that employee must have a valid 

Class B license, and meet all the other requirements of the Leader position. 

If an employee is physically unable to perform all the duties of his position as 

a Sewer Maintenance Leader, that employee cannot and would not be 

permitted to perform the ‘Yard Dog’ assignment.” 

Street Sweeper Operator

Brown also expressed interest in a Street Sweeper Operator position. 

According to the “Class Specification” for the position, the duties include 

“[o]perat[ing] street sweepers exceeding 26,000 lbs. gross vehicle weight 

rating and related equipment to sweep streets and gutters on assigned 

routes; sweep parking lots, courtyards and freeway underpasses,” and 

“[t]ransport trash to dumps; clear debris from right-of-way; clean storm 

drains and inlets.” Qualifications include the ability to “[p]erform manual 

labor.” According to the “Work Task Analysis” for the position, employees 

have to lift and carry “a 35 lb. bucket of Absorb-All for hydraulic fluid” and 

various weights of debris from roadways. 

According to the declaration of Frank Foster, “[a]n Operator must be 

able to climb up and down several steps to enter and exit the vehicle multiple 

times during a shift. Operators must also bend or squat to lift and carry 

heavy buckets of cleaning fluids and to carry and use tools for cleaning on a 

daily basis.” The position of Street Sweeper Operator also requires a Class B 

license. 
9

Office Assistant II 

Somewhere along the way, Annie Chin proposed that Brown apply for 

an Office Assistant II position, a proposal he considered a “slap in the face.” 

He did not apply for the position. 

End of the Interactive Process, Equipment Parts Technician 

Position, and Brown’s Rehiring

The six-month alternative job search ended on June 13, 2016. Brown 

was given notice of the City’s intent to medically separate him from 

employment on September 22, 2016, a decision that Brown and his union 

appealed.

On October 13, the day after the appeal hearing, Brown expressed 

interest in the position of Equipment Parts Technician position. 

According to Joseph Williams, Interim Equipment Services Manager 

for the City: “The duties of an Equipment Parts Technician focus on 

management of inventory for the automobiles and heavy equipment utilized 

by the Department of Public Works, as well as for the City’s fire suppression 

vehicles. The position involves constant standing and walking, and frequent 

lifting of heavy items in excess of 50 pounds. Some of the work is performed 

by operating a forklift, which requires stepping in and out of the lift multiple 

times per day. Occasionally the Technician must climb small ladders, push 

and pull carts, and squat and crouch when lifting items or to locate parts 

kept closer to the ground. The Department’s fleet of vehicles and heavy 

machinery is large and lifting, walking, and standing are constant during the 

workday.” 

The job description gives as examples of duties “Operate a forklift and 

other storeroom equipment” and “Lift heavy materials and supplies.” It 

requires the ability to “Lift and move heavy items, up to 50 lbs. in a safe 

manner,” “Perform heavy manual work in lifting and moving stock,” and 
10

“Operate a forklift and related material handling equipment.” Essential 

functions include stooping, kneeling, crouching, climbing, and reaching. 

The City sent a supplemental questionnaire to Dr. Contreras regarding 

the position. In a chart note dated October 24, Dr. Contreras wrote: “I have 

reviewed the requirements for the equipment parts technician. I feel that for 

the most part Kevin will be able to perform these duties. He will require 

permanent restrictions, which previously have been outlined which include 

no running, no squatting, limited kneeling and limited walking.” Dr. 

Contreras also filled out the questionnaire from the City, finding that Brown 

could kneel for one minute before requiring a break from kneeling for 10 

minutes, for a total of 6 minutes per hour and 20 minutes per day. He also 

found that Brown could walk or stand for 20 minutes at a time before 

requiring a break for 15 minutes, and that he could walk or stand for 40 

minutes per hour and 300 minutes per day. The City subsequently told 

Brown that he could not qualify for the Equipment Parts Technician role.

Brown’s medical separation was eventually upheld on appeal, and he 

was separated from employment effective December 28. 

On June 1, 2017, a meeting was held in order to restart Brown’s 

interactive process and explore returning him to work. Later that month, Dr. 

Contreras completed another questionnaire regarding Brown’s permanent 

work restrictions. Now, Dr. Contreras found that instead of no squatting, 

Brown could squat for 30 minutes per hour; had no restriction on kneeling; 

and could stand or walk for a total of 45 minutes per hour. 

On July 13, Dr. Contreras wrote that Brown “is able to return to work 

7.13.17 without restriction.” At another interactive process meeting held the 

next day, the City agreed to rehire Brown as a Sewer Maintenance Worker 

effective July 31. Brown’s Class B license, a requirement for his former 
11

position of Sewer Maintenance Leader, had expired, and thus he was not 

minimally qualified for that position. 

