IN THE COURT OF APPEAL

Transcription

1 E IMMEDIATE STAY REQUESTED IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION TWO DR. SANG-HOON AHN, et al., Plaintiffs and Respondents, v. MICHAEL HESTRIN, etc., et al., Defendants. MATTHEW FAIRCHILD, JOAN NELSON, and DR. CATHERINE S. FOREST, Movants, Appellants, and Petitioners. SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, DEPARTMENT 4 CASE NO. RIC DANIEL A. OTTOLIA, JUDGE TEL. NO. (951) PETITION FOR WRIT OF SUPERSEDEAS; REQUEST FOR IMMEDIATE STAY; MEMORANDUM (SUPPORTING EXHIBITS FILED UNDER SEPARATE COVER) (Related Writ Petition Pending: No. E070545) LAW OFFICE OF JON B. EISENBERG *JON B. EISENBERG (BAR NO ) 509 TUCKER STREET HEALDSBURG, CALIFORNIA (707) jon@eisenbergappeals.com O MELVENY & MYERS LLP JOHN KAPPOS (BAR NO ) BO MOON (BAR. NO ) TYLER H. HUNT (BAR NO ) 610 NEWPORT CENTER DRIVE, 17 TH FLOOR NEWPORT BEACH, CALIFORNIA jkappos@omm.com O MELVENY & MYERS LLP JASON A. ORR (BAR NO ) 400 SOUTH HOPE STREET LOS ANGELES, CALIFORNIA (213) jorr@omm.com COMPASSION & CHOICES KEVIN DÍAZ (PRO HAC VICE FORTHCOMING) 4224 NE HALSEY STREET, SUITE 335 PORTLAND, OREGON (503) kdiaz@compassionandchoices.org ATTORNEYS FOR MOVANTS, APPELLANTS, AND PETITIONERS MATTHEW FAIRCHILD, JOAN NELSON, AND DR. CATHERINE S. FOREST

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3 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...5 INTRODUCTION: WHY SUPERSEDEAS SHOULD ISSUE...8 PETITION FOR WRIT OF SUPERSEDEAS PRAYER VERIFICATION MEMORANDUM I. AN INJUNCTION IS MANDATORY, AND THUS IS AUTOMATICALLY STAYED ON APPEAL, IF IT COMPELS A PARTY TO SURRENDER A POSITION AND TO ACT IN ACCORDANCE WITH THE JUDGMENT A. The General Rule is That an Appeal Automatically Stays Enforcement of the Judgment B. An Appeal Automatically Stays Enforcement of a Mandatory Injunction C. An Injunction is Mandatory if it Compels a Party to Surrender a Position and to Act in Accordance with the Judgment II. THE PRESENT INJUNCTION IS MANDATORY, AND THUS IS AUTOMATICALLY STAYED ON APPEAL, BECAUSE IT COMPELS APPELLANTS AND DEFENDANTS TO SURRENDER A POSITION AND TO ACT IN ACCORDANCE WITH THE JUDGMENT A. The Injunction Compels Ms. Nelson to Surrender Her Position of Being Able to Use Her Aid-In-Dying Medication Without Adverse 3

4 Legal Consequences and to Act in Accordance with the Judgment by Refraining from Doing So B. The Injunction Compels Dr. Forest to Surrender Her Position of Being Able to Provide Medical Aid-In-Dying Services and to Act in Accordance with the Judgment by Ceasing to Do So C. The Injunction Compels District Attorney Hestrin to Surrender His Position of Treating Medical Aid-In-Dying as Lawful Conduct and to Act in Accordance with the Judgment by Determining Whether to Prosecute Such Conduct D. The Injunction Compels the State of California to Surrender its Position of Performing Administrative Duties Under the EOLOA and to Act in Accordance with the Judgment by Ceasing to Do So III. AS A MATTER OF RIGHT, APPELLANTS ARE ENTITLED TO SUPERSEDEAS TO ENFORCE THE AUTOMATIC STAY CONCLUSION CERTIFICATE OF WORD COUNT

