Judge Upinder S. Kalra, Case 21STCV40499 2023-01-06 Tentative Ruling

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CASE NAME: LA County Free Foundation, a California Non-Profit Corporation as authorized agent for 574 firefighters and other employees of the Los Angeles County Fire Department v. County of Los Angeles

RESPONDING PARTY(S): LA County Free Foundation, a California Non-Profit Corporation as authorized agent for 574 firefighters and other employees of the Los Angeles County Fire Department

1. Demurrer is SUSTAINED, without leave to amend, as to the first cause of action

On November 3, 2021, Plaintiff LA County Free Foundation, a California Non-Profit Corporation as authorized agent for 574 firefighters and other employees of the Los Angeles County Fire Department (“Plaintiffs”) filed a complaint against Defendant County of Los Angeles (“Defendant.”) Plaintiffs allege four causes of action: (1) Violation of Constitutionally Protected Autonomous Privacy Rights, (2) Ultra-Vires Legislation, (3) Violation of Ralph M. Brown Act, and (4) Threatened Deprivation of Due Process Rights. The complaint alleges that the Los Angeles County vaccine mandate for Los Angeles County firefighters violates these firefighters constitutional right to privacy and contains arbitrary exemptions.

On July 11, 2022, the Federal District Court for the Central District of California dismissed the two federal claims alleged in the Second and Third Cause of Action. The District Court sua sponte remanded the remaining two state law claims

the First and Fourth Cause of Action.

On August 19, 2022, the parties filed a stipulation, dismissing the fourth cause of action, without prejudice.

The Current Demurrer was filed on August 15, 2022. Plaintiffs’ Opposition was filed on October 31, 2022. Defendant’s reply was filed on November 29, 2022.

On December 6, 2022, a hearing on the Demurrer was scheduled. The Court pointed out that the operative complaint, the SAC, although attached as an exhibit, had not been filed in the Superior Court. The Court granted leave to file the SAC and continued the hearing on the Demurrer.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Zachary J. Golda, attached to the Defendant’s Demurrer, indicates that the parties met via telephone to discuss the demurrer. The parties were unable to resolve the issues. (Dec. Golda ¶ 2.) This is sufficient for a meet and confer requirement.

The Proof of Service attached to the Defendant’s Demurrer and Reply indicates that service was completed via electronic service. Plaintiffs’ Opposition does not have a proof of service and has not filed a separate proof of service. Defendant did not raise the issue of service in their reply.

Defendant demurs to the sole remaining cause of action on the grounds that it fails to set forth facts sufficient for a cause of action.

A. First Cause of action: Violation of California Constitution – Autonomous Privacy

Defendant argues that the first cause of action for Violation of California Constitution – Autonomous Privacy fails. Specifically, Defendant argues that Plaintiffs do not allege a legally recognized privacy interest or reasonable expectation of privacy. Additionally, Plaintiffs do not allege a serious invasion of privacy. Even still, the vaccine mandate survives the rational basis review.

Plaintiffs argue that these firefighters have a constitutional protected privacy interest to make personal decisions regarding personal health. Additionally, Plaintiffs argue that Judge Scarsi already ruled on the County’s Motion to Dismiss, which was “virtually identical to the County’s instant demurrer.” (Opp. 3: 15-24.)

Section 1 of the California Constitution states “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.)

In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill), the California Supreme Court promulgated a three-prong test when a violation of the state constitutional right to privacy is alleged. In order to prevail, Plaintiffs must establish each of the following three elements: “(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.” (Id. at pp. 39-40.) The High Court noted that whether a privacy interest is present is a question of law whereas whether plaintiff has a reasonable expectation of privacy or whether defendants’ conduct constitutes a serious invasion of privacy are both mixed questions of law and fact. (Ibid.) However, “[i]f 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.” (Ibid.) A defendant may prevail by negating any one of the three elements or on balance, “that the invasion of privacy is justified because its substantially furthers one or more countervailing interests.” (Ibid.)

The Court in Hill provided two types of classes of protected privacy interest: informational privacy and autonomous privacy. (Hill, supra, 7 Cal.4th at p. 35.) The privacy interest asserted here is the autonomous privacy class —“interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference.” (Ibid.)

Defendant argues that there is no legally protected privacy interest as to vaccine mandates. Vaccine mandates have been approved, such as for school children, as early as the 1890s. (Demurrer 12: 3-7, citing to Abeel v. Clark (1890) 84 Cal. 226, 230; French v. Davidson (1904) 143 Cal. 658, 662.)

Plaintiffs argue that the firefighters have a constitutionally protected privacy interest, specifically to make intimate personal decisions. Plaintiffs argue that this vaccine mandate involves an autonomous privacy issue akin to requiring pregnant minors to obtain parental consent or judicial authorization before obtaining an abortion. (American Academy of Pediatrics v. Lungren Past (1997) 16 Cal.4th 307, 332.) The Court disagrees.

