DHILLON v. JOHN MUIR HEALTHAppellants’ Petition for ReviewCal.February 18, 2015 S 224479 — COPY S IN THE SUPREME COURT OF CALIFORNIA JATINDER DHILLON, Plaintiff and Respondent, Uv. JOHN MUIR HEALTHetal., Defendants and Appellants. AFTER A DECISION BY THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE CASE NO. A143195 PETITION FOR REVIEW SUPREME COURT HORVITZ & LEVY LLP PL *DAVID S. ETTINGER(Bar No. 93800) H. THOMAS WATSON(BarNo.160277) FEB 18 2085 15760 VENTURA BOULEVARD, 18TH FLOOR ENCINO, CALIFORNIA 91436-3000 Prank A. MeGuire Clerk (818) 995-0800 »- FAX: (818) 995-3157 PY apap tes WIGOUYdettinger@horvitzlevy.com htwatson@horvitzlevy.com DiCARO, COPPO & POPCKE HOOPER, LUNDY & BOOKMAN,PC CARLO COPPO(BAR No.34226) ROSS E. CAMPBELL (Bar No. 75998) MICHAEL R. POPCKE (Bar No. 122215) 575 MARKET STREET, SUITE 2300 SHELLEY A. CARDER(BAR No. 137755) SAN FRANCISCO, CALIFORNIA 94105 2780 GATEWAY ROAD (415) 875-8492 » FAX: (415) 875-8519 CARLSBAD, CALIFORNIA 92009-1730 rcampbell@health-law.com (760) 918-0500 * FAX:(760) 918-0008 carlo.coppo@dcp-law.com michael.popcke@dcp-law.com shelley.carder@dcp-law.com ATTORNEYS FOR DEFENDANTS AND APPELLANTS JOHN MUIR HEALTH, BOARD OF DIRECTORS OF JOHN MUIR HEALTH TABLE OF CONTENTS Page TABLE OF AUTHORITIES... cccccsscccesecceeesssseescesseessseneessass il ISSUE PRESENTED 000... eccccccctccesseeeesseeeesesssseeeeessessesseseaess 1 INTRODUCTION0ceccccccceesnecesseeesseseeeeseeessseeeceseeesssseseceseeeens 1 STATEMENT OF THE CASE... ccccccccccsccccessecseeesesseresseueesneess 4 A. The medical staffs at John Muir MedicalCenter require Dr. Dhillon to attend an anger management class. After he refuses to comply for more than a year, they suspend his clinical privileges for 14 days. 00... cccccccccscceeesesessessessseeereeeees 4 B. Dr. Dhillon takes the matter to court, petitioning for a writ of administrative mandamus.........0.........0.. 6 C. The superior court grants Dr. Dhillon’s petition in part anddeniesit in part, ordering John Muir to conduct a judicial review hearing both on the underlying complaint against Dr. Dhillon and on the subsequent (already completed) 14-day SUSPENSION.........ccccccccccsssseessneeeeecseescseecuesseucseseeceecesnenaess 7 D. John Muir files this appeal and also a writ petition, because case law is unclear whether the superior court's judgment and order are appealable. The Court of Appeal summarily denies the writ petition and then dismisses the instant appealas not having been taken from an appealable judgment or order...............ccccccssceeeeeeeeeeeees 8 LEGAL ARGUMENTieeececceceseceeeesteeeseeeeeeseeeceesseessseesanesats 10 I. THE COURT OF APPEAL’S DISMISSAL OF THE APPEAL WAS WRONG. REVIEW IS NECESSARY BECAUSE THE SUPERIOR COURT'S ORDER AND JUDGMENT ARE APPEALABLE, AND BECAUSE THIS COURT SHOULD RESOLVE A CONFLICT IN THE CASE LAW ON THE ISSUE...cccceeeeeereees 10 A. A grant and transfer, or a grant and an opinion, is needed to remedy the improper dismissal of the appeal... ccceceessesccceccecseeeesceeserssessssesseesesenees 10 B. The order and judgment are appealable because they leave nothing furtherfor the superior court CO AECIGE. ........ccceccccceecccccccessseceeeeeuuseseusceesesscsesssssesecsecs 12 C. The order and judgmentare appealable asfinal determinationsof a collateral matter..........00000000. 19 II. IT WOULD BE UNPRECEDENTED TO NOT ADDRESS THE MERITSIN A WRITTEN OPINION...... 20 CONCLUSIONoooceceeceeneeesecneeenneeseeaeeesseeeesseeenseeenseenseees 21 CERTIFICATE OF WORD COUNT....00...0.ceccccceeeseteeteeeenseeeenes 22 rH TABLE OF AUTHORITIES Page(s) Cases Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424 00.ceeesceccceseseeeeeres passim Bode v. Los Angeles Metropolitan Medical Center (2009) 174 Cal.App.4th 1224 oo....ccccccccccccccccccccccceeccesessntneeeenees 17 Bollengter v. Doctors Medical Center (1990) 222 Cal.App.3d 1115...eccccccsseeececeeeeeeeeeseeees 12,15 Bolsa Chica Land Trust v. Superior Court (1999) 71 CalApp.4th 493 ......... cc cccceccesssesssceeeeeeeeessteeeees 13, 20 California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d Livecccccccccecessssseeseeeeceeeeeeeeseseseeesseeas 10, 12 Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727 .........cccccccccecsessessssessescseeeeecessateeeeseees 14 Carson Gardens, L.L.C. v. City of Carson Mobilehome Park Rental Review Bad. (2006) 135 CalApp.4th 856 ..........cccccccccccccceeeeeeeseeeseeeees 3, 14, 15 City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964.0... ..ccccecccecceesesssseceeeeeeeestseeees 14, 15 City of Los Angeles v. Superior Court (Feb. 10, 2015, B250805) ___ Cal.App.4th __ [2015 WL 535657]...........ccccccccccssssseeccesseseesssseseneceeseeeessteesees 17, 20 Cobb v. University of So. California (1995) 32 Cal.App.4th 798 00... ccccccccccecceceeeeesssaaeeeeeeseeseesaes 17 Connell v. Superior Court (1997) 59 Cal.App.4th 382 ........ccccccccccccsesesseessensseceeeeessteceseeees 16 Gillis v. Dental Bd. of California (2012) 206 Cal.App.4th 311oeeeeeeeees 2, 10, 13, 14, 20 lll Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786 .......c.ccceccccccccccecccceececessseeceseeeeveneees 17 Griset v. Fair Political Practices Com. (2001) 25 Cal4th 688 .0....cccccccceeeescescccensesesesssssssseccenseeseeees 12 Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 CalApp.3d 59.0... ccccecssssssseceeeeeeeccssseteessssreeeesess 17 In re Aaron R. (2005) 130 Cal.App.4th 697 .00.......cceeecccceeceeseesesseeseeeeeeees 19 Leone v. Medical Board (2000) 22 Cal.4th 660 oo...ccc ecceececseeececceceeeeeeeeaens 18, 19 Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348 o.......cc ec cccccceeeecssseseessreeeeee 3, 15 Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259... cccccccccesssssseeeeeesesssseceesesseerees 15 Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887 ..........cccccccccsssesssseeeeeesssecsesesssnenees 19 Ng v. State Personnel Bad. (1977) 68 CalApp.3d 600 00.0... ccccccsessssssseeeseecesseeseeesntreees 17 People v. Karriker (2007) 149 CalApp.4th 768 o.oo... .ccccccccccccccccccccccceestseeeesseceseees 12 Powers v. City of Richmond (1995) 10 Cal.4th 85 vccccccccccccccsscscssecsecsessessesesessessesstessesseesessees 18 Public Defenders’ Organization v. County of Riverside (2003) 106 Cal.App.4th 1408 oo... cccecccsseceeecessseeseeeeeees 3,12 Quintanar v. County of Riverside (2014) 230 Cal.App.4th 1226 oo... cccccessseececeeeseteesessteeeees 14 Teal v. Superior Court (2014) GO Cal.4th 595 oo... cccccccccceeeceeeeeeeeseeseeeeanasseseeeeeees 12 lv U.D. Registry, Inc. v. Municipal Court (1996) 50 Cal.App.4th 671 ....... cc ceeeccccceececcceececesssessssssseeeeeeees 12 Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 11838 ......eeecccccececeeeeseseessnees 13, 20 Constitutions Cal. Constitution, art. VI, § 11 wo...eeeeccccsesseceseseseesenssees 18 Statutes Business and Professions Code, § 2337..............ccccccssssessseesessseeeees 18 Code of Civil Procedure § 904.1, subd. (a)(1) oo... eee ccceccecccceessssseeeeeeeceeeseceesssseeevenses 12, 18 § LOOT ooo cccccccescssececeeeeessesseeeeesesessssseescecsceusescesseuseceseessecesees 15 Rules of Court Cal. Rules of Court PUle 8.50O(b)(1) .0..... eee eeeeeeesseccccececcceececeececesceeceusecsessccssseacseeeeeesees 11 rule 8.500(b)(A) oo... cccccecceccccesceeeeececceeccesccesceueuuceeseceeeessessssneneeees 11 Miscellaneous 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 148.000... 13 IN THE SUPREME COURT OF CALIFORNIA JATINDER DHILLON, Plaintiff and Respondent, v. JOHN MUIR HEALTHetal., Defendants and Appellants. PETITION FOR REVIEW ISSUE PRESENTED Whetherthe Court ofAppeal erroneously dismissed an appeal as taken from a nonappealable superior court order and judgment, where the order and judgment finally determined a petition for administrative mandamus (so additional superior court proceedings were neither contemplated nor mandated) but required further | administrative proceedings. INTRODUCTION John Muir Health andits boardof directors(collectively, John Muir) operate medical centers in Walnut Creek and Concord. After John Muir’s medical staffs took minor disciplinary action against one of the staff physicians, Dr. Jatinder Dhillon, Dr. Dhillon filed a petition for administrative mandamusin the superior court to challenge the medical staffs’ action. The superior court entered an order and a judgment granting the petition in part — it ordered John Muirto initiate a Judicial Review Committee (JRC) processto review the medical staffs’ action — and denyingthepetition in all . other respects. Believing that the elaborate and burdensome JRC process wasnot required by statute or hospital bylaws and wasparticularly ill-suited for the minor disciplinary action taken against Dr. Dhillon, John Muir appealed from the superior court’s order and judgment. Because case law is unclear whether the order and judgmentare appealable, John Muiralsofiled a writ petition. The Court of Appeal summarily denied the writ petition and then dismissed the instant appeal as having been taken from a nonappealable order. This court should grant review and reverse the dismissal of the appeal. The Court of Appeal concluded that “[t]he superior court’s order remanding the matter to John Muir Healthis not a final, appealable order,” andit relied on a line of cases tracing back to Board ofDental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424 (Sedler). (Appendix A.) Those cases hold that “ ‘[a] remand order to an administrative body is not appealable.’” (Gillis v. Dental Bd. of California (2012) 206 Cal.App.4th 311, 318.) However, the superior court’s order and judgment finally determined Dr. Dhillon’s administrative mandamus petition, leaving nothing more for the court to decide. Under those circumstances,the general rule is that the order and judgmentare appealable. (See, e.g., Public Defenders’ Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409 [“an order granting or denying a petition for an extraordinary writ constitutes a final judgmentfor purposesof an appeal”].) Moreover, other opinions — in direct contrast to the Sedler line of cases — specifically hold to be appealable those judgments granting writs that remand matters for