Appendix — Le Bup Thi Dao v. Board of Medical Quality Assurance of California

EDITOR'S NOTE

—————

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

Supreme Court, U.S,

FILED

SEP 13 1999

H F. SPANIOL, JR,

CLERK

4 . AQ

In the Supreme Co

United States

Ocroser Term, 1990

Le Burp Tur Dao, et al,

Petitioners,

vs.

BOARD OF MEDICAL QUALITY ASSURANCE

OF THE STATE OF CALIFORNIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the Court of Appeal! of

the State of California, First Appellate District

APPENDICES TO BRIEF FOR THE

BOARD OF MEDICAL QUALITY ASSURANCE, et al.

IN OPPOSITION

JouNn K. VAN De Kamp,

Attorney General of the

State of California .

PAuL V. BISHOP

General

Deputy Attorney

(Counsel of Record)

VivigN HARA HERSH

Susan K. MEaDows

Deputy Attorneys General

DEPARTMENT OF JUSTICE

STATE OF CALIFORNIA

OFFICE OF THE ATTORNEY

GanERAL

1515 “K” Street, Suite 511

Sacramento, CA 94244-2550

Telephone: (916) 324-5337

‘3 Counsel for Respondents

September 14, 1990 oa

ee ee ee ee ee

STATUTORY APPENDIX

z. The following are the full texts of the provisions of

the California Business and Professions Code cited in

this brief.

§ 2005. Division of licensing; responsibilities

" The Division of Licensing shall have the responsibility for the following:

(a) Approving undergraduate and graduate medical education programs.

(b) Approving clinical clerkship and special programs and hospitals for

such programs.

(c) Developing and administering the physician's and surgeon's licensure

examination.

(d) Issuing licenses and certificates under the board's jurisdiction.

(e) Administering the board’s continuing medical education program.

(f) Administering the student loan program.

(Added by Stats.1980, c. 1313, p. 4445, § 2.)

§ 2080. Application of article

(a) Except as otherwise provided, the provisions of this article applicable to

applications generally shall apply to all certificates issued.

(b) Every applicant for a physician's and surgeon's certificate shall comply

with the requirements of this article unless other specific requirements of this

chapter are applicable to a particular class of applicant.

(Added by Stats.1980, c. 1313, p. 4454, § 2.)

§ 2081. Application blanks; verification

Each application shall be made upon a form provided by tke Division of

Licensing, and each application form shall contain a legal verification to be

signed by the applicant verifying Uider penalty of perjury that the informa-

tion provided by the applicant is true and correct and that any information in

supporting documents provided by the applicant is true and correct.

(Added by Siats.1980, c. 1313, p. 4454, § 2. Amended by Stats.1986, c. 220, § 8, eff.

June 30, 1986.)

la

§ 2082. Contents and attached documents

Each application shall include the following:

(a) A diploma issued by an approved medical school. The requirements of

the school shall have been at the time of granting the diploma in no degree

less than those required under this chapter or by any preceding medical

practice act at the time that the diploma was granted. In lieu of a diploma,

the applicant may submit evidence satisfactory to the Division of Licensing of

having possessed the same.

(b) An official transcript or other official evidence satisfactory to the

division showing each approved medical school in which a resident course of

professional instruction was pursued covering the minimum requirements for

certification as a physician and surgeon, and that a diploma and degree were

granted by the school.

(c) Such other information concerning the professional instruction and

preliminary education of the applicant as the division may require.

(d) An affidavit showing to the satisfaction of the division that the applicant

is the person named in each diploma and transcript that he or she submits,

that he or she is the lawful holder thereof, and that such diploma or transcript

was procured in the regular course of professional instruction and examina-

tion without fraud or misrepresentation.

(Added by Stats.1980, c. 1313, p. 4454, § 2.)

§ 2083. Tender of fee; filing

Each application for a certificate shall be accompanied by the fee required

by this chapter and shall be filed with the Division of Licensing.

(Added by Stats.1980, c. 1313, p. 4455, § 2. Amended by Stats.1987, c. 1368, § 1.)

§ 2084. Approval of schools

The Division of Licensing may approve every school which substantially

complies with the requirements of this chapter for resident courses of profes-

sional instruction. Graduates of medical schools approved under this section

shall be deemed to meet the requirements of Section 2089. Medical schools

accredited by a national accrediting agency approved by the division and

recognized by the United States Department of Education shall be deemed

approved by the division under this section. Nothing in this chapter prohibits

the division from considering the quality of the resident courses of profession-

al instruction required for certification as a physician and surgeon.

(Added by Stats.1980, c. 1313, p. 4455, § 2. Amended by Stats.!985, c. 1176, § 2:

Stats.1985, c. 1178, § 1.)

2a

§ 2085. Graduates from special medical school programs of approved

medical schools; failure to meet specified curriculum require- -

ments; provisions for applicant approval; presumption

(a) Notwithstanding Section 2084, a graduate of an approved medicai

school located in the United States or Canada who has graduated from a

special medical school program which does not substantially meet the re-

quirements of Section 2089 with respect to any aspect of curriculum length or °

content may be approved by the division if the division determines that the

applicant has otherwise received adequate instruction in the subjects listed in

subdivision (b) of Section 2089. The division may require an applicant under

this section to undertake additional education to bring up to standard,

instruction in the subjects listed in subdivision (b) of Section 2089 as a

condition of issuing a physician’s and surgeon's certificate. In approving an

applicant under this section, the division may take into account the appli-

cant’s total relevant academic experience, including performance on standard-

ized national examinations.

(b)(1) Notwithstanding subdivision (a) or Sections 2084 and 2089, an appli-

cant who is a graduate of an approved medical school located in the United

States or Canada who has graduated from a special medical school program

that does not substantially meet the requirements of Section 2089 with respect

to any aspect of curriculum length or content shall be presumed to meet the

requirements of Sections 2084 and 2089 if the special medical school program

has been reviewed and approved by a national accrediting agency approved

by the division and recognized by the United States Department of Education.

(2) This presumption may be overcome upon a finding by the division that

the medical education received by the applicant is not the educational equiva-

lent of the medical education received by graduates of medical schools

approved pursuant to subdivision (a) or Section 2084. In making its finding,

the division shall consider, at a minimum, the applicant’s total academic and

medical training experience prior to, and following, as well as during, medi-

cal school, the applicant's performance on standardized national examina-

tions, including the National Board Examinations, the applicant's achieve-

ments as a house staff officer, and the number of years of postgraduate

medica] training completed by the applicant.

(3) An applicant under this subdivision who (A) has satisfactorily complet-

ed at least two years of postgraduate clinical training approved by the

Accreditation Council for Graduate Medical Education or the Coordinating

Council of Medical Education of the Canadian Medical Association and whose

postgraduate training has included at feast one year of clinical contact with

patients and (B) has achieved a passing score in each subject area of the

3a

written examination required for licensure, satisfies the requirements of

Sections 2084 and 2089. For purposes of this subdivision, a passing score on

a subject area in Part I of the written examination shall be a standard score of

380 or higher, and for a subject area in Part II of the examination, a standard

score of 290 or higher. For purposes of this subdivision, an applicant who

has satisfactorily completed at least two years of approved postgraduate

clinical training on or before July 1, 1987, shall not be required to have at

least one year of clinical contact with patients.

(4) Am applicant who has not achieved a passing score in one or more

subject areas of the written examination required for licensure may otherwise

demonstrate to the satisfaction of the division that he or she possesses

adequate skills, knowledge, and ability in the particular subject area or areas

of the examination not passed.

(5) An applicant who has not achieved a passing score in one or more

subject areas of the required examination may, at the discretion of the

division, be allowed to remedy that deficiency by achieving a passing score in

the pertinent subject area or areas through a reexamination administered

under the auspices of the division, at the applicant's expense.

