Anthony Rudick v. State Board of Optometry

This is an appeal from judgment after the trial court denied the petition for writ of

mandate filed by plaintiffs Anthony Rudick, O.D., and Ridge Eye Care, Inc. (Ridge) and

granted summary judgment in favor of defendant State Board of Optometry (Board) and

against plaintiffs on their related complaint for declaratory and injunctive relief. On

appeal, plaintiffs seek reversal of the judgment and entry of an order directing the trial

court to find in their favor on the ground that the trial court erroneously interpreted the

applicable statutory law. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 2013, plaintiffs filed a combined verified petition for writ of

mandate and complaint for declaratory and injunctive relief against the Board challenging

its denial of an application for a statement of licensure submitted by Rudick.1

Plaintiffs’

challenge arises from the following set of undisputed facts.

Rudick is a licensed optometrist with his principal place of practice in the Town of

Paradise. Rudick is also a 49-percent owner, director, and the vice-president of Ridge.



1 On September 8, 2015, the trial court bifurcated the proceedings with respect to

the petition for writ of mandate and the complaint.

2

Ridge, a “medical corporation” under the Moscone–Knox Professional Corporation Act

(Moscone–Knox) (Corp. Code, § 13400 et seq.), has four office locations, including in

the towns of Paradise and Magalia. Joel Isaac Barthelow, M.D., a licensed physician

who practices ophthalmology, is the majority owner, president, and a director of Ridge.

Ridge employs both ophthalmologists and optometrists to provide a broad range of

professional eye care services to its patients. More specifically, Ridge employs

optometrists (one of whom is Rudick) at each of its four locations, who practice

optometry as defined by Business and Professions Code section 3041.2

While the

practices of ophthalmology and optometry overlap in certain regards, there are critical

differences, including the fact that only ophthalmologists and not optometrists are

authorized to perform surgery and to prescribe certain medications.3

(See, e.g., §§ 3041,

2052.) In addition, ophthalmologists, unlike optometrists, may treat conditions beyond

the eye and its immediately surrounding tissues.

In November 2011, Rudick submitted an application for statement of licensure

with the requisite fees to the Board for Ridge’s Magalia location, identifying himself as

the employer of the Magalia location and the Town of Paradise as his principal place of

practice. On April 25, 2012, the Board denied Rudick’s application. In its letter of

denial, the Board explained: “Your application for Statement of Licensure was rejected

because you list yourself as the principal employer at the location. In your letter you

state that you are 49% shareholder in the business. Per BPC [section] 3077 you need to

submit a Branch Office License application if you have a financial interest in that

location.” Rudick and Ridge thereafter brought this lawsuit to challenge the Board’s

decision.



2 Unless otherwise stated, all statutory citations herein are to the Business and

Professions Code.

3 Ophthalmologists, like all physicians, are governed by the Medical Practice Act

(§ 2000 et seq.) while optometrists are governed by the Optometry Practice Act (§ 3000

et seq.).

3

On January 28, 2016, the trial court denied plaintiffs’ petition for writ of mandate,

finding “[i]t is reasonable for the Board to deny the request for a Statement of Licensure

when the applicant for the Statement of Licensure is required to obtain a Branch Office

License, as otherwise the applicant could be disinclined to obtain the required Branch

Office License.” The parties then filed cross-motions for summary judgment with

respect to plaintiffs’ complaint, which were heard on February 14, 2017.

On March 20, 2017, the trial court granted the Board’s motion for summary

judgment and denied plaintiffs’ motion for the same, finding that the Board properly

determined Rudick must comply with the branch office licensing requirements in

section 3077 for his practice at Ridge’s Magalia office since his principal place of

practice was in Paradise. Judgment was thus entered in favor of the Board and against

plaintiffs on June 14, 2017, prompting this appeal.

DISCUSSION

This lawsuit arises out of the licensing application submitted by Rudick to the

Board with respect to his practice of optometry at a location other than his principal place

of practice, specifically, at Ridge’s Magalia location. In California, the practice of

optometry is governed by the Optometry Practice Act (Act) (§ 3000 et seq.). The Board

is the state agency charged with enforcing the Act. (§ 3010.5.) On appeal, we are asked

to address two issues relating to the proper interpretation of two of the Act’s provisions,

sections 3070 and 3077.