This Action

On November 17, 2017, Brown filed the complaint in this action 

asserting four causes of action under the FEHA: (1) disability discrimination; 

(2) failure to engage in the interactive process; (3) failure to accommodate; 

and (4) retaliation. 

On February 4, 2019, Brown dismissed the disability discrimination 

and retaliation causes of action without prejudice.

On February 15, the City moved for summary judgment, or 

alternatively summary adjudication, on Brown’s remaining claims. Brown 

filed opposition on April 9, and the motion was set for hearing on April 23.

On April 22, Brown sought leave to file a first amended complaint, to 

assert a new cause of action for disability discrimination under section 12940, 

subdivision (a), alleging that the City “refused to engage in a good faith 

interactive process and accommodate Plaintiff because of its 100 healed [sic] 

policy.” Brown asserted that he had discovered the alleged 100-percent 

healed policy “less than 2 months ago,” including in depositions that took 

place on February 28 and March 8. 

Brown’s proposed first amended complaint also sought to add language 

indicating he was “regarded and treated as being disabled” by the City to the 

allegation that he had a qualifying disability in his two existing causes of 

action, because the City had for the first time in its motion for summary 

judgment “raise[d] the defense that Plaintiff was not disabled.” 

On May 14, the trial court granted the City’s motion for summary 

judgment, finding that there was no issue of material fact as to whether there

were vacant positions with the City that Brown could perform with or 
12

without accommodation, and that Brown’s failure to engage claim failed 

because he did not identify any reasonable accommodation that the City 

could have provided. 

Two days later, the trial court heard Brown’s motion for leave to amend 

the complaint. On May 24, the court denied the motion, finding that 

reinserting a claim for disability discrimination would prejudice the City

because discovery had already closed and the deadline for dispositive motions 

had passed. 

Judgment in favor of the City was entered on May 29. Brown appeals

both the judgment and the order denying him leave to amend.

DISCUSSION

Brown raises three arguments: (1) there was a triable issue of fact as 

to whether there were vacancies available that he could perform with or 

without accommodation; (2) his failure to engage claim did not require him to 

identify a reasonable accommodation that the City should have provided; and 

(3) he should have been granted leave to amend his complaint. 

Applicable Law and the Trial Court’s Ruling

The FEHA makes it unlawful “[f]or an employer . . . to fail to make [a] 

reasonable accommodation for the known physical or mental disability of 

an . . . employee,” unless the employer demonstrates such accommodation 

would cause an “undue hardship.” (§ 12940, subd. (m)(1).) “There are three

elements to a failure to accommodate action: ‘(1) the plaintiff has a disability 

covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she 

can perform the essential functions of the position); and (3) the employer 

failed to reasonably accommodate the plaintiff’s disability. [Citation.]’ ” 

(Hernandez v. Rancho Santiago Cmty. Coll. Dist. (2018) 22 Cal.App.5th 1187, 

1193–1194.) The employee has the burden of proof to show that a reasonable 
13

accommodation could have been made. (Nadaf–Rahrov v. Neiman Marcus 

Group, Inc. (2008) 166 Cal.App.4th 952, 976–978 (Nadaf–Rahrov).) 

“[A]ssuming the employee is disabled, the employer cannot prevail on 

summary judgment on a claim of failure to reasonably accommodate unless it 

establishes through undisputed facts that (1) reasonable accommodation was 

offered and refused; [or] (2) there simply was no vacant position within the 

employer’s organization for which the disabled employee was qualified and 

which the disabled employee was capable of performing with or without 

accommodation; or (3) the employer did everything in its power to find a 

reasonable accommodation, but the informal interactive process broke down 

because the employee failed to engage in discussions in good faith.” 

(Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen).)

With respect to Brown’s failure to accommodate claim, the trial court 

concluded:

“At oral argument, Defendant focused its discussion on Jensen’s second

prong, arguing there was no evidence in the record of any position Plaintiff 

was qualified for that he could have performed, with or without 

accommodation.

“There is some evidence, presented by Defendant, that this is, in fact, 

not entirely true. Defendant did ask Plaintiff to consider working as an 

Office Assistant II and Defendant also sent Plaintiff lists of open positions 

weekly for several months. (Def.’s Sep. St., UMF 16, 18.) However, Plaintiff 

refused the Office Assistant II position, and, at oral argument, Plaintiff’s 

counsel confirmed that Plaintiff did not consider the Office Assistant II 

position to be a reasonable accommodation. Since neither party considers the 

Office Assistant II position relevant to the Court’s analysis here, the Court 

disregards it. As for the weekly job lists, it is not possible to know whether 
14

Plaintiff was qualified for or capable of performing any of those jobs without

individualized analyses of each of those positions. However, individualized

analyses of each position were not performed for every position, but for those 

positions that were individually analyzed, for each of them, Defendant has 

presented credible evidence that Plaintiff’s physical limitations, confirmed by 

Plaintiff’s doctors, prevented him from performing those jobs with or without 

accommodation. (Def.’s Sep. St., UMF 6, 7, 9, 17, 19–21, 24–26.)

