MGHS Request For Depublication of Appellate Decision PDF

October 4, 2019
VIA ELECTRONIC FILING
The Honorable Tani Cantil-Sakauye, Chief Justice

And Honorable Associate Justices
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102
Document received by the CA Supreme Court.

Re: Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard
Court of Appeal, Third Appellate District
Case No. C083232
Request for Depublication (California Rule of Court 8.1125(a))
Dear Chief Justice Cantil-Sakauye and Honorable Associate Justices:
This firm represents the Missionary Guadalupanas of the Holy Spirit, Inc.
(hereinafter “MGHS”), the petitioner in the referenced matter. Pursuant to California
Rules of Court, rule 8.1125, we write on behalf of MGHS and our firm, as counsel to
numerous other California religious employers and institutions, to ask that the Court
exercise its authority to depublish the recent decision of the Third District of the Court of
Appeal in Missionary Guadalupanas of the Holy Spirit v. Rouillard (2019) 38
Cal.App.5th 421 (a copy of the decision is attached, for the Court’s convenience).
We make this request out of a firm conviction that the decision is incorrect,
because it erroneously applies what both this Court and other appellate courts in this state
have repeatedly held to be an extremely narrow exception to the rulemaking requirement
contained in the California Administrative Procedure Act (APA). Gov. Code §
11340.9(f) (a regulation it is not subject to the APA if it is “the only legally tenable
interpretation” of the statute). In failing to properly apply the “only legally tenable
interpretation” exception to the rulemaking requirements of the APA, this decision
departs from, and will create significant confusion in, settled law on this topic. Then, by
designating the decision for publication, the court of appeal compounds the harm, by
creating precedent that virtually guarantees that administrative agencies will now
leverage this decision to avoid the APA’s rulemaking requirements. This Court must step
GREENE & ROBERTS LLP P: 916.753.1300

455 Capitol Mall, Suite 405 • Sacramento, CA 95814 F: 916.753.1333
October 4, 2019
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in and prevent such a catastrophic erosion of the rulemaking process, and the rights of
public notice, comment, and administrative agency responsiveness, that have been
enshrined in the APA for more than seven decades now.
A. Depublication Standard.
“The Supreme Court may order that an opinion certified for publication is not to
be published or that an opinion not certified is to be published.” (Cal. Rules of Court, rule
8.1105(e)(2).) “Any person may request the Supreme Court to order that an opinion

certified for publication not be published.” (Id., rule 8.1125(a).)
An opinion should be depublished where: “(1) the opinion does not meet the
publication criteria of Cal. Rules of Ct 8.1125(c); (2) the opinion, even if correct in result,
contains misleading or incorrect language that might cause confusion; or (3) the opinion
is incorrect or unnecessarily creates a conflict. ...” CAL. CIVIL APPELLATE PRACTICE
(CEB. 1996) Publication and Citing of Opinions, §21.17.
Depublication is also proper where the opinion’s analysis is too broad and can lead
to unanticipated misuse as precedent. CAL. PRAC. GUIDE: CIV. APP. & WRITS (Rutter
Group 2019), Ch. 11-F, section 11:180.1.
B. Description of the Interests of The Missionary Guadalupanas of the Holy

Spirit and Greene & Roberts LLP (Rule of Court 8.1125(a)(3)).
MGHS was the petitioner in Missionary Guadalupanas of the Holy Spirit Inc. v.
Rouillard, having initiated the petition for writ of mandate against DMHC. Its specific
interest in this matter is that the challenged DMHC action (changing enforcement policy
to preclude the approval of health care insurance plans that contained exclusions from
coverage for voluntary/elective abortions) compelled MGHS to obtain insurance that
included coverage of all abortions, including those that are elective and voluntary. This
consequence was forced on MGHS, despite the deeply-held, faith- and conscience-based
objections of the religious sisters that comprise its membership.
This Firm represents not only the MGHS, but has provided legal representation to
other religious institutions and civil entities in the State of California, many of whom had
also previously taken advantage of health care insurance coverage containing exclusions
for voluntary/elective abortion procedures. As a consequence of the unilateral action by
DMHC, these entities were also forced to obtain health insurance coverage over their
conscience-based objections to elective/voluntary abortion procedures.
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Both MGHS and this Firm believe that the publication of the decision in
Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard has the potential to
embolden administrative agencies to try to expand the “only legally tenable
interpretation” exception to the APA in a way that is likely to deprive Californians of
their rights to notice of a proposed regulation (Gov. Code §§11346.2, 11346.5), public
comment (§11346.36), public hearings and the ability to submit written statements
(§11346.8), and the requirement that the agency consider any public objections or
recommendations (§11346.9(a)(3)).

C. The Decision In Missionary Guadalupanas v. Rouillard Is Legally And
Logically Flawed.
The underlying petition challenged the DMHC Director’s August 22, 2014
correspondence to the seven largest health insurance plan providers in California,
commanding them to amend existing plans to remove any exclusions and limitations
regarding voluntary/elective abortions (“the Letters”), and announcing that the
Department would no longer approve plans with such exclusions. Because this new
directive was an abrupt and stark reversal of prior policy and practices of the Department
(prior to August 2014 the Department had routinely approved plans that excluded
coverage for voluntary/elective abortions), petitioner argued that the Letters constituted a
regulation subject to the APA. MGHS further argued that because the Department had
failed to promulgate the changed policy through the APA rulemaking process, the Letters
were underground regulations, and should be declared void.
The trial court denied the petition, on grounds that the contents of the Letters
stated the “only legally tenable interpretation” of California law. The trial court also
denied a motion for new trial that was filed by MGHS after it discovered evidence that
even after issuance of the Letters the Department had approved healthcare insurance
plans with exclusions for voluntary/elective abortions.
The court of appeal affirmed the trial court, in a manner that is exceptionally
troubling in the way that pays lip service to, but ultimately ignores, the very narrow limits
of the “only legally tenable interpretation” exception to the APA. The decision is also
fundamentally flawed in the way that the court of appeal, like the trial court before it,
disregarded evidence that specifically undercuts the stated grounds for the ruling. The
result is a decision that nominally appears to involve application of the “only legally
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tenable interpretation” exception to the APA, but what instead appears to have been
crafted so as to reach an intended result.
1. The Court of Appeal interpreted the APA exception in a way that will
result in this particular exception swallowing the rule.
Over the 70 years that the APA has been in existence, courts in California —
including this Court — have repeatedly taken the view that it was enacted by the
Legislature to facilitate public engagement in the activity of regulatory agencies, foster

