In May 2011, Sim Carlisle Hoffman M.D. was indicted on 884 felony counts alleging healthcare insurance fraud in violation of section 550. Hoffman was the owner of Advanced Professional Imaging (API), Advanced Management Services (AMS), and Better Sleeping Medical Center (BSMC) in Buena Park, and prosecutors accused him of running a “medical mill” for the sole purpose of insurance over-billing without providing any legitimate treatment to patients.

Orange County District Attorney Tony Rackauckas and California Insurance Commissioner Dave Jones originally announced the hundreds and hundreds of charges against Hoffman, BSMC neurologist Dr. Michael Heric of Malibu, Hoffman’s administrator Beverly Mitchell of Westlake Village and API billing collector Louis Santillan of Chino Hills.

The 2011 indictment was ultimately dismissed in 2013 on the ground that the prosecution had failed to provide exculpatory evidence to the grand jury.

Rather than proceed by indictment, in January 2014, the prosecutors filed a felony complaint against Hoffman. The complaint alleged 159 counts of insurance fraud. One year and one-half later – after four amendments and two demurrers – the people filed a fifth amended complaint, alleging violations of section 550, subdivision (a)(5) (33 counts), subdivision (a)(6) (135 counts), and subdivision (a)(7) (one count).

The preliminary hearing began on September 1, 2015, and ended on November 23 of that year. The resulting transcript spanned over 2,300 pages. Over 53,000 pages of documentary evidence was submitted. During the preliminary hearing, the complaint was amended again. This final amendment contained 102 counts alleging a violation of section 550, subdivision (a)(6), and one count alleging a violation of subdivision (a)(5). Defendant was held to answer on all 103 counts.

Following the preliminary hearing, prosecutors filed an amended information containing 121 counts: 120 counts of violating section 550, subdivision (a)(6), and one count of violating subdivision (a)(5). the amended information, for each count, included both patient names and references to the preliminary hearing exhibit numbers containing the evidence relevant to the particular offense.

The court overruled a demurrer to several counts, finding notice to be adequate, and concluded the People were permitted to allege multiple acts that form the basis of each count. It cautioned, however, that there was still work to be done before setting a trial date to ensure the defendant had clarity on what he would need to defend against at trial.

In response, Hoffman filed the present petition for a writ of mandate directing the court to sustain the demurrer. The Court of Appeal initially summarily denied the petition. But the California Supreme Court granted review and instructed the Court of Appeal to issue an order to show cause.

The issue is whether an information may allege a single offense in a single count, but describe within that count multiple discrete acts, each of which constitute the charged offense.

The Court of Appeal just concluded this month that the information was proper and denied the writ petition in the published case of Sim Carlisle Hoffman v The Superior Court of Orange County.

Each count alleges a single offense. Any complications, or undue prejudice to defendant, arising from the fact that multiple discrete acts may constitute the charged offense in each count are adequately dealt with by a unanimity instruction at trial, or by other tools at the court’s disposal, such as a severance of counts, or trial continuances where appropriate. A demurrer on these grounds is not the proper vehicle to address defendant’s concerns.

The court correctly overruled the demurrer.