Nothing will change immediately on the Tulare Local Healthcare District’s Board of Directors after a Monday morning hearing.
District board member Richard Torrez is still free to not recognize Senovia Gutierrez as a colleague — or to recognize her, if he so chooses. But the Hon. Judge Melinda Reed isn’t going to force his hand in either direction.
She denied various petitions filed by the Tulare Local Healthcare District and the Tulare County District Attorney’s office to force Torrez to recognize her, force Healthcare Conglomerate Associates (HCCA) to turn over financial documents, and force HCCA to submit any loan they may be seeking to the board for approval.
Those were denied on procedural issues, she stated, and the parties were free to address those issues and re-file their petitions.
The petitions cited “confusing and contradictory authority,” and did not join the district in the action, amongst other issues, she said.
She also revealed that at the same time the district attorney’s office was seeking a writ of mandate to force Torrez to recognize Gutierrez, the DA’s office was seeking a Quo Warranto petition that would seek the same outcome — forcing Torrez to recognize her — by threat of removing him from his position.
The Quo Warranto petition would require the consent of the California Attorney General’s office.
A large group of lawyers attended to plead their cases, which were kicked to the Monday hearing after Reed stated on September 15 that she needed time to read new filings introduced.
Mandy Jeffcoach and Nikole Cunningham appeared from McCormick Barstow on behalf of the district, Trevor Holly on behalf of the district attorney’s office, and Dennis Mederos on behalf of Gutierrez.
Robert Welsh from the Baker Hostetler firm appeared representing Torrez, and Marshall Grossman appeared on behalf of HCCA.
Reed stated that she wasn’t sure why the district attorney’s office had filed for a writ of mandate to force Torrez to recognize Gutierrez when it had also filed for the Quo Warranto action.
The Quo Warranto process could take months, Holly explained, and a writ of mandate could achieve the same ends much more quickly.
“It is a matter of real urgency,” Holly said.
She also stated that the district attorney’s petition had other procedural issues, including not naming the district as a party in the suit, and not clearly citing any authority or precedent on where she could act to force Torrez to recognize Gutierrez.
Mederos also spoke forcefully in defense of the district attorney’s petition to force Gutierrez’ recognition.
Referring to statements that Greene sought independent counsel in coming to the opinion that Gutierrez needed to be recognized by the board before she could be seated, he claimed that the counsel Greene sought wasn’t impartial, because it was the same attorney which acted on Kumar’s behalf in sending a Brown Act violation notice to the board.
“They’ve taken the opinion of the ousted director’s attorney [Michael L. Allan],” Mederos said.
“We showed up [at the last meeting] and the doors were locked,” he said. “We have no indication that the same won’t take place.”
“They just refuse to recognize her,” he said. “We don’t live in Bolivia, we live in the United States of America.”
Welsh stated that wouldn’t be the case — the plan is to seat Gutierrez at the district’s next meeting on the 27th.
Reed noted that any special meetings of the board would need to be required to be called by three members of the board, and asked Welsh why the process couldn’t be fast-tracked by a special meeting; referring, specifically, to Torrez agreeing to the process of convening one.
“There’s a great deal of distress between the parties,” Welsh said, referring to the members of the board.
Holly stressed that the writ and Quo Warranto process are two separate items.
“The writ does not require the permission of the attorney general — we didn’t file this behind their backs,” he said, stating that the attorney general’s office was aware of the filing for a writ.
After arguments, Reed stated she hadn’t changed her mind, but reiterated she wasn’t denying them the ability to refile.
“I’m delighted this part of the saga is over,” Grossman told the Voice after the hearing. “It’s regrettable so much taxpayer money continues to be spent on the district attorney and private attorneys.”
HCCA and Dr. Benny Benzeevi, its CEO, have accepted the results of the election, Grossman said. He also stated there was a larger issue in question — the funding of the legal battles currently in process against HCCA and the district.
“Who is financing the fees and costs of so many private lawyers and the district attorney’s office?” Grossman asked. “It’s highly unlikely that they are being paid by three newly elected members of the board.”
Grossman also stated that the recent election campaign had been filled with hate and slanderous comments, and that a full disclosure of the motivations behind those who financed the recent elections would serve as an “antiseptic.”
“We will get to the bottom of it,” he said.
Benzeevi stated that the issue will be resolved on the 27th, at the board’s next meeting.
“As we have seen time and time again, elements within our community continue to perpetuate false narratives about our hospital and cause great harm to our community,” Benzeevi told the Voice. “It is simply unfortunate that these people who claim to be proponents of the hospital continue to spend taxpayers’ money on frivolous and unsubstantiated claims.”
“Our decisions have always been in the best interests of the District and we always follow the rule of law,” he continued. “Unfortunately, we cannot say the same of others.”
The District Attorney’s office released a statement, saying that the office would “continue to defend democracy.”
“We filed the Petition for Writ of Mandate in hopes that the Court would settle the legal question as to what point in time does an elected board member, following a recall election, assume the powers and responsibilities of office. We did not file on the Board as a whole because they acknowledged the election results at an emergency meeting on August 9, 2017,” Dave Alavezos, Assistant District Attorney, wrote. “The only current board member who has failed to acknowledge those results is Mr. Richard Torres. Given Mr. Torres is the only person who has failed to comply with Election Code 15400 in his capacity as a board member, it is only he who we believe should be ordered to recognize the election results.”
Gutierrez’ attorney, Dennis Mederos, stated that to him, the issue is straightforward — Gutierrez was elected and sworn in, and complied with the mandated requirements to take her office.
Any interpretation of California Elections Code 15400, which requires the board announce a new board member, as anything other than ministerial is merely an attempt to confuse the public and an attempt to deny Gutierrez her seat on the board, he said.
“The confusion appears to go all the way to the bench, to the judge involved in the case,” he said.