Judge Michael P. Linfield, Case Number: 23STCV11417, Date: 2023-10-19 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV11417, Date: 2023-10-19 Tentative Ruling

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SUBJECT: Motion to Strike Portions of Complaint Pursuant to CCP § 425.16

On May 22, 2023, Plaintiff Brent Sexton filed his Complaint against Defendant Apple Studios LLC on causes of action arising from Defendant’s withdrawal of an employment offer it previously made to Plaintiff.

On August 18, 2023, Defendant filed its Special Motion to Strike Plaintiff’s Complaint Pursuant to California Anti-SLAPP Statute, Civ. Proc. Code § 425.16 (“Anti-SLAPP Motion”). In support of its Anti-SLAPP Motion, Defendant concurrently filed: (1) Request for Judicial Notice; (2) Compendium of Evidence; (3) Proposed Order; and (4) Proof of Service.

On September 13, 2023, Plaintiff filed his Opposition to the Anti-SLAPP Motion. In support of his Opposition, Plaintiff concurrently filed: (1) Declaration of Brent Sexton; (2) Declaration of Sean Kaufman; (3) Declaration of Scott J. Street; (4) Objections to Evidence; and (5) Proof of Service.

On September 18, 2023, Defendant filed its Reply regarding the Anti-SLAPP Motion. In support of his Reply, Defendant concurrently filed: (1) Responses to Plaintiff’s Evidentiary Objections; (2) Objections to Plaintiff’s Evidence; and (3) Proposed Order on Defendant’s Objections.

Plaintiff objects to Defendant’s Exhibits 19 through 36, which are included as part of the Declaration of Rebecca Benyamin in Defendant’s Compendium of Evidence. Exhibits 19 through 36 are among the items of which Defendants requests the Court take judicial notice.

These items are all webpages of the Centers for Disease Control and Prevention (“CDC”), the Food and Drug Administration (“FDA”), and California Department of Public Health (“CDPH”). The webpages are of new releases, scientific briefs, and other items promulgated by these public agencies.

Defendant has responded to these objections, arguing that it is “not asking the Court to take judicial notice of the truth of the facts contained in the articles and news reports . . . only seeking judicial notice of the fact that the articles and news reports were published.” (Responses to Plaintiff’s Evidentiary Objections, p. 2:10–12.)

The Court DENIES Plaintiff’s evidentiary objections to Defendant’s Exhibits 19 through 36. Of course, “[w]hile courts may notice official acts and public records, we do not take judicial notice of the truth of all matters stated therein.” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [internal quotations omitted].)

Defendant filed evidentiary objections to the evidence submitted in support of Plaintiff’s Opposition. The following are the Court’s rulings on these objections.

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED
7		OVERRULED
8	SUSTAINED as to ¶¶ 2, 3	OVERRULED as to ¶ 4
9		OVERRULED
10		OVERRULED
11	SUSTAINED as to remainder of paragraph	OVERRULED As to 1^st sentence
12	SUSTAINED
13		OVERRULED
14		OVERRULED
15		OVERRULED
16		OVERRULED
17		OVERRULED
18		OVERRULED
19		OVERRULED
20		OVERRULED
21		OVERRULED
22		OVERRULED
23	SUSTAINED
24		OVERRULED
25		OVERRULED
26		OVERRULED
27		OVERRULED
28	SUSTAINED
29	SUSTAINED
30		OVERRULED
31		OVERRULED
32	SUSTAINED
33		OVERRULED
34	SUSTAINED
35	SUSTAINED
36		OVERRULED

Defendant requests that the Court take judicial notice of a variety of items, including: (1) a union agreement; (2) news articles; and (3) the aforementioned Exhibits 19 through 36.

As indicated above, the Court overrules the objections to Exhibits 19 through 36. The Court grants judicial notice of these items for the reasons previously discussed.

In addition, the Court DENIES judicial notice of the union agreement and news articles. These items are not judicially noticeable.

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)

“In light of the foregoing, we may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, emphases in original.)

Defendant moves the Court to strike Plaintiff’s Complaint and award Defendant reasonable attorneys’ fees and costs. (Anti-SLAPP Motion, p. 23:22–24.)

Defendant argues: (1) that Plaintiff’s causes of action arise from Plaintiff’s protected activity in connection with a matter of public interest; (2) that Plaintiff cannot demonstrate a probability of prevailing. (Anti-SLAPP Motion, pp. 13:20–21, 16:6.)

