Ramirez v. Razo

1

FERNANDO RAMIREZ, Plaintiff and Appellant, v. NICHOLAS RAZO et al., Defendants and Respondents

B326839

California Court of Appeals, Second District, Third Division

February 5, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. 22STCV16668 Michael L. Stern, Judge. Affirmed in part reversed in part.

Mahoney & Soll, Paul M. Mahoney, and Ryan P. Mahoney for Plaintiff and Appellant.

Doumanian &Associates and Nancy P. Doumanian for Defendants and Respondents.

LAVIN J.

INTRODUCTION

Plaintiff Fernando Ramirez appeals a judgment of the trial court dismissing defendants Rene Bobadilla, city manager of the City of Montebello (the City), and Nicholas Razo, director of human resources for the City (together, the Individual Defendants), after it sustained the Individual Defendants' demurrer to Ramirez's complaint without leave to amend as to the intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and invasion of privacy causes of actions alleged against the Individual Defendants.^[1]Ramirez was an employee of the City who was denied a religious exemption to the City's resolution mandating Covid-19 vaccination for all City employees and was terminated for his unwillingness to be vaccinated. Ramirez also alleges that the City and Individual Defendants intentionally sent his termination notice, which disclosed his vaccination status, to Ramirez's brother in an envelope addressed to his brother.

We conclude that the court erred in sustaining the demurrer as to the invasion of privacy cause of action but did not err in sustaining the demurrer to the IIED and NIED causes of action without leave to amend. Thus, we affirm in part and reverse in part.

FACTS AND PROCEDURAL BACKGROUND

1. Allegations of the Complaint

In 2004, the City hired Ramirez as a part time bus driver. The City promoted him to full time bus driver in 2011 and to supervisor in 2012.

In March 2020, Governor Gavin Newsom implemented California Executive Order N-33-20, which ordered "all individuals living in the State to remain at home with the exception of accessing food and medicine and those deemed essential workers." Ramirez was deemed an essential worker and continued to work through the Covid-19 pandemic.

In August 2021, the City announced a plan, which was implemented by Bobadilla, to enact a vaccine mandate for its employees. It subsequently distributed its written policy and the process for claiming a religious exemption to the policy.

Shortly after receiving this information, Ramirez^[2]submitted a written application for a religious exemption describing his religious objections to the vaccine mandate. Ramirez stated that he objected "due to his sincere religious beliefs and specifically his interpretation of the Bible," as well as "on the grounds that the vaccines were developed with the assistance of stem cells taken from aborted fetuses."

Ramirez was ordered to participate in an interview with the City human resources director, Razo, in connection with his application. Prior to the interview, Razo told Ramirez that there were a fixed number of exemptions (1 percent) that would be granted. The City denied Ramirez's exemption request and sent him a rejection letter, which stated: "While your Request includes references to your overall religious faith and citation to Christian biblical passages, your Request does not identify any religious doctrine or teaching that directly prohibits or discourages you from obtaining a Covid-19 vaccine." Razo did not specifically ask Ramirez what religious doctrines prevented him from complying with the mandate.

Ramirez appealed the decision and wrote several letters to the City that further explained his religious objections. The City did not respond to the letters.

When Ramirez reported to work on December 16, 2021, he was escorted out of the building for failure to comply with the vaccine mandate. He received a notice of intent to terminate on or about that same date. The notice was sent to his brother's address in an envelope addressed to his brother.

The complaint asserted causes of action for religious discrimination in violation of the Fair Employment and Housing Act, Government Code^[3] section 12900 et seq. (FEHA), and wrongful termination in violation of a binding memorandum of understanding against the City, which are not at issue in this appeal. The complaint also alleged IIED, NIED, and invasion of privacy causes of action against the City and the Individual Defendants.

