Brown v. Smith

Filed 7/2/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

SHARON BROWN et al., B279936

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC617766)
v.

KAREN SMITH, as Director, etc., et
al.,

Defendants and Respondents.

APPEAL from an order of dismissal of the Superior Court
of Los Angeles County. Gregory W. Alarcon, Judge. Affirmed.
Law Offices of T. Matthew Phillips and T. Matthew Phillips
for Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Julie Weng-Gutierrez,
Assistant Attorney General, Richard T. Waldow, Jonathan E.
Rich and Jacquelyn Y. Young, Deputy Attorneys General, for
Defendants and Respondents.

*******
 SUMMARY
In 1890, the California Supreme Court rejected a
constitutional challenge to a “vaccination act” that required
schools to exclude any child who had not been vaccinated against
small-pox. (Abeel v. Clark (1890) 84 Cal. 226, 227-228, 230
(Abeel).) In dismissing the suggestion that the act was “not
within the scope of a police regulation,” the court observed that,
“[w]hile vaccination may not be the best and safest preventive
possible, experience and observation . . . dating from the year
1796 . . . have proved it to be the best method known to medical
science to lessen the liability to infection with the disease.” (Id.
at p. 230.) That being so, “it was for the legislature to determine
whether the scholars of the public schools should be subjected to
it, and we think it was justified in deeming it a necessary and
salutary burden to impose upon that general class.” (Ibid.)
More than 125 years have passed since Abeel, during which
many federal and state cases, beginning with the high court’s
decision in Jacobson v. Massachusetts (1905) 197 U.S. 11
(Jacobson), have upheld, against various constitutional
challenges, laws requiring immunization against various
diseases. This is another such case, with a variation on the
theme but with the same result.
We affirm the trial court’s order dismissing plaintiffs’
challenge to an amendment to California law that eliminated the
previously existing “personal beliefs” exemption from mandatory
immunization requirements for school children.
FACTS
Plaintiffs Sharon Brown, Sarah Lucas, Dawnielle Selden,
Serge Eustache, Tricia Eustache, and Nikki Jencen filed this
lawsuit, seeking to invalidate amendments to California’s public

2
health laws governing immunization requirements against
childhood diseases. These legislative changes were made by
Senate Bill No. 277, approved by the Governor on June 30, 2015,
effective January 1, 2016. (Stats. 2015, ch. 35.)
Senate Bill No. 277 eliminated the personal beliefs
exemption from the requirement that children receive vaccines
for specified infectious diseases before being admitted to any
public or private elementary or secondary school, day care center
or the like. 1 (Sen. Bill No. 277, § 1.) In addition to a medical
exemption, 2 Senate Bill No. 277 contains exemptions for pupils in

1 The childhood diseases specified are diphtheria, hepatitis
B, haemophilus influenzae type b, measles, mumps, pertussis
(whooping cough), poliomyelitis, rubella, tetanus, and varicella
(chickenpox). (Health & Saf. Code, § 120325, subd. (a)(1)-(10).)
The list also includes “[a]ny other disease deemed appropriate by
the department, taking into consideration the recommendations
of the Advisory Committee on Immunization Practices of the
United States Department of Health and Human Services, the
American Academy of Pediatrics, and the American Academy of
Family Physicians.” (Id., subd. (a)(11).) As to the last item,
immunization may be mandated before a pupil’s first admission
to any school or child care center only if exemptions are allowed
for both medical reasons and personal beliefs. (§ 120338.)

2 The medical exemption, as amended by Senate Bill No. 277,
states: “If the parent or guardian files with the governing
authority a written statement by a licensed physician to the
effect that the physical condition of the child is such, or medical
circumstances relating to the child are such, that immunization
is not considered safe, indicating the specific nature and probable
duration of the medical condition or circumstances, including, but
not limited to, family medical history, for which the physician
does not recommend immunization, that child shall be exempt

