Ramirez v. Razo CA2/3

Filed 2/5/24 Ramirez v. Razo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

FERNANDO RAMIREZ, B326839

Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 22STCV16668
NICHOLAS RAZO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, 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.
_______________________________________
 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.

1 The complaint also alleged causes of action against the City, which

were overruled in part. The City is not a party to this appeal.

2
 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, Ramirez2
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

2 The complaint contains multiple references to “Martinez,” which we

presume were intended to refer to Ramirez.

3
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 Code3 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

3 All undesignated statutory references are to the Government Code.

4
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

5
“[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.

6
 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.”

4 Ramirez also contends that the City’s argument that FEHA was

suspended was unsupported. As the City is not a party to the appeal,
we do not address this contention.

7
1. Standards of Review
“[A] demurrer accepts as true all well-pleaded facts and
those facts of which the court can take judicial notice but not
deductions, contentions, or conclusions of law or fact.” (Fox v.
JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) “We
review de novo an order sustaining a demurrer. [Citation.] . . . In
deciding whether a demurrer was properly sustained, ‘[w]e are
not bound by the trial court’s stated reasons, if any, supporting
its ruling; we review the ruling, not its rationale.’ [Citation.]”
(Center for Environmental Health v. Perrigo Co. (2023) 89
Cal.App.5th 1, 16.)
“A trial court’s decision to deny leave to amend will be left
undisturbed unless we conclude that there was an abuse of
discretion.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29
Cal.App.5th 146, 152.) “If a complaint does not state a cause of
action, but there is a reasonable possibility that the defect can be
cured by amendment, leave to amend must be granted.”
(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th
26, 39.) “Contrary to long-standing rules generally precluding a
party from changing the theory of the case on appeal [citations], a
plaintiff may propose new facts or theories to show the complaint
can be amended to state a cause of action, thereby showing the
trial court ‘abused its discretion’ [citation] in not granting leave
to amend.” (Connerly v. State of California (2014) 229
Cal.App.4th 457, 460.) “The plaintiff ‘must show in what manner
he can amend his complaint and how that amendment will
change the legal effect of his pleading’ ” (ibid.) and the burden of
establishing that there is a reasonable possibility that the
complaint could be amended to state a cause of action “is

8
squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)
2. The Individual Defendants cannot establish that they
are entitled to statutory immunity under the
allegations of the complaint.
The Individual Defendants contend, and Ramirez refutes,
that they are immune from liability under sections 815, 818.2,
820.2, and 821. Because the Individual Defendants assert
statutory immunity as a complete defense to the claims against
them, we consider these arguments first.
Section 815, subdivision (a), provides: “Except as otherwise
provided by statute, a public entity is not liable for an injury
whether such injury arises out of an act or omission of the public
entity or a public employee or any other person.” Although this
section clearly bars tort claims against the City for which there is
not statutory authority, the Individual Defendants are not public
entities. Section 820, subdivision (a), states: “Except as otherwise
provided by statute (including Section 820.2), a public employee
is liable for injury caused by his act or omission to the same
extent as a private person.” Thus, the Government Claims Act
(§ 810 et seq.) “ ‘establishes the basic rules that public entities
are immune from [noncontractual] liability except as provided by
statute (§ 815, subd. (a)), [and] that public employees are liable
for their torts except as otherwise provided by statute (§ 820,
subd. (a)).’ ” (Greenwood v. City of Los Angeles (2023) 89
Cal.App.5th 851, 857–858, quoting Caldwell v. Montoya (1995) 10
Cal.4th 972, 980 (Caldwell).) In other words, “[w]hen it comes to
tort suits against public employees, ‘ “the rule is liability,
immunity is the exception.” [Citation.]’ [Citations.]” (Freeny v.
City of San Buenaventura (2013) 216 Cal.App.4th 1333, 1341.)

9
 We therefore reject the Individual Defendants’ assertion
that the demurrer was properly sustained under section 815.
Similarly, because section 818.2 provides that “[a] public entity is
not liable for an injury caused by adopting or failing to adopt an
enactment or by failing to enforce any law,” we reject the
Individual Defendants’ assertion that they are entitled to
statutory immunity under this provision. However, we consider
whether the Individual Defendants can establish that they are
entitled to immunity as a matter of law under sections 820.2 and
821, which are exceptions applicable to public employees.
2.1. Section 820.2
Section 820.2 provides: “Except as otherwise provided by
statute, a public employee is not liable for an injury resulting
from his act or omission where the act or omission was the result
of the exercise of the discretion vested in him, whether or not
such discretion be abused.” In determining whether a public
employee’s act is “discretionary” under section 820.2, courts
distinguish between the employee’s operational and policy
decisions. (See Caldwell, supra, 10 Cal.4th at p. 981.) Immunity
is reserved for “ ‘basic policy decisions [which have] . . . been
[expressly] committed to coordinate branches of government,’ and
as to which judicial interference would thus be ‘unseemly.’ ”
(Ibid., quoting Johnson v. State (1968) 69 Cal.2d 782, 793.)
However, “there is no basis for immunizing lower-level, or
‘ministerial,’ decisions that merely implement a basic policy
already formulated. [Citation.] . . . [I]mmunity applies only to
deliberate and considered policy decisions, in which a ‘[conscious]
balancing [of] risks and advantages . . . took place.’ ” (Caldwell, at
p. 981, quoting Johnson, at pp. 794, fn. 8 & 796.)

10
 “ ‘[T]o be entitled to immunity the state must make a
showing that such a policy decision, consciously balancing risks
and advantages, took place. The fact that an employee normally
engages in “discretionary activity” is irrelevant if, in a given case,
the employee did not render a considered decision’ [citation].
Such a showing . . . could not have been made . . . at the
demurrer stage.” (Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 794; accord, Zuniga v. Housing Authority
(1995) 41 Cal.App.4th 82, 98–99 [claim of immunity cannot be
resolved on demurrer absent allegations that, on their face,
establish the existence of governmental immunity by describing
decision-making process involved in allegedly wrongful decision],
abrogated on another ground by Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112.) The burden of proof to show that
discretionary immunity applies is on the public entity claiming
the immunity. (Lopez, at p. 794.)
Although the Supreme Court indicated that immunity
under section 820.2 generally cannot be established at the
demurrer stage, it concluded that the allegations of the complaint
in Caldwell established that the defendants’ acts were covered by
section 820.2. In Caldwell, a school superintendent, who was
allegedly terminated on racial grounds, filed a complaint against
the members of the school board who had voted to terminate him.
(Caldwell, supra, 10 Cal.4th at pp. 976–977.) The Supreme Court
held that allegations in the complaint regarding the acts of a
school board in voting to terminate sufficiently described
discretionary acts that were immune under section 820.2 under
the parameters set forth in Johnson. It concluded that “[a] fair
reading of the instant complaint reveals allegations that the
Board made an actual, conscious, and considered collective policy

