The opinion
Filed 2/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAURIE BROWN, B294240
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC697060)
v.
LOS ANGELES UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard E. Rico, Judge. Reversed in part and
affirmed in part.
JML Law, Joseph M. Lovretovich and Jennifer A. Lipski for
Plaintiff and Appellant.
Anthony J. Bejarano and David V. Greco for Defendant and
Respondent.
_________________________
INTRODUCTION
Appellant Laurie Brown (Brown) has been a teacher
employed by the Los Angeles Unified School District (LAUSD)
since 1989. In 2015, LAUSD installed an updated Wi-Fi system
at the school where Brown taught. She soon began to experience
headaches and nausea, and believed the electromagnetic
frequency of the new wireless system was the cause. She
requested various accommodations from LAUSD, but ultimately
sued, alleging LAUSD discriminated against her based on her
“electromagnetic hypersensitivity,” failed to accommodate her
condition, and retaliated against her—in violation of the
California Fair Employment and Housing Act (FEHA) (Gov.
Code,1 § 12900 et seq.).
Brown appeals from a judgment of dismissal entered after
the trial court sustained LAUSD’s demurrer to her first amended
complaint (FAC) without leave to amend. She contends the trial
court erred in sustaining the demurrer because she pled
sufficient facts in support of each of her claims. She further
contends the trial court abused its discretion by not granting her
leave to amend the FAC.
We conclude Brown adequately pled her cause of action for
failure to provide reasonable accommodation for her disability.
We reverse on this cause of action only. Otherwise, the judgment
is affirmed.
1 All further statutory references are to the Government
Code unless otherwise designated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
In 2012, LAUSD commissioned URS Corporation (URS) to
consult with LAUSD about replacing the existing Wi-Fi system at
Millikan Middle School (Millikan) with one that would
accommodate iPads, Chromebooks, and tablets LAUSD intended
to provide its students.
LAUSD requested public comment on the proposed new Wi-
Fi system. Cindy Sage, an environmental scientist and expert on
electromagnetic frequency (EMF), stated she could not support
URS’s conclusions about the safety of the new Wi-Fi system.
During a May 28, 2014, school board hearing, LAUSD’s
“medical personnel” presented a power point presentation
indicating they were uncertain about any long-term effects the
Wi-Fi system may have on students and staff. LAUSD promised
to continue actively monitoring any developments.
In 2015, Brown began teaching at Millikan. Later that
year, in April 2015, LAUSD installed and began operating the
upgraded Wi-Fi system at Millikan. Brown thereafter
experienced chronic pain, which she alleged was caused by the
new Wi-Fi.
B. Brown’s First Amended Complaint
On March 7, 2018, Brown filed a civil complaint against
LAUSD. On June 6, 2018, the trial court sustained a demurrer
to the complaint with leave to amend.
On June 26, 2018, Brown filed the FAC which alleged five
causes of action pursuant to FEHA:
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1) Discrimination based on physical disability;
2) Failure to accommodate;
3) Failure to engage in the interactive process;
4) Retaliation; and
5) Failure to prevent discrimination and retaliation.
The FAC alleged:
Following activation of the new Wi-Fi system on April 23,
2015, Brown began to experience chronic pain, headaches,
nausea, itching, burning sensations on her skin, ear issues,
shortness of breath, inflammation, heart palpitations, respiratory
complications, foggy headedness, and fatigue. She reported the
symptoms to her superiors at Millikan and was granted leave
from work “due to these symptoms, on an intermittent basis, for
several days thereafter.”
She returned to campus the following week and fell ill
again “[w]ithin 2 to 3 hours.” Her “medical provider
subsequently diagnosed her” with electromagnetic
hypersensitivity (EHS), also referred to as “microwave sickness.”
On May 22, 2015, Brown filed her first formal request for
accommodation with LAUSD.
On July 15, 2015, LAUSD held its first interactive process
meeting with Brown. Following the meeting, LAUSD agreed to
disconnect the Wi-Fi access points in Brown’s assigned classroom
and in an adjacent classroom. LAUSD also agreed to use “a
hardwired computer lab with Wi-Fi turned off while testing for
Common Core.”
On August 4, 2015, “Dr. Huy Hoang, internist, wrote that
emerging EMF sensitivity was disabling” Brown.
Brown returned to work in August 2015. She was assigned
to Room 22 at the Millikan campus. Brown alleged LAUSD’s
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accommodations were “not reasonable” and “did not work.” While
LAUSD disconnected the routers in Brown’s classroom and one
adjoining classroom, “multiple other classrooms in front and to
the side of [Brown]’s classroom continued to have their routers
active.”
On September 3, 2015, Brown’s physician, Dr. Jody Levy,
placed her on a medical leave of absence through November 16,
2015, due to her “migraines, headaches, and nausea. Restrictions
upon returning to work were for [Brown] to work with minimal
Wi-Fi exposure.”
On September 8, 2015, Brown filed a second request for
accommodation “on the grounds her symptoms persisted due to
Wi-Fi and radio frequencies to which she was continuously
exposed.” She requested LAUSD reduce her exposure and
consider “using paints and other forms of shielding materials to
block Wi-Fi and radio frequencies in her classroom.”
On October 22, 2015, LAUSD held its second interactive
process meeting with Brown. Brown requested LAUSD authorize
“further studies to evaluate and determine the best location on
the Millikan campus where [Brown] would encounter minimal
exposure to Wi-Fi and radio frequencies, along with consideration
of using paints and other shielding materials.”
On November 13, 2015, LAUSD denied Brown’s second
request for accommodation, relying on testing performed by URS
that indicated the Wi-Fi system was “safe.” Brown appealed
LAUSD’s denial.
Meanwhile, Brown’s medical leave was extended from
November 2015 through June 14, 2016 by Dr. Michael Hirt,
“citing migraines and nausea. Restrictions include minimal EMF
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exposure and writes patient could return to work if EMF
exposure [or] measurement were reduced.”
The appeal hearing took place in February 2016. LAUSD
“reversed course” and agreed to provide a “neutral expert EMF
inspection for further microwave measurements.” Brown was
notified that LAUSD will provide Brown “with the test results,
but is not required to provide [her] advance information
regarding the logistics of the testing.”
On April 18, 2016, LAUSD provided Brown with three
options for neutral EMF testing: 1) allow LAUSD’s retained
consultant URS to conduct the requested testing; 2) choose
another consultant “which might delay the process”; or 3) advise
LAUSD she no longer desired additional EMF testing.
On April 26, 2016, Brown indicated she wanted a different
consultant—not URS—to conduct the additional EMF
testing/inspection. She alleged “a new analysis by URS,
LAUSD’s own consultant, would be inherently biased due to URS’
relationship with LAUSD.” Brown alleged, however, that
LAUSD failed to inform her that “selecting another consultant
would require the consultant to submit to LAUSD’s bidding
process for a contract to do the inspection.”2
On June 19, 2016, LAUSD notified Brown it did not agree
with her selected consultant and that URS’s “prior evaluation of
Wi-Fi and radio frequencies at Millikan evidenced a safe and
non-hazardous working environment.”
2 We gather from LAUSD’s demurrer that Brown was
unaware of LAUSD’s “statutory obligation to undergo competitive
bidding for any contracts until January 2017.”
6
In November 2016, Brown followed up with LAUSD about
what “reasonable accommodation” LAUSD would provide. In
January 2017, Brown sent LAUSD another follow-up email and
expressed “frustration and concerns about LAUSD appearing to
retract the accommodation it had promised . . . a year earlier.”
Brown alleged she could not return to work “without being
overcome with crippling pain.” She was “forced to go out on a
disability leave from her job, which exhausted her approximately
800 hours of accrued paid time off and sick leave.” As a result,
she experienced “an economic loss of earnings due to not
receiving her full income.”
Based on the foregoing, Brown argued LAUSD “engaged in
a course or pattern of conduct that, taken as a whole, materially
and adversely affected the terms, conditions, or privileges” of
Brown’s employment. She believed she “could have continued
performing all essential duties and functions of her job” had she
been provided reasonable accommodations from LAUSD. She
argued LAUSD failed to “engage in an interactive process” with
Brown and “explore all reasonable accommodation for her
physical disability.” Brown also characterized the foregoing as
“adverse employment action” and “discriminatory and retaliatory
conduct.”
She requested general damages, special damages, loss of
earnings and benefits, attorney fees and costs, injunctive relief,
equitable relief, and any other relief the trial court deemed just
and proper.
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C. LAUSD’s Demurrer and Brown’s Opposition
On July 31, 2018, LAUSD filed a demurrer to the FAC
pursuant to Code of Civil Procedure section 430.10, subdivision
(e). LAUSD argued Brown failed to allege with particularity
sufficient facts in support of her causes of action. Brown’s FAC
did not include any facts that demonstrated LAUSD’s decision
not to provide additional testing created adverse work conditions
such that a reasonable person would have felt compelled to
resign. LAUSD next pointed out that Brown had not pled facts
that would establish the original testing by URS was “unreliable
or faulty” and instead merely concluded “URS is biased.”
LAUSD argued Brown did not suffer any adverse
employment action, “much less an adverse action because of her
alleged medical condition.” Per LAUSD, Brown “voluntarily
chose” to go on leave; she was never dismissed. LAUSD argued it
“went above and beyond to accommodate” Brown’s alleged
disability and provided examples of accommodations it had
granted. LAUSD noted Brown’s symptoms mysteriously
persisted “despite being away from Millikan’s campus and being
on a lengthy approved leave of absence.”
LAUSD requested the court sustain the demurrer without
leave to amend, as Brown could not identify any adverse
employment action taken by LAUSD because of her disability.
On August 14, 2018, Brown filed her opposition to LAUSD’s
demurrer. She argued the FAC alleged sufficient facts to
establish all five causes of action. She further argued that while
LAUSD “proposed multiple efforts, [it] never implemented any of
them fully.” (Boldface omitted.)
8
D. Hearing and Ruling
On August 27, 2018, the trial court entertained brief oral
argument and took the matter under submission.
The next day, on August 28, 2018, the court sustained the
demurrer without leave to amend as to all five causes of action.
On September 20, 2018, the court signed the judgment of
dismissal.
Brown timely appealed from the judgment.
DISCUSSION
As a preliminary matter, we disagree with LAUSD that
Brown failed to include a complete record. The record does not
include a copy of the original complaint, first demurrer, and the
court’s June 6, 2018 ruling. However, the absence of these
pleadings does not foreclose our review of Brown’s contentions on
appeal. Where, as here, Brown amended the original complaint,
the FAC supersedes the original complaint. (See Alfaro v.
Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1372.) The record on appeal
contains the operative FAC and LAUSD’s demurrer; these are
the pleadings necessary for our review.
A. Standard of Review
A demurrer tests the legal sufficiency of the challenged
pleading. (Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) We review de
novo a trial court’s ruling on a demurrer. (Dudek v. Dudek (2019)
34 Cal.App.5th 154, 163 (Dudek).) We accept as true all material
facts properly pleaded in the complaint, but do not assume the
truth of contentions, deductions, or conclusions of fact and law.
9
(Ibid.; Estate of Holdaway (2019) 40 Cal.App.5th 1049, 1052.)
The question of a plaintiff’s ability to prove the allegations, or the
possible difficulty in making such proof, does not concern the
reviewing court and plaintiffs need only plead facts showing that
they may be entitled to some relief. (Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 496.)
In addition, “ ‘[w]hen a demurrer is sustained without leave
to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,
34 Cal.App.5th at p. 163.) Brown shoulders the burden to show a
reasonable possibility the FAC can be amended to state a cause of
action. (Id. at pp. 163–164.)
B. Brown Adequately Pled a Physical Disability.
In an argument it makes as to all five causes of action,
LAUSD contends Brown’s alleged disability, electromagnetic
sensitivity, is not a “recognized” disability. In support of this
contention, LAUSD relies on a federal case from the Seventh
Circuit and a federal district court case from the District of
Massachusetts, both interpreting the Americans with Disabilities
Act of 1990 (ADA): Hirmiz v. New Harrison Hotel Corp. (7th Cir.
2017) 865 F.3d 475 and G v. Fay Sch., Inc. (D. Mass. 2017)
282 F.Supp.3d 381.
LAUSD’s reliance on ADA cases is misplaced. The FEHA
protections against torts based on disability are independent of
those under the ADA. “The law of this state in the area of
disabilities provides protections independent from those in the
federal Americans with Disabilities Act of 1990 . . . . Although
the federal act provides a floor of protection, this state’s law has
10
always, even prior to passage of the federal act, afforded
additional protections.” (§ 12926.1, subd. (a); Cal. Code Regs.,
tit. 2, § 11065, subd. (d)(8).) The Legislature has stated its intent
that “physical disability” be construed so that employees are
protected from discrimination due to actual or perceived physical
impairment that is disabling, potentially disabling, or perceived
as disabling or potentially disabling. (§ 12926.1, subd. (b); Cal.
Code Regs., tit. 2, § 11065, subds. (d)(4)–(6).) And the Legislature
has specifically stated its intent that the FEHA provide broader
protection than under the ADA. (§ 12926.1, subd. (c); Cal. Code
Regs., tit. 2, § 11065, subd. (d)(8).)
FEHA states a “physical disability” includes, but is not
limited to, “any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both of the
following: [¶] (A) Affects one or more of the following body
systems: neurological, immunological, musculoskeletal, special
sense organs, respiratory, including speech organs,
cardiovascular, reproductive, digestive, genitourinary, hemic and
lymphatic, skin and endocrine. [¶] (B) Limits a major life
activity. For purposes of this action: [¶] . . . [¶] (ii) A . . .
condition . . . limits a major life activity if it makes the
achievement of the major life activity difficult. [¶] (iii) ‘Major life
activities’ shall be broadly construed and includes physical,
mental, and social activities and working.” (§ 12926, subd.
(m)(1); see also Cal. Code Regs., tit. 2, § 11065, subd. (d)(2)(A),
(B).)
The FAC alleges that Brown could not work because she
experienced “the various symptoms of which LAUSD had been
warned could occur, namely, chronic pain, headaches, nausea,
itching, burning sensations on her skin, ear issues, shortness of
11
breath, inflammation, heart palpitations, respiratory
complications, foggy headedness, and fatigue, all symptoms of
Microwave Sickness or EHS.” These described symptoms affect
one or more of the body systems listed in the statute and limited
Brown’s major life activity of working as a teacher at Millikan.
That the ADA may not “recognize” EHS is immaterial to our
interpretation of FEHA. Brown adequately pled physical
disability within the four corners of the statute.
C. Brown Failed to Allege Adverse Employment Action Taken
Against Her with Discriminatory or Retaliatory Motive
LAUSD next argues that the first cause of action for
discrimination based on physical disability and the fourth cause
of action for retaliation fail for lack of specificity and are
insufficient to withstand the demurrer. We agree.
1. Retaliation
The elements of a cause of action for retaliation in violation
of section 12940, subdivision (h) are: “1) the employee’s
engagement in a protected activity . . . ; (2) retaliatory animus on
the part of the employer; (3) an adverse action by the employer;
(4) a causal link between the retaliatory animus and the adverse
action; (5) damages; and (6) causation.” (Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 713; Le Mere v. Los
Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243.)
Here, the FAC alleges no facts coming close to retaliatory
actions or motive. According to the FAC, Brown made her
complaints that the Wi-Fi system was adversely affecting her
health; the parties engaged in the interactive process to arrive at
a reasonable accommodation; LAUSD made promises to take
certain actions to reasonably accommodate her complaints;
12
LAUSD later reneged on its promises because it decided to rely
on the findings of its consultant URS that the campus was “safe.”
She alleges no retaliatory actions taken against her precisely
because she engaged in protected activity, that is, because she
made her initial complaint. Brown conflates actions taken by
LAUSD in response to the complaint with actions taken by
LAUSD to harm her because of her complaint. None of the
alleged facts implicate retaliation.
2. Discrimination
Under section 12940, it is unlawful for an employer,
because of physical disability, to “refuse to hire or employ the
person or to refuse to select the person for a training program
leading to employment, or to bar or to discharge the person from
employment or from a training program leading to employment,
or to discriminate against the person in compensation or in
terms, conditions, or privileges of employment.” (§ 12940,
subd. (a).) The elements of a prima facie case of discrimination
vary depending on the particular facts. Generally, the plaintiff
must provide evidence that he or she (1) was a member of a
protected class; (2) was qualified for the position sought or was
performing competently in the position already held; (3) suffered
an adverse employment action, such as termination, demotion, or
denial of an available job; and (4) some other circumstance
suggests discriminatory motive. (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 355.) Evidence of discriminatory motive
must be examined carefully in disability discrimination cases to
determine “whether there is direct evidence that the motive for
the employer’s conduct was related to the employee’s physical or
mental condition.” (Wallace v. County of Stanislaus (2016)
245 Cal.App.4th 109, 123.)
13
FEHA proscribes two types of disability discrimination:
(1) discrimination arising from an employer’s intentionally
discriminatory act against an employee because of his or her
disability (referred to as disparate treatment discrimination) and
discrimination resulting from an employer’s facially neutral
practice or policy that has a disproportionate effect on employees
suffering from a disability (referred to as disparate impact
discrimination). (Knight v. Hayward Unified School Dist. (2005)
132 Cal.App.4th 121, 128–129, disapproved on other grounds in
Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th
97, 115.)