3
a home-based private school or independent study program who
do not receive classroom-based instruction (Health & Saf. Code,
§ 120335, subd. (f)), 3 and for pupils previously allowed a personal
beliefs exemption, until they enroll in the next grade span (id.,
subd. (g)(1)). Grade spans are “[b]irth to preschool,”
“[k]indergarten and grades 1 to 6,” and “[g]rades 7 to 12.”
(§ 120335, subd. (g)(2).) Also, pupils who qualify for an
individualized education program are allowed access to any
special education and related services required by that program.
(§ 120335, subd. (h).) Otherwise, as of July 1, 2016, no pupil may
be unconditionally admitted for the first time, or admitted or
advanced to seventh grade level, unless immunized as required.
(§ 120335, subd. (g)(3).)
The legislative history of Senate Bill No. 277 includes an
extensive analysis of the bill, the reasons the authors gave for
proposing the bill, the diseases that vaccines prevent and their
health risks to children, the legal considerations, and the support
for and opposition to the bill. (E.g., Assem. Com. on Health,
Analysis of Sen. Bill No. 277 (2015-2016 Reg. Sess.) as amended
May 7, 2015, pp. 1-16; id. at p. 4 [“All of the diseases for which
California requires school vaccinations are very serious
conditions that pose very real health risks to children.”].)
Among many other things, the report from the Assembly
Committee on Health discusses the protective effect of
community immunity, which “wanes as large numbers of children

from the [immunization] requirements . . . to the extent indicated
by the physician’s statement.” (§ 120370, subd. (a).)

3 Further statutory citations are to the Health and Safety
Code, unless otherwise specified.

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do not receive some or all of the required vaccinations, resulting
in the reemergence of vaccine preventable diseases in the U.S.”
(Assem. Com. on Health, Analysis of Sen. Bill No. 277, supra,
p. 5.) The report explains that the vaccination rate in various
communities “varies widely across the state,” and some areas
“become more susceptible to an outbreak than the state’s overall
vaccination levels may suggest,” making it “difficult to control the
spread of disease and mak[ing] us vulnerable to having the virus
re-establish itself.” (Ibid.) Further, studies have found that
“when belief exemptions to vaccination guidelines are permitted,
vaccination rates decrease,” and one analysis “found that more
than a quarter of schools in California have measles-
immunization rates below the 92-94% recommended by the CDC
[(Center for Disease Control)].” (Ibid.) The report describes the
December 2014 outbreak of measles linked to Disneyland (131
confirmed cases); states that according to the CDC, “measles is
one of the first diseases to reappear when vaccination coverage
rates fall”; and states that in 2014, 600 cases were reported to the
CDC, the highest in many years. (Ibid.)
As indicated above, Senate Bill No. 277 was approved in
June 2015 and became effective January 1, 2016. Plaintiffs filed
their complaint on April 22, 2016. The operative second amended
complaint sought to “halt enforcement” of Senate Bill No. 277.
The complaint alleged Senate Bill No. 277 violated four
provisions of the California Constitution: the free exercise of
religion (art. I, § 4); the right to attend school (art. IX, § 5); equal
protection (art. I, § 7) (alleging “discrimination based on
vaccination status”); and due process (art. I, § 7) (alleging Senate
Bill No. 277 was “void for vagueness”). The complaint also

5
alleged a violation of section 24175, subdivision (a) (requiring
informed consent for medical experiments).
The complaint described the plaintiffs, all of whom are
parents with “sincerely held philosophic, conscientious, and
religious objections to state-mandated immunization.” (Italics
omitted.) The defendant named in the operative complaint is
Karen Smith, sued in her capacity as director of the California
Department of Public Health. The 38-page complaint consists
principally of argument, alleging, for example, that plaintiffs
“dispute the central hypothesis that drives vaccine theory,” which
“has never been proven and Plaintiffs are eager to disprove it”;
that “[v]accines kill and maim children”; and that Senate Bill
No. 277 “is a totalitarian mandate that expects parents to merrily
sacrifice their children for the greater good.” We will describe the
complaint’s allegations further as necessary in our discussion of
plaintiffs’ contentions on appeal.
Defendants demurred to the complaint, plaintiffs opposed,
and the trial court sustained defendants’ demurrer without leave
to amend. The court entered an order dismissing plaintiffs’
complaint with prejudice and plaintiffs appealed.
A month after filing plaintiffs’ opening brief, counsel filed a
letter asking us to consider as “new authority[]” (Cal. Rules of
Court, rule 8.254) the addition in July 2017 of a chemical to
California’s list of chemicals known to cause cancer. Plaintiffs
contend they have “seen evidence” that the chemical
contaminates vaccines. We deny the request, as it is both
untimely and irrelevant to any issue on appeal.
After briefing was complete, counsel filed a motion to
withdraw as attorney of record for plaintiffs, citing failure to pay
fees and an irreparable breakdown of the attorney-client