11
decision to replace plaintiff as superintendent. The complaint
admits of no theory that the Board acted unconsciously or failed
to weigh pros and cons. On the contrary, it asserts that Board
members did purposefully employ standards they deemed
relevant, but that the standards employed were wrong and
impermissible.” (Caldwell, at p. 984.) The court further held that
“claims of improper evaluation cannot divest a discretionary
policy decision of its immunity.” (Ibid.)
Here, the facts alleged in the complaint do not, on their
face, disclose facts demonstrating that the Individual Defendants
engaged in a conscious balancing of the risks and advantages
sufficient to trigger immunity. The complaint alleged that Razo
told Ramirez that there were a fixed number of exemptions (1
percent) that would be granted and that the Individual
Defendants “knowingly subjected him to a rigged interview
process and knew beforehand that they were going to violate
Ramirez’s religious rights.” Thus, the complaint alleges that, in
refusing Ramirez the religious exemption, the Individual
Defendants “merely implement[ed] a basic policy already
formulated” and did not engage in a conscious balancing.
(Caldwell, supra, 10 Cal.4th at p. 981.) At this stage, we cannot
conclude that the Individual Defendants proved that they acted
in a discretionary manner.
Moreover, although the denial of a religious exemption and
termination of Ramirez’s employment could be an appropriate
exercise of discretion vested in them, the Individual Defendants
do not argue that the alleged intentional disclosure of Ramirez’s
vaccination status and the fact that his employment was
terminated to a third party was an exercise of the discretion
vested in them.

12
 2.2. Section 821
Section 821 states: “A public employee is not liable for an
injury caused by his adoption of or failure to adopt an enactment
or by his failure to enforce an enactment.” Ramirez argues that
the complaint did not challenge the adoption of the mandate or
the failure to adopt one, but religious discrimination in its
implementation. He argues that the 1 percent rule to which Razo
admitted was not part of the vaccine mandate policy and thus
section 821 does not apply.
“As the Supreme Court has explained, Government Code
section 818.2 [the companion section to section 821] was intended
to provide immunity for legislative and quasi-legislative action
and to protect the exercise of discretion by law enforcement
officers in carrying out their duties.” (Guzman v. County of
Monterey (2009) 178 Cal.App.4th 983, 996; see also Wood v.
County of San Joaquin (2003) 111 Cal.App.4th 960, 972 [“This
immunity is necessary to protect the essential governmental
function of making laws, so that the judiciary does not question
the wisdom of every legislative decision through tort litigation.”].)
The Individual Defendants cite Nunn v. State of California
(1984) 35 Cal.3d 616 to support their claim that section 821
applies here. In Nunn, the plaintiff’s decedent was fatally shot
while patrolling a manufacturing plant in the course and scope of
his employment as a uniformed security guard and the complaint
alleged that the State and the individual defendant, chief of the
Bureau of Collection and Investigative Services, negligently
delayed the promulgation of regulations governing a course of
instruction in firearms use for employees of licensed private
patrol agencies. (Id. at p. 620.) The Supreme Court explained
that “[t]he immunity afforded by Government Code sections 818.2

13
and 821 attaches only to discretionary functions.” (Id. at p. 622.)
It concluded that the promulgation of regulations consistent with
a Business and Professions Code section requiring that security
guards complete a course of training in the carrying and use of
firearms “necessarily involve[d] ‘planning’ rather than
nondiscretionary ‘operational’ or ‘street level’ decisions” and that
“the quasi-legislative implementation of basic legislative decision
is protected.” (Ibid.) The court stated that “the formulation of
regulations involved holding public hearings and the review of
public comments,” during which the Bureau was “presented with
two contending interests requiring judgment”: its “interest in
having maximum input into the drafting of the regulations in
order to ensure their adequacy” and “the necessity of
implementing regulations as soon as possible in order that the
required courses could be provided.” (Id. at p. 623.) “Subjecting
the Bureau to the possibility of tort liability for its exercise of
discretion in accommodating these contending interests would
interfere with the Bureau’s deliberative process.” (Ibid.) The
Supreme Court therefore held that the immunity of sections
818.2 and 821 attached to the defendants. (Id. at p. 626.)
The Individual Defendants’ denial of Ramirez’s request for
a religious exemption does not appear to be the legislative or
quasi-legislative actions of adopting or failing to adopt an
enactment, as in Nunn, or a failure to enforce an enactment, but
the enforcement of an enactment, which is not described under
sections 818.2 and 821. Carroll v. City and County of San
Francisco (2019) 41 Cal.App.5th 805 supports the conclusion that
the enforcement of an enactment is not covered by these sections.
In Carroll, the court concluded that the defendants were not
entitled to immunity under section 818.2 where the plaintiff

14
alleged “that defendants ‘enacted, implemented, and enforced the
unlawfully discriminatory retirement provisions at issue here’ ”
because the injury she alleged did not arise from the adoption of
the relevant city charter section “but instead from the
defendants’ subsequent enforcement of this provision with
respect to her.” (Carroll, at p. 824.) It observed that “[s]ection
818.2 does not immunize public entities from damages that result
from injuries that arise from the enforcement of a law.” (Ibid.)
The Carroll court explained that, in Nunn, “the Supreme Court
distinguished cases where the plaintiff’s alleged injury arose from
nondiscretionary, operational acts implementing policy decisions”
and that “governmental immunity applied in Nunn only because
the implementation that caused injury involved quasi-legislative
discretionary acts.” (Id. at p. 825.) Unlike in Nunn, the plaintiff
in Carroll did “not allege that defendants took any legislative or
quasi-legislative acts in granting her retirement and enforcing
the Charter.” (Ibid.) “Thus, on the face of her complaint, the
injury that plaintiff alleges arising from these acts is not subject
to section 818.2 immunity.” (Ibid.)
The allegations of the complaint in this case are more
similar to those in Carroll than to those in Nunn. Although
Carroll concerned a claim of immunity under section 818.2 only,
the parallel language of the provisions renders its reasoning
equally applicable to section 821. Thus, we conclude that section
821 also does not immunize public employees from damages that
result from injuries that arise from the enforcement of a law or
policy. (Carroll v. City and County of San Francisco, supra, 41
Cal.App.5th at p. 824.) Even if that were not the case, the
allegations of the complaint do not support that, in deciding
whether to grant Ramirez a religious exemption, the Individual

