Judge: Bruce G. Iwasaki, Case: 18STCV00470, Date: 2023-11-02 Tentative Ruling

Case Number: 18STCV00470    Hearing Date: November 2, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             November 2, 2023

Case Name:                Koos v. Regents of the University of California

Case No.:                    18STCV00470

Matter:                        Motion for Summary Judgment or Summary Adjudication

Moving Party:             Defendants Regents of the University of California

            This action arises out of an employment dispute. Plaintiff Brian Koos was employed by Defendant Regents of the University of California, UCLA (UCLA) as an Obstetrics and Gynecology Physician with medical privileges at the Ronald Reagan UCLA Medical Center. Plaintiff alleged that he was retaliated against for protected activity under Health and Safety Code section 1278.5 (Section 1278.5) for making a report to the facility and medical staff and initiating an investigation. The Complaint, filed on October 5, 2018, alleges a single violation of Section 1278.5 against Defendant UCLA.

On December 6, 2019, Defendant UCLA filed a motion for summary judgment, or in the alternative, summary adjudication contending that Plaintiff could not establish a prima facie case of retaliation or point to evidence indicating that Defendant’s reasons for his discipline were pretextual. Defendant also sought summary adjudication of Plaintiff’s claim for punitive damages because “a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code § 818.) Plaintiff opposed the motion. On February 20, 2020, the Court denied the motion. 

            On August 14, 2023, Defendant UCLA moved for summary judgment/summary adjudication on the grounds that the Complaint is barred by the doctrine of collateral estoppel. Plaintiff opposed the motion.

            The motion for summary judgment is granted.

Evidentiary Issues

            Defendant UCLA’s unopposed request for judicial notice of Exhibits A-F is granted. (Evid. Code, § 452, subd. (d).)

Legal Standard

            “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.) 

            “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc. § 437c, subd. (c).)

Discussion

            Defendant Regents moves for summary judgment/summary adjudication on the grounds that the entire Complaint is barred by collateral estoppel. Defendant contends that the doctrine of collateral estoppel precludes Plaintiff from bringing this Section 1278.5 retaliation lawsuit against UCLA because the underlying issue of whether UCLA had a legitimate, non-retaliatory reason for disciplining him has already been determined in the Superior Court and affirmed by the Court of Appeal.

            The doctrine of collateral estoppel bars the party to a prior action from relitigating any issues finally decided against him or her in the earlier action. (City of Sacramento v. State of California (1990) 50 Cal.3d 51, 64.) The doctrine of collateral estoppel applies: “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.)

“ ‘Summary judgment is an appropriate remedy when the doctrine of res judicata in its subsidiary form of collateral estoppel refutes all triable issues of fact suggested by the pleadings.’ ” (Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1304.)

            In support of its motion, UCLA submits the following material facts:

            On July 3, 2018, Dr. Carlos Lerner, the Chief of Staff for Ronald Reagan UCLA Medical Center, provided Plaintiff with a Notice of Proposed Actions issued on behalf of the Medical Staff Executive Committee (Committee) stemming from Plaintiff’s conduct on April 20, 2018. (DSS 4.) The Committee’s Notice of Proposed Actions recommended that: (1) Plaintiff be suspended for 90 days; (2) pay a $25,000 fine to UCLA; (3) Plaintiff be removed from participating in training residents and fellow physicians for a period of one year; and (4) Plaintiff attend ethics and professionalism training. (DSS 4.) On July 17, 2018, Plaintiff responded to the Committee’s proposed discipline in the Notice of Proposed Action and requested a formal Peer Review hearing pursuant to the Ronald Reagan UCLA Medical Center’s Bylaws to challenge the Committee’s proposed actions. (DSS 5.)

            On October 5, 2018 – while the administrative proceeding before UCLA was pending – Plaintiff filed this action.  Koos alleged that UCLA violated Section 1278.5 by acting for retaliatory reasons when it disciplined him for violating HIPAA and UCLA Health’s privacy policies based on his conduct from April 20, 2018. (DSS 2.)

On August 16, 2018, the Committee issued Plaintiff a formal Notice of Hearing and Notice of Charges stemming from his conduct on April 20, 2018. (DSS 6.) UCLA held a formal Peer Review hearing – which was a multi-day administrative hearing before the Peer Review Hearing Committee, comprised of three physicians – from January to March 2019. (DSS 7.) During this administrative hearing, Plaintiff had an opportunity to challenge the Committee’s proposed actions. Plaintiff Koos, who was represented by counsel during the Peer Review hearing, examined multiple witnesses (who testified under oath), and both Plaintiff and the Committee submitted written closing briefs to the Peer Review Hearing Committee. (DSS 7.) In May 2019, the Peer Review Hearing Committee issued a written decision, finding that Plaintiff’s conduct in April 2018 violated HIPAA, the California Medical Information Act, and UCLA Medical Center privacy policies. (DSS 8.)

Plaintiff appealed the decision reached by the Peer Review Hearing Committee to the Appeal Board, which consisted of three different UCLA physicians from the Peer Review Hearing Committee. (DSS 9.) In August 2019, the Appeal Board affirmed the Peer Review Hearing Committee’s decision and agreed that Plaintiff’s conduct violated HIPAA and UCLA Health privacy policies and no exception applied.  The Appeal Board upheld the disciplinary decision against Plaintiff. (DSS 10.)

On October 30, 2019, Plaintiff filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 in Los Angeles Superior Court, seeking to overturn UCLA’s decision to suspend and fine him. (DSS 11.) On July 29, 2021, the trial court entered judgment against Plaintiff, denying his Writ Petition and upholding UCLA’s disciplinary decision. (DSS 13.)