4

First, we must decide whether the trial court properly ruled in

favor of the Board and against plaintiffs on summary judgment after upholding the

Board’s decision not to issue Rudick a statement of licensure under section 3070 and to

instead require him to obtain a branch office license under section 3077 for his practice at

the Magalia location or face disciplinary action. Second, we turn to whether the trial

court properly denied plaintiffs’ petition for writ of mandate after finding the Board had



4 Unless otherwise stated, all citations and references to the Act and, in particular,

to sections 3070 and 3077, are to prior versions of the statutes, which were before the

trial court when ruling on the relevant motions for summary judgment in 2017.

4

no mandatory duty under section 3070 to issue Rudick a statement of licensure upon

receipt of his application and the applicable fees.

The parties agree both issues before the court are purely legal issues and are

therefore subject to de novo review. (Imperial Merchant Services, Inc. v. Hunt (2009) 47

Cal.4th 381, 387.) Accordingly, we apply the following rules. “Under settled canons of

statutory construction, in construing a statute we ascertain the Legislature’s intent in

order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words

and give them ‘their usual and ordinary meaning.’ [Citation.] ‘The statute’s plain

meaning controls the court’s interpretation unless its words are ambiguous.’ [Citations.]

‘If the statutory language permits more than one reasonable interpretation, courts may

consider other aids, such as the statute’s purpose, legislative history, and public policy.’

[Citation.]” (Id. at pp. 387–388.)

Moreover, while statutory interpretation is ultimately an issue resolved by the

courts, in an appropriate case, “[a]n agency interpretation of the meaning and legal effect

of a statute is entitled to consideration and respect by the courts.” (Yamaha Corp. of

America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7.) “Courts must, in short,

independently judge the text of the statute, taking into account and respecting the

agency’s interpretation of its meaning, of course, whether embodied in a formal rule or

less formal representation. Where the meaning and legal effect of a statute is the issue,

an agency’s interpretation is one among several tools available to the court. Depending

on the context, it may be helpful, enlightening, even convincing. It may sometimes be of

little worth.” (Id. at pp. 7–8.)

With this framework in mind, we turn to the two issues at hand.

A. The Trial Court’s Summary Judgment Ruling.

On April 25, 2012, the Board rejected Rudick’s application for statement of

licensure for Ridge’s Magalia location after concluding that, as a 49-percent minority

owner of Ridge and a practicing optometrist, Rudick needed to obtain a branch office

license in accordance with section 3077 for each Ridge office other than his principal

5

place of practice. The trial court agreed and, thus, granted the Board’s summary

judgment motion and denied plaintiffs’ motion.

Section 3070, the basis of Rudick’s application, provided in relevant part: “Before

engaging in the practice of optometry, each licensed optometrist shall notify the board in

writing of the address or addresses where he or she is to engage in the practice of

optometry and, also, of any changes in his or her place of practice. After providing the

address or addresses and place of practice information to the board, a licensed optometrist

shall obtain a statement of licensure from the board to be placed in all practice locations

other than an optometrist’s principal place of practice. Any licensed optometrist who

holds a branch office license is not required to obtain a statement of licensure to practice

at that branch office. The practice of optometry is the performing or the controlling of

any of the acts set forth in Section 3041.” (§ 3070, subd. (a), as amended by Stats. 2012,

ch. 359, § 1, No. 5A Deering’s Adv. Legis. Service, p. 311.)

Section 3077, which the Board relied upon to deny his application, contained

several relevant parts. First, the statute defined “ ‘office’ ” as “any office or other place

for the practice of optometry.” (§ 3077, subd. (a), as amended by Stats. 2013, ch. 473,

§ 10, No. 6A Deering’s Adv. Legis. Service, p. 427.)5

In addition, the statute imposed

certain requirements on optometrists practicing in more than one office (like Ridge).