“To rebut this, Plaintiff has presented his own deposition testimony,

which contradicts the directives of his doctors. (See Pltf.’s Sep. St., AUMF 26, 

27; but see Def.’s Sep. St., UMF 15 [stating that at an interactive process

meeting Plaintiff agreed he could not perform the essential functions of his 

job].) Despite this contradictory testimony from Plaintiff, Defendant is and

was permitted to rely on the medical reports from Plaintiff’s doctors. (See 

Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 227–229.) Plaintiff

also submitted video footage of Defendant’s workers performing daily duties, 

(see Pltf.’s Sep. St., AUMF 60–64), but the limited time period covered by the 

video does not allow it to be probative of the duties those workers would 

actually perform on a periodic basis, and it does not speak to whether vacant 

positions existed that Plaintiff could physically perform.

“Accordingly, no material facts exist that vacant positions existed for 

which Plaintiff could perform. The only substantial evidence presented on the 

issue tends to indicate Plaintiff could not perform any vacant position that 

Defendant had available during the applicable time period. Accordingly, 

Plaintiff’s cause of action for failure to accommodate cannot survive the 

second prong of Jensen. As such, no triable issue of material fact exists in 

regards to the cause of action and the cause of action fails.” 
15

Standard of Review

A court shall grant a motion for summary judgment “if 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).) As the party moving for summary judgment, the 

employer in a FEHA action has the burden of establishing either (1) one or 

more elements of the employee’s cause of action cannot be established, or 

(2) a complete affirmative defense to the cause of action exists. (Code Civ. 

Proc., § 437c, subds. (o )(1), (2), (p)(2).) To demonstrate the elements of a 

cause of action cannot be established, the employer may show the employee 

does not possess evidence needed to support a prima facie case and also 

cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, 

present evidence conclusively negating an element of the cause of action. 

(Ibid.) Once the employer has met its initial burden, the burden shifts to the 

employee to produce evidence showing a triable issue of material fact. (Code 

Civ. Proc., § 437c, subd. (p)(2).)

“On appeal from summary judgment, we review the record de novo and 

must independently determine whether triable issues of material fact exist. 

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve any evidentiary doubts 

or ambiguities in favor of the party opposing summary judgment. (Saelzler v. 

Advanced Group 400, supra, at p. 768.)” (Nealy v. City of Santa Monica

(2015) 234 Cal.App.4th 359, 370–371 (Nealy).)

“On review of a summary judgment, the appellant has the burden of 

showing error, even if he did not bear the burden in the trial court.” 

(Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 
16

224, 230 (Claudio).) “ ‘[D]e novo review does not obligate us to cull the record 

for the benefit of the appellant in order to attempt to uncover the requisite 

triable issues. As with an appeal from any judgment, it is the appellant’s 

responsibility to affirmatively demonstrate error and, therefore, to point out 

the triable issues the appellant claims are present by citation to the record 

and any supporting authority. In other words, review is limited to issues 

which have been adequately raised and briefed.’ ” (Ibid., quoting Lewis v. 

County of Sacramento (2001) 93 Cal.App.4th 107, 116.)

Brown Has Failed to Identify a Triable Issue of Fact as to 

Whether There Were Vacant Positions He Could Perform

Brown makes two arguments why summary judgment should not have 

been granted to the City on his failure to accommodate claim: (1) the City 

maintains a “100-percent healed” policy which is a per se violation of section 

12940, subdivision (m); and (2) the trial court erred by considering only the 

positions analyzed by the City, “excluded” evidence that Brown could have 

performed certain available positions, and should not have deferred to the 

opinions of Brown’s doctors. 

The City Did Not Apply a 100-percent Healed Policy to Brown

Brown argues that the City maintained a “100% healed policy,” 

requiring employees to be 100 percent healed before returning to work, in 

violation of the FEHA. (See Gelfo v. Lockheed Martin Corp. (2006) 

140 Cal.App.4th 34, 49, fn. 11 (Gelfo) [suggesting such a policy is a per se 

FEHA violation].) In support of this allegation, he cites certain deposition 

testimony of Johnny Nicks, a supervisor in the Sewers Division, regarding 

other workers in his division who were placed on light duty because of 

temporary injuries, and regarding Brown’s duties in the division after he 

returned to work in 2017. Nicks testified, for example, that “you need to be 

at 100 percent to come back because of the strenuous work that you’re doing 
17

out there,” that “I’m pretty sure it’s City policy to come back at 100 percent,”

and that he made “mention to [Brown] that being back in the sewer

department you know, you need to be back at full capacity at 100 percent. I 

let him know that a couple of different times [after he returned to work in 

2017].” 

