Preview
John N. Kitta, SBN: 71504
1
James J. Huang, SBN: 309476
2 JOHN N. KITTA & ASSOCIATES ELECTRONICALLY
3
39560 Stevenson Place F I L E D
Fremont, CA 94539 Superior Court of California,
County of San Francisco
4
TEL: (510) 797-7990 11/07/2019
Clerk of the Court
5 FAX: (510) 745-8606 BY: RONNIE OTERO
E-MAIL: jkitta@aol.com Deputy Clerk
6 jhuang@johnkittalaw.com
7
Attorneys for Petitioner
8
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN FRANCISCO
11
12 MIN LI DAO LIANG, ) Case No.: CPF-19516810
)
13 Petitioner ) Case Filed: August 21, 2019
)
14 v. ) PETITIONER’S SUPPLEMENTAL
) BRIEF & FIRST REQUEST FOR
15 ) JUDICIAL NOTICE IN OPPOSITION TO
BENJAMIN BODEA, ) RESPONDENTS’ DEMURRER
16 )
CALIFORNIA ACUPUNCTURE BOARD ) (CAL. CIV. PROC. § 1085)
17
Respondent(s)
18 Date: November 14, 2019
Time: 9:30 AM
19 Dept.: 302
Judge: Hon. Nathan Schulman
20 Trial Date: N/A
21
22
23
24 PETITIONER’S SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE
IN OPPOSITION TO RESPONDENTS’ DEMURRER
25
26
27
28
SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE
IN OPPOSITION TO RESPONDENTS’ DEMURRER
WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810)
–i–
I. PETITIONER HAS LIKELY STANDING UNDER THE CURRENT
1
LEGAL FRAMEWORK AS A PRACTITIONER BEFORE THE BOARD,
2 NOT AN UNRELATED PRIVATE CITIZEN
3 First, Petitioner respectfully requests the court to take judicial notice of the following
4 decisional authority of this State, a recent Supreme Court decision interpreting the standing of
5 Code Civ. Proc., § 1086 [Evidence Code § 451(a)]: Weatherford v. City of San Rafael (2017) 2
6 Cal. 5th 1241. In particular, supra, at 1247-1248, which states in part:
7 //
8 Our standing jurisprudence nonetheless reflects a sensitivity to broader prudential and
separation of powers considerations elucidating how and when parties should be entitled
9
to seek relief under particular statutes. While a plaintiff is generally required to have a
10 direct and substantial beneficial interest in order to seek a writ of mandate under section
1086, for example, we have long allowed petitioners to seek relief where "`"the question is
11 one of public right and the object of the mandamus is to procure the enforcement of a public
12
duty."'" (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155,
166 [127 Cal.Rptr.3d 710, 254 P.3d 1005] (Save the Plastic Bag Coalition); see also Bd.
13 of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 101 [162 P.2d 627] [concluding that
a party's interest "`in having the laws executed and the duty in question enforced'" is
14 sufficient even absent a "`legal or special interest'"].) This exception to the beneficial
15 interest requirement protects citizens' opportunity to "ensure that no governmental body
impairs or defeats the purpose of legislation establishing a public right." (Green v.
16 Obledo (1981) 29 Cal.3d 126, 144 [172 Cal.Rptr. 206, 624 P.2d 256].)
17
Notwithstanding the arguments for broad "public interest" standing, though, we have
18 continued to recognize the need for limits in light of the larger statutory and policy context.
For instance, in Dix v. Superior Court (1991) 53 Cal.3d 442 [279 Cal.Rptr. 834, 807 P.2d
19 1063], we rejected the petitioner's claim that a private citizen had either a "`beneficial
interest'" or public interest standing to challenge a criminal defendant's resentencing. (Id. at
20
p. 451.) Though the petitioner-victim argued that the prosecutor's decisions in the
21 resentencing proceeding implicated a "`public duty,'" we rejected the invitation to infringe
upon a core aspect of prosecutorial discretion. (Id. at p. 453.) Even if one might plausibly
22 understand a prosecutor's duties under the law as public, construing public interest standing
to authorize such suits would be at odds with both the executive decisionmaking role of
23
prosecutors, as well as the deference we ordinarily afford them. (Id. at p. 451 ["The
24 prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file
and pursue, and what punishment to seek"]; see also Manduley v. Superior Court (2002)
25 27 Cal.4th 537, 552 [117 Cal.Rptr.2d 168, 41 P.3d 3] ["`The prosecution's authority in this
regard is founded, among other things, on the principle of separation of powers, and
26
generally is not subject to supervision by the judicial branch.'"].)