6
relationship. We granted the motion. Other counsel substituted
in as counsel of record.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the complaint. We
review the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action. For purposes of review,
we accept as true all material facts alleged in the complaint, but
not contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “[C]ourts may—and, indeed,
must—disregard allegations that are contrary to judicially
noticed facts and documents.” (Schep v. Capital One, N.A. (2017)
12 Cal.App.5th 1331, 1338.) “[W]here an allegation is contrary to
law or to a fact of which a court may take judicial notice, it is to
be treated as a nullity.” (Fundin v. Chicago Pneumatic Tool Co.
(1984) 152 Cal.App.3d 951, 955.)
When a demurrer is sustained without leave to amend, “we
decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm.” (Blank v. Kirwan, supra, 39
Cal.3d at p. 318.) Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of
action. (Ibid.)
2. Contentions and Conclusions
a. Judicial notice
Along with their respondents’ brief, defendants filed a
motion requesting judicial notice of several categories of
documents. These include documents from the legislative history

7
of Senate Bill No. 277; documents published by the World Health
Organization, the CDC, the American Academy of Pediatrics, and
the United States Department of Health and Human Services,
plus other materials addressing the safety and effectiveness of
vaccinations; and federal and state trial court decisions rejecting
challenges to Senate Bill No. 277. In addition, defendants
requested we take judicial notice “of the safety and effectiveness
of vaccinations in preventing the spread of dangerous
communicable diseases, a fact that is commonly known and
accepted in the scientific community and the general public.”
We grant defendants’ request for judicial notice.
Plaintiffs do not object to the legislative history materials,
but object to the materials on vaccination as hearsay,
inadmissible opinion evidence, and “government propaganda.”
Plaintiffs further argue that we cannot take judicial notice of the
safety and effectiveness of vaccines. They contend the
proposition that “ ‘protection of school children against crippling
and deadly diseases by vaccinations is done effectively and
safely’ ” is not common knowledge, and is the subject of
reasonable dispute. But they cite no authority that supports
their contention. The authorities are to the contrary.
More than 90 years ago, a California court observed that:
“Where the issue pertains to medical or surgical treatment, the
nature, effect, and result of which are the subjects of common
knowledge, such matters are within the rule of judicial
knowledge. As for instance, the court will take judicial notice of
the nature, purpose, and effects of vaccination.” (Southern
California Edison Co. v. Industrial Accident Com. (1925) 75
Cal.App. 709, 715.)

8
 Our courts have also pointed out we may take judicial
notice of scientific facts. (See McAllister v. Workmen’s
Compensation Appeals Board (1968) 69 Cal.2d 408, 414 [“Matters
of scientific certainty are subject to judicial notice.”]; Gould v.
Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137,
1145 [“Judicial notice under Evidence Code section 452,
subdivision (h) is intended to cover facts which are not
reasonably subject to dispute and are easily verified. These
include, for example, facts which are widely accepted as
established by experts and specialists in the natural, physical,
and social sciences which can be verified by reference to treatises,
encyclopedias, almanacs and the like or by persons learned in the
subject matter.”].)
Accordingly, we conclude judicial notice of the safety and
effectiveness of vaccinations is proper. 4
b. The merits of plaintiffs’ legal claims
Plaintiffs repeatedly cite and mischaracterize the holding of
Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223 (Bruesewitz).
Bruesewitz held that “the National Childhood Vaccine Injury Act
[(42 U.S.C. §§ 300aa-10 et seq.)] pre-empts all design-defect
claims against vaccine manufacturers brought by plaintiffs who
seek compensation for injury or death caused by vaccine side
effects.” (Bruesewitz, at p. 243.) From this, plaintiffs conclude
that “all vaccines, as a matter of law, are ‘unavoidably unsafe’
and ‘unavoidably defective,’ ” “cause indiscriminate death and

4 Our ruling likewise disposes of plaintiffs’ first claim in their
opening brief: that the trial court erred by not “presuming the
truth” of plaintiffs’ allegation “that all vaccines are unavoidably
unsafe.” As we have observed in the text, courts may disregard
allegations that are contrary to judicially noticed facts.

