C.A. Restores Privacy Suit Based on Revealing Plaintiff Had Not Received COVID Shot
Decision Draws Partial Dissent by Egerton
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reinstated, over a dissent, a cause of action against two city officials for invading the privacy of a part-time bus driver by mailing his termination notice to his brother, disclosing his medical status—not having been inoculated against COVID-19.
It was the refusal to be inoculated that prompted the firing of the plaintiff, Fernando Ramirez.
Justice Luis Lavin of Div. Three wrote the majority opinion and Presiding Justice Lee Edmon joined in it. Dissenting, in part, was Justice Anne H. Egerton.
Ramirez appealed from a judgment of dismissal that was entered after Los Angeles Superior Court Judge Michael L. Stern sustained demurrers without leave to amend to all causes of action against Rene Bobadilla, city manager of Montebello, and Nicholas Razo, the city’s director of human resources (denominated by Lavin “Individual Defendants”). The judgment was upheld, in an unpublished opinion, as to disallowing causes of action for negligent and intentional infliction of emotional distress based on the termination of Ramirez’s employment, but reversed as to rejection the privacy claim.
“We agree that the Individual Defendants and the City had a compelling interest in providing a safe workplace and protecting the general public from infectious disease….However, we do not know why the Individual Defendants felt this interest required them to inform Ramirez’s brother of Ramirez’s vaccination status and thus cannot conclude that any justification they had for doing so negated Ramirez’s reasonable expectation of privacy with respect to his medical information. In the absence of evidence concerning the competing social interests and relevant customs and practices, we cannot hold that the alleged privacy expectation was unreasonable as a matter of law.”
Ramirez insisted that his “employment status, and his vaccination status…were intensely private matters, and he was subjected to shame and humiliation for being both terminated and unvaccinated.”
Lavin said “the allegations of the complaint do not establish that the violation of Ramirez’s privacy was insubstantial, such that this issue can be adjudicated as a matter of law.”
He focused on the vaccination status, as he said Ramirez had in his briefs.
Egerton said in her concurring and dissenting opinion:
“Taking as true Ramirez’s allegation that the individual defendants intentionally disclosed his vaccination status to his brother, that allegation simply does not state a cause of action under existing law. The majority has cited no case recognizing a privacy right under California’s Constitution in the fact one is unvaccinated. Nor have I been able to find any case that so holds. In concluding Ramirez has stated a cause of action for invasion of privacy, the majority holds—whether explicitly or implicitly—that the fact of a person’s ‘vaccination status’ is a protectible privacy interest under California law. That holding represents a significant expansion of tort liability in California.:
She quoted Stern as saying:
“There is no present California authority for the proposition that there is a medical right to privacy regarding immunization.”
“The trial court was right. While there are cases concerning vaccinations generally, and vaccinations against COVID-19 in particular, none holds there is, or isn’t, a constitutional right of privacy in the fact one is—or isn’t—vaccinated.”
The justice went on to say:
“In my view, there’s a good reason no published California case (or federal case applying California law) has held there is a right to privacy in the fact of whether one is vaccinated or unvaccinated: A refusal or failure to be vaccinated affects other people. Cancer and diabetes are not contagious. A virus like COVID-19 is. A person who chooses to remain unvaccinated poses a risk to co-workers, others around them, and the public. At oral argument, Ramirez’s counsel said twice that his client drove a bus for the City. Bus drivers—obviously—come into daily contact with the public, including seniors and children. Governments have the right—indeed, the responsibility— to protect all of their employees as well as the public.”
“Ramirez does not say whether he lived with his brother or whether his brother knew or didn’t know of his ‘vaccination status.’ Nor does he attach a copy of the notice or the envelope to his complaint. At oral argument, counsel for the City represented that that was the “address on file with the City” for Ramirez. When asked by the court if that were true, Ramirez’s attorney replied, ‘I don’t have that file or envelope with me but I don’t believe that it was.’ ”
The case is Ramirez v. Razo, B326839.
Paul M. Mahoney and Ryan P. Mahoney of the Claremont firm of Mahoney & Soll represented Ramirez and Pasadena attorney Nancy P. Doumanian acted for Bobadilla and Razo.
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