Opinion
A147946
10-13-2017
WILLIAM Y. MOORES, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, DIVISION OF MEDICAL QUALITY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC 12 518500)
Plaintiff William Y. Moores, a physician licensed to practice in California, appeals from an order granting summary judgment to defendants the Medical Board of California, Division of Medical Quality (Board), Sharon Levine, as president of the Board, and Linda K. Whitney, as executive director of the Board, on his third amended complaint (TAC). Moores is the subject of a probation order that was imposed by the Board in 2001. The TAC alleges causes of action against defendants for violation of his due process rights, and for failure to comply with an alleged mandatory duty to disclose certain details of his probation status to a prospective employer. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff alleges that he is a physician and that he has continued to maintain his medical license certificate with the Board. The Board is responsible for issuing medical licenses and for administering appropriate discipline to its medical licensees. (Bus. & Prof. Code, § 2004.) I. Pre-lawsuit
All further statutory references are to the Business and Professions Code unless otherwise specified.
The Board issued a license to practice medicine to plaintiff in 1974.
In a letter dated November 27, 1998, plaintiff was notified of the suspension of his employment as a cardiothoracic surgeon with The Permanente Medical Group (Kaiser). Reportedly, the action was being taken, in part, "because of the numerous quality concerns regarding your practice . . . ." Plaintiff was informed that a report of this action would be filed with the Board. His employment was formally terminated effective September 23, 1999.
On January 22, 2001, the Board filed an accusation against plaintiff for unprofessional conduct. The accusation includes nine causes for disciplinary action involving eight patients, based on gross negligence, incompetence, and repeated negligent acts.
On September 6, 2001, plaintiff entered into a stipulated settlement and decision (Settlement Agreement) with the prosecuting deputy attorney general in order to resolve the disciplinary proceedings against him. The Settlement Agreement contains proposed terms of discipline, including placing him on probation for a term of five years under various terms, restrictions, and conditions. One condition required him to obtain clinical training through the University of California's physician assessment and clinical education program. Another of the conditions provided for the tolling of probation should plaintiff leave California or not practice medicine in California. "Non-practice" was defined as "any period of time exceeding thirty days in which [plaintiff] is not engaging in any activities defined in Sections 2051 and 2052 of the Business and Professions Code."
Section 2051 provides: "The physician's and surgeon's certificate authorizes the holder to use drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions."
Section 2052 provides: "(a) 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, 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 pursuant to subdivision (h) of Section 1170 of the Penal Code, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment.
"(b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision.
"(c) The remedy provided in this section shall not preclude any other remedy provided by law."
On October 3, 2001, the Board issued a written statement adopting the Settlement Agreement as its decision (Decision), resolving the disciplinary proceedings against plaintiff. The Decision became effective November 2, 2001.
In a letter dated November 5, 2001, to Catarina Le, an investigator with the Board's probation unit, plaintiff stated: "For the immediate present I will declare that I am not going to be engaged in the practice of medicine." (Italics added.)
On January 5, 2002, plaintiff informed Le that his "practice situation ha[d] not changed" since his November 2001 letter.
In a letter dated April 22, 2002, plaintiff informed Le that "I have not resumed a practice of cardiovascular surgery, and I have not sought hospital privileges at any hospital at this time." He reiterated this same practice status in letters dated July 10, 2002, October 7, 2002, and January 16, 2003.
On August 6, 2002, plaintiff submitted a self-styled "whistleblower" complaint to the Board's enforcement program alleging that certain parties associated with Kaiser had violated the fraud provisions of the California Medical Practice Act. The allegations related to Kaiser's former chief of cardiovascular surgery, who was then the subject of a malpractice action in the State of Wisconsin in which plaintiff had served as an expert witness on behalf of several patient plaintiffs. Plaintiff also alleged certain of these Kaiser parties had conspired to destroy his reputation after learning he was a source of information implicating the former chief.
On December 23, 2002, the Board's enforcement program notified plaintiff it would not undertake an investigation of his complaint.
On January 24, 2003, plaintiff filed another complaint with the Board containing allegations similar to the ones contained in his earlier "whistleblower" complaint.
