Gierut v. Applied Medical Resources Corp. CA4/3

Filed 3/5/21 Gierut v. Applied Medical Resources Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

KETH GIERUT,

Plaintiff and Appellant, G057922

v. (Super. Ct. No. 30-2018-00964562)

APPLIED MEDICAL RESOURCES OPINION
CORPORATION,

Defendant and Respondent.

Appeal from a judgment and order of the Superior Court of Orange County,
James L. Crandall, Judge. Affirmed.
Donahoo & Associates and Richard E. Donahoo; Esner, Chang & Buyer
and Stuart B. Esner for Plaintiff and Appellant.
Jones Day, Steven M. Zadravecz and Victoria E. Cho; Jones Day and
Nathaniel P. Garrett for Defendant and Respondent.
 INTRODUCTION
It is well known that in comedy and romance, timing is everything. It turns
out that timing is similarly critical when it comes to a violation of the Fair Employment
and Housing Act (FEHA). In this case, a change in the law intervened between appellant
Keith Gierut’s request for time off because of injuries suffered in a bicycle accident and
his termination by his employer, respondent Applied Medical Resources Corporation
(Applied), a medical device manufacturing company. When Gierut asked for time off, in
December 2015, such a request could not be the basis of a retaliation claim under
1
Government Code section 12940, so when Applied fired him, in January 2016, it could
do so legally.
Near the end of a lengthy jury trial, the court granted Applied’s motion for
nonsuit on Gierut’s retaliation cause of action because his request for time off was not
protected activity when he made it. The trial went on for two more days. The jury
returned a verdict against Gierut; he did not prevail on any of his FEHA claims or on his
wrongful termination in violation of public policy cause of action. Gierut has appealed
only the trial court’s ruling on Applied’s motion for nonsuit on the retaliation claim.
We affirm the order granting the motion for nonsuit. An element of a
prima facie case for retaliation under section 12940 is protected activity. Gierut’s request
for time off was not protected activity when he made it. Since this was the sole basis for
his retaliation claim, he could not demonstrate two required elements: protected activity
and a causal link between protected activity and an adverse employment action. The
court properly granted Applied’s motion for nonsuit.
FACTS
Gierut began working at Applied at the end of July 2015, after being
unemployed in construction between 2008 and 2011. His last job before being hired at

1
All further statutory references are to the Government Code unless otherwise indicated.

2
Applied, from which he was laid off in March 2014, was with a company that renovated
apartment complexes.
Applied hired Gierut as a project manager, in charge of two commercial
tenant improvement projects. As a project manager, he supervised the general contractor
constructing the tenant improvements at Applied’s place of business to make sure the
work was being done properly, promptly, and according to contract.
On November 29, 2015, Gierut was riding his bicycle when he collided
with a car. He suffered several broken ribs, a concussion, and a large and painful bruise
on his thigh. He was taken to the emergency room for evaluation and treatment and
released the next day. He obtained a doctor’s note dated November 30 allowing him to
return to work on December 7, 2015, without restrictions. On December 20, he fell at
home and reinjured his leg.
Gierut needed physical therapy treatments to recover from his injuries, and
he told his immediate supervisor, Mike Talle, in early December 2015 that he would need
time off to go to an appointment. Talle granted this request. Gierut testified, however,
that Talle’s acquiescence was grudging and that his attitude discouraged Gierut from
taking all the appointments he needed.
Applied fired Gierut on January 11, 2016. Talle testified that Gierut’s
injury and his requests for time off had nothing to do with the decision to fire him.
Instead, inconsistent attendance and mistakes made on the job indicated that Gierut did
not have the background necessary to be a project manager. As it turned out, Talle was
2
right. Gierut had misrepresented both his experience and his education on his resume.
Gierut sued Applied in January 2018 for several FEHA violations and for
wrongful termination in violation of public policy. Among the FEHA claims were causes
of action for disability discrimination and for retaliation under section 12940. Gierut

2
Although we do not consider defense evidence when reviewing a nonsuit, we include this
information for completeness and to suggest an explanation for the verdict.

