Judge Curtis A. Kin, Case Number: 22STCP02303, Date: 2023-08-22 Tentative Ruling

Judge: Curtis A. Kin, Case: 22STCP02303, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCP02303 Hearing Date: August 22, 2023 Dept: 82

Petitioner Michael Parks petitions for writ of mandate directing respondent City of Los Angeles and Michel Moore to set aside the termination of petitioner and restore him to his prior position of Police Officer II with back pay.

I. Factual Background

Petitioner Michael Parks was employed by the Los Angeles Police Department (“Department”) at the rank of Police Officer II. (AR 256:20-25.)

On August 18, 2021, the Los Angeles City Council adopted Ordinance No. 187134 (“Ordinance”). (AR 472-77, 488.) The Ordinance required City employees to be fully vaccinated for COVID-19, or to have requested an exemption, and to have reported their vaccination status no later than October 19, 2021. (AR 473; Los Angeles Administrative Code [“LAAC”] 4.701(a).) As of October 20, 2021, compliance with the COVID-19 vaccination and reporting requirements were conditions of employment. (AR 473; LAAC § 4.701(b).)

The Ordinance allowed employees to seek a medical or religious exemption from vaccination. (AR 473-74; LAAC § 4.702.) On October 1, 2021, petitioner submitted a request for exemption. (AR 861-64.) Employees who obtain an exemption and are required to report to a City worksite were required to submit to weekly COVID testing at no cost to the employee. (AR 474; LAAC § 4.702(b).) Employees who were approved for an exemption were still required to report their vaccination status. (AR 474; LAAC § 4.701(b).)

Between August 18, 2021 and October 18, 2021, the City Administrative Officer negotiated with City labor organizations on the consequences of non-compliance with the Ordinance. (AR 488.) On October 14, 2021, during the negotiations, the City issued its “Last, Best, and Final Offer Over Outcomes for Non-Reporting and Non-Compliance” (“LBFO”). (AR 479-83.) Under the LBFO, employees who had not submitted proof of full vaccination status or a request for exemption by October 20, 2021 would be issued a Notice of Mandatory COVID-19 Vaccination Policy Requirements (“Notice”). (AR 480.) Employees who received the Notice were required to sign it and comply with the terms therein as a condition of employment. (AR 480.) The terms included testing for COVID-19 twice a week with the City or a vendor chosen by the City, i.e., Bluestone, and deduction of the cost of the testing from the employee’s paycheck. (AR 480-81.) Employees who did not show proof of full compliance by December 18, 2021 would be subject to corrective action. (AR 481.)

With respect to who would receive the Notice, the LBFO provided:

Employees who file an intent to seek a medical or religious exemption on or before October 20, 2021, will be considered compliant with the Ordinance during the pendency of the exemption and accommodation process. Accordingly, the City shall not issue the Notice and/or take employment action against an employee who is duly subject to the exemption and accommodation procedures.

Employees who have reported a vaccination status of “not vaccinated” and who file exemption paperwork and are awaiting the result of the City’s evaluation process shall be subject to the same terms applicable to employees who are not fully vaccinated and who have received a Notice, including and limited to items 2, 3, 4, and 5 as stated above.

Each employee who is required to test while awaiting the determination by the City of their exemption request shall be required to sign a Notice and to comply with its terms as outlined above and herein. Failure to sign and fulfill the conditions of the Notice shall constitute failure to meet a condition of employment and shall result in appropriate and immediate corrective action.

(AR 481-82.)

On October 26, 2021, the City Council adopted “Resolution Implementing Consequences for Non-Compliance with the Requirements of Ordinance No. 187134” (“Resolution”). (AR 484.) Having reached an impasse with City labor organizations but having found a need to address the threat to public and workplace safety posed by the COVID-19 pandemic, the City Council ordered the Mayor, through appointing authorities, to implement the LBFO. (AR 490.)

