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IN THE

SUPREME COURT OF CALIFORNIA

JEROLD DANIEL FRIEDMAN,
also known as JERRY FRIEDMAN,

Plaintiff-Appellant-Petitioner,

vs.

SOUTHERN CALIFORNIA PERMANENTE
MEDICAL GROUP, a California partnership;
KAISER FOUNDATION HOSPITALS, a
California corporation; KAISER FOUNDATION
HEALTH PLAN, INC., a California corporation,

Defendants-Respondents.

After a Decision By the Court of Appeal,
Second Appellate District, Division Five
Case No. B150017

PETITION FOR REVIEW

MYER LAW FIRM
SCOTT D. MYER, ESQ. (State Bar No.126048)
11040 Santa Monica Boulevard, Suite 320
Los Angeles, CA 90025-7515
Phone 310.277.3000
Fax 310.444.3214
Email sdm@myerlaw.com
Web bestlawyer.com^®
Attorney for Plaintiff-Appellant-Petitioner,
JEROLD DANIEL FRIEDMAN,
also known as JERRY FRIEDMAN

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Miscellaneous		Page No.
	Vegan Handbook,             Debra Wasserman & Reed Mangels,             Vegetarian Resource Group, ISBN 0931411173             (September 1996)	16

[2^nd District No. B150017]

IN THE

SUPREME COURT OF CALIFORNIA

JEROLD DANIEL FRIEDMAN,
also known as JERRY FRIEDMAN,

Plaintiff-Appellant-Petitioner,

vs.

SOUTHERN CALIFORNIA PERMANENTE
MEDICAL GROUP, a California partnership;
KAISER FOUNDATION HOSPITALS, a
California corporation; KAISER FOUNDATION
HEALTH PLAN, INC., a California corporation,

Defendants-Respondents.

PETITION FOR REVIEW

ISSUES PRESENTED

1. What is the legal standard or definition of a religious belief or creed under the California Fair Employment and Housing Act ("FEHA"), [Government Code §12900, et seq.]? Does a vegan or an Ethical Vegan belief system qualify as a religious belief or creed, or the legal equivalent thereof, under the FEHA, for the purposes of employment law protections in California?

2. When a court sets a new legal standard or definition, as the Court of Appeal admittedly did in this case, defining "religious creed" under the FEHA, should leave to amend be provided to the Plaintiff, especially when the Plaintiff requested such leave in the trial court and the trial court refused to provide such leave to amend?

WHY REVIEW SHOULD BE GRANTED

Historically, there has always been much confusion regarding what is and what is not a religion under the law, both State and Federal. Further, the Court of Appeal here was the first court to set forth a definition in California for a religion under the FEHA.

Although, the United States Equal Employment Opportunity Commission ("EEOC") issued a Determination in a case that essentially said that Veganism is the equivalent of a religious belief under Title VII of the Civil Rights Act of 1964, as amended, prior to this case herein, [See Determination at AA p. 000313-000314], there is no known case dealing directly with Veganism or Ethical Veganism as a religious belief or creed. However, there is a Canadian case that held that a prisoner who held a belief that "consumption of animal products is morally wrong" can be protected under a "freedom of conscience," equivalent to a freedom of religion. That case stated that "Motivation for practi[c]ing vegetarianism may vary, but, in my opinion, its underlying belief system may fall under an expression of 'conscience.'" [Jack Maurice v. Attorney General of Canada, 2002 FCT 69 (Docket T-1487-99) (Decided January 21, 2002), <http://decisions.fct-cf.gc.ca/fct/2002/2002fct69.html>].

The Court of Appeal's new definition of "religious creed" under the FEHA has several problems, including that it tests the reasonableness of the adherent's beliefs, which runs against the United States and California Constitutions' Establishment and Equal Protection Clauses. A more appropriate test or standard can be derived from the conscientious objector cases, such as United States v. Seeger (1965) 380 U.S. 163, 13 L.Ed.2d 733, 85 S.Ct. 850.

Even if the Plaintiff did not satisfy the Court of Appeals new definition of religion or religious creed, a definition that the Plaintiff could only speculate or guess as to at the time he plead his case, equity and fairness dictate that the Plaintiff be allowed the opportunity to plead his case under the newly stated definition of "religious creed." At no time did the Plaintiff have the benefit of this definition when pleading his case. It is important policy of this State that cases be tried on their merits. There should be a uniform statewide standard that when an area of the law is unclear, as it is or was in this case with regard to the definition of religion or religious creed under the FEHA, at the time that a Plaintiff pleads his or her case initially, that said Plaintiff should be provided at least one opportunity to amend his or her complaint. In this case, the Plaintiff was never allowed an opportunity to amend his complaint as to the religious discrimination causes of action at issue. At a minimum, this case should be remanded to the Superior Court to allow the Plaintiff to plead his religious discrimination FEHA claim under this new definition of "religious creed."

Therefore, this Court should grant hearing in this matter because such review is "necessary to secure uniformity of decision or the settlement of important questions of law." [See California Rules of Court 29(a)(1), emphasis added]. In this regard, the settlement of the definitions of "religion" and "religious beliefs" and "religious creed" under the FEHA are important questions of law.

BACKGROUND

This appeal arose from a Judgment [See Appellant's Appendix in Lieu of Clerk's Transcript (hereinafter, referred to as "AA"), p. 000557, et seq.], incorporating the sustaining of two Demurrers [See AA p. 000163, et seq., and AA p. 000342, et seq.], and the denials of a Motion and Requests for Leave to Amend [See AA p. 000556, as well as AA p. 000163, et seq., and AA p. 000342, et seq.].

