Electronically FILED by Superior Court of California, County of Los Angeles on 12/28/2022 11:57 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by J. Tang,Deputy Clerk

1 PAUL HASTINGS LLP

STEVEN A. MARENBERG (SB# 101033)
2 stevenmarenberg@paulhastings.com
1999 Avenue of the Stars
3 Twenty-Seventh Floor
Los Angeles, California 90067
4 Telephone: 1(310) 620-5700
Facsimile: 1(310) 620-5899
5
PAUL HASTINGS LLP
6 JARRYD M. COOPER (SB# 292090)
jarrydcooper@paulhastings.com
7 LAURA E. ZABELE (SB# 330847)
laurazabele@paulhastings.com
8 515 South Flower Street, Twenty-Fifth Floor
Los Angeles, California 90071-2228
9 Telephone: 1(213) 683-6000
Facsimile: 1(213) 627-0705
10
Attorneys for Defendant
11 AMERICAN BROADCASTING COMPANIES, INC.
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
14 INGO RADEMACHER, an individual, CASE NO. 21STCV45383
DEFENDANT AMERICAN
15 Plaintiff, BROADCASTING COMPANIES, INC.’S
MEMORANDUM OF POINTS AND
16 vs. AUTHORITIES IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT
17 AMERICAN BROADCASTING COMPANIES, OR, IN THE ALTERNATIVE, SUMMARY
INC., a Delaware corporation; and DOES 1 ADJUDICATION
18 through 10, inclusive,
[Filed Concurrently with Notice of Motion and
19 Defendants. Motion; Separate Statement of Undisputed Facts;
Evidence in Support of Motion for Summary
20 Judgment; Notice of Lodging Document (CD-
ROM); and [Proposed] Order]
21
Date: March 13, 2023
22 Time: 9:00 a.m.
Dept: 39
23 Judge: Hon. Stephen Goorvitch
24 Complaint filed: December 13, 2021
FAC filed: April 21, 2022
25 SAC filed: October 4, 2022
Trial Date: May 1, 2023
26
Res. ID: 823526443264
27

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR

SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 TABLE OF CONTENTS
2 Page
3 I.  INTRODUCTION ...............................................................................................................................7 
4 II.  STATEMENT OF UNDISPUTED FACTS ........................................................................................7 
A.  Looking Back: The Covid-19 Pandemic In Mid-2021. .........................................................7 
5
B.  The Vaccine Policy. ................................................................................................................8 
6 C.  Rademacher’s Roles As “Jax” On General Hospital. ............................................................9 
7 D.  Rademacher’s Bare Bones Accommodation Request And His Subsequent Refusal
To Engage In The Interactive Discussion About His “Religious” Beliefs. ..........................10 
8 E.  Rademacher’s Beliefs Are Personal Or Ideological – Not “Religious.” ..............................13 
9 1.  Rademacher’s Beliefs Cited As The Basis For Refusing To Be Vaccinated
Are Not Religious Beliefs, But Lifestyle Choices. .................................................13 
10 2.  Rademacher’s Opposition To Vaccination Is Grounded In His Objections
To Vaccine Mandates..............................................................................................15 
11
F.  Rademacher Admitted He Has No Evidence Of Political Animus Or Retaliation In
12 The Decision To Terminate His Employment. .....................................................................16 
III.  ARGUMENT .....................................................................................................................................16 
13
A.  Rademacher’s First Cause Of Action For Invasion Of Privacy Fails. ..................................16 
14 1.  Rademacher Had No Legally Protected Privacy Interest Nor Any
Expectation Of Privacy That Was Impacted By The Vaccine Policy. ....................17 
15
2.  ABC Had A Rational Basis For Adopting The Vaccine Policy; Any
16 Possible Privacy Intrusion Is Justified By Competing Health And Safety
Interests. ..................................................................................................................18 
17 B.  Rademacher’s Second Cause Of Action For Religious Discrimination Fails. .....................18 
18 1.  Even Assuming Arguendo That Rademacher’s Beliefs Are Covered By The
FEHA, His Refusal To Permit Inquiry Into Them Defeats His Claim....................19 
19 2.  Rademacher Does Not Have A Bona Fide Religious Belief...................................19 
20 3.  Nonetheless, As An Actor Working Closely With Others, ABC Could Not
Accommodate Rademacher’s Exemption Request. ................................................21 
21 C.  Rademacher’s Third Cause Of Action For Disability Discrimination Fails.........................23 
22 1.  Rademacher Admits He Is Not Disabled. ...............................................................23 
2.  Rademacher Did Not Timely Exhaust His Administrative Remedies. ...................23 
23
3.  The Vaccine Policy Cannot Transform Rademacher’s Unvaccinated Status
24 Into A Disability. .....................................................................................................23 
D.  Rademacher’s Fifth Claim For Wrongful Termination And Political Retaliation
25 Fails. .....................................................................................................................................24 
26 1.  No Rule, Regulation, Or Policy Of ABC Prohibits Political Participation. ............25 
2.  Rademacher’s Political Retaliation Theory Likewise Fails Because There Is
27 No Evidence That ABC’s Decision Regarding His Final Cycle Was
Pretextual.................................................................................................................25 
28
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 1.  The Alleged Wrongful Acts Are Protected By The First Amendment. ..................26 
2 E.  Rademacher’s Derivative Claims Fail. .................................................................................26 
IV.  CONCLUSION ..................................................................................................................................26 
3

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 TABLE OF AUTHORITIES
2 Page(s)
3 CASES
4 Abelleira v. District Court of Appeal,
17 Cal. 2d 280 (1941) ................................................................................................................................ 23
5
Adeyeye v. Heartland Sweeteners, LLC,
6 721 F.3d 444 (7th Cir. 2013) ..................................................................................................................... 19
7 Alvarado v. City of San Jose,
94 F.3d 1223 (1996) .................................................................................................................................. 21
8 Andre-Rodney v. Hochul,
9 569 F. Supp. 3d 128 (N.D.N.Y. 2021)....................................................................................................... 17
Brox v. Hole,
10 590 F. Supp. 3d 359 (D. Mass. 2022) ........................................................................................................ 22
11 Burcham v. City of Los Angeles,
562 F. Supp. 694 (C.D. Cal. 2022) ................................................................................................ 16, 17, 18
12
Cal. Fair Emp. & Hous. Comm’n v. Gemini Aluminum Corp.,
13 122 Cal. App. 4th 1004 (2004) .................................................................................................................. 21
14 Claybrooks v. ABC, Inc.,
898 F. Supp. 2d 986 (M.D. Tenn. 2012).................................................................................................... 26
15 Commc’ns Workers of Am. v. Beck,
16 487 U.S. 735 (1988) .................................................................................................................................. 18
Coshow v. City of Escondido,
17 132 Cal. App. 4th 687 (2005) .................................................................................................................... 18
18 EEOC v. Papin Enters., Inc.,
2009 WL 2256023 (M.D. Fla. July 28, 2009) ........................................................................................... 19
19
EEOC v. Townley Eng’g & Mfg. Co.,
20 859 F.2d 610 (9th Cir. 1988) ..................................................................................................................... 22
21 Fallon v. Mercy Cath. Med. Ctr. of Se. Pa.,
877 F.3d 487 (3d Cir. 2017) ................................................................................................................ 20, 21
22 Friedman v. Southern Cal. Permanente Med. Grp.,
23 102 Cal. App. 4th 39 (2002) .......................................................................................................... 19, 20, 21
Geerlings v. Tredyffrin/Easttown Sch. Dist.,
24 2021 WL 4399672 (E.D. Pa. Sept. 27, 2021) ............................................................................................ 20
25 Guilfoyle v. Beutner,
2021 WL 4594780 (C.D. Cal. Sept. 14, 2021) .................................................................................... 17, 18
26
Hanzel v. Arter,
27 625 F. Supp. 1259 (S.D. Ohio 1985) ......................................................................................................... 20
28 Hill v. Nat’l Collegiate Athletic Ass’n,
7 Cal. 4th 1 (1994) ......................................................................................................................... 16, 17, 18
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 Hunter v. CBS Broad. Inc.,
221 Cal. App. 4th 1510 (2013) .................................................................................................................. 26
2
Jacques v. Hilton,
3 569 F. Supp. 730 (D. N.J. 1983) .......................................................................................................... 20, 21
4 Johnson v. Brown,
567 F. Supp. 3d 1230 (D. Or. 2021) .......................................................................................................... 17
5
Kelley v. Johnson,
6 425 U.S. 238 (1976) .................................................................................................................................. 17
Klaassen v. Trs. of Ind. Univ.,
7 7 F.4th 592 (7th Cir. 2021) ........................................................................................................................ 17
8 Klein v. United States of America,
50 Cal. 4th 68 (2010) ................................................................................................................................. 24
9
Loggins v. Kaiser Permanente Int’l,
10 151 Cal. App. 4th 1102 (2007) .................................................................................................................. 25
11 McCartney v. Austin,
298 N.Y.S.2d 26 (1969)............................................................................................................................. 20
12
McDermott v. Ampersand Publ’g, LLC,
13 593 F. 3d 950 (9th Cir. 2010) .................................................................................................................... 26
Norris v. Stanley,
14 567 F. Supp. 3d 818 (W.D. Mich., 2021) .................................................................................................. 17
15 Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal.,
475 U.S. 1 (1986) ...................................................................................................................................... 26
16
Prilliman v. United Air Lines, Inc.,
17 53 Cal. App. 4th 935 (1997) ...................................................................................................................... 22
18 Roman v. Hertz Loc. Edition Corp.,
2022 WL 1541865 (S.D. Cal. May 16, 2022) ........................................................................................... 24
19
Sheehan v. San Francisco 49ers, Ltd.,
20 45 Cal. 4th 992 (2009) ............................................................................................................................... 18
Soldinger v. Northwest Airlines, Inc.,
21 51 Cal. App. 4th 345 (1996) ...................................................................................................................... 19
22 Tamkin v. CBS Broad., Inc.,
193 Cal. App. 4th 133 (2011) .................................................................................................................... 26
23
Together Emps. v. Mass General Brigham Inc.,
24 573 F. Supp. 3d 412 (D. Mass. 2021) (1st Cir. 2022) ............................................................................... 22
25 United KP Freedom All. v. Kaiser Permanente,
2021 WL 5370951 (N.D. Cal. Nov. 18, 2021) .......................................................................................... 18
26
Welsh v. U.S.,
27 398 U.S. 333 (1970) ................................................................................................................................. 10