further administrative proceedings. (See, e.g., Carson Gardens, L.L.C. v. City of Carson Mobilehome Park Rental Review Bd. (2006) 135 Cal.App.4th 856, 866.) In fact, the opinions explain that an appeal must be taken in those situations, on pain of forfeiting any challenge to the superior court’s ruling: “Whenthetrial court issues its judgment granting a peremptory writ, the respondent has two choices: to appeal that judgment or to comply with it. If the respondent elects to comply with the writ, it waives its right to appeal from the judgment granting the writ petition.” (Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354.) In the present case, the Court ofAppeal has eliminated John Muir’s choice. Despite appealing the judgment requiring a JRC proceeding, John Muir will be forced to comply with that judgment without ever having it reviewed by an appellate court unless this court overturns the dismissal of the appeal. Once John Muir conducts the JRC proceeding, it will become moot whether John Muir should have been burdened with that proceeding. The Sedler line of cases is incompatible with the general rule of appealability in administrative mandamuscases and with the specific decisions holding appealable those judgments that remand for further administrative proceedings. As explained below, the Sedler line is wrong. Review is necessary to disapprove this erroneousline of appellate authority. At the very least, even if this court declines to issue an opinion resolving the conflict in the case law, it should grant review and direct the Court ofAppeal to decide the merits of John Muir's appeal. STATEMENT OF THE CASE A. The medical staffs at John Muir Medical Center require Dr. Dhillon to attend an anger management class. After he refuses to comply for more than a year, they suspendhis clinical privileges for 14 days. John Muir Health runs John Muir Medical Center. There are two medical centers, or campuses, one at Walnut Creek and one at Concord. (See, e.g., 1 AA 37; 2 AA 194, 304.) Each campushasits own medical staff and medical staff leadership, the Medical Executive Committee (MEC). Each medical staff also has its own bylaws, but both bylaws are the same as relevant here. (See 2 AA 186, 296.) At the request of medical staff member Dr. Jatinder Dhillon, an ad hoc committee of physician members from both campuses comprehensively investigated a complaint filed against Dr. Dhillon by another physician, who claimed Dr. Dhillon had acted in a verbally abusive and physically aggressive manner toward her during a physicians’ administrative meeting. (3 AA 466-467, 487, 543-565, 568, 599-600, 601-602, 606, 617, 620-621.) The committee concluded in a written report that her complaint had merit, that Dr. Dhillon’s behaviorat the meeting “was not an isolated incident,” and that Dr. Dhillon had in fact violated a medical staff code of conduct. (3 AA 568, 599, 601.) Based on the committee’s investigation and report, both campuses’ MEC’s unanimously determined the complaint against Dr. Dhillon was valid and they required him to attend an anger managementprogram for healthcare professionals at the University of California San Diego. (3 AA 568, 572, 602, 606, 617, 620-621.) Additionally, after he completed the program, Dr. Dhillon would be required for one year to “follow up with the Physician Well Being Committee.” (3 AA 568, 572, 602.) The MEC’s initially gave Dr. Dhillon eight months to complete the anger managementclass. (3 AA 568, 602, 606, 617, 620-621.) Dr. Dhillon repeatedly refused, even after the compliance period was extendedby six months. (3 AA 577, 579, 588, 607, 615, 620-621.) The chiefs of staff warned Dr. Dhillon that failing to complete the anger managementclass would lead to a limited suspension — “just under 14 full days” — of his clinical privileges. (8 AA 589.) A lawyer for Dr. Dhillon and also Dr. Dhillon himself demanded a hearing before a Judicial Review Committee (JRC) at the medical centers. (38 AA 592, 594.) The chiefs of staff explained that no additional hearing was available. (3 AA 595.) Whenthe extendedperiod for compliance expired, Dr. Dhillon hadstill not attended the required anger managementclass. (3 AA 620-621.) Because ofthis noncompliance, the MEC’s suspendedhis clinical privileges at the Medical Centers for 14 days. (3 AA 596, 620-621, 701.) The MEC’s reported to the medical centers’ single governing body that, because of the limited length of the suspension, the suspension was not reportable to the Medical Board of California andit did not give Dr. Dhillon any hearing rights under the medical staff bylaws. (3 AA 620-621.) B. Dr. Dhillon takes the matter to court, petitioning for a writ of administrative mandamus. On the same day that his 14-day suspension began, Dr. Dhillon filed in superior court a petition for a writ of administrative mandamus. (1 AA 1.) A month later, he filed an amendedpetition. (1 AA 7.) In the petition, Dr. Dhillon claimed that the ad hoc committee investigation (which John Muir had conducted at Dr. Dhillon’s behest) “was a sham,from start to finish” (1 AA 11) and that “[t]he grossly excessive penalties imposed on [him] were a manifest abuse of discretion” (1 AA 18). The superior court would later reject these allegations. Dr. Dhillon’s amended petition requested a variety of remedies, including (1) vacating the (already concluded) 14-day suspension ofhis clinical privileges, (2) requiring a JRC hearing on the underlying complaint against him and on the limited (already concluded) suspension, (3) a finding that the ad hoc committee’s conclusions were not supported by the evidence, (4) an order restraining the medical centers from communicating to anyonethat Dr. Dhillon has had “ ‘communication/professional conduct’ ”issues, and (5) an order allowingDr. Dhillon to proceed with “an immediate tort suit for damages.” (1 AA 19.) C. The superior court grants Dr. Dhillon’s petition in part and deniesit in part, ordering John Muir to conduct a judicial review hearing both on the underlying complaint against Dr. Dhillon and on the subsequent (already completed) 14-day suspension. Dr. Dhillon moved the superior court to grant the relief requestedin his petition. (1 AA 52.) After a hearing (RT 1-16), the superior court granted Dr. Dhillon’s motionin part and deniedit in part (4 AA 776-779). The court entered an order on August 6, 2014, and then a judgment on September 8. (4 AA 782, 797.) ~ The court’s August 6 order, and its September 8 judgment, stated that John Muir “must provide [Dr. Dhillon] with Judicial Committee Review and appellate rights” under the medical staff bylaws. (4 AA 783, 797.) The court found that Dr. Dhillon was entitled to a JRC hearing “on both the initial and underlying complaint as well as the subsequent suspension.” (Jbid.) It also found that Dr. Dhillon “was deprived of a due process when [the medical centers] suspended his clinical privileges for less than 13 days [sic] without providing him a [JRC] hearing.” (4 AA 783, 797-798.) The superior court denied all other relief asked for by Dr. Dhillon, including his request for a finding that the ad hoc committee’s findings were not supported by substantial evidence. (4 AA 782-783.) The court’s order and judgment were final adjudications that resolvedall disputes betweenthe parties, leaving nothing morefor the court to decide. D. John Muirfiles this appeal and also a writ petition, because case law is unclear whether the superior court’s judgmentand orderare appealable. The Court ofAppeal summarily denies the writ petition and then dismisses the instant appeal as not having been taken from an appealable judgmentor order. John Muirfiled both a notice of appeal (4 AA 799) and a writ petition (John Muir Health v. Superior Court, Court ofAppeal case number A143256) to challenge the superior court’s order and its judgment. John Muir explained it was doing both because there is conflicting case law about whether the superior court’s order and its judgment are appealable or reviewable only by writ petition. (Petition for Writ of Mandate 1-2, 17-18.) John Muir’s notice of appeal broadly stated that “[r]espondents John Muir Health and Board of Directors of John Muir Health appeal from the final judgment andall orders that are separately appealable, including but not limited to: (1) the superior court’s order — filed on or about August 6, 2014 — granting in part petitioner Jatinder Dhillon’s motion for peremptory administrative writ, and (2) the superior court’s judgmenton writ of mandate,filed on or about September8, 2014.” (4 AA 799-800.) Dr. Dhillon opposed John Muir’s writ petition on the ground the superior court’s order was appealable. (Return to Petition for Peremptory Writ of Mandate 26-27, 43-44 [John Muir Health v. Superior Court, Court ofAppeal case number A143256].) The Court of Appeal summarily denied John Muir’s writ petition.! At the same time, in this appeal, the court ordered briefing “solely addressing the issue of whether the appeal should be dismissed because the Contra Costa County Superior Court order .. . is or is not an appealable order.” (12/11/14 Order.) John Muir explained in its brief that the superior court’s judgment and order were both appealable, either as a final judgment and order or as a final determination of a collateral matter. Inhis brief, Dr. Dhillon did an unabashed about-face. After having told the Court ofAppeal that John Muir’s writ petition should be denied because the superior court’s order was appealable, Dr. Dhillon argued the appeal should be dismissed as having been taken from a nonappealable order. The Court of Appeal dismissed John Muir’s appeal. (Appendix A.) The court stated, “The superior court’s order 1 John Muir petitioned this court for review of the summary denial. (John Muir Health v. Superior Court, S223382.) The petition was denied. remanding the matter to John Muir Health is not a final, appealable order. (See Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424; see also Gillis v. Dental Board of California (2012) 206 Cal.App.4th 311, 318.) Furthermore, the order and judgment at issue here are not appealable as a final determination of a collateral matter.” (Appendix