Filed 4/21/16 Brown v. L.A. County Dept. of Children and Family Services CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


                                                                        B259310
MARIE BROWN
                                                                        (Los Angeles County
         Plaintiff and Appellant,                                       Super. Ct. No. BC499438)

         v.

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Michael
M. Johnson , Judge. Affirmed.
         Lyon Law, Geoffrey C. Lyon, Ryan M. Estes and Mazen Khatib for Plaintiff and
Appellant.
         Hausman & Sosa, Larry D. Stratton, Lisa A. Grigg and Jeffrey M. Hausman for
Defendant and Respondent.
       The Los Angeles County Department of Children and Family Services (DCFS)
discharged Marie Brown from her position as a human services aide in June 2009.
Brown appealed the discharge to the Los Angeles County Civil Service Commission
(“the Commission”), which ultimately ordered her reinstated to her position.
Unbeknownst to the Commission, however, Brown had retired during the pendency of
her appeal. Claiming it could not rehire a retiree in light of Los Angeles County Board of
Supervisors Policy 9.150, DCFS separated Brown from her employment a second time
days after she returned.
       Brown filed suit under the Fair Employment and Housing Act (Gov. Code, §
12940, et seq.),1 alleging that she was retaliated against and discharged due to her
disabilities. Prior to trial, Brown moved in limine to exclude what she termed DCFS’s
“improper mistake-of-law evidence.” She contended that DCFS misinterpreted the law
regarding the reinstatement of retirees and therefore should be precluded from
introducing testimony, documents, exhibits, and references to that purported rationale for
discharging her. The trial court denied Brown’s motion, and DCFS introduced evidence
pertaining to Policy 9.150 and the Government Code sections underlying it. The jury
found by special verdict that DCFS reasonably accommodated Brown’s disabilities and
did not discharge her because of her disabilities or her requests for accommodation. The
trial court entered judgment for DCFS in accordance with the jury’s verdict. Brown
contends the judgment must be reversed because the trial court erroneously denied her
motion in limine. We disagree and affirm.
           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       The following facts were adduced at trial. Brown injured her back and neck in
1996 and consequently received certain accommodations in her position as a DCFS
human services aide. Brown aggravated her injuries in the summer of 2008 while
organizing files at work and requested an evaluation. Around the same time, she testified
at a court hearing on behalf of DCFS without the advance knowledge or permission of

       1
        All further statutory references are to the Government Code unless otherwise
indicated.
                                             2
her supervisor. During its investigation of the court incident, DCFS placed Brown on
restricted duty, which Brown claims further aggravated her back injuries and caused her
psychological stress. Citing the court incident and Brown’s responses to it, DCFS
terminated Brown effective June 29, 2009, a few months after she experienced chest
pains at work, and the same day on which she underwent bariatric surgery.
       Brown appealed her termination to the Commission by letter dated July 8, 2009.
On September 16, 2009, the Commission granted Brown’s request for a hearing, which
was scheduled for March 29, 2010. While she was waiting for her hearing, Brown, who
had been working for the county in various capacities since 1979, completed and
submitted the paperwork for a service retirement. LACERA sent Brown a letter dated
October 1, 2009 congratulating her on her “new status as a retired member of LACERA”
and informing her that her retirement would be effective November 21, 2009. The letter
was copied to an unnamed “CHILDREN’S SERVICES Personnel Officer.” DCFS
human resources personnel Wanda Hazel and Lynne Bowles Condon testified they never
received this letter and became aware of Brown’s retirement only years later; LACERA
employee J.J. Popowich testified that such a situation was not unprecedented. Brown
testified she never informed anyone at DCFS that she retired prior to filing the instant
lawsuit.
       Union representative and civil service advocate Lyle Fulks testified that it would
have been important to notify the Commission that Brown had retired during the
pendency of her appeal.2 Nevertheless, neither Brown nor DCFS informed the


