Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge., Super. Ct. No. 00CC08681
Law Offices of Lathe S. Gill and Lathe S. Gill for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Nancy E. Zeltzer, and Gary M. Lape for Defendant and Respondent.
OPINION
IKOLA, J.
Plaintiff Eric Peacock suffers from acute myopia, but has 20/20 vision when wearing soft contact lenses. In 1994, plaintiff applied for a position as a deputy sheriff trainee with defendant County of Orange. Defendant rejected plaintiff’s application.
Plaintiff brought an employment discrimination action against defendant in state court, alleging causes of action under federal and state law, including California’s Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and the federal Americans with Disabilities Act (ADA) (42 U.S.C. § 12181 et seq.). Defendant removed the action to federal court and sought summary judgment. Ultimately, the district court granted, and the Ninth Circuit affirmed, summary judgment in defendant’s favor on plaintiff’s federal law claims. But as to plaintiff’s FEHA cause of action, the Ninth Circuit partly upheld and partly reversed the district court’s grant of summary judgment for defendant, ruling plaintiff has no actual disability under FEHA but a genuine issue of material fact exists on whether defendant perceived plaintiff to be disabled. The district court declined to exercise jurisdiction over this latter issue and remanded the case to state court.
In addition to an actual physiological disorder or condition that limits a major life activity, FEHA defines a “‘physical disability’” as including “[b]eing regarded or treated by the employer... as having... any physical condition that makes achievement of a major life activity difficult.” (Gov. Code, § 12926, subds. (k)(1) & (4).) Under rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.), a party “may move... for summary judgment on all or part of the claim.” But so-called partial summary judgments are not permitted under California Law — summary adjudication is permitted only on an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1) [“[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty”].) Thus, had a California court found a triable issue of fact on the perceived disability issue, summary adjudication would have been denied on the entire cause of action.
The superior court granted defendant’s motion for summary judgment on the perceived disability issue, finding no triable issue of fact existed. The court ruled the doctrine of collateral estoppel precluded further consideration of whether plaintiff has an actual disability.
Plaintiff appeals from the judgment following the superior court’s grant of defendant’s summary judgment motion. On appeal the parties disagree on whether the superior court was bound by the Ninth Circuit’s rulings on both the actual disability and the perceived disability issues. Each party advocates the binding nature of the ruling favorable to it and the nonbinding nature of the other. As we shall explain, the Ninth Circuit’s rulings are the law of the case and therefore binding in subsequent proceedings in this action. We therefore reverse the summary judgment, but direct that further proceedings in the trial court shall be limited to the perceived disability prong of the alleged “physical disability” under FEHA.
Plaintiff’s unopposed motion for judicial notice of administration decisions of the Fair Employment and Housing Commission is granted.
FACTS
Because this is an appeal from a grant of summary judgment, we view the evidence most favorably to plaintiff. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“Plaintiff is myopic (nearsighted) with reported vision of 20/900+ in both eyes.” With eyeglasses or soft contact lenses, his vision is 20/20.
In August 1994, plaintiff submitted a written application for a deputy sheriff trainee position with defendant. The application contained questions about his corrected and uncorrected vision. He stated his vision in each eye was “20/900+” uncorrected and 20/20 corrected. The employment application was “marked, just above the first question, ‘FAILURE TO COMPLETE THIS FORM WILL RESULT IN THE REJECTION OF YOUR APPLICATION.’” Plaintiff left one question blank and another question partially blank after being told by a proctor he could ask an investigator for clarification about those questions. When plaintiff turned in his application to the investigator, the investigator stated plaintiff did not meet defendant’s minimum requirements for uncorrected vision. At that time, defendant’s minimum uncorrected vision standard was 20/80.
The court erroneously sustained an objection to this evidence. The statement was offered as an operative fact to explain subsequent conduct, not for its truth. Thus, it was not inadmissible hearsay.
In his first amended complaint filed in November 2000, plaintiff sued defendant (“a.k.a. Orange County Sheriff’s Department”), inter alia, for unlawful discrimination based on disability under FEHA and the ADA.
In December 2000, defendant removed the action to the federal district court. In July 2001, Judge Gary L. Taylor granted defendant’s motion for summary judgment on all federal and state claims. On the employment discrimination claim under FEHA, Judge Taylor relied on a state appellate court’s decision in Colmenares v. Braemer Country Club, Inc. (2001) 89 Cal.App.4th 778, review granted August 22, 2001, B142962, which was later reversed by our Supreme Court in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019.