A.) LEGAL ARGUMENT I. THE COURT OF APPEAL’S DISMISSAL OF THE APPEAL WAS WRONG. REVIEW IS NECESSARY BECAUSE THE SUPERIOR COURT’S ORDER AND JUDGMENTARE APPEALABLE, AND BECAUSETHIS COURT SHOULD RESOLVE A CONFLICT IN THE CASE LAW ON THEISSUE. A. A grant and transfer, or a grant and an opinion,is needed to remedy the improper dismissal of the appeal. When a Court of Appeal improperly dismisses an appeal as taken from a nonappealable order or judgment, this court has granted review and transferred the matter to the Court of Appeal with directions to vacate the dismissal and to hearthe appeal onits merits. (See, e.g., California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 8 (California Assn. of Psychology Providers).) Indeed, a specific ground for review is “{flor the purpose of 10 transferring the matter to the Court ofAppeal for such proceedings as the Supreme Court may order.” (Cal. Rules of Court, rule 8.500(b)(4).) Review is necessary herefor that reason. There should be appellate jurisdiction in this case. The superior court issued a final order and a judgmentresolvingall disputesin thelitigation and disposingofthe entire case, John Muir filed a timely notice of appeal from both the order and the judgment, and the Legislature has not expressly limited to a writ petition the method for seeking review in the Court of Appeal of that type of order or judgment. The only reason there is any doubt about appellate jurisdiction here is because of one case — Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430 (Sedler) — and several cases that rely on it without analysis. As explained below, however, the Sedler line of cases, which the Court of Appeal followed here, should not interfere with the exercise of appellate jurisdiction. A grant and transfer order is thus warranted. But, instead of transferring the case, it would also be appropriate for this court to retain the matter for decision. As further explained below, the Sedler line of cases is incompatible with other case law on appealability, and this case presents a fundamental, threshold issue regarding appellate jurisdiction after a superior court rules on an administrative mandamuspetition. Review is thus justified as “necessary to secure uniformity of decision [and] to settle an important question of law.” (Cal. Rules of 11 Court, rule 8.500(b)(1); see Teal v. Superior Court (2014) 60 Cal.4th 595, 598 [review granted solely to decide an appealability issue].) B. The order and judgment are appealable because they leave nothing further for the superior court to decide. The general rule is that an orderor judgmentis appealable if it finally resolves all issues in a case. (See California Assn. of Psychology Providers, supra, 51 Cal.3d at p. 9 [“A judgment that leaves no issue to be determined except the fact of compliance with its terms is appealable”].) That rule has been applied specifically in cases like the present where the superior court is determining a petition for writ of administrative mandamus. Thus, the Court of Appeal in Public Defenders’ Organization v. County ofRiverside (2003) 106 Cal.App.4th 1403, 1409, held that “an order granting or denying a petition for an extraordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment.” (See also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 699 [finding appealable the denial of a petition for writ of mandate because the ruling “disposedof all issues in the action”]; People v. Karriker (2007) 149 Cal.App.4th 763, 773 [“A judgment granting a petition for writ of mandate is a final judgment appealable under Code of Civil Procedure section 904.1, subdivision (a)(1)’]; U.D. Registry, Inc. v. Municipal Court (1996) 50 Cal.App.4th 671,673 [same]; Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1122 (Bollengier) [“the superior court’s denial 12 of [the] writ petition is an appealable order’]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 148, p. 223 [“A petition in the superior court for an extraordinary writ of certiorari, mandamus,or prohibition is a special proceeding[citations], and a judgment in a special proceeding is appealable [citation]. Hence, a superior court ordereither granting or denyingthepetition is appealable ... .”}.) Underthis unremarkable case law, the superior court’s order and judgmenthere should be appealable. The superior court made a final ruling on Dr. Dhillon’s administrative mandamuspetition, granting the petition in part and denyingit in all other respects. (4 AA 782 [order], 797 [judgment].) Both the order and the judgmentfinally disposedof all the issues raised by Dr. Dhillon’s writ petition. Nothing remains for the superior court to rule on. Moreover, the order and judgment must be reviewed nowor never; the order and judgment mandate a JRC hearing process, which, once held, cannot be undone. Under somecases, however, the superior court’s orderis not appealable because,in partially granting Dr. Dhillon’s writ petition, the court ordered John Muir to conduct further proceedings, specifically, to initiate the JRC hearing process. Those cases ae ¢conclude that “‘[a] remand