Judge: Salvatore Sirna, Case: 22PSCV00201, Date: 2022-10-24 Tentative Ruling

Case Number: 22PSCV00201    Hearing Date: October 24, 2022    Dept: A

Defendant Hacienda La Puente Unified School District’s DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

Responding Party: Plaintiffs, Thuy Monge, Jamie Aakhus, Alice Acevedo, Ida Aguayo, Jose Araiza, Marisol Arevalo, Diana Ayala, Maechelle Brown, Noemi Covarrubias, Desteny Flores, Elizabeth Hernandez, Heidi Holguin, Melissa Lomenzo, Vanessa Lozano, Dora Luna, Melissa Lucht, Romelia Mancillas, Benny Morales, Miranda Noriega, Melissa Ramon, Ashley Smith, Matthew Solorzano, Kerry Stavert-Wooten, Brittney Strand, Marysol Thomas and Sean Van Gundy

Tentative Ruling

Defendant Hacienda La Puente Unified School District’s Demurrer to Plaintiffs’ Second Amended Complaint is OVERRULED IN PART, SUSTAINED IN PART, with 20 days’ leave to amend.

Background   

Plaintiffs Thuy Monge, Jamie Aakhus, Alice Acevedo, Ida Aguayo, Jose Araiza, Marisol Arevalo, Diana Ayala, Maechelle Brown, Noemi Covarrubias, Desteny Flores, Elizabeth Hernandez, Heidi Holguin, Melissa Lomenzo, Vanessa Lozano, Dora Luna, Melissa Lucht, Romelia Mancillas, Benny Morales, Miranda Noriega, Melissa Ramon, Ashley Smith, Matthew Solorzano, Kerry Stavert-Wooten, Brittney Strand, Marysol Thomas and Sean Van Gundy  (collectively, “Plaintiffs”) allege as follows: Plaintiffs are employees of Hacienda La Puente Unified School District (“District”). Plaintiffs each requested an exemption from District’s COVID-19 vaccination policy based on religious belief and/or medical condition, which District denied. Plaintiffs were thereafter terminated.

On June 10, 2022, Plaintiffs filed a Second Amended Complaint (“SAC”), asserting causes of action against District and Does 1-50 for:

1.      Religious Discrimination—Violation of Government Code §§ 12940(a, l), et seq.

2.      Religious Discrimination—Failure to Engage in Interactive Process in Violation of Government Code §§ 12940(l), et seq. 

3.      Religious Discrimination—Failure to Provide Reasonable Accommodations in Violation of Government Code §§ 12940(l), et seq.

4.      Harassment in Violation of Government Code §§ 12940, et seq.

5.      Retaliation in Violation of Government Code §§ 12940(h, l) et seq.

A Case Management Conference is set for August 31, 2022.

Legal Standard

A demurrer may be made on the ground that the pleading, inter alia, does not state facts sufficient to constitute a cause. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

District demurs, per Code of Civil Procedure § 430.10, subdivision (e), to first through fifth causes of action in Plaintiffs’ SAC, on the basis that they each fail to state facts sufficient to constitute causes of action.

Request for Judicial Notice

The court rules on District’s Request for Judicial Notice (“RJN”) as follows: DENIED as to Exhibit B (i.e., article entitled “Immunization and Religion” from Vanderbilt Faculty & Staff Health and Wellness).

Plaintiffs’ Objection to Request for Judicial Notice

Plaintiffs’ objection to District’s RJN is moot, based upon the above denial.

Merits

District claims that each of the causes of action in Plaintiffs’ SAC fail because Plaintiffs do not sufficiently plead a religious creed within the meaning of FEHA.

“The elements of a religious creed discrimination claim are that: the plaintiff had a bona fide religious belief; the employer was aware of that belief; and the belief conflicted with an employment requirement.” (Freidman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4^th 39, 45.)

Government Code § 12926, subdivision (q) states that “[a]s used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context . . . (q) ‘Religious creed,’ ‘religion,’ ‘religious observance,’ ‘religious belief,’ and ‘creed’ include all aspects of religious belief, observance, and practice, including religious dress and grooming practices.” Further, California Code of Regulations, title 2, section 11060[1] defines “religious creed” as “any traditionally recognized religion as well as beliefs, observances, or practices, which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. . .”

“[T]he best way to assess whether an FEHA claimant's ‘beliefs, observances, or practices’ have ‘a place of importance parallel to that of traditionally recognized religions’” is to adhere to the following guidelines: “’First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.’” (Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4^th 39, 69, quoting Africa v. Com. of Pa. (3d Cir. 1981) 662 F.2d 1025, 1032.)

