Judge: Stephen P. Pfahler, Case: 23STCV27856, Date: 2025-04-17 Tentative Ruling
Case Number: 23STCV27856 Hearing Date: April 17, 2025 Dept: 68
Dept.
68
Date:
4-17-25 c/f 3-11-25
Case:
23STCV27856
Trial
Date: Not Set
DEMURRER
MOVING
PARTY: Defendant, South Pasadena School District
RESPONDING
PARTY: Plaintiff, Mary-Ann Arreola
RELIEF
REQUESTED
Demurrer
to the Complaint
·
1st
Cause of Action: Discrimination on the Basis of Religion and Medical Condition in
Violation Of FEHA
·
2nd
Cause of Action: Harassment on the Basis of Religion and Medical Condition in
Violation of FEHA
·
3rd
Cause of Action: Retaliation for Complaints Of Discrimination and/or Harassment
on the Basis of RELIGION in Violation of FEHA
·
4th
Cause of Action: Violation of Labor Code § 1102.5
·
5th
Cause of Action: Breach of Express Oral Contract Not to Terminate Employment
Without Good Cause
·
6th
Cause of Action: Breach of Implied-In-Fact Contract Not to Terminate Employment
Without Good Cause
·
7th
Cause of Action: Wrongful Termination of Employment in Violation of Public
Policy (FEHA Labor Code § 1102.5)
·
8th
Cause of Action: Failure to Prevent Discrimination Harassment and Retaliation in
Violation Of FEHA
·
9th
Cause of Action: Intentional Infliction of Emotional Distress
·
10th
Cause of Action: Denial of Due Process and Equal Protection in Violation of the
United States and California Constitutions, Articles V AND XIV
Motion
to Strike
·
Claim
for Punitive Damages
·
Claim
for Attorney Fees
·
References
to Medical Condition as a Basis for FEHA
·
Reference
to Unattached Exhibit A
SUMMARY
OF ACTION
Plaintiff
Mary-Ann Arreola began employment as an elementary school teacher for Defendant
South Pasadena School District (Pasadena) in August 2010. On September 14,
2021, Pasadena issued a “Vaccine Mandate” whereby all employees were required
to undergo a Covid-19 vaccine by November 12, 2021, as a condition of ongoing
employment. Plaintiff identifies as a devout Christian as well as suffering
from an autoimmune disease. As a result of both religious belief and concern
for vaccine reactivity caused by the autoimmune disorder, Plaintiff requested
an exemption from the “Vaccine Mandate.” The request was denied by the
Superintendent on grounds of required in person instruction by vaccinated
personnel only, and no remote work options. Plaintiff was placed on unpaid
leave on November 12, 2021, and dismissed on “June 14, 2021” [Complaint, ¶ 10(k)].
A “Right to Sue Letter” was subsequently issued on August 14, 2023 [Complaint,
¶ 10(m)]. The letter is referenced as attached to the complaint, but was
apparently omitted [Complaint, ¶ 13].
On
November 13, 2023, Plaintiff filed a 10 cause of action complaint for Discrimination
on the Basis Of Religion And Medical Condition in Violation of FEHA, Harassment
on the Basis of Religion and Medical Condition in Violation of FEHA, Retaliation
for Complaints of Discrimination and/or Harassment on the Basis of RELIGION in
Violation of FEHA, Violation of Labor Code § 1102.5, Breach of Express Oral
Contract Not to Terminate Employment Without Good Cause, Breach Of
Implied-In-Fact Contract Not to Terminate Employment Without Good Cause, Wrongful
Termination OF Employment in Violation of Public Policy (FEHA LABOR CODE §
1102.5), Failure to Prevent Discrimination Harassment and Retaliation in Violation
Of FEHA, Intentional Infliction of Emotional Distress, and Denial of Due
Process and Equal Protection in Violation of the United States and California Constitutions,
Articles V AND XIV.-
RULING
Demurrer: Sustained with
Leave to Amend.
Defendants’
Request for Judicial Notice: Denied in Part/Granted in Part.
·
The court declines to
take judicial notice of unpublished orders, including trial courts, Federal
Circuit court rulings, and arbitration awards. (Cal. Rules of Court, rule
8.1115(a); Rittiman v. Public Utilities
Com. (2022) 80 Cal.App.5th 1018, 1043
(footnote 18); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
·
The
court takes judicial notice of the EEOC Right to Sue letters in that said
documents demonstrate an action or execution of a document within the authority
and under the direction of a government director. (Evid. Code, 452, subd. (c),
(d); Friends of Shingle Springs Interchange, Inc. v. County of El
Dorado (2011) 200 Cal.App.4th
1470, 1484; Elmore v. Oak Valley Hospital Dist.
