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Sherry Houtkin et al v. Sharp Healthcare

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 15, 2010

SHERRY HOUTKIN ET AL., PLAINTIFFS,
v.
SHARP HEALTHCARE, FREE SACRED TRINITY CHURCH ET AL., OBJECTORS AND APPELLANTS. DEFENDANT AND RESPONDENT;

Super. Ct. No. 37-2008-00066427 CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, Laura W. Halgren, Judge.

The opinion of the court was delivered by: Mcintyre, J.

Houtkin v. Sharp Healthcare

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appeals dismissed as moot.

Sherry Houtkin and her children sued Sharp Healthcare (Sharp) and several doctors and nurses for wrongful death/medical malpractice after her 59-year-old husband, Harvey Houtkin, died shortly after undergoing a tonsillectomy at Sharp Grossmont Hospital. Sharp subpoenaed records from the Optimum Health Institute (OHI), a non-party, after learning that Houtkin had spent two or three weeks at its Lemon Grove spa immediately before his emergency surgery. Free Sacred Trinity Church (Free Church), which operates OHI as its primary ministry, opposed the discovery request on grounds it violated Free Church's constitutional rights of privacy, free association and freedom of religion.

Free Church filed two appeals: (1) an appeal from two discovery orders which required it to produce documents (case No. D055754); and (2) an appeal from the discovery order denying a protective order relating to the depositions of two OHI employees (case No. D056738). We granted Free Church's request for judicial notice of two unsuccessful petitions for writ of mandate in this case (case Nos. D055400 and D056511). Free Church complied with the discovery orders, and later discovered that the underlying lawsuit had settled. It concedes the "technical mootness" of its claims, but argues we should rule on the merits of the constitutional issues. We decline to do so.

" '[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' [Citations.]" (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; Giles v. Horn (2002) 100 Cal.App.4th 206, 227-228.) Given the fact Free Church and OHI had produced the disputed documents and Sharp had deposed its two employees before the underlying lawsuit settled, it would be impossible for this court to grant effective relief even if we were to decide in Free Church's favor. We decline Free Church's invitation to consider these consolidated appeals because they present an important constitutional issue of public interest.

DISPOSITION

The consolidated appeals filed by Free Sacred Trinity Church and OHI are dismissed as moot.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

20101215

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