Plaintiff opposes the Motion, arguing: (1) that Defendant did not engage in protected activity when it withdrew its offer to Plaintiff; (2) that Plaintiff’s accommodation was not a matter of public concern; (3) that Plaintiff’s employment discrimination claims have merit; (4) that Plaintiff’s state constitutional privacy claim also has merit; and (5) that Defendant does not have a First Amendment right to discriminate. (Opposition, pp. 11:12, 14:22, 16:18, 19:7, 20:11.)

“The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted. To determine whether a claim arises from protected activity, courts must consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of acts protected by the anti-SLAPP statute.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 [cleaned up], emphasis in original.)

“As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” (Tamkin v. CBS Broad., Inc. (2011) 193 Cal.App.4th 133, 143, citation omitted.)

There is “a two-step inquiry for deciding whether the activity from which a lawsuit arises falls within section 425.16(e)(4)'s protection: first, we ask what public issue or issues the challenged activity implicates, and second, we ask whether the challenged activity contributes to public discussion of any such issue. If the answer to the second question is yes, then the protections of the anti-SLAPP statute are triggered, and the plaintiff in the underlying lawsuit must establish ‘a probability’ of prevailing before the action may proceed.” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243, citing FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150; Code Civ. Proc., § 425.16, subd. (b).)

“At this stage, the question is only whether a defendant has made out a prima facie case that activity underlying a plaintiff's claims is statutorily protected, not whether it has shown its acts are ultimately lawful. . . . Consistent with this understanding, at the first step of the anti-SLAPP analysis, we routinely have examined the conduct of defendants without relying on whatever improper motive the plaintiff alleged.” (Wilson, supra, 7 Cal.5th at p. 888, citations omitted.)

Plaintiff pleads four causes of action: one cause of action for declaratory relief, and three causes of action for various violations of the Fair Employment and Housing Act (“FEHA”). (Complaint, pp. 8, 11, 12, 13.)

The Parties do not dispute that the conduct at issue is the withdrawal of Defendant’s offer of employment after Plaintiff had already accepted the offer. (Anti-SLAPP Motion, p. 14:4-6 [“Here, conduct at the heart of Sexton’s Complaint is the decision not to cast him on Manhunt, and this decision supplies an essential element of each of Sexton’s causes of action.”]; Opposition, pp. 11:9-11 [“The motion should be denied because Apple was not engaging in constitutionally protected activity when it failed to accommodate Mr. Sexton’s disability and withdrew his job offer because he was unable to take the COVID-19 shot.”].)

Their only dispute on the first prong is whether this conduct is protected conduct. The answer to the question is yes, the withdrawal of this offer for an on-screen role in a television series was protected conduct.

“The creation of a television show is an exercise of free speech.” (Tamkin, supra, 193 Cal.App.4th 133, 143, citation omitted.)

A casting decision related to the creation of a television show “qualifies as a form of protected activity.” (Hunter v. CBS Broad. Inc. (2013) 221 Cal.App.4th 1510, 1521, citation omitted.) In Hunter, the Supreme Court held that a television network’s selections of certain weather anchors qualified as a form of protected activity because these were casting decisions that helped advance or assist First Amendment expression. (Id. at p. 1521.)

“Not every staffing decision . . . enjoys constitutional protection.” (Wilson, supra, 7 Cal.5th at p. 896.) In Wilson, the Supreme Court considered multiple grounds for whether a news organization engaged in protected activity when it fired a journalist. The Supreme Court held that the firing was a protected activity because it upheld journalistic values (due to claims of plagiarism), but that the firing was not protected on a more general basis because this journalist was a writer who lacked the authority to determine what would appear on the organization’s website. (Id. at pp. 896–898.)

Here, Plaintiff was cast as President Andrew Johnson on a show about the U.S. government’s search for John Wilkes Booth after Booth killed President Abraham Lincoln. (Complaint, ¶ 28; Compendium of Evidence, Decl. Gorman, ¶ 5 and Exh. 6.) Unlike the journalist without editorial power in Wilson, Plaintiff was cast in an important, on-screen role. This decision is more akin to the facts in Hunter, which involved the casting of on-screen weather anchors, than to the facts in Wilson. The facts would have been more akin to Wilson had the casting been for an “extra” or an off-screen employee without editorial power. It matters not that the organization in Hunter had declined to hire someone whereas Defendant withdrew its offer of employment (or, more accurately, fired) Plaintiff. Both are protected casting decisions, and the facts in Wilson indicate as much.