But whatever Nicks’ understanding of the City’s policy was, it was 

irrelevant. Nicks was not involved in Brown’s interactive process, and 

although the full context of his statements is not always clear, certain of 

them appear to concern Brown’s return to work—without medical 

restrictions—once that process was long since completed. Mary Baptiste, a 

Disability Benefits Coordinator for the City, testified that the interactive 

process began after the employee’s restrictions became permanent. And most 

importantly, it was undisputed that the City engaged in a six-month 

interactive job process with Brown, sent him listings of available vacancies, 

and considered him for several vacant positions. Brown may dispute the 

adequacy of this process, but it is undisputed that it took place. 

Brown’s Other Arguments Challenge the Trial Court’s 

Rationale, Not Its Ruling

Brown’s second argument focuses on the following passage from the 

trial court’s written ruling: 

“As for the weekly job lists, it is not possible to know whether Plaintiff

was qualified for or capable of performing any of those jobs without 

individualized analyses of each of those positions. However, individualized 

analyses of each position were not performed for every position, but for those 

positions that were individually analyzed, for each of them, Defendant has 

presented credible evidence that Plaintiff’s physical limitations, confirmed by

Plaintiff’s doctors, prevented him from performing those jobs with or without 

accommodation.” 
18

Brown asserts this manifests three errors: (1) the court erred by 

“limiting its ‘no vacancy’ analysis to those vacancies the City alone chose to 

consider,” (2) the court did not explain what positions it considered nor the 

evidence that it found supported the City’s position, and (3) the court erred in 

“deferring” to the opinion of Brown’s doctors despite his contradictory 

testimony, the last argument relying on Gelfo, supra, 140 Cal.App.4th at 

p. 49, fn. 11: “ ‘[A]n employer cannot slavishly defer to a physician’s opinion

without first pausing to assess the objective reasonableness of the physician’s 

conclusions.’ ”

These arguments fail, primarily because on appeal from summary 

judgment, we review “the [trial] court’s ruling, not its rationale. Kids’

Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.” (Prop. California 

SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1161.) 

The first argument also appears to misread the trial court’s 

opinion—not to mention the record on summary judgment. The trial court 

did not explain which positions it was referring to, but the City’s statement of 

undisputed material facts discusses several positions in detail, each 

time—with the exception of the Office Assistant II position—indicating that 

the City analyzed them because Brown himself “expressed interest” in them

during the interactive process. The trial court did not, as Brown suggests,

“allow[] the City to cherry-pick which jobs to analyze.” 

Brown’s second argument asserts that the ruling “omits essential 

considerations,” and fails to explain what positions the City considered or 

what “credible evidence” the trial court found supported the City’s argument. 

Again, these arguments fail as challenges to the trial court’s rationale. 

Brown also asserts that “the record is replete with evidence challenging 

the sufficiency of the City’s accommodation efforts,” going on to make 
19

scattershot reference to numerous paragraphs of the City’s separate 

statement of material facts and his response. To take one example, Brown 

points to a dispute about whether Brown admitted that he could not perform 

the essential functions of a Sewer Maintenance Leader, or simply agreed to 

move on to a search for alternative positions because “he was tired” of the 

process. But what does this have to do with whether Brown could, in fact, 

perform those essential functions, with or without accommodation? 

Similarly, Brown alleges that the City initially determined that he met the 

minimum qualifications for the Equipment Parts Technician position, only to 

later change its position. But he does not actually describe or discuss the 

essential functions of the position, nor does he explain why there was a 

triable issue of fact as to whether he could perform them. In short, Brown 

has not carried his burden to “affirmatively demonstrate error.” (Claudio, 

supra, 134 Cal.App.4th at p. 230.) 

Finally, to the extent Brown argues that the trial court deferred to the 

medical records—that the City “slavishly deferred” to his doctor’s 

opinion—we disagree. Gelfo, supra, 140 Cal.App.4th 34 is distinguishable. 

There,“[t]he reports on which [the employer] premised its refusal to hire were 

based, not on an individualized assessment or testing, but on the workers’

compensation doctors’ cursory, generalized opinions about prophylactic 

measures aimed at avoiding potential injuries to someone with a back injury 

like Gelfo’s, which might occur by one performing the functions of fabricator.” 

(Id. at p. 49, fn. 11.) 

