Cooke v. Superior Court

• Decision Date: 22 August 1989
• Docket Number: No. C003930,C003930
• Citation: 261 Cal.Rptr. 706,213 Cal.App.3d 401
• Court: California Court of Appeals Court of Appeals
• Parties: Marian COOKE et al., Petitioners, v. The SUPERIOR COURT of Butte County, Respondent; BUTTE COUNTY BOARD OF SUPERVISORS et al., Real Parties in Interest.

Page 706

261 Cal.Rptr. 706

213 Cal.App.3d 401

Marian COOKE et al., Petitioners, v. The SUPERIOR COURT of Butte County, Respondent BUTTE COUNTY BOARD OF SUPERVISORS et al., Real Parties in Interest.

No. C003930.

Court of Appeal, Third District, California.

Aug. 22, 1989.

Lucy Quacinella, Chico, Standley L. Dorn, and Melinda R. Bird, Los Angeles, for petitioners

Paul A. Lombardo, Ralph Murphy, Jodie Berger, and Philip J. Bertental, amici curiae, for petitioners.

No appearance for respondent.

Susan Roff, Butte County Counsel, Robert A. Glusman, Price, Price, Brown & Halsey, and Philip B. Price, Chico, for real parties in interest.

Victor J. Westman, Contra Costa County Counsel, and Arthur W. Walenta, Asst. County Counsel, amici curiae for real parties in interest.

SIMS, Associate Justice.

In this case we consider the level of dental care counties must furnish to indigent residents in order to comply with Welfare and Institutions Code sections 10000 and 17000. ¹ (Further statutory references are to the Welfare and Institutions Code unless otherwise noted.) We conclude petitioners must be provided with dental care sufficient to remedy substantial pain and infection. However, we shall deny petitioner's request for writ relief, because the Butte County Board of Supervisors has recently adopted a resolution indicating its willingness to provide the requisite dental care.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners Marian Cooke, Doris McKinley and Deborah Whitehead (petitioners) are plaintiffs in a class action pending in respondent superior court. ² As alleged in the pleadings, petitioners are indigent Petitioners alleged the County's level of dental care did not satisfy its statutory duties. They sought a writ of mandate to compel the County's compliance under section 17000, section 10000, and Health and Safety Code section 1442.5. The action also sought a preliminary and permanent injunction and declaratory relief. ³

residents of Butte County. The County is required to provide petitioners and their class with health services, including dental care. The County does so, through a contract under the County Medical Services Program (CMSP). However, the only dental care provided is emergency care limited to (1) reduction of oral/maxillofacial fractures and dislocations, and (2) treatment of alveolar abscesses through antibiotics, pain medication and extraction only. The County does not provide any diagnostic, preventive, therapeutic or restorative dental care to deal with pain or infection.

Petitioners noticed a motion for a preliminary injunction, seeking to enjoin the County from failing to provide them with specific care and to provide the class with medically necessary dental care, including that available to Medi-Cal recipients.

Petitioners submitted declarations stating (1) they are indigent residents of the County who have been found eligible for county health care, including dental care; and (2) they suffer specific dental disease, pain and infection for which the County does not provide treatment. More particularly, the declarations state the following: Petitioner Cooke has had a problem with a front tooth, which is painful and throbs constantly. The gum is swollen. She cannot chew on the tooth or brush it due to pain. Cooke saw a dentist but could not afford his fee for a root canal. The County denied Cooke's request for assistance, because the County covers only emergency extractions.

Petitioner McKinley suffers from heart disease. In November 1987, she lost a filling. The tooth is sensitive to hot and cold. She cannot chew or put pressure on the tooth because of severe pain. McKinley cannot afford to have the tooth filled, and the County has informed her it does not cover fillings.

Petitioner Whitehead has had a history of dental problems. She has numerous cavities and cannot eat anything crunchy without losing pieces of her teeth. She is in pain when she tries to eat anything hard. She is studying to be a nurse and believes good teeth are important to her employability.

Petitioners also submitted declarations from dentists stating that petitioners need root canal and other treatment, and that dental diseases of the type suffered by petitioners pose serious health risks if left untreated. Thus, William Moon, D.D.S., stated he examined Cooke and observed an infected tooth. Because of the presence of the bacteria, once a clinical abscess forms, the tooth would be more difficult to treat. The infection can result in fever and swelling severe enough to shut an eye. Infection can also influence other parts of the body. Cooke has had a hip replacement, and the spread of infection could cause her body to reject the prosthetic device.