Here, just as with the retaliation cause of action, there are
two issues as to the discrimination cause of action: whether
Brown sufficiently alleged that LAUSD took any adverse
employment actions and whether Brown sufficiently alleged facts
to support the allegation of discriminatory motive. Brown
contends LAUSD refused to participate in the interactive process
in good faith and refused to put in place reasonable
accommodations to which it has previously agreed. While these
allegations against LAUSD support other causes of action as
discussed below, we conclude they do not constitute “adverse
employment actions” in the context of a claim of discrimination.
Our Supreme Court has recognized that what constitutes
an adverse employment action “is not, by its nature, susceptible
to a mathematically precise test,” and, as a result, “the
significance of particular types of adverse actions must be
evaluated by taking into account the legitimate interests of both
the employer and the employee.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1054.) Yanowitz defined an adverse
employment action generally as one that materially affects the
14
terms and conditions of employment. (Id. at p. 1051, fn. 10.) The
phrase “terms, conditions or privileges” of employment must be
interpreted liberally and with a reasonable appreciation of the
realities of the workplace in order to afford employees the
appropriate and generous protection against employment
discrimination that the FEHA was intended to provide.” (Id. at
p. 1054.) It is appropriate to consider plaintiff’s allegations
collectively under a totality-of-the-circumstances approach.
(Id. at p. 1052, fn. 11 & pp. 1055–1058.)
However, we note the FEHA scheme prohibits specific
unlawful employment practices by covered employers, e.g.,
discrimination, retaliation, failure to make reasonable
accommodation, failure to engage in the interactive process with
the employee. We conclude that the commission of one specific
prohibited employment practice does not, in and of itself,
constitute commission of all other prohibited employment
practices under the broad rubric of policies or practices affecting
the “terms, conditions or privileges of employment.” Such an
interpretation would be contrary to the whole point of specifically
separating conduct into individual unlawful employment
practices. Brown has not alleged she was the target of disparate
treatment. Nor has she alleged a policy or practice that had a
disproportionate effect on employees suffering from a disability.
She simply alleged that LAUSD failed to engage meaningfully
with her in the interactive process and would not reasonably
accommodate her disability. Those allegations pertain to her
remaining causes of action, but we decline to construe them,
without more, as adverse employment actions sufficient to
support a claim of discrimination in the terms and conditions of
employment. We agree with the trial court that Brown has
15
conflated “ ‘adverse employment action’ with the failure to
accommodate and failure to engage claims.”
Moreover, even if the allegations are deemed sufficient to
constitute adverse employment actions, Brown has alleged no
facts from which discriminatory intent be inferred. In other
words, she has alleged no facts from which we can infer LAUSD
clung to its belief that the campus was safe and refused to
accommodate her because it was biased against her as a person
with a disability. At most, the FAC alleged facts showing a
disagreement between the parties as to whether the Wi-Fi was
causing her disability. We conclude she has failed to allege
discrimination in employment.
Because we find Brown has failed to allege discrimination
or retaliation in employment, we also conclude she has failed to
sufficiently allege, in her fifth cause of action, failure to prevent
discrimination and retaliation in employment, in violation of
section 12940, subdivision (k).
D. Brown Adequately Pled a Cause of Action for Failure to
Provide Reasonable Accommodation for a Physical
Disability
An employer must provide a reasonable accommodation for
an applicant or employee with a known mental or physical
disability unless the accommodation would cause undue
hardship. Failure to do so is an unlawful employment practice.
(§ 12940, subd. (m)(1); Cal. Code Regs., tit. 2, § 11068 subd. (a).)
Failure to do so is an unlawful employment practice.
To establish a failure to accommodate claim, Brown must
show (1) she has a disability covered by FEHA; 2) she can
perform the essential functions of the position; and 3) LAUSD
failed reasonably to accommodate her disability. (Jensen v. Wells
16
Fargo Bank (2000) 85 Cal.App.4th 245, 256–257.) A “reasonable
accommodation” means a modification or adjustment to the
workplace that enables the employee to perform the essential
functions of the job held or desired. (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1010.) Although an
accommodation is not reasonable if it produces an undue
hardship to the employer, a plaintiff need not initially plead or
produce evidence showing that the accommodation would not
impose such an undue hardship. (Bagatti v. Department of
Rehabilitation (2002) 97 Cal.App.4th 344, 356.) Importantly,
whether plaintiff’s requested accommodation is reasonable
cannot be determined on demurrer. (Id. at p. 368–369.)
Once notified of a disability, the employer’s burden is to
take positive steps to accommodate the employee’s limitations.