15
Defendants weighed competing interests, as the promulgation of
regulations required the defendants to do in Nunn. Thus, the
Individual Defendants cannot establish that they are entitled to
immunity under section 821 under the allegations of the
complaint.
We therefore conclude that the affirmative defense of
statutory immunity cannot be established on a demurrer in this
matter.
3. Ramirez cannot hold Individual Defendants liable for
conduct premised on discrimination in the religious
exemption process.
The Individual Defendants further contend that they
cannot be liable for claims of discrimination under FEHA. The
cause of action for religious discrimination in violation of FEHA
was asserted against the City of Montebello only. There was
never any assertion in the complaint that the Individual
Defendants were liable under FEHA. However, they further
argue that, for the same reason a claim against them under
FEHA for employment discrimination must fail, “necessary
personnel management actions . . . cannot be the basis of a tort
claim either.” They rely on Reno v. Baird (1998) 18 Cal.4th 640
and Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55
(Janken) for this proposition. It is likely that the court also relied
on these authorities in concluding that the IIED cause of action
failed with respect to “[a]ny claims regarding the process of
seeking a religious exemption” because they “concern[ed]
management decisions.”
A tort claim against supervisory employees premised on
employment discrimination, rather than harassment, is generally
not viable. The court in Janken explained that “harassment

16
consists of conduct outside the scope of necessary job
performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other
personal motives. Harassment is not conduct of a type necessary
for management of the employer’s business or performance of the
supervisory employee’s job.” (Janken, supra, 46 Cal.App.4th at
p. 63.) “Discrimination claims, by contrast, arise out of the
performance of necessary personnel management duties. While
harassment is not a type of conduct necessary to personnel
management, making decisions is a type of conduct essential to
personnel management. While it is possible to avoid making
personnel decisions on a prohibited discriminatory basis, it is not
possible either to avoid making personnel decisions or to prevent
the claim that those decisions were discriminatory.” (Id. at
pp. 63–64.) The Janken court observed that, under FEHA, it is
unlawful for an employer to discriminate and unlawful for an
employer or any other person to harass, which “suggests that
liability for harassment is broader than liability for
discrimination” and that “[l]iability for discrimination, by
contrast, is limited to the ‘employer’ only.” (Id. at p. 65.) The
court rejected the contention that individual supervisory
employees are at risk of personal liability for age discrimination
on the theory that individual supervisory employees are agents of
employers, and thus are themselves “employers.” (Id. at p. 66.)5

5 In Reno v. Baird, supra, 18 Cal.4th 640, the Supreme Court adopted

the Janken court’s distinction between discrimination and harassment
under FEHA (id. at pp. 645–647), as well as its analysis of whether the
agent language in FEHA did not subject supervisory employees to
liability for discrimination. (Id. at pp. 647–650.) The court found
criticism of the Janken decision to be “unpersuasive” (id. at p. 656) and
concluded “that individuals who do not themselves qualify as

17
 Applying these principles to the case before it, the Janken
court concluded that the factual allegations against the
supervisory employees pleaded claims of discrimination, not
harassment. “All the actions alleged . . . [were] within the realm
of properly delegated personnel management authority” and
“would be unlawful only if motivated by prohibited
discriminatory considerations.” (Janken, supra, 46 Cal.App.4th at
p. 79.) Because it “concluded that only employers—and not
individual supervisory employees—are at risk of liability for
discrimination . . . the trial court was correct in dismissing the
individual supervisory employees.” (Id. at p. 80.) The court
further held that the IIED cause of action alleged against the
individual supervisory employee defendants failed “for similar
reasons.” (Ibid.) “An essential element of such a claim is a
pleading of outrageous conduct beyond the bounds of human
decency. [Citations.] Managing personnel is not outrageous
conduct beyond the bounds of human decency, but rather conduct
essential to the welfare and prosperity of society. A simple
pleading of personnel management activity is insufficient to
support a claim of intentional infliction of emotional distress,
even if improper motivation is alleged. If personnel management
decisions are improperly motivated, the remedy is a suit against
the employer for discrimination.” (Ibid.; see also Smith v.
International Brotherhood of Electrical Workers (2003) 109
Cal.App.4th 1637, 1658 [because a defendant supervisor could
not be personally liable for discrimination-based employment

employers may not be sued under the FEHA for alleged discriminatory
acts.” (Id. at p. 663.)

18
claims, “it follows he cannot be held liable for the emotional
distress claims either”].)
Here, the Individual Defendants’ denial of a religious
exemption and their termination of Ramirez would be unlawful
only if motivated by prohibited discriminatory considerations.
The case on which Ramirez relies in arguing that Janken does
not control here is inapposite: Huynh v. Vu (2003) 111
Cal.App.4th 1183 concerned the manager’s privilege with respect
to a claim for tortious interference with a contract, not emotional
distress claims premised on employment discrimination.6 Thus,
under Janken, we conclude that Ramirez cannot state emotional
distress claims against the Individual Defendants for their
handling of the exemption process and their decision to terminate
him, which were personnel management decisions.7
However, Ramirez further alleged that the Individual
Defendants intentionally sent his termination notice disclosing
his vaccination status to his brother’s address in an envelope
addressed to his brother. Although the mailing of a termination

6 Ramirez also cites “Mariano v. United Parcel Service, Inc. (S.D. Cal.

2018)” in his opening and reply briefs for the proposition that there is
no managerial immunity with respect to an IIED cause of action, but
fails to include any further identifying information, much less any
citations to the pertinent portions of that decision. Thus, his assertion
is forfeited. (See Handyman Connection of Sacramento, Inc. v. Sands
(2004) 123 Cal.App.4th 867, 880, fn. 14 [declining to consider point
where the plaintiff failed to provide a pin cite supporting its
assertion].)
7 Accordingly, we need not address the Individual Defendants’ further

contention that Ramirez’s “emotional distress claims relating to the
vaccine mandate are barred by the exclusive remedy provisions of
worker’s compensation [law].”