This case is primarily about allegations regarding Kaiser's⁽¹⁾ failure to accommodate Friedman's religious ethical belief of not harming animals that is Friedman's ethical and moral equivalent of his religion. Friedman alleged that he is an Ethical Vegan and was a Computer Technician working in a non-public, non-health care facility, warehouse for Kaiser in Downey, as a contract worker, having absolutely no contact with patients. Friedman alleges that his actual employment was with MacTemps⁽²⁾, which entity contracted out his services to Kaiser, and after working for nearly one-year for Kaiser as a contract worker through MacTemps, Kaiser liked Friedman's work so well that Kaiser offered Friedman an in-house position doing the same work, at the same location, continuing to also have absolutely no contact with patients. However, it is alleged that Kaiser required Friedman to undergo a health/vaccination screening. [See Complaint is at AA, p. 000001, et seq.]

1. Herein "Kaiser" refers to the group of Defendant/Respondents sued herein as SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a California partnership, KAISER FOUNDATION HOSPITALS, a California corporation, and KAISER FOUNDATION HEALTH PLAN, INC., a California corporation.

2. Herein "MacTemps" refers to the group of Defendants sued as MACTEMPS, an unknown business entity, AQUENT, an unknown business entity, doing business as MACTEMPS, and LASER DESIGNS, Corporation Which Will Do Business in California as MACTEMPS. MacTemps, however, was dismissed after a settlement with them, and is not a part of this appeal. See AA p. 000369.

Friedman alleges that when he, a contract worker at Kaiser in April of 1998 refused - for moral, ethical and religious reasons - to take a mumps vaccination that included material from chicken embryos, his employment contract/work offer with Kaiser was canceled and a full-time work offer was rescinded and he was removed from Kaiser under his contract.

Friedman alleges that the reason that Friedman refused the test because it is grown in chicken embryos, violating his Ethical Vegan beliefs, which prohibit the eating, wearing or using of any animal products. According to the Friedman's Ethical Vegan belief system, egg-laying hens suffer greatly in chicken factory farms, and the use of unborn chickens to culture the mumps vaccine causes further unnecessary deaths of chickens.

Friedman alleged that at the time of his filing his Complaint, that for the prior nine years, Friedman had been a strict Ethical Vegan, meaning that he believes that all living beings must be valued equally and that it is immoral and unethical for humans to kill and exploit animals, even for food, clothing and the testing of product safety for humans. Among the consequences of this belief are that Friedman cannot eat any animal based substances, such as meat, milk products, eggs, honey, or any other food which contains ingredients derived from or tested on animals, that Friedman cannot use products which have been tested for human safety on animals or which derive any of their ingredients from animals such as cleaners, soap or toothpaste. Friedman asserts these views as spiritual in nature, that he holds them with the strength of traditional religious views, that Friedman's views are so strong that he has even been arrested for civil disobedience actions at animal rights demonstrations, that these beliefs occupy a position in the Friedman's life parallel to that filled by God in traditionally religious individuals adhering to the Jewish, Christian or Muslim Faiths. [See the Complaint herein, AA p. 000001, et seq., and in particular, See AA p. 000002, and confirmed by the court in its order, at AA p. 000163, and AA pp. 000164-000165].

When on March 26, 1998, Kaiser informed Friedman that Kaiser required that Friedman undergo an immunization for mumps, Friedman checked with the Centers for Disease Control and Prevention, and learned that the mumps vaccine is grown in chicken embryos, and according to Friedman, being inoculated with the mumps vaccine therefore was in violation of his Ethical Vegan beliefs. Friedman advised Kaiser that he was however, willing to comply with the spirit of the immunization requirement by some means other than subjecting himself to inoculation with the vaccine for mumps, including being checked periodically for mumps symptoms, following any other regimen not involving the suffering or death of an animal, and even agreeing to work off-site. Friedman's direct supervisor at Kaiser was willing to accommodate Friedman, however, the upper management/human resources department was not, and on or about April 10, 1998, Friedman was told that was his last day, and termination of his employment agreement. [See the Complaint herein, AA p. 000001, et seq., and confirmed by the court in its order, at AA p. 000163, and AA pp. 000165-000166]. In doing so, Kaiser failed to attempt to reasonably accommodate Friedman's Ethical Vegan beliefs when he refused the mumps vaccination.

Friedman filed his Complaint on February 3, 2000. [AA p. 000001, et seq.]. The Complaint alleged eleven (11) causes of action, including the first three (3) for employment discrimination, the first cause of action for employment discrimination against both the Kaiser and MacTemps based on religion under California Government Code §12940, the second cause of action for failure to maintain a work environment free from discrimination under California Government Code §12940(i) against both the Kaiser and MacTemps Defendants, and the third cause of action for retaliation against the Kaiser Defendants only based on the allegation that the Kaiser Defendants' conduct was retaliatory under Government Code §12940(f). The Kaiser Defendants filed their original Demurrer to the Complaint on March 24, 2000. [AA p. 000026, et seq.; See also their Memorandum of Points and Authorities, at AA p. 000032, et seq., and their Motion to Strike, at AA p. 000043, et seq.] In addition to Friedman filing an opposition to this Demurrer, an organization known as "In Defense of Animals" attempted to file an Amicus Curiae Brief on April 14, 2000, in support of Friedman's position. [See AA p. 000072, et seq.]. However, the Court denied the application to file the Amicus brief. [See the Minute Order reflecting same, at AA p. 000114, et seq.]. Friedman expects not only that this Amicus Curiae to submit a letter in support of review, but also additionally expects that one or more traditionally recognized, e.g., Christian and theistic, religious organizations will be filing such letters in support of granting review in this matter. This shows the importance of this matter, and that review should be granted.