On February 19, 2003, the Board notified plaintiff it would not undertake an investigation of his new complaint.
On March 11, 2003, the Board sent plaintiff a letter indicating that his probation had been in tolled status since November 2, 2001, due to his failure to resume the practice of medicine. Reportedly, he had indicated during a recent interview with Le that his primary work at that time was consulting and providing expert testimony in malpractice suits for plaintiffs in Wisconsin.
In a letter dated April 15, 2003, Robert K. Garcia, an investigator assistant with the Board's probation unit, informed plaintiff that his probation was in " 'Pended' " status, meaning "that the terms and conditions of your probation with the . . . Board . . . are held in abeyance until such time that you decide to return to the practice of medicine." Plaintiff subsequently sent letters to the Board contesting the tolling of his probation. He claimed he was engaged in his own general practice of medicine in that he was seeing approximately five to 10 patients a month on a volunteer, unpaid basis. He also stated that he had secured a nonpaying position in cardiothoracic surgery at the University of California, San Diego.
A quarterly probation report submitted on July 30, 2003, described a meeting between plaintiff and a Board investigator in which they discussed whether he was engaging in the practice of medicine. Plaintiff reportedly described three recent instances in which he had provided medical advice, including telling a man he encountered in a copy store to take Motrin for knee problems. He also advised a female chef at a restaurant he frequented that general anesthesia was an option for a breast biopsy. Subsequently, the investigator notified him that his probation status remained tolled due to nonpractice of medicine.
On July 9, 2004, a deputy attorney in the Office of the Attorney General wrote a letter to plaintiff in response to his complaint that the Board had erred in tolling his probation. The attorney stated her finding that his probation was properly tolled because his reported conduct did not qualify as the practice of medicine.
In a letter dated November 4, 2004, plaintiff submitted to the Board a statement giving them 30 days' notice that he would be returning to the "remunerative practice of medicine" with the Department of Veterans Affairs in San Diego on or after December 4, 2004.
On January 12, 2005, Sandra Hayes, the medical staff coordinator for the Department of Veterans Affairs San Diego Healthcare System (VASDHS), sent a letter to plaintiff requesting information regarding the status of his probation, including a request for the contact information for the person supervising his probation.
On January 25, 2005, Hayes sent a letter to Virginia Gerard at the Board's disciplinary unit, asking whether plaintiff had "complied with the terms of stipulated agreement and probation." Hayes indicated that the VASDHS wished to employ him "to do compensation and pension examinations in one of our community clinics if that is congruent with the terms of his probation." Gerard did not provide a written response to Hayes, though they reportedly spoke by telephone on at least one occasion. A memorandum prepared by Gerard on February 3, 2005, reports that she referred Hayes to the Board's Web site for information on plaintiff's practice limitations. When Hayes asked if plaintiff had a "restricted license," Gerard responded that the VASDHS would have to decide if plaintiff met its license status criteria based on the information on the Board's public Web page.
In a memorandum dated July 27, 2005, Gerard indicated Hayes had informed her that VASDHS officials had decided plaintiff's license was restricted, and that he could not be employed there until after his probation was completed.
On August 4, 2005, Arnold Gass sent plaintiff an e-mail message stating: "We have received the reply from our Medical Center attorney regarding your Medical License. Because the wording that, until 11/2006, you would have to be proctored should you resume doing procedures, we cannot credential you here at VASDHS at this time. I am very sorry at this outcome since we could certainly have used your skills and talents in our Compensation and Pension (C&P) Section."
On January 17, 2007, plaintiff wrote to the Board, stating that he was continuing to engage in a volunteer medical practice "whereby I have treated my patients primarily by providing them with medical knowledge and advice regarding preventing disease and staying healthy rather than treating specific conditions with prescription drugs and physician procedures." He claimed there had never been a period of 30 days or more when he had not been "engaged in the practice of medicine in California as defined by Sections 2051 and 2052 of the Business and Professions Code."
On March 24, 2010, the Board sent plaintiff a letter indicating he had not made contact with the Board's probation unit to update his status, and advising him that his probation was still being tolled.
On April 5, 2010, plaintiff responded to the March 24 letter, stating that he was continuing to treat patients without compensation.
