DHILLON v. JOHN MUIR HEALTHRespondent’s OppositionCal.September 16, 2015CASE NO. 8224472 CALIFORNIA SUPREME COURT JATINDER DHILLON, FILED Petitioner and Respondent, SEP 16 2015 VS. Frank A. McGuire Clerk JOHN MUIR HEALTH, BOARD OF DIRECTORS Deputy OF JOHN MUIR HEALTH Respondents and Appellants. From an Order ofDismissal, First District Court ofAppeal, Div. Three, Case No. A143195 Contra Costa Superior Court, Case No. MSN-13-1353 The Hon. Laurel S. Brady, Judge Presiding JATINDER DHILLON’S OPPOSITION TO MOTION TOAUGMENT THE RECORD OR COUNTER-MOTION TO AUGMENT CARLA V. MINNARD SHARONJ. ARKIN (CSB No. 176015) (CSB 154858) THE MINNARD LAW FIRM THE ARKIN LAW FIRM 4100 RedwoodRoad, #145 225 S. Olive Street, Suite 102 Oakland, Ca 94619 Los Angeles, CA 90012 (510) 479-1475 Telephone (541) 469-2892 Telephone (415) 358-5588 Facsimile (866) 571-5676 Facsimile carlaminnard@minnardlaw.com sarkin@arkinlawfirm.com Attorneys for Petitioner and Respondent Jatinder Dhillon, M.D. OPPOSITION TO MOTION TO AUGMENT THE RECORD AND COUNTER-MOTION TO AUGMENT THE RECORD Petitioner and respondent Jatinder Dhillon, M.D. (“Dr. Dhillon”) hereby opposesthe motion of John Muir Health (“JMH”) to augment the record with a document lodged (but neverfiled) with the Superior Court on the following grounds: (1) The appellate court never had the opportunity to assess the document because it was never presented by JMH to the appellate court; and, (2) The documentis irrelevant. Furthermore, in the event that the motion is granted, Dr. Dhillon hereby movesfor an order augmenting the record to include the document attached as Exhibit 1. Exhibit 1 is the letter submitted by JMHto the Superior Court in response to the document that JMH seeks to augmentthe record with and, for purposesofproviding a complete record,this document should also be includedifthe first documentis. MEMORANDUM OF POINTS AND AUTHORITIES 1. THE MOTION TO AUGMENT SHOULD BE DENIED The motion of JMHto add to the record before this Court a letter and proposed judgmentthat was neverfiled in the Superior Court, but which wasonly lodged with that court and never acted on, should be denied. The entire focus ofthe petition in this proceedingis the action of the Court of Appeal. But — as evidenced by JMH’s motion to augment — the Court of Appeal never had the subject documentbeforeit in the record in that court and it would be untenable to make a determination in this case on a record that was never presented to the appellate court. Beyondthat point, the fact is that the document— and the argument based on it in JMH’s reply brief— is irrelevant. The documentis letter from plaintiff's counsel enclosing a proposed judgment. Not only did the Superior Court notfile the letter, but only lodgedit, the Superior Court never signed the proposed judgment. JMH arguesin its reply brief that the letter and proposed judgment are relevant because: (1) The letter explained that a proposed judgment h o was being submitted because “i]t appears that the law is notentirely clear whether a signed Orderis sufficient to trigger the time for filing any appeal,” and (2) because the proposed judgmentrecited that it was rendered pursuant to Code of Civil Procedure section 1094.5(f), thereby confirming that it was, in fact a valid judgment. (Reply Brief, pp. 8-9.) Asto thefirst issue, counsel’s concern was obviously appropriate, i.e., as this proceeding demonstrates, the question of whetherthe order alone triggered someright to some type of appellate review is the point here. Asto the second issue, there is no need to rely on the recitation in the proposedjudgmentthat was neversignedto the effect that was entered into pursuant to Code of Civil Procedure section 1094.5 because the actual judgment makesthe samerecitation. [4 AA 781-785.] But, as pointed out in Dr. Dhillon’s AnswerBrief on the Merits, at page 19, fn. 2, the fact that a judgment states that it is issued pursuant to a certain code section does not meanthat it is, in fact, in compliance with that code section. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696 [“It is not the form of the decree but the substance and effect of the adjudication which is determinative.”].) And that is the whole point of that argument in the AnswerBrief, i.e., that the “judgment,” despite its boilerplate recitation, does not comply with section 1094.5 because the relief afforded is not final as defined underthatstatute. Thus, not only is the requested documentnot one that was before the appellate court, but it is irrelevant and adds nothing to support the assessmentand analysis of the issue in this Court. As such, the motion to augment should be denied outright. 2. IN THE EVENT THAT JMH’S MOTION T AUGMENT IS GRANTED, DR. DHILLON REQUESTS THAT THE RECORD ALSO BE AUGMENTED WITH THE DOCUMENT ATTACHEDAS EXHIBIT 1 In the event that JMH’s motion to augmentis granted despite the irrelevance of the document sought to be addedto the record, Dr. Dhillon respectfully requests that the record also be augmented with the document attached as Exhibit 1. Exhibit 1 is JMH’s ownletter lodged with the Superior Court in response to the documentit seeks to augment the record with. In Exhibit 1, JMH objects to the proposed order and further asserts that nojudgmentis necessary at all because the “[a]n order granting or denying a petition for an extraordinary writ constitutes a final judgment.” (Ex. 1, p. 2, emphasis added.) Thus, even under JMH’s ownanalysis, and contrary to its argument in its Reply Brief on the Merits, a judgment — whether it recites that it is issued in compliance with section 1094.5 