At the hearing of the original demurrer, on July 7, 2000, the Court took the matter under submission, and thereafter, sustained all of the demurrers to the FEHA religious discrimination causes of action, i.e., causes of action one, two and three, without leave to amend. The remainder of the demurrers, i.e., the non-religious discrimination causes of action, were sustained with leave to amend. Causes of action ten and eleven were not a part of the demurrers that date. A copy of he Minute Order regarding this demurrer and motion to strike is included as AA p. 000161, et seq. Also, the Order Sustaining the Demurrer is included as AA p. 000163, et seq. The Court sets forth the issue herein at AA p. 000164, et seq. Essentially, the Demurrer to the first three causes of action was sustained because the Court believed that Veganism cannot be a religion or the equivalent of a religion under the FEHA statute, and refused the Plaintiff requested leave to amend on these causes of action related to religious discrimination and/or retaliation.

Friedman amended his complaint and filed a First Amended Complaint, on July 17, 2000. [AA p. 000001, et seq.] However, the portion of the Complaint dealing with employment discrimination against Kaiser was not allowed to be replead against Kaiser based upon the prior Order denying leave to amend. Therefore, and for that reason alone, the amended complaint was not plead against Kaiser for religious discrimination in the amended complaint. [See AA p. 000172, et seq.]

Kaiser set a new demurrer to the first amended complaint, which Friedman opposed. [See AA p. 000200, et seq., and AA p. 000207, et seq.] On August 16, 2000, the Court sustained all of the demurrers, with the exception of the tenth cause of action for breach of the implied covenant of good faith, which remained active. [See Minute Order, AA p. 000342] Kaiser filed their answer to the remaining tenth cause of action for breach of implied contract in the first amended complaint, on August 25, 2000. [AA p. 000351, et seq.]

On September 5, 2000, the Plaintiff filed a Petition for Writ of Mandate and/or Prohibition or Other Appropriate Relief and Request for Stay of Action Pending Determination of Writ, with the Court of Appeals. On or about September 13, 2000, the Court of Appeals summarily denied the Petition for Writ, presumably because Friedman had the right to file an appeal upon a Judgment being entered at the conclusion of this case, which he then did. [See Court of Appeals, Second Appellate District, Division Five, Docket No. B143989].

After initially proceeding on the remaining Tenth Cause of Action as to Kaiser, the Friedman voluntarily dismissed the remaining Tenth Cause of Action, with the express reservation that the remaining causes of action would be appealed. [AA p. 000372].

After learning of the trial court's recusal of itself in this matter, Friedman filed a Motion to Amend Complaint, etc., which was filed March 8, 2001, which was denied. [AA p. 000399; See also Minute Order, AA p. 000556]. The Court did enter Judgment in favor of Kaiser on May 29, 2001. [AA p. 000556, and see Judgment at AA p. 000557]. On May 7, 2001, the Friedman filed a Notice of Appeal from the Judgment in favor of Kaiser. [See AA p. 000557, et seq., for Judgment and see AA p. 000564, et seq., for Notice of Appeal]. During the appeal Animal Legal Defense Fund attempted to file an Amicus Curiae Brief, but the Court of Appeals denied the request.

On September 13, 2002, the Court of Appeals filed a decision on this case affirming the lower court decision and setting forth a new rule of law with regard to the definition of "religious creed" under the FEHA. The Court of Appeals published the portion of the decision setting forth the new rule of law defining "religious creed" under the FEHA. A copy of the Opinion (hereinafter referred to as "Opn.") is attached hereto as Exhibit "A." Further a copy of an Order Modifying Opinion [No Change in Judgment] was filed September 24, 2002, is attached hereto as Exhibit "B."

Friedman filed a Petition for Rehearing, but the Petition was denied on October 7, 2002.

LEGAL DISCUSSION

1. Introduction.

This Court should grant hearing in this matter because such review is "necessary to secure uniformity of decision or the settlement of important questions of law." [See California Rules of Court 29(a)(1), emphasis added]. In this regard, the settlement of the definitions of "religion" and "religious beliefs" and "religious creed" under the FEHA are important questions of law. Historically, there has always been much confusion regarding what is and what is not a religion under the law, both State and Federal. Further, the Court of Appeal here was the first court to forth a definition in California for a religion under the California Fair Employment and Housing Act ("FEHA"), i.e., Government Code §12900, et seq.

Apparently, while no case before had determined whether veganism or Ethical Veganism to be the equivalent of a religion, the EEOC has actually held and made a determination in another case that they considered it to be the equivalent of a religion. [See AA p. 000313-000314]. In the Determination in Anderson v. Orange County Transit Authority, Charge No. 345960598, a copy of which is included at AA pp. 000313-000314, the EEOC determined that Anderson, was a "strict vegetarian due to moral and ethical beliefs as to what is right and wrong, and that he sincerely holds these beliefs with the strength of traditional religious views," was protected by the anti-religious discrimination statutes. Likewise, Friedman should be so protected by the anti-religious discrimination statutes here, too.

Further, there is a Canadian case that held that a prisoner who held a belief that "consumption of animal products is morally wrong" can be protected under a "freedom of conscience," equivalent to a freedom of religion. That case stated that "Motivation for practi[c]ing vegetarianism may vary, but, in my opinion, its underlying belief system may fall under an expression of 'conscience.'" [Jack Maurice v. Attorney General of Canada, 2002 FCT 69 (Docket T-1487-99) (Decided January 21, 2002), <http://decisions.fct-cf.gc.ca/fct/2002/2002fct69.html>].

The fact that these two holdings conflict with the Court of Appeals decision further shows that this case to be ripe for review by this Court. The settlement of the definitions of "religion" and "religious beliefs" and "religious creed" under the FEHA are important questions of law. Further, the application of leave to amend to new rules of law is likewise important to be applied evenly statewide. Therefore, this Court should grant hearing in this matter because such review is "necessary to secure uniformity of decision or the settlement of important questions of law." [See California Rules of Court 29(a)(1), emphasis added].

2. While Law as to What Qualifies as a Religion or Religious Belief or Creed Is a Matter of Great Import, Such Law Appears Muddled At Best; Furthermore, Its Application to California Employment Law Appears to be a Case of First Impression; Whether or Not Ethical Veganism Qualifies as a Religious Belief or The Legal Equivalent of a Religious Belief Under FEHA is a Perfect Vehicle to Set Forth the Definition of a Religion in This Context.

