extensive here very thorough play a couple hundred pages here of the issues are discussed in great detail and i really don't have anything to add i do want to point out a couple of things subsequent to the close of briefing in my case i was removed from the top five hundred list without any explanation just like dr diorio was and i don't know of this is an attempt to move the issue or asked a couple of factual questions in your case do i have it correct that there was a period of twenty years from the notice that you're on how much time elapsed between and you received notice of going on the most correct i believe in two thousand and thirteen ok how much time passed between that notice in the revocation of the license your license i months six five six months something and is a similar distance in time in the other case i believe so i think there's a statutory time period that  notice of going on the list is insufficient in terms of due process for the revocation of a license well the argument with regard to the notice an opportunity to be heard is that there is no opportunity for a hearing to get off the list what the district court in both cases when you receive notice your the motor says you're on the list you're on the left in their list right it's doesn't say you can come in and talked to us about whether you should be on the list or not or you're going to go on the list in fifteen days if we don't hear from you the notice says you're on the list you're on the list and it says if you have questions call this number and then there's four ways to get corporation i set my salary below the reporting level i'm a low as earner in my office my secretaries and and legal assistance make many times what i then this is what's happened here so you've got all these m p s that are not based on actual income but some theoretical formula that they wouldn't they refused to produce in the litigation and discovery so we don't know what it notices of deficiency came out after twenty twelve would you have had a chance to challenge prior years before the f t p once you got those post twenty twelve notices or would be limited to challenging just the prior year or the prior couple of years well after a notice of an n p a is put out you have a slight amount of time to challenge and i believe it's sixty days and if you fail to do so it's final you can't subsequently challenge ok so from the one nine hundred ninety five i think is when the government says that was the beginning when you didn't file tax returns and they they started  amounts and the effort to tell you there are like five thousand ten thousand something like that so it becomes like a cost benefit issue am i going to spend twenty five or fifty thousand dollars to challenge these assessments when there's really not not much at stake of the in the fact that you're going to have a judgement against you and that that's the basic problem here because there is no notice that if you don't challenge those assessments and deal with them right then and there they say you know what twenty years down the road you may have your law license suspended or your medical license or your sta opportunity for a hearing you chose not to use that the determination became final and now the deprivation is based on these undisputed facts of these final determinations right but that's so why would you why should you have a second chance to challenge those determinations because those unforeseeable that these consequences would be result from failure to challenge what were the the i mean one of what is you don't and you have no ability to pay that you're going to end up in prison that's fundamentally unfair what if they say well you know if you're in that top five hundred list we're going to revoke your right to vote fundamental right is that it could anybody possibly for see that twenty years ago the taxes we're talking about or california income taxes correct correct and what are the years that you did not file well they starting in ninety five i believe  h like twenty eleven or twelve so for roughly from ninety five to eleven or twelve you filed no california income tax return i don't have to that's  did you during those years file federal returns it's the same thing you're below the threshold reporting requirement you don't have to it's somewhere around nine ten eleven thousand changes year to year but i've always operated under a professional corporation as as an employee and i set my salary so i'm not compensated by wages and there's something wrong with that bill gates makes what makes a dollar a year not that i'm bill gates but you know there's a lot of very well known influential corporate executives that take no salary or a nominal salary and there's nothing wrong with that and it seems to me like providing demonized for doing with a lot of these people routinely do that it's quite appropriate here after the two thousand and twelve legislation became effective were you made aware that i was not immediately aware that when you became aware of it i became aware of it when i got a notice from the f t v that we were interrupted my question when you became aware of the two thousand and twelve legislation and its consequences did you take any action yes i filed this lawsuit i need only filed suit for injunctive relief good morning your honor deputy attorney general matthew hein for the pelleas in the french rescue matter i'm joined by my colleagues from the deputy from the office of the attorney general will be taking about fifteen minutes on the twelve appellate ernest francesca a practicing attorney failed to pay any state income taxes or even file a tax return so you didn't know or didn't know anything was he supposed to do well there's no harm in filing tax return that says i don't know anything if it's a truthful statement if you're not required to file it because you're below the reporting limit which is no reason why a person would fall return you know