Filed 7/20/26 Evans v. Long Beach Unified School Dist. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PAUL EVANS, B340972
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 23LBCP00091)
v.
LONG BEACH UNIFED
SCHOOL DISTRICT et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Lex Rex Institute, Alexander H. Haberbush,
Deborah L. Pauly, and Tom Holloman for Plaintiff and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Anthony P.
De Marco, Jacquelyn Takeda Morenz, and Allison R. De La Riva
for Defendants and Respondents.
INTRODUCTION
Paul Evans appeals from the judgment after the trial court
denied his petition for writ of administrative mandate. Evans’s
petition challenged the decision by the Long Beach Unified
School District to terminate his employment as an instructional
aid for deaf and hard of hearing students, after he refused to
comply with the District’s August 2021 policy requiring all
employees to submit proof of COVID-19 vaccination or weekly
negative test results. Evans objected to the vaccination
requirement on religious grounds and refused to test.
Evans argues that the trial court erred in ruling the
District’s Board of Education did not violate the Ralph M. Brown
Act (Brown Act; Gov. Code, § 54950 et seq.) when the Board
deliberated in a closed session about terminating his
employment; that the trial court deprived him of due process;
that the District violated federal law by requiring him, as a
condition of employment, to submit to COVID-19 tests approved
by the Food and Drug Administration under an emergency-use
authorization; and that the District failed to engage in a good
faith interactive process and failed to provide a reasonable
accommodation for his religious beliefs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. To Comply with a State Public Health Order Issued
During the COVID-19 Pandemic, the District
Requires All Employees To Submit Proof of
Vaccination or Weekly Negative Test Results
In August 2021 the California Department of Public Health
issued an order (the state vaccinate-or-test order) applicable to
2
“public and private schools serving students in transitional
kindergarten through grade 12 . . . .” The state vaccinate-or-test
order required all schools to verify and track the vaccine status of
their workers. The order stated any worker “not fully vaccinated,
or for whom vaccine status is unknown or documentation is not
provided, must be considered unvaccinated.” The order also
stated that unvaccinated or partially vaccinated workers were
“required to undergo diagnostic screening testing . . . at least once
weekly with either PCR testing or antigen testing” and that
“[a]ny PCR (molecular) or antigen test used must either have
Emergency Use Authorization by the U.S. Food and Drug
Administration or be operating per the Laboratory Developed
Test requirements by the U.S. Centers of Medicare and Medicaid
Services.” The order required all facilities to comply by
October 15, 2021.
To comply with the state vaccinate-or-test order, the
District adopted a vaccinate-or-test policy. The District sent an
email message to staff members, including Evans, a few weeks
before the start of the 2021-2022 school year stating that, “in
order to do everything that we can to maintain the health and
safety of our staff and students, we will be requiring all staff to
provide proof of vaccination or participate in weekly COVID
testing when school starts this year.”
B. Evans Refuses To Participate in Weekly COVID-19
Testing Offered by the District
Evans did not receive the COVID-19 vaccine, nor did he
participate in weekly COVID-19 screening tests offered by the
District. On September 5, 2021 the office supervisor at his school
notified Evans that, because he had not submitted proof of his
3
vaccination status, he had been placed on the weekly COVID-19
testing schedule. The office supervisor told Evans that he could
test at the school site or arrange an alternative screening option
and that, if he failed to submit either his vaccine status or
negative test results before the upcoming school week, he would
not be allowed on campus. On September 7, 2021, after Evans
failed to comply with the District’s vaccinate-or-test policy, David
Zaid, an assistant superintendent of the District, sent Evans a
letter stating that the state vaccinate-or-test order required all
District employees to vaccinate against COVID-19 or test for
COVID-19 on a weekly basis. Zaid also stated that the District
had no discretion to depart from the state’s order and that, if
Evans was not vaccinated and refused weekly testing, he would
be placed on an unpaid leave of absence.
On September 8, 2021 and September 9, 2021 Evans
emailed Zaid and several other District administrators. Evans
asserted he did not refuse to test for COVID-19 but would only
agree to test using a fully FDA approved screening test. As
everyone including Evans knew, however, the federal government
had only approved COVID-19 tests under the emergency-use
authorization at that time. Evans also asserted the state
vaccinate-or-test order was “an illegal mandate.” When Evans
continued to refuse to test, Zaid offered to meet with him
regarding his concerns. Zaid and another District administrator,
Ann Culton, met with Evans and his attorney on November 2,
2021. After the meeting ended and Evans and his attorney were
leaving, counsel for Evans handed Zaid a document in which
Evans asserted for the first time that he had a religious objection
to vaccination and that the District was refusing to engage in an
interactive process regarding accommodation.
4
A few days after the meeting, counsel for Evans sent Zaid a
lengthy letter regarding the “unlawful denial of constitutional
and statutory rights” purportedly stemming from the District’s
vaccinate-or-test policy. The letter claimed the District “denied
Evans’ Title VII and First Amendment Free Exercise Protections
by Rejecting Evans’ Religious Accommodation Request”;
discriminated against Evans because of his religious beliefs in
violation of the Fair Employment and Housing Act (Gov. Code,
§ 12900 et seq.); violated “state and federal law by requiring
Evans to disclose confidential medical information”; offered an
accommodation for Evans’s religious beliefs (frequent testing)
“designed to make the exercise of religious rights as inconvenient
and unpleasant as possible” and “to effectively coerce Evans into
accepting vaccination instead”; attempted to coerce Evans to
accept unwanted medical treatment, in violation of state and
federal law; violated the Emergency Use Authorization statute
(21 U.S.C. § 360bbb-3(a)(1)) by requiring Evans to test for
COVID-19; violated Evans’s free speech rights by compelling him
to vaccinate or test for COVID-19; and failed to provide an
adequate accommodation regarding Evans’s refusal to vaccinate.
The letter attached a page titled “assertion of Religious
Exemption from COVID-19 Vaccination” signed by Evans,
describing his “sincerely held religious beliefs” against COVID-19
vaccination. Evans requested as an accommodation “weekly
COVID-19 testing with a noninvasive fully FDA approved test,”
to “work remotely,” or to “work outside.” Evans did not assert
any religious objection to testing.
A series of meetings and additional correspondence
between Zaid, Evans, and counsel for Evans failed to result in
Evans complying with the District’s vaccinate-or-test policy. The
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District issued a document titled “Letter of Reprimand/Notice
That Failure to Comply with Required COVID-19 Testing will
result in unpaid suspension and dismissal.” The letter stated
Evans could not return to work until he complied with the
vaccinate-or-test policy. The District stated Evans’s “continued
refusal to undergo testing constitutes failure to comply with the
conditions of your employment” and violates Board Policies
4119.21 (Code of Ethics)1 and 5137 (Positive School Climate).2
The District’s letter stated that, if Evans failed to comply with
the vaccinate-or-test policy by December 17, 2021, the District
would take “disciplinary action in the form of unpaid suspension
and dismissal.”
1 The Policy section regarding “Commitment to the Student”
provided: “Make every effort to protect students and to provide a
safe, healthy environment.” The section regarding “Commitment
to Professional Conduct” provided: “Align personal and
professional actions with the District’s mission and values,” and
“Distinguish personal views from the official position of the
District.”
