Dhillon v. John Muir Health

Filed 5/25/17

IN THE SUPREME COURT OF CALIFORNIA

JATINDER DHILLON, )
)
Plaintiff and Respondent, )
) S224472
v. )
) Ct.App. 1/3 A143195
JOHN MUIR HEALTH et al., )
) Contra Costa County
Defendants and Appellants. ) Super. Ct. No. MSN-13-1353
____________________________________)

As a general rule, a litigant may appeal an adverse ruling only after the trial
court renders a final judgment. (Code Civ. Proc., § 904.1.) The question in this
case concerns the application of this general rule when a trial court has granted a
petition for writ of administrative mandamus and remanded the matter for
proceedings before an administrative body. The issuance of the writ did not
definitively resolve the dispute between the parties, but it did mark the end of the
writ proceeding in the trial court. Is the court‟s order an appealable final
judgment? We conclude that it is, and we reverse the contrary judgment of the
Court of Appeal.
I.
Plaintiff Jatinder Dhillon is a thoracic surgeon with clinical privileges at
two San Francisco Bay Area hospitals owned and operated by defendant John
Muir Health (John Muir). In October 2011, one of Dr. Dhillon‟s colleagues
lodged a complaint against him, claiming that he had been verbally abusive and

1
physically aggressive toward her during an administrative meeting. Dr. Dhillon
denied the allegations and requested that John Muir appoint an ad hoc committee
of physicians from both hospital campuses to look into the matter. John Muir
complied. After an investigation, the committee submitted a report to a joint
medical executive committee (MEC) for both hospitals. It concluded that neither
Dr. Dhillon nor the complaining doctor had behaved in a professional manner, and
it recommended that the two doctors either meet with a mediator to resolve their
differences or attend an anger management program. At a joint meeting held in
June 2012, the MEC unanimously voted to require both doctors to attend a
specified anger management class within eight months.
Dr. Dhillon refused to attend, asserting that the requirement that he
participate in the anger management class was “unfounded and unfair.” In July
2013, John Muir sent Dr. Dhillon a letter informing him that the MEC had
concluded that if he did not attend the class within one month, his clinical
privileges would be suspended for “a period of just under 14 full days.”
Dr. Dhillon requested a hearing with John Muir‟s judicial review committee
(JRC). John Muir replied that Dr. Dhillon was not entitled to such a hearing.
In September 2013, Dr. Dhillon filed a petition for writ of administrative
mandamus in the Contra Costa Superior Court, naming John Muir and its board of
directors as respondents. As later amended, the petition alleged that John Muir
had violated its bylaws by imposing the discipline without a hearing before the
JRC. He asked the trial court to order a hearing before the JRC or some other
appropriate body, to direct John Muir to vacate its imposition of discipline, to find
that John Muir‟s bylaws “violate due process and are unenforceable where the
[resulting] discipline affect[s] the accused Practitioner‟s clinical reporting and
disclosure requirements,” to order John Muir not to make disparaging comments

2
about Dr. Dhillon regarding the matter, and to authorize Dr. Dhillon to file suit
against John Muir for damages.
The superior court granted the writ petition in part. It concluded that John
Muir‟s bylaws entitled Dr. Dhillon to a hearing before the JRC or another
appropriate body and that “he was deprived of . . . due process when John Muir
. . . suspended his clinical privileges . . . without providing him a hearing.” It
issued a peremptory writ directing John Muir to conduct such a hearing. In all
other respects the court denied the petition for administrative mandamus.
John Muir filed a notice of appeal. It also filed a petition for writ of
mandate and/or prohibition in the Court of Appeal, challenging the trial court‟s
ruling. After soliciting informal opposition from Dr. Dhillon, the Court of Appeal
summarily denied the writ petition. On the same day, it issued an order in John
Muir‟s appeal directing the parties to brief the question whether the trial court‟s
order directing John Muir to conduct a hearing was appealable. After reviewing
the parties‟ briefs, the Court of Appeal issued an order dismissing the appeal. The
order explained: “The superior court‟s order 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 Bd. 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.”
The Court of Appeal‟s dismissal order deepened a long-standing conflict
concerning the appealability of a trial court‟s order, on a petition for writ of
administrative mandamus, remanding the matter for further proceedings before the
administrative body. California cases have uniformly held that a trial court‟s
complete denial of a petition for administrative mandamus is a final judgment that
may be appealed by the petitioner. (JKH Enterprises, Inc. v. Department of

