Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND 

On January 13, 2022, plaintiff Firefighters4Freedom Foundation (“Plaintiff”) filed a Second Amended Complaint (“SAC”) against the City of Los Angeles (“the City”) for declaratory and injunctive relief. The SAC alleges the following. In August 2021, the Los Angeles City Council adopted the City Vaccine Mandate making vaccination against COVID-19 a condition of employment for all current and future city employees. (SAC ¶ 3.) The mandate violates the privacy rights of city firefighters who do not wish to get the COVID-19 vaccine and the City, in enforcing the Vaccine Mandate, violated the Due Process Clause by cutting off pay, without a hearing, to firefighters who have not complied with the mandate. The SAC sets forth three causes of action for (1) declaratory and injunctive relief re Ultra Vires Legislation, (2) declaratory and injunctive relief under Article I, section 1 of Cal. Constitution, and (3) declaratory and injunctive relief under Due Process Clause/Skelly/Firefighter Bill of Rights. 

On February 15, 2022, the Honorable Michael P. Linfield sustained the City’s demurrer to the SAC without leave to amend. Plaintiff filed a timely appeal. 

On August 31, 2023, the Court of Appeal reversed the order sustaining the demurrer to the first two causes of action on the grounds that the trial court erred in taking judicial notice of facts about the safety and effectiveness of Covid-19 vaccines. The parties stipulated to dismiss the appeal pertaining to the order sustaining the demurrer to the third cause of action. 

On July 12, 2024, the City filed the instant motion for judgment on the pleadings on the grounds that Plaintiff’s action is now moot. 

On September 23, 2024, Plaintiff filed an opposition. 

On October 3, 2024, the City filed a reply. 

 

II. REQUEST FOR JUDICIAL NOTICE 

The City requests the Court to take judicial notice of (1) Los Angeles City Ordinance No. 187134 passed on August 18, 2021, (2) Los Angeles City Ordinance No. 188279, passed on June 11, 2024, (3) a certified transcript of the Los Angeles City Council meeting held on June 11, 2024, (4) the meeting agenda from the Los Angeles City Council meeting held on June 11, 2024, (5) Judgment and final ruling with regards to Firefighters4Freedom member Robert Kilpatrick Jr.’s Petition for Writ of Mandate, dated February 16, 2023, Case No. 22STCP01992. 

The requests are unopposed. 

Requests 1, 2, and 4 are GRANTED. (Cal. Evid. Code § 452 (b), (d), (h).) 

Requests 3 and 5 are GRANTED to the extent that judges cannot take judicial notice of hearsay statements asserted in court filings, but can take judicial notice of the existence of such documents. (Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768.) Although a court may take judicial notice of official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471.) When judicial notice is taken of a document, the truthfulness and proper interpretation of the document are disputable. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.) 

 

III. LEGAL STANDARD 

“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. [Citation.]” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”¿(Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 (Citations Omitted).)¿The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.¿(Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) 

 

IV. DISCUSSION 

Declaratory relief is an equitable remedy, which is available to an interested person in a case "of actual controversy relating to the legal rights and duties of the respective parties…" (Code Civ. Proc., § 1060; see Dills v. Delira Corp. (1956) 145 Cal.App.2d 124, 129].) An action for declaratory relief under section 1060 requires two things: “(1) a proper subject of declaratory relief and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. [Citation.]” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546.) Declaratory relief is appropriate only where there is an actual controversy, not simply an abstract or academic dispute. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746; see also Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 376 [there is no basis for declaratory relief where only past wrongs are involved].) 

An injunction is a remedy in which there must be (1) wrongful act stating a cause of action; and (2) basis for equitable relief (e.g., ordinarily irreparable harm must be threatened, or a remedy at law is inadequate). (Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal.App.3d 405, 410; see also San Diego Unif. Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 503 [“To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined…; and (2) the grounds for equitable relief.”] “[I]njunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1266.) 

The basis of the action pertains to the Los Angeles City Council adoption of Ordinance 187134 adding Article 12 to Chapter 7 of Division 4 of the Los Angeles Administrative Code to require COVID-19 vaccination for all current and future city employees (“City Vaccine Mandate”). (Complaint ¶ 3; RJN Exh. 1). On February 15, 2022, the Honorable Michael P. Linfield sustained the City’s demurrer to the SAC without leave to amend (on grounds entirely different from the present issue), and Plaintiff appealed the matter. At the briefing on appeal, the parties stipulated to remove the third cause of action for declaratory and injunctive relief under Due Process Clause/Skelly/Firefighter Bill of Rights from the appeal. Thus, the order sustaining the demurrer to the third cause of action (and the remedy in relation thereto) remains unchanged. Any arguments concerning how the City handled rights under Skelly is irrelevant. The remaining pertinent remedies sought in the SAC are (1) “For an order declaring the City Vaccine Mandate void because the City did not have the power to issue it or, in the alternative, because the mandate is arbitrary”, (2) “For an order declaring the City Vaccine Mandate unconstitutional because it violates the privacy rights that city firefighters have under the California Constitution”, and (3) “For injunctive relief enjoining the City from further enforcing the City Vaccine Mandate”. (SAC p. 10, ¶¶ 1, 2, 4.) 