27
(emphasis added.)
28
SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE
IN OPPOSITION TO RESPONDENTS’ DEMURRER
WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810)
– ii –
1 Here, the Respondent has not presented a compelling interest above that of the
2 Petitioner’s interest in having the laws enforced on behalf of himself and other practitioners
3 before the Board. Rather, the Board’s argument continues to be that because individual relief was
4 granted, his right to seek redress on behalf of others terminates (Reply, pp. 2-4, Section I-II).
5 This is contrary to the body of law and our State’s public policy, as recently cited above.
6 Petitioner graciously accepts the Board finally performing its duties as required under the
7 Government Code but as argued below, the Board granting the relief does not make this action
8 moot—in fact, it becomes another reason why this Court should reach the merits.
9
II. IN CASES OF BROAD PUBLIC INTEREST CAPABLE OF REPETITION
10 YET EVADING REVIEW, COURT NEEDS TO EXCUSE MOOTNESS AND
REACH THE MERITS
11
12 Finally, Petitioner respectfully requests the court to take judicial notice of the following
13 decisional authority of this State, reflecting the preference to look past mootness in cases like
14 ours. [Evidence Code § 451(a)]: Bracher v. Superior Court (People) (2012) 205 Cal.App.4th
15 1445 (issuing peremptory writ directing trial court to excuse misdemeanor defendants from
16 appearing personally at conferences where represented by counsel.) In particular, supra, at 1454-
17 1455, which states in part:
18 //
19
Because the issues concern misdemeanor cases, petitioners filed a petition for writ of
prohibition or mandate with the superior court in the first instance, on December 7, 2010.
20 Petitioners requested relief for both current and future litigants. The superior court
entered its order on the writ petition approximately one year later, on December 27, 2011,
21 concluding that the issues set forth in the writ petition were moot because the
22
underlying cases had all been resolved by plea or jury trial.
23
….
24
Preliminarily, real party in interest argues that the issues presented are moot. Real party
25 in interest argues that a new petition could be filed in connection with another
misdemeanor case.
26
27 The court may excuse mootness and reach the merits of an issue that is "capable of
repetition yet evading review." (In re Raymond G. (1991) 230 Cal.App.3d 964, 967 [281
28 Cal.Rptr. 625].) Case law recognizes the need to address such issues, particularly in
SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE
IN OPPOSITION TO RESPONDENTS’ DEMURRER
WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810)
– iii –
"matters of broad public interest that are likely to recur." (In re Mark C. (1992) 7
1
Cal.App.4th 433, 440 [8 Cal.Rptr.2d 856]; accord, In re Jody R. (1990) 218 Cal.App.3d
2 1615, 1621-1622 [267 Cal.Rptr. 746].)
3 We agree with petitioners that this petition presents an issue that is likely to recur while
evading review. The trial court's rulings as well as the assistant presiding judge's
4
declaration indicate that this petition raises issues of interest to all misdemeanor
5 defendants in El Dorado County.
(emphasis added)
6 //
7 Here, nearly mirroring the above facts of the Bracher case, (1) the parties do not dispute
8 Board granted the relief sought and the Board argues that the instant petition is moot. (2) It is
9 likely another practitioner will be able to file a writ to address the delay in setting a hearing from
10 the Board. (3) The parties do not dispute that setting a timely hearing with an actual deadline is a
11 not an important public right affecting all practitioners before the Board. (4) The Board granting
12 individual relief to practitioners allows it to evade review, as it has tried here, and nothing
13 precludes the Board from further initiating and delaying procedures against the Petitioner or
14 other practitioners. Finally, (5) the instant Petitioner raises issues of interest to all practitioners
15 before the Board.
16 III. CONCLUSION
17 Therefore, the Board’s demurrer should be overruled either based on (1) Petitioner’s
18 standing to the exception to standing in matters of public interest where he is a judicially
19 exempted from standing, or (2) where Respondent can evade review against future practitioners
20 under accusation, by repeating the instant delay and then grant interim relief, the Court must
21 reach the merits. Arguing that the Board needs to comply with the OAH’s procedures or use its
22 forms is, again, different from not doing so sooner.
23
24 DATED: November 7, 2019 Respectfully Submitted,
25
26 By: ___/JHuang/_______________________
27
James J. Huang, Esq.
