Jones v. The California Department of Forestry and Fire Protection

Mere difficulties in collecting the judgment are insufficient grounds for appointing a receiver. Plaintiff has failed to meet his burden of proving that a receiver is necessary in this matter. The motion is DENIED. Due to the lack of opposition, the court’s minutes shall constitute the order of the court.

5. 25CV00610, Jones v. The California Department of Forestry and Fire Protection

(TENTATIVE ISSUED BY HON. OSCAR A. PARDO)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

19. PLEASE USE DEPT. 19’S ZOOM LOGIN INFORMATION.

Defendant California Department of Forestry and Fire Protection (“CalFire”) moves for summary judgment or, in the alternative, summary adjudication of the causes of action alleged by Plaintiff Don Jones (“Plaintiff”) for disability discrimination, failure to accommodate, failure to 10

engage in the interactive process, retaliation, and failure to prevent discrimination. The motion for summary judgment, or in the alternative, summary adjudication is DENIED. I. Complaint Plaintiff’s complaint alleges causes of action for: (1) Disability Discrimination – Violation of Cal. Gov’t Code §§12 940 et seq., (2) Failure to Provide Reasonable Accommodations - Violation of Cal Gov’t Code §§12940 et seq., (3) Failure to Engage in the Interactive Process – Violation of Cal. Gov’t Code §§12940 et seq., (4) Retaliation- Violation of Cal.

Gov’t Code §§12940 et seq., (5) Violation of Labor Code §1102.5, and (6) Failure to Prevent Discrimination - Violation of Cal. Gov’t Code §§12940 et seq. Plaintiff alleges he was hired by CalFire in 2007 as an engineer and firefighter. In 2015 he was promoted to Fire Captain. From 2012 to 2020, Plaintiff served concurrently as a flight medic for the U.S. Armed Forces. At some point allegedly due to his work with CalFire and other factors, Plaintiff was diagnosed with Post Traumatic Stress Disorder (“PTSD”).

In 2019, at the recommendation of his doctors, Plaintiff applied to Canine Companions for a service dog to assist him with his PTSD symptoms. Plaintiff alleges he informed his Division Chief, Jeff Gahgan, that he would be receiving a trained service dog from Canine Companions and notified Battalion Chief, Dave Diggs, that he would need to attend service dog training during the first week of June, which he did. Plaintiff alleges Canine Companions trained Walla to be with Plaintiff at all times, including going on assignments with Plaintiff anywhere his job took him.

In the summer of 2020, Plaintiff submitted a Reasonable Accommodation Request Form to CalFire requesting that he be allowed to bring Walla to work and to have her with him at all times, except for in a hot fire situation, in which case she would be kenneled safely in Plaintiff’s vehicle or another safe location. Plaintiff alleges he informed CalFire that Walla could be in her kennel for 4-6 hours at a time and in fact needed a small amount of down-time to decompress. Plaintiff alleges he provided all requested documentation, including a doctor's note confirming his PTSD diagnosis and stating that he should be permitted to bring Walla to work.

Plaintiff alleges that over the next two years, CalFire repeatedly raised questions and objections and placed obstacles in Plaintiff’s way, refusing to allow Plaintiff to bring Walla to work. Plaintiff alleges each time CalFire raised a question, Plaintiff provided answers and repeatedly provided information and assurances from Canine Companions about Walla's training, certification, and qualifications. In December 2020, Plaintiff was informed that he was not selected for the next round in his application for Battalion Chief, despite that he was invited to interview for Battalion Chief positions earlier in 2020.

Plaintiff’s request to bring Walla to work was denied and Plaintiff continued to appeal that denial without success. This lawsuit followed. A. First Cause of Action – Disability Discrimination (Violation of Cal. Govt. Code section 12940 et. seq.) To establish a prima facie case of disability discrimination under Government Code § 12940(a), a plaintiff must show that he: "(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability." (Wills v.

Superior Court (2011) 195 Cal.App.4th 143, 159- 160.) “Ordinarily, a plaintiff employee who claims discrimination must first make a prima facie case, consisting of evidence that she was within the class protected from discrimination and was performing her job competently, but was terminated—plus some other circumstance suggesting discriminatory motive. [Citation.] This showing raises a presumption of discrimination, shifting to the defendant employer the burden of producing evidence to establish a genuine issue that the termination was made for a legitimate, nondiscriminatory reason. [Citation.]

If the employer does so, the presumption disappears, but the employee, who retains the overall burden of persuasion, 11

may then yet seek to show discriminatory motive, by evidence that the employer's proffered reason was false and a pretext, and any other evidence of discriminatory motive. [Citation.]” (Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097.) A defendant employer's motion for summary judgment slightly modifies the order of these showings. (Ibid.) The employer defendant moving for summary judgment bears the initial burden of demonstrating that at least one of the elements of plaintiff's employment discrimination claim is without merit. (King v.

United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 432.) Alternatively, if the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. (Kelly v. Stamps.com Inc., 135 Cal. App. 4th at pp. 1097- 1098.) To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. (Id., at p. 1098.)

In determining whether these burdens were met, the court views the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing the evidence while strictly scrutinizing defendant's evidence.

1. Undisputed Facts The following are the undisputed facts in CalFire’s separate statement. Plaintiff has been a Fire Captain from January/February 2015 to the present. (Undisputed Material Fact [“UMF”] No. 3.) Plaintiff was diagnosed with PTSD in 2016 or 2017. (UMF No. 4.) The three promotional applications that Plaintiff claims were denied to him due to discriminatory animus have the job numbers ending in 006, 001, and 028, respectively. (UMF No. 6.) The remaining facts provided by CalFire in support of granting the motion as to this cause of action are disputed by Plaintiff.

2. Protected Activity CalFire first argues that the basis of Plaintiff’s claim is that he filed a complaint against CalFire, and that such filing is not a protected activity under the feha. Plaintiff argues Defendant mischaracterizes Plaintiff's testimony and takes it out of context. When asked about the basis for discrimination at his deposition, Plaintiff testified that he felt discriminated against “because of the claim that I had filed against the Department.” This statement was made in the context of discussing Plaintiff’s request for an accommodation and his PTSD disability. (Jones Dep. 127:10-128:12) Plaintiff states his discrimination claim is based on his PTSD disability and request for accommodation, not merely or solely on filing a complaint. CalFire has not met its burden on this issue.

3. Adverse Action CalFire argues that Plaintiff cannot show an adverse employment action that was due to his PTSD. An element of a cause of action for disability discrimination is that the employee was subjected to “an adverse employment action because of the disability or perceived disability." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159- 160.) With respect to the adverse action allegedly sustained by Plaintiff, CalFire argues Plaintiff cannot show he sustained an adverse action in connection with his request to leave his shift early during the Dixie Fire because he was later relieved from working this shift because he reported that he had COVID.

In the summer of 2021, Plaintiff was assigned to two different fires back-to-back in contradiction of CalFire’s policy providing for relief after 14 consecutive days, with possible extension to 21 days when operationally necessary, and despite his request for relief. (Jones decl., ¶¶38-41.) He was only relieved after he reported testing positive for COVID several days later. (Id., ¶42.) CalFire’s argument is based upon its undisputed material facts, numbers 92 and 103. Number 92 provides: “Plaintiff further contends that he was retaliated against, for requesting a

reasonable accommodation, when unidentified supervisors denied his request to be pulled out of his assigned duty on one occasion after he told the duty chiefs and chiefs that he was ‘getting exhausted, having difficulty performing (his) job, (he) needed relief’. Plaintiff's only fact in support of the claim that this was retaliation is that others were pulled off duty and he was not.” In response, Plaintiff argues that around days 16 to 18 of Plaintiff's continuous assignment on the Dixie Fire in Summer 2021, Plaintiff contacted his supervisors, including Chief Chad Smith, and informed them he was burnt out and needed relief from the incident.

He was told by Chief Smith that they could not pull him off the incident because they did not have a replacement for him. (Jones Decl. ¶¶ 40-41). Plaintiff states he was aware that other employees in similar positions were not assigned to back-to-back incidents and were allowed to go home when they requested relief and replacements were brought in for them. (Jones Decl. ¶41). Plaintiff argues this differential treatment—denying relief to Plaintiff while granting it to similarly situated employees—supports finding retaliation.

The inference is that the retaliation was based upon his request for an accommodation and his disability. Plaintiff notes he had been assigned continuously from the River Fire (July 13-18, 2021) directly to the Dixie Fire (July 18-August 2, 2021), totaling over 20 consecutive days, which exceeded Cal Fire’s own policy guidance of 14-day assignment relief with possible extension to 21 days only when operationally necessary. Plaintiff argues the denial of relief occurred approximately 7-8 months after Plaintiff's accommodation denial, maintaining temporal proximity to the protected activity.

CalFire’s Number 103 provides: “Plaintiff was allowed to leave his shift at the 2021 Dixie Fire the very day he first requested leave, because he reported being infected with Covid to his superiors.” Plaintiff argues the characterization that Plaintiff "first requested leave" on the day he reported COVID is factually inaccurate. Plaintiff states he had previously requested relief around days 16-18 of his assignment, citing burnout and exhaustion, before reporting COVID symptoms. (Jones Decl. ¶ 43).

Text messages from August 1, 2021, show Plaintiff reported feeling "burned out" and experiencing physical illness symptoms before testing positive for COVID. (Exhibit 8; text messages between Jones and Smith). Plaintiff argues that relief was ultimately granted due to COVID does not erase the earlier retaliatory denial of relief based on exhaustion when others in similar positions were granted such relief. CalFire argues that Plaintiff did not suffer an adverse employment action because he got what he requested.

The evidence provided by CalFire fails to meet its burden on this issue. In addition, Plaintiff has provided evidence that he did not get relief when he first requested it. CalFire also argues an isolated incident of being denied a request to quit work early, when one’s job is to fight a catastrophic fire, falls far short of materially affecting the terms, conditions, or privileges of employment. However, Plaintiff has not alleged an isolated incident. He alleges a series of adverse events including being made to work more days in a row than other employees and not being promoted.

4. Promotion to Battalion Chief – Not most qualified a) CalFire’s Evidence With respect to Plaintiff’s allegation that he should have been promoted to Battalion Chief, CalFire argues that Plaintiff was not the most qualified person for the job. CalFire argues that Plaintiff had previously applied and been denied the Battalion Chief position nine times. (Plaintiff’s deposition testimony at 151:22-153:9; 158:1-21; 160:8-9; 163:1- 5; 166:21-167:3; 167:15-22; 168:12-19; 169:2-18; 185:11-186:5; 186:10-17.) Brandon Gunn is the unit chief in the Mendocino unit. (Gunn decl., ¶2.) He states that in February of 2022, he served on the 3-person interview panel for Battalion Chief. (Ibid.) Plaintiff was one of the applicants. (Ibid.) Based upon his review of the interview record and his discussion with CalFire legal counsel, Mr. Gunn opined that Plaintiff 13

was not retaliated against in not being chosen for that position. (Ibid.) He states the most qualified applicants were Nathan Deurloo and Andrew Rhoads, who were chosen instead of Plaintiff. (Id., ¶ 5.) Both Nathan Deurloo and Andrew Rhoads performed better in their interviews and were more qualified than Plaintiff. (Ibid.) He states they demonstrated better experience and a better understanding of the Battalion Chief position. (Id., ¶6.) Fire Captain Joe Ortegel also scored higher than Plaintiff but was not chosen for the position. (Id., ¶7.)

Mr. Gunn explains that Plaintiff scored below the cut-off required for an interview. (Id., ¶¶8-9.) Mr. Gunn states there was no discussion about Plaintiff’s request to bring Walla to work. (Id., ¶10.) Mr. Gunn states that he takes transparency and integrity of the interview process seriously and that if he felt that Plaintiff was being scored on any factor other than the interview performance, he would have reported as much to his supervisor. (Id., ¶11.) CalFire has provided a legitimate non-discriminatory reason for not promoting Plaintiff— others were more qualified. b) Plaintiff’s Evidence Once an employer satisfies its initial burden of proving the legitimacy of its reason for termination or, as here the failure to promote, the employee seeking to avert summary judgment must present specific and substantial responsive evidence that the employer's evidence was in fact insufficient or that there is a triable issue of fact material to the employer's motive. (King v.

United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.) Plaintiff must show that the employer’s ostensible motive was pretextual; that is, “that a discriminatory reason more likely motivated the employer or that the employer's explanation is unworthy of credence.” (Ibid.) Plaintiff argues that the temporal proximity between the denial of his accommodation request (December 9, 2020) and the subsequent adverse employment actions demonstrates the connection between his disability and the discrimination he experienced. (Complaint ¶¶12-40.)

He argues he suffered clear adverse employment actions after he notified CalFire that he had PTSD; i.e., a pattern of promotional denials. Plaintiff states that in December 2019, he informed Division Chief Jeff Gahagan that he would be getting a service dog from Canine Companions for Independence. (Jones decl., ¶2.) In or around April 2020, Plaintiff informed Battalion Chief David Diggs that he would be required to attend training with Walla, his assigned service dog with CCI, the first week of June 2020. (Id., ¶3.)

On June 8, 2020, Jeff Gahagan emailed Plaintiff a Reasonable Accommodation Request Form and copied David Diggs. (Id., ¶3.) Plaintiff’s declaration purports to attach the subject email but no exhibits are attached. Plaintiff states he was thereafter denied a promotion for Battalion Chief in December of 2020, in the spring of 2021, and in October 2022. Plaintiff states he had participated in several Battalion Chief interviews in 2020; but he was not chosen for an interview after December 2020— after his accommodation request was denied. (Jones decl., ¶¶7, 14(2)-15(2).)

In December 2020 he applied for a Battalion Chief Position but was denied the opportunity to interview despite the fact that he had been repeatedly invited to interview for Battalion Chief Positions before he had notified CalFire of his disability and his request for a reasonable accommodation. (Id., ¶4.) In the spring of 2021, Plaintiff states he applied for, and was interviewed for, a Battalion Chief position by a panel that included Division Chief Jeff Gahagan and he was not selected for the position despite, in his opinion, being highly qualified for the position and being at least as qualified as the person selected for the position. (Jones Decl., ¶6.)

He states he later learned that Jennifer Van Huis's handwritten notes from the interactive process meetings included the phrase "MENDO NO," which Plaintiff states referred to Mendocino senior staff members who write the standards for each Battalion Chief promotional exam. (Jones 14

Decl., ¶¶8, 9.) The phrase “MENDO NO” could be interpreted in many ways. However, on this motion, this court must construe it in the light most favorable to Plaintiff. In October 2022, Plaintiff was not selected for Position 028 after an interview marked by what he describes as apparent bias. (Jones Dep. 178:1-17; 179:4-12; Jones Decl. ¶¶10-13.) He states that during a Battalion Chief interview with Chief Engelbert on the interview panel, he observed Chief Engelbert erasing answers on his scoring sheet after he had already provided his responses to questions. (Jones decl., ¶10.)

Plaintiff states he would respond to a question, the panelists would mark their sheets, and then one or two questions later, Chief Engelbert would use an erasable pen to remove answers he had previously marked on the sheet. (Id., ¶11.) However, Plaintiff could not see which specific questions or answers Chief Engelbert was erasing due to the angle and distance. (Id., at ¶12.) Plaintiff states that the Battalion Chief interview scoring uses checkboxes to indicate whether the interviewee mentions information indicating they are qualified. “After I answered those questions, Engelbert’s check marks were erased which would allow evaluators to decide my answers were not complete or not to their liking.” (Id., ¶13.)