Given that this protected activity involves subdivision (e)(4) of Code of Civil Procedure section 425.16, the Court applies the FilmOn.com test. (Geiser, supra, 13 Cal.5th at p. 1243.) Here, it is clear that a historical television series that considers the search for a notorious historical figure (1) involves a public issue and (2) contributes to public discussion of that issue. It worth noting that unlike in FilmOn.com, which involved a confidential report, Defendant’s firing of Plaintiff (which does not appear to have been public information at the time it occurred) was ultimately an act that shaped its television show’s editorial direction. (FilmOn.com, supra, 7 Cal.5th at p. 154.)

Thus, Defendant meets its burden in demonstrating that its act of firing Plaintiff was protected activity.

The Court considers each of the causes of action when analyzing whether Plaintiff has met his burden to demonstrate a probability of prevailing. (Bonni v. St. Joseph Health Sys. (2021) 11 Cal.5th 995, 1010.)

“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.)

A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief.” (Cal. Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1624.) A duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Ass’n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Tech. of Am., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.)

Here, Plaintiff “desires a judicial declaration that [Defendant’s] Covid vaccine policy is unconstitutional and void, on its face and as applied to him, because it violates Article I, section 1 of the California Constitution.” (Complaint, ¶ 52.) Plaintiff asserts that he has a legally protected privacy interest — including a right to bodily autonomy and a reasonable expectation of privacy in his right to bodily autonomy — and that Defendant’s withdrawal of an employment offer because Plaintiff was not able to take a vaccine constituted a serious invasion of his right. (Id. at ¶¶ 45–46, 49.)

Defendant argues: (1) that Defendant’s vaccine policy is not unconstitutional on its face; (2) that Defendant’s vaccine policy is not unconstitutional as applied; (3) that Plaintiff had no legally protected privacy interest; (4) that Plaintiff did not have a reasonable expectation of privacy; (5) that there was no serious invasion of privacy; and (6) that the vaccine requirement in this situation was justified. (Anti-SLAPP Motion, pp. 16:17, 17:18, 18:1, 18:16, 19:7, 20:3.)

Plaintiff argues: (1) that he has the privacy interests pleaded; (2) that Defendant focused on federal constitutional cases whereas the state privacy law has a higher standard; and (3) that Defendant does not have a first amendment right to discriminate against Plaintiff. (Opposition, pp. 19:7, 19:23–27, 20:11.)

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, § 1.)

“[I]t is well established that the California Constitution ‘is, and always has been, a document of independent force’, and that the rights embodied in and protected by the state Constitution are not invariably identical to the rights contained in the federal Constitution. . . . Furthermore, with respect to the specific constitutional right at issue in this case--the constitutional right of privacy--there is a clear and substantial difference in the applicable language of the federal and state Constitutions. . . . Finally, and most significantly, not only is the state constitutional right of privacy embodied in explicit constitutional language not present in the federal Constitution, but past California cases establish that, in many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts.” (Am. Acad. of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325, quoting People v. Brisendine (1975) 13 Cal.3d 528, 549–550, other citations and emphasis omitted; reaffirmed in People v. Buza (2018) 4 Cal.5th 658, 684.)

“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 39–40.)

“Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Hill, supra, at p. 40, citations omitted.)

“The ‘compelling interest’ or ‘compelling need’ test has its roots in White v. Davis (1975) 13 Cal.3d 757 [120 Cal. Rptr. 94, 533 P.2d 222], which held that the state constitutional privacy right ‘does not purport to prohibit all incursion into individual privacy but rather [requires] that any such intervention must be justified by a compelling interest.’ (Id. at p. 775[.]) In Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pages 20–35, we considered this test at length and clarified its purview. We explained that not ‘every assertion of a privacy interest under article I, section 1 [of the State Constitution] must be overcome by a ‘compelling interest.’ Neither the language nor history of the Privacy Initiative unambiguously supports such a standard. In view of the far-reaching and multifaceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication.’ (Id. at pp. 34–35.) A ‘compelling interest’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’ (Id. at p. 34.) But whenever lesser interests are at stake, the more nuanced framework discussed above applies, with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures. (Id. at pp. 35–40[.])” (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 556 [other citations and internal quotation marks omitted].)

Examples of invasions of the right of privacy that require the compelling interest standard include the right to marriage, the right to procreation, and the right of a woman to choose not to bear children, including the choice of using a contraceptive device, medication, and, subject to law, termination of a pregnancy. (See Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161, 163–164; see also Comm. to Def. Reprod. Rts. v. Myers (1981) 29 Cal.3d 252, 275.) Other examples are a statute that requires parental consent or judicial authorization before a minor may obtain an abortion (Am. Acad. of Pediatrics, supra, 16 Cal.4th at pp. 313–314, 340–341) and a provision that a responsible relative be informed of the nature and seriousness of a patient’s disorder (Aden v. Younger (1976) 57 Cal.App.3d 662, 681).