On March 24, 2011, the Board sent plaintiff a letter indicating he had not made contact with the Board's probation unit in over six months, and notifying him that the term of his probation was not running because he was not practicing medicine in California.
On March 31, 2011, plaintiff sent the Board a letter indicating, in part, his belief that he had satisfied all the requirements of his five-year probation as of January 17, 2007. He asserted the continued tolling of his probation was improper.
On September 21, 2011, plaintiff filed a claim with the California Victim Compensation and Government Claims Board (Claims Board). The claim was for "damages resulting from the continuing breach by the [Board] of the settlement agreement with [plaintiff]." Further documentation attached to plaintiff's claim states the date the initial injury by the Board occurred was March 11, 2003, the date of the Board's letter indicating that he had " 'reported to the Board that [he had] not . . . practiced medicine in any capacity.' " He indicated that "[t]he incident (i.e., breach of the Settlement Agreement) is on going with the most recent documented date of occurrence being March 31, 2011." He claimed the amount of his damages was $4,080,000.
In a letter dated September 30, 2011, the Claims Board indicated that it was accepting his claim "only to the extent it asserts allegations that arise from facts or events that occurred during the six months prior to the date it was presented." He was told his claim would be rejected on October 20, 2011, allowing him to "initiate litigation should [he] wish to pursue this matter further."
On October 20, 2011, the Claims Board rejected plaintiff's claim. II. Petition to Terminate Probation
On August 8, 2011, plaintiff filed a petition for penalty relief with the Board, seeking termination of his probation. He included an extensive brief with 50 attached exhibits.
In a letter dated August 17, 2011, the Board informed plaintiff that it had accepted his petition and was requesting a background investigation. He was told that when the investigation was complete his petition would be transmitted to the Attorney General's office so that a hearing could be scheduled.
On April 8, 2013, an administrative law judge (ALJ) issued a proposed decision after a hearing in which plaintiff represented himself, granting his petition to terminate his probation. In part, the ALJ found that "preventative medicine and advice on life-style choices by a physician" are activities that fall within the scope of section 2051.
On May 3, 2013, the Board issued an order of nonadoption of the ALJ's proposed decision.
On May 31, 2013, the Board issued an order stating that it would decide plaintiff's petition on the record and upon such written argument as the parties wished to submit. Oral arguments were heard on July 18, 2013, before the Board. Plaintiff neither attended the hearing nor submitted any written arguments.
On August 6, 2013, the Board issued its decision denying plaintiff's petition seeking termination of his probation. The Board concluded that "[p]roviding advice on nutrition and life-style choices along [sic] does not qualify as the practice of medicine under section 2051." Additionally, plaintiff's "activities of providing reading materials and advice on nutrition and lifestyle choices do not qualify as activities requiring a physician and surgeon's certificate and therefore are not prohibited by section 2052." III. Plaintiff Files a Lawsuit
A. The Complaint
On February 23, 2012, plaintiff filed a complaint against the Board, Whitney, and Barbara Yaroslavsky, then president of the Board. The complaint alleges causes of action based on contract.
On January 30, 2013, defendants filed a demurrer to the complaint.
On May 28, 2013, plaintiff filed a first amended complaint (FAC). The FAC alleges causes of action for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) specific performance, and (4) declaratory relief. The FAC also removes defendant Yaroslavsky and adds Levine, in her capacity as president of the Board.
On July 26, 2013, defendants filed a demurrer to the FAC. In part, the demurrer argues that plaintiff should have proceeded by writ of administrative mandamus, and not by a civil lawsuit for damages.
On October 16, 2013, the trial court filed its order sustaining the demurrer to all four causes of action in the FAC, without leave to amend. The order granted plaintiff 20 days to file a second amended complaint "alleging breach of mandatory duty only."
On November 8, 2013, plaintiff filed a second amended complaint (SAC) alleging a single cause of action for breach of mandatory duty.
On December 12, 2013, defendants filed a demurrer to the SAC.
On January 22, 2014, the trial court sustained the demurrer to the SAC with leave to amend. The court permitted plaintiff to plead facts, "if he can do so in good faith," as to whether defendants' purported failure to provide written information about his probationary status to prospective employers, allegedly in violation of section 803.1, was the proximate cause of his alleged damages.