5 TABLE OF AUTHORITIES Page(s) Cases Ambrose v. Alioto (1944) 62 Cal.App.2d , 23 Byington v. Superior Court (1939) 14 Cal.2d Chapala Mgmt. Corp. v. Stanton (2010) 186 Cal.App.4th City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th City of Pasadena v. City of Alhambra (1946) 75 Cal.App.2d Clute v. Superior Court (1980) 155 Cal County of Alameda v. Carleson (1971) 5 Cal.3d , 27, 28 Dosch v. King (1961) 192 Cal.App.2d Elsea v. Saberi (1992) 4 Cal.App.4th Feinberg v. One Doe Co. (1939) 14 Cal.2d , 30 Foster v. Superior Court (1896) 115 Cal Hayworth v. City of Oakland (129 Cal.App.3d In re Marriage of Horowitz (1984) 159 Cal.App.3d

6 In re O Connell (1925) 75 Cal.App.2d Johnston v. Superior Court (1957) 148 Cal.App.2df , 24, 25 Kettenhofen v. Superior Court (1961) 55 Cal.2d Musicians Club of L.A. v. Superior Court (1958) 165 Cal.App.2d Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d , 23 People v. Stutz (1944) 66 Cal.App.2d Podesta v. Linden Irrigation Dist. (1955) 132 Cal.App.2d , 30 Pomin v. Superior Court (1941) 44 Cal.App.2d Varian Medical Sys., Inc. v. Delfino (2005) 35 Cal.4th Constitution California Constitution, article VI, section , 13, 14 Statutes Code Civ. Proc , subd. (a)(1) , subd. (a)(2) , subd. (a)(6) , subd. (a) Health & Saf. Code 443, et seq

7 Pen. Code Rules of Court California Rules of Court, rule 8.112(c)(1)... 11, 17, 18 7

8 INTRODUCTION: WHY SUPERSEDEAS SHOULD ISSUE This petition for writ of supersedeas seeks to enforce an automatic stay during the pendency of an appeal from a judgment and an order granting a mandatory injunction. The judgment and order permanently enjoined Defendant State of California from recognizing or enforcing the End of Life Option Act (Health & Saf. Code, 443, et seq.) (the EOLOA or the Act ) and permanently enjoined the District Attorney of Riverside County from recognizing any exceptions the Act creates to existing criminal law in the exercise of the District Attorney's criminal enforcement duties. The judgment and order were entered upon the superior court s determination that the EOLOA, which was adopted during a special session of the Legislature, is void as beyond the scope of the special session and thus in violation of Article IV, section 3(b) of the California Constitution. The EOLOA authorizes the practice of medical aid-in-dying, in which mentally capable adults who have six months or less to live may obtain a doctor s prescription for aid-in-dying medication. Joan Nelson, Dr. Catherine S. Forest, and Matthew Fairchild have appealed the judgment and order. Ms. Nelson is dying of terminal leiomyosarcoma and has obtained and filled a prescription for aid-in-dying medication. She is presently uncertain whether she 8

9 can use the medication without adverse legal consequences for example, criminal prosecution of friends and family who are at her side if and when she takes the medication, criminal prosecution of the physicians who prescribed the medication, or a statement on her death certificate that the cause of death was suicide rather than leiomyosarcoma. Dr. Forest is a family physician who treats terminally ill patients and works with patients who seek a prescription for aid-in-dying medication. She wants to be able to offer medical aid-in-dying as an option for terminally ill patients. She is presently uncertain whether she can assist patients who are seeking a prescription, and she wonders whether she can even discuss with patients the option of medical aid-indying without putting herself at risk of criminal prosecution. Mr. Fairchild is seriously ill with cancer but does not presently qualify for medical aid-in-dying because he has not received a six-month terminal diagnosis. He had been comforted by the fact that under the EOLOA he would have the option of taking aid-in-dying medication if his suffering became unbearable, but presently he no longer has that comfort because of the superior court s decision. 9

10 The law is well settled that an appeal of a judgment or order granting a mandatory injunction automatically stays enforcement of the injunction during the pendency of the appeal. The law is also well settled that an injunction is mandatory if it compels a party to surrender a position and to act in accordance with the judgment. Under that standard, the injunction in the present case is mandatory, for four separate and independent reasons: The injunction compels Ms. Nelson to surrender her position of being able to use her aid-in-dying medication without adverse legal consequences and to act in accordance with the judgment by refraining from doing so. The injunction compels Dr. Forest to surrender her position of being able to provide treatment related to medical aid-in-dying, including the writing of prescriptions for aid-in-dying medication, and to act in accordance with the judgment by ceasing to do so. The injunction compels Riverside County District Attorney Michael Hestrin to surrender his position of recognizing treatment pursuant to the EOLOA as lawful conduct and to act in accordance with the judgment by ceasing to do so. 10