Here, by contrast, Dr. Mandell’s evaluation was based on 

individualized assessment and testing—indeed, an evaluation with which 

Brown’s treating physician agreed. Perhaps even more to the point, at the 

time of Brown’s interactive process, he apparently did not even dispute that 
20

he was restricted from squatting or kneeling and he certainly has not 

identified any facts or evidence before the City at that time calling into 

question the “objective reasonableness” of Dr. Mandell’s restrictions. (Gelfo, 

supra, 140 Cal.App.4th at p. 49, fn. 11.) Moreover, according to the notes of

the initial interactive process meeting, both Brown and his union 

representative “requested we not discuss [the essential functions of the Sewer 

Maintenance Leader position] in great detail since they believed already that 

Kevin is medically precluded from some essential job functions of the Sewer 

Maintenance Leader position.” In short, there is nothing in the record to 

indicate that the City “slavishly deferred” to Dr. Mandell’s restrictions

despite their being objectively unreasonable. Brown has failed to 

demonstrate that the trial court erred in granting summary judgment to the 

City on his failure to accommodate claim. 

Brown’s Failure to Engage in the Interactive Process Claim 

Fails Because He Has Not Identified Any Accommodation the 

City Should Have Provided

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 condition.” (§ 12940, 

subd. (n).)

The trial court concluded that Brown’s failure to engage in the 

interactive process claim under section 12940, subdivision (n) failed because 

he never identified any reasonable accommodation the City should have 

provided, relying on Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984 and 

Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1015–1019 

(Scotch). We agree. 
21

Brown argues at length that he need not identify a reasonable 

accommodation in order to prevail on his interactive process claim, relying on 

the statutory text, the legislative history, and the legislative purpose. 

However, he acknowledges that in Nadaf–Rahrov, Division Five of this court 

conducted a lengthy and thoughtful analysis of the statute and its purpose, 

concluding that “the availability of a reasonable accommodation (i.e., a 

modification or adjustment to the workplace that enables an employee to 

perform the essential functions of the position held or desired) is necessary to 

a section 12940[, subdivision] (n) claim” and that “the burden of proving the 

availability of a reasonable accommodation rests on the employee.” 

(Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984.) And at least one other 

case has analyzed the issue and likewise concluded that the employee must 

identify a reasonable accommodation to prevail on an interactive process 

claim: Scotch, supra, 173 Cal.App.4th at pp. 1015–1019. (See also Nealy, 

supra, 234 Cal.App.4th at pp. 379–380 [rejecting interactive process claim 

based on Nadaf–Rahrov and Scotch].) 

Brown claims that there is a split of authority on this question, a claim

based on two cases, the first of which is Claudio, supra, 134 Cal.App.4th at 

p. 242. There, after the plaintiff became disabled, the defendant employer 

“checked plaintiff’s resume against available positions at the University, 

concluded none was available that matched plaintiff’s job skills, and effected 

plaintiff’s termination from employment.” (Id. at p. 228.) Claudio claimed he 

had been terminated in violation of the public policy in the FEHA, a claim 

that the parties treated as an interactive process claim under section 12940, 

subdivision (n). (Id. at pp. 230, 243.) The Court of Appeal reversed the trial 

court’s grant of summary judgment, holding that “since we conclude a triable 

issue exists concerning failure by the [employer] to participate in the 
22

interactive process, the judgment cannot be affirmed on the ground that no 

alternate jobs were available.” (Id. at p. 248.) Because the employer 

completely failed to participate in the interactive process, “it cannot be 

known whether an alternate job would have been found.” (Id. at p. 245.) The 

Court of Appeal continued:

“The [employer] assert[s] plaintiff was totally disabled and therefore 

the only accommodation that could have been at issue, if plaintiff had 

participated in the interactive process, was an unlimited extension of his 

leave of absence. However, as is apparent from our recitation of the record, it 

is not at all clear that this is true. At a minimum, it appears plaintiff may 

have been physically able to handle clerical positions. Thus, this is not a case 

(at least not yet) where it can be said an interactive process would have been 

futile. (Cf. Swonke v. Sprint, Inc. (2004) 327 F.Supp.2d 1128, 1137 

[interactive process would have been futile because plaintiff was totally 

disabled from any employment].)” (Claudio, supra, 134 Cal.App.4th at 

p. 249.) That is not the situation here.

The other case on which Brown relies is Wysinger v. Automobile Club of 

Southern California (2007) 157 Cal.App.4th 413 (Wysinger). There, the jury 

found for the employer on a claim for failure to accommodate under section 

12940, subdivision (m), but against the employer on a claim for failure to 

engage in the interactive process under section 12940, subdivision (n). 