Kevin Campbell, D.D.S., examined Whitehead and determined she needed root canal treatment to prevent the formation of abscesses. Abscesses are to be avoided, because infection at the root of a tooth is painful, can cause swelling and fever, and constitutes a serious health problem.

Petitioners' assertions that they suffered pain and infection and were unable to obtain treatment were undisputed by the County. Nor did the County dispute that the only dental care it provides is the limited emergency care available under its contract with the CMSP. Instead, the County submitted declarations from two doctors in support of its position that the statute requires only "basic survival," and teeth are Dr. Ward, a medical doctor and Health Officer for the County, declared that the dental diseases untreated by the County are neither communicable nor life-threatening. The CMSP standard is sufficient to protect life and preserve the capability to consume an adequate diet.

                not necessary for basic survival.  Stanley Nuzum, D.D.S., as Dental Program Consultant to the state Department of Health Services, views the CMSP level of dental services as providing those services that are "necessary for basic survival and minimum subsistence."   Dentistry offers alternative services that can relieve pain and preserve health and life.  For instance, abscesses may be treated either through root canal or extraction.  The former is sometimes referred to as "cadillac dentistry" and is not necessary for basic survival
                

The County's opposition to the motion also pointed out that the County could not afford an increased level of dental care, and that the state should be brought into the action as a necessary party. The state has not been brought in as a party.

On December 24, 1987, the trial court denied the preliminary injunction, ruling that petitioners were unlikely to prevail on the merits.

On February 26, 1988, petitioners filed this petition for writ of mandate and temporary stay order to direct the trial court to issue an order granting the requested preliminary injunction. We issued an alternative writ. ⁴

Since issuance of the alternative writ, petitioners have submitted supplemental declarations to this court describing further deterioration of their condition. Because equitable principles apply in mandamus proceedings, we may properly consider all relevant evidence, including facts not existing until after the petition for writ of mandate was filed. (Bruce v. Gregory (1967) 65 Cal.2d 666, 670-671, 56 Cal.Rptr. 265, 423 P.2d 193; McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn. 3, 236 Cal.Rptr. 833.)

The supplemental declarations show that petitioner Cooke's front tooth has become loose, and she has trouble sleeping due to constant pain. Petitioner Whitehead developed an abscess. She suffered pain because the County covers only two types of pain medication, both of which make her nauseous. Several of her teeth have broken off. A further abscess caused facial swelling so severe that her eye was half shut and started to turn black.

Following oral argument in this court, the County asked that we take judicial notice of Resolution No. 89-011, adopted by the County on January 31, 1989, increasing the level of available dental services to include procedures "necessary to alleviate substantial pain, to treat infection, to maintain basic function, to maintain adequate nutrition, and to care for dental conditions which present a serious health risk." In an appropriate case, these procedures may include amalgam restorations, anterior root canals, denture repair and other necessary services. We asked the parties to submit supplemental briefing on the propriety of our taking judicial notice of the resolution. (See Evid.Code, §§ 455, 459, subd. (c).) For reasons that follow, we shall take judicial notice of the resolution.

DISCUSSION

I. Standards of Review

Mandamus is issued "to compel the performance of an act which the law specially enjoins, ..." (Code Civ.Proc., § 1085.) ⁵ Mandamus will not generally lie to control the exercise of judicial discretion, unless under the facts, that discretion can be exercised in only one way. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal.Rptr. 398, 695 P.2d 695.)

Ordinarily, two tests govern the decision whether to issue a preliminary injunction. The trial court (1) balances the interim harm to the parties and (2) determines whether the plaintiff is likely to prevail on the merits. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286, 219 Cal.Rptr. 467, 707 P.2d 840.) In an ordinary case, we would simply review the trial court's exercise of discretion in refusing the preliminary injunction. Here, however, another factor influences our decision whether to issue a writ: the County's recent adoption of Resolution No. 89-011, increasing its level of dental care. Our review will include that resolution because we consider the law and facts as they exist at the time of making our determination whether to issue a writ. (People v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal.App.3d 225, 233, 249 Cal.Rptr. 762, citing Hays v. Wood (1979) 25 Cal.3d 772, 782, 160 Cal.Rptr. 102, 603 P.2d 19; White v. Davis...