Filed 12/14/20 Lopez v. Los Angeles County Metropolitan etc. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JACOB LOPEZ,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY 

METROPOLITAN 

TRANSPORTATION AUTHORITY,

Defendant and Respondent.

 B296598

(Los Angeles County 

Super. Ct. No. BC681280)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Dennis J. Landin, Judge. Affirmed.

Marchetti Law and Frank E. Marchetti, for Plaintiff and 

Appellant.

Peterson Bradford Burkwitz, Avi Burkwitz, and Craig G.

Marinho; Greines, Martin, Stein & Richland and Alana H. Rotter,

for Defendant and Respondent.
2

INTRODUCTION

Jacob Lopez, an employee of the Los Angeles County 

Metropolitan Transportation Authority (the Authority), was on 

medical leave for a year because of physical injuries. When 

Lopez was ready to come back to work, the Authority did not 

allow him to return to his position as a transit security lieutenant 

because his doctor said Lopez had certain physical restrictions. 

Lopez sought and obtained disability benefits from the California 

Public Employees’ Retirement System (CalPERS). He also filed a 

workers’ compensation claim against the Authority, which 

resulted in a settlement. 

Lopez then filed this action, alleging the Authority violated

provisions of the Fair Employment and Housing Act (FEHA) that 

prohibit disability discrimination and that require employers to 

engage in good faith in the interactive process to find reasonable 

accommodations. The trial court granted the Authority’s motion 

for summary judgment, ruling Lopez could not prevail on either 

of his two causes of action, in part because he was judicially 

estopped from asserting he could have performed the duties of his 

prior position. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Lopez Seeks To Return to His Position as a Transit 

Security Lieutenant After a Medical Leave

Lopez began working for the Authority in 1997 as a transit 

security officer. The Authority promoted him in 1999 to sergeant

and in 2003 to lieutenant, the second highest rank in its security 

unit. When Lopez began experiencing pain in his lower back, the 
3

Authority gave Lopez an ergonomic keyboard and chair and 

modified some of his equipment. In February 2014 Lopez went 

on medical leave and submitted a doctor’s note stating he was “to 

remain totally disabled from work.”

In December 2014 Rosalin Chong, the Authority’s Medical 

Standards and Compliance Administrator, sent Lopez a letter 

stating that his medical leave would expire on February 9, 2015 

and that the Authority would terminate his employment if he

could not return to work. Chong also told Lopez that, if he had 

“restrictions or limitations” imposed by his doctor but still 

wanted to return to his position as a transit security lieutenant, 

he should contact her so that they would “work to see if the 

restrictions can be accommodated.” Chong stated that the

“[i]nformation regarding your return to work should be faxed to 

my attention no later than January 26, 2015.”

On January 13, 2015 Lopez sent the Authority a signed 

letter from his doctor stating Lopez could “return to regular 

work” on February 7, 2015, so long as Lopez did not lift over 20 

pounds, sit for more than 20 to 30 minutes, or stand for more 

than 10 minutes. On January 26, 2015 Chong informed Lopez

that, in light of his restrictions, he could not return to his position

of transit security lieutenant. Chong did not ask Lopez, or 

otherwise investigate, whether there were any accommodations 

that would allow him to return to his job. Two days later Emily 

Matias, the Authority’s Human Resources Manager, sent Lopez a 

letter confirming he had “work restrictions that prevent[ed him]

from returning to work as a Transit Security Lieutenant,” but 

stating that she would contact him to “initiate the interactive 

process and discuss possible job alternatives . . . .” 
4

Matias sent Lopez reports of job vacancies and identified 

one potential position for which Lopez could apply. Lopez, 

however, did not apply for any positions. Lopez retired from the 

Authority in March 2015. 