(6) Applicants under this subdivision who apply after satisfactorily com-

pleting one year of approved postgraduate training shal] have their applica-

tions reviewed by the division and shal] be informed by the division either

that satisfactory completion of a second year of approved postgraduate

training will result in their being deemed to meet the requirements of

Sections 2084 and 2089, or informed of any deficiencies in their qualifications

or documentation and the specific remediation, if any, required by the

division to meet the requirements of Sections 2084 and 2089. Upon satisfac-

tory completion of the specified remediation, the division shal! promptly issue

a license to the applicant.

(Added by Stats.1985, c. 1169, § 1; Stats.198S, c. 1176, § 3. Amended by Stats. 1986, c.

1237, § 1, eff. Sept. 26, 1986; Stats.1987, c. 30, § 1, eff. May 28, 1987.)

§ 2086. Evaluation of curricula of medical schools; medical consultants

° and investigators

The Division of Licensing may utilize medical consultants and investigators

employed by the board pursuant to Section 2020 to evaluate the curricula of

medical schools. A medical consultant or investigator shal] meet such rea-

sonable standards of expeence and education, to be determined by the

division, as will enable himpor her to competently perform such duties of

evaluation.

(Added by Stats.1980, c. 1313, p. 4455, § 2.)

4a

§ 2087. Court action in event of disapproval or rejection of applicant

If any medical school is not approved by the Division of Licensing or any

applicant for examination is rejected by it, then the school or the applicant

may commence an action in the superior court as provided in Section 2019

against the division to compel it to approve the school or to admit the

applicant to examination or for any other appropriate relief. If the applicant

is denied admittance to the examination or a certificate on the grounds of

unprofessional conduct, the provisions of Article 12 (commencing with Sec-

tion 2220) shall apply. In such an action the court shall proceed under

Section 1094.5 of the Code of Civil Procedure, except that the court may not

exercise an independent judgment on the evidence. The action shall be

speedily determined by the court and shal] take precedence over all matters

pending therein except criminal cases, applications for injunction, or other

matters to which special precedence may be given by law.

{Added by Stats.1980, c. 1313, p. 4455, § 2.)

§ 2088. Premedical educational requirements

Each applicant shall present an official transcript or other official evidence

to the Division of Licensing that he or she has completed two years of

preprofessional postsecondary education, or its equivalent, before completing

the resident course of professional instruction.

The two-year preprofessional postsecondary education shall include the

subjects of physics, chemistry, and biology. In the event that one of the above

subjects was not completed as a part of that postsecondary education, an

applicant shall complete a course of instruction in such subjects in an

accredited postsecondary educational institution prior to taking the written

examination for licensure.

(Added by Stats.1980, c. 1313, p. 4456, § 2.)

§ 2089. Medical training requirements

(a) Each applicant for a physician's and surgeon's certificate shall show by

official transcript or other official evidence satisfactory to the Division of

Licensing that he or she has successfully completed a medical curriculum

extending over a period of at least four academic years, or 32 months of

actual instruction, in a medical school or schools located in the United States

or Canada approved by the division, or in a medical school or schools located

outside the United States or Canada which otherwise meets the requirements

of this section. The total number of hours of all courses shall consist of a

5a

minimum of 4,000 hours. At least 80 percent of actual attendance shall be

required. If an applicant has matriculated in more than one medical school,

the applicant must have matriculated in the medical school awarding the

degree of doctor of medicine ov its equivalent for at least the last full

academic year of ‘medical educatiqn received prior to the granting of the

degree.

(b) The curriculum for all applicants shall provide for adequate instruction

in the following subjects:

Alcoholism and other chemical substance depeadency, detection and treat-

ment.

Anatomy, including embryology, histology, and neuroanatomy.

Anesthesia.

Biochemistry.

Child abuse detection and treatment.

Dermatology.

Geriatric medicine.

Human sexuality.

Medicine, including pediatrics.

Neurology.

Obstetrics and gynecology.

Ophthalmology.

Otolaryngology

Pathology, bacteriology, and immunology

Pharmacology.

Physical medicine.

Physiology.

Preventive medicine, including nutrition.

Psychiatry.

Radiology, including radiation safety.

Surgery, including orthopedic surgery

Therapeutics.

Tropical medicine.

Urology.

(Added by Stats.1980, c. 1313, p. 4456, § 2. Amended by Stats.1984, c. 1149, § 2

Stats.1985, c. 1176, § 4.) =

6a

§ 2089.5. Clinical instruction; adequacy

(a) Clinical instruction in the subjects listed in subdivision (b) of Section

2089 shall meet the requirements of this section and shall be considered

adequate if the requirements of subdivision (a) of Section 2089 and the

requirements of this section are satisfied.

(b) Instruction in the clinica) courses shal] total a minimum of 72 weeks in

length.

(c) Instruction in the core clinical courses of surgery, medicine, pediatrics,

obstetrics and gynecology, and psychiatry shall total a minimum of 36 weeks

in length with a minimum of eight weeks instruction in surgery, eight weeks

in medicine, six weeks in pediatrics, six weeks in obstetrics and gynecology,

and four weeks in psychiatry.

(d) Of the instruction required by subdivision (b), including all of the

instruction required by subdivision (c), 54 weeks shall be performed in a

hospital that sponsors the instruction and shall meet one of the following:

(1) Is a formal part of the medical school.

(2) Has an approved residency program in family practice or in the clinical

area of the instruction for which credit is being sought.

(3) Is formally affiliated with an approved medical school located in the

United States or Canada.

(4) is formally affiliated with a medical school located outside the United

States or Canada.

(e) if the institution, specified in subdivision (d), is formally affiliated with

a medical school located utside the United States or Canada, it shall meet the

following:

(1) The formal affiliation shall be documented by a written contract detail-

ing the relationship between the medical school and hospital and the responsi-

bilities of each.

(2) The school and hospital shall provide to the division a description of the

clinical program. The description shall be in sufficient detail to enable the

division to determine whether ar not the program provides students an

adequate medical education. The division shall approve the program if it

determines that the program provides an adequate medical education. If the

division does not approve the program, it shall provide its reasons for

disapproval to the school and hospital in writing specifying its findings about

each aspect of the program that it considers to be deficient and the changes

required to obtain approval.

(3) The hospital, if located in the United States, shall be accredited by the

Joint Commission on Accreditation of Hospitals, and if located in another

country, shall be accredited in accordance with the law of that country.

7a

(4) The clinical instruction shall be supervised by a full-time director of

medical education, and the head of the department for each core clinical

course shal] hold a full-time faculty appointment of the medical school and

shall be board certified or eligible, or have an equivalent credential in that

specialty area appropriate to the country in which the hospital is located.

(5) The clinical instruction shall be conducted pursuant to a written pro-

gram of instruction provided by the school.

(6) The school shall supervise the implementation of the program on a

regular basis, documenting the level and extent of its supervision.

(7) The hospital-based faculty shall evaluate each student on a regular basis

and shall document the completion of each aspect of the program for each

student.

(8) The hospital] shall ensure a minimum daily census adequate to meet the

instructional needs of the number of students enrolféd in each course area of

clinical instruction, but not less than 15 patients~in each course area of

clinical instruction.

(9) The division, in reviewing the application of a foreign medical graduate,

may require the applicant to submit a description of the clinical program, if

the division has not previously approved the program, and may require the

applicant to submit documentation to demonstrate that the applicant's clinical

training met the requirements of this subdivision.

(10) The medical school shall bear the reasonable cost of any site inspec-

tion by the division or its agents necessary to determine whether the clinical

program offered is in compliance with this subdivision.

(Added by Stats.1985, c. 1176, § 4.5; Stats.1985, c. 1178, § 2. Amended by Stats.1989,

c. 506, § 1.)