B. The TAC
On February 20, 2014, plaintiff filed the TAC, which alleges causes of action for violation of due process and breach of mandatory duty. The TAC is the operative complaint. The due process claim asserts the Board had illegally tolled his probation. The mandatory duty claim argues the Board's failure to clarify his licensing status to VASDHS violated a mandatory duty to accurately respond to licensing inquiries.
On March 27, 2014, defendants filed a demurrer to the TAC. They also filed a motion to strike the first cause of action for violation of due process, arguing that the allegations went beyond the permissible scope of the amendment authorized by the trial court.
On July 16, 2014, the trial court denied defendants' motion to strike the TAC.
On July 24, 2014, the trial court overruled defendants' demurrer to the TAC.
On April 30, 2015, defendants filed an amended answer to the TAC.
On May 6, 2015, defendants filed a motion for summary judgment and/or summary adjudication.
On November 6, 2015, plaintiff filed his opposition to the motion for summary judgment. Responding to defendants' assertion that the reason the VASDHS did not hire him was because he did not have an unrestricted license, he argued: "According to the testimony and declarations of Drs. Arnold Gass and Jacqueline Parthemore, as well as the VHA Handbook 1100.19, the VASDHS did not hire [plaintiff] because the [Board] refused to provide the necessary primary source information that the VASDHS required to advance [his] application for credentials and employment."
On November 20, 2015, the trial court entered its order granting defendants' motion for summary judgment. As to the first cause of action, the court concluded a dispute over whether the Board had properly tolled his probation should be determined by a writ of mandate, and not a civil suit. Even if a civil suit was appropriate, the court concluded the action was barred by the statute of limitations, as it should have been filed no later than July 9, 2008, four years after he was informed by the Attorney General's office that it did not consider him to be practicing medicine. With respect to the claim for violation of a mandatory duty, the court found he failed to prove causation.
On January 19, 2016, the trial court filed its judgment for defendants. This appeal followed.
DISCUSSION
I. Standard of Review
Summary judgment is properly granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, at p. 849.)
Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) On appeal, we exercise our independent judgment in determining whether there are triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) II. Applicable Legal Principles
The Board has statutory authority to investigate allegations of unprofessional conduct and to take disciplinary action against a physician found guilty of such conduct. (See §§ 2220, 2221, subd. (a), 2227, 2234; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7-8.)
The maximum discipline—revocation—deprives the licensee of a "fundamental right[]" to practice his or her profession (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; cf. Meyer v. Nebraska (1923) 262 U.S. 390, 399 [due process protects the right of individuals "to engage in any of the common occupations of life"]), and is considered a "drastic penalty" (Cooper v. State Bd. of Medical Examiners (1950) 35 Cal.2d 242, 252). If the Board decides to revoke a license, it may stay the revocation subject to specified terms and conditions. (See Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 563-564.)
In exercising its disciplinary authority, the Board is required to give "highest priority" to "[p]rotection of the public." (§ 2229, subd. (a); see Landau v. Superior Court (1998) 81 Cal.App.4th 191, 218 (Landau).) Priority shall also be "given to those measures, including further education, restrictions from practice, or other means, that will remove" the physician's "demonstrated deficiencies in competency." (§ 2229, subd. (c).) In addition, the Board "shall, wherever possible, take action that is calculated to aid in the rehabilitation of the licensee, or where, due to a lack of continuing education or other reasons, restriction on scope of practice is indicated, to order restrictions as are indicated by the evidence." (Id., subd. (b).) As one court stated, the object of the Board's discipline "is not to punish" the physician, but "rather, 'to protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result from . . . a lack of honesty and integrity.' [Citation.] In short, the purpose of discipline is to make the [physician] a better physician." (Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 473, quoting Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 331.) III. Plaintiff's Due Process Claim
The right to practice one's profession is protected by the Fourteenth Amendment right to due process. (Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 238-239.) Due process requires notice and an opportunity to be heard before this right can be taken away. (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 542.) In the TAC's first cause of action for violation of due process, plaintiff alleges that defendants violated his right to due process under the state Constitution when they tolled his probation after concluding he was not practicing medicine in any capacity, and also when they failed to give him a "formal hearing" to contest that conclusion.