Plaintiff appealed to the Ninth Circuit which, in a memorandum opinion, generally affirmed the district court’s grant of summary judgment on the ADA claim, but remanded for further findings on the business necessity of defendant’s inquiry about plaintiff’s eyesight. As to plaintiff’s employment discrimination claim under FEHA, the Ninth Circuit held: “Although the district court... properly determined that [plaintiff] failed to demonstrate that he is a qualifying individual with a disability under [FEHA], see id. [referring to “Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83, 493-94 (1999) (Sutton) (holding that the existence of a disability is determined in light of mitigating or corrective measures)”],“‘new California Supreme Court authority requires reversal of the district court’s grant of summary judgment’” “on [plaintiff’s] FEHA disability discrimination claim because [plaintiff] raised a genuine issue of material fact as to whether defendant perceived him as having a disability. See Colmenares v. Braemar Country Club, Inc. [(2003) 29 Cal.4th 1019] (holding that FEHA requires that a physical condition only limit, not substantially limit, participation in major life activities); cf. Sutton,... at p. 490 (explaining that an allegation that an employer has a vision requirement in place is not sufficient, on its own, to establish that the employer regards the applicant as substantially limitedin the major life activity of working).” The Ninth Circuit affirmed the district court’s grant of summary judgment to defendant on two other state law claims.
Some 14 years after defendant rejected plaintiff’s application to be a deputy sheriff trainee, the United States Congress legislatively rejected the broad reach of the Sutton decision. But Congress let stand the narrower rule arising from the actual facts in Sutton, i.e., under the ADA, a plaintiff’s corrected vision achieved with the assistance of eyeglasses or contact lenses must be considered when determining whether plaintiff is disabled. (ADA Amendments Act of 2007, Pub. L. No. 110-325 (Sept. 25, 2008) 122 Stat. 3553, § 4(a), codified in 42 U.S.C. §12102(4)(E)(i) & (ii) [“The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as” assistive devices not including ordinary eyeglasses or contact lenses, but “[t]he ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity” (italics added)].)
On remand to the district court, defendant again moved for summary judgment. In his November 2005 amended order, Judge David O. Carter identified “two issues remain[ing] before the Court.” One was the propriety of defendant’s inquiry into plaintiff’s visual acuity (the last extant federal claim), as to which Judge Carter granted defendant’s motion for summary judgment. The second remaining issue was whether defendant “perceived [plaintiff ] as having a disability under FEHA.” Judge Carter stated the Ninth Circuit had reversed Judge Taylor’s “grant of summary judgment on [plaintiff’s] FEHA disability discrimination claim.” Judge Carter remanded plaintiff’s FEHA claim to the state court, stating a “district court may decline to exercise supplemental jurisdiction over a state law claim where the district court has ‘dismissed all claims over which it has original jurisdiction’” pursuant to 28 U.S.C. § 1367(c)(3). The Ninth Circuit affirmed Judge Carter’s rulings.
The action was reopened in the Orange County Superior Court pursuant to plaintiff’s motion. In January 2008, defendant moved for summary judgment on plaintiff’s cause of action for disability discrimination under FEHA, arguing there was “no evidence to support that plaintiff was ‘perceived’ as having a disability....”
In his opposition to defendant’s summary judgment motion, plaintiff argued his entire FEHA claim remained viable, not simply the “perceived as” aspect of the cause of action. He asserted that whether he has an actual disability under FEHA was “a genuine issue of disputed material fact.” He contended the law of the case doctrine was “inapplicable because this is not a retrial or appeal” and because application of the doctrine would be unjust because the Ninth Circuit’s decision on this issue is “clearly... not the law in California.”
In its reply to plaintiff’s opposition, defendant argued the Ninth Circuit’s decision that plaintiff has no actual disability under FEHA is the law of the case, and therefore no longer a viable issue.
The court granted the summary judgment motion, finding “plaintiff presented no evidence to raise a triable issue as to whether the County Sheriff’s Department perceived that plaintiff was disabled and as such was limited in his ability to participate in one or more major life activities.” On the issue whether plaintiff “was in fact disabled under” FEHA, the court ruled the law of the case doctrine was inapplicable because “this is not the same action as the federal case.” But the court ruled the issue was precluded under the doctrine of collateral estoppel.
DISCUSSION
On appeal the parties disagree about the effect of the Ninth Circuit’s rulings that (1) no triable factual issue exists on whether plaintiff is actually disabled under FEHA, but (2) a triable factual issue does exist on whether defendant perceived him to be disabled. Regarding the first ruling (that plaintiff is not actually disabled), plaintiff contends collateral estoppel does not apply because the Ninth Circuit misinterpreted California law and that the law of the case doctrine is inapplicable “because this is not a retrial or appeal [presumably because the ruling was made by a federal court], and it would be manifestly unjust to deny [him] the protection of the disability discrimination laws.” Defendant counters the ruling is binding under theories of full faith and credit, collateral estoppel, or law of the case. As to the Ninth Circuit’s second ruling (that a triable issue of fact exists as to whether defendant perceived plaintiff as disabled), plaintiff argues collateral estoppel prevented the trial court from considering a new summary judgment motion, while defendant counters issue preclusion is inapplicable because the Ninth Circuit’s ruling was not a final decision.
As we shall explain, both of the Ninth Circuit’s decisions are binding as the law of the case. Under the law of the case doctrine, a decision made by an appellate court in an action binds both trial and appellate courts in subsequent proceedings in that same case. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 (Morohoshi)). In contrast, the “doctrines of res judicata and collateral estoppel apply to later litigation to give conclusive effect to a former judgment or an issue determined in a former proceeding,” i.e. “a separate lawsuit.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701-702, italics added.)
The law of the case doctrine applies only to an appellate determination that states a “‘“rule of law necessary to the decision,”’” i.e. a conclusion on a question of law, not an issue of fact. (People v. Barragan (2004) 32 Cal.4th 236, 246.) An appellate ruling on the sufficiency of the evidence to support a finding or judgment is “a decision upon a question of law.’” (Ibid.) Similarly, an appellate decision reversing a summary judgment due to the existence of triable issues is a legal conclusion establishing the law of the case. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309 (Yu); see also Bergman v. Drum (2005) 129 Cal.App.4th 11, 18.)
“The doctrine applies to decisions of intermediate appellate courts as well as courts of last resort.” (Yu, supra, 103 Cal.App.4th at p. 309.) By preventing parties from relitigating issues an appellate court has already resolved against them (id. at p. 309), the doctrine promotes “judicial economy and finality of court rulings” (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1064).
“The case doctrine is not absolute” (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97 (Adams)), being “one of procedure rather than jurisdiction....” (Yu, supra, 103 Cal.App.4th at p. 309.) But it “applies even though [another] court may conclude the previous Court of Appeal opinion was erroneous. [Citation.] ‘Indeed, it is only when the former rule is deemed erroneous that the doctrine of the law of the case becomes at all important.’” (Morohoshi, supra, 34 Cal.4th at p. 491.) For that reason, the doctrine has been recognized to be “harsh.” (Ibid.) To lessen its harsh impact, the doctrine need not be applied “where its application would result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice....” (Id. at pp. 491-492.) But “[t]he unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination.” (Id. at p. 492.)
Here, the law of the case doctrine applies because although this case has moved through the state court to the federal court and back again, this proceeding is still part of the same action. The same pleading has been at issue throughout. No final judgment was reached in the federal court on plaintiff’s FEHA claim. In order for the outstanding state law issues to be resolved, the federal court remanded the case to the state court. (Carnegie-Mellon University v. Cohill (1988) 484 U.S. 343, 357 [“district court has discretion to remand to state court a removed case involving pendent claims”].) Collateral estoppel is thus inapplicable (Griset, supra, 25 Cal.4th at pp. 701-702), as is full faith and credit under which federal final judgments on the merits may be accorded res judicata effect in state courts (Martin v. Martin (1970) 2 Cal.3d 752, 761).
