Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV00032, Date: 2023-11-22 Tentative Ruling

Case Number: 22SMCV00032    Hearing Date: November 22, 2023    Dept: N

TENTATIVE RULING

Defendants Santa Monica Community College District and Susan Fila’s Demurrers to Second Amended Complaint are SUSTAINED without leave to amend.

Defendants Santa Monica Community College District and Susan Fila shall prepare, serve, and submit a proposed judgment as per statute.

Defendants Santa Monica Community College District and Susan Fila to give notice.

REASONING

Request for Judicial Notice

Defendants Santa Monica Community College District and Susan Fila (“Defendants”) request judicial notice of the transcript from the September 13, 2023, hearing in this action, relating to Defendants’ current demurrer. Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivision (d).

Legal Standard

“[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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

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”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Defendants demur to each of the three causes of action alleged in Plaintiff Carter Sparks (“Plaintiff”)’s Second Amended Complaint.

First Cause of Action: Declaratory Relief/Article I Section 1 of Cal. Constitution

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) “[T]here is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)

In Plaintiff’s pleading, he takes issue with Defendant Santa Monica Community College District (“the District”)’s policy requiring vaccination with the COVID-19 vaccine to attend classes in person during the 2021 to 2022 school year and Defendants’ denial of Plaintiff’s request for an exemption from the requirement. (See Second Am. Compl. ¶¶ 2-4.) Plaintiff states in his Second Amended Complaint that the District has since rescinded this vaccine policy. (Second Am. Compl. ¶¶ 5, 35.) Plaintiff seeks a judicial determination as to the constitutionality of a COVID-19 vaccine policy and whether Plaintiff’s rights were violated due to the same. (Second Am. Compl. ¶ 47.)

Plaintiff states that rescission of the COVID-19 vaccination requirement policy has not mooted the present case because the District “enforced it for a year and could always reinstitute it.” (Second Am. Compl. ¶ 35.) However, a simple allegation of a legal conclusion that this case is not moot does not require the Court to so conclude. Thus, the Court ordered supplemental briefing on the issue of mootness. Plaintiff’s supplemental brief consists mostly of statements about the unfairness of the vaccine requirement and its implementation without addressing the Court’s question about mootness. Plaintiff states only that the issue of privacy “deserves to be litigated,” and he seeks “to clarify that community colleges in California do not have the power to require vaccination.” (Pl.’s Supplemental Br., p. 3, ll. 9, 17.) Plaintiff concedes in his supplemental brief that he “no longer attends Santa Monica College” because he “dropped out of school.” (Pl.’s Supplemental Br., p. 3, ll. 13-14.)

It is axiomatic that “a case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Association v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) It is the general rule that a judicial tribunal only “decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

Several federal circuit courts have examined the issue of whether there is a reasonable expectation that COVID-19-related mandates and policies will be reinstituted, and those courts have concluded there is no reasonable possibility that the alleged violations in those actions will recur because those COVID-19 mandates were rescinded not in response to lawsuits but because of changed circumstances which remain the same since such mandates were rescinded. (See, e.g., Brach v. Newsom (9th Cir. 2022) 38 F.4th 6, 15 [“The challenged orders have long since been rescinded . . . and the trajectory of the pandemic has been altered by the introduction of vaccines . . . and expanded treatment options”]; Resurrection School v. Hertel (6th Cir. 2022) 35 F.4th 524, 528-529 [“the State rescinded the mask mandate not in response to this lawsuit, but eight months later, along with several other pandemic-related orders,” “the relevant circumstances have changed dramatically since . . . statewide mask mandate[s]” were imposed “in October 2020” when “nobody was vaccinated and treatments were less effective than they are now,” and “[t]he relevant circumstances now, in contrast, are largely the same circumstances that prompted the State to rescind the mandate”]; Clark v. Governor of New Jersey (3rd Cir. 2022) 53 F.4th 769, 778 [“Our knowledge of the virus and its vectors of transmission, the rollout of vaccines, and the availability of therapeutic responses to infection have totally changed the nature of the disease itself, our understanding of it, and our response to it. The accumulation of those changed circumstances thus make the return of the same pandemic and the same restrictions unlikely”]; Eden, LLC v. Justice (4th Cir. 2022) 36 F.4th 166, 171 [“circumstances have changed, and with additional time, it has become clear that there is ‘no reasonable expectation’ that COVID-19 restrictions like the ones to which the plaintiffs object will be reimposed”]; Health Freedom Defense Fund v. President of United States (11th Cir. 2023) 71 F.4th 888, 892 [“there is no reasonable basis to expect the Mandate will be reinstated if this case is rendered moot. By its own terms, the Mandate expired after the HHS Secretary declared that the public health emergency has ended, and there is no hint that this decision was an effort to avoid further litigation”].)

While those opinions are not binding on this Court, they provide guidance as to whether the policy at issue here may be considered moot. The Court finds that Plaintiff’s first cause of action for declaratory relief, as well as his prayer for declaratory relief within the third cause of action, are moot given that the policy requiring vaccination with the COVID-19 vaccine to attend classes in person has been rescinded, there is no reasonable expectation that such a mandate will likely return, and Plaintiff is no longer a student at Santa Monica College. There is no basis for the Court to conclude that any exception applies, i.e., the voluntary cessation exception does not apply because the public health landscape has fundamentally changed since the vaccination policy was put in place, such that there is no reasonable expectation that the challenged conduct will recur (Center for Local Government Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1157 [“The voluntary cessation of allegedly wrongful conduct destroys the justiciability of a controversy and renders an action moot unless there is a reasonable expectation the allegedly wrongful conduct will be repeated”]), and there is no basis to conclude that the issues are capable of repetition yet evading review because, again, there is no reasonable expectation that the policy will be issued again and that Plaintiff will be subject to the policy (In re William M. (1970) 3 Cal.3d 16, 23 [“if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot”]). Accordingly, the District’s demurrer to the first cause of action is SUSTAINED without leave to amend.