19
notice to an employee falls “within the realm of properly
delegated personnel management authority” (Janken, supra, 46
Cal.App.4th at p. 79), the Individual Defendants fail to explain
how the intentional act of informing a third party of both the fact
of an employee’s termination and his vaccination status falls
within the scope of necessary job performance. Accepting the
factual allegations of the complaint as true, as we must, we are
not persuaded that FEHA precludes personal liability with
respect to Ramirez’s IIED, NIED, or invasion of privacy causes of
action with respect to this alleged conduct.
4. Whether an invasion of privacy occurred under the
allegations of the complaint cannot be resolved on a
demurrer.
Where a claim for emotional distress is predicated upon a
claim of invasion of privacy, to maintain the cause of action, the
plaintiff must establish his or her privacy was invaded.
(Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d
59, 61.) Thus, we consider whether the complaint adequately
alleged the invasion of privacy cause of action before turning to
the causes of action premised on emotional distress.
Article 1, section 1 of the California Constitution provides:
“All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life
and liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy.” “In Hill
[v. National Collegiate Athletic Assn. (1994)] 7 Cal.4th 1 [(Hill)],
[the Supreme Court] set forth a framework for analyzing
constitutional privacy claims. ‘[A] plaintiff alleging an invasion of
privacy in violation of the state constitutional right to privacy
must establish each of the following: (1) a legally protected

20
privacy interest; (2) a reasonable expectation of privacy in the
circumstances; and (3) conduct by defendant constituting a
serious invasion of privacy. [¶] . . . [¶] A defendant may prevail in
a state constitutional privacy case by negating any of the three
elements just discussed or by pleading and proving, as an
affirmative defense, that the invasion of privacy is justified
because it substantively furthers one or more countervailing
interests. The plaintiff, in turn, may rebut a defendant’s
assertion of countervailing interests by showing there are feasible
and effective alternatives to defendant’s conduct which have a
lesser impact on privacy interests.’ [Citation.] The standard for
evaluating the justification for a privacy invasion depends on ‘the
specific kind of privacy interest involved and the nature and
seriousness of the invasion and any countervailing interests.’
[Citation.] ‘Where the case involves an obvious invasion of an
interest fundamental to personal autonomy, . . . a “compelling
interest” must be present to overcome the vital privacy interest.
If, in contrast, the privacy interest is less central, or in bona fide
dispute, general balancing tests are employed.’ [Citation.]”
(Mathews v. Becerra (2019) 8 Cal.5th 756, 769.)
4.1. The court erred in holding that the right to
privacy does not extend to Ramirez’s personal
medical information.
The complaint alleged that “Ramirez enjoyed a legally
protected right to maintain the privacy of his medical status as to
vaccination, and his employment status.” On appeal, Ramirez
focuses his arguments on the right to privacy with respect to his
medical information and does not identify any authority
supporting a privacy right as to employment status. Thus, we
consider only whether the alleged right to privacy as to

21
vaccination status is recognized under California law. “Whether a
legally recognized privacy interest is present in a given case is a
question of law to be decided by the court.” (Hill, supra, 7 Cal.4th
1, 40.)
The court cited Love, supra, 29 Cal.App.5th 980 for the
proposition that there is no recognized medical right to privacy
with respect to immunization status. In Love, the plaintiffs
contended that a senate bill infringed their constitutional right to
privacy on two grounds: “(1) requiring children to reveal personal
medical information to attend a free public school; and (2)
requiring parents and children to forego control over the integrity
of the children’s bodies.” (Id. at p. 993.) The court explained: “The
California Constitution provides that all individuals have a right
to privacy, which ‘protects a larger zone in the area of financial
and personal affairs than the federal right.’ [Citations.] A
person’s medical history and information and the right to retain
personal control over the integrity of one’s body is protected
under the right to privacy. [Citations.] Although the right is
important, it is not absolute; it ‘must be balanced against other
important interests’ and ‘may be outweighed by supervening
public concerns.’ [Citations.]” (Ibid.) The Love court noted that
“ ‘compulsory immunization has long been recognized as the gold
standard for preventing the spread of contagious diseases’ and
‘federal and state courts . . . have held “either explicitly or
implicitly” that “society has a compelling interest in fighting the
spread of contagious diseases through mandatory vaccination of
school-aged children.” ’ [Citation.]” (Id. at pp. 993–994.) It
concluded that the senate bill at issue did not violate the
plaintiffs’ right to privacy because that right, “ ‘ “fundamental as
it may be, is no more sacred than any of the other fundamental

22
rights that have readily given way to a State’s interest in
protecting the health and safety of its citizens, and particularly,
school children,” and “removal of the [personal beliefs exemption]
is necessary or narrowly drawn to serve the compelling objective
of [Senate Bill No.] 277.” ’ [Citation.]” (Id. at p. 994.)
Thus, the Love court recognized that the right to privacy
with respect to medical information, including immunization
status, was not absolute; it did not hold that no such right exists.
Instead, it expressly recognized that “[a] person’s medical history
and information” are protected under the right to privacy and
that this right is “important.” (Love, supra, 29 Cal.App.5th at
p. 993; accord, Hill, supra, 7 Cal.4th at p. 41 [“information about
the internal medical state of an athlete’s body . . . is regarded as
personal and confidential”].) The Individual Defendants do not
appear to defend the court’s conclusion that Ramirez had no right
to privacy with respect to his medical information, including
immunization status. The court therefore erred in sustaining the
demurrer on the ground that Ramirez had no right to privacy
with respect to his vaccination status.
4.2. Whether Ramirez had a reasonable right to
privacy with respect to his immunization status
and whether the invasion of privacy was
sufficiently serious involve questions of fact.
The complaint alleges that Ramirez had a reasonable
expectation of privacy and that the Individual Defendants
violated that right by intentionally mailing Ramirez’s vaccination
and employment status to his brother, and thus facially pleads
the remaining elements of an invasion of privacy cause of action.
The Individual Defendants advance no argument to the contrary.
Rather, they contend that Ramirez “failed to state whether the