9
injury,” and therefore “states must lack the power to mandate”
their use.
Plaintiffs are, of course, quite wrong. No doubt injuries and
deaths have been caused by vaccines, and no doubt there are
cases of “unavoidable, adverse side effects.” (Bruesewitz, supra,
562 U.S. at p. 230.) This does not change the pertinent point: as
Bruesewitz tells us, “the elimination of communicable diseases
through vaccination became ‘one of the greatest achievements’ of
public health in the 20th century.” (Id. at p. 226; see id. at p. 245
(conc. opn. of Breyer, J.) [“routine vaccination is ‘one of the most
spectacularly effective public health initiatives this country has
ever undertaken’ ”].) But “these gains are fragile” and “[e]ven a
brief period when vaccination programs are disrupted can lead to
children’s deaths.” (Id. at p. 246 (conc. opn. of Breyer, J.).)
In short, it has been settled since 1905 in Jacobson, supra,
197 U.S. 11, “that it is within the police power of a State to
provide for compulsory vaccination.” (Zucht v. King (1922) 260
U.S. 174, 176; see also French v. Davidson (1904) 143 Cal. 658,
662 [“When we have determined that the act is within the police
power of the state, nothing further need be said. The rest is to be
left to the discretion of the law-making power. It is for that
power to say whether vaccination shall be had as to all school
children who have not been vaccinated all the time . . . .”]; ibid.
[“ ‘Special burdens are often necessary for general benefits.’ ”].)
Nothing in Bruesewitz changes any of these principles.
We address plaintiffs’ causes of action in the order asserted
in the complaint.

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 i. The free exercise of religion
(Cal. Const., art. I, § 4)
Plaintiffs cite no pertinent authority for their assertion that
Senate Bill No. 277 “violates freedom of religion.” It does not.
As a preliminary matter, we note that three of the six
plaintiffs describe themselves as Christians, two of whom are
opposed to the use of fetal cells in vaccines; the third has children
who have had most of the recommended vaccinations. The other
three plaintiffs allege nothing about any religious basis for their
objection to vaccination. A belief that is “philosophical and
personal rather than religious . . . does not rise to the demands of
the Religion Clauses.” (Wisconsin v. Yoder (1972) 406 U.S. 205,
216 (Yoder).)
Setting that point aside, in Phillips v. City of New York (2d
Cir. 2015) 775 F.3d 538 (Phillips), the court held that “mandatory
vaccination as a condition for admission to school does not violate
the Free Exercise Clause.” (Id. at p. 543.) In Phillips, New York
law required that students be immunized against various
vaccine-preventable illnesses, and provided medical and religious
exemptions. (Id. at p. 540.) Phillips further stated: “New York
could constitutionally require that all children be vaccinated in
order to attend public school. New York law goes beyond what
the Constitution requires by allowing an exemption for parents
with genuine and sincere religious beliefs. [T]he State could bar
[plaintiffs’] children from school altogether.” (Id. at p. 543.)
Phillips relied on the high court’s “persuasive dictum” in
Prince v. Massachusetts (1944) 321 U.S. 158. In Prince, the court
observed: “[T]he family itself is not beyond regulation in the
public interest, as against a claim of religious liberty. [Citations.]
And neither rights of religion nor rights of parenthood are beyond

11
limitation. . . . [The state’s] authority is not nullified merely
because the parent grounds his claim to control the child’s course
of conduct on religion or conscience. Thus, he cannot claim
freedom from compulsory vaccination for the child more than for
himself on religious grounds. The right to practice religion freely
does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death.”
(Prince, at pp. 166-167, fn. omitted [upholding conviction for child
labor law violation against a free exercise of religion claim].)
Even if we were to assume that laws requiring vaccination
substantially burden the free exercise of religion and therefore
merit strict scrutiny, plaintiffs’ claim fails. (Workman v. Mingo
County Board of Education (4th Cir. 2011) 419 Fed.Appx. 348,
353 [West Virginia’s mandatory immunization program
withstands strict scrutiny].) Citing Jacobson and Prince,
Workman rejected the contention “that because West Virginia
law requires vaccination against diseases that are not very
prevalent, no compelling state interest can exist.” (Workman, at
p. 353.) “On the contrary, the state’s wish to prevent the spread
of communicable diseases clearly constitutes a compelling
interest.” (Ibid., see id. at p. 354 [conclusion that mandatory
vaccination as a condition of school admission does not
unconstitutionally infringe the right to free exercise “is
buttressed by the opinions of numerous federal and state courts
that have reached similar conclusions in comparable cases,”
citing cases].)
We agree with these authorities, and plaintiffs point to no
pertinent authority to the contrary. Plaintiffs cite Yoder, supra,
406 U.S. 205, but Yoder does not assist plaintiffs; it concerned
compulsory school attendance, not immunization against