In contrast, examples of invasions of the right of privacy that do not require the compelling interest standard include drug testing programs (Hill, supra, 7 Cal.4th at p. 9) and, under certain circumstances, discoverable contact information (Pioneer Elecs. (USA), Inc. v. Super. Ct. (2007) 150 P.3d 198, 207).

Based on the evidence submitted to the Court, it appears that Defendant’s policy here (which the Court will call the “vaccinate-to-work policy”) involves a legally protected privacy interest (i.e., the interest to bodily autonomy), a reasonable expectation of privacy as to that interest, and conduct (i.e., implementation of the vaccinate-to-work policy) that constituted a serious invasion of privacy.

A few issues remain: (1) whether this policy, which only allowed work with vaccination and not by testing, requires analysis under the compelling interest standard; (2) if the compelling interest standard is required, has Plaintiff shown a probability of prevailing on the merits that Defendant did not meet the compelling interest standard; and (3) if the compelling interest standard is not required, has Plaintiff shown a probability of prevailing on the merits that a balancing would be in favor of Defendant.

As to the first issue, the case of Love v. State of Department of Education (2018) 29 Cal.App.5th 980 is instructive. Love considered a repeal of the personal belief exemption to California’s immunization requirements for children attending public and privacy educational and childcare facilities. (Id. at p. 984.) The Court of Appeal did not explicitly determine that vaccination is an obvious interest that requires the compelling interest standard. Yet the Court of Appeal noted that the policy did not even meet the rational basis standard. (Id. at p. 989.) Further, the Court of Appeal discussed how even if the compelling interest standard were required, both the California Supreme Court and the United States Supreme Court have upheld vaccination mandates. (See Abeel v. Clark (1890) 84 Cal. 226, 230 [“Vaccination, then, being the most effective method known of preventing the spread of the disease referred to (smallpox), it was for the legislature to determine whether the scholars of the public schools should be subject to it, and we think it was justified in deeming it a necessary and salutary burden to impose upon that general class.”]; see also Jacobson v. Massachusetts (1905) 197 U.S. 11, 24–25 [“The authority of the State to enact this statute (requiring vaccinations for smallpox) is to be referred to what is commonly the police power . . . . According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”].)

In this case, the vaccinate-to-work policy appears to be an invasion of privacy that requires the compelling interest standard. If there had been an option for testing instead of vaccination under the policy, then this case would have been more akin to Hill. But the fact that the policy allowed only vaccination as the precondition of employment makes the violation akin to those rights discussed in American Academy of Pediatrics, Conservatorship of Valerie N., and Committee to Defendant Reproductive Rights.

Given that the compelling interest standard is required here, has Plaintiff shown that Defendant did not meet that standard?

The answer to this question is yes. The California Supreme Court’s decision in Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 provides the reasoning.

“We further explained that ‘[t]hese generalized differences between public and private action may affect privacy rights differently in different contexts. If, for example, a plaintiff claiming a violation of the state constitutional right to privacy was able to choose freely among competing public or private entities in obtaining access to some opportunity, commodity, or service, his or her privacy interest may weigh less in the balance. In contrast, if a public or private entity controls access to a vitally necessary item, it may have a correspondingly greater impact on the privacy rights of those with whom it deals.’ (Hill, supra, 7 Cal.4th at p. 39.)” (Sheehan, supra, at p. 1002.)

“Another factor to consider is the existence of less restrictive alternatives. (Hill, supra, 7 Cal.4th at p. 38.) But to establish the reasonableness of their policy, [private organizations] do not have to show that they have adopted the least restrictive alternative. In Hill, we explained that ‘the trial court erred in imposing on the NCAA the burden of establishing that there were no less intrusive means of accomplishing its legitimate objectives. . . . [T]he argument that such a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisions that: (1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need; or (2) are directed against the invasive conduct of government agencies rather than private, voluntary organizations.’ (Id. at p. 49.)” (Sheehan, supra, at p. 1002.)

“Accordingly, in reviewing a private entertainment venue's security arrangements that implicate the state constitutional right of privacy, the court does not decide whether every measure is necessary, merely whether the policy is reasonable.” (Sheehan, supra, at p. 1002, emphases in original.)

