Filed 8/27/20 Brown v. City of Oakland CA1/2
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                      FIRST APPELLATE DISTRICT

                                                   DIVISION TWO


 KEVIN BROWN,
             Plaintiff and Appellant,
                                                                        A157706
 v.
 CITY OF OAKLAND,                                                       (Alameda County
                                                                        Super. Ct. No. RG17883799)
             Defendant and Respondent.


         After plaintiff and appellant Kevin Brown injured his knee at his job
with respondent the City of Oakland (the City), he was placed on leave and
eventually given permanent medical restrictions by his doctor. The City
conducted a six-month interactive process with Brown to attempt to return
him to work, considering him for several vacant positions but ultimately
finding none of them suitable. The trial court granted summary judgment to
the City on Brown’s claims for failure to accommodate and failure to engage
in the interactive process under the Fair Employment and Housing Act
(FEHA) (Govt. Code, §§ 12940 et seq.)1, and then denied his motion for leave
to amend his complaint. We affirm.




         1   Further undesignated statutory references are to the Government
Code.


                                                               1
             FACTUAL AND PROCEDURAL BACKGROUND2
        Brown’s Injury and Medical Evaluations
        In 2012, Brown was a Sewer Maintenance Leader employed by the
City.
        On June 6, 2012, Brown injured his left knee at work while climbing
over a downed fence. He was placed on light duty until he had surgery on his
knee that November. After the surgery, Brown returned to work on light
duty, but his condition did not improve, and he had a second surgery
performed in November of 2013. He was then placed on unpaid
administrative leave.
        In June of 2014, Brown was examined by Dr. Peter Mandell. After that
examination, Dr. Mandell prepared a nine-page report in which he wrote that
“Mr. Brown’s condition is permanent, stationary, and ratable as of now.” He
also wrote: “Mr. Brown describes his job as heavy and physical. In all
probability, he will not be able to return to that type of work. He is limited to
sedentary work.”
        On August 20, the City wrote to Dr. Mandell, enclosing a description of
the Sewer Maintenance Leader position and asking whether there was “any
possibility” that Brown could return to work in that position. Dr. Mandell
responded: “You ask whether there is ‘ . . . any possibility . . . ’ that Mr.
Brown can go back to the job described in the enclosure. My answer is there
is a small possibility that he can do that. One can read this document to
focus on the supervisorial aspect of the position. If Mr. Brown can do the
paperwork of the job, the driving around of crews of the job, the supervising


        The factual background is drawn from Brown’s response to the City’s
        2

statement of undisputed material facts, the City’s response to Brown’s
separate statement of undisputed material facts, and the various documents
in the record, and is undisputed, except where noted.

                                         2
of the crews (with the ability to stand or sit at will throughout the workday),
the operation of closed circuit television cameras for inspection of sewer
systems, and the use of such things as gas detectors with the approval of his
employer, then he probably could do that kind of work. As the parties can see
from page 3 of my report, he should not do work which requires running,
squatting, or kneeling. He should not do work which requires walking
around for more than about 20 minutes or so before he can sit down and rest
for maybe 15 minutes and then get up and walk around again.”
      On August 26, Brown was seen by his primary treating physician, Dr.
David Contreras. Dr. Contreras wrote to the City that Brown was
“complaining of ongoing bilateral knee pain and stiffness, which varies in
intensity depending on his activity level.” He also wrote: “I do agree with the
evaluation by Dr. Peter Mandell with regard to apportionment and disability.
I do feel that Kevin has reached the point of maximum medical improvement
and would consider him permanent and stationary as of today 8/26/14.”
      The Six-Month Interactive Process
      Brown contends that his case was essentially ignored over the next
year. He repeatedly contacted Worker’s Compensation Manager Mary
Costello, who eventually referred him to Disability Benefits Coordinator
Annie Chin, for whom he left numerous voicemails. Brown spoke with
Disability Benefits Coordinator Mary Baptiste in March of 2015.
      Annie Chin spoke with Brown on the phone on September 11, 2015,
and the City sent him a letter notifying him that an interactive process
meeting had been scheduled for September 25. The meeting was rescheduled
for October 19, and ended prematurely on that date.
      A second interactive process meeting took place on December 11. In
attendance were Brown, his union representative, Chin, and other City



                                       3
employees. According to a detailed ten-page written summary3 of that
meeting:
       “Kevin indicated there was a lot on the Leader position that he cannot
do. Reggie [another Sewer Maintenance Leader] described that the leader on
the crew has to do all the same functions as the workers. Mr. Sommers
[Brown’s union representative] indicated since Mr. Brown can’t squat, or
kneel that makes sense to him that (since he believes that Mr. Brown will not
be able to do the job) that we move past accommodation in the job of the
Sewer Maintenance Leader to the alternate job search. Annie noted wanting
Kevin to be comfortable with this dialogue plan prior to avoiding the
accommodation discussion of the Sewer Maintenance Leader. Annie noted
that Kevin had made similar requests during interactive calls with Annie in
Sept. As Kevin began to express his seeming comfort with that plan, Dwight
[another Sewer Maintenance Leader] asked to consider other options.
[¶] . . . [¶]”
       “Mr. Sommers asked if we could simply move forward to the alternate
job search. Kevin indicated that he was comfortable with moving forward to
the alternate job search because he was tired of discussing accommodation
for the Sewer Maintenance Leader.”


       3On the second page, the summary provided: “The parties were
verbally notified that this facilitator would take notes as the parties talked
today. These notes would be printed immediately at the conclusion of the
meeting and passed out. The parties will all stay at the meeting table and
individually review their own copy of the drafted notes. Each person will be
able to make any changes or additions that they feel are needed to correct,
clarify or add to the discussion. Once all persons have shared all of their
changes and additions to the notes, a final draft of the notes will be passed
out and the parties will be asked to review the final draft and sign the
document if it accurately represents the discussion that occurred and their
individual statements.”

                                       4
      “The following sections of the report which were originally intended for
the accommodation discussion have remained to document the impact of Mr.
Brown’s accommodations on the essential job functions of the Sewer
Maintenance Leader. As noted above, Mr. Brown and Mr. Sommers both
requested we not discuss them in great detail since they believed already that
Kevin is medically precluded from some essential job functions of the Sewer
Maintenance Leader position. [¶] . . . [¶]”
      “The parties discussed modified work and it was agreed that based on
the work restrictions, Mr. Brown could not be accommodated back into his
position as a(n) Sewer Maintenance Leader as the physical demands of the
job could not be minimized with accommodations and that he would need to
perform the activities restricted.”
      A six-month search for an alternative position officially began in
December 2015. Each week, Brown was sent by email and mail listings of all
job openings with the City.
      Brown expressed interest during the alternative job search in several
available positions, including Public Works Maintenance Worker, Street
Maintenance Leader, a Yard Work Support assignment, and Street Sweeper
Operator.
      Public Works Maintenance Worker and Street Maintenance
      Leader
      The first position in which Brown expressed interest was that of Public
Works Maintenance Worker, a position that “performs a variety of
maintenance duties in street and traffic maintenance and construction,
sanitation and weed abatement.”
      The “Essential Function Job Analysis” for the position indicates that it
encompasses four assignments, and that “all assignments are considered
essential and requirements of the position”: “Vegetation Management,”


                                       5
where an employee “[c]uts and removes vegetation over-growth within
Oakland, including maintaining pedestrian pathways, City owned lots,
medians, roadsides and other related sites,” “Removal of Illegal Dumping,”
where an employee “[r]emoves illegally dumped items within the City of
Oakland, including appliances, water heaters, refrigerators, furniture, sand,
concrete rubble, shopping carts, household garbage and other related items.
Depending on the object, the employee loads items with the assistance of a
co-worker or mechanical assistance,” “Maintenance of Litter Containers,” in
which an employee “[m]aintains litter containers located throughout the City
of Oakland, including using a variety of basic tools to repair doors, hinges
and other related parts; this activity is performed approximately 50% of the
time, the remainder is spent removing illegally dumped objects/garbage,” and
“Downtown Crew/Roving,” which “[c]leans Downtown Oakland, including
sidewalks, plazas and other related areas, installs litter containers, and
services transit hubs within the city.”
      According to the declaration of Frank Foster, an Operations Manager
for the City, the job duties of a Public Works Maintenance Worker “generally
consist of heavy manual labor on a daily basis, including frequent bending,
squatting, stooping, walking, standing, and climbing. Lifting and carrying
heavy items is very frequent. It is very physical work. This is true of all
Workers in the illegal dumping, graffiti abatement and vegetation
management, and special events sections.”
      Street Maintenance Leaders are Public Works Maintenance Workers
who “act in a lead capacity over field crews.” Again, according to Foster:
“The duties and tasks of a Street Maintenance Leader include all the tasks
and duties of a Public Works Maintenance Worker described above. In
addition, a Street Maintenance Leader must manage and supervise the crew



                                          6
he is working with on that day. Street Maintenance Leaders also drive the
trucks that their crews travel in to and from the work site, and are required
to maintain a Class B license as a condition for the job. The Leader acts as
an on-site foreman of his crew, but performs all of the same physical tasks
that a Public Works Maintenance Worker performs, including frequent
bending, squatting, stooping, walking, standing, climbing, and carrying
heavy items, all on a daily basis.”
      Yard Work Support Assignment
      Brown also expressed interest in a Yard Work Support assignment.
According to the declaration of Johnny Nicks, a supervisor in the Sewers
Division: “The people in this assignment manage the inventory of tools,
equipment and supplies used by Sewers employees, at the yard. This
assignment is generally performed by experienced Sewer Maintenance
Leaders, and occasionally by Sewer Maintenance Workers. This assignment
is also very physical, requiring lifting and moving pipes, bags of asphalt,
large hoses, sheets of plywood, tools, and other equipment. The employees in
this assignment are required to take tools and supplies to locations
throughout the City where work is being performed and unload those tools
and supplies from trucks, and reload items back onto trucks. The assignment
requires significant amounts of standing and walking, climbing in and out of
trucks, and bending and squatting to lift items, all on a daily basis.
      “The ‘Yard Dog’ assignment has never been a position. It is an
assignment that is filled by Sewer Maintenance Leaders and Workers.
      “Every Sewer Maintenance Leader or Worker who performs the ‘Yard
Dog’ assignment must be able to perform all the duties of his position.
Employees in the ‘Yard Dog’ assignment are called out on emergencies. This
typically happens at least once a month, and usually several times a month.



                                       7
When called out on an emergency, that Leader or Worker is required to
perform the usual duties described in paragraph 4 [describing the duties of
Sewer Maintenance Leader] above. If the employee in the ‘Yard Dog’
assignment is a Sewer Maintenance Leader, that employee must have a valid
Class B license, and meet all the other requirements of the Leader position.
If an employee is physically unable to perform all the duties of his position as
a Sewer Maintenance Leader, that employee cannot and would not be
permitted to perform the ‘Yard Dog’ assignment.”
      Street Sweeper Operator
      Brown also expressed interest in a Street Sweeper Operator position.
According to the “Class Specification” for the position, the duties include
“[o]perat[ing] street sweepers exceeding 26,000 lbs. gross vehicle weight
rating and related equipment to sweep streets and gutters on assigned
routes; sweep parking lots, courtyards and freeway underpasses,” and
“[t]ransport trash to dumps; clear debris from right-of-way; clean storm
drains and inlets.” Qualifications include the ability to “[p]erform manual
labor.” According to the “Work Task Analysis” for the position, employees
have to lift and carry “a 35 lb. bucket of Absorb-All for hydraulic fluid” and
various weights of debris from roadways.
      According to the declaration of Frank Foster, “[a]n Operator must be
able to climb up and down several steps to enter and exit the vehicle multiple
times during a shift. Operators must also bend or squat to lift and carry
heavy buckets of cleaning fluids and to carry and use tools for cleaning on a
daily basis.” The position of Street Sweeper Operator also requires a Class B
license.




                                        8
      Office Assistant II
      Somewhere along the way, Annie Chin proposed that Brown apply for
an Office Assistant II position, a proposal he considered a “slap in the face.”
He did not apply for the position.
      End of the Interactive Process, Equipment Parts Technician
      Position, and Brown’s Rehiring
      The six-month alternative job search ended on June 13, 2016. Brown
was given notice of the City’s intent to medically separate him from
employment on September 22, 2016, a decision that Brown and his union
appealed.
      On October 13, the day after the appeal hearing, Brown expressed
interest in the position of Equipment Parts Technician position.
      According to Joseph Williams, Interim Equipment Services Manager
for the City: “The duties of an Equipment Parts Technician focus on
management of inventory for the automobiles and heavy equipment utilized
by the Department of Public Works, as well as for the City’s fire suppression
vehicles. The position involves constant standing and walking, and frequent
lifting of heavy items in excess of 50 pounds. Some of the work is performed
by operating a forklift, which requires stepping in and out of the lift multiple
times per day. Occasionally the Technician must climb small ladders, push
and pull carts, and squat and crouch when lifting items or to locate parts
kept closer to the ground. The Department’s fleet of vehicles and heavy
machinery is large and lifting, walking, and standing are constant during the
workday.”
      The job description gives as examples of duties “Operate a forklift and
other storeroom equipment” and “Lift heavy materials and supplies.” It
requires the ability to “Lift and move heavy items, up to 50 lbs. in a safe
manner,” “Perform heavy manual work in lifting and moving stock,” and


                                        9
“Operate a forklift and related material handling equipment.” Essential
functions include stooping, kneeling, crouching, climbing, and reaching.
      The City sent a supplemental questionnaire to Dr. Contreras regarding
the position. In a chart note dated October 24, Dr. Contreras wrote: “I have
reviewed the requirements for the equipment parts technician. I feel that for
the most part Kevin will be able to perform these duties. He will require
permanent restrictions, which previously have been outlined which include
no running, no squatting, limited kneeling and limited walking.” Dr.
Contreras also filled out the questionnaire from the City, finding that Brown
could kneel for one minute before requiring a break from kneeling for 10
minutes, for a total of 6 minutes per hour and 20 minutes per day. He also
found that Brown could walk or stand for 20 minutes at a time before
requiring a break for 15 minutes, and that he could walk or stand for 40
minutes per hour and 300 minutes per day. The City subsequently told
Brown that he could not qualify for the Equipment Parts Technician role.
      Brown’s medical separation was eventually upheld on appeal, and he
was separated from employment effective December 28.
      On June 1, 2017, a meeting was held in order to restart Brown’s
interactive process and explore returning him to work. Later that month, Dr.
Contreras completed another questionnaire regarding Brown’s permanent
work restrictions. Now, Dr. Contreras found that instead of no squatting,
Brown could squat for 30 minutes per hour; had no restriction on kneeling;
and could stand or walk for a total of 45 minutes per hour.
      On July 13, Dr. Contreras wrote that Brown “is able to return to work
7.13.17 without restriction.” At another interactive process meeting held the
next day, the City agreed to rehire Brown as a Sewer Maintenance Worker
effective July 31. Brown’s Class B license, a requirement for his former



                                      10
position of Sewer Maintenance Leader, had expired, and thus he was not
minimally qualified for that position.
      This Action
      On November 17, 2017, Brown filed the complaint in this action
asserting four causes of action under the FEHA: (1) disability discrimination;
(2) failure to engage in the interactive process; (3) failure to accommodate;
and (4) retaliation.
      On February 4, 2019, Brown dismissed the disability discrimination
and retaliation causes of action without prejudice.
      On February 15, the City moved for summary judgment, or
alternatively summary adjudication, on Brown’s remaining claims. Brown
filed opposition on April 9, and the motion was set for hearing on April 23.
      On April 22, Brown sought leave to file a first amended complaint, to
assert a new cause of action for disability discrimination under section 12940,
subdivision (a), alleging that the City “refused to engage in a good faith
interactive process and accommodate Plaintiff because of its 100 healed [sic]
policy.” Brown asserted that he had discovered the alleged 100-percent
healed policy “less than 2 months ago,” including in depositions that took
place on February 28 and March 8.
      Brown’s proposed first amended complaint also sought to add language
indicating he was “regarded and treated as being disabled” by the City to the
allegation that he had a qualifying disability in his two existing causes of
action, because the City had for the first time in its motion for summary
judgment “raise[d] the defense that Plaintiff was not disabled.”
      On May 14, the trial court granted the City’s motion for summary
judgment, finding that there was no issue of material fact as to whether there
were vacant positions with the City that Brown could perform with or



                                         11
without accommodation, and that Brown’s failure to engage claim failed
because he did not identify any reasonable accommodation that the City
could have provided.
      Two days later, the trial court heard Brown’s motion for leave to amend
the complaint. On May 24, the court denied the motion, finding that
reinserting a claim for disability discrimination would prejudice the City
because discovery had already closed and the deadline for dispositive motions
had passed.
      Judgment in favor of the City was entered on May 29. Brown appeals
both the judgment and the order denying him leave to amend.
                                 DISCUSSION
      Brown raises three arguments: (1) there was a triable issue of fact as
to whether there were vacancies available that he could perform with or
without accommodation; (2) his failure to engage claim did not require him to
identify a reasonable accommodation that the City should have provided; and
(3) he should have been granted leave to amend his complaint.
      Applicable Law and the Trial Court’s Ruling
      The FEHA makes it unlawful “[f]or an employer . . . to fail to make [a]
reasonable accommodation for the known physical or mental disability of
an . . . employee,” unless the employer demonstrates such accommodation
would cause an “undue hardship.” (§ 12940, subd. (m)(1).) “There are three
elements to a failure to accommodate action: ‘(1) the plaintiff has a disability
covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she
can perform the essential functions of the position); and (3) the employer
failed to reasonably accommodate the plaintiff’s disability. [Citation.]’ ”
(Hernandez v. Rancho Santiago Cmty. Coll. Dist. (2018) 22 Cal.App.5th 1187,
1193–1194.) The employee has the burden of proof to show that a reasonable