(1988) 204 Cal.App.3d 716, 721.)
Defendant
South Pasadena School District (Pasadena) brings a demurrer to the entire
complaint for Discrimination on the Basis Of Religion And Medical Condition in
Violation of FEHA, Harassment on the Basis of Religion and Medical Condition in
Violation of FEHA, Retaliation for Complaints of Discrimination and/or
Harassment on the Basis of RELIGION in Violation of FEHA, Violation of Labor
Code § 1102.5, Breach of Express Oral Contract Not to Terminate Employment
Without Good Cause, Breach Of Implied-In-Fact Contract Not to Terminate
Employment Without Good Cause, Wrongful Termination OF Employment in Violation of
Public Policy (FEHA LABOR CODE § 1102.5), Failure to Prevent Discrimination
Harassment and Retaliation in Violation Of FEHA, Intentional Infliction of
Emotional Distress, and Denial of Due Process and Equal Protection in Violation
of the United States and California Constitutions, Articles V AND XIV. Pasadena
submits the demurrer on grounds of government immunity, failure to exhaust
administrative remedies, untimely filed action, and improperly stated claims
based on inapt authority. Plaintiff in opposition challenges any application of
immunity, timely presented claims, and sufficiently pled claims. Pasadena in
reply reiterates the immunity position, lack of exhaustion of administrative
remedies or proof of alleged compliance, and lack of facts establishing a valid
FEHA claim.
A demurrer is an objection to a pleading, the grounds for
which are apparent from either the face of the complaint or a matter of which
the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see
also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a
demurrer is to challenge the sufficiency of a pleading “by raising questions of
law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court
liberally construes the complaint to determine whether a cause of action has
been stated. (Picton v. Anderson
Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)
“A demurrer for uncertainty is strictly construed, even
where a complaint is in some respects uncertain, because ambiguities can be
clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our
liberal pleading rules, where the complaint contains substantive factual
allegations sufficiently apprising defendant of the issues it is being asked to
meet, a demurrer for uncertainty should be overruled or plaintiff given leave
to amend.]
Pasadena challenges the entire complaint on grounds of
immunity to any termination as a result of a public health decision, such as
requiring employee vaccination. The operative statute states:
(a)
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.
(b)
Neither a public entity nor a public employee is liable for an injury caused by
an act or omission in carrying out with due care a decision described in
subdivision (a).
Gov.
Code, § 855.4
Courts
interpreting the statute take a deferential view to the authority delegated
administrators in favor of protecting greater public health over individual
rights. “By its plain language, section 855.4, subdivision
(a) immunizes any ‘decision’ relating to the control of the communication of
disease that is ‘the result of the discretion vested in the public entity.’
Such a ‘decision’ is immune, ‘whether or not such discretion [was] abused.’
Under subdivision (b), immunity attaches to any act or omission performed while
carrying out such a decision, as long as the act or omission was performed with
due care. [¶] This reading of section 855.4 is in accord with the California
Law Revision Commission cited by the trial court: ‘Public health officials and
public entities should not be liable for determining whether to impose
quarantines or otherwise take action to prevent or control the spread of
disease, where they have been given the legal power to determine whether or not
such action should be taken.... But when a public official has a legal duty to
act in a particular manner, he should be liable for his wrongful or negligent
failure to perform the duty; and his employing public entity should be liable
if such failure occurs in the scope of his employment.’ (Citation)” (City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th
129, 144–145.) The immunity prevails “over all sections imposing liability”
barring a statutory exception. (Wright
v. City of Los Angeles (2001) 93
Cal.App.4th 683, 689.) The court finds section 855.4 applies to the mandated
Covid-19 vaccination policy.
The
court by no means finds a basis of absolute authority and absolute immunity.
Nevertheless, the simple allegation of the decision denying Plaintiff exception
based on medical and religious belief without further articulation regarding
the basis for said as something constituting an action without “due care” will
not meet the minimal threshold for consideration of exception to the statutory
immunity. (City
of Los Angeles v. Superior Court, supra,
62 Cal.App.5th a pp. 148-149.) The court declines to engage in any sua sponte
determination of the propriety of the decision given the paucity of allegations
presented in the operative complaint. (Greenwood
v. City of Los Angeles (2023) 89 Cal.App.5th 851, 863–865.)
The
demurrer is sustained on this basis.
On
the EEOC timing, the operative statute provides: “(1)
Notwithstanding subdivision (c), the one-year statute of limitations, commencing
from the date of the right-to-sue notice by the department to the person
claiming to be aggrieved, shall be tolled when all of the following
requirements have been met: (A) A charge of discrimination or harassment is
timely filed concurrently with the Equal Employment Opportunity Commission and
the department. (B) The investigation of the charge is deferred by the
department to the Equal Employment Opportunity Commission.” (Gov. Code, §
12965, subd. (e).)
