Judge: Barbara M. Scheper, Case: 21STCV45066, Date: 2022-12-05 Tentative Ruling
Case Number: 21STCV45066 Hearing Date: December 5, 2022 Dept: 30
Dept.
30
Calendar
No.
Sattley,
et. al. vs. Davis, et. al., Case No. 21STCV45066
Tentative
Ruling re: Defendant’s Demurrer to
Second Amended Complaint
Defendant City of Beverly Hills (the
City) demurs
to the first, second, and fifth through eleventh causes of action in the Second
Amended Complaint (SAC) of Plaintiffs Josh Sattley, Ettore Berardinelli, Jr.,
and Protection for the Educational Rights of Kids (collectively,
Plaintiffs). The Court overrules the demurrer as to the
eleventh cause of action, and sustains the demurrer to the remaining causes of
action.
In reviewing the legal sufficiency of a complaint against a
demurrer, a court will treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions, or conclusions of law. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v.
Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594,
601.) “The rules by which the sufficiency of a complaint is tested against a
general demurrer are well settled. We not only treat the demurrer as admitting
all material facts properly pleaded, but also give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner
v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the
complaint’s allegations or matters which may be judicially noticed. (Blank,
supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic
evidence or judge the credibility of the allegations plead or the difficulty a
plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson
(1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the
complaint, liberally construed, fails to state facts sufficient to constitute
any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574,
578.)
Plaintiffs state that they have asked to dismiss the first,
fifth, sixth, eighth, and tenth causes of action without prejudice. (Opposition
p. 4.) Accordingly, the demurrer is sustained as to those causes of action. The
second, seventh, ninth, and eleventh causes of action remain at issue.
In August 2021, Los Angeles County issued an order
requiring all health care workers in Los Angeles County to receive the COVID-19
vaccine (the Mandate). (SAC ¶¶ 24-25.) The Mandate applied to all first
responders, including firefighters in Beverly Hills. (Ibid.) The Mandate
provided that workers could be exempted from the vaccine requirement by
providing a signed form stating that they were declining vaccination either
based on religious belief or for medical reasons. (SAC ¶ 26.)
It is alleged that the City of Beverly Hills did not follow
the County’s mandate, and instead forced city firefighters “to ask for an
exemption and then required that everybody who asked submit to an interview in
which they had had to justify their religious objections.” (SAC ¶ 28.)
Plaintiffs Josh Sattley and Ettore Berardinelli, Jr. were firefighters employed
by the City who were subjected to its exemption policies. (SAC ¶¶ 34-38.)
Berardinelli obtained a religious exemption but was subsequently reassigned to
a job that received fewer calls, and was not allowed to respond to certain
calls. (SAC ¶ 35.) Sattley was denied a religious exemption but did not get the
vaccine, and was placed on unpaid leave effective October 1, 2021. (SAC ¶ 36.) On
March 9, 2022, after the filing of this suit, the City terminated Sattley for
failure to comply with the mandate. (SAC ¶ 37.)
Second
Cause of Action for Declaratory and Injunctive Relief
Under the second cause of action, Plaintiffs seek “a
judicial declaration that the City’s blanket practice of questioning the
sincerity of every firefighter’s religious objection to Covid vaccination
violates the County Health Mandate as well as state and federal
anti-discrimination laws…” (SAC ¶ 63.) Plaintiffs also seek injunctive relief
on the basis that they “will suffer irreparable harm if the Court does not
prohibit the City from engaging in the blanket practice of cross-examining
people who assert a religious objection to Covid vaccination in the future.”
(SAC ¶ 66.)
The City first demurs on the basis
that Plaintiffs have failed to plead the existence of an “actual controversy.”
The Court agrees.
“The ‘actual controversy’ requirement concerns the existence of present
controversy relating to the legal rights and duties of the respective parties
pursuant to contract (Code Civ. Proc., § 1060), statute or order. [Citation.]
Where the allegations of the complaint reveal the controversy to be
conjectural, anticipated to occur in the future, or an attempt to obtain an
advisory opinion from the court, the fundamental basis of declaratory relief is
lacking.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208
Cal.App.3d 405, 410.) “One who invokes the judicial process does not have
‘standing’ if he, or those whom he properly represents, does not have a real
interest in the ultimate adjudication because the actor has neither suffered
nor is about to suffer any injury of sufficient magnitude reasonably to assure
that all of the relevant facts and issues will be adequately presented.” (Zetterberg
v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662.)
Here, the SAC alleges that Berardinelli has been granted a
religious exemption, and that Sattley has been terminated. (SAC ¶¶ 35-37.) The Mandate order attached to the SAC shows that
compliance was required by September 30, 2021. (SAC, Ex. A.) Given these
allegations, Plaintiffs have failed to plead facts showing that they have any
ongoing interest in the subject of the requested declaration, the City’s
practice of examining individuals asserting religious objections to
vaccination. (See Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 894 [finding
individual employee’s claim for declaration as to enforceability of noncompete
contract was moot where noncompete period had expired, employee faced no
further potential liability, and employee had no interest in reemployment with
former employer].)