On September 21, 2021, Plaintiff appealed the trial court’s order denying his Petition for Writ of Mandate. (DSS 15.) On November 29, 2022, the Court of Appeal affirmed the trial court’s denial of Koos’s petition.  The appellate court considered and rejected each of the following five defenses raised by Plaintiff, including that: (1) he did not violate HIPAA or UCLA policies HS-9401 and HS-9412 because his conduct was permissible under the ‘health care operations’ exception” recognized under these privacy rules; (2) his efforts at “patient safety,” “quality improvement” and “education” were authorized by the patient consent forms; (3) UCLA failed to consider the “Sentinel Events Policy” of the Joint Commission, the hospital’s accrediting body; (4) he did not violate the Medical Staff Bylaws; and (5) the Appeal Board incorrectly concluded that he violated UCLA visitor policy HS-1352 by providing Dr. Schifrin unauthorized access to the Labor and Delivery floor and Resident Work Room where confidential patient information was continuously displayed. (DSS 18.)

            Based on the foregoing facts, Defendant UCLA argues that the issues of whether UCLA acted appropriately in disciplining Plaintiff for violating HIPAA and UCLA Health’s privacy policies has already been adjudicated, and thus under principles of claim preclusion, there exists no triable issue of material fact on Plaintiff’s Section 1278.5 retaliation claim.[1]

These facts are almost entirely undisputed by Plaintiff. Thus, the question is largely a legal question of whether issue preclusion warrants summary judgment.

            In opposition, Plaintiff argues collateral estoppel does not apply for several reasons.

First, Plaintiff contends he was not required to seek relief on his Section 1278.5 claim action through the administrative process. Plaintiff relies on the holding in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655 for the proposition that Section 1278.5 specially authorizes a civil damages action for violations of the statute and does not require that any peer review findings be set aside by way of a mandate action. Plaintiff argues that in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, “the California Supreme Court has recognized that requiring a whistleblower plaintiff to “successfully overturn” an adverse peer review decision in the face of the highly deferential standard of review on mandamus would run contrary to the Legislature’s intent and would effectively nullify the damages remedy set forth in Section 1278.5.” (Opp. 4:18-21.)

In relying on Fahlen (and other cases), Plaintiff also takes the position that collateral estoppel cannot apply as a matter of law to Section 1278.5 because of the legislative-intent exception to collateral estoppel. Plaintiff misconceives Fahlen.

The physician plaintiff in Fahlen filed a complaint against defendant hospital and others alleging that “defendants had caused his medical group (Gould) to fire him, had tried to run him out of Modesto, and had terminated his staff privileges.... [T]he complaint sought reinstatement to the Hospital's medical staff; a declaration of defendants’ bad faith; economic and noneconomic compensation, including lost wages; costs and attorney fees; punitive damages; and other appropriate relief permitted by law.” (Fahlen, supra, 58 Cal.4th at p. 664.)

In the context of an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16, the defendants asserted that the plaintiff’s “suit lacked probable merit because, when plaintiff timely failed to seek direct judicial review of the decision by a petition for mandamus, that decision became final, and plaintiff could not thereafter attack it collaterally in this action.” (Fahlen, at p. 665.)

Our Supreme Court’s review was limited to the following issue: “[W]hether, before a physician may commence a civil suit alleging that a hospital’s quasi-judicial decision to terminate the physician’s staff privileges was wrongfully retaliatory under section 1278.5, the physician must first prevail in an administrative mandamus proceeding to set the decision aside.” (Fahlen, supra, 58 Cal.4th at p. 666.) The Court held that “a successful mandamus attack on the decision is not a necessary condition to the filing of a section 1278.5 action.” (Ibid.) That is all the Supreme Court held. (See Fahlen, supra, 58 Cal.4th at p. 685, [noting several undecided issues relating to § 1278.5, and stating, “We stress, however, that all these matters are beyond the scope of the narrow issue on which we granted review.”].)

Plaintiff’s reliance on Fahlen confuses the doctrine of collateral estoppel with the doctrine of exhaustion of administrative remedies. In Fahlen, exhaustion was not a prerequisite to a civil suit, but issue preclusion was expressly not decided.

The facts here are distinguishable from Fahlen because Plaintiff Koos pursued his administrative challenge[2] as well as the writ of mandamus in court. Thus, Fahlen is unhelpful to Plaintiff’s opposition to summary judgment. The question here is not whether Plaintiff was required to pursue a writ of mandate against the peer review determination before he could prosecute a section 1278.5 action. None of Plaintiff’s cited cases support his proposition that “Section 1278.5 . . . is an exception to the general rule of collateral estoppel.” (Opp. 11:18-19.) ^[3]

In response, Defendant UCLA argues that while Plaintiff is correct that nothing required him to exhaust administratively to bring a claim for retaliation under Health and Safety Code section 1278.5, once he chose to pursue these alternative remedies then the preclusive effect must apply.

A review of collateral estoppel in the context of FEHA cases is instructive. “Several courts have recognized the risks of pursuing both an internal administrative remedy and a FEHA civil action given the possible application of collateral estoppel in the FEHA action to knock out a key element before trial.” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1487 [citing Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086; Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 479–480; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1143–1144 [if state employee chooses to pursue both remedies, there is risk that FEHA claim may no longer be viable]].) Although Plaintiff argues these cases are based on FEHA, rather than Section 1278.5, this is unpersuasive because of the similar policy goals the statutes advance.  Plaintiff cites to no authority holding that FEHA retaliation claