Talley v. Cnty. of Fresno

• Citation: 51 Cal.App.5th 1060,265 Cal.Rptr.3d 663
• Decision Date: 10 July 2020
• Docket Number: F078541
• Court: California Court of Appeals
• Parties: Ronald TALLEY, Plaintiff and Appellant, v. COUNTY OF FRESNO, Defendant and Respondent.

51 Cal.App.5th 1060

265 Cal.Rptr.3d 663

Ronald TALLEY, Plaintiff and Appellant,

v.COUNTY OF FRESNO, Defendant and Respondent.

F078541

Court of Appeal, Fifth District, California.

Filed July 10, 2020

Georgeson and Belardinelli, and Richard A. Belardinelli, Fresno, for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Jesse J. Maddox, Sacramento, and Sue Cercone, Fresno, for Defendant and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Plaintiff Ronald Talley pleaded nolo contendre to a criminal offense for which he was sentenced to 18 days in the Fresno County Jail. Rather than serving those days in county jail, plaintiff was deemed eligible to serve the sentence by participation in the Adult Offender Work Program (AOWP) administered by Fresno County's Probation Department. Plaintiff was injured while performing work in the AOWP, and he filed suit against Fresno County (county) for, among other things, its failure to accommodate his preexisting physical disability and failure to engage in the interactive process under the Fair Employment and Housing Act ( Gov. Code, § 12900 et seq. ; FEHA).¹

Plaintiff's claims rest on the theory AOWP participants are county employees for purposes of the FEHA. County filed a motion for summary judgment arguing that because there was no remuneration for the work he performed in the AOWP, plaintiff cannot be deemed an employee under the FEHA. County also argued plaintiff's negligence claim was precluded because his sole remedy was workers' compensation. The trial court agreed with county and granted its motion for summary judgment on all claims.

On appeal, plaintiff asserts the trial court erroneously interpreted the FEHA and applied an incorrect legal analysis to conclude, as a matter of law, he was not an employee of county. He also asserts the trial court made an improper evidentiary ruling and impermissibly weighed the credibility of evidence in reaching its decision. Plaintiff maintains that under the correctly applied legal analysis coupled with the proper assessment of the facts, he has either (1) definitively proven his AOWP participation rendered him a county employee or (2) offered sufficient evidence to create a disputed issue of fact as to his employment relationship with county.

For the reasons discussed below, we conclude the trial court's grant of summary judgment was correct, and we affirm the judgment in full.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

In October 2015, plaintiff pleaded guilty to driving without a license or insurance and was sentenced by the Fresno County Superior Court to 18 days of jail time, which was to be served in the AOWP, a work release program that allows eligible participants to serve their sentence by performing work assignments for participating community and governmental agencies and is coordinated through county's probation department.

Plaintiff is physically disabled due to congenital talipes equinovarus, commonly referred to as clubfoot, which requires him to wear a 10-pound foot brace to walk; the brace limits his mobility and restricts him from certain activity.

As part of entering the AOWP, plaintiff was required to complete a probation form, the AOWP interview face sheet, which contains a bold-faced and all-caps notice that states "IN ORDER TO PARTICIPATE IN THE WORK PROGRAM, YOU MUST BE ABLE TO PERFORM MANUAL LABOR. DO YOU HAVE ANY PHYSICAL OR MENTAL PROBLEMS THAT WOULD PROHIBIT YOU FROM PARTICIPATING IN THE ADULT OFFENDER WORK PROGRAM?"

Plaintiff placed an "x" on the face sheet indicating he had no problems that would prohibit his participation in the AOWP. Plaintiff paid the $180 administrative fee to participate in the program, the probation department accepted him, and it assigned him to perform manual labor for the parks and recreation division within county's public works and planning department.

On February 4, 2016, the 18th and final day of his participation in the AOWP, plaintiff was assigned to blow leaves, and he was provided a heavy, gas-driven leafblower. While climbing a stairway, plaintiff caught his foot in the stairway, his foot brace became lodged in a step, and he fell backwards, causing injury. Later, plaintiff's foot was amputated. County provides workers' compensation coverage to AOWP participants; plaintiff applied for and received workers' compensation benefits, which included medical, temporary total disability and permanent partial disability due to the injuries he sustained on February 4, 2016.