3
alleged he had been fired for complaining about discrimination or harassment. The cause
of action for wrongful termination alleged that he had been fired “in retaliation and in
furtherance of [Applied’s] discrimination on the basis of [Gierut’s] injuries and
disability.” The first amended complaint, filed in March 2019 toward the beginning of
trial, substantially repeated the wrongful termination allegations and, with respect to the
FEHA retaliation claim, alleged that Gierut “was retaliated against because of the missed
work due to his injuries, his request for accommodation (time off), his expected need for
future accommodation to complete his recovery.”
After 11 days of trial testimony, Applied moved for nonsuit on the FEHA
retaliation cause of action. Applied argued that at the time Gierut made his request for
time off, in December 2015, requesting an accommodation for a disability was not a
protected activity for retaliation purposes. A request became protected activity on
January 1, 2016, when an amendment to the Government Code went into effect. But
Gierut did not request time off after January 1. Because he could not show he had
engaged in protected activity, Gierut could not prevail on a retaliation claim. The court
granted the motion for nonsuit on the retaliation cause of action on March 29. The court
reasoned that requesting time off because of a disability was not protected in December
2015, so there could have been no statutory violation.
The case went to the jury on April 3, 2019. The court gave the following
instruction on wrongful termination: “Keith Gierut claims he was discharged from his
employment from Applied Medical for reasons that violate a public policy. It is a
violation of public policy to discharge someone from employment because of a disability
or because the employee needed time off because of a disability. [¶] To establish this
claim, Keith Gierut must prove all of the following: [¶] One, that Mr. Gierut was
employed by Applied Medical; [¶] Two, that Applied Medical discharged Keith Gierut;
[¶] Three, that either a disability or the need for time off because of a disability was a

4
substantial motivating reason for Keith Gierut’s discharge; [¶] And four, that the
3
discharge caused Mr. Gierut harm.”
The jury returned its verdict on April 4, 2019. It found against Gierut on all
4
the employment causes of action, including wrongful termination.
DISCUSSION
The sole issue Gierut has identified in appeal is the granting of Applied’s
nonsuit on the retaliation cause of action. “A motion for nonsuit allows a defendant to
test the sufficiency of the plaintiff’s evidence before presenting his or her case. Because
a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts
grant motions for nonsuit only under very limited circumstances. [Citation.] A trial court
must not grant a motion for nonsuit if the evidence presented by the plaintiff would
support a jury verdict in the plaintiff’s favor. [Citations.] [¶] ‘In determining whether
plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to plaintiff must be
accepted as true and conflicting evidence must be disregarded. The court must give “to
the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every
legitimate inference which may be drawn from the evidence in plaintiff [’s] favor . . . .”’
[Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839
(Carson).)
“In an appeal from a judgment of nonsuit, the reviewing court is guided by
the same rule requiring evaluation of the evidence in the light most favorable to the
plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the
evidence most favorably to plaintiff’s case and most strongly against the defendant and
resolving all presumptions, inferences, and doubts in favor of the plaintiff a judgment for

3
The jury received a separate instruction on the meaning of “substantial motivating reason.”
4
Applied cross-complained against Gierut for lying during the hiring process, specifically on his
resume. The jury found that Gierut had lied, but that Applied had not been damaged as a result.

5
the defendant is required as a matter of law.’ [Citations.]” (Carson, supra, 36 Cal.3d at
p. 839, italics added.)
I. Retroactivity
The factual basis for the nonsuit is undisputed. Gierut asked for time off
because of his injuries in December 2015, before the amendment to section 12940 went
into effect. He was fired in January 2016, after the effective date. He did not ask for
time off after January 1, 2016. Our decision, therefore, involves the application of the
principles of retroactivity, an issue of law that we review de novo. (See Scott v. City of
San Diego (2019) 38 Cal.App.5th 228, 235.)
A claim for retaliation under the FEHA requires evidence of the following
elements: (1) engagement in a protected activity, (2) subjection to an adverse
employment action, and (3) a causal link between the protected activity and the adverse
employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042
(Yanowitz); Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472 (Miller);
Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) “[T] he failure to
present facts establishing a prima facie case justifies a grant of a motion for nonsuit.”
(Chen v. County of Orange (2002) 96 Cal.App.4th 926, 949 (Chen).)
As initially formulated, protected activity under section 12940, subdivision
(h), the retaliation subdivision, was “oppos[ing] any practices forbidden under this part”
or “fil[ing] a complaint, testif[ying], or assist[ing] in any proceeding under this part.”
Protected activity could take the form of either opposing practices or participating in
proceedings. (George v. California Unemployment Ins. Appeals Bd. (2009) 179
Cal.App.4th 1475, 1489.)
In 2013, the court in Rope v. Auto-Chlor System of Washington, Inc. (2013)
220 Cal.App.4th 635, 652-653 (Rope), held that firing an employee for requesting a
disability accommodation was not retaliation. “On the contrary, case law and FEHA’s
implementing regulations are uniformly premised on the principle that the nature of

6
activities protected by section 12940, subdivision (h) demonstrate some degree of
opposition to or protest of the employer’s conduct or practices based on the employee’s
reasonable belief that the employer’s action or practice is unlawful.” (Ibid.)
5
The Legislature then acted to nullify this portion of the Rope opinion.
(Stats. 2015, ch.122.) Section 12940 was amended to add subdivision (m)(2), which
prohibited an employer from “retaliat[ing] or otherwise discriminat[ing] against a person
for requesting accommodation under this subdivision, regardless of whether the request
6
was granted.” The amendment became effective on January 1, 2016, and was not
retroactive because it represented a change in the law, not a mere clarification. (Moore v.
Regents of University of California (2016) 248 Cal.App.4th 216, 246-247 (Moore);
Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942-944.)
Applied argues that when Gierut asked for time off, in 2015, such a request
did not constitute “engagement in protected activity,” the first element of a FEHA
retaliation claim. Therefore one of the required elements of the cause of action was
missing. Gierut argues that it doesn’t matter when he made his request. The last act
completing the cause of action was the “adverse employment action,” termination, which
took place in January 2016, after the amendment became effective. We disagree; Gierut
alleged he was fired for things he did in 2015. That is the relevant time period.
A failure to show engagement in protected activity results in a failure to
make out a prima facie case of retaliation. (See Dinslage v. City and County of San
Francisco (2016) 5 Cal.App.5th 368, 384; Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1193-1194; Chen, supra, 96 Cal.App.4th at pp. 949-950.) At the

5
The Legislature did not state that this portion of the Rope opinion was incorrect. And it went out
of its way to state that the rest of Rope was good law. (Stats. 2015, ch. 122.)
6
The Legislature added this language to bring section 12940 in line with the Americans with
Disabilities Act, which protects a person requesting an accommodation from retaliation (see 42 U.S.C. § 12230,
subd. (b)) and with other employment-related California statutes offering the same protection. (Stats 2015, ch. 122.)

7
time Gierut asked for time off, such a request was not protected activity. Both protected
activity and an adverse employment action are necessary for a viable retaliation claim.
Gierut cites People v. Grant (1999) 20 Cal.4th 150 (Grant) as authority for
his argument that an accommodation request before the statute’s effective date could
support a retaliation claim. The issue in Grant was whether a child molester could be
convicted of “continuous sexual abuse” under a newly enacted Penal Code statute if the
abuse started before the effective date but continued after that date. The court held that
he could. (Id. at p. 153.)
The court held that convicting the defendant under Penal Code section
7
288.5 did not make application of the code section retroactive. The court reasoned that
the defendant had abused the victim at least once after the statute’s effective date, and the
determining factor was “whether the last act or event necessary to trigger application of
the statute occurred before or after the statute’s effective date.” (Grant, supra, 20 Cal.4th
at p. 157.) Because the “last act” in this case was defendant’s molesting the victim after
the effective date, a conviction under the new statute did not render its application
retroactive. (Id. at p. 158.)
The statute under consideration in Grant was a continuing course of
conduct statute, “including at least three such acts, thus defining a new crime.” (Grant,
supra, 20 Cal.4th at p. 159.) It punished a course of conduct, not three separate acts. “‘A
continuous course of conduct offense cannot logically be “completed” until the last
requisite act is performed. Where an offense is of a continuing nature, and the conduct
continues after the enactment of a statute, that statute may be applied without violating
the ex post facto prohibition.’ [Citation.]” (Ibid.)
This case, however, does not involve a “continuing course of conduct.”
Instead, it involves two discrete acts: requesting an accommodation by an employee and

7
Penal Code section 288.5 defined “continuous sexual abuse” in part as three acts of molestation
within a three-month period.