2 The Policy stated: “The Governing Board desires to
enhance student learning by providing an orderly, caring and
nurturing educational and social environment in which all
students can feel safe and take pride in their school and their
achievements. The school environment should be characterized
by positive interpersonal relationships among students and
between students and staff. [¶] All staff are expected to serve as
role models for students by demonstrating positive, professional
attitudes and respect toward each student and other staff
members. Teachers shall use effective classroom management
techniques based on clear expectations for student behavior.”
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C. The Board Terminates Evans’s Employment, and
Evans Appeals to the Personnel Commission
In January 2022 Zaid recommended that the District’s
Governing Board terminate Evans’s employment with the
District. Zaid sent Evans (and the Board’s Personnel
Commission) a document titled “notice of recommendation for
immediate unpaid suspension and dismissal and statement of
charges against permanent classified employee,” citing Evans’s
persistent refusal to comply with the District’s vaccinate-or-test
policy. The document included four charges: (1) “Incompetency,
inefficiency, insubordination, inattention to or dereliction of duty.
[Rule 11.1.8.]”; (2) “Discourteous treatment of, or illegal,
unwelcome, or inappropriate conduct or behavior toward the
public, students, or fellow employees, or any other willful failure
of good conduct tending to injure the public service.
[Rule 11.1.9.]”; (3) “Any willful or persistent violation of the
provisions of the Education Code or Board of Education,
Personnel Commission, or administration approved policies,
rules, regulations, procedures, or established practices.
[Rule 11.1.10.]”; and (4) “Failure to meet job requirements such
as loss of licenses or expiration of required certificates or licenses.
[Rule 11.1.15.]” The notice advised Evans he could request a
Skelly conference or respond to the statement of charges in
writing.3
3 “[T]he California statutory scheme regulating civil service
employment confers . . . ‘permanent employee[s]’ [with] a
property interest in the continuation of [their] employment [that]
is protected by due process.” (Skelly v. State Personnel Board
(1975) 15 Cal.3d 194, 206.) Before such an employee may be
subject to an adverse employee action, due process requires, at a
minimum, “notice of the proposed action, the reasons therefor, a
7
A Skelly conference took place on February 24, 2022. The
presiding officer determined there was “sufficient cause to
proceed with the recommended disciplinary action of immediate
unpaid suspension and dismissal.” The District subsequently
notified Evans that, at the regularly scheduled meeting on
March 16, 2022, the Board would consider whether to terminate
Evans’s employment. The District sent Evans a letter (titled
“Brown Act Notice”) advising him that the District would
consider confidential personnel matters in closed session and
that, pursuant to Government Code section 54957 (section
54957), Evans could request to have the statement of charges
heard in an open session. Through his attorney Evans asked “to
exercise his right to request an open session with respect to the
entirety of the action proposed against him, including his right to
address the Board and Board deliberation.”
The statement of charges was read during the open session
of the March 16, 2022 Board meeting. Evans and his counsel
addressed the Board for approximately 15 minutes. The Board
deliberated on the charges against Evans in a closed session. The
Board notified Evans in writing the Board was terminating his
copy of the charges and materials upon which the action is based,
and the right to respond, either orally or in writing, to the
authority initially imposing discipline.” (Id. at p. 215.) “What
Skelly requires is unambiguous warning that matters have come
to a head, coupled with an explicit notice to the employee that he
or she now has the opportunity to engage the issue and present
the reasons opposing such a disposition. Moreover, the
opportunity to respond must come after the notice of intention to
dismiss.” (Coleman v. Regents of University of California (1979)
93 Cal.App.3d 521, 525-526; accord, LaMarr v. Regents of
University of California (2024) 101 Cal.App.5th 671, 675.)
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employment with the District effective March 17, 2022. Evans
appealed the decision to the Personnel Commission and asked for
a hearing.
D. The Hearing Officer Recommends the Personnel
Commission Affirm the Board’s Decision, and the
Commission Does
The Personnel Commission appointed a hearing officer,
who heard testimony and received documentary evidence during
a two-day hearing. Several District administrators testified
regarding their discussions with Evans about the District’s
vaccinate-or-test policy and their attempts to accommodate his
objections. Evans also testified, and he clarified he did not have
any religious objection to the District’s testing requirement.
Instead, Evans stated, he believed the District’s policy infringed
on his “medical freedom” by requiring him to disclose “private
medical information” the District might share with government
actors. Evans also stated that he believed the available tests for
COVID-19, which were approved only under the federal
government’s emergency-use authorization, were “experimental”
and that he had the right to refuse to use them: “That’s part of
my freedom to control my own body.” Evans conceded, however,
one of the tests the District offered to him as an accommodation
was non-invasive because it only required him to spit into a cup.
The hearing officer requested and received written closing
statements. Evans argued that the District failed to prove Evans
violated any applicable rule or committed any misconduct; that
“[t]he disciplinary process . . . has been characterized by
procedural abuse of every kind, amounting to the gross
deprivation of [Evans’s] due process rights under the 5th and
9
14th Amendments to the United States Constitution”; and that,
because all available COVID-19 tests were approved by the
federal government only under an emergency-use authorization,
the District’s vaccinate-or-test policy was unlawful. The District
argued that, because Evans refused to comply with its vaccinate-
or-test policy, which was designed to comply with the state
vaccinate-or-test order, the District properly terminated Evans’s
employment.
In early November 2022 the hearing officer recommended
the Personnel Commission deny Evans’s appeal and uphold the
Board’s decision to terminate Evans’s employment. The hearing
officer concluded (1) the District proved that, by refusing to
comply with the District’s vaccinate-or-test policy, Evans was
“insubordinate” and “derelict in his duty” and therefore violated
Personnel Commission Rule 11.1.8; (2) the District proved that,
by willfully violating Board of Education policies 4119.21 and
5137 and the state vaccinate-or-test order, Evans violated
Personnel Commission Rule 11.1.10; (3) the District failed to
prove Evans violated Personnel Commission Rules 11.1.9 or
11.1.15; and (4) Evans received “[a]ll due process required”; and
(5) there was good cause to discipline Evans. In December 2022
the Personnel Commission unanimously adopted the findings of
fact and recommendation of the hearing officer and sustained the
Board’s decision to terminate Evans’s employment.
E. Evans Files a Petition for Writ of Administrative
Mandate
In March 2023 Evans filed a petition for writ of
administrative mandate under Code of Civil Procedure
section 1094.5 seeking to compel the District to reinstate his
10
employment. In the operative first amended petition and
supporting memorandum of points and authorities, Evans
claimed the hearing officer erred in concluding (1) Evans’s refusal
to submit weekly COVID-19 test results violated Personnel
Commission Rule 11.1.10 and 11.1.8; (2) the California
Department of Public Health lawfully required schools to verify
the vaccine status of its employees or, in the alternative, to
require weekly diagnostic testing for COVID-19; (3) the District’s
vaccinate-or-test policy properly implemented the state
vaccinate-or-test order; (4) Evans refused to submit to COVID-19
testing; (5) Evans had no religious objection to COVID-19 testing;
(6) Evans violated Rule 11.1.8 by “failing to make every effort to
protect students and to provide a safe and [healthy]
environment”; (7) Evans violated Rule 11.1.10 by inhibiting the
District from providing a positive school climate; and (8) Evans
received adequate due process under the Brown Act during the
administrative proceedings. Evans asked the trial court to order
the District to reinstate his employment with backpay and
interest.
F. The Trial Court Denies the Petition, and Evans
Appeals
The trial court initially ruled the District violated the
Brown Act by considering Evans’s employment termination in a
closed session. After supplemental briefing, however, the court
ruled the Board did not violate the Brown Act, and the court
denied the petition for writ of administrative mandate in its
entirety.
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1. The April 19, 2024 Tentative Ruling
In its April 19, 2024 tentative ruling the trial court rejected
most of Evans’s arguments, but ruled the Board violated the
Brown Act. First, the court stated that, because Evans’s willful
refusal to comply with the District’s vaccinate-or-test policy
constituted “insubordination” within the meaning of Personnel
Commission Rule 11.1.8, the District had reasonable grounds to
terminate Evans’s employment. Second, the court stated Evans
failed to “meaningfully articulate” how the state vaccinate-or-test
order was unlawful. Third, the court rejected Evans’s claim that,
because he objected only to the use of COVID-19 screening tests
approved by the federal government under emergency-use
authorization, he did not “refuse” to test for COVID-19. The
court concluded Evans’s refusal to use tests approved under
emergency use-authorization—the only available tests—
constituted a refusal to test. Fourth, the court stated that, by
offering testing as an alternative to vaccination, the District
offered Evans a reasonable accommodation for his religious
objection to vaccination. Regarding the District’s March 16, 2022
meeting, however, the trial court determined the Board
improperly rejected Evans’s request to conduct all the
proceedings regarding his employment termination in an open
session. The court asked the parties to submit supplemental
briefs on the appropriate remedy for the Brown Act violation.
2. Supplemental Briefs
In his supplemental brief Evans argued that, because the
Board failed to comply with the Brown Act when it decided to
terminate his employment, the Board’s decision was “null and
void.” Thus, Evans argued, the court should order the Board to
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reinstate his employment with backpay. Evans also requested
attorneys’ fees, costs, and punitive damages.
The District argued Evans was not entitled to any remedy
because the Board did not violate the Brown Act. Specifically,
the District argued that, under section 54957, subdivision (b)(1),
an employee could request an open (public) session where the
Board would “hear complaints or charges” against the employee,
but an employee could not compel the Board to “consider” or
deliberate about employee discipline in an open session. The
District asserted the March 16, 2022 meeting was not a “hearing”
on the charges against Evans, but rather was a meeting for the
Board to “consider” and “deliberate” whether to initiate Evans’s
employment termination, subject to Evans’s right to appeal to the
Personnel Commission, where he could request an evidentiary
hearing on the charges. In addition, the District argued, the
Board complied with the Brown Act by allowing Evans to hear
and address the statement of charges in open session at the
March 16, 2022 meeting.
Evans asked the court to strike the District’s brief and
impose sanctions against the District. Evans argued that,
instead of complying with the court’s order to address the
appropriate remedy for a Brown Act violation, the District
improperly relitigated whether the Board violated the Brown Act.
At Evans’s request, the trial court continued the hearing on the
petition and allowed Evans to submit a second supplemental
brief addressing the contentions in the District’s supplemental
brief.
In his second supplemental brief Evans argued the Board
violated the Brown Act because it did not merely deliberate
regarding employee discipline during its closed session. Instead,
13
Evans argued, the Board received evidence and heard testimony
from Zaid about the charges against Evans. Evans also argued
the Board lacked authority to bifurcate its proceedings to include
both open and closed sessions, as the District argued.
3. The July 16, 2024 Order
On July 16, 2024 the court denied Evans’s petition. The
court stated it had further researched the Brown Act issue,
including whether and when the District could hold a closed
hearing to consider disciplinary action. The court ruled that,
under section 54957, subdivision (b)(1), the Board had to conduct
open proceedings to receive and weigh evidence, but that the
Board could conduct closed proceedings to deliberate on what
actions to take in light of the evidence. The court observed the
essential facts—that the District gave Evans the option to
vaccinate against COVID-19 or test on a weekly basis and that
Evans refused both options—were not in dispute. The court ruled
that, because Evans failed to show the Board did anything more
than deliberate during its closed session, the Board did not
violate the Brown Act. Evans timely appealed.
14
DISCUSSION
A. Standard of Review
Administrative mandamus under Code of Civil Procedure
section 1094.5 allows judicial review of a public agency’s “decision
made as the result of a proceeding in which by law a hearing is
required to be given, evidence is required to be taken, and
discretion in the determination of facts is vested in the inferior
tribunal, corporation, board, or officer.” (Code Civ. Proc.,
§ 1094.5, subd. (a).) The trial court must decide whether an
agency “proceeded without, or in excess of, jurisdiction; whether
there was a fair trial; and whether there was any prejudicial
abuse of discretion.” (Id., subd. (b).) “Abuse of discretion is
established if the respondent has not proceeded in the manner
required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.”
(Ibid.)
“When a fundamental vested right is involved, such as the
right of a [public] employee to continued employment [citation],
the trial court exercises its independent judgment to determine
whether due process requirements were met and whether the
agency’s findings are supported by the weight of the evidence.”
(Flippin v. Los Angeles City Bd. of Civil Service Comrs. (2007)
148 Cal.App.4th 272, 279; accord, Sandhu v. Board of
Administration etc. (2025) 108 Cal.App.5th 1048, 1062, fn. 5;
Lozano v. City of Los Angeles (2022) 73 Cal.App.5th 711, 723.)
“The trial court reviews the administrative decision de novo but
affords the administrative findings ‘a strong presumption of
correctness.’” (Bedard v. City of Los Angeles (2024)
106 Cal.App.5th 442, 454.) We review the trial court’s factual
15
findings for substantial evidence and its legal conclusions de
novo. (See Bedard, at pp. 453-454; Lozano, at p. 723.)
B. The Trial Court Properly Concluded the Board
Did Not Violate the Brown Act
Evans argues he had the “absolute right” under the Brown
Act to demand the Board consider whether to terminate his
employment in an open, public session. He also argues that, even
if the Brown Act authorized the Board to consider some
personnel-related matters in a closed session, the Board had to
hear complaints or charges in an open session and that the Board
violated the Brown Act by failing to do so in Evans’s case. Evans
is wrong on the law and on the facts.
1. The Brown Act Allows an Employee To Request
a Public Hearing Only When the Employer
Hears Complaints or Charges
The Brown Act generally requires public agencies to hold
open public meetings. “The Brown Act is intended to ensure the
public’s right to attend the meetings of public agencies.
[Citation.] ‘All meetings of the legislative body of a local agency
shall be open and public, and all persons shall be permitted to
attend any meeting of the legislative body of a local agency,
except as otherwise provided in this chapter.’ ([Gov. Code,]
§ 54953, subd. (a).) ‘The Act thus serves to facilitate public
participation in all phases of local government decisionmaking
and to curb misuse of the democratic process by secret legislation
by public bodies.’” (Berkeley People’s Alliance v. City of Berkeley
(2025) 114 Cal.App.5th 984, 991; see Burton v. Campbell (2024)
106 Cal.App.5th 953, 961.) The Brown Act applies to school
16
districts. (See Gov. Code, § 54951 [ “‘local agency’” includes a
“school district” “or any board, commission or agency thereof”];
Kolter v. Commission on Professional Competence of Los Angeles
Unified School Dist. (2009) 170 Cal.App.4th 1346, 1350 [Brown
Act “applies to school districts”].)
Section 54957 creates an exception to the open meeting rule
by allowing public agencies to consider personnel matters in
closed sessions. Section 54957, subdivision (b)(1), states:
“Subject to paragraph (2), this chapter does not prevent the
legislative body of a local agency from holding closed sessions
during a regular or special meeting to consider the appointment,
employment, evaluation of performance, discipline, or dismissal
of a public employee or to hear complaints or charges brought
against the employee by another person or employee unless the
employee requests a public session.”
Evans argues section 54957 allowed him to compel the
Board to consider all aspects of his personnel matter in an open
public session. Interpreting that statute, Evans argues the
phrase “unless the employee requests a public session” modifies
the entire list of personnel matters that precedes it, thereby
empowering an employee to require a governing body to hold an
open session regarding any and all personnel-related matters
upon request. The District argues the phrase modifies only the
immediately preceding category—meaning, an employee may
only compel a governing body to hold a public session to “hear
complaints or charges brought against the employee by another
person or employee . . . .”
“In statutory interpretation cases, ‘we begin by looking to
the statutory language.’ [Citation.] ‘We construe statutory
language in the context of the statutory framework, seeking to
17
discern the statute’s underlying purpose and to harmonize its
different components.’ [Citation.] ‘If the language is clear in
context, our work is at an end. If it is not clear, we may consider
other aids, including the statute’s legislative history.’” (City of
Gilroy v. Superior Court (2026) 19 Cal.5th 38, 51; see National
Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 498.)
Though section 54957, subdivision (b)(1), is reasonably
susceptible to both sides’ proposed interpretation, the District’s is
the better one.
First, “‘[a] longstanding rule of statutory construction—the
“last antecedent rule”—provides that “qualifying words, phrases
and clauses are to be applied to the words or phrases
immediately preceding and are not to be construed as extending
to or including others more remote.”’” (Renee J. v. Superior Court
(2001) 26 Cal.4th 735, 743; accord, Siskiyou Hospital, Inc. v.
County of Siskiyou (2025) 109 Cal.App.5th 14, 50.) That rule
supports the District’s interpretation that an employee may
compel a public hearing only where the session involves
complaints or charges brought by a third party or another
employee. Similarly, the Legislature’s use of the disjunctive “or”
before the phrase “to hear complaints or charges” suggests the
qualifying phrase (“unless the employee requests a public
session”) modifies only the phrase after the disjunctive “or.” (See
Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th
87, 96-97 [applying the last antecedent rule to conclude “‘the
qualifying phrase concerning an employee’s request for a public
session refers only to situations where the Board is hearing
complaints or charges against the employee’”]; Furtado v. Sierra
Community College (1998) 68 Cal.App.4th 876, 881 [same, and
18
observing “the word ‘or’ appears before ‘dismissal’ and then again
before ‘to hear complaints’”].)4
Second, the provisions of section 54957, subdivision (b)(2),
support the District’s proposed construction. That subdivision
specifies an employee must receive 24-hour notice of a meeting,
but only if the employer intends to hear complaints or charges
against the employee: “As a condition to holding a closed session
on specific complaints or charges brought against an employee by
another person or employee, the employee shall be given written
notice of his or her right to have the complaints or charges heard
in an open session rather than a closed session, which notice
shall be delivered to the employee personally or by mail at least
24 hours before the time for holding the session. If notice is not
given, any disciplinary or other action taken by the legislative
body against the employee based on the specific complaints or
charges in the closed session shall be null and void.”
4 Citing Santa Clara Federation of Teachers v. Governing
Board (1981) 116 Cal.App.3d 831 and Krausen v. Solano County
v. Junior College Dist. (1974) 42 Cal.App.3d 394, Evans argues
“courts have uniformly recognized that the statutory language
‘unless the employee requests a public session’ creates an
absolute right in the employee.” Neither case reached that
conclusion. (See Santa Clara Federation of Teachers, at p. 846
[personnel exception to open meeting requirement is “not
applicable . . . to meetings when the Board is considering the
acceptance or rejection of the administrative law officer’s
decisions relating to notices of probable dismissal of certificated
employees in accordance with [Education Code] sections 44949
and 44955”]; Krausen, at p. 404 [considering Government Code
section 54956 relating to “special meetings” of a governing
board].)
19
The requirement that an employee receive notice of the
right to have complaints or charges heard in open session does
not extend to the other personnel matters listed in section 54957,
subdivision (b)(1). “This omission means that the Legislature
intended to exclude these personnel matters from the right to
receive 24-hour written notice, and intended to restrict the
requirement of 24-hour written notice of the right to request an
open session to ‘specific complaints or charges brought against an
employee by another person or [persons]. . . .’ A fundamental
rule of statutory construction is that the expression of certain
things in a statute necessarily involves exclusion of other things
not expressed. [Citation.] When the Legislature has carefully
employed a term in one place but has excluded it in another, the
term should not be implied where it does not appear.” (Fischer v.
Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 97.)
Third, interpreting section 54957, subdivision (b)(1), to
allow an employee a limited right to compel a public meeting only
when charges against the employee are at issue makes sense in
light of the statute’s dual purposes. Evans argues that “[w]hen
an employee explicitly waives privacy protection and demands
public accountability—as Mr. Evans did here—the primary
justification for secrecy evaporates. Interpreting the [personnel]
exception to allow agencies to override such demands subverts
the [Brown] Act’s core objective and would convert a provision
designed to protect Mr. Evans into a sword to deny him the very
transparency the Act requires.” But though the Brown Act
generally favors open public meetings, the Legislature created an
exception for personnel matters for two reasons—one protecting
the employee and the other protecting the employer. “‘[T]he
underlying purposes of the “personnel exception” are to protect
20
the employee from public embarrassment and to permit free and
candid discussions of personnel matters by a local governmental
body. . . .” (Bell v. Vista Unified School Dist. (2000)
82 Cal.App.4th 672, 682; accord, Morrow v. Los Angeles Unified
School Dist. (2007) 149 Cal.App.4th 1424, 1438; Fischer v.
Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 96.)
Allowing an employee to request a public meeting to hear charges
against that employee, i.e., to waive the privacy right the
Legislature has provided employees, gives an employee the power
to weigh potential public embarrassment against the opportunity
to address the charges publicly. But allowing an employee to
compel a public entity to deliberate publicly on every personnel
decision would allow the employee to unilaterally waive the
confidentiality the Legislature has provided public entities
regarding sensitive personnel matters—a result it is unlikely the
Legislature intended. “In the employee discipline context, the
value competing against the public’s ‘right to know what is going
on’ is not a right to take evidence in secret, but the need for free
and candid discussion of the action the agency should take in
light of that evidence. As one commentator has noted, ‘it makes a
good deal of sense for any governmental body to retain a zone of
privacy within which its members can air internal
disagreements.’” (Morrison v. Housing Authority of the City of
Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860, 875-876,
fn. omitted; see Furtado v. Sierra Community College, supra,
68 Cal.App.4th at p. 882 [“the Legislature has drawn a
reasonable compromise, leaving most personnel matters to be
discussed freely and candidly in closed session, but permitting an
employee to request an open session to defend against specific
21
complaints or charges brought against him or her by another
individual”].)
2. Substantial Evidence Supported the Trial
Court’s Finding the Board Did Not Hear
Complaints or Charges Against Evans in a
Closed Session
Evans argues that, even if section 54957 allows an
employee to request an open session only where the governing
body intends to “hear complaints or charges,” the Board in fact
heard complaints or charges against him in its closed session on
March 16, 2022. Again, Evans is wrong on the law, as well as the
facts.
As discussed, the 24-hour notice requirement applies only
when a governing body hears specific complaints or charges
against an employee by another person or employee. Thus, cases
considering when notice is required typically focus on the
governing body’s activities, i.e., whether the body convened to
“hear” complaints or charges or to “consider” other types of
personnel matters. In Bollinger v. San Diego Civil Service Com.
(1999) 71 Cal.App.4th 568 the court stated that, in the notice
provision of section 54957, the Legislature used the verb “hear” in
connection with “‘complaints or charges,’” but the verb “consider”
in connection with “dismissal of a public employee.” (Bollinger,
at p. 574.) The court in Bollinger found the word choice
significant because to “consider” is to “‘deliberate upon,’” while to
“‘hear’ is to ‘listen to in an official . . . capacity[.]’ [Citation.]
A ‘hearing’ is ‘[a] proceeding of relative formality . . . , generally
public, with definite issues of fact or of law to be tried, in which
witnesses are heard and evidence presented.’” (Ibid.) The court
22
in Bollinger also cited the legislative history of section 54957 and
observed one proposed version of the statute stated: “‘As a
condition to holding a closed session on the complaints or charges
to consider disciplinary action or to consider dismissal, the
employee shall be given written notice of his or her right to have
a public hearing rather than a closed session, which notice shall
be delivered to the employee personally or by mail at least
24 hours before the time for holding the session.’” (Bollinger, at
p. 574.) The court concluded that, because the Legislature
removed the italicized language before enacting section 54957,
the Legislature “specifically rejected the notion an employee is
entitled to 24-hour written notice when the closed session is for
the sole purpose of considering, or deliberating, whether
complaints or charges brought against the employee justify
dismissal or disciplinary action.” (Bollinger, at p. 575.)
Citing Bollinger and similar cases, Evans argues “a public
agency ‘hears’ such complaints or charges when the body receives
accusations and must make substantive determinations about
them.” The court in Bollinger held “a public agency may
deliberate in closed session on complaints or charges brought
against an employee without providing the statutory notice.”
(Bollinger v. San Diego Civil Service Com., supra, 71 Cal.App.4th
at pp. 574-575, italics added.) Contrary to Evans’s argument,
however, an agency does not “hear” complaints or charges when
it is deciding what disciplinary action to take on complaints or
charges the agency has already heard and found true. Two of the
other cases Evans cites reach the same conclusion: If a governing
body does not hold an evidentiary hearing on the truth of the
allegations against the employee, the hearing does not need to be
open. (See Ricasa v. Office of Administrative Hearings (2018)
23
31 Cal.App.5th 262, 276 [24-hour notice was not required where a
community college board did not receive evidence or conduct a
hearing on the charges, but debated whether the undisputed
facts warranted discipline]; Kolter v. Commission on Professional
Competence of Los Angeles Unified School Dist., supra,
170 Cal.App.4th at p. 1352 [24-hour notice was not required
where a school board did not conduct an evidentiary hearing on
the charges, but “considered whether those charges justified the
initiation of dismissal proceedings”].)
Moreno v. City of King (2005) 127 Cal.App.4th 17, cited by
Evans, is distinguishable. There, in a closed session, the city
council authorized its city manager to fire the employee after the
council received the manager’s account of five instances of alleged
misconduct by the employee. The council did not provide the
employee with advance notice of the closed session, nor did the
employee have the opportunity to hear, respond to, or defend
against the manager’s accusations before the city terminated his
employment. The court in Moreno concluded the council violated
the Brown Act by failing to provide the employee with 24-hour
notice under section 54957, subdivision (b)(2), because it heard
“complaints or charges” by the city manager. (Moreno, at pp. 23,
27-29.) Here, in contrast, the Board notified Evans that it would
consider terminating his employment at the March 16, 2022
meeting, the statement of charges against him was read during
the open meeting, and the Board gave Evans 15 minutes to
respond to the statement of charges. In addition, and also unlike
Moreno, the facts the Board relied on in making its decision to
terminate Evans’s employment were (and are) undisputed.
Morrison v. Housing Authority of the City of Los Angeles
Bd. of Comrs., supra, 107 Cal.App.4th 860, is also
24
distinguishable. After the housing authority in that case
terminated the employee’s employment based on alleged
misconduct, the employee appealed the decision to the
commissioners of the housing authority. The commissioners
referred the employee’s appeal to a hearing officer, who heard
testimony from multiple witnesses and received documentary
evidence. The hearing officer weighed conflicting evidence, made
credibility findings about the witnesses, and sent the
commissioners findings of fact and a disciplinary
recommendation. (Id. at pp. 865-866.) At a closed meeting (and
without notice to the employee), the commissioners reviewed the
evidence in significant detail, rejected the hearing officer’s
findings and recommendation, reweighed the evidence, and
affirmed the housing authority’s decision to terminate the
employee’s employment. (Id. at p. 867.) The court in Morrison
held the commissioners “heard” complaints and charges within
the meaning of the Brown Act when they “decide[d] to reject the
hearing officer’s findings as to the facts and the credibility of the
witnesses and make their own factual findings and credibility
determinations.” (Id. at p. 874; see id. at p. 876 [“where the
governing body of a public entity, in a case involving employee
discipline, rejects its hearing officer’s findings of fact and engages
in its own fact finding it is conducting a ‘hearing’ on the charges
against the employee for purposes of section 54957”].)
Here, substantial evidence supported the trial court’s
finding that, because the Board did not receive evidence or weigh
conflicting evidence during its closed session, it did not “hear”
complaints or charges against Evans.5 As the trial court stated,
5 Evans repeatedly asserts the Board received evidence
during the closed session, asserting Zaid was “present” during
25
the essential facts were undisputed. The District required Evans
to provide proof of vaccination against COVID-19 or weekly
COVID-19 test results. Evans refused. The Board did not hear
testimony or receive any evidence on those issues; the Board
received only the statement of charges, which is a pleading, not
evidence. (See Ricasa v. Office of Administrative Hearings,
supra, 31 Cal.App.5th at p. 277 [“the charges considered by the
Board is a pleading, based on information and belief, not a piece
of evidence”].) The only issue for the Board to consider was
whether the undisputed facts provided a valid basis to discipline
Evans or terminate his employment—an issue that falls squarely
within the personnel exception to the Brown Act’s open meeting
requirement.
Evans also accuses the Board of “obvious procedural
manipulation” by “artificially splitting a single proceeding into a
purely ceremonial public recitation of charges, followed by a
secret closed-door deliberation on the substance of those same
charges.” But section 54957 contemplates open and closed
sessions may occur during the same proceeding. As discussed,
section 54957, subdivision (b)(1), states “this chapter does not
prevent the legislative body of a local agency from holding closed
sessions during a regular or special meeting to consider”
personnel matters. Section 54957.7 also contemplates that closed
sessions may be held in conjunction with open ones. That section
the closed session to “provid[e] evidence,” “respond[ ] to inquiries
from the Board members,” “aid the Board,” “answer questions,”
“advocate for the charges he authored,” and “urge the dismissal
he had recommended.” Evans also claims that, “[d]uring the
public portion of the meeting, the Board acknowledged that it
would hear testimony regarding the charges in closed session
. . . .” The record does not support these assertions.
26
requires a governing body, prior to holding a closed session, to
disclose in an open meeting the item(s) to be discussed in the
closed session. It further requires the body to reconvene, after
holding a closed session, in an open session to make any
disclosures required under the Brown Act.
Again citing Morrison v. Housing Authority of the City of
Los Angeles Bd. of Comrs., supra, 107 Cal.App.4th 860, Evans
argues the Board engaged in “a transparently evasive tactic” by
holding an open meeting and a closed session on the same date.
But that isn’t what happened in Morrison. There, as discussed,
the commissioners considered evidence in a closed session
without notice to Morrison. They later held an open meeting—
purportedly to reach a “final” decision on Morrison’s employment
termination—and they gave Morrison notice of that meeting.
The court in Morrison held the notice of the second (open) session
did not cure the Brown Act violation during the first (closed)
session. (Id. at p. 876.) That is not an issue here.
C. Evans’s Remaining Arguments Lack Merit
1. The Trial Court Did Not Deny Evans Due
Process of Law
Evans argues the trial court violated his due process rights
in several ways. None of his arguments has merit.
“‘The Fourteenth Amendment’s Due Process Clause
protects persons against deprivations of life, liberty, or property;
and those who seek to invoke its procedural protection must
establish that one of these interests is at stake.’ . . . Procedural
due process requires notice and an opportunity to be heard.”
(People v. Hamilton (2025) 108 Cal.App.5th 423, 438-439,
27
citations omitted; see U.S. Const., 14th Amend.; Cal. Const.,
art. I, § 7(a).)
Evans contends the trial court violated his due process
rights by permitting the District, but not Evans, “to revisit
previously decided issues,” failing to strike the District’s
supplemental brief “that impermissibly reargued the merits of
the single issue they had lost,” failing “to enforce its own orders”
(specifically, the order requesting supplemental briefs regarding
the remedy for a Brown Act violation), and “permitting [the
District] to circumvent procedural protections set forth in” Code
of Civil Procedure section 1008. We address these arguments
together because they all essentially challenge the court’s
decision to reconsider its tentative ruling the Board violated the
Brown Act.
As Evans correctly points out, the trial court tentatively
ruled on April 19, 2024 the Board violated the Brown Act by
deliberating in a closed session regarding its decision to
terminate Evans’s employment with the District. And though the
trial court directed the parties to submit supplemental briefs on
the appropriate remedy for a Brown Act violation, the District
submitted a supplemental brief arguing Evans was not entitled
to a remedy because the Board did not violate the Brown Act.
The trial court reconsidered its tentative ruling and changed its
conclusion regarding the Brown Act violation in its final July 16,
2024 ruling.
The trial court did not abuse its discretion in reconsidering
and finalizing its tentative ruling. (See People v. Lujan (2012)
211 Cal.App.4th 1499, 1507 [reviewing trial court’s exercise of
inherent authority for abuse of discretion].) The court’s initial
ruling was a tentative ruling, not a final ruling, and Evans cites
28
no authority stating a court cannot revise or modify a tentative
ruling before it becomes the court’s final ruling. And even then,
after the court enters a ruling on a matter, Code of Civil
Procedure section 1008, subdivision (c), gives the court authority
to reconsider it if the court “determines that there has been a
change of law that warrants it to reconsider a prior order it
entered . . . .” Indeed, even without a change in the law, the court
may exercise its inherent jurisdiction to reconsider a ruling.
(Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 840; see Le Francois v.
Goel (2005) 35 Cal.4th 1094, 1107 [Code of Civil Procedure
section 1008 does “not limit the court’s ability, on its own motion,
to reconsider its prior interim orders so it may correct its own
errors”]; see also Phillips v. Sprint PCS (2012) 209 Cal.App.4th
758, 768 [“‘“‘Miscarriage of justice results where a court is unable
to correct its own perceived legal errors.’”’”].) In its July 16, 2024
ruling, the trial court explained that it researched the Brown Act
issue and that, with the benefit of additional time and review, it
reached a different conclusion. The court properly corrected its
error. Evans cites no case holding, or even suggesting, the court’s
reconsideration of its tentative ruling—after allowing the parties
to submit written briefs and present argument on the issue the
court intended to reconsider—violates due process.
Evans also argues the trial court “ought not to have
considered [the District’s] newly-raised arguments at all. Courts
may not consider arguments raised for the first time in reply or
supplemental briefing unless the opposing party is given an
opportunity to respond.” This argument fails for two reasons.
First, the cases Evans cites relate to the submission of new
evidence (rather than a new argument) with a reply brief. (See
29
Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general
rule of motion practice, which applies here, is that new evidence
is not permitted with reply papers.”]; Alliant Ins. Services, Inc. v.
Gaddy (2008) 159 Cal.App.4th 1292, 1307 [trial court properly
considered a supplemental declaration submitted with a reply
brief, where the court gave the opposing party the opportunity to
testify in response]; San Diego Watercrafts, Inc. v. Wells Fargo
Bank (2002) 102 Cal.App.4th 308, 316 [trial court violated a
party’s due process rights by considering a supplemental
declaration submitted after the party filed its opposition brief and
response to a separate statement]; Plenger v. Alza Corp. (1992)
11 Cal.App.4th 349, 362, fn. 8 [“the inclusion of additional
evidentiary matter with the reply should only be allowed in the
exceptional case, the trial court’s consideration of such additional
evidence is not an abuse of discretion so long as the party
opposing the motion for summary judgment has notice and an
opportunity to respond to the new material”].) The District did
not submit new evidence with its supplemental brief regarding
the Brown Act.
Second, there was no due process violation. “‘[D]ue process
is flexible and calls for such procedural protections as the
particular situation demands,’ [citation] while ensuring the right
to notice and a meaningful opportunity to be heard.” (Ramirez v.
City of Indio (2024) 105 Cal.App.5th 939, 952.) As explained,
after the District filed its supplemental brief on the Brown Act,
Evans moved to strike the brief because it raised issues other
than the appropriate remedy for a Brown Act violation. The
court held a hearing on June 20, 2024 and, at Evans’s request,
continued the matter for a month to allow Evans to submit an
additional brief addressing the issues raised by the District. The
30
trial court also asked the parties to address those issues during
the hearing on July 12, 2024. Thus, the trial court notified Evans
it would reconsider its April 19, 2024 tentative ruling and
provided Evans two opportunities to be heard. Nothing more was
required.
Evans also argues the trial court committed “an outright
denial of due process” through its “starkly different treatment of
Mr. Evans” at the hearing on July 12, 2024. Specifically, Evans
complains the court limited his attorney’s argument “to only ten
minutes, after [the District] had extensively briefed their newly
introduced arguments.” That’s not quite what happened. As
discussed, the trial court allowed Evans to address in writing the
issues raised by the District in its supplemental brief. The court
read and considered all the supplemental briefing. And at the
July 12, 2024 hearing the court allowed each side to argue for up
to 10 minutes and asked the parties to focus on a single issue—
whether the Board violated the Brown Act. The court heard
argument from both sides on that issue and asked several
questions. Then, though the trial court stated the only relevant
issue at the hearing was the Brown Act violation, the court gave
counsel for Evans an additional 10 minutes to address other
issues in the court’s April 19, 2024 tentative ruling. The court
gave the District five minutes to respond. Contrary to Evans’s
assertion, the trial court gave Evans more time to argue than the
District, not less.6
6 Evans cites two cases purportedly holding that “unequal
time limits” and “disparate argument limitations” are due process
violations. Neither case, however, addressed that issue. In
Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389
the court reversed a judgment on due process grounds, where the
31
2. Evans Has Not Established Federal Law
Preempts the Public Health Department’s
Vaccinate-or-test Mandate
Evans argues “the District violated federal law by
conditioning employment on acceptance of an emergency use
authorization medical procedure.” By failing to provide an
adequate discussion of the relevant statutes and legal principles
in the trial court and on appeal, Evans forfeited the issue.
As a preliminary matter, Evans complains the trial court
“never substantively ruled on [Evans’s] claims regarding
compelled EUA testing or denial of reasonable accommodation—
issues extensively briefed by [Evans] and central to his petition.”
The trial court, however, may not have addressed Evans’s claim
because Evans did not adequately raise it. “A trial court may
decline to consider an argument that does not comply with rule
3.1113 of the California Rules of Court.” (Nationwide Ins. Co. of
America v. Tipton (2023) 91 Cal.App.5th 1355, 1365.) “Fairness
dictates all arguments be presented in the memorandum of
points and authorities, which ‘must contain a statement of facts,
a concise statement of the law, evidence and arguments relied on,
and a discussion of the statutes, cases, and textbooks cited in
support of the position advanced.’” (Ibid.; see Quantum Cooking
Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927,
trial court denied a request for a continuance and proceeded to
trial with one party unrepresented by counsel. (Id. at pp. 1395-
1396.) In Nightlife Partners Ltd. v. City of Beverly Hills (2003)
108 Cal.App.4th 81 the court considered whether the city’s
administrative process deprived the petitioners of a fair hearing,
where a city attorney advised the (purportedly neutral)
administrative hearing officer during the administrative appeal
process. (Id. at pp. 90-91.)
32
932-933 [trial court was justified in rejecting a posttrial motion
that “merely quoted” applicable statutes and did not discuss
relevant facts or law]; Black v. Financial Freedom Senior
Funding Corp. (2001) 92 Cal.App.4th 917, 925, fn. 9 [respondent
forfeited an argument on appeal under predecessor to rule 3.1113
that was “not presented to any material extent at all in
respondents’ motion” in the trial court].)
Evans failed to provide the trial court with either “a concise
statement of the law” or “a discussion of the statutes [and] cases”
relevant to his argument. Though Evans referred to the
emergency-use statute7 in his memorandum of points and
7 Title 21 United States Code section 360bbb-3 is a lengthy
and detailed provision setting forth the circumstances in which
the Secretary of the United States Health and Human Services
Department may authorize a drug, device or biological product
for use during an emergency before the product receives full
approval by the Food and Drug Administration. Evans relies on
subdivision (e)(1)(A)(ii)(III) which provides, in pertinent part: “(e)
Conditions of authorization [¶] (1) Unapproved product [¶] (A)
Required conditions [¶] With respect to the emergency use of an
unapproved product, the Secretary, to the extent practicable
given the applicable circumstances described in subsection (b)(1),
shall, for a person who carries out any activity for which the
authorization is issued, establish such conditions on an
authorization under this section as the Secretary finds necessary
or appropriate to protect the public health, including the
following: (i) Appropriate conditions designed to ensure that
health care professionals administering the product are
informed—[¶] (I) that the Secretary has authorized the
emergency use of the product; [¶] (II) of the significant known
and potential benefits and risks of the emergency use of the
product, and of the extent to which such benefits and risks are
unknown; and [¶] (III) of the alternatives to the product that are
33
authorities, he did not analyze the federal law preemption issue
or cite any case law supporting his position the statute applied to
the District. Here’s his argument: “Part of the explicit statutory
conditions for an EUA requires that all individuals to whom the
product approved for emergency use may be administered be
informed ‘of the option to accept or refuse administration of the
product.’ 21 U.S.C. § 360bbb-3(a)(1). By requiring the Secretary
to ‘inform’ individuals of the option to reject, the statute
presumes that such an option exists. By way of the Supremacy
Clause, this section of the United States Code applies irrespective
of the [state vaccinate-or-test mandate] or any other state law.
[fn. omitted] [¶] As a state actor, the District is subject to the
EUA’s requirements.” Given the complex legal doctrines and
statutory schemes Evans invoked, he needed to do more to raise
the issue adequately in the trial court.
Evans makes a similar error on appeal by failing to
adequately develop his federal preemption argument. Evans
argues that, because the only available tests for COVID-19 were
authorized by the federal government under an emergency-use
authorization, he had “a federally protected right” to “‘accept or
refuse’” to undergo testing for COVID-19. He claims federal law
available, and of their benefits and risks. [¶] (ii) Appropriate
conditions designed to ensure that individuals to whom the
product is administered are informed— [¶] (I) that the Secretary
has authorized the emergency use of the product; [¶] (II) of the
significant known and potential benefits and risks of such use,
and of the extent to which such benefits and risks are unknown;
and [¶] (III) of the option to accept or refuse administration of the
product, of the consequences, if any, of refusing administration of
the product, and of the alternatives to the product that are
available and of their benefits and risks.”
34
(specifically, the Supremacy Clause of the United States
Constitution and title 21 United States Code section 360bbb-
3(e)(1)(A)(ii)(III)) preempted the state vaccinate-or-test order and,
by extension, the District’s vaccinate-or-test policy. Whether and
under what circumstances federal law preempts state law is a
complex inquiry. (See Coastline JX Holdings LLC v. Bennett
(2022) 80 Cal.App.5th 985, 1015 [federal preemption issues are
“novel and complex”]; Stursberg v. Morrison Sund PLLC
(8th Cir. 2024) 112 F.4th 556, 562 [“federal preemption [is] a
complex subject”]; Southern Appalachian Mountain Stewards v.
Red River Coal Co., Inc. (4th Cir. 2021) 992 F.3d 306, 314
[“federal preemption . . . involves complex questions of
federalism”].) “‘The supremacy clause of the United States
Constitution establishes a constitutional choice-of-law rule,
makes federal law paramount, and vests Congress with the
power to preempt state law.’ [Citations.] . . . [Citations.]
Preemption is foremost a question of congressional intent: did
Congress, expressly or implicitly, seek to displace state law?
[Citations.] [¶] . . . Congress may expressly preempt state law
through an explicit preemption clause, or courts may imply
preemption under the field, conflict, or obstacle preemption
doctrines.” (Quesada v. Herb Thyme Farms, Inc. (2015)
62 Cal.4th 298, 307-308.) The burden is on the party asserting
preemption to demonstrate that preemption applies. (Ibid.; see
People v. Dillard (2018) 21 Cal.App.5th 1205, 1214.)
Evans invokes obstacle preemption, which “permits courts
to strike state law that stands as ‘an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress.’ [Citations.] It requires proof Congress had
particular purposes and objectives in mind, a demonstration that
35
leaving state law in place would compromise those objectives, and
reason to discount the possibility the Congress that enacted the
legislation was aware of the background tapestry of state law and
content to let that law remain as it was. Ultimately, ‘what
constitutes a “sufficient obstacle [for a finding of implied
preemption] is a matter of judgment, to be informed by
examining the federal statute as a whole and identifying its
purpose and intended effects.”’” (Quesada v. Herb Thyme Farms,
Inc., supra, 62 Cal.4th at p. 312.)
Evans cites only two preemption cases in his opening brief:
Crosby v. National Foreign Trade Council (2002) 530 U.S. 363,
372 and Arizona v. United States (2012) 567 U.S. 387, 406.
Neither case advances his preemption argument. In Arizona the
United States Supreme Court considered whether federal law
preempted an Arizona law (or portions thereof) designed “‘to
discourage and deter the unlawful entry and presence of aliens
and economic activity by persons unlawfully in the United
States.’” (Arizona, at pp. 392-393.) After summarizing the
federal government’s extensive authority over immigration and
applicable principles of federalism, the Supreme Court conducted
a lengthy analysis of four provisions of the Arizona law, along
with similar provisions of federal law. The Supreme Court
concluded federal immigration law preempted three of the four
provisions. (Id. at pp. 400-415.) Immigration is not an issue in
this case.
In Crosby the United States Supreme Court considered
whether federal law preempted a Massachusetts law restricting
local government entities’ ability to purchase goods or services
from companies doing business with Burma (also called
Myanmar). (Crosby v. National Foreign Trade Council, supra,
36
530 U.S. at pp. 367-368.) Three months after the Massachusetts
law was enacted, Congress passed a statute imposing a set of
mandatory and conditional sanctions on Burma. (Id. at pp. 368-
370.) The Supreme Court analyzed three areas where the
Massachusetts law undermined the intended purpose of the
federal law: “its delegation of effective discretion to the President
to control economic sanctions against Burma, its limitation of
sanctions solely to United States persons and new investment,
and its directive to the President to proceed diplomatically in
developing a comprehensive, multilateral strategy toward
Burma.” (Id. at pp. 373-375.) The Supreme Court held the
Massachusetts law “stands as an obstacle in addressing the
congressional obligation to devise a comprehensive, multilateral
strategy” regarding trade policy with Burma. (Id. at p. 385.)
Federal trade policy is not an issue here either.
Arizona and Crosby provide a road map for the sort of
analysis required in a case implicating federal preemption
generally and obstacle preemption in particular. The United
States Supreme Court scrutinized the provisions of both the state
and federal law, considered the intent of the respective
legislatures in enacting the laws, evaluated the potential impact
of the state law on federal action, and explored potential conflicts
between the two statutory schemes. Far from assisting Evans,
however, Arizona and Crosby highlight the deficiencies in Evans’s
strategy on appeal.
Evans needed to do more than assert, in passing, federal
law preempted the state vaccinate-or-test order. Here’s his
argument in his opening brief: “Under the Supremacy Clause,
federal law preempts any state law or order that conflicts with or
stands as an obstacle to federal objectives. [Citations.] [¶]
37
Because 21 U.S.C. § 360bbb-3 conditions EUA authorization on
voluntariness, any state or local mandate that eliminates the
option to refuse is preempted under obstacle preemption
principles. The [state vaccinate-or-test order] itself acknowledges
the applicability of federal law concerning informed consent and
the option to refuse EUA vaccines, and by extension,
EUA tests. . . . [¶] State or local health orders cannot transform
a federally protected voluntary choice into a mandatory
employment condition.” Evans does not discuss the purposes and
objectives Congress had in mind when it adopted the
emergency-use authorization provision, title 21 United States
Code section 360bbb-3. He does not discuss the statutory scheme
the emergency-use authorization provision is a part of. And he
does not explain how the state’s vaccinate-or-test order was an
obstacle to Congress’s intended regulation of biological products
authorized for emergency use. He simply focuses on one sub-sub-
subsection and, from there, hypothesizes an inalienable federal
right to refuse to comply with a state public health directive
issued in the middle of a global pandemic.
As the appellant, Evans had to provide a cogent legal
analysis of the challenged state law, the competing federal law,
and the interplay between the two. He did not. (See, e.g., In re
Tobacco Cases II (2015) 240 Cal.App.4th 779, 808 [“‘a party’s
failure to perform its duty to provide argument, citations to the
record, and legal authority in support of a contention’” forfeits the
issue]; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th
771, 799 [appellant must support issues raised with “‘reasoned
argument and citations to authority’”].)
38
3. Substantial Evidence Supported the Trial
Court’s Finding the District Offered Evans a
Reasonable Accommodation for His Religious
Objection to Vaccination
Evans argues the District “utterly failed to engage in a
good faith interactive process and failed to provide any lawful
reasonable accommodation” for his religious objection to
vaccination. Not so.
Government Code section 12940, subdivision (l), provides it
is unlawful “[f]or an employer . . . to discharge a person from
employment . . . or to discriminate against a person . . . because of
a conflict between the person’s religious belief or observance and
any employment requirement, unless the employer . . .
demonstrates that it has explored any available reasonable
alternative means of accommodating the religious belief or
observance . . . .” To establish a cause of action for failure to
accommodate religious beliefs, “the employee must establish a
prima facie case that he or she had a bona fide religious belief, of
which the employer was aware, that conflicts with an
employment requirement.” (Soldinger v. Northwest Airlines, Inc.
(1996) 51 Cal.App.4th 345, 370; see California Fair Employment
& Housing Com. v. Gemini Aluminum Corp. (2004)
122 Cal.App.4th 1004, 1016.) If the employee establishes he or
she had such a bona fide religious belief, “the employer must
establish it initiated good faith efforts to accommodate or no
accommodation was possible without producing undue hardship.”
(Soldinger, at p. 370; see California Fair Employment & Housing
Com., at p. 1016.)
The District does not dispute Evans had a bona fide
religious objection to vaccination. Evans advised the District of
39
his “sincerely held religious belief in the sanctity of all human
life.” He explained his belief: “[T]he most significant reason why
I cannot accept these vaccines [is] because of the fact that fetal
stem cell lines from electively aborted babies were used in either
the development and/or testing of the currently available COVID-
19 shots. I believe that abortion is murder and is prohibited in
the Bible (Exodus 20:13, Psalm 139:13-16, Jeremiah 1:5, Isaiah
49:15). By receiving the shot, I believe I would be complicit in the
act of abortion.”
Substantial evidence supported the trial court’s ruling the
District accommodated his religious objection to vaccination by
providing testing for COVID-19 as an alternative. It was
undisputed the District offered testing for COVID-19 at the
District’s expense and on school grounds. Because Evans
objected to COVID-19 testing on grounds not protected under the
Fair Employment and Housing Act—he testified before the
hearing officer that he had no religious objection to testing for
COVID-19—that objection did not trigger any additional duty to
accommodate Evans.
Evans argues the District failed to consider his preferred
accommodation—transfer to a facility where District employees
were not subject to the state’s vaccination-or-test order—and
claims “[t]he record indicates such positions existed.” The record
actually shows that the District applied its vaccinate-or-test
policy to all District facilities and that, in any event, there were
no available positions at the specific facilities Evans identified.
40
DISPOSITION
The judgment is affirmed. Long Beach Unified School
District is to recover its costs on appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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