Plaintiffs
argue that declaratory relief is available here because they are seeking the
proper interpretation of a government order. This argument is unavailing; the
principle that “[d]eclaratory
relief operates prospectively to declare future rights, rather than to redress
past wrongs” applies regardless of whether the
subject of declaratory relief is a government order. (County of San
Diego v. State of California (2008) 164 Cal.App.4th 580, 606-08; Californians
for Native Salmon etc. Assn. v. Department of Forestry (1990) 221
Cal.App.3d 1419, 1427-28 [finding actual controversy pled notwithstanding
defendants’ argument that challenged policy had not yet been adopted by agency,
because “for present purposes the demurrer admits the allegation that those
policies exist”].) “The fact that an issue raised in an action for declaratory
relief is of broad general interest is not grounds for the courts to grant such
relief in the absence of a true justiciable controversy.” (Zetterberg v.
State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662.)
Accordingly, the demurrer is sustained as
to the second cause of action.
Seventh
Cause of Action for Religious Discrimination (FEHA)
Plaintiffs allege under the seventh
cause of action that Sattley “had a sincerely held religious belief or practice
that conflicted with a stated job requirement (mandatory Covid vaccination),”
and that the City failed to reasonably accommodate those religious beliefs
before terminating him. (SAC ¶¶ 100-103.)
Under FEHA, it is an unlawful employment practice to
discriminate against an employee “because of a
conflict between the person's religious belief or observance and any employment
requirement, unless the employer or other entity covered by this part
demonstrates that it has explored any available reasonable alternative means of
accommodating the religious belief or observance . . . but is unable to
reasonably accommodate the religious belief or observance without undue
hardship.” (Gov. Code, § 12940, subd. (l)(1).)
“There are three elements to a prima
facie case under section 12940, subdivision (l): the employee sincerely held a religious belief; the
employer was aware of that belief; and the belief conflicted with an employment requirement.
[Citation.] Once the employee establishes a prima facie case with sufficient
evidence of the three elements, the burden shifts to the employer to establish
that ‘it initiated good faith efforts to accommodate or no accommodation was
possible without producing undue hardship. [Citations.]’” (California Fair
Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122
Cal.App.4th 1004, 1011.)
“Religious belief or observance, as used in this section,
includes, but is not limited to, observance of a Sabbath or other religious
holy day or days, reasonable time necessary for travel prior and subsequent to
a religious observance, and religious dress practice and religious grooming
practice…” (Gov. Code, § 12940, subd. (l)(1).) Regulations further provide that
“‘Religious creed’ includes any traditionally recognized religion as well as
beliefs, observances, or practices, which an individual sincerely holds and
which occupy in his or her life a place of importance parallel to that of
traditionally recognized religions. It encompasses all aspects of religious
belief, observance, and practice, including religious dress and grooming
practices, as defined by Government Code section 12926.” (2 C.C.R. § 11060.)
Here, Plaintiffs have failed to
allege requisite facts regarding the belief held by Sattley that conflicted
with mandatory COVID vaccination. While the allegations that Sattley’s beliefs
are sincerely held are presumed as true for purposes of demurrer, the Court
must disregard conclusory allegations regarding the nature of those beliefs. (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 69–70 [“for example,
that plaintiff's beliefs ‘occupy a place in
[his] life parallel to that filled by God in traditionally religious individuals adhering to the Christian,
Jewish or Muslim Faiths.’”].) The allegation that Sattley “had a sincerely held
religious belief or practices that conflicted with a
stated job requirement” is wholly conclusory. (SAC ¶ 101.)
Accordingly, the demurrer is
sustained as to the seventh cause of action.
Ninth
Cause of Action for Disability Discrimination (FEHA)
Plaintiffs’ ninth cause of action
for disability discrimination under FEHA alleges that the City viewed Sattley
as having a disability based on his unvaccinated status and discriminated
against him based on that perceived disability. (SAC ¶¶ 107-110.)
To survive demurrer, a plaintiff alleging a discrimination claim
under FEHA “[m]ust plead the prima facie elements of employment discrimination
specified in McDonnell Douglas [411 U.S. 792].” (Caldwell v.
Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 fn 7.) That is, the complaint must allege that: (1) the
plaintiff suffers from, or is regarded as suffering from, a disability; (2) the
plaintiff is otherwise qualified to do his job; and (3) the plaintiff was
subjected to an adverse employment action because of his disability. (Alejandro v. ST Micro Electronics, Inc (N.D. Cal. 2015) 129 F.Supp.3d 898, 907.)
“By protecting individuals ‘regarded as’ disabled, the
Legislature intended ‘to provide protection when an individual is erroneously
or mistakenly believed to have any physical or mental condition that limits a
major life activity.’” (Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 589.) A “perceived disability” means being “regarded
as,” “perceived as” or “treated as” having a disability,” including being
regarded or treated “as having, or having had, any mental or physical condition
or adverse genetic information that makes achievement of a major life activity
difficult. (2 C.C.R. § 11065, subd. (d)(5).)