The employee also retains a duty to cooperate with the
employer’s effort by explaining his or her disability and
qualifications. Reasonable accommodation thus envisions an
exchange between employer and employee where each seeks and
shares information to achieve the best match between the
employee’s capabilities and available positions. (Spitzer v. Good
Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385 (Spitzer).) If a
reasonable accommodation does not work, the employee must
notify the employer, who has a duty to provide further
accommodation. (See id. at p. 1384 [if employer did not know a
reasonable accommodation was not working, a duty to provide
further accommodation never arose].)
Brown has adequately pled failure to accommodate. The
FAC alleges that she suffers from a physical disability, but can
perform the essential functions of the position with the
accommodation “to which LAUSD initially agreed to but
17
subsequently refused to honor and/or other reasonable
accommodations, such as use of paints, fabrics and/or other
shielding materials to block or minimize exposure to
electromagnetic frequencies.” Further, although LAUSD
provided Brown with three options to choose from for neutral
EMF testing, including the option to choose a consultant other
than URS to conduct the testing (which Brown opted for), LAUSD
reneged on its agreement, concluded that URS’s prior evaluation
evidenced a safe, non-hazardous working environment, and took
no further action. As mentioned above, “reasonable
accommodation” envisions an exchange between employer and
employee in good faith; based on our reading of Brown’s FAC,
LAUSD’s actions here do not align with those of an employer
taking positive steps to accommodate the employee’s limitations
(Spitzer, supra, 80 Cal.App.4th at p. 1385).
On appeal LAUSD argues that it attempted to
accommodate her multiple times to no avail. It also argues that
because Brown alleged that she suffered symptoms at her home,
there was nothing LAUSD could do to ameliorate her disability.
These are questions for the ultimate finder of fact and not
questions properly resolved by demurrer. Brown’s allegations
were sufficient.
E. Brown Failed to Allege Failure to Engage in the Interactive
Process.
Under FEHA, it is an unlawful practice for an employer to
fail to engage in a good faith interactive process with the
employee to determine an effective reasonable accommodation if
an employee with a known physical disability requests one.
(§ 12940, subd. (n); see § 12926.1, subd. (e); A.M. v. Albertsons,
LLC (2009) 178 Cal.App.4th 455, 463 (Albertsons).) Failure to
18
accommodate and failure to engage in the interactive process are
separate, independent claims involving different proof of facts.
The purpose of the interactive process is to determine what
accommodations is required. Once a reasonable accommodation
has been granted, then the employer has a duty to provide that
reasonable accommodation. (Albertsons, at pp. 463–464.)
Here, Brown’s FAC alleges LAUSD did agree on a
reasonable accommodation (to hire an independent consultant to
determine where on campus exposure to the electromagnetic
frequencies was most minimal) and then changed its mind,
deciding that the campus was “safe.” This is not a failure to
engage in the interactive process; it is a failure to follow up with
an accommodation to which it had agreed. (Albertsons, supra,
178 Cal.App.4th at pp. 463–464.)
Albertsons is instructive in this regard. In that case,
employer Albertsons agreed to reasonable accommodations and
then failed to advise plaintiff’s supervisors about the agreement.
As a result, when plaintiff sought to take advantage of the
accommodations, her supervisors did not allow her to do so.
Plaintiff employee sued for failure to accommodate. Albertsons
argued the plaintiff employee had a personal responsibility to
advise her supervisors of her disability and of the agreed-upon
accommodations. Albertsons argued plaintiff’s failure to so
advise her supervisors constituted a failure by the employee to
continue the interactive process and vitiated her cause of action
for failure to accommodate. (Albertsons, supra, 178 Cal.App.4th
at p. 464.)
19
The Court of Appeal disagreed. It held that the Legislature
did not intend that “after a reasonable accommodation is granted,
the interactive process continues to apply in a failure to
accommodate context.” (Albertsons, supra, 178 Cal.App.4th at
p. 464.) The court held that to “graft an interactive process
intended to apply to the determination of a reasonable
accommodation onto a situation in which an employer failed to
provide a reasonable, agreed-upon accommodation is contrary to
the apparent intent of the FEHA and would not support the
public policies behind that provision.” (Ibid.) Thus, a failure to
engage in the interactive process cannot be used to support a
failure to accommodate cause of action.
Here we have the inverse of Albertsons: the employee using
a failure to accommodate in support of a claim of failure to
engage in the interactive process. Brown alleged LAUSD agreed
upon a reasonable accommodation (to hire a neutral expert to
determine locations of minimal exposure) and then failed to
follow through. We conclude Brown’s allegations fit the logic of
Albertsons holding. Without more, the allegations are
insufficient under Albertsons to constitute a failure to engage in
the interactive process.