order to an administrative body is not appealable,’” but is reviewable by writ only. (Gillis v. Dental Bd. _ of California (2012) 206 Cal.App.4th 311, 318 (Gillis), quoting Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1139-1140 (Village Trailer Park) andciting Sedler, supra, 66 Cal.App.4th at p. 1430; see also Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 501-502 13 (Bolsa Chica).) The Court ofAppeal here cited Sedler and Gillis in dismissing John Muir’s appeal. Those casesconflict not only with the authorities discussed above that generally hold final orders and judgments in administrative mandamusproceedings are appealable, but also with opinions that specifically find appealable superior court mandamus rulings remanding for further administrative proceedings. Carson Gardens, L.L.C. v. City of Carson Mobilehome Park Rental Review Bd. (2006) 135 Cal.App.4th 856 (Carson Gardens) is a good example. In Carson Gardens, the superior court had issued a writ that remanded the matter to a rent control board for further administrative proceedings. (Carson Gardens, supra, 135 Cal.App.4th at p. 862.) The board held a new hearing and then appealed whenthesuperiorcourt ruled the board had not complied with the writ. The Court of Appeal held the board could no longer challenge the superior court’s writ because the board could have, but had not, appealed from the writ judgment that remanded the matter for further proceedings. (/d. at p. 866.) Cases consistent with Carson Gardens include Quintanarv. County of Riverside (2014) 230 Cal.App.4th 1226, 1232 Gudgment granting writ of mandate that remanded matter to hearingofficer was appealable), City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 970-971 (City of Carmel) Gudgment ordering writ that remanded proceedings was appealable), and Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 730, 733 (judgment issuing writ remanding matter for redetermination 14 of penalty was appealable). (See also Bollengier, supra, 222 Cal.App.3d at pp. 1122-1123, 1125 [denial of physician’s writ petition appealable even though there wasno final administrative decision].) In Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, the Court of Appeal said, “Whenthe trial court issues its judgment granting a peremptory writ, the respondent has two choices: to appeal that judgmentor to comply withit. If the respondent elects to comply with the writ, it waives its right to appeal from the judgment granting the writ petition.” (/d. at p. 1354; accord, City of Carmel, supra, 137 Cal.App.3d at p. 970.) The Court of Appeal’s dismissal order here — based on the Sedler line of cases — takes awaythat choice. Without the choice to appeal, the superior court’s order and judgmentare unreviewable, except possibly if John Muir refused to comply with the writ, suffered a contempt order, and then appealed from that order (see CodeCiv.Proc., § 1097; Carson Gardens, supra, 135 Cal.App.4th at pp. 867-868). The order and judgment mandate that John Muir conduct a JRC process that is time-consuming and expensive (see Mileikowsky v. West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1272 [recognizing “the burdens the hearing process imposes on busy practitioners who voluntarily serve on a reviewing panel”]), and (as John Muir would explain on appeal) required by neither statute nor hospital bylaws and inappropriate for the minor action taken against Dr. Dhillon by John Muir’s medicalstaffs. 15 This appeal is thus about process, not the result of the process. Once the administrative proceedings have occurred,it will be a moot question whether they should have occurred. Moreover, an appealfollowing completion of the administrative proceedingsis an illusory remedy. The administrative process’s result would be determined by John Muir, andit is highly unlikely that John Muir would appeal a decision that John Muir itself makes. Stated otherwise, if the superior court’s order and judgment mandating a JRC procedure is not reviewed now,it never will be. The line of cases on which the Court of Appeal here relied should not be followed. Sedler is the seminal opinion in that line, but its reasoning is faulty and all the cases following it did so without any examination of the reasoning or any mentionatall of the conflicting authority.” Sedler concerned a superior court mandamusproceeding to review a license revocation by the Board of Dental Examiners. When the superior court ordered the Board to conduct a new hearing, the Board appealed. The Court of Appeal concluded the superior court’s order was not appealable. It stated that “a remand order is not appealable,” citing just one case and giving no further explanation of its holding. (Sedler, supra, 66 Cal.App.4th at p. 1430.) However, the case Sedler cited did not involve a remand to 2 An additional opinion arguably consistent with the Sedler line of cases — but not mentioning Sedler— is Connell v. Superior Court (1997) 59 Cal.App.4th 382 (writ determining that water districts had right to reimbursement, but requiring Controller to determine amounts due, was unappealable interlocutory judgment). 