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Sela v. Medical Board of California

California Court of Appeals, Second District, Fifth Division

May 28, 2015

MICHAEL SELA, Plaintiff and Appellant,
v.
MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of the County of Los Angeles County, No. BS136104, Robert O’Brien, Judge.

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COUNSEL

Keiter Appellate Law and Mitchell Keiter for Plaintiff and Appellant.

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Kamala D. Harris, Attorney General, Gloria L. Castro, Assistant Attorney General, Robert McKim Bell and Peggie Bradford Tarwater, Deputy Attorneys General, for Defendant and Respondent.

OPINION

MOSK, J.

INTRODUCTION

Plaintiff and appellant Michael Sela, M.D. (plaintiff), filed an appeal from the trial court’s judgment denying his petition for writ of mandate. Plaintiff sought in the trial court to set aside the decision of respondent Medical Board of California (Board) that rejected his request for early termination of the probationary restrictions on his medical license. Plaintiff appealed despite the express language of Business and Professions Code section 2337 (section 2337) that requires us to review by "a petition for an extraordinary writ” a trial court decision in a physician disciplinary matter that affects the status of a physician’s license. As the judgment is not appealable, we dismiss the appeal.

BACKGROUND

In March 1995, the Board revoked plaintiff's medical license, finding that he had engaged in sexual abuse and sexual misconduct during gynecological pelvic examinations. In January 2000, the Board denied petitioner’s first petition for reinstatement of his license. In February 2006, the Board granted plaintiff's second petition for reinstatement of his license on certain terms and conditions. Those terms and conditions included revoking plaintiffs newly reinstated license, staying the revocation, and placing plaintiff on probation for 10 years.[1]

In November 2010, plaintiff filed a petition for penalty relief pursuant to Business and Professions Code sections 2221, subdivision (b)[2] and 2307[3]

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seeking, inter alia, early termination of his probation at four years into the 10-year term. In January 2012, the Board adopted the administrative law judge’s proposed decision denying the petition for penalty relief.

In February 2012, plaintiff filed a petition for writ of administrative mandate in the trial court seeking to overturn the Board’s decision denying his petition for penalty relief. In December 2013, the trial court entered a judgment denying the petition for writ of mandate. In doing so, the trial court rejected plaintiff's argument that his acquittal in a related criminal case[4] showed that he had no intent to commit sexual abuse during the examinations in issue. The trial court concluded, “1) The criminal trial acquittal is not relevant to the issues at hand. There were no findings by the jury in the criminal trial and the burden of proof is significantly different in criminal cases. 2) Plaintiff's period of supervision was carefully established. Presently, Petitioner still appears not to appreciate the acts he performed and the harm inflicted.” Instead of filing a petition for an extraordinary writ pursuant to section 2337, [5] plaintiff filed a notice of appeal from the trial court’s judgment. Because an appealable order or judgment is a jurisdictional prerequisite to an appeal, and a reviewing court must raise the issue of appealability on its own initiative (Jennings v. Marralle (1994) 8 Cal.4th 121, 128 [32 Cal.Rptr.2d 275, 876 P.2d 1074]), we issued an order directing petitioner

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Plaintiff to appear and show cause why this appeal should not be dismissed because it was taken from an order or judgment made nonappealable by section 2337. After further briefing by the parties and a hearing on the order to show ...


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