On October 28, 2021, the Mayor issued a memorandum ordering all department heads to immediately implement the LBFO and to issue the Notice to each employee who is unvaccinated and has requested an exemption. (AR 485-86.) Employees who failed to report their vaccination status by October 19, 2021 would be treated as unvaccinated. (AR 488.) Upon receiving the Notice, the employee would have 24-48 hours to review and sign the Notice. (AR 485-86.) If the employee refused to sign the Notice, the employee would be subject to the testing protocols outlined in the LBFO, except that the City would issue an invoice for the cost of testing. (AR 486.) Corrective action would immediately begin on December 19, 2021 for each employee who remained non-compliant at the end of the day on December 18, 2021. (AR 486.) An employee who remained non-compliant would be “placed off duty without pay pending service of a Skelly package that includes a Notice of Proposed Separation.” (AR 486.) The Mayor’s memorandum also provided that sworn employees would be subject to applicable “Board of Rights proceedings.” (AR 486.)

On November 4, 2021, Captain Ahmad Zarekani, petitioner’s commanding officer, served the Notice on petitioner. (AR 313:10-15, 314:12-18.) Petitioner refused to sign the Notice. (AR 314:23-315:1, 494.) Petitioner wrote on the bottom of the signature page of the Notice, “Refused to sign 11/4/21, refuse/do not authorize auto deductions or invoice.” (AR 273:12-274:6, 494.) Petitioner also refused to test through the City’s vendor or created an account with the vendor. (AR 164:10-14, 165:23-166:3, 262:12-17.) Petitioner did not sign the Notice because he did not want to indicate any agreement to pay for testing. (AR 259:21-260:4, 260:19-261:4.) Based on material from the police officers’ union, petitioner believed that it was illegal to force him to pay for testing. (AR 261:5-262:15, 276:13-278:22.)

On December 22, 2021, Captain Zarekani served petitioner with a Complaint Adjudication Form, wherein Captain Zarekani notified petitioner of his proposal to the Chief of Police that petitioner be directed to a Board of Rights. (AR 544-45.) The Complaint Adjudication Form indicated that petitioner had until December 27, 2021 to respond orally or in writing. (AR 545.)

On December 23, 2021, the Department served petitioner with a form titled “Complaint and Relief from Duty, Proposed Removal, Suspension or Demotion” (“Proposed Discipline”). (AR 530, 866-67.) Petitioner was charged with failing to comply with the requirements of the Notice on or about December 21, 2021 while on duty. (AR 530.) Petitioner was notified that the Chief of Police, respondent Michel Moore, was directing him to a Board of Rights and proposing his removal from employment with the Department. (AR 530.) Petitioner was temporarily relieved from duty effective December 24, 2021. (AR 530.) The Proposed Discipline stated that the “proposed removal and temporary relief from duty are made pending a hearing before and decision by a Board of Rights” and that petitioner would “not suffer a loss of compensation for thirty calendar days after the date on which [petitioner] was served with the charge(s)….” (AR 530.)

Beginning March 15, 2022, the Board of Rights (“Board”) conducted a hearing with respect to the charge against petitioner took place for three days. (AR 1, 5, 877:10-13.) On March 21, 2022, the Board found that petitioner had not complied with the Ordinance. (AR 882:11-13.) Petitioner refused to report his vaccination status when the Notice was issued and during the Board of Rights. (AR 880:6-9.) Petitioner declined to sign the Notice. (AR 882:15-16.) Petitioner was required by the Ordinance and the LBFO to participate in testing, but petitioner refused to submit to testing. (AR 882:16-21.) The Board determined that petitioner “effectively chose to be placed off duty pending pre-separation due process. (AR 882:22-24.)

The Board also rejected petitioner’s argument that he did not receive due process. Petitioner had argued that he should have received 30 days from receiving the Proposed Discipline to respond. (AR 883:1-8.) The Board found that, after receiving the Proposed Discipline, petitioner was entitled to a reasonable time to respond, which is normally three to five days, but petitioner took advantage of his right to request an extension of time. (AR 883:9-24, 858.) The Board also found that the Board of Rights was itself a full and fair hearing, in which petitioner had the opportunity to fully present his case. (AR 883:25-884:8.) The Board also determined that the City could require reimbursement for testing. (AR 884:17-886:2.) The Board found petitioner guilty. (AR 886:2-3.)

Having found that petitioner “unquestionably violated the Ordinance,” the Board recommended that petitioner be removed from employment. (AR 887:11-13.) Petitioner was removed from his position as Police Officer, effective January 23, 2022. (AR 891.)

