Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CVCS05-1876
BLEASE, Acting P. J.
The Dental Board of California (Board) appeals from the trial court’s order dissolving a preliminary injunction after the trial court discovered on the second day of trial that the parties had entered into an agreement approximately five months earlier settling the case. The preliminary injunction had prevented defendant Rick Miller from practicing dentistry without a license. Although this case presented a single, simple question of statutory interpretation, that issue was never tried below. The Board now expects this court to resolve the merits of the case, ignoring the basic rule that our jurisdiction is limited to the review of a judgment or appealable order.
The Board brought this action to enjoin Miller from the unlicensed practice of dentistry, and was successful in obtaining a preliminary injunction that prevented Miller from providing dental services without a license in violation of the Dental Practice Act. Miller’s defense to the action was that he was exempt from the licensing requirements of the Dental Practice Act based upon an exception to the licensing requirements of the Medical Practice Act.
The parties eventually entered into a written agreement to settle the case. The Board never filed a written notice of settlement with the trial court, nor did it request dismissal of the case as required by California Rules of Court, rule 3.1385. Notwithstanding the settlement agreement prohibiting defendant from practicing dentistry without a license, defendant continued to do so, contending again that his practice fell within an exception to the licensing requirement.
The parties brought the matter to trial, and on the second day of trial, the court found that the settlement agreement was valid and that trial was unnecessary, and vacated the preliminary injunction.
The only appealable order made by the trial court and appealed by the Board is the order vacating the preliminary injunction. No judgment appears in the record. Nevertheless, the Board argues that in addition to reviewing the order vacating the preliminary injunction, we should determine the merits of the case, i.e., whether the licensing exemptions of the Medical Practice Act apply to the Dental Practice Act, whether Miller’s actions constitute the illegal practice of dentistry, and whether the settlement agreement of the parties effectively prevents Miller from performing dentistry services without a license.
We have no jurisdiction to review orders or judgments that were never rendered. Furthermore, we shall determine the trial court did not abuse its discretion in vacating the preliminary injunction, which by its terms was effective only pending trial of the case.
FACTUAL AND PROCEDURAL BACKGROUND
Miller, who has represented himself in pro per both here and below, holds himself out as a doctor of medical denturitry, a profession that is unregulated by the State of California. One of Miller’s advertisements explains that the education of a medical denturist is “centered around removable prosthesis and their interaction with the psychologic, physiologic, and biomechanical needs of the patient who no longer can maintain their natural teeth.”
The Board brought this action for injunctive and declaratory relief, seeking an order preventing Miller from practicing dentistry without a license, and seeking a declaration that unlicensed dentists who advertise dental or denturitry services are in violation of the Dental Practice Act. (Bus. & Prof. Code, § 1600 et seq.)
References to an unnamed section are to the Business and Professions Code.
The Board obtained a preliminary injunction. The injunction ordered Miller to “cease, pending trial of this action from: promoting, advertising, and providing dental services (including oral examinations, patient evaluations, and taking impressions) or any dental service as defined under Business and Professions Code section 1625.” Additionally, the injunction ordered Miller to cease, “the construction, alteration or repair of prosthetic or orthodontic devices when the casts or impressions have not been made by a licensed dentist or if made by a licensed dentist, . . . a written authorization signed by the dentist does not accompany the work order or the work is not performed under the direct supervision of the dentist.”
Miller moved to dismiss the case, arguing he was not required to be licensed as a dentist because the Dental Practice Act was changed by Senate Bill No. 577, codified at sections 2053.5 and 2053.6. In summary, these sections provide that a person who informs clients that he or she is not a licensed physician may perform certain services for the sick or afflicted without violating those provisions of the Medical Practice Act (§ 2000 et seq.) that require a physician’s or surgeon’s certificate.
The Board opposed the motion to dismiss on two grounds, one procedural and one substantive. First, it argued the motion was procedurally deficient because it was brought pursuant to Code of Civil Procedure section 1008, subdivision (c), a motion for reconsideration. Second, it argued the provisions relied upon by Miller were exceptions to the licensure requirement for the practice of medicine, but did not provide an exception to the licensure requirement for the practice of dentistry.
The trial court denied the motion to dismiss without commenting on the reasons for its ruling.
