As reported below, nonsuit was granted after trial in the Preston v. Carlsbad case involving FEHA-based allegations of disability discrimination.  Preston appealed that nonsuit judgment.  On January 31, 2019, the Fourth District Court of Appeal, Division One, affirmed the judgment of nonsuit made by Judge Ronald F. Frazier.  The City’s brief was written by, and oral argument was handled by Lee Roistacher, Certified Appellate Specialist.  As reported below the underlying trial was conducted by Mitch Dean, with assistance from Garrett Smee.

The Court of Appeal opinion (2019 WL 395738) is unpublished, but can be read HERE.  Acting Presiding Justice Benke wrote the 31 page de novo review opinion, with concurrences from Justices Nares and Irion.  The court noted that Preston repeatedly admitted that his hearing loss had “no effect whatsoever” on his ability to work as a police officer.  Despite this, Preston attempted to argue that he had a “physical disability” under FEHA.  The court disagreed, citing testimony from two doctors called by Preston to testify in the trial.  Both of them said that Preston’s hearing loss did not affect a “major life activity.”  The court then stated:  “On this record, we thus independently conclude that Preston failed to proffer even a ‘scintilla of evidence’ concerning his own individual assessment of his alleged hearing impairment.”

Partners Mitch Dean and Lee Roistacher were proud to achieve this victory for its long-time client, the City of Carlsbad and its fine police department.