This evidence could be construed in different ways, but on this motion it must be construed in Plaintiff’s favor. Plaintiff states that HR policy requires the same interview panel for all candidates but Plaintiff’s interview used different chiefs on different days, which violates CalFire’s own process and prevents fair comparison across candidates. (Jones decl. ¶14.) Plaintiff knows this because he participated in designing and conducting interviews for Forestry Technician positions. (Jones decl., ¶14.)

He states that in another exam cycle in summer 2021, he was sent out on a fire assignment during the posting period for a Battalion Chief position such that he missed the opportunity to apply. (Jones decl., ¶¶8(2)-9(2). [Plaintiff’s paragraph 15 is marked as number 8. The subsequent paragraphs proceed as paragraph 9 and continuing. This court will use the numbers used by Plaintiff with the addition of “(2)” if it is the second instance of an already numbered paragraph.]) Plaintiff states senior staff have discretion to excuse absences and extend promotional deadlines for employees who are on assignment, but Chief Engelbert refused to support him or allow him to apply for that position despite his being on a mandatory fire assignment. (Jones decl., ¶10(2).)

Plaintiff states that the same senior staff members referenced in the "MENDO NO" notation, Brandon Gunn and Jeff Gahagan, are individuals who influence and control the screening decisions for Battalion Chief positions in the Mendocino Unit. (Jones decl., ¶11(2).) Plaintiff states these same senior staff members also develop the Battalion Chief exam standards and interview parameters, giving them the ability to design criteria that can include or exclude specific candidates. (Jones decl., ¶12(2).)

Plaintiff states the individuals who had advanced knowledge that he would not be considered favorably (as evidenced by the "MENDO NO" notation) were the same individuals responsible for creating the evaluation standards and conducting the screening process. (Jones decl., ¶13(2).) Plaintiff cites deposition testimony of Jennifer Van Huis. At her deposition, Ms. Van Huis, who is presented in Plaintiff’s memorandum as being CalFire’s Reasonable Accommodations and Return to Work Coordinator, was shown an email dated August 19th, 2020, which Plaintiff’s counsel indicated was sent by her to Ashley Glisan. (Van Huis decl., p. 12.)

At the deposition, Plaintiff’s counsel stated the email read: “Hi Ashley. We have received an unusual RA request to Don Jones, an FC in MEU. Do you have time this week to speak with Gena and me?” (Ibid.) Gena is presumably Genavina Mabary, who is represented to be CalFire’s Manager of the Injury and Accommodations Unit.

The email itself is not provided and Plaintiff’s counsel’s recitation at the deposition of what the email says is hearsay. It is not even clear if the email relates to Plaintiff’s request for an accommodation or if it was made by someone supervised by him as it states the “RA,” presumably Request for Accommodation, was made “to” Plaintiff not by him. Plaintiff states that he learned in 2021 of another Fire Captain who was allowed to bring her service animal to work. (Jones decl., ¶¶16-17.) Plaintiff states that CalFire used the excuse that Walla would need protective gear as a reason not to grant his accommodation despite its own K9 program dogs not wearing said protective gear. (Jones decl., ¶¶17-19.)

Plaintiff states that when he proposed to be placed in an alternative position, Employee Support Services (ESS), Genavina Mabary rejected it by stating that ESS had no openings and that "Walla is only for you," which suggested to Plaintiff that his need for accommodation was not being taken seriously. (Jones decl., ¶21.) Plaintiff argues CalFire’s actions are all pretense because Plaintiff’s position as a Prescribed Fire Crew Captain was primarily supervisory, with his duty statement showing that 50% to 60% of his work time was spent at a computer performing administrative tasks. (Jones decl. ¶¶22, 27- 30.)