In Adams, supra, 111 Cal.App.4th 93, this court held that a prior Ninth Circuit decision in the case established the law of the case. (Id. at p. 97.) The Ninth Circuit had ruled federal law did not preempt the plaintiffs’ state law claims and remanded the case to state court, but the state court responded by holding federal law did preempt the claims and granted the defendant summary judgment. (Id. at p. 95.) This resulted in “the incongruous conclusion that neither the federal nor the state court ha[d] jurisdiction to decide [the] controversy.” (Ibid.) We therefore held the federal decision was the law of the case so as to provide “the parties with a forum to litigate their dispute.” (Id. at p. 97.) But we also stated, “To allow the trial court to revisit [the Ninth Circuit’s] ruling would contravene the policies underlying the law of the case doctrine — conservation of judicial resources and ensuring the finality of decisions.” (Id. at p. 98.) Thus, a federal appellate decision may establish the law of the case in subsequent state court proceedings in the same case. (See also Provience v. Valley Clerks Trust Fund (1984)163 Cal.App.3d 249, 256 [law of the case doctrine did not apply to federal district court’s ruling only because the district court was not an appellate court and a change in law occurred “between the first and second judicial determinations”].)
Here, the Ninth Circuit considered and interpreted state law in ruling on plaintiff’s FEHA claim. To disregard the Ninth Circuit’s rulings, absent any miscarriage of justice, would be wasteful of judicial resources and defeat the goal of finality of court rulings.
As to the Ninth Circuit’s ruling a triable factual issue exists on whether defendant perceived plaintiff to be disabled, defendant argues collateral estoppel did not apply to the determination because it was not a final decision. Defendant does not argue the decision is not the law of the case. Nor does any exception to the doctrine apply to that ruling.
As to the Ninth Circuit’s decision plaintiff is not actually disabled under FEHA, however, plaintiff argues that to apply the law of the case doctrine would be manifestly unjust. “For the ‘unjust decision’ exception to apply, ‘there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice.’” (Yu, supra, 103 Cal.App.4th at p. 309.) Otherwise we must apply the doctrine even if we disagree with the appellate court ruling in question or believe it is wrong.
Plaintiff contends the Ninth Circuit’s decision is wrong because whether he is disabled under FEHA should be decided without regard to corrective measures such as soft contact lenses. Without contact lenses, he argues, his uncorrected vision of 20/900 renders him “functionally blind” and “inevitably disabled as a matter of law.”
The Ninth Circuit apparently considered plaintiff’s corrected vision, i.e. with the benefit of soft contact lenses, in concluding he suffers no disability under FEHA. The Ninth Circuit’s written opinion states: “The district court properly granted summary judgment on [plaintiff’s] disability discrimination claim under the [ADA] because [plaintiff] failed to demonstrate that he is a qualifying individual with a disability. See Sutton [, supra, 527 U.S. at pp.] 482-483, 493-494 (1999) (holding that the existence of a disability is determined in light of mitigating or corrective measures). [¶] Although the district court also properly determined that [plaintiff] failed to demonstrate that he is a qualifying individual with a disability under [FEHA], see id., the district court erred by granting summary judgment on [plaintiff’s] FEHA disability discrimination claim because [plaintiff] raised a genuine issue of material fact as to whether defendant perceived him as having a disability. See Colmenares v. Braemar Country Club, Inc.,... (Cal. Feb. 20, 2003) (holding that FEHA requires that a physical condition only limit, not substantially limit, participation in major life activities; cf. Sutton, 527 U.S. at 490 (explaining that an allegation that an employer has a vision requirement in place is not sufficient, on its own, to establish that the employer regards the applicant as substantially limited in the major life activity of working).” (Peacock v. County of Orange (9th Cir. Mar. 17, 2003, No. 01-56417) 2003 U.S. App. Lexis 4850.) This language suggests the Ninth Circuit based its decision plaintiff has no FEHA disability on Sutton’s holding “that the determination of whether an individual is disabled [under the ADA] should be made with reference to measures that mitigate the individual’s impairment, including, in this instance, eyeglasses and contact lenses.” (Sutton, supra, at pp. 475-476 [plaintiffs whose uncorrected visual acuity did not meet defendant’s minimum vision requirement for airline pilots were not disabled since their corrected vision was 20/20].)
