Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M84885
Duffy, J.
Defendant First Health Group Corporation is a preferred provider organization (PPO) and provides health benefits services to employers throughout the country. In September 2004, plaintiff Steven R. Davis, a Salinas chiropractor, became a participating provider with Chiropractic Health Plan of California (CHPC). Because of CHPC’s existing agreement with First Health, Davis became part of First Health’s preferred provider network, and treated a number of patients who were employees of First Health’s clients. In November 2006, First Health notified CHPC of its decision to remove Davis’s name from the preferred provider list (or, “delist” Davis), effective January 1, 2007. Davis made several attempts to obtain specific information regarding the reasons for the delisting and also formally requested that First Health reconsider its decision. Notwithstanding these efforts, First Health delisted Davis on or about January 1, 2007.
Davis brought suit against First Health nearly six months later, claiming, among other things, that First Health was required to give him a fair hearing and fair procedure before it delisted him. He sought a preliminary injunction to restrain First Health from removing him from its list of preferred health care providers. After extensive briefing and argument, the court denied Davis’s request for preliminary injunction.
Davis argues on appeal that the court erred. He contends that he established a likelihood that he would prevail at trial because, under the common law fair procedure doctrine, he was entitled to a decision that was substantively rational and procedurally fair before First Health delisted him. Davis asserts that the court should have enjoined First Health from delisting him because (1) First Health did not provide him with specific reasons or give him an opportunity to respond to any purported grounds for the delisting, and (2) the hardship to Davis of being delisted was significantly greater than any interim harm First Health would suffer from continuing to list him as a preferred provider.
We conclude that the court did not abuse its discretion in denying the preliminary injunction. Accordingly, we will affirm the order.
PROCEDURAL HISTORY
On May 31, 2007, Davis filed an unverified complaint against First Health, alleging seven causes of action for declaratory relief; breach of contract; violation of Davis’s right to fair procedure; intentional interference with business relations; libel; wrongful termination of his status as a health care provider; and breach of implied covenant of good faith. Davis alleged that he had never received notice of the specific charges against him that formed the basis for First Health’s decision to delist him. He alleged in the complaint that he had no adequate remedy at law to address the harm suffered as a result of the delisting, and he sought, inter alia, a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction preventing First Health from delisting him and reinstating him “to the Provider List until such time as there has been a procedurally fair proceeding to determine whether he is entitled to remain included as a provider....”
On June 19, 2007, Davis filed an application for the issuance of a TRO and for an order to show cause (OSC) regarding a preliminary injunction, along with accompanying papers (i.e., notice, memorandum, declaration of counsel, Kristen Corey, and declaration of Davis). In the application, Davis sought a TRO “restraining [First Health] from failing to allow [Davis] to continue as a preferred provider on its Provider Group Network unless and until such time as it has conducted a fair hearing or other fair adjudicatory proceeding....” The court—without granting a TRO—issued an OSC, setting a hearing on Davis’s application for preliminary injunction.
First Health filed a memorandum in opposition to the application. Davis filed a reply, consisting of a memorandum of law, objections to evidence, three declarations containing voluminous exhibits (i.e., documents obtained from Internet research), and a request for judicial notice of the declarations’ exhibits.
After service of the reply, First Health filed a “response,” consisting of a reply to Davis’s evidentiary objections; argument that Davis’s reply evidence lacked probative value; opposition to Davis’s request for judicial notice; and a declaration from Dr. Lynn Williamson (Williamson Declaration), a Medical Director with First Health. In her declaration, Williamson explained her recommendation to First Health that Davis be delisted. She referred to a September 2006 letter from one of First Health’s clients (Complaint Letter), wherein the client informed First Health “that there were at least nineteen (19) open workers’ compensation cases involving services provided by Dr. Davis to that client’s employees which raised numerous, significant concerns about the quality of his care and his billing practices.”
Davis, in turn, filed a response and objections to evidence, two additional declarations containing further Internet research as exhibits, and a supplemental request for judicial notice of the exhibits to one of the supplemental declarations.
The court heard extensive argument on Davis’s application on August 16, 2007. During the hearing, the court indicated on multiple occasions that it did not intend to order the provisional reinstatement of Davis to First Health’s preferred provider list. A formal order was entered on August 29, 2007 (Order). The Order—which tracked the rulings of the court announced at the hearing—denied Davis’s application for preliminary injunction. In addition, the Order required that (1) First Health submit a sealed copy of the Complaint Letter to the court for in camera review; (2) First Health provide a letter to Davis informing him of the basis for its conclusion that he should be delisted; (3) Davis thereafter furnish a responsive letter to First Health; and (4) First Health provide its decision concerning Davis’s status by November 1, 2007.
Davis filed a timely notice of appeal from the Order. An order denying preliminary injunction is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6); Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1019, fn. 4.)
After the filing of the notice of appeal, the court below ordered all further proceedings before it stayed, pending resolution of this appeal.
We present the essential relevant facts as taken from the papers filed in support of and in opposition to the application for preliminary injunction. In so doing, “ ‘ we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order. [Citations.]’ [Citations.]” (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1300.)
Davis is a chiropractor licensed by the State of California and owns and operates a chiropractic clinic in Salinas. The focus of his practice is primarily in occupational chiropractic medicine, i.e., “treating patients with work[-] related/industrial injuries.”
In 2003, CHPC and First Health executed an amendment (Amendment) to a “Participating Provider Group Agreement,” under which CHPC would provide chiropractors—each individually identified in that Amendment as a “Provider”—to First Health’s network. The Providers thereby were permitted “to participate in First Health Preferred Provider Panel.” The Amendment included the obligation of CHPC to verify the qualifications of each Provider—defined as “Provider Review Criteria.” The Amendment provided further that if First Health concluded that any Provider did not meet the Provider Review Criteria, it could exclude the person “from [its] Preferred Provider Panel. [CHPC] and Provider may present to First Health for further consideration any additional information or explanation regarding the Provider’s compliance with the Provider Review Criteria. However, First Health retains the right to make the final decision regarding the Provider’s participation in the Preferred Provider Panel.”
In or about September 2004, Davis and CHPC entered into a “Participating Practitioner Agreement 906,” under which Davis would be listed as a provider on any panel with which CHPC had a contract. As a result, from in or about December 2004 through December 2006, Davis was included as a Provider on First Health’s Preferred Provider Panel and received patient referrals as a result of that listing.
