Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200800006272.
RAYE, J.
In the spring of 2003 defendant Medical Board of California (Board) brought disciplinary action against plaintiff Nizar Yaqub, M.D. Faced with a disciplinary hearing, Yaqub entered into a stipulation for settlement and order effective August 14, 2003. In March 2008 Yaqub filed a petition for administrative writ, requesting that the Board give him a “name-clearing hearing.” The Board filed a demurrer, which the trial court sustained without leave to amend. Proceeding in pro. per., Yaqub appeals, arguing his petition set forth the elements of duress; the court applied the wrong standard in evaluating his duress claim; public policy favors allowing Yaqub to litigate his claim; and because the charges against him were never proven, he is entitled to a hearing on the merits to clear his name. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2003, the Board filed disciplinary action against Yaqub’s medical license. The accusation alleged 21 causes for disciplinary action involving multiple patients and charges including negligent acts, gross negligence, incompetence, and dishonesty.
Stipulation for Settlement
Faced with revocation of his license, Yaqub instead entered into a stipulation for settlement and order adopted by the Board on July 15, 2003, and which became final on August 14, 2003. Under the settlement, Yaqub’s medical license was suspended for one year, and he was placed on probation for 10 years. Yaqub was required to take and pass a clinical training program, undergo a psychiatric evaluation, pass an ethics course, attend additional educational courses, and to have a practice monitor.
The settlement also provides: “4. Respondent has carefully read and understands the charges and allegations in the Accusation and the effects of this Stipulation for Settlement. [¶] 5. Respondent is aware of his rights, including the right to a hearing on the charges and allegations, the right to confront and cross-examine witnesses who would testify against respondent, the right to testify and present evidence on his own behalf, as well as to the issuance of subpoenas to compel the attendance of witnesses and the production of documents, the right to contest the charges and allegations, and other rights which are accorded respondent pursuant to the California Administrative Procedure Act... and other applicable laws, including the right to seek reconsideration, review by the superior court, and appellate review.”
The settlement also contained a waiver clause: “6. Respondent voluntarily, knowingly and intelligently waives and gives up each and every right set forth above. [¶] 7. For purposes of the settlement of the action pending against respondent in this matter, and to avoid a costly administrative hearing, respondent admits that the charges and allegations contained in the Accusation, if proven, would constitute a basis for imposing discipline upon his physician’s and surgeon’s certificate under Business and Professions Code section 2234. Respondent hereby gives up his right to contest those charges and agrees to be bound by the Division’s imposition of discipline as set forth in the Disciplinary Order below.”
Just above Yaqub’s signature, the settlement states: “I Nizar Abdul Yaqub, M.D., have carefully read the above stipulation. I enter into it freely and voluntarily and with full knowledge of its force and effect. I agree to be bound by the Order and Decision of the Division of Medical Quality, Medical Board of California.”
Yaqub’s Petition
On March 18, 2008, Yaqub filed a petition for administrative writ, alleging two counts. In count one, brought under Code of Civil Procedure section 1085, Yaqub stated he did not contest the Board’s disciplinary action, but rather requested the trial court compel the Board to give him a name-clearing hearing. Count two, brought under Code of Civil Procedure section 1094.5, challenged the Board’s decision after hearing denying Yaqub’s petition for early termination of probation.
The Board filed a demurrer to count one, which Yaqub opposed. The trial court sustained the Board’s demurrer to count one without leave to amend. The trial court found Yaqub failed to allege facts that show the Board had a duty to provide him a name-clearing hearing. The court noted Yaqub had an opportunity to contest the charges in a hearing before the Board in 2003; instead of litigating the charges, Yaqub entered into the settlement. According to the court, “A decision of the Medical Board may be challenged by a petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. However, pursuant to Government Code section 11523, the limitations period for such an action expired on September 15, 2003.”
The court also rejected Yaqub’s claim of duress in entering into the settlement, finding Yaqub “claims that he was forced to enter into that stipulation because, at the time, he could not afford a lawyer and the Board denied him a continuance of the administrative hearing. This court concludes these facts are not a sufficient basis to void the stipulation. Petitioner had no constitutional right to counsel [citation], and under the [Administrative Procedures Act] an [administrative law judge’s] denial of a continuance of an administrative hearing must be challenged in court within 10 days (Gov. Code sec. 11524(c)).”