Second Cause of Action: 42 U.S.C. § 1983/Equal Protection

Title 42 United States Code section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred,” and “[i]t allows an action against state or local officials for intentional” discrimination “as a violation of the right to ‘the equal protection of the laws’ protected under the Fourteenth Amendment to the federal Constitution. The two essential elements of a 42 U.S.C. section 1983 claim are (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1402, quotation marks, brackets, ellipses, and citations omitted.)

In the second cause of action, Plaintiff alleges he “was one of 140 students who attended the College and who sought a religious accommodation under the District’s COVID-19 vaccine policy” and Plaintiff “was similarly situated to the other students who sought a religious accommodation.” (Second Am. Compl. ¶ 52.) Plaintiff alleges that “Defendants gave accommodations to 62 of these students, but they did not give one to [Plaintiff],” and Defendant Susan Fila “intentionally treated [Plaintiff] differently than the 62 students who received religious accommodations.” (Second Am. Compl. ¶¶ 53-54.)

Plaintiff argues that his claim here is based on an allegation that he was treated differently than other students who sought a religious accommodation because he is Catholic (Opp’n, p. 9, ll. 2-3), but this is not stated in the Second Amended Complaint. Rather, Plaintiff states in the Second Amended Complaint that he was not entitled to a religious accommodation because “being Catholic does not entitle someone to a religious exemption from vaccination,” and [u]nlike some religions (e.g., Dutch Reformed Congregations, Faith Tabernacle, etc.), the Catholic Church has no theological objection to vaccination.” (Second Am. Compl. ¶ 31.) This could not support a finding by the trier of fact of intentional discrimination based on Plaintiff being Catholic because the letter states only that the Catholic Church has no theological objection to vaccination, such that being Catholic did not entitled Plaintiff to a religious exemption.

Plaintiff contends he is not alleging this claim under a “class of one” theory, but if he were, the claim has been sufficiently stated. “[A] plaintiff who does not allege membership in a class or group may state a claim as a class of one.” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 857, quotation marks omitted.) “[A] ‘class of one’ equal protection claim is sufficient if the plaintiff alleges that (1) the plaintiff was treated differently from other similarly situated persons, (2) the difference in treatment was intentional, and (3) there was no rational basis for the difference in treatment.” (Id. at p. 858.) It is “well established is that individualized discretionary decisions will not support a class of one claim” because “the rule that people should be treated alike, under like circumstances and conditions is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.” (Squires v. City of Eureka (2014) 231 Cal.App.4th 577, 595.) Plaintiff alleges that Fila denied Plaintiff’s request for a religious accommodation while giving accommodations to other students (Second Am. Compl. ¶ 53), thereby indicating that Fila exercised discretion in determining the application of exemptions for Plaintiff and other individuals. It follows that Plaintiff also cannot maintain a “class of one” claim because Fila’s decision was a discretionary one.

Further, Plaintiff also fails to allege how he was treated differently from other similarly situated persons, providing only a conclusory statement that he “was similarly situated to the other students who sought a religious accommodation” (Second Am. Compl. ¶ 52), and he fails to allege the nature of the damages he suffered besides providing a conclusory statement that he “suffered damages” (Second Am. Compl. ¶ 56). Plaintiff also fails to allege that Fila did not have a rational basis for the conduct at issue. “Under the rational basis test, courts must presume the constitutionality of government action if it is plausible that there were legitimate reasons for the action. In other words, the plaintiff must show that the difference in treatment was ‘so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the government’s actions were irrational.” (Squires v. City of Eureka, supra, 231 Cal.App.4th at p. 595.) Plaintiff alleges there was no rational basis for the treatment because if any unvaccinated students could attend class safely in person, then all students should have been allowed (Second Am. Compl. ¶ 55), but this statement does not support a finding that there was no rational basis for the conduct, i.e., Plaintiff provides only a conclusory statement that unvaccinated students safely attended classes without discussing whether other restrictions were imposed to ensure safety.

Given that Plaintiff has failed to state an equal protection claim based on his Catholic beliefs or under a “class of one” theory, and the Court lacks a basis to conclude that this claim can be amended to state a sufficient claim under either of these theories, Defendant Fila’s demurrer to the second cause of action is SUSTAINED without leave to amend.

Third Cause of Action: Violation of Ed. Code § 220 and Gov’t Code §11135

Education Code section 220 provides that “[n]o person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid.” Government Code section 11135 provides that “[n]o person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.”

Notably, Plaintiff concedes that this claim “primarily seeks declaratory relief” (Opp’n, p. 11, l. 1); as discussed above, declaratory relief is improper here, as Plaintiff’s claim for declaratory relief has been rendered moot. Plaintiff alleges that he “suffered damages” as well (Second Am. Compl. ¶ 61), but his claim here mirrors the allegations of his second cause of action for equal protection except that he brings this claim against the District. As discussed above, Plaintiff has not sufficiently stated a claim for discrimination. Accordingly, the District’s demurrer to the third cause of action is SUSTAINED without leave to amend.