He states his role as Prescribed Fire Crew Captain was vegetation management. (Id., ¶23.) He states he had no structure-fire PPE; Forestry Technicians assigned to fuels are not trained or certified to respond to emergency incidents. (Id., at ¶23, 27, 28.) The fuels crew program was intentionally created to avoid pulling staff into fire incidents so fuels work could continue statewide. (Id., ¶¶23-25.) He states other proposed solutions during the interactive process, including kenneling Walla in his vehicle during the limited situations where he would need to enter dangerous fire environments, were also rejected. (Jones decl., ¶27.)

Plaintiff argues that CalFire failed to consider that Canine Companions for Independence certified that Walla was trained in over 40 commands and approximately 60 skills, and that it had advised that Walla could accompany Plaintiff in his job duties, similar to how police canines accompany law enforcement officers. (Id., ¶28.) He states all of his job duties could accommodate Walla’s presence. (Id., ¶¶29-37, 43-44, 47.) Plaintiff states he has never had any work performance issues. (Jones decl., ¶¶48-49.)

CalFire’s only solution was to downgrade Plaintiff’s position with a significant cut to pay, benefits, and retirement. (Jones decl., ¶¶43-46.) Here, Plaintiff presents evidence of CalFire’s failure to promote Plaintiff, of Plaintiff being subjected to harsher working conditions, and of CalFire’s failure to accommodate his disability request. One link presented by Plaintiff that these adverse employment actions occurred because of his disability is the timing. Overall, a triable issue of material fact exists regarding whether Plaintiff suffered an adverse employment action because of his request for an accommodation or his disability.

5. Conclusion on First Cause of Action There is substantial conflicting evidence in this case. Construing the evidence presented in the light most favorable to Plaintiff, Plaintiff has provided sufficient evidence to overcome the motion for summary judgment. CalFire’s motion as to this cause of action is DENIED. B. Third Cause of Action – Failure to Engage in the Interactive Process (Gov’t. Code section 12940 et seq.) Plaintiff’s third cause of action for failure to engage in the interactive process alleges CalFire failed to engage in a good faith interactive process. The FEHA imposes an additional duty on the employer “to engage in a timely, good faith, interactive process with the employee ... to

determine effective reasonable accommodations ....” (§ 12940, subd. (n).) An employer's failure to engage in this process is a separate FEHA violation. (Wilson, supra, 169 Cal. App. 4th at p. 1193.) CalFire argues it engaged in an extensive interactive process with Plaintiff to determine whether he could bring his service dog Walla to work with him in performing his Fire Captain duties. CalFire spent four months discussing and considering the logistics and weighing the risks and benefits of having a service animal accompany Plaintiff to his firefighting duties, including discussions with Canine Companions for Independence, and various outside providers of fire safety gear. (UMF 19, 52.)

CalFire spent considerable time communicating with Plaintiff to determine whether there was a way to allow him to bring Walla to work, especially during the most stressful, demanding and dangerous parts of his job of fighting fires. (UMF 19, 52.) CalFire determined, however, that permitting a service dog to accompany a Fire Captain in his firefighting duties would compromise CalFire’s operations and the safety of Plaintiff, Walla, the firefighter crew, and the public who needed CalFire’s emergency services. (UMF 19-45; 48-77.)

CalFire offered to assign Plaintiff to an alternative, non-safety position that would have allowed Plaintiff to keep Walla with him at all times. (UMF 46, 78.) Plaintiff rejected this offer and insisted on his preferred accommodation of bringing Walla to work while he performed his firefighting duties. (UMF 46, 79.) Plaintiff testified at his deposition that he refused to return to work until he could have Walla accompany him to his Fire Captain job. (Plaintiff’s deposition, 59:21- 24.) An element of a cause of action for failure to engage in the interactive process requires defendant make reasonable accommodation that would allow the employee to be able to perform the essential job requirements. (CACI Civil Jury Instruction 2546.)