CHPC sent a letter to Davis dated November 1, 2006, advising that First Health had decided to terminate him as a Provider, effective January 1, 2007. The letter referred to and enclosed a letter dated October 30, 2006, signed by Janet Adamson of First Health to CHPC, advising that First Health had made the decision to delist Davis and stating, “[R]eason for this decision includes Dr. Davis’[s] failure to render services within the recognized standard of care.” The First Health letter closed, “If you would like this decision reconsidered, please notify me in writing within the next 30 days and submit any information, as well as any explanations, you or Dr. Davis, wish to attach.”
Davis telephoned Adamson on November 6, 2006. According to Davis, she told him “that she was unaware of the letter generated on October 30, 2006, but would follow[] up in the next day or two.” Davis wrote to Adamson on November 13, 2006, requesting reconsideration of First Health’s decision and an explanation of the reasons for its decision. On November 30, 2006, Davis’s attorney, Roger Calton, wrote a letter to CHPC (with a copy to Adamson), in which he advised that his client was entitled to a fair procedure under California law; asked that the delisting decision be set aside; and requested that Davis be provided with any complaints and be given an opportunity to respond to them. Another letter was sent to First Health by Davis’s attorney, Lawrence Wayte, on December 15, 2006, noting that neither Davis nor Calton had received a response to their previous correspondence.
On January 2, 2007, Davis received by fax a letter (dated December 27, 2006) from Adamson “in response to [Davis’s] request for additional information as it relates to First Health’s [delisting] decision....” Adamson advised that “First Health was notified by one of [its] clients of concerns [it] had regarding care provided by Dr. Davis for several of [its] members. The concerns were related to Dr. Davis[’] billing for treatment/evaluations/services which had not been rendered, billing for unnecessary services, and prescribing excessive and inappropriate treatment and diagnostic studies.” Adamson also stated that First Health had received Davis’s summaries “and various QME providers’ reports,” which had been reviewed by an unnamed Medical Director of First Health, who recommended delisting Davis.
Davis’s attorneys sent three additional letters to First Health in January 2007. Adamson responded on February 12, 2007, advising that its decision to delist Davis, effective January 1, 2007, remained unchanged.
Davis was delisted on or about January 1, 2007. As a result of the delisting, Davis declared that he had been unable to treat patients who were employees of a number of prominent Monterey County companies that were First Health clients. In 2006, 139 of Davis’s 321 new patients (or 43.3 percent) were First Health patients, and 29.7 percent of his total patient visits for the year were First Health patients. Also in 2006, the charges generated for First Health patients were $448,982.94, representing 42.8 percent of Davis’s total charges. Davis conducted a study in which he compared the following information for his practice for the first 207 days of 2007 with that for the first 207 days of 2006: patient charges; number of new patients; and number of patient visits. He calculated that total patient charges from 2006 to 2007 had declined by approximately $206,000 ($594,723 to $388,764); he had seen 11.5 percent fewer patients in 2007 than in 2006; and he had 12.3 percent fewer patient visits in 2007 than in 2006.
According to supplemental materials supplied by Davis in support of his application, First Health is a wholly-owned subsidiary of Coventry Health Care. Coventry “ranks 14th out of 125 companies nationwide... [or] in the 11th percentile nationwide in terms of market share.” First Health “serves more than 3.4 million people across the country.” In California, it “has a ‘Comprehensive Client List’ of approximately 3,325 businesses, employers, and entities.” Of those businesses, there were 25 Monterey County clients of First Health, and those 25 clients had collectively about 10,402 employees. Based upon figures obtained by Davis’s counsel from their Internet research, Davis calculated that these 10,402 insured employees represented about 7.5 percent of all of the insured workers in Monterey County. The Internet research by Davis’s attorneys disclosed further that there were 137 board-certified chiropractors in Monterey County and that 49 of them (36 percent) were included among First Health’s list of Providers.
The source of the information stated in this paragraph is the Internet research attached to the declarations of Davis’s counsel. Davis requested that the trial court take judicial notice of this material. The court did not expressly rule on the requests for judicial notice. We present this information here since it is relied on by Davis in support of his argument that the court erred in denying his application. In so doing, however, we are not by implication suggesting that the evidence relied on by Davis was admissible, was a proper subject of judicial notice, or that the court below implicitly granted Davis’s requests for judicial notice. (See pt. IV.A.2., and fn. 9, post.)
This calculation was based upon Internet research that there were an estimated 169,135 employees in Monterey County; that 18.1 percent of workers nationally are uninsured; and, assuming this national average applied to Monterey County, there were an estimated 30,613 uninsured workers in that county.
DISCUSSION
I. Issues on Appeal
1. Whether the appeal should be dismissed, either on the basis of mootness or on the ground that Davis waived his right to appeal the Order by accepting its benefits.
2. Whether the court abused its discretion by denying the motion for preliminary injunction.
II. Motion to Dismiss Appeal
First Health argues in its brief that Davis’s appeal should be dismissed for two reasons—because the appeal is moot, and because Davis waived his right to proceed. We address these threshold procedural issues separately below.
A. Mootness
First Health contends that the appeal is moot because subsequent to entry of the Order, it complied with its terms by providing Davis with a letter giving more specific information concerning its reasons for delisting him. Specifically, on September 14, 2007, it sent Davis’s counsel a letter authored by Williamson (Williamson Letter) that provided Davis with specific complaints about his treatment of particular patients that served as the basis for its decision to delist him. Pursuant to the terms of the Order, Davis had the opportunity to respond to the Williamson letter. He declined to do so and instead filed this appeal. First Health argues that by complying with the Order, it “readily supplied Dr. Davis with both ‘notice of the evidence against [him] upon which First Health relie[d]’ in making its removal decision and ‘an adequate opportunity to respond.’ ” Accordingly, it asserts that “[t]he [Williamson] Letter, therefore, satisfied any obligations First Health may have had to provide fair procedure.”
First Health noted in its brief that although it explained its reasons for delisting Davis in the Williamson Letter, it nonetheless denies that he was entitled to fair procedure in connection with the delisting decision. (We discuss the common law right of fair procedure and its potential application here in section IV.A., post.)
