Frankel v. Board of Dental Examiners
| Decision Date | 17 June 1996 |
| Docket Number | No. C016474,C016474 |
| Citation | 46 Cal.App.4th 534,54 Cal.Rptr.2d 128 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 96 Cal. Daily Op. Serv. 4365, 96 Daily Journal D.A.R. 6982 Gerard FRANKEL, Plaintiff and Appellant, v. BOARD OF DENTAL EXAMINERS, Defendant and Respondent. |
Daniel E. Lungren, Attorney General, and William L. Marcus, Deputy Attorney General, for Defendant and Respondent.
Gerard Frankel, D.D.S., appeals from the judgment denying his petition for a writ of mandamus to require the Board of Dental Examiners to set aside a disciplinary order which is based upon his assent to the settlement of an accusation filed against him by its executive director, Georgetta Coleman, and to allow him to proceed with a contested hearing on the matter. 1
The "Stipulation for Settlement" was executed by Frankel and his attorney, and by counsel for Coleman. In it, Frankel expressly gave up his right to a contested hearing on the accusation, admitted allegations that subjected his license to discipline, and agreed he would not engage in the practice of dentistry for 30 days and would subject himself to being placed on probation for 5 years under other conditions. In exchange, Coleman agreed to cancel the scheduled three-day hearing and forgo her authority to proceed on the accusation to obtain stronger findings and a harsher disciplinary order against Frankel. The settlement agreement specifies that, "[s]hould the Board of Dental Examiners, for any reason, fail or refuse to adopt this stipulation, it shall be of no force or effect as to either party."
Three months later, after he retained another attorney and after Coleman canceled the administrative hearing, Frankel sought to withdraw from the stipulation, but Coleman refused to accept the withdrawal. The Board then adopted the settlement as its decision and imposed the discipline specified in the stipulation.
According to Frankel, because the stipulated settlement states the agreement would have no effect if the Board failed to approve the settlement, he was entitled to withdraw his assent to the stipulation at any time prior to its adoption by the Board. We disagree.
As we shall explain, implied in the agreement is an obligation to submit the stipulation to the Board for consideration and to give the Board a reasonable period of time to act on it. (Cf. Jacobs v. Freeman (1980) 104 Cal.App.3d 177, 188-189, 163 Cal.Rptr. 680; Addiego v. Hill (1965) 238 Cal.App.2d 842, 847, 48 Cal.Rptr. 240; Hastings v. Matlock (1985) 171 Cal.App.3d 826, 838, 217 Cal.Rptr. 856.) The potential lack of approval by the Board, which would have relieved the parties of their obligations under the agreement but did not occur, is simply a "condition subsequent" which "is not a valid basis for concluding that the contract is not presently binding and effective." (Hoover Community Hotel Development Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1138, 213 Cal.Rptr. 750.) By impliedly agreeing to permit the Board to confer and decide whether to approve or reject the settlement, Frankel could not withdraw his assent to the stipulation before the Board had a reasonable opportunity to act on it. Accordingly, we shall affirm the judgment denying Frankel's petition for writ of mandamus.
In July 1991, an administrative accusation (Bus. & Prof.Code, § 1670; Gov.Code, § 11503) was filed against Gerard Frankel, a dentist licensed by the Board of Dental Examiners since 1957. The complainant, Georgetta Coleman, the Board's executive director, alleged that Frankel had violated provisions of the Business and Professions Code and Health and Safety Code relating to maintaining and dispensing medications, including controlled substances, and keeping proper records of their acquisition, inventory and disposition. Coleman asked the Board After receiving the accusation, Frankel contacted Deputy Attorney General William Marcus, who serves as Coleman's counsel and had prepared the pleading. Dates were set for a hearing on the accusation, and the parties began settlement negotiations. In September 1991, a settlement conference was attended by Frankel and Marcus. A second settlement conference was held in January 1992, attended by Marcus, Frankel and his counsel, Randolph Wright.
to revoke or suspend Frankel's license or to take other action as the Board deemed proper.
During an exchange of correspondence between Wright and Marcus, spanning seven months, a written settlement was prepared, which the parties agreed and understood would be submitted at the close of negotiations to the Board for consideration and action. Frankel and Wright executed the "Stipulation for Settlement" in March 1992, and returned it to Marcus accompanied by a letter indicating Frankel's acceptance was conditioned upon Coleman agreeing to change certain terms of the signed stipulation.