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 STATUTES
2 42 U.S.C. § 2000e (CIVIL RIGHTS ACT) ........................................................................................................... 11
42 U.S.C. § 2000e-2 (TITLE VII)...................................................................................................................... 22
3
42 U.S.C. § 12101 (ADA) ................................................................................................................................ 22
4
CAL. GOV’T CODE § 12900 (FAIR EMPLOYMENT AND HOUSING ACT (FEHA)) ....................................... passim
5 CAL. GOV’T CODE § 12920 .............................................................................................................................. 23
6 CAL. GOV’T CODE § 12926(i) .......................................................................................................................... 23
7 CAL. GOV’T CODE § 12926(m)(1)(A) .............................................................................................................. 24
CAL. GOV’T CODE § 12926(m)(1)(B) .............................................................................................................. 24
8
CAL. GOV’T CODE § 12926(m)(1)(B)(i)........................................................................................................... 24
9
CAL. GOV’T CODE § 12926(m)(1)(B)(ii).......................................................................................................... 24
10 CAL. GOV’T CODE § 12926(p) ......................................................................................................................... 22
11 CAL. GOV’T CODE § 12965 .............................................................................................................................. 23

12 CAL. LAB. CODE § 1101 ............................................................................................................................. 24, 25

CAL. LAB. CODE § 1101(a)............................................................................................................................... 25
13
CAL. LAB. CODE § 1101(b) .............................................................................................................................. 25
14
CAL. LAB. CODE § 1102 ............................................................................................................................. 24, 25
15 REGULATIONS
16 2 CAL. CODE REGS. § 11065(d)(7) ................................................................................................................... 23
CONSTITUTIONAL PROVISIONS
17
U.S. CONST., amend I ....................................................................................................................................... 26
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Ingo Rademacher’s employment as an actor on the ABC soap opera General Hospital was
4 terminated in November 2021 because he refused to get vaccinated against the Covid-19 virus, which was a
5 condition of continued employment under Defendant American Broadcasting Companies, Inc.’s (“ABC”)
6 Covid-19 Vaccine Mandate (the “Vaccine Policy”). In his Second Amended Complaint (“SAC”),
7 Rademacher seeks relief under a panoply of legal theories: invasion of privacy in violation of the California
8 Constitution, religious and disability discrimination, and most recently, political retaliation. Not one of these
9 claims survives scrutiny as a matter of law in light of the uncontroverted material facts presented by ABC.
10 Summary disposition for ABC should be granted on every one of Rademacher’s claims.
11 II. STATEMENT OF UNDISPUTED FACTS
12 The following facts are established by the declarations, deposition transcripts, and authenticated
13 documents submitted by ABC in support of this motion and referenced in ABC’s Separate Statement. Page
14 limitations obviously circumscribe our ability to set forth all of the facts in this summary.
15 A. Looking Back: The Covid-19 Pandemic In Mid-2021.
16 From almost the beginning of the Covid-19 pandemic, The Walt Disney Company and its
17 subsidiaries (“Disney”), including ABC, instituted a rigorous and comprehensive effort to protect the health
18 and safety of its employees and guests, and to facilitate the safest return to work procedures available in the
19 circumstances. See Declaration of Rachel Hutter (“Hutter Decl.”) ¶¶ 5-16; Declaration of Glenn Braunstein,
20 M.D. (“Braunstein Decl.”) ¶¶ 6-16. Early in the pandemic, on the advice of experts, these measures included
21 masking, physical distancing, and testing. Hutter Decl. ¶¶ 5-8 16; Braunstein Decl. ¶¶ 8, 16.
22 But in July 2021, the Delta variant — a significantly more infectious form of Covid-19 — had
23 emerged as the dominant strain. Hutter Decl. ¶ 9; Braunstein Decl. ¶ 9. Fortunately, by then, at least three
24 different Covid-19 vaccines had been developed and authorized for use in the United States. Braunstein
25 Decl. ¶ 10. The scientific data received and considered by Disney supported (and still does) that vaccines
26 were the most effective strategy for mitigating infections, hospitalizations, and deaths from Covid-19. Id. at
27 ¶ 13. The data also indicated that unvaccinated people were much more likely to get infected, face more
28 serious consequences from the infection, and transmit the virus to others. Id. at ¶¶ 12-13. Indeed, according

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 to one study released by the Centers for Disease Control and Prevention (“CDC”), unvaccinated individuals
2 were nearly five times more likely to be infected with Covid-19 than vaccinated persons. Id. at ¶ 11.
3 B. The Vaccine Policy.
4 On July 30, 2021, after careful consideration of, among other things, the unique risks posed by
5 Covid-19 and the scientific evidence that Covid-19 vaccines were safe and effective in reducing infections
6 and transmission, Paul Richardson, Senior Executive Vice President and Chief Human Resources Officer at
7 Disney, announced that all “all salaried and non-union hourly employees” working onsite “be fully
8 vaccinated” unless an individual received a religious or medical accommodation. The application of the
9 Vaccine Policy to union employees was deferred pending approval in collectively bargaining with the
10 relevant unions. Declaration of Paul Richardson (“Richardson Decl.”) at ¶ 12, Ex. A. On September 3,
11 2021, after obtaining the agreement of SAG-AFTRA’s, ABC announced that the Vaccine Policy would
12 apply to the General Hospital cast. Declaration of Dominick Nuzzi (“Nuzzi Decl.”) at ¶¶ 3, 5-6, Exs. A-B.
13 ABC’s Vaccine Policy was the product of an extensive deliberative process at Disney. Hutter Decl.
14 ¶¶ 5-16; Braunstein Decl. ¶¶ 6-16. Senior leaders at Disney and experts in medicine, infectious disease, and
15 infection control were part of the process to reach this important decision. Id. Ultimately, among additional
16 reasons, Disney determined that the Vaccine Policy was necessary given the unique emergency created by
17 the Covid-19 pandemic (including the Delta variant). Richardson Decl. ¶ 11; Hutter Decl. ¶¶ 13-16. Disney
18 determined that allowing any employee (absent an approved accommodation) to decide instead just to mask,
19 engage in periodic testing, and socially distance was not adequate to meet the urgent health and safety
20 priorities and protect Disney’s employees, and guests to the companies offices and other facilities, such as
21 the Disney Parks. Richardson Decl. ¶ 11; Hutter Decl. ¶¶ 13-16.
22 The Vaccine Policy required covered employees to be vaccinated by November 1, 2021, unless they
23 qualified for a religious or medical exemption, which would be considered on a “case-by-case basis taking
24 into consideration the specific circumstances.” Id. at ¶ 12, Ex. A. To request an exemption, an employee
25 had to complete an accommodation request form. Id. After receiving a completed form, employees would
26 be contacted by a representative of Disney’s Employee Relations Department (“ER”) to discuss their request
27 and obtain more information about the employee’s job duties and, if applicable, religious beliefs, adherence
28 to that belief, and how the belief prevented them from receiving the vaccine. Id.at. Following this

