Judge: Gail Killefer, Case: 23STCV02429, Date: 2023-11-29 Tentative Ruling

Case Number: 23STCV02429    Hearing Date: March 19, 2024    Dept: 37

HEARING DATE:                 Tuesday, March 19, 2024

CASE NUMBER:                   23STCV02429

CASE NAME:                        Douglas Smith v. Burbank Unified School District

MOVING PARTY:                 Defendant Burbank Unified School District

OPPOSING PARTY:             Plaintiff Douglas Smith

TRIAL DATE:                        18 February 2025

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike Third Amended Complaint

OPPOSITION:                        6 March 2024

REPLY:                                  12 March 2024

TENTATIVE:                         Defendant’s motion to strike portions of the TAC is granted with leave to amend. Plaintiff is granted __ days leave to amend. The court sets the OSC RE: Amended Complaint for _, at 8:30 a.m. Defendant to give notice.

Background

This action arises out of the employment of Douglas Smith (“Plaintiff”) with Burbank Unified School District (“Defendant”). Plaintiff was employed by the Defendant and worked as a teacher from August 1, 1992, until his employment was terminated on May 27, 2022. According to the original Complaint, Plaintiff alleges he requested a religious exemption as a reasonable accommodation from the Defendant’s September 12, 2021, Ordinance mandating COVID-19 vaccination for all employees (“Vaccination Ordinance”).

On September 12, 2021, an interactive dialogue was initiated for Plaintiff’s request for reasonable accommodation. Plaintiff’s request was submitted to Defendant. On October 11, 2021, Defendant acknowledged Plaintiff was entitled to religious accommodation and placed Plaintiff on an unpaid leave of absence. On May 27, 2022, Defendant terminated Plaintiff’s employment.

Plaintiff’s original Complaint alleged five causes of action: (1) religious discrimination in violation of the FEHA; (2) failure to prevent discrimination and retaliation in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to accommodate in violation of FEHA; and (5) failure to engage in the interactive process in violation of FEHA. Plaintiff filed a First Amended Complaint (“FAC”) alleging identical causes of action.

On June 6, 2023, the court sustained the demurrer to Plaintiff’s FAC but with leave to amend only the first, second, third, and fourth causes of action. On July 5, 2023, Plaintiff filed the Second Amended Complaint (“SAC”). The SAC alleges four causes of action for (1) unlawful discrimination based upon religion and religious creed in violation of Gov. Code § 12940; (2) failure to prevent discrimination in violation of Gov. Code § 12940; (3) retaliation in violation of Gov. Code § 12940; and (4) failure to accommodate religion and religious creed in violation of Gov. Code § 12940.

On December 11, 2023, the court sustained Defendant’s demurrer to the fourth cause of action without leave to amend and sustained the demurrer to the first, second, and third causes of action with 20 days leave to amend.

On January 1, 2024, Plaintiff filed the Third Amended Complaint (“TAC”) alleging three causes of action: (1) unlawful discrimination based upon religion and religious creed in violation of Gov. Code § 12940; (2) failure to prevent discrimination in violation of Gov. Code § 12940;  and (3) retaliation in violation of Gov. Code § 12940. Defendants now move to strike portions of the TAC. Plaintiffs’ oppose the Motion. The matter is now before the court.

Discussion

I.         Legal Standard¿¿ 

A.        Motion to Strike 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Motion to Strike[1]

Defendant seeks to strike the following from the TAC: 

Portions of Paragraph 14 (4:25-5:9) which are underlined:

• 14. [First sentence omitted.] As an alternative to the District’s action of placing Mr. Smith on indefinite unpaid leave, Mr. Smith requested the District to conduct routine PCR based testing via spit sampling to comply with the District’s safety measures of maintaining a covid free environment. A true and correct copy of the Center of Disease Control (“CDC”) literature supporting saliva sampling is attached hereto as “Exhibit B.” This alternative accommodation would have been just as effective as swab testing and would not have resulted in a substantial increase in costs to Defendant BUSD because the District already mandated weekly routine testing for all District employees and provided paid testing kits to its Employees. The District required its employees to test every Sunday and upload their results by noon on the Sunday prior to the beginning of every school week. The District also provided on-site testing clinics for its employees.

