Filed 7/31/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

SEAN CARDILLO et al.,

Real Parties in Interest.

 No. B246745

 (Los Angeles County 

 Super. Ct. No. BA389476)

ORIGINAL proceedings in mandate. Bob S. Bowers, Judge. Writ granted.

Jackie Lacey, District Attorney, Phyllis Asayama, Roberta Schwartz and 

Cassandra Hart, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Joseph F. Walsh for Real Party in Interest Sean Cardillo.

No appearance for Real Party in Interest Andrew Cettei.
2

The question before us in this writ proceeding is whether a person who does 

not have a medical license or certificate may be criminally charged with practicing 

medicine without a license in violation of Business and Professions Code section 

20521for owning a corporation that operates a medical marijuana clinic in which 

licensed physicians examine the patients and issue medical marijuana 

recommendations to patients. We conclude that the owner of the corporation may 

be so charged, and order the respondent trial court to vacate its order dismissing 

the practicing medicine without a license charge alleged against real parties in 

interest Sean Cardillo and Andrew Cettei.

BACKGROUND

A preliminary hearing was conducted on a 13-count felony complaint filed 

by the Los Angeles County District Attorney against Cardillo and Cettei. Because 

this writ proceeding raises an issue of law as to one of those counts -- for 

practicing medicine without a license in violation of section 2052 -- our discussion 

of the evidence presented at the preliminary hearing will be limited to the evidence 

relevant to that count. That evidence included the following.

In January 2010, Medical Board Investigator Thomas Morris began an 

investigation of Kush Dr., a medical marijuana clinic operating at two locations in 

Venice, California -- 1313 Ocean Front Walk (the 1313 location), and 1811 Ocean 

Front Walk (the 1811 location) -- after receiving a formal written complaint that 

those locations were operating as an illegal medical marijuana clinic. In records 

Morris received from the California Secretary of State, Cardillo is listed as agent 

 

1

Further undesignated statutory references are to the Business and Professions 

Code.
3

for service for Kush Dr., LLC.2 Other records Morris obtained from the Secretary 

of State show that Cardillo is chief executive officer of two other businesses at the 

1811 location: Canna Merchant and Herbalology. Herbalology was a medical 

marijuana dispensary located on the second floor of that location, and Canna 

Merchant was a smoking lounge also located on the second floor. 

Morris went to both the 1313 and the 1811 locations and met with the 

physicians who were seeing patients and issuing medical marijuana 

recommendations. The physician at the 1313 location, Dr. Karns, told Morris that 

he was hired by “Andrew” (i.e., Cettei), that his hours were set by Cettei, and that 

he received one-third of the money collected from patients at that location. The 

physician at the 1811 location, Dr. Hanson, told Morris that he was hired by Cettei, 

that Cettei was in control of the practice, and that he was paid by Cettei from the 

proceeds of the recommendations he wrote, although he was not sure of his rate of 

pay.

3

 

In addition to speaking with the physicians, Morris entered the examination 

room at each location. Both rooms were small, similar to a closet. Neither room 

had an examination table or other equipment required to conduct a proper medical 

examination, other than a blood pressure cuff and a stethoscope. Only the room at 

the 1811 location had running water. 

 

2 Although Morris initially obtained documents indicating that Cardillo was the sole 

owner of Kush Dr., he ultimately received information that Cardillo and Cettei each 

owned 50 percent of the company. 

3 Morris subsequently spoke with a third doctor, Dr. Serebrin, at one of the locations 

during the execution of a search warrant. Dr. Serebrin told him that he was hired by 

Cettei, and that he was paid one-third of the daily profits. It is not clear from the record 

whether the profits Dr. Serebrin referred to included the profits from the sales of 

marijuana or was limited to the amount the patients paid for the medical marijuana 

recommendations. The lack of clarity, however, does not affect our analysis of the issue 

here.
4

While he was at the 1811 location, Morris also spoke to Cettei. When 

Morris told him that licensed physicians must be in charge of medical clinics, 

Cettei responded that he had a contract showing that Dr. Karns was in charge of 

the 1313 location. Cettei gave Morris a copy of a lease agreement showing that 

Kush Dr. was the lessor of the premises at the 1313 location and Dr. Karns was the 

