Kronen v. Pacific Coast Soc. of Orthodontists

• Decision Date: 30 September 1965
• Citation: 237 Cal.App.2d 289,46 Cal.Rptr. 808
• Court: California Court of Appeals Court of Appeals
• Parties: Bertram KRONEN, Plaintiff and Appellant, v. PACIFIC COAST SOCIETY OF ORTHODONTISTS ex rel., Defendants and Respondents. Civ. 21818.

Page 808

46 Cal.Rptr. 808

237 Cal.App.2d 289

Bertram KRONEN, Plaintiff and Appellant, v. PACIFIC COAST SOCIETY OF ORTHODONTISTS ex rel., Defendants and Respondents.

Civ. 21818.

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

Sept. 30, 1965.

Rehearing Denied Oct. 19, 1965.

Hearing Denied Nov. 24, 1965.

Peter Behr, Edward J. Boessenecker, Behr, Boessenecker, Colangelo & Imlay, San Francisco, for appellant.

Peart, Baraty & Hassard, Alan L. Bonnington, San Francisco, for respondents.

SULLIVAN, Presiding Justice.

In this action for declaratory and injunctive relief brought by a dentist to secure a determination of his eligibility for active membership in two professional organizations, plaintiff appeals from a judgment denying him all relief against defendants Pacific Coast Society of Orthodontists (P.C.S.O.) and American Association of Orthodontists (A.A.O.) and various individual defendants, members ¹ of said Society and Association.

Plaintiff is a dentist licensed to practice in the states of New York and California. He is forty-four years old. He studied dentistry at New York University where he received his D.D.S. degree in 1945. He became licensed in New York and thereupon entered into the general practice of dentistry in that city. Shortly thereafter he commenced postgraduate work in orthodontics at New York University and in 1950 received a diploma in that specialty. From 1950 to 1952 he continued with the general practice of dentistry, along with some orthodontic work. From 1950 to 1951 he was an associate professor at a dental college. From 1952 to 1956 he was commissioned as an officer in the U. S. Navy, as a member of the dental corps.

Defendant A.A.O. is a Pennsylvania nonprofit corporation and defendant P.C.S.O. is a nonprofit unincorporated association which is a constituent society thereof. Both A.A.O. and P.C.S.O. are professional associations whose membership is composed of dentists specializing exclusively in orthodontics. P.C.S.O. is one of eight constitutent societies of A.A.O. organized on a regional basis and, generally speaking, embraces the Western United States, Alaska, Hawaii, the Philippine Islands and the Province of British Columbia. It is subdivided into three component societies along area lines and the central component consists of the membership in northern California, Nevada and Hawaii. The individual defendants are officers or committee members of the central component. (See fn. 1, ante.)

After plaintiff passed the California State Board examinations and was separated from active duty, he settled in California to practice as a specialist in orthodontics. He did some orthodontic work at first in San Francisco and Oakland and later in Ukiah and Santa Rosa on a part-time basis. Since August 1957 plaintiff has been continuously and exclusively in the practice of orthodontics in Santa Rosa. This area is within the central component of P.C.S.O. Plaintiff was admitted as an associate member of P.C.S.O. in December 1957.

We set forth in footnotes the pertinent by-law provisions of A.A.O. ² and P.C.S.O. ³ as well as other pertinent regulations of P.C.S.O. ⁴ dealing with the membership requirements of said associations.

On February 28, 1960 plaintiff filed out an application for active membership in the A.A.O. and the P.C.S.O., its constituent society. His application was endorsed by the same two active members (Drs. Cox and Ballard) who had endorsed his application for associate membership. After waiting several months, he eventually received a letter dated September 26, 1960 from Dr. George Hahn, chairman of the membership committee of P.C.S.O., informing him that his application was to the acted upon by the membership committee at a meeting to be held October 1, 1960. Plaintiff received another letter from Dr. Hahn dated October 5, 1960 advising him that the membership committee of P.C.S.O. was required to satisfy itself that a candidate for active membership 'possesses the necessary knowledge and has proven his ability to render competent orthodontic service' before the committee makes its recommendation to the board of directors. In this letter plaintiff was requested to present himself for examination at the next regular membership committee meeting in February 1961 at which time he would be expected to present certain examples of his work and to answer certain examination questions. Plaintiff testified that upon inquiring by telephone of Dr. Hahn why he was being examined and if this would be required of other applicants with graduate orthodontic training, the latter replied that the membership committee had a perfect right to examine him and did not have to explain why.