11 The injunction compels the State of California to surrender its position of performing administrative duties under the EOLOA and to act in accordance with the judgment by ceasing to do so. Consequently, the appeal in this case has automatically stayed enforcement of the challenged injunction during the pendency of the appeal. Nevertheless, the State of California and District Attorney Hestrin have not acknowledged the automatic stay. In such circumstances, supersedeas lies to enforce the automatic stay. This petition also requests an immediate temporary stay (Cal. Rules of Court, rule 8.112(c)(1)), without which Ms. Nelson will remain uncertain whether she can use her aid-in-dying medication without adverse legal consequences, Dr. Forest will remain unable to offer aid-in-dying treatment in her medical practice, and Mr. Fairchild will lack the peace of mind in knowing that he has the option of taking aid-in-dying medication if his suffering becomes unbearable. Further, these three appellants are representative of many other gravely ill Californians and their physicians, for whom these issues are of utmost urgency and great public importance. Given the present uncertainty as to the EOLOA s current status and the grave personal and legal ramifications at stake, the uncertainty should be resolved as quickly as possible. 11

12 PETITION FOR WRIT OF SUPERSEDEAS The Parties 1. Appellants Matthew Fairchild, Joan Nelson, and Dr. Catherine S. Forest are movants in an underlying action styled Dr. Sang-Hoon Ahn, et al. v. Michael Hestrin, et al., Riverside County Superior Court Case No. RIC Appellants filed a motion to vacate a judgment entered on May 24, 2018, and the motion was denied by an order entered on May 30, By the motion s denial, appellants obtained standing to appeal the judgment. 2. Respondents Dr. Sang-Hoon Ahn, Dr. Laurence Boggeln, Dr. George Delgado, Dr. Phil Dreisbach, Dr. Vincent Fortanasce, Dr. Vincent Nguyen, and American Academy of Medical Ethics, d/b/a of Christian Medical and Dental Society, are the plaintiffs in the underlying action. 3. Michael Hestrin, in his official capacity as District Attorney of Riverside County, is the lead defendant in the underlying action. The Attorney General of the State of California and the State of California by and through the California Department of Public Health are intervening defendants in the underlying action. 12

13 Authenticity of Exhibits 4. The exhibits accompanying this petition, labeled numerically and consecutively paginated, are true and correct copies of original documents on file in the superior court, except exhibit 14, which is a true and correct copy of the reporter s transcript of oral proceedings on May 15, All exhibits are incorporated by reference as if fully set forth in this petition. Chronology of Pertinent Events 5. The operative complaint in this action, filed on June 8, 2016, sought declaratory relief and an injunction enjoining defendant District Attorney Hestrin from recognizing any exceptions to the criminal law created by the Act in the exercise of his criminal enforcement duties. (Exh. 1, p. 18.) 6. The State of California and the California Attorney General intervened in this action as defendants on June 27, (Exh. 2, p. 26.) 7. On February 9, 2018, plaintiffs filed a motion for judgment on the pleadings, asserting that the EOLOA was passed by a special session of the Legislature in violation of Article IV 3(b) of [the] California Constitution because the Act is not encompassed by any reasonable construction of the Proclamation granting the special session the authority to legislate. (Exh. 3, p. 42.) The motion sought a judgment permanently enjoining Defendant State of California from recognizing or enforcing the 13

14 Act, and permanently enjoining Defendant District Attorney Hestrin from recognizing any exceptions to the criminal law created by the Act in the exercise of his criminal enforcement duties. (Ibid.) 8. On May 15, 2018, at the hearing on the motion for judgment on the pleadings, the superior court ruled that the EOLOA violates Article [IV], Section 3, of the California Constitution and is thus void as unconstitutional. (Exh. 14, p. 171.) The court stated it would grant the motion for judgment on the pleadings without leave to amend but would hold off entering the order for five days to give the Attorney General time to file a writ petition in the Court of Appeal. (Exh. 14, pp. 177, 179.) 9. On May 21, 2018, the superior court entered the order granting judgment on the pleadings, stating IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs Motion for Judgment on the Pleadings is GRANTED. (Exh. 4, p. 67.) 10. Also on May 21, 2018, prior to the entry of judgment, defendants State of California and the California Attorney General filed a writ petition in this court challenging the merits of the order granting judgment on the pleadings. (People v. Superior Court (Ahn), No. E ) The writ petition requested an immediate discretionary stay of the order. (Exh. 5, pp. 71, 92.) 11. On May 23, 2018, this court issued an order to show cause on the writ petition but denied the discretionary stay. The order gives real parties in interest 25 days to file a formal return and gives petitioners 15 more days to file a traverse. (Exh. 6, p. 113.) 14