B. Lopez Files a Workers’ Compensation Claim Against

the Authority and Obtains Disability Benefits

Meanwhile, on February 23, 2015 Lopez filed a petition 

with the Workers’ Compensation Appeals Board, claiming he 

suffered hand, back, and psychological injuries. On March 26, 

2015 Lopez filed an application for disability retirement benefits 

with CalPERS. In his application to CalPERS Lopez claimed 

that he had “cumulative trauma” to his back and hands, anxiety,

and depressive symptoms; that he had lifting, sitting, and 

standing restrictions (the same restrictions his doctor provided to 

the Authority); and that he was “unable to perform [his] job.” 

In September 2015 CalPERS approved Lopez’s application 

for disability retirement benefits, finding Lopez was 

“substantially incapacitated from the performance of [his] usual 

duties as a Transit Security Lieutenant . . . based upon [his] 

orthopedic (low back, bilateral hands) condition.” In December 

2016 the Workers’ Compensation Appeals Board approved a 

settlement between Lopez and the Authority for $65,000. 

C. Lopez Files This Action, and the Authority Moves for 

Summary Judgment

On October 26, 2017 Lopez filed this action, alleging the 

Authority did not allow him to return to his position as a transit 

security lieutenant after his medical absence and terminated his 

employment, even though he “was able to perform the essential 
5

functions of his position . . . with or without reasonable 

accommodations.” Lopez asserted causes of action under FEHA 

for disability discrimination and failure to engage in the

interactive process in good faith. 

The Authority filed a motion for summary judgment or, in 

the alternative, for summary adjudication on each of Lopez’s 

causes of action. With respect to Lopez’s cause of action for 

disability discrimination, the Authority argued Lopez’s physical 

restrictions prevented him from performing the essential 

functions of a transit security lieutenant, which included using 

force when necessary to protect the public and making arrests 

and serving as a first responder in emergency situations. The 

Authority also argued that, even if Lopez could perform the 

essential functions of the position, he was judicially estopped 

from claiming he could do so because, in both his application to 

CalPERS for disability retirement benefits and his workers’ 

compensation proceeding, he took the position his physical 

restrictions prevented him from working as a transit security 

lieutenant. The Authority further contended Lopez did not suffer 

an adverse employment action under FEHA and that it had a 

legitimate business reason for not allowing Lopez to return to his 

position—namely, that Lopez could not perform the duties of a 

transit security lieutenant without putting himself and the public 

at risk. 

With respect to Lopez’s cause of action for failing to engage 

in the interactive process in good faith, the Authority argued

that, because Lopez could not perform the essential functions of a 

transit security lieutenant and was judicially estopped from 

claiming otherwise, Lopez could not show there was any 

reasonable accommodation that would have permitted him to 
6

perform the essential functions of the position. The Authority

argued that it satisfied its obligations when it identified

vacancies and a potential position matching Lopez’s experience 

and that Lopez unilaterally ended the interactive process by 

retiring.1

In opposition to the motion Lopez submitted a declaration 

disputing the Authority’s characterization of his job. Lopez 

described his position as “primarily a ‘desk job’ working in [the 

Authority’s] offices,” where he managed other security officers

and attended meetings with executive managers and the officers

assigned to him. Lopez stated that on the rare occasions he went 

into the field it was to supervise other officers, and that his role 

in the field was “investigative, after the fact, and not hands 

on . . . .” Lopez also stated he complained to Chong and Matias 

when they informed him he could not return to his position as a 

transit security lieutenant, but neither Chong nor Matias showed 

any interest in listening to him or answering his questions. 

1 The Authority also argued it was entitled to summary 

adjudication on Lopez’s disability discrimination cause of action 

because Lopez did not have evidence the Authority’s employment 

decisions were motivated by discriminatory intent, and on 

Lopez’s cause of action for failure to engage in the interactive 

process in good faith because the Authority adequately 

accommodated Lopez’s alleged disabilities by offering him 

medical leave. The trial court ruled the Authority failed to show

Lopez’s causes of action lacked merit on these grounds, and the 

Authority does not challenge these rulings.
7

D. The Trial Court Grants the Authority’s Motion

The trial court granted the Authority’s motion for summary 

adjudication on both of Lopez’s causes of action. On the cause of 

action for disability discrimination, the court ruled that the 

Authority met its burden to show Lopez could not perform the 

essential functions of a transit security lieutenant in light of his 

physical restrictions; that the Authority met its burden to show 

that Lopez, even if he was able to perform the essential functions 

of his job, was judicially estopped from arguing he could perform 

them; that the Authority met its burden to show Lopez did not 

suffer an adverse employment action; that the Authority had a 

legitimate, nondiscriminatory reason for its decision not to allow 

Lopez to return to his position; and that Lopez failed to create a

triable issue of material fact on these elements.

On Lopez’s cause of action for failure to engage in the 

interactive process in good faith, the trial court ruled that the 

Authority met its burden to show it adequately engaged in the

interactive process by sending Lopez information about vacant 

positions and that Lopez failed to create any triable issues of 

material fact. The court granted the Authority’s motion for 

summary judgment and entered judgment against Lopez. Lopez 

timely appealed. 

DISCUSSION

A. Standard of Review

“A motion for summary judgment or summary adjudication

is properly granted only when ‘all the papers submitted show 

that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.’” 
8

(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 

1168, 1179; see Regents of University of California v. Superior 

Court (2018) 4 Cal.5th 607, 618.) A defendant moving for 

summary adjudication has the initial burden of making a prima 

facie showing “‘“that the cause of action lacks merit because one 

or more elements of the cause of action cannot be established or 

there is a complete defense to that cause of action.”’” (Noe v. 

Superior Court (2015) 237 Cal.App.4th 316, 326; see Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.) “‘“A prima 

facie showing is one that is sufficient to support the position of 

the party in question.”’” (Noe, at p. 325; see Aguilar, at p. 851.)

To show that a cause of action lacks merit “a defendant 

must present evidence that either ‘conclusively negate[s] an 

element of the plaintiff’s cause of action’ or ‘show[s] that the 

plaintiff does not possess, and cannot reasonably obtain,’ 

evidence necessary to establish at least one element of [its] 

cause[s] of action. [Citation.] Once the defendant satisfies its 

initial burden, ‘the burden shifts to the plaintiff . . . to show that 

a triable issue of one or more material facts exists as to the cause 

of action or a defense thereto.’” (Henderson v. Equilon 

Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116; see Code 

Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield 

Co., supra, 25 Cal.4th at pp. 853-854.) “There is a triable issue of 

material fact if, and only if, the evidence would allow a 

reasonable trier of fact to find the underlying fact in favor of the 

party opposing the motion in accordance with the applicable 

standard of proof.” (Aguilar, at p. 850.)

“‘In reviewing an order granting summary adjudication, 

“we apply the same standard of review applicable on appeal from 

a grant of summary judgment.”’” (Noe v. Superior Court, supra, 
9

237 Cal.App.4th at p. 327; see Wilson v. County of San Joaquin 

(2019) 38 Cal.App.5th 1, 9.) We review the trial court’s ruling 

de novo (Samara v. Matar (2018) 5 Cal.5th 322, 338; Wilson, at 

p. 9), considering “‘“‘“all the evidence set forth in the moving and 

opposing papers except that to which objections were made and 

sustained.”’ [Citation.] We liberally construe the evidence in 

support of the party opposing summary [adjudication] and 

resolve doubts concerning the evidence in favor of that party.”’” 

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see

Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 

59 Cal.4th 277, 286.) 

B. The Trial Court Did Not Err in Ruling Lopez Was 

Judicially Estopped from Asserting a Cause of Action 

for Disability Discrimination

The trial court ruled that, because Lopez stated in his 

disability application with CalPERS and in his Workers’ 