Specifically, subdivisions (b) and (c) provided: “(b) An optometrist, or two or more

optometrists jointly, may have one office without obtaining a branch office license from

the board. [¶] (c) . . . [N]o optometrist, and no two or more optometrists jointly, may have

more than one office unless he or she or they comply with the provisions of this chapter

as to an additional office. The additional office, for the purposes of this chapter,

constitutes a branch office.” (§ 3077, subds. (b), (c), as amended by Stats. 2013, ch. 473,

§ 10, No. 6A Deering’s Adv. Legis. Service, p. 427.) Subdivision (f), in turn, provided

that “no branch office may be opened or operated without a branch office license” and

“no more than one branch office license shall be issued to any optometrist or to any two



5 See footnote 6, post, page 6.

6

or more optometrists, jointly.” (§ 3077, subd. (f), as amended by Stats. 2013, ch. 473,

§ 10, No. 6A Deering’s Adv. Legis. Service, p. 427.) Lastly, subdivision (i) stated:

“Nothing in this chapter shall prevent an optometrist from owning, maintaining, or

operating more than one branch office if he or she is in personal attendance at each of his

or her offices 50 percent of the time during which the office is open for the practice of

optometry.” (§ 3077, subd. (i), as amended by Stats. 2013, ch. 473, § 10, No. 6A

Deering’s Adv. Legis. Service, p. 427.)6

On appeal, the parties agree the term “office” in section 3077 is the focal point of

their dispute. Plaintiffs, joined by amicus curiae California Medical Association

(amicus), contend “office” is limited in meaning to an office having optometry as “the

primary purpose of the business,” and does not include an office (like the Ridge offices)

that is part of a medical practice run by an ophthalmologist who also employs one or

more optometrists. (See § 3109 [“a licensed optometrist may be employed to practice

optometry by a physician and surgeon who holds a license under this division and who

practices in the specialty of ophthalmology”].) Accordingly, plaintiffs (and implicitly

amicus) contend the Board’s opinion that section 3077 applies to Rudick’s employment

at the Magalia location is “clearly erroneous” and entitled to no weight.

The Board, in turn, stands by its opinion that “office” (§ 3077) means any place

where optometry is practiced notwithstanding the fact that ophthalmology is also



6 Effective January 1, 2014, section 3077 was amended in several nonsubstantive

ways, including, for example, replacing “registered” with “licensed” and “certificate of

registration” with “optometrist license.” (See History and 2013 Amendment notes,

Deering’s Ann. Bus. & Prof. Code, § 3077 (2019 supp.) pp. 33–34.) Then, effective

January 1, 2019, section 3077 was significantly amended. Relevant here, the Legislature

eliminated the requirements in section 3077 that an optometrist obtain a branch office

license and be in personal attendance at each of his or her branch offices 50 percent of the

time each office is open for the practice of optometry. In addition, the Legislature added

a new provision stating that “[n]o optometrist, and no two or more optometrists jointly,

may have more than 11 offices.” The definition of “ ‘office,’ ” however, remained

unchanged. (See History and 2018 Amendment notes, Deering’s Ann. Bus. & Prof.

Code, § 3077 (2019 supp.) pp. 33–34.)

7

practiced at the location, or that the practicing optometrist is merely a minority owner of

the medical corporation where he or she is practicing. As such, the Board deems Ridge a

“ ‘place for the practice of optometry’ ” because it employs licensed optometrists,

including Rudick, to provide patient care, such that Rudick was required to meet the

branch office licensing requirements of section 3077, subdivisions (f) and (i), with

respect to any Ridge office where he practices other than his principal place of practice.

In the Board’s view, while Ridge may be for the practice of ophthalmology given that a

licensed ophthalmologist is the majority owner and employs ophthalmologists to serve

patients, this circumstance does not detract from the fact that Ridge also employs

optometrists to serve patients and, as such, is also for the practice of optometry.

We agree with the Board, as its interpretation is firmly rooted in the actual

language of the statute. Simply put, “office” means any office where optometry is

practiced. Plaintiffs’ interpretation, on the other hand, would have us read additional

language into section 3077 such that “office” would mean an office where optometry is

practiced except where the practicing optometrist is employed by a medical corporation

that has an ophthalmologist as the majority owner or is “primarily” for the practice of

ophthalmology. We decline to insert any additional restrictions into an otherwise

unambiguous provision. (Imperial Merchant Services, Inc. v. Hunt, supra, 47 Cal.4th at

pp. 387–388 [a statute’s plain language controls the court’s interpretation absent any

ambiguity in its words].)