16 an administrative body at all, but an appeal from a partial judgment notwithstanding the verdict that left further issues to be resolved in the trial court. (Cobb v. University of So. California (1995) 32 Cal.App.4th 798, 803-804.) In the present case, nothing remains to be adjudicated in the superior court. (Cf. City of Los Angeles v. Superior Court (Feb. 10, 2015, B250805) ___ Cal.App.4th __ [2015 WL 535657,at p. *3] (City of Los Angeles) [judgment not appealable where superior court “ ‘held in abeyance’” application for administrative writ and ordered new hearing]; Ng v. State Personnel Bd. (1977) 68 Cal.App.3d 600, 604 [remand order not appealable where superior court had continuing jurisdiction during remand].) The Sedler court also said that, in another case, it had, “without articulating the reason, treated a non-appealable remand order as a petition for writ of mandamus.” (Sedler, supra, 66 Cal.App.4th at p. 1430.) But, there was no suggestion in that earlier case that the court was treating an appeal as a writ petition; instead, the court simply decided the merits of an appeal from an order resolving an administrative mandamuspetition. (Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786.) Likely because appellate jurisdiction is clear under such circumstances, other cases similarly have, without discussing appealability, reached the merits of appeals from trial court orders issuing writs that remanded matters for further proceedings. (Bode v. Los Angeles Metropolitan Medical Center (2009) 174 Cal.App.4th 1224, 1232; Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 Cal.App.3d 59, 64.) 17 There are a limited numberof final orders and judgments that cannot be appealed and that are reviewable only by writ petition. (See, e.g., Leone v. Medical Board (2000) 22 Cal.4th 660 (Leone); Powers v. City of Richmond (1995) 10 Cal.4th 85.) However, as far as we cantell, all those orders and judgments are made nonappealable by the Legislature. The Sedler line of cases might present the only situation where a court has designated a final order or judgment as nonappealable. But courts can’t do that. The Legislature has the power to require that appellate review of certain final orders or judgments be by writ. (See Leone, supra, 22 Cal.4th at p. 668 [state constitution “is properly construed as generally permitting the Legislature to enact laws .. . specifying that an extraordinary writ petition shall be the method for obtaining appellate review of a superior court judgment in an administrative mandate proceeding’.)? However, there is no authority allowing a court to so limit appellate review of a final order or judgment that is generally appealable under Code of Civil Procedure section 904.1, subdivision (a)(1). Such a limitation would violate the “appellate jurisdiction” provision ofthe state Constitution (Cal. Const., art. VI, § 11 [courts of appeal have appellate jurisdiction when superior courts have 3 The administrative mandate proceeding in Leone that the Legislature made reviewable only by writ petition is one following action by the Medical Board of California to revoke, suspend, or restrict a physician’s license. (See Bus. & Prof. Code, § 2337.) That type ofproceedingis obviously different than the one in the present case. There is no comparable legislative limitation on appellate review here. 18 original jurisdiction”]): “A reviewing court’s obligation to exercise the appellate jurisdiction with which it is vested, once that jurisdiction has been properly invoked, is established and not open to question.” (Leone, supra, 22 Cal.4th at p. 669; see also Jn re Aaron R. (2005) 130 Cal.App.4th 697, 704 [“the Judicial Council does not have powerto restrict the statutory right of appeal in promulgating rules of court”].) “[T]he right of appeal is entirely statutory.” (Leone, supra, 22 Cal.4th at p. 668.) Because nostatute permits a reviewing court to treat a final judgmentor order as nonappealableif it requires an administrative hearing, the Court of Appeal should “exercise the appellate jurisdiction with whichit is vested” and hear John Muir’s appealon its merits. C. The order and judgment are appealable as final determinationsof a collateral matter. “*“A necessary exception to the one final judgment rule is recognized wherethereis a final determination of somecollateral matter distinct and severable from the general subject of the litigation. If, e.g., this determination requires the aggrieved party immediately to pay moneyor perform someotheract, heis entitled to appeal even thoughlitigation of the main issues continues. The determination is substantially the same as a final judgmentin an 299 92 independentproceeding. (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 898.) 