or not — is unnecessary. CONCLUSION The motion to augmentis unnecessary and unwarranted. It should, therefore be denied. In the eventit is granted, however, Dr. Dhillon’s counter-motion to augmentthe record should also be granted. Dated: September 15, 2015 THE MINNARD LAW FIRM THE ARKIN LAW FIRM By: BVA CARLA V-RHNNARD SHARONJ. Attorneys for Petitioner and Respondent Jatinder Dhillon EXHIBIT 1 DECLARATION OF CARLA MINNARD 1, CARLA MINNARD, DECLARE: lL. I am an attorney admitted to practice before this Court and am the principal ofThe Minnard LawFirm,one ofthe attorneys of record for Jatinder Dhillon, M.D. 2. Attached as Exhibit | is a true and correct copy ofa letter, dated August 15, 2014 sent by Carlo Coppo, counsel for John Muir Health to the Superior Court and which I was copied on as indicated in the“cc:”at the bottom ofthe letter. Based on the parties’ usual procedure, I believe that this letter was lodged with the Superior Court. 3. In the event that the motion ofJohn Muir Health to augment the record with my letter and enclosure ofAugust 14, 2014 is granted, I respectfully request that the record also be augmented with the letter attached as Exhibit, which is a response to that August 14, 2014 letter. I declare underpenalty ofperjury under the lawsofthe State of California that the foregoing is true and correct and that this declaration DiCARO, COPPO & POPCKE A Professional Law Corporation CARLO COPPO SAN DIEGO COUNTYOFFICE JOHN DiCARO,Of Counsel MICHAELR. POPCKE(Also Licensed in PA) 2780 GATEWAY ROAD DAVID M. BALFOUR CARLSBAD, CALIFORNIA 92009-1730 ANDREA ASTON,Of Counsel GABRIELE M. PRATER ASSET PROTECTION ESTATE PLANNING SHELLEY A. CARDER CAROL A. SALMACIA Facsimile: (760) 918-0008 Reply to: Toll Free: (888) 350-5888 SHELLEY A. CARDER e-mail:shelley.carder@dcp-law.com August 15, 2014 VIA FACSIMILE: (925) 957-5911 The Honorable Laurel Brady Department 31 Contra Costa Superior Court 725 Court Street Martinez, California 94553 Re: John Dhilion, M.D./John Muir Health Case # N13-1353 Dear Honorable Laurel Brady: Pursuant to our communication with the court clerk on August 15, 2014,please acceptthis opposition to the proposed Judgment submitted by counsel for Dr. Dhillon on August 14, 2014. Counsel for Dr. Dhillon failed to previously serve counsel for John Muir Health with the proposed order, as required by both the local rules and California Rules of Court. Local Rule 16(a) requires a written order be prepared and servedin accordance with California Rules of Court, Rule 3.1312. The cited Rule ofCourt requires that the party preparing the proposedorderserve it on any otherparty for approval and to form and content “within five days of the ruling.” (CRC 3.13 12(a).) This was not done. Therefore, counsel for Dr. Dhillon also failed to comply with subdivision (b) of the samerule, which requires the order betransmitted “to the court together with a summary of any responsesofthe other parties or a statement that no responses werereceived.” The proposed Judgment submitted by Counsel for Dr. Dhillon doesnot accurately reflectthis Court’s Order, as this Court denied seven of the eight grounds challenging the administrative action. Asthe action taken did not require a report to befiled pursuant to Business and Professions Code section 805, John Muir Health contends neither party is to be considered the “prevailing party.” DiCARO, COPPO & POPCKE The Honorable Laurel Brady Department 31 Re: Dhillon v. John Muir Health August 15, 2014 Page 2 John Muir Health believes this Court’s Order filed August 6, 2014 rules on all issues presented. An order granting or denying a petition for an extraordinary writ constitutes a final judgmentfor purposes of an appeal, even if the order is not accompanied by a separate formal judgment. (Public Defenders’ Organization v. CountyofRiverside (2003) 106 Cal. App.4th 1403, 1409, emphasis added.) Counsel for Dr. Dhillon provides no authority to support her contention this Court’s August 6, 2014 Orderis insufficient as a final decision. However,ifthe Court believes Judgment shouldbe entered, then John Muir Health contendsits attached proposed Judgment more accurately reflects the Court’s August 6, 2014 decision. John Muir Health continues to respectfully object to the judgment requiring John Muir Health provide Dr. Dhillon a hearing before a Judicial Review Committee, as the Court “shall not limit or control in any way the discretion legally vested in the respondent.” (Code Civ. Proc., § 1094.5(f).) Respectfully submitted, DiCARO, COPPO & POPCKE CARLO COPPO MICHAEL R. POPCKE SHELLEY A. CARDER SAC/Imr Attachment ce: Carla V. Minnard, Esq. PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 and nota party to the within action; my business address 225 S. Olive Street, Suite 102, Los Angeles, CA 90012. On September15, 2015, I served the within document described as: OPPOSITION TO MOTION TO AUGMENT THE RECORD AND COUNTER-MOTION TO AUGMENT THE RECORD on the interested parties in this action by electronic mail as follows: PARTIES ATTORNEYS Respondents: John Muir Health, Board of Directors of John Muir Health David S. Ettinger H. Thomas Watson Horvitz & Levy LLC 15760 Ventura Boulevard, 18th Floor Encino, CA 91436 Carlo Coppo Michael R. Popcke Shelley A. Carder DiCaro, Coppo & Popcke 2780 Gateway Road Carlsbad, CA 92009 Ross E. Campbell Hooper Lundy & Bookman, PC 575 MarketStreet, Suite 2300 San Francisco, CA 94105 I declare under penalty of perjury under the lawsof the State of California that the aboveis true and correct. Executed on September 15, 2015 at Brookings, Oregon. Sharon J. Arkin a