administrative responsiveness, and serve as a bulwark against bureaucratic tyranny.
Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 569. Because of this
important public policy foundation for the APA, “any doubt as to the applicability of the
APA’s requirements is resolved in favor of the APA, and exceptions to the APA’s
rulemaking requirements are to be strictly construed” United Systems of Arkansas, Inc. v.
Stamison (1998) 63 Cal.App.4th 1001, 1010.
Consistent with these foundational principles, California courts have held that the
“only legally tenable interpretation” exception to the APA must be narrowly interpreted,
and is only applicable where the policy in question is “essentially rote, ministerial, or
otherwise patently compelled by, or repetitive of” the plain language of the statute the
Department is charged with enforcing. Morning Star Co. v. State Board of Equalization
(2006) 38 Cal.4th 324, 337. This requirement has resulted in the exception being applied
only in situations where the statutory scheme “can reasonably be read only one way, such
that the agency’s actions or decisions in applying the law are essentially rote, ministerial,
or ... repetitive of ... the statute’s plain language.” Id., at pp. 336–337; California
Grocers Ass’n v. Dept. of Alcoholic Beverage Control (2013) 219 Cal.App.4th 1065,
1074; see also Center for Biological Diversity v. Dept. of Fish and Wildlife (2015) 234
Cal.App.4th 214, 262 (“This exception is narrow.”).
Perhaps the most significant aspect of the rules for this exception is that because
“interpretations” are included in scope of applicability of the APA, it cannot be the case
that an agency’s preferred construction of a statute automatically “falls within the
exception provided for the sole ‘legally tenable’ understanding of the law. Were this the
case, the exception would swallow the rule.” Morning Star, supra, 38 Cal.4th at p. 336;
Capen v. Shewry (2007) 155 Cal.App.4th 378, 387-388. This rule should apply with
equal force to a court’s preferred construction of a statute or statutory scheme. Just
because a court might reach a particular interpretation of law, it does not follow that that
view should automatically be seen as the “only legally tenable interpretation,” and
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thereby exempt agency action from the APA. Were that the case, administrative agencies
would have every incentive to simply ignore the APA, and then invite the courts to either
ratify the agency’s interpretation or substitute its own, thereby effectively eviscerating the
APA’s rulemaking requirements.
Regrettably, in the decision at issue the court of appeal discarded the established
rules for the “only legally tenable interpretation” — and ran headlong into the trap of
conflating its view of the “correct” interpretation of California law with the definition of
the “the only legally tenable interpretation” under the APA. Consider these few

examples, from the beginning of the decision, where the court broadly states its
determination:
• “In this case, abortion services are unambiguously included in the statutory
categories of ‘basic health care services’ set forth in the statute. (Health & Saf.
Code, § 1345.)” 38 Cal.App.5th at p. 427.
In fact, section 1345 is manifestly ambiguous, and does not even include the word
“abortion.” The Legislature only recited general categories of health care services
in section 1345 — and in section 1367 it authorized DMHC to further specify, by
rule, the types of services that fit within those general categories.
• “We hold that an abortion is one of two medically necessary options for the
treatment of a woman’s pregnancy.” Id.
The court may believe this is the correct interpretation of California law, but
nowhere does it identify a single, specific statutory source or reference to support
its conclusion.
• “Because California law guarantees every woman the right to choose whether to
bear a child or obtain an abortion, the only legally tenable interpretation of the
law is that abortions are basic health care services, which health care service
plans are required to cover.” Id., at p. 427-428.
Once again, the court professes to a canvassing of California law to reach this
conclusion — without ever acknowledging that the statute in question (§1345)
does not refer to abortion at all.
In applying the “only legally tenable interpretation” exception in this way, the
court of appeal effectively ignores this Court’s directive, in Morning Star, that the
agency’s action must be rote, ministerial, and repetitive of the statutory framework.
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Instead, the court seeks to distract from that failure by also contending that the Letters
issued by the Director of DMHC “did not resolve an ambiguity in the statute.” 38
Cal.App.5th at p. 433-434. On this point, the court concludes that “the letters did not
resolve any ambiguity in the Act as applied to abortion services, because ‘basic health
care services’ are so broadly defined in the statute that they unambiguously include
abortion services, since abortions would necessarily be performed as one of the listed
services, i.e., physician services, hospital inpatient services, ambulatory care services,
preventive health services, or emergency health care services.” Id. at p. 434.

One struggles to understand how the court could refer to the definition of “basic
health care services” as being broadly defined (even without mentioning abortion), and
yet still find that including abortion within that definition is rote, ministerial, or repetitive
of the statutory framework. Once again, this exposes the court’s analysis as actually
representing its interpretation and synthesis of what it believes to be the correct statement
of California law. In approaching the issue in this way, the court of appeal has fallen
precisely into the trap identified by this Court, in that “whether the Department has
adopted the sole legally tenable interpretation is a different question from whether its
interpretation is legally correct.” Morning Star, supra, 38 Cal.4th at p. 336.
This result is not altered by the court’s choice to go beyond the question before it,
and issue a broad determination that the DMHC determination “is correct.” With the
stroke of a pen, the court cast aside the directives of the Legislature in support of public
input in a rulemaking process, the Legislative delegation to DMHC to determine by rule
the scope of basic health services, and the established parameters of the “only legally
tenable interpretation” exception to the APA.
2. The Court of Appeal also brushed aside evidence in the record that had
undermined the ruling of the trial court — and that further subverts
the reported decision.
Perhaps the most ironic aspect of the decision by the court of appeal is the way it
brushes aside the undisputed reality that the Department had previously approved Plans
limiting coverage for elective/voluntary abortions — while it simultaneously ignored the
additional evidence provided by petitioner that even after sending the Letters, the
Department approved plans with exceptions for voluntary/elective abortions.
As to the past exceptions granted by the Department, the court disregarded the fact
that this evidence alone demonstrates sufficient ambiguity to take this question outside
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the “only legally tenable interpretation” exception, offering little more than its conclusion
that “[t]he Department’s past interpretation was simply incorrect.” 38 Cal.App.5th at p.
436. And in order to completely sidestep the more recent evidence that the Department
has recently approved health care insurance plans with exceptions for voluntary/elective
abortions, the court imposed an extraordinarily unreasonable burden on litigants to seek
out and scrutinize information submitted to courts in other actions. Id., at p. 437-439.
In its obvious rush to opine on its view of how the Department should treat
questions regarding licensure of health care service plans under the Knox-Keene Act, the

court of appeal disregarded the Department’s own interpretations and practices
concerning the Act — as well as the fact that those actions only further demonstrate that
administrative expertise is warranted before reaching a conclusion as to what should be
included in “basic healthcare services” under California law. By turning that blind eye to
evidence that squarely contradicts its desired result, and then issuing the broad
pronouncement as to how the APA should be applied, the court of appeal committed
potentially irreparable harm to the rulemaking requirement of the APA, and almost
guaranteed future erosion of this important bulwark against administrative tyranny. It
would be awful and erroneous precedent in the official reports, and it should be
depublished.
D. Publication Of The Decision In Missionary Guadalupanas Of The Holy Spirit

