Supreme Court of California Justia
Docket No. S098895
Colmenares v. Braemar

Filed 2/20/03

IN THE SUPREME COURT OF CALIFORNIA

FRANCISCO COLMENARES,
Plaintiff and Appellant,
S098895
v.
Ct.App. 2/1 B142962
BRAEMAR COUNTRY CLUB, INC.,
Los Angeles County
Super. Ct. No. BC206527
Defendant and Respondent.
____________________________________)

The Fair Employment and Housing Act (FEHA) prohibits employment
discrimination based on a physical disability. (Gov. Code, § 12940, subd. (a);1 see
Esberg v. Union Oil, Co. (2002) 28 Cal.4th 262, 267.) In 1997, defendant
Braemar Country Club (Braemar) terminated plaintiff Francisco Colmenares, who
had been in its employ for 25 years. Colmenares sued, alleging in part
discrimination based on physical disability (a bad back), in violation of the FEHA.
(§ 12900 et seq.) In May 2000, the trial court granted Braemar’s motion for
summary judgment on the basis that Colmenares had failed to make a prima facie
showing of physical disability. Colmenares appealed.

1
Unless otherwise indicated, further undesignated statutory references are to
the Government Code.
1



On January 1, 2001, while the case was before the Court of Appeal, the
Prudence Kay Poppink Act (Poppink Act) took effect. The Poppink Act states that
“under the law of this state” a person is physically disabled when he or she has a
physiological condition that “limits a major life activity” (§ 12926, subd. (k)(B)(i),
italics added). In contrast, federal law requires that a disability “substantially
limits one or more . . . major life activities” of an individual. (42 U.S.C.
§ 12102(2)(A), italics added; 29 C.F.R. § 1630.2(g) (2002).) The Court of Appeal
refused to apply the Poppink Act to Colmenares because his termination preceded
its effective date and at the time of termination, according to the Court of Appeal,
the FEHA applied the federal law’s narrower definition of physical disability.
Because Colmenares had conceded that his back injury did not substantially limit
his ability to perform his job, the Court of Appeal concluded that he could not
establish a claim for disability discrimination. The Court of Appeal affirmed the
trial court’s judgment.
Two months later, another division of the same Court of Appeal decided
Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, review granted
October 10, 2001, S103311. There, as here, the plaintiff’s claim of discrimination
based on physical disability arose before the January 1, 2001, effective date of the
Poppink Act. Disagreeing with the Court of Appeal here, the Wittkopf court held
that to come within the FEHA’s definition of physical disability a plaintiff need
only show that the physical impairment limits a major life activity. Wittkopf noted
that both before and after the Poppink Act the FEHA’s definition of physical
disability requires only a mere limitation and not a substantial one. Therefore,
Wittkopf held that the Poppink Act had merely clarified existing law on the degree
of limitation required and the statute as clarified has no true retrospective effect.
We granted review to resolve the conflict between Wittkopf and the Court of
Appeal’s decision in this case.
2
I.

We recite the facts as set out in the record before the trial court when it
granted defendant’s motion for summary judgment. (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 65-66.) In 1972, plaintiff Colmenares began working
for defendant Braemar as a general laborer. In 1981, Colmenares injured his back
at work. Thereafter, under doctor’s orders, Colmenares was given only light
duties. In 1982, Braemar promoted him to foreman in charge of a golf course
maintenance crew, a position that took his physical limitations into consideration.
Performance reviews for Colmenares from 1986, 1987 and 1990 rated his
performance as good, and he received raises. Beginning in 1995, a new supervisor
began giving Colmenares unfavorable performance reviews. In July 1997,
Braemar reassigned Colmenares from supervising a course maintenance crew to
supervising a clubhouse construction project that involved heavy labor. In
September 1997, Braemar fired Colmenares for “deficiencies in his work
performance.”
In December 1997, Colmenares filed an administrative complaint with the
Department of Fair Employment and Housing, alleging that in 1995 Braemar
began requiring him to perform “heavier work” and two years later fired him
because of his bad back. Having exhausted his administrative remedies,
Colmenares in March 1999 filed a complaint in superior court alleging, as here
relevant, that his termination violated the FEHA because it was based on his
physical disability, namely, a “chronic back injury.”
Braemar moved for summary judgment on the ground that Colmenares had
no “legally cognizable disability” because his back condition did not
“substantially” limit a major life activity. Braemar relied on Colmenares’s
deposition testimony in which he conceded that his back condition did not
substantially limit his ability to work as a foreman. Colmenares, however, argued
3


