Filed 11/14/23 Juarez v. B & S Plastics 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

LILIANA JUAREZ,

 Plaintiff and Appellant,

v.

B & S PLASTICS, INC.,

 Defendant and Respondent.

2d Civ. No. B318909

(Super. Ct. No. 56-2018-

00515511)

(Ventura County)

Plaintiff brought this action against her former employer 

under the California Fair Employment and Housing Act (FEHA) 

(Gov. Code,1 § 12900 et seq.) alleging unlawful employment

practices in terminating her employment based on disability. 

The jury found for plaintiff’s employer. We affirm the ensuing 

judgment.

1 All statutory references are to the Government Code 

unless otherwise stated.
2

FACTS

B & S Plastics, Inc., doing business as Waterway Plastics 

(B&S), manufactures plastic parts for agricultural and pool use. 

It employs approximately 700 workers. Liliana Juarez worked at 

B&S as an assembler from July 18, 2017, to November 9, 2017. 

B&S has a leave policy that is included in a packet given to 

all new employees. The leave policy provided:

“Employees who request a Leave of Absence must have 

more than one year of employment with the company to be 

eligible for leave. The request must be made to the immediate 

supervisor who will complete the Leave of Absence Request Form 

and submit it to H.R. A copy of the approved or denied form will 

be returned to the employee.

“An employee with less than one year of employment will 

be considered as a resignation with eligibility for rehire with 

supervisor approval.” (Boldface omitted.) 

Juarez testified she had problems with her digestive 

system that caused her great pain. On November 6, 2017, she 

went to the hospital emergency room because of the pain. She 

called her supervisor, Sergio Chico, to let him know and he

excused her from work. She had surgery on November 7, 2017. 

She called Chico to let him know she was still in the hospital. 

She was released from the hospital on November 8, 2017. She 

called Chico on November 8, 2017, and told him she needed two 

weeks off because of the surgery.

Juarez testified she had emergency surgery in her stomach 

area. It was not elective surgery that could be scheduled in 

advance. She said the surgery interfered with her ability to work 

and do normal things.
3

During the less than four months Juarez worked at B&S, 

she called in sick nine times. When Juarez called Chico on 

November 8, 2017, Chico told Juarez that she had no sick days 

left and, per the leave policy, she had to resign. B&S processed 

her employment termination as a resignation effective November 

9, 2017.

Juarez and her husband went to B&S on November 13, 

2017, and brought a doctor’s note. Juarez did not speak with 

Chico personally. Chico said he did not see the note until shortly 

before his deposition in this case.

The doctor’s note dated November 8, 2017, stated: “Please

excuse Ms. Liliana Juarez from work for up to two weeks. Ms. 

Juarez has undergone surgery at our facility and would benefit 

from recovery at home. If you have any questions, please 

call . . . .” 

The doctor’s note was not admitted into evidence for the 

truth of the statements made therein. It was admitted only as 

evidence that B&S had notice of Juarez’s claim. The jury was 

instructed accordingly.

Chico wrote “disabled” on her payroll status change form. 

He testified he wrote disabled because she told him she was 

disabled, not because he believed she was disabled.

Damages

(a) Economic Damages

Juarez admitted she had not worked since B&S terminated

her employment and had only applied for one job. She said she 

had to care for her five children. She also said she did not apply 

for jobs because she might have to disclose that B&S terminated 

her. But she admitted she was terminated by her prior employer 

and did not disclose the prior termination when she applied to 
4

B&S. When asked if she was claiming lost wages for the past 

four years, she answered no. When asked what she was 

claiming, her counsel objected that the question infringes on 

attorney-client and work product privileges.

(b) Noneconomic Damages

Juarez testified at trial that her anxiety, emotional 

distress, and fears were related to B&S. But in her deposition, 

she said she has anxiety and headaches, but she does not know if 

they are related to B&S. At trial she admitted that her 

deposition testimony was truthful.

Procedure

Juarez filed a complaint against B&S alleging disability 

discrimination, retaliation, failure to prevent discrimination and 

retaliation, failure to provide reasonable accommodations, failure 

to engage in a good faith interactive process under FEHA, 

wrongful termination in violation of public policy, and declaratory 

relief.

The jury returned a general verdict in favor of B&S.

DISCUSSION

I

FEHA

Section 12940, subdivision (a)(1), provides that it is 

unlawful for an employer to discriminate in the terms, conditions, 

or privileges of employment on the basis of physical disability, 

unless because of the disability the employee is unable to perform 

the employee’s essential duties with reasonable accommodation. 

Section 12940, subdivision (n), provides that an employer must 

“engage in a timely, good faith, interactive process with the 

employee . . . to determine effective reasonable accommodations, 
5

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

an employee . . . with a known physical . . . disability . . . .”