II. Procedural History

On June 17, 2022, petitioner filed a Verified Petition for Peremptory Writ of Mandate. On April 13, 2023, the Court (Hon. Mary H. Strobel) sustained respondents’ demurrer to the petitioner brought pursuant to CCP § 1085 and granted respondents’ motion to strike references to CCP § 1085. (4/13/23 Minute Order at 5-6.)

On May 24, 2023, petitioner filed an opening brief. On June 26, 2023, respondents filed an opposition. On July 10, 2023, petitioner filed a reply.

The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III. Standard of Review

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because the termination of petitioner from his position as Police Officer II concerns a fundamental vested right, the Court exercises its independent judgment on the administrative findings. (See Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 314; Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, 4 Cal.3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) When an appellant challenges “‘the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“On questions of law arising in mandate proceedings, [the Court] exercise[s] independent judgment.’” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 71.)

IV. Analysis

A. Evidentiary Matters

Petitioner’s requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.) Respondents’ evidentiary objections and request to strike are DENIED.

B. Pre-Discipline Due Process

Mandatory preremoval safeguards for a permanent civil service employee include “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.)

Petitioner maintains that he was not provided 30 days to respond to the Complaint Adjudication Form. (AR 545 [petitioner served Complaint on 12/22/21, given until 12/27/21 to respond].) The Memorandum of Understanding between the City and the police officers’ union provides that an employee “shall be given a reasonable period of time to consider and prepare a Skelly response.” (AR 526.) Arguably, providing petitioner five days to respond during the holidays was unreasonable, as obtaining representation for the Board of Rights hearing may have been difficult. (AR 390-391.)

Nevertheless, “departures from an organization's procedural rules will be disregarded unless they have produced some injustice.” (El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 990.) Here, the record reflects that the Board of Rights hearing took place over three days, petitioner was represented by counsel, and petitioner had the opportunity to present witnesses and persuade the Board why he should not be terminated. (AR 877-89.) Petitioner does not persuasively explain how he was prejudiced by being provided fewer than 30 days to respond to the Complaint Adjudication Form.

Accordingly, the Court finds that petitioner’s due process arguments to be without merit.

C. Merits of Decision to Terminate Petitioner’s Employment

At the conclusion of the Board of Rights hearing, the Board explained why it was recommending the termination of petitioner’s employment:

The Board observes that Officer Parks has not complied with the Ordinance. Officer Parks declined to state his vaccination status, but applied for an exemption, then he received the Notices of the mandates. He declined to sign the Notice. At that point, the Ordinance and the Last Best and Final offer compelled Officer Parks, by their terms, to participate in testing, by signing up with Bluestone and by authorizing payment or invoicing in the amount of the testing's cost. Then Officer Parks declined to test. By the terms of the law, Officer Parks effectively chose to be placed off duty pending pre-separation due process.

(AR 882:12-24.) As stated above, the Board set forth the following reasons why petitioner’s employment should be terminated: (1) petitioner declined to state his vaccination status; (2) petitioner received the Notice but declined to sign it; and (3) petitioner did not submit to COVID-19 testing, including signing up with Bluestone and authorizing his payment or invoicing of the cost of testing.

1. Failure to State Vaccination Status

With respect to the failure to state vaccination status, the Ordinance required petitioner to report his vaccination status no later than October 19, 2021. (AR 473.) Petitioner maintains that he reported his vaccination status to the “IOD Director.” (AR 257:9-18; see also OB at 6:22-23, citing AR 257; Reply at 4:22-23, citing AR 257.) To support his assertion, petitioner only cites his own deposition testimony. Petitioner does not point to any corroborating evidence or cite to any documentation from the City demonstrating that he reported his vaccination status. Absent any independent evidence to support petitioner’s testimony, the Court presumes that the Board correctly found that petitioner declined to state his vaccination status. (See Fukuda, 20 Cal.4th at 817 [standard of review for exercise of independent judgment].)