that under the FEHA he need only establish some limitation, not the substantial
limitation standard of federal law, of his ability to perform major life activities.
(§ 12926, subd. (k)(1)(B); Cal. Code Regs., tit. 2, § 7293.6, subd. (c)(1)(A)(2).)
The trial court disagreed, ruling that California followed federal law in requiring
that a disability “substantially” limits major life activities. (42 U.S.C.
§ 12102(2)(A); 29 C.F.R. § 1630.2(g)(1) (2002).) Finding that Colmenares had
“fail[ed] to meet his burden” to produce evidence that his back condition
substantially limited his work activities, the trial court granted Braemar’s motion
for summary judgment. Colmenares appealed.
The Court of Appeal affirmed. It construed the FEHA, before its
amendment by the Poppink Act, as requiring the physical disability to
substantially limit one or more major life activities (the test under federal law),
and it held that the Poppink Act’s broader standard, requiring only that the
disability “limits a major life activity” could not be applied retrospectively to
Colmenares, whose 1997 firing occurred before that Act took effect on January 1,
2001.2
2
When a statute “merely clarifies, rather than changes, existing law [it] does
not operate retrospectively.” (Western Security Bank v. Superior Court (1997) 15
Cal.4th 232, 243.) Even a material change in statutory language may demonstrate
legislative intent only to clarify the statute’s meaning. (Ibid.) If the legislative
intent is to clarify, an amendment has “no retrospective effect because the true
meaning of the statute remains the same.” (Ibid.) Here, there was no change at all
in the statutory language; section 12926 used the term “limits” before and after the
Legislature’s enactment of the Poppink Act. Thus, notwithstanding extensive
briefing by the parties and by amici curiae on the retroactivity of the Poppink Act,
it is analytically unnecessary here for us to address the retroactivity of that act.
4
II.

Since 1973 California has prohibited employment discrimination based on
“physical handicap.” (Stats. 1973, ch. 1189, § 6, p. 2501 [enacting Lab. Code
former § 1420]; see Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050,
1056 (Cassista).) In 1980, that prohibition and the definition of physical handicap
to include “impairment of sight, hearing, or speech, or impairment of physical
ability” were incorporated into the newly enacted FEHA. (Stats. 1980, ch. 992,
§ 4, p. 3144 [enacting Lab. Code, former § 1413, subd. (h)].) The FEHA did not
define impairment. That same year, the Fair Employment and Housing
Commission (FEHC), the entity charged with implementing the FEHA (§ 12935),
adopted a regulation drawn from a federal regulation (45 C.F.R. § 84.3(j)(1)
(1980)) implementing the federal Rehabilitation Act of 1973. (Pub. L. No. 93-112
(July 26, 1990) 87 Stat. 357; 45 C.F.R. § 84, Appen. A (1992).) Instead of
defining “impairment,” the term used in the California statutes (first in the Labor
Code and then in the FEHA), the FEHC’s 1980 regulation embraced federal law
and defined “physical handicap” as a condition that “substantially limits one or
more major life activities.” (Former Cal. Admin. Code, tit. 2, § 7293.6, subd.
(j)(1).)

In 1990, Congress enacted the Americans with Disabilities Act (ADA). (42
U.S.C. § 12101, et seq.) In 1992, the California Legislature significantly amended
the FEHA. Among other things, it substituted the term “physical disability” for
“physical handicap” (former § 12920, as amended by Stats. 1992, ch. 913, § 19,
p. 4297), and it generally modeled the definition of “physical disability” (former
§ 12926, subd. (k), as amended by Stats. 1992, ch. 913, § 21.3, p. 4308) on that in
the ADA. (See Cassista, supra, 5 Cal.4th at pp. 1059-1060.) As relevant here,
there was one notable difference between the FEHA and the ADA: While the
federal act described a disabled individual as one whose disability “substantially
5