The present case appears to be a case of first impression not only as to whether Ethical Veganism qualifies as a religious belief or the legal equivalent of a religious belief under FEHA in an area of law, discrimination, with a public policy of remedying discrimination, but also a case of first impression as to what the definition of a religion or religious belief or creed under the FEHA. Veganism and Ethical Veganism, as "non-traditional" beliefs, provides a perfect vehicle for this Court to set forth the correct definitions of religion and religious beliefs and creeds. While no one would question whether Judaism, Christianity or Islam are religions, there are a multitude of other "non-traditional" religions in this Country that could provide such an inquiry. Veganism and Ethical Veganism provides the ideal framework for this Court to set forth a definition of religion that complies with both the spirit of the FEHA, as well as also follows other precedents and further does not violate the Constitution. As America, and more so, as California, becomes more and more diverse and cosmopolitan, both in religions as well as cultures, the issue of what is a religion becomes of great importance. Furthermore, the area of law, employment discrimination law, is an important area, in particular, because employment is necessary in order to earn a living and purchase the necessaries of life, such as food, clothing and shelter. Not only is the right to religious freedom protected by the First Amendment to the United States Constitution, but also the right to "life, liberty, or property," referred to in Fourteenth Amendment to the United States Constitution, sometimes has been deemed to include the right to contract, including contracts of personal employment.

While the issue of "what is a religion" is most known from the conscientious objector cases, there appears to be no known appellate case determining whether Ethical Veganism is a religion. In the conscientious objectors cases, the issue was whether forced military service violates a true religious belief, or whether the objector is simply alleging the belief as a ruse to avoid serving in the armed forces. See, for example, United States v. Seeger (1965) 380 U.S. 163, 13 L.Ed.2d 733, 85 S.Ct. 850. Apparently, the courts are not to test the "truth" or "validity" of an alleged religious practice, but to look instead to see if the person is feigning belief to avoid an otherwise legitimate obligation. Other than the Administrative Regulations [see AA p. 000309, AA pp. 000310-000311 and AA p. 000312], the only other known precedent directly on point, albeit non-binding, is an EEOC Determination Letter holding Veganism to be the functional equivalent of a religious belief. [See AA pp. 000313-000314 for copy of EEOC Determination Letter]. The issue of whether Veganism or Ethical Veganism to be a religion appears never addressed other than in that EEOC Determination Letter on that one case. This issue is therefore important and also ripe for consideration.

This case presents an issue of first impression that is a matter of extreme public policy, as reflected by not only statute, i.e., the FEHA, but also by Constitutional protections. Both the California Constitution and the United States Constitution, First Amendment, provide extensive protections to individuals based upon their religious beliefs. Protection of an individuals religious beliefs and reverse side of the coin, protection from discrimination on the basis of those beliefs, is of utmost fundamental importance in our Constitutional structure of government in this country. Therefore, this matter and the reach of religious belief protection is of extreme fundamental public policy. This public policy is reflected in the fact that while in ordinary breach of contract or wrongful termination cases, only economic damages are allowed, and such noneconomic damages as pain and suffering and punitive damages are not allowed, those noneconomic damages are allowed in discrimination cases, including religious discrimination cases.

The issue here is whether the provisions and protections of the California Fair Employment and Housing Act ("FEHA") apply to Ethical Vegans; Friedman contends that they do, and for good reason, to protect not only his own beliefs, but those of all denominations and non-denominations of beliefs that are considered religious or the equivalent to the believer. A determination herein that Ethical Veganism is protected by the FEHA will protect everyone's right to be free from religious discrimination in the work place, not just Vegans.

The Court of Appeal has used Federal case precedent that should not apply to a State Court anti-employment discrimination case, as is a FEHA case. One of the cases, United States v. Meyers, 906 F.Supp. 1484, 1504 (D. Wy. 1995), aff'd, 95 F.3d 1475 (10^th Cir. 1996), cert. denied, 522 U.S. 1006 (1997), held that the beliefs held by the founder of the Church of Marijuana more accurately espouse a philosophy or way of life rather than a religion. Not only is that case an "out of district" (California is in the 9^th Circuit) case, it is based upon illegal conduct (marijuana usage), whereas Friedman's beliefs are clearly not illegal. It is disingenuous to compare beliefs in illegal activities (which anti-discrimination statutes do not protect) compared to Friedman's sincere Ethical Vegan belief in non-violence to animals of all kinds (which clearly is not illegal).

Friedman's Ethical Veganism beliefs are sincere. They are not illegal. Friedman's beliefs occupies the place of importance parallel to religion. It should be noted that "vegetism" is not the same as Ethical Veganism, let alone Veganism. Again, "vegetism" is not Veganism. The reason for this is "vegetism" does not include the moral and ethical components that Veganism includes. Further, Friedman's views do fit the Meyers factors. Veganism and Ethical Veganism are not confined to one question alone, it is much broader. Vegans do not just eat vegetables (as under "vegetism"), but additionally such Vegan beliefs encompass all aspects of one's beliefs, from not only not eating meat, but not eating dairy products, not using soap derived from animal products, not wearing leather, wool, silk or other animal products, and, more to the point of this case, not getting vaccinated with vaccines made, derived or tested on animals. [See AA pp. 000002-000003].

All forms and aspects of religion, however eccentric, are generally included. Cooper v. General Dynamics, Convair Aerospace Div. (5^th Cir. 1976) 533 Fed.2d 163, 168-169, cert denied, 43 U.S. 908 (1977). A religion does not require a formal organization or a "written form" to be protected by equal employment opportunity laws. [See Brown v. Dade Christian Schools, Inc. (5^th Cir. 1997) 556 Fed.2d 310, 311-312, cert. denied, 434 U.S. 1063].