With respect to the IIED cause of action, the complaint alleged that Razo and Bobadilla "devised an illegal scheme to deprive Ramirez of his protected religious rights," "knowingly subjected him to a rigged interview process and knew beforehand that they were going to violate Ramirez's religious rights," and "knowingly and intentionally exposed Ramirez's private medical vaccination status, and the facts regarding [his] termination, by intentionally sending the City's termination letter to Ramirez's brother."

The complaint further alleged, with respect to the NIED cause of action, that the City and Individual Defendants negligently inflicted severe emotional distress upon him by "forc[ing]" him out of his job "due to a shameful and rigged process" and "knowingly and intentionally" disclosing his vaccination and employment status to a third party.

Finally, the complaint alleged that "Ramirez's employment status, and his vaccination status, were intensely private matters" and the City and Individual Defendants violated his constitutional right to privacy "by intentionally mailing Ramirez's vaccination and employment status to his brother."

2. Procedural Background

Ramirez filed his complaint in May 2022. In July 2022, the Individual Defendants moved to strike the complaint and filed a demurrer to the complaint in which they argued: (1) that the IIED, NIED, and invasion of privacy claims were barred or failed as a matter of law because the Individual Defendants are immune from liability pursuant to sections 821, 820.2, 8655, and 8660; (2) the claims were not grounded in statute as required by section 815; and (3) Ramirez had failed to plead facts speaking to malice, oppression, fraud, outrageous conduct, or conduct that exceeds all bounds of decency. Ramirez opposed the motion and demurrer.

The court sustained the Individual Defendants' demurrer as to the IIED cause of action without leave to amend because "[a]ny claims regarding the process of seeking a religious exemption concern management decisions" and "were not designed intentionally or specifically by the City or the Individual Defendants to cause plaintiff any type of distress here, particularly intentional infliction of emotion[al] distress." There were also "no facts pleaded upon which plaintiff can base an inference of 'intent'" with regard to mailing the termination notice to Ramirez's brother. With respect to the NIED cause of action, the court concluded "it is textbook law that there is no such cause of action in this context" and "[t]his type of cause of action is only applicable to bystander distress." The court further held that the allegation was unsupported by factual allegations and sustained the demurrer without leave to amend. Finally, with respect to invasion of privacy, the court noted that "[t]here is no present California authority for the proposition that there is a medical right to privacy regarding immunization," citing Love v. State Dept. of Education (2018) 29 Cal.App.5th 980 (Love) and therefore sustained that cause of action without leave to amend.

Although Ramirez was not given leave to amend these causes of action, he repeated each of the allegations contained in the original complaint in his first amended complaint "for purposes of appellate review." The Individual Defendants demurred to the first amended complaint on this ground. The court struck these allegations on the ground that they were sustained without leave to amend and entered an order of dismissal for the Individual Defendants on January 4, 2023. Ramirez timely appealed.

DISCUSSION

Ramirez contends that the Individual Defendants are not entitled to statutory immunity under sections 820.2 or 821. He argues that FEHA does not foreclose his IIED cause of action against the Individual Defendants for their handling of the religious exemption process and termination of his employment, and that he adequately alleged the elements of IIED. Ramirez further asserts that the court erred in concluding that a NIED cause of action can be based only on bystander distress and contends that the complaint alleges, or could be amended to allege, sufficient facts establishing that the Individual Defendants owed a duty to him. Finally, Ramirez contends that he adequately alleged a cause of action for invasion of the constitutional right to privacy and that the court erred in concluding that he had no privacy right to his vaccination status.^[4]

In addition to asserting immunity under sections 820.2 and 821 the Individual Defendants contend that the demurrer was properly sustained because they have immunity under sections 815 and 821. They further argue that the Individual Defendants' acts in implementing the vaccine mandate, engaging in the exemption process with Ramirez, and terminating Ramirez were personnel management actions, and that they cannot be held personally liable for discrimination in connection with those actions. The Individual Defendants further contend that the compelling interest of public entities in stemming the spread of Covid-19 "justifies any invasion of [Ramirez's] privacy."

1. Standards of Review

"[A] demurrer accepts as true all well-pleaded facts and...