8a

§ 2122. Faculty-in-exile committee; university of Saigon, Vietnam, medi-

cal school admittees; licensure; duration of section

(a) The board shall appoint a six-member Faculty-in-Exile Committee, con-

sisting of five former faculty members of the University of Saigon, Vietnam,

Medical School, and one member of the Division of Licensing. The board

shall appoint the members of the committee no later than February 1, 1988.

(b) The committee shal] review the application files of applicants who were

admitted to the University of Saigon, Vietnam, Medical School before 1975,

and who completed their education during the years 1975 to 1980, inclusive,

to evaluate their eligibility and maké4recommendations for licensure as a

physician and surgeon. The committeé’shall consider those applications on a

timely basis, not to exceed 60 days.

(c) The committee shall make recommendations to the Division of Licens-

ing and the division shall consider each recommendation and make a finding

within 90 days after receipt of that-recommendation. The division shall

accept the recommendation of the committee, unless the division finds, after

notice and opportunity for hearing, that the committee's recommendation is

not based upon substantial evidence.

This section shall be operative until January 1, 1992, and on that date is

repealed, unless a later enacted statute, which becomes effective on or before

January 1, 1992, deletes or extends that date.

(Added by Stats.1987, c. 1382, § 2.)

9a

II. The following are the full texts of the provisions

of the Code of Civil Procedure cited in this brief.

§ 437c. Grounds for and effect of summary judgment;

procedure on motion

(a) Any party may move for summary judgment in

any action or proceeding if it is contended that the action

has no merit or that there is no defense thereto. The

motion may be made at any time after 60 days have

elapsed since the general appearance in the action or

proceeding of each party against whom the motion is

directed or at such earlier time after the genera] appear-

ance as the court, with or without notice and upon good

cause shown, may direct. Notice of the motion and

supporting papers shall be served on all other parties to

the action at least 28 days before the time appointed for

hearing. However, if the notice is served by mail, the

required 28-day period of notice shal] be increased by five

days if the place of address is within the State of

California, 10 days if the place of address is outside the

State of California but within the United States, and 20

days if the place of address is outside the United States.

The motion shall be heard no later than 30 days before

the date of trial, unless the court for good cause orders

otherwise. The filing of the motion shall not extend the

time within which a party must otherwise file a respon-

sive pleading.

(b) The motion shall be supported by affidavits,

declarations, admissions, answers to interrogatories, dep-

ositions and matters of which judicial notice shail or may

be taken. The supporting papers shall include a separate

statement setting forth plainly and concisely all material

facts which the moving party contends are undisputed.

Each of the material facts stated shall be followed by a

reference to the supporting evidence. The failure to

comply with this requirement of a separate statement

may in the court’s discretion constitute a sufficient

ground for denial of the motion.

Any opposition to the motion shall be served and filed

not less than 14 days preceding the noticed or continued

date of hearing, unless the court for good cause orders

otherwise. The opposition, where appropriate, shall

consist of affidavits, declarations, admissions, answers to

interrogatories, depositions, and matters of which judicial

10a

notice shall or may be taken. The opposition papers

shall include a separate statement which responds to each

of the material facts contended by the moving party to be

undisputed, indicating whether the opposing party agrees

or disagrees that those facts are undisputed. The

statement also shall set forth plainly and concisely any

other material facts which the opposing party contends

are disputed. Each material fact contended by the

opposing party to be disputed shall be followed by 2

reference to the supporting evidence. Failure to comply

with this requirement of a separate statement may

constitute a sufficient ground, in the court’s discretion,

for granting the motion.

Any reply to the opposition shall be served and filed by

the moving party not less than five days preceding the

noticed or continued date of hearing, unless the court for

good cause orders otherwise.

Evidentiary objections not made either in writing or

orally at the hearing shall be deemed waived.

The provisions of Section 1005 and the provisions of

subdivision (a) of Section 1013, extending the time within

which a right may be exercised or an act may be done, do

not apply to this section.

(c) The motion for summary judgment shall be grant-

ed if all the papers submitted show that there is no triable

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. In determin-

ing whether the papers show that there is no triable issue

as to any material fact the court shall consider all of the

evidence set forth in the papers, except that to which

objections have been made and sustained by the court,

and all inferences reasonably deducible from the evi-

dence, except summary judgment shall not be granted by

the court based on inferences reasonably deducible from

the evidence, if contradicted by other inferences or

evidence, which raise a triable issue as to any material

fact.

lla

, _ ——— = a -

—s aw = es ; ——— - aa _—

(d) Supporting and opposing affidavits or declarations

shall be made by any person on personal knowledge, shall

set forth admissible evidence, and shall show affirmative-

ly that the affiant is competent to testify to the matters

stated therein.

(e) If a party is otherwise entitled to a summary

judgment pursuant to the provisions of this section,

summary judgment shall not be denied on grounds of

credibility or for want of cross-examination of witnesses

furnishing affidavits or declarations in support of the

summary judgment, except that summary judgment may

be denied in the discretion of the court, where the only

proof of a material fact offered in support of the

summary judgment is an affidavit or declaration made by

an individual who was the sole witness to that fact; or

where a material fact is an individual's state of mind, or

lack thereof, and that fact is sought to be established

solely by the individual’s affirmation thereof.

(f) A party may move for summary adjudication of

issues, either by itself or as an alternative to summary

judgment. If it appears that the proof supports the

granting of the motion for summary adjudication as to

some but not all the issues involved in the action, or that

one or more of the issues raised by a claim is admitted, or

that one or more of the issues raised by a defense is

conceded, the court shall, by order, specify that those

issues are without substantial controversy. Moreover,

upon a motion for summary adjudication, the court shall,

by written order or oral order recorded verbatim, specify

those issues raised by the motion for summary adjudica-

tion as to which there exists a material, triable controver-

sy, and shall specifically refer to the evidence which

establishes a triable issue of fact regarding each of those

issues. At the trial of the action the issue so specified

shall be deemed established and the action shall proceed

as to the issues remaining.

12a

(g) Upon the denial of a motion for summary judg-

ment, on the ground that there is a triable issue as to one

Or more material facts, the court shall, by written or oral

order, specify one or more material facts raised by the

motion as to which the court has determined there exists

a triable controversy. This determination shall specifi-

cally refer to the evidence proffered in support of and in

Opposition to the motion which indicates that a triable

controversy exists. The court shall also state its reasons

for any other determination. The court shall record its

determination by court reporter or written order.

(h) If it appears from the affidavits submitted in

Opposition to a motion for summary judgment or summa-

ry adjudication or both that facts essential to justify

opposition may exist but cannot, for reasons stated, then

be presented, the court shall deny the motion, or order a

continuance to permit affidavits to be obtained or

discovery to be had or may make any other order as may

be just.

(i) If the court determines at any time that any of the

affidavits are presented in bad faith or solely for purposes

of delay, the court shall order the party presenting the

affidavits to pay the other party the amount of the

reasonable expenses which the filing of the affidavits

caused the other party to incur. Sanctions shall not be

imposed pursuant to this subdivision except on notice

contained in a party’s papers, or on the court’s own

noticed motion, and after an opportunity to be heard.

(j) Except where a separate judgment may properly be

awarded in the action, no final judgment shall be entered

on a motion for summary judgment prior to the termi-

nation of the action, but the final judgment shall, in

addition to any matters determined in the action, award

judgment as established by the summary proceeding

herein provided for.

l3a

(k) In actions which arise out of an injury to the

person or to property, when a motion for summary

judgment was granted on the basis that the defendant

was without fault, no other defendant during tnal, over

plaintiff's objection, may attempt to attribute fault to or

comment on the absence or involvement of the defendant

who was granted the motion.