limits one or more major life activities” (42 U.S.C. § 12102(2)(A), italics added),
the 1992 amendment to the FEHA defined physical disability as an impairment
that merely “[l]imits an individual’s ability to participate in major life activities.”
(Stats. 1992, ch. 913, § 21.3, p. 4308, amending § 12926, subd. (k), italics added.)
That definition, the Legislature stated at the time of the 1992 amendment to the
FEHA, “shall have the same meaning as the term ‘physical handicap’ . . .
construed in American National Ins. Co. v. Fair Employment & Housing Com.
[(1982)] 32 Cal.3d 603.” (Stats. 1992, ch. 913, § 21.3, p. 4308.) There, this court
held that a physical handicap was not confined to a major physical ailment or
defect; instead, we construed “physical handicap” to be “a condition of the body”
that has the “disabling effect” of making “ ‘achievement unusually difficult.’ ”
(American National Ins. Co. v. Fair Employment & Housing Com., supra, 32
Cal.3d at p. 609.)
When the 1992 Legislature made the just-described amendments to the
FEHA, it also amended various non-FEHA statutes by defining disability in those
statutory schemes using the more stringent federal test of substantial limits. Thus,
it inserted the federal definition of disability, including the requirement that a
disability must substantially limit a major life activity, into provisions prohibiting
disability discrimination by and against holders of state-issued occupational or
professional licenses (Bus. & Prof. Code, § 125.6), by business establishments
providing accommodations, facilities and services and subject to the Unruh Civil
Rights Act (Civ. Code, § 54), by entities employing, training or credentialling
teachers (Ed. Code, § 44337), by any state-funded program (Gov. Code, § 11135),
and with respect to state civil service employment (Gov. Code, § 19231). (Stats.
1992, ch. 913, §§ 2, 4, 12, 18, 28, pp. 4283, 4286, 4293, 4297, 4328.) These
changes were consistent with the 1992 Legislature’s stated intent “to strengthen
California law where it is weaker” than the ADA, that is in the non-FEHA statutes,
6
“and to retain California law when it provides more protection for individuals with
disabilities than” the ADA, that is in the FEHA. (Stats. 1992, ch. 913, § 1,
p. 4282.)
Notwithstanding the Legislature’s 1992 amendment of the FEHA to specify
that physical disability required only a limitation, as opposed to the federal law’s
substantial limitation, of a person’s ability to participate in major life activities,
the FEHC did not immediately replace its 1980 regulatory definition of physical
disability modeled on the federal law’s more stringent definition. (Former Cal.
Admin. Code, tit. 2, § 7293.6, subd. (j)(1), Register 80, No. 25 (June 21, 1980);
former Cal. Admin. Code, tit. 2, § 7293.6, subd. (i)(1), Register 86, No. 45 (Nov.
8, 1986); former Cal. Admin. Code, tit. 2, § 7293.6, subd. (i)(1), Register 88, No.
18 (Apr. 30, 1988).)3 Not until September 1995 did the FEHC adopt a regulation
that conformed to the Legislature’s 1992 amendment of the FEHA. The 1995
regulation incorporated by reference the statutory definition of physical disability
(Cal. Code Regs., tit. 2, § 7293.6, subd. (a)(1)) and defined a physically disabling
disease or condition as one that “[l]imits an individual’s ability to participate in
major life activities.” (Cal. Code Regs., tit. 2, § 7293.6, subd. (e)(1)(A)(2).) In
this case, Colmenares’s dismissal occurred in 1997.
In September 2000, the Legislature enacted the Poppink Act, which took
effect on January 1, 2001. As relevant here, the act amended the FEHA’s
definition of physical disability. (§ 12926, subd. (k), as amended by Stats. 2000,
ch. 1049, § 5.) The FEHA, in section 12926, subdivision (k) had previously
provided that a “ ‘[p]hysical disability’ includes . . . [h]aving” a “disease, disorder,

3
We take judicial notice of these regulations at plaintiff’s request. (Evid.
Code, § 451, subd. (b).)
7


condition, cosmetic disfigurement, or anatomical loss” (hereafter disease or
condition) that both “[a]ffects one or more” of certain enumerated “body systems”
and “[l]imits an individual’s ability to participate in major life activities.” (Stats.
1992, ch. 913, § 21.3, pp. 4307-4308.) The Poppink Act changed the FEHA’s
requirement that a physical disease or condition limit “major life activities” to the
singular “a major life activity.”4 The act explained that such a qualifying disease
or condition “limits a major life activity if it makes the achievement” of the
activity “difficult.”5 (§ 12926, subd. (k)(1)(B)(ii).)
Of particular relevance here is that the FEHA in section 12926 used the
term “limits,” not the federal law’s “substantially limits” language, before and
after its amendment by the Poppink Act. In this regard, the act declared: “[T]he
Legislature has determined that the definition[] of ‘physical disability’ . . . under
the law of this state require[s] a ‘limitation’ upon a major life activity, but do[es]
not require, as does the [federal ADA], a ‘substantial limitation.’ This distinction
is intended to result in broader coverage under the law of this state than under that
federal act.” (§ 12926.1, subd. (c).) Further, the Legislature declared that
“[n]otwithstanding any interpretation of law in Cassista v. Community Foods[,
Inc.] (1993) 5 Cal.4th 1050,” it intends state law “to require a ‘limitation’ rather
than a ‘substantial limitation’ of a major life activity.” (§ 12926.1, subd. (d).)

4
Because the issue is not before us, we express no opinion as to the
significance of this change in the statute’s language.
5
The Poppink Act also added these two subdivisions: “(i) ‘Limits’ shall be
determined without regard to mitigating measures such as medications, assistive
devices, prosthetics, or reasonable accommodations, unless the mitigating measure
itself limits a major life activity. [¶] . . . [¶] (iii) ‘Major life activities’ shall be
broadly construed and includes physical, mental, and social activities and
working.” (§ 12926, subd. (k)(B)(i) & (iii).)
8



Not only did the Poppink Act of 2000 leave unchanged the “limits” test in
the FEHA, it also amended other, non-FEHA, statutes to delete the term
“substantial” from the limitation test these statutes had used since 1992.
Legislative committee analyses explained that the Poppink Act “standardizes” the
definition of physical disability “in California civil rights laws, clarifying that
California’s disability protections are broader than federal protections.” (Assem.
Com. on Labor and Employment, Analysis of Assem. Bill No. 2222 (1999-2000
Reg. Sess.) as amended Apr. 5, 2000, italics added; accord, Assem. Com. on
Appropriations, Analysis of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) as
amended Apr. 5, 2000.) Thus, the Poppink Act deleted from the Unruh Civil
Rights Act (Civ. Code, § 54, subd. (b)) and from the state civil service scheme
(Gov. Code, § 19231) the requirement that a disability must substantially limit a
major life activity, thereby conforming those statutes to the “limits” test of the
FEHA. (Assem. Com. on Labor and Employment, Analysis of Assem. Bill No.
2222 (1999-2000 Reg. Sess.) as amended Apr. 5, 2000; State Personnel Bd., Bill
Analysis of Assem. Bill No. 2222 (1999-2000 Reg. Sess.) and related bill Sen. Bill
No. 2025 (1999-2000 Reg. Sess.) Apr. 5, 2000; Civ. Code §§ 51, subd. (e), 51.5,
subd. (d), 54, subd. (b); Gov. Code § 19231, as amended by Stats. 2000, ch. 1049,
§§ 2-4 & 9.) This pattern of Legislative action compels our conclusion that in
2000 the Legislature intended not to make a retroactive change, but only to clarify
the degree of limitation required to be physical disabled under the FEHA.
III.
Here, the Court of Appeal concluded that until January 1, 2001, when the
Poppink Act took effect, California law protected as physically disabled only those
“whose disabilities substantially limited a major life activity,” the test under
federal law. It reached that conclusion in reliance on certain language in our 1993
decision in Cassista, supra, 5 Cal.4th 1050. Cassista does contain language that,
9
at first glance, appears to support the Court of Appeal’s conclusion here. But a
closer look reveals that the comment in question, made in passing, was
unnecessary to resolve the issue in that case and therefore was mere dictum.
In
Cassista, the plaintiff alleged that she was denied a job because of her
obesity. (Cassista, supra, 5 Cal.4th at p. 1054.) The sole issue before this court
was whether the plaintiff’s obesity was a physical handicap or disability under the
FEHA, which, as amended in 1992, required “a ‘physiological’ disorder that
affects one or more of the basic bodily ‘systems’ and limits the claimant’s ability
‘to participate in major life activities.’ ” (At p. 1059, italics added.) Because the
plaintiff had not offered any evidence that her obesity resulted from “a
physiological condition or disorder affecting” a body system, the first of the two
statutory requirements, we concluded that she did not meet the FEHA’s definition
of physical disability. (At p. 1066.) We did not address the second statutory
requirement for disability, that is, the extent to which the plaintiff’s ability to
participate in major life activities must be impaired. When Cassista went on to
comment on that requirement, its pronouncement became mere dictum, thus
lacking in precedential force.
Cassista was decided in 1993, shortly after the Legislature in 1992 had
significantly amended the FEHA, by replacing the phrase “physical handicap”
with “physical disability” and recasting the definition of “physical disability”
(ante, p. 5). In describing the continuity between the statutory schemes before and
after the 1992 amendment, Cassista stated that the definition of physical disability
as amended in 1992 and the “long-standing interpretation of ‘[physical]
handicap’ ” contained in the implementing regulations were “in harmony” because
“[e]ach requires an actual or perceived physiological disorder, disease, condition,
cosmetic disfigurement or anatomical loss affecting one or more the body’s major
systems and substantially limiting one or more major life activities.” (Cassista,
10
supra, 5 Cal.4th at p. 1060, italics added.) This sentence is misleading; the
statutory definition of physical disability enacted in 1992 did not require the
physical limitation to be substantial.
The Court of Appeal here specifically relied on the italicized language from
Cassista in holding that Colmenares was required to show that his back injury
substantially limited his ability to work. But, as we have explained, that comment
in Cassista was dictum: Not at issue in Cassista was the extent to which the
plaintiff’s ability to participate in major life activities must be impaired.
“Language used in any opinion is of course to be understood in the light of the