any money well i think a sensible person would for the following reason because after you fail to file the return the f t c is required to make an assessment about whether it's it's likely that the person zero zero taxes or whether it's likely that the person is a tax and determine what they thought his return was likely as per court approved procedures and they determined that he made some substantial money as most attorneys do and then they gave him notice of the assessment in an opportunity to every taxpayer does to pay the tax and file refund action and the california supreme court the u s supreme court the ninth circuit have all found that this is a fully adequate due process for taxes for taxes  the state the judiciary has allowed the state to collect the tax first and let the taxpayer raise whatever kind of arguments they have about well i don't get paid anything looks like our hair apart from waterhouse coopers who do my tax return and  i do my taxes and my my accountant and p w c calls me up and says you know you don't we've looked at all your papers we looked at your l l c structure and so forth and so on and you know  not entitled to rely on i think you would be entitled to rely on it and if there was an assessment against you i would i think your accountants that p w c would say you should really fight this is testament we're happy to demonstrate that you don't owe anything but what we have in the case of mr francesca is somebody that for twenty years or more didn't filing tax returns and i don't think he's here to tell you that it is accountant told him that it was fine the hypothetical tell me about this refund action so he can go and challenge all of these prior starting in ninety five all of these prior assessments is that correct correct but only if you paid first correct ok said so now we have in tw twelve he's put on the top five hundred list and he's deprived of his driver's license and so he wants to have the opportunity to collaterally challenge the assessment see u before his driver's license is taken away correct so what's wrong with that why why why shouldn't he be able to do that i mean we have add in other contexts where you you can collateral a challenge a a prior ruling when for example there's criminal penalties in the immigration contact us will offer to me to be collaterally challenge in the superior court if he pays his taxes his license will be with licenses will be restored to them immediately while without prejudice to the action that's pending in the superior court immediately he will get his license back and he can raise whatever he wants to a real judge in challenging all the way up to the supreme court so the ram all the way back can be jones all the way back to two  refund is denied if it's denied you can follow your actions appear in court and get a judge to hear your action and give your in you and whether or not the judge agrees with you or disagrees with you you get your license back because you paid your tax so if that if the person has the wherewithal to to pay the taxes then that may be an adequate remedy as is what i'm hearing you say suggest but what if the person doesn't know the other complaint is the financial disability prong of the statute is inadequate it doesn't it it gives an unlimited unfettered discretion to the f t p and doesn't provide any procedures there are three responses to that the first is you're not going to want to hear this but the supreme court is that it really doesn't matter from a due process perspective whether or not you can afford to pay the tax as a due process part from of the due due process perspective you have this ability and we're not going to parse out whether or not you can afford to pay because you have this ability and one case are you relying on for that i would say so as to be afforded the affordability prong i would say modern barber colleges versus california table and his complaint was filed march fourteenth two thousand and fourteen so there's something wrong with that timeline and the third thing i want to say is that whatever the law used to be at the time that bridgette indecision came out the f changed now has a fully two lengthy regulations on point which give highly constrain the f t v on who they can get this financial hardship to and require them to give a financial hardship remedy to sure i fully understand the type of the hypothetical what the what the hypothetical is is putting to you is suppose it was the imposition in two thousand and twelve a consequence that was even more drastic then driver's license loss of the right to vote i think that the loss of the right to vote creates rates more fundamental problems than the right to drive and  obviously but the question is what does a volley due process i think i don't think it would violate due process i think it might violate other the time of the assessment and both after the the protect the full consequences could come into play that procedural due process is met now maybe the court might think well there's the taking away of voting right is unrelated to the collection of taxes license to practice law i think i think that the they have to be canon does  well i think that they have to be would say that there is a fully adequate opportunity at the time of the assessment and after the after the full consequences become known to pay your taxes and get it and get your law license back and you're saying the refund action as i heard you previously said that i personally have a full opportunity to litigate whether in fact those taxes were absolutely did novo without regard to what the f t v previously found if i may i'd like to at least address an issue that i counsel raised about being removed from the list i don't really think that's appropriate to address here because it wasn't in the complaint and this is on francesca matters on a demur so the trial court really didn't get a chance to address it this is a medical license that's correct because the statute the appropriate reading on the statute is that once you're on the list the only way to get on off the list is to pay the tax so that you can't pay the tax or enter into its payment plan or show that yeah those three in a payment plan pay the tax so that you can pay the tax that's the way you get your license back and that's the only way that the statute gives a taxpayer to get his license back and i think that's a credit to the statute and no one's ever pointed out what percentage of what procedural due process problem there is without i see fifteen minutes remaining so i'm going to hand it over r case is almost identical to this case appellant is actually making the exact same arguments against susan what's your answer the short answer your honor is there is no warrant search warrant needed for an undercover investigation and that investigators fuller mckenzie are entitled to qualified immunity and plaintiff has no excuse me appellant has not shown any type of deception which would invalidate the valid arrest warrant by which appellant was arrested so opposing counsel relies on this e mail that was  by deputy district attorney and it was a little confusing with the sequence of events was can you explain that yes your honor what happened was i'm sorry the sequence of events as far as the obtaining of the warrant or the the e mail coming to s so the e mail says that the investigation was based on of the complainants before the end or cover investigation i will clarify that for your honor the e mail is wrong it was written a year after the events by somebody who was not involved in the events what occurred was agent fuller the investigator fuller brought to a far on his investigative report with all of the attachments including the expert's report in both the investigative report and in the expert's report they make mention of the fact that the administrative of best investigation in this matter was initiated by way of the two complaints that were received that questioned whether appellant was mentally mentally fit to practice medicine once that investigation was opened it was learned in fact through materials provided by appellant himself that his license had been suspect ended and once it was suspended then the question arose as to whether or not he was continuing to practice medicine despite the suspension of his license therefore we've now had two parallel investigations an administrative one and a criminal one about eventually judge toler zano both of whom agreed with the contents and the opinion of the expert that was in the investigative report that appellant was in fact practicing medicine during these two undercover that she only relied on the expert's report and the expert's report was very clear that it had to do with the two undercover operations that investigator mackenzie took part of and in fact the dates on the warrant are specific to those two dates is the is his use the doctor's use of the on his paperwork is the avenue for a violation of i think it was was it twenty fifty two twenty fifty doctor if you do not have a license you then have to look at twenty fifty three point five and twenty three twenty fifty four and they more fully explain what is considered the practice of medicine so w twenty fifty two says you can't do it these other statutes tell you what constitute do it look constitutes doing it and included in that is holding yourself as a doctor using m d behind your name using dr before your name in this particular instance we had numerous brochures that were made available to investigator mackenzie that were given to her a membership agreement appellants a business card and then of course with it during the investigation he said i your honor the both the issues about the undercover investigation and in fact the issue about the probably cause probable cause for arrest are covered by the forster case and this circuit need look no further than that then its own is mental state ability or something like that the predicate for the administrative of this investigation yes was complaints by two patients who questioned his fitness to practice medicine based upon his behavior in the administrative investigation discover that his license had been revoked because of the statue were all been talking about that is correct your honor and once that occurred and it appeared that there may be a possibility that we had him continuing to practice medicine since in his the paperwork that he prevent presented to the medical board which was then given to investigator fuller he basically said he didn't believe that the that the suspension was a valid suspension that then raised the question on whether he was continuing to practice medicine despite the the suspension which then once it once it was looked into and then started this could the criminal and the concurrent criminal investigation  income tax returns my understanding is that he did not your honor that he was in fact i fessed amounts that he was owed much in the same way  was your honor this is an issue excuse me a situation where qualified immunity is clearly needs to be applied here investigators mckinsey and fuller were doing their job as they were supposed to do they did it correctly appellant has shown no evidence whatsoever that there has been any type of judicial deception or recklessness or omissions that would justify that qualified immunity not be applied to minor and the fourth amendment yes your honor the there was no there was act the well there's two distinct claims that the appellant is making the first is as to the undercover investigation no warrant was needed no probable cause was needed the investigator mackenzie was invited in former the law is very clear on the second one is as to the arrest itself and as to the arrest itself qualified immunity applies and there is there has been no showing of anything that would affected by this court's ruling on the validity