lessee; Cettei signed the agreement on behalf of Kush Dr. The agreement provided 

that Dr. Karns, as lessee, would use and occupy the premises to see patients as 

scheduled by the lessor, that the money collected from the patients would be 

divided between the lessor and the lessee (with the lessee receiving one-third of the 

daily profits), and that the lessor would be an agent for the collection of the patient 

fees.4 

As part of the investigation of Kush Dr., three undercover agents went to the 

clinics to get medical marijuana recommendations. They observed people standing 

in front of each clinic, holding signs and telling passersby that they could “get 

legal,” i.e., become a legal medical marijuana user. Although none of the agents 

actually had any physical ailment, each of them entered the clinic and told the 

physician he or she had certain symptoms; one said he got headaches from 

overdrinking, another said he had insomnia, and the third said she could not relax. 

In each instance, the agent was given a minimal medical examination by the 

physician, who then provided the agent with a medical marijuana 

 

4

The lease agreement, which was introduced into evidence by counsel for Cardillo, 

was not included in the exhibits filed in support of the writ petition; our description of its 

contents is based upon Morris‟ testimony. We note that when Cardillo‟s counsel 

questioned Morris about the terms of the agreement, he generally referred to Cettei, or 

Cettei and Kush Dr., as the lessor. 
5

recommendation.5 When one of the agents disputed the amount he was charged for 

the recommendation, the dispute was settled by Cettei. The two agents who went 

to the 1811 location were told by the physicians who saw them that they could 

purchase medical marijuana upstairs. 

Following the presentation of evidence, Cardillo and Cettei moved to 

dismiss the charge of practicing medicine without a license, on the ground that 

neither Cardillo nor Cettei treated any patients and instead merely provided 

management services. The magistrate, finding that section 2052 applies only to 

persons who actively treat patients, granted the motion to dismiss that charge. 

The District Attorney subsequently filed an information that included a 

count for practicing medicine without a license in violation of section 2052 (count 

14). Cardillo and Cettei moved under Penal Code section 995 to dismiss, among 

other counts, count 14. The court granted the motion as to that count, agreeing 

with magistrate‟s interpretation of section 2052. The District Attorney filed a 

petition for writ of mandate challenging the trial court‟s ruling, and we issued an 

alternative writ of mandate directing the trial court to either vacate its order 

granting the motion and enter a new order denying the motion or show cause why a 

peremptory writ of mandate should not issue.

DISCUSSION

Section 2052 provides in relevant part: “Notwithstanding Section 146, any 

person who practices or attempts to practice, or who advertises or holds himself or 

herself out as practicing, any system or mode of treating the sick or afflicted in this 

state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, 

 

5 One of the agents was examined at the 1313 location, by a physician other than 

Dr. Karns. One of the two agents who were examined at the 1811 location met with a 

physician other than Dr. Hanson. 
6

deformity, disease, disfigurement, disorder, injury, or other physical or mental 

condition of any person, without having at the time of so doing a valid, unrevoked, 

or unsuspended certificate as provided in this chapter or without being authorized 

to perform the act pursuant to a certificate obtained in accordance with some other 

provision of law is guilty of a public offense, punishable by a fine not exceeding 

ten thousand dollars ($10,000), by imprisonment in the state prison, by 

imprisonment in a county jail not exceeding one year, or by both the fine and either 

imprisonment.”6 (§ 2052, subd. (a).) 

In opposing defendants‟ motion to dismiss the section 2052 count before the 

preliminary hearing magistrate, the prosecutor relied upon the “operates for” 

language of the statute, arguing that it prohibits “any layperson from operating a 

facility.” The magistrate rejected that interpretation, observing that the statute 

“doesn‟t say „operate a facility.‟ It‟s operating for a cure. That‟s what it refers to.” 

In its writ petition, the District Attorney for the most part ignores the 

language of the statute, and focuses instead upon case law involving disciplinary 

proceedings against a licensed dentist for aiding and abetting the unlicensed 

practice of dentistry by a corporation (Painless Parker v. Board of Dental Exam.