Yaqub filed a motion for reconsideration, which the court denied. Following a hearing, the trial court issued an order denying count two of Yaqub’s petition. The court determined the Board’s findings “are supported by substantial evidence in light of the entire record, and that respondent’s findings support the decision to deny petitioner’s application for early termination of probation. Respondent did not err or abuse its discretion in denying petition[er]’s application....”
The court entered a judgment denying Yaqub’s petition for writ of mandate. Yaqub filed a timely notice of appeal.
DISCUSSION
I
A demurrer tests the sufficiency of a pleading by raising questions of law. In assessing the sufficiency of a demurrer, all facts pled in the complaint must be deemed true. If upon consideration of all the facts stated it appears the plaintiff is entitled to any relief, the complaint will be held good. If there is a reasonable possibility that a defect in the complaint can be cured by amendment, we must allow the amendment. The plaintiff bears the burden of demonstrating how the complaint can be amended. (White v. Lieberman (2002) 103 Cal.App.4th 210, 216.)
II
In count one, Yaqub seeks to compel the Board to grant him a “name-clearing hearing.” However, Yaqub also states he is not challenging the Board’s final administrative decision or order, nor is he challenging the terms of the decision. Instead, Yaqub “is seeking a remedy for a different claim other than the discipline of his license—the Respondent[’s] continuing violation of his liberty interest in his name without [a] prerequisite hearing.”
However, Yaqub provides no authority for his assertion that the Board must provide him a venue through which he can clear his name. The judicial review provisions in chapter 5 of the Administrative Procedure Act (APA; Gov. Code, § 11400 et seq.) provides that review of an administrative decision rendered under that chapter “may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure... within 30 days after the last day on which reconsideration can be ordered.” (Gov. Code, § 11523.) The settlement the Board and Yaqub entered into became the Board’s final decision on August 14, 2003. Therefore, the time period in which Yaqub could seek judicial review expired on September 15, 2003.
Yaqub seeks to avoid this bar by arguing his petition does not seek to challenge the Board’s final decision, but merely to clear his name of all charges and allegations contained in the accusation. However, these charges and allegations form the basis of the settlement he entered into, which became the Board’s final decision on August 14, 2003. In the settlement, Yaqub waived his right to a hearing on the very charges he now seeks to have reexamined in a “name-clearing hearing.”
Yaqub argues he is entitled to a special name-clearing hearing because he has a “liberty interest” that allows him to request and receive a special hearing. In support, Yaqub relies on Katzberg v. Regents of University of California (2002) 29 Cal.4th 300 (Katzberg).
In Katzberg, a professor who had been removed as a department chairman during an investigation brought an action against university officials, seeking damages for an alleged violation of his liberty interest under the state Constitution’s due process clause. (Katzberg, supra, 29 Cal.4th at p. 304.) The Supreme Court affirmed summary judgment in favor of the university. The Supreme Court held that an action for damages is not available for an alleged violation of a professor’s liberty interest under the California Constitution. (Katzberg, at p. 303.)
However, the Katzberg court also recognized that an at-will public employee’s liberty interests are deprived when his discharge is accompanied by charges that might seriously damage his professional standing or stigmatize him within the community. When such a deprivation of liberty occurs, the employee has a right to a “name-clearing hearing.” (Katzberg, supra, 29 Cal.4th at p. 305.) The court held that a tort action for damages was not available since the professor had other meaningful remedies available, such as a petition for writ of mandate under Code of Civil Procedure section 1085. (Katzberg,at pp. 326-329.)
In Katzberg, no statutory provision provided the professor with a formal hearing prior to his termination. In contrast, the APA, which governs disciplinary actions against physicians, provides for a formal hearing process subject to judicial review. (Bus. & Prof. Code, § 2230; Gov. Code, § 11500 et seq.) Yaqub, unlike the physician in Katzberg, had the opportunity in 2003 for a hearing to “clear his name” and address the accusations against him. Yaqub chose not to pursue this opportunity, waived it explicitly, and failed to appeal from the final decision.