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 interactive process, ER would decide whether to grant the employee’s request. Id.
2 C. Rademacher’s Roles As “Jax” On General Hospital.
3 General Hospital is a daytime soap opera that premiered in 1963. Declaration of Frank Valentini
4 (“Valentini Decl.”) ¶ 4. Rademacher played the role of Jasper “Jax” Jacks. Id. ¶ 5. Like many long-running
5 soap operas, it is common for characters to appear, disappear, and reappear based on storylines. Id. ¶ 6; see
6 Declaration of Chris Van Etten (“Van Etten Decl.”) ¶ 4. Jax was no exception. Id. Rademacher, as Jax, did
7 not appear in any episodes from March 10, 2013 until June 26, 2016; October 29, 2016 until March 6, 2017;
8 and March 22, 2017 until March 29, 2019. Valentini Decl. ¶ 6.
9 Rademacher’s most recent stint on General Hospital started in 2019. Id. ¶¶ 7-8. In February 2019,
10 Rademacher executed a three-year contract (156 tape-date weeks), with each year broken down into two 26-
11 week cycles. Id.; see also Declaration of Lisa Gagliardi (“Gagliardi Decl.”) ¶¶ 3-4, Ex. A. While the
12 contract provided minimum compensation per cycle (i.e., a “guarantee”), the three-year term was not
13 assured. Id. Rather, ABC could cancel the contract at the end of any cycle, provided it gave Rademacher six
14 weeks prior written notice. Id.;Tr. 57:16-58:1. The contract also required Rademacher to comply with all
15 applicable ABC policies, of which the Vaccine Policy was one. Gagliardi Decl. ¶¶ 3-4, Ex. A.
16 ABC picked up Rademacher’s taping cycles in September 2019, March 2020, December 2020, and
17 then again in June 2021. Gagliardi Decl. ¶ 6. However, by July 2021, as Chris Van Etten, the Co-Head
18 Writer, was preparing to lay out long-term story plans (a process that is usually done every six months or
19 so), he identified Jax as among several characters who would be or might possibly be written off the show.
20 Van Etten Decl. ¶ 6. At that time, Jax’s role in the ongoing storyline was negligible and Van Etten did not
21 see a role for Jax going forward. Id. ¶¶ 5-6; see also Tr. 89:6-90:6 (Rademacher “would assume” that ABC
22 “would be discussing” whether to pick up a cycle option “weeks and months” before deadline).
23 With respect to his job duties, Rademacher said that he “cannot act with a mask on” (Tr. 217:11-
24 218:7) and that “performing” (which takes place indoors) often “requires that [he] get very close to other
25 actors,” including children under 12 and those “over the age of 65.” Tr. 213:6-18, 216:7-24, 228:5-25.
26 Indeed, because the show’s storylines in general – including those related to the character of Jax – often
27 focused on personal and romantic relationships, implementing increased safety protocols (such as social
28 distancing or a face covering) would require altering the creative direction or other artistic aspects of

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 General Hospital and its storylines. Valentini Decl. ¶ 17; Van Etten Decl. ¶ 7; see also Tr. 301:17-302:7
2 (agreeing characters are the “core of the show”); Tr. 228:21-25 (masked characters were “not writ[ten] into
3 the story”). And even Rademacher concedes acting while masked is not a reasonable alternative: “I think
4 Grey’s Anatomy did [masked actors]” and “it tanked, I’m sure.” Tr. 229:1-5.
5 D. Rademacher’s Bare Bones Accommodation Request And His Subsequent Refusal To
Engage In The Interactive Discussion About His “Religious” Beliefs.
6

7 On October 11, 2021 – five weeks after he received notice of the Vaccine Policy – Rademacher
8 submitted a written exemption request. Tr. 108:8-18, 109:4-17, Ex. 506. He stated:
9 I am entitled to a religious exemption against mandatory vaccination for Covid-19 on the
basis of my deeply and sincerely held moral belief that my body is endowed by my creator
10 with natural processes to protect me and that its natural integrity cannot ethically be violated
by the administration of artificially created copies of genetic material, foreign to nature and
11 experimental. This moral objection is in keeping with my rights of conscience articulated
by the United States Supreme Court in Welsh v. U.S. (1970) 398 U.S. 333, 339–340.
12

13 Ex. 506 (emphasis added); Tr. 109:4-17, 134:8-20. Notably, Rademacher conceded that the religious
14 exemption request was the only accommodation he sought from ABC. Tr. 108:8-18. Specifically, he admits
15 he did not ever file for a medical accommodation or any accommodation based on any alleged disability. Id.
16 The reasons to doubt the sincerity of Rademacher’s religious exemption request begin here. While
17 Rademacher acknowledges that he had an “obligation to be accurate and truthful in the information that [he
18 was] supplying to ABC” (Tr. 109:21-25), his testimony confirms he ignored that obligation. When pressed
19 at deposition, Rademacher admitted that the statements in his written request were either “irrelevant”
20 (Tr. 140:14-21) or “made really no difference” to his supposed religious beliefs (Tr. 135:14-136:10).
21 Eventually, Rademacher conceded that he simply “put together what [he] thought would be needed for a
22 religious exemption.” Tr. 378:9-17.
23 After submitting his request, Rademacher resisted ABC’s interactive process to evaluate it. Upon
24 receiving his request, ABC asked if Rademacher was “available to discuss tomorrow.” Declaration of Erin
25 Nguyen (“Nguyen Decl.”) ¶ 10, Ex. E. Rademacher refused to meet, stating: “If you have any questions
26 regarding my religious exemption please forward questions to me in writing so that I may answer them to the
27 best of my ability.” Nguyen Decl. ¶ 11, Ex. F; Tr. 181:7-183:1, Ex. 508.1 In response, Erin Nguyen of
28
1
Critically, Rademacher conceded that he wanted the questions in writing not because he felt he “couldn’t
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 ABC’s ER Department conveyed that “the accommodation review involves an interactive process/dialogue
2 to allow for a two-way exchange of information, questions, etc. We are not able to engage in a truly
3 interactive conversation via email.” Id.; Tr. 183:10-19.2 Despite this, days later, Rademacher repeated his
4 refusal, stating “[e]ven asking questions to test the sincerity of my belief violates my rights and constitutes
5 an invasion of privacy.” Nguyen Decl. ¶ 11, Ex. G; Tr. 190:6-194:1, Ex. 509. Thereafter, Rademacher
6 doubled down, telling Nguyen, “I believe the mere act of questioning the sincerity of my religious beliefs
7 violates my rights. If you are insisting to have a two-way conversation, I’d like it to occur in person and
8 with my attorney present.” Nguyen Decl. ¶ 11, Ex. I; Tr. 197:21-199:15, Ex. 510 (emphasis added).3
9 Ultimately, the two-week email saga ended with Rademacher agreeing to a live telephonic
10 discussion, which finally occurred on October 26, 2021. The conversation was documented in notes
11 contemporaneously made by Nguyen. Nguyen Decl. ¶ 15, Ex. J. The notes – which Rademacher repeatedly
12 conceded are complete and accurate (Tr. 209:17-210:7, 212:3-5, 220:5-221:1, 238:22-239:1, Ex. 512) –
13 make clear that he failed to provide sufficient evidence of a bona fide religious belief. Indeed, he did little
14 more than reiterate his written request. For example: Nguyen asked, “Can you please explain your
15 objection(s) to the Covid-19 vaccine? It is pretty much as [I] stated in [my] first paragraph of” my written
16 request. Nguyen Decl. Ex. J; Tr., Ex. 512. Thereafter, Rademacher stonewalled all of Nguyen’s attempts to
17 follow up. Although space considerations preclude us from listing all examples, his stonewalling included:
18  In response to whether Rademacher was a follower of a religion or spiritual community,
Rademacher said that ABC “do[es] not have the right to ask about my religious basis” and that
19 “[a]sking about [his] religious beliefs is actionable as religious discrimination.”
 When Nguyen asked Rademacher to explain whether his beliefs are “based on broader teachings,
20 system of beliefs, etc. vs. only an objection to vaccines,” Rademacher said that “question[ing] his
religious sincerity is a violation of the Civil Rights Act. All he can say, and he would say under
21 oath, is that his religious beliefs are religious and they are sincere.”
22 Id. (emphasis added). Rademacher admitted in his deposition that he withheld critical information relating to
23

