Filed 8/5/20 Moores v. The Medical Board of Cal. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

WILLIAM Y. MOORES, M.D.,

Plaintiff and Appellant,

v.

THE MEDICAL BOARD OF CALIFORNIA, el al.,

Defendants and Respondents.

A157595

(City & County of San Francisco

Super. Ct. No. CGC-18-569187)

Plaintiff and appellant William Y. Moores, M.D., a physician licensed to practice in California, appeals from an order sustaining a demurrer filed by defendants and respondents the Medical Board of California (Board), Kimberly Kirchmeyer, in her capacity as Executive Director of the Board, and Dev Gnadadev, M.D., in his capacity as President of the Board. Appellant was placed on probation by the Board for a five-year period in 2001, but he remains on probation to this day because the Board has determined that he is not engaged in the practice of medicine as required by the terms of his probation, and it has consequently deemed the probationary period to be tolled.

The instant lawsuit is the latest in a series of actions filed by appellant before the Board and the courts over the years, in which he reasserts that he has been engaged in the practice of medicine and has therefore complied with the terms of his probation. We agree with respondents that this appeal should be dismissed because as to eight of the nine causes of action, which seek termination of appellant’s probationary status, he should have proceeded by a writ of mandate rather than by appeal. The remaining cause of action, in which appellant contends respondents gave incomplete information about his probationary status to a prospective employer, has been resolved in previous litigation and is frivolous. We dismiss the appeal.

BACKGROUND

Appellant was licensed to practice medicine in 1974. He practiced as a cardiothoracic surgeon with the Permanente Medical Group (Kaiser), but that employment was terminated effective 1999 because of quality concerns. Appellant challenged his termination with a petition for writ of administrative mandate (Code of Civ. Proc., § 1094.5) and, after that petition was denied, he filed a civil action against Kaiser and related entities and individuals. The termination was upheld by different Divisions of this court in unpublished decisions on appeal, which were filed in 2001 and 2006. (Moores v. Permanente (Nov. 15, 2001, A091870) [nonpub. opn.] ; Moores v. Madvig (May 31, 2006, A106200) [nonpub. opn.].)

The Board filed an accusation against appellant for unprofessional conduct, which included nine counts involving eight patients based on gross negligence, incompetence and repeated negligent acts. On September 6, 2001, appellant entered into a stipulated settlement to resolve the disciplinary proceeding against him. The settlement called for appellant to be placed on probation for five years and to enroll in the University of California School of Medicine’s Physician Assessment and Clinical Education Program.

Paragraph 21 of the settlement provided for the tolling of probation should appellant leave California or not practice medicine in California: “Tolling of Probation: In the event [appellant] should leave California to reside or to practice outside the state or for any reason should [appellant] stop practicing medicine, [appellant] shall notify the Division or its designee in writing within ten (10) days of the dates of departure and return of the dates of non-practice within California. Non-practice is defined as any period of time exceeding 30 days in which [appellant] is not engaging in any activities defined in Sections 2051 and 2052 of the Business and Professions Code. . . . Periods. . . of non-practice within California, as defined in this condition, will not apply to the reduction of the probationary period.”

Based on correspondence from appellant to the effect that he was no longer practicing cardiothoracic surgery but was making his living providing nutrition and lifestyle advice, the Board determined he was not engaged in the practice of medicine and that his probationary term had been tolled. Appellant disputed this and claimed to be engaged in the practice of medicine. Although the communications between the two parties over the next several years was extensive, it boiled down to appellant’s claim that because he was engaged in providing nutrition and lifestyle advice, he was engaged in the practice of medicine, and the Board’s position that because a medical degree was not required for such activities, they did not qualify and probation was properly tolled.

In January 2005, the Department of Veterans Affairs San Diego Healthcare System (VASDHS) sent a letter to the Board’s disciplinary unit, asking whether appellant had complied with the terms of the stipulated agreement and probation. The correspondence indicated that VASDHS wished to employ appellant “to do compensation and pension examinations in one of our community clinics if that is congruent with the terms of his probation.” A representative of VASDHS was referred to the Board’s Web site for information on plaintiff’s practice limitations and was told that if they wanted to know whether appellant had a “restricted license” they would have to rely on the information on the Board’s public Web page. VASDHS determined that appellant’s license was restricted and decided he could not be employed there until after his probation was completed.

On August 8, 2011, appellant filed a petition for penalty relief with the Board, seeking termination of his probation. On April 8, 2013, an administrative law judge (ALJ) issued a proposed decision 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. The ALJ observed that the purpose of requiring appellant to engage in the practice of medicine during his probation was “basically there to allow the Board to follow [appellant’s] ability to practice safely. [Appellant] testified credibly that he has no intention of practicing cardiology or cardiac surgery in the future. It would not be against the public interest to terminate [appellant’s] probation at this time.”

The Board issued an order of nonadoption of the ALJ’s proposed decision, and after considering the record and holding a hearing, it issued a decision denying plaintiff’s petition seeking termination of his probation. The Board concluded that “[p]roviding advice on nutrition and life-style choices alon[e] 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.” (See Bus. & Prof. Code, § 2068 [drawing distinction between advice about nutrition and practicing medicine; allowing only the former to those without a license].)

On February 23, 2012, plaintiff filed a civil action against the Board and individuals who were then president and executive director of the Board. The third amended complaint in that case stated causes of action for a violation of due process, alleging the Board had illegally tolled appellant’s probation, and for breach of a mandatory duty, alleging the Board had failed to clarify his licensing status to VASDHS, thus violating a mandatory duty to accurately respond to licensing inquiries. The trial court granted the defendants’ motion for summary judgment. As to the first cause of action, the court concluded a dispute over whether the Board had properly tolled appellant’s probation should be determined by a writ of mandate, and that even if a civil suit was appropriate, 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 appellant failed to prove causation.

A different Division of this Court affirmed the judgment on appeal in an unpublished decision dated October 13, 2017. (Moores v. Medical Bd. Of California, Division of Medical Quality, et al. (October 13, 2017,A147946) [nonpub. opn.].) It concluded that the violation of due process claim based on the tolling of probation should have been challenged by a writ petition under Business and Professions Code section 2337 rather than by appeal. It also concluded the Board did not have a mandatory duty to disclose detailed disciplinary information to a physician’s prospective employers. (Ibid. p. *12)

On November 28, 2018, appellant filed a petition for writ of mandate and complaint for damages that is the subject of this appeal, alleging nine causes of action based primarily on allegations that the Board had violated the 2001 settlement agreement when it tolled his probation and refused to terminate his probation: specific performance (first cause of action), breach of contract (second cause of action), breach of implied covenant of good faith and fair dealing (third cause of action), declaratory relief (fourth cause of action), injunctive relief (fifth cause of action), violation of Business and Professions Code section 2335, subdivision (c)(2) regarding the Board’s failure to adopt the ALJ’s findings in 2013 (sixth cause of action), abuse of discretion (eighth cause of action), and libel in publishing documents about appellant’s probationary status on the Board’s website (ninth cause of action). The petition and complaint also contained a cause of action based on the Board’s failure to respond to inquiries by VASDHS in 2004 and 2005 (seventh cause of action).

On February 7, 2019, the trial court sustained without leave to amend a demurrer to the writ petition and complaint. It determined that appellant was in substance challenging the 2013 decision by the Board not to terminate appellant’s probation, and that administrative mandamus filed within 30 days was the exclusive remedy for challenging that decision. The court also found appellant had not presented a claim to the Board before seeking damages as required by Government Code section 945.4. The court ruled that appellant had simply repackaged his old, rejected claims, and they were barred by principles of res judicata as claims that were either previously brought and rejected or which could have been brought in prior actions. It noted that the seventh cause of action alleging a violation of mandatory duty had been rejected in the previous appeal.