FEHA covers not only actual disabilities, but also perceived 

disabilities. (§ 12926.1, subd. (b).) A perceived disability is a 

mental or physical condition or adverse genetic information that

is regarded or treated by the employer as a disability. (Cal. Code 

Regs., tit. 2, § 11065(d)(5)(A).)

II

Disability Within the Meaning of FEHA

The purpose of FEHA is to protect employees who have 

long-term disabilities. (See, e.g., § 12926, subd. (i)(1), (2)

[“medical condition” means (1) health impairment related to 

cancer; (2) genetic characteristics].) It is not a substitute for an 

employer’s sick leave policy. (See § 12945.2, subd. (a) [mandating 

medical leave only for employees with more than 12 months and 

at least 1,250 hours of service with the employer].) A short-term 

illness is not a disability; it is simply life. Almost everyone has 

had brief illnesses that caused an absence from work.

Because FEHA is based on the federal Americans with 

Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) and 

other federal law, decisions interpreting federal 

antidiscrimination laws are relevant in interpreting FEHA’s 

similar provisions. (Brundage v. Hahn (1997) 57 Cal.App.4th

228, 235.) Federal cases hold that a temporary injury with only 

minimal residual effects is not a disability. (Sanders v. Arneson 

Products, Inc. (1996) 91 F.3d 1351, 1354.) Even a four-month 

absence from work does not qualify as a disability. (Ibid.)

Juarez told Chico she did not feel well and had to go to the 

hospital. She called in sick on two subsequent days; then she told 

Chico she needed two more weeks to recover. There was no 
6

evidence she had any residual effects. The evidence shows 

Juarez had only a brief illness, not a disability.

In any event, even if Juarez’s brief illness could qualify as a 

disability, the jury rejected her claim.

III

Substantial Evidence

Juarez contends the verdict is not supported by substantial 

evidence. 

Juarez misapprehends the substantial evidence rule. In 

viewing the evidence, we look only to the evidence supporting the 

prevailing party. (GHK Associates v. Mayer Group, Inc. (1990) 

224 Cal.App.3d 856, 872.) We discard evidence unfavorable to 

the prevailing party as not having sufficient verity to be accepted 

by the trier of fact. (Ibid.) Where the trial court or jury has 

drawn reasonable inferences from the evidence, we have no 

power to draw different inferences even though different 

inferences may also be reasonable. (McIntyre v. Doe & Doe (1954)

125 Cal.App.2d 285, 287.) The trier of fact is not required to 

believe even uncontradicted testimony. (Sprague v. Equifax, Inc.

(1985) 166 Cal.App.3d 1012, 1028.)

As plaintiff, Juarez had the burden of proof. (NadafRahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th

952, 977.) Where, as here, there is a general verdict in favor of 

the defendant, the plaintiff cannot prevail on a claim that the 

verdict is not supported by substantial evidence. It is the lack of 

credible evidence that supports a verdict in favor of the 

defendant. Under the substantial evidence rule, we must treat 

all of plaintiff’s evidence as having been rejected by the jury for 

lack of sufficient verity.
7

Moreover, Juarez gave the jury reason to doubt her 

credibility.

(a) Disability Testimony

Juarez testified she was disabled. But that was the only 

evidence of a disability. She produced no expert testimony, no 

hospital records, nothing to support her own inexpert testimony 

that she was disabled. Her doctor’s note was not admitted for the 

truth of the matter stated there. In any event the note did not 

say she was disabled. It stated only that she would “benefit from 

recovery at home.” Nor was there a perceived disability. Chico 

testified he wrote “disabled” on her payroll document because 

Juarez told him she was, not because he believed she was 

disabled. Under the substantial evidence rule, we must conclude 

the jury believed Chico. Indeed, it appears the only information 

he had that she was disabled was her word.

Lack of foundation was not the only flaw in Juarez’s 

testimony. On cross-examination, B&S’s counsel elicited

numerous instances of conflict between Juarez’s responses to 

discovery and her testimony at trial. She gave such responses at 

trial as, “Perhaps I answered that, but that’s not the truth,” or 

simply admitted that her prior statements were false. It appears 

the cross-examination damaged Juarez’s credibility. Juarez’s 

credibility was not assisted by her admission that she did not list 

her previous employer on her application with B&S because her 

previous employer terminated her employment.

Juarez argues that the evidence here was undisputed, and 

that we can make our own de novo determination as a matter of 

law based on the undisputed evidence. But B&S vigorously 

disputed Juarez’s claim of disability. Juarez’s credibility was a 

question for the jury, not for this court on appeal.
8

(b) Damages Testimony

Juarez presented no credible evidence of damages. Her 

counsel argued the jury should award her back pay for the four

years between her termination from B&S and trial. But there 

was no evidence to support the argument. In fact, Juarez 

testified she was not seeking four years’ back pay. When asked 

what her claim was, her counsel objected, and neither party 

pursued the matter further. That suggests it is highly unlikely 

she would have kept her job for four years had B&S not 

terminated her in November 2017.