                                       12
accommodation could have been made. (Nadaf–Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 976–978 (Nadaf–Rahrov).)
      “[A]ssuming the employee is disabled, the employer cannot prevail on
summary judgment on a claim of failure to reasonably accommodate unless it
establishes through undisputed facts that (1) reasonable accommodation was
offered and refused; [or] (2) there simply was no vacant position within the
employer’s organization for which the disabled employee was qualified and
which the disabled employee was capable of performing with or without
accommodation; or (3) the employer did everything in its power to find a
reasonable accommodation, but the informal interactive process broke down
because the employee failed to engage in discussions in good faith.”
(Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen).)
      With respect to Brown’s failure to accommodate claim, the trial court
concluded:
      “At oral argument, Defendant focused its discussion on Jensen’s second
prong, arguing there was no evidence in the record of any position Plaintiff
was qualified for that he could have performed, with or without
accommodation.
      “There is some evidence, presented by Defendant, that this is, in fact,
not entirely true. Defendant did ask Plaintiff to consider working as an
Office Assistant II and Defendant also sent Plaintiff lists of open positions
weekly for several months. (Def.’s Sep. St., UMF 16, 18.) However, Plaintiff
refused the Office Assistant II position, and, at oral argument, Plaintiff’s
counsel confirmed that Plaintiff did not consider the Office Assistant II
position to be a reasonable accommodation. Since neither party considers the
Office Assistant II position relevant to the Court’s analysis here, the Court
disregards it. As for the weekly job lists, it is not possible to know whether



                                       13
Plaintiff was qualified for or capable of performing any of those jobs without
individualized analyses of each of those positions. However, individualized
analyses of each position were not performed for every position, but for those
positions that were individually analyzed, for each of them, Defendant has
presented credible evidence that Plaintiff’s physical limitations, confirmed by
Plaintiff’s doctors, prevented him from performing those jobs with or without
accommodation. (Def.’s Sep. St., UMF 6, 7, 9, 17, 19–21, 24–26.)
      “To rebut this, Plaintiff has presented his own deposition testimony,
which contradicts the directives of his doctors. (See Pltf.’s Sep. St., AUMF 26,
27; but see Def.’s Sep. St., UMF 15 [stating that at an interactive process
meeting Plaintiff agreed he could not perform the essential functions of his
job].) Despite this contradictory testimony from Plaintiff, Defendant is and
was permitted to rely on the medical reports from Plaintiff’s doctors. (See
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 227–229.) Plaintiff
also submitted video footage of Defendant’s workers performing daily duties,
(see Pltf.’s Sep. St., AUMF 60–64), but the limited time period covered by the
video does not allow it to be probative of the duties those workers would
actually perform on a periodic basis, and it does not speak to whether vacant
positions existed that Plaintiff could physically perform.
      “Accordingly, no material facts exist that vacant positions existed for
which Plaintiff could perform. The only substantial evidence presented on the
issue tends to indicate Plaintiff could not perform any vacant position that
Defendant had available during the applicable time period. Accordingly,
Plaintiff’s cause of action for failure to accommodate cannot survive the
second prong of Jensen. As such, no triable issue of material fact exists in
regards to the cause of action and the cause of action fails.”




                                       14
      Standard of Review
      A court shall grant a motion for summary judgment “if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) As the party moving for summary judgment, the
employer in a FEHA action has the burden of establishing either (1) one or
more elements of the employee’s cause of action cannot be established, or
(2) a complete affirmative defense to the cause of action exists. (Code Civ.
Proc., § 437c, subds. (o )(1), (2), (p)(2).) To demonstrate the elements of a
cause of action cannot be established, the employer may show the employee
does not possess evidence needed to support a prima facie case and also
cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not,
present evidence conclusively negating an element of the cause of action.
(Ibid.) Once the employer has met its initial burden, the burden shifts to the
employee to produce evidence showing a triable issue of material fact. (Code
Civ. Proc., § 437c, subd. (p)(2).)
      “On appeal from summary judgment, we review the record de novo and
must independently determine whether triable issues of material fact exist.
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve any evidentiary doubts
or ambiguities in favor of the party opposing summary judgment. (Saelzler v.
Advanced Group 400, supra, at p. 768.)” (Nealy v. City of Santa Monica
(2015) 234 Cal.App.4th 359, 370–371 (Nealy).)
      “On review of a summary judgment, the appellant has the burden of
showing error, even if he did not bear the burden in the trial court.”
(Claudio v. Regents of the University of California (2005) 134 Cal.App.4th



                                       15
224, 230 (Claudio).) “ ‘[D]e novo review does not obligate us to cull the record
for the benefit of the appellant in order to attempt to uncover the requisite
triable issues. As with an appeal from any judgment, it is the appellant’s
responsibility to affirmatively demonstrate error and, therefore, to point out
the triable issues the appellant claims are present by citation to the record
and any supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.’ ” (Ibid., quoting Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
      Brown Has Failed to Identify a Triable Issue of Fact as to
      Whether There Were Vacant Positions He Could Perform
      Brown makes two arguments why summary judgment should not have
been granted to the City on his failure to accommodate claim: (1) the City
maintains a “100-percent healed” policy which is a per se violation of section
12940, subdivision (m); and (2) the trial court erred by considering only the
positions analyzed by the City, “excluded” evidence that Brown could have
performed certain available positions, and should not have deferred to the
opinions of Brown’s doctors.
      The City Did Not Apply a 100-percent Healed Policy to Brown
      Brown argues that the City maintained a “100% healed policy,”
requiring employees to be 100 percent healed before returning to work, in
violation of the FEHA. (See Gelfo v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 49, fn. 11 (Gelfo) [suggesting such a policy is a per se
FEHA violation].) In support of this allegation, he cites certain deposition
testimony of Johnny Nicks, a supervisor in the Sewers Division, regarding
other workers in his division who were placed on light duty because of
temporary injuries, and regarding Brown’s duties in the division after he
returned to work in 2017. Nicks testified, for example, that “you need to be
at 100 percent to come back because of the strenuous work that you’re doing