24 adequately explain [his] religious beliefs orally,” but because “[he] just thought that this would be a better
process so I asked to do it this way.” Tr. 183:2-9.
2
25 Nguyen further explained this common sense approach in her deposition: “[W]e have found that it is most
effective to have verbal conversations with people to allow for a real time back and forth and also better
26 enables us to conclude that that person with whom we are interacting is, in fact, the person who made the
request and not someone else. It allows for them to be able to ask questions of us in real time. Just for many
27 reasons, it’s more, we believe, effective in most cases to have conversations.” Erin Nguyen Tr. 82:3-20.
3
As explained later in this brief, Rademacher’s insistence that ABC had no right to “test the sincerity” of his
28 beliefs is wrong as a matter of law and his refusal to budge from that incorrect position during the
accommodation process is just one of the many independent reasons his claim fails.
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 his religious beliefs from ABC during the accommodation process:
2 Q. [T]he answer is, yes, you did hold back some information [from Nguyen]?
A. I believe that some of the questions were a violation of my civil rights.
3 Q. All right. And, therefore, you didn’t answer them?
A. Yeah. That would be correct. Tr. 131:7-132:13.
4

5 Although Rademacher provided little information to ABC in the interactive process, what limited

6 information he did provide revealed that his opposition to vaccination was rooted in secular,

7 philosophical/moral beliefs. In fact, Nguyen’s notes reflect that Rademacher expressly disclaimed any

8 notion that his beliefs were religious: “[Nguyen:] Has this [lifestyle] informed any of your other choices re

9 medical care/interventions? [Rademacher:] His beliefs do not need to be based on religion or believe (sic)

10 in God but only his conscience.” Nguyen Decl. Ex.J; Ex. 512. To summarize succinctly, at no point did

11 Rademacher mention that his beliefs are based on, related to, or even loosely connected to any religious text

12 or teaching. The only support Rademacher cited for his position – aside from his own conscience or

13 personal moral code – was case law. Id.4

14 Finally, Rademacher’s statements to Nguyen revealed that his opposition to the Covid-19 vaccines

15 was rooted in health or efficacy concerns, not religion. For example, Rademacher said the allegedly

16 “religious” practice “he bases [his] life on” is “reduc[ing] toxicity as much as possible” Id.5 But that is a

17 health philosophy, not a religion. (See, Section III.B.2. infra.) When Nguyen asked, “what do you think

18 would happen if you were to get vaccinated,” Rademacher only expressed concerns for his earthly body (as

19
4
Rademacher’s interactive discussion also showed that he failed to hold his claimed beliefs with any
20 meaningful conviction. Rademacher was equivocal in nearly every description of his supposed “religious”
practices (which he labelled as “moral” beliefs). The following exchanges illustrate the point:
21  [Nguyen:] “[P]lease explain your objection(s) to the Covid-19 vaccine? [Rademacher:] It is pretty
much as he stated in his first paragraph. It is his sincerely held moral belief that his body is
22 endowed by creator with what he needs/natural processes to protect him, and it is not morally
permissible to be injected with such substances.”
23  [Nguyen:] “Are there other ways that informs decisions in your life? [Rademacher:] That is pretty
much what he bases life on, he reduces toxicity as much as possible and with as little intervention
24 from western medicine. He tries to reduce toxicity, they eat very healthy/organic.”
 “What else do your religious beliefs dictate? . . . [I]t is not morally permissible for him to inject it
25 with genetic materials. . . . They try to avoid Western medicine . . . .” Nguyen Decl. Ex.J; Ex. 512.
5
If this is a fundamental tenet of Rademacher’s religion, he practices it only sporadically. At his deposition,
26 while contemporaneously testifying that pursuant to his religious beliefs he “tr[es] to limit” ingesting
anything that is “made in [a] lab.” (Tr. 137:9-138:10, 142:20-143:7), to avoid bad breathe Rademacher was
27 ingesting breath mints containing “calcium stearate.” Tr. 222:7-23 (I “couldn’t find the organic ones and
[he] didn’t want to have bad breath for you guys”). More relevant in the context of his vaccination refusal,
28 he also admitted taking Ibuprofen for headaches. Tr. 163:16-24. And, after receiving a vasectomy,
handwrote the name of his pharmacy into a questionnaire seeking “Health History.” Tr. 374:1-24.
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 opposed to his soul), explaining that “the vaccine does have side effects and people have died from it.” Id.
2 Rademacher repeated this secular concern in his deposition. Tr. 147:6-148:12 (stating that he would “get
3 sick” or contract a disease but “can’t think of anything else”).
4 Based on the information Rademacher provided and the information he refused to provide, on
5 October 29, 2021, Nguyen made the decision to deny Rademacher’s accommodation request. Nguyen Decl.
6 ¶ 17, Ex. K. Nguyen told Rademacher via e-mail that, “[a]fter careful review, [ABC is] unable to conclude
7 that you are prevented from receiving the Covid-19 vaccine due to a sincerely-held religious belief, practice,
8 or observance.” Id.; Tr. 239:18-241:10, Ex. 514.
9 E. Rademacher’s Beliefs Are Personal Or Ideological – Not “Religious.”
10 1. Rademacher’s Beliefs Cited As The Basis For Refusing To Be Vaccinated Are
Not Religious Beliefs, But Lifestyle Choices.
11

12 Although Rademacher refused to permit any meaningful inquiry by ABC into any matters relating to

13 his asserted religious beliefs in the interactive process, he was obliged to be more forthcoming in his

14 deposition. There, Rademacher proceeded to summarize his “religious view[s]” as “taking care of these

15 physical bodies . . . is a responsibility.” Tr. 143:21-144:4. Therefore, he strives to eliminate “any things that

16 might be toxic . . . that go into [his] body.” Tr. 142:20-143:2. Even though Rademacher professes to do this

17 for “spiritual reasons,” his mindset seems to be far more the product of a secular (health) philosophy rather

18 than of a religious orientation. He testified:

19 It’s about our religious belief that we have a God given immune system. And, you know, it
doesn’t matter what vaccine it is. It’s completely irrelevant to me if the vaccine is 100
20 percent safe and 100 percent effective. It’s just not something I believe, you know, God
would want me to inject into my body when we have an immune system that was given to
21 us. And if we take care of that immune system, we have, you know, a really good chance
of surviving any disease and also getting natural immunity which is far better than any
22 vaccine.

23 Tr. 37:10-25 (emphasis added), see also 143:21-144:4.

24 Rademacher’s testimony confirms his “religion” is not comprehensive in nature, but focused instead

25 on the issue of not altering one’s/his immune system and “do[ing] the right thing” or simply being a “good

26 person.” Tr. 37:10-25, 145:12-146:4, 164:13-165:5. Nor does it contain most (if any) formal signs of

27 traditional religions. Specifically, Rademacher testified that his religion lacks: (i) important writings such as

28 creeds, tenets, precepts, parables, commandments, prayers, scriptures, etc.; (ii) gathering places such as

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 churches; (iii) keepers of knowledge such as clergy; (iv) ceremonies/rituals that are imbued with
2 transcendent significance; (v) structure or organization such as a hierarchy of leaders; and (vi) propagation of
3 beliefs (i.e., missionaries, proselytizing, etc.). Tr. 306:9-11, 306:25-307:14, 307:20-308:4, 308:19-309:4,
4 309:10-21. In fact, the only religious accoutrement that Rademacher’s contends to follow (aside from
5 possible vague references to “God”) are restrictions on the ingestion of certain “toxic” substances (but only
6 to whatever extent he sees fit, i.e., “as much as possible”). Nguyen Decl. Ex. J; Ex. 512. Rademacher
7 further testified that no one else can join his religion – which has no name – for one, simple reason:
8 “There’s no religion to join.” Tr. 306:1-5 (emphasis added).
9 Finally, Rademacher’s testimony shows that his “religion” simply encourages personal inquiry, but
10 does not actually provide answers to ultimate questions. Tr. 308:6-18 (Rademacher has no opinion on what
11 happens after death because “I’ve never died”). Indeed, Rademacher beliefs originate exclusively from
12 “something that [he] always felt in [his] heart,” which he summarized as there is going to be “Judgment
13 Day” so he has “to be a good person.” Tr. 145:12-146:4, see also 143:21-145:11, 149:19-150:6 (stating that
14 he must simply be “a good person in order to pass the test on earth”). And because Rademacher believes
15 that a personal “relationship with God is enough,” it appears that any person could subscribe to
16 Rademacher’s beliefs, regardless of whether they follow another faith, and can explore their own ultimate
17 questions and answers. Tr. 144:8-146:4, see also Tr. 152:4-13 (his “God does not demand a religion.”).
18 In his deposition, Rademacher tried to bolster the bona fide nature of his claimed religious beliefs by
19 citing to a book called the Revelations of Ramala (“Ramala”). However, Rademacher was forced to admit
20 that prior to filing his lawsuit, the last time he read this book was when he was a teenager – some 30 years
21 before he filed his religious accommodation request. Tr. 150:18-152:17. Indeed, at the time of his request,
22 he did not even possess a copy of this text; he admitted that it was a book that he purchased on Amazon only
23 weeks before his deposition, and presumably for the purpose of producing something in discovery.6 Id.
24 Importantly, even momentarily assuming Ramala somehow supports a contention that Rademacher
25 subscribes to a bona fide religion (it does not), it is undisputed that Rademacher never provided anything
26
6
27 Beyond Ramala, Rademacher has produced no evidence regarding his religious beliefs: No text, email, or
social media messages explaining that he opposed the vaccine on religious grounds, or explaining his
28 religious beliefs. Not even any text, email, or social media messages discussing or pertaining to his religious
beliefs with family members. Nothing. Marenberg Decl. ¶ 9.
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 about Ramala to ABC during the accommodation process. See Nguyen Decl. Ex. J; Ex. 512. He cannot
2 dispute ABC did not have access to this information when it considered his exemption request.
3 2. Rademacher’s Opposition To Vaccination Is Grounded In His Objections To
Vaccine Mandates.
4

