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Colmenares v. Braemar Country Club2/20/2003
mitation 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"].)
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 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.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
Review Granted XXX 89 Cal.App.4th 778
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