Plaintiff also alleges defendants violated his state due process rights by violating sections 2004, 803.1, and 2335, subdivisions (c)(1), (c)(2), with respect to the Board's consideration of findings made by an ALJ.
"The [Board], a state administrative agency, has authority to discipline a physician for unprofessional conduct by restricting, suspending, or revoking the physician's license to practice medicine. [Citation.] A physician whom the [Board] has disciplined in this way may obtain judicial review of the [Board's] order by commencing an administrative mandate proceeding. (Code Civ. Proc., § 1094.5.) The superior court has original jurisdiction of these administrative mandate proceedings. [Citation] For this limited category of actions, the Legislature has provided that the Court of Appeal shall review the superior court's decision, not by direct appeal, but 'pursuant to a petition for an extraordinary writ.' [Citing to § 2337.]" (Leone v. Medical Board (2000) 22 Cal.4th 660, 663-664 (Leone).)
In its order granting defendants' motion for summary judgment as to this cause of action, the trial court cited to Landau, supra, 81 Cal.App.4th 191, in concluding that "a dispute over whether or not the [Board] properly tolled Plaintiff's probation should be determined by a writ of mandate, and not in this action." The ruling is correct.
It is well established that " '[j]udicial review of most public agency decisions is obtained by a proceeding for a writ of ordinary or administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The applicable type of mandate is determined by the nature of the administrative action or decision. [Citation.] Usually, quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate.' " (Santa Clara Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313.) A petition for a writ of administrative mandate presents "the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b); see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 810.)
As indicated above, appellate review in cases involving the Board's decisions is also limited to a proceeding by writ and is not subject to an appeal. Section 2337 provides: "Notwithstanding any other provision of law, superior court review of a decision revoking, suspending, or restricting a license shall take preference over all other civil actions in the matter of setting the case for hearing or trial. The hearing or trial shall be set no later than 180 days from the filing of the action. Further continuance shall be granted only on a showing of good cause. [¶] Notwithstanding any other provision of law, review of the superior court's decision shall be pursuant to a petition for an extraordinary writ." (Italics added.)
The appellate court in Landau, supra, 81 Cal.App.4th at pp. 198-199, summarized the judicial review process for Board disciplinary decisions as follows: "Review of a decision of the [Board] revoking, suspending or restricting a medical license is by writ of administrative mandamus in the superior court. [Citation.] Traditionally, review of the superior court decision has been by direct appeal from the final judgment or order of the superior court granting or denying the writ petition. Effective January 1, 1996, the Legislature . . . provided that appellate review of the superior court's decision shall be pursuant to a petition for an extraordinary writ. (Bus. & Prof. Code, § 2337.) [¶] This amendment eliminated direct appeal via Code of Civil Procedure section 1094.5 from the superior court decision granting or denying the petition for writ of mandate and substituted discretionary writ review by the appellate court." (Fns. omitted.)
We note the Legislature is permitted to enact laws specifying that an extraordinary writ petition shall be the exclusive method for obtaining review. (See Leone, supra, 22 Cal.4th at p. 668.) The California Supreme Court has upheld statutes mandating that writ review be the exclusive method of review in certain actions. (Leone, at pp. 664, 670 [medical license revocation actions under § 2337]; Powers v. City of Richmond (1995) 10 Cal.4th 85, 90, 110 (plur. opn. of Kennard, J.), 115-116 (conc. opn. of George, J.) [California Public Records Act actions (Gov. Code, §§ 6250, 6259)].)
The court in Landau, supra, 81 Cal.App.4th 191 also explained that "[t]he legislative history of section 2337 makes clear that the statute was a response to one aspect of a perceived crisis in physician discipline procedures—that of lengthy delays in the final imposition of discipline. The provision for writ review in the Court of Appeal was intended to expedite the completion of judicial review of physician discipline decisions and to shorten the overall time for these cases irrespective of which party prevailed at the superior court level. [¶] . . . In cases where the Board has imposed discipline suspending or revoking a license, and the superior court has refused to issue a writ overturning that decision, appellate review by writ of mandate enables the appellate court to dispose of a petition that has no apparent merit relatively quickly. Similarly, where the superior court has issued a writ overturning the Board's imposition of discipline, appellate writ review pursuant to section 2337 would benefit the physician by shortening the time to final decision." (Landau, at pp. 205-206.)
