2017-00224113-CU-BT

Daisy Su vs. California Massage Therapy Council

Nature of Proceeding: Hearing on Demurrer

Filed By: Siegel, Alison R.

Defendants California Massage Therapy Council (“CAMTC”) and Mark Dixon’s demurrer to Plaintiff Daisy Su’s complaint is sustained with leave to amend.

Defendants’ request for judicial notice is granted.

In this action Plaintiff alleges causes of action for declaratory relief and violation of Business and Professions Code § 17200.

Plaintiff alleges that she is the holder of a California Massage Therapist Certificate. (Comp. ¶ 1.) She alleges that the Certificate is a property right within the meaning of the California Constitution that cannot be restricted, suspended, or revoked without due process of law. (Id. ¶ 6.) On April 27, 2017, CAMTC allegedly notified Plaintiff that it intended to revoke Plaintiff’s Certificate and offered Plaintiff a “telephonic” hearing to contest the proposed revocation. (Id. ¶ 7.) The grounds for the revocation were a failure to timely notify CAMTC of a business change and a hearsay declaration from an individual regarding an “incident.” (Id. ¶ 8.) Plaintiff alleged that she requested a hearing to contest the revocation but was required to post a fee to obtain the hearing. She alleged that she sought a fee waiver but that CAMTC demanded she waive her privilege against disclosure of her tax returns as a condition to receiving the waiver of the hearing fee and granting a hearing. (Id. ¶ 9.)

Plaintiff alleges that CAMTC is a de facto agency of the State and must provide the same due process rights that any state agency must provide in connection with an administrative hearing at which a professional license or certificate is subject to revocation/suspension. (Id. ¶ 10.) She alleges that CAMTC violated her right to a fair hearing by denying her the ability to confront and cross-examine witnesses and that requiring her to pay a fee to obtain a hearing violated her right to due process. She further alleges that because a CAMTC Certificate is required by local jurisdictions in order to practice as a massage therapist, the failure to provide the safeguards afforded under the Government Code for Administrative Hearings violated her property rights to her Certificate. (Id. ¶ 11.)

Plaintiff seeks a declaration that her Certificate issued by CAMTC is a property right entitled to protections for hearings under the Government Code and that CAMTC’s procedures violate due process and the Administrative Procedure Act.

Defendants first demur to the complaint on the basis that Plaintiff’s complaint is untimely under the Massage Therapy Act, specifically, Business & Professions Code § 4610(i) and that her exclusive remedy was an administrative mandate proceeding under CCP § 1094.5.

CAMTC is governed by the Massage Therapy Act (Bus. & Prof. Code §§ 4600-4621.) The Act confers in CAMTC (a nonprofit organization) the authority to provide certifications to massage professionals meeting certain requirements and to exercise disciplinary authority over certificate holders. (Id.) Obtaining a certificate from CAMTC allows an individual to provide massage services to cities and counties without having to obtain a local permit. (Gov’t Code § 51034(c)(9).) Alternatively, if an individual does not have a certificate, he or she may nevertheless obtain local licenses/permits from a city and/or county. (Bus. & Prof. Code § 4612(b).)

“An applicant or certificate holder may challenge a denial or discipline decision issued pursuant to this section in a court of competent jurisdiction. Any action challenging a denial or discipline, including any claim alleging defective notice, shall be commenced within 90 days after the effective date of the denial or discipline. Certification issued pursuant to this chapter is not a fundamental vested right and judicial review of denial and disciplinary decisions made by the council shall be conducted using the substantial evidence standard of review. If the action is successful, the court may order any relief, including reinstatement, that it finds equitable under the circumstances.” (Bus. & Prof. Code § 4610(i) [emphasis added].)

According to Defendants, the action is untimely because Plaintiff alleged that she was subjected to suspension and/or revocation as of June 25, 2017 and the complaint was filed on December 19, 2017, well after the 90 days provided in Bus. & Prof. Code § 4610(i).

Defendants also argue that Plaintiff’s exclusive remedy was an administrative mandate proceeding pursuant to CCP § 1094.5. CCP § 1094.5 is the exclusive remedy for judicial review of final administrative decisions or orders as the result of a proceeding where a hearing is required, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer. ( Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1722.) CCP § 1094.5 is not limited to governmental agencies and applies to nongovernmental agencies as well. (Id.) When CCP § 1094.5 applies, it is the sole remedy for judicial review. To that end, a party may not seek review of an administrative decision by way of an action for declaratory relief. (State v. Superior Court (1974 12 Cal.3d 237, 249.) Here, the Massage Therapy Act provides that a certificate holder shall not be disciplined except according to the procedures of the Act. Specifically, the procedures call for an opportunity for the certificate holder to be heard, require any decision to be based on evidence and vest discretion in making a determination in the council. (Bus. & Prof. Code § 4610(a)-(e).)

The Court would agree that if the instant action is classified as one challenging the decision to revoke/suspend Plaintiff’s certificate, then the complaint as currently pleaded would be untimely under Business & Professions Code § 4610(i) and also improper because Plaintiff’s sole remedy would be pursuant to CCP § 1094.5.

In opposition, Plaintiff does not address the timeliness argument under Business & Professions Code § 4610(i) directly. Plaintiff argues that Defendants’ CCP § 1094.5 argument is a “red herring” because this action is not an action attacking the results of an administrative hearing but is a challenge to the overall validity of the process and procedures that the CAMTC utilizes in general. The Court disagrees with Plaintiff’s characterization of the complaint.

To that end, Plaintiff plainly alleges in her First Cause of Action for Declaratory Relief that CAMTC violated her due process rights in denying her the right to confront witnesses, requiring her to pay for a fee for hearing and failing to provide the safeguards under the Administrative Procedure Act. (Comp. ¶ 10.) She specifically alleges that there is a controversy between herself and CAMTC regarding her rights as a certificate holder, and she further contends that CAMTC may not charge her a fee for the hearing, that she is entitled to cross-examine witnesses and that any hearing at which her Certificate was in jeopardy or revocation/suspension must be conducted pursuant to the Administrative Procedure Act. (Id. ¶ 16.) Moreover she alleges that the process used by CAMTC was unconstitutional and invalid “as applied to [her].” (Id.

¶ 17.) She alleges that the process used by CAMTC to “restrict, revoke or suspend” her Certificate violated her rights. (Id. ¶ 18.) Plaintiff specifically seeks a judicial declaration regarding her rights as to her Certificate, whether CAMTC violated her constitutional rights, “as well as the validity and enforceability of the order revoking her Massage Certificate as issued by CAMTC.” (Id. ¶ 19.) Plaintiff’s own allegations dispel her contention in opposition that this action is not attacking the results of any administrative hearing.

While the Second Cause of Action for Violation of Business & Professions Code § 17200 does include allegations that CAMTC has applied the allegedly unconstitutional procedures to “dozens, if not hundreds” of others, she expressly incorporated the allegations from her First Cause of Action into the Second Cause of Action and in fact specifically relies upon them as support for the Second Cause of Action. (Comp. ¶¶ 21, 22.)

The above allegations are clear that Plaintiff is in fact challenging a decision of CAMTC. Thus, she was required to file the instant action within 90 days after the effective date of the discipline. (Bus. & Prof. Code § 4610(i).) Again, that statute makes clear that “[a]ny action challenging a denial or discipline” shall be brought within 90 days. (Id.) As currently pled, the Court concludes that the complaint is untimely pursuant to Business & Professions Code § 4610(i). By that same token, as currently pled, given that the allegations are challenging CAMTC’s decision, Plaintiff’s remedy was by way of administrative mandate pursuant to CCP § 1094.5. Defendants’ demur is therefore sustained.

Plaintiff’s argument in opposition that a demurrer does not lie to a declaratory relief action is inapposite given the above. The authority cited by Plaintiff deals with a situation where the demurrer attacks the merits of the claim. (Lockheed Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221 [disapproved on other grounds in State v. Allstate Ins. Co. (2009) 45 Cal.4th 1008].) Here, the demurrer is sustained on the basis that the action as pled is untimely and that the proper remedy is by way of administrative mandate, not on the merits of the claim.

In addition, the demurrer must be sustained as to Defendant Mark Dixon as there are no allegations regarding him in the complaint other than the fact that he is the CEO of CAMTC. (Comp. ¶ 2.)

Given the above, the Court does not reach Defendants’ additional arguments that CAMTC is not subject to due process requirements or the Administrative Procedure Act, or that Plaintiff lacks standing.

While Defendants argue that the above defects cannot be cured by amendment, as this is the first challenge to the complaint, the Court will grant leave to amend. Plaintiff may file and serve an amended complaint no later than April 26, 2018. Defendants shall file and serve their response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP § 430.41 extension as necessary.

The notice of demurrer does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Counsel for Defendants is ordered to notify Plaintiff’s counsel immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Plaintiff’s counsel appears without following the procedures set forth in Local Rule 1.06(B).