5 The evidence shows the true nature of Rademacher’s objection to the Vaccine Policy. First, it is not
6 based on concerns over his privacy. Rademacher volunteered to members of the cast and crew of General
7 Hospital that he was unvaccinated. Tr. 79:6-25, 80:6-13, 81:17-22, 95:4-96:7. Rather, his objection to the
8 Vaccine Policy is based in the principle of freedom to choose, particularly when it comes to medical-related
9 matters. The sheer volume of his social media posts and video statements confirm this; in these posts, there
10 are no references at all – none – to “religion,” God, or anything spiritual. See Marenberg Decl. ¶ 9.
11 For example, on August 25, 2021, days before he became subject to the Vaccine Policy,
12 Rademacher told his social media followers, “Mandating any vaccine is wrong but especially one that
13 doesn’t help stop the spread, that’s nothing short of crazy talk. If you want to take the vaccine, take it. Just
14 know you’re doing it for yourself, not to save anyone else. You’re not a hero.” Marenberg Decl. ¶ 4, Ex. C;
15 Tr. 315:8-316:10, Ex. 520. On November 7, 2021, Rademacher promised, “I will stand with you to fight for
16 medical freedom. #medicalfreedom #nomandates.” Marenberg Decl. ¶ 5, Ex. D; Tr. 332:2-333:4, Ex. 523
17 (admitting the post is silent as to religion). On November 9, 2021, Rademacher issued warnings about
18 Covid-19 “vaccine injury,” adding “[g]etting vaccinated should be a choice” and promising to “fight for
19 medical freedom and the right to choose.” Marenberg Decl. ¶ 4, Ex. C; see also Tr. 329:14-330:10.
20 Other public statements confirm the point: In December 2021, Rademacher publicized his claims in
21 his case and an upcoming television interview on Fox News’ Tucker Carlson Today show by posting, “[t]his
22 lawsuit is not about the show. It’s about our Human rights and corporate mandates.” Marenberg Decl. ¶ 7,
23 Ex. F; Tr. 336:10-337:24, Ex. 525; see also Tr. 338:10-16, 338:21-23 (conceding no mention of religion).
24 More importantly, Rademacher says, “If people want to see the ‘real me’ then I invite you to watch the”
25 interview with Tucker. Marenberg Decl. ¶ 7, Ex. F; Tr. 341:24-342:6, Ex. 525. ABC has submitted a video
26 of the Carlson interview and its transcript. There, the “real” Rademacher fails ever to mention or refer to
27 religion. Rather, the “real” Rademacher says, “You know, the way I look at this with this COVID vaccine
28 is, you would have a rational argument if the vaccine did a good job at stopping the spread that you would

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 mandate it at work.” Marenberg Decl. ¶ 7, Ex. F. Apparently, the “real” Rademacher would not oppose
2 ABC’s Vaccine Policy if he believed the Covid-19 vaccines were effective.
3 F. Rademacher Admitted He Has No Evidence Of Political Animus Or Retaliation In The
Decision To Terminate His Employment.
4

5 Rademacher’s latest amended complaint added claims for political retaliation. But Rademacher’s
6 deposition testimony makes clear that these political claims are based on nothing more than speculation and
7 flimsy “belie[fs]” and “assum[ptions.]” Tr. 229:6-231:11. When asked, he could not identify the “specific
8 subject” of the political activity that ABC allegedly took issue with, let alone the activity itself. Id.
9 Critically, the undisputed evidence is that: (1) it was Erin Nguyen alone who made the decision to
10 deny his accommodation request (Nguyen Decl. at ¶ 2); (2) Rademacher never disclosed his political beliefs
11 to Nguyen (Tr. 231:12-17); and (3) at the time she denied Rademacher’s exemption request, Nguyen had no
12 knowledge whatsoever regarding his social media posts or political beliefs (Nguyen Decl. ¶¶ 18-21).
13 III. ARGUMENT
14 A. Rademacher’s First Cause Of Action For Invasion Of Privacy Fails.
15 Rademacher’s first claim asserts that ABC’s mandatory vaccine policy violated his right to privacy
16 under the California Constitution because it forced him to: (1) disclose his private medical information (i.e.,
17 his vaccination status); and (2) receive unwanted medical treatment (i.e., the Covid-19 vaccines). SAC
18 ¶¶ 46-56. To prevail on this claim, Rademacher must demonstrate: “(1) a legally protected privacy interest;
19 (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a
20 serious invasion of privacy.” Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 39-40 (1994). The burden
21 for ABC is as follows: “A defendant may defeat a state constitutional privacy claim either by “negating any
22 of the three elements or by showing that the invasion of privacy is justified because it substantially further
23 one or more countervailing interests.” Burcham v. City of Los Angeles, 562 F. Supp. 694, 705 (C.D. Cal.
24 2022), quoting Hill. When the asserted interests are “in safeguarding health, the challenged law is reviewed
25 under the ‘rational basis’ standard.” Id. Here, the undisputed evidence negates Rademacher’s prima facie
26 case and establishes that any invasion here is justified by ABC’s countervailing interest in protecting the
27 health and safety of its employees.
28

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 1. Rademacher Had No Legally Protected Privacy Interest Nor Any Expectation
Of Privacy That Was Impacted By The Vaccine Policy.
2

3 Rademacher’s “forced vaccination” theory fails because the Vaccine Policy does not force him to

4 consent to vaccination. Rather, the Vaccine Policy conditions Rademacher’s continued employment on

5 vaccination. He can choose not to be vaccinated, and work elsewhere. Thus, the “right” that is burdened by

6 the policy is not Rademacher’s “right to object to compulsory medical treatment” (SAC ¶ 43) but rather, his

7 “right” to employment at ABC – a private employer – which is not a legally protected privacy interest. See

8 Guilfoyle v. Beutner, 2021 WL 4594780, at *21 (C.D. Cal. Sept. 14, 2021) (doubting a serious invasion of

9 privacy caused by mandatory Covid-19 testing because students could opt to learn remotely); Burcham, 562

10 F. Supp. at 706 (“[N]o fundamental right to continued governmental employment.”).7

11 Rademacher’s “forced disclosure” theory independently fails because he cannot demonstrate a

12 reasonable expectation of privacy as to his vaccination status. Here, the uncontroverted evidence shows that

13 Rademacher voluntarily and repeatedly disclosed his vaccination status to others (and did not keep his status

14 secret) and also discussed his opposition to the vaccine on social media both prior to requesting an

15 accommodation and after his termination. Marenberg Decl. ¶¶ 4-6, Exs. C-E. Rademacher did not conduct

16 himself “in a manner consistent with” an actual expectation of privacy. See Hill, 7 Cal. 4th at 26.