Inc. v. Rouillard Also Creates A Risk Of Incentivizing Other Administrative
Agencies To Claim That The “Only Legally Tenable Interpretation”
Exception Permits Them To Circumvent The APA.
The decision in Missionary Guadalupanas v. Rouillard should also be depublished
because the erroneous conclusion of the court of appeal is likely to erode the significance
of the “only legally tenable interpretation” exception to compliance with the APA
rulemaking process. This result seems unavoidable given that within the past 12 years,
this very same Third District Court of Appeal has issued three different decisions
interpreting the “only legally tenable interpretation” exception, and reached a contrary
result in each of them. Publishing the decision in question would consequently create
grave uncertainty on how to interpret and apply this exception to the APA.
In Capen v. Shewry (2007) 155 Cal.App.4th 378, for example, the Dept. of Health
Services argued that its interpretation of Health and Safety Code section 1204 (that the
petitioner was required to obtain a license for his surgical clinic) was the “only legally
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tenable interpretation” of that law. The statute excluded physician owned/operated

clinics from licensure, where “owned or leased and operated as a clinic by one or more
physicians ... in individual or group practice” but Dr. Capen argued that his clinic, in
which non-owner, non-lessee physicians would operate, did not fit the licensure
requirement. The same Third District concluded that neither reading of section 1204 was
“patently compelled” (p. 389) and thus the interpretation of the department did not fit that
exception to the APA, and was void.
Similarly, in California Grocers v. Dept. of Alcoholic Beverage Control (2013)

219 Cal.App.4th 1065, the statute in question stated that sales of alcoholic beverages
were not permitted at “customer operated checkout stands.” An advisory issued by the
Department of Alcoholic Beverage Control (ABC) imposed an interpretation that no
alcoholic beverages could be sold through any customer operated checkout stand — even
if the sale was approved by an employee of the store, in a face-to-face transaction. The
petitioners argued that checkout stands were programmed to lock if alcohol was scanned,
and had to be unlocked by an employee, resulting in the transaction not being “customer
operated.” The same Third District determined that because the statute prohibited the
sale of alcoholic beverages “at any customer operated checkout stand,” the ABC
interpretation was correct, but court nevertheless voided the ABC interpretation “because
the advisory is more than a simple paraphrase of section 23394.7” (p. 1069). Rather, the
court held that the advisory “is an interpretation of section 23394.7 that is not “rote,
ministerial, or repetitive of the law’s plain language,” because it described a circumstance
to which the statute applies (p. 1074).
Finally, in Doe v. Becerra (2018) 20 Cal.App.5th 330, the court considered Penal
Code section 27535(a), which limits the purchase of handguns to one every 30 days, but
which excluded from that limit any person licensed under federal law to collect “curio
and relic” firearms. After the chief of the Bureau of Firearms issued a letter to California
firearms dealers directing that the exemption shall not be permitted for any handguns
other than curios or relics, that action was challenged as a violation of the APA — and
the Bureau defended its action as the “only legally tenable interpretation” of the statute.
The same Third District rejected that contention, concluding that section 27535 could
easily be interpreted as applying to every handgun transaction (not just curios or relics).
When the Bureau argued that scope of exemption can be ascertained from plain language
of statute, the court responded that even if that was possible, it “hardly represents the sort
of rote or ministerial application of a statute that the Legislature had in mind” when
enacting that exception to the APA. (p. 338) The court further observed that although
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legislative intent materials, are “potentially useful interpreting the statute, these materials
simply do not categorically rule out alternative interpretations of the pertinent law.” (p.
339 (citing Morning Star, 38 Cal.4th, p. 339)).
In each of these prior decisions, the statutory framework was far more clear than
in the current matter. In each instance, there was a specific statute that was being
interpreted, the statute specifically referred to the subject matter in dispute, and the
agency in question argued that the context and specificity of the statute left no question as
to how it should be interpreted. In each case, however, the Third District disagreed, and

refused to apply the “only legally tenable interpretation” exception to the APA because
none of the matters involved the sort of rote, ministerial, and patently-compelled result
that is required under that exception.
If the instant decision is permitted to remain published, it will immediately and
irreparably undermine the prior decisions outlined above, and will cast into chaos the
question of whether an administrative agency must follow the Legislature’s clear policy
preference in favor of rulemaking. California citizens will be far more likely to lose the
benefit of an open and fair process for issuance of regulations, along with all the salutary
effects of notice and public comment/input. Instead, agencies will be presented with the
irresistible temptation to shun the burdensome process of rulemaking, in favor of simply
issuing interpretive directives and then characterizing them as the “only legally tenable
interpretation” of the pertinent law.
Depublication of the decision in Missionary Guadalupanas v. Rouillard
regrettably will not change the outcome relative to the improper actions by the DMHC,
nor will it address the impact on health insurance coverage options for those with
conscience-based objections to abortion. Depublication will, however, ensure that state
administrative agencies are not provided with leverage to similarly ignore the APA and
enact changes in interpretation or enforcement of California law via impromptu
correspondence.
E. Conclusion.
MGHS and this Firm respectfully submit that even if one sets aside the flaws in
the decision issued by the court of appeal, the result that court reached — which directly
contradicts not only the precedent set by this Court, but also no fewer than three prior
opinions from the same appellate district — significantly, and needlessly, expands an
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exception to the APA that this Court has decreed should be extremely limited and
narrowly applied.
MGHS understands that at this point, the question relative to the action by the
Director of DMHC has been resolved. Because that result is as far as the decision needs
to go, this Court can ward off the potential adverse future effect on the integrity of the
APA by granting this simple request. The decision by the Third District Court of Appeal
in Missionary Guadalupanas of the Holy Spirit Inc. v. Rouillard should be depublished.

Respectfully submitted,
GREENE & ROBERTS LLP
Stephen J. Greene, Jr.
Enclosure
SJG:mga
cc: Karli Eisenberg, Esq.