The
court again notes the actual allegations of the complaint regarding placement
on administrative leave on November 12, 2021, dismissal from employment on
“June 14, 2021” [Complaint, ¶ 10(k)], and a “Right to Sue Letter” subsequently
issued on August 14, 2023 [Complaint, ¶ 10(m)]. The letter referenced as
attached to the complaint is not actually included as an exhibit. [Complaint, ¶
13.] The court can accept apparent typographical errors, but must also review
the pleading on file, rather than make assumptions as to potential intended
dates. The court notes the right to sue letters issued on December 8, 2022, and
August 14, 2023. [Req. Jud. Not., Ex. C-D.] The court also notes the January
13, 2023, filing date of the instant complaint.
Accepting
the December 8, 2023, letter the January 13, 2023, complaint was filed more
than one year from the date of said letter. It remains unclear whether
Plaintiff also relies on the second letter, and/or any basis for tolling.
Again, the operative complaint lacks any facts regarding the date disparity,
and the court declines to consider unmade positions. The demurrer is therefore
sustained on this basis as well.
On
the failure to exhaust administrative remedies, the court again cites to the
standard.
“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: (a) For an
employer, because of the race, religious creed, color, national origin,
ancestry, physical disability, mental disability, reproductive health
decisionmaking, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or veteran
or military status of any person, to refuse to hire or employ the person or to
refuse to select the person for a training program leading to employment, or to
bar or to discharge the person from employment or from a training program leading
to employment, or to discriminate against the person in compensation or in
terms, conditions, or privileges of employment.
(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.
(2) For
an employer or other entity covered by this part to, in addition to the
employee protections provided pursuant to subdivision (h), retaliate or
otherwise discriminate against a person for requesting accommodation under this
subdivision, regardless of whether the request was granted.
(Gov.
Code, § 12940, subd. (a), (m).)
The
DFEH claim in fact only references religious discrimination without any
reference of the purported autoimmune reactive concerned pled in the operative
complaint. [Red. Jud. Not., Ex. C-D.] While medical concerns are clearly and
unequivocally a valid basis, Pasadena raises a valid challenge regarding the
lack of submission of said basis to DFEH.
“‘The
administrative exhaustion requirement is satisfied if the allegations of the
civil action are within the scope of the EEOC
charge, any EEOC investigation actually
completed, or any investigation that might reasonably have been expected to
grow out of the charge. Thus, the judicial complaint may encompass any
discrimination ‘like and reasonably related
to’ the allegations of the EEOC charge.
[Citations.] [¶] ... “It is sufficient that the EEOC be apprised, in general
terms, of the alleged discriminatory parties and the alleged discriminatory
acts.” (Citations.) Plaintiffs may proceed on claims not explicitly set forth
in a charge of discrimination if the claim is “like or reasonably related to
the EEOC charges” and could reasonably be expected to grow out of an EEOC investigation of the charge. [Citation.]”’” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266–267.) Again, while the
opposition offers explanation for the basis of the medical condition, missing
is address of the omission in the DFEH letter or allegations in the complaint.
The demurrer is therefore sustained on this basis as well.
On
the factual uncertainty positions for each of the 10 causes of action, the
court notes the 10 individual causes of action constitute a series of legal
elements and conclusions without sufficient factual integration. The court
declines to consider the extensive arguments presented in the opposition
seeking rectify all of the deficiencies both noted above and as to the
factually deficient individual causes of action. Again, the demurrer standard
derives from the operative pleading, not the intent of a Plaintiff after a
challenging party has guided a Plaintiff on all of the noted defects. The court
will not consider unpled allegations thereby allowing Plaintiff to rectify
defects on a minimally pled and typographically ridden pleading. The demurrer
is therefore sustained on this basis.
Motion to Strike: Moot.
In summary, the demurrer is
sustained with 30 days Leave to Amend. Plaintiff may NOT add any new
causes of action, but may clarify the facts in support of any and all
challenged causes of action. (Harris v. Wachovia Mortgage, FSB (2010)
185 Cal.App.4th 1018, 1023.) The court requests Plaintiff omit the claim for
punitive damages, and allows Plaintiff to incorporate a copy of “Exhibit A.”
The court also recommends Plaintiff check paragraph numbering (see pages 5-7 of
the complaint). Any other new causes of action added without leave of court may
be subject to a motion to strike. Any allegations contradicting prior pled
claims may also be challenged under the sham pleading standard.
The court will concurrently conduct the Case Management
Conference.
Defendant
to give notice.