Filed 1/30/20 Hafi v. Medical Board of Calif. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MUHANNAD HAFI,

Petitioner,

v.

MEDICAL BOARD OF CALIFORNIA,

Respondent.

A158916

(City & County of San Francisco

Super. Ct. No. CPF18516448)

Muhannad Hafi filed a notice of appeal from an order denying his petition for writ of mandate challenging the Medical Board of California’s revocation of his medical license. The order is reviewable only through a petition for extraordinary writ, so we dismiss the appeal.

BACKGROUND

On November 21, 2018, the Medical Board of California (the Medical Board) issued a decision and order revoking Hafi’s physician’s and surgeon’s certificate effective December 21, 2018.

Hafi sought judicial review of the Medical Board’s decision by filing a petition for administrative writ of mandate under Code of Civil Procedure section 1094.5 in the superior court. On June 19, 2019, the court denied the petition. The court found the Medical Board’s findings that Hafi committed sexual misconduct against two patients were supported by the evidence and that its decision to revoke Hafi’s license was not an abuse of discretion.

On August 19, 2019, Hafi filed a notice of appeal from the order denying his petition for writ of mandate. The Medical Board moved to dismiss the appeal on the ground the order is reviewable only by extraordinary writ.

DISCUSSION

Business and Professions Code, section 2337 (section 2337) states: “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.)

As observed in Landau v. Superior Court (1998) 81 Cal.App.4th 191, 198 (Landau), “[r]eview of a decision of the Division of Medical Quality revoking, suspending or restricting a medical license is by writ of administrative mandamus in the superior court. (Code Civ. Proc., § 1094.5) 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 has 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.” (Landau, supra, 81 Cal.App.4th at p. 198-199, fns. omitted; see Leone v. Medical Board (2000) 22 Cal.4th 660, 670; Sela v. Medical Bd. of California (2015) 237 Cal.App.4th 221, 225-227 (Sela).)

Hafi concedes his appeal is improper, but he suggests unusual circumstances exist that justify an exercise of this court’s discretion to construe it as a petition for an extraordinary writ. Courts have found such unusual circumstances where the case presents an issue of first impression, the issue has been thoroughly briefed, and the determination is purely one of law (Zabetian v. Medical Board of California (2000) 80 Cal.App.4th 462, 467; Rogers v. Municipal Court (1988) 197 Cal.App.3d 1314, 1317), or where the issue of appealability “was far from clear in advance” and all parties strongly urged that the court decide, rather than dismiss, the case. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) None of those circumstances are present here, and counsel’s concession that he only “recently became aware of” section 2337 does not justify overriding the Legislature’s choice of writ review in physician discipline matters and its underlying intent “to expedite the completion of judicial review . . . and to shorten the overall time for these cases irrespective of which party prevailed at the superior court level.” (Landau, supra, 81 Cal.App.4th at p. 205; see Sela, supra, 237 Cal.App.4th at pp. 231-232 [rejecting request to construe an improper appeal from a medical license revocation order as a petition for extraordinary writ].) Under these circumstances, the unauthorized appeal must be dismissed.

DISPOSITION

The appeal is dismissed.

 

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Jackson, J.

Hafi v. Medical Board, A158916