Updates on

November 21, 2019 Update
Update posted by Rick Jaffe Esq On Nov 21

On December 3, 2019, the San Francisco Superior Court Law and Motion Judge will decide whether to dismiss the Stoller lawsuit, as the Medical Board has requested in its motion to dismiss (called a "demurrer" in California state practice) or let it proceed to discovery.

The main basis of the Board's demurrer is "failure to exhaust administrative remedies." It is a basic tenet of administrative practice that once an administrative agency starts a case against someone/some entity, the person or entity has to litigate the issues in that administrative case, and the courts only get involved on an appeal/review of the administrative agency's action. Of course, we brought in the Medical Board into the lawsuit before the Board commenced its administrative case, but that probably has no legal significance. Now that the board has filed its case, the exhaustion principle applies.

However, California law recognizes some exceptions to the exhaustion doctrine. The exception we are basing our defense on is the "important public policy exception." We can't think of any current public policy issue which is more important than which children are entitled to receive and hold on to their medical exemptions given under SB 277, and which could be challenged/revoked under SB 276/714.

The "important public policy" exception has not yet been asserted against the Medical Board of California, but it has been used to allow lawsuits to continued against other administrative agencies despite a pending administative case.

In terms of national context, every lawsuit that I am aware of which has been filed against a medical board during the pendency of a board proceeding has been dismissed, and the dismissal has been affirmed by the appellate court. If we do manage to avoid dismissal, it would be a first. So obviously, this is an uphill battle, but if there is any case against a medical board which should be allowed to proceed, this is the one. As to why I think so, you can read my Memo of Law which I submitted to the Court. It's on my web site attached to the notice of this update.

Stay Tuned for an announcement about the Stoller medical board case.

Rick Jaffe, Esq.


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