Memorial Hosp. of So. Cal. v. State Health Planning Council

• Decision Date: 17 October 1972
• Citation: 28 Cal.App.3d 167,104 Cal.Rptr. 492
• Court: California Court of Appeals Court of Appeals
• Parties: MEMORIAL HOSPITAL OF SOUTHERN CALIFORNIA, a California corporation, et al., Plaintiffs and Appellants, v. STATE HEALTH PLANNING COUNCIL and Robert L. Jackson, Executive Secretary of State Health Planning Council, Defendants and Respondents. LOS ANGELES NEW HOSPITAL, a Limited Partnership, et al., Real Parties in Interest and Respondents. Civ. 40583.

Page 492

104 Cal.Rptr. 492

28 Cal.App.3d 167

MEMORIAL HOSPITAL OF SOUTHERN CALIFORNIA, a California corporation, et al., Plaintiffs and Appellants, v. STATE HEALTH PLANNING COUNCIL and Robert L. Jackson, Executive Secretary of State Health Planning Council, Defendants and Respondents LOS ANGELES NEW HOSPITAL, a Limited Partnership, et al., Real Parties in Interest and Respondents.

Civ. 40583.

Court of Appeal, Second District, Division 5, California.

Oct. 17, 1972.

Rehearing Denied Nov. 10, 1972.

Hearing Denied Dec. 13, 1972.

Musick, Peeler & Garrett, Ronald G. Trayner and Christopher A. Carr, Los Angeles, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for defendants and respondents State Health Planning Council and Robert L. Jackson.

Ralph R. Frank, Beverly Hills, for real parties in interest and respondents.

AISO, Associate Justice.

Plaintiffs ¹ appeal from a judgment (order) of dismissal (Code Civ.Proc. § 581, subd. 3) entered upon an order sustaining without leave to amend general demurrers interposed by defendants, State Health Planning Council and Robert L. Jackson, its executive secretary, and the real parties in interest ² to plaintiffs' petition seeking a writ of mandate to compel defendant State Health Planning Council to poll its members pursuant to Health and Safety Code section 438.3, paragraph 3, relative to a petition for a hearing assertedly pending before it in which plaintiffs are beneficially interested.

The real parties in interest have also moved in this court to dismiss the foregoing appeal because of plaintiffs' failure to post a five million dollar bond pursuant to an order of the superior court (made on April 18, 1972) (exhibit B to motion) granting the 'motion of real parties in interest to require undertaking to stay execution of judgment.'

In course of oral argument counsel for the real parties in interest indicated a greater interest in a determination of the merits of the appeal than the motion to dismiss the appeal; accordingly we first consider the issues raised by the appeal.

The Facts

We set forth the facts as reflected by the allegations of the petition, ³ from matters of which we may take judicial notice, ⁴ and admissions of fact found in the written arguments of the real parties in interest in support of their demurrer. ⁵

A planning system to coordinate capital expenditures, operating funds, and manpower utilization in connection with health facilities for the purpose of promoting the best interests of the community was set up pursuant to the provisions of Statutes of 1969, chapter 1451, which amended or promulgated sections 437 through 438.5 of the Health and Safety Code. (See Introduction, 17 Cal.Admin.Code, §§ 40500--40532.)

Plaintiffs are four hospitals having duly accredited acute facilities and doing business in the area of Los Angeles affected by the application. (L.A. 280) filed by the real party in interest, Los Angeles New Hospital, for a conversion of the hospital in question from a convalescent to an acute facility.

Defendant State Health Planning Council (hereafter 'SHPC' as denominated by the parties herein although the statutes refer to it as the Health Planning Council) is the body charged with providing comprehensive health facilities planning in the state. (Health & Saf.Code, § 437.) It is the highest administrative agency which may review the decisions or lack of decisions of subordinate health planning agencies with reference to applications such as that of the Los Angeles New Hospital in the instant case. Defendant Robert L. Jackson is the executive secretary of the SHPC appointed pursuant to section 437.4 ⁶ of the Health and Safety Code.

The Southern California Comprehensive Health Planning Council (hereafter SCCOMP) was at all times pertinent to this appeal ⁷ the area health planning agency immediately subordinate to the SHPC. One of the duties of the SCCOMP was to pass upon the application filed by Los Angeles New Hospital. ⁸ (Health & Saf.Code, § 437.7, subd. (e).) The SCCOMP on September 8, 1971, approved in its entirety the application of Los Angeles New Hospital.