2. Refusal to Sign Notice

With respect to petitioner’s refusal to sign the Notice, petitioner argues that, based on the terms of the LBFO, he should not have been served the Notice of Mandatory COVID-19 Vaccination Policy Requirements. As stated in the Last, Best, and Final Offer Over Outcomes for Non-Reporting and Non-Compliance, “Employees who file an intent to seek a medical or religious exemption on or before October 20, 2021, will be considered compliant with the Ordinance during the pendency of the exemption and accommodation process. Accordingly, the City shall not issue the Notice and/or take employment action against an employee who is duly subject to the exemption and accommodation procedures.” (AR 481.) Petitioner submitted a request for exemption on October 1, 2021. (AR 861-64.) Based on this quoted language of the LBFO, petitioner should not have been issued the Notice or been subject to any employment action against him.

Notwithstanding the seeming clarity of the above provision, the LBFO goes to state: “Each employee who is required to test while awaiting the determination by the City of their exemption request shall be required to sign a Notice and to comply with its terms as outlined above and herein. Failure to sign and fulfill the conditions of the Notice shall constitute failure to meet a condition of employment and shall result in appropriate and immediate corrective action.” (AR 481-82.) At first blush, this language of the LBFO would appear to apply to petitioner and thus contradict the above-discussed provision that states no Notice shall issue or employment action be taken “during the pendency of the exemption and accommodation process.” (AR 481.) A close parsing of the words of this provision, however, indicates that petitioner should no be subject to it. Employees who were not fully vaccinated and who agree to the terms of the Notice were required to test. (AR 480.) In addition, employees who reported that they were “not vaccinated” and who have filed exemption paperwork but were awaiting the result of the City’s evaluation process were also required to test. (AR 481.) The LBFO, however, does not state that testing is required for employees who submitted requests for exemption on or before October 20, 2021, did not report their vaccination status, and were awaiting the result of the City’s evaluation process.

In addition, the LBFO sought to define the consequences for failing to comply with the Ordinance (AR 479), but the Ordinance itself did not state whether employees who have submitted a request for exemption but have not received a decision on their request were required to undergo weekly COVID-19 testing. Rather, the Ordinance specified that employees with medical or religious exemptions, who were required to regularly report to a City worksite (as police officers presumably are required to do), shall be subject to weekly COVID-19 tests at no cost to the employees. (AR 474.)

Thus, in light of the foregoing, petitioner, who submitted a request for exemption before the deadline specified in the LBFO, should not have been issued a Notice under the terms of the LBFO.

Arguably, the Mayor’s memorandum superseded the LBFO. The City Council ordered the Mayor through appointing authorities to implement the terms and conditions of the LBFO. (AR 490.) The Mayor subsequently ordered all department heads to “[i]mmediately implement the terms and conditions of the LBFO.” (AR 485.)

The Mayor also ordered all department heads to “[i]ssue a Notice of Mandatory COVID-19 Vaccination Policy Requirements – While Awaiting an Exemption/Appeal Determination to each employee who is unvaccinated and has filed an exemption form. The employee will have 24 hours to review and sign the notice or 48 hours if they request time to consult with a union representative.” (AR 485-86, italics and underline in original.) As pertinent here, the Mayor’s memorandum states that, “[i]f the employee refuses to sign the notice, then the employee shall follow the same testing regimen as outlined in the COVID-19 testing protocols Nos. 2-5 outlined in the LBFO. Employees in this category shall test on paid time and at City expense, except that the City shall issue an invoice for the cost of testing.” (AR 486.) Protocol Nos. 2-5 in the LBFO were as follows:

2. The employee must test for COVID-19 twice per week;

3. To facilitate the testing process for the employee and ensure that test results are reported accurately and timely, all testing shall be administered by the City or its vendor. No third-party tests shall be substituted for tests provided for by the City or its vendor;

4. The employee shall reimburse the City $260 per pay period for four tests at $65 each. Reimbursement shall be made on a biweekly basis through the employee’s paycheck, e.g., through a negative payroll deduction; and

5. The employee shall test on their own time, i.e., not on paid work time.

(AR 480-81.)

Under the Mayor’s memorandum, employees who failed to report their vaccination status by October 19, 2021 would be treated as unvaccinated. (AR 488.) As stated above, petitioner fails to sufficiently demonstrate that he reported his vaccination status. Accordingly, the Department was correct to treat him as unvaccinated. Arguably, under the LBFO, because petitioner was considered not vaccinated and waiting for the result of his request for exemption, petitioner may have been required to test. (AR 481.) However, under the LBFO, if an employee requested an exemption on or before October 20, 2021, the employee should not be issued a Notice pending the exemption and accommodation process. (AR 481.) Without referencing employees who requested an exemption on or before October 20, 2021, the Mayor’s memorandum stated that unvaccinated employees who filed an exemption form are subject to testing requirements. (AR 485-86.)