17 In addition and independently, as a matter of law, Rademacher consented to the disclosure of his

18 vaccination status, and to the mandatory vaccine policy itself, through his membership in his union, SAG-

19 AFTRA. Here, it is undisputed that the Vaccine Policy was implemented by ABC after collectively

20 bargaining with Rademacher’s union, SAG-AFTRA, to secure approval to adopt the Vaccine Policy

21 applicable to actors on General Hospital, including Plaintiff. This included the right to insist on vaccination

22 as a condition to continued employment, the right to request “proof of vaccination status” and the right to

23 confirm the “name of the vaccine that [the employee] received.” Quinn Decl. ¶ 7, Ex. A. As a matter of

24
7
See also Kelley v. Johnson, 425 U.S. 238, 244-48 (1976); Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 593
25 (7th Cir. 2021) (“Indiana does not require every adult member of the public to be vaccinated. . . .
Vaccination is instead a condition of attending Indiana University. People who do not want to be vaccinated
26 may go elsewhere.”); Andre-Rodney v. Hochul, 569 F. Supp. 3d 128, 139 (N.D.N.Y. 2021) (no infringement
because mandatory vaccine policy “does not force Plaintiffs to consent to vaccination”); Norris v. Stanley,
27 567 F. Supp. 3d 818, 821 (W.D. Mich., 2021) (“The MSU vaccine policy does not force Plaintiff to forgo
her rights to privacy and bodily autonomy, but if she chooses not to be vaccinated, she does not have the
28 right to work at MSU at the same time.”); Johnson v. Brown, 567 F. Supp. 3d 1230, 1256-57 (D. Or. 2021)
(“Plaintiffs may either get the vaccine, apply for an exception, or look for employment elsewhere.”).
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 law, Rademacher, a member of SAG-AFTRA, conferred authority to SAG-AFTRA to negotiate on his
2 behalf and, as a result, Rademacher is deemed to have consented to disclosing his vaccination status to ABC,
3 and to the vaccination mandate. Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 739 (1988) (union
4 “empowered to bargain collectively . . . on behalf of all employees”)
5 2. ABC Had A Rational Basis For Adopting The Vaccine Policy; Any Possible
Privacy Intrusion Is Justified By Competing Health And Safety Interests.
6

7 In any event, Rademacher’s constitutional privacy claim fails because ABC’s Vaccine Policy is
8 justified by a competing interest – to wit, ABC’s interest in containing the spread of Covid-19 in its
9 workplace and among its employees. Hill, 7 Cal. 4th at 40. It is settled California law that when the
10 asserted interest is safeguarding health, the law or policy at issue is reviewed under the least restrictive
11 standard -- the rational basis standard. Coshow v. City of Escondido, 132 Cal. App. 4th 687, 712 (2005); see
12 also Burcham, 562 F. Supp. 3d at 705 (upholding ordinance compelling vaccination where plaintiffs were
13 “unable to show that it is not at least rationally related to the state’s interest in preventing the spread of
14 COVID,” explaining “[i]n the area of health and health care legislation, there is a presumption both of
15 constitutional validity and that no violation of privacy has occurred.”); Sheehan v. San Francisco 49ers, Ltd.,
16 45 Cal. 4th 992, 1002 (2009) (in reviewing a private party’s policy implicating privacy, “the court does not
17 decide whether every measure is necessary, merely whether the policy is reasonable”).
18 Here, ABC had a compelling interest – let alone a rational basis – in promoting the health and safety
19 of its workforce – and acted reasonably to protect it. The undisputed evidence as to the rigor of ABC’s
20 approach in adopting the Vaccine Policy and the facts and research on which its policy is premised are set
21 forth in the Hutter, Braunstein, and Richardson Declarations. An employer, like ABC, is entitled to take
22 steps to prevent its employees from getting sick or spreading disease, as employee sickness may cause
23 staffing difficulties (not to mention human suffering). See, e.g., United KP Freedom All. v. Kaiser
24 Permanente, 2021 WL 5370951, at *2 (N.D. Cal. Nov. 18, 2021); Guilfoyle, 2021 WL 4594780, at *14
25 (there is a “legitimate and compelling interest in abating the COVID-19 pandemic.”).
26 B. Rademacher’s Second Cause Of Action For Religious Discrimination Fails.
27 Establishing a prima facie case of religious discrimination requires proof of three elements: (1) the
28 employee sincerely held a “bona fide religious belief;” (2) “the employer was aware of that belief;” and

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 (3) “the belief conflicted with an employment requirement.” Friedman v. Southern Cal. Permanente Med.
2 Grp., 102 Cal. App. 4th 39, 45 (2002). Once the employee establishes a prima facie case, the burden shifts
3 to the employer to establish that “it initiated good faith efforts to accommodate or no accommodation was
4 possible without producing undue hardship.” Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345,
5 370 (1996) (emphasis added). Here, Rademacher’s claims easily fail for multiple reasons.
6 1. Even Assuming Arguendo That Rademacher’s Beliefs Are Covered By The
FEHA, His Refusal To Permit Inquiry Into Them Defeats His Claim.
7

8 ABC requires anyone asking for a religious accommodation to provide it with basic information
9 about his or her religious belief or practice. As a threshold matter, because there is no factual dispute that
10 Rademacher participated in the interactive process by asserting that ABC had no right to inquire into his
11 religious beliefs and thereupon stonewalled ABC’s attempts to determine whether his beliefs were both
12 “religious” and “sincerely held,” his religious discrimination claim fails as a matter of law. There is not a
13 single case that holds that an employer cannot properly inquire into the sincerity or religious nature of an
14 employee’s beliefs. To the contrary, law recognizes an employer’s ability to so inquire. See, e.g., EEOC v.
15 Papin Enters., Inc., 2009 WL 2256023, at *4 n.11 (M.D. Fla. July 28, 2009) (“[A]s a matter of common
16 sense an employer must be permitted some inquiry into the purported beliefs of an employee before the duty
17 to accommodate arises.”); Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 451 (7th Cir. 2013) (“If the
18 managers who considered the request had questions about whether the request was religious, nothing would
19 have prevented them from asking [the employee about] . . . the nature of his request[.]”).
20 2. Rademacher Does Not Have A Bona Fide Religious Belief.
21 At best, the evidence shows that Rademacher may have sincerely held beliefs in living a healthy and
22 non-toxic lifestyle. But this is insufficient to establish his claim for religious discrimination. The FEHA
23 does not shelter strongly held ideologies of a non-religious nature, any more than it does passing
24 philosophical fancies. See Friedman, 102 Cal. App. 4th at 70 (holding “religious belief is other than ‘a
25 philosophy or way of life’”). And, even if Rademacher’s beliefs could somehow be characterized as
26 “ultimate” in nature, the beliefs still concern exclusively secular matters. Rademacher’s “tenets” – avoiding
27 toxicity, taking care of his physical body, and being a “good person” – simply lack a metaphysical element.8
28
8
In his written request, Rademacher stated that he opposed vaccination because of his “moral beliefs” that
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 Rademacher’s beliefs are not “religious” in nature. California law is clear: something more than a
2 “strongly held view of right and wrong” is necessary for the law to recognize beliefs as a “religion.”
3 Friedman, 102 Cal. App. 4th at 68. “First, a religion addresses fundamental and ultimate questions having to
4 do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief
5 system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of
6 certain formal and external signs.” Friedman, 102 Cal. App. 4th at 69 (internal quotation marks omitted).
7 Not surprisingly, the cases rejecting similar (often broader, more comprehensive) beliefs regarding
8 vaccination as religious are legion. See Geerlings v. Tredyffrin/Easttown Sch. Dist., 2021 WL 4399672, at
9 *7 (E.D. Pa. Sept. 27, 2021) (concern that a treatment may do more harm than good is a medical belief, not a
10 religious one; “it would be a step too far to count everything [a plaintiff] believes about heathy living as a
11 religious practice.”); see also Fallon v. Mercy Cath. Med. Ctr. of Se. Pa., 877 F.3d 487, 492 (3d Cir. 2017)
12 (strong opposition to vaccination is not a religious belief); Hanzel v. Arter, 625 F. Supp. 1259, 1260-61,
13 1265 (S.D. Ohio 1985) (professed belief in “chiropractic ethics” – “a body of thought which teaches that
14 injection of foreign substances into the body is of no benefit and can only be harmful” – as philosophical, not
15 religious); McCartney v. Austin, 298 N.Y.S.2d 26, 27 (1969) (opposition to vaccination, “whether or not
16 predicated upon [] personal moral scruples or upon medical concern—is not upon religious grounds”).
17 In Friedman, the California Court of Appeal held that the plaintiff’s sincere and deeply held beliefs
18 that it is “immoral and unethical for humans to kill and exploit animals even for food, clothing and the
19 testing of product safety for humans” did not qualify as a religion under the FEHA. Friedman, 102 Cal.
20 App. 4th at 70. Like Rademacher does here, the plaintiff in Friedman alleged that he held these beliefs with
21 the “strength of traditional religious views” and lived his entire life according to this belief system. Id. at 44.
22 Despite this, the court held that the plaintiff’s veganism was more of a personal philosophy, a moral and
23 ethical creed, or in other words, “a way of life.” Id. at 70; see also Jacques v. Hilton, 569 F. Supp. 730, 731-
24 34 (D. N.J. 1983) (United Church of Saint Dennis, was not religion; although Church recognized supreme
25 being, the way of life advocated by Church “did not center on the worship of a divine being,” but instead on
26