Plaintiff attempts to distinguish the instant case from Landau, arguing that that case "establishes that a writ is the only challenge for any decision by the [Board], but it says nothing about a plaintiff being able to recover damages from a failure of the [Board] to observe its mandatory obligations to adhere to a stipulated settlement or the findings of an ALJ during the carrying out of a disciplinary action." While plaintiff artfully tries to avoid the principles set forth in Landau, the ultimate fact plaintiff seeks to prove is that the Board has acted contrary to law in continuing to restrict his license by tolling his probation.
In further support of our conclusions, we note plaintiff had the opportunity to file a writ petition after the Board's August 6, 2013 decision refusing to adopt the ALJ's finding that he had been engaging in the practice of medicine and denying his petition to terminate his probation. As plaintiff himself notes in his reply brief, he "submitted his [petition to terminate his probation] so that his dispute with the [Board] could be resolved by a judicial review carried out by an administrative law judge." Yet rather than file a petition for writ of administrative mandate after that decision was rejected by the Board, plaintiff elected to further amend his complaint and proceed with this lawsuit.
At oral argument, plaintiff's counsel argued the finding by the ALJ here could not be disturbed by the Board in the absence of new evidence or a change in the law. He cited no authority for this position.
In fact, the circumstances of Board review of an ALJ ruling is covered by section 2335, subdivisions (c)(2) and (c)(3), as well as Government Code section 11517. Under Government Code section 11517, subdivision (c)(2)(E), the Board may "[r]eject the proposed decision [of the ALJ], and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence." In this case, the Board issued an Order of Non-Adoption of Proposed Decision on May 3, 2013, triggering the statutory review procedures of Government Code section 11517, subdivision (c)(2)(E). We specifically approved the authority of a licensing board to overturn a proposed ruling by the ALJ in Kifle-Thompson v. State Bd. of Chiropractic Examiners (2012) 208 Cal.App.4th 518, 531, 533; see Hoang v. California State Bd. of Pharmacy (2014) 230 Cal.App.4th 448, 455.
We also agree with the Board that monetary damages are not available for violations of due process. Our state Constitution's due process provision is contained in article I, section 7, subdivision (a), which provides: "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . ." Appellate courts, including our Supreme Court, have held this clause does not create a private right of action for money damages, particularly when a meaningful alternative remedy, such as a petition for writ of mandate, is available. (See Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 325-328 [no damages for asserted violation of the due process liberty interest]; see also Carlsbad Aquafarm, Inc. v. State Dept. of Health Services (2000) 83 Cal.App.4th 809, 823 [no right to monetary relief under the procedural due process clause of the California Constitution]; Bradley v. Medical Board of California (1997) 56 Cal.App.4th 445, 462-463 ["no right to sue for monetary damages under this constitutional provision"].)
As noted above, plaintiff had the alternative remedy of a petition for writ of mandate, seeking to overturn the Board's nonadoption of the ALJ's ruling on his petition to terminate probation. Plaintiff does not offer any basis for us to distinguish the above cases or revisit their conclusions, to the extent we could do so. We therefore conclude that he has not shown error and that summary adjudication of the first count was proper. IV. Cause of Action for Breach of Mandatory Duty
The TAC's second cause of action alleges the Board breached mandatory duties imposed by California Code of Regulations, title 16, section 1354.5, and by Business and Professions Code section 803.1 when it failed to respond to the VASDHS's request for clarification regarding the status of his license and his probation. Plaintiff asserted that the reason he was not hired by the VASDHS was because the Board did not provide the requested information regarding his probationary status, resulting in his application being withdrawn. The trial court granted defendants' motion for summary judgment as to this claim, concluding he failed to submit evidence that raises a triable issue of material fact as to whether the alleged failure to provide the requested information was the proximate cause of his injury.
California Code of Regulations, title 16, section 1354.5 states: "The following information, if known, will be disclosed upon request regarding any physician and surgeon licensed in California:
"(a) Current status of a license, issuance and expiration date of a license, medical school of graduation and date of graduation.