Further, it is not the case that only "institutional religions" are protected by the FEHA (and Title VII, as well). Neither the case law, nor the Code and Regulations promulgated thereby, support such a position that only "institutional religions" are protected. It should be kept in mind that the various branches of the Protestant Christian churches, such as Methodist, Baptist, Lutheran, Episcopalian, Presbyterian, etc., at one time were not considered "institutional religions," with the Roman Catholic Church being the only "institutional" Christian religion, hence the term "Protestant," as in "protest."

A California tax case that set forth a very broad definition of religion and religious beliefs, Fellowship of Humanity v. County of Alameda (1957) 153 Cal.App.2d 673, 315 P.2d 394, has even been cited as authority in two U.S. Supreme Court cases. (See School Dist. v. Schempp (1963) 374 U.S. 203, 302, 10 L.Ed.2d 844, 903, 83 S.Ct. 1560, 1613, and Torcaso v. Watkins (1961) 367 U.S. 488, 495, 6 L.Ed.2d 982, 987, 81 S.Ct. 1680, 1684). This case included "Taoism, classic Buddhism, and Confucianism" as religions. Id., at pp. 684, 690. And also includes "humanists" and others that do not believe in "God or gods." Id., at pp. 680, 687 and 690. This case defined religion primarily in a constitutional setting, and should include Friedman herein's Ethical Vegan beliefs. However, the definition of religion in a anti-discrimination setting, such as FEHA here, should be broader than that in the constitutional (usually, Establishment Clause) setting in order to serve the differing public policy purpose of eliminating discrimination in the workplace.

On the other hand, note that the holding in the decision here, unless set aside by this Court, may not protect these "Eastern" religions because they may not fit the three prong test set forth in the Court of Appeal's Opinion.

In fact, the use of the term "creed" in addition to "belief or observance" or merely "religion" in the anti-discrimination FEHA statute could connote an intended broader interpretation for religion. See as an example the difference between Government Code §12940(a) using term "religious creed" as opposed to Government Code §12940(j) using term "religious belief or observance." Note also the broad definition in Government Code §12940(o), using terms "religious creed," "religion," "religious observance," "religious belief," and "creed" to include "all aspects" of same.

Similarly, guidelines issued by the Internal Revenue Service to determine if an organization is organized and operated exclusively for religious purposes focus on a nonsecular definition of religion. The guidelines posit two basic questions: 1) Are the organization's beliefs truly and sincerely held by those professing them, as opposed to a mere sham, and 2) Are the practices and rites associated with the organization's belief or creed illegal or contrary to clearly defined public policy. If beliefs are truly and sincerely held, and practices do not violate law or clearly defined public policy, the Service will not question the religious nature of the organization's beliefs. [I.R.S. Code §[7.8.1]3.3.2 (1999)].

Ethical Veganism extends beyond trivial dietary preferences. Diet is merely a small part of observing a non-exploitive relationship with the people and animals of this world. Ethical Veganism is a relational lens through which to view the world. Ethical Vegans are not "speciesist" and value the sanctity of all life, seeking to exclude from their life, as far as possible and practical, all forms of exploitation of, and cruelty to, animals for food, clothing or any other purpose. Consequently, Ethical Vegans do not eat meat, fish or poultry, and do not use other animal products and by-products including eggs, dairy products, honey, leather, fur, wool, soaps and toothpastes which contain lard, etc., and Ethical Vegans do not participate in the biomedical experimentation on animals and avoid activities or products which encourage it. As can be seen by this "list" of prohibited activities, being vegetarian is only one small part of being an Ethical Vegan. While being a Vegan or Ethical Vegan necessarily implies that one is a vegetarian, the opposite is not true; being a vegetarian does not imply one is an Ethical Vegan, let alone a Vegan. A recent poll estimates there are a half million Vegans in the continental United States.⁽³⁾ There is a common ethical principle shared by all Vegans which is a reverence for life and desire to live with, as opposed to depend upon, the others species of the planet. Veganism is therefore not some bizarre trivial personal belief, but is a sincerely held set of moral and ethical values that rise to the level religious beliefs, and should be afforded religious protections as such. In addition to these vegans and Ethical Vegans, there are millions of adherents to other non-traditional religions. Therefore, it is a matter of great importance and statewide concern that this Court set the proper definitions of religion and religious beliefs and creeds subject to the FEHA's employment protections.

3. A 1994 poll conducted by the Vegetarian Resource Group of 1,978 men and women reflects an estimated 500,000 Vegans in the United States. Debra Wasserman & Reed Mangels, Vegan Handbook at 229-230 (1996).

3. The Fact the Court of Appeals Disregarded the Administrative Regulations Defining "Religious Creed" is a Matter of Importance Justifying Granting Review.

California Government Code §12926(o), defines the religion terms as meaning that "'Religious creed,' 'religion,' 'religious observance,' 'religious belief, and 'creed' include all aspects of religious belief, observance, and practice." California Government Code §12935, regarding the "Functions, powers and duties of commission," provides that "The commission shall have the following functions, powers, and duties: (a) To adopt, promulgate, amend, and rescind suitable rules, regulations, and standards (1) to interpret, implement, and apply all provisions of this part, (2) to regulate the conduct of hearings held pursuant to Sections 12967 and 12980, and (3) to carry out all other functions and duties of the commission pursuant to this part."

Pursuant to this authority, the Commission has defined "religious creed." 2 Cal. Code Reg. §7293.1, included at AA p. 000309, regarding "Establishing Religious Creed Discrimination," states, emphasis added, that "'Religious creed' includes any traditionally recognized religion as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. . . ." 2 Cal. Code Reg. §7293.3 likewise requires employers to "make reasonable accommodation to the known religious creed of an applicant or employee." A copy of this regulation is included at AA pp. 000310-000311. Even the under federal regulations, "religious practices" include moral or ethical beliefs about what is right and wrong that are sincerely held with the strength of traditional religious views [See 29 C.F.R. §1605.1, a copy included at AA p. 000312]. This regulation has even been used to show that even if no religious group espouses such beliefs, the belief can still be a religious belief of the employee or prospective employee, which would appear equally applicable under FEHA.