As to noneconomic damages, Juarez admitted she did not 

know if her anxiety and headaches were related to her 

employment at B&S. That does not carry her burden of proof by 

a preponderance of the evidence.

III

Juarez contends B&S failed to engage in the interactive 

process and provide reasonable accommodation.

The contention presumes the jury found Juarez was 

disabled. On appeal, we presume the jury made all findings in 

support of the general verdict. (Philpott v. Mitchell (1963) 219 

Cal.App.2d 244, 255.) We presume the jury found Juarez was not 

disabled.

IV

Juarez contends the trial court’s response to the jury’s 

question constitutes reversible error.

During deliberations, the jury asked, “Is company policy of 

requiring 12 months of service before mel. [sic] leave is granted 

legal? Or not? What is the law regarding that?”

The trial court replied:
9

“As a general rule, employers in California may establish 

their own policies with respect to medical leave; however, in some 

circumstances the rules may be different with respect to 

employees who have a disability or who are perceived by the 

employer as having a disability. Please refer to the instructions I 

provided you earlier for more information.

“The rules concerning employees with actual or perceived

disabilities when applicable are not affected by how long the 

employee has been employed by the employer.” 

Juarez does not complain that the trial court’s response to 

the jury’s question was in any way inaccurate. Instead, her 

complaint appears to be that the court’s answer led the jury away 

from considering whether the three days’ leave B&S granted

Juarez was a reasonable accommodation for her disability. But 

the jury did not ask about reasonable accommodation. The court 

properly answered the question the jury asked, not the question

Juarez wished the jury had asked. In fact, the court’s response 

was favorable to Juarez. It told the jury that B&S’s leave policy 

does not apply if Juarez is disabled. The verdict shows the jury 

found Juarez was not disabled.

Juarez claims the jury’s question shows beyond a 

reasonable doubt that the jury failed to appreciate B&S 

accommodated Juarez with three days’ medical leave under 

FEHA. The question shows nothing of the sort. The jury was 

unlikely to conclude that the three days’ leave was an 

accommodation under FEHA. There is no evidence B&S had 

notice during those three days that Juarez was claiming she is 

disabled and seeking accommodations. She simply phoned in 

sick day by day.
10

Moreover, if the jury failed to focus on the three-day leave 

as an accommodation under FEHA, it was probably because 

Juarez failed to raise the issue at trial. Juarez’s counsel’s 

argument to the jury was entirely bereft of any reference to the 

three-day leave as an accommodation under FEHA. Counsel 

argued only that B&S’s refusal to grant Juarez two weeks to 

recover from surgery was a failure to grant her a reasonable 

accommodation for her disability.

As to why the jury asked the question about the legality of 

B&S’s leave policy, it was most likely because Juarez’s counsel 

during argument to the jury constantly referred to B&S’s leave 

policy as an illegal policy.

V

Juarez contends the trial court erred in refusing to give her 

requested special jury instructions.

Juarez argues the trial court erred in refusing to give 

special instructions 3, 4, 6, 7, 8, and 9. Her opening brief does 

not supply the substance of those proposed instructions, only 

their numbers. Nor does Juarez’s opening brief provide any 

elucidation on why it was error to refuse the instructions. She 

only provides the conclusory statement that the proposed 

instructions are nonargumentative, essential to the theory of her 

case, and supported by substantial evidence. We need not 

discuss such conclusory claims of error on appeal. (In re S.C.

(2006) 138 Cal.App.4th 396, 408.)

Juarez’s effort to make up in her reply brief for the 

inadequacy of her argument in her opening brief is unavailing. 

We do not consider points raised for the first time in the reply 

brief. (Martinez v. State Dept. of Health Care Services (2017) 19 

Cal.App.5th 370, 375.)
11

Finally, if the trial court erred in refusing to give any of the 

special instructions, Juarez fails to show prejudice. The trial 

court gave the appropriate Judicial Council of California Jury 

Instructions.

The California jury instructions approved by the Judicial

Council are the official instructions for use in state courts. (Cal. 

Rules of Court, rule 2.1050(a).) The goal of the instructions is to 

improve the quality of jury decision-making by accurately stating 

the law in a way that is understandable to the average juror. 

(Ibid.) The use of Judicial Council instructions is strongly 

encouraged. (Id., rule 2.1050(f).) 

Juarez points to nothing so unique about her case that 

special jury instructions are required. The problem with Juarez’s 

case was not the lack of special jury instructions, it was the lack 

of Juarez’s credibility.

DISPOSITION

The judgment is affirmed. Costs are awarded to 

respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. CODY, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Employee Justice Legal Group, Kaveh S. Elihu, Victor R. 

Ujkic and Steven Berkowitz for Plaintiff and Appellant.

McCarthy & Kroes, R. Chris Kroes and Linda EliasWheelock for Defendant and Respondent.