15 12. On May 24, 2018, the superior court entered its final judgment in this action. The judgment recites that the court granted judgment on the pleadings without leave to amend and that the court held the EOLOA void as unconstitutional, and the court permanently enjoined defendant State of California from recognizing or enforcing the Act and permanently enjoined the District Attorney of Riverside County ( District Attorney ) from recognizing any exceptions the act creates to existing criminal law in the exercise of the District Attorney s criminal enforcement duties. (Exh. 7, p. 117.) The judgment concludes: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that judgment is ordered in favor of Plaintiffs and against Defendant-Intervenors Attorney General of the State of California and the California Department of Public Health. (Ibid.) 13. On May 29, 2018, Ms. Nelson, Dr. Forest, and Mr. Fairchild filed a motion to vacate the judgment pursuant to Code of Civil Procedure section 663. (Exh. 8, p. 127.) The motion was accompanied by declarations describing the moving parties as follows: a. Ms. Nelson is dying of terminal leiomyosarcoma and has obtained a prescription for medical aid-in-dying. She received her aid-in-dying medication on May 17, She is presently uncertain whether she can use the medication without adverse legal consequences. (Exh. 9, p. 148.) b. Dr. Forest is a Clinical Associate Professor of Family Medicine at UCSF Natividad in Salinas. In her practice, she treats terminally ill patients and has worked with patients 15

16 who have sought a prescription for aid-in-dying medication. She wants to be able to offer medical aid-in-dying as an option to terminally ill patients consistent with the procedures afforded by the EOLOA. (Exh. 10, p. 152.) c. Mr. Fairchild is seriously ill with cancer but does not presently qualify for medical aid-in-dying because he has not received a six-month terminal diagnosis. He had been comforted by the fact that under the EOLOA he would have the option of taking aid-in-dying medication if his suffering became unbearable, but presently he no longer has the peace of mind he had in knowing that he would have the option to make his own end-of-life choices. (Exh. 11, p. 156.) 14. On May 30, 2018, the superior court denied the motion to vacate the judgment. (Exh. 12, p. 158.) As a result, Ms. Nelson, Dr. Forest, and Mr. Fairchild became parties of record to this action and have standing to appeal from the judgment. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, (County of Alameda).) 15. On June 1, 2018, Ms. Nelson, Dr. Forest, and Mr. Fairchild filed a timely notice of appeal from the order of May 21, 2018, to the extent it grants an injunction (Code Civ. Proc., 904.1, subd. (a)(6)), from the judgment of May 24, 2018 (Code Civ. Proc., 904.1, subd. (a)(1)), and from the order of May 30, 2018, denying the motion to vacate (Code Civ. Proc., 904.1, subd. (a)(2)). (Exh. 13, p. 160.) 16

17 Basis for Relief 16. On appeal, the challenged injunction is automatically stayed as a mandatory injunction because it compels a party to surrender a position and to act in accordance with the judgment. (E.g., Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, (Paramount Pictures).) Absence of Other Remedies 17. Appellants have no plain, speedy, or adequate remedy at law, other than the relief sought in this petition. Defendants have not acknowledged the automatic stay. Need for an Immediate Temporary Stay 18. This petition requests an immediate temporary stay pursuant to rule 8.112(c)(1) of the California Rules of Court pending the ruling on this petition. Absent an immediate temporary stay (and thereafter a writ of supersedeas), Ms. Nelson will remain uncertain whether she can use aid-in-dying medication without adverse legal consequences, Dr. Forest will remain unable to offer aid-in-dying services in her medical practice, and Mr. Fairchild will lack the peace of mind in knowing that he has the option of taking aid-in-dying medication if his suffering becomes unbearable. Further, these three movants are representative of many other gravely ill Californians and their 17

18 physicians, for whom these issues are of utmost urgency and great public importance. Given the present uncertainty as to the EOLOA s current status and the grave personal and legal ramifications at stake, the uncertainty should be resolved as quickly as possible. PRAYER WHEREFORE, appellants Matthew Fairchild, Joan Nelson, and Dr. Catherine S. Forest pray that this court: 1. Issue a temporary immediate stay pursuant to rule 8.112(c)(1) of the California Rules of Court pending the ruling on this petition; 2. Issue a writ of supersedeas declaring that the judgment of May 24, 2018, the order of May 21, 2018 (to the extent it grants an injunction), and all matters related to enforcement of the judgment and injunction are stayed during the pendency of proceedings before this court on appeal from that judgment and order; 3. Award appellants such other and further relief as may be deemed just and proper. 18

19 June 6, 2018 LAW OFFICE OF JON B. EISENBERG JON B. EISENBERG O MELVENY & MYERS LLP JOHN KAPPOS BO MOON TYLER H. HUNT JASON A. ORR COMPASSION & CHOICES KEVIN DÍAZ By: Jon B. Eisenberg Attorneys for Movants, Appellants and Petitioners MATTHEW FAIRCHILD, JOAN NELSON, and DR. CATHERINE S. FOREST 19

20 VERIFICATION I, Jon B. Eisenberg, declare as follows: I am one of the attorneys representing Matthew Fairchild, Joan Nelson, and Dr. Catherine S. Forest in proceedings commenced in the Superior Court of the State of California for Riverside County captioned Dr. Sang-Hoon Ahn, et al. v. Michael Hestrin, et al., Riverside County Superior Court Case No. RIC , out of which this petition for writ of supersedeas arises. I have read the foregoing petition and know its contents. The facts alleged in the petition are personally known to me, and I know these facts as stated therein to be true. Because of my familiarity with the records, files, and proceedings described herein, I, rather than my clients, verify this petition. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this verification was executed on June 6, 2018, at Healdsburg, California. Jon B. Eisenberg 20

21 MEMORANDUM I. AN INJUNCTION IS MANDATORY, AND THUS IS AUTOMATICALLY STAYED ON APPEAL, IF IT COMPELS A PARTY TO SURRENDER A POSITION AND TO ACT IN ACCORDANCE WITH THE JUDGMENT A. The General Rule is That an Appeal Automatically Stays Enforcement of the Judgment Subject to exceptions not applicable here, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.... (Code Civ. Proc., 916, subd. (a).) The purpose of the automatic stay is to protect the jurisdiction of the appellate court and prevent[] the trial court from rendering the appeal futile.... (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; see also Varian Medical Sys., Inc. v. Delfino (2005) 35 Cal.4th 180, 189, 198 (Varian).) The automatic stay protect[s] the appellate court s jurisdiction by preserving the status quo until the appeal is decided. (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, italics added; see also Varian, supra, at p. 189; City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 482 [purpose of automatic stay is to preserve the parties positions pending the outcome of the appeal ].) 21

22 B. An Appeal Automatically Stays Enforcement of a Mandatory Injunction On appeal from an order granting an injunction, the appeal automatically stays enforcement of the injunction if the injunction is mandatory, but not if it is prohibitory. (Paramount Pictures, supra, 228 Cal.App.2d at p. 835.) Generally, an injunction is mandatory if it requires affirmative action and changes the status quo. (Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, ) The relevant status quo is the status quo that existed immediately before the trial court issued the injunction. (Foster v. Superior Court (1896) 115 Cal. 279, 284; Paramount Pictures, supra, 228 Cal.App.2d at p. 835; Musicians Club of L.A. v. Superior Court (1958) 165 Cal.App.2d 67, 71; Ambrose v. Alito (1944) 62 Cal.App.2d 680, 685 (Ambrose).) More specifically, the injunction is mandatory if it has the effect of compelling performance of a substantive act and necessarily contemplates a change in the relative rights of the parties at the time the injunction is granted. (Paramount Pictures, supra, 228 Cal.App.2d at p ) In contrast, the injunction is prohibitory, and thus not stayed by an appeal, if its effect is to leave the parties in the same position as they were prior to the entry of the judgment. (Id. at p. 836.) The character of an injunction as mandatory or prohibitory is determined not by its form but by its substantive effect. The court must look to its substance to determine its real nature. (Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 28 (Feinberg).) [A]n 22

23 order entirely negative or prohibitory in form may prove upon analysis to be mandatory and affirmative in essence and effect. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) C. An Injunction is Mandatory if it Compels a Party to Surrender a Position and to Act in Accordance with the Judgment An injunction has the effect of compelling performance of a substantive act if it compels a party to surrender a position he holds and which upon the facts alleged by him he is entitled to hold and to act in accordance with the judgment rendered. (Paramount, supra, 228 Cal.App.2d at p. 836.) This point is well settled by a long line of cases. (E.g., Byington v. Superior Court (1939) 14 Cal.2d 68, 71; Clute v. Superior Court (1908) 155 Cal. 15, 19-20; Paramount, supra, 228 Cal.App.2d at p. 836; Dosch v. King (1961) 192 Cal.App.2d 800, 804; Johnston v. Superior Court (1957) 148 Cal.App.2d 966, 970 (Johnston); Podesta v. Linden Irrigation Dist. (1955) 132 Cal.App.2d 250, (Podesta); City of Pasadena v. City of Alhambra (1946) 75 Cal.App.2d 91, 95; People v. Stutz (1944) 66 Cal.App.2d 791, 794; Ambrose, supra, 62 Cal.App.2d at p. 685; Pomin v. Superior Court (1941) 44 Cal.App.2d 206, 210; In re O'Connell (1925) 75 Cal.App. 292, 297.) An exemplary case is Johnston, supra, 148 Cal.App.2d 966, where the appealed judgment declared void a referendum that had repealed a city ordinance changing the zoning of certain property from residential to commercial use. The effect of the voided 23

24 referendum had been to restrict the property to residential use. The judgment included an injunction prohibiting the defendants from interfering with plaintiffs commercial use of the property. (Id. at pp ) During the pendency of the defendants appeal from the judgment, the plaintiffs began constructing a commercial building on the property without obtaining a permit. The defendants commenced misdemeanor proceedings against one of the plaintiffs and filed a civil action against all the plaintiffs for erecting the commercial building without a permit, which led to contempt proceedings against the defendants for violating the injunction by interfering with the plaintiffs commercial use of the property. The trial court determined there had been no contempt because the injunction was mandatory and thus had been stayed by the pending appeal. (Johnston, supra, 148 Cal.App.2d at pp ) On a writ of certiorari to review the adjudication of no contempt, the Court of Appeal held that the injunctive provisions of the judgment are mandatory in character and thus stayed by the pending appeal. (Johnston, supra, 148 Cal.App.2d at p. 971.) At the time the injunction was granted, the ordinance changing the zoning of the property to commercial use stood repealed by the referendum proceedings, and thus the property was returned to being zoned solely for residential use. (Id. at p. 969.) The injunction did not have the effect of preserving the status quo. To the contrary, the injunction effected a change in the relative position and rights of the parties, because it compelled the defendants to surrender their prejudgment position by ceasing to 24

25 treat the property as being zoned for residential use, and it compelled them to act in accordance with the judgment by allowing commercial use of the property. (Id. at pp ) Consequently, the injunction was stayed on appeal, leaving the defendants free to interfere with the plaintiffs commercial use of the property by prosecuting the actions against them for erecting the commercial building without a permit. Thus, in Johnston, although the injunction was couched in seemingly prohibitory language stating that the defendants were restrained and enjoined from interfering in any manner with the plaintiffs commercial use of the property (Johnston, supra, 148 Cal.App.2d at p. 968) in substance and effect the injunction was mandatory because it compelled the defendants to surrender their position of treating the property as being zoned only for residential use. Johnston is on all fours with the present case. Here, as in Johnston, existing law was changed here, the existing law against assisting a suicide was changed by the EOLOA; in Johnston, the existing law allowing the commercial use of property was changed by the referendum. Here, as in Johnston, the change was declared void here, the EOLOA was declared void; in Johnston, the referendum was declared void. Here, as in Johnston, the trial court enjoined enforcement of legislation here, the trial court enjoined enforcement of the EOLOA; in Johnston, the trial court enjoined enforcement of the referendum returning the property to residential zoning. 25

26 And as we next demonstrate here, as in Johnston, the injunction is stayed on appeal because, despite its being couched in seemingly prohibitory language, in substance and effect it is mandatory because it compels parties to surrender a position and to act in accordance with the judgment. II. THE PRESENT INJUNCTION IS MANDATORY, AND THUS IS AUTOMATICALLY STAYED ON APPEAL, BECAUSE IT COMPELS APPELLANTS AND DEFENDANTS TO SURRENDER A POSITION AND TO ACT IN ACCORDANCE WITH THE JUDGMENT The injunction in this case is mandatory, and thus is automatically stayed on appeal, for four separate and independent reasons. A. The Injunction Compels Ms. Nelson to Surrender Her Position of Being Able to Use Her Aid-In-Dying Medication Without Adverse Legal Consequences and to Act in Accordance with the Judgment by Refraining from Doing So First, the injunction is mandatory as to Ms. Nelson because of its effect on her ability to use the aid-in-dying medication she obtained on May 17, The injunction compels her to surrender her position of being able to use the medication without fear of adverse legal consequences, in that it creates uncertainty 26

27 as to whether she can use the medication without leading to criminal prosecution (under Penal Code section 401) of friends and family who are at her side if and when she takes the medication, criminal prosecution of the physicians who prescribed the medication, or a statement on her death certificate that the cause of death was suicide rather than leiomyosarcoma. As a result, she currently fears that she will not have the option of using the medication if and when her suffering becomes unbearable. The injunction compels her to act in accordance with the judgment by refraining from using the medication. 1 B. The Injunction Compels Dr. Forest to Surrender Her Position of Being Able to Provide Medical Aid-In- Dying Services and to Act in Accordance with the Judgment by Ceasing to Do So Second, the injunction is mandatory as to Dr. Forest because of its effect on her ability to provide aid-in-dying services under the EOLOA in the course of her medical practice. The injunction compels her to surrender her position of being able to do so, and it 1 Ms. Nelson has attained the status of a party compelled to surrender a position and to act in accordance with the judgment (Paramount, supra, 228 Cal.App.2d at p. 836) by moving to vacate the judgment. (County of Alameda, supra, 5 Cal.3d at pp ) 27

28 compels her to act in accordance with the judgment and against her personal beliefs and medical ethics by ceasing to do so. 2 C. The Injunction Compels District Attorney Hestrin to Surrender His Position of Treating Medical Aid-In- Dying as Lawful Conduct and to Act in Accordance with the Judgment by Determining Whether to Prosecute Such Conduct Third, the injunction is mandatory as to District Attorney Hestrin because of its effect on the performance of his duties as District Attorney of Riverside County. The injunction compels him to surrender his position of recognizing treatment pursuant to the EOLOA as lawful conduct, and it compels him to act in accordance with the judgment by ceasing to do so and determining whether, in the exercise of his prosecutorial discretion, to prosecute such conduct. 2 Dr. Forest, too, has attained the status of a party compelled to surrender a position and to act in accordance with the judgment (Paramount, supra, 228 Cal.App.2d at p. 836) by moving to vacate the judgment. (County of Alameda, supra, 5 Cal.3d at pp ) 28

29 D. The Injunction Compels the State of California to Surrender its Position of Performing Administrative Duties Under the EOLOA and to Act in Accordance with the Judgment by Ceasing to Do So Fourth, the injunction compels defendant State of California, by and through the California Department of Public Health, to surrender its position of performing administrative duties under the EOLOA. The EOLOA requires the Department of Public Health to (1) collect information about the writing of prescriptions for, and deaths from, medical aid-in-dying, (2) create yearly reports based on that information, and (3) post on its Internet Web site certain forms for use under the EOLOA. (Health & Saf. Code, , ) The injunction compels the State of California to act in accordance with the judgment by ceasing to perform those administrative duties. III. AS A MATTER OF RIGHT, APPELLANTS ARE ENTITLED TO SUPERSEDEAS TO ENFORCE THE AUTOMATIC STAY Where a party fails to acknowledge that a superior court order is automatically stayed by a pending appeal, a petition for writ of supersedeas is the appropriate remedy. (E.g., Chapala Mgmt. Corp. v. Stanton (2010) 186 Cal.App.4th 1532, 1541, fn. 8.) In such circumstances, the appellants are entitled to supersedeas as a matter of right i.e., it is not a matter of appellate court discretion whether to grant supersedeas. (Feinberg, supra, 14 29

30 Cal.2d at p. 29 [ it is unnecessary for us to balance or weigh the arguments with reference to the possible irreparable injury to appellants or respondents as would be necessary if the question of the issuance of the writ was solely a matter of our discretion ].) Here, supersedeas is appropriate because District Attorney Hestrin and the State of California have failed to acknowledge the automatic stay. 3 CONCLUSION For the foregoing reasons, the court should issue a temporary immediate stay, and thereafter a writ of supersedeas, as prayed for in this petition. 3 In theory, there is no need for supersedeas at all, since the statutory supersedeas is operative, but in such situations it is appropriate to grant supersedeas to set the matter at rest. (Podesta, supra, 132 Cal.App.2d at p. 261.) 30

31 June 6, 2018 LAW OFFICE OF JON B. EISENBERG JON B. EISENBERG O MELVENY & MYERS LLP JOHN KAPPOS BO MOON TYLER H. HUNT JASON A. ORR COMPASSION & CHOICES KEVIN DÍAZ By: Jon B. Eisenberg Attorneys for Movants, Appellants and Petitioners MATTHEW FAIRCHILD, JOAN NELSON, and DR. CATHERINE S. FOREST 31

32 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rules 8.204(c)(1), 8.485(a), & 8.486(a)(6).) The text of this brief consists of 4,615 words as counted by the Microsoft Word version 2010 word processing program used to generate the brief. Dated: June 6, 2018 Jon B. Eisenberg 32

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34 SERVICE LIST Dr. Sang-Hoon Ahn, et al., v. Michael Hestrin etc., et al. Court of Appeal Case No. E Office of the Clerk for the Hon. Daniel A. Ottolia Riverside Superior Court 4050 Main Street Riverside, California Robert C. O Brien Steven E. Bledsoe Steven E. Bledsoe LARSON O BRIEN LLP 555 S. Flower Street, Suite 4400 Los Angeles, CA (213) slarson@larsonobrienlaw.com robrien@larsonobrienlaw.com sbledsoe@larsonobrienlaw.com egraves@larsonobrienlaw.com lwulfe@larsonobrienlaw.com Catherine W. Short Allison K. Aranda Alexandra Snyder LIFE LEGAL DEFENSE FOUNDATION P.O. Box 1313 Ojai, CA (805) lldfojai@cs.com akaranda@lldf.org asnyder@lldf.org Case No. RIC (Via messenger - Writ only) Attorneys for Plaintiffs and Respondents DR. SANG-HOON AHN, DR. LAURENCE BOGGELN, DR. GEORGE DELGADO, DR. PHILIP DREISBACH, DR. VINCENT FORTANASCE, DR. VINCENT NGUYEN and AMERICAN ACADEMY OF MEDICAL ETHICS, d/b/a of CHRISTIAN MEDICAL AND DENTAL SOCIETY (Via and First Class Mail) Attorneys for Plaintiffs and Respondents (Via and First Class Mail) 1

35 Karen M. Kitterman 8605 Santa Monica Blvd. # Los Angeles, CA (650) kmmk@caringcal.com Xavier Becerra, Esq. Attorney General of California Julie Y. Weng-Gutierrez Senior Assistant Attorney General Niromi W. Pfeiffer Supervising Deputy Attorney General Darrell W. Spence Deputy Attorney General STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street, Suite 125 P.O. Box Sacramento, CA (916) Darrell.Spence@doj.ca.gov Julie.WengGutierrez@doj.ca.gov Hon. Michael Hestrin District Attorney Kelli M. Catlett Supervising Deputy District Attorney Ivy B. Fitzpatrick Senior Deputy District Attorney OFFICE OF THE DISTRICT ATTORNEY County of Riverside 3960 Orange Street Riverside, CA (951) ' kcatlett@rivcoda.org ivyfitzpatrick@rivcoda.org Attorneys for Plaintiffs and Respondents (Via and First Class Mail) Attorneys for Defendants/Intervenors ATTORNEY GENERAL OF THE STATE OF CALIFORNIA and CALIFORNIA DEPARTMENT OF PUBLIC HEALTH (Via and First Class Mail) Attorneys for Defendants/Intervenors (Via and First Class Mail) 2