In response, Davis argues that First Health has relied upon improper materials designated in respondent’s appendix—including pleadings filed by him in the court below after entry of the Order that contained the Williamson Letter as an exhibit—in support of its mootness argument. In addition to noting this objection in his reply brief, Davis filed a separate motion to strike respondent’s appendix and portions of respondent’s brief that refer to that appendix. Davis argues further that, in any event, the appeal is not moot.
We first address Davis’s procedural challenge to First Health’s appendix—asserted in both his reply brief and his motion to strike. Citing, inter alia, Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813, for the proposition that a court of appeal will generally consider only those matters that were part of the trial court record as of the time the judgment was entered, Davis argues that respondent’s appendix, including that Williamson Letter, should not be considered. Were we to conclude that First Health was offering these post-Order filings for the purpose of opposing the merits of Davis’s appeal, we might find merit to Davis’s objections. However, it appears clear—as evidenced by First Health’s opposition to Davis’s motion to strike—that the documents designated in respondent’s appendix are offered by First Health only in support of its contentions that the appeal is moot and that Davis has waived his right to appeal. There is no prohibition against the use of court-filed documents that postdate the entry of the judgment or appealable order to establish that an appeal is moot. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [appellate record properly included agency’s addendum report filed after entry of judgment offered to show that rendered issue on appeal was moot].) Further, the documents offered by First Health, insofar as they consist of filed documents arguably necessary for issues in the appeal (i.e., First Health’s claims of mootness and waiver), are proper items to be included in respondent’s appendix. (See Cal. Rules of Court, rule 8.124(b)(4).) Therefore, we conclude that Davis’s objections are not well taken, and his motion to strike respondent’s appendix and portions of respondent’s brief is denied.
We note that in denying of Davis’s motion to strike, we have considered the materials in respondent’s appendix only to address First Health’s contention that the appeal should be dismissed because of mootness and waiver; we have not utilized these post-Order documents in addressing the merits of the appeal.
As we have explained, “Appellate courts generally will not review matters that are moot. ‘A case is moot when the decision of the reviewing court “can have no practical impact or provide the parties effectual relief. [Citation.]” [Citation.] “When no effective relief can be granted, an appeal is moot and will be dismissed.” [Citations.]’ [Citation.] An appeal will be decided, however, where part but not all of the controversy has been rendered moot. [Citations.] And appellate courts may in their discretion decide questions that have been rendered moot as a result of subsequent events, such as the death of a litigant, where the issues presented are of importance and ‘are capable of repetition yet tend to evade review.’ [Citations.]” (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 78.)
In this instance, the appeal was taken from the Order denying the application for preliminary injunction; Davis had sought an order “restraining [First Health] from failing to allow [Davis] to continue as a preferred provider on its Provider Group Network unless and until such time as it has conducted a fair hearing or other fair adjudicatory proceeding....” Unquestionably, Davis has never obtained a provisional order reinstating him as a Provider within First Health’s Provider Group Network. Since, as we explain (see pt. IV.A.2., post), the court made no finding that Davis was entitled to fair procedure prior to First Health’s decision to delist him, he, in fact, received none of the relief that he sought in his application. To the extent that First Health complied with the Order by providing the Williamson Letter, this was not done in compliance with any finding that Davis was entitled to a fair procedure prior to his delisting. Davis did not receive any part of the relief he requested in his application. Thus, First Health’s compliance with the Order notwithstanding, the predominant issue on appeal—whether the court erred by denying a preliminary injunction reinstating Davis as a Provider, pending Davis’s being afforded adequate notice of the charges against him and an opportunity to respond consistently with the common law right of fair procedure—remains viable. We therefore reject First Health’s claim that the appeal is moot.
B. Waiver
First Health argues that Davis waived his right to appeal because he voluntarily accepted the benefits of the Order. Specifically, prior to filing his notice of appeal, Davis permitted First Health to prepare and send the Williamson Letter providing him with further details concerning the reasons for its delisting decision. First Health asserts that Davis timed the filing of his appeal in a manner that “was undoubtedly calculated and deliberately designed to prejudice First Health... of any of its benefits.” (Fn. omitted.) In support of its waiver argument, it cites, among other authorities, American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, where the court—which ultimately found no waiver—noted that “the voluntary acceptance of the benefit of a judgment or order bars prosecution of an appeal. The rationale for the rule is that ‘... the right to accept the fruits of the judgment and the right to appeal therefrom are wholly inconsistent, and an election to take one is a renunciation of the other.’ [Citation.]” (Id. at p. 557, quoting Mathys v. Turner (1956) 46 Cal.2d 364, 365.)
Davis responds that he did not waive his appellate rights by waiting until after receipt of the Williamson letter to file the notice of appeal. He notes that the notice of appeal was filed well within the 60-day deadline for doing so, and that there is nothing to support the assertion that the timing of the notice was intended to prejudice First Health; rather, there were legitimate reasons why Davis did not immediately file the appeal notice. Further, Davis argues that he is “principally appealing the trial court’s order denying his application to preliminarily enjoin First Health from continuing to omit his name from its provider list” and that “[t]hat benefit has never been offered by First Health and has certainly never been received by Dr. Davis.” Davis asserts also that the Williamson letter was not a benefit accepted by him; rather it was both information to which he was entitled and “merely information to which [he] would rightfully be entitled through the normal channels of discovery.”
We agree with Davis that he did not waive his right to appeal. The relief sought by Davis in his application was a preliminary injunction requiring First Health (1) to return him to its list of preferred providers, (2) to provide him with the specific grounds on which it proposed to delist him, and (3) to give him an opportunity to respond to the charges against him before taking any action to delist him. Davis did not seek the relief that ultimately appeared in the Order, namely, an order requiring First Health to give him additional information about its delisting decision without an interim reinstatement of his position as a Provider. Indeed, the record indicates that it was First Health’s counsel who suggested the procedure of giving more information to Davis in lieu of granting Davis’s application for preliminary injunction; and that Davis’s counsel prefaced his response to that suggestion by stating, “[o]bviously, I don’t want any remarks to be any waiver of Dr. Davis’[s] rights. I would not be permitted to do that.”
As we discuss in part IV.B., post, although Davis couched his request for injunctive relief in terms that suggested an order restraining First Health from taking action to delist him (i.e., a prohibitory injunction), since Davis had been delisted for nearly eight months, in reality, he sought an order compelling First Health to reinstate him as a Provider (i.e., a mandatory injunction).