       2
         Some courts, including this one, have held that a civil service commission loses
jurisdiction over an employee’s appeal if he or she voluntarily retires during the
pendency of civil service proceedings. (See Zuniga v. Los Angeles County Civil Service
Commission (2006) 137 Cal.App.4th 1255, 1259-1260; County of Los Angeles
Department of Health Services v. Civil Service Commission of the County of Los Angeles
(Latham) (2009) 180 Cal.App.4th 391, 400-401.) Others have reached the opposite
conclusion. (See Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, 31-33;
Hughes v. County of San Bernardino (2016) 244 Cal.App.4th 542, 551-553.) Although
Brown argues that her retirement did not divest the Commission of jurisdiction over her
initial appeal, we need not and do not reach the issue for two reasons: (1) neither Brown
                                             3
Commission of Brown’s retirement before, during, or after the March 29, 2010 hearing.
The hearing officer submitted a written decision to the Commission on June 7, 2010. In
it, he concluded that DCFS met its burden of proof on only two of its eight allegations
against Brown—that she withheld information from and was discourteous to
supervisors—and accordingly found “the drastic remedy taken by the Department of
discharging this employee was not supported by the evidence.” In an addendum dated
August 12, 2010, the hearing officer submitted to the Commission formal findings of fact
and conclusions of law, along with a recommendation that Brown’s termination be
reduced to a 25-day suspension.
      DCFS filed objections to the hearing officer’s proposed decision and
recommendations on October 12, 2010. The Commission overruled the objections and
adopted the hearing officer’s decision and recommendations as its own final decision on
January 26, 2011. The Commission notified Brown and DCFS of its decision on
February 2, 2011. Neither Brown nor DCFS sought writ review of the decision.
      On May 10, 2011, DCFS employee relations manager Condon sent Brown a letter
informing her that she was “reinstated to County service and will receive retroactive pay
and/or benefits from June 29, 2009, less the 25 day suspension period.” The letter further
informed Brown that her retroactive pay “must be offset by any outside employment
earnings” and directed her to provide DCFS with “documentation of any earnings or a
written statement that you did not have any earnings from June 29, 2009 up until
present.” Enclosed with the letter was a one-page Declaration of Earnings form on which
Brown could provide the requested information.
      Brown found the form confusing and called the DCFS personnel department for
assistance in completing it. Brown testified that the person to whom she spoke told her to
write down the unemployment insurance benefits she received but did not mention


nor DCFS sought writ review of the Commission’s decision, which has long since
become final regardless of whether it was voidable on jurisdictional grounds and (2) the
trial court precluded DCFS from introducing evidence or arguing that the Commission
lost jurisdiction over Brown after her retirement and DCFS has not challenged that ruling.
                                            4
anything about retirement benefits. Brown disclosed on the Declaration of Earnings form
only the $34,006.00 she received in unemployment insurance benefits and signed the
form under penalty of perjury on May 12, 2011.
       By letter dated June 16, 2011, DCFS notified Brown that it did not have any
vacancies for human services aides in the Antelope Valley, Brown’s preferred geographic
location. DCFS provided Brown with a list of seven other offices with available
positions and asked Brown to choose one. Brown responded by letter dated June 20,
2011, stating she was “dismayed and disappointed” at being unable to return to her
previous position. Brown stated that traveling to any of the available offices would “be a
HARDSHIP for me” because she “moved from Los Angeles to Palmdale to be closer to
my home, job and health reason [sic].” She also asked if DCFS had the option to
promote her to the position of children’s social worker II, a position for which she
previously obtained a score of 100 on the civil service exam. In a second letter dated
June 23, 2011, Brown chose the West L.A. office but reiterated, “It’s not fair, I was
wrongfully terminated by County of Los Angeles Department of Children and Family
Services. Now I have to communite [sic] 150 miles a day. When my department was 1.5
miles from home. This is a hardship for me. I have over 31.5 years with the County.”
       At some point, DCFS informed Brown that the West L.A. office either closed or
relocated. Brown was then assigned to the Metro North office, a placement reflected on a
payroll form dated August 3, 2011 and in a Notice of Assignment letter dated September
26, 2011 that DCFS sent to Brown. The Notice of Assignment letter instructed Brown to
report to the Metro North DCFS office on October 3, 2011. Brown did not report for
duty, however, because her psychologist deemed her temporarily totally disabled until
November 3, 2011. Brown’s psychologist also recommended that Brown “needs to be
relocated no further than Santa Clarita.” Brown’s period of disability later was extended
to December 15, 2011 and extended again through January 9, 2012.
       On October 14, 2011, LACERA sent Brown a letter acknowledging her interest in
returning to active membership from retired status. The letter explained that LACERA
was governed by two sections of the County Employees Retirement Law of 1937,