This necessarily requires the essential job requirements to be identified. Plaintiff argues that CalFire’s explanation for its failure to accommodate him by allowing him to bring Walla to work with him, and thus CalFire’s failure to engage in the interactive process in good faith, was based upon Plaintiff’s job function of fighting active fires. Plaintiff argues that fighting active fires was not an essential function of his job. Plaintiff states his position was primarily supervisory and administrative, with 50-60% of supervision time spent at a computer performing administrative work and less than 5% responding to emergency incidents and disasters. (Jones Decl. ¶ 22; Mabary Dep. 55:19-22.).

Plaintiff states he was never required to respond to emergency incidents and many Fire Captains in CalFire rarely or never respond to emergency incidents. (Jones Decl. ¶ 28-29.) Plaintiff states his fuels reduction crew consisted of Forestry Technicians who performed the hands-on fieldwork while Plaintiff supervised and coordinated their activities. (Jones Decl. ¶ 24; Mabary Dep. 22:3-6, Exhibit N.) Plaintiff argues his fuels crew did not have structure-fire personal protective equipment such as SCBA or turnouts and could not be dispatched to active fire emergencies due to lack of specialized training and equipment. (Jones Decl. ¶¶ 25, 28).

The fuels crew program was intentionally created to avoid pulling staff into fire incidents so fuels work could continue statewide. (Jones Decl. ¶ 23). Most fuels work involves pile burning in cool, wet seasons with large burns scheduled months in advance and are heavily staffed; they are not emergency fire line operations. (Jones Decl. ¶ 27) In reply, CalFire argues Plaintiff’s testimony contradicts other testimony; e.g., that Plaintiff was assigned to the Dixie Fire for 16 to 18 days causing him to burn out—showing that his job duties do include emergency fire response.

Despite the inconsistency, this issue requires a determination of whether CalFire negotiated with Plaintiff in good faith. (Gov. Code, § 12940(n).) Based upon the evidence presented, this court cannot make this determination without weighing evidence and determining credibility, which is improper on a motion for summary judgment. CalFire argues Plaintiff cannot show harm as a result. However, this issue is also disputed as Plaintiff was not provided with an accommodation that would allow him to continue in his same position.

The alternate position was a demotion with a pay cut and reduced retirement benefits. (Jones decl., ¶¶45-46.) CalFire argues that because it did offer Plaintiff an accommodation, that is 17

the end of the discussion; i.e., CalFire did not have to offer Plaintiff the accommodation he requested. However, again, this depends upon finding that CalFire negotiated in good faith, which is disputed. Based upon the foregoing, CalFire’s motion as to this cause of action is DENIED. C. Second Cause of Action – Failure to Provide Reasonable Accommodation (Gov’t. Code section 12940 et seq.) Plaintiff’s second cause of action alleges Cal Fire failed to provide a reasonable accommodation by not allowing him to bring his service dog to work.

Under section 12940, it is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. (§ 12940, subd. (m).) The essential elements of a failure to accommodate claim are: (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. (Wilson v.

County of Orange (2009) 169 Cal.App.4th 1185, 1192.) CalFire argues that it did not fail to reasonably accommodate Plaintiff because Plaintiff’s preferred accommodation was not reasonable. CalFire argues that allowing Walla to accompany Plaintiff to work would have prevented Plaintiff from performing the essential functions of his job. CalFire argues that it did provide a reasonable accommodation by offering to transfer him to a different position which would allow him to have Walla at work. Based upon review of the evidence, a triable issue of material fact exists regarding whether Plaintiff’s requested accommodation was reasonable under the circumstances and whether having Walla present would not have allowed Plaintiff to perform the essential functions of the job.

Based upon the foregoing, Cal Fire’s motion as to this cause of action is DENIED. D. Fourth Cause of Action – Retaliation (Gov. Code section 12940, et seq.); Fifth Cause of Action – Violation of Labor Code section 1102.5 Plaintiff’s fourth cause of action for retaliation is for violation of Government Code section 12940 et seq. It alleges CalFire retaliated against him by refusing to promote him as a result of his seeking accommodation and complaining about CalFire’s violation of his rights under the FEHA.