Further, none of the cases cited by First Health offers direct support for the application of the waiver doctrine under the circumstances presented here. Most of the cases it relies on concerned a finding of waiver after the appellant had accepted monetary benefits from a judgment, where such acceptance was inconsistent with a challenge to that judgment. (See, e.g., Turner v. Markham (1907) 152 Cal. 246; Epstein v. Dedomenico (1990) 224 Cal.App.3d 1243; Wilson v. Wilson (1958) 159 Cal.App.2d 330.)
Moreover, we must be mindful that “[t]he ‘rule that voluntary acceptance of the benefits of a judgment bars appeal therefrom is subject to qualifications.’ [Citation.] The party relying on a waiver theory ‘must demonstrate a “clear and unmistakable acquiescence in’ the judgment, an “unconditional, voluntary, and absolute’ acceptance of the fruits thereof.’ [Citations.]” (Kacha v. Allstate Ins. Co. (2006) 140 Cal.App.4th 1023, 1037.) In this instance, First Health has failed to demonstrate that Davis “clear[ly] and unmistakabl[y] acquiesce[d] in” the Order, or made “ ‘an “unconditional, voluntary, and absolute” acceptance of [its] fruits.’ ” (Ibid.) We therefore deny First Health’s request that the appeal be dismissed under the doctrine of waiver.
III. Preliminary Injunctions and Standard of Review
“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.]... [¶] The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support the injunction. [Citation.]... A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Butt v. State of California (1992) 4 Cal.4th 668, 677-678; see generally Code Civ. Proc., §§ 526, 527.)
“The general purpose of [a preliminary] injunction is the preservation of the status quo until a final determination of the merits of the action.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; see also Nutro Products, Inc. v. Cole Grain Co. (1992) 3 Cal.App.4th 860, 865.) Such an order is not a final adjudication of the merits. (Nutro Products, at p. 865.)
There are two types of injunctions—prohibitory and mandatory. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶¶ 9:547 to 9:554, pp. 9(II)-15 to 9(II)-16.) A major distinction between the two is that, unlike prohibitory injunctions, mandatory injunctions are automatically stayed by the filing of an appeal. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) A prohibitory injunction, as is apparent from its name, is one in which “ requires a person to refrain from a particular act.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446 (Davenport).) By contrast, a mandatory injunction “is an order compelling affirmative action on the part of the defendants.” (Feinberg v. Doe (1939) 14 Cal.2d 24, 27.) The court determines whether an injunction is prohibitory or mandatory from the substance of the order, not from its form. (Ibid.) Because mandatory preliminary injunctions are rarely granted, they are subject to stricter review on appeal. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)
In an appeal from the granting or denial of a preliminary injunction, the question is whether the trial court abused its discretion. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286 (Cohen).) “Discretion is abused in the legal sense ‘whenever it may be fairly said that in its exercise the court in a given case exceeded the bounds of reason or contravened the uncontradicted evidence.’ [Citations.]” (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 527, quoting Estate of Parker (1921) 186 Cal. 668, 670; see also IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.) “[A] trial court’s order with regard to a preliminary injunction may be affirmed if either the balance-of-hardships analysis or plaintiffs’ likelihood of success considerations would alone support the ruling.” (King v. Meese (1987) 43 Cal.3d 1217, 1227.) The denial of a preliminary injunction denotes that the court impliedly concluded that the plaintiff failed to satisfy either or both of the “ ‘interim harm’ ” and “ ‘likelihood of prevailing on the merits’ ” factors. (Leach v. City of San Marcos (1989) 213 Cal.App.3d 648, 657 (Leach); see also Cohen, at p. 286.) And if the trial court was presented with evidence on both of the factors and failed to make express findings, it will be presumed that the court found in favor of the prevailing party on both factors. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402 (Moorpark).) In such an instance, the denial of preliminary injunctive relief will be reversed only if it is determined that the trial court abused its discretion in finding against the plaintiff on both the “interim harm” and “likelihood of prevailing on the merits” factors. (Cohen, at p. 287; Sahlolbel v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137, 1145 (Sahlolbel).)
“Where the evidence before the trial court was in conflict, its factual determinations, whether express or implied, are reviewed for substantial evidence. We interpret the facts in the light most favorable to the prevailing party. [Citation.] [¶] Generally, the standard of review for denial of a preliminary injunction is whether the trial court committed an abuse of discretion.” (Sahlolbel, supra, 112 Cal.App.4th at p. 1145.) The party challenging on appeal the order granting or denying the preliminary injunction bears the burden of “ ‘mak[ing] a clear showing of an abuse of discretion. [Citations.]’ [Citation.]” (Hilb, Rogal & Hamilton Ins. Services v. Robb (1995) 33 Cal.App.4th 1812, 1819, quoting IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69.)
Davis suggests that the standard of review here for evaluating whether he established a likelihood of prevailing on the merits is de novo. In support of this proposition, he cites Sahlolbel, supra, 112 Cal.App.4th at pages 1145-1146: “However, a party’s likelihood of prevailing on the merits sometimes can be determined as a matter of law. [Citations.] In that case, de novo review as to that factor is proper. [Citation.]” We disagree that the de novo standard of review applies here in determining whether Davis established a likelihood of prevailing. As we discuss, post, while there was little significant conflict in the evidence presented on the issue of First Health’s market share in Monterey County—a key aspect in determining whether the doctrine of common law fair procedure applied to First Health’s decision to delist Davis—the inferences that the court may have drawn from that evidence and the weight it may have given it, particularly Davis’s declarations, are matters to which a reviewing court defers. (See Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450 (Whyte) [appellate court’s task in reviewing preliminary injunction order is not to “reweigh the evidence, or assess the credibility of witnesses”].)
IV. The Order Denying Preliminary Injunction
A. Likelihood of Success
1. Fair procedure doctrine generally
Under the common law doctrine of fair procedure, where it is applicable, an organization may not exclude or expel an individual arbitrarily, “either because the reason for the exclusion or expulsion is itself irrational or because, in applying a given rule to a particular case, the society has proceeded in an unfair manner.” (Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 545 (Pinsker II).) Thus, the doctrine has both substantive and procedural aspects: “[W]henever a private association is legally required to refrain from arbitrary action, the association’s action must be both substantively rational and procedurally fair.” (Id. at p. 550.) The procedural element need not have the same level of formality of a court trial, but the person “must at least be provided with some meaningful opportunity to respond to the ‘charges’ against him [or her].” (Id. at p. 545; see also Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 829 (Anton) [private organization has discretion to formulate its own procedures, subject to judicial review for abuse of such discretion].)