27 the vaccines contain “artificially created copies of genetic material, foreign to nature and experimental.”
Nguyen Decl. ¶ 15, Ex. J. Nowhere does he identify the religion that he supposedly follows. Nowhere does
28 he explain how his beliefs are comprehensive in nature. Nowhere does he explain how his opposition is part
of a larger belief system. Id. (explaining his objection is “pretty much as he stated in” his written request).
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 living one’s own life according to his or her conscience); Alvarado v. City of San Jose, 94 F.3d 1223, at
2 1229-30 (1996) (“New Age Movement” based on self and spiritual development not religion); Fallon, 877
3 F.3d at 492 (finding belief not religious because plaintiff applied “one general moral commandment (which
4 might be paraphrased as, ‘Do not harm your own body’) to come to the conclusion that the flu vaccine is
5 morally wrong”).
6 Rademacher’s religious claim fails for the same reason as in Friedman. First, that Rademacher
7 couples his lifestyle philosophy with reference to his “creator,” or otherwise uses language normally
8 associated with spirituality, or religion, is not dispositive. See Jacques, 569 F. Supp. at 732-34. The test of a
9 religious belief is not whether it can be uttered “w/15” of “creator or “God.”
10 Rademacher’s beliefs cannot be described as comprehensive in nature, as the cases require. Rather,
11 Rademacher is concerned only with human interaction (being a good person) and what he should put into his
12 body. Rademacher has no beliefs or practices based on an authoritative revelation of truth or teachings from
13 any source outside of humanity. Tr. 143:21-145:11 (Rademacher’s beliefs originate from something he had
14 “in [his] heart and [] soul”). Nor does Rademacher follow an overarching system of beliefs that include
15 many pervasive principles. Rademacher, therefore, lacks a comprehensive multi-faceted theology. In this
16 respect, Rademacher’s beliefs are more akin to moral teachings of the “New Age Movement,” “veganism,”
17 and quasi-Buddhism addressed above, and is not a religion for purposes of the FEHA.
18 Likewise, Rademacher’s belief system is not manifested in formal and external signs, as the cases
19 require. He is not affiliated with any church or organized religion. There are no “formal services,
20 ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation
21 of holidays and other similar manifestations associated with the traditional religions.” Friedman, 102 Cal.
22 App. 4th at 70. In sum, while Rademacher may claim to sincerely hold his beliefs, they are not “religious”
23 or entitled to protection under the FEHA.
24 3. Nonetheless, As An Actor Working Closely With Others, ABC Could Not
Accommodate Rademacher’s Exemption Request.
25

26 If Rademacher is able to establish a prima facie case, which he cannot, the burden shifts to ABC to
27 show either that it engaged in a good faith effort to accommodate or that it could not provide an
28 accommodation without undue hardship. Cal. Fair Emp. & Hous. Comm’n v. Gemini Aluminum Corp., 122

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 Cal. App. 4th 1004, 1011 (2004) (“Once the employee establishes a prima facie case with sufficient evidence
2 of the three elements, the burden shifts to the employer to establish that ‘it initiated good faith efforts to
3 accommodate or no accommodation was possible without producing undue hardship’”) (emphasis added);
4 see also EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614-15 (9th Cir. 1988) (“If an employer can
5 show that no accommodation was possible …, it makes no sense to require that he engage in a futile act.”).9
6 ABC considered and relied on significant evidence in enacting the Vaccine Policy, including
7 evidence that unvaccinated employees were much more likely to transmit Covid-19 infections compared to
8 vaccinated individuals, therefore posing a health and safety threat to all employees, visitors, and
9 communities. Numerous courts have therefore reached the common-sense result that permitting
10 unvaccinated employees to work in people-facing roles is an undue burden, even if mitigation measures
11 such as masking are possible. See Together Emps. v. Mass General Brigham Inc., 573 F. Supp. 3d 412,
12 441 (D. Mass. 2021) (1st Cir. 2022) (permitting unvaccinated plaintiffs to continue working at Defendant
13 hospital would “materially increase the risk of spreading the disease and undermine public trust and
14 confidence in the safety of its facilities,” which would result in an undue burden under both the ADA and
15 Title VII); Brox v. Hole, 590 F. Supp. 3d 359, 367 (D. Mass. 2022) (permitting unvaccinated employees to
16 work on public ferry would “compromise the health, safety and well-being of other employees, customers
17 and vendors, and undermine trust and confidence in the safety of its facilities and vessels, . . . [and] risk []
18 public health and safety[.]”). Here, however, Rademacher concedes that he cannot perform his acting job
19 while social distancing or using PPE. And surveillance testing – the only other potential mitigation measure
20 – has proven insufficient to prevent outbreaks. Hutter Decl. ¶ 14; Braunstein ¶¶ 15-16; Reingold Decl. ¶ 14.
21 In sum, ABC is legally obligated to provide a safe work environment for its employees. Hutter
22 Decl. ¶¶ 11-12. Unvaccinated individuals in high-contact roles – like Rademacher’s – do not work alone,
23 and they pose a higher risk of contracting and therefore spreading Covid-19 than vaccinated employees.
24 Unvaccinated individuals who become infected with COVID-19 are also more likely to be symptomatic than
25
9
In connection with the pandemic, the EEOC advised, “[c]osts to be considered include not only direct
26 monetary costs but also the burden on the conduct of the employer’s business—including, in this instance,
the risk of the spread of COVID-to other employees or to the public.” See https://www.eeoc.gov/wysk/what-
27 you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#L. The FEHA provides a
non-exhaustive list of possible workplace accommodations. Cal. Gov’t Code § 12926(p). Courts, however,
28 also turn to the federal regulations and guidance in assessing what is a reasonable accommodation. See
Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 948 (1997).
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 vaccinated individuals are, and therefore much more likely to transmit the virus to others. Rademacher’s
2 requested accommodation to remain unvaccinated (as an unmasked and non-distancing actor) would require
3 ABC to operate against the great weight and wisdom of public health authorities and to subject its employees
4 to increased health risk, which is per se unreasonable.
5 C. Rademacher’s Third Cause Of Action For Disability Discrimination Fails.
6 Rademacher seeks to repackage his religious discrimination claim as one for disability
7 discrimination. There is nothing to this and summary disposition is proper for many reasons.
8 1. Rademacher Admits He Is Not Disabled.
9 First, Rademacher admitted that he is not disabled both to the EEOC and in his deposition: “Q.
10 And when you were trying to be truthful and accurate to the EEOC, you wrote down I do not have a
11 disability; is that correct? A. Yes. I do not have a disability . . . .” Tr. 48:21-49:2. Moreover,
12 Rademacher’s SAC asserts a claim for “Medical Condition Discrimination.” Under the FEHA, “medical
13 condition” has a narrow definition to mean only cancer (diagnosis of cancer or history of cancer) or a genetic
14 condition. Cal. Gov’t Code §§ 12920, 12926(i). Rademacher does not have a “medical condition” as
15 defined by the FEHA in that he did not have cancer or a genetic condition. Id.
16 2. Rademacher Did Not Timely Exhaust His Administrative Remedies.
17 Rademacher could not have properly pleaded a disability discrimination claim, anyway, because he
18 failed to raise this issue before the DFEH. Before bringing claims under the FEHA, a plaintiff is required to
19 exhaust administrative remedies by filing a DFEH complaint. Cal. Gov’t Code § 12965; see also Abelleira
20 v. District Court of Appeal, 17 Cal. 2d 280, 293 (1941) (exhausting administrative remedies is “a
21 jurisdictional prerequisite to resort to the courts”). In the only administration complaint obtained prior to
22 bringing his disability claims, Rademacher failed to list disability as a basis for the alleged misconduct.
23 Accordingly, Rademacher is barred from pursuing such a claim.
24 3. The Vaccine Policy Cannot Transform Rademacher’s Unvaccinated Status
Into A Disability.
25

26 Finally, Rademacher argues that ABC’s Vaccine Policy prevented him from working, therefore
27 transforming his unvaccinated status into a disability. This is sophistry; such a circular theory would turn the
28 FEHA on its head and make it impossible for employers to implement any policies to prevent the spread of