Plaintiff’s fifth cause of action alleges CalFire violated Labor Code section 1102.5 when CalFire retaliated against him by refusing to promote him as a result of Plaintiff raising what he believed to be illegal acts by CalFire. Both of these claims require that Plaintiff prove he engaged in a “protected activity” within the meaning of each statute and that such “protected activity” was causally connected to the defendant’s decision to take an adverse employment action. (Light v. Dep’t of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91 [FEHA]; Cuevas v.

SkyWest Airlines, 17 F.Supp.3d 956, 964 (N.D. Cal. 2014) [Labor Code § 6310].) “To establish a prima facie case of retaliation under FEHA, a plaintiff must show that (1) he or she engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were casually connected.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1042.) CalFire argues that Plaintiff’s claim based upon Labor Code section 1102.5 lacks the threshold requirement of being a “protected activity” because requesting an accommodation is not a “protected activity.”

However, the governing statute, Gov. Code section 12940(m), expressly includes a request for an accommodation as a basis for a claim of retaliation. CalFire argues that Plaintiff can offer no evidence to create a triable issue of material fact that he was not selected for promotion or was denied relief from the Dixie Fire as a result of his request for an accommodation. Close proximity in time between protected activity and adverse action is often strong evidence of a retaliatory motive even without direct evidence of a retaliatory 18

animus. (Le Mere v. Los Angeles Unified School District (2019) 35 Cal.App.5th 237, 243.) Plaintiff notes the short period of time between his request for an accommodation and being screened out for a promotion support his claim. (Plaintiff’s response to CalFire’s UMF No. 86.) This is a triable issue of material fact. Based upon the foregoing, CalFire’s motion as to this cause of action is DENIED. E. Sixth Cause of Action – Failure to Prevent Discrimination Plaintiff’s sixth cause of action alleges CalFire failed to take all reasonable steps necessary to prevent disability discrimination against him.

As Plaintiff’s claim for disability discrimination remains, the motion on this cause of action must also be denied. II. Conclusion and Order CalFire’s motion for summary judgment or, in the alternative, summary adjudication is DENIED. Plaintiff’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.

6. 26CV01827, Stone Street Originations, LLC v. R.-M.

(TENTATIVE ISSUED BY HON. JANE GASKELL)

IF ORAL ARGUMENT IS REQUESTED, MATTER WILL BE HEARD IN DEPT.

17. PLEASE USE DEPT. 17’S ZOOM LOGIN INFORMATION.

This matter is on calendar for the petition of Stone Street Originations, LLC (“Petitioner”) for approval of the transfer of certain structured settlement payment rights.

1. Petitions The original petition filed on March 9, 2026 (“Petition”) refers to the party in interest as “A.R.-M.” (Petition, ¶2.) The majority of the Petition refers to “A.R.-M.” as “Payee” or “Transferor.” The Petition states that in 1993, Payee became entitled to certain structured settlement payments in connection with a personal injury claim. (Petition, ¶3.) The periodic payments are not listed and only stated as being “XXXX.” (Petition, ¶4.) The proposed Purchase Agreement whereby Petitioner seeks to purchase the payment rights is attached as Exhibit A to the Petition.

The name of the real party in interest and the amount Petitioner seeks to purchase from the real party in interest is redacted. On May 28, 2026, Petitioner filed a First Amended Petition (“FAP”). In the body of the FAP, the real party in interest is identified as Arnulfo Rosas-Montes (“Payee”) and the terms of the proposed transfer are set forth. (FAP, ¶¶2-4.)

2. Procedural Issues “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) “In the complaint, the title of the action shall include the names of all the parties.” (Code Civ. Proc., § 422.40.) One who is not named is not a proper party to an action. (Fuss v. City of Los Angeles (1958) 162 Cal.App.2d 643, 646.) The failure to identify Mr. Rosas-Montes as a party in the title of this action is problematic for several reasons. One important issue is the right of public access to court proceedings. Among the guarantees of the First Amendment to the United States Constitution is that court proceedings are open and public. (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 110.) Public access to court proceedings is essential to a 19