Plaintiffs argue that the City perceived Sattley as
disabled insofar as it viewed and treated him as being more likely to get sick
from COVID. Because this claim is based on a perceived disability,
Plaintiffs must allege that the City treated Sattley “as if he had a physical
condition, past or present, that made achievement of a major life activity
difficult.” (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 350.)
The SAC alleges only that the City perceived and treated
Sattley as being unvaccinated. (SAC ¶¶ 116-118.) This allegation is insufficient to show that the
City perceived or treated Sattley as having a disability, because, as
Plaintiffs concede, being unvaccinated is not a disability. This is fatal to
Plaintiffs’ claim; to establish a cause of action for perceived disability
discrimination, the condition the plaintiff is “regarded as” having must be a
covered disability. (2 C.C.R. § 11065, subd. (d)(5); see Sutton v. United
Air Lines, Inc. (1999) 527 U.S. 471, 490 [“an employer is free to decide
that physical characteristics or medical conditions that do not rise to the
level of an impairment—such as one's height, build, or singing voice—are
preferable to others”]; Francis v. City of Meriden (2d Cir. 1997) 129
F.3d 281, 285 [“the plaintiff must allege that the employer believed, however
erroneously, that the plaintiff suffered from an ‘impairment’ that, if it truly
existed, would be covered under the statutes and that the employer
discriminated against the plaintiff on that basis”].) Plaintiffs’ allegation that vaccination status “is a private health issue, an actual or perceived immune
condition that is protected from discrimination under California law” is a
conclusory statement of law that cannot be relied upon here. (SAC ¶ 116.)
Citing to the ADA definition of “disability,” Plaintiffs argue that an
individual’s COVID vaccination status constitutes a disability as a
“physiological disorder or condition” including an “immune” condition. (29
C.F.R. § 1630.2(h).) The Court disagrees. Interpreting
an individual’s unvaccinated status as a “physiological disorder or condition”
would distort the plain language and purpose of the ADA and FEHA. The term “immune
condition” refers to diseases and conditions that hinder the immune system,
such as HIV. (See Bragdon v. Abbott (1998) 524 U.S. 624; 29 C.F.R. §
1630.2 [“For example . . . Human Immunodeficiency Virus (HIV) infection
substantially limits immune function”].) No authority suggests that an
individual’s failure to take prophylactic measures could constitute an actual
or perceived “disability” affecting the immune system. Thus, assuming as true
Plaintiffs’ argument that vaccination status limits a major life activity,
Plaintiffs would still fail to plead a claim for disability discrimination
because they have not alleged that the City perceived Plaintiff as suffering
from any physiological disorder or condition. (See Cassista v. Community
Foods, Inc. (1993) 5 Cal.4th 1050, 1061; Tudyman v. United Airlines (C.D.
Cal. 1984) 608 F.Supp. 739, 741 [finding no disability where applicant's weight was not the result of a physiological
disorder affecting one or more of the body's systems, “e.g., the result of a
glandular problem,” but rather was “self-imposed and voluntary”].)
Accordingly, the demurrer is sustained as to the ninth
cause of action.
Eleventh
Cause of Action for Retaliation (FEHA)
Under the eleventh cause of action,
Plaintiffs allege that Sattley engaged in protected activity by asserting a
religious objection to COVID vaccination, criticizing the City’s COVID
policies, and filing the current lawsuit. (SAC ¶ 131.) The City retaliated
against Sattley based on this protected activity by suspending him without pay
and then terminating him for being unvaccinated. (SAC ¶ 132.)
“[T]o establish a prima facie case of retaliation under the
FEHA, the plaintiff must show (1) he was engaged in a protected activity; (2)
the employer subjected him to an adverse employment action; and (3) there was a
causal link between the protected activity and the employer's action.” (Taylor
v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th
1216, 1229, disapproved of on other grounds by Jones v. Lodge at Torrey
Pines Partnership (2008) 42 Cal.4th 1158.)
It is an unlawful employment practice “to discharge, expel, or
otherwise discriminate against any person because the person has opposed any
practices forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this part.” (Gov.
Code, § 12940, subd. (h).) It is also unlawful “[f]or an employer or other
entity covered by this part to, in addition to the employee protections
provided pursuant to subdivision (h), retaliate or otherwise discriminate
against a person for requesting [religious accommodation], regardless of
whether the request was granted.” (Gov. Code, § 12940, subd. (l)(4).) Section 12940,
subdivision (l)(4) was added by the state legislature in 2015 to “make clear
that a request for an accommodation constitutes protected activity.” (Moore
v. Regents of University of California (2016) 248 Cal.App.4th 216, 245.)
The City demurs to this cause of action on the basis that Sattley
has not pled protected activity under FEHA, because he did not oppose any
practice made illegal by FEHA. However, the allegation that Sattley sought a
religious exemption is sufficient to show protected activity. (Gov. Code, §
12940, subd. (l)(4); SAC ¶¶ 34, 37.) Sattley’s
filing of the current suit also constitutes protected activity, as the
“fil[ing] of a complaint . . . under this part.” (Gov. Code § 12940, subd.
(h).) The City has presented no other grounds for demurrer. Accordingly, the demurrer is overruled as to the eleventh
cause of action.