"(b) Any public document filed against any physician and surgeon, and any disposition thereof, including but not limited to, accusations, decisions, temporary restraining orders, interim suspension orders, citations, and public letters of reprimand. Accusations which have been filed and later withdrawn shall be retained in the board's files for a period of one year after the accusation was withdrawn.
"(c) Medical malpractice judgments in excess of $30,000 reported to the board on or after January 1, 1993, including the amount of the judgment, the date of the judgment, the court of jurisdiction, the case number, a brief summary of the circumstances as provided by the court, and an appropriate disclaimer, including but not limited to, the accuracy of the information provided.
"(d) Discipline imposed by another state or the federal government reported to the board on or after January 1, 1991, including the discipline imposed, the date of the discipline, the state where the discipline was imposed, and an appropriate disclaimer, including but not limited to, the accuracy of the information provided.
"(e) California felony convictions reported to the board on or after January 1, 1991, including the nature of the conviction, the date of conviction, the sentence, if known, the court of jurisdiction, and an appropriate disclaimer, including but not limited to, the accuracy of the information provided.
Defendants presented evidence that Jacqueline G. Parthemore, the medical director of the VASDHS at the time plaintiff applied for a job, had testified in her deposition that the organization is not permitted to hire doctors who lack a full and unrestricted license, even if the restrictions are on clinical privileges that did not relate to the job the applicant is seeking. Also, Arnold Gass testified that under rules found in VHA Handbook section 1100.19, plaintiff could not be employed because he did not have an unrestricted license. In an e-mail message that plaintiff attached to the TAC as an exhibit, Gass stated: "Because the wording that, until 11/2006, you would have to be proctored should you resume doing procedures, we cannot credential you here at VASDHS at this time." Thus, the harm was not caused by the Board's alleged failure to respond to the VASDHS's inquiries, but instead was a consequence of the terms of his probation.
According to the declaration of Gerard, in her follow-up conversation with Hayes, Gerard was informed that the probation status of plaintiff's license was fully reviewed by the VASDHS and assessed by the federal agency as to whether it would be considered "restricted" per Veterans Administration (VA) rules. The issue was posed to the VA Professional Standards Board, and then passed to the VA District Regional Counsel, who decided plaintiff's license was "restricted." As such, the VASDHS decided it would be unable to hire plaintiff until his probation was completed.
In addition to arguing that the trial court's causation finding is proper, defendants assert that, as a matter of law, there is no "mandatory duty" to respond to potential employers in the manner alleged in the TAC. We agree.
"The California Tort Claims Act provides that a public entity is not liable for injury arising from an act or omission except as provided by statute. [Citations.] Under Government Code section 815.6, as we have construed it, 'a public entity is liable for an injury proximately caused by its failure to discharge a mandatory duty designed to protect against the risk of a particular kind of injury . . . .' [Citations.] Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts." (Creason v. Department of Health Services (1998) 18 Cal.4th 623, 630-631.)
"Even when a duty exists, California has enacted specific immunity statutes that, if applicable, prevail over liability provisions. [Citations.] However, the first question is whether the plaintiff has alleged the breach of a mandatory duty. [Citation.] If there is no actionable duty, the question of immunity does not arise." (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.)
To substantiate a claim for breach of mandatory duty, a plaintiff must show that his or her alleged injury is " ' " 'one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.' " ' [Citation.] 'That the enactment "confers some benefit" on the class to which plaintiff belongs is not enough; if the benefit is "incidental" to the enactment's protective purpose, the enactment cannot serve as a predicate for liability under [Government Code] section 815.6.' " (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1092-1093.) "We examine the 'language, function and apparent purpose' of each cited enactment 'to determine if any or each creates a mandatory duty designed to protect against' the injury allegedly suffered by plaintiff." (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898.)
"In construing any statute, '[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.' [Citation.] 'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.' " (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485.)
Business and Professions Code section 803.1 provides, in relevant part:
"(a) Notwithstanding any other provision of law, the Medical Board of California . . . shall disclose to an inquiring member of the public information regarding any enforcement actions taken against a licensee . . . by the board or by another state or jurisdiction, including all of the following:
"(1) Temporary restraining orders issued.