12
contagious diseases. And, the court pointed out that the case was
“not one in which any harm to the physical or mental health of
the child or to the public safety, peace, order, or welfare has been
demonstrated or may be properly inferred,” and that a parent’s
power, “even when linked to a free exercise claim, may be subject
to limitation under Prince if it appears that parental decisions
will jeopardize the health or safety of the child, or have a
potential for significant social burdens.” (Id. at pp. 230, 233-234.)
Accordingly, plaintiffs’ free exercise claim has no merit.
ii. The right to attend school
(Cal. Const., art. IX, § 5)
The California Constitution provides for “a system of
common schools by which a free school shall be kept up and
supported in each district . . . .” (Cal. Const., art. IX, § 5.) While
education is not a fundamental right under the federal
Constitution, our Supreme Court has held that education is a
“ ‘fundamental interest.’ ” (Serrano v. Priest (1971) 5 Cal.3d 584,
608-609 (Serrano).) Serrano struck down a public school
financing scheme as violating equal protection guaranties
“because it discriminated against a fundamental interest –
education – on the basis of a suspect classification – district
wealth – and could not be justified by a compelling state interest
under the strict scrutiny test thus applicable.” (Butt v. State of
California (1992) 4 Cal.4th 668, 682 [describing Serrano].)
Plaintiffs cite Serrano to support their claim that Senate
Bill No. 277 violates their constitutional right to attend school,
but fail to explain its application here. There is no “suspect
classification” underlying Senate Bill No. 277. But even if we
assume the strict scrutiny test should be applied to any law
affecting the fundamental interest in education, Senate Bill

13
No. 277 would pass that test. One court has already so held, and
we agree with its analysis. (Whitlow v. Cal. Dept. of Education
(S.D.Cal. 2016) 203 F.Supp.3d 1079 (Whitlow) [denying motion to
preliminarily enjoin the state from enforcing Sen. Bill No. 277].)
As Whitlow points out, federal and state courts, beginning
with Abeel, have held “either explicitly or implicitly” that “society
has a compelling interest in fighting the spread of contagious
diseases through mandatory vaccination of school-aged children.”
(Whitlow, supra, 203 F.Supp.3d at pp. 1089-1090, citing cases.)
That interest exists “regardless of the circumstances of the day,
and is equally compelling whether it is being used to prevent
outbreaks or eradicate diseases.” (Id. at p. 1090.) As stated in
the statute on immunization requirements, the state’s objective is
“the eventual achievement of total immunization of appropriate
age groups against [specified] childhood diseases.” (§ 120325,
subd. (a).)
Plaintiffs allege in their complaint that Senate Bill No. 277
is not narrowly tailored to meet the state’s interest, because there
are less restrictive alternatives (such as alternative means
(unspecified) of immunization, and quarantine in the event of an
outbreak of disease). This argument fails, of course, as
compulsory immunization has long been recognized as the gold
standard for preventing the spread of contagious diseases. As is
noted in the legislative history, studies have found that “when
belief exemptions to vaccination guidelines are permitted,
vaccination rates decrease,” and community immunity wanes if
large numbers of children do not receive required vaccinations.
(Assem. Com. on Health, Analysis of Sen. Bill No. 277, supra,
p. 5.)