(Wysinger, supra, 157 Cal.App.4th at p. 424.) Wysinger rejected the 

employer’s argument that the resulting verdict was internally inconsistent,

holding as follows:

“Here the verdicts on the reasonable accommodation issue and the 

interactive process claim are not inconsistent. They involve separate causes 

of action and proof of different facts. Under FEHA, an employer must engage 
23

in a good faith interactive process with the disabled employee to explore the 

alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); 

Claudio[, supra,] 134 Cal.App.4th [at p.] 242 [employer may not fail to engage 

in a timely, good faith interactive process to determine effective reasonable 

accommodations].) ‘An employee may file a civil action based on the 

employer’s failure to engage in the interactive process.’ (Claudio, supra, at p. 

243.) Failure to engage in this process is a separate FEHA violation 

independent from an employer’s failure to provide a reasonable disability 

accommodation, which is also a FEHA violation. (Gov. Code, § 12940, 

subd. (m); Gelfo[, supra,] 140 Cal.App.4th [at p.] 61; Claudio, supra, at p. 242 

[employer may not fail to make a reasonable accommodation].) An employer 

may claim there was no available reasonable accommodation. But if it did 

not engage in a good faith interactive process, ‘it cannot be known whether an 

alternative job would have been found.’ (Claudio, supra, at p. 245.) The 

interactive process determines which accommodation is required. (Ibid.; 

Jensen[, supra,] 85 Cal.App.4th [at p.] 263, fn. 7.) Indeed, the interactive 

process could reveal solutions that neither party envisioned.

“Here the jury could find there was no failure to provide a required 

accommodation because the parties never reached the stage of deciding which 

accommodation was required. ACSC prevented this from happening by its 

refusal to engage in the interactive process.” (Wysinger, supra, at 

pp. 424–425.) 

Brown argues there is a split of authority between Claudio and 

Wysinger on one hand and Nadaf-Rahrov and Scotch on the other, but this is 

somewhat of an overstatement. As noted, Claudio’s facts are distinguishable,

and Wysinger considered whether a jury verdict was inconsistent, not the 

issue squarely analyzed and addressed in Nadaf-Rahrov and Scotch: 
24

whether a plaintiff must identify a reasonable accommodation to defeat 

summary judgment on a claim of failure to engage in the interactive process. 

And we are unable to find any California cases citing Wysinger or Claudio for 

the proposition that the plaintiff need not do so. 

The Court of Appeal in Scotch reconciled Nadaf-Rahrov, Claudio, and 

Wysinger in a lengthy explanation, an explanation with which we agree: 

“Wysinger, Nadaf–Rahrov, and Claudio are not entirely inconsistent 

and can be reconciled. All three cases recognize the employee does not have 

the same access to information as the employer and therefore the interactive 

process is important in determining what accommodations are available. The 

Nadaf–Rahrov court pointed out that Wysinger did not explain the 

appropriate remedy for failure to engage in the interactive process ‘in the 

absence of a failure to accommodate’ under section 12940, subdivision (m). 

(Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 983, fn. 13.) The Wysinger

panel did not have to explain the remedy because it was reviewing a jury 

verdict finding the employer liable for retaliation against the employee for 

filing an age discrimination claim. (Nadaf–Rahrov, supra, at p. 983, fn. 13.)

“We synthesize Wysinger, Nadaf–Rahrov, and Claudio with our 

analysis of the law as follows: To prevail on a claim under section 12940, 

subdivision (n) for failure to engage in the interactive process, an employee 

must identify a reasonable accommodation that would have been available at 

the time the interactive process should have occurred. An employee cannot 

necessarily be expected to identify and request all possible accommodations 

during the interactive process itself because ‘ “ ‘[e]mployees do not have at 

their disposal the extensive information concerning possible alternative 

positions or possible accommodations which employers have. . . .’ ” ’ 

(Wysinger, supra, 157 Cal.App.4th at p. 425.) However, as the Nadaf–Rahrov
25

court explained, once the parties have engaged in the litigation process, to 

prevail, the employee must be able to identify an available accommodation 

the interactive process should have produced: ‘Section 12940[, subdivision] 

(n), which requires proof of failure to engage in the interactive process, is the 

appropriate cause of action where the employee is unable to identify a 

specific, available reasonable accommodation while in the workplace and the 

employer fails to engage in a good faith interactive process to help identify 

one, but the employee is able to identify a specific, available reasonable 

accommodation through the litigation process.’ (Nadaf–Rahrov, supra, 

166 Cal.App.4th at p. 984.)” (Scotch, supra, 173 Cal.App.4th at 

pp. 1018–1019.)

Scotch went on to note that the parties there had engaged in “extensive 

and thorough discovery,” and “[v]oluminous summary judgment papers were 

prepared and filed,” yet the plaintiff had identified only one proposed 

accommodation, which the court found to be unreasonable. (Id. at p. 1019.) 

Thus, summary judgment was properly granted to the employer on plaintiff’s 

interactive process claim.4 (Ibid.) 

