Metropolitan News-Enterprise


Friday, June 23, 2023


Page 1


Court of Appeal:

Challenge to City’s Inoculation Mandate Improperly Axed

Majority Says Judge Linfield Erred by Resolving Debatable Issues of Fact Through Taking Judicial Notice


By a MetNews Staff Writer


Los Angeles Superior Court Judge Michael P. Linfield erred in torpedoing an action by a group of firefighters challenging a City of Los Angeles ordinance requiring that all city employees be vaccinated against COVID-19 because he decided matters based on judicial notice that were triable issues of fact, the Court of Appeal for this district has declared in a 2-1 decision.

“The facts the City submitted were not subject to judicial notice because the safety and efficacy of the COVID-19 vaccines are subjects of reasonable dispute and are not universally known, commonly known, or readily ascertainable and require the presentation of evidence, either on summary judgment or at trial,” Justice Segal of Div. Seven said in his majority opinion, filed Wednesday.

Presiding Justice Dennis M. Perluss joined in Segal’s opinion. Los Angeles Superior Court Judge Kristin S. Escalante concurred and dissented.

Two Claims Reinstated

Segal’s opinion orders reinstatement of a cause of action seeking a declaration that the city lacked lawful authority to issue the immunization mandate and a cause of action to proclaim the mandate to be violative of the employees’ privacy rights.

At the request of the appellant, Firefighters4Freedom, Div. Seven dismissed the appeal as it related to a cause of action to enjoin the enforcement of Ordinance No. 187134, which went into effect Aug. 25, 2021, in light of the City Council’s action in lifting the inoculation mandate through a resolution, effective Feb. 1, declaring that pandemic measures are terminated. That action took place while the appeal from Linfield’s judgment of dismissal was pending.

The judgment followed Linfield’s order sustaining demurrers without leave to amend. Linfield ruled after taking judicial notice that “COVID-19 vaccinations are safe and effective in protecting the health and safety of the public” and “[t]here is consensus in the medical and scientific community that COVID-19 vaccines are a reasonable method to lessen the spread of COVID-19 during the present global pandemic.”

Quotes Tyson

Segal kicked off his opinion by quoting astrophysicist/author Neil deGrasse Tyson as having said in an interview:

“The good thing about science is that it’s true whether or not you believe in it.”

The jurist commented:

“Under California’s pleading rules, however, truth, scientific or otherwise, usually cannot be determined on demurrer.”

He cited the division’s July 13, 2022 opinion in Marina Pacific Hotel & Suites, LLC v. Fireman’s Fund Ins. Co. In a variation on the observation Sir Arthur Conan Doyle ascribed to Sherlock Holmes that “[i]f you eliminate the impossible, whatever remains, however improbable, must be the truth,” Presiding Justice Dennis M. Perluss said, in essence, that whatever remains, in the context of litigation, must be a triable issue of fact.

Perluss wrote:

“Unlike in federal court, the plausibility of the insureds’ allegations has no role in deciding a demurrer under governing state law standards, which…require us to deem as true, ‘however improbable,’ facts alleged in a pleading….”

Judicial Notice

Segal said in Wednesday’s majority opinion:

“Firefighters4Freedom argues the trial court erred in taking judicial notice of facts about the safety and effectiveness of COVID-19 vaccines, especially in light of the Omicron variant….

“We agree the trial court erred in taking judicial notice of the truth of the statements in the documents the City asked the court to judicially notice. Because the facts in the documents submitted by the City were not subject to judicial notice, Firefighters4Freedom’s causes of action cannot be resolved on demurrer. A trial court, of course, may take judicial notice of certain aspects of the COVID-19 pandemic, the disease caused by the virus, and the existence of certain government actions and publications concerning COVID-19. But the trial court here took judicial notice of the truth of disputed factual matters. And that was error.”

The justice noted that Linfield cited the relevant Evidence Code sections—451 and 452—but did not pinpoint how the requirements of those sections were met. He also pointed out that in addition to factual disputes spawned by authorities relied upon by Firefighters4Freedom, the very documents the city cited, upon which the trial judge relied, “reflected reasonable disputes” that exist as to the validity of the propositions set forth.

In light of “the continuing evolution of the virus,” there is an ever-changing picture, Segal said. He also remarked that terms that are used in documents submitted by the city, such as “safe” and “effective” are ambiguous.

Demurrers Improperly Sustained

He declared that “Firefighters4Freedom’s allegations, ‘even if improbable [and] absent judicially noticed facts irrefutably contradicting them,’ stated a cause of action under the police powers clause of the California Constitution”

Addressing the cause of action under Art. I, §1 of the state Constitution for invasion of privacy, Segal wrote: “Firefighters4Freedom alleged City firefighters have a legally protected privacy interest in their bodily integrity. The trial court ruled Firefighters4Freedom failed to allege a legally protected privacy interest because ‘the challenged action clearly implicates public health and safety and does not affect a fundamental right to privacy.’ To be protected, however, a privacy interest need not be fundamental.”

The city argued that it did not invade privacy because it did not force any employee to be inoculated; they were at liberty to refuse and seek employment elsewhere.

Segal responded that “the California Supreme Court has recognized legally protected privacy interests in cases where the plaintiffs were not ‘forced’ to succumb to an alleged invasion of privacy.”

He pointed to the 1994 decision in Hill v. National Collegiate Athletic Assn. (1994) involving a inoculated drug testing requirement for college athletes team members and the state high inoculated court’s 2009 holding in Sheehan v. San Francisco 49ers, Ltd. which dealt with a policy under which those attending football games were compelled to submit to pat-down searches.

“That the athletes in Hill could have quit playing sports, and the fans in Sheehan could have stopped going to games, did not negate the privacy interests in those cases,” Segal wrote. “Similarly, that City firefighters could quit their jobs instead of getting a COVID-19 vaccine does not eliminate the firefighters’ privacy interest in their bodily integrity.”

Escalante’s Opinion

Escalante agreed that Linfield erred in sustaining a demurrer to the privacy cause of action but dissented as to the reversal relating to the cause of action based on the city allegedly exceeding its police powers.

“During a public health emergency, government entities must act swiftly to protect public health,” she wrote. “They must be able to rely on the guidance and expertise of public health officials in responding to such a crisis.”

She maintained that statements issued by the federal Centers for Disease Control and Prevention and the California Department of Public Health “establish there is a reasonable relationship between the ordinance and the legitimate purpose of protecting the public during a public emergency.”

As Escalante sized it up:

“[G]iven the nature of a pandemic caused by a new and evolving virus, government entities necessarily had to take action to protect the public despite uncertainty. At the time the ordinance was passed in August 2021, the Delta variant was surging. Over 630,000 people had died from COVID-19 in the United States. That number grew to 750,000 just two months later, when the implementing resolution was passed.”

Gauging Reasonableness

She continued:

“Under those conditions, the City was forced to act with imperfect information. The reasonableness of the government entity’s action is appropriately measured with reference to the statements of public health officials with the expertise to provide such guidance. information. The reasonableness of the government entity’s action is appropriately measured with reference to the statements of public health officials with the expertise to provide such guidance.”

Escalante declared that statements by such officials “supply a reasonable basis for the City’s vaccine mandate, even if there is room for scientific debate on the issue.”

Neither opinion discusses whether the validity of Ordinance No. 187134 is moot in light of the decision not to enforce it.

The case is Firefighters4Freedom v. City of Los Angeles, B320569.


Copyright 2023, Metropolitan News Company