III
Yaqub argues the hearing under the APA in 2003 was scheduled at a time when he was simultaneously involved in two other litigations with the hospital on the same matter, preventing him from proceeding with the hearing on the accusations. Yaqub’s request for a continuance of the 2003 hearing was subject to Government Code section 11524, subdivision (a), which vests the administrative law judge (ALJ) with authority to grant or deny a continuance upon a showing of good cause.
Government Code section 11524, subdivision (c) provides that if a request for a continuance is denied by the ALJ, the party must, within 10 working days of the denial, “make application for appropriate judicial relief in the superior court or be barred from judicial review thereof as a matter of jurisdiction.” Yaqub failed to seek review of the denial of his request for a continuance of the administrative hearing within the 10-day time frame. Accordingly, we will not entertain his claims concerning the denial of his request on appeal.
IV
Having waited over four years to challenge the accusations against him, Yaqub argues his “interest in his good name did not exist until 2005 when the hospital failed to grant him hearing on the merits and withdrew all accusations against him. Simply put, Yaqub’s claims of liberty interest were not ripe at the time of stipulation.”
Yaqub refers to the settlement of his litigation against Salinas Valley Memorial Hospital in 2005. However, that litigation involved a third party not involved in the present dispute. Nor was the Board a party to Yaqub’s litigation against the hospital. In the present case we are considering the independent disciplinary proceeding brought against Yaqub’s medical license by the Board.
In the trial court, Yaqub requested judicial notice of the federal district court order denying the hospital’s motion for summary judgment. The trial court denied the request, finding the litigation irrelevant to Yaqub’s petition against the Board. We agree with the trial court’s assessment: Yaqub’s subsequent settlement with the hospital is irrelevant to the Board’s accusation and the subsequent settlement Yaqub entered into.
V
Yaqub argues his petition established he entered into the settlement with the Board out of economic duress. The doctrine of economic duress can apply when a party has done a wrongful act that is sufficiently coercive to cause a reasonably prudent person, faced with no reasonable alternative, to agree to an unfavorable contract. The party subjected to the coercive act, having no reasonable alternative, can plead economic duress to avoid the contract. When a party pleads economic duress, the party must have had no reasonable alternative to the action it seeks to avoid. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644.)
The pith of Yaqub’s argument that the Board committed wrongful actions against him stems from the accusation and disciplinary proceedings that followed. However, the Board has a mandate to protect the public and is authorized to take disciplinary action against its licensees through the procedures authorized under the Government Code. (Bus. & Prof. Code, § 2229; Gov. Code, § 11500 et seq.) Yaqub fails to establish how proceeding against him in a statutorily mandated process amounts to a wrongful act by the Board.
In addition, Yaqub had a “reasonable alternative” to entering into the settlement. Yaqub rejected the alternative of proceeding to hearing to contest the charges in the accusation in 2003. Given the facts set forth in Yaqub’s petition, he cannot establish the elements of economic duress.
VI
Yaqub contends the public policy of providing fundamental fairness and due process favors allowing him to litigate his claims against the Board. According to Yaqub, “although the hearing offered by the Board may have complied with the prescribed formalities and was not unlawful, it did not adhere to fundamental fairness. Under the circumstances of strategic timing, interfering with other proceedings and obstructing Yaqub’s ability to have legal representation, it was the functional equivalence [sic] of denial of a hearing. In the end, examining the accusations on the merits is the only fair resolution to preserve Yaqub’s liberty rights in his name, independent of the tactical formalities used in this complex conflict. Public policy and the intent of the APA militate litigating the accusations on the merits.”
Courts have found a strong public policy against allowing a licensee to agree to and then later withdraw from an agreed-upon settlement: “With public health and safety at stake, considerations of public policy dictate against a system which would permit a licensee to abuse the process by first agreeing to, and months later withdrawing from, a stipulated settlement in order to delay the adjudication of the administrative action and allow the licensee to continue practice in the interim.” (Frankel v. Board of Dental Examiners (1996) 46 Cal.App.4th 534, 552.) Public policy does not favor allowing Yaqub to repudiate the settlement with its waiver provisions and litigate the accusations made over four years ago.
DISPOSITION
The judgment is affirmed. The Board shall recover costs on appeal.
We concur: NICHOLSON, Acting P. J., HULL, J.