23
city compelled him to receive COVID-19 vaccination” and thus
cannot state a claim for invasion of his privacy rights. However,
his claim is premised on the disclosure of his vaccination status
to a third party, not the vaccine mandate. The Individual
Defendants further argue that, even assuming that Ramirez
alleged facts establishing a prima facie claim for invasion of
privacy, it had a compelling interest in abating the spread of
Covid-19 that justified any invasion of Ramirez’s privacy.
“Whether plaintiff has a reasonable expectation of privacy
in the circumstances and whether defendant’s conduct
constitutes a serious invasion of privacy are mixed questions of
law and fact.” (Hill, supra, Cal.4th at p. 40.) Only if “the
undisputed material facts show no reasonable expectation of
privacy or an insubstantial impact on privacy interests” can these
issues be adjudicated as a matter of law. (Ibid.) We conclude that
we cannot resolve these issues at the demurrer stage.
4.2.1. Reasonable Expectation of Privacy
“A ‘reasonable’ expectation of privacy is an objective
entitlement founded on broadly based and widely accepted
community norms.” (Hill, supra, 7 Cal.4th at p. 37.) A “plaintiff’s
expectation of privacy in a specific context must be objectively
reasonable under the circumstances, especially in light of the
competing social interests involved.” (Id. at pp. 26–27.) “Even
when a legally cognizable privacy interest is present, other
factors may affect a person’s reasonable expectation of privacy.
For example, advance notice of an impending action may serve to
‘ “limit [an] intrusion upon personal dignity and security” ’ that
would otherwise be regarded as serious. [Citation.] [¶] . . . [¶] In
addition, customs, practices, and physical settings surrounding
particular activities may create or inhibit reasonable

24
expectations of privacy.” (Id. at pp. 36–37.) “Finally, the presence
or absence of opportunities to consent voluntarily to activities
impacting privacy interests obviously affects the expectations of
the participant.” (Id. at p. 37.)
In Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th
992, the Supreme Court concluded that the reasonableness of a
patdown policy adopted by the San Francisco 49ers, Ltd., which
infringed on the plaintiffs’ autonomy privacy, could not be
decided on a demurrer. The court explained: “The factual record
of this case—which consists solely of the complaint—does not
establish what the competing social interests are. Presumably,
the NFL, and ultimately the 49ers, adopted the policy to enhance
spectator safety, but the record does not establish this or explain
why the NFL believed the policy was appropriate. As evidenced
by the circumstance that the pursuit of safety, like the pursuit of
privacy, is a state constitutional right, the competing social
interest of enhancing safety is substantial. Those who provide
private entertainment venues, including the 49ers at NFL
football games, have a substantial interest in protecting the
safety of their patrons. But when the security measures
substantially threaten a privacy right, courts review the policy
for reasonableness under the circumstances. Here, we cannot do
so because the record does not establish the circumstances of, or
the reasons for, the patdown policy. The 49ers have not yet given
any justification for its policy.” (Id. at p. 1000; see also id. at
p. 1004 (conc. opn. of Werdegar, J.) [“the 49ers have not negated
the existence of a reasonable expectation of privacy in the
circumstances, an expectation that is heavily context dependent
and can be fairly assessed only after the development of a factual
record”].)

25
 The Individual Defendants contend that the compelling
interest in abating the spread of Covid-19 justified the invasion of
Ramirez’s privacy. 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. (See
Love, supra, 29 Cal.App.5th at p. 990 [the government has a
compelling interest in ensuring the public’s health and safety by
preventing the spread of contagious diseases]; Pettus v. Cole
(1996) 49 Cal.App.4th 402, 446 [“employers have a legitimate—
indeed compelling—interest in maintaining a safe working
environment for their employees”].) 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.
4.2.2. Serious Invasion of Privacy
Further, 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. “Actionable
invasions of privacy must be sufficiently serious in their nature,
scope, and actual or potential impact to constitute an egregious
breach of the social norms underlying the privacy right. Thus, the
extent and gravity of the invasion is an indispensable
consideration in assessing an alleged invasion of privacy.” (Hill,
supra, 7 Cal.4th at p. 37.) “[T]he application of this element in
Hill demonstrates ‘that this element is intended simply to screen

26
out intrusions on privacy that are de minimis or insignificant.’
[Citation.]” (American Academy of Pediatrics v. Lungren (1997)
16 Cal.4th 307, 339.)
In Strawn v. Morris, Polich & Purdy, LLP (2019) 30
Cal.App.5th 1087, 1093, the plaintiffs asserted a claim of
invasion of privacy against the attorney who represented their
home and automobile insurer after the attorney sent their tax
returns to the insurer and a forensic accounting firm, even
though the plaintiffs had not waived their privilege against
disclosure. The court observed that “the seriousness of the
privacy invasion worked by disclosure of the tax returns would
depend on what information was contained in the returns that
was not also contained in the voluntarily disclosed financial
documents from which the tax returns were prepared,” and thus
“the seriousness of the alleged invasion of privacy presented a
question of fact that could not be resolved on demurrer.” (Id. at
pp. 1099–1100.) The court further observed that “[w]hether
appellants can prove an invasion of privacy ‘sufficiently serious in
. . . nature, scope, and actual or potential impact to constitute an
egregious breach of the social norms underlying the privacy right’
[citation] remains to be seen when the parties’ evidence is
produced on a motion for summary judgment or at trial.” (Id. at
p. 1100.)
Similarly, it is an unresolved factual question here whether
Ramirez’s brother was aware of Ramirez’s vaccination status
prior to receiving notice of Ramirez’s termination on the grounds
that he failed to comply with the City’s vaccine mandate, such
that any invasion of Ramirez’s privacy in sending the notice to
his brother was de minimis. Thus, we conclude that the court
erred in sustaining the demurrer to the invasion of privacy cause

27
of action and that the order of dismissal as to the Individual
Defendants must be reversed.
5. The court did not err in sustaining the demurrer to the
IIED cause of action.
“In order to state a cause of action for intentional infliction
of emotional distress a plaintiff must show: (1) outrageous
conduct by the defendant; (2) the defendant’s intention of causing
or reckless disregard of the probability of causing emotional
distress; (3) the plaintiff’s suffering severe or extreme emotional
distress; and (4) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.” (Trerice v. Blue
Cross of California (1989) 209 Cal.App.3d 878, 883.) Outrageous
conduct is conduct which exceeds the bounds of that usually
tolerated in civilized society and must be directed at the plaintiff
or occur in the plaintiff’s presence. (Christensen v. Superior Court
(1991) 54 Cal.3d 868, 903 (Christensen).) “Whether conduct is
outrageous is usually a question of fact.” (Ragland v. U.S. Bank
National Assn. (2012) 209 Cal.App.4th 182, 204.) For purposes of
argument, we will assume that the alleged invasion of Ramirez’s
privacy was outrageous conduct, and thus consider whether the
IIED cause of action is defective on any other ground.
5.1. The complaint failed to adequately plead intent
to cause severe emotional distress.
The court concluded that the IIED claim with respect to the
allegation that the Individual Defendants intentionally mailed
the termination notice to Ramirez’s brother failed because
Ramirez had not adequately alleged intent to cause emotional
distress. The complaint alleges that “Razo, Bobadilla, and the
City, knowingly and intentionally exposed Ramirez’s private

