Judge: Lynne M. Hobbs, Case: 22STCV32526, Date: 2025-03-06 Tentative Ruling

Case Number: 22STCV32526    Hearing Date: March 6, 2025    Dept: 61

ANDREW LITHGOE vs COUNTY OF LOS ANGELES, A PUBLIC ENTITY, et al.

Tentative:

Defendant County of Los Angeles' motion for summary judgment or summary adjudication is DENIED.

Plaintiff to provide notice.

Analysis:

I. OBJECTIONS

Plaintiff Andrew Lithgoe (Plaintiff) objects to various portions of Defendant’s separate statement. These objections are ill-framed, as they are directed to the points in Defendant’s separate statement, rather than the evidence upon which they are based, as provided in Rules of Court, Rule 3.1352. The merits of Plaintiff’s arguments concerning Defendant’s satisfaction of its initial burden of production as relates to the opinion of Dr. Adam Anees will be discussed in the body of the ruling.

Defendant County of Los Angeles submits objections to the evidence submitted by Plaintiff in opposition. Objection Nos. 3 and 4 to the declaration of David Duchrow are SUSTAINED as to the truth of the matters contained in the medical report authenticated by Plaintiff’s counsel, but the document is admissible to show that it was presented to Defendant. Defendant’s Objection No. 2 is also SUSTAINED as to the truth of the matters contained in the medical report, though admissible to show what was submitted to Defendant. Objection No. 4 to the motivations of Plaintiff’s coworkers who believed he had a seizure is SUSTAINED as speculative. Objection No. 7 to Plaintiff’s testimony as to medication’s ability to render seizures predictable is SUSTAINED as offering an expert opinion without foundation. The remaining objections are OVERRULED.

I. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant County of Los Angeles’ (Defendant) motion for summary judgment or adjudication is based on a relatively simple premise. Plaintiff Andrew Lithgoe (Plaintiff), a firefighter working for Defendant, had been placed on a temporary light-duty assignment following his epilepsy diagnosis in 2010, up and until obtaining a full release to return to work without restrictions from his doctor in May 2021. (Motion Exh. DD.)

On September 30, 2021, Plaintiff was briefly hospitalized for a medical event that his coworkers identified as a seizure, but which Plaintiff claims was mere lightheadedness. (Motion Exh. HH; Lithgoe Decl. ¶ 18.) Plaintiff thereafter submitted to a Fitness for Duty Evaluation (FFDE), at Defendant’s request, with Dr. Adam Anees, an independent doctor contracted to perform such work with the County. (Lithgoe Decl. ¶¶ 26–28.) Defendant contends that Dr. Anees’ report indicated that Plaintiff required a work restriction that prevented him from working more than 12 hours at a time with an eight-hour interval between shifts, and therefore Plaintiff could not perform the essential functions of a firefighter position, a fact justifying his removal from work. (Motion at pp. 16–19.)

To establish a discrimination claim under FEHA, an employee must prove the following elements: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 378.) If the employer offers evidence of a legitimate, nondiscriminatory reason for the action, “the plaintiff bears the burden of proving the employer's proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

Defendant presents no admissible evidence to suggest that Plaintiff is not qualified for the firefighter position. Despite relying on the opinion of Dr. Anees, Defendant neither presents Dr. Anees’s report nor his testimony, instead relying on summaries of this opinion relayed to Defendant’s fire department by Defendant’s human resources department. (Motion Exhs. H, G.) Plaintiff’s objections to these documents based on hearsay are the focus of his opposition, and Defendant does not answer them in reply. (Opposition at pp. 4–5, 10–11.) Plaintiff’s objections are meritorious, as these documents are presented for the truth of the out of court statements contained within them: that Plaintiff is unable to perform certain job-essential functions of a firefighter. (Evid. Code § 1200.)

It may be argued* that although the documents are not admissible to prove the factual point of Plaintiff’s lack of qualifications, they may be admissible to show the absence of discriminatory motive, and that Defendant’s decision to remove Plaintiff from his position was based on reasonable deference to an independent medical opinion. However, Defendant does not present evidence concerning who made the decision regarding Plaintiff’s permanent disability, nor the materials they relied upon in making this determination. Inferentially the decisionmaker was Rachel Lara, risk manager for the Fire Department, whose declaration Defendant submits in support of the motion. (Lara Decl. ¶¶ 1–2.) But Lara does not describe how she determined the validity of Plaintiff’s restrictions, instead describing Dr. Anees’s findings independent of all context, without adducing the materials from which she gathered this information. (Lara Decl. ¶ 8.)

Even assuming the argument was properly made, this would be insufficient on its own to support summary judgment absent some evidence to support the reasonableness of Defendant’s determination:

The short of it is that a medical opinion is often cogent evidence of nondiscriminatory intent—in some instances, it may even be enough to justify summary judgment, [citation]—but the mere obtaining of such an opinion does not automatically absolve the employer from liability under the ADA. [Citation]. Thus, an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions. (Gillen v. Fallon Ambulance Service, Inc. (1st Cir. 2002) 283 F.3d 11, 31–32, cited with approval in Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 49 fn. 11.)

Defendant presents no evidence concerning its assessment of Anees’ conclusions. Lara at one point testifies that she is “not aware of any doctor contradicting this [Anees] report, nor any physician certifying that Plaintiff could work as a firefighter and perform the essential job duties of a firefighter without restrictions.” (Lara Decl. ¶ 8.) But Plaintiff’s counsel testifies concerning his submission to Lara of a report from Plaintiff’s treating physician, Dr. Jeffrey Chung, clearing him to return to work free of all restrictions following a May 9, 2022 examination, which was submitted to Lara after the Anees determination. (Opposition Exh. 8 (LARA DOCS 0044–0048 (Depo Exh. 4) ; Lithgoe Decl. ¶ 12.) Again, Defendant does not address this evidence.

Triable issues of fact thus exist as to whether Plaintiff required the restrictions that justified removing him from work.

The motion is therefore DENIED.

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*Defendant does not make any such argument because Defendant does not address Plaintiff’s objections.