So too here. Brown likewise went through discovery, extensive 

summary judgment briefing, and now this appeal, all without identifying a 

single reasonable accommodation the City should have provided during the 

interactive process. Nor is this a case, like Claudio, where the employer’s 

4 “Put another way, if this case were presented to a jury, what remedy 

could it provide? How was Scotch damaged by any failure by [defendant] to 

engage in the interactive process in good faith? The FEHA has a remedial 

rather than punitive purpose. (§ 12920; see Nadaf–Rahrov, supra, 

166 Cal.App.4th at pp. 981–982.) Unless, after litigation with full discovery, 

Scotch identifies a reasonable accommodation that was objectively available 

during the interactive process, he has suffered no remedial injury from any 

violation of section 12940, subdivision (n).” (Scotch, supra, 173 Cal.App.4th 

at p. 1019.) 
26

failure to conduct the interactive process prevented Brown from knowing 

what accommodations were possible. (See Claudio, supra, 134 Cal.App.4th at 

p. 249; Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984.) It is undisputed 

that Brown and the City engaged in a six-month interactive process, a 

process that involved at least one in-person meeting, the City’s weekly 

provision of all available job listings, and the evaluation of Brown for several 

vacant available positions. Under these circumstances, summary judgment 

was properly granted to the City on Brown’s claim for failure to engage in the 

interactive process. 

The Trial Court Did Not Abuse Its Discretion in Denying Leave

to Amend

On April 22, 2019, the day before the hearing on the City’s motion for 

summary judgment, Brown sought leave to file a first amended complaint, to 

assert a new cause of action for disability discrimination under section 12940, 

subdivision (a), alleging that the City “refused to engage in a good faith 

interactive process and accommodate Plaintiff because of its 100 healed [sic] 

policy.” Brown alleged that he had discovered the 100-percent healed policy 

“less than 2 months ago,” including in the March 8, 2019 deposition of Mary 

Baptiste. 

Brown’s proposed first amended complaint also sought to add the 

allegation that he was “regarded and treated as disabled” by the City to the 

allegation that he had a qualifying disability in his two existing causes of 

action, alleging that the City had for the first time in its motion for summary 

judgment “raise[d] the defense that Plaintiff was not disabled.” 

After a hearing, the trial court entered a lengthy written order denying 

the motion, holding as follows:

“Here, Plaintiff Kevin Brown is seeking leave to amend in two areas: 

(1) adding a cause of action for disability discrimination based on Defendant 
27

City of Oakland’s alleged ‘100-percent-healed’ policy, and (2) adding ‘regarded 

and treated as disabled’ allegations to Plaintiff’s existing causes of action for

failure to accommodate and failure to engage in the interactive process.

“NEW CAUSE OF ACTION FOR DISABILITY DISCRIMINATION

“Defendant would suffer prejudice if Plaintiff were permitted to add a 

cause of action at this juncture. Case law supports Defendant’s position that

interfering with a motion for summary judgment is prejudicial. (See 

Melican v. Regents of Univ. of Cal. (2005) 151 Cal.App.4th 168, 175–176; 

Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280–1281; 

Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746; see also A.N. [v. County of 

Los Angeles (2009)] 171 Cal.App.4th [1058,] 1068 [finding prejudice where 

trial date is near].) Here, Plaintiff initially included a disability 

discrimination cause of action in his Complaint. Then, shortly before 

Defendant’s motion for summary judgment was filed, Plaintiff abandoned the 

cause of action and did not fully respond to written discovery on the topic. 

Now that Defendant’s motion for summary judgment has been heard, 

Plaintiff seeks to add a disability discrimination cause of action back into the 

lawsuit. Allowing Plaintiff to do so now would prevent Defendant from 

pursuing a pre-trial dispositive motion on the cause of action, and, as 

discovery is closing, would not permit Defendant to seek discovery on this 

issue, discovery that was previously refused by Plaintiff on the basis that the 

cause of action was no longer going to be pursued. While the Court will not 

guess Plaintiff’s motivations, the sequence of events gives Plaintiff’s attempt 

to amend on this issue the unsightly appearance of gamesmanship to avoid 

summary judgment. The Court will not countenance dismissing and 

reinserting causes of action shortly before trial.
28

“Plaintiff argues that he has not shown substantial delay in seeking 

this amendment regarding disability discrimination. As argued in Plaintiff’s 

reply, the facts that have brought Plaintiff to seek to reintroduce a disability 

discrimination claim, those involving Defendant’s alleged 

‘100-percent-healed’ policy, did not specifically come to light until various 

depositions were taken in early 2019. This may be true, but the delay 

analysis on this claim is complicated by the fact that Plaintiff actually had a 

disability discrimination cause of action in the Complaint and then, after 

leaving it there for many months, voluntarily removed it, and is now seeking 

to include it in the FAC. The timeline here, by Plaintiffs doing, is not as 

straightforward as learning new facts and seeking prompt amendment. In 

any case, the prejudice to Defendant here is high, the loss of adjudicating the 

claim on summary judgment and seeking discovery, and therefore the 

evidence of delay need not be overwhelming or even compelling.