California Department of Justice
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244
Clerk of the Court

Third Appellate District
914 Capitol Mall
Case No. C083232
Sacramento County Superior Court

Hon. Timothy M. Frawley
720 Ninth Street
Case No. 34-2015-80002226
Exhibit A
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT
(Sacramento)
----

MISSIONARY GUADALUPANAS OF THE HOLY C083232
SPIRIT INC.,
(Super. Ct. No.
Plaintiff and Appellant, 34201580002226)
v.
MICHELLE ROUILLARD, AS DIRECTOR, ETC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Timothy

M. Frawley, Judge. Affirmed.
Greene & Roberts and Stephen J. Greene, Jr., for Plaintiff and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, David Chaney, Chief
Assistant Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General,
Niromi W. Pfeiffer, Deputy Attorney General, Karli Eisenberg, Deputy Attorney
General, for Defendant and Respondent.
1
This case presents the narrow issue of whether respondent Michelle Rouillard in
her capacity as director of California’s Department of Managed Health Care
(Department) violated the Administrative Procedure Act (APA) (Gov. Code, § 11340 et
seq.) when she sent letters to seven health care service plans directing them to comply
with California law in their coverage of abortion services. 1 Health care service plans are
required by law to cover basic health care services “where medically necessary.” (Health
& Saf. Code, §§ 1345, 1367, subd. (i); Cal. Code Regs., tit. 28, § 1300.67.) The issue
tendered here and below is whether a “voluntary” abortion is a “medically necessary”
procedure that health care service plans are required to cover. By setting up a false
choice between “voluntary” abortions and “medically necessary” abortions, the petitioner

attempts to limit coverage of most abortions by health care service plans in California.
The letters in question informed the seven health care service plans that the Knox-
Keene Health Care Service Plan Act of 1975 (Knox-Keene Act or Act) (Health & Saf.
Code, § 1340 et seq.) requires that they cover basic health care services, and that the
California Constitution prohibits health care service plans from discriminating against
women who choose to terminate a pregnancy. The letters told the recipients that health
care plans could not limit or exclude coverage for termination of pregnancies. Petitioner
Missionary Guadalupanas of the Holy Spirit, Inc., claims that by sending out the letters
interpreting “basic health care services” to include abortions, respondent ignored the
APA rulemaking process. Petitioner’s argument sets forth a false dichotomy between a
“voluntary” service and a “medically necessary” health care service, which health care
plans are required to cover under California Code of Regulations, title 28, section
1 We shall refer to the respondent as the Department. This case does not present,
nor do we address any claim that the Department’s actions in carrying out California law
substantially burdened the petitioner’s exercise of religion in violation of the federal
Religious Freedom Restoration Act of 1993, the issue presented in Burwell v. Hobby
Lobby Stores, Inc. (2014) 573 U.S. 682.
2
1300.67. 2 This false assumption led petitioner to the flawed conclusion that the
Department’s letters were for the purpose of clarifying an ambiguity in the statute, and
that compliance with the rulemaking procedures of the APA was necessary.
Petitioner does not attempt a definition of “medically necessary.” It cannot mean
only lifesaving treatment. Many basic health care services are not lifesaving treatments.
Nor can the term be limited to its definition in Welfare and Institutions Code section
14059.5, addressing Medi-Cal reimbursements. That law defines medically necessary
treatment as “reasonable and necessary to protect life, to prevent significant illness or
significant disability, or to alleviate severe pain.” Particularly in the case of a woman’s
reproductive health, basic health care that is medically necessary includes labor and

delivery services, even though such services may not be necessary to “protect life,
prevent significant illness or significant disability, or to alleviate severe pain.” We need
not comprehensively define the term “medically necessary” for purposes of this case.
However, in broad terms a “medically necessary” procedure must include a procedure
that is a generally recognized treatment for a medical condition presented by the patient.
While the Department may well be obligated to comply with the APA if it wants to
narrow the broad definition, there is no need to comply with the APA in this case because
an abortion procedure is both a recognized treatment for the medical condition of a
patient’s pregnancy, and a treatment every woman in California has the legal right to
choose. (Health & Saf. Code, § 123462.)
Whether an agency has adopted the only legally tenable interpretation of the law
such that it is not required to comply with the APA, depends on whether the language of
the law in question is ambiguous as applied to the circumstances presented. If the
language is unambiguous, the agency need not comply with the APA. In this case,
2 Petitioner defines a voluntary abortion as any abortion other than one performed
because the pregnancy puts the mother’s life in jeopardy.
3
abortion services are unambiguously included in the statutory categories of “basic health
care services” set forth in the statute. (Health & Saf. Code, § 1345.) We also reject
petitioner’s argument that voluntary abortions are necessarily inconsistent with
regulatory language that limits the scope of “basic health care services” to “medically
necessary” services. (Cal. Code Regs., tit. 28, § 1300.67.) We hold that an abortion is
one of two medically necessary options for the treatment of a woman’s pregnancy. A
pregnant patient may elect medical services necessary to deliver a baby, or to terminate
the pregnancy. Because California law guarantees every woman the right to choose
whether to bear a child or obtain an abortion, the only legally tenable interpretation of the
law is that abortions are basic health care services, which health care service plans are

required to cover. Furthermore, the regulation’s inclusion of “voluntary family planning
services” in the list of “basic health care services” to be covered “where medically
necessary” is inconsistent with an interpretation that excludes voluntary abortions from
coverage. Accordingly, the application of the regulation to these facts is unambiguous,
and the Department was not required to comply with the APA. Finally, we hold the trial
court did not abuse its discretion when it denied petitioner’s new trial motion.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Department is in charge of executing California’s laws relating to health care
service plans (Plans) and ensuring that Plans provide access to quality health care
services. (Health & Saf. Code, § 1341.) 3 Unless exempt, Plans cannot operate in the
state without a license, which is issued by the Department. (§ 1349.)
3 Undesignated statutory references are to the Health and Safety Code.
4
The Legislature has not seen fit to detail each and every health care service a Plan
is required to cover. Rather, Plans are required by statute to offer “basic health care
services.” (§ 1367, subd. (i).) “Basic health care services” are defined in the statute as:
“(1) Physician services, including consultation and referral.
“(2) Hospital inpatient services and ambulatory care services.
“(3) Diagnostic laboratory and diagnostic and therapeutic

radiologic services.
“(4) Home health services.
“(5) Preventive health services.