facts and the issue then before the court, and an opinion is not authority for a
proposition not therein considered.” (People v. Scheid (1997) 16 Cal.4th 1, 17,
quoting Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
A close look at Cassista reveals that in three other passages it accurately
described physical disability under the FEHA as a condition that “limits,” as
opposed to substantially limits, participation in major life activities. (Cassista,
supra, 5 Cal.4th at pp. 1052, 1059, 1061.) Thus, by 1997 when Colmenares was
fired, the law as described in Cassista required only that the physical condition
limit, not substantially limit, participation in major life activities.
In 1995, the FEHC adopted a new regulation that tracked the language of
the Legislature’s 1992 amendment to the FEHA by defining “physical disability”
as a physiological disease or condition that “affects” a body system and “[l]imits
an individual’s ability to participate in major life activities.” (Cal. Code Regs., tit.
2, § 7293.6, subd. (e).) An agency invested with quasi-legislative power to adopt
regulations has no discretion to promulgate regulations that are inconsistent with
the governing statute, in that they “ ‘alter or amend the statute or enlarge or impair
its scope.’ ” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25
Cal.4th 287, 300.) By issuing new regulations in 1995, the FEHC brought its
11
regulatory definition of physical disability into alignment with the FEHA’s
statutory definition, which had been in effect since January 1, 1993. We “give
substantial weight to the FEHC’s construction of the statutes under which it
operates.” (Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108,
1118.)
Since adopting new regulations in 1995 that, among other things, mirrored
the broad test of physical disability set forth in the Legislature’s 1992 amendment
to the FEHA (requiring limitation, not substantial limitation, of major life
activities), the FEHC has applied that test in two precedential decisions. (Dept. of
Fair Empl. & Hous. v. Silver Arrow Express, Inc. (1997) No. 97-12, FEHC
Precedential Decs. 1996-1997, CEB 2, pp. 7-8, 11 [finding employer regarded as
physically disabled an employee who had heart and back conditions that prevented
him from lifting, pulling or pushing loads weighing over 25 pound and thus
limited his ability to participate in major life activities]; Dept. of Fair Empl. &
Hous. v. Seaway Semiconductor (2000) No. 00-03-P, FEHC Precedential Decs.
2000-2002, CEB 1, pp. 15-16 & fn. 4 [finding to be physically disabled an
employee who had a thyroid condition that limited her ability to participate in
major life activities, which the FEHC described as a “less onerous standard than
the federal definition” requiring that “an impairment ‘substantially limit’ a major
life activity”].)
The FEHC, authorized by the Legislature to issue precedential opinions
(§ 12935, subd. (h)), publishes those decisions, making them available to the public as
notice of its interpretation of the statutory scheme. (See American Federation of
Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1025 [precedential
decisions of Unemployment Insurance Appeals Board].) We presume the Legislature
was aware that beginning in 1995 the FEHC was construing in its regulations, and
applying in its precedential decisions, the FEHA’s statutory definition of physical
12
disability, as set forth in the 1992 amendment to the FEHA, to require only that a
disabling condition limit (not substantially limit) the individual’s participation in
major life activities. (Robinson v. Fair Employment & Housing Com. (1992) 2
Cal.4th 226, 235, fn. 7.) Thus, in 2000 when the Legislature passed the Poppink Act,
which explained when a physical disability “limits” a major life activity under the
FEHA (see ante, pp. 6-7 & fn. 5), the Legislature knew that the FEHC, in
implementing the FEHA, was already applying the “limits” test, which is broader than
the federal “substantially limits” standard.
To summarize, when the Legislature in 1992 amended the FEHA, it defined
physical disability as a physiological condition that “limits” major life activities.
In 2000, when the Legislature passed the Poppink Act, which amended the FEHA,
it retained that “limits” language. At that time, the Legislature clarified in express
terms that a physical disability under the FEHA does not require the federal test’s
substantial limitation of a major life activity. (§ 12926.1, subd. (c).) Thus, before
and after passage of the Poppink Act the FEHA’s test was “limits,” not substantial
limits. Moreover, the legislative history of the Poppink Act supports the view that
the Legislature merely clarified the existing “limits” test in the FEHA and,
contrary to the conclusion of the Court of Appeal here, did not retrospectively
change that test. (Western Security Bank v. Superior Court, supra, 15 Cal.4th at
p. 243 [“a legislative act has no retrospective effect because the true meaning of
the statute remains the same”].)6
6
We disapprove the following cases to the extent they hold or suggest the
federal law’s substantial limitation test applies to claims of physical disability
brought under the FEHA: Diffey v. Riverside County Sheriff’s Dept. (2000) 84
Cal.App.4th 1031, 1039-1040 [holding that applicant for deputy sheriff who was
unable to see the color red was not substantially limited in life activity of working,

(Fn. continued on next page)
13


IV.

In petitioning for review, Colmenares raised a second issue: Did the trial court
err in granting summary judgment in light of the evidence presented supporting
[Colmenares’s] allegations of disability discrimination and failure to accommodate?
Braemar replies that even if the summary judgment was erroneously granted under the
“substantial limitation” test, it was nonetheless entitled to summary judgment on an
alternative ground it raised below.
An order granting summary judgment is reviewed de novo by the Court of
Appeal (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), and therefore we
remand the case to that court to determine whether summary judgment was proper on
any ground advanced below by Braemar, which as the moving party bore the burden
of persuasion on its motion for summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
Conclusion
We hold that in 1997, when Colmenares’s cause of action for wrongful
termination arose, a plaintiff seeking to establish physical disability under the

(Fn. continued from previous page)

and, therefore, was not physically disabled under the FEHA]; Hobson v. Raychem
Corp.
(1999) 73 Cal.App.4th 614, 629 [holding that employee opposing a
summary judgment motion who offered evidence of “only minor limitations” but
not of substantial limitations, did not have a physical disability under the FEHA];
Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431, 442
[asserting that in 1992 “the Legislature intended to conform California’s
employment discrimination statutes to the ADA”]; Pensinger v. Bowsmith, Inc.
(1998) 60 Cal.App.4th 709, 721 [suggesting the substantial limitation test must be
met to prove physical disability under the FEHA]; and Gosvenor v. Coastal Corp.
(1996) 51 Cal.App.4th 805, 813 [stating “a covered disability under the FEHA . . .
incorporates the definition of disability listed in the Americans with Disabilities
Act . . . .”].
14


FEHA had to show: (1) a physiological disease or condition affecting a body
system; and (2) the disease or condition limited (as opposed to substantially
limited, as required under federal law) the plaintiff’s ability to participate in major
life activities.
The judgment is reversed, and the cause is remanded to the Court of Appeal
for proceedings consistent with this opinion.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

15


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Colmenares v. Braemar Country Club, Inc.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 89 Cal.App.4th 778
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S098895
Date Filed: February 20, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Ronald E. Cappai

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, Christopher W. Olmsted; Disability Rights
Education & Defense Fund, Linda D. Kilb and Arlene B. Mayerson for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief
Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Catherine Z. Ysrael and
Phyllis W. Cheng, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiff and Appellant.

Eve L. Hill and Paula D. Pearlman for Western Law Center for Disability Rights as Amicus Curiae on
behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Littler Medelson, Jody A. Landry, Kristin M. Stockholm and Alan S. Levins for Defendant and
Respondent.

Gutierrez, Preciado & House, Calvin R. House; Greines, Martin, Stein & Richland, Martin Stein and Alison
M. Turner for County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

Pillsbury Winthrop, Shawn Hanson and Katherine S. Ritchey for Standard Insurance Company as Amicus
Curiae on behalf of Defendant and Respondent.

The Legal Aid Society - Employment Law Center, Claudia Center and Patricia A. Shiu for Patrice L.
Goldman as Amici Curiae.


16

Counsel who argued in Supreme Court (not intended for publication with opinion):

Linda D. Kilb
Disability Rights Education & Defense Fund
2212 6th Street
Berkeley, CA 94710
(510) 644-2555

Alan S. Levins
Littler Mendelson
701 “B” Street, 3th Floor
San Diego, CA 92101-8194
(619) 332-0441

17


Opinion Information
Date:Docket Number:
Thu, 02/20/2003S098895

Parties
1Colmenares, Francisco (Plaintiff and Appellant)
Represented by Joseph M. Lovretovich
Law Offices of Joseph M. Lovretovich
21700 Oxnard Street, #1750
Woodland Hills, CA

2Colmenares, Francisco (Plaintiff and Appellant)
Represented by Linda D. Kilb
Disability Rights Education And Defense Fund
2212 Sixth Street
Berkeley, CA

3Colmenares, Francisco (Plaintiff and Appellant)
Represented by Christopher W. Olmsted
Law Offices of Joseph M. Lovretovich
21700 Oxnard Street, Suite 1750
Woodland Hills, CA

4Braemar Country Club, Inc. (Defendant and Respondent)
Represented by Kristin Mary Stockholm
Littler, Mendelson
701 "B" Street, 13th Floor
San Diego, CA

5Disability Rights Education & Defense Fund Inc. (Pub/Depublication Requestor)
Represented by Linda D. Kilb
Disability Rights Education And Defense Fund
2212 Sixth Street
Berkeley, CA

6Standard Insurance Company (Amicus curiae)
Represented by Shawn Everett Hanson
Pillsbury Winthrop
50 Fremont Street, 5th Floor
San Francisco, CA

7County Of Los Angeles (Amicus curiae)
Represented by Alison M. Turner
Greines, Martin, Stein & Richland
5700 Wilshire Boulevard, Suite 375
Los Angeles, CA

8Employers Group (Amicus curiae)
Represented by George S. Howard
Pillsbury, Winthrop
101 West Broadway, Suite 1800
San Diego, CA

9California Employment Law Council (Amicus curiae)
Represented by George S. Howard
Pillsbury, Winthrop
101 West Broadway, Suite 1800
San Diego, CA