                                             5
Government Code sections 31680.4 and 31680.5.3 The letter was copied to Wanda
Hazel, a DCFS human resources manager.
       On October 24, 2011, LACERA member services manager J.J. Popowich sent
another letter to Hazel. The letter, which “follow[ed] up on a message” left for Hazel on
October 21, 2011, stated that Brown retired on November 21, 2009 but was being
reinstated to her position. It continued, “Unfortunately as a LACERA retired member
Ms. Brown is not eligible for reinstatement back to her date of termination. There are no
provisions in the County Employees Retirement Law of 1937 that allow a member to
rescind their retirement after their retirement date, nor are there any provisions allowing
for the unwinding of a retirement due to a reinstatement decision. [¶] However, there is
a process whereby a retired member may return to work upon approval of the Board of
Supervisors, Board of Retirement, and upon obtaining medical documentation that she is
able to return to work and perform her duties. I am enclosing a ‘Return to Work’
package which outlines how she may return to work. This same information has been
provided to Ms. Brown.” Hazel testified that she did not know Brown had retired until
she received this letter. Condon likewise testified that she was unaware of Brown’s
retirement until Hazel showed her the letter and, moreover, that she and Hazel “were both
very, very shocked” by it.

       3
         Government Code section 31680.5 is not relevant to this appeal. Government
Code section 31680.4 provides: “Notwithstanding any other provision of law, a member
retired for service and reemployed in a county or district under this chapter shall become
again an active member of the retirement association upon (a) his or her application to the
board for reinstatement, (b) the determination of the board, based upon medical
examination, that he or she is not incapacitated for the duties assigned to him or her; and
(c) meeting the conditions for membership in Article 4 (commencing with Section 31550)
are met [sic]. [¶] For the purposes of this section, the effective date of the member's
reinstatement to active membership shall be the first day of the month following the date
of reemployment. [¶] Except as permitted in Section 31680.2 or 31680.3, the retirement
allowance of the member shall be canceled on the effective date of the member's
reemployment and shall be resumed only upon the subsequent termination of the member
from employment. [¶] This section shall not be operative in any county until the board
of supervisors, by resolution adopted by a majority vote, makes this section and Section
31680.5 operative in that county.”
                                             6
       On December 22, 2011, DCFS sent Brown a Notice of Intent to Discharge by
certified mail. Brown had not yet reported for work at the Metro North Office and was
still on disability leave at this time. The Notice, which was signed by Condon, did not
mention Brown’s disabilities. It explained that the bases for the discharge were “the
independent incidents of your failure to disclose your retired status during and after your
Civil Service Commission hearing, failure to disclose receipt of retirement benefits to the
Department, and the Department’s prohibition from reinstating a retiree absent the
fulfillment of specialized criteria.” The letter cited Government Code sections 31680.4
and 31680.5, along with Policy No. 9.1504 in support of the latter ground.
       On December 27, 2011, Popowich of LACERA sent a letter to the head of DCFS
personnel operations. The letter stated that LACERA was “unsure of [Brown’s] current
status.” The letter explained that Brown had been paid in November but not in December
and was shown as active in a county employee database. It continued, “Unfortunately,
we do not have any records indicating that she has completed the return to work process,”
a “County process whereby a retired member may return to work upon approval of the
Board of Supervisors, the Board of Retirement, and after obtaining medical


       4
         Policy 9.150, which the Los Angeles County Board of Supervisors adopted in
July 1993 “to implement provisions of amendments to Government Code Sections
31680.4 and 31680.5,” provides: “The County may hire former retired County
employees to permanent positions on an indefinite basis. The Board’s action provides the
County with an additional management tool to fill critical, emergent, or hard to fill
positions which require special skills, training and experience or certification and may
not be reasonably filled by other than the County retiree. Such authorizations must be
approved by the Board of Supervisors. Departments are to submit a Board memo to their
Chief Executive Office (CEO) budget analyst prior to filling any position on an indefinite
basis with a County retiree. The memo, with CEO recommendation, will be forwarded to
the Board for approval, stating that a two-week period exists for a Board member to
request formal action prior to filling the position. [¶] The retired employee being hired
must cancel his/her retirement allowance through the Board of Retirement until
termination of the new re-employment. This policy does not replace the statute which
allows rehiring retired county employees temporarily for up to 120 days per fiscal year.
[¶] Retirees under the Early Separation Plan are not eligible to fill these positions
without direct Board approval.”