Shortly after the trial court denied the motion to dismiss, the parties entered into a settlement agreement. Miller agreed to comply with the Dental Practice Act, and to cease from practicing dentistry as defined by the Dental Practice Act. However, before the ink was dry on the settlement agreement, Miller informed the Board he again intended to offer “denture related services to the people of California” under the authority of Senate Bill No. 577.
The Board had earlier informed the trial court that the case had settled. This was done for the purpose of dropping a pending summary judgment motion from calendar. The court ordered the Board to file a request for dismissal. The Board did not send the trial court a written notification that the case had settled, as required by California Rules of Court, rule 3.1385, nor was any request for dismissal ever filed. Instead, when Miller informed the Board of his intent to continue his “denture related services” the Board filed an ex parte application for enforcement of the preliminary injunction, an order to show cause re: contempt proceedings, and a clarification of the court’s order denying Miller’s motion to dismiss.
The trial court found that Miller violated the preliminary injunction and found him guilty of contempt of court for willfully disobeying the preliminary injunction.
Notwithstanding the prior settlement agreement, the parties thereafter stipulated to a three-day court trial to begin September 26, 2006. On the second day of trial, the trial judge became aware that the parties had entered into a settlement agreement. The trial court allowed Miller to amend his answer to add the settlement agreement as an affirmative defense. The court informed the Board that if it wished to file an amended pleading alleging the breach of the settlement agreement, the court would declare a mistrial and allow the Board to file the amended pleading. The Board elected not to file an amended complaint, and the court limited the remainder of the trial to the issue of the validity of the settlement agreement. At the conclusion of the trial, the court ruled the settlement agreement was entered into knowingly and intelligently, and that the trial had been totally unnecessary. The court vacated the trial, but retained jurisdiction to enforce the settlement agreement as provided in the agreement. The court found the preliminary injunction had been superseded by the settlement agreement, and vacated the preliminary injunction.
The Board filed a notice of appeal. As is relevant here, the Board appealed from the trial court order dissolving the preliminary injunction, vacating the trial, and failing to declare the settlement agreement void.
Although not in the record, the Board states that it filed a second complaint against Miller in January 2007, for declaratory and injunctive relief, and that a temporary restraining order was granted in that case enjoining Miller from advertising dental services.
DISCUSSION
I
Appellate Jurisdiction
The Board makes three arguments addressed to orders never made and issues never ruled on by the trial court. First, it argues the Medical Practice Act exemption does not apply to the Dental Practice Act. Second, it argues Miller’s actions constitute the illegal practice of dentistry. Third, it argues the Dental Practice Act prohibits Miller from practicing dentistry without a license, regardless of the validity of the settlement agreement.
The right to appeal is wholly statutory. (Rao v. Campo (1991) 233 Cal.App.3d 1557, 1564.) A reviewing court has no jurisdiction over a direct appeal unless there is an appealable order or judgment. (Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1365.) In this case, the only appealable order issued by the trial court and appealed by the Board is the order vacating the preliminary injunction. We cannot review the merits of the dispute below regarding Miller’s claim he was operating under an exemption to the Dental Practice Act, or whether he was illegally practicing dentistry, because this issue was never resolved by the trial court in an appealable form.
Perhaps recognizing the limitations of this court’s jurisdiction, the Board argues in its “Statement of Appealability” that the case raises an issue of public policy that is of continuing public interest. However, the cases the Board cites stand for the proposition that a reviewing court may in some cases review a judgment or order that has been rendered moot due to intervening circumstances. (Black Diamond Asphalt v. Superior Court (2003) 114 Cal.App.4th 109, 115; Daly v. Superior Court (1977) 19 Cal.3d 132, 141.) They do not stand for the proposition that a reviewing court has jurisdiction where no judgment or appealable order was ever rendered. Accordingly, the Board’s request for judicial notice that other denturists who are unlicensed by the State are practicing and advertising their services is denied.
II
Order Vacating Preliminary Injunction
An order dissolving a preliminary injunction rests with the sound discretion of the trial court, and we will not overrule the trial court’s order absent an abuse of discretion. (Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 606.) An abuse of discretion occurs only if the trial court’s decision “‘exceeds the bounds of reason or contravenes the uncontradicted evidence.’” (Garcia v. County of Sacramento (2002) 103 Cal.App.4th 67, 81.)