3
Industrial Relations (2006) 142 Cal.App.4th 1046, 1056; 8 Witkin, Cal. Procedure
(5th ed. 2008) Extraordinary Writs, § 336, p. 1252.) The cases have also held that
a trial court‟s judgment granting administrative mandamus, and ordering the
substantive relief sought by the petitioner, is a final judgment that may be
appealed by the respondent agency. (Beckley v. Board of Administration etc.
(2013) 222 Cal.App.4th 691, 696, fn. 4; 8 Witkin, Cal. Procedure, supra,
Extraordinary Writs, § 337, p. 1253.) In each of these situations, it is clear that
“ „no issue is left for future consideration except the fact of compliance or
noncompliance with the terms of‟ ” the court‟s decree. (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 698 (Griset), quoting Lyons v. Goss (1942)
19 Cal.2d 659, 670.) California courts have, however, divided over whether the
same is true of a trial court‟s order that does not grant substantive relief, but
instead remands the cause for further proceedings before the administrative
agency.
In one line of cases, on which the Court of Appeal in this case relied, courts
have stated that a trial court‟s order on administrative mandamus remanding the
matter for further administrative proceedings is not an appealable final judgment.
(Gillis v. Dental Bd. of California, supra, 206 Cal.App.4th at p. 318; Village
Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133,
1139-1140; Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493,
501-502; Board of Dental Examiners v. Superior Court, supra, 66 Cal.App.4th at
p. 1430.) These cases contain no substantive reasoning to support that conclusion.
Furthermore, in none of these cases did the court‟s conclusion affect the result,

4
because in each case the Court of Appeal elected to treat the appeal as a petition
for extraordinary writ and considered the matter on the merits.1
In another line of cases, courts have stated that a trial court‟s order on
administrative mandamus remanding the matter for further administrative
proceedings is appealable. (Quintanar v. County of Riverside (2014) 230
Cal.App.4th 1226, 1232; Carson Gardens, L.L.C. v. City of Carson Mobilehome
Park Rental Review Bd. (2006) 135 Cal.App.4th 856, 866; City of Carmel-by-the-
Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 970; Carroll v. Civil
Serv. Comm’n (1970) 11 Cal.App.3d 727, 733.) But as with the line of decisions
concluding that a remand order on administrative mandamus is not appealable,
these decisions contain little or no reasoning.
We granted review to resolve this division of authority.
II.
The administrative mandamus statute, Code of Civil Procedure section
1094.5, authorizes judicial review of final administrative decisions resulting from
hearings that are required by law. In determining whether to grant a writ of
administrative mandamus, the trial court is instructed to consider “whether the
respondent has proceeded without, or in excess of, jurisdiction; whether there was
a fair trial; and whether there was any prejudicial abuse of discretion.” (Id., subd.
(b).)
In general, an adverse ruling in a judicial proceeding is appealable once the
trial court renders a final judgment. (Code Civ. Proc., § 904.1, subd. (a);

1 In an opinion not cited by the Court of Appeal in this case or by any of the
authorities on which that court relied, Kumar v. National Medical Enterprises, Inc.
(1990) 218 Cal.App.3d 1050 (Kumar) reached a somewhat similar conclusion
about appealability based on a more thorough discussion of the question. We
discuss Kumar at footnote 4, post.

5
Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741.) This
general rule applies equally in administrative mandamus proceedings. An
application for a writ of administrative mandamus is a “special proceeding of a
civil nature” governed by the provisions of part 3 of the Code of Civil Procedure.
A final judgment in a special proceeding is appealable unless a statute expressly
prohibits the appeal (Knoll v. Davidson (1974) 12 Cal.3d 335, 343; see also Code
Civ. Proc., § 904.1), and the parties do not suggest that any such statute would bar
the appeal in this case.
The question before us is therefore whether the trial court‟s order in this
case was a final judgment. We have previously recognized that a judgment is
final, and therefore appealable, “ „ “when it terminates the litigation between the
parties on the merits of the case and leaves nothing to be done but to enforce by
execution what has been determined.” ‟ ” (Sullivan v. Delta Air Lines, Inc. (1997)
15 Cal.4th 288, 304, quoting Doudell v. Shoo (1911) 159 Cal. 448, 453.) “ „It is
not the form of the decree but the substance and effect of the adjudication which is
determinative. As a general test, which must be adapted to the particular
circumstances of the individual case, it may be said that where no issue is left for
future consideration except the fact of compliance or noncompliance with the
terms of the first decree, that decree is final, but where anything further in the
nature of judicial action on the part of the court is essential to a final determination
of the rights of the parties, the decree is interlocutory.‟ ” (Griset, supra, 25
Cal.4th at p. 698; see also Dana Point Safe Harbor Collective v. Superior Court
(2010) 51 Cal.4th 1, 5.) “We have long recognized a „well-established policy,
based upon the remedial character of the right of appeal, of according that right in
doubtful cases “when such can be accomplished without doing violence to
applicable rules.” ‟ ” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th
106, 113.)

6
 As the cases make clear, the proper application of these principles depends,
to a certain degree, on the circumstances of the case. This is as true in the
administrative mandamus context as it is elsewhere. As the United States
Supreme Court has noted, there is “great variety” in judicial remands to
administrative bodies, “reflecting in turn the variety of ways in which
[administrative] action may be challenged in the [trial] courts and the possible
outcomes of such challenges.” (Sullivan v. Finkelstein (1990) 496 U.S. 617, 623
(Finkelstein).) In Finkelstein, the high court considered whether the Secretary of
Health and Human Services was entitled to an immediate appeal of a trial court
order remanding a disability benefits claim for reconsideration, absent reliance on
an agency regulation the court had effectively declared invalid. In answering the
question, the high court made clear that the question presented was not “the broad
question whether remands to administrative agencies are always immediately
appealable,” but instead whether the nature of the particular remand order at issue
rendered it a final and appealable judgment. (Ibid.) The high court held that the
order was a final judgment within the meaning of relevant federal statutes, both
because it set aside the secretary‟s decision that the claimant was not entitled to
benefits and “finally decided that the Secretary could not follow his own
regulations” in considering the issue (id. at p. 625), and because the secretary
might have no later opportunities to seek review of the order (ibid. [“[S]hould the
Secretary on remand undertake the inquiry mandated by the District Court and
award benefits, there would be grave doubt . . . whether he could appeal his own
order.”]).
Like the high court in Finkelstein, we do not here undertake to answer “the
broad question whether remands to administrative agencies are always
immediately appealable.” (Finkelstein, supra, 496 U.S. at p. 623.) Instead,
focusing on the nature of the particular remand order before us, similar

7
considerations lead us to conclude that the superior court‟s order partially granting
Dr. Dhillon‟s writ petition was an appealable final judgment.2
In its order, the superior court either granted or denied each of
Dr. Dhillon‟s claims. Agreeing with Dr. Dhillon‟s reading of John Muir‟s bylaws,
the trial court set aside the discipline John Muir had imposed and remanded with
instructions to hold a hearing before the JRC or another appropriate body. The
court did not reserve jurisdiction to consider any issues. (Cf. City of Los Angeles
v. Superior Court (2015) 234 Cal.App.4th 275, 280 [judgment not final when trial
court ordered new administrative hearing while holding petitioner‟s application for
administrative mandamus “ „in abeyance‟ ”]; Ng v. State Personnel Bd. (1977) 68
Cal.App.3d 600, 604 [remand to the State Personnel Board not appealable when
trial court retained “continuing jurisdiction to review the personnel board‟s final
decision rendered after compliance with the interlocutory order”].) Thus, as a
formal matter, once the trial court issued the writ, nothing remained to be done in
that court; no issue is now left for the court‟s “ „future consideration except the
fact of compliance or noncompliance with the terms of the first decree.‟ ” (Griset,
supra, 25 Cal.4th at p. 698; see also Belt v. Davis (1850) 1 Cal. 134, 138 [“by a
final judgment is to be understood, not a final determination of the rights of the
parties, but merely of the particular suit”].) 3

2 To the extent that Gillis v. Dental Bd. of California, supra, 206 Cal.App.4th
at page 318; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd., supra,
101 Cal.App.4th at pages 1139-1140; Bolsa Chica Land Trust v. Superior Court,
supra, 71 Cal.App.4th at pages 501-502; and Board of Dental Examiners v.
Superior Court, supra, 66 Cal.App.4th page 1430 may be read as stating a
categorical rule that a trial court‟s remand order in an administrative mandamus
proceeding is never appealable, those decisions are disapproved.
3 Dr. Dhillon argues that the trial court‟s order here was not a final judgment
because it was not a “judgment” as that term is defined by subdivision (f) of Code
of Civil Procedure section 1094.5, which states: “The court [in an administrative
(Footnote continued on next page.)

8
 Moreover, as a practical matter, unless John Muir has a right of immediate
appeal, the trial court‟s interpretation of its bylaws may effectively evade review.
If Dr. Dhillon prevails at the JRC hearing, the bylaws provide for an internal
appellate process whereby Dr. Dhillon or the MEC may seek review of the JRC‟s
decision. But John Muir‟s internal appeal board cannot overturn the superior
court‟s determination that Dr. Dhillon was entitled to the JRC hearing in the first
place. If the administrative proceedings are again ultimately resolved adversely to
Dr. Dhillon, John Muir would have no basis for seeking review of the decision.