In 2000, FEHA was amended to state, in its definition of “‘physical disability,’” that the extent to which a physiological condition limits a major life activity must be viewed “without regard to mitigating measures such as... assistance devices..., unless the mitigating measure itself limits a major life activity.” (Gov. Code, § 12926, subd. (k)(1)(B)(i); Assem. Bill No. 2222 (1999-2000 Reg. Sess.) § 5.) This amendment postdates the 1994 events on which plaintiff predicates his discrimination claim. It is unclear whether, under California law in effect in 1994, the existence of a disability was to be determined without regard to mitigating measures. The Ninth Circuit opinion implicitly concluded that California law in effect in 1994 should be interpreted as congruent with federal law in this regard, for it applied the Sutton mitigation rationale to the FEHA actual disability claim without further comment. The Ninth Circuit’s conclusion was not unreasonable in light of the absence of California case law on this precise topic and the many California cases which had held “decisions interpreting federal antidiscrimination laws are relevant in interpreting the FEHA’s similar provisions.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235; see also Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 433-434 [applying federal law under ADA to FEHA claim to determine sufficiency of waiver of employee’s rights to a judicial forum in a collective bargaining agreement]; McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 499 [“because FEHA is modeled on the federal Rehabilitation Act of 1973 [citation] and the Americans with Disabilities Act [citation], decisions interpreting those laws are relevant in deciding cases brought under FEHA”].)
Effective January 1, 2001, Government Code section 12926, subdivision (k) provides: “‘Physical disability’ includes, but is not limited to, all of the following: [¶] (1) Having any physiological... condition... that does both of the following: [¶] (A) Affects... special sense organs.... [¶] (B) Limits a major life activity. For purposes of this section: [¶] (i) ‘Limits’ shall be determined without regard to mitigating measures such as... assistive devices.... [¶] (ii) A physiological... 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.
To be sure, a fair argument can be made that even before the 2000 amendments a physical disability under FEHA must be determined without regard to mitigating measures such as assistive devices. (See American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603 [holding high blood pressure was a protected physical handicap under FEHA even though not presently disabling].) In American National, the majority opinion did not directly address whether the use of controlling medication should be considered when determining whether high blood pressure should be protected as a disability under the statute. But Justice Mosk’s dissenting opinion argued that the plain language of the extant statute required that “‘impairment of physical ability’” under the statute must flow from a “‘loss of function.’” Justice Mosk criticized the majority opinion for failing “to offer any definition of ‘impairment of physical ability’ that would include the actual, known effects of high blood pressure,” and suggests that “the majority is silent on this point because they realize that in most people high blood pressure can now be successfully controlled by medication and, while so controlled, does not result in an ‘impairment of physical ability’ in any reasonable meaning of the phrase.” (American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d at p. 612 (dis. opn. of Mosk, J.).) In other words, Justice Mosk would have considered a mitigating measure when determining whether plaintiff had a protected disability. Because the majority did not, an inference may be drawn they believed the existence of a disability must be determined without regard to mitigating measures.
But a bare inference from the American National case aside, no case decided before the 2000 amendments to FEHA had expressly held, much less even addressed, whether or not the existence of a disability should be evaluated using available mitigating measures. Under these circumstances, we cannot say the Ninth Circuit ruling that plaintiff has no actual disability under FEHA constitutes a “‘manifest misapplication of existing principles....’” (Yu, supra, 103 Cal.App.4th at p. 309.) Indeed, it is difficult to “manifestly misapply” that which is unclear. Moreover, applying the law of the case to this ruling does not result in “substantial injustice.” Plaintiff may still proceed under his perceived disability claim. The Ninth Circuit decision is thus the law of the case — both on the absence of an actual disability, and as to the existence of a triable issue of fact with regard to a perceived disability.
Because we conclude the Ninth Circuit’s rulings are the law of the case and we therefore reverse the superior court’s grant of defendant’s summary judgment motion, we need not decide whether defendant was required to comply with Code of Civil Procedure section 437c, subdivision (f) or Code of Civil Procedure section 1008, subdivision (b) in renewing its motion in state court.
DISPOSITION
The judgment is reversed with directions to limit further proceedings in the trial court to the perceived disability prong of the alleged “physical disability” under FEHA. Plaintiff shall recover his costs on appeal.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.
The author of the 2000 amendment regarding mitigating measures argued the amendment was made necessary by the United States Supreme Court decision in Sutton, supra, 527 U.S. 471. “[T]his more restrictive [measure requiring consideration of mitigating measures when determining whether a person is disabled], as recently construed by the U.S. Supreme Court, should not, the author contends, be allowed to preclude a finding that a person is disabled under FEHA.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) as amended April 5, 2000, p. 5.)