California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc.

• Decision Date: 27 May 1983
• Citation: 191 Cal.Rptr. 762,143 Cal.App.3d 419
• Parties: CALIFORNIA ASSOCIATION OF DISPENSING OPTICIANS, etc., et al., Plaintiffs and Cross-Appellants, v. PEARLE VISION CENTER, INC., etc., et al., Defendants and Appellants. Civ. 28420.
• Court: California Court of Appeals Court of Appeals

Page 762

191 Cal.Rptr. 762

143 Cal.App.3d 419

CALIFORNIA ASSOCIATION OF DISPENSING OPTICIANS, etc., et al., Plaintiffs and Cross-Appellants, v. PEARLE VISION CENTER, INC., etc., et al., Defendants and Appellants.

Civ. 28420.

Court of Appeal, Fourth District, Division 1, California.

May 27, 1983.

Hearing Denied July 27, 1983.

Sidley & Austin, Charles S. Vogel, Los Angeles, Kenneth K. Howell and George L. Saunders, Chicago, Ill., for defendants and appellants.

Athearn, Chandler & Hoffman, Richard Harrington, Donald H. Maffly and Walter Hoffman, San Francisco, Wilke, Fleury, Hoffelt & Gray, William A. Gould, Jr., Alan G. Perkins and Bradley N. Webb, George Deukmejian, Atty. Gen., Sacramento, and Alvin J. Korobkin, Deputy Atty. Gen., San Diego, for plaintiffs and respondents.

STANIFORTH, Associate Justice.

Plaintiffs California Association of Dispensing Opticians (CADO), et al. sought to enjoin defendants Pearle Vision Center, Inc. (Pearle), et al. from violating California statutes regulating the practice of dispensing opticians, optometrists and optical suppliers. The California State Board of Optometry (Board) intervened as a plaintiff in CADO's lawsuit. A temporary restraining order was issued enjoining Pearle from operating several retail optician outlets without a license, engaging in certain types of advertising and continuing solicitation of optometrists to purchase retail optometric franchises. After a contested hearing a preliminary injunction was granted enjoining Pearle:

"a. From engaging in business as a dispensing optician at Carlsbad Plaza, 2588 El Camino Real, Carlsbad, California, 573 H Street, Chula Vista, California, 2770 Town Center, Sunnyvale, California, or at any other location within the State of California without first obtaining a certificate or registration issued by the Board of Medical Quality Assurance pursuant to the provisions of Business & Professions Code Section 2551;

"b. From disseminating or causing to be made or disseminated in any type of advertising statements stating or implying that defendants or any one of them is performing or authorized to perform the acts of a dispensing optician except at a location which has been registered as a dispensing optician by the Board of Medical Quality Assurance;

"c. From disseminating or causing to be made or disseminated in any type of advertising statements stating or implying that defendants or any one of them is furnishing the services of a refractionist or optometrist or is directly or indirectly employing or maintaining on or near defendants' optical dispensing premises a refractionist or optometrist for the purpose of examining or treating the eyes; this paragraph prohibits advertisements stating or implying that defendants furnish total eye care."

The preliminary injunction was conditioned upon the posting of a bond. Pearle sought a writ of supersedeas and prohibition from this court. After a review of the supersedeas documents and petition this court summarily denied the petition. Pearle appeals the order granting the preliminary injunction.

FACTS

CADO is a nonprofit corporation whose members are licensed by the State of California as registered dispensing opticians. Coplaintiff Pacific Coast Contact Lens Society is a nonprofit corporation composed of opticians who specialize in fitting contact lenses. Individual plaintiff Richard H. Kendall, O.D., is a licensed optometrist practicing in Orange County, California. The Board is a state body charged with regulating the optometry profession under state law. Pearle consists of G.D. Searle, Inc., a large manufacturer of pharmacueticals and ophthalmic goods through its wholly-owned subsidiary, Searle Optical Company, Inc., and Pearle Vision Centers, Inc., which operates a chain of retail ophthalmic dispensing outlets, Pearle Vision Centers, in several states.

Optometrists in California are licensed and regulated by the Board. Optometry is regarded as a learned profession. To become In contrast, a registered dispensing optician is licensed by the Division of Allied Health Professions of the Board of Medical Quality Assurance. Dispensing opticians fill prescriptions for glasses or contact lenses from optometrists and ophthalmologists (physicians or surgeons who specialize in eye care and treatment). Dispensing opticians do not examine eyes and dispense ophthalmic goods only on prescription.

licensed as an optometrist an individual must have at least three years of undergraduate education in a scientific field and four years of optometry school culminating in a doctor of optometry degree. Upon admission to practice optometrists are allowed to correct refractive errors and to detect eye disease. Most optometrists also dispense ophthalmic products consisting of eye glasses and contact lenses.