Courts have held that the fair procedure doctrine must apply to prevent arbitrary decisionmaking by private entities “affecting the public interest.” (Potvin v. Metropoitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1070 (Potvin).) The doctrine has thus been applied to a physician’s exclusion from membership on hospital staffs and professional associations; in those instances, the associations’ “ ‘public service’ functions” are such that “the courts uphold judicial review because denial of membership would effectively impair the applicant’s right ‘to fully practice his profession.’ [Citations.]” (Pinsker II, supra, 12 Cal.3d at p. 554.) Likewise, the doctrine has been applied in the case of exclusion from membership in a national orthodontics association, because although a dentist’s membership is not a strict economic necessity, it is “a practical necessity for a dentist who wishes not only to make a good living as an orthodontist but also to realize maximum potential achievement and recognition in such specialty.” (Pinsker v. Pacific Coast Soc. of Orthodontists (1969) 1 Cal.3d 160, 166 (Pinsker I).) And the fair procedure doctrine has been applied to a private hospital’s decision to grant hospital privileges to a physician, because such privileges “ ‘directly relate[] to the pursuit of his [or her] livelihood.’ ” (Anton, supra, 19 Cal.3d at p. 823; see also Ezekial v. Winkley (1977) 20 Cal.3d 267 [hospital’s summary dismissal of physician from surgical residency program governed by fair procedure].)
The Supreme Court in Potvin, supra, 22 Cal.4th 1060 held that an insurance company that maintained a list of preferred provider physicians could not delist a provider without first complying with the common law right of fair procedure. The high court noted that where the medical insurance company maintained a preferred provider list, there existed a “unique tripartite relationship among an insurance company, its insureds, and the physicians who participate in the preferred provider network. As the New Hampshire Supreme Court noted recently in Harper v. Healthsource New Hampshire (1996) 140 N.H. 770 [674 A.2d 962, 966 ], the removal of a physician from a preferred provider list ‘affects more than just [the doctor’s] own interest,’ adding that ‘[t]he public has a substantial interest in the relationship between health maintenance organizations and their preferred provider physicians.’ ” (Potvin, supra, at p. 1070.) But the court stressed that not all such insurers are required to adopt a fair procedure in delisting a preferred provider physician. As the Potvin court held, “Our conclusion that the relationship between insurers and their preferred provider physicians significantly affects the public interest does not necessarily mean that every insurer wishing to remove a doctor from one of its preferred provider lists must comply with the common law right to fair procedure. The obligation to do so arises only when the insurer possesses power so substantial that the removal significantly impairs the ability of an ordinary, competent physician to practice medicine or a medical specialty in a particular geographic area, thereby affecting an important, substantial economic interest.” (Id. at p. 1071, fn. omitted.)
2. Application of fair procedure doctrine
At the heart of Davis’s claim that the court erred in denying his application for a preliminary injunction is his assertion that he established that First Health’s delisting decision was governed by the fair procedure doctrine and that its decision was both substantively and procedurally defective. Davis maintains that, because he established the doctrine’s applicability, he demonstrated a likelihood that he would prevail on the merits. We disagree.
The court here denied the preliminary injunction. Thus, it impliedly concluded that Davis failed to satisfy either or both of the “likelihood of prevailing” and “interim harm” elements. (Leach, supra, 213 Cal.App.3d at p. 657.) We conclude that the court did not abuse its discretion by impliedly finding that Davis failed to establish a likelihood that he would prevail on the merits.
As noted above, there is no automatic application of the fair procedure doctrine to an insurer’s decision to delist physicians (or in this instance, chiropractors) from the insurer’s preferred provider network. (Potvin, supra, 22 Cal.4th at p. 1071.) Here, Davis was required to show in his application—as he will be required to prove at trial—that First Health “possesses power so substantial that the removal significantly impairs the ability of an ordinary, competent [chiropractor] to practice [his or her profession] in [Monterey County], thereby affecting an important, substantial economic interest.” (Id. at p. 1071, fn. omitted.) The court below may have concluded that Davis did not make such a showing for a variety of reasons.
The court may have reasonably discounted Davis’s evidentiary showing concerning First Health’s market power. Although Davis submitted a supplemental declaration detailing the decline in his patient revenues, number of patients, and number of patient visits from 2006 to 2007, the court may have concluded that he failed to prove a direct correlation between this decline and his delisting by First Health. (See Whyte, supra, 101 Cal.App.4th at p. 1450.) Further, since the standard for determining an organization’s market power is an objective one—i.e., the court must look to whether the organization has power substantial enough to impair significantly “the ability of an ordinary, competent physician to practice medicine or a medical specialty in a particular geographic area” (Potvin, supra, 22 Cal.4th at p. 1071; see also id. at p. 1072)—the court may have legitimately concluded that Davis did not present sufficient evidence that First Health holds sufficient power to significantly impair the practice of an ordinary, competent chiropractor in Monterey County (as opposed to power over Davis, individually).
Additionally, the court may have properly disregarded the voluminous raw materials Davis submitted from his attorneys’ Internet research that purported to show First Health’s market share in Monterey County. This material included, inter alia, documents from Reference USA, Businesses in Monterey County, and a document from Monterey County Health Department Health Profile. Davis requested that the trial court take permissive judicial notice of these Internet materials, pursuant to Evidence Code section 452, contending that they were proper subjects of judicial notice because they were “records of... any court of this state” (Evid. Code, § 452, subd. (d)), and/or contained “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy” (Evid. Code, § 452, subd. (h)). These materials were not proper subjects of permissive judicial notice; neither the subdivisions of Evidence Code section 452 cited by Davis nor other recognized grounds for judicial notice were applicable. Further, the materials were unauthenticated hearsay which Davis plainly offered for the truth of the matters contained in them and were thus not proper subjects for the taking of judicial notice. (Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 279, fn. 12.)