8
an adverse employment action by an employer. The employee’s act of requesting time
off was entirely completed before the effective date of the new statute. As the court
explained in Aetna Casualty & Surety Co. v. Industrial Accident Commission (1947) 30
Cal.2d 388 (Aetna), “‘A retrospective law is one which affects rights, obligations, acts,
transactions and conditions which are performed or exist prior to the adoption of the
statute.’ [Citation.]” (Id. at p. 391.) In Aetna the Industrial Accident Commission
calculated a monetary award to a disabled employee in accordance with a law enacted
after the employee had become disabled. The commission argued the disability itself was
a “mere antecedent fact” and the right to compensation arose only after the commission
had determined its existence. (Id. at pp. 391-392.) Therefore the commission had not
applied the new statute retroactively.
The court disagreed. “The prior industrial injury was not a mere antecedent
fact relating to the permanent disability ensuing therefrom; on the contrary, it was the
basis of the right to be compensated for such disability. . . . Moreover, it is elementary
that an industrial injury is the foundation of rights and liabilities under workmen’s
compensation laws.” (Aetna, supra, 30 Cal.2d at p. 392.) “If substantial changes are
made [in a statute], . . . the operation on existing rights would be retroactive ‘because the
legal effects of past events would be changed[.]’ [Citation.]” (Cole v. Fair Oaks Fire
Protection Dist. (1987) 43 Cal.3d 148, 153.)
In this case, Gierut’s retaliation claim was founded on requesting an
accommodation – time off because of his disability. The “legal effect” of requesting time
off would be changed if it could become the protected activity of a retaliation cause of
action. Basing a retaliation claim on activity that was not protected at the time it
occurred would require a retroactive application of section 12940, subdivision (m)(2),
and, as stated in Moore, the amendment was not retroactive. (Moore, supra, 248
Cal.App.4th at pp. 246-247.)

9
 Analyzed differently, the issue resolves itself the same way. Retaliation
has three independent elements: protected activity, adverse employment action, and a
causal relationship between the two. We have already discussed the protected activity
element. A causal connection, the third element, is also required for a prima facie case.
The failure to establish the causal connection element is as fatal to a retaliation claim as
the failure to establish protected activity. (See McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal.App.4th 377, 388 [“It is not enough that the plaintiff prove
an employment decision has a substantial and detrimental effect on the terms and
conditions of his or her employment. The employee must also show that the decision is
linked to the employee’s protected activity.”]; Reeves v. Safeway Stores, Inc. (2004) 121
Cal.App.4th 95, 107 [“There is no doubt that a necessary element of plaintiff’s case is a
‘causal link between [his] protected activity and the employer’s actions. [Citations.]’
[Citation.] After all, FEHA prohibits adverse treatment ‘because of’ protected
activities.”].)
In this case, the only activity at issue was Gierut’s request for time off for
his physical therapy. This request was not protected when he made it, and therefore he
cannot establish a causal link between protected activity and an adverse employment
action. The only way to establish that link is to regard asking for time off as protected
activity, and the only way to do that is to make the statute retroactive.
Gierut’s emphasis on the “last act” in this case being his termination
completely ignores the causal-link element of a retaliation claim. It is true that Gierut
could not have sued for retaliation until he was subjected to an adverse employment
action, and it is true that being fired was just such an adverse action. But it is also true
that a prima facie retaliation claim requires a causal link between protected activity and
adverse action, a link Gierut cannot establish.

