Judge William A. Crowfoot, Case Number: 22AHCV00149, Date: 2024-02-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00149, Date: 2024-02-16 Tentative Ruling

On March 21, 2022, plaintiffs Sam Benites (“Benites”) and Nick Maza (“Maza”) (collectively, “Plaintiffs”) filed this action against defendant City of San Marino (“Defendant”) asserting various violations of Government Code section 12940(a) (“FEHA”), including discrimination, failure to accommodate, and failure to engage in the interactive process.

The operative pleading is the Third Amended Complaint (“TAC”). It includes two causes of action based on FEHA violations for discrimination and failure to accommodate. It was filed on January 4, 2023, based on a stipulation between the parties after two earlier rounds of demurrers and motions to strike. Plaintiffs allege that on or about September 2021, Defendant adopted a mandatory COVID-19 vaccination policy for all City employees, including Plaintiffs. (TAC, ¶ 7.) The policy required all employees to be vaccinated or face termination of employment. (Ibid.) Plaintiffs allege they each submitted a request for an exemption and accommodation but were denied. (TAC, ¶ 8.) Maza ultimately received the vaccine but argues he was coerced to waive and give up his rights, and in effect, was discriminated against on the basis of his religion. (TAC, ¶ 10.) Benites alleges he was wrongfully terminated in a discriminatory fashion without being afforded a reasonable accommodation for his religious beliefs. (TAC, ¶ 10.)

Defendant filed this motion for summary judgment or, in the alternative, summary adjudication on December 1, 2023. Plaintiffs filed their opposition papers on February 5, 2024. Defendant filed its reply papers on February 9, 2024.

Defendant moves for summary judgment or, in the alternative, summary adjudication of the following issues: (1) Plaintiffs’ First and Second Causes of Action fail because Defendant is immune to civil actions based on the exercise of discretionary acts in efforts to promote public health by preventing or controlling public disease pursuant to Government Code section 855.4, (2) the First Cause of Action for discrimination lacks merit because Plaintiffs cannot establish a prima facie case and Defendant had legitimate non-discriminatory reasons for its actions, (3) the Second Cause of Action for failure to accommodate lacks merit because it was an undue hardship to provide an accommodation and would be a danger to the health and safety of others regardless of Plaintiffs’ religious beliefs, (4) Plaintiff Nick Maza has not suffered any injury.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Defendant requests judicial notice of Plaintiffs’ TAC, two city council agendas for the San Marino City Council’s Special Meeting of November 10, 2021, and the City Council’s minutes from November 17, 2021. The unopposed request is GRANTED.

The Court rules only on those objections to evidence that was material in the disposition of this motion. (Code Civ. Proc. § 437c, subd. (q).)

Plaintiffs’ evidentiary objections are improperly embedded in their response to Defendant’s separate statement. Nevertheless, the Court considers Plaintiff’s objections to the evidence submitted in support of UMF Nos. 5 and 9, which are City Council agendas attached as Exhibits B and C of Defendant’s request for judicial notice, on the grounds that they are inadmissible hearsay and lack foundation. The objections are OVERRULED. The foundation is adequately provided through the request for judicial notice and the evidence is not presented for the truth of the statements made within, but to show the materials that were presented to Defendant for consideration and relied upon in its decision making.

Defendant argues that it is immune to Plaintiffs’ claims pursuant to Government Code section 855.4 because the decision to enact a vaccine mandate for firefighter paramedics was a discretionary act taken for the prevention or control of disease. (Motion, pp. 13-20.) Government Code section 855.4 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 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).

Defendant argues that it made a discretionary decision – not ministerial – in enacting Resolution No. R-21-28, which implemented a vaccine mandate for employees represented by the San Marino Firefighters Association. (UMF No. 2.) Defendant states that this decision was made to control the communication of the COVID-19 virus during the “Delta” variant spike of the COVID-19 pandemic. (UMF No. 3.) Defendant argues this was a quasi-legislative decision and Plaintiffs’ action, which is rooted in that decision to enact policy, is barred.

Defendant relies on Greenwood v. City of Los Angeles (2023) 89 Cal.App.5th 851, 855, review denied (July 12, 2023), in which a plaintiff allegedly contracted typhus after the city failed to remedy a dangerous condition on public property next to the plaintiff’s place of work. The Greenwood court held that the city’s decision not to take action against the spread of typhus on the public property was an exercise of discretion immune under Government Code section 855.4(a).

Notably, Plaintiffs agree that enacting the vaccine mandate was a discretionary decision and do not dispute any of the facts Defendant offers in support of Issue No. 1. Plaintiffs only submit evidentiary objections which, as noted above, are overruled. Instead, Plaintiffs argue that Defendant’s decision to deny Plaintiffs’ requests for a religious exemption from the mandate was fully ministerial and not subject to immunity. (Opp., p. 6.) Plaintiffs argue that Defendant had no discretion to consider their requests for religious exemptions based on public health concerns. This argument is inconsistent with Plaintiffs’ allegations in the TAC. Plaintiffs allege liability on the grounds that Defendant adopted a “mandatory vaccination policy” that “required all employees to be vaccinated” and included “the wholesale denial of exemptions and accommodations.” (TAC, ¶ 12.) Additionally, in Greenwood, the court of appeal specified that section 855.4, subdivision (a) immunizes “decisions on how to protect the ‘public health of the community’ or ‘prevent[ ] disease or control[ ] the communication of disease within the community’” and described these decisions as “areas that inherently implicate a policy-making function.” (Greenwood, supra, 89 Cal.App.5th at p. 863. Therefore, here, the decision to issue or deny religious exemptions, which is a decision on how to “protect the ‘public health of the community’ or ‘prevent[ ] disease or control the communication of disease within the community” requires the exercise of discretion and therefore falls within section 855.4. Also, it is not ministerial, as Plaintiffs claims, because Plaintiffs do not identify any duty to act. (City of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 149 (“Wong”) [sustaining demurrer where plaintiff did not allege public entity’s failure to comply with nondiscretionary ministerial duty]; Bitner v. Department of Corrections & Rehabilitation (2023) 87 Cal.App.5th 1048, 1059 [if statutes providing for governmental immunity and liability conflict, statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent].)

Plaintiffs also argue that Defendant failed to act with “due care.” (Opp., pp. 7-8.) However, the Greenwood court found that subdivision (b) was a separate provision for immunity. (Greenwood, 89 Cal.App.5th at pp. 865.) The Greenwood court described subdivision (a) as providing “immunity against claims based on certain decisions” while subdivision (b) provides “immunity from claims based on acts or omissions ‘in carrying out with due care a decision described in subdivision (a).” (Id.) Therefore, the Greenwood court found that it was irrelevant whether the city acted with a lack of due care under subdivision (b). (Id.)

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.