The SHPC received on October 13, 1971, 'a Notice of Appeal and Petition for Hearing,' together with supporting documents, postmarked October 8, 1971, initiated 'by what appeared to be more than one-third of the Board of Directors of the Southern California Comprehensive Health Planning Council,' appealing the foregoing decision of September 8, 1971, bearing 18 signatures 'of supposedly voting members of the Board of Directors' of SCCOMP. On October 20, 1971, the acting administrator of SCCOMP advised SHPC that only 13 of the 18 persons who had signed the petition for a hearing were in fact voting board members of SCCOMP. Subsequent to the filing of the petition for hearing on October 8, 1971, 5 of the 13 voting members of the board of directors of SCCOMP, who had signed the notice of appeal and petition for hearing requested that their names be removed from the petition for hearing. ⁹ The SHPC apparently acting through its executive secretary ¹⁰ complied with the requests of the five directors and notified them in writing of this compliance. At the time the petition for hearing was filed, there were only 34 voting members on the Board of Directors of SCCOMP, which was authorized to have 39 such members on its board of directors. Following receipt of an Attorney General's opinion, dated November 11, 1971, opining, Inter alia, that the petition for hearing remain valid 'only so long as more than one-third of the directors of the appealing board continue to support the request for a hearing,' defendant Jackson, Executive Secretary of SHPC, on November 15, 1971, withdrew and 'closed' the appeal and declared the original decision of SCCOMP to be the final decision in the case.

Plaintiffs are objectors to the application of Los Angeles New Hospital, who appeared at all hearings to contest said application and who submitted both oral and written statements at the original hearing. (Fn. 5, Supra.)

Upon the theory that the 'withdrawal' of the petition for hearing filed with SHPC and closing of the appeal were invalid acts, plaintiffs demanded that defendants poll the voting members of SHPC pursuant to the third paragraph of section 438.3 of the Health and Safety Code. ¹¹ Defendants refused to perform the legal duty imposed upon them by statute, whereupon plaintiffs sought a writ of mandate in the superior court directing defendants to perform the poll requested.

Defendants interposed a general demurrer alleging that the petition failed to state a cause of action against them. The real parties in interest demurred on the grounds that plaintiffs had 'no beneficial interest in the litigation' and that defendant SHPC had neither the ability nor the legal authority to discharge the duty alleged by plaintiffs.

The trial court in sustaining the general demurrers without leave to amend found that 'as a matter of law: 1. The (plaintiffs) have no standing to compel the Health Planning Council to poll its members to make a determination as to whether or not a hearing will be held as provided for in Health and Safety Code Section 438.3; and, 2. The procedures provided for in Health and Safety Code Section 438.3 are discretionary and are not subject to mandate.' The judgment (order) of dismissal followed.

Discussion of Issues on Appeal

Although there are documents and memoranda in the record which seek to invoke equitable considerations against the grant of the writ of mandate and which are reiterated in the briefs, we are faced only with a review limited to ascertaining whether the demurrers were properly sustained without leave to amend.

A. No Effective Withdrawal of Petition for Hearing.

The trial court did not specifically rule that there was no petition for hearing by SHPC pending before that agency and the grounds upon which it based its ruling on the demurrers are not necessarily inconsistent with the pendency of an appeal (petition for a hearing). However, we consider this question because the respondents (defendants and real parties in interest) have raised it on appeal. 'As to general demurrers, 'the demurrant is not limited to the reasons and arguments he advanced below, but is entitled to present to the appellate court any and all reasons whereunder the demurrer is properly sustainable.' (2 Chadbourn, Grossman and Van Alstyne, Cal.Practice (1961) § 1402, p. 528; Meier v. Hayes (1937) 20 Cal.App.2d 451, 453, 67 P.2d 120.)' (Zumbrun v. University of Southern California, Supra, 25, Cal.App.3d 1, 8--9, 101 Cal.Rptr. 499, 503.)

Plaintiffs allege, Inter alia, that 'Pursuant to H & S Code § 438.3, a timely Notice of Appeal and Petition for Hearing was filed, together with supporting documents, by more than one-third of the members of the Board of Directors of SCCOMP.' In absence of any special demurrer to this allegation, it appears that an appeal to the SHPC from the September 8, 1971, decision of SCCOMP was perfected on October 8, 1971. (Health & Saf.Code, §§ 438.1 and 438.3; 17 Cal.Admin.Code, § 40526.) ¹²

Defendants and the real parties in interest contend that the request for withdrawal of their signature to the petition for hearing by 5 of the 13 qualified signatories had the effect of invalidating the petition for a hearing (notice of appeal) even though the request was made after the period for filing a petition for hearing had expired. The petition in this case was filed on the last day available for filing the petition (notice of appeal). Counsel have cited no authorities dealing with this precise issue and our research to date has failed to turn up any directly in point. However, reason and considerations of public policy force us to disagree with the contention advanced by respondents (defendants and real parties in interest).

As a general rule in judicial proceedings an appellant may voluntarily...