10
II. Prejudice
Applied argues that even if the nonsuit was granted erroneously, Gierut
cannot show prejudice because the jury found against him on a virtually identical claim,
8
wrongful termination in violation of public policy. If he had presented the FEHA
retaliation claim to the jury, Applied maintains, he would have lost on that one too.
Therefore granting the nonsuit did not prejudice Gierut because he would not have
obtained a better outcome.
On appeal, Gierut contends that retaliation and wrongful termination are
not identical, and if the jury had been separately instructed on retaliation, it might have
found in his favor. He argues that while the other FEHA claims, such as disability
discrimination or failure to accommodate, require the employee to be “physically
9
disabled” as defined in section 12926, subdivision (m), a retaliation claim has no such
requirement. An employee can maintain a retaliation claim if he believes reasonably and
in good faith that he has an injury requiring accommodation, even if his injury does not
qualify as a disability under section 12926, subdivision (m).
This “reasonable, good faith belief” argument is an extension of holdings in
retaliation cases in which retaliation was limited to adverse employment actions for
opposing practices that violated FEHA or for participating in proceedings. Courts have
held that an employee did not have to show the opposed practices actually violated

8
During the discussion of its motion for nonsuit, Applied argued to the trial court that the two
causes of action were duplicative. The court allowed the wrongful termination claim to go to the jury.
9
Section 12926, subdivision (m), provides: “‘Physical disability’ includes, but is not limited to, all
of the following: [¶] (1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or
anatomical loss that does both of the following: [¶] (A) Affects one or more of the following body systems:
neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs,
cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. [¶] (B) Limits a
major life activity. For purposes of this section: [¶] (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. [¶] (ii) A physiological disease, disorder, condition, cosmetic
disfigurement, or anatomical loss 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.”

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FEHA. A good faith and reasonable belief that they did sufficed. (See Yanowitz, supra,
36 Cal.4th at p. 1043; Miller, supra, 36 Cal.4th at pp. 474-475; Flait v. North American
Watch Corp. (1992) 3 Cal.App.4th 467, 477.)
Gierut extends this concept to retaliation for an accommodation request.
He now argues that he did not have to be disabled as defined by statute to maintain a
retaliation claim; he had only to have a reasonable and good faith belief that his injuries
required an accommodation. A claim for termination in violation of public policy, by
contrast, required a statutory disability, which the jury might not have believed he had.
He was therefore prejudiced by the removal of the retaliation claim with its easier burden
of proof.
There is an insurmountable problem with this argument. It is raised for the
10
first time on appeal, and it was not developed until Gierut’s reply brief. We do not
entertain legal theories that were not first introduced in the lower court. (See Pool v. City
of Oakland (1986) 42 Cal.3d 1051, 1065-1066; City of San Diego v. D.R. Horton San
Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 684-645; Ochoa v. Pacific Gas &
Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.) And we generally do not consider
arguments raised for the first time in a reply brief. (Raceway Ford Cases (2016) 2
Cal.5th 161, 178; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.)
When he opposed the motion for nonsuit – and opposed Applied’s motion
in limine on the same grounds at the outset of trial – Gierut never mentioned a lesser
disability standard for a retaliation claim. In both cases, his argument focused on
retroactivity. The proposed retaliation instruction he submitted, which was not given
after the nonsuit, read: “Keith Gierut claims that [Applied] retaliated against him because
he requested accommodation for his disability. To establish this claim, Keith Gierut must
prove all of the following: [¶] 1. That Keith Gierut requested accommodation because of

10
The argument was alluded to in a sentence fragment in the opening brief.

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his disability; [¶] 2. That Keith Gierut’s request for accommodation substantially
motivated [Applied’s] decision to terminate his employment; [¶] 3. That Keith Gierut
was harmed; and, [¶] 4. That [Applied’s] decision to discharge Keith Gierut was a
substantial factor in causing Keith Gierut harm. [¶] Keith Gierut does not have to prove
discrimination in order to be protected from retaliation. If he reasonably believed that
he requested a disability accommodation, he may prevail on a retaliation claim even if he
does not present, or prevail on, a separate claim for discrimination.” (Italics added.)
Gierut wanted the court to tell the jury that his belief about the clarity or adequacy of his
request for accommodation was the critical factor, not his belief about the nature of his
injury. The proposed instruction was also predicated on Gierut’s having an actual
disability.
Gierut cannot raise a new theory – or implicitly criticize a jury instruction
– for the first time on appeal. He had to present his theory of a lesser burden for a
retaliation claim to the trial court in the first instance. It is too late to raise it now.
DISPOSITION
The order granting the nonsuit is affirmed. Appellant’s request for judicial
notice is denied as unnecessary. (See Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 45, fn. 9.) Respondent is to recover its costs on appeal.

BEDSWORTH, ACTING P. J.

I CONCUR:

ARONSON, J.

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Moore, J., Concurring.
I concur with the majority opinion that Gierut has not established any
prejudice from the alleged error. I would have affirmed the trial court solely on this
ground.
On appeal, the trial court’s judgment is presumed correct and Gierut has the
burden of showing error. (People v. Booth (2018) 25 Cal.App.5th 450, 452.) Here, he
must show it was reasonably probable that the jury would have found in his favor on his
retaliation claim had Applied’s motion for nonsuit been denied. (See Jones v. Farmers
Ins. Exchange (2013) 221 Cal.App.4th 986, 999; see, e.g., Piedra v. Dugan (2004) 123
Cal.App.4th 1483, 1499-1500; Ashcraft v. King (1991) 228 Cal.App.3d 604, 616.) He
has not met that burden.
As stated in the majority opinion, Gierut brought claims against Applied for
retaliation and wrongful termination in violation of public policy, among others. His
wrongful termination claim arose from the same set of facts as his retaliation claim.
Gierut’s retaliation claim was based on allegations that Applied terminated him because
he requested time off to recover from his injuries. (Maj. Opn., ante, p. 4.) His wrongful
termination claim was based on the same theory and was rejected by the jury. For
example, jury instructions stated it was against public policy to discharge Gierut because
of “his request for time off . . . [to] accommodat[e] [his] disability.” Likewise, they also
stated “[i]t is a violation of public policy to discharge someone from employment
because of a disability or because the employee needed time off because of a disability.”
(Italics added.) The instructions further stated Gierut had to show “that either a disability

1
or the need for time off because of a disability was a substantial motivating reason for
1
Gierut’s discharge.” (Maj. Opn., ante, pp. 4-5, italics added.)
The jury’s finding on the wrongful termination claim shows that it rejected
the theory underpinning the retaliation claim. Gierut contends that the jury’s finding on
the wrongful termination claim did not inherently preclude it from finding for him on the
retaliation claim. Specifically, he argues the wrongful termination claim required the jury
to find that he was actually disabled, while his retaliation claim did not. Rather, the latter
only required him to show a reasonable belief that he was disabled. Thus, he suggests the
jury could have rejected his wrongful termination claim on grounds he was not disabled.
It then could have ruled for him on the retaliation claim if it found that he reasonably
believed himself to be disabled. Even if we presume this distinction is legally correct, it
has been forfeited because Gierut raised it for the first time on appeal.
“[P]arties are not permitted to ‘“adopt a new and different theory on appeal.
To permit [them] to do so would not only be unfair to the trial court, but manifestly
unjust to the opposing litigant.” [Citations.]’ [Citations.] Only when the issue presented
involves purely a legal question, on an uncontroverted record and requires no factual
determinations, is it appropriate to address new theories.” (Mattco Forge, Inc. v. Arthur
Young & Co. (1997) 52 Cal.App.4th 820, 847, italics omitted.) Application of this rule is
particularly apt in this case since we cannot address Gierut’s argument without
speculating about the evidence and arguments presented below. As such, it would be
inappropriate to address this theory.

1
Gierut argues the jury never reached the instruction that used the language “request for
time off” and that the instructions the jury relied upon only used the “need” time off
language. But he fails to explain why this difference is material. It appears the
distinction in these terms relates to whether he was actually disabled or had a reasonable
belief he was disabled, which is discussed below.
2
 For Gierut’s argument to prevail, he must show that the jury reasonably
could have decided against him on the wrongful termination claim because it found he
was not disabled. He has not shown this contention is plausible. He cites nothing from
the record showing that either party ever argued or presented evidence that he was not
disabled. It is unclear whether this issue was even contested at trial. As such, we have
no reason to believe that the jury ruled against him on the wrongful termination claim
because it concluded that he was not disabled. Gierut’s argument also requires us to find
that the jury could have determined that he reasonably believed himself to be disabled.
Again, he has cited no evidence to support this theory. It is unclear what specific
evidence the jury could have relied upon to make this finding. To the extent evidence
was introduced on these issues, the trial court was far better positioned to evaluate the
merits of these fact-based assertions, as it heard all the arguments and evidence presented
by the parties.

MOORE, J.

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