Rossi v. Sequoia Union Elementary Sch.

94 Cal.App.5th 974

312 Cal.Rptr.3d 738

Gloria Elizabeth ROSSI, Plaintiff and Appellant,

v.SEQUOIA UNION ELEMENTARY SCHOOL et al., Defendants and Respondents.

F085416

Court of Appeal, Fifth District, California.

Filed August 25, 2023

Howard Williams, Woodland Hills, Emilio Martinez and Dana Oviedo for Plaintiff and Appellant.

Weakley & Arendt, James D. Weakley, and Matthew P. Bunting, Fresno, for Defendants and Respondents.

HILL, P. J.

Plaintiff Gloria Elizabeth Rossi appeals the trial court's order sustaining the defendants' demurrer to her complaint, without leave to amend. Plaintiff was placed on unpaid administrative leave and then terminated from her employment with defendant Sequoia Union Elementary School District (the School District) after refusing to either provide verification of her COVID-19 vaccination status or undergo weekly testing as required by a then-operative order of the State Public Health Officer.

Plaintiff brought suit under the Confidentiality of Medical Information Act (CMIA) ( Civ. Code, § 56 et seq. )¹ against defendants the School District; Sequoia Union Elementary School (the School) where she worked; and Ken Horn, the School principal and superintendent. The complaint asserts two causes of action under the CMIA, alleging (1) discrimination due to her refusal to authorize release of her medical information and (2) unauthorized use of her medical information. The trial court sustained defendants' demurrer without leave to amend, finding each claim failed as a matter of law due to certain statutory exceptions.

This appeal is related to two other contemporaneous appeals ( Dennis v. Tulare City School District (Aug. 25, 2023, F085428) 2023 WL 5498733 [nonpub. opn.]; Moran v. Tulare County Office of Education (Aug. 25, 2023, F085385) 2023 WL 5498734 [nonpub. opn.]) from nearly identical orders by judges of the Tulare County Superior Court dismissing identical CMIA causes of action by similarly situated school-worker plaintiffs. The plaintiff-appellants in all three cases were represented by the same counsel; the cases were argued on the same day before the same panel of this court; and we now issue opinions affirming the trial court's orders on substantially identical grounds in all three cases.

FACTS AND PROCEDURAL HISTORY

From March 2020 through February 2023, California was in a State of Emergency due to COVID-19. (Governor's Proclamation (Feb. 28, 2023) [terminating state of emergency declared Mar. 4, 2020] < https://mclist.us7.list-manage.com/track/click?u=afffa58af0d1d42fee9a20e55&id=edc0e06ca6 &e=0b26ba1b5> [as of Aug. 25, 2023];² see Gov. Code, § 8627.) Midway through this period, on August 11, 2021, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers (State Dept. of Public Health, State Public Health Officer Order of Aug. 11, 2021 < https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Vaccine-Verification-for-Workers-in-Schools.aspx> [as of Aug. 25, 2023]) (Order or Public Health Order).³ Because this Order forms the basis of the trial court's dismissal order, we describe its contents in some detail.

As described in the prefatory text, the Public Health Order "require[d] verification of vaccination status among eligible K-12 school workers, and establishe[d] diagnostic screening testing of unvaccinated workers to minimize the risk that they will transmit while on K-12 school campuses, where a majority of students are not vaccinated and younger students are not yet eligible for vaccines." The Order provided that all covered schools "must verify [the] vaccine status of all workers" and listed specific modes of proof of vaccination. (Public Health Order, part II.A.) Further, "[a]symptomatic unvaccinated or incompletely vaccinated workers [were] required to undergo diagnostic screening testing" at least once per week, using either PCR (molecular) or antigen tests. (Id. , part III.A., B., boldface omitted.) Of particular importance to this appeal, the Order specified that "[w]orkers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated." (Id. , part II.C.) The Order also stated that schools whose workers were required to test "must report results to local public health departments." (Id. , part III.D.) The Order defined school " ‘worker[s]’ " as all paid and unpaid adults serving in K-12 school settings both public and private, including on-site volunteers. (Id. , parts I., IV.F.)

