Current Status: Filing Amended Complaint
- Plaintiffs filed case: August 11, 2023 READ HERE
- Lawsuit transferred from Sacramento County to Sonoma County: May 2024
- Plaintiffs filed First Amended Complaint: May 10, 2024 READ HERE
- Defendants’ filed a Demurrer (motion to dismiss) with a Declaration to the First Amended Complaint: July 18, 2024 READ HERE and HERE
- Plaintiffs’ filed an opposition to the Demurrer to the First Amended Complaint: November 26, 2024 READ HERE
- Judge’s Tentative Ruling to sustain Demurer with leave to amend: December 11, 2024 READ HERE
- Plaintiffs filed Second Amended Complaint: January 16, 2025 READ HERE
- Defendants’ filed a Demurrer to the Second Amended Complaint and Motion to Strike Sixth Action: March 20, 2025 READ HERE, HERE, HERE, HERE and HERE
- Plaintiffs’ filed an opposition to the Demurrer to the Second Amended Complaint and Motion to Strike: May 16, 2025 READ HERE and HERE
- Judge’s Tentative Ruling, which the judge adopted in its entirety at the hearing, to sustain the demurrer without leave to amend as to five of the six causes of action against CPDH/PCS. This ruling overrules the demurrer as to the Third Cause of Action for Writ of Mandate (Code Civ. Proc. § 1094.5), which means the Third Cause of Action survives, based on the amended allegations about Polio Type 2. The tentative is silent as to the Seventh and Eighth Causes of Action as to PCS: May 29, 2025 READ HERE – THE CASE CAN MOVE FORWARD!
As a side note, PCS (the child’s school) failed to respond to two causes of action, which was news to the Court. AVFCA’s lawyer pushed for a default, but the Court is allowing PCS to respond within 15 days. The causes of action are that PCS violated Education and Government Codes by excluding the child as an immune student. - Next Steps: Discovery
Background
On August 11, 2023 A Voice for Choice Advocacy’s lawyers filed a lawsuit on behalf of a plaintiff claiming that California’s School Vaccine Exemption laws should include the ability to opt out of vaccinations requirements if a child shows antibody levels that make them immune to a disease, and specifically that this would not require a medical exemption. Proof of antibodies through titer testing would be given to the school in lieu of vaccination records. Most other states, and other entities such as the University of California and California State University allow for titer testing in lieu of vaccination. SB 277 and CDPH’s regulations do not provide for such. The child, whose mother is the plaintiff, has had the chickenpox disease and has been vaccinated with at least one vaccine for each of the other required diseases, and has positive antibody tests for all required diseases. The child’s medical doctor wrote a medical exemption but the California Department of Health revoked it and thereby invalidated it. So while this child poses no threat to the other children at school, even if there was an outbreak of one of these diseases, by law the child is required to be vaccinated to attend school.
After nearly two years of the State’s attorneys trying to dismiss this case, A Voice for Choice Advocacy’s lawyers were able to argue the case and the judge agreed that one of the eight Causes of Action has merit, and two others were not contested. So the Complaint is “live” as to our claim for a Writ of Administrative Mandate. Specifically the ruling states:
“While the Court finds the bare allegation that Polio Type 2 has been eradicated as potentially dubious, that is a matter liberally construed at demurrer. The requirement in finding administrative mandamus is that Defendants have abused their discretion by: (1) “the respondent has not proceeded in the manner required by law,” (2) the “decision is not supported by the findings,” or (3) “the findings are not supported by the evidence.” CCP § 1094.5(b).
If Defendants are truly denying Minor’s exemption predicated on an entirely eradicated disease for which there is no applicable titer test, those appear to be facts sufficient to plead an abuse of discretion. Excluding Minor from school for failure to show immunity to a disease which poses neither risk to the Minor, nor the population at large is not a finding supported by the evidence. Accordingly, Plaintiff has pled sufficient facts to state a cause of action for administrative mandamus.“
The case can therefore proceed to discovery about Defendants acting unreasonably, arbitrarily, and capriciously in denying this child’s Medical Exemption. The goal is to secure a writ of mandate ordering the Medical Exemption be granted, and thereby allowing titer testing in lieu of vaccination for all required vaccines for school.
What makes this lawsuit different from others?
This lawsuit is the first of its kind to ensure children who are immune to disease are allowed to attend school without proof of vaccination.
A Voice for Choice Advocacy is the only organization that has been fighting SB 277 and school required vaccine mandates since 2015, both legislatively and legally. AVFCA is the only organization that has been active in the legislature educating and advocating for health rights on your behalf, year in and year out. In 2016, A Voice for Choice Advocacy was the only organization that brought forward a lawsuit against SB 277, based on parental rights, bodily autonomy and the fundamental right to education. While this lawsuit was extremely well written and argued, it was ultimately dismissed by the CA courts, due to a fear that if the judges ruled in our favor, polio would return to California! AVFCA chose not to take that case to the Supreme Court, as the judges at the time would likely not have ruled in our favor, and thereby would have set bad precedence. With the filing of this lawsuit, AVFCA is the only organization now sponsoring two active lawsuits that chip away at SB 277, as well as continuing our work in the CA Capitol to make changes legislatively.
AVFCA’s legal team on this case, led by Jonathan Nicol, is well versed in Constitutional law and SB 277. They have a history of significant wins both in lower courts and Appeals courts for individuals and corporate clients. Jonathan Nicol is also the lead attorney on the SB 277 Religious Exemption lawsuit, which AVFCA is sponsoring.
What can you do to support this lawsuit?
While AVFCA’s legal team generously charges us a discounted hourly rate, this lawsuit will require hundreds of hours of their time and will likely cost hundreds of thousands of dollars. AVFCA has taken on paying for this lawsuit because of our passion for Health Rights and Medical Freedom, as well as our desire to ensure Religious Rights when it comes to vaccine mandates. Having said that, our funding comes from our generous donors and supporters – YOU! So as AVFCA gives you this gift of a lawsuit and our expertise, with the goal of bringing Religious Exemptions to School Vaccine Mandates, we ask you to dig deeply and donate all you can to support AVFCA’s lawsuits. Thank you in advance for your dedication and support!