                                             7
documentation that she is able to return to work.” The letter further stated that “if she is
working for the County at this time she is in violation of County policy. This policy was
created to ensure that the County and LACERA remained in compliance with IRS tax
regulations regarding retired members working for the plan sponsor.”
       Brown reported to the Metro North office on January 10, 2012, the day her doctor
ended her temporary period of total disability. According to Brown’s testimony, two
days later, on January 12, 2012, “Lynne Condon and George Smith came to the office
and took my badge and had me leave.” By letter dated January 12, Condon informed
Brown that she was “prohibited from returning to active status” pursuant to Policy 9.150
“without the satisfaction of special requirements and qualifications.” The letter instructed
Brown “to return home and not report to work until those requirements are satisfied
and/or resolved. According to County policy, allowing a retiree to work, absent
qualifying grounds, is strictly prohibited.” Hazel testified that those “special
requirements and qualifications” included a critical need to return the employee and the
employee’s possession of special skills. Hazel conceded that all DCFS positions are
critical to the mission of the department but stated there was no difficulty recruiting
people to fill human services aide positions; to the contrary, there were “on average, 3- to
4,000 applicants for the HSA position.” She further testified that she had never heard of
any retired employee being approved to come back as a full-time employee, adding,
“there have been request[s], and they’ve never been successful.”
       On January 30, 2012, DCFS issued Brown a Notice of Discharge, invoking the
same grounds as the Notice of Intent to Discharge. Brown sought relief before the
Commission, but withdrew her claim the day before the scheduled January 17, 2013
hearing. 5 She filed her initial complaint in the instant action on January 18, 2013, and
the operative first amended complaint on July 1, 2013. She alleged four causes of action:


       5
         Brown also applied for and obtained a disability retirement from LACERA,
which Popowich testified means she receives 50 percent of her human services aide
salary and, “[a]s far as the Board of Retirement is concerned, they have found her
incapacitated from the duties of her job.”
                                              8
“disability discrimination” (Gov. Code, § 12940), “medical leave discrimination and
retaliation” (§ 12945.2), “retaliation for attempting to and exercising rights under,
including opposing violations of, Gov’t Code Part 2.8 (FEHA; Gov’t Code §§ 12900-
12996)” (§ 12940, subd. (h)), and “failure to prevent discrimination” (§ 12940, subds. (j)
& (k)). The trial court denied DCFS’s motion for summary judgment, ruling that triable
issues of fact existed.
         On August 1, 2014, the Friday before trial was set to begin, Brown filed motion in
limine no. 4. In that motion, Brown asked the court to “exclude any statements by
defense counsel, Defendant, or Defendant’s percipient or expert witnesses in support of a
mistake-of-law defense as an excuse for Defendant’s failure to reinstate Plaintiff Marie
Brown to her previous job.” Brown argued that DCFS “repeatedly misreads Government
Code 31680.4 to argue that as a condition of reemployment Brown had to (1) obtain
approval of the LACERA Board and (2) obtain medical certification she could perform
her assigned duties at DCFS.” Brown contended DCFS’s reliance “on an incorrect
interpretation of Government Code 31680.4 to justify its failure to reinstate Plaintiff to
her job due to her previous retirement” was an improper mistake-of-law defense that
could not “shield” DCFS “against civil liability for its illegal discrimination.” Even if
DCFS’s interpretation of the law was reasonable initially, she further argued, it “became
unreasonable upon the Civil Service Commission’s ruling that Plaintiff was wrongfully
terminated, its subsequent order to reinstate Plaintiff to her previous job, and LACERA’s
multiple notification letters to Defendant indicating that Plaintiff was eligible to return to
work.”
         The court heard and denied the motion on August 5, 2014, before the parties’
opening statements. The court explained: “Well, the motion goes to evidence, and I will
deny the motion. I will say I’m not going to give instructions as to mistake of law or
things that one might regard as an affirmative defense, but as for the evidence, I think it’s
appropriate. This is a discrimination case, and so intent and motive are key issues, and
the defendant can introduce evidence that goes to its state of mind, its intent, its motive,
its reasons. I will - - I’ll acknowledge it gets a little muddled as to what was going on