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 In short, as we have already pointed out, states may impose
vaccination requirements without providing religious exemptions.
We agree with Whitlow’s conclusion: “The right of education,
fundamental as it may be, is no more sacred than any of the other
fundamental rights that have readily given way to a State’s
interest in protecting the health and safety of its citizens, and
particularly, school children,” and “removal of the [personal
beliefs exemption] is necessary or narrowly drawn to serve the
compelling objective of SB 277.” (Whitlow, supra, 203 F.Supp.3d
at p. 1091.)
iii. Equal protection (Cal. Const., art. I, § 7)
In their complaint, plaintiffs alleged Senate Bill No. 277
violates the equal protection clause by discriminating “based on
vaccination status.” On appeal, plaintiffs tell us Senate Bill
No. 277 also discriminates based on multiple other
classifications, such as “home-based vs. classroom-based
students,” “medically exempt students vs. students without
medical exemptions,” children with individualized education
plans and those without, and so on. Plaintiffs cite no authority
suggesting that any of these classifications gives rise to equal
protection concerns, and we are aware of none.
Consequently, we confine ourselves to pointing out that in
1904, our Supreme Court rejected a 14th Amendment challenge
to the state’s mandatory vaccination law, finding in it “no
element of class legislation.” (French v. Davidson, supra, 143
Cal. at p. 662.) The court observed: “It needs no argument to
show that, when it comes to preventing the spread of contagious
diseases, children attending school occupy a natural class by
themselves, more liable to contagion, perhaps, than any other
class that we can think of. This effort . . . was for the benefit and

15
protection of all the people . . . . It in no way interferes with the
right of the child to attend school, provided the child complies
with its provisions.” (Ibid.)
The statutory classifications and exemptions plaintiffs
dispute do not involve similarly situated children, or are
otherwise entirely rational classifications. For a discussion
delineating, and rejecting, equal protection claims based on these
categories, see Whitlow, supra, 203 F.Supp.3d at pages 1087-
1088.
iv. Due process
(Cal. Const., art. I, § 7)
Next, plaintiffs contend Senate Bill No. 277 is void for
vagueness under California’s due process clause. Their argument
is that the Legislature’s goal – “[a] means for the eventual
achievement of total immunization of appropriate age groups”
against the specified childhood diseases – is unconstitutionally
vague because “nobody knows what it means.” Plaintiffs also
contend the medical exemption requirements are
unconstitutionally vague and “violative of due process.”
We have no difficulty perceiving the legislative goal.
Indeed, it is nothing new – the goal of “total immunization” has
been stated in section 120325 since its passage in 1995, when the
Legislature reorganized and clarified portions of the Health and
Safety Code. (Sen. Bill No. 1360, Stats. 1995, ch. 415.) As for the
claim of vagueness in the medical exemption, plaintiffs make no
argument at all, simply stating in a single sentence that the
requirements are vague. That does not constitute a proper
appellate argument. Moreover, plaintiffs offer no authorities
describing the principles of vagueness in constitutional law,
much less how those principles could apply to their claims. They

16
do not. “A statute is void for vagueness if persons of common
intelligence must guess as to its meaning and differ as to its
applications.” (Schweitzer v. Westminster Investments, Inc. (2007)
157 Cal.App.4th 1195, 1206.) The medical exception (quoted in
fn. 2, ante) on its face is “sufficiently clear to give fair warning of
the . . . required conduct.” (Schweitzer, at p. 1206.)
v. Section 24175, subdivision (a)
Finally, plaintiffs alleged a violation of section 24175,
subdivision (a). That statute provides that no one may be
subjected to a medical experiment without his or her informed
consent. (§ 24175, subd. (a).) A medical experiment includes
“[t]he . . . penetration . . . of tissues of a human subject . . . in the
practice . . . of medicine in a manner not reasonably related to
maintaining or improving the health of the subject or otherwise
directly benefiting the subject.” (§ 24174, subd. (a).) Plaintiffs
tell us that “all vaccines are ‘medical experiments.’ ”
This claim is patently erroneous. The applicable
authorities – legal and scientific – clearly show that
immunization is reasonably related to maintaining the health of
the subject of the immunization as well as the public health.
c. No leave to amend
Plaintiffs state – in their reply brief – that they should be
granted leave to amend. That request is untimely as it was not
made in their opening brief, but in any event plaintiffs do not
explain how they could amend the complaint to cure its defects.
The trial court did not err in sustaining the demurrer without
leave to amend.

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 DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P .J.

ROGAN, J. *

* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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