Clearly, under the regulatory definition, Friedman beliefs about Ethical Veganism qualify as "religious creed." Friedman has plead that he "holds these beliefs with the strength of traditional religious views. . ." [Complaint, page 2, line 24, at AA p. 000002], and that "These are sincere and meaningful beliefs which occupy a place in Friedman's life parallel to that filled by God in traditionally religious individuals adhering to the Christian, Jewish or Muslim Faiths" [Complaint, page 2, line 28, to page 3, line 2; see AA pp. 000002-000003].

This is very important, when considered in conjunction with the legal proposition that an administrative agency's interpretation of its own regulation "deserves great weight." [Culligan Water Conditioning v. State Bd. Of Equalization (1976) 17 Cal.3d 86, 93]. "[T]he primary rule is to respect the subject matter expertise of the agency charged with enforcing the regulation and to defer to that agency's interpretation unless it is clearly erroneous or unauthorized." [Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 973-974]. Therefore, the Commission's administrative regulations holding that "'Religious creed' includes any traditionally recognized religion as well as beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. . . .," "deserves great weight," and the Plaintiff's beliefs deserve such protections under the law and under these regulations. [See 2 Cal. Code Reg. §7293.3; see also Culligan Water Conditioning v. State Bd. Of Equalization (1976) 17 Cal.3d 86, 93]. It is therefore of statewide concern that the Court of Appeals failed to follow the agency's interpretation.

4. The Requirements of "Religious Creed" Discrimination Under The Court's New Definition Are Problematic.

While the Court acknowledges that this was a case of first impression as to what the definition of "religious creed" was under the FEHA, [Opn., p. 6, §2, 1^st ¶], the Plaintiff has already plead, or it can be considered reasonably plead when the complaint is viewed in a reasonable light most favorable to the Plaintiff, the requirements under such a definition. Notwithstanding this, the Court of Appeals new definition of "religious creed" is problematic and confusing and does not make for a good test or standard.

The several tests mentioned in the opinion culminate in this court's conclusion, which is Judge Adams' three-prong test, beginning on page 34. [Opn., 34-36] "First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters." While this may not be simple veganism, it is Ethical Veganism. Ethical Veganism asks what is the ultimate meaning of life and concludes veganism in the broadest sense, compassion for all life, amelioration of suffering, advocacy of happiness and cooperation. The query and conclusion makes it ethical. These are similar core tenets to Quakers and Buddhists and countless other denominations of a myriad of religions. While the foundation is not on a supreme being as the Quakers rely upon, it rests on a philosophy revealed by Peter Singer much like Buddhism was a philosophy revealed by Siddhartha. "Imponderable matters" is a strange qualifier as members of all sorts of traditional religions would claim their religion is ponderable--able to be precisely evaluated. Not that they would necessarily claim they would succeed. There are, for example, Christians who rely heavily on faith and those who rely heavily on formal logic, and that is why there are Christian scholars. The former claim religion is imponderable, the latter do not. If the court is asking for epistemology, the elemental meaning of Ethical Veganism, it may very well be imponderable depending on who is asked. Therefore, this criteria or prong is problematic and fails as a proper test. Further, it should be noted that the court incorrectly states that "There is no apparent spiritual or otherworldly component to plaintiff's beliefs." [Opn., p. 35]. Yet, the court earlier in its opinion cites to just such allegations contained in the Plaintiff's complaint, that "He lives each aspect of his life in accordance with this system of spiritual beliefs[, and] [t]his belief system[] guides the way that he lives his life[, and] [Plaintiff's] beliefs are spiritual in nature and set a course for his entire way of life[, and] he would disregard elementary self-interest in preference to transgressing these tenets." [Opn., p. 3, emphasis added; See also AA p. 000002-000003, ¶4]. Further, in the complaint as quoted in the opinion [Opn., pp. 3-4 See also AA, p. 000002-000003, ¶4], "violating natural law, foundational creeds, beliefs spiritual in nature, disregarding elementary self-interest, guiding the way I live my life" are all fundamental. "Natural law, foundational creeds, and beliefs spiritual in nature" are addressing ultimate questions. "Natural law, spiritual beliefs" are matters addressing deep and imponderable matters. Plaintiff has therefore satisfied the first prong of this court's new definition of religious creed. The complexity and inconsistency of the Court of Appeal's new test for "religious creed" is shown by the fact that, as shown here, while Friedman has satisfied the test, the Court of Appeal came to the opposite conclusion.

"Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching." The distinction between "comprehensive nature" and "an isolated teaching" is a question of fact. Taoism, for example, has the isolated teaching of balance which is applied comprehensively to the universe. Otherwise, is the court claiming that simple religions are unreasonable because they are not complicated? This would topple any new religion because traditional religions have hundreds or thousands of years to become comprehensive. This is an unconstitutional test of reasonableness. Ethical Veganism is comprehensive to the Plaintiff, extending to every aspect of his life, even his dreams. A nonvegan may not think it is comprehensive, but that could also apply to others' views of anyone else's religion. Since the Plaintiff's Ethical Vegan belief system encompasses all aspects and elements of not only his life, but the lives of all animals, the belief system is comprehensive and satisfies the second prong of this court's requirements for a religious creed. Therefore, the second prong is likewise problematic and fails as a proper test. Would Taoism be considered a religion under this test?-Probably not.