(Footnote continued from previous page.)

mandamus action] shall enter judgment either commanding respondent to set aside
the order or decision, or denying the writ. Where the judgment commands that the
order or decision be set aside, it may order the reconsideration of the case in light
of the court‟s opinion and judgment and may order respondent to take such further
action as is specially enjoined upon it by law, but the judgment shall not limit or
control in any way the discretion legally vested in the respondent.” Dr. Dhillon
reasons that under this provision, a court adjudicating an administrative mandamus
petition may issue only three kinds of judgments: (1) it may command the
respondent to set aside the order or decision; (2) it may deny the writ, or (3) it may
command the respondent to set aside the order or decision and reconsider the case,
taking further action as required. Here, he asserts, the trial court‟s order fell into
none of these categories.
Assuming that subdivision (f) of Code of Civil Procedure section 1094.5
defines a “judgment” for the purposes of determining whether an order in an
administrative mandamus proceeding is an appealable final judgment,
Dr. Dhillon‟s argument nevertheless lacks merit. Although the order did not
explicitly set aside the discipline imposed on Dr. Dhillon, that consequence was
implicit in the trial court‟s determination that Dr. Dhillon was entitled to further
administrative proceedings before he could be disciplined. By commanding John
Muir to conduct those proceedings, the trial court necessarily set aside John
Muir‟s order imposing the discipline. (See Griset, supra, 25 Cal.4th at p. 698
[“ „It is not the form of the decree but the substance and effect of the adjudication
which is determinative.‟ ”].)

9
Thus, if Dr. Dhillon chose not to seek mandamus review, that would be the end of
the matter.4

4 Federal courts have similarly held that a federal district court‟s order
remanding a matter to an administrative agency is appealable when the order is
effectively unreviewable after resolution of the merits of the controversy. (E.g.,
Chugash Alaska Corp. v. Lujan (9th Cir. 1990) 915 F.2d 454, 457 [an exception to
the general rule that remand orders are not final applies when “(1) the district court
conclusively resolves a separable legal issue, (2) the remand order forces the
agency to apply a potentially erroneous rule which may result in a wasted
proceeding, and (3) review would, as a practical matter, be foreclosed if an
immediate appeal were unavailable”]; see also, e.g., Rush University Medical
Center v. Leavitt (7th Cir. 2008) 535 F.3d 735, 738 [“Unless the issues can be
addressed in court while the agency deals with the remand, they might never be
open to appellate review. That makes the district judge‟s decision effectively
final. . . . The sort of remand ordered by the district judge is one that might well
conclude without a return to court, so the decision is appealable.”].) Although
principles of finality under federal and California law may not be coextensive,
these decisions reinforce our conclusion that practical unreviewability is a relevant
consideration in determining whether a remand order is a final and appealable
judgment.
This practical consideration distinguishes this case from Kumar, supra, 218
Cal.App.3d 1050. In Kumar, as in this case, a doctor challenged the suspension of
his hospital privileges in a petition for writ of administrative mandamus, and the
trial court granted the petition in part: It set aside the decision by the hospital‟s
governing board upholding the doctor‟s suspension and remanded the matter for
further administrative proceedings, but it did not reinstate the doctor‟s privileges.
The doctor appealed. The Court of Appeal dismissed the appeal, holding that the
judgment was not appealable because the doctor was first required to exhaust his
administrative remedies. (Id. at pp. 1054-1057.) But the doctor in Kumar, unlike
John Muir, would have had a later opportunity to raise an appellate challenge to
the hospital‟s discipline if he did not prevail in the administrative hearing: He
could file a second petition for administrative mandamus, and if the trial court
ruled against him, he could appeal from the denial of his petition. Here, John Muir
has no comparable guarantee of future opportunities to raise its challenge to the
trial court‟s conclusion that its bylaws require it to hold a JRC hearing before
imposing disciplinary measures. Thus, whether or not Kumar was correctly
decided (a question we need not decide here), it is distinguishable on its facts.