F. The Trial Court Did Not Err in Sustaining the Demurrer
Without Leave to Amend
The trial court sustained the demurrer without granting
Brown leave to amend the FAC. Generally, leave to amend is
warranted when the complaint is in some way defective, but
plaintiff has shown in what manner the complaint can be
amended and “ ‘how that amendment will change the legal effect
of [the] pleading.’ ” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.) In her reply brief, Brown announced that she “need
20
not specify additional details for an amended complaint because
she already alleged more than sufficient ultimate facts to support
her claims and any additional allegations would be superfluous
evidentiary facts.” In the absence of proposed new facts, we find
no error in the trial court’s decision not to grant leave to amend.
DISPOSITION
We reverse as to the cause of action for failure to
accommodate. The judgment is affirmed in all other respects.
Parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, J.
I concur:
GRIMES, Acting P. J.
21
WILEY, J., Concurring.
I join the court’s decision, which rejects a pleading
challenge. For good reason, California state civil procedure
makes complaints easy to write and hard to attack: experience
shows litigation effort devoted solely to attacking pleadings is
costly and time consuming and rarely yields much helpful
information for litigants about the true value of their case.
(Cf. Clermont & Yeazell, Inventing Tests, Destabilizing Systems
(2010) 95 Iowa L.Rev. 821, 829–859 [critique of contrary federal
practice that devotes much effort to testing litigation at the
complaint stage].)
The consequence of this relatively lax state attitude is
relatively easier access to discovery. But California trial judges
have the tools and training to curb weaponized discovery.
Instead of encouraging attacks at the pleading stage,
ordinarily it is wiser for a procedural system to save the big
litigation investments for stages where judicial rulings can
provide the parties with information that helps them agree on
the case’s settlement value.
Yet even with our state’s healthy attitudes about easy
pleading, I worry about giving any sort of green light to this
unprecedented and unorthodox disability claim. Plaintiff’s
counsel was most reluctant at oral argument to admit it, but it
seems clear we are the first court in the United States of
America—a nation of over 300 million people—to allow a claim
that “Wi-Fi can make you sick.” Up till now, the main published
appellate opinion seems to have been the one where Judge
Posner wrote that a “great deal of psychological distress is
trivial—fear of black cats, for example.” (Hirmiz v. New Harrison
Hotel Corp. (7th Cir. 2017) 865 F.3d 475, 476.)
1
Millions use Wi-Fi. Merchants, employers, cafes, hotels—
indeed, commercial concerns of every kind throughout the land
have been installing Wi-Fi at an impressive pace. Nearly
everyone wants the phenomenal convenience of the virtual world
in your hand, everywhere you go, and the faster the better. All
the potential defendants responding to this popular demand may
take solemn note of news that, as of today, their Wi-Fi systems
now may possibly invite costly litigation from members of the
public who say that Wi-Fi made them sick. And potential
plaintiffs and their counsel will have an interest too.
The law worries about junk science in the courtroom. One
concern is that a partisan expert witness can bamboozle a jury
with a commanding bearing, an engaging manner, and a theory
that lacks respectable scientific support. (E.g., Daubert v. Merrell
Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 595 (Daubert)
[“ ‘Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it.’ ”].)
This concern is nothing new. The old fear is that
“[e]xperience has shown that opposite opinions of persons
professing to be experts may be obtained to any amount . . . .”
(Winans v. New York & Erie Railroad Co. (1859) 62 U.S.
(21 How.) 88, 101.)
“ ‘It is often surprising to see with what facility and to what
an extent [experts’] views can be made to correspond with the
wishes or interests of the parties who call them . . . . [T]heir
judgment becomes so warped by regarding the subject in one
point of view that even when conscientiously disposed, they are
incapable of expressing a candid opinion. . . . They are selected
on account of their ability to express a favorable opinion, which,
there is great reason to believe, is in many instances the result
2
alone of employment and the bias growing out of it.’ ” (Foster,
Expert Testimony,—Prevalent Complaints and Proposed
Remedies (1897) 11 Harv. L.Rev. 169, 170–171; see Learned
Hand, Historical and Practical Considerations Regarding Expert
Testimony (1901) 15 Harv. L.Rev. 40, 53 (Learned Hand) [“the
expert becomes a hired champion of one side”]; id. at pp. 54–55
[describing the “absurdity” and “evil” of the “present system”];
id. at p. 46 [recounting 1665 case where “Dr. Brown, of Norwich,
was desired to state his opinion of the accused persons, and he
was clearly of opinion that they were witches”].)