The court's definition of religion is heavily biased in favor of Western religions. It is questionable whether Taoism, classic Buddhism or Confucianism could satisfy the court's requirements of "religious creed," as set forth in the opinion of this court. And, if as it should be, Confucianism is considered a religious creed, so too should Ethical Veganism. Ethical Veganism has been around at least since 4 B.C.E. as practiced by Apollonius of Tyana -- who wore bark for sandals, refused meat and all animal products, even refusing a wax sculpture tribute to him because it came from bees. Modernly, Peter Singer (a Princeton professor of ethics) consolidated several philosophies about what it means to be human in the sense of moral obligations. These writings have become the religious tenets of millions of adherents. Under Apollonius or Singer, Ethical Veganism is perfectly analogous to Confucianism, and should be considered a religion.

"Third, a religion often can be recognized by the presence of certain formal and external signs." This again is biased against new religions and may also be an unconstitutional test of reasonableness. Even so, some Ethical Vegans recognize Gandhi's birthday (October 2nd) as a holiday, and World Vegan Day is November 1st. Further, Peter Singer may be considered a founder of the compiled philosophy and may have many teachers, the equivalent of "ministers." In fact, if the Plaintiff were allowed to amend his complaint, he could plead that in California, a legal marriage license has been issued for a marriage to be performed by an Ethical Vegan, and that in Massachusetts, the state approved the issuing of same. There are vegan songs, heroes, and many Ethical Vegans aim to convert others to Ethical Veganism. In this sense, Ethical Veganism is evangelical or proselytizing as are many Christian religions. Friedman can allege that he has a tattoo on his left arm symbolizing Ethical Veganism, as some Christians would tattoo a crucifix. In terms of what the Friedman already pled in his complaint-Friedman pled his diet (setting forth what he cannot eat under Ethical Veganism) and clothing (setting forth what he cannot wear under Ethical Veganism) are traditional "formal and external signs" of religion. Similarly, the civil disobedience comparison to Operation Rescue is an external sign of religious faith and devotion to these values, or the great sacrifice Jehovah's Witnesses are known to take to retain their religious purity. [AA, pp. 000002-000003, ¶4]. But as the Court of Appeals points out, the third prong is not really a deciding factor is its absence does not prevent a belief being held to be a religious one. But when should the third prong be used under the Court of Appeals new standard?-The Court of Appeals is not clear on this.

All of these issues and problems show that the Court of Appeals new test is problematic and inappropriate. In light of the importance of religion and employment for individuals, this Court should grant review and fashion a more appropriate test or standard for "religious creed."

Furthermore, it is a matter of "institutional" public policy significance that will affect the important rights of other parties in other cases as to the proper definition of religion and religious beliefs and creeds under the FEHA. This case involves the area of overlap between what may be the two most important aspects of an individual's life-religion and work. Therefore, this Court should grant review.

5. The Court's Rule of Law Violates the Establishment Clause, Especially in Light of the Fact That the Determination of Whether the Plaintiff's Ethical Vegan Beliefs Were a "Religious Creed" Were Determined by Demurrer, Rather than by a Fact-finder after Expert Testimony Religious Scholars.

The Court of Appeal's new rule of law violates the Establishment Clause of the Constitution, especially in light of the fact that the determination of whether the plaintiff's Ethical Vegan beliefs were a "religious creed" were determined by demurrer, rather than by a fact-finder after expert testimony religious scholars. The case should have gone to a jury (or at a minimum, a judge on summary judgment), to determine factually whether the Plaintiff's Ethical Vegan beliefs qualify as a "religious creed" for FEHA purposes.

Starting on page 31 [Opn., p. 31], this court says the trend is to define religion more narrowly by comparing proclaimed religions to traditional religions. This is a violation of the Free Exercise and Establishment Clause by setting up approved religions, which other asserted religions are to be compared. Furthermore, it violates the Due Process Clause. "Free Exercise" is not intended to only apply to "traditional religions," which, as mentioned above, at one point did not even include the Protestant Church, hence the name "Protest"-ant. The court therefore favors traditional religions and disfavors non-traditional religions, a violation of the Establishment Clause which is to give no preference. Indeed, the government can only test sincerity, not reasonableness; otherwise, the court is saying that traditional religions are reasonable and untraditional religions are reasonable only if they are like traditional religions. On page 32 [Opn., p. 32], the Court of Appeals refers to "a place of importance parallel to that of traditionally recognized religions." This again may violate the Establishment Clause which prohibits the setting up what is a reasonable religion and those that are not reasonable, and those considered not reasonable by the court, are not considered religions.

Neither the trial court nor the court of Appeals court should have tested the reasonableness of Plaintiff's religion through the above test. At a minimum, the issue of whether or not the Plaintiff's Ethical Vegan beliefs are a "religious creed" should have been decided by a trier of fact, not as a matter of law on a demurrer. The determination of religious beliefs and violations of the Establishment Clause of the Constitution are issues of important statewide concern, and this Court should therefore grant review.

6. The Court Should Have Construed California "Religious Creed" Discrimination Protections Broader than Federal Protections, Not Narrower.

Although the court notes that "California courts have consistently looked to federal authority," [Opn., p. 10], the court opines that California Code of Regulations, Title 2, Section 7293.1 cannot be construed as broadly. [Opn., 21-22]. This overlooks the fact that California anti-discrimination protections are generally interpreted more broadly than the federal interpretations, and when the court's do not follow this principal, the Legislature overrules the courts. [See as example Government Code §12941.1, rejecting the decision of Marks v. Loral Corp. (1997) 57 Cal.App.4th 30; See also, Government Code §12940(j), in particular §12940(j)(3), amended to reject the no co-worker liability rule in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132 (1999)]. The legislative intent is thus that Government Code §12940 should be interpreted broadly to provide the greatest possible protection for employees and applicants.

Thus, the court should have construed California "religious creed" discrimination protections broader than federal protections, not narrower, which is an important issue of statewide concern.

7. Even If the Appellant Did Not Plead the Elements of the New Definition of "Religious Creed," as this Was a Case of First Impression, the Appellant Should Have Been Afforded Leave to Amend upon Remand to Allow Him to Plead His Case under the New Definition That the Court Has Set Forth in the Decision; Allowing Leave in Such Circumstances Should Be a Rule of General Statewide Application.