(1932) 216 Cal. 285 (Painless Parker) and against a physician for aiding and 

abetting the unlicensed practice of medicine by co-owners of the clinic at which 

the physician worked, who performed administrative work for the clinic 

(Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458 (Steinsmith)). In each 

 

6

The punishment portion of section 2052 was amended between the time the 

investigation of the events at issue took place and the preliminary hearing. Before the 

amendment, which was made as part of the recent criminal justice realignment in 2011 

(Stats. 2011, ch. 15 (A.B. 109), § 11), the punishment portion stated: “„punishable by a 

fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by 

imprisonment in a county jail not exceeding one year, or by both the fine and either 

imprisonment.‟” (See Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1404.) 

The amendment does not affect our analysis of the statute here.
7

case, the court found that a person who merely owns a clinic or facility and 

administers its business affairs is practicing medicine (or dentistry) and therefore 

must be licensed. As stated by the Supreme Court in Painless Parker, “we are not 

prepared to hold with the contention that a corporation or an unlicensed person 

may not be prevented from managing, conducting or controlling what petitioner 

terms the „business side‟ of the practice of dentistry. The law does not assume to 

divide the practice of dentistry into such departments. Either one may extend into 

the domain of the other in respects that would make such a division impractical if 

not impossible. The subject is treated as a whole.” (Painless Parker, supra, 216 

Cal. at p. 296.) The court explained the justification for not allowing this division: 

“If [the licensed professional] owed their first allegiance to their employer, the 

corporation, . . . then they owed but a secondary and divided loyalty to the patient. 

This was denounced as not within the intendments of the law and practice.” (Id. at 

p. 297.) The court in Steinsmith held that the Supreme Court‟s reasoning applied 

equally to medical practice. (Steinsmith, supra, 85 Cal.App.4th at p. 466.)

In his return to the alternative writ of mandate, Cardillo argues that the 

District Attorney‟s reliance on Painless Parker and Steinsmith is misplaced 

because those are disciplinary, rather than criminal, cases. He contends that under 

Keeler v. Superior Court (1970) 2 Cal.3d 619, he may not be criminally prosecuted 

for practicing medicine without a license because section 2052 “does not give fair 

warning that it applies to non-professionals who operate a medical clinic and hire 

doctors to treat patients at the clinic.” 

In reply to Cabrillo‟s return, the District Attorney argues that section 2052 

provides fair warning because it unambiguously makes it illegal for an unlicensed 

person to “practice[] . . . any system or mode of treating the sick or afflicted” 

(§ 2052), which would include “the operation of medical clinics to treat sick 

people by exclusively prescribing marijuana and selling it to them.” We agree. 
8

As the District Attorney notes, the evidence presented at the preliminary 

hearing indicates that Cardillo and Cettei, as co-owners of Kush Dr., operated 

clinics solely for the purpose of providing medical marijuana recommendations. 

As co-owners of Kush Dr., they controlled the operations of the clinics by 

employing licensed physicians to issue recommendations for medical marijuana, 

setting the physicians‟ hours, soliciting and scheduling patients, collecting fees 

from the patients, and paying the physicians a percentage of those fees. In short, 

defendants set up a system or mode for treating the sick or afflicted in violation of 

section 2052. The fact that neither Cardillo nor Cettei actually examined any 

patients or prescribed medical marijuana to them does not absolve them of criminal 

liability for practicing medicine without a license. Section 2052 clearly prohibits 

an unlicensed person from either “practicing . . . any system or mode of treating 

the sick or afflicted” or diagnosing, treating, or prescribing for any disease or 

ailment. Therefore, we conclude the trial court erred by dismissing the practicing 

medicine without a license count. (Rideout v. Superior Court (1967) 67 Cal.2d 

471, 474 [“An information will not be set aside or a prosecution thereon prohibited 

if there is some rational ground for assuming the possibility that an offense has 

been committed and the accused is guilty of it”].) 
9

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court to: 

(1) vacate its order granting defendants‟ motion and dismissing count 14 (violation 

of § 2052, subd. (a)) of the amended information filed on July 6, 2012; and 

(2) enter a new and different order denying defendants‟ Penal Code section 995 

motions to set aside count 14 and reinstating count 14, a violation of section 2052, 

subdivision (a). 

CERTIFIED FOR PUBLICATION

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.