of the statute under which dr de oreo's license was suspended but regardless of the court's ruling on business and fashion code for ninety four point five the law is clear that investigators mckenzie and and fuller are entitled to qualified immunity and the district court's granting of summary judgment in their favor was correct and it should be affirmed thank you well i'm hearing for the first time that there was both a criminal and an administrative investigation i believe the record only bears out one investigation and the issues with dr g oriole the fourth amendment default duplicitous response is when asked about the probable cause leading up to believe that he was practicing medicine without a license he couldn't articulate anything here but the record shows you it seems to me as i read the record shows he was practicing medicine without a license and what's the dispute he had called himself a doctor at these cards there was all this in detail around his office that he was a doctor the agreement that the patients didn't fart in as a m d will use an m d that's not a false statement but he wasn't charged with that statute of using it and the initials a m d he was charged with practicing medicine the court you know and you know there's people that call themselves j d that are members of the bar so i don't see anything wrong with that but that's not the issue here the there's a very specific issue with regard to the charge of practicing without a license and that had to do with a disputed fact the undercover operative alleged that dr diorio offered to draw blood which he of the officers who swore at the warrants or took the steps they did didn't have probable cause well i asked mr faller it is deposition to do just that tell us what the probable cause what is and he couldn't do it well let's not be here no there because it's an objective standard what he had in his mind is not determined in the direct of standing when we asked him for a specific sound i understand that but that's not deliberate deception i think was the evidence and i think there's a substantial inference based on the email from the district attorney and when you look when you look at the totality of duplicitous deposition responses the e mail from the district attorney his own testimony that he was there for an hour and just sat there and said nothing which is contradicted by the e mail it's pretty clear there's an inf jury can can find that he slanted the case he presented a false case to confuse the d a to believe that the practice of the unlawful practice of medicine court cases on point he cited one modern barber college so the fact that it would be three hundred fifty thousand or whatever it was you'd have to pay and they have a ability to challenge the entire amount and that itself doesn't create a due process issue i completely disagree with that well that's why it is in the federal level if you don't pay you if you want to contest to federal income taxes you pay for well that's true but you're not talking just about contesting taxes right well you have the opportunity to challenge it initially and then the at the point where you understand the consequences opposing counsel says you have another opportunity to challenge it and you could challenge the full amount going back to one thousand nine hundred five and so between with those two it isn't you do have an opportunity to collaterally challenge the the assessments to answer this to that first of all you've got to have the money to do it and secondly doing it you pay and sue you can do that we can file suit your position that's inadequate well it's inadequate here because none of those cases it can also talked about was there an issue of somebodies in medical license or license to practice law or driver's license being taken away those weren't at play there it was dollars and sense whether or not the taxes up you know one of the problems here is even though you're off the list you don't get your license back because that's the statute provides for that i think i think i think he said and you can correct me if you have a different understanding that the moment you pay these taxes you get the license back well that's what he says but now the predicate is that i'm sorry but the predicate for the suspension is you're gonna be on the west you're not on the list they can't deprive  fundamental fairness requires that if you're no longer on the list for whatever reason you can be taken off the list because they find you and collectible i heard that in deposition testimony from the pm kerry you can be taken off the list because you filed bankruptcy so what so you file bankruptcy take you off the list but the taxes don't get discharged but they don't put you back on the list and they still withhold your weismann's so there's no remedy here you're held the limbo and you can even go to another state if you have your medical license suspended in california no other state will give you one owe your lot you get your license back the next day your position is that that does not happen and has not happened with respect to yourself and your client well i don't know because i i did not pay the amounts alleged so neither did dr diorio so i don't know what would have happened if if i had that kind of money sitting in the bank to write a check i don't know what would have happened to be very honest with you and i don't know anybody that's ever is written a check to pay the taxes you know these are human get some outs and you know you counsel talks about it casually well it's pay the taxes and soon but some of these are millions of dollars you know i just looked on the list yesterday that the number one debtor owes twenty six million two hundred sixty thousand dollars that's who's who can write a check for that so that we don't know how much money he made but it's it's the bottom line is the remedy is not in the statute unless the court has any other questions i'll submit