The Mayor’s memorandum never expressly overruled the portion of the LBFO that stated that employees who filed a request for exemption on or before October 20, 2021 would not be issued a Notice or be subject to employment action. (AR 481.) Accordingly, the Mayor’s memorandum implemented the terms of the LBFO but simultaneously imposed terms for unvaccinated employees who have requested an exemption on or before October 20, 2021 which contradict the terms of the LBFO. It is therefore unclear whether petitioner should have been issued or required to sign a Notice. It is also unclear whether petitioner should have been subject to employment action while his request for exemption was pending.

“[T]he Fourteenth Amendment due process guarantee against vagueness requires that laws provide adequate warning to people of ordinary intelligence of the conduct that is prohibited, and standards to protect against arbitrary and discriminatory enforcement.” (Concerned Dog Owners of California v. City of Los Angeles (2011) 194 Cal.App.4th 1219, 1231.) “Statutes or ordinances that are not clear as to the regulated conduct are void for three reasons: (1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on arbitrary and discriminatory enforcement by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms.” (Ibid.)

Reading the LBFO and the Mayor’s memorandum together, it is not possible to determine whether petitioner, who undisputedly submitted a request for exemption before the stated deadline in the LBFO, should have been required to sign a Notice. Accordingly, the Court finds that terminating petitioner’s employment based on failure to sign the Notice was a prejudicial abuse of discretion.

Even if the Court were to find that the language of the LBFO and Mayor’s memorandum required petitioner to be presented with the Notice, petitioner was entitled to decline to sign it. An employer cannot condition continued employment on the signing of an employment agreement which contains an unenforceable covenant, even if the employment agreement contains a severability provision. (See D'sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 929 [continued employment could not be conditioned on signing of employment agreement containing unenforceable covenant not to compete].) An employee who is terminated for refusing to sign an agreement containing an illegal provision would be terminated in violation of public policy. (Ibid.)

Petitioner refused to sign the Notice because he did not agree to pay for it.

(AR 259:21-260:4, 260:19-261:4, 273:12-274:6, 494.) Petitioner contends that he was not obligated to pay for testing under Labor Code § 2802.

Labor Code § 2802 states: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” Labor Code § 2804 states, “Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void, and this article shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State.”

On the face of Labor Code § 2802, the Department, petitioner’s employer, was required to indemnity petitioner for the cost of the testing, which the Department made necessary for petitioner to discharge his duties.

Respondents contend that Labor Code § 2802 applies only to employees in the private sector. (Stoetzl v. Dept. of Human Resources (2019) 7 Cal.5th 718, 752, quoting Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 330 [“‘Generally, ... provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees’”].) However, Labor Code § 2802 has been applied to the Department. (See In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498, 1502.) On the face of Labor Code § 2802, “employer” could refer to private or public employers.

Respondents contend that a city can require costs of material to be borne by the employees, citing In re Work Uniform Cases (2005) 133 Cal.App.4th 328. The Work Uniform case examined whether Labor Code § 2802 requires public entity employers to pay for the entire cost of purchasing and maintaining of uniforms required for work. (Id. at 334.) The Court of Appeal examined whether Labor Code § 2802 superseded the plenary authority given to charter cities under Article XI, Section 5 of the California Constitution to provide for the compensation of municipal employees in their charters. (Id. at 335.) As pertinent to this proceeding, Los Angeles is a charter city. (See Official City of Los Angeles Charter, found at https://codelibrary.amlegal.com/codes/los_angeles/latest/laac/0-0-0-2.) Under the California Constitution, with respect to municipal affairs, the city charter supersedes all other contradictory laws. (Ibid.)

Based on case law finding that payment for employee uniforms is compensation because the employee would otherwise have to pay those costs, the Court of Appeal found that Labor Code § 2802 conflicted with a municipality’s power to provide for compensation under the California Constitution. (Id. at 338.) The Court of Appeal also determined that prevailing wage requirements were not a matter of statewide concern. (Id. at 339-40.)