28
medical vaccination status, and the facts regarding Ramirez’s
termination, by intentionally sending the City’s termination
letter to Ramirez’s brother, in an envelope addressed to Ramirez’s
brother”; “[t]he conduct of the defendants was intentional,
extreme, outrageous, and deplorable”; and “the Defendants
wanted to humiliate him with the full force of government
power.” While the complaint alleges that the Individual
Defendants acted intentionally and wanted to embarrass
Ramirez, it falls short of alleging that they acted “with the intent
of causing [Ramirez] extreme emotional distress.” (Trerice v. Blue
Cross of California, supra, 209 Cal.App.3d at p. 883.)
On appeal, Ramirez does not contend that he alleged that
the Individual Defendants acted with the intent to cause him
severe emotional distress. Rather, he argues that “there are
allegations of intentional conduct and there is a reasonable
inference that in hatching their scheme, both Razo and Bobadilla
acted with reckless disregard to the appellant.” “It is not enough
that the conduct be intentional and outrageous.” (Christensen,
supra, 54 Cal.3d at p. 903.) “Where reckless disregard of the
plaintiff’s interests is the theory of recovery, the presence of the
plaintiff at the time the outrageous conduct occurs is recognized
as the element establishing a higher degree of culpability which,
in turn, justifies recovery of greater damages by a broader group
of plaintiffs than allowed on a negligent infliction of emotional
distress theory.” (Id. at p. 906.) Thus, in the absence of
allegations that the defendants’ conduct was directed primarily
at the plaintiff and was calculated to cause severe emotional
distress, a plaintiff must allege that the act was done “with
knowledge of [his] presence and of a substantial certainty that
[he] would suffer severe emotional injury.” (Ibid.) Ramirez does

29
not allege that he was present when the Individual Defendants
“hatch[ed] their scheme” or mailed the notice to Ramirez’s
brother. Thus, he has failed to plead the requisite intent or
reckless disregard.
5.2. The complaint failed to plead that Ramirez
suffered severe emotional distress.
Pleading an IIED cause of action further requires that
Ramirez plead that the Individual Defendants’ conduct actually
caused him severe or extreme emotional distress. In Bogard v.
Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617, a panel
of this Division concluded that the mere assertion that the
plaintiffs suffered extreme emotional distress was insufficient to
satisfy this element. “As explained in the Restatement Second of
Torts, section 46, comment j, ‘[c]omplete emotional tranquility is
seldom attainable in this world, and some degree of transient and
trivial emotional distress is a part of the price of living among
people. The law intervenes only where the distress inflicted is so
severe that no reasonable man could be expected to endure it.
The intensity and duration of the distress are factors to be
considered in determining its severity.’ ” (Ibid.) Because the
plaintiffs “failed to set forth any facts which indicate the nature
or extent of any mental suffering incurred as a result of [the
defendants’] alleged outrageous conduct,” the court concluded
that the trial court had not erred in sustaining the demurrer, but
that plaintiffs should have been given leave to amend. (Ibid.)
Here, the complaint alleges that the Individual Defendants’
disclosure of his vaccination status to a third party “caused
further harm, embarrassment, anguish, and emotional distress”
and “subjected [Ramirez] to further shame and embarrassment.”
The nature and extent of any embarrassment, anguish, or

30
emotional distress he suffered are not alleged. (See Pitman v.
City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [“[t]he
allegation that plaintiff suffered shame, humiliation and
embarrassment without further factual explanation does not
meet the requirement of specificity called for in Bogard”].) Thus,
Ramirez has also failed to plead that he suffered severe
emotional distress with the requisite specificity.
6. The court correctly concluded that Ramirez failed to
plead a cause of action for negligent infliction of
emotional distress.
“Negligent infliction of emotional distress is not an
independent tort. . . . [T]he theory on which recovery is sought is
negligence[.]” (Christensen, supra, 54 Cal.3d at p. 884.) “To
succeed in a negligence action, the plaintiff must show that (1)
the defendant owed the plaintiff a legal duty, (2) the defendant
breached the duty, and (3) the breach proximately or legally
caused (4) the plaintiff’s damages or injuries.” (Thomas v.
Stenberg (2012) 206 Cal.App.4th 654, 662.) “The law in California
imposes a duty to avoid causing emotional distress in two general
instances. [¶] The first involves ‘bystander’ situations ‘in which a
plaintiff seeks to recover damages as a percipient witness to the
injury of another.’ [Citation.]” (McMahon v. Craig (2009) 176
Cal.App.4th 1502, 1509.) “The second source of duty is found
where the plaintiff is a ‘direct victim,’ in that the emotional
distress damages result from a duty owed the plaintiff ‘that is
“assumed by the defendant or imposed on the defendant as a
matter of law, or that arises out of a relationship between the
two.” ’ [Citation.]” (Id. at p. 1510.) “[U]nless the defendant has
assumed a duty to plaintiff in which the emotional condition of
the plaintiff is an object, recovery is available only if the

31
emotional distress arises out of the defendant’s breach of some
other legal duty and the emotional distress is proximately caused
by that breach of duty.” (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 985.)
The first of the situations clearly has no application to the
circumstances alleged in the complaint, as the court concluded.
Further, there are no allegations that the Individual Defendants
had a duty to Ramirez imposed by law, assumed by the
Individual Defendants, or that existed by virtue of a special
relationship between the Individual Defendants and Ramirez. In
the absence of any such allegations, Ramirez has failed to plead a
cause of action for negligence.
7. The court did not abuse its discretion in sustaining the
demurrer without leave to amend.
In his opposition to the demurrer below, Ramirez did not
argue that leave to amend should be granted if the complaint
failed to plead IIED or NIED causes of action. On appeal,
Ramirez fails again to make this argument with respect to the
IIED cause of action. He identifies no new facts that could be
alleged to establish that the Individual Defendants acted with
the requisite intent, nor does he identify facts illustrating the
nature and extent of any emotional distress he suffered. Thus, he
fails to carry his burden of establishing that the court abused its
discretion in denying him leave to amend.
On appeal, Ramirez does argue that he can amend the
complaint to allege additional facts supporting the NIED cause of
action and argues that the Individual Defendants owe him a duty
on several grounds. First, he argues, without citation, that
“FEHA and Title VII impose a duty on employers to handle
religious exemptions in good faith and on a ‘case by case’ basis.”