At the trial court level, the trial court provided no leave to amend the complaint after dismissing the religious creed discrimination causes of action. [AA, pp. 000161-000162 and AA, pp. 000163-000170]. As the Court of Appeals noted, this area of the law has previously been unclear and this is a case of first impression as to defining religious creed under the FEHA. [Opn., p. 6, §2, first ¶]. Prior to dismissing the religious creed discrimination claims in the complaint, the trial court should have provided guidance in terms of what the court considered to be required in what this court even admits to be a murky area of defining what is a religion. The Ninth Circuit Court of Appeals held in Bautista v. Los Angeles County, 216 Fed.3d 837 (9th Cir. 2000), that a District Court must provide guidance to the Plaintiff and her counsel prior to dismissing with prejudice. Such logic would seem especially necessary in situations such as this where the rule of law has yet to be formulated by the courts. Further, the courts of this state have held that "Trial courts are vested with the discretion to allow amendments to pleadings in furtherance of justice . . . That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state . . . resting on the fundamental policy that cases should be decided on their merits." [Hirsa v. Superior Court (Vickers), (1981) 118 Cal.App.3d 486, 173 Cal.Rptr. 418.] Likewise, when a new rule of law sets forth the legal requirement of pleading at the appellate level, justice should require that the case be remanded back to the trial court in order to determine whether the Plaintiff can plead the elements of that new rule of law.

Further, what is troubling is the way that the Court of Appeal has given short shrift to the Plaintiff's request to amend his complaint from "vegan" to "Ethical Vegan." In that the court's second requirement for religious creed includes a "belief-system," [Opn., p. 35], such an amendment to allege an "Ethical Vegan" belief-system seems to be an important amendment indeed. The one-paragraph discussion of "Leave to Amend" in the opinion seems lacking and misses the point of the amendment. [Opn., 36-37]. The amendment to change "vegan" to "Ethical Vegan" is intended to show that this Plaintiff's views (as well as others who belief in Ethical Veganism, as opposed to mere veganism), encompass a comprehensive belief-system.

Should the Court of Appeal's new rule of law as to determining what a religion for the purposes of the FEHA stand, equity and the maxim that all cases should generally be tried on their merits requires that this case be remanded to the trial court with instructions to allow the Plaintiff leave to attempt to amend his religious creed discrimination claims, should the court still believe that the Plaintiff has not adequately pled his claims under this new rule of law expressed in California for the first time.

"Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." [Angie M. v. Sup.Ct. (Hiemstra) (1995) 37 Cal.App.4th 1217, 1227, 44 Cal.Rptr.2d 197, 204]. In fact, it has been held to be an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. [Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 384; Okun v. Sup.Ct. (Maple Properties) (1981) 29 Cal.3d 442, 460, 175 Cal.Rptr. 157, 168]. Inasmuch as the complaint at issue as to the religious discrimination in employment causes of action (causes of action one, two and three) were contained in the original Complaint when leave to amend was refused by the Court upon the Court's sustaining the original Demurrer by the Kaiser Defendants without leave, leave should have instead been granted. This is especially so now if the Court of Appeal's new rule of law stands.

"The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding . . . The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars . . . " [C.C.P. § 473]. It is judicial policy to resolve all disputes between the parties on their merits, and to allow amendment of the pleadings to put all such disputes at issue at the time of trial. The principal purpose of vesting the Court with the discretionary power to correct "a mistake in any other respect" is to enable it to mold and direct its proceedings so as to dispose of cases upon their substantial merits, when it can be done without injustice to either party, whether the obstruction to such a disposition of cases be a mistake of fact or mistake as to the law, although it may be that the Court should require a stronger showing to justify relief from the effect of a mistake of law than a mistake of fact. Ward v. Clay (1890) 82 Cal. 502, 23 P. 50.

Further, the original demurrer was to a Complaint that plead "Vegan beliefs" rather than "Ethical Vegan beliefs." This factual change might be significant. Ethical Veganism is a sincerely held set of moral and ethical values that rise to the level religious beliefs, and should be afforded religious protections as such.

It is a matter of "institutional" public policy significance that will affect the rights of other parties in other cases as to whether there should be a general policy of allowing leave to amend when a Court sets forth a new rule of law. Therefore, this Court should grant review.

CONCLUSION

For the foregoing reasons, Appellant respectfully requests that this Court grant hearing in order to consider the proper definition of religion and religious beliefs and creeds under the FEHA, which is an important issue of statewide concern. In doing so, this Court will likely either hold that Veganism or Ethical Veganism is the equivalent of a religious creed or would remand this case to the Superior Court with leave to amend to allow the Plaintiff to plead his case of religious creed discrimination under this court's new standard, which granting of leave is also a matter of importance for statewide application.

Exhibit "A"-[Second Appellate] District Court [of Appeal's] Opinion

Exhibit "B"-Order Modifying Opinion [No Change in Judgment]

ATTORNEY'S CERTIFICATE OF SERVICE BY MAIL
[Code Civ. Proc. § 1013a(2) ]

I, SCOTT D. MYER, certify:

I am, and at all times mentioned herein was, an active member of the State Bar of California and not a party to the above-entitled cause. My business address is Myer Law Firm, 11040 Santa Monica Boulevard, Suite 320, Los Angeles, CA 90025-7515.

I served and will file the attached PETITION FOR REVIEW, on October 23, 2002, by depositing a copy of the document in the United States mail at City of Los Angeles, County of Los Angeles, State of California, in a sealed envelope, with first class or Priority Mail postage fully prepaid, addressed to:

who are the attorneys of record for the Defendants, the Court appealed from and the Supreme Court. At that time there was regular delivery of United States mail between the place of deposit and place of address.

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