“(6) Emergency health care services, including ambulance
and ambulance transport services and out-of-area coverage.
‘Basic health care services’ includes ambulance and
ambulance transport services provided through the ‘911’
emergency response system.
“(7) Hospice care pursuant to Section 1368.2.” (§ 1345,

subd. (b).)
The Legislature has delegated to the Department the power to promulgate
regulations setting forth the minimum scope of the “basic health care services” Plans are
required to provide for licensure. (§ 1367, subd. (i).) Accordingly, California Code of
Regulations, title 28, section 1300.67 sets forth the scope of basic health care services. A
Plan must include the services set forth in the regulation “where medically necessary[,]” a
term not found in the legislation itself in connection with the services a Plan must cover.
As is relevant here, the scope of services set forth by regulation includes physician
services, inpatient hospital services, outpatient hospital services, diagnostic laboratory
services, and preventative services. (Cal. Code Regs., tit. 28, § 1300.67, subds. (a)-(f).)
The preventative services included in the scope are “a variety of voluntary family
planning services” and “prenatal care.” (Cal. Code Regs., tit. 28, § 1300.67, subd. (f)(2)
& (3).)
5
In 2014, the Department sent letters to seven Plans stating in pertinent part:
“It has come to the attention of the [Department] that some

[Plan] contracts contain language that may discriminate
against women by limiting or excluding coverage for
termination of pregnancies. The [Department] has reviewed
the relevant legal authorities and has concluded that it
erroneously approved or did not object to such discriminatory
language in some evidence of coverage (EOC) filings. The
[Department] has performed a survey and has discovered that
such language is present in EOCs for products covering a
very small fraction of California health plan enrollees.
“The purpose of this letter is to remind plans that the Knox-

Keene Health Care Service Plan Act of 1975 (Knox Keene
Act) requires the provision of basic health care services and

the California Constitution prohibits health plans from
discriminating against women who choose to terminate a
pregnancy. Thus, all health plans must treat maternity
services and legal abortion neutrally.
“Exclusions and limitations are also incompatible with both

the California Reproductive Privacy Act and multiple
California judicial decisions that have unambiguously
established under the California Constitution that every
pregnant woman has the fundamental right to choose to either
bear a child or to have a legal abortion. . . . [¶] Regardless of
existing EOC language, effective as of the date of this letter,
[Plan] must comply with California law with respect to the
coverage of legal abortions.
“Required Action
“1. [Plan] must review all current health plan documents to

ensure that they are compliant with the Knox-Keene Act with
regard to legal abortion. This includes plan documents
previously approved or not objected to by the [Department].
“In regards to coverage for abortion services, the descriptors

cited below are inconsistent with the Knox-Keene Act and the
California Constitution. [Plan] must amend current health
plan documents to remove discriminatory coverage
exclusions and limitations. These limitations or exclusions
6
include, but are not limited to, any exclusion of coverage for
‘voluntary’ or ‘elective’ abortions and/or any limitation of
coverage to only ‘therapeutic’ or ‘medically necessary’
abortions. [Plan] may, consistent with the law, omit any
mention of coverage for abortion services in health plan
documents, as abortion is a basic health care service.
“2. To demonstrate compliance, health plans are directed to

file any revised relevant health plan documents (e.g. EOCs,
subscriber documents, etc.) with the Department as an
Amendment to the health plan’s license within 90 days of the
date of this letter. The filing should highlight as well as
underline the changes to the text as required by the California
Code of Regulations, title 28, § 1300.52(d).” (Fns. omitted.) 4
One year after the Department sent letters to the seven Plans, petitioner filed a

petition for writ of mandate in superior court, alleging the letters constituted an
underground regulation because they were sent in violation of the APA. Petitioner
objected to the requirement that all Plans cover all legal abortions. The Department
admitted that prior to sending the 2014 letters, it had inadvertently approved Plan
contracts limiting abortion coverage to medically necessary abortions. For example, one
of the Plans approved prior to 2014 stated that it covered: “Medically Necessary
Abortion. For example, an abortion is covered if, due to an existing medical condition,
the mother’s life would be in jeopardy as a direct result of pregnancy.”
Petitioner is a Florida non-profit corporation of Catholic women, whose religious
order is based in Mexico and maintains its provincial headquarters in California.
Petitioner alleged that among the teachings of the Catholic Church is the belief that
abortion is “ ‘gravely contrary to the moral law.’ ” Petitioner alleged that even materially
cooperating in the provision of direct abortion constitutes a grave moral offense.
4 Letters containing substantially identical language were sent to Aetna, Anthem

Blue Cross, Blue Shield of California, GEM Care, Health Net, Kaiser Permanente
Healthcare, and United Health Care.
7
Petitioner’s appellate brief clarifies that by forcing its members into a Plan that covers
abortions, the Department is forcing them to subsidize abortion for other Plan
participants, something petitioner’s members find morally, ethically, and religiously
unacceptable. In other words, petitioner’s objection is not strictly because it is being
forced to pay for abortion coverage for its own members. Presumably its members,
finding abortion morally, ethically, and religiously unacceptable, would never have an
abortion. Instead, petitioner objects to other Plan participants being allowed to have
abortion coverage that is funded in any amount by the members’ premiums.
The Department demurred to the petition and complaint. In denying the petition
and complaint, the trial court reasoned that the letters sent by the Department “[represent]

the only legally tenable interpretation of the law.” The trial court rejected petitioner’s
argument that the statutes governing Medi-Cal should be used to define “medically
necessary.” Under that interpretation elective abortions would not be “medically
necessary” because they would not be “ ‘reasonable and necessary to protect life, to
prevent significant illness or significant disability, or to alleviate severe pain.’ ” (Welf. &
Inst. Code, § 14059.5.) The trial court reasoned that while the Knox-Keene Act does not
define the term “medically necessary,” the Act gives some guidance in section 1374.33,
subdivision (b). That section states that when a health plan has denied coverage for a
service based on a finding that the service is not medically necessary, the question of the
medical necessity of the disputed service is to be determined by medical professionals
based on the specific medical need of the plan member, the scientific and medical
evidence on the effectiveness of the service, on expert opinion, and on generally accepted
professional standards. Thus, the trial court concluded, the term “medically necessary” is
broader for purposes of the Knox-Keene Act than for the Medi-Cal statutes.
Furthermore, because a woman’s right to choose is a privacy right protected by the
California Constitution and by statute in the Reproductive Privacy Act, the only legally
tenable interpretation of the law is that all abortion procedures are deemed medically
8
necessary for purposes of determining whether they are basic health care services under
the Knox-Keene Act. The trial court acknowledged that the Department had previously
approved Plans limiting coverage for “elective” abortions, but concluded the Department
had misconstrued the law.
Petitioner moved for a new trial on the ground the Department had made
admissions in a related federal case that it had approved Plans with exclusions for
abortion services after sending out the 2014 letters. Petitioner claimed it did not find out
about the admissions until the day before the trial court issued its ruling. Petitioner
argued this was newly discovered evidence that could not with reasonable diligence have
been produced at trial pursuant to Code of Civil Procedure section 657. The trial court