32
Contentions not supported by citation to legal authority are
forfeited. (Ewald v. Nationstar Mortgage, LLC (2017) 13
Cal.App.5th 947, 948.) Without knowing what provisions Ramirez
refers to, we cannot conclude that “employer” encompasses other
employees like the Individual Defendants, or that this duty could
be construed to extend to disclosures of medical information.
Ramirez also fails to cite any support for his assertion that “any
intimate exchange of [religious] ideas and beliefs would by its
very nature create a special relationship and duty on behalf of
the employer.” Finally, Ramirez cites Civil Code section 56.20,
subdivision (c), which prohibits employers from disclosing, or
knowingly permitting its employees or agents to disclose, medical
information about an employee without first obtaining a signed
authorization. Ramirez fails to cite authority for the proposition
that a statute prohibiting an employer from doing something
creates a duty or special relationship between him and other
employees. Thus, Ramirez fails to carry his burden of
establishing a reasonable possibility that he could amend the
complaint to state a negligence cause of action.

33
 DISPOSITION

The judgment is affirmed in part and reversed in part. In
light of the mixed results, the parties shall bear their own costs
on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
I CONCUR:

EDMON, P. J.

34
Egerton, J., Concurring and Dissenting.

I agree with the majority that the trial court properly
sustained the individual defendants’ demurrer to Fernando
Ramirez’s causes of action for intentional and negligent infliction
of emotional distress. I respectfully disagree, however, with
the majority’s conclusion that the court erred in sustaining
the individual defendants’ demurrer to the fifth cause of action
entitled “invasion of privacy.”
According to a study in the National Institutes of Health’s
National Library of Medicine, reported deaths worldwide from
COVID-19 in the years 2020 and 2021 alone totaled 5.94 million
people. That number may be low: NIH estimates 18.2 million
people died worldwide in those two years from COVID-19.
(Wang et al., Estimating Excess Mortality Due to the COVID-19
Pandemic: A Systematic Analysis of COVID-19-Related Mortality,
2020-21 (April 16, 2022) The Lancet [as of Feb. 1, 2024], archived at
.) In the wake of this deadly
worldwide pandemic, the City of Montebello adopted a mandatory
COVID-19 vaccination requirement for all City employees.
The City terminated Ramirez’s employment after he apparently
refused to comply with this mandate.1

1 Ramirez’s complaint never says whether he is or isn’t
vaccinated. The allegations of his complaint seem to suggest
he chose not to be vaccinated. In his first amended complaint,
Ramirez alleged the City “fired him for refusing to take the
vaccine.” The court struck much of the first amended complaint,
as it had sustained demurrers to three causes of action in
the original complaint without leave to amend.
 Ramirez sued the City and two individual City employees.
His complaint begins: “Mass hysterias are rarely acknowledged
at the time they occur. It is only after a certain amount of
time that historians write about how people were overcome
by an ideology or moral panic.” Ramirez continues: “[T]he
government’s conduct during Covid-19 [sic] was a tragic display
of incompetence, hubris, and illegality.” Ramirez says, “[T]here
is no reason to mandate vaccines in the workplace,” adding,
“[T]he decision of whether to get vaccinated should be a private
affair.” Ramirez states, “Montebello’s vaccine mandate is
unnecessary and cruel, and one day people will look back at
public entities like Montebello with horror as they steamrolled
individual rights. History will also judge vaccine mandates
harshly, and those who collaborated in pushing the hateful
division between vaccinated and unvaccinated will not escape
that judgment.”
Ramirez’s complaint alleged five causes of action:
“religious discrimination in violation of FEHA”2 against
the City; wrongful termination in violation of a memorandum
of understanding between the City and the “Mid-Management
Association”; intentional and negligent infliction of emotional
distress against the City and the individual defendants; and
“invasion of privacy” against the City and the individual
defendants. The trial court sustained the City’s demurrer
to the first cause of action for religious discrimination with
leave to amend (noting as pleaded it was not a FEHA claim)
and overruled the City’s demurrer to the second cause of action

2 The Fair Employment and Housing Act, Gov. Code,
§ 12940 et seq.

2
for violation of the MOU. (Ramirez’s counsel stated at oral
argument that the lawsuit is proceeding against the City.)
The court sustained the demurrer of the City and the individual
defendants to the infliction of emotional distress and invasion
of privacy causes of action without leave to amend.
In his complaint’s general allegations, Ramirez states,
“[T]he City intentionally sent his termination notice to his
brother, thereby disclosing his vaccination status and health
information to a third party, which caused further harm,
embarrassment, anguish, and emotional distress.” In his
invasion of privacy cause of action, Ramirez further alleges
he “enjoyed a legally protected right to maintain the privacy of
his medical status as to vaccination, and his employment status.”
He states his “vaccination status was unquestionably a private
matter and worthy of protection by his employer.” Ramirez
alleges the City and the individual defendants “shattered
[his] privacy by intentionally mailing [his] vaccination and
employment status to his brother, who opened and read the
materials that were sent to him.” “As a result,” Ramirez says,
his “vaccination and employment status were intentionally
revealed to a third party.” His “employment status, and
his vaccination status,” Ramirez continues, “were intensely
private matters, and he was subjected to shame and humiliation
for being both terminated and unvaccinated.”
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,

3
Ramirez’s attorney replied, “I don’t have that file or envelope
with me but I don’t believe that it was.”
The majority notes Ramirez has not “identif[ied] any
authority supporting a privacy right as to employment status.”
(Maj. Opn. ante, at p. 21.) I agree. I therefore address only
Ramirez’s contention that he “enjoy[s] a legally protected right
to maintain the privacy of his medical status as to vaccination.”
Unlike the United States Constitution, the California
Constitution contains an express right to privacy. (See Cal.
Const., art. I, § 1; Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 20 (Hill).) To state a claim for violation of
the California Constitution’s right to privacy, a plaintiff must
plead three elements: “(1) a legally protected privacy interest;
(2) a reasonable expectation of privacy in the circumstances;
and (3) conduct by defendant constituting a serious invasion
of privacy.” (Hill, at pp. 39–40; Lewis v. Superior Court (2017)
3 Cal.5th 561, 571.) “ ‘[W]hether a legally recognized privacy
interest exists is a question of law’ ” to be decided by the court.
(Garrabrants v. Erhart (2023) 98 Cal.App.5th 486, 500; Hill,
at p. 40.)
In sustaining the demurrer to Ramirez’s privacy cause
of action, the trial court stated, “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. (See Brown v. Smith (2018) 24 Cal.App.5th
1135, 1138–1141, 1144 (Brown) [affirming dismissal following
order sustaining demurrer without leave to amend to complaint