“Accordingly, in regards to Plaintiff’s request to add a cause of action 

for disability discrimination to the FAC based on Defendant’s alleged ‘100-

percent-healed’ policy, Plaintiffs motion is DENIED.

“ ‘REGARDED AND TREATED AS DISABLED’ ALLEGATIONS

“Plaintiff would also like to add allegations to each existing cause of 

action that Plaintiff is not only disabled, but ‘regarded and treated as 

disabled’ by Defendant. As to this request, Plaintiff’s motion is DENIED AS 

MOOT. Summary judgment was granted in this motion, and the absence of 

‘regarded or treated as’ language in the Complaint was not a basis for doing 

so and would have no bearing on the motion. Furthermore, to the extent the 

language Plaintiff intends to insert has not been mooted by the motion for 

summary judgment, the same arguments addressed above in regards to 

prejudice and delay also apply here.” 
29

Applicable Law and Standard of Review

The statutes authorizing amendment of pleadings are “construed 

liberally so that cases might be tried upon their merits in one trial where no 

prejudice to the opposing party or parties is demonstrated.” (Rainer v. 

Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254; Trafton v. 

Youngblood (1968) 69 Cal.2d 17, 31.) This liberal policy applies to 

amendments “ ‘at any stage of the proceedings, up to and including trial,’ ” 

but with one caveat—it must be without prejudice to the adverse party. 

(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; see Singh v. 

Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354–355.) And as 

one court put it: “ ‘ “[E]ven if a good amendment is proposed in proper form, 

unwarranted delay in presenting it may—of itself—be a valid reason for 

denial.” ’ ” (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 

130 Cal.App.4th 1078, 1097; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359,

1377–1378; P & D Consultants, Inc. v. City of Carlsbad (2010) 

190 Cal.App.4th 1332, 1345; see also City of Stanton v. Cox (1989) 

207 Cal.App.3d 1557, 1564 [“A party who waits 18 months before attempting 

to amend, and then does so only after trial has commenced, and who offers no 

excuse for the failure, can hardly complain when the request to amend is 

denied”].)

Resolution of the competing interests in liberality of amendment and 

avoiding prejudice or delay rests in the sound discretion of the trial court, and 

is subject to reversal only for abuse of that discretion. (Consolidated World 

Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 383; 

Duchrow v. Forrest, supra, 215 Cal.App.4th at p. 1378.) Brown has shown 

none.
30

Brown argues that the trial court abused its discretion in denying him 

leave to amend, again noting that he did not discover the facts regarding the 

alleged “100-percent healed” policy until depositions which took place on 

February 28 and March 8 of 2019, which explains his delay in seeking the 

amendment. But as the trial court noted, this is not a typical case of a party 

discovering new facts and seeking prompt amendment, because Brown had 

previously dismissed the disability discrimination cause of action and for that 

reason did not produce discovery on it. And it does not explain why Brown, 

who had the facts underlying this new claim by March 8, filed a response to 

the City’s motion for summary judgment without mentioning it, seeking to 

add the new claim some six weeks later—just before the hearing on the City’s 

motion. 

Even more importantly, the amendment would clearly prejudice the 

City, because it came after the close of discovery, after the dispositive motion 

deadline, and after the City’s motion for summary judgment had been fully 

briefed and was about to be decided. Brown’s new claim was based on the 

testimony of certain City employees about their understanding of City policy. 

By waiting until after the close of discovery and after the dispositive motion 

deadline to seek leave to amend, Brown deprived the City of the opportunity 

to “marshal[] evidence to oppose the contention” that such a policy existed, 

and to move for summary judgment accordingly. (Magpali v. Farmers Group, 

Inc. (1996) 48 Cal.App.4th 471, 487; see Melican v. Regents of University of 

California, supra, 151 Cal.App.4th at p. 176 [no abuse of discretion in 

denying oral motion to amend at hearing on summary judgment because “[i]t 

would be patently unfair to allow plaintiffs to defeat [defendant]’s summary 

judgment motion by allowing them to present a ‘moving target’ unbounded by 
31

the pleadings”].) Under these circumstances, there was no abuse of 

discretion in denying leave to amend.5

DISPOSITION

The judgment and the order denying leave to amend are affirmed. The 

City shall recover its costs on appeal. 

5 Brown does not challenge the trial court’s denial of his motion to the 

extent he sought to add “regarding as disabled” language to his two existing 

claims, a motion which, given our discussion of those claims, was moot. 
32

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

Brown v. City of Oakland (A157706)