19 If the superior court’s order and judgmentare not appealable as a final judgment (although webelieve they are, as explained above), they should be appealable as a final determination of a collateral matter. The order and judgmentfinally determine the issue whether John Muir must conduct a JRC hearing and, by resolving the issue in the affirmative, the court has required John Muir to “perform [the] act” of providing a hearing. II. ITWOULD BE UNPRECEDENTED TO NOTADDRESS THE MERITS IN A WRITTEN OPINION. The superior court’s order and judgment are appealable, as explained above. However,if they are not, the Court ofAppealstill should have decided the merits of John Muir’s appealin a written opinion. Not to do so would be unprecedented. Even the Sedlerline of cases issued written opinions deciding the merits of the matters before them. Although concluding that the superior court orders before them were not appealable, the Courts of Appeal nonetheless all treated the appeals as writ petitions. (Gillis, supra, 206 Cal.App.4th at p. 318; Village Trailer Park, supra, 101 Cal.App.4th at p. 1140; Bolsa Chica, supra, 71 Cal.App.4th at p. 502; Sedler, supra, 66 Cal.App.4th at p. 1425; see also City of Los Angeles, supra, __ Cal.App.4th __ [2015 WL 535657, at p. *3].) A refusal to determine in a written opinion the merits of a challenge to the type of superior court order and judgmenthere is unsupported by any authority. 20 CONCLUSION Forthe reasonsstated, this court should grant review and — either with or without an opinion — transfer the case to the Court ofAppeal with directions to vacate the dismissal of the appeal and to hear the appealon its merits. February 17, 2015 HORVITZ & LEVY LLP DAVID S. ETTINGER H. THOMAS WATSON DiCARO, COPPO & POPCKE CARLO COPPO MICHAEL R. POPCKE SHELLEY A. CARDER HOOPER, LUNDY & BOOKMAN,PC ROSS E. CAMPBELL By: ALVA,Ea David S. Ettiflger Attorneys for Defendants and Appellants JOHN MUIR HEALTH, BOARD OF DIRECTORSOF JOHN MUIR HEALTH 21 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(1).) Thetext of this petition consists of 4,842 words as counted by the Microsoft Word version 2010 word processing program used to generate thepetition. Dated: February 17, 2015 LDASloe David S. Ettinger 22 Exhibit A oO COPY IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT Court ofAppealFirst Appellate District DIVISION THREE FILED JAN 9 2015 JATINDER DHILLON, Diana Herbert, Clerk Plaintiff and Respondent, | 4143195 by_______Deputy Clerk V. JOHN MUIR HEALTHet al., Contra(ost county 313 . Ct. No. -13-] Defendants and Appellants. mper Shwe °3) THE COURT:* On December11, 2014 the court requested that the parties brief “the issue of whether the appeal should be dismissed because the Contra Costa County Superior Court order, filed on August 6, 2014... is or is not an appealable order.” Having reviewed the parties’ briefs, on its own motion, the court now dismisses the appeal. The superior court’s order remanding the matter to John Muir Healthis not a final, appealable order. (See Board ofDental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424; see also Gillis v. Dental Board ofCalifornia (2012) 206 Cal.App.4th 311, 318.) Furthermore,the order and judgmentat issue here are not appealable as a final determination ofa collateral matter. atea: JAN - 9 2015 WicGuiness, P.J. ,, ” McGuiness, P.J., Pollak, J., & Jenkins,J. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeof service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On February 17, 2015, I served true copies of the following document(s) described as PETITION FOR REVIEWontheinterested partiesin this action as follows: Carla V. Minnard Attorneys for Plaintiff and Respondent The Minnard Law Firm Jatinder Dhillon 4100 Redwood Road, Suite 145 Oakland, CA 94619 Telephone: (415) 215-4115 Facsimile: (415) 358-5588 carlaminnard@minnardlaw.com Sharon J. Arkin Attorneys for Plaintiff and Respondent The Arkin Law Firm Jatinder Dhillon 225 S. Olive Street, Suite 102 Los Angeles, CA 90012 Telephone: (541) 469-2892 Facsimile: (866) 571-5676 E-mail: sarkin@arkinlawfirm.com Carlo Coppo Attorneys for Defendants and Appellants Michael R. Popcke John Muir Health and Board ofDirectors Shelley A. Carder of John Muir Health DiCaro, Coppo & Popcke 2780 Gateway Road Carlsbad, CA 92009-1730 Telephone: (760) 918-0500 Facsimile: (760) 918-0008 Email: carlo.coppo@dcp-law.com michael.popcke@dcp-law.com shelley.carder@dcp-law.com Ross E. Campbell Attorneys for Defendants and Appellants Hooper, Lundy & Bookman, PC John Muir Health and Board ofDirectors 575 Market Street, Suite 2300 of John Muir Health San Francisco, CA 94105 Telephone: (415) 875-8492 Facsimile: (415) 875-8519 Email: reampbell@health-law.com Hon. Laurel S. Brady Case No. MSN13-1353 Contra Costa County Superior Court 725 Court Street, Dept. 31 Martinez, CA 94553-1233 Office of the Clerk Case No. A143256 Court of Appeal . First Appellate District (Service copy Via TrueFiling) Division Three 350 McAllister Street San Francisco, CA 94102 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressedto the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondencefor mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postagefully prepaid. I declare under penalty ofperjury underthe lawsofthe State of California that the foregoingis true and correct. Executed on February 17, 2015, at Encino, California. Boole Victoria Beebe