Paragraph 15 (5:10-5:22), which states:

• In addition to routine testing, the District was simply able to provide Mr. Smith with a KN95 face mask (“Face Masks”) that was to be worn at all times during his live teaching sessions amongst live students. In response to the California Department of Public Health’s (“CDPH”) masking requirement for K12 schools, the District mandated all employees and students to wear the Face Masks while on campus grounds regardless of vaccination status. A true and correct copy of the CDPH’s Requirements for Universal Masking Indoors at K-12 Schools is attached hereto as “Exhibit C.” The Face Masks were sufficient enough to minimize Covid-19 exposure amongst students and staff. Merely ingesting the Covid-19 vaccines were deemed to be insufficient to contain the spread of the virus since vaccinated individuals were still at risk for infection and were still contagious. See Exhibit C. The only approach to minimize Covid exposure during this time was: 1) wearing a Face Mask; and 2) conduct routine PCR testing. Mr. Smith was more than willing to wear a Face Mask and participate in the District’s routine PCR testing protocol.

Paragraph 16 (5:23-6:11), which states:

• 16. On January 12, 2022, the CDPH published a guidance specifically for K-12 schools in California. The CDPH addresses universal masking in the guidance as follows:

“Masks are one of the most effective and simplest safety mitigation layers to prevent in-school transmission of COVID-19. SARS-CoV-2, the virus that causes COVID-19, is primarily transmitted via airborne particles. Masks limit the spread of the virus in the air from infected persons and protect others exposed to these particles. Universal masking indoors in K-12 schools is recommended by the American Academy of Pediatrics and by the CDC in its Guidance for COVID-19 Prevention in K-12 Schools (updated July 27, 2021). As the CDC noted: "CDC recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status. Children should return to full-time in-person learning in the fall with layered prevention strategies in place."

Universal masking prevents outbreaks and permits modified quarantine under certain conditions in K-12 settings, supporting more instructional time and minimizing missed school days for students. Additionally, universal masking indoors is critical to enabling all schools to offer and provide full in-person instruction to all students without minimum physical distancing requirements at the outset of the school year.” See Exhibit C.

Paragraph 17 (6:12-6:17), which states:

• 17. In Mr. Smith’s case, he was able to simply wear a Face Mask and engage in routine PCR testing that collectively would have been effective enough to minimize any risks of spreading Covid 19 amongst other students and staff members and thereby allowing him to safely resume live teaching. Additionally, Mr. Smith would have been able to use a District provided microphone to help project his voice amongst his students while wearing the required Face Mask during live classroom sessions.

Paragraph 18 (6:18-6:19), which states:

• Mr. Smith was entitled to the above-mentioned accommodation to safely teach live students as a paid employee of the District.

Because a demurrer does not lie in a portion of a cause of action, a motion to strike is the proper vehicle to strike portions of a pleading or cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

In sustaining the demurrer to the FAC on June 6, 2023, the court explained that in California, in Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, the Court of Appeal ruled that mandatory vaccination did not violate the plaintiffs’ right to privacy because “’compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases’” and society has a compelling interest in “fighting the spread of contagious diseases through mandatory vaccination of school-aged children.’ [Citations]” (Id. at pp. 933-994.) Similarly, in Jacobson v. Massachusetts (1905) 197 U.S. 11, the United States Supreme Court held that “vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because in its or their opinion that particular method was—perhaps, or possibly—not the best either for children or adults.” (Id. at p. 35.)

Given the interest of the State and Defendant in preventing disease, in considering the demurrer to the SAC, the court noted that “If Plaintiff wants the pleadings to focus on his being allowed to continue teaching to an entire classroom of children while unvaccinated during an international pandemic, which he contends could be done ‘safely,’ then Plaintiff must set forth facts – not conclusions that support this allegation.” (Order of 11/29/2023.)

A motion to strike can be used as a “scalpel,” to cut out any “irrelevant, false or improper matters inserted in any pleading.” (CCP § 436(a).) CCP § 431.10(b) defines “immaterial” matters to include: “(1) An allegation not essential to the claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”

The relevant portions of Paragraph 14 of the TAC allege PCR based testing is as effective as swab testing and that the District was already swab testing employs every Sunday and uploading their results by noon of the Sunday prior to the beginning of every school week. (TAC ¶ 14.) Plaintiff fails to state facts as to why his religious beliefs were opposed to swab testing and why PCR Testing would have accommodated his religious beliefs. Plaintiff also fails to allege that PCR testing along with a mask mandate would have been just as safe or safer than routine swab testing and a vaccine mandate, such that Plaintiff’s requested accommodation was reasonable and Defendant’s refusal to provide such an accommodation is evidence of discriminatory animus.  (TAC ¶¶ 11, 14.)