On April 13, 1992, Marcus replied that, in light of Frankel's efforts to revise the written agreement, the parties apparently had no agreement and Marcus would proceed to a hearing on the accusation "unless [he] first receive[d] a simple letter, signed and dated by Mr. Wright and Dr. Frankel, which says that notwithstanding any other correspondence or writings, Dr. Frankel accepts the stipulation as written,[*] without condition or qualification." (Emphasis in original [*Printer: Use underscoring, not italics].)
The next day, Frankel responded in writing with an unqualified acceptance of the agreement. The stipulation recites that Frankel (1) waives his rights to a hearing on the charges in the accusation, to present evidence and confront evidence presented against him, and to appeal any adverse decision against him; (2) admits, for purposes of settlement only, certain allegations of the accusation; (3) agrees "his license is subject to discipline" based on the admitted facts; and (4) stipulates the Board may revoke his license to practice dentistry, provided the revocation is stayed and his license is placed on probation for five years on certain conditions, including that he "shall be suspended from the practice of dentistry for a period of thirty (30) days, beginning the effective date of this decision." The stipulation further specifies that, "[s]hould the Board of Dental Examiners, for any reason, fail or refuse to adopt this stipulation, it shall be of no force or effect as to either party." Signatories to the stipulation are Frankel and his counsel, Wright, and Marcus as "Attorney[ ] for Complainant."
In exchange for Frankel's unqualified acceptance of the stipulation, Marcus released the dates scheduled for a hearing on the accusation--for which the Office of Administrative Hearings had set aside three days--and, as agreed, forwarded the stipulation to Coleman for action by the Board. Marcus gave Frankel a copy of Marcus's letter to Coleman, outlining the parties' positions, summarizing the evidence, and stating he "strongly recommend[s] the adoption of the stipulation" by the Board. The letter also informed Coleman that Frankel was requesting the Board to consider permitting him to deliver free dental services to indigent children in lieu of the 30-day suspension to which he had stipulated.
In June 1992, three months after Frankel executed the stipulation and one month after it was sent to Coleman for Board action, Marcus was contacted by James Seltzer, an attorney whom Frankel had retained to replace Wright. Seltzer's letter states Frankel "hereby withdraws" his agreement to the stipulation, but indicates Frankel "would like to resolve this matter by Stipulation, but with a modification of the terms and conditions."
Asserting "a stipulation once signed cannot be withdrawn absent some special circumstance, other than second thoughts on the part of the licensee," Marcus responded that he would advise Coleman not to accept Frankel's purported "withdrawal of the stipulation."
In September 1992, the Board adopted the stipulation as its formal order which, by the Frankel petitioned the superior court for a writ of administrative mandamus directing the Board to set aside its disciplinary order based on the stipulation and allow him to proceed with a contested hearing on the matter. He argued the stipulation "had no force or effect until adopted by [the] Board" and, thus, it was an executory agreement he was free to revoke at any time before the Board approved the stipulation and made it an order of the Board.
order's terms, would become effective on October 15, 1992.
The court denied the petition, finding the stipulation is governed by traditional rules of contract law, is supported by consideration, and is not illusory; its validity is not conditioned upon approval by the Board; and no grounds exist for setting aside the stipulation. This appeal ensued.
The Board of Dental Examiners is organized under the auspices of the Department of Consumer Affairs for the purpose of assuring that the practices of dentistry and dental hygiene--"professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare"--are "adequately regulated in order to protect the people of California." (Bus. & Prof.Code, §§ 100, 101, 101.6, 1601-1808.) The Board must determine that such professionals "possess the requisite skills and qualifications necessary to provide safe and effective services to the public," and must "ensure performance according to set and accepted professional standards." (Bus. & Prof.Code, § 101.6.)
"This broad purpose is effectuated mainly by the issuance, renewal or revocation of a license to practice." (Rich Vision Centers, Inc. v. Board of Medical Examiners (1983) 144 Cal.App.3d 110, 114, 192 Cal.Rptr. 455; Bus. & Prof.Code, §§ 1611.5, 1626, 1628.5, 1646.7, 1646.9, 1670, 1680-1681.)
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