denied the new trial motion, finding petitioner had failed to show the evidence could not
have been discovered and produced with reasonable diligence at the hearing on the
merits, and that the evidence would not have been likely to produce a different result.
This appeal followed.
DISCUSSION
I
The Administrative Procedure Act
The APA establishes procedures that state agencies must follow when adopting
regulations. (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568
(Tidewater).) The procedures include giving the public notice of the proposed action,
issuing a complete text of the proposed regulation and a statement of reasons for it,
giving interested parties an opportunity to comment, responding to comments, and
forwarding the materials on which the agency relied to the Office of Administrative Law
for review. (Ibid.) The purposes of the APA process are to give notice to persons
affected by a regulation and to give them a voice in its creation. (Id. at pp. 568-569.)
The procedure also ensures that the agency does not adopt rules it alone knows about.
(Kings Rehabilitation Center, Inc. v. Premo (1999) 69 Cal.App.4th 215, 217.)
9
A regulation is defined by statute as: “[E]very rule, regulation, order, or standard
of general application or the amendment, supplement, or revision of any rule, regulation,
order, or standard adopted by any state agency to implement, interpret, or make specific
the law enforced or administered by it, or to govern its procedure.” (Gov. Code, §
11342.600.) A regulation has two principal identifying characteristics: (1) it is intended
to apply generally, rather than in a specific case; and (2) it must “ ‘implement, interpret,
or make specific the law enforced or administered by [the agency], or . . . govern [the
agency’s] procedure.’ ” (Tidewater, supra, 14 Cal.4th at p. 571; Gov. Code, §
11342.600.) A regulation that is adopted without complying with the APA procedures is
known as an underground regulation. (Kings Rehabilitation Center, Inc. v. Premo, supra,

69 Cal.App.4th at p. 217.) Failure to comply with the APA procedures nullifies the
regulation. (Ibid.)
However, the APA does not apply to a regulation “that embodies the only legally
tenable interpretation of a provision of law.” (Gov. Code, § 11340.9, subd. (f).) This
exception applies “only in situations where the law ‘can reasonably be read only one
way’ [citation], such that the agency’s actions or decisions in applying the law are
essentially rote, ministerial, or otherwise patently compelled by, or repetitive of, the
statute’s plain language.” (Morning Star Co. v. State Bd. of Equalization (2006) 38
Cal.4th 324, 336-337 (Morning Star).)
The distinction between a regulation that is an interpretation of a statute subject to
the APA and a regulation that is not subject to the APA because it is the only legally
tenable interpretation of a statute turns on the notion of ambiguity. An agency’s
interpretation of a statute is subject to the rulemaking procedures of the APA if the
interpretation “is required to resolve an ambiguity in the law to be enforced.” (Capen v.
Shewry (2007) 155 Cal.App.4th 378, 387 (Capen).) “ ‘ “An ambiguity arises when
language is reasonably susceptible of more than one application to material facts.” ’
[Citation.] Read one way the application favors the claimant, read the other way it does
10
not. Under the Supreme Court’s view, an interpretation is ambiguous for purposes of the
rulemaking procedures of the APA if no one reading of consequence to the action is
‘patently compelled . . . .’ (Morning Star, supra, 38 Cal.4th at pp. 336-337.)” (Ibid.) By
contrast, where the language is reasonably susceptible of only one interpretation as
applied to the facts, it is “ ‘ “the only legally tenable interpretation of a provision of law.”
(Gov. Code, § 11340.9, subd. (f).)’ ” (Ibid.)
II
The Letters Did Not Resolve an Ambiguity in the Statute
As indicated, the Knox-Keene Act requires that Plans provide subscribers and
enrollees “basic health care services,” which are broadly defined to include physician

services, hospital inpatient services, ambulatory care services, preventive health services,
and emergency health services. (§§ 1345, subd. (b), 1367, subd. (i).) The letters fit the
definition of a regulation with respect to the Knox-Keene Act because they were intended
to apply generally to all Plans, and they were adopted by the Department to make specific
the statute being enforced. (Tidewater, supra, 14 Cal.4th at p. 571.) The “basic health
care services” in the Act were made specific by the letters directing the inclusion of
abortion services. However, the letters did not resolve any ambiguity in the Act as
applied to abortion services, because “basic health care services” are so broadly defined
in the statute that they unambiguously include abortion services, since abortions would
necessarily be performed as one of the listed services, i.e., physician services, hospital
inpatient services, ambulatory care services, preventive health services, or emergency
health care services. (§ 1345, subd. (b).) Moreover, petitioner does not argue that
abortions do not fall under the broadly defined basic health care services set forth in the
statute. Instead, petitioner’s argument is directed to the language of the regulation, as
discussed in part III of the Discussion, post.
Petitioner argues that the word “abortion” does not appear anywhere in the statute.
This is immaterial. The statute also does not specify that basic health care services
11
include the setting of broken bones. Nevertheless, there is no question that bonesetting is
included under “physician services,” “hospital inpatient services,” “ambulatory care
services,” or “emergency health care services.” The Department is not required to
promulgate a regulation for every specific service that falls within the definition of “basic
health care services.” 5 These services unambiguously fall within the broad categories of
basic health care services set forth in the statute.
Because the letters do not resolve an ambiguity in the statute as applied to the
coverage of abortions as a basic health care service, the letters were the only legally
tenable interpretation of the statute, and the Department was not required to comply with
the rulemaking provisions of the APA before sending the letters.

III
The Letters Did Not Resolve an Ambiguity in the Regulation
The purported ambiguity prompting this action was not created by the language of
the statute, but by the language of the Department’s own regulation. Petitioner sets up a
false dichotomy between a voluntary procedure and a medically necessary procedure,
then argues an abortion cannot be both “voluntary” and “medically necessary.”
Petitioner argues the trial court was wrong to conclude that the only legally tenable
interpretation of the regulation is that basic health care services include voluntary
abortion.
It is not at all clear that an agency’s interpretation of its own regulation constitutes
a regulation itself. A regulation “interpret[s] . . . the law enforced or administered” by the
agency. (Gov. Code, § 11342.600.) It could be argued that “the law enforced or
administered” by the agency does not include the agency’s own regulations, but only the
5 The Department claims there are currently over 70,000 diagnosable medical
conditions, and over 6,000 classified procedures for treatment—a list that changes with
each new medical development.
12
governing statute. However, assuming an interpretation of a regulation is also a
regulation, we conclude the language of the regulation is not ambiguous as applied in this
case.
The Legislature delegated the power to define the scope of the basic health care
services that Plans are required to provide, and the Department promulgated a regulation
for that purpose. (§ 1367, subd. (i); Cal. Code Regs., tit. 28, § 1300.67.) Because the
legislation defining “basic health care services” does not include the language “medically
necessary[,]” and this qualification is the language on which petitioner relies, we look to
the Department’s own regulation for the scope of medically necessary services. Even
though the term “medically necessary” might be ambiguous in some applications, it is not