                                       16
out there,” that “I’m pretty sure it’s City policy to come back at 100 percent,”
and that he made “mention to [Brown] that being back in the sewer
department you know, you need to be back at full capacity at 100 percent. I
let him know that a couple of different times [after he returned to work in
2017].”
      But whatever Nicks’ understanding of the City’s policy was, it was
irrelevant. Nicks was not involved in Brown’s interactive process, and
although the full context of his statements is not always clear, certain of
them appear to concern Brown’s return to work—without medical
restrictions—once that process was long since completed. Mary Baptiste, a
Disability Benefits Coordinator for the City, testified that the interactive
process began after the employee’s restrictions became permanent. And most
importantly, it was undisputed that the City engaged in a six-month
interactive job process with Brown, sent him listings of available vacancies,
and considered him for several vacant positions. Brown may dispute the
adequacy of this process, but it is undisputed that it took place.
      Brown’s Other Arguments Challenge the Trial Court’s
      Rationale, Not Its Ruling
      Brown’s second argument focuses on the following passage from the
trial court’s written ruling:
      “As for the weekly job lists, it is not possible to know whether Plaintiff
was qualified for or capable of performing any of those jobs without
individualized analyses of each of those positions. However, individualized
analyses of each position were not performed for every position, but for those
positions that were individually analyzed, for each of them, Defendant has
presented credible evidence that Plaintiff’s physical limitations, confirmed by
Plaintiff’s doctors, prevented him from performing those jobs with or without
accommodation.”


                                       17
      Brown asserts this manifests three errors: (1) the court erred by
“limiting its ‘no vacancy’ analysis to those vacancies the City alone chose to
consider,” (2) the court did not explain what positions it considered nor the
evidence that it found supported the City’s position, and (3) the court erred in
“deferring” to the opinion of Brown’s doctors despite his contradictory
testimony, the last argument relying on Gelfo, supra, 140 Cal.App.4th at
p. 49, fn. 11: “ ‘[A]n employer cannot slavishly defer to a physician’s opinion
without first pausing to assess the objective reasonableness of the physician’s
conclusions.’ ”
      These arguments fail, primarily because on appeal from summary
judgment, we review “the [trial] court’s ruling, not its rationale. Kids’
Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.” (Prop. California
SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1161.)
      The first argument also appears to misread the trial court’s
opinion—not to mention the record on summary judgment. The trial court
did not explain which positions it was referring to, but the City’s statement of
undisputed material facts discusses several positions in detail, each
time—with the exception of the Office Assistant II position—indicating that
the City analyzed them because Brown himself “expressed interest” in them
during the interactive process. The trial court did not, as Brown suggests,
“allow[] the City to cherry-pick which jobs to analyze.”
      Brown’s second argument asserts that the ruling “omits essential
considerations,” and fails to explain what positions the City considered or
what “credible evidence” the trial court found supported the City’s argument.
Again, these arguments fail as challenges to the trial court’s rationale.
      Brown also asserts that “the record is replete with evidence challenging
the sufficiency of the City’s accommodation efforts,” going on to make



                                       18
scattershot reference to numerous paragraphs of the City’s separate
statement of material facts and his response. To take one example, Brown
points to a dispute about whether Brown admitted that he could not perform
the essential functions of a Sewer Maintenance Leader, or simply agreed to
move on to a search for alternative positions because “he was tired” of the
process. But what does this have to do with whether Brown could, in fact,
perform those essential functions, with or without accommodation?
Similarly, Brown alleges that the City initially determined that he met the
minimum qualifications for the Equipment Parts Technician position, only to
later change its position. But he does not actually describe or discuss the
essential functions of the position, nor does he explain why there was a
triable issue of fact as to whether he could perform them. In short, Brown
has not carried his burden to “affirmatively demonstrate error.” (Claudio,
supra, 134 Cal.App.4th at p. 230.)
      Finally, to the extent Brown argues that the trial court deferred to the
medical records—that the City “slavishly deferred” to his doctor’s
opinion—we disagree. Gelfo, supra, 140 Cal.App.4th 34 is distinguishable.
There,“[t]he reports on which [the employer] premised its refusal to hire were
based, not on an individualized assessment or testing, but on the workers’
compensation doctors’ cursory, generalized opinions about prophylactic
measures aimed at avoiding potential injuries to someone with a back injury
like Gelfo’s, which might occur by one performing the functions of fabricator.”
(Id. at p. 49, fn. 11.)
      Here, by contrast, Dr. Mandell’s evaluation was based on
individualized assessment and testing—indeed, an evaluation with which
Brown’s treating physician agreed. Perhaps even more to the point, at the
time of Brown’s interactive process, he apparently did not even dispute that



                                      19
he was restricted from squatting or kneeling and he certainly has not
identified any facts or evidence before the City at that time calling into
question the “objective reasonableness” of Dr. Mandell’s restrictions. (Gelfo,
supra, 140 Cal.App.4th at p. 49, fn. 11.) Moreover, according to the notes of
the initial interactive process meeting, both Brown and his union
representative “requested we not discuss [the essential functions of the Sewer
Maintenance Leader position] in great detail since they believed already that
Kevin is medically precluded from some essential job functions of the Sewer
Maintenance Leader position.” In short, there is nothing in the record to
indicate that the City “slavishly deferred” to Dr. Mandell’s restrictions
despite their being objectively unreasonable. Brown has failed to
demonstrate that the trial court erred in granting summary judgment to the
City on his failure to accommodate claim.
      Brown’s Failure to Engage in the Interactive Process Claim
      Fails Because He Has Not Identified Any Accommodation the
      City Should Have Provided
      The FEHA makes it 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.” (§ 12940,
subd. (n).)
      The trial court concluded that Brown’s failure to engage in the
interactive process claim under section 12940, subdivision (n) failed because
he never identified any reasonable accommodation the City should have
provided, relying on Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984 and
Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1015–1019
(Scotch). We agree.