(} A summary judgment entered under this section is

an appealable judgment as in other cases. Upon entry of

any order pursuant to this section except the entry of

summary judgment, a party may, within 20 days after

service upon him or her of a written notice of entry of the

order, petition an appropriate reviewing court for a

peremptory writ. If the notice is served by mail, the

initial period within which to file the petition shall be

increased by five days if the place of address is within the

State of California, 10 days if the place of address is

outside the State of California but within the United

States, and 20 days if the place of address is outside the

United States. The superior court may, for good cause,

and prior to the expiration of the initial period, extend

the time for one additional period not to exceed 10 days.

(m) Nothing in this section shall be construed to

extend the period for trial provided by Section 1170.5.

(n) The provisions of subdivisions (a) and (b) shall not

apply to actions brought pursuant to Chapter 4 (com-

mencing with Section 1159) of Title 3 of Part 3. (Added

by Stats. 1973, « 366, § 2. Amended by Stats. 1976, c.

675, § 1; Stats.1978, c. 949, § 2; Stats. 1980, c. 57, § 1;

Stats. 1982, c. 1510, § 1; Stats. 1983, c. 490, § 1; Stats.

1984, c. 171, § 1; Stats 1986, c. 540, § 3; Stats. 1989, c.

1416, § 16)

l4a

A A Rian OO) ARP in Seite Co hg COP LES dp. Silat

Oe A A A I tie!

III. The following are the full texts of the provisons

of Title 42 of the United States Code cited in

this brief.

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall] be subject to like

punishment, pains, penalties, taxes, licenses, and exactions of every

kind, and to no other.

R.S. § 1977.

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper proceeding for redress.

For the purposes of this section, any Act of Congress applicable ex-

clusively to the District of Columbia shall be considered to be a

statute of the District of Columbia.

RS. § 1979; Pub.L. 96-170, § 1, Dec. 29, 1979, 93 Stat. 1284.

§ 1985. Conspiracy to interfere with civil rights

Preventing officer from performing duties

(1) If two or more persons in any State or Territory conspire to

prevent, by force, intimidation, or threat, any person from accepting

or holding any office, trust, or place of confidence under the United

States, or from discharging any duties thereof; or to induce by like

means any officer of the United States to leave any State, district,

or place, where his duties as an officer are required to be performed,

or to injure him in his person or property on account of his lawful

discharge of the duties of his office, or while engaged in the lawfu!

discharge thereof, or to injure his property so as to molest, interrupt,

hinder, or impede him in the discharge of his official duties;

15a

Obstructing justice; intimidating party, witness, er juror

(2) If two or more persons in any State or Territory conspire to

r, by force, intimidation, or threat, any party or witness in any

gt of the United States from attending such court, or from testi-

i@g to any matter pending therein, freely, fully, and truthfully, or

jure such party or witness in his person or property on account

‘Bis having so attended or testified, or to influence the verdict, pre-

tment, or indictment of any grand or petit juror in any such court,

‘fo injure such juror in his person or property on account of any ver-

, presentment, or indictment lawfully assented to by him, or of his

img or having been such juror; or if two or more persons conspire

gf the purpose of impeding, hindering, obstructing, or defeating, in

y manner, the due course of justice in any State or Territory, with

J nt to deny to any citizen the equal protection of the laws, or to in-

f him or his property for lawfully enforcing, or attempting to en-

re, the right of any person, or class of persons, to the equal protec-

of the laws;

Depriving persons of rights or privileges

ts If two or more persons in any State or Territory conspire or

n disguise on the highway or on the premises of another, for the

Bes of depriving, either directly or indirectly, any person or

iss of persons of the equal protection of the laws, or of equal privi-

Bes and immunities under the laws; or for the purpose of prevent-

g or hindering the constituted authorities of any State or Territory

m giving or securing to all persons within such State or Territory

® equal protection of the laws; or if two or more persons conspire

‘prevent by force, intimidation, or threat, any citizen who is lawfully

itled to vote, from giving his support or advocacy in a legal manner,

ward or in favor of the election of any lawfully qualified person as

elector for President or Vice President, or as a Member of Congress

' the United States; or to injure any citizen in person or property

| account of such support or advocacy; in any case of conspiracy set

rth in this section, if one or more persons engaged therein do, or

use to be done, any act in furtherance of the object of such conspiracy,

hereby another is injured in his person or property, or deprivea or

ving and exercising any right or privilege of a citizen of the United

ates, the party so injured or deprived may have an action for the re-

very of damages occasioned by such injury or deprivation, against

ly one or more of the conspirators.

S. § 1980.

16a

§ 1986. Action for neglect to prevent

' Every person who, having knowledge that any of the wrongs con-

Bpired to be done, and mentioned in section 1985 of this title, are about

to be committed, and having power to prevent or aid in preventing the

tommission of the same, neglects or refuses so to do, if such wrongful

+ be committed, shall be liable to the party injured, or his legal repre-

Bentatives, for all damages caused by such wrongful act, which such

Person by reasonable diligence could have prevented; and such dam-

me may be recovered in an action on the case; and any number of

Persons guilty of such wrongful neglect or refusal may be joined as

Wefendants in the action; and if the death of any party be caused by

ny such wrongful act and neglect, the legal representatives of the de-

teased shall have such action therefor, and may recover not exceeding

$5,000 damages therein, for the benefit of the widow of the deceased,

Af there be one, and if there be no widow, then for the benefit of the

next of kin of the deceased. But no action under the provisions of this

section shall be sustained which is not commenced within one year after

the cause of action has accrued.

B.S. § 1981.

17a

APPENDICE A

First Order Re: Defendants‘ Motion for

Summary Judgment and Alternative Motion

for Summary Adjudication

Order Re: Summary Adjudication of Issues

ao UN >elUMLhLlUCU TU

—_ —_—_-_ —_—_ —_— —_—- — 8

OQ wea we ne dos eo

—_—_

eo -)

wy NY WY NY ON UWNlCOUWY

Oo uA & WY NY * CO

James R. Wheaton

Robert C. Fellmzeth

Julianne B. D'Angelo

CENTER FOR PUBLIC INTEREST LAW

1535 Mission Street

San Francisco, CA 94103

415/431-7430

Jerel McCrary

of Counsel

Attorneys for Plaintiffs

IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

DR. LE BUP THI DAC, et al.,

No. 876321

Plaintiffs,

FIRST

vs. ORDER RE: DEFENDANTS'

MOTION FOR SUMMARY

JUDGMENT AND

ALTERNATIVE MOTION

FOR SUMMARY ADJUDICATION

BOARD OF MEDICAL QUALITY

ASSURANCE, et al.,

Defendants.

ee ee ee et et ee et ee et ee ee

Defendants’ motion for summary judgment and alternative

motion for summary adjudication of issues came on for hearing on

May 8, 1989, and on continued hearing May 11, 1989. Deputy

Attorney General Paul Bishop appeared for defendants, James

Wheaton and Jerel McCrary appeared for plaintiffs. Having read

and considered the papers filed and lodged herein, and considered

the arguments and oral and documentary evidence, the following

matters are stipulated between all parties, and IT IS ORDERED:

1. The following portions of the First Amended Complaint

on file in this action are dismissed:

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24

26

a. Defendants Board of Medical Quality Assurance,

Division of Licensing, Credentials Committee and Department of

Consumer Affairs are dismissed from the Fourth Cause of Action,

as they are not “persons” under 42 U.S.C. section 1983;

| b. Defendants Board of Medical Quality Assurance,

Division of Licensing, Credentials Committee and Department of

Consumer Affairs are dismissed from the Fifth Cause of Action, as

they are not "persons" under 42 U.S.C. section 19865;

c. Defendants Board of Medical Quality Assurance,

Division of Licensing, Credentials Committee and Department of

Consumer Affairs are dismissed from the Sixth Cause of Action, as

they are not “persons” under 42 U.S.C. section 1986;

2. Plaintiffs Drs. Le Bup Dao, Tao Nguyen, Richard Le and

Sang Van Tran are no longer seeking declaratory or injunctive

relief in this action.

3. Plaintiffs' failure to file any claim with the State

bars any monetary relief against any defendant for any cause of

action taat is based on state lav.

4. The Committee for the Professional Rights of Vietnamese

Refugee Physicians in the United States is not entitled to any

monetary relief for itself or in behalf of any other person. The

declaratory and injunctive relief sought by plaintiff Committee

for the Professional Rights of Vietnamese Refugee Physicians in

the United States is limited to the following, because of the

passage of &.B. 1358 in 1987, codified at Business and

Professions Code section 2122:

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a. compliance by defendants with the Administrative

Procedure Act, Government Code section 11340 et seq., in adoptinc

and applying rules of general application regarding applications

for licensure from Vietnamese refugees;

b. compliance by defendants with the Bagley-Keene

Open Meetings Act, Government Code section 11120 et seg., in

their conduct of meeting of the Division of Licensing and its

committees during 1986 and 1987, with regard to the licensing of

applicants who are refugees from Vietnan;

c. éGefendants’ current and future compliance with

the Administrative Procedure Act, Government Code section 11340

et sec., in adopting and applying rules of general application

regarding applications for licensure from Vietnamese refugees;

é. éefendants* current and future compliance with the

Bagley-Keene Open Meetings Act, Government Code section 11120 et

secq., in their conduct of meetings of the Division of Licensing

and its committees, with regard to the licensing of applicants

who are refugees from Vietnan.

In so ruling, the Court expresses no opinion on any

challenge or defense to such declaratory and injunctive relief on

the grounds of mootnese, irrelevancy or other grounds.

5S. In all other respects defendants' motion is taken under

‘ ‘

subdsission.

Approved as to form.

* a) on AL prkirV V. Dit

Attorneys for Defendants

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| pated: Sie], ri

! Pell.

Judgé of the Superior Court

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3

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5

6

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8 CALIFORNIA SUPERIOR COURT

9 CITY AND COUNTY OF SAN FRANCISCO

jo DEPARTMENT NUMBER EIGHT

u

12 DR. LE RUP THI DAO, et al., ) NO. 876 221

33 Plaintiffs, ORDER RE SUMMARY

) ADJUDICATION OF

14 vs. ) ISSUES

15 BOARD OF MEDICAL QUALITY ASSURANCE

¥ OF THE STATE OF CALIFORNIA, et al.,

by Defendants. ’

18 Defendants' Motion for Summary Judgment and for

19 | Attorneys’ Fees under 42 U.S.C. section 1988, or in the

20 Alternative Summary Adjudication of the Issues, as subsequently

21 limited and restated, is ruled upon as follows.

22 Insofar as the motion requests an adjudication that the

23 institutional (or "organizational") defendants are entitled to

(24 | sovereign immunity from suit under 42 1J.S.C. section 1981, the

25 | motion is DENIED. There admittedly is a split of authority as

26 to whether state agencies are immune from suit under section

27 1981. Compare, e.g., Yarbrough v. Tllinois Dept. of Mental

28 Health (N.D. Ill. 1982), 528 F.Supp. 414, with

i)

?

j

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4

a ra

rs

Malone v. Schenk (C.D. Ill. 1985), 638 F.Supp. 423. Yarbrough

and Skyers v. Port Authority of N.Y. And N.J. (S.D.N.Y¥. 1976),

831 F.Supp. 79, 83, on which it relied, recognize that vnateer

Congress intended to override state immunity under the Eleventh

Amendment (which Congress is authorized to do by both the

Thirteenth and Fourteenth Amendments) must be evaluated

separately for section 1981, which was adopted as part of the

Civil Rights Act 1866 under the authority of nee thareoonen

Amendment, and for section 1983, which was adopted as part of

the Ku Klux Klan Act of 1871 under the Authority of the

Fourteenth Amendment. Both cases concluded that section 1981

was intended to encomoass state agencies as “persons” subject

to judicial enforcement of its provisions. The court in

Malone agreed that the legislative history of section 1981

indicated "that Congress fully intended to reach the

governmental acts of the states with the Civil Rights Act

of 1866," 638 F.Supp. at 428, but felt that under

Atascadero State Hospital v. Scanlon (1985), 473 U.S. 234,

state imaunity exists unless "the statutue in its language

unmistakenly abrogate(s) the state's Eleventh Amendment

immunity,” ibid., and that the decisions in Yarbrough and

Sxyers had been "implicitly ienseneines by the holding in

Atascadero." id. at 429. However, Atascadero held only that

section 504 of the Renabilitation Act of 197? was not intended

to override Eleventh Amendment immunity; it did not purport to

modify tne basic principle that the meaning of each federal

statutue must be determined separately and that properly

evidenced Congressional intent may be considered in determining

le le tk

Se

\

the meaning of the words of the statute. Since Malone itself

recognized the apparent intention of Congress to apply

section 1981 to the states, it would seem that Yarbrough

and Skyers reached the correct conclusion that the statute

overrides the state's immunity. Compare Chavez-Salido v.

Cabell (C.D. Calif. 1977), 427 F.Supp. 158, 162-165;

Sethy v. Alameda Co. Water Dist. (9th Cir. 1976),

545 F.2d 1157, 1159-1160; Mahone v. Waddle (3rd Cir. 1977),

5464 F.2d 1018, 1020-1037. In all events, since the single

California appellate decision addressing this issue has stated

that stste agencies are subject to suit under section 1981,

Filioino Accountants' Assn. v. State Board of Sccountancy

(1084), 155 Cal.App.2¢d 1022, 1035 mn. 12, that is the view which

this court should follow.

Whether the evidence is sufficient to support the cause

of action under section 1981 against the organizational

defendants is not an issue which has been properly presented by

the pending motion.

Insofar as the motion requests an adjudication that the

individual defendants are entitled to immunity from the various

claims that have been asserted against them, the motion will be

GRANTED. There is authority that arguably supports the

conclusion that the individual defendants are entitled to

absolute immunity from liability for their respective roles in

refusing to accept for the purpose of licensure the adequacy

of the curriculum at the University of Saigon “edical Scnool

after 1975, and for delaying the issuance to plaintiffs of

licenses to practice medicine in California. See, e.g.,

a}

27

28

eS

ll te

a Ns tt

ee nan —s

Yorwitz v. Board of Medical Examiners of State of Colorado

(10th Cir. 1987), 822 F.2d 1508; Vakas v. Rodriguez

(10th Cir. 1984), 728 F.2d 1293; Greene v. Zank (1984),

158 Cal.App.2¢ 497. Yowever, the uncontroverted facts fail to

establish that the functions performed by defendants were

sufficiently judicial in nature to warrant quasi-judical

absolute immunity. See, e.g., Cleavinger v. Saxner

(1985), 478 U.S. 193; Schlegal v. Rebout (9th Cir. 1987),

881 F.2d 937, 941-944. Neither has a basis for

quasi-legislative absolute immunity been established.

Yonetheless, the uncontroverted facts do establish the

right to qualified immunity. The defendants’ actions in

insisting upon additional verification of the adequacy of the

curriculum at the University of Saigon Medical School, as

described in the voluminous declarations and deposition

transcripts without material contradiction (as distinguished

from the manner in which those actions are characterized in the -

legal argument of counsel) must "reasonably be thought

consistent with the rights" defendants are alleged to have

violated. Anderson v. Creighton (1987), i A

107A S.C%. 3024, 3038. The defendants are shielded from

liability for damages “insofar as their conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Yarlow v.

Fitzgerald (1982), 457 U.S. 809, MIR; Little v. City of Seattle

(Oth Cir. 1988), #863 F.2d 681. There simply is no basis to

jbelieve

conclude that the defendants did not‘and could not reasonably

have believed they were acting properly in demanding

27

28

— > o S02 ee oe

confirmation of the post-1975 Saigon curriculum as they did.

With respect to the claisa that defendants violated

plaintiffs’ constitutional rights and 42 U.S.C. section 1981 by

besing their actions upon impermissible recial or ethnic

factors, qualified immunity is not established unless this

allecetion has been negated. Guitierrez v. Municipal Court of

S.E. Judicial Dist. (9th Cir. 1988), 838 F.2d 1031, 1089-1051

vacated as moot, 57 U.S.L.W. 3687 (1989). However, the

declarations of the moving parties do negate this sllegsation,

and the opposing evidence cited by the plaintiffs is not

sufficient to raise a triable issue of fact concerning this

material issue. (See, e.g., Plaintiffs' Response to

Defendants' Statement of Undisputed Facts, response to

Defendants’ Fact #@21-32.)

While it may be that the refusal of the defendants to

have granted plaintiffs licenses before the recent statutory

amendments was unjustifiable, judicial remedies were available

to have corrected any possible abuses of discretion. Assuming,

arquendo, that there were such abuses and that they affected

Plaintiffs’ constitutional rights, it does not follow that the

individual board members and staff bear personal liadility.

The defendants’ evidence does reflect facts establishing the

existence of « qualified tmmunity as a matter of law, and,

however sympathetic one may de with the predicament in which

the plaintiffs found themselves, plaintiffs' evidence fa s tc

create a triable issue concerning those facts

Insofar as the defendants’ sotion requests ar

adjudication that the Comeittee for the Profess rel

Vietnamese Refugee Physicians in the United States lacks

2 standing to seek declaratory and injunctive relief herein, the

: motion is DEWIED. The moving papers fail to establish that

4

this slleged unincorporated association (First Amended

Complaint of Course paregraph 6(b)) lacks standing.

So other issue has been properly presented for sumcoary

ad judicetion.

DATED: “ay 19, 198°.

STUART R. PCLLAK

1 Judge of the Superior Court

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CALIFORNIA SUPERIOR COURS

CITY AND COUNTY OF SAN FRANCISCO

4

; DEPARTMENT NUMBER EIGHT

DR. LE BUP THI DAO, et al.,

Plaintiffs,

NO. 876 321

vs.

—

BOARD OF MEDICAL QUALITY ASSURANCE ) ,

OF THE STATE OF CALIFORNIA, et al.,) CERTIFICATE OF SERVICE BY MAIL

) (CCP 1017%a(3) )

Defendants. )

)

I, H. WRIN, ,» Deputy County Clerk and

Deputy Clerk of the Superior Court of the City and County of San

Francisco, certify that I am not a party to the within action;

That T served a copy of the attached

ORDER RE SUMMARY ADJUDICATION OF ISSUES

by placing said copy in an envelope addressed to the following:

James R. Wheaton, Esquire

Ceéntér fOr PuUDIic INterest Law

1535 Mission Street

Sar FYrancrsto, CA serves

Deputy Attorney General

SOHN -K. VAN DE-KAMP, Attorney Generat

of the State of Caiifornia

P.O. Box 944255

—Secremento;—Ea—94244-2556

. eS ee a ee

yee tas?

which envelope was then MAY 3 ¢ 4 aggre fully prepaid thereon, and

thereafter was on » deposited in the United

States mail at a=

Hut

DATED:

FI2Z5S5A BL WRIN

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APPENDICE B

Court of Appeal Opinion

NOT TO BE PUBLISHED

IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA O,

3

;

*

4

as

Sekine

FIRST APPELLATE DISTRICT +

DIVISION FOUR

( BOARD OF MEDICAL QUALITY ASSURANCE

< et al.,

Petitioners, A046101

¥ We (San Francisco Super.

3 Ct. No. 876321)

5 SUPERIOR COURT OF SAN FRANCISCO

COUNTY,

Respondent,

LE BUP THI DAO et al.,

Real Parties in Interest.

és

LE BUP THI DAO et al.,

Petitioners, A046132

v. (San Francisco Super.

Ct. No. 876321)

SUPERIOR COURT OF SAN FRANCISCO

COUNTY,

Respondent,

BOARD OF MEDICAL QUALITY ASSURANCE

Gt ai:, :

Real Parties in Interest.

/

A class action challenging alleged discriminatory

licensing practices of the Board of Medical Quality Assurance

(BMQA) has produced these petitions demonstrating that virtually

x

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everyone involved objects to some aspect of a pair of orders made

by respondent court in connection with a motion for summary

judgment.+ For the reasons hereinafter developed, we determine

thet only one group of parties has some entitlement to relief.

BACKGROUND

The underlying action was initiated by four Vietnamese

graduates of the University of Saigon Medical School, joined by

the Committee for the Professional Rights of Vietnamese Refugee

Physicians in the United States (the Committee).2 The named

defendants were the BMQA, its Division of Licensing and its

Credentials Commictee; the Department of Consumer Affairs as “the

duly organized and constituted parent agency of BMQA”; and various

individuals who occupy official positions with these entities.

—

1. In light of the multiplicity of petitioners and real parties

in interest, the parties’ trial court designations as plaintiffs

and defendants will in the interests of simplicity and clarity be

employed throughout this opinion.

2. With respect to the Committee the complaint alleges it “is an

unincorporated association headquartered in Orange County,

California. The Committee has filed for incorporation as a

non-profit corporation under the laws of the State of California

and the matter is pending. The Committee has a dues paying

membership of approximately 100 Vietnamese refugees. Said

membership is composed of licensed physicians and applicants for

medical licensure throughout the United States. The [C]ommittee's

organizational purpose is to ensure that its members are provided

full and equal access to professional training, employment and

licensure in the medical field.° '

An additional named plaintiff, Catholic Comunity

Services, was dropped as a party plaintiff prior to the summary

judgment motion.

aQea

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The introductory allegations of the complaint provide an

overview: “This action is s class action on behalf of foreign

medical school graduates from Vietnam ("FMGs") who have been

unlawfully denied a license to practice their profession in

Catifornia by the discriminatory, illegal, arbitrary and unfounded

actions of . . . (BMQA) and certain of its members and employees.

{%] BMQA has been and remains engaged in acts and

practices to artificially and invidiously deprive large numbers of

FMG applicants of a Californie medical license without regard to

competency standards and for anti-competitive, discriminatory and

other improper purposes. These acts, many of which are unlawful

in and of themselves, include the conduct of secret meetings with

agents of the California(]) Medical Association and others,

discriminatory use of statutory criteria for licensure, falsifying

minutes of meetings and other official documents, fabrication of

nonexistent criteria for licensure, failure and refusal to follow

statutory mandates, avoidance of required administrative

procedures, unfounded charges against applicants and refusal to

deal fairly and forthrightly with applicants.* More particularly,

plaintiffs alleged that (1) “defendants at a closed meeting on

January 30-31, 1986 decided to suspend processing of all

applications for licensure from persons who graduated from

Vietnamese medical schools before or after 1975," and (2) at a

meeting conducted on June 25-26, 1987, “defendants announced that

no post-1975 Vietnamese graduate would receive a license” until

such persons “fulfill(ed) new requirements for licensure,* thereby

*violat{ing] both the California Administrative procedure Act and

the California Open Meeting Law.”

Based upon these general allegations, and additional

allegations detailing the treatment the four individual plaintiffs

received from defendants, plaintiffs set forth causes of action

seeking (1) damages and injunctive relief for violation of the

Fourteenth Amendment's guarantees of equel protection and due

process (2) damages for violation of 42 U.S.C. section 1981 (3)

damages for violation of 42 u.s.c. section 1983 (4) damages for

violation of 42 u.s.c. section 1985 (5) damages for violation of

42 U.S.C. section 1986 (6) damages for violation of the

Administrative Procedure Act (Gov. Code, § 11340 et seq.) and (7)

declaratory and injunctive relief for violation of the Open

Government Act (Gov. Code, § 11120 et seq.). The substantive

portion of the complaint concluded with an omnibus cause of action

for declaratory and injunctive relief based upon all matters

“hereinbefore alleged.*?

In due course defendants moved for summary judgment or

summary adjudication of issues. The grounds for the motion

relevant to these proceedings were that (1) "Plaintiff Committee

has no standing to assert the constitutional rights of the

individual plaintiffs” (2) "Certain issues and claims in this

3. Additional causes of action seeking damages for violation of

the Unruh Civil Rights Act (Civ. Code, § 51) and. the Cartwright

Act (Bus. & Prof. Code, § 16720 et sey.) were subsequent ly

dismissed by plaintiffs.

-4-

matter are now moot” and (3) "By reason of immunity, defendants

are not liable for suit for violation of 42 U.S.C. sections 1981,

1983, 1985 or 1986." As part of their motion defendants also

sought an award of costs, including attorneys fees, pursuant to 42

U.S.C. section 1988.

After receiving voluminous papers, prodding the parties

| into narrowing the areas of dispute by stipulation, and conducting

two hearings on the motion, respondent court made two orders (both

filed on May 19, 1989) in which it ruled that (1) pursuant to

stipulation plaintiffs' claims based upon 42 U.S.C. section 1983,

1985, and 1986, were dismissed as against the institutional

Gefendants (2) by reason of a split of authority the institutional

defendants were not entitled to summary judgment on the claim

based upon 42 U.S.C. section 1981 (3) the individual defendants

were clothed with “qualified immunity” against all of plaintiffs’

Claims (4) the Committee had standing but only to pursue claims

for declaratory and injunctive relief, not damages, by reason of

the enactment of Business and Professions Code section 2122, and

(S$) “*({n)o other issue has been properly presented for summary

adjudication.*

Unhappy with these determinations, plaintiffs and

Gefendants each filed a petition for extraordinary mandamus

relief. Alternative writs were issued.

REVIEW

Our usual practice in dealing with situations where both

- ae

sides are unhappy with trial court rulings. orders, or judgments

is to deal with the points raised by one side before progressing

to the points urged by the other side. With these petitions,

however, we have determined that the most logical analytical

progression requires some interlineation of the contentions

advanced by the parties.

We first turn to defendants’ petition (A046101).

Respondent court ruled, and plaintiffs do not dispute, that the

state agencies named in the complaint have immunity from suit for

purposes of 42 U.S.C. sections 1983, 1985, and 1986. The ruling

that comparable immunity did not extend tc section 1981 was

correct. (See Filipino Accountants’ Assn. v. State Bd, of

Accountancy (1984) 155 Cal.App.3d 1023, 1035, fn. 12.)

Defendants’ elaborate arguments to the contrary are not persuasive

because they are founded on considerations derived from

application of the Eleventh Amendment to actions commenced in

federal court. But the Eleventh Amendment does not apply to

actions brought in state courts. (See Will v. Michigan Dept, of

State Police (1989) __ U.S. ___—s (109 $.Ct. 2304, 2307).)

Yet although defendants may have lost this battle,

plaintiffs cannot win the war. Plaintiffs invoked section 1981

solely in connection with one of their claims for Gamages alleged

in their complaint. Less than a year ago the United States

Supreme Court held that “the express cause of action for damages

created by § 1983 constitutes the exclusive federal remedy for

violation of the rights guaranteed in § 1981 by state governmental

units." (Jett v. Dallas Independent School Dist. (1989) ___

U.S. ___ (109 S.Ct. 2702, 2721-2722).)4 A further Gifficulty is

that section 1983 does not apply to claims against a State. (Wil)

v. Michigan Dept, of State Police, auprg, at pp. __ [109 S.Ct.

2304 at pp. 2307-2308, 2312); see Pyne v. Meese (1985) 172

Cal.App.3d 292, 401-403.) What defendants choose to do with these

recent holdings--which were issued after respondent court made its

tuling--is up to them. All we can say at present is that no error

occurred when the immunity claim by the institutional defendants

was rejected.

II

In their petition (A046132) plaintiffs ask us to overturn

the determination by respondent court that the individual

defendants enjoy immunity from plaintiffs* damage claims. To

continue the theme developed in part I, that determination has

4. Plaintiffs are correct in noting that the lead opinion in Jett

was only a plurality opinion signed by four Justices. But while

that opinion may fall short of an iron-clad holding, Justice

Scalia (who filed a separate opinion “concurring in part and

concurring in the judgment") disagreed with the plurality only on

a point of methodology. As a matter of practical reality, the

Jett plurality opinion represents the majority viewpoint of the

Court. In any event, and however imperfectly expressed, we think

that the Jett plurality trumps all of the lower court authorities

to the contrary relied upon by plaintiffs.

> Ps

been vindicated by recent related developments from the United

States Supreme Court.

Insofar as respondent court's determination found against

plaintiffs on their claim based upon 42 U.S.C section 1983, that

ruling is invulnerable for @ reason which could not be anticipated

by either the court or the parties. In Wil] v. Michigan Dept. of

State Police, supra, _.._ ~*U.S. ____—sWd(109 «S.Ct. 2304 at pp.

2311-2312), the Supreme Court held that "neither a State nor its

officials acting in their official capacities are ‘persons’ under

§ 1983" and therefore cannot face liability for damages. Lesser

federal courts have reached the same conclusion with respect to

sections 1985 and 1986. (See Coffin v. South Carolina Dept, of

Social Services (D.S.C. 1983) 562 F.Supp. 579, $8@5-S86 and

authorities cited.)

Defendants submitted considerable, uncontradicted

evidence in support of their claim that an undisputed material

fact was that the “Individual defendants .. . were at all times

material to this matter state officials acting in their official

capacities under color of State Law." Those defendants can

therefore face no liability for monetary damages as to sections

1983, 1985S, and 1986.

There remains only plaintiff's cause of action based on

section 1981. We believe this particular aspect of the

controversy has become moot. If it is assumed that respondent

court’s ruling was erroneous because it took insufficient account

of the factor of the individual defendants’ unlawful motive for

their actions (see Gutierrez v. Mun. Ct. of §.E. Judicial Dist.

(9th Cir. 1988) 838 F.26 1031, 1049-1051), plaintiffs will be

unable to recover the damages they seek. As previously

established, damages for a violation of section 1981 can be had

only pursuant to section 1983 (Jett v. Dallas Independent School]

Dist.. supra, _._ ~*U.S. ___.-—sWd0(109 ~«&.Ct. 2702 at pp. 2721-2722), but

the individual defendants have immunity against the section 1983

Claims because they were acting solely in their officiel

capacities. (Will v. Michigan Dept, of State Police, supra, ___

u.S. ___ [109 S.Ct. 2304 at pp. 2311-2312).) In these

circumstances mootness is established because no effectual relief

could be granted. (See 9 Witkin, Cal. Procedure (34 ed. 1985)

Appeal, § 517, p. 499.)

Itt

The preceding discussion has resolved the issues of

piaintiffs’ damage claims, and has answered the sole contention of

error pressed by plaintiffs. We next address arguments by

Gefendants regarding whether plaintiffs’ cleims for declaratory

and injunctive relief are moot.

Pursuant to @ stipulation between the parties, one of the

orders filed by respundent court specified that the individual

plaintiffs “are no longer seeking declaratory or injunctive

relief.°5 Plaintiffs do not dispute this ruling. There

5S. The parties stipulated, and respondent court ordered, that the

Committee “is not entitled to any monetary relief for itself or in

{sic: om) behalf of any other person.*

consequently seems no point to considering mootness as to those

plaintiffs.

Respondent court rejected defendants’ claim that the

Committee had no standing to seek any kind of relief, but the

court’s orders restricted the Committee's standing to certain

specific aspects of the declaratory and injunctive relief claims

regarding the alleged violations of the Administrative Procedure

and Open Meeting Acts. Defendants assert that the Committee lacks

standing, thus mooting 211 claims for declaratory and injunctive

relief. It has been the practice of this court to decide

questions of organizational standing only with the benefit of a

full record that provides some concrete basis for evaluating

inanimate entities. (See McKeon v. Hastings College (1986) 185

Cal.App.3d 8677, 892-893; cf. Environmenta) Law Fund. Inc. v. Town

of Corte Madera (1975) 49 Cal.App.3d 1605.) The soundness of this

approach, which implicitly treats the issue as one of fact,

appears pertinent here, given that (insofar as can be determined

from the limited record presented to us) defendants submitted

nothing in the way of supporting evidence required by Code of

Civil Procedure section 437c, subdivision (b). As respondent

court put it: “The moving papers fail to establish that this

alleged unincorporated association . .. lacks standing.*

Accordingly, we do not believe there is an adequate basis for our

Geciding as a matter of law that respondent court erred in not

terminating the equitable relief aspects of this litigation.

Defendants present a contention which, on paper,

aii

constitute a persuasive argument that the remaining issues of

equitable relief have been rendered moot by the enactment cf

Business and Professions Code section 2122.6 Respondent court did

not address this issue. Its reasons for doing so sre unclear. In

the first of the May 19th orders the court took pains to make

Clear that it was expressing “no opinion on any challenge or

defense to such declaratory and injunctive relief on the grounds

of mootness, irrelevancy or other grounds.* In the second of the

orders the court stated: ‘°No other issue has been properly

presented for summary judgment.°

The summary judgment statute seems quite clear about the

granting or denisl of a motion for summary judgment. The motion

“shall be granted if a11 the papers submitted show that there is

no triable issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." (Code Civ. Proc.,

§ 437c, subd. (c).) The grounds for denying the motion are

6. The effect of this statute, which figured prominently in the

parties’ stipulation which underlay one of the May 19th orders,

Geserves some explanation.

One of the major points of plaintiffs’ complaint was that

defendants had refused to follow ususl practice by appointing a

Faculty Committee in Exile, composed of former faculty members of

the University of Saigon Medical School, which would evaluate and

make recommendations concerning licensing of persons claiming to

be graduates of that school. Section 2122 mandated the creation

of such a committee for this purpose and directs that the BMOQA

licensing division “shall accept the recommendation of the

committee, unless the division finds, after notice and opportunity

for hearing, that the committee's recommendaticn is not based upon

substantial evidence.” (Bus. & Prof. Code, § 2122, subd. (c).)

The committee's members were to have been appointed by February 1,

lgee. (Jd., subd. (@).) Section 2122 contains an automatic

repeal provision for January 1, 1992. (Jd., subd. (4).)

elie

Clear: (1) the existence of “a triable issue as to one or more

material facts” (id., subd. (g)); (2) the moving party's failure

to comply with the requirement of "a separate statement setting

forth plainly and concisely all material facts which the moving

party contends are undisputed ... (with) reference to the

supporting evidence® (id., subd. (b)); (3) “in the discretion of

the court, where the only proof of a material fact offered in

support of the summary judgment is an affidavit or declaration

made by an individual who was the sole witness to that fact; or

where # material fact is an individual's state of mind, or lack

thereof, and that fact is sought to be established solely by the

individual’s affirmation thereof” (id., subd. (e)); or (4) “"[ilf

it appears from the affidavits submitted in opposition... that

facts essential to justify opposition may exist but cannot, for

reasons stated, then be presented” (id., subd. (h)).

Following the lead of Division Two, this court has held

that “({a) trial court may not refuse to hear a summary judgment

motion filed within the time limits of section 437c.° (Sentry

Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; see

Wells Farso Bank v. Superior Court (1988) 206 Cal.App.3d 918.) A

logical corollary of this principle is that a trial court must

rule om all aspects of a motion for summary judgment or summary

adjudication unless there is ground specified in section 437c for

withholding @ Gecision. A trial court is not allowed the luxury

of not Geciding or of not expressing its opiates. as did

respondent court, concerning a matter brought forward in

ain

conformity with statutory procedures. It appears froma fair

reading of section 437c that a trial court is not permitted to

retreat into enigmatic silence or opaque remarks. According to

subdivision (g): "Upon the denial of a motion for summary

judgment, on the ground that there is a triable issue as to one or

more material facts, the court shall, by written or oral order,

specify one or more material facts raised by the motion as to

which the court has determined there exists a triable

controversy. This determination shall specifically refer to the

evidence proffered in support of and in opposition to the motion

which indicates that a triable controversy exists. The court

shall also state its reasons for any other determination. The

court shall record its determination by court reporter or written

order.” (Emphasis added.)

Respondent court may well have had a valid reason for

denying defendants’ motion as to this point. Unfortunately, if

such a reason exists it is not discernible from the record before

us. As the cause will have to be returned to respondent court for

entry of a new order, the situation may be clarified at that time.

IV

Defendants’ final contention is that respondent court

"abused its discretion in refusing to rule” on their application

for attorneys’ fees pursuant to 42 U.S.C. section 1988. The

preceding discussion concerning the flaw in the ruling on

aiSe

defendants’ arguments relative to plaintiffs’ equitable relief

Claims is equally applicable to this contention.

In AO46101 a peremptory writ of mandate will issue

directing respondent court to vacate its orders of May 19, 1988,

and enter a new order in conformity with this opinion.

In AO46132 the petition for a peremptory writ is denied

and the alternative writ is discharged.

-14-

WE CONCUR:

Channell, J.

Perley, J.

Ba, of Medical Ouality Assurance

v. }

A0Q46101

v. Superior Court

A046132

-15-

Poché, Acting P.J.

APPENDICE C

Plaintitfs’ Response to Defendants’ Statement

of Undisputed Facts: Defendants’ Pact No. 24

ow wowrta ut WY N=

o

JAMES R. WHEATON

ROBERT C. FELLMETH

JULIANNE B. D'ANGELO

Center for Public Interest Law

1535 Mission Street

San Francisco, CA 94103

(415) 431-7430

JEREL McCRARY

Of Counsel

Attorneys for Plaintiffs

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

DR. LE BUP THI DAO, et al.,

No. 876 321

Plaintiffs,

PLAINTIFFS' RESPONSE

TO DEFENDANTS '

STATEMENT OF

UNDISPUTED FACTS

Vv.

BOARD OF MEDICAL QUALITY ASSURANCE

OF THE STATE OF CALIFORNIA, et al.,

Defendants.

Trial: June 5, 1989

Co ont A UA OO helUMwWGlUNGCU

|

ee

~ BEST AVAL

ees: ‘ PeMve en £7, 3

LABLE COPY

Individual defendants Kenneth Wagstaff, Dr. Galal 5s.

Gough, Dr. Lindy Kumagai, Dr. John Lungren, Dr. James

Magnall, Raymond Mallel, Audrey Melikiin {sic}, Dr. J.

Alfred Rider and Dr. Jerome Unatin were at all times

material to this matter state officials acting in their

official capacities under color of State Law.

PLAINTIFFS’ COUNTERFACTS AND EVIDENCE

UNDISPUTED AND IRRELEVANT.

See Memorandum of Points and Authorities served and

filed herewith on the legal impact of “acting...under the

color of State Law."