Appellant filed the instant appeal, and respondents moved to dismiss that appeal on the grounds that (1) the first through sixth, eighth and ninth causes of action could only be challenged by extraordinary writ; and (2) the seventh cause of action is frivolous as it was decided adversely to appellant in the last appeal. We agree.

DISCUSSION

Business and Professions Code 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. . . . Notwithstanding any other provision of law, review of the superior court’s decision shall be pursuant to a petition for an extraordinary writ.” The fact that only writ review is available has been held constitutional. (Leone v. Medical Board Of California (2000) 22 Cal.4th 660, 670; Landau v. Superior Court (1998) 81 Cal.App.4th 191, 198, 202, 207, 211.)

The denial of a petition that has the effect of continuing a restriction on a medical license is a decision “revoking, suspending, or restricting” a license and is covered by Business and Professions Code section 2337. (Sela v. Medical Bd. of California (2015) 237 Cal.App.4th 221, 229 (Sela).) Here, the denial of appellant’s petition seeking to “untoll” and terminate his probation, as stated in the first through sixth and eighth and ninth causes of action, had the effect of continuing a restriction on appellant’s license. Those causes of action were subject to Business and Professions Code section 2337 and were reviewable by extraordinary writ, not appeal.

Appellant argues that his petition in the trial court does not challenge the disciplinary decision, but instead seeks to enforce the terms of the settlement agreement placing him on five years’ probation. As we see it, this is a distinction without a difference. Had the trial court granted appellant’s petition, the effect would have been to terminate appellant’s probation and restore appellant’s medical license to an unrestricted status. The denial of the petition meant appellant would continue to be on probation. Business and Professions Code section 2337 applies.

We decline to treat the appeal as a writ. (Sela, supra, 237 Cal.App.4th at pp. 231–232.) Appellant has set forth no good cause for doing so and has not adequately explained why he proceeded by appeal rather than by writ. (Ibid.) He has argued that appeal is the proper method of obtaining review, but as we have explained, Business and Professions Code section 2337 applies. In appellant’s most recent prior appeal, he also challenged the tolling of his probation and the court’s denial of his request to terminate that status. The court affirmed the order granting summary judgment that was challenged in that case, in part because appellant had failed to comply with Business and Professions Code section 2337. From this, he should have known that a writ petition was also the appropriate vehicle in this case.

Even if we were to treat this appeal as a writ, we would affirm. All of the counts in question relate to the Board’s 2013 decision regarding appellant’s probationary status. Judicial review of a final administrative decision is governed by Government Code section 11523, which provides that a petition for judicial review must be filed within 30 days of the last date on which reconsideration could be ordered. This action, which was filed five years after the 2013 decision, is not timely.

It does not matter that no appellate court has ruled on the substantive claim that appellant has been engaged in the practice of medicine—the time for doing so has passed, and appellant cannot revive his claim merely by filing a new action. His remedy below was to file a timely writ from the 2013 decision by the Board in the trial court, and then to challenge that decision, if necessary, by a writ filed under Business and Professions Code section 2337 in the Court of Appeal. Instead, he filed a civil suit. After the order denying summary judgment in that action was affirmed on appeal in 2017, in part because it was taken from a nonappealable order, he filed the current action raising essentially the same issues. Appellant could have presented his claim in a timely manner and using the correct procedures, but he failed to do so.

Respondent argues that the appeal as to the seventh cause of action for breach of a mandatory duty, which challenges the Board’s failure to respond to VASDHS’s inquiries about appellant’s licensing status in 2004 and 2005, should be dismissed as frivolous. We agree. The 2017 appeal considered the identical issue and determined there was no mandatory duty. Principles of res judicata and collateral estoppel bar the claim, even if we deem it timely despite its presentation in this petition in 2018, more than 13 years after the operative acts in 2004 and 2005. (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227–228.)

DISPOSITION

The appeal is dismissed. Costs to respondents.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

Moores v. Medical Board / A157595