The Public Health Order, which took effect on August 12, 2021, provided that "[f]acilities must be in full compliance" by October 15, 2021. (Public Health Order, supra , part VII.) The Order remained in effect until its rescission, effective September 17, 2022, about two months after plaintiff's termination. (See State Dept. of Public Health, State Public Health Officer Order of Sept. 13, 2022 [rescinding Aug. 11, 2021 Public Health Officer Order effective Sept. 17, 2022] < https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Vaccine-Verification-for-Workers-in-Schools.aspx> [as of Aug. 25, 2023].)

When the Public Health Order went into effect, plaintiff was working at the School, as she had for decades, providing in-person classroom assistance for children with special needs and children whose primary language is Spanish. The complaint describes the events leading to plaintiff's termination by reproducing a series of written communications (e-mails and letters) between plaintiff and defendant Horn, the School principal. In summary, defendants began requiring proof of their workers' COVID-19 vaccination status in September and October 2021; but plaintiff consistently refused to disclose her vaccination status or undergo weekly testing, informing Horn that she did not consent to him obtaining or disclosing her medical information. Horn repeatedly referenced the School's obligation to comply with the Public Health Order by having plaintiff either prove vaccination or test weekly. In one of his initial e-mails to plaintiff, he wrote, "Allowing you to continue work on campus, without verifying your COVID-19 vaccine status nor submitting to weekly testing, would require the [School] [D]istrict to violate [the] Order, which carries the force of law." In the same e-mail, Horn directed plaintiff to remain home in light of her refusals; and at a meeting the next day he offered her the option of working remotely as a "discretionary accommodation." Plaintiff declined, believing that she could not fulfill her job duties remotely.

Given plaintiff's rejection of the option to work remotely, Horn directed her to report to work in person and to at least comply with the weekly COVID-19 testing requirement or face disciplinary action. Plaintiff continued not to provide proof of vaccination or weekly test results, and on October 28, 2021, defendants informed plaintiff she was being placed on unpaid leave until she followed the test-or-vaccinate requirements. Specifically, Horn informed plaintiff: "As a result of your non-compliance, you are ineligible to work for [the School District]. Because you are no longer eligible to work for the [School] District, you have been placed in a nondisciplinary unpaid status." Plaintiff responded, "I do not consent to giving up any of my medical information," and she asked Horn to reinstate her authorization to return to work immediately or terminate her employment.

A few weeks later, still having not complied with the vaccinate-or-test requirements, plaintiff received another letter from Horn providing a "second warning." The second warning letter described the requirement to submit proof of COVID-19 testing as a "new job-related requirement." The letter stated the School District was "legally required to consider [plaintiff] not in compliance with [the Public Health] Order" due to her failure to verify her "vaccination or testing status." The letter also noted plaintiff's "repeated failure to adhere to the law in accordance with [School] District policies and directives is unprofessional and demonstrates insubordination." Plaintiff once again refused to "giv[e] up any of [her] medical information," requesting that she either be reauthorized for work or terminated. About one week later, in late November 2021, Principal Horn sent another letter confirming that plaintiff would "remain in unpaid status unless and until [she] either bec[a]me fully vaccinated against COVID-19 or submit[ted] to weekly COVID-19 testing."

The complaint does not describe any further communications between the two over the rest of the school year, but plaintiff alleges she received a formal "statement of dismissal," signed by Horn on July 7, 2022, terminating her employment. Plaintiff filed the instant complaint less than two weeks later.

The complaint asserts two causes of action under the CMIA: (1) discrimination due to plaintiff's refusal to authorize a release of her medical information, in violation of section 56.20, subdivision (b) ( section 56.20(b) );⁴ and (2) unauthorized use of her medical information, in violation of section 56.20, subdivision (c) ( section 56.20(c) ).⁵

Demurrer and Trial Court Ruling

Defendants demurred, arguing the section 56.20(b) discrimination cause of action failed because defendants "took such action as [was] necessary in the absence of medical information due to [p]laintiff's refusal to sign an authorization," invoking the Public Health Order and the second sentence of section 56.20(b). Defendants argued the section 56.20(c) unauthorized use cause of action failed because, first, they did not "use" plaintiff's medical information, plaintiff never having provided her vaccination or testing status, and even assuming they had, their use of that information "was compelled by ... [a] specific provision of law" ( § 56.20, subd. (c)(1) ),...