                                       20
      Brown argues at length that he need not identify a reasonable
accommodation in order to prevail on his interactive process claim, relying on
the statutory text, the legislative history, and the legislative purpose.
However, he acknowledges that in Nadaf–Rahrov, Division Five of this court
conducted a lengthy and thoughtful analysis of the statute and its purpose,
concluding that “the availability of a reasonable accommodation (i.e., a
modification or adjustment to the workplace that enables an employee to
perform the essential functions of the position held or desired) is necessary to
a section 12940[, subdivision] (n) claim” and that “the burden of proving the
availability of a reasonable accommodation rests on the employee.”
(Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984.) And at least one other
case has analyzed the issue and likewise concluded that the employee must
identify a reasonable accommodation to prevail on an interactive process
claim: Scotch, supra, 173 Cal.App.4th at pp. 1015–1019. (See also Nealy,
supra, 234 Cal.App.4th at pp. 379–380 [rejecting interactive process claim
based on Nadaf–Rahrov and Scotch].)
      Brown claims that there is a split of authority on this question, a claim
based on two cases, the first of which is Claudio, supra, 134 Cal.App.4th at
p. 242. There, after the plaintiff became disabled, the defendant employer
“checked plaintiff’s resume against available positions at the University,
concluded none was available that matched plaintiff’s job skills, and effected
plaintiff’s termination from employment.” (Id. at p. 228.) Claudio claimed he
had been terminated in violation of the public policy in the FEHA, a claim
that the parties treated as an interactive process claim under section 12940,
subdivision (n). (Id. at pp. 230, 243.) The Court of Appeal reversed the trial
court’s grant of summary judgment, holding that “since we conclude a triable
issue exists concerning failure by the [employer] to participate in the



                                       21
interactive process, the judgment cannot be affirmed on the ground that no
alternate jobs were available.” (Id. at p. 248.) Because the employer
completely failed to participate in the interactive process, “it cannot be
known whether an alternate job would have been found.” (Id. at p. 245.) The
Court of Appeal continued:
      “The [employer] assert[s] plaintiff was totally disabled and therefore
the only accommodation that could have been at issue, if plaintiff had
participated in the interactive process, was an unlimited extension of his
leave of absence. However, as is apparent from our recitation of the record, it
is not at all clear that this is true. At a minimum, it appears plaintiff may
have been physically able to handle clerical positions. Thus, this is not a case
(at least not yet) where it can be said an interactive process would have been
futile. (Cf. Swonke v. Sprint, Inc. (2004) 327 F.Supp.2d 1128, 1137
[interactive process would have been futile because plaintiff was totally
disabled from any employment].)” (Claudio, supra, 134 Cal.App.4th at
p. 249.) That is not the situation here.
      The other case on which Brown relies is Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413 (Wysinger). There, the jury
found for the employer on a claim for failure to accommodate under section
12940, subdivision (m), but against the employer on a claim for failure to
engage in the interactive process under section 12940, subdivision (n).
(Wysinger, supra, 157 Cal.App.4th at p. 424.) Wysinger rejected the
employer’s argument that the resulting verdict was internally inconsistent,
holding as follows:
      “Here the verdicts on the reasonable accommodation issue and the
interactive process claim are not inconsistent. They involve separate causes
of action and proof of different facts. Under FEHA, an employer must engage



                                       22
in a good faith interactive process with the disabled employee to explore the
alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n);
Claudio[, supra,] 134 Cal.App.4th [at p.] 242 [employer may not fail to engage
in a timely, good faith interactive process to determine effective reasonable
accommodations].) ‘An employee may file a civil action based on the
employer’s failure to engage in the interactive process.’ (Claudio, supra, at p.
243.) Failure to engage in this process is a separate FEHA violation
independent from an employer’s failure to provide a reasonable disability
accommodation, which is also a FEHA violation. (Gov. Code, § 12940,
subd. (m); Gelfo[, supra,] 140 Cal.App.4th [at p.] 61; Claudio, supra, at p. 242
[employer may not fail to make a reasonable accommodation].) An employer
may claim there was no available reasonable accommodation. But if it did
not engage in a good faith interactive process, ‘it cannot be known whether an
alternative job would have been found.’ (Claudio, supra, at p. 245.) The
interactive process determines which accommodation is required. (Ibid.;
Jensen[, supra,] 85 Cal.App.4th [at p.] 263, fn. 7.) Indeed, the interactive
process could reveal solutions that neither party envisioned.
      “Here the jury could find there was no failure to provide a required
accommodation because the parties never reached the stage of deciding which
accommodation was required. ACSC prevented this from happening by its
refusal to engage in the interactive process.” (Wysinger, supra, at
pp. 424–425.)
      Brown argues there is a split of authority between Claudio and
Wysinger on one hand and Nadaf-Rahrov and Scotch on the other, but this is
somewhat of an overstatement. As noted, Claudio’s facts are distinguishable,
and Wysinger considered whether a jury verdict was inconsistent, not the
issue squarely analyzed and addressed in Nadaf-Rahrov and Scotch:



                                       23
whether a plaintiff must identify a reasonable accommodation to defeat
summary judgment on a claim of failure to engage in the interactive process.
And we are unable to find any California cases citing Wysinger or Claudio for
the proposition that the plaintiff need not do so.
      The Court of Appeal in Scotch reconciled Nadaf-Rahrov, Claudio, and
Wysinger in a lengthy explanation, an explanation with which we agree:
      “Wysinger, Nadaf–Rahrov, and Claudio are not entirely inconsistent
and can be reconciled. All three cases recognize the employee does not have
the same access to information as the employer and therefore the interactive
process is important in determining what accommodations are available. The
Nadaf–Rahrov court pointed out that Wysinger did not explain the
appropriate remedy for failure to engage in the interactive process ‘in the
absence of a failure to accommodate’ under section 12940, subdivision (m).
(Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 983, fn. 13.) The Wysinger
panel did not have to explain the remedy because it was reviewing a jury
verdict finding the employer liable for retaliation against the employee for
filing an age discrimination claim. (Nadaf–Rahrov, supra, at p. 983, fn. 13.)
      “We synthesize Wysinger, Nadaf–Rahrov, and Claudio with our
analysis of the law as follows: To 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. An employee cannot
necessarily be expected to identify and request all possible accommodations
during the interactive process itself because ‘ “ ‘[e]mployees do not have at
their disposal the extensive information concerning possible alternative
positions or possible accommodations which employers have. . . .’ ” ’
(Wysinger, supra, 157 Cal.App.4th at p. 425.) However, as the Nadaf–Rahrov



                                       24
court explained, once the parties have engaged in the litigation process, to
prevail, the employee must be able to identify an available accommodation
the interactive process should have produced: ‘Section 12940[, subdivision]
(n), which requires proof of failure to engage in the interactive process, is the
appropriate cause of action where the employee is unable to identify a
specific, available reasonable accommodation while in the workplace and the
employer fails to engage in a good faith interactive process to help identify
one, but the employee is able to identify a specific, available reasonable
accommodation through the litigation process.’ (Nadaf–Rahrov, supra,
166 Cal.App.4th at p. 984.)” (Scotch, supra, 173 Cal.App.4th at
pp. 1018–1019.)
      Scotch went on to note that the parties there had engaged in “extensive
and thorough discovery,” and “[v]oluminous summary judgment papers were
prepared and filed,” yet the plaintiff had identified only one proposed
accommodation, which the court found to be unreasonable. (Id. at p. 1019.)
Thus, summary judgment was properly granted to the employer on plaintiff’s
interactive process claim.4 (Ibid.)
      So too here. Brown likewise went through discovery, extensive
summary judgment briefing, and now this appeal, all without identifying a
single reasonable accommodation the City should have provided during the
interactive process. Nor is this a case, like Claudio, where the employer’s

      4 “Put another way, if this case were presented to a jury, what remedy
could it provide? How was Scotch damaged by any failure by [defendant] to
engage in the interactive process in good faith? The FEHA has a remedial
rather than punitive purpose. (§ 12920; see Nadaf–Rahrov, supra,
166 Cal.App.4th at pp. 981–982.) Unless, after litigation with full discovery,
Scotch identifies a reasonable accommodation that was objectively available
during the interactive process, he has suffered no remedial injury from any
violation of section 12940, subdivision (n).” (Scotch, supra, 173 Cal.App.4th
at p. 1019.)

                                       25
failure to conduct the interactive process prevented Brown from knowing
what accommodations were possible. (See Claudio, supra, 134 Cal.App.4th at
p. 249; Nadaf–Rahrov, supra, 166 Cal.App.4th at p. 984.) It is undisputed
that Brown and the City engaged in a six-month interactive process, a
process that involved at least one in-person meeting, the City’s weekly
provision of all available job listings, and the evaluation of Brown for several
vacant available positions. Under these circumstances, summary judgment
was properly granted to the City on Brown’s claim for failure to engage in the
interactive process.
     The Trial Court Did Not Abuse Its Discretion in Denying Leave
to Amend
      On April 22, 2019, the day before the hearing on the City’s motion for
summary judgment, Brown sought leave to file a first amended complaint, to
assert a new cause of action for disability discrimination under section 12940,
subdivision (a), alleging that the City “refused to engage in a good faith
interactive process and accommodate Plaintiff because of its 100 healed [sic]
policy.” Brown alleged that he had discovered the 100-percent healed policy
“less than 2 months ago,” including in the March 8, 2019 deposition of Mary
Baptiste.
      Brown’s proposed first amended complaint also sought to add the
allegation that he was “regarded and treated as disabled” by the City to the
allegation that he had a qualifying disability in his two existing causes of
action, alleging that the City had for the first time in its motion for summary
judgment “raise[d] the defense that Plaintiff was not disabled.”
      After a hearing, the trial court entered a lengthy written order denying
the motion, holding as follows:
      “Here, Plaintiff Kevin Brown is seeking leave to amend in two areas:
(1) adding a cause of action for disability discrimination based on Defendant


                                       26
City of Oakland’s alleged ‘100-percent-healed’ policy, and (2) adding ‘regarded
and treated as disabled’ allegations to Plaintiff’s existing causes of action for
failure to accommodate and failure to engage in the interactive process.
      “NEW CAUSE OF ACTION FOR DISABILITY DISCRIMINATION
      “Defendant would suffer prejudice if Plaintiff were permitted to add a
cause of action at this juncture. Case law supports Defendant’s position that
interfering with a motion for summary judgment is prejudicial. (See
Melican v. Regents of Univ. of Cal. (2005) 151 Cal.App.4th 168, 175–176;
Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280–1281;
Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746; see also A.N. [v. County of
Los Angeles (2009)] 171 Cal.App.4th [1058,] 1068 [finding prejudice where
trial date is near].) Here, Plaintiff initially included a disability
discrimination cause of action in his Complaint. Then, shortly before
Defendant’s motion for summary judgment was filed, Plaintiff abandoned the
cause of action and did not fully respond to written discovery on the topic.
Now that Defendant’s motion for summary judgment has been heard,
Plaintiff seeks to add a disability discrimination cause of action back into the
lawsuit. Allowing Plaintiff to do so now would prevent Defendant from
pursuing a pre-trial dispositive motion on the cause of action, and, as
discovery is closing, would not permit Defendant to seek discovery on this
issue, discovery that was previously refused by Plaintiff on the basis that the
cause of action was no longer going to be pursued. While the Court will not
guess Plaintiff’s motivations, the sequence of events gives Plaintiff’s attempt
to amend on this issue the unsightly appearance of gamesmanship to avoid
summary judgment. The Court will not countenance dismissing and
reinserting causes of action shortly before trial.