                                              9
during that period, but they can certainly present what their position was, and I recognize
that there are countervailing arguments that it doesn’t sound - - that plaintiff’s position
is, well, it doesn’t sound genuine. But that’s ordinarily, what pretext and the dispute on
that are all about. So the facts can be presented to the jury. The arguments can be made,
and they’ll make their determinations.”
       DCFS accordingly presented evidence and argued that it released Brown in
January 2012 “because she - - she had retired from the county” and “under the law we
can’t take her back.” DCFS further argued that “even if the county was wrong” in its
understanding of Policy 9.150 and related Government Code sections, “that does not
equal intentional discrimination retaliation” because “the 2012 release had nothing to do
with her medical condition.”
       The jury evidently found these contentions persuasive. By special verdict, it
unanimously found that DCFS provided reasonable accommodations to Brown, that
Brown’s work restrictions and disability leave were not “a motivating reason for the
County of Los Angeles’s decision in 2011/2012 to discharge Marie Brown,” and that
Brown’s physical or mental condition was not “a substantial motivating reason for The
County of Los Angeles’s decision to discharge” her. The court entered judgment in
accordance with the jury’s verdict. Brown timely appealed.
                                       DISCUSSION
       Brown claims that the trial court erred in denying her motion in limine. She
contends that DCFS’s purported motivation in terminating her was “based upon a mistake
of law” and, because “substantial authority unequivocally holds that evidence supporting
a mistake-of-law defense is inappropriate to present to a jury in a civil case,” it was
“improper to allow evidence and argument regarding it.” She further argues that the
Commission’s order was binding and “was entitled to res judicata and collateral estoppel
effect,” and DCFS made an additional mistake of law by disregarding it. Brown devotes
the remainder of her opening brief to expounding upon the nature of DCFS’s mistakes:
she contends that DCFS “relied upon a substantially inaccurate reading” of section
31680.4 when it should have reinstated her pursuant to the Commission’s order and

                                             10
section 31680.7, and that DCFS erroneously suggested to the trial court (but not to the
jury) that the Commission lacked jurisdiction to reinstate her due to her retirement. We
conclude the court’s ruling allowing DCFS to present evidence of its legitimate,
nondiscriminatory reasons for terminating Brown was not erroneous. Therefore, we need
not address Brown’s specific contentions regarding why (or whether) DCFS was
mistaken on the law.
I.     Standard of Review
       We generally review trial court rulings on motions in limine for abuse of
discretion. (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility District
(2007)149 Cal.App.4th 1384, 1392.) “However, when the issue is one of law, we
exercise de novo review.” (Ibid.) Brown argues the issue here is one of law, because she
“contended that DCFS should not be allowed to introduce evidence that it had a policy
against hiring retirees when that policy was contrary to both well-established law and the
order of the Civil Service Commission that directed DCFS to reinstate her.” We do not
find this argument persuasive. Unlike the cases Brown cites, the court’s order on the
motion in limine was not predicated on the interpretation of a statute (Appel v. Superior
Court of Los Angeles County (2013) 214 Cal.App.4th 329, 336) or construction of
statutory language (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility
District, supra, 149 Cal.App.4th at p. 1392). We accordingly conclude that abuse of
discretion is the proper standard of review. Of course, “‘a court’s discretion is limited by
the legal principles applicable to the case.’ [Citation.] ‘Thus, if the trial court’s in limine
ruling was based upon a misinterpretation of applicable law, an abuse of discretion has
been shown.’ [Citation.]” (McIntyre v. The Colonies-Pacific, LLC (2014) 228
Cal.App.4th 664, 670.)
II.    Analysis
       In employment discrimination cases such as this one, in which there is no direct
evidence of the employer’s alleged discriminatory motivation for the adverse action,
California has adopted the three-stage burden-shifting test established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz

                                              11
v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz); Wallace v. County of
Stanislaus (2016) 245 Cal.App.4th 109, 130.) Under that test, the plaintiff bears the
initial burden of establishing a prima facie case of discrimination. (Guz, supra, 24 Cal.4th
at p. 354.) This burden is “‘not onerous.’” (Id. at p. 355.) A prima facie case of
disability discrimination under FEHA requires the employee to show he or she (1)
suffered from or was regarded as suffering from a disability, (2) was otherwise qualified
to do his or her job with or without reasonable accommodations, and (3) was subjected to
adverse employment action because of the disability or perceived disability. (Sandell v.
Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310; see also Nealy v. City of Santa
Monica (2015) 234 Cal.App.4th 359, 378.) “Once the employee establishes his or her
prima facie case, ‘the burden then shifts to the employer to offer a legitimate,
nondiscriminatory reason for the adverse employment action.’ [Citation.]” (Nealy v.
City of Santa Monica, supra, 234 Cal.App.4th at p. 378.) The employee may still defeat
the employer’s showing at the third stage, if he or she can present “evidence that the
stated reason is pretextual, the employer acted with discriminatory animus, or other
evidence permitting a reasonable trier of fact to conclude the employer intentionally
discriminated.” (Ibid.) “The ultimate burden of persuasion on the issue of actual
discrimination remains with the plaintiff” at all times. (Guz, supra, 24 Cal.4th at p. 356.)
       The motion in limine at issue was targeted at the second stage of the three-stage
process. Brown sought to preclude DCFS from introducing evidence that it had a
legitimate, nondiscriminatory reason for taking an adverse employment action against
her, namely the strictures of Policy 9.150. Brown argued below, and argues now, that
Policy 9.150 is not a “legitimate” reason because it rests upon an incorrect interpretation
of section 31680.4. However, the reason(s) proffered by an employer “need not
necessarily have been wise or correct.” (Guz, supra, 24 Cal.4th at p. 358.) “While the
objective soundness of an employer’s proffered reasons supports their credibility . . . , the
ultimate issue is simply whether the employer acted with a motive to discriminate
illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially
unrelated to prohibited bias, and which, if true, would thus preclude a finding of

                                              12
discrimination.” (Ibid. [emphases in original].) In other words, an employee cannot
prevail merely by showing that the employer’s rationale was incorrect or mistaken. He or
she must “‘demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of credence,” [citation], and
hence infer “that the employer did not act for the [asserted] non-discriminatory reasons.”
[Citations.]’ [Citations.]” (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1005.)
       The trial court correctly recognized these overarching principles when it denied
Brown’s motion in limine. It explained that “intent and motive are key issues, and the
defendant can introduce evidence that goes to its state of mind, its intent, its motive, its
reasons.” We agree. A defendant employer is entitled to rebut the plaintiff’s prima facie
case of discrimination by presenting evidence of the reasons underlying the contested
adverse action, and the plaintiff is entitled to undertake efforts to undermine, discredit, or
disprove those reasons. So long as the reasons DCFS proffered were “facially unrelated
to prohibited bias” and, “if true, would thus preclude a finding of discrimination” (Guz,
supra, 24 Cal.4th at p. 358 [emphases omitted]), and were in the form of otherwise
admissible evidence, it was proper for the trial court to let the jury consider it. The trial
court did not abuse its discretion by denying Brown’s motion in limine.
       We are not persuaded otherwise by Brown’s contention that the court’s ruling
permitted DCFS to present a forbidden “mistake of law defense.” Brown is correct that,
as a general rule, ignorance or a mistaken understanding of a civil or criminal law is no
defense to liability. (See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A.
(2010) 559 U.S. 573, 581.) “A mistake of law, in its strict sense, means ignorance that
the penal law (of which one stands accused) prohibits one’s conduct—and ignorance on
this point ‘is almost never a defense.’ [Citation.]” (People v. Meneses (2008) 165
Cal.App.4th 1648, 1662-1663.) DCFS was not asserting that it misunderstood FEHA or
was unaware of its obligations under the law; it therefore was not mounting a mistake of
law defense. Instead, it claimed that Policy 9.150 precluded Brown and all other retired

                                              13
employees from returning to permanent duty absent special circumstances not present
here. In other words, DCFS invoked a facially nondiscriminatory rationale for the
actions it took against Brown in 2012, a valid argument in this employment
discrimination case. DCFS’s alleged disregard of the Commission’s order of
reinstatement likewise was not a mistake of law defense; to the contrary, DCFS
introduced evidence that it took steps to comply with the order, while Brown claimed that
DCFS improperly disregarded it. Moreover, res judicata and collateral estoppel are not
relevant here, because DCFS did not attempt to relitigate the causes of action or issues
underlying the Commission’s order. (See DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 824.) DCFS’s claim that its actions were constrained by Policy 9.150 was
permissible under the burden-shifting framework, and the trial court properly allowed the
jury to resolve the resultant issues of fact it presented.
                                       DISPOSITION
       The judgment of the trial court is affirmed. DCFS is awarded its costs on appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                         COLLINS, J.

We concur:


WILLHITE, Acting P. J.


MANELLA, J.




                                               14
