Judge: Richard Y. Lee, Case: 30-2020-01172736, Date: 2023-07-27 Tentative Ruling

Defendants Water Heater Man, Inc. and Tomas Robert Guerra (“Defendants”) filed an unopposed Motion for Summary Judgment and moved alternatively for summary adjudication.

On January 19, 2023, the court ruled on Defendants Water Heater Man, Inc. and Tomas Robert Guerra’s unopposed Motion for Summary Judgment and/or Summary Adjudication.  The court granted summary adjudication as to the first, second, third, fourth, sixth, seventh, and eighth causes of action.  The court already ruled in favor of Defendants on these causes of action and therefore the Motion for Summary Adjudication is MOOT as to the first, second, third, fourth, sixth, seventh, and eighth causes of action.

On January 19, 2023, the court denied summary adjudication as to the fifth cause of action for violation of Government Code section 12940(n).  Thus, only one cause of action remains: Plaintiff’s fifth cause of action for violation of Government Code section 12940(n).

Government Code section 12940(n) states that it is 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.”  (Gov. Code, § 12940, subd. (n).)

“Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively [citation], an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action [citation].”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, as modified on denial of reh'g (Dec. 23, 2014).)

“The employee must initiate the process unless his or her disability and the resulting limitations are obvious. Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith.”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, as modified on denial of reh'g (Dec. 23, 2014).)

“Both employer and employee have the obligation ‘to keep communications open’ and neither has ‘a right to obstruct the process.”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972, as modified on denial of reh'g (Dec. 23, 2014).)  “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party.”  (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 972, as modified on denial of reh'g (Dec. 23, 2014).)

“Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 972, as modified on denial of reh'g (Dec. 23, 2014).)  Moreover, “[t]o 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.”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018.)

Here, Defendants argue that Plaintiff was terminated for misconduct.  However, whether Plaintiff was terminated for misconduct does not have any bearing on whether Defendants properly participated in the interactive process after Plaintiff initiated the process.  Defendants do not proffer any new evidence in this Motion for Summary Adjudication that was not already proffered in the previous Motion.

Still, there is no sworn testimony regarding the interactive process.  There is no sworn evidence that Plaintiff failed to initiate the interactive process or that Defendants properly engaged in the interactive process upon Plaintiff’s request for accommodation.

Therefore, Defendants have not carried their burden to establish that they engaged in a timely, good faith interactive process with Plaintiff.

As such, the Motion for Summary Adjudication is DENIED as to the fifth cause of action.

Defendants to give notice.