The Court finds that the Plaintiffs have failed to establish that it has a legally protective privacy interest in refusing a vaccination. Plaintiffs have failed cite any authority finding that there is constitutional protected right to not receive a vaccine. On the other hand, a California Court of Appeal has ruled, that in the context of vaccination mandates, “no violation of privacy has occurred.” (Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, 993 (Love). In the absence of any contrary authority, this Court is compelled to follow the dictates of a higher court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450.)

Even if the first element had been met, Plaintiffs have failed to establish that there was a reasonable expectation of privacy as a matter of law. “The extent of [a privacy] interest is not independent of the circumstances.” [citation omitted] Even when a legally cognizable privacy interest is present, other factors may affect a person's reasonable expectation of privacy.” (Hill, supra, 7 Cal.4th at p. 36.) Further, “a “reasonable” expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Id. at p. 37.) “[C]ustoms, practices and physical setting surrounding particular activities may crate or inhibit reasonable expectations of privacy.” (Id. at p. 36.) “[T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant.” (Id. at p. 37. )

Plaintiffs argue that that there exists a reasonable expectation of privacy because the vaccines have “no established track record of efficacy” as opposed to the smallpox vaccine, which was administrated in 1800, but not discussed until the 1905 Jacobsen case and then implemented in schools in the 1950s. (Opp. 9: 6-20.)

Plaintiffs’ analogy is not helpful. More instructive are the facts of Hill. In Hill, our High Court catalogued the many ways in which collegiate athletes’ privacy concerns were impacted— mandatory physical exam; restrictions on sleep, fitness, diet; disrobing in group settings in locker rooms; and, the required sharing of private physical conditions to team officials. Nonetheless, the Supreme Court noted that society has recognized that these invasive conditions imposed upon college athletes are reasonable. The High Court concluded that voluntary participation in collegiate athletics “carries with it social norms that effectively diminish the athlete’s reasonable expectations of personal privacy in his or her bodily condition.” (Hill, supra, 7 Cal.4th at p. 42.) In the context of inoculations, schools require young children to be vaccinated from various diseases, and the courts have consistently determined that these mandates are necessary for the greater good. In many respects, professional firefighters enjoy even less freedom than school age children or collegiate athletes. In order to maintain the highest level of readiness, firefighters’ lives are regulated and controlled like almost no other type of employee. For example, they are required to live and work in a group setting, in 24-hour shifts. Even sheriff’s deputies are not required to work in such an invasive environment. Notably, society has deemed that these significant restrictions on firefighters are reasonable. In sum, those who choose the noble career as an emergency personnel set themselves apart from others in many ways including a diminished expectation of privacy. Thus, Plaintiffs have failed to establish how this mandate, on an already heavily restricted and regulated career, is not an accepted norm.

Plaintiffs have failed to establish the second element of the Hill analysis.

Even if the Court concluded that Plaintiffs have met the first two prongs of the Hill test, they have failed to satisfy the third prong as a matter of law. “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill, supra, 7 Cal.4th at p. 37.) “[I]f 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, 7 Cal.4th at 40.)

Plaintiffs argues that the third element is satisfied because there is a “mountain of evidence” that the mandate is not effective. This evidence includes: the vaccines do not prevent the Omicron variant transmission, County Medical Director Dr. Ferrer acknowledged this limitation, mRNA treatments are “new biotechnology systems” and unproven, the vaccines are not supported by clinical trials, and cannot neutralize 15 mutations of the omicron genome. (Opp. 11: 18 – 12: 3; citing to the SAC ¶¶ 12-17, 61-68) This argument is better directed to whether, on balance, such a mandate is reasonable, which will be discussed in the next section

Plaintiffs have failed to cite a single California case ruling that vaccine mandates are a serious invasion of privacy. Vaccine mandates have not been seen as an invasion of privacy, let alone a serious invasion of privacy. (Love, supra 29 Cal.App.5th at p. 989; Jacobson v. Massachusetts (1905) 197 U.S. 11, 29.) To the contrary, vaccine mandates are a widely accepted community norm. The voluntary decision to work as a firefighter also carries with it social norms that effectively diminish” a firefighter’s reasonable expectation of privacy. (Hill, supra, 7 Cal.4th at p. 42.). In addition, just as the Hill court concluded that student athletes have no “legal right to participate in intercollegiate athletics competition,” Plaintiffs here have no legal right to be employed as firefighters. (Id. at p. 43.) More to the point, there is no basis for this Court to conclude that mandating vaccines for those who voluntary choose to work as first responders would be an egregious breach of social norms

B. Any privacy interest is outweighed by the governmental interest furthered by a mandate.

Even assuming that Plaintiffs have met the pleading requirements of Hill, Plaintiffs have failed to establish, on balance, that their privacy interests outweigh the governmental interest furthered by a mandate. Plaintiffs do not dispute that a vaccination mandate is subject to a balancing test akin to a rational basis analysis. (Love, supra, 29 Cal.App.5th 980.) Nor can Plaintiffs deny the compelling state interest in protecting the health and safety of the public through mandatory vaccination programs because “immunization has long been recognized as the gold standard for preventing the spread of contagious disease.” (Id. at p. 993.) As the court in Brown v. Smith stated, “In short, it has been settled since 1905 in Jacobson, supra, 197 U.S. 11, 25 S.Ct. 358, “that it is within the police power of a State to provide for compulsory vaccination.” (Brown v. Smith (2018) 24 Cal.App.5th 1135, 1143 (Brown).) Here, Plaintiffs have failed to establish that the right to refuse a vaccine outweighs the public concern over the Covid-19 virus. What Plaintiffs seem to be questioning the decision to combat a novel virus with a novel vaccine. But a novel infectious disease of the magnitude of COVID-19 is necessarily going to be combatted with a new vaccine. While Defendant tries to argue that the evidence above indicates the covid vaccine is ineffective, Plaintiffs’ evidence only highlights a scientific controversy. Those challenging the rational basis of an action must “negate every conceivable basis which might support it.” (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314.). To accept Plaintiffs’ contention that the vaccine mandate here is irrational would require this Court to find the response, on balance, is utterly devoid of ration or reason.[1] Stated other ways, Plaintiffs’ evidence does not dimmish the legitimate interest of Defendant to mandate vaccines. More compelling, the vaccination mandates in Love and Brown were much stricter than the mandates here and yet the Appellate Courts found the governmental interest clearly outweighed any privacy interest as a matter of law. In sum, because Plaintiffs have failed to demonstrate that it was irrational for Defendants to assume that vaccinations could play a multi-faceted role in stemming the spread of Covid, Plaintiffs’ right to privacy claim cannot overcome the countervailing compelling public health objectives advanced by Defendants, as a matter of law.

Lastly, Plaintiffs argue that this demurrer was essentially already determined in the County’s Motion to Dismiss that was before Judge Scarsi. However, Plaintiffs’ argument fails. There, the District Court determined that it did not want to dismiss the claim without doing a Hill analysis, stating, “the Court respectfully disagrees over the propriety of dismissing the claim without fact-finding under Hill.” (Opp. Attachment 2, pg. 7, pg. 232 of Opposition.) Even more significant, in analyzing the federal privacy rights, the District Court concluding that the mandate in question here survives rational basis scrutiny. Specifically, the District Court pointed out that while COVID vaccines may be not as effective as originally believed in preventing the spread of COVID, Plaintiffs “alleges no facts supporting the conclusion that it was irrational for Defendant to conclude that vaccinations were part of an effective strategy to prevent transmission of COVID-19.” In fact, the language of the District Court was even stronger noting that even assuming Defendant’s vaccination mandate was premised on “speculation unsupported by evidence or empirical data,” under a rational basis analysis, Plaintiffs were still required to “negate every conceivable basis which might support it.” (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 314-315.) Since Plaintiffs failed, the mandate survives rational basis scrutiny. As discussed above, this Court reaches the same conclusion. Finally, the District Court noted that another District Court in the Central District ruled that reasonable compulsory vaccinations schemes, like the ones in question here, do not violate the California constitutional right to privacy. (See Burcham v. City of Los Angeles (2022) 562 F.Supp.3d 694.)

As for the Garvey ruling, it is not instructive on issues concerns the California Constitution.[2] Plaintiffs’ reliance on Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S. Ct. 63 is similarly misplaced. There, as Justice Gorsuch acknowledged, the government restriction from gathering to participate in religious services implicated a fundamental right, which accordingly, was subject to strict scrutiny. (Id. at p. 70.) Here, on the other hand the mandate does not implicate the First Amendment or require strict scrutiny. Moreover, even there the Supreme Court recognized that “members of the court are not public health experts, and [accordingly] should respect the judgment of those with special expertise and responsibility in this area. (Id. at p. 67.)

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) Plaintiffs have the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Plaintiffs argue that leave to amend should be granted as there is voluminous material that it may be able to plead new facts. However, this is the Second Amended Complaint, similar federal constitutional claims have already been rejected and vaccine mandates have continuously been viewed as constitutional under the California State Constitution. Thus, the Court finds that Plaintiffs are unlikely to be able to fix the defects of the SAC. Leave to amend is DENIED.

[1]Plaintiffs’ reliance on Let Them Choose v. San Diego Unified School (2022) 85 Cal.App.5th 693 is similarly misplaced. That decision was based upon the State Education Code preempting local law. The opinion did not address, discuss, or consider the constitutional question at issue here.

[2]The Court observes that citing a New York trial court’s decision appears to be a violation of California Rule of Court. Rule 8.1110 prohibits citation to unpublished decisions except for reasons inapplicable here. A New York trial court’s decision is akin to an unpublished opinion. Moreover, referring to the ruling as a Supreme Court ruling, while factually correct, is highly misleading. While New York state trial courts are referred to as “Supreme Courts,” are not appellate courts, and they certainly are not the highest court in the jurisdiction, as the Supreme Court of California is. In other words, it has little persuasive impact. To suggest otherwise repeatedly is questionable.