4
alleging violation of California constitutional rights, including the
free exercise of religion, by Senate Bill No. 277, which eliminated
the personal beliefs exemption from the requirement that
schoolchildren be vaccinated]; Love v. State Dept. of Education
(2018) 29 Cal.App.5th 980, 984–986, 994 [same; agreeing with
Brown; in addition, Senate Bill No. 277 did not violate plaintiffs’
privacy right; though right to privacy is fundamental, it “ ‘ “is no
more sacred than any of the other fundamental rights that have
readily given way to a State’s interest in protecting the health
and safety of its citizens” ’ ”]; Burcham v. City of Los Angeles
(2022) 562 F.Supp.3d 694, 699, 702–703, 705–707 (Burcham)
[applying California law]; Wolfe v. Logan (C.D.Cal. Jan. 25, 2023,
2:22-cv-06463) 2023 WL 2239062, at *1, 6 (Wolfe) [dismissing
privacy claim under California Constitution to vaccination
requirement for poll workers in Los Angeles County; citing
Love as rejecting argument that plaintiff has “privacy interest”
in “her private medical information”].)
Burcham is instructive. There, employees of the
Los Angeles Police Department alleged “constitutional and
statutory violations based on the City’s COVID-19 vaccine
mandate for City employees.” (Burcham, supra, 562 F.Supp.3d
at p. 699.) An ordinance signed by the mayor required City
employees “to establish that they [were] fully vaccinated” and
to “report their vaccination status” even if granted an exemption.
Exempt employees who were required to work in person also
were subject to weekly COVID-19 tests. (Ibid.) The plaintiffs
argued the ordinance “violate[d] the California Constitution’s
right to privacy for two reasons: (1) it force[d] Plaintiffs to
disclose their private medical information; and (2) [it] force[d]

5
them to receive an unwanted medical treatment.” (Id. at
pp. 704–705.)
Citing Brown and Love, the court held plaintiffs had
failed to state a claim for right to privacy violations. The court
noted that, when the state “ ‘asserts important interests in
safeguarding health,’ the challenged law is reviewed under the
‘rational basis standard. In the area of health and health care
legislation, there is a presumption both of constitutional validity
and that no violation of privacy has occurred.’ ” (Burcham, supra,
562 F.Supp.3d at p. 705, quoting Coshow v. City of Escondido
(2005) 132 Cal.App.4th 687, 712.)
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. “As
many courts have already found, ‘requiring state employees
to be vaccinated is rationally related to stemming the spread
of COVID-19.’ ” (Wolfe, supra, 2023 WL 2239062, at *4, quoting
Roman Cath. Diocese of Brooklyn v. Cuomo (2020) __ U.S. __,
141 S.Ct. 63, 67 [“ ‘Stemming the spread of COVID-19 is
unquestionably a compelling interest.’ ”].)

6
 Of course, in reviewing a demurrer, we are required to
accept the allegations of the complaint as true. The question
then is whether those allegations constitute a cognizable cause
of action. 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.3
Finally, the trial court did not abuse its discretion in
denying Ramirez leave to amend his invasion of privacy claim.
“If the court sustained the demurrer without leave to amend,
as here, we must decide whether there is a reasonable possibility

3 Moreover, apart from the fact that Ramirez has not pleaded
the required first element of a privacy claim—a legally protected
privacy interest—the facts he alleges do not constitute conduct
by the individual defendants “constituting a serious invasion of
privacy” in any event. (See Hill, supra, 7 Cal.4th at pp. 39–40.)
Ramirez does not allege the defendants disclosed to his fellow
employees that he was unvaccinated, or posted his name on
a list somewhere in a public place. His sole allegation is the
defendants sent his termination notice—apparently referring
to his refusal to be vaccinated (again, Ramirez has omitted
to attach this allegedly damning document to his complaint)—
to his brother’s home. That’s it. As a matter of law, that is
not a “serious invasion of privacy.”

7
the plaintiff could cure the defect with an amendment. . . . If
we find that an amendment could cure the defect, we conclude
that the trial court abused its discretion and we reverse; if not,
no abuse of discretion has occurred.” (Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081.) The plaintiff
has the “burden of proving there is a reasonable possibility of
amendment.” (Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43 (Rakestraw).) “The assertion of an abstract
right to amend does not satisfy this burden.” (Ibid.)
Ramirez has not met his burden here. Neither in the
trial court, nor here on appeal, has Ramirez explained how he
could amend his complaint to cure its defects. (See Brown, supra,
24 Cal.App.5th at p. 1148. Cf. Rakestraw, supra, 81 Cal.App.4th
at p. 44 [plaintiff had not offered “allegations to support the
possibility of amendment” or “legal authority showing the
viability of new causes of action”].) Indeed, in the first amended
complaint Ramirez filed, while he made a number of additions
and deletions, the allegations of his invasion of privacy cause
of action remain essentially unchanged.4

4 As noted, the court struck the third, fourth, and fifth
causes of action of the first amended complaint.
Ramirez renumbered his previous paragraph 19 as
paragraph 21: it repeats word for word the allegations of the
original complaint that the defendants “intentionally sent
his termination notice to his brother, thereby disclosing his
vaccination status and health information to a third party,
which caused further harm, embarrassment, anguish, and
emotional distress.”
Ramirez renumbered the paragraphs in his cause of action
for invasion of privacy from 50 through 54 to 58 through 62 and
added a sentence to former paragraph 50, renumbered 58, stating

8
 I would affirm the trial court’s order sustaining the
individual defendants’ demurrer to the fifth cause of action
for invasion of privacy without leave to amend.

EGERTON, J.

that his “realleg[ation]” and “incorporat[ion]” “by reference” of
his allegations were “done for purposes of appellate review.”

9