Paragraph 15 states that Plaintiff would have been able to teach with a KN95 mask and that the District in response California Department of Public Health (CDPH) directive mandated all employees and students swear face masks. (TAC ¶ 15.) There are no allegations to show that Plaintiff requested to wear a KN95 mask and that wearing a mask along with routine PCR testing was just as safe, if not a safer alternative, then the District’s policy of a vaccine mandate, accompanied by routine swab testing and a universal masking requirement such that Plaintiff’s requested accommodation was reasonable under the circumstances. (TAC ¶¶ 11, 14, 15.)

Paragraph 16 relates to CDPH’s guidance that masks were the most effective and simplest means to mitigate COVID-19 infections in school, Exhibit C clarifies that such advice is given because “COVID-19 prevention strategies in K-12 schools are designed to protect people who are not fully vaccinated. Almost all K-6th graders are unvaccinated and will not be eligible for vaccines at the onset of the 2021-22 school year.” (TAC Ex. C.) The TAC alleges that the school already had a universal mask mandate. (TAC ¶ 15.) While masks are “one of the most effect and simplest safety mitigation” effort to prevent the transmission of COVID-19, Plaintiff fails to state facts to show that masks alone or in combination with PCR testing are more effective or just as effective as the Defendants routine swab testing, universal mask mandate, and vaccination mandate. (TAC ¶¶ 11, 14, 15.) Without such facts, Paragraph 16 is superfluous.

Paragraph 17 alleges that Plaintiff’s wearing a face mask and engaging in routine PCR testing “collectively would have been effective enough” to minimize the risk of COVID-19. (TAC ¶ 17.) However, Plaintiff failed to explain why he was opposed to swab testing, sufficient to show that his requested accommodation was reasonable and that his objections to swab testing related to his religious objections. “An employee cannot demand clairvoyance of his employer.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.)¿Plaintiff fails to allege that as a reasonable accommodation he not only requested PCR Testing (TAC ¶ 14), but that plaintiff specifically requested that PCR Testing and KN95 masks be provided together as a reasonable accommodation to for his religious beliefs and that Defendant denied both requested accommodations in violation of Plaintiff’s religious beliefs despite granting the same accommodations to other teachers. “ ‘[T]he employee can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.’ ” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.) 

Paragraph 18 is conclusory and merely states that wearing a face-mask and routine PCR testing collectively was an “accommodation to safely teach live students as a paid employee of the District” without stating facts that both accommodations were collectively requested by Plaintiff, both were denied by the district, and said accommodations would have permitted Plaintiff to teach in person to students in a manner that was as safe as or safer than the Defendants’ existing policies of routine swab testing, universal mask mandate, and vaccine mandate. The court is aware that Plaintiff has alleged that another teacher was granted a vaccine exemption due to “medical-based” reasons, but Plaintiff has not alleged that being exempt from the vaccine mandate was his requested accommodation. Instead, Plaintiff asserts that Mr. Khodagolian's requested accommodation was the same as his, a “request to continue teaching live students.” (TAC ¶ 18.) The TAC is devoid of facts to show how Defendant permitted Mr. Khodagolian to teach without being vaccinated and if such accommodation was provided without any safety measures or with safety measures that were in line or similar to the safety measures Plaintiff proposed in his request for religious accommodations to the vaccine mandate. Without such facts, Paragraph 18 is conclusory.

Based on the above, the motion to strike is granted. Plaintiff has requested leave to amend without providing facts as to how Plaintiff intends to remedy the above deficiencies. The court has outlined the deficiencies in Plaintiff’s pleadings for the third time and is not inclined to grant leave to amend a fourth time. However, in the interest of justice, the court grants Plaintiff leave to amend to fix the above-noted deficiencies.

Conclusion

Defendant’s motion to strike portions of the TAC is granted with leave to amend. Plaintiff is granted __ days leave to amend. The court sets the OSC RE: Amended Complaint for _, at 8:30 a.m. Defendant to give notice.