Attorney for Petitioner
28
SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE
IN OPPOSITION TO RESPONDENTS’ DEMURRER
WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810)
– iv –
Preview
John N. Kitta, SBN: 71504 1 James J. Huang, SBN: 309476 2 JOHN N. KITTA & ASSOCIATES ELECTRONICALLY 3 39560 Stevenson Place F I L E D Fremont, CA 94539 Superior Court of California, County of San Francisco 4 TEL: (510) 797-7990 11/07/2019 Clerk of the Court 5 FAX: (510) 745-8606 BY: RONNIE OTERO E-MAIL: jkitta@aol.com Deputy Clerk 6 jhuang@johnkittalaw.com 7 Attorneys for Petitioner 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 MIN LI DAO LIANG, ) Case No.: CPF-19516810 ) 13 Petitioner ) Case Filed: August 21, 2019 ) 14 v. ) PETITIONER’S SUPPLEMENTAL ) BRIEF & FIRST REQUEST FOR 15 ) JUDICIAL NOTICE IN OPPOSITION TO BENJAMIN BODEA, ) RESPONDENTS’ DEMURRER 16 ) CALIFORNIA ACUPUNCTURE BOARD ) (CAL. CIV. PROC. § 1085) 17 Respondent(s) 18 Date: November 14, 2019 Time: 9:30 AM 19 Dept.: 302 Judge: Hon. Nathan Schulman 20 Trial Date: N/A 21 22 23 24 PETITIONER’S SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO RESPONDENTS’ DEMURRER 25 26 27 28 SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO RESPONDENTS’ DEMURRER WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810) –i– I. PETITIONER HAS LIKELY STANDING UNDER THE CURRENT 1 LEGAL FRAMEWORK AS A PRACTITIONER BEFORE THE BOARD, 2 NOT AN UNRELATED PRIVATE CITIZEN 3 First, Petitioner respectfully requests the court to take judicial notice of the following 4 decisional authority of this State, a recent Supreme Court decision interpreting the standing of 5 Code Civ. Proc., § 1086 [Evidence Code § 451(a)]: Weatherford v. City of San Rafael (2017) 2 6 Cal. 5th 1241. In particular, supra, at 1247-1248, which states in part: 7 // 8 Our standing jurisprudence nonetheless reflects a sensitivity to broader prudential and separation of powers considerations elucidating how and when parties should be entitled 9 to seek relief under particular statutes. While a plaintiff is generally required to have a 10 direct and substantial beneficial interest in order to seek a writ of mandate under section 1086, for example, we have long allowed petitioners to seek relief where "`"the question is 11 one of public right and the object of the mandamus is to procure the enforcement of a public 12 duty."'" (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 166 [127 Cal.Rptr.3d 710, 254 P.3d 1005] (Save the Plastic Bag Coalition); see also Bd. 13 of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 101 [162 P.2d 627] [concluding that a party's interest "`in having the laws executed and the duty in question enforced'" is 14 sufficient even absent a "`legal or special interest'"].) This exception to the beneficial 15 interest requirement protects citizens' opportunity to "ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right." (Green v. 16 Obledo (1981) 29 Cal.3d 126, 144 [172 Cal.Rptr. 206, 624 P.2d 256].) 17 Notwithstanding the arguments for broad "public interest" standing, though, we have 18 continued to recognize the need for limits in light of the larger statutory and policy context. For instance, in Dix v. Superior Court (1991) 53 Cal.3d 442 [279 Cal.Rptr. 834, 807 P.2d 19 1063], we rejected the petitioner's claim that a private citizen had either a "`beneficial interest'" or public interest standing to challenge a criminal defendant's resentencing. (Id. at 20 p. 451.) Though the petitioner-victim argued that the prosecutor's decisions in the 21 resentencing proceeding implicated a "`public duty,'" we rejected the invitation to infringe upon a core aspect of prosecutorial discretion. (Id. at p. 453.) Even if one might plausibly 22 understand a prosecutor's duties under the law as public, construing public interest standing to authorize such suits would be at odds with both the executive decisionmaking role of 23 prosecutors, as well as the deference we ordinarily afford them. (Id. at p. 451 ["The 24 prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek"]; see also Manduley v. Superior Court (2002) 25 27 Cal.4th 537, 552 [117 Cal.Rptr.2d 168, 41 P.3d 3] ["`The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and 26 generally is not subject to supervision by the judicial branch.'"].) 27 (emphasis added.) 28 SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO RESPONDENTS’ DEMURRER WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810) – ii – 1 Here, the Respondent has not presented a compelling interest above that of the 2 Petitioner’s interest in having the laws enforced on behalf of himself and other practitioners 3 before the Board. Rather, the Board’s argument continues to be that because individual relief was 4 granted, his right to seek redress on behalf of others terminates (Reply, pp. 2-4, Section I-II). 