The City moves on the grounds that the lawsuit is now moot. The Court is inclined to agree. “A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.”  (Californians for Alternatives to Toxics v. Dep’t of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.) Here, it is undisputed by the parties that pursuant to Ordinance 188279, the subject Covid Vaccine Ordinance expired on June 2, 2024, and that any former City employees adversely affected by the vaccine mandate were eligible to be rehired. (RJN Exh. 2.) Based on the judicially noticed documents and the remaining remedies sought in the SAC, there is no longer a present actual controversy related to the expired Covid Vaccine Ordinance for a court to adjudge any rights and duties.  

In opposition, Plaintiff makes various arguments that there exists a live controversy. Plaintiff first argues that the City defended the constitutionality of the vaccine policy for nearly three years. However, the contention that the City maintains its position that the expired vaccine policy was constitutional has no bearing on whether there is a current actual controversy. “[A]s a general rule it is not within the function of a court to act upon and decide a moot question or speculative, theoretical, or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition.” (Wilson v. Los Angeles Cnty. Civ. Serv. Comm'n (1952) 112 Cal. App. 2d 450, 453.) 

Further, the cases relied upon by Plaintiff are distinguishable from the present matter. In City of Cerritos v. State (2015) 239 Cal. App. 4th 1020, the action was not moot even though the dissolution deadline had passed and redevelopment agencies were dissolved under the terms of Assembly Bill 1X 26 because the redevelopment agency wind-down procedures in Assembly Bill 1X 26 would occur over the course of many years. As such, theoretically, a remedy could be crafted to provide plaintiffs with at least some relief. (Id. at 1032.) Here, Plaintiff attempts to tie City of Cerritos to the present action in a conclusory manner. Plaintiff makes no argument, nor is there any evidence, that there is any equivalent “wind-down” procedure in which there exists a continuing harm for a court to be able to craft a remedy. 

Plaintiff also likens this matter to Shaw v. Los Angeles Unified Sch. Dist. (2023) 95 Cal. App. 5th 740. Shaw involved LAUSD’s distance learning policies that allegedly discriminated against certain Los Angeles students. The operative complaint sought specific remedial relief, such as: additional live instructional minutes, mandatory assessments to evaluate student learning loss, small group and one-on-one tutoring services, mandatory training for teachers specific to remediating learning loss, and affirmative outreach measures to counter student truancy trends resulting from the distance learning policies. The Shaw court found that the expiration of the distance learning policies did not moot the causes of action, because the students continued to suffer academic harm, such that the trial court erred in sustaining the demurrer to the first (wealth discrimination), second (racial discrimination) and eighth (failure to provide basic educational equality) causes of action. There, the Shaw plaintiffs sought remedial injunctive relief, and articulated remedies to alleviate the cumulative and on-going harm that continued to exist even with the expiration of the policies at issue. In contrast, Plaintiff here has not demonstrated that the basis of the action is similarly not moot. The SAC seeks: (1) the City Vaccine Mandate be declared void, (2) the City Vaccine Mandate be declared unconstitutional, and (3) the City be enjoined from further enforcing the City Vaccine Mandate. Plaintiff’s contention that the City must monetarily compensate people affected by the vaccine mandate or guarantee reemployment lie entirely outside the scope of the remaining causes of action and remedies of the SAC. 

The remaining cases relied upon by Plaintiff are also distinguishable. In Vernon v. State of California (2004) 116 Cal. App. 4th 114, the appeal was not moot due to issuance of “an experimental variance that has provisionally granted the City an exemption from the regulatory prohibition against employees with facial hair wearing SCBA respirators” (Id. at 121). Here, there is no evidence that the expiration of the Covid Vaccine Ordinance has any variance or is temporal in nature. Plaintiff further argues that the City let the policy expire rather than repeal the vaccine policy. However, this argument splits hairs without any legal significance. (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal. App. 4th 383, 393 [case may be rendered moot “by an amendment which either repeals or significantly modifies the portion of the ordinance to which the challenge is directed.”].) 

The undisputed fact remains that no City employees are presently subject to the vaccine policy as of its expiration, nor is there any indication that the City Vaccine Mandate will be reenacted. Further, there is no reasonable expectation that the City will enact a future “similar policy” of mandatory vaccinations in response to another global pandemic. Plaintiff’s contentions on this ground are speculative and conjectural. 

 

V. CONCLUSION 

Based on the foregoing, the City’s motion for judgment on the pleading against the SAC is GRANTED without leave to amend. 

 

Moving Party is ordered to give notice. 

 

DATED: October 9, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.