10
 III.
Dr. Dhillon argues that even if the trial court‟s remand order was an
appealable final judgment, John Muir has already received the functional
equivalent of an appeal. He explains that following the trial court‟s order, John
Muir filed a writ petition challenging the trial court‟s remand order, with respect to
which the Court of Appeal issued a Palma notice (Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180) and ordered Dr. Dhillon to file
informal opposition before summarily denying the petition. This denial,
Dr. Dhillon argues, reflects a careful consideration of the merits by the appellate
court. (See James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1018, fn. 3
[“We hasten to dispel the bar‟s common misconception that a summary denial of a
writ petition suggests summary consideration. The Courts of Appeal review and
evaluate the hundreds of petitions filed each year in each appellate district. The
merits of these petitions are fully examined.”].) Dr. Dhillon notes that when a
Court of Appeal rules on a writ petition, it is exercising its appellate jurisdiction.
(Leone v. Medical Board (2000) 22 Cal.4th 660, 668 [“a reviewing court may
exercise appellate jurisdiction . . . by an extraordinary writ proceeding”].)
Dr. Dhillon reasons that John Muir therefore “did get a full and fair opportunity to
present its arguments to the Court of Appeal” and it “has obtained appellate
review of the trial court‟s remand order.”
Dr. Dhillon‟s argument confuses the Court of Appeal‟s exercise of
jurisdiction in a writ proceeding with appellate review of a final judgment under
Code of Civil Procedure section 904.1. There are important differences between
the two. Although a Court of Appeal exercises its constitutionally authorized
appellate jurisdiction when it considers a writ petition, a party appealing a final
judgment has certain rights not provided to parties seeking relief by means of an

11
extraordinary writ. A Court of Appeal, for example, may summarily deny a writ
petition, but it may resolve an appeal only by an opinion “in writing with reasons
stated.” (Cal. Const., art. VI, § 14.) An appealing party also has the right to oral
argument — a right we have described as conferring a “chance to make a
difference in result” that is “extremely valuable to litigants.” (Moles v. Regents of
University of California (1982) 32 Cal.3d 867, 872; see Cal. Const., art. VI, § 3;
Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1253-1255.) Furthermore, “a
petition for a writ of mandate may be dismissed if the plaintiff has an alternate
„plain, speedy, and adequate remedy, in the ordinary course of law.‟ ” (Villery v.
Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 410;
Powers v. City of Richmond (1995) 10 Cal.4th 85, 113 [“Mandate is available to
review an appealable judgment only when the remedy by appeal would be
inadequate or the issues presented are of great public importance and must be
resolved promptly. [Citations.] A remedy by immediate direct appeal is presumed
to be adequate, and a party seeking review by extraordinary writ bears the burden
of demonstrating that appeal would not be an adequate remedy under the particular
circumstances of that case.”]; Phelan v. Superior Court (1950) 35 Cal.2d 363,
366.) Because a mandate petition may be denied on this procedural ground, an
order by a Court of Appeal denying such a petition, even after issuance of a Palma
notice, does not necessarily demonstrate that the court has resolved the merits of
the petition adversely to the petitioning party. For all of these reasons, the Court
of Appeal‟s consideration of the writ petition could not have afforded John Muir
the functional equivalent of the appeal to which it is entitled under Code of Civil
Procedure section 904.1.

12
 DISPOSITION
We reverse the order of the Court of Appeal dismissing John Muir‟s appeal,
and we remand the matter to that court with directions to reinstate the appeal.

KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.

13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Dhillon v. John Muir Health
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S224472
Date Filed: May 25, 2017
__________________________________________________________________________________

Court: Superior
County: Contra Costa
Judge: Laurel S. Brady

__________________________________________________________________________________

Counsel:

Horvitz & Levy, David S. Ettinger, H. Thomas Watson; DiCaro, Coppo & Popcke, Carlo Coppo, Michael
R. Popcke, Shelley A. Carder; Hooper, Lundy & Bookman and Ross E. Campbell for Defendants and
Appellants.

Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld and Joanna S. McCallum for Dignity
Health as Amicus Curiae on behalf of Defendants and Appellants.

Procopio, Cory, Hargreaves & Savitch and Richard D. Barton for Medical Staff of Sharp Healthcare as
Amicus Curiae on behalf of Defendants and Appellants.

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, Jan T. Chilton, Dennis A. Fischer, Lisa R. Jaskol,
Robin B. Johansen and Robin Meadow for California Academy of Appellate Lawyers as Amicus Curiae on
behalf of Defendants and Appellants.

The Minnard Law Firm, Carla V. Minnard; The Arkin Law Firm and Sharon J. Arkin for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

David S. Ettinger
Horvitz & Levy
3601 West Olive Avenue, 8th Floor
Burbank, CA 91505-4681
(818) 995-0800

Sharon J. Arkin
The Arkin Law Firm
225 S. Olive Street, Suite 102
Los Angeles, CA 90012
(541) 469-2892