5 This is contrary to the body of law and our State’s public policy, as recently cited above. 6 Petitioner graciously accepts the Board finally performing its duties as required under the 7 Government Code but as argued below, the Board granting the relief does not make this action 8 moot—in fact, it becomes another reason why this Court should reach the merits. 9 II. IN CASES OF BROAD PUBLIC INTEREST CAPABLE OF REPETITION 10 YET EVADING REVIEW, COURT NEEDS TO EXCUSE MOOTNESS AND REACH THE MERITS 11 12 Finally, Petitioner respectfully requests the court to take judicial notice of the following 13 decisional authority of this State, reflecting the preference to look past mootness in cases like 14 ours. [Evidence Code § 451(a)]: Bracher v. Superior Court (People) (2012) 205 Cal.App.4th 15 1445 (issuing peremptory writ directing trial court to excuse misdemeanor defendants from 16 appearing personally at conferences where represented by counsel.) In particular, supra, at 1454- 17 1455, which states in part: 18 // 19 Because the issues concern misdemeanor cases, petitioners filed a petition for writ of prohibition or mandate with the superior court in the first instance, on December 7, 2010. 20 Petitioners requested relief for both current and future litigants. The superior court entered its order on the writ petition approximately one year later, on December 27, 2011, 21 concluding that the issues set forth in the writ petition were moot because the 22 underlying cases had all been resolved by plea or jury trial. 23 …. 24 Preliminarily, real party in interest argues that the issues presented are moot. Real party 25 in interest argues that a new petition could be filed in connection with another misdemeanor case. 26 27 The court may excuse mootness and reach the merits of an issue that is "capable of repetition yet evading review." (In re Raymond G. (1991) 230 Cal.App.3d 964, 967 [281 28 Cal.Rptr. 625].) Case law recognizes the need to address such issues, particularly in SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO RESPONDENTS’ DEMURRER WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810) – iii – "matters of broad public interest that are likely to recur." (In re Mark C. (1992) 7 1 Cal.App.4th 433, 440 [8 Cal.Rptr.2d 856]; accord, In re Jody R. (1990) 218 Cal.App.3d 2 1615, 1621-1622 [267 Cal.Rptr. 746].) 3 We agree with petitioners that this petition presents an issue that is likely to recur while evading review. The trial court's rulings as well as the assistant presiding judge's 4 declaration indicate that this petition raises issues of interest to all misdemeanor 5 defendants in El Dorado County. (emphasis added) 6 // 7 Here, nearly mirroring the above facts of the Bracher case, (1) the parties do not dispute 8 Board granted the relief sought and the Board argues that the instant petition is moot. (2) It is 9 likely another practitioner will be able to file a writ to address the delay in setting a hearing from 10 the Board. (3) The parties do not dispute that setting a timely hearing with an actual deadline is a 11 not an important public right affecting all practitioners before the Board. (4) The Board granting 12 individual relief to practitioners allows it to evade review, as it has tried here, and nothing 13 precludes the Board from further initiating and delaying procedures against the Petitioner or 14 other practitioners. Finally, (5) the instant Petitioner raises issues of interest to all practitioners 15 before the Board. 16 III. CONCLUSION 17 Therefore, the Board’s demurrer should be overruled either based on (1) Petitioner’s 18 standing to the exception to standing in matters of public interest where he is a judicially 19 exempted from standing, or (2) where Respondent can evade review against future practitioners 20 under accusation, by repeating the instant delay and then grant interim relief, the Court must 21 reach the merits. Arguing that the Board needs to comply with the OAH’s procedures or use its 22 forms is, again, different from not doing so sooner. 23 24 DATED: November 7, 2019 Respectfully Submitted, 25 26 By: ___/JHuang/_______________________ 27 James J. Huang, Esq. Attorney for Petitioner 28 SUPPLEMENTAL BRIEF & FIRST REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO RESPONDENTS’ DEMURRER WRIT OF MANDATE (CAL.CODE. PROC. § 1085) – (CPF-19-516810) – iv –