Davis filed two separate requests for judicial notice, asking the court to take judicial notice of over 1200 pages of documents obtained from Internet research. First Health specifically opposed the first request, arguing, inter alia, that it was improper to consider the Internet downloads for the truth of the matters contained in them. The record does not show that the court made a ruling specifically addressing Davis’s two requests. We requested supplemental briefing on the issues of (1) whether the court expressly ruled on the requests, and (2) if it did not, whether this court should deem that the requests for judicial notice were granted or denied by the trial court. We have received and considered those letter briefs. First Health argues that the court denied the requests, based upon the following concluding language in the Order: Except as so ordered, “all relief requested by Plaintiff by way of his motion is denied and all objections are overruled.” It contends that Davis’s requests “were indisputably made as part and parcel of his motion for preliminary injunction.” We do not believe the term “relief” in the Order can reasonably be construed to have included Davis’s requests for judicial notice. The requests sought court recognition of certain materials in support of Davis’s application for preliminary injunction; the relief he sought in the application was the preliminary injunction (including all of its particulars), not the requests. (See Black’s Law Dict. (9th ed. 2009) p. 1404, col. 2: “relief....3. The redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court.”) We therefore agree with Davis that the court did not expressly deny the requests. The court’s failure to specifically rule on the requests notwithstanding, we conclude that the court implicitly denied them. In so holding, we acknowledge that the court did not comply with Evidence Code section 456, which provides that “the court shall at the earliest practicable time so advise the parties [of its denial of a request for judicial notice] and indicate for the record that it has denied the request.” We also recognize that in some instances, courts have concluded that a request was impliedly granted, where there was no specific denial by the trial court, there was no objection to the request, the request concerned matter for which judicial notice was proper, and it was evident that the trial court relied on the requested material. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 889; Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 918-919.) Here, however, (1) First Health objected to at least one of the requests for judicial notice, (2) the Internet research that was the subject of the requests was clearly not a suitable candidate for the taking of judicial notice, and (3) there is no indication from the record that the court relied on the requested material in reaching its decision. As to this last point, we disagree with Davis’s argument that the record shows that the court impliedly granted the requests. The fact that Davis’s counsel was permitted to argue at the hearing the issue of First Health’s market share, and the court’s reference to there being “[a] lot of paper,” do not persuade us otherwise. This case is thus distinguishable from Porterville Citizens (cited by Davis) and Aaronoff, and we conclude that Davis’s requests for judicial notice were implicitly denied by the court. Lastly, because, as we have explained, ante, the Internet material is not appropriate for the taking of judicial notice, we decline the invitation in the letter brief of Davis’s counsel that we take judicial notice on our own of the material pursuant to Evidence Code section 459.
The court therefore may have reasonably concluded—for a variety of reasons—that Davis did not make a sufficient showing that the fair procedure doctrine applied in this case. Accordingly, on that basis we conclude that the court did not err in impliedly finding that Davis had failed to establish a likelihood that he would prevail on the merits.
Davis nonetheless argues that the court specifically found that the fair procedure doctrine applied. He contends that the court, in ordering First Health to provide a letter to Davis giving him specific information about the reasons for its delisting decision, of necessity must have held that Davis was entitled to fair procedure in connection with the delisting decision. The Order appealed from contains no such finding. Further, there is nothing in the hearing transcript that suggests that the court made a finding that Davis had a right to fair procedure before First Health took the action of removing him from its preferred provider list. At oral argument, counsel for Davis cited to a brief passage of the hearing transcript that he contended showed that the court had found the fair procedure doctrine applicable. There, the court noted, after being interrupted by Davis’s attorney, “But at this point I think just the common law fair hearing is really what’s required.” While it is unclear what the court is referring to here, it is important to place this isolated comment by the court in the overall context of the preliminary injunction hearing. The passage relied on by Davis appears in the transcript at the end of a lengthy hearing—and after the court had heard significant argument and had at least twice indicated its intention to deny the injunctive relief of Davis’s provisional reinstatement. And the court’s comment followed Davis’s argument that he was entitled to a copy of the Complaint Letter through discovery, and was not in reference to the legal question of whether the fair procedure doctrine applied to First Health’s decision to delist Davis. We therefore reject Davis’s claim—based upon a tentative, ambiguous, and nonbinding comment by the court— that the record shows that the court made a finding that the fair procedure doctrine applied. (See Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638, fn. 9 [appellant could not rely on “tentative comments made by the trial court, from which the trial court departed in its final ruling” in attacking judgment]; In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 793-794 [unsigned minute order not binding].)
The relevant passage of the reporter’s transcript begins with the court responding to the assertion by Davis’s counsel that the Complaint Letter was discoverable. The court’s more detailed comments are as follows: “THE COURT: It’s probably not necessary. If there is something in it of that ilk and simply informing about medical concerns. And your client is informed of what those medical concerns are and who the patient is so he can respond intelligently. Then I think due process and fair hearing, reasonable opportunity, all of those things have been—[¶] [Court interrupted by Davis’s counsel.] [¶]... [¶]...We may have a trial on discovery and so on. But at this point I think just the common law fair hearing is really what’s required.”
Davis argues that it can be inferred that the court found the fair procedure doctrine applicable because it ultimately ordered First Health to provide Davis with more specific information of the grounds for its delisting decision. We will decline Davis’s suggestion that we infer that the court made such a finding. First, such an inference would run afoul of the principle that, absent express findings by the trial court, we will presume that the court found in favor of the prevailing party (First Health) with respect to both the “likelihood of prevailing” and “interim harm” elements. (Moorpark, supra, 63 Cal.App.4th at p. 1402.) Second—contrary to Davis’s suggestion that the court impliedly found that he was entitled to a fair procedure because it ordered First Health to serve a letter providing him with more details concerning its delisting decision—it was First Health’s counsel who volunteered that her client (without the court granting the injunction) could give more information to Davis. Third, had the court determined that the fair procedure doctrine applied, the proper remedy would not have been for it to devise a procedure to afford Davis notice and an opportunity to be heard. Rather, the court would have ordered the provisional reinstatement of Davis with a fair procedure as adopted by First Health in which it would give Davis notice of the grounds for its decision to delist Davis and would provide him an opportunity to respond to those charges. (See Pinsker II, supra, 12 Cal.3d at p. 556-557; Hackethal v. Loma Linda Community Hosp. Corp. (1979) 91 Cal.App.3d 59, 64.) Therefore, were we to infer that the court held that the fair procedure doctrine applied, we would be making the presumption that the court did not follow the law. This is a presumption we will not make. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914 [trial court is presumed to have followed established law].)
The court made the implied finding that Davis did not satisfy the “likelihood of prevailing” prong necessary to the issuance of the preliminary injunction. For the reasons stated above, we hold that the court did not abuse its discretion in making such a finding.
Of course, this implied finding by the court is not an adjudication on the merits; Davis may yet be able to establish at trial that the fair procedure doctrine applied to First Health’s decision to delist Davis. (Continental Baking Co. v. Katz, supra, 68 Cal.2d at p. 528 [grant or denial of preliminary injunction is not an adjudication of the merits of controversy].)
B. Prohibitory or Mandatory Injunction
First Health argues that the preliminary injunction sought by Davis was a mandatory injunction because, if granted, it would have compelled it to perform the affirmative act of placing Davis back on its preferred provider list. Davis, while his response on the subject is rather lengthy, does not specifically refute First Health’s position. Instead, he argues as a non sequitur that injunctive relief was not precluded by the notion that typically a court will not issue an injunction to prohibit a completed act. (See Griffith v. Department of Public Works (1959) 52 Cal.2d 848, 853.) We conclude that the relief sought by Davis was a mandatory injunction.
First Health did not make the argument on appeal that injunctive relief was properly denied because Davis sought to prohibit a completed act. We therefore need not address the issue.
It was undisputed that First Health delisted Davis on or about January 1, 2007. The only way that Davis could return to the status of Provider as of the time of the hearing over seven months later would have been for First Health to place him back on its list. Therefore, from a definitional standpoint, the requested relief—having First Health place Davis back on the preferred provider list—was “an order compelling affirmative action on the part of the defendant[].” (Feinberg v. Doe, supra, 14 Cal.2d at p. 27.) Several analogous cases confirm this point.
In Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 712, the trial court issued an injunction ordering the employer to rehire striking workers who had unconditionally offered to return to work and to terminate all replacement workers. In denying the union’s writ of mandate challenging the trial court’s later ruling that the injunction had been automatically stayed as a result of an appeal having been taken by the employer, the court rejected the union’s contention that the injunction was prohibitory in nature and therefore not subject to the rule that an appeal stays mandatory injunctions. (Id. at pp. 713.) The court held that, notwithstanding the prohibitory-sounding language in the order—in which the employer was restrained “from ‘failing or refusing to immediately reinstate’ ” the striking workers, and was compelled “not ‘to continue’ in its employ all other [replacement] agricultural workers” (ibid.)—the injunction was mandatory, because it required the employer “to take affirmative action....” (Ibid.)
Likewise, in Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 624, the plaintiff sought and obtained a preliminary injunction restoring him to his administrative positions as chairman of both a university’s emergency medicine department and a county medical center’s emergency services department. In concluding that the court abused its discretion in granting the injunction, the appellate court subjected the court’s action to a higher level of scrutiny because of the disfavored nature of mandatory injunctions. (Id. at p. 625.) The court observed that “[t]he injunction... was undoubtedly mandatory in nature. It ordered [the] defendants to take affirmative steps to restore Shoemaker to his administrative positions, and it altered the status quo because Shoemaker had already been removed from those positions when the trial court issued its order. [Citation.]” (Id. at p. 625, fn. 4.)
And in Davenport, supra, 52 Cal.App.4th at page 439, the court granted a preliminary injunction enjoining an insurer from refusing coverage to an insured for cancer treatment. Although the order “ ‘prohibited [the insurer] from refusing to authorize, preauthorize or consent to the performance of [specified cancer treatment]... [and] enjoined and prohibited [the insurer] from refusing to reimburse [the] plaintiff for the costs of [the treatment]...’ ” (id. at p. 443), the court held that the form of the injunction was not controlling (id. at pp. 447). It found that “[t]he injunction plainly ordered [the insurer] to perform affirmative acts which would change the position of the parties, by compelling [it] to authorize and pay for [the] plaintiff’s treatment. It has been held an injunction which compels a party to perform some physical act or surrender property is mandatory. [Citation.]” (Ibid.)
At oral argument, Davis’s counsel cited Volpicelli v. Jared Sydney Torrance Memorial Hosp. (1980) 109 Cal.App.3d 242 (Volpicelli), in support of his claim that he was seeking a prohibitory rather than a mandatory injunction. Davis asserted that under Volpicelli, where the harm to the plaintiff resulting from his being delisted is a continuing one, his or her reinstatement through an injunction does not constitute a mandatory injunction. Volpicelli is factually distinguishable and does not suggest that the relief Davis sought here was anything other than a mandatory injunction.
There, a physician who had been on staff at the hospital for 18 years, had his membership “ ‘deleted.’ ” (Volpicelli, supra, 109 Cal.App.3d at p. 246.) He filed suit over two years later and the trial court granted a preliminary injunction, concluding that the physician should have been afforded notice and hearing before his termination and that he should be reinstated. (Id. at pp. 246-247.) In affirming the trial court, the majority rejected the defendants’ contention that an injunction should not have been granted because injunctive relief is not permitted in the case of a “completed act.” (Id. at p. 250.) It noted that there is an exception to this rule where “the wrongful acts are continued or repeated.” (Ibid.) And the majority of the court held that the record showed that after the plaintiff’s termination, the hospital engaged in a “continued... course of conduct” to exclude him. (Id. at p. 251.) Significantly, the court did not expressly find that under the circumstances, reinstatement by court order would constitute a prohibitory injunction. Rather, the appellate court—in observing that the preliminary injunction did not constitute an adjudication on the merits and that the plaintiff’s reinstatement might end up being short-lived—noted: “If [the] defendants provide[d] the notice and hearing in compliance with the mandatory preliminary injunction, and if, as they assert, [the] plaintiff’s right to relief at the hearing is extremely doubtful, [the] plaintiff will only have been reinstated to staff membership for an extremely short period of time.” (Id. at pp. 251-252, italics added.) Thus, Volpicelli does not undermine our conclusion that the relief sought by Davis was a mandatory injunction.
The injunctive relief sought by Davis here was plainly mandatory in nature. The relief, if granted, would have compelled First Health to take the affirmative step of restoring Davis to its preferred provider list nearly eight months after his removal from that list. And it would have plainly altered the status quo. As such, the principle that the granting of a mandatory injunction is subjected to heightened appellate scrutiny, and the concomitant principle that such equitable relief is disfavored, apply in this instance. “The granting of a mandatory injunction pending trial ‘ “is not permitted except in extreme cases where the right thereto is clearly established.” ’ [Citations.]” (Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at p. 625; see also Teachers Ins. & Annuity Assn. v. Furlotti, supra, 70 Cal.App.4th at p. 1493.) The record presented here does not demonstrate that this was such an “ ‘ “extreme case[]” ’ ” where the right to a mandatory injunction was “ ‘ “clearly established.” ’ ” Therefore, on this basis as well we hold that there was no abuse of discretion by the trial court.
