Filed 10/1/19 Banga v. Regents of the University of California CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

KAMLESH BANGA,

Plaintiff and Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al.,

Defendants and Respondents.

A151758

(San Francisco County

Super. Ct. No. CGC-16-549780)

While Kamlesh Banga pursued a personal injury lawsuit based on hearing loss, defendant health care providers tested her hearing and reported that she was exaggerating her injuries. Banga later sued defendants, claiming (among other theories) that they were negligent and that their reports dramatically reduced her recovery in the personal injury lawsuit. The trial court sustained a demurrer to her complaint, ruling it was barred by the statute of limitations.

Banga sought leave to amend her complaint to enforce her numerous requests to obtain copies of her medical records, which defendants refused to provide. (Health & Saf. Code, § 123100, et seq.) The trial court denied her leave to amend. We reverse.

 

BACKGROUND

At the hearing on the demurrer, Banga argued she had requested her medical records several times, she had not received them, and she should be permitted leave to amend her first amended complaint to pursue them. The court sustained the demurrer without leave to amend, explaining that she “simply had filed [her] case too late.”

On appeal, Banga’s sole contention is that she should be permitted to amend her complaint to add a claim seeking the records, based on the following allegations.

Banga had medical tests on her hearing in 2012 and 2013. The tests were conducted by defendants Anga Lau, Au.D. and Andrew Dundas, Ph.D., who are employees of defendant The Regents of the University of California (collectively, the Regents). The first set of tests in April 2012 showed Banga had profound hearing loss and was not exaggerating her symptoms. After subsequent tests in November 2012 and October 2013, the Regents reported that she only had moderate hearing loss and was exaggerating her symptoms. Banga’s attorney paid the Regents $2,177.46 for the October 2013 tests.

Banga requested copies of medical records related to the tests in October 2013, August 2014, September 2014, August 2015, September 2015 (twice), and February 2017. The Regents refused to produce the records.

DISCUSSION

A.

We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We assume the truth of all material factual allegations together with those matters subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a trial court denies a party leave to amend, we apply the abuse of discretion standard. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.) If there is any reasonable possibility that the pleading could be cured by amendment, we must reverse. (Ibid.)

B.

Banga argues the trial court abused its discretion by refusing leave to amend her complaint to enforce her request for her medical records under sections 123110 and 123120. We agree.

The Legislature has declared that every person responsible for her own health care decisions has a right “to complete information respecting his or her condition and care provided.” (§ 123100.) The Legislature therefore established procedures to ensure people have access to their health care records. (Ibid.) Section 123110 entitles any adult patient to receive copies of their “patient records” within 15 days of a request and upon payment of costs. (§ 123110, subd. (b)(1).) Section 123120 permits an aggrieved patient to bring an action to enforce these provisions, and the court may award attorney fees and costs to the prevailing party. (§ 123120; see generally Person v. Farmers Ins. Group of Companies (1997) 52 Cal.App.4th 813, 816-818 [discussing predecessor statutes and 1995 reenactment as § 123100 et seq.].)

The trial court should have allowed Banga to pursue this claim in an amended complaint. Banga alleges that she requested the October 2013 records repeatedly between October 7, 2013 and September 10, 2015. On appeal, she represents that she again requested them in 2017 and that she received no response to any of her requests. She does not allege that she tendered payment of the costs of copying the records, but the Regents do not claim that they requested payment or that their refusal to provide the records was based on nonpayment. In any case, we find there is a reasonable possibility that Banga’s complaint may be cured by amendment.

The Regents’ arguments are spurious. First, they suggest the type of records at issue here (transcripts of the hearing tests) are not “documents commonly found in a medical chart,” but they make no reasoned legal argument that “patient records” under section 123110 are limited to such documents. They do not even cite the definition of “patient records,” which broadly includes “records in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient.” (§ 123105, subd. (d); see also § 123100 [patients have a right to “complete information” concerning their health care].)

Second, the Regents argue that Banga cannot enforce her request for her records because her complaint seeks compensatory damages, which are not permitted in an action to enforce section 123110. (See Maher v. County of Alameda (2014) 223 Cal.App.4th 1340, 1354.) This argument makes no sense—the mere fact that Banga sought compensatory damages in her prior complaint does not preclude her from amending her complaint to seek other appropriate relief.

Finally, the Regents obliquely contend that Banga’s claim is time-barred by the one-year limitations period for professional negligence claims. (Code of Civ. Proc., § 340.5.) But that statute applies to an action for professional negligence that causes “a personal injury or wrongful death.” (Id.) The Regents make no attempt to explain why it also bars an action to obtain documents.

A person should not have to file a lawsuit to obtain copies of her own medical records. But faced with a health care provider’s obdurate refusal to release them, as Banga alleges here, section 123120 provides a remedy.

C.

On remand, Banga may also be able to plead a claim under the Unfair Competition Law. (Bus. & Prof. Code, § 17200.)

Unfair competition claims may be based on violations of other statutes, including state laws that govern information-sharing practices. (See Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 563-564 [violations of credit and consumer reporting laws].) A single unfair or unlawful act may suffice. (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 968, fn. 3.) Injunctive relief—e.g., an order to produce the medical records—is available (see Bus. & Prof. Code, § 17203), and the limitations period is four years. (See Bus. & Prof. Code, § 17208; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 178-179 [four-year limitations period usually applies even if claim is based on violation of statute with shorter limitations period]).

Here, Banga may be able to base an unfair competition claim on the Regent’s violation of section 123110. Indeed, she arguably did so in her first amended complaint. She alleges a violation of Business and Professions Code section 17200, including allegations that she requested copies of her patient records and the Regents failed to provide them, although she appears to allege that this is a violation of the Regent’s policies rather than the Health and Safety Code. In her prayer, she does not specify relief available under Business and Professions Code section 17200, such as restitution or an injunction, but she does request “other relief as the Court deems proper.” On remand she may revisit the remedies in a second amended complaint.

The Regents suggest that Banga cannot establish standing because she has not suffered any loss of money or property. (See Bus. & Prof. Code, § 17204 [limiting relief to persons who have lost money or property].) However, Banga may have standing by alleging she paid $2,177.46 for the October 2013 tests and did not receive the full benefit of her bargain. (See Kwikset Corp. v. Superior Court, supra, 51 Cal.4th at p. 323 [“There are innumerable ways in which economic injury from unfair competition may be shown.”].) She may be able to allege other costs caused by the Regents’ refusal to provide the underlying test data, such as the cost of additional tests that she obtained at Stanford.

To be clear, we do not hold that Banga can successfully plead an unlawful competition claim, but she should be given an opportunity to do so.

D.

Finally, Banga claims the trial court erred by not issuing a statement of decision under Code of Civil Procedure, section 632. She is incorrect. The statute applies when there has been a trial on a question of fact by the court (Code Civ. Proc., § 632), not an order on a demurrer, which decides only questions of law. (See Lazar v. Hertz Corp., supra, 69 Cal.App.4th at p. 1501).

DISPOSITION

The judgment and the order sustaining the demurrer without leave to amend are reversed. On remand, the trial court shall enter an order sustaining the demurrer and granting Banga leave to file a second amended complaint. The Regents shall bear Banga’s costs on appeal.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A151758