The Work Uniform case is inapposite. Arguably, reimbursement for COVID-19 constitutes compensation because the City determined that unvaccinated employees who were seeking a vaccination exemption were required to submit to COVID-19 testing. Absent Labor Code § 2802, the employees would bear the cost of testing. However, unlike the issue of uniforms, COVID-19 was not a municipal affair but an issue of statewide concern. “[G]eneral laws seeking to accomplish an objective of statewide concern may prevail over conflicting local regulations even if they impinge to a limited extent upon some phase of local control.” (Baggett v. Gates (1982) 32 Cal.3d 128, 139.) The purpose of the Ordinance was to “prevent the spread of COVID-19.” (AR 487.) The spread of COVID-19 was not limited to the Department’s jurisdiction but affected nonresident owners of property and businesses within the City and nonresidents who visited the City. (See Baggett, 32 Cal.3d at 140 [finding Public Safety Officers' Procedural Bill of Rights Act was a matter of statewide concern and accordingly may be applied to charter cities].)

“[T]he broad purpose of Labor Code section 2802 is to require an employer to bear all of the costs inherent in conducting its business and to indemnify employees from costs incurred in the discharge of their duties for the employer's benefit.” (In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498, 1506.) “‘California has a strong public policy that favors the indemnification (and defense) of employees by their employers for claims and liabilities resulting from the employees' acts within the course and scope of their employment.’” (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 952, quoting Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) ¶ 3:1.) Labor Code § 2802 required that employees should not be forced to bear the cost of testing at the expense of preventing the spread of COVID-19.

Respondents contend that, even if Labor Code § 2802 applied to the City, the statute did not require the City to advance the cost of testing or make testing available for free. Under this theory, the City would have petitioner bear the cost of testing pending any later judicial determination that Labor Code § 2802 requires the City to bear the cost. Under Labor Code § 2802, employees cannot bear the costs of testing, even on a temporary basis pending reimbursement of the costs. Moreover, had petitioner signed the Notice, the City could argue that petitioner agreed to “reimburse the City $260 per pay period for four tests at $65 each” during the exemption review process, either through a paycheck deduction or payment of invoice. (AR 491, 493.) The City could argue that petitioner waived the protection of Labor Code § 2802. (Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 676, fn. 4 [defining waiver as “intentional relinquishment or abandonment of known right].) Under Labor Code § 2804, the agreement for employees to bear the cost of testing, including in advance of testing, is void.

Respondents argue that the Ordinance provided for severability. (AR 476; LAAC § 4.705.) However, the Notice did not contain any severability provision. Under Labor Code § 2804, the Notice is null and void.

For the foregoing reasons, petitioner should not have been presented with the Notice or have been required to sign it. Even if the presentation of the Notice to petitioner was proper, the Notice was null and void. Accordingly, termination of petitioner’s employment on account of his refusal to sign the Notice was a prejudicial abuse of discretion.

3. Failure to Submit to COVID-19 Testing

Petitioner was also terminated because he did not submit to COVID-19 testing, including by signing up with Bluestone and authorizing his payment or invoicing of the cost of testing. Based on the terms of the Notice, petitioner would have been expected to pay for testing pending the exemption review process. (AR 491, 493, 494.) Because forcing petitioner to bear the costs of testing was unlawful, petitioner could not be terminated for submitting to testing on the terms required by the City.

V. Conclusion

Based on the Court’s exercise of independent judgment, the Court finds that the termination of the employment of petitioner Michael Parks was a prejudicial abuse of discretion.

The petition is GRANTED. Respondents City of Los Angeles and Michel Moore are ordered to restore petitioner Michael Parks to his prior position as Police Officer II with backpay. Respondents are also ordered to set aside the Board of Rights’ finding of guilt on Count 1 set forth in the Complaint and Relief from Duty. (AR 530, 891.) Respondents are also ordered to remove the record of the petitioner’s charge of misconduct, the proposed disciplinary penalty, any other adverse comments, and all references to the Complaint, investigation, and adjudication of these matters from petitioner's personnel packages and all other department records, and to maintain said documents in sealed envelopes separate and apart from any and all of petitioner's personnel and employment records.

Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.

Petitioner’s entitlement of costs and attorney fees shall be determined by future filings or motions in the instant proceeding.