The complaint sought injunctive relief alleging six causes of action ¹ which assert both generally and specifically the illegality of Pearle's operation as registered opticians and its proposed franchise program. From the verified complaint and the declarations filed by the various parties as submitted to the trial court, it appears Pearle was engaged as a dispensing optician at three locations in California and was not licensed at these locations. ² Pearle's program sought to have optometrists purchase franchises from Pearle.

Pearle's advertising represented Pearle provided "total eye care," implying it furnished eye examinations. Expert witness Dr. Takahashi testified "total eye care" means "[t]he full range of professional optometric services" and a dispensing optician cannot under his license furnish "total eye care." Concerning an ad stating "Nobody cares for eyes more than Pearle" Daniel Kelly testified the advertisement shows Pearle was advertising optometric services.

Competent evidence also was offered in support of the injunction against soliciting California optometrists to operate a Pearle Vision Center franchise. Pearle's franchise offering circular detailed the provisions of the proposed franchise agreement between the franchisor Pearle and the franchisee optometrists.

The trial court also had before it the Attorney General's opinion the franchising optometric offices by this arrangement constituted an unlawful practice of optometry. (65 Ops.Cal.Atty.Gen. 366 (June 10, 1982).) Pearle contends trial court error in granting the preliminary injunction because (1) it was based on a misinterpretation of the relevant portions of the Business and Professions Code, (2) the interpretation of the statute was unconstitutional, and (3) the proper procedural prerequisites in ruling on the preliminary injunction were not followed.

DISCUSSION

I

As a general rule the granting or denying of a preliminary injunction, even though the evidence may be conflicting, rests within the sound discretion of the trial court and may not be disturbed on appeal This court briefly set forth the dispositive rules for issuance of a preliminary injunction in People v. Mobile Magic Sales, Inc., supra, 96 Cal.App.3d 1, 8, 157 Cal.Rptr. 749:

                except for an abuse of discretion.  (People v. Mobile Magic Sales, Inc., 96 Cal.App.3d 1, 157 Cal.Rptr. 749;  Volpicelli v. Jared Sydney Torrance Memorial Hosp., 109 Cal.App.3d 242, 248, 167 Cal.Rptr. 610.)   Furthermore, a preliminary injunction does not reach the merits of the permanent injunctive relief sought in the complaint
                

" ' "The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him." [Citations.] The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action. [Citations.] (3) Thus, the court examines all of the material before it in order to consider "whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it; ..." [Citations.] In making that determination the court will consider the probability of the plaintiff's ultimately prevailing in the case and, it has been said, will deny a preliminary injunction unless there is a reasonable probability that plaintiff will be successful in the assertion of his rights. [Citations.] As was said in Family Record Plan, Inc. v. Mitchell [172 Cal.App.2d 235, 342 P.2d 10]... "In the last analysis the trial court must determine which party is the more likely to be injured by the exercise of its discretion [citation] and it must then be exercised in favor of that party [citation]." ' [Citation.]"

II

Pearle preliminarily argues the trial court erroneously ruled as a matter of law--whether from statutory or constitutional premises--that Pearle's franchise program and advertising violated California statutes. Pearle contends (and this court agrees) when the matter is solely a question of a violation of law the standard of review is not abuse of discretion but whether statutory or constitutional law was correctly interpreted and applied by the trial court. (See State Bd. of Funeral Directors v. Mortuary in Westminster Memorial Park, 271 Cal.App.2d 638, 642, 76 Cal.Rptr. 832; Johnson v. County of Santa Clara, 31 Cal.App.3d 26, 31, 106 Cal.Rptr. 862.) CADO submitted no evidence other than Pearle's franchise agreement and advertising and argued these documents on their face clearly demonstrated statutory violations. This uncontested evidence raises only a question of law for this court's determination. (Parsons v. Bristol Development Co., 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839; People v. Synanon Foundation, Inc., 88 Cal.App.3d 304, 309, 151 Cal.Rptr. 757.)

III

Pearle argues this court must reverse the preliminary injunction unless it concludes Pearle's franchise agreement and...