Compensation Appeals Board proceeding that he could not work 

as a transit security lieutenant, and because Lopez received 

benefits from CalPERS and settled his workers’ compensation 

claim, he was judicially estopped from contending he could 

perform the essential functions of the position. We agree that the 

Authority met its burden to show Lopez was judicially estopped 

from asserting he could perform the essential functions of a 

transit security lieutenant because of the position he took in the

CalPERS proceeding and that Lopez failed to raise a triable issue

on any element of judicial estoppel. 
10

1. Applicable Law

FEHA “‘prohibits employers from refusing to hire, 

discharging, or otherwise discriminating against employees 

because of their physical disabilities . . . .’” (Atkins v. City of Los 

Angeles (2017) 8 Cal.App.5th 696, 714; see § 12940, subd. (a).)2

To prevail on a cause of action for disability discrimination under 

FEHA, the plaintiff must show he or she “(1) suffered from a 

disability, (2) was otherwise qualified to do his or her job, and 

(3) was subjected to adverse employment action because of the 

disability.” (Nealy v. City of Santa Monica (2015) 

234 Cal.App.4th 359, 378; see Furtado v. State Personnel Bd. 

(2013) 212 Cal.App.4th 729, 744.)3 A plaintiff is qualified to do 

his or her job if “he or she can perform the essential functions of 

the job with or without reasonable accommodation.” (Green v. 

State of California (2007) 42 Cal.4th 254, 260; accord, Furtado, at 

p. 744; see Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)

166 Cal.App.4th 952, 962 [“an employee bears the burden of 

showing . . . he or she could perform the essential functions of the 

job with or without accommodation”].)

“‘“‘Judicial estoppel precludes a party from gaining an 

advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position. [Citations.]’”. . . 

The doctrine [most appropriately] applies when: “(1) the same 

party has taken two positions; (2) the positions were taken in 

2 Undesignated statutory references are to the Government 

Code.

3 A physical disability under FEHA “includes a perception 

that the person has” a physical disability “or that the person is 

associated with a person who has, or is perceived to have,” a 

physical disability. (§ 12926, subd. (o).)
11

judicial or quasi-judicial administrative proceedings; (3) the party 

was successful in asserting the first position (i.e., the tribunal 

adopted the position or accepted it as true); (4) the two positions 

are totally inconsistent; and (5) the first position was not taken 

as a result of ignorance, fraud, or mistake.”’” (MW Erectors, Inc. 

v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 

36 Cal.4th 412, 422; accord, Minish v. Hanuman Fellowship 

(2013) 214 Cal.App.4th 437, 449.) “[J]udicial estoppel is an 

equitable doctrine, and its application, even where all necessary 

elements are present, is discretionary.” (MW Erectors, Inc., at 

p. 422.)

“A court may grant summary judgment based on judicial 

estoppel ‘where none of the facts material to the court’s decision 

to apply judicial estoppel [is] disputed.’” (Minish v. Hanuman 

Fellowship, supra, 214 Cal.App.4th at pp. 449-450; see Levin v. 

Ligon (2006) 140 Cal.App.4th 1456, 1467; Drain v. Betz 

Laboratories, Inc. (1999) 69 Cal.App.4th 950, 958.) “[W]e review 

de novo the trial court’s decision . . . and we apply the same 

standards of law as the trial court in determining whether the 

defendant has met its burden of establishing that there are no 

triable issues on the application of judicial estoppel.” (Kelsey v.

Waste Management of Alameda County (1999) 76 Cal.App.4th

590, 597-598.) “Whether the doctrine should be applied even if 

the necessary elements are satisfied is a matter within the 

discretion of the trial court, which we review under the abuse of 

discretion standard.” (Owens v. County of Los Angeles (2013) 

220 Cal.App.4th 107, 121; see Victrola 89, LLC v. Jaman 

Properties 8 LLC (2020) 46 Cal.App.5th 337, 357-358 [“‘[e]ven if 

the necessary elements of judicial estoppel are satisfied, the trial 

court still has discretion to not apply the doctrine’”].)
12

2. Lopez Took a Position in His CalPERS 

Proceeding Totally Inconsistent with His Cause 

of Action for Disability Discrimination

Two position are “totally inconsistent” if the positions “are 

so irreconcilable that . . . ‘“one necessarily excludes the other.”’” 

(Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1387; see 

Prillman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 

960.) To prevail on his cause of action for disability 

discrimination in this action, Lopez had to prove he could 

“perform the essential functions” of a transit security lieutenant 

“with or without reasonable accommodation.” (Green v. State of 

California, supra, 42 Cal.4th at p. 260.) In his application to 

CalPERS for disability retirement benefits, however, Lopez 

stated that he had lifting, sitting, and standing restrictions as a 

result of trauma to his back and hands and that, “[d]ue to” these 

limitations, he was “unable to perform [his] job” as a transit 

security lieutenant. Lopez submitted a physician’s report in 

support of his application stating that, because of Lopez’s

“decreased physical ability,” he was “substantially incapacitated 

from the performance of the usual duties” of a transit security 

lieutenant. 

The statements by Lopez and his physician were 

unequivocal. Lopez did not attempt to qualify his position by, for 

instance, stating he could have performed the job had the 

Authority offered reasonable accommodations. (Cf. Bell v. Wells 

Fargo Bank, supra, 62 Cal.App.4th at pp. 1384, 1387-1388

[employee who claimed in his disability application that his 

medical condition “rendered him ‘disabled’ and unable to perform 

‘his regular and customary work’” was not judicially estopped 

from bringing a discrimination cause of action under FEHA 
13

where the employer had previously accommodated the employee 

by permitting him to telecommute, and it was not clear whether 

the employee in his disability application meant he could not 

perform his work without his previous accommodation].) Instead, 

Lopez took the unqualified position in the CalPERS proceeding 

that he could not perform the usual and customary duties of a 

transit security lieutenant. This evidence satisfied the 

Authority’s initial burden to show that Lopez’s position in his 

CalPERS proceeding was totally inconsistent with, and precluded 

him from asserting, his cause of action for disability 

discrimination in this action. (See Drain v. Betz Laboratories, 

Inc., supra, 69 Cal.App.4th at p. 958 [plaintiff’s assertion his 

employer should have offered him an accommodation of lightduty work was totally inconsistent with his assertion in his claim 

for disability benefits that “he was disabled from performing all 

of his duties” and with his “physician’s report[,] which found him 

disabled from ‘any occupation’”]; Jackson v. County of Los Angeles 

(1997) 60 Cal.App.4th 171, 189-190 [plaintiff’s assertion he could 

perform the essential functions of the position, which “involve[d] 

stress,” was totally inconsistent with his stipulation in his 

workers’ compensation proceeding that he could only work in an 

environment “free from emotional stress”].)

Because the Authority met its initial burden, the burden 

shifted to Lopez to submit admissible evidence showing the 

position he took in his CalPERS proceeding was not totally 

inconsistent with his disability discrimination cause of action in 

this action. Lopez stated in his declaration that in January 2015,

when he asked to return to his prior position as a transit security 

lieutenant, he had no physical restrictions that would prevent 

him from performing the essential functions of his position. But 
14

Lopez argues that, because the Authority did not allow him to 

return, his “mental and emotional condition deteriorated . . . to 

the point that,” when he submitted his application to CalPERS 

for benefits in late March 2015, he became “disabled again, this 

time due solely to his psychological state rather than his physical 

injuries.” 

But that is not the position Lopez took in his CalPERS 

proceeding. Lopez stated in his application he had anxiety and 

depressive symptoms, but he did not state he could not perform 

his job “solely” because of these symptoms. To the contrary, he 

stated he could not perform his job because of the lifting, sitting,

and standing restrictions caused by physical injuries. Similarly, 

Lopez’s physician’s report mentioned that Lopez was depressed 

and could not tolerate stressful work environments, but 

concluded that, in addition to these psychological issues, Lopez 

remained substantially incapacitated because of “decreased 

physical ability” due to pain caused by trauma to his lumbar 

spine. And there is no evidence Lopez ever attempted to retract 

his statement that it was his physical restrictions, not his mental

health symptoms, that prevented him from returning to work.

