Judge Holly J. Fujie, Case Number: 23STCV10666, Date: 2023-10-25 Tentative Ruling

This case arises out of allegations of religious discrimination. Mauricio Quinto (“Plaintiff”) files suit against his employer, Defendant LACOE for violating his right to religious freedom. Plaintiff identifies as a Christian. Plaintiff is an experienced academic counselor and during the 2020-2021 school year was employed by Defendant. (Complaint, 2:3 and 10-11.) During his employment, Plaintiff elected not to receive the COVID-19 vaccine based on his religious beliefs. (Complaint, 2:3-5.)

On August 10, 2021, the Superintendent issued an email informing staff of the policy that all employees would be required to show proof of vaccination or submit to weekly COVID-19 testing. (Complaint ¶ 16.) Defendant notified Plaintiff on September 2, 2021 that because Plaintiff had not submitted proof of vaccination, he would be required to begin weekly testing on September 7, 2021. (Complaint, ¶ 17.) A subsequent policy, Policy 4060, promulgated by the Superintendent regarding COVID-19 vaccination stated that Defendant would consider exceptions to the policy on a case-by-case basis, which may include accommodations in accordance with the subsequent Policy 4060. (Complaint, ¶ 18.) Additionally, Policy 4060 stated that failure to submit proof of full vaccination by the stated deadline would subject a LACOE staff member to unpaid leave and/or remote work until proof of vaccination was submitted. (Id. ¶ 19.) Under Policy 4060, failure to provide proof of full vaccination by November 30, 2021, even after unpaid leave, would subject a LACOE staff member to discipline, up to and including being fired. (Id. ¶ 19.)

Plaintiff requested a religious exemption and accommodation from the policy on September 24, 2021, based on his religious beliefs. (Complaint, ¶ 23.) That request was denied. (Id. at ¶ 26 and ¶ 31.) On November 1, 2021, Defendant placed Plaintiff on an involuntary, indefinite unpaid leave. (Id., ¶ 33.) On November 5, 2021, Plaintiff met with LACOE officials and a union representative. (Id., ¶ 34.) At this meeting, LACOE rejected each of Plaintiff’s requested accommodations. (Id., ¶¶ 35-36.) On December 9, 2021, LACOE HR emailed Plaintiff that he had exhausted all his accrued sick leave time. (Id., ¶ 51.) Defendant placed Plaintiff on unpaid leave, during the months from November 1, 2021 to March 28, 2022. (Id., ¶ 53.) On January 9, 2022, the staff of Renaissance PAU, the unit where Plaintiff was employed, was informed that because of the rise in COVID-19 and infected employees, all traveling support staff should work remotely until the end of the month. (Id., ¶ 55.) Plaintiff asked to be included in those working remotely in January, but his request was denied. (Id., ¶ 56.) On March 25, 2022, Defendant emailed Plaintiff that all unvaccinated employees were required to return to work on Monday, March 28, 2022, with safety protocols in place. (Id., ¶ 58.) Plaintiff did so.

The initial Complaint was filed on May 11, 2023. The instant Demurrer and Motion to Strike were filed on August 21, 2023 by Defendant. Plaintiff filed their Opposition Papers on October 12, 2023. Defendant filed their Reply Papers on October 18, 2023.

Concurrently filed with their Opposition Papers is Plaintiff’s Request for Judicial Notice of a summary judgment ruling in the case Beverly Takala v. Healthnet of Cali., Inc. et al. with case number 22STCV07291. Defendant objects to the request citing four different grounds, including, California Rules of Court Rule 8.1115(a) which prohibits this Court from citing or relying on an opinion not certified for publication. Although the document may be judicially noticeable under CEC § 452(d)(1), the California Rules of Court make clear it is not to be relied upon. Moreover, as Defendant points out, taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374. Also see Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1.) The Court declines to take judicial notice of the opinion.