There is a significant difference between the government using its police power to require vaccinations and a company implementing a policy that required vaccinations (without any alternative, and of its own volition) as a condition of employment. In addition, Defendant fired Plaintiff in March 2022. Unlike in March 2021 (at which point the vaccine had recently been released, there had been minimal use of the vaccine, and there was still limited information about COVID-19), the context of the pandemic in March 2022 was quite different. In March 2022, it might not have been either necessary or reasonable for a company to implement (without any alternative and without a government requirement) a vaccinate-to-work policy.

Plaintiff provided, inter alia, evidence: (1) that he has a medical disorder (thrombocytopenia) that causes blood clots and prevents his from receiving the COVID-19 vaccine; (2) that he received supporting documentation from his doctor regarding his condition; and (3) that he provided Defendant with that supporting documentation. (Decl. Sexton, Exhs. D, E.)

“This is a serious medical letter regarding our patient who is suffering from idiopathic and very severe thrombocytopenia since 1985. Normal numbers for thrombocyte are more than 300,000 and patients can bleed if thrombocyte levels go below 60,000. I reviewed our patient's medical records from UCLA and other respected medical institutions, and he has had thrombocytes as low as 18,000.

“Also, patient suffers from getting very serious blood clots since 2018. He had 2 surgeries for blood clots in 2020 at UCLA with a top specialist John Moriarty, MD cardiovascular surgeon, and I reviewed all his clinical history and medical reports. The patient is still suffering from chronic blood clots. He saw numerous Hematologists, who treated him with a variety of medications.

“My medical recommendation is that it would be too dangerous for our patient to be vaccinated for the Covid-19 Vaccine. It is medical fact that two of the major side effects of Covid-19 vaccines are thrombocytopenia and blood clots. As I explained above, the patient is already suffering from both issues, and any good doctor would agree that vaccinating him would indeed be a great risk to his life.

Whether this specific policy is an impermissible violation of privacy as it was specifically applied to Plaintiff is a mixed question of law and fact. Plaintiff has sufficiently met his burden to show a probability of success on this matter.

In summary, Plaintiff has met his burden on the second prong of the anti-SLAPP Motion regarding his first cause of action for declaratory relief.

A plaintiff alleging discrimination must allege “that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Defendant argues that Plaintiff’s second cause of action for disability discrimination fails because: (1) Plaintiff was not a qualified individual; and (2) Plaintiff cannot prove that Defendant’s conduct was pretext for unlawful discrimination based on his disability. (Anti-SLAPP Motion, pp. 20:14, 21:17–20.)

Whether Plaintiff was qualified to perform his duties is a mixed question of fact and law. Defendant argues that Plaintiff would not have been able to adequately perform his performance duties in the historical role of President Andrew Johnson while wearing a mask. The Court agrees and assumes that Plaintiff also agrees. Of course, this is a straw-man argument; no one is suggesting that Plaintiff, in the role of Andrew Johnson, should appear wearing a mask. Plaintiff has submitted sufficient evidence to demonstrate a probability that he was qualified to do the role had he undergone daily testing for COVID-19.

Similarly, whether Defendant’s motivations for its conduct were based on Plaintiff’s disability or some other reason is a question of fact. Plaintiff has submitted sufficient evidence to demonstrate a probability that Defendant acted with a discriminatory motive.

Thus, Plaintiff has met his burden on the second prong of the anti-SLAPP Motion regarding his second cause of action for disparate treatment.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (m) (1) “For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.” (Gov. Code, § 12940, subd. (m)(1).)

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Inst. of Cal. (2009) 173 Cal.App.4th 986, 1009–10, citation omitted.)

Defendant argues that Plaintiff’s third cause of action for failure to accommodate fails because Plaintiff was not qualified. (Anti-SLAPP Motion, p. 22:11.)

The Court already discussed this matter regarding the second cause of action for disparate treatment. For the same reasons, Plaintiff has met his burden on the second prong of the anti-SLAPP Motion regarding his third cause of action for failure to accommodate.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).)

Defendant argues that Plaintiff’s fourth cause of action for failure to engage in interactive process fails because Plaintiff was not qualified and no accommodation was possible. (Anti-SLAPP Motion, p. 22:11.)

The Court already discussed this matter regarding the second cause of action for disparate treatment and the third cause of action for failure to accommodate. For the same reasons, Plaintiff has met his burden on the second prong of the anti-SLAPP Motion regarding his fourth cause of action for failure to engage in the interactive process.