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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 Covid-19 in the workplace. Moreover, Rademacher’s argument is easily rejected by the statutory language
2 of the FEHA. See Roman v. Hertz Loc. Edition Corp., 2022 WL 1541865, at * 8 (S.D. Cal. May 16, 2022)
3 (analyzing the statutory language of the FEHA in detail and rejecting the argument that employer’s
4 “COVID-19 policy prevented [plaintiff] from working and therefore transformed her COVID-19 infection
5 into a disability,” because “an employer’s legal treatment of an individual cannot form the basis of [a]
6 finding [of] a disability.”).10 Indeed, Rademacher’s “physical/medical condition” cannot qualify as a
7 disability unless the condition itself (not ABC’s policy) reduces the body’s capacity to perform activities.
8 Furthermore, the code’s ensuing description of “limits a major life activity” further confirms the
9 direct, active impairment of the bodily condition that qualifies as a “disability” under the FEHA. “Limits
10 shall be determined without regard to mitigating measures such as medications, assistive devices,
11 prosthetics, or reasonable accommodations . . . .” Cal. Gov’t Code § 12926(m)(1)(B)(i). None of the
12 “mitigating measures” reference a third party’s treatment of the person’s condition. Here, Rademacher’s
13 unvaccinated status does not qualify as a disability under the FEHA because it did not make it physically
14 difficult for his body to perform the functions needed for him to work.
15 D. Rademacher’s Fifth Claim For Wrongful Termination And Political Retaliation Fails.
16 In the SAC, Rademacher pivoted to an alternative challenge to his termination that is wholly at odds
17 with the religious discrimination claims. Now, Rademacher belatedly alleges he was wrongfully terminated
18 for expressing “political and social views” in violation of the public policy set forth in Labor Code sections
19 1101 and 1102 “which prohibit … interfering with ‘the fundamental right of employees in general to engage
20
10
21 The FEHA defines the term “disability” as any “physiological disease, disorder, condition, cosmetic
disfigurement or anatomical loss that does both of the following: (A) Affects one or more of the following
22 body systems . . . [and] (B) limits a major life activity.” Cal. Gov’t Code § 12926(m)(1)(A-B). Because the
array of bodily conditions is listed immediately before the active verb “does,” the statute requires that the
23
bodily condition itself (as opposed to ABC’s “Covid-19 vaccine mandate,” (SAC ¶ 64)) impact an
24 individual’s bodily systems to the extent that it limits activity. See Klein v. United States of America, 50 Cal.
4th 68, 77 (2010) (California courts “look first to the words of the statute, ‘because the statutory language is
25 generally the most reliable indicator of legislative intent’”). Additionally, an interpretation of the statute that
would enable a condition to be disabling merely because of an employer’s limitation on the person as a result
26 of its treatment would render clause (A) of the statute superfluous. See id. at 80 (noting that “courts must
27 strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or
clauses superfluous”). Here, the statute specifically states, “[a] physiological disease, disorder, condition,
28 cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the
major life activity difficult.” Cal. Gov’t Code § 12926(m)(1)(B)(ii) (emphasis added).
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 in political activity.’” SAC ¶¶ 74, 75. There are many grounds for summary judgment for ABC, including
2 that the claims misconstrue the law and suffer from a complete absence of evidentiary support.
3 1. No Rule, Regulation, Or Policy Of ABC Prohibits Political Participation.
4 To prevail under Section 1101, a plaintiff must show that the employer had a rule, regulation, or
5 policy “[f]orbidding or preventing employees from engaging or participating in politics or from becoming
6 candidates for public office” or “[c]ontrolling or directing . . . the political activities or affiliations of
7 employees.” Cal. Lab. Code § 1101(a)-(b). No rule, regulation, or policy forbids or prevents ABC
8 employees from engaging in political activities. Indeed, Rademacher does not allege that ABC had such a
9 rule. Nor can he. No rule exists. Richardson Decl. ¶ 16.
10 2. Rademacher’s Political Retaliation Theory Likewise Fails Because There Is No
Evidence That ABC’s Decision Regarding His Final Cycle Was Pretextual.
11

12 Rademacher alleges that he was retaliated against for his political beliefs in violation of Labor Code
13 section 1102 because ABC’s denial of his religious accommodation was somehow pretextual in light of its
14 desire to get rid of him for expressing unpopular political beliefs. SAC ¶¶ 74-75. The undisputed facts show
15 that Rademacher cannot demonstrate that the termination of his employment was based on political
16 retaliation or discrimination. Rademacher does not contend, nor could he, that the adoption of the Vaccine
17 Policy was in any way related to his individual political beliefs. And, the uncontradicted evidence shows:
18 (1) that the decision to deny him an exemption from the Vaccine Policy was made by Erin Nguyen alone, (2)
19 with whom Rademacher and never discussed nor disclosed his political beliefs, and (3) who was unaware of
20 Rademacher’s political beliefs and did not consider them in any respect in arriving at her decision.11
21

22 11
Rademacher could not even identify the “specific subject” of the post that he believes ABC took offense
to. Tr. 230:9-11. Indeed, when asked to describe the basis for his claim, Rademacher could only offer the
23
following guesswork: “[W]hen I voiced my political views in -- sometime in 2020, I’m assuming it wasn’t
24 very favorable and that they fired me because they didn’t like what I was saying.” Tr. 230:12-20 (emphasis
added). But, Rademacher conceded he has no idea who “they” are, or even when “they” made this decision.
25 Tr. 223-225:13. This testimony is precisely the sort of rank speculation that courts have consistently rejected
as insufficient to sustain a case beyond summary judgment. And, it is well established that temporal
26 proximity alone is insufficient to establish pretext. See Loggins v. Kaiser Permanente Int’l, 151 Cal. App.
27 4th 1102, 1112-13 (2007) (“temporal proximity . . . does not, . . . show a triable issue of fact”). Moreover,
despite allegedly voicing his (nonspecific) views “sometime in 2020,” (i) ABC picked up Rademacher’s
28 cycles in December 2020 and June 2021, and he rejected as “completely untrue” notion that he was unhappy
with Jax’s storylines during his last two years. Tr. 361:19-362:19; Gagliardi Decl. ¶¶ 4, 6.
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
 1 1. The Alleged Wrongful Acts Are Protected By The First Amendment.
2 Rademacher’s claim that ABC “decided to terminate Ingo’s deal because his political/social views

3 did not align with the views being promoted by ABC/Disney,” SAC ¶ 39, fails for the additional reason that

4 ABC’s alleged wrongful acts are protected by the First Amendment. Tamkin v. CBS Broad., Inc., 193 Cal.

5 App. 4th 133, 143 (2011) (television production constitutionally protected; “The creation of a television

6 show is an exercise of free speech.”). Even assuming his allegations had any factual support and were true,

7 the alleged decision to terminate Rademacher from General Hospital for his political beliefs is a protected,

8 casting decision under the First Amendment. “Just as the State is not free to ‘tell a newspaper in advance

9 what it can print and what it cannot,’” Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1, 11

10 (1986), the government cannot tell an employer who it must hire or retain if that action is “bound to affect”

11 the “expressive content” of the employer’s works. McDermott v. Ampersand Publ’g, LLC, 593 F. 3d 950,

12 962 (9th Cir. 2010). Accordingly, casting-type decisions are protected by the First Amendment. Hunter v.

13 CBS Broad. Inc., 221 Cal. App. 4th 1510, 1520 (2013) (television producers’ decisions about who to cast in

14 their programs constitute acts in furtherance of free speech for anti-SLAPP purposes, even where plaintiff

15 alleged that producers made casting decisions on unlawful, discriminatory bases); Claybrooks v. ABC, Inc.,

16 898 F. Supp. 2d 986, 993, 996 (M.D. Tenn. 2012) (dismissing race discrimination class action challenging

17 the television casting decisions based on the First Amendment, and ruling that “under appropriate

18 circumstances, anti-discrimination statutes of general applicability must yield to the First Amendment”).

19 E. Rademacher’s Derivative Claims Fail.

20 Rademacher’s remaining claims for wrongful termination, breach of contract, and FEHA retaliation

21 are derivative of, or based on the same alleged acts as, the remainder of his claims. Because summary

22 judgment is appropriate as to the claims above, the same holds true for these claims. SAC ¶¶ 67-83.

23 IV. CONCLUSION
24 For all the foregoing reasons, the Court should grant ABC’s motion for summary judgment.

25 DATED: December 28, 2022 PAUL HASTINGS LLP

26
By:
27 STEVEN A. MARENBERG
Attorneys for Defendant
28 AMERICAN BROADCASTING COMPANIES, INC.
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DEFENDANT ABC’S MEMORANDUM OF POINTS & AUTHORITIES ISO MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION