Filed 5/20/19; Certified for Publication 6/10/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA


CHRISTOPHER ROSS,                                                   D075106

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. PSC1403729)

COUNTY OF RIVERSIDE,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Riverside County, David

Chapman, Judge. Reversed and remanded for further proceedings.

         Gusdorff Law, Janet Gusdorff; Sottile Baltaxe, Timothy B. Sottile, Michael F.

Baltaxe, Jeremy D. Scherwin, and Payam I. Aframian for Plaintiff and Appellant.

         Woodruff, Spradlin & Smart, Daniel K. Spradlin and Cynthia W. Kole for

Defendant and Respondent.

                                                          I

                                              INTRODUCTION

         Christopher Ross appeals from a summary judgment granted in favor of the

County of Riverside on Ross's claims for violation of Labor Code section 1102.5 and for
violation of the provisions in the Fair Employment and Housing Act (Gov. Code, § 12900

et seq.; FEHA) prohibiting disability discrimination, failure to reasonably accommodate,

failure to engage in the interactive process, and failure to prevent disability

discrimination.1 Because we conclude there are triable issues of material fact of the

questions of whether Ross engaged in protected activity under Labor Code section 1102.5

and whether Ross had a physical disability under the FEHA, we reverse the judgment as

to these claims and remand the matter for further proceedings consistent with this

decision.




1      Ross also had claims for disability harassment and disability retaliation. Ross
abandoned his disability harassment claim. In addition, for the first time on appeal, the
County asserted it is entitled to summary judgment on Ross's disability retaliation claim
because the claim as alleged by Ross did not exist under the FEHA in 2013. Ross does
not dispute the point. (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 244–248.)

                                              2
                                              II

                                     BACKGROUND2

                                              A

       Ross worked for the County as a deputy district attorney. He was assigned to the

homicide prosecution unit and was "responsible for however many cases were assigned

to [him] by [his] supervisor." In addition to trying the cases, his duties included filing

complaints and informations; conducting preliminary hearings; appearing at trial

readiness conferences, settlement conferences, and motion hearings; and preparing for

trial, including turning over discovery, interviewing witnesses, and conducting further

investigation. Among the cases assigned to him were death penalty cases, which were

considered the most difficult cases in the office.

       In July or August 2011, an assistant district attorney assigned him a case initially

handled by another attorney. The attorney told the assistant district attorney she believed

the defendant was innocent. Although the defendant had admitted committing the crime,

the attorney believed the defendant's confession was coerced.




2      As required when a case is on appeal from the grant of a defendant's motion for
summary judgment, we recite the evidence in the light most favorable to the plaintiff.
(Ennabe v. Manosa (2014) 58 Cal.4th 697, 703.) Below the County submitted 113
objections to Ross's evidence, which the trial court overruled without substantive
comment. The County requests we sustain the objections and exclude the challenged
evidence on appeal. However, we decline to review the propriety of the court's ruling on
the objections because the County did not file a cross-appeal and has not asserted review
of the court's ruling is necessary to determine whether any trial court error prejudiced
Ross. (See Code Civ. Proc., § 906; Building Industry Assn. v. City of Oceanside (1994)
27 Cal.App.4th 744, 758, fn. 9.)
                                              3
       In late November 2011, the attorney provided Ross with a memorandum in which

she recommended dismissing the case because the defendant was innocent. She

previously recommended dismissing the case more than year earlier during a meeting

about the case because she believed the case lacked inculpatory evidence. However, the

district attorney and assistant district attorney took no action at the time.

       In December 2011, Ross e-mailed his supervisor and the assistant district attorney

about the case. He informed them he did not believe the district attorney's office could

prove the case beyond a reasonable doubt. He recommended conducting further DNA

testing.

       Two days later, Ross sent additional evidence out for DNA testing. The same day

he e-mailed his supervisor and the assistant district attorney and again informed them he

did not believe the district attorney's office could prove the case beyond a reasonable

doubt. He recommended dismissing the case.

       Ross believed the district attorney's office was violating the defendant's due

process rights by engaging in a malicious prosecution case against the defendant;

however, he never expressly informed his supervisor or the assistant district attorney he

believed the district attorney's office was violating state or federal law.

       About five months later, in May 2012, Ross received the results from the DNA

testing. The results exculpated the defendant and Ross turned the results over to defense

counsel. Based on the DNA test results, Ross believed there was no longer probable

cause to file a case against the defendant.



                                               4
       A year later, in May 2013, Ross received "corrected" results from the DNA

testing. The results exculpated the defendant with further certainty and Ross turned the

results over to defense counsel.

       Ross informed his supervisor and the assistant district attorney about the DNA

results and again recommended dismissing the case. The assistant district attorney told

him not to turn the results over to the defense and appeared upset when Ross indicated he

had already disclosed the results to defense counsel.

       In late September 2013, Ross learned of a new witness in the case. In early

October 2013, an investigator interviewed the witness. The witness informed the

investigator the defendant was innocent and implicated the defendant's roommate instead.

       Ross had the investigator interview another witness and obtained recordings of

phone calls the roommate made while in jail. In late October 2013, the investigator

located recordings of two phone calls in which the roommate admitted to murdering the

victim. By then, Ross had been transferred to the Filing Unit (see part II.B., post). He

had the investigator send the information to the assistant district attorney.

       A few days later the assistant district attorney, the chief deputy district attorney,

and Ross's supervisor met with the investigator to discuss the case, particularly the

exculpatory effect of the most recently obtained evidence. During the meeting, the

assistant district attorney told the investigator not to turn the phone call evidence over to

the defense attorney.

       After the meeting, the assistant district attorney contacted Ross and asked whether

Ross had turned the phone call evidence over to the defense attorney. Ross asked if the

                                              5
assistant district attorney wanted him to turn the evidence over. The assistant district

attorney stated he would take care of it and handle the case. The district attorney's office

dismissed the case against the defendant in February 2014.

                                              B

       In May 2013, the same month Ross received the "corrected" DNA test results,

Ross learned he was exhibiting neurological symptoms that required evaluation and

testing to determine whether he had a serious neurological condition. The same month or

the next month, he told his supervisor he might be very seriously ill with a

neurodegenerative disease and needed to undergo medical testing. He requested a

transfer to another assignment during the testing. His supervisor declined his request,

telling him the district attorney's office would worry about his cases and transferring him

if and when he found out he could not continue in his position.

       Ross also asked not to be assigned any new cases until after he completed the

medical testing. His supervisor declined this request without explanation. Ross then

arranged with opposing counsel to continue the work on his cases for several months

until he had completed his medical testing.

       Sometime a week or two later, the chief deputy district attorney called and asked

Ross if he wanted to be transferred to the Filing Unit or to receive another

accommodation. Ross declined the offer because he had already continued the work on

his cases and no longer needed a transfer. In addition, he believed the Filing Unit's filing

quota would be too stressful for him to meet because of his doctors' appointments.



                                              6
However, to avoid stress, he asked not to receive any new cases. The chief deputy

district attorney agreed to the request.

       In mid-September 2013, Ross told his supervisor multiple doctors from the out-of-

state clinic where he was undergoing testing told him he could not have any stress from

work as it was causing many of his symptoms and medical problems. He also told her he

needed further testing because, although the doctors had ruled out two neurological

diseases, they thought he might have an as yet undiagnosable autoimmune disorder as

well as brain damage from multiple concussions.

       The next day, Ross's supervisor assigned him a new death penalty case to work on.

He told her he could not work on the case because he had further medical testing through

October 2013. She told him to start work on the case and she would take it over if he

could not complete it. He complained to the chief deputy district attorney about the new

assignment because he believed they had an agreement he would not receive any new

case assignments while he was undergoing testing. He reiterated his medical need for

stress aversion and asked to speak with the chief deputy district attorney in person about

the matter. When they spoke, the chief deputy district attorney assured Ross the case

would be reassigned back to Ross's supervisor until Ross was finished with his medical

testing. However, the reassignment never occurred.

       In late September 2013, Ross met with his supervisor, the chief deputy district

attorney, and the assistant district attorney to discuss transferring him from the Homicide

Unit to the Filing Unit for the next three months because he was not able to go to trial or

accept new cases. In the assistant district attorney's view, Ross's inability to accept new

                                             7
cases or go to trial in the near term made him insufficiently productive to be a member of

the Homicide Unit.

       Ross informed the trio he had a concussion syndrome from his work during his

military service and his doctors were testing him for any possible neurological issues the

syndrome may be causing. He also informed them his doctors suspected he has an

unmanifested autoimmune disorder and they advised him to reduce his stress levels.

       Ross followed up the meeting with the letter asking the trio to be patient until the

end of November 2013 when his medical testing would be completed. He stated he did

not have any cases going to trial within the next 60 days and would be able to appear in

court on his cases and prepare them for trial while still being able to travel out-of-state as

needed for medical appointments. He also stated being reassigned to the Filing Unit

would be too stressful since he did not believe "based upon [his] current medical

conditions and the limitations proscribed by [his] treating physicians" he would be able to

meet the filing quotas. In addition, he felt the reassignment would be "far too strenuous

and stressful" because he was expected to continue assisting with his homicide cases. He

stated his current medical condition only allowed him to handle a single assignment. He

explained the reasons he believed the rationale for the reassignment was faulty. He then

stated it was his position "that it would be best for the Homicide Unit and [his] health to

keep [him] in [his] current position of assignment and not assign [him] any new cases

until December [2013], when [they] will know [his] health concerns." He testified in

deposition that, although his position in the Homicide Unit would usually be more

stressful than a position in the Filing Unit, it was not in this instance because he had

                                              8
arranged for three-month continuances of the motion hearings, preliminary hearings, and

trials on his cases.

       A few days later, at the end of September 2013, Ross completed a form querying

his assignment preferences for the upcoming 2013 rotations. On the form, he stated he

wanted to move to "something with no stress, no quotas, no deadlines, no pressure."

       About two weeks later, in mid-October 2013, the assistant district attorney sent

Ross a memorandum recounting Ross's statements indicating his need for stress aversion,

including Ross's statements on the assignment preferences form. The memorandum

directing Ross "to provide a physician's written documentation that indicates whether or

not you have restrictions or limitations on your duties. Once you have provided such

documentation we will be better able to determine how to move forward. If there are

limitations and/or restrictions we will work with County Human Resources to engage in

the return to work process and an interactive process, to ensure we are making reasonable

accommodation under [the Americans with Disabilities Act (42 U.S.C. § 12101 et seq;

ADA) and the] FEHA."

       Around this same time, the assistant district attorney offered Ross an opportunity

to take leave of absence under the Family and Medical Leave Act of 1993 (29 U.S.C.

§ 2601 et seq.; FMLA), which Ross declined. The district attorney's office subsequently

rotated him from the Homicide Unit to the Filing Unit.

       By the end of October 2013, Ross had not supplied the requested physician's

documentation. The assistant district attorney sent him an e-mail directing him to submit

the documentation on or before the close of business two business days later. Ross told

                                            9
the assistant district attorney he was unable to obtain the documentation from the

physicians evaluating him at the out-of-state clinic because they had a practice of not

supplying such documentation; however, he twice offered to obtain a note from his

primary care physician stating he was medically fit to work. The assistant district

attorney declined the offer and insisted the documentation had to come from the out-of-

state clinic.

       Ross never provided the County with any documentation from a health care

provider regarding any restrictions or limitations on his ability to perform his duties. In

addition, he testified in his deposition that none of the physicians at the out-of-state clinic

suggested any restrictions on his activity at work or outside of work. Rather, they

advised him to reduce his stress load at work and in his life in general. Specifically, they

advised to have his work do whatever was necessary to reduce his stress.

       From June 2013 to November 2013, Ross missed about three weeks of work to

attend out-of-state medical appointments. In mid-November 2013, the County placed him

on a paid administrative leave of absence pending the outcome of a fitness-for-duty

examination. The County scheduled an appointment with a neurologist in Orange

County. The appointment was to occur in early January 2014. However, Ross requested

the appointment be moved to Los Angeles. Meanwhile, the County requested Ross sign a

medical records release. Without the medical records release, the County was unable to

secure an appointment with a neurologist in Los Angeles.

       Around the same time, in January 2014, Ross decided he no longer wanted to

work for the district attorney's office. In February 2014, Ross served the County with a

                                              10
government claim, which the County denied. In March 2014, he filed a federal lawsuit

against the County, which he later dismissed.

       In mid-April 2014, the County wrote Ross explaining that for the County to

engage in a good faith interactive process and to evaluate his request for accommodation

the County needed medical documentation from an appropriate healthcare professional or

from the Board-certified specialist selected to perform the fitness for duty examination.

The County provided Ross with three options for accomplishing these objectives. The

first option was to "provide ... a listing of functional limitations (not a diagnosis) from an

appropriate healthcare professional ... and we will contact our HR Service Team to begin

the ADA/FEHA interactive accommodation process." The second option was to "sign

the medical release(s) requested by Occupational Health and the fitness for duty

examination will proceed. Upon receipt of the outcome of the fitness for duty

examination, the ADA/FEHA interactive accommodation process will be initiated if

functional limitations are imposed." The last option was to "return to work [on a

specified date two weeks from the date of the letter], without accommodation and

perform the full scope of your job duties ... . Without medical documentation supporting

the need for a work accommodation, the County is entitled to require you perform all of

the essential functions of your job without accommodation." The next day, a County

human resources services manager sent Ross a letter inviting him to participate in the

interactive accommodation process.




                                              11
      A little over a week later, Ross's counsel sent the County's counsel a letter stating

no reasonable person could work for the County under the conditions Ross endured.

Consequently, Ross deemed himself constructively terminated as of the date of the letter.

      A few days later, at the end of April 2014, the County sent Ross another letter

directing him to return to work on Monday of the following week. The letter informed

him he would be welcomed to work by his supervisor and there would be a meeting with

the human resources service team at which time he would have "the opportunity to raise

any concerns that [he] may have about returning to work, whether related to the

interactive process, accommodations, FMLA leave, or any other matters related to your

employment."

      In mid-May 2014, the County sent Ross a letter again ordering him to return to

work by a specified date. Ross sent a responsive letter indicating he had been

constructively terminated and no longer worked for the County.

      In early June 2014, the County sent Ross a letter directing him to contact the

County by a specified date. The letter further informed him if he did not contact the

County by that date, the County would consider him to have abandoned his position.

      A few days later, Ross sent a responsive letter stating he had repeatedly informed

the County he would not be returning to work and requesting the County pay him for any

accrued vacation and sick leave. Eleven days later, in mid-June 2014, the County sent

Ross a final notice of job abandonment indicating the County considered him to have

abandoned his job as of June 12, 2014.



                                            12
                                             C

       In July 2014, Ross sued the County and others for violations of Labor Code

section 1102.5 and the FEHA's disability-related provisions. The County filed a motion

for summary judgment. As related to this appeal, the County asserted Ross could not

establish his claim for violation of Labor Code section 1102.5 because he cannot prove

he engaged in protected activity. He could not establish his claim for disability

discrimination because he could not prove he could perform the essential functions of his

job. He could not establish his claim for failure to provide a reasonable accommodation

for the same reasons as well as because he could not prove he had any functional

limitations requiring accommodation and his requested accommodation was not

reasonable. He could not establish his claim for failure to engage in the interactive

process because he did not interact in good faith. And, he could not establish his claim

for failure to prevent disability discrimination because he could establish his claims for

disability discrimination.

       The court granted the motion as to Ross's claim for violation of Labor Code

section 1102.5 claims on the ground Ross could not establish he engaged in activity

protected under this statute. The court granted the motion as to Ross's claims for

disability discrimination, failure to reasonably accommodate, and failure to engage in the

interactive process on the ground Ross could not establish he was disabled.




                                             13
                                              III

                                       DISCUSSION

       "A moving party is entitled to summary judgment when the party establishes that

it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A defendant may make this showing by demonstrating that the plaintiff cannot

establish one or more elements of all of his or her causes of action, or that the defendant

has a complete defense to each cause of action. [Citation.]

       "In reviewing a trial court's ruling on a motion for summary judgment, the

reviewing court makes ' "an independent assessment of the correctness of the trial court's

ruling, applying the same legal standard as the trial court in determining whether there

are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law. [Citations.]" [Citation.]' [Citation.]" (Nosal-Tabor v.

Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234.)

                                              A

       We first consider Ross's claim for violation of Labor Code section 1102.5. Under

this code section, an employer may not retaliate "against an employee for disclosing

information ... to a government or law enforcement agency [or] to a person with authority

over the employee ... if the employee has reasonable cause to believe that the information

discloses a violation of [a] state or federal statute, or a violation of or noncompliance with

a local, state, or federal rule or regulation, regardless of whether disclosing the




                                              14
information is part of the employee's job duties." (Lab. Code, § 1102.5, subd. (b).)3 "A

report made by an employee of a government agency to his or her employer is a

disclosure of information to a government or law enforcement agency." (Lab. Code,

§ 1102.5, subd. (d).)

          A claim for violation of Labor Code section 1102.5 requires "(1) the plaintiff

establish a prima facie case of retaliation, (2) the defendant provide a legitimate,

nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is

merely a pretext for the retaliation. [Citations.]" (Manavian v. Department of Justice

(2018) 28 Cal.App.5th 1127, 1141.) To establish the first element, the plaintiff must

show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the

plaintiff to an adverse employment action, and (3) there is a causal link between the two.

(Ibid.)

          Ross contends we must reverse the summary judgment as to his claim for violation

of Labor Code section 1102.5 because there is a triable issue of material fact on the

question of whether he engaged in activity protected by the statute. An employee

engages in protected activity under the statute when the employee discloses " 'reasonably

based suspicions' of illegal activity. [Citation.]" (Green v. Ralee Engineer Co. (1998) 19

Cal.4th 66, 87.) "To have a reasonably based suspicion of illegal activity, the employee


3       Our citations to Labor Code section 1102.5 are to the current version of the statute.
(Stats. 2015, ch. 792, § 2, eff. Jan. 1, 2016.) Former versions of statute were in effect
when the acts underlying Ross's complaint occurred. (See Stats. 2003, ch. 484, § 2, eff.
Jan. 1, 2004; Stats. 2013, ch. 577, § 5, Stats. 2013, ch. 732, § 6, and Stats. 2013, ch. 781,
§ 4.1, eff. Jan 1, 2014.) Neither party argues we should apply a former version of the
statute in this appeal.
                                               15
must be able to point to some legal foundation for his suspicion—some statute, rule or

regulation which may have been violated by the conduct he disclosed. [Citation.]"

(Fitzgerald v. El Dorado County (E.D. Cal. 2015) 94 F.Supp.3d 1155, 1172.)

       In this case, Ross provided evidence showing he disclosed information to his

superiors indicating the district attorney's office would not be able to prove a particular

murder case beyond a reasonable doubt and lacked probable cause to continue

prosecuting the case because the defendant's confession was coerced, Ross discovered

DNA evidence exculpating the defendant, and the defendant's roommate admitted in

recorded phone calls to being the killer. Based on this information, Ross recommended

dismissing the case. He based this recommendation, at least in part, on his belief

continued prosecution would violate the defendant's due process rights as well as a

prosecutor's ethical obligations under state law. (See Bus. & Prof. Code, § 6068, subd.

(f) [An attorney has the duty to "advance no fact prejudicial to the honor or reputation of

a party or witness, unless required by the justice of the cause with which he or she is

charged"]; Gov. Code, § 26501 ["The district attorney shall institute proceedings before

magistrates for the arrest of persons charged with or reasonably suspected of public

offenses when he has information that such offenses have been committed"]; Rules Prof.

Conduct, rule 3.8(a) ["The prosecutor in a criminal case shall [¶] not institute or continue

to prosecute a charge that the prosecutor knows is not supported by probable cause"].)

       If credited by a trier of fact, the evidence shows Ross engaged in protected activity

because he disclosed information to a governmental or law enforcement agency and to

people with authority over him which he reasonably believed disclosed a violation of or

                                             16
noncompliance with federal and state law applicable to criminal prosecutions and

prosecutors. Although Ross did not expressly state in his disclosures that he believed the

County was violating or not complying with a specific state or federal law, Labor Code

section 1102.5, subdivision (b), does not require such an express statement. It requires

only that an employee disclose information and that the employee reasonably believe the

information discloses unlawful activity. (Lab. Code, § 1102.5, subd. (b).)

       Moreover, the particular information disclosed in this case, that evidence

developed during Ross's handling of the case undermined the district attorney's office's

basis for continuing to prosecute the case, should have raised the same constitutional,

statutory, and ethical concerns to Ross's superiors as they did to Ross because Ross's

superiors were also prosecutors subject to the same legal and ethical constraints as Ross.

Accordingly, we conclude the court erred in granting the County summary judgment as to

Ross's cause of action for violation of Labor Code section 1102.5 to the extent the cause

of action is based on the prohibitions in subdivision (b).

       Given this conclusion, we need not address whether there is a triable issue of

material fact on the question of whether the County violated Labor Code section 1102.5,

subdivision (c), which prohibits an employer from retaliating "against an employee for

refusing to participate in an activity that would result in a violation of [a] state or federal

statute, or a violation of or noncompliance with a local, state, or federal rule or

regulation." We also need not address whether there is a triable issue of material fact on

the question of whether the County violated Labor Code section 1102.5, subdivision (a),

by "mak[ing], adopt[ing], or enforc[ing] any rule, regulation, or policy preventing an

                                              17
employee from disclosing information to a government or law enforcement agency [or] a

person with authority over the employee ... if the employee has reasonable cause to

believe that the information discloses a violation of [a] state or federal statute, or a

violation of or noncompliance with a local, state, or federal rule or regulation, regardless

of whether disclosing the information is part of the employee's job duties."

                                               B

       We next consider Ross's claims for violations of the FEHA. The FEHA prohibits

an employer from discharging or discriminating against an employee because of the

employee's physical disability. (Gov. Code, § 12940, subd. (a).) The FEHA also

prohibits an employer from failing to reasonably accommodate an employee's known

physical disability, from retaliating against an employee who requested reasonable

accommodation, and from failing to engage in a timely, good faith interactive process

with an employee who requested reasonable accommodation. (Id., subds. (m), (n).)

       Ross contends we must reverse the summary judgment on his claims for violations

of the FEHA because there is a triable issue of material fact on the question of whether he

was physically disabled within the meaning of the FEHA. A physical disability under the

FEHA includes any physical impairment that affects the neurological or immunological

systems and limits a major life activity. (Gov. Code, § 12926, subd. (m)(1).) A physical

disability "limits a major life activity if it makes the achievement of the major life activity

difficult." (Gov. Code, § 12926, subd. (m)(1)(B)(ii); Cal. Code Regs., tit. 2, § 11065,

subd. (l)(3).) " '[W]orking' is a major life activity, regardless of whether the actual or

perceived working limitation implicates a particular employment or a class or broad

                                              18
range of employments." (Gov. Code, § 12926.1, subd. (c), § 12926, subd. (m)(1)(B)(iii);

Cal. Code Regs., tit. 2, § 11065, subd. (l)(1)&(3)(D).) Repeated or extended absences

from work for medical appointments constitute a limitation on the major life activity of

working. (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 588–

589.)

        A physical disability may be temporary or short term (Diaz v. Federal Express

Corp. (C.D. Cal, 2005) 373 F.Supp.2d 1034, 1043) and includes not only physical

impairments that are actually disabling, but also physical impairments that are potentially

disabling or are perceived as disabling or potentially disabling. (Gov. Code, § 12926.1,

subd. (b) ["It is the intent of the Legislature that the definitions of physical disability and

mental disability be construed so that applicants and employees are protected from

discrimination due to an actual or perceived physical or mental impairment that is

disabling, potentially disabling, or perceived as disabling or potentially disabling"].) A

physical disability is perceived as potentially disabling when an employer regards or

treats an employee as having a physical impairment that has no present disabling effect

but may become a disabling in the future. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(6);

American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603,

609–610.)

        In this case, Ross provided evidence he had symptoms of and was being tested at

an out-of-state clinic for a potentially disabling neurological disease or autoimmune

disorder. The testing occurred over several months, requiring him to periodically take

time off work to travel to the clinic. To accommodate the testing, he first requested to be

                                              19
assigned to another unit, which his supervisor denied. He then requested not to receive

any new cases to work on during the testing, which his supervisor also denied, but which

a higher-level supervisor granted. Meanwhile, he arranged with opposing counsel to

continue the motions and hearings on his existing cases to enable him to complete the

testing while maintaining relatively stress-free working conditions.

       About midway through the testing process, his supervisor assigned him a new

case. He complained about receiving the new case because it contravened his agreement

with the higher-level supervisor, it required immediate attention, there were other

prosecutors available to handle it, and handling it would increase his stress level, which

the physicians conducting the testing had advised him to avoid.

       Around the same time, Ross completed a form querying his preferences for his

assignment rotation and indicated a desire for a stress-free assignment. In a subsequent

meeting with his supervisor and two higher-level supervisors to discuss the possibility of

transferring him to the Filing Unit, he indicated the transfer would be too stressful

because of the Filing Unit's production quotas. Instead, he indicated the least stressful

option for him would be to remain in the Homicide Unit with his current caseload, which

he had adjusted to allow for completion of his medical testing without any imminent

deadlines. But, the assistant district attorney did not want him to remain in the Homicide

Unit because he believed Ross's inability to accept new cases or go to trial while

undergoing testing made Ross insufficiently productive for the Homicide Unit.

       When the assistant district attorney asked Ross for medical documentation of any

work limitations, Ross offered to provide documentation from his primary care physician.

                                             20
However, the assistant district attorney would only accept documentation from the out-

of-state clinic conducting the testing. Ross could not produce the documentation because

the clinic did not provide such documentation. Meanwhile, the assistant district attorney

transferred Ross involuntarily to the Filing Unit and then placed him on a paid leave of

absence pending the outcome of a fitness for duty examination.

       This evidence, if believed by the trier of fact, shows Ross had a temporary or

short-term physical impairment that was potentially disabling or perceived by the County

as potentially disabling enough to transfer Ross from one unit to another unit; request he

supply medical documentation of the impairment, but only from a doctor at the out-of-

state clinic where he was undergoing testing; and place him on a paid leave of absence

pending a fitness for duty examination arranged by the County. The physical impairment

limited the major life activity of working because it required Ross to be absent from work

periodically over several months to travel to an out-of-state clinic for medical testing. As

this evidence meets Ross's burden of demonstrating there is a triable issue of material fact

on the question of whether he had a physical disability under the FEHA, the court erred

in granting summary judgment on Ross's claims for disability discrimination, failure to

reasonably accommodate, failure to engage in the interactive process, and failure to

prevent disability discrimination.

                                               C

       In the Conclusion section of his opening brief, Ross requested without authority

that "this Court exercise its powers, in the interest of justice, to remand the case to a trial

court within San Bernardino County because of the conflict of interest with defendant,

                                              21
Riverside County, arising from the fact that [the assistant district attorney to whom Ross

made the subject disclosures] is a sitting Riverside County Judge, and [the district

attorney at the time Ross made the subject disclosures] is a former Riverside Judge."

Even assuming authority existed for this request and the request had been properly

preserved for review, the exclusive means of obtaining appellate court review of a

determination on the question of a disqualification of a judge is through a timely petition

for writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); Curle v. Superior Court (2001)

24 Cal.4th 1057, 1063.) We, therefore, decline the request.

                                             IV

                                       DISPOSITION

         The judgment is reversed as to Ross's claims for violation of Labor Code section

1102.5 and for violation of the FEHA's provisions prohibiting disability discrimination,

failure to reasonably accommodate, failure to engage in the interactive process, and

failure to prevent disability discrimination. The matter is remanded to the superior court

for further proceedings consistent with this decision. Appellant is awarded his appeal

costs.




                                             22
                    McCONNELL, P. J.

WE CONCUR:



NARES, J.



O'ROURKE, J.




               23
Filed 6/10/19

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA


CHRISTOPHER ROSS,                                  D075106

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. PSC1403729)

COUNTY OF RIVERSIDE,
                                                  ORDER CERTIFYING OPINION
        Defendant and Respondent.                 FOR PUBLICATION


THE COURT:

        The opinion in this case filed May 20, 2019 was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request(s) pursuant to rule 8.1120(a) for publication is/are

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and
      ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page one of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                     McCONNELL, P. J.

Copies to: All parties




                                            2