Lopez’s only other argument on this point in his opening 

brief is that the trial court erred in overruling his authentication 

objection to the declaration of counsel for the Authority, which 

attached as exhibits the record of Lopez’s CalPERS proceeding, 

including Lopez’s application, the physician’s report, and the 

Board’s award. CalPERS, however, produced the records in 

response to a subpoena, and the Authority submitted the 

declaration from the CalPERS custodian of records 

authenticating the documents in response to the subpoena. 

Lopez’s argument, made for the first time in his reply brief, that 
15

the custodian’s declaration did not properly authenticate the 

documents, is forfeited. (See Golden Door Properties, LLC v. 

County of San Diego (2020) 50 Cal.App.5th 467, 554-555 [“‘[e]ven 

when our review on appeal “is de novo, it is limited to issues 

which have been adequately raised and supported in [the 

appellant’s opening] brief,”’” and ““‘[i]ssues not raised in an 

appellant’s brief are deemed waived or abandoned”’”]; State Water 

Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 836

[same].) In addition, Lopez admitted in his deposition that he 

submitted an application to CalPERS for disability benefits on 

the same date that appears on the application produced by 

CalPERS, indicating the application was in fact the application 

Lopez submitted. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 

301, 321 [“a document is authenticated when sufficient evidence 

has been produced to sustain a finding that the document is what 

it purports to be,” and “[a]s long as the evidence would support a 

finding of authenticity, the writing is admissible”]; see also Evid. 

Code, § 1400, subd. (a).)

4

Lopez does not argue the Authority failed to satisfy the 

other elements of judicial estoppel. (See Case v. State Farm 

Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 401

[“Although we independently assess the grant of summary 

judgment, our review is governed by a fundamental principle of 

4 Lopez also argues for the first time in his reply brief that 

the trial court should have sustained his objection to the 

CalPERS records on hearsay grounds. Again, Lopez forfeited this 

argument by failing to raise it in his opening brief. In addition, 

the CalPERS records are not hearsay: The Authority offered 

them, not for the truth of the matters asserted in those records, 

but to show the positions Lopez took in the proceeding and the 

basis for the action by CalPERS’s Board. 
16

appellate procedure, namely, that ‘“[a] judgment or order of the 

lower court is presumed correct,”’ and thus, ‘“error must be 

affirmatively shown.”’”]; Orange County Water Dist. v. Sabic 

Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368

[“‘Though summary judgment review is de novo, review is limited 

to issues adequately raised and supported in the appellant’s 

brief.’”].) Nor does he contend that, even if the Authority 

established each element of judicial estoppel, the trial court 

abused its discretion by applying the doctrine under the 

circumstances. (See Owens v. County of Los Angeles, supra, 

220 Cal.App.4th at p. 121 [whether the doctrine should be 

applied even if the necessary elements are satisfied is reviewed 

for abuse of discretion].) 

C. The Trial Court Did Not Err in Granting the 

Authority’s Motion for Summary Adjudication on 

Lopez’s Cause of Action for Failure To Engage in the 

Interactive Process in Good Faith

FEHA requires an employer to “engage in a timely, good 

faith, interactive process with [an] employee . . . to determine 

effective reasonable accommodations, if any, in response to a 

request for reasonable accommodation by an employee . . . with a 

known physical or mental disability or known medical condition.” 

(§ 12940, subd. (n).) “‘“The ‘interactive process’ required by the 

FEHA is an informal process . . . to attempt to identify a 

reasonable accommodation that will enable the employee to 

perform the job effectively.”’” (Soria v. Univision Radio Los 

Angeles, Inc. (2016) 5 Cal.App.5th 570, 600; see Scotch v. Art 

Institute of California (2009) 173 Cal.App.4th 986, 1013.) “‘Each 

party must participate in good faith, undertake reasonable efforts 
17

to communicate its concerns, and make available to the other 

information which is available, or more accessible, to one party.’” 