In Friedman, plaintiff brought an action against his prospective employer for religious creed discrimination and retaliation in violation of FEHA; in that case, defendant withdrew an offer of permanent employment to plaintiff when he refused, because he was a strict vegan, to be immunized against mumps, the vaccine for which is grown in chicken embryos. The plaintiff there had alleged that:

            “As a strict Vegan, [plaintiff] fervently believes that all living beings must be

valued equally and that it is immoral and unethical for humans to kill and exploit

animals, even for food, clothing and the testing of product safety for humans, and

that such use is a violation of natural law and the personal religious tenets on

which [plaintiff] bases his foundational creeds. He lives each aspect of his life

in accordance with this system of spiritual beliefs. As a Vegan, and his beliefs

[sic], [plaintiff] cannot eat meat, dairy, eggs, honey or any other food which

contains ingredients derived from animals. Additionally, [plaintiff] cannot wear

leather, silk or any other material which comes from animals, and cannot use any products such as household cleansers, soap or toothpaste which have been tested

for human safety on animals or derive any of their ingredients from animals. This

belief system[] guides the way that he lives his life. [Plaintiff's] beliefs are spiritual

in nature and set a course for his entire way of life; he would disregard elementary

self-interest in preference to transgressing these tenets. [Plaintiff] holds these beliefs

with the strength of traditional religious views, and has lived in accordance with his beliefs for over nine (9) years. As an example of the religious conviction that

[plaintiff] holds in his Vegan beliefs, [plaintiff] has even been arrested for civil disobedience actions at animal rights demonstrations. This Vegan belief system

guides the way that [plaintiff] lives his life. These are sincere and meaningful

beliefs which occupy a place in [plaintiff's] life parallel to that filled by God in traditionally religious individuals adhering to the Christian, Jewish or Muslim

Faiths.” (Id. at 44.)

The trial court sustained defendant’s demurrer without leave to amend and entered judgment of dismissal. The Court of Appeal affirmed; in doing so, it considered plaintiff’s allegations in light of the three Africa guidelines referenced above. The Court noted that:

“There is no allegation or judicially noticeable evidence plaintiff's belief system addresses fundamental or ultimate questions. There is no claim that veganism

speaks to: the meaning of human existence; the purpose of life; theories of

humankind's nature or its place in the universe; matters of human life and death;

or the exercise of faith. There is no apparent spiritual or otherworldly component

to plaintiff's beliefs. Rather, plaintiff alleges a moral and ethical creed limited to

the single subject of highly valuing animal life and ordering one's life based on

that perspective. While veganism compels plaintiff to live in accord with strict

dictates of behavior, it reflects a moral and secular, rather than religious,

philosophy. . . Second . . . Plaintiff does not assert that his belief system derives

from a power or being or faith to which all else is subordinate or upon which all

else depends. Third, . . . no formal or external signs of a religion are present.

There are no: teachers or leaders; services or ceremonies; structure or

organization; orders of worship or articles of faith; or holidays . . . Absent a

broader, more comprehensive scope, extending to ultimate questions, it cannot be

said that plaintiff's veganism falls within the scope of regulation 7293.1[2]. Rather, plaintiff's veganism is a personal philosophy, albeit shared by many others, and a

way of life. . .Therefore, plaintiff's veganism is not a religious creed within the

meaning of the FEHA.” (Id. at 70.)

In this case, Plaintiffs have alleged that they submitted requests for religious accommodations “stat[ing] various sincerely held religious beliefs, including but not limited to,” the following:

            “[L]ife is sacred from the moment of conception to natural death, taking an

innocent life is a grievous wrong, being required to benefit from the taking of a

life creates an irreconcilable conflict between the belief and the work requirement

of COVID-19 vaccination, and their bodies are temples of the Holy Spirit and that

to inject medical products that have any connection whatsoever to aborted fetal cell

lines would be defiling the temple of the Holy Spirit.” (SAC, ¶ 61.)

As in Friedman, Plaintiffs’ valuation of a life is essentially a moral and ethical creed. As for Plaintiff’s allegation that the body is a “temple of the Holy Spirit,” Plaintiffs do not assert that their belief systems “derive[] from a power or being or faith to which all else is subordinate or upon which all else depends.” (Id. at 70.)

The court SUSTAINS Defendant’s demurrer on this basis.

Defendant additionally demurs to Plaintiffs’ fourth and fifth causes of action on other grounds, which the court addresses below:

Fourth Cause of Action (i.e., Harassment in Violation of Government Code §§ 12940, et seq.)

To establish a claim for harassment, a plaintiff must show that he or she was subject to harassment that was “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) The plaintiff must show a “concerted pattern of harassment of a repeated, routine or a generalized nature.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4^th 121, 131 [quotations and citation omitted].)

Plaintiffs have failed to factually allege that they at any time were subjected to statements, remarks or conduct from any employer, supervisor or co-worker that was inappropriate, offensive and/or threatening, let alone that this occurred repeatedly or routinely. Plaintiffs only generically allege, without more, that “Defendants violated the FEHA by harassing Plaintiffs, creating a hostile work environment, and/or failing to prevent a hostile work environment related to the expression of their sincerely held religious beliefs and the conflict they created with the work requirement” and that this conduct “was severe or pervasive.” (SAC, ¶¶ 113 and 114.) The vaccine mandate is a single event, not directed at Plaintiffs but rather to all employees in the District. Further, if the purported “harassing conduct” is the termination itself, then this claim is redundant of the first three causes of action. Further, “commonly necessary personnel management actions such as . . .firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Reno v. Baird (1998) 18 Cal.4^th 640, 646-647 [quotations and citation omitted].)

The court additionally SUSTAINS Defendant’s demurrer to the fourth cause of action on this basis.

Fifth Cause of Action (i.e., Retaliation in Violation of Government Code §§ 12940(h, l) et seq.)

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.)

Defendant argues that Plaintiffs have failed to plead a causal connection. The court finds that Plaintiffs have adequately pled a causal connection in ¶ 126. Accordingly, Defendant’s demurrer to the fifth cause of action is OVERRULED on this basis.