Pinsker v. Pacific Coast Soc. of Orthodontists

• Decision Date: 12 November 1969
• Citation: 81 Cal.Rptr. 623,1 Cal.3d 160
• Court: California Supreme Court
• Parties: , 460 P.2d 495 Leon J. PINSKER, Plaintiff and Appellant, v. PACIFIC COAST SOCIETY OF ORTHODONTISTS et al., Defendants and Respondents. L.A. 29658.

Page 623

81 Cal.Rptr. 623

1 Cal.3d 160, 460 P.2d 495

Leon J. PINSKER, Plaintiff and Appellant, v. PACIFIC COAST SOCIETY OF ORTHODONTISTS et al., Defendants and Respondents.

L.A. 29658.

Supreme Court of California,

In Bank.

Nov. 12, 1969.

Leslie B. Joseph, Gyler & Gottlieb and Emanuel Gyler, Long Beach, for plaintiff and appellant.

Peart, Hassard, Smith & Bonnington, Alan L. Bonnington, San Francisco, Overton, Lyman & Prince and Fred S. Lack, Jr., Los Angeles, for defendants and respondents.

McCOMB, Justice.

Plaintiff appeals from a judgment granted to defendants pursuant to section 631.8 of the Code of Civil Procedure at the close of plaintiff's evidence, insofar as the judgment is based on the view that, in the absence of a showing of 'economic necessity' for membership in defendant organizations, plaintiff is not entitled to judicial review of their denial of his application for membership. Defendants are American Association of Orthodontists (AAO), Pacific Coast Society of Orthodontists (PCSO), Pacific Coast Society of Orthodontists, Southern Component (PCSOS), and various officers and committee members thereof. ¹

Facts: Plaintiff is a member of the American Dental Association (ADA) and obtained a license in 1953 to practice general dentistry in this state, granted pursuant to the Dental Practice Act. (Bus. & Prof.Code, § 1600 et seq.) He began to practice here in 1954, and two years later formed a partnership in Long Beach with Dr. Max Schleimer. Plaintiff and Dr. Schleimer, as partners, practiced orthodontics, one of eight dental specialties recognized by the ADA, which sets the standards for the dental profession in the United States.

The Dental Practice Act does not provide for the separate licensing of spe cialists in the field of orthodontics. The only recognized certification therein is the 'Diplomate' certificate conferred by the American Board of Orthodontics (ABO), which is recognized by the ADA as the sole certifying board within this specialty. Membership in the AAO is apparently, if not absolutely essential, at least extremely helpful in obtaining ABO certification. It may also be a prerequisite to attaining membership in certain foundations dedicated to special orthodontics techniques and being admitted to certain advanced educational programs. In order to attain membership in the AAO, a dentist practicing in plaintiff's area must first become a member of the PCSOS, membership in which would, in turn, qualify fim as a member of the PCSO, as well as the AAO.

After formation of the partnership with Dr. Schleimer, plaintiff, who had taken certain postgraduate courses in mouth rehabilitation before coming to California, enrolled at Columbia University Division of Orthodontics. There he completed a 17-months' postgraduate course and received a Certificate of Training in Orthodontics, the rough equivalent of a master's degree. In this way, plaintiff obtained more than 1500 clock hours of course work in orthodontia at a dental school certified by the ADA Council on Dental Education, one of the requirements for membership in defendant organizations.

While he was still at Columbia, plaintiff applied for membership in PCSOS, with the understanding that his application would be passed upon after completion of his course work. After returning to California, plaintiff was notified by letter that his application had been denied, but no reason was stated for his rejection.

After plaintiff requested that the Secretary of PCSOS give him some reason for the rejection, he was contacted by Dr. Lee, a Long Beach member of PCSOS, at the secretary's request. According to plaintiff's testimony, Dr. Lee told him that ordinarily the reason for rejection is confidential, but that he felt he could divulge it 'off the record,' and stated: 'Aren't you in there (practicing in partnership with) Dr. Schleimer, who is a non-member of the Association, and aren't you working on each other's patients? * * * (I)f you can change that relationship, I would think that your application might be favorably reconsidered.' Plaintiff allegedly promised to take immediate steps to segregate his patients from those of Dr. Schleimer. He reapplied for membership and claims that the separation of patients was completed within a few weeks after his conversation with Dr. Lee. Defendants offer to prove, on a resumption of trial sought by them, that this is not so. A few months after plaintiff's second application was filed, he received a notice of 'final rejection,' which, like the first notice, contained no reasons.

Thereafter, plaintiff filed the present action seeking an injunction to require defendants to admit him as a member of AAO and PCSOS. ² In granting defendants' motion under section 631.8 of the Code of Civil Procedure upon the close of plaintiff's case, the trial court concluded that 'There is no economic or other necessity for membership in defendant associations justifying judicial intervention. * * * Plaintiff has no right to judicially compel defendants to admit him to membership.' Thus, the trial court followed the rule urged by defendants that a voluntary association's refusal of membership to an applicant does not give rise to a legal remedy, no matter how arbitrary or unfair the refusal, unless the applicant can show that the refusal infringes a contractual or property right of his or that the organization effectively controls his right and ability to earn a living. (See James v. Marinship Corp., 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900; Smith v. Kern County Medical Assn., 19 Cal.2d 263, 120 P.2d 874; Tatkin v. Superior Court, In and For Los Angeles County, 160 Cal.App.2d 745, 755, 326 P.2d 201; Falcone v. Middlesex County Medical Society, 34 N.J. 582, 170 A.2d 791, 89 A.L.R.2d 952; compare Kronen v. Pacific Coast Society of Orthodontists, 237 Cal.App.2d 289, 46 Cal.Rptr. 808; Blende v. County Medical Society, 96 Ariz. 240, 245, 393 P.2d 926, 930 (applicant's general right to due process).)

At the trial, it was stipulated, and the trial court found, that plaintiff had fulfilled all the requirements for membership as stated in the constitution and bylaws of defendant organizations except that he had not been elected to membership by the board of directors.

Questions: First. Can plaintiff, by showing that exclusion from membership in defendant associations deprives him of substantial economic advantages, establish a right to judicial intervention with respect to the denial of his application for membership?

Yes. Membership in AAO and its constituent organizations is not essential for a dentist desiring to specialize in orthodontics. Plaintiff's specialization in orthodontics is proper under both the Dental Practice Act and the ADA's code of ethics, and his earnings therefrom are substantial. However, although any licensed practitioner has a right to hold himself out as a qualified specialist, evidence of membership in a specialty group acknowledged by the ADA is the only available sanction of specialized professional qualification; and the trial court found that membership in defendant associations would be economically advantageous to plaintiff and that he had suffered financial loss by reason of their refusal to elect him to membership. Plaintiff contends that he has therefore established an enforceable right to compel defendant associations to admit him.

Plaintiff argues that by being excluded from defendant associations he has been deprived of educational, financial, and professional advantages. He alleges that had he been granted membership, he could anticipate an...