7



7 We disagree with amicus that section 3077 is internally inconsistent.

Specifically, amicus argues subdivisions (a) and (c) of the statute “clearly require that all

offices and branch offices for the practice of optometry must be owned by licensed

optometrists,” while subdivision (i) contradictorily “presumes that an optometrist may

operate or maintain a branch office without also owning it.” Amicus misreads the statute.

Subdivision (a) of section 3077 stated that no person, singly or in combination with

others, may “have” an office for the practice of optometry unless he or she is “licensed to

practice optometry . . . .” (§ 3077, subd. (a), as amended by Stats. 2013, ch. 473, § 10,

No. 6A Deering’s Adv. Legis. Service, p. 427.) Subdivision (c) stated in relevant part

that “no optometrist, and no two or more optometrists jointly, may have more than one

office unless he or she or they comply with the provisions of this chapter as to an addition

office” (in other words, comply with the branch office licensing requirements). (§ 3077,

8

Plaintiffs persist, arguing that the Legislature could not have intended “office” to

mean any location where an optometrist works, for two reasons. First, plaintiffs contend

defining “office” so broadly would not further the Legislature’s purpose for restricting

the number of branch office optometry licenses in the first place, which was to “ ‘ “make

the practice of optometry less commercial and more professional, ‘to insure an adequate

measure of personal performance and supervision . . . and the avoidance of the evils of

competition which has its place in trade and mercantile pursuits but not in the practice of

this profession.’ ” ’ ” (Quoting Rich v. State Bd. of Optometry (1965) 235 Cal.App.2d

591, 602 and 65 Ops.Cal.Atty.Gen. 366, 371 (1982)). In so arguing, plaintiffs point out

that, while Business and Professions Code section 3077 was drafted and implemented in

1959, it was not until 1970 that the law expanded to permit an ophthalmologist to employ

an optometrist with the amendment of Business and Professions Code section 3109 (then

former section 3103) (Stats. 1970, ch. 1265, § 1, p. 2283), and not until 1980 when it

expanded further to permit an optometrist to own a minority interest in a medical



subd. (c), as amended by Stats. 2013, ch. 473, § 10, No. 6A Deering’s Adv. Legis.

Service, p. 427.) Lastly, subdivision (i), as amicus correctly notes, provided, “Nothing in

this chapter shall prevent an optometrist from owning, maintaining, or operating more

than one branch office” so long as he or she meets the aforementioned personal

attendance requirement. (§ 3077, subd. (i), as amended by Stats. 2013, ch. 473, § 10,

No. 6A Deering’s Adv. Legis. Service, p. 427, italics added.) While we agree with

amicus that subdivision (i) presumed by its language that an optometrist may maintain,

operate or own a branch office, we disagree that subdivisions (a) and (c) required

ownership. To the contrary, neither provision mentions ownership, instead using the

broader term “have.” (See Webster’s 3d New Internat. Dict. (2002) p. 1039, col. 2

[defining “have” as “to hold, keep, or retain esp. in one’s use, service, regard or affection

or at one’s disposal”].) More importantly, contrary to amicus’s suggestion, neither

provision purported to bar an optometrist from having an optometry practice in a medical

corporation, like Ridge, that also provides ophthalmologic care. Rather, the three

provisions, viewed collectively, simply imposed certain requirements on optometrists like

Rudick who decide to practice in multiple offices. (See People v. Cole (2006) 38 Cal.4th

964, 985 [“Although [Health and Safety Code] section 1395(b) expressly authorizes

Knox–Keene plans to employ licensed optometrists to provide professional services, it

does not provide that optometrists so employed may operate without regard to other

professional restrictions”].)

9

corporation with the enactment of Corporations Code section 13401.5 (Stats. 1980,

ch. 1314, § 17.1, p. 4558).

8

As such, plaintiffs reason the Legislature could not have

intended the term “office” in section 3077 to mean “anywhere that optometry is

practiced,” even in a medical corporation’s or ophthalmologist’s office, because when the

statute was enacted, an optometrist could not be employed by an ophthalmologist or

medical corporation.

Second, relying on this same premise, plaintiffs and amicus argue the Board’s

interpretation of Business and Professions Code section 3077 cannot be reconciled with

Business and Professions Code section 3109 and Corporations Code section 13401.5,

subdivision (a) because the latter statutes, unlike the former, do not in any way restrict an

ophthalmologist from hiring an optometrist or a medical corporation from having an

unlimited number of locations. We reject these arguments.

As an initial matter, plaintiffs’ argument based on the timing of the various

legislative enactments disregards the well-established presumption that the Legislature,

when amending a law or enacting a new law, is aware of and takes into consideration

existing law. (People v. Overstreet (1986) 42 Cal.3d 891, 897 [“the Legislature is

deemed to be aware of existing laws and judicial decisions in effect at the time legislation

is enacted and to have enacted and amended statutes ‘ “in the light of such decisions as

have a direct bearing upon them” ’ ”].) This principle is especially apt where, as here, the



8 Section 3109 provides in relevant part: “Notwithstanding the provisions of this

section or . . . of any other law, a licensed optometrist may be employed to practice

optometry by a physician and surgeon who holds a license under this division and who

practices in the specialty of ophthalmology . . . .” (Bus. & Prof. Code, § 3109.)

Corporations Code section 13401.5, in turn, provides in relevant part that licensed

optometrists “may be shareholders, officers, directors, or professional employees of [a

medical corporation] so long as the sum of all shares owned by those licensed persons

does not exceed 49 percent of the total number of shares of the [medical]

corporation . . . , and so long as the number of those licensed persons owning shares in

the [medical] corporation . . . does not exceed the number of persons licensed by the

governmental agency regulating the . . . corporation.” (Corp. Code, § 13401.5,

subd. (a)(4).)

10

later-amended statute, section 3109, is part of the same Act as the existing statute.

(Bouley v. Long Beach Memorial Medical Center (2005) 127 Cal.App.4th 601, 607 [“The

Legislature . . . may certainly be presumed to know the full text of the laws it is

amending”].) Thus, the Legislature, when expanding the law to allow for closer business

and working relationships between optometrists and other medical or health

professionals, could easily have amended section 3077 to narrow the definition of

“office” or to limit or remove its branch office licensing requirements, as plaintiffs now

propose. The Legislature’s failure to do so leads us to conclude the Legislature intended

section 3077 to continue to operate as it had previously, notwithstanding the statutory

changes that liberalized other aspects of the optometry practice. (Ibid.)

Further, in drawing this conclusion, we acknowledge plaintiffs’ point, shared by

amicus, that adhering to the plain language of section 3077 could create additional

burdens for medical corporations jointly owned by optometrists and ophthalmologists by,

for example, imposing additional licensing requirements on optometrists (like Rudick)

practicing in multiple locations of the corporation.9

We also acknowledge amicus’s

related point that, to the extent section 3077 creates any additional burdens for medical

corporations, access to healthcare could be impeded and problems arising out of the

current healthcare workforce shortages could be exacerbated. While these concerns may

be valid, incidental burdens occurring under section 3077 are not grounds for this court to

rewrite an otherwise legal statute. “ ‘Inconvenience or hardships, if any, that result from

following [a] statute as written must be relieved by legislation. . . . Construction may not



9 We agree with the Board that section 3077, on its face, applies only to

optometrists, and therefore does not restrict Ridge (or its majority owner) from operating

any number of locations or from employing any number of optometrists. Accordingly,

amicus’s complaint that section 3077 imposes restrictions on the very medical

corporations that Moscone–Knox authorizes is misplaced. “Although [Health & Safety

Code] section 1395(b) expressly authorizes Knox-Keene plans to employ licensed

optometrists to provide professional services, it does not provide that optometrists so

employed may operate without regard to other professional restrictions.” (People v.

Cole, supra, 38 Cal.4th at p. 985.)

11

be substituted for legislation.’ (United States v. Mo. Pac. R. Co. (1929) 278 U.S. 269,

277–278 [73 L.Ed. 322, 49 S.Ct. 133].)” (People v. Bell (2015) 241 Cal.App.4th 315,

357.)

In fact, as plaintiffs anticipated in briefing, the Legislature recently made several

changes to section 3077, including eliminating its requirements that an optometrist obtain

a branch office license and be in personal attendance at each of his or her branch office

50 percent of the time that each office is open for the practice of optometry. (See

History and 2018 Amendment notes, Deering’s Ann. Bus. & Prof. Code, § 3077

(2019 supp.) pp. 33–34.) In addition, a new provision was added, providing that “[n]o

optometrist, and no two or more optometrists jointly, may have more than 11 offices.”