"(2) Interim suspension orders issued.
"(3) Revocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a probationary order or stipulated agreement.
"(4) Public letters of reprimand issued.
"(5) Infractions, citations, or fines imposed.
[¶] . . . [¶]
"(e) The Medical Board of California . . . shall, by regulation, develop standard terminology that accurately describes the different types of disciplinary filings and actions to take against a licensee as described in paragraphs (1) to (5), inclusive, of subdivision (a). In providing the public with information about a licensee via the Internet pursuant to Section 2027, the Medical Board of California . . . shall not use the terms 'enforcement,' 'discipline,' or similar language implying a sanction unless the physician and surgeon has been the subject of one of the actions described in paragraphs (1) to (5), inclusive, of subdivision (a)."
In this instance, the Board Web site lists various documents available to review on individual medical professionals. Regarding plaintiff's matter, the Board's Web site includes the Board's November 2, 2001 decision (26 pages, including probation conditions), the May 3, 2013 Order of Non-Adoption of Proposed Decision by the ALJ (four pages), and the September 5, 2013 Decision After Non-Adoption (11 pages). When plaintiff was attempting to seek employment with the VA in 2004 and beyond, he was on probation with several conditions, identified by the Board and iterated on its Web site. (Cal. Medical Bd. Web site <http://www2.mbc.ca.gov/BreezePDL/default.aspx?licenseType=G&licenseNumber=28505&name=MOORES,%20WILLIAM%20YORK> [as of Oct. 13, 2017].)
Our research has not disclosed any case law suggesting that the purpose of section 803.1 (or the related administrative regulation) is to assist physicians in their efforts to obtain employment. Courts interpreting the legislative history of this statute, and other related provisions, have concluded "[t]his history shows the Legislature intended that the Board disclose information about physicians' disciplinary records to protect consumers and prevent medical malpractice." (Fulton v. Medical Bd. of California (2010) 183 Cal.App.4th 1510, 1516.)
Plaintiff argues in his reply brief that the statute is intended to protect physicians as well as consumers. However, even he acknowledges that to the extent the statute does so, its purpose is "to protect the physician from disclosure of information unrelated to the physician's professional practice" and to address "concerns for confidentiality of physician information." Here, plaintiff does not argue that any of the publicly available material itself caused injury to his reputation. Nor does he claim that any of the material was factually inaccurate. There is no evidence in the record indicating that he objected to any of the publicly disclosed information about the status of his license. Instead, he claims he "suffered injury to his reputation and to his right to have complete and accurate information about him disclosed to the VA when the [Board] failed to respond to the VA's inquiries." (Italics added.) In other words, he claims he was injured by the Board's failure to disclose more information than it had already publicly disclosed.
It is the Board's position that the question whether a physician like plaintiff is in compliance with his probation constitutes part of an ongoing investigation of the Board, and therefore is confidential information pursuant to Government Code section 6254, subdivision (f). This being the situation, the Board had no mandatory duty to breach that statutory duty in responding to the VASDHS's inquiries in 2004 and 2005.
Contrary to plaintiff's contentions, there is nothing in section 803.1 itself, nor in relevant case law, that suggests the Board is required to disclose "any and all information available regarding the status of his license and any enforcement action relating thereto." (Italics added.) Indeed, such a broad reading would suggest the Board might be compelled to disclose information unrelated to a physician's practice and/or confidential physician information, which plaintiff himself acknowledges should be placed outside section 803.1's reach. Instead, the statute requires the Board to disclose "information regarding any enforcement actions taken against a licensee," setting forth five specific items of information that must be disclosed. It does not require the Board to disclose the terms of a probation order or a stipulated agreement, nor whether a physician is in compliance with his or her probation. We note "the Board's interpretation of its statutory authority and duty to provide public access to address information of its licensees is entitled to great weight and respect from this court." (Lorig v. Medical Board (2000) 78 Cal.App.4th 462, 470.)
In sum, we conclude section 803.1 does not create a mandatory duty requiring the Board to disclose detailed disciplinary information to a physician's prospective employers. In light of our above conclusions, we need not address the parties' remaining arguments.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.