There was evidence that plaintiff's application for active membership was discussed at a meeting of the membership committee ⁵ of P.C.S.O. held in San Francisco in October 1960. Drs. Smith and Hahn, the two committee members from the central component of P.C.S.O. (in which plaintiff practices) had reported that there were numerous complaints about plaintiff's personality and competence. The committee felt that it 'should take a closer look at this man' and accordingly decided to exercise its function as a 'qualifying committee,' which usually examines prospective members who have been studying orthodontics as 'preceptees' or apprentices, ⁶ to ascertain for itself just what plaintiff's qualifications were. Dr. Muchnic, president of P.C.S.O., testified that the committee's action in having plaintiff submit to an examination was taken pursuant to paragraph III of certain membership requirements prescribed by P.C.S.O. (See fn. 4, ante.) However, since Drs. Hahn and Smith were the only two members of the committee from the central component (where plaintiff practiced) they felt, out of a sense of responsibility to the committee members representing other areas (see fn. 5, ante), that the entire committee should have an opportunity to pass on plaintiff's qualifications.

Plaintiff presented himself for examination by the P.C.S.O. membership committee at the University of California Medical Center in San Francisco on February 25, 1961. In line with the committee's decision the examination was conducted by qualified orthodontists from different areas. ⁷ Dr. Muchnic testified that plaintiff received the same treatment in his examination as the rest of the applicants being examined at that time. He also testified that it was not necessary to question the applicant on the cases which were exhibited 'because the case records speak for themselves,' and that they were interested in the results rather than the detailed manner in which he accomplished the results. Dr. Hahn testified that the examination was fair. Plaintiff passed the written test but failed the oral and technical part of the examination.

About March 1, 1961 Dr. Hahn informed plaintiff by telephone that he had failed the examination and also advised plaintiff that if he withdrew his application he would not be considered formally or officially as having failed, the matter would not be published in the society's bulletin and plaintiff could apply for active membership at a later time. Dr. Hahn also suggested that plaintiff return to Santa Rosa, improve his competency as an orthodontist, and improve his relations in that community with his patients and fellow practitioners. He informed plaintiff that 'we would give him all of the help that was possible to put him in a position to reapply. * * *' He also invited plaintiff to call upon him for advice with respect to the treatment of his cases or to watch Dr. Hahn treat his own cases. On March 2, 1961 plaintiff sent a letter to Dr. Hahn withdrawing his application and stating that he 'would like to apply at a future date.' Despite the incident of the examination, plaintiff remained an associate member in good standing.

Dr. Hahn testified that subsequently when plaintiff came to his office, he examined plaintiff's cases critically and made suggestions, showed plaintiff his own work, and advised plaintiff generally how to treat people in a profession dealing mainly with children. He stated that plaintiff's knowledge of orthodontics was satisfactory but his application of that knowledge was not and that he was sincerely trying to help plaintiff so that the latter could qualify for admission to the society. He further testified that if plaintiff had improved himself so as to meet the required standards of A.A.O., he himself would have endorsed plaintiff's application. Dr. Smith testified that two other committee members had advised plaintiff to take specifically named refresher courses.

In December 1961 plaintiff made preparations for filing another application for active membership. He obtained a printed form from P.C.S.O. and filled it out except for the endorsements of two members. He had spoken on the matter to Dr. Hahn who told him that he would probably have to submit some cases and reminded him that it was essential to have as endorsers two active members practicing in plaintiff's community. Plaintiff asked Dr. Murray Ballard and Dr. Cox, both of Santa Rosa, to endorse his application as they had his first application. Both men refused to do so when plaintiff told each of them that he would not permit them to come to his office to see his procedures and practice. Dr. Cox told plaintiff that there had been unfavorable reports about plaintiff's work and that plaintiff should allow someone to examine it. Plaintiff then approached Dr. Murray Ballard's brother, Dr. E. W. Ballard, the third of the three orthodontists in Santa Rosa who were active members of P.C.S.O. Dr. E. W. Ballard said that he wouldn't sign plaintiff's application unless he were invited into plaintiff's office to observe plaintiff's work but plaintiff apparently did not agree to such an arrangement. There was testimony by Dr. Hahn that it was customary for associate members to permit other orthodontists to...