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Court of Appeal:
Official’s Warning Was Not First Amendment Retaliation
Beverly Hills Council Member’s Public Statement That Firefighters Would Be in Trouble in Who Lied Under Oath as to Religious Convictions to Gain Exemption From COVID Inoculations Is Not Actionable, Opinion Says
By a MetNews Staff Writer
The Court of Appeal for this district has upheld the termination of an action against a Beverly Hills City Council member, sued by two firefighters who claim that he sought to intimidate them through rhetoric into dropping their claims of a religious exemption from the 2021 county-issued directive that certain public employees be vaccinated against COVID-19.
Justice Victoria M. Chavez of Div. Two authored the unpublished opinion, filed Wednesday. It holds that a civil rights action under 42 U.S.C. §1983 for First-Amendment retaliation cannot be founded on a threat by city lawmaker John Mirisch that firefighters who would proceed to lie under oath as to their religious beliefs in order to avoid the inoculations would be held accountable.
Chavez’s opinion also declares that a cause of action was not adequately stated under California’s Tom Bane Civil Rights Act, contained in Civil Code §52.1, which is akin to §1983 but with variations.
The appellants are Josh Sattley—who was fired based on his refusal to be vaccinated—and Ettore Berardinelli Jr., who was granted an exemption but was shifted to a limited-duties assignment which allegedly caused his opportunities for promotion to be diminished. Although there were multiple defendants in the suit, Wednesday’s opinion deals only with Los Angeles Superior Court Judge Barbara M. Scheper’s double death-blow to the two causes of action against Mirisch, a former Paramount Pictures executive and three-time Beverly Hills mayor.
On Oct. 21, 2022, she sustained demurrers to those causes of action without leave to amend but stayed her order pending resolution at a hearing on Nov. 17 of Mirisch’s anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16. At that hearing, Scheper’ granted the motion, striking the two causes of action as SLAPPs, and signed an order saying that in light of the action on the demurrers, “John Mirisch is dismissed with prejudice” as a defendant.
Mirisch’s Remarks
The controversy stems from Mirisch posting a statement on Twitter on Sept. 30, 2021, the final day to comply with the county’s mandate, with that statement being re-published in the Beverly Hills Courier. The utterances were alleged by the plaintiffs to constitute retaliatory speech, that is, a punitive action in the form of a written or oral communication.
In his statement, the councilman criticized the Beverly Hills Firefighters’ Association for providing support to some of the firefighters seeking an exemption. It reads, in part:
“The firefighters applying for an exemption will be interviewed under penalty of perjury to ascertain whether their refusal to get vaccinated is medically necessary or rises to the level of a bona fide religious conviction. That they would go to such an extent to avoid taking an action which protects our entire Community is bad enough, if any of them are caught perjuring themselves in their attempt to circumvent the vaccination mandate, then there should be serious consequences.”
“In many police departments, there is a well-known axiom: ‘You lie, you die.’ ”
The statement also asserts:
“[I]t seems that a large number of anti-vaxxer Beverly Hills firefighters are trying to take things into their own hands.
“This morning we received word from our Chief that 25 firefighters—close to 30% of the entire force—have submitted exemption requests to the City’s Human Relations department. Two of the applications cited medical exemptions, while 23 of the firefighters want to be granted ‘religious exemptions’ from the vaccination mandate.
“This seems to be nothing short of an attempt to manipulate the system on a massive scale.”
Appellants’ Contentions
In their opening brief in the Court of Appeal, Sattley and Berardinelli said they had “sought to hold Mirisch liable for violating Appellants rights under the First Amendment retaliation doctrine when he tried to pressure them into withdrawing their accommodation requests by publicly accusing them of being anti-vaxxers who were trying to ‘get around’ he vaccine policy instead of doing their civic duty to get vaccinated.”
They argued that the intent of the anti-SLAPP statute is “to prevent people from using litigation to deter Californians from exercising their constitutional rights, not to protect government officials who threaten and pressure government employees to waive their rights.”
Sec. 425.16(b)(1) declares that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Sattley and Berardinelli contended that Mirisch “was not speaking about a matter of public concern when he attacked the firefighters who were seeking religious accommodations to the COVID vaccine policy,” maintaining:
“That is a private personnel matter, something the firefighters had a right to seek under state and federal law and, in fact, under the vaccine policy itself. The fact that their requests related to COVID-19 does not change that. It cannot transform a private personnel matter into a topic of public concern deserving of the anti-SLAPP statute’s protection.
“This Court should be especially cautious about applying the anti-SLAPP statute to the constitutional claims alleged against Councilman Mirisch. Federal courts have refused to apply the anti-SLAPP statute to such claims, in part because that could deter people from filing lawsuits to vindicate their federally protected rights.”
The appellants asserted that sufficient facts were stated to withstand a demurrer, that whether “Mirisch’s threatening comments would deter a person of ordinary firmness from engaging in protected activity….is an objective test that is rarely decided on summary judgment, much less at the pleading stage” and that Scheper “violated settled rules of procedure and constitutional law” by denying leave to amend.
Anti-SLAPP Statute
Chavez declared that Mirisch’s statement “concerning the Beverly Hills firefighters’ requests for accommodation in the face of the vaccine mandate unquestionably concerned an issue of public interest,” thus satisfying the first prong of the anti-SLAPP statute: protected conduct. She elaborated:
“The statements, made in respondent’s role as a public representative of the community, concerned the vaccine mandate, certain firefighters’ attempts to circumvent the mandate, and the impact that behavior would have on the community. The statements were made in a public setting and were purposely directed to the community at large to address an issue of public concern.”
Addressing the second prong—probability of prevailing on the merits—she said:
“The…cause of action for First Amendment retaliation is subject to dismissal because respondent’s statements were not designed to chill protected conduct—only perjury.”
Sustaining of Demurrers
Agreeing with Scheper that the pleading was infirm, Chavez said that a cause of action for retaliatory speech can be maintained only where that speech occurs in the course of a campaign of harassment or communicates a threat of punishment if protected activities does not cease, and that “[n]o allegations of either situation were made here.”
She wrote that Mirisch “did not suggest some form of punishment or adverse action would arise from protected activity,” explaining that consequences were threatened if firefighters engaged in unprotected activity: falsely professing under oath to hold religious scruples against inoculations.
“Respondent’s ‘[y]ou lie, you die’ quote was… directed at individuals being dishonest, not individuals exercising a protected right to express their religious freedom through an exemption,” Chavez wrote. “Committing perjury is not a protected activity.”
There was no abuse of discretion in denting leave to amend, she said, because the plaintiffs’ “vague allegations of new evidence do not show that such evidence could cure the defects in their allegations.”
The cause of action under the Bane Act was properly disallowed, Chavez said, pointing out that the act expressly requires a threat of violence and no such threat was alleged.
The case is Sattley v. Mirisch, B325969.
Representing the firefighters were John Howard and Scott J. Street of the Pasadena form of JW Howard/Attorneys, Ltd. Acting for Mirisch were Jennifer Petrusis, Ginetta L. Giovinco and Garen N. Bostanian of the downtown Los Angeles firm of Richards, Watson & Gershon.
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