The sole function of a preliminary injunction is to preserve the status quo pending a final judgment in the action. (MCA Records, Inc. v. Newton-John (1979) 90 Cal.App.3d 18, 24.) A preliminary injunction is temporary in nature and operates only until a judgment is rendered. (Shahen v. Superior Court of San Bernardino County (1941) 46 Cal.App.2d 187, 188.) The trial court operated well within its discretion when it determined that a case terminated by settlement should likewise terminate the preliminary injunction.
By the express terms of the preliminary injunction in question, which ordered Miller to cease operations “pending trial of this action”, the duration of the injunction was to end with the trial of the action, at which time the judgment would presumably have provided for a permanent injunction or no impediment would have been imposed upon Miller’s practice of denturitry. However, this matter was concluded not by trial, but by settlement agreement. Instead of a permanent injunction, the parties made an agreement pursuant to which Miller was prevented from practicing dentistry as defined by section 1625 and agreed to comply with section 1626. The settlement agreement provides that, “[t]he parties have concluded that it would be desirable and in the best interests of the Parties and the public to settle the disputes between the Parties, including, but not limited to, the Action,” and that, “[b]y this Agreement, the Parties intend to fully and completely resolve any and all remaining disputes between the Parties, including, but not limited to the Action.”
Thus, the settlement agreement was intended to end the legal action between the parties, even though it did not expressly provide for dismissal of the action. Moreover, California Rules of Court, rule 3.1385 provides that the plaintiff must request dismissal of the entire case within 45 days of settlement. If this is not done, the court must dismiss the case 45 days after it received notice of settlement. We cannot say that the trial court abused its discretion in dissolving the preliminary injunction, which by its own terms had run its course.
The Board argues the trial court abused its discretion by “(1) disregarding the fact that the Dental Board has already prevailed on the merits;[] and (2) failing to consider the irreparable harm to the public in dissolving the preliminary injunction.” The Board points to evidence presented at the trial to show it prevailed on the merits. A party does not prevail on the merits unless there is a ruling or judgment in that party’s favor. Here, there was no ruling or judgment on the merits in the Board’s favor.
As for the harm to the public, the Board drafted the settlement agreement. The agreement extracted certain assurances from Miller that he would refrain from the unlicensed practice of dentistry and would comply with the Dental Practice Act. Presumably, when the Board entered into this agreement, it believed these assurances were sufficient to protect the public. In fact, the Board states the settlement agreement “paralleled the terms of the preliminary injunction . . . .” Therefore, the preliminary injunction is no longer necessary, as it has been replaced by the terms of the settlement agreement.
The Board asserts numerous other instances of arbitrary and capricious conduct. However, many of these instances are related to the ruling on Miller’s motion to dismiss, the Board’s ex parte motion to enforce the preliminary injunction, or the contempt proceeding to enforce the preliminary injunction. No appeal was taken from any of these. The Board also asserts that certain instances of the trial court’s conduct during the trial were arbitrary and capricious. The only issue relevant to our review is whether the trial court’s decision to dissolve the preliminary injunction was within the bounds of reason subject to the legal principles governing the dissolution of preliminary injunctions.
To the extent the Board’s argument is that the trial court abused its discretion in dissolving the preliminary injunction because the settlement agreement was invalid, we find this argument unpersuasive. Only one of the arguments raised here against the agreement’s validity was raised below -- that there was a lack of mutual consent since Miller did not believe his activities were prohibited under the Dental Practice Act. However, it is the outward manifestation of consent that is controlling, not one party’s unexpressed understanding. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 116, p. 155; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) The fact that Miller, rightly or wrongly, believed an unexpressed exception applied to the Dental Practice Act and that he was covered by that exception does not affect the validity of the agreement.
Neither of the other two grounds by which the Board claims the agreement “may be” invalid, i.e., illegal consideration or no consideration, can possibly change our determination that the trial court did not aduse its discretion, since neither of these arguments was presented to the trial court. (Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1017, fn. 5; People v. Niles (1991) 233 Cal.App.3d 315, 321, fn. 5.)
DISPOSITION
The judgment (order) is affirmed.
We concur: MORRISON , J. CANTIL-SAKAUYE , J.