(Ibid.) These postjudgment changes do not alter the applicable legal analysis on appeal:

“When interpreting statutes, we must remain ‘ “mindful of this court’s limited role in the

process of interpreting enactments from the political branches of our state government.”

. . . [Citation.]’ . . . ‘ “Our office . . . ‘is simply to ascertain and declare’ what is in the

relevant statutes, ‘not to insert what has been omitted, or to omit what has been

inserted.’ ” [Citation.]’ [Citation.] We ‘may not, “under the guise of construction,

rewrite the law or give the words an effect different from the plain and direct import of

the terms used.” [Citation.]’ ” (People v. Bell, supra, 241 Cal.App.4th at p. 342.) “That

is [the Legislature’s] province.” (E.E.O.C. v. Abercrombie & Fitch Stores (2015)

___ U.S. ___, ___ [135 S.Ct. 2028, 2033].)

In oral argument, the Board asked for the first time that we dismiss this appeal on

the ground that the statutory amendments render moot the issue of whether Rudick must

obtain a branch office license in accordance with section 3077 for each Ridge location

aside from his principal place of practice. As just stated, the new version of section 3077,

effective this year, does not require an optometrist to obtain a branch office license or to

be in personal attendance at each of his or her branch office 50 percent of the time that

each office is open for the practice of optometry. The Board also pointed out in oral

argument that any issue with respect to the new provision limiting an optometrist, or two

or more optometrists jointly, to 11 offices would not be ripe because there are at present

12

fewer than 11 Ridge locations. Rudick, however, disagreed that this appeal is moot or

unripe, arguing that the key issue here centers on the statutory definition of “office,”

which was not amended by the Legislature.

There are, of course, three discretionary exceptions to the rule that an appeal must

be dismissed if no effective relief can be granted to an appellant: “ ‘(1) when the case

presents an issue of broad public interest that is likely to recur [citation]; (2) when there

may be a recurrence of the controversy between the parties [citation]; and (3) when a

material question remains for the court’s determination [citation].’ [Citation]” (Oxford

Preparatory Academy v. Chino Valley Unified School Dist. (2019) 37 Cal.App.5th 413,

422.)

In this case, we accept Rudick’s argument that the focal point of the parties’

dispute is the proper interpretation of the term “office” in section 3077, which remains

unaffected by the recent statutory changes. As such, this particular statutory

interpretation issue may recur in a future dispute among the parties regarding how the

Act’s licensing and other requirements apply to the Ridge locations. We therefore

decline to dismiss this appeal on mootness grounds.

In any event, for the reasons set forth above, we nonetheless affirm the trial court’s

summary judgment order based, as it was, on the Board’s decision that Rudick must

obtain a branch office license for each Ridge location aside from his principal place of

practice because, for purposes of section 3077, “office” means any place where

optometry is practiced notwithstanding the fact that ophthalmology is also practiced at

the location, or that the practicing optometrist is merely a minority owner of the medical

corporation where he or she is practicing.

B. The Trial Court’s Denial of the Petition for Writ of Mandate.

Finally, we address plaintiffs’ remaining argument that the trial court erred in

denying their petition for a writ of mandate seeking an order requiring the Board to

discharge its “mandatory duty” under section 3070 to issue Rudick a statement of

licensure. As the Board points out, plaintiffs have not appealed this order, which was

entered on January 28, 2016. Rather, plaintiffs’ notice of appeal identifies only one order

13

as that being appealed: the judgment after an order granting a summary judgment motion

entered on June 13, 2017. “Despite the rule favoring liberal interpretation of notices of

appeal, a notice of appeal will not be considered adequate if it completely omits any

reference to the judgment being appealed.” (Shiver, McGrane & Martin v. Littell (1990)

217 Cal.App.3d 1041, 1045; accord, Cal. Rules of Court, rule 8.100(a)(2) [“The notice of

appeal must be liberally construed. The notice is sufficient if it identifies the particular

judgment or order being appealed”].) Accordingly, under this settled law, plaintiffs have

failed to preserve their right of appeal of the order denying their petition for writ of

mandate, a point which they implicitly concede by failing to respond in their reply brief

to the Board’s argument on this point.

The judgment is affirmed.