                                        27
      “Plaintiff argues that he has not shown substantial delay in seeking
this amendment regarding disability discrimination. As argued in Plaintiff’s
reply, the facts that have brought Plaintiff to seek to reintroduce a disability
discrimination claim, those involving Defendant’s alleged
‘100-percent-healed’ policy, did not specifically come to light until various
depositions were taken in early 2019. This may be true, but the delay
analysis on this claim is complicated by the fact that Plaintiff actually had a
disability discrimination cause of action in the Complaint and then, after
leaving it there for many months, voluntarily removed it, and is now seeking
to include it in the FAC. The timeline here, by Plaintiffs doing, is not as
straightforward as learning new facts and seeking prompt amendment. In
any case, the prejudice to Defendant here is high, the loss of adjudicating the
claim on summary judgment and seeking discovery, and therefore the
evidence of delay need not be overwhelming or even compelling.
      “Accordingly, in regards to Plaintiff’s request to add a cause of action
for disability discrimination to the FAC based on Defendant’s alleged ‘100-
percent-healed’ policy, Plaintiffs motion is DENIED.
      “ ‘REGARDED AND TREATED AS DISABLED’ ALLEGATIONS
      “Plaintiff would also like to add allegations to each existing cause of
action that Plaintiff is not only disabled, but ‘regarded and treated as
disabled’ by Defendant. As to this request, Plaintiff’s motion is DENIED AS
MOOT. Summary judgment was granted in this motion, and the absence of
‘regarded or treated as’ language in the Complaint was not a basis for doing
so and would have no bearing on the motion. Furthermore, to the extent the
language Plaintiff intends to insert has not been mooted by the motion for
summary judgment, the same arguments addressed above in regards to
prejudice and delay also apply here.”



                                        28
        Applicable Law and Standard of Review
        The statutes authorizing amendment of pleadings are “construed
liberally so that cases might be tried upon their merits in one trial where no
prejudice to the opposing party or parties is demonstrated.” (Rainer v.
Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254; Trafton v.
Youngblood (1968) 69 Cal.2d 17, 31.) This liberal policy applies to
amendments “ ‘at any stage of the proceedings, up to and including trial,’ ”
but with one caveat—it must be without prejudice to the adverse party.
(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; see Singh v.
Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354–355.) And as
one court put it: “ ‘ “[E]ven if a good amendment is proposed in proper form,
unwarranted delay in presenting it may—of itself—be a valid reason for
denial.” ’ ” (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005)
130 Cal.App.4th 1078, 1097; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359,
1377–1378; P & D Consultants, Inc. v. City of Carlsbad (2010)
190 Cal.App.4th 1332, 1345; see also City of Stanton v. Cox (1989)
207 Cal.App.3d 1557, 1564 [“A party who waits 18 months before attempting
to amend, and then does so only after trial has commenced, and who offers no
excuse for the failure, can hardly complain when the request to amend is
denied”].)
        Resolution of the competing interests in liberality of amendment and
avoiding prejudice or delay rests in the sound discretion of the trial court, and
is subject to reversal only for abuse of that discretion. (Consolidated World
Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 383;
Duchrow v. Forrest, supra, 215 Cal.App.4th at p. 1378.) Brown has shown
none.




                                       29
      Brown argues that the trial court abused its discretion in denying him
leave to amend, again noting that he did not discover the facts regarding the
alleged “100-percent healed” policy until depositions which took place on
February 28 and March 8 of 2019, which explains his delay in seeking the
amendment. But as the trial court noted, this is not a typical case of a party
discovering new facts and seeking prompt amendment, because Brown had
previously dismissed the disability discrimination cause of action and for that
reason did not produce discovery on it. And it does not explain why Brown,
who had the facts underlying this new claim by March 8, filed a response to
the City’s motion for summary judgment without mentioning it, seeking to
add the new claim some six weeks later—just before the hearing on the City’s
motion.
      Even more importantly, the amendment would clearly prejudice the
City, because it came after the close of discovery, after the dispositive motion
deadline, and after the City’s motion for summary judgment had been fully
briefed and was about to be decided. Brown’s new claim was based on the
testimony of certain City employees about their understanding of City policy.
By waiting until after the close of discovery and after the dispositive motion
deadline to seek leave to amend, Brown deprived the City of the opportunity
to “marshal[] evidence to oppose the contention” that such a policy existed,
and to move for summary judgment accordingly. (Magpali v. Farmers Group,
Inc. (1996) 48 Cal.App.4th 471, 487; see Melican v. Regents of University of
California, supra, 151 Cal.App.4th at p. 176 [no abuse of discretion in
denying oral motion to amend at hearing on summary judgment because “[i]t
would be patently unfair to allow plaintiffs to defeat [defendant]’s summary
judgment motion by allowing them to present a ‘moving target’ unbounded by




                                       30
the pleadings”].) Under these circumstances, there was no abuse of
discretion in denying leave to amend.5
                                DISPOSITION
      The judgment and the order denying leave to amend are affirmed. The
City shall recover its costs on appeal.




      5 Brown does not challenge the trial court’s denial of his motion to the
extent he sought to add “regarding as disabled” language to his two existing
claims, a motion which, given our discussion of those claims, was moot.

                                          31
                                          _________________________
                                          Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




Brown v. City of Oakland (A157706)




                                     32