The Court notes in addition that the Beverly Takala case is inapposite. It does not involve a governmental entity that has immunity from suit as in the instant case, and merely finds that the issue of whether a religious belief is genuinely held was subject to summary judgment under the facts of that case. This Court’s decision is not based upon this issue.

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) Defense counsel states that they met and conferred with Plaintiff’s counsel but did not reach a resolution. Therefore, the requirements of CCP § 430.41(a) and CCP § 435.5 have been satisfied. The Court will now turn to the merits of the Demurrer and Motion to Strike.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

The Public Readiness and Emergency Preparedness Act (“PREP Act”) was signed into law in 2005 and, among other things, provides immunity from liability for claims of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to disease, threats, and conditions. (See generally, the PREP Act at hhs.gov. Also see 42 U.S.C. § 247(d) – 6(d).) Defendant argues that it, as a public entity, falls under the act as “covered persons” and are therefore immune from suit. The Court agrees.

In his Opposition Papers, Plaintiff argues that the PREP Act does not immunize Defendants from liability for employment discrimination and that whether discrimination has in fact occurred is another question of fact. Plaintiff also argues that the PREP Act was intended to protect against claims related to receiving a vaccine. (Opposition Papers, 9:5-6.) However, the wording of the Act is more expansive than Plaintiff’s reading: “a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure...” (42 U.S.C. § 247d-6d(a)(1).)

As Defendant argues, the LACOE falls within the definition of a “covered person” which includes a “program planner of such countermeasure”. 42 U.S.C., § 247d-6d(i)(2)(B)(iii). A “program planner” is further defined as “a State or local government, including an Indian tribe, a person employed by the State or local government, or other person who supervised or administered a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product, including a person who has established requirements, provided policy guidance, or supplied technical or scientific advice or assistance or provides a facility to administer or use a covered countermeasure.” (42 U.S.C., § 247d-6d(i)(6).) Therefore, the immunity applies, and Plaintiff’s claims are barred.

Government Code § 855.4(a) provides: “Neither a public entity nor a public employee is liable for an injury resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision whether the act was or was not to be performed was the result of the exercise of discretion vested in the public entity or the public employee, whether or not such discretion be abused.” (Gov. C. § 855.4.) Plaintiff contends that the GCA provides immunity to individuals under circumstances, not the public entities themselves, however, this interpretation contradicts the very wording of the statute.

Additionally, Plaintiff argues that FEHA functions as an exception to the general grant of immunity under the GCA, citing DeJung v. Superior Court (2008) 169 Cal.App.4^th 533, 547. First, the DeJung Court made this point specifically as to Government Code § 815.2(b), and not to § 855.4 which is immediately at issue here. Next, it should be noted that the context here, is very different from what the DeJung Court encountered, namely, that the incidents of concern here occurred during a pandemic where a public entity was attempting to promulgate policies in order to control the spread of a deadly disease. Finally, Defendant counters, arguing that when considering conflicting statutes, one of which provides for immunity, and the other which imposes liability, the statue for immunity prevails when no indication to the contrary exists in the legislative intent. (See Bitner v. Department of Corrections and Rehabilitation (2023) 87 Cal.App.5^th 1048, 1059 [“It is generally recognized that a statutory governmental immunity overrides a statute imposing liability.”].)

With that being said, the Court notes that Government Code § 855.4 specifically states that a public entity is not liable for an injury when its decision is made to promote the public health of the community by preventing disease and controlling the spread of that disease. That is the exact situation the Court has in front of it. The Court declines to extend that same immunity in Government Code § 815.2, as 815.2 is more general.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. Because the claims herein are based on a suit to which the government entity Defendant is immune, there is no reasonable possibility of successful amendment. Therefore, leave to amend is denied.

Because the Demurrer is sustained as to the entirety of the Complaint, the Motion to Strike is moot.

The Demurrer to Plaintiff’s Complaint filed by the Los Angeles County Office of Education is SUSTAINED in its entirety without leave to amend. The Motion to Strike is therefore MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court