(Scotch, at p. 1014; see Gelfo v. Lockheed Martin Corp. (2006) 

140 Cal.App.4th 34, 62, fn. 22.) 

In the trial court the Authority argued that it engaged in 

the interactive process in good faith by sending Lopez 

information about job vacancies and identifying one position for 

which Lopez could apply, but that Lopez retired before applying 

for any job. Lopez argued the Authority failed to engage in the

interactive process in good faith because it concluded Lopez could 

not work as a transit security lieutenant before it considered 

whether there were any accommodations that would have 

enabled Lopez to return to his position. The trial court ruled 

Lopez could not prevail on this cause of action because there were 

no accommodations that would have enabled Lopez to perform 

the essential functions of a transit security lieutenant. 

The trial court did not err. Several courts have held that, 

to prevail on a cause of action for failure to engage in good faith 

in the interactive process, the plaintiff must identify a reasonable 

accommodation that was available at the time the interactive 

process (should have) occurred and that the defendant employer 

could have offered. (See, e.g., Nealy v. City of Santa Monica, 

supra, 234 Cal.App.4th at p. 379; Scotch v. Art Institute of

California, supra, 173 Cal.App.4th at p. 1018; Nadaf-Rahrov v. 

Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at p. 984; 

but see Wysinger v. Automobile Club of Southern California 

(2007) 157 Cal.App.4th 413, 424 [“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.”]; Claudio v. 
18

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

224, 248 [because “we conclude a triable issue exists concerning 

failure by the [employer] to participate in the interactive process, 

the judgment cannot be affirmed on the ground that no alternate 

jobs were available”].) Lopez does not dispute he must prove this 

element to prevail on his claim.5 

Lopez never argued he needed an accommodation, 

reasonable or otherwise, to return to his position as a transit 

security lieutenant. Indeed, in opposition to the Authority’s 

motion for summary judgment, Lopez asserted he could perform 

the essential functions of his position despite his physical 

limitations and without any accommodations. Nor did Lopez 

identify, or argue the Authority during the interactive process 

should have offered him, an alternative position. (See Cal. Code 

Regs., tit. 2, § 11068, subd. (d)(1)(A) [employer may offer 

“[r]eassignment to a vacant position” in lieu of other 

accommodations “if the employee can no longer perform the 

essential functions of his or her own position even with 

accommodation”].)

Lopez argues that, if necessary, the Authority could have 

assigned other employees to perform what he characterized as 

the marginal functions of a transit security lieutenant, such as 

“[r]esponding to emergency physical situations in the field” and 

serving as the sergeant-at-arms at Authority board meetings. 

Lopez, however, cannot claim these accommodations would have 

5 Because Lopez does not dispute that, to prevail on his cause 

of action for failure to engage in the interactive process, he had to

identify a reasonable accommodation, we do not address whether 

and under what circumstances a plaintiff may prevail on such a 

cause of action without identifying an available accommodation.
19

enabled him to return to his position because, even if the 

Authority could have reassigned some of the functions of his prior 

position, he is still judicially estopped from asserting he could 

perform the other, essential functions of the job. (See NadafRahrov v. Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at 

p. 983 [to prevail on a cause of action for failure to engage in the 

interactive process, “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”].) Because, 

as discussed, Lopez successfully asserted in his CalPERS 

proceeding that he could not perform his job, he cannot contend 

in this action that an accommodation would have enabled him to

continue working as a transit security lieutenant.

6

6 Lopez argues, for the first time on appeal, that the 

Authority failed to adequately engage in the interactive process 

because it did not “gather[ ] the information” from Lopez 

necessary to determine whether any alternative positions were 

available for him. Although Lopez is not necessarily judicially 

estopped from asserting he could have performed a different job, 

Lopez forfeited this argument by failing to raise it in the trial 

court. (See Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603; 

Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes

(2017) 9 Cal.App.5th 119, 137, fn. 5.)
20

DISPOSITION

The judgment is affirmed. The Authority is to recover its

costs on appeal. 

SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.