10Lockyer, Bill (Amicus curiae)
Represented by Phyllis W. Cheng
Office of Attorney General
300 S Spring Street, Fifth Floor
Los Angeles, CA

11Western Law Center For Disability Rights (Amicus curiae)
Represented by Paula Dee Pearlman
Attorney at Law
919 S. Albany Street
Los Angeles, CA

12Goldman, Patrice L. (Amicus curiae)
Represented by Claudia Center
The Legal Aid Society - Employment Law Center
600 Harrison Street, Suite 120
San Francisco, CA

13Goldman, Patrice L. (Amicus curiae)
Represented by Patricia Ann Shiu
The Employment Law Cetner
1663 Mission Street, Suite 400
San Francisco, CA


Disposition
Feb 20 2003Opinion: Reversed

Dockets
Jul 6 2001Petition for review filed
  appellant Francisco Colmenares
Jul 9 2001Record requested
 
Jul 9 2001Request for Depublication (petition/rev. pending)
  By counsel for applt. {Francisco Colmenares}
Jul 10 2001Request for Depublication (another req. pending)
  By counsel for Disability Rights Education and Defense Fund Inc. (NON-PARTY)
Jul 12 2001Received Court of Appeal record
  one Doghouse
Jul 13 2001Opposition filed
  By counsel for Resp. {Braemar Country Club Inc.} to requests for depublication.
Jul 24 2001Answer to petition for review filed
  By counsel for Resp. {Braemar Country Club Inc.}
Aug 1 2001Received letter from:
  Counsel for applt. {Colmenares} regarding new opinion from the Second District Court of Appeal (B139304 (July 24, 2001); 2001 DJDAR 7711;).
Aug 22 2001VPetition for Review Granted (civil case)
  Votes: Geo, CJ., Ken, Bax, Wer, Chi and Brn, JJ.
Aug 27 2001Certification of interested entities or persons filed
  counsel for appellant Francisco Colmenares
Sep 5 2001Certification of interested entities or persons filed
  By counsel for Respondent.
Sep 21 2001Application for Extension of Time filed
  To October 24, 2001 to file appellant's opening breif on the merits. Granted - order being prepared
Sep 25 2001Extension of Time application Granted
  To October 24, 2001 to file appellant's opening brief on the merits.
Oct 22 2001Application for Extension of Time filed
  by appellant asking to November 30, 2001 to file appellant's opening brief on the merits. Granted - order being prepared
Oct 23 2001Extension of Time application Granted
  To November 30, 2001 to file appellant's Opneing Brief on the Merits.
Dec 3 2001Opening brief on the merits filed
  By counsel for appellant {Francisco Colmenares} / 40(N)
Dec 3 2001Association of counsel filed for:
  Appellant Francisco Colmenares. Linda D. Kilby of the Disability Rights Education and Defense Fund.
Dec 3 2001Request for judicial notice filed (in non-AA proceeding)
  By counsel for appellant {Colmenares} of FEHC REGULATIONS AND FEHC DECISIONS
Dec 3 2001Received:
  One volume of exhibits in support of appellant's Request fo Judicial Notice.
Dec 3 2001Request for judicial notice filed (in non-AA proceeding)
  By counsel for appellant {Colmenares} of the POPPINK ACT and its LEGISLATIVE HISTORY
Dec 3 2001Received:
  one volume of exhibits in support of Appellant's request for Judicial Notice of the POPPINK ACT and its LEGISLATIVE HISTORY.
Dec 10 2001Request for extension of time filed
  Respondent is asking to January 30, 2002 to file respondent's answer brief on the merits. Granted - order being prepared
Dec 12 2001Extension of time granted
  To January 30, 2002 to file respondent's answer brief on the merits.
Jan 30 2002Answer brief on the merits filed
  By Respondent {Braemar County Club Inc.}
Feb 19 2002Reply brief filed (case fully briefed)
  by counsel for appellant Francisco Colmenares
Mar 20 2002Received application to file Amicus Curiae Brief
  County of Los Angeles [in support of resp] [applctn w/i brief]
Mar 21 2002Received application to file Amicus Curiae Brief
  Western Law Center for Disability Rights [applctn w/i brief]
Mar 21 2002Amicus Curiae Brief filed by:
  Attorney General Lockyer [in support of appellant]
Mar 21 2002Request for judicial notice filed (in non-AA proceeding)
  Attorney General Lockyer
Mar 21 2002Received:
  proposed order of Attorney General Lockyer
Mar 21 2002Received application to file Amicus Curiae Brief
  of the Standard Insurance Company in support of Respondent and request for Judicial Notice.
Mar 22 2002Received application to file amicus curiae brief; with brief
  of The Employers Group and the California Employment Law Council in support of Respondent. / 40(K)
Mar 25 2002Permission to file amicus curiae brief granted
  Standard Insurance Company in support of Respondent. An answer is due within twenty days.
Mar 25 2002Amicus Curiae Brief filed by:
  Standard Insurance company in support of Respondent. Answer due within twenty days.
Mar 25 2002Request for judicial notice filed (in non-AA proceeding)
  By AC Standard Insurance Company.
Mar 26 2002Permission to file amicus curiae brief granted
  County of Los Angeles in support of respondent. Answer is due within twenty days.
Mar 26 2002Amicus Curiae Brief filed by:
  County of Los Angeles in support of Respondent. Answer is due within twenty days.
Mar 26 2002Permission to file amicus curiae brief granted
  The Employers Group and The California Employment Law Council in support of Respondent. Answer is due within twenty days.
Mar 26 2002Amicus Curiae Brief filed by:
  The Employers Group and The California Employment Law Council in support of Respondent. Answer is due within twenty days.
Mar 29 2002Permission to file amicus curiae brief granted
  of the Western Law Center for Disability Rights in support of Appellant. Answer is due within twenty days.
Mar 29 2002Amicus Curiae Brief filed by:
  Western Law Center for Disability Rights in support of Appellant. Answer is due within twenty days.
Apr 10 2002Response to amicus curiae brief filed
  By respondent {Braemar Country Club Inc.} to AC brief filed by Western Law Center for Disability Rights.
Apr 10 2002Response to amicus curiae brief filed
  By Respondent {Braemar Country Club Inc.} to AC Brief filed by the Attorney General.
Apr 15 2002Response to amicus curiae brief filed
  appellant Francisco Colmenares>>to a/c briefs of County of LA, Employers Group, Calif Employment Council and Standard Insurance Company
Apr 16 2002Received application to file amicus curiae brief; with brief
  of Patrice L. Goldman, with objection to improper amicus curiae brief of Standard Insurance Company. Received separate Request for Judicial Notice of amicus curiae Patrice L. Goldman. (O+8)
Apr 18 2002Permission to file amicus curiae brief granted
  Patrice L. Goldman (party supported not mentioned) is hereby granted. Request of amicus Patrice L. Goldman for permission to file objection to amicus curiae brief of Standard Insurance Company is hereby granted. Answer may be served and filed by any party within twenty (20) days of the filing of the brief.
Apr 18 2002Amicus Curiae Brief filed by:
  Patrice L. Goldman (party supported not mentioned) and objection to amicus brief of Standard Insurance Company (one brief)
Apr 18 2002Request for judicial notice filed (in non-AA proceeding)
  by amicus curiae Patrice L. Goldman
May 7 2002Filed:
  Answer of Amicus Curiae Standard Insurance Company to objection of Patrice L. Goldman to amicus brief of Standard Insurance Company.
Oct 31 2002Case ordered on calendar
  12-4-02, 9am, L.A.
Dec 4 2002Cause argued and submitted
 
