McPheeters v. Board of Medical Examiners

MARKS, J.

This is an appeal from a judgment in the form of a peremptory writ of mandate requiring appellants to dismiss certain proceedings pending against respondent before the Board of Medical Examiners of the State of California, and from an order denying a motion to change the place of trial, and from an order denying a motion to strike out the petition which order is not appealable. (Code Civ. Proc., § 963.)

The record before us consists of a clerk’s transcript on appeal. Both counsel have gone outside the record in their briefs and arguments. While it is true that we may take judicial notice of the records of a public agency, as suggested by counsel, they should realize that we should be furnished with some official information of what those records contain as we should not he called upon to take "judicial notice of facts of which we are in actual ignorance. This is especially true in the instant case as counsel do not agree as to the contents of those records. We find the information disclosed by the clerk’s transcript sufficient for our purposes so we need take no steps to require appellants to disclose the contents of their official records.

The petition for a writ of mandate was filed in the Superior

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Court of the County of Fresno on July 6, 1945, and contains a lengthy statement which we will briefly summarize.

Respondent was a duly licensed physician and surgeon who practiced in the city of Fresno. The individual appellants are members of the Board of Medical Examiners of the State of California, and John R. Walker resides in the county of Fresno.

On December 30, 1943, a complaint was filed with the Board of Medical Examiners charging respondent with two violations of section 2377 of the Business and Professions Code. A second complaint was filed on May 19, 1944, charging another violation of the same code section.

Respondent and his attorney appeared before the board as follows: February 7, 1944, in Los Angeles; June, 1944, in San Francisco; October 17, 1944, in Sacramento; February 26, 1945, in Los Angeles, at which time the hearing was continued to August, 1945.

It is alleged that at each of those respective times and places respondent was ready to proceed with the hearing but that no evidence was produced against him and he moved to dismiss the complaints, which motions were denied.