It does not take much experience as a trial judge in Los
Angeles to realize the use of expert witnesses has run riot. To get
a feel for the situation, try an internet search on “expert witness
los angeles.” If your client has the budget, the available
inventory is remarkable. Surprising numbers of these experts
also happen to be lawyers—or perhaps, after reflection, this is not
so surprising.
The partisan expert witness has enormous potential as a
weapon of pure advocacy. Excellent trial lawyers know this
potential. They risk disadvantage and even defeat if they do not
wring every drop of advocacy power from their retained experts.
In this process, the search for truth can suffer. (E.g., Rubinfeld &
Cecil, Scientists as Experts Serving the Court (Fall 2018)
147 Daedalus 152, 153 (Rubinfeld & Cecil).)
An expert witness can be the advocate’s strongest ally.
Mid-trial, after the opening statement and before the closing
argument, the expert can argue the client’s position in the most
forceful terms, speaking directly to the judge and jury with a
demeanor chosen for its fluent and compelling sincerity.
3
The expert’s motivation can be prompted by ample
compensation and guaranteed through careful selection. For the
advocate, finding and selecting experts can be a momentous
event in the litigation process. Resume horsepower is useful, but
better yet is a captivating communication style married to the
proper attitude.
What is the proper attitude? It can be a subtle thing,
perhaps detected through give-and-take on casual and seemingly
irrelevant issues during a private telephone call or a relaxed
interview in a comfortable office. For the trial lawyer puzzling
over whether to retain this expert, a core question is whether the
expert will become a team player. At some deep level, will the
expert come to embrace the cause of the client?
Experts with the proper attitude willingly deploy their
potentially awesome experience and intelligence in the advocate’s
service. The result is unlikely to involve lying or deception, if for
no other reason than such conduct rarely survives cross-
examination. The result is, however, likely to be highly partisan.
And the highly partisan character of expert testimony can
imperil the search for truth.
When one trial lawyer tells a colleague in an unguarded
moment that the lawyer is “shopping for an expert,” we should
reflect on how accurate this phrase truly is.
Our highest courts responded to these concerns by
empowering trial judges to be gatekeepers and to sort the reliable
from the speculative. (Daubert, supra, 509 U.S. at pp. 589–597;
Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 753.) Gatekeeping may be vital to the
integrity of this particular case. And rulings on Sargon motions
4
can give the parties information that is highly pertinent to the
settlement value of a case.
Trial judges also have another tool in their kit: court-
appointed experts. (See Evid. Code, §§ 730–732.) Preferably in
consultation with counsel and avoiding ex parte contacts, the
trial court can select and appoint an independent expert of
unquestioned stature. The parties foot the bill. The expert can
write a report, be deposed, testify, and be cross-examined, like
any other expert. Crucially, the jury can learn this expert has
been appointed by the court rather than hired by the parties.
The option of a court-appointed expert has been available
in California for generations. Few judges have tried this option,
though, because the parties never suggest it. The last thing trial
lawyers want is another source of uncertainty in the case:
something powerful and beyond their control. But the hard-
working judges with experience “reported a high degree of
satisfaction with the services provided by the expert . . . .” (Cecil
& Willging, The Use of Court-Appointed Experts in Federal Court
(1994) 78 Judicature 41, 42; cf. Learned Hand, supra, 15 Harv.
L.Rev. at p. 56 [advocating “a board of experts or a single expert,
not called by either side, who shall advise the jury of the general
propositions applicable to the case . . . . ”].)
The trial court may want to consider this option in this
case. It is more effort to go off the beaten path, but scholarly
literature can help by surveying some practical aspects. (See
generally, Rubinfeld & Cecil, supra [citing and discussing
sources].)
5
This nation has a vast wealth of genuine scientific
expertise, and the pandemic has been forcing our scientists to
become familiar with video communication. The internet has
reduced the significance of geographic distance.
You don’t need a Nobel prize winner: excellent junior
faculty and even graduate students can be vastly knowledgeable,
motivated, and hungry to boot. After all, few scholars are
accustomed to the rates at which California lawyers bill.
Authentic and objective experts thus may be surprisingly
affordable, given the scholarly world’s commitment to public
service and the prestige and satisfaction that can flow from a
judicial appointment like this. And once you appoint that expert,
it can be startling how fast the case settles.
With concern and hope, I join the majority opinion.
WILEY, J.
6