Feb 20 2003Opinion filed: Judgment reversed
  and the cause is remanded to the Court of Appeal for proceedings consistent with this opinion. -----Majority Opinion by Kennard, J., -----Joined by George, CJ., Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Mar 4 2003Request for modification of opinion filed
  By Amicus Curiae {The Legal Aid Society Employment Law Center et al.}.
Mar 11 2003Opposition filed
  By AC Standard Insurance Company to request for Modification of Opinion.
Mar 13 2003Time extended to consider modification or rehearing
  To April 18, 2003.
Mar 25 2003Received:
  Amicus Curiae {The Legal Aid Society Employment Law Center} reply to opposition of Standard Insurance Company to request for modification of opinion.
Mar 25 2003Change of Address filed for:
  Counsel for Amicus Curiae {Patrice Goldman}.
Mar 28 2003Received:
  Appellant's {Francisco Colmenares} letter in support to request for modification of opinion.
Apr 16 2003Request for modification denied
  Werdegar, J., is of the opinion the modification should be granted.
Apr 16 2003Remittitur issued (civil case)
 
Apr 22 2003Received:
  Receipt for remittitur from 2 DCA. Div One.
Apr 29 2003Note:
  Record returned to C/A.

Briefs
Dec 3 2001Opening brief on the merits filed
 
Jan 30 2002Answer brief on the merits filed
 
Feb 19 2002Reply brief filed (case fully briefed)
 
Mar 21 2002Amicus Curiae Brief filed by:
 
Mar 25 2002Amicus Curiae Brief filed by:
 
Mar 26 2002Amicus Curiae Brief filed by:
 
Mar 26 2002Amicus Curiae Brief filed by:
 
Mar 29 2002Amicus Curiae Brief filed by:
 
Apr 10 2002Response to amicus curiae brief filed
 
Apr 10 2002Response to amicus curiae brief filed
 
Apr 15 2002Response to amicus curiae brief filed
 
Apr 18 2002Amicus Curiae Brief filed by:
 
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