ambiguous under the circumstances presented in this case.
California Code of Regulations, title 28, section 1300.67 states that “[t]he basic
health care services required to be provided by a [Plan] to its enrollees shall include,
where medically necessary, . . . [¶] . . . [¶] (f) Preventive health services . . . , which shall
include, under a physician’s supervision, . . . [¶] . . . [¶] a variety of voluntary family
planning services.” Petitioner’s mistake is in assuming that an abortion cannot be a
medically necessary health care service if the patient chooses to have an abortion even
though her life or health would not be in jeopardy as a direct result of the pregnancy.
Petitioner attempts to draw a distinction between “voluntary” or “elective” abortions on
the one hand, and “therapeutic” or “medically necessary” abortions on the other. As an
example of a “voluntary” abortion, petitioner points to health care service plans the
Department approved prior to the correcting letters that were sent in 2014. In one case
the plan excluded “elective abortions,” defined as one where the mother’s life is not in
jeopardy from the pregnancy due to an existing medical condition. In another plan
abortions were covered only if “due to an existing medical condition, the mother’s life
would be in jeopardy as a direct result of pregnancy.” However, nothing in the statute or
13
the regulation limits medically necessary services to those required to save the patient’s
life, nor can we imagine that is what the Legislature intended.
The correct question is not whether abortion is a medically necessary service, but
what service is medically necessary to treat the condition of pregnancy. The answer is
that an abortion is one of two possible medically necessary procedures when the patient is
pregnant. Under California law every woman has the right to choose whether to bear a
child or obtain an abortion, and the state may not interfere with that choice. (§ 123462.)
Given the pregnancy of the patient, two treatments may be medically necessary: medical
services to facilitate labor and delivery, or medical services to terminate the pregnancy.
Both types of service are voluntary in the sense that they are chosen by the patient. Both

types of service are medically necessary to treat the condition of pregnancy. Medical
services associated with an abortion are no less medically necessary than medical
services associated with delivery. The state may not interpret the provision of “basic
health care services,” which includes “medically necessary” “voluntary family planning
services” to allow Plans to refrain from covering elected abortion services, any more than
they could refrain from covering birthing services because the patient has elected to give
birth rather than terminate the pregnancy. (Cal. Code Regs., tit. 28, § 1300.67.)
“ ‘ “An ambiguity arises when language is reasonably susceptible of more than
one application to material facts.” ’ ” (Capen, supra, 155 Cal.App.4th at p. 387.) The
regulation governing the scope of basic health care services is not ambiguous under the
circumstances presented here. The regulation cannot mean, as petitioner claims, that
voluntary abortions cannot be medically necessary health care services. If that were true,
the regulation would not specifically include “voluntary” family planning services in the
list of “medically necessary” basic health care services which Plans are required to
provide. The word “voluntary” in this context necessarily includes legal abortions that
are the only medically feasible way to terminate a pregnancy. The letters sent by the
Department were nothing more than a restatement of a properly enacted regulation.
14
There was no violation of the APA because the letters did not resolve a material
ambiguity in the regulation, and the letters were the only legally tenable interpretation of
the regulation.
The Knox-Keene Act uses the term “medically necessary” in the statute governing
the review of denial of coverage for a service. Section 1374.33, subdivision (b) provides
that the reviewer “shall determine whether the disputed health care service was medically
necessary based on the specific medical needs of the enrollee and any of the following:
(1) Peer-reviewed scientific and medical evidence regarding the effectiveness of the
disputed service[;] [¶] (2) Nationally recognized professional standards[;] [¶] (3) Expert
opinion[;] [¶] (4) Generally accepted standards of medical practice[; and] [¶] (5)

Treatments that are likely to provide a benefit to a patient for conditions for which other
treatments are not clinically efficacious.” As the trial court found: “This language shows
that whether a given health care service is ‘medically necessary’ is, at least in part, a
clinical determination based upon the medical needs of the patient.” It does not depend
on whether the service is “voluntary.”
Petitioner also argues that the Department approved of Plans prior to sending out
the letters in question, which limited the types of abortions covered to those necessary to
protect the life or health of the mother. 6 However, we do not assume that the current
interpretation is wrong because the Department previously made an incorrect
interpretation. The interpretation of the statute and the regulation is a question that rests
with the courts. (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310.)
The Department’s past interpretation was simply incorrect.
6 Department approved Plan language prior to 2014 that covered “Medically

Necessary Abortion” and included the explanation, “For example, an abortion is covered
if, due to an existing medical condition, the mother’s life would be in jeopardy as a direct
result of pregnancy.”
15
IV
The Department’s Interpretation of Its Regulation is Correct
Whether the Department has adopted the sole legally tenable interpretation is a
different question from whether its interpretation is legally correct. (Morning Star,
supra, 38 Cal.4th at p. 336.) The former is a more narrow exception. (Id. at p. 340;
Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th
214, 262.) Even if we were to void the regulation on the ground that the Department’s
interpretation is not the sole legally tenable interpretation of its regulation, if we
nonetheless decide the Department’s interpretation is correct, the Department “is
mandated to follow the judicial interpretation of a statute, [and] once that occurs there is

no interpretive ambiguity for the [Department] to resolve and hence no [contrary]
interpretive regulation that it could enact.” (Capen, supra, 155 Cal.App.4th at p. 390.)
We may decide the interpretive issue if the court is in as good a position as the
Department to interpret the regulation. (Id. at pp. 390-391.)
The Department’s letters contain the correct statutory construction, and the
Department is now bound by the court’s opinion. Our conclusion necessarily follows for
all the reasons that the letters are the only legally tenable interpretation of the law. The
question here does not turn on “the application of administrative expertise in the first
instance.” (Morning Star, supra, 38 Cal.4th at p. 341.) Resolving whether the term
“medically necessary” must exclude “voluntary” health care services does not require the
Department’s particular expertise. Even though the Department’s interpretation of its
own regulation deserves great weight, the interpretation is ultimately a question of law,
and in this instance this court is in as good a position as the Department to interpret the
statute and the regulation. (Id. at pp. 340-341; Carmona v. Division of Industrial Safety,
supra, 13 Cal.3d at p. 310.)
We therefore hold that the Department’s determination that Plans may not refuse
to cover legal abortions is the correct interpretation of the law.
16
V
New Trial Motion
In October 2015, petitioner filed a notice of related case in superior court. The
related case was identified as Foothill Church v. Rouillard (E.D.Cal. July 11, 2016, No.
2:15-cv-02165-KJM-EFB) 2016 U.S. Dist. LEXIS 89678, in the United States District
Court for the Eastern District of California. In January 2016, the Department filed a
motion to dismiss in the related case. Included in the motion to dismiss was a footnote
stating: “[I]n response to one Plan’s request, [the Department] has allowed the Plan to
offer contracts limiting abortion coverage to ‘religious employers’ as defined in state law.
The Department has been in discussions with at least one other Plan concerning a similar