II. Procedural Background and Evidentiary Developments

A. Plaintiff's Complaint and Allegations

Plaintiff filed suit against county in January 2017, but the complaint was not served. A first amended complaint was filed and served and then replaced by a second amended complaint (SAC) after county's demurrer was sustained. The SAC alleges plaintiff became employed by county in December 2015 by virtue of his participation in the AOWP, and he performed general maintenance on county property, including trash removal and city beautification under the direction of Fresno County Parks Services Supervisor Manuel Diaz and two other county workers.

The SAC alleges plaintiff has a clubfoot disability for which he wears a large 10-pound brace that enables him to walk properly; however, the disability reduced plaintiff's mobility and capacity to work while standing up, particularly over long periods.

The SAC avers county was aware of or should have been aware of plaintiff's foot disability due to the visibility and obvious nature of the boot-brace he wears to walk. Plaintiff also had discussed his disabled foot with supervisors at the parks department; he explained he had limited physical mobility and capacity due to the pain of walking on his disabled foot over extended periods, and explained to his supervisor that his work duties would have to be reasonably accommodated and adjusted due to this disability.

Despite knowing plaintiff had limited capacity to perform certain physical tasks, county failed to engage in an interactive process about the need to reasonably accommodate his disability: county would regularly cause plaintiff to walk long courses to pick up trash or heavy cement bricks. Although plaintiff made every effort to comply with his assigned tasks until the pain in his foot precluded it, county declined and refused to place plaintiff on any light duty work assignments or in any other manner accommodate his foot disability.

Then, on February 4, 2016, plaintiff informed his supervisors he was physically incapable of operating the heavy leafblower designed to be worn on the operator's back or side. Despite plaintiff's request to use a rake instead of the leafblower, plaintiff's supervisor ordered him to use the leafblower anyway. Plaintiff was instructed to blow leaves on county's University Medical Center Campus, including the second floor stairs and landings of the buildings. While performing these tasks, plaintiff's braced foot slipped on the surface of county's damp metal stairs, causing his foot to slide through the stairs a few steps from the ground. The boot brace became lodged under a step as he fell backward, and he landed on his back with his handicapped foot lodged into the stair above him. The impact and angle of the fall caused the bones in plaintiff's handicapped foot to fracture, and plaintiff also sustained injuries to his neck and back.

The SAC further alleges that plaintiff had been informed his disabled foot required amputation, and plaintiff became unable to work due to the pain and disfunction of his injured foot. County accepted a workers' compensation claim for the fracturing of plaintiff's disabled foot. Plaintiff alleged he filed a tort claim with county on August 2, 2016, which was rejected on September 27, 2016; and plaintiff filed a discrimination claim with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing (DFEH) on August 31, 2016, and plaintiff received a right-to-sue notice on October 25, 2016.

As a result of county's actions, the SAC set out eight causes of action. The first two causes of action alleged disability discrimination claims under the FEHA; the third and fourth causes of action alleged disability discrimination claims under the Government Code; the fifth cause of action asserted a negligence claim; the sixth cause of action was for dangerous condition of public property; the seventh was for gross negligence; and the eighth claim was for negligent hiring, supervision or retention of a supervisor/manager.

In ruling on county's demurrer to the SAC, the court concluded the third, fourth, seventh and eighth causes of action were not viable. However, the first two claims under the FEHA, the negligence claim, and the dangerous condition on public property claims were cognizable. County filed an answer to the complaint, and discovery proceeded on the four remaining claims.

B. Motion for Summary Judgment

1. County's Argument and Evidence

In June 2018, county filed a motion for summary judgment, or, in the alternative, summary adjudication. As to plaintiff's claims, county argued plaintiff was not an employee and had no employment relationship with county necessary for any liability under the FEHA. County cited Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 27 Cal.Rptr.3d 452 ( Mendoza ) and Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 159 Cal.Rptr.3d 843 ( Estrada ) for the proposition that, because plaintiff received no direct or indirect financial remuneration from county for the work he performed in the AOWP, he could not be considered an employee of county under the FEHA. Further, even if he were an employee for purposes of the FEHA, plaintiff admitted county accommodated his need for duties he could perform given his limitations.

County pointed to plaintiff's deposition testimony wherein he explained that when he had told his supervisor about his foot limitation, he was told to use the smaller leafblower rather than the...