C. Order to Provide Additional Information
Although not the focal point of his appeal, Davis argues at the end of his opening brief that the court erred by including in its Order the requirement, inter alia, that First Health provide a letter giving more specifics concerning its delisting decision, calling it an improper attempt to “create a quasi-fair hearing mechanism.” (Capitalization omitted.) He contends that the court impliedly found that Davis was entitled to a fair procedure and that, given this finding, it “was only empowered to determine whether First Health’s removal of Dr. Davis was or was not in conformity with the common law right of fair procedure.” We reject this challenge to the Order.
In support of his contention, Davis cites, among other cases, Pinsker II, supra, 12 Cal.3d 541. There, the high court held that where the dentist was entitled to and did not receive a fair procedure in connection with his application for membership in the orthodontist society, the error could not be cured by ordering a full court hearing on the merits. (Id. at pp. 556-557.) Rather, the applicant was entitled to a ruling by the association pursuant to a fair procedure. (Id. at p. 557.) The court observed, “[W]e believe as a matter of policy that the association itself should in the first instance pass on the merits of an individual’s application rather than shift this burden to the courts. For courts to undertake the task ‘routinely in every such case constitutes both an intrusion into the internal affairs of [private associations] and an unwise burden on judicial administration of the courts.’ [Citation.]” (Ibid.; see also Hackethal v. Loma Linda Community Hosp. Corp., supra, 91 Cal.App.3d at p. 64 [where hospital deprived physician of fair procedure before refusing his reappointment to medical staff, trial court “did the only thing it was empowered to do” in ordering that decision be set aside and that hospital conduct hearing consistently with fair procedure].)
These legal principles notwithstanding, Davis’s argument fails because it is founded on a false premise: that the court impliedly found that he was entitled to a fair procedure before First Health delisted him. As we have discussed (see pt. IV.A.2., ante), the court made no such finding and we will not imply a finding that would be inconsistent with our presumption that the court found in favor of First Health with respect to the “likelihood of prevailing” element that Davis was required to show in support of his application. (Moorpark, supra, 63 Cal.App.4th at p. 1402; see also Whyte, supra, 101 Cal.App.4th at p. 1451: “For purposes of appellate review, we therefore presume the court considered every pertinent argument and resolved each one consistently with its minute order denying the preliminary injunction.”) Moreover, were we to hold otherwise, we would be concluding that the court did not adhere to the above-described legal principles in Pinsker II, supra, 12 Cal.3d at pages 556 to 557; we would thus be presuming that the court did not follow the law. This we will not do. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [“it is presumed that the court followed the law”].) Because the court did not find that Davis was entitled to a fair procedure, its Order, contrary to Davis’s claim, did not constitute the court’s “usurp[ation of] First Health’s discretion in creating or applying a removal procedure.” We therefore reject Davis’s claim of error.
D. The Williamson Declaration
Davis contends that the court abused its discretion by allowing First Health’s submission of the Williamson declaration. He argues that the declaration should not have been considered because it (1) was not timely filed, (2) contained irrelevant matter, (3) evidenced that Williamson “ ‘pre-judged’ the complaints made [by others] against Dr. Davis” and thus the declarant lacked any credibility, and (4) lacked foundation because it failed to establish that Williamson had sufficient qualifications “to substantively criticize Dr. Davis’[s] services.”
It is not evident from the record that the court made specific reference to Davis’s written objections to the Williamson Declaration at the hearing or in the Order. However, in the penultimate line of the Order, the court states generally “... all objections are overruled.” Davis’s position that his objection should have been sustained is based upon the view that the Williamson Declaration should have been filed at the time First Health submitted its opposition papers. However, Davis himself contributed to the problem by presenting a significant amount of material concerning First Health’s market share in his reply papers. It is apparent that this material could have been presented in Davis’s application, rather than deferring its presentation until his reply. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶¶ 9:106.1, p. 9(I)-74 [discouraging reservation of arguments for reply papers that could have been made in motion].) Although the court did not reject any of Davis’s reply papers on this basis, and it was proper for the court to exercise its discretion in such a manner where the other party has an opportunity to respond (Alliant Ins. Services, Inc. v. Gaddy, supra, 159 Cal.App.4th at p. 1308), we do not find that the court abused its discretion by allowing the filing of the Williamson Declaration over Davis’s objection that it was untimely.
The reply included three declarations with voluminous exhibits. The three declarations, in the aggregate, comprise nearly 1100 pages of the appellant’s appendix.
We also reject Davis’s other grounds upon which he asserts that the court abused its discretion by overruling his objection to the Williamson Declaration. The objection that the declarant was not sufficiently qualified to evaluate Davis’s performance went to the weight of her opinions, and it was not an abuse of discretion in failing to reject the declaration on that basis. And while we may agree with Davis that the matters contained in the declaration had little relevance—and that, assuming the applicability of the fair procedure doctrine, First Health could not bolster its position that it complied with it by giving after-the-fact reasons for delisting Davis—there is nothing in the record to suggest that the court relied on the declaration in denying the application.
E. Conclusion
We conclude that the court did not abuse its discretion by denying the mandatory preliminary injunction Davis requested because this did not represent an extreme case in which Davis’s right to the relief was clearly established. We have concluded further that the court’s implied finding in favor of First Health on the “likelihood of prevailing on the merits” factor did not constitute an abuse of discretion. For these reasons, therefore, the court did not err in denying the application for preliminary injunction.
Since Davis would not be entitled to reversal unless we determined that the court abused its discretion in finding in favor of First Health with respect to both the “likelihood of prevailing on the merits” and “interim harm” factors (Cohen, supra, 40 Cal.3d at p. 286; Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, 785), we need not address Davis’s contention that the court abused its discretion in finding in First Health’s favor on the “interim harm” factor. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 845, fn. 5 [appellate courts will not address issues whose resolution is unnecessary to disposition of appeal].)
DISPOSITION
The order denying preliminary injunction is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.