request.” The trial court issued its ruling in this case in July 2016. Petitioner filed a
motion for new trial. The ground for petitioner’s new trial motion was newly discovered
evidence, specifically the footnote in the motion to dismiss filed by the Department in the
related federal case.
The trial court denied petitioner’s motion for new trial. The trial court found that
the evidence was not newly discovered for purposes of Code of Civil Procedure section
657 because petitioner had failed to show it could not have discovered the evidence with
reasonable diligence prior to the hearing on the merits. The trial court further found that
the evidence was not likely to produce a different result.
A party may base a motion for new trial on “[n]ewly discovered evidence, material
for the party making the application, which he could not, with reasonable diligence, have
discovered and produced at the trial.” (Code Civ. Proc., § 657.) However, new trials for
newly discovered evidence are disfavored. (In re Estate of Cover (1922) 188 Cal. 133,
149.) A party moving for new trial on the basis of newly discovered evidence must
show: (1) the evidence is newly discovered, (2) it could not with reasonable diligence
have been discovered and produced earlier, and (3) the evidence is material. (Sherman v.
Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) Evidence is material if it is
17
likely to have produced a different result. (Santillan v. Roman Catholic Bishop of Fresno
(2012) 202 Cal.App.4th 708, 728.) Whether a reasonable effort was made to discover the
evidence, and whether it was material are questions addressed to the sole discretion of the
trial court, and will not be disturbed absent a manifest showing of abuse of discretion.
(Id. at p. 731; Dankert v. Lamb Finance Co. (1956) 146 Cal.App.2d 499, 502.)
A party moving for new trial on the basis of newly discovered evidence must show
it exercised reasonable diligence in discovering and producing the evidence. (Hall v.
Goodwill Industries of Southern California (2011) 193 Cal.App.4th 718, 731.) Petitioner
failed to show it could not have earlier discovered the evidence with reasonable diligence.
Petitioner claimed it first became aware that the Department had allowed one or two

contract exemptions when the fact was referenced in the federal district court’s July 11,
2016, order dismissing the case. Petitioner then obtained a copy of the motion to dismiss,
which had been filed on January 12, 2016. Both the motion to dismiss and the order were
matters of court record in a case that had been designated as a related case. Reasonable
diligence would have included staying abreast of the record in the related case. (See
Rubin v. De Lao (1952) 110 Cal.App.2d 345, 347-348 [the defendant failed to show
reasonable diligence where he did not search court records to determine whether plaintiff
had filed similar claims].)
Furthermore, the evidence was not material because it is not likely it would have
produced a different result. The issue in this case is whether the term “medically
necessary,” as used in the Department’s regulation, necessarily excludes abortions from
the statutory definition of “basic health care services.” Even though we conclude that the
letters set forth the only legally tenable interpretation of the law, the law itself authorizes
the director of the Department to allow exemptions in certain circumstances. Section
1367, subdivision (i) provides that a Plan must provide all “basic health care services,”
but “the director may, for good cause, by rule or order exempt a plan contract or any class
of plan contracts from that requirement.” The Knox-Keene Act also provides that the
18
director of the Department may exempt a “class of persons or plan contracts” from the
Act “if the director finds the action to be in the public interest and not detrimental to the
protection of subscribers, enrollees, or persons regulated under this chapter, and that the
regulation of the persons or plan contracts is not essential to the purposes of [the Knox-
Keene Act].” (§ 1343, subd. (b).)
Thus, the director clearly has the authority to exempt plan contracts from the
requirements of the Knox-Keene Act. This is an entirely different question from whether
abortions are a “basic health care service” under the Act. The trial court did not abuse its
considerable discretion by denying the motion for new trial.
DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
BLEASE, J.
We concur:
RAYE, P.
RAYE P J.
J
HULL, J.
19
IN THE
Court of Appeal of the State of California
IN AND FOR THE
THIRD APPELLATE DISTRICT
MAILING LIST
Re: Missionary Guadalupanas Of The Holy Spirit Inc. v. Rouillard

C083232
Sacramento County
No. 34201580002226
Copies of this document have been sent by mail to the parties checked below unless they were
noticed electronically. If a party does not appear on the TrueFiling Servicing Notification and is
not checked below, service was not required.
Stephen J. Greene Jr.

Greene & Roberts LLP

455 Capitol Mall, Suite 405
Karli Eisenberg
Office of the State Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
Honorable Timothy M. Frawley

Judge of the
Sacramento County Superior Court
720 Ninth Street

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October 4, 2019

VIA ELECTRONIC FILING

The Honorable Tani Cantil-Sakauye, Chief Justice

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Request for Depublication (California Rule of Court 8.1125(a))

Dear Chief Justice Cantil-Sakauye and Honorable Associate Justices:

GREENE & ROBERTS LLP P: 916.753.1300

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B. Description of the Interests of The Missionary Guadalupanas of the Holy

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D. Publication Of The Decision In Missionary Guadalupanas Of The Holy Spirit

tenable interpretation” of that law. The statute excluded physician owned/operated

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GREENE & ROBERTS LLP

Stephen J. Greene, Jr.

cc: Karli Eisenberg, Esq.

Clerk of the Court

Sacramento County Superior Court

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

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MICHELLE ROUILLARD, AS DIRECTOR, ETC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sacramento County, Timothy

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3 Undesignated statutory references are to the Health and Safety Code.

“(1) Physician services, including consultation and referral.

“(2) Hospital inpatient services and ambulatory care services.

“(3) Diagnostic laboratory and diagnostic and therapeutic

“(4) Home health services.

“(5) Preventive health services.

Document received by the CA Supreme Court.

“(7) Hospice care pursuant to Section 1368.2.” (§ 1345,

“It has come to the attention of the [Department] that some

“The purpose of this letter is to remind plans that the Knox-

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“Exclusions and limitations are also incompatible with both

“1. [Plan] must review all current health plan documents to

“In regards to coverage for abortion services, the descriptors

“2. To demonstrate compliance, health plans are directed to

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4 Letters containing substantially identical language were sent to Aetna, Anthem

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6 Department approved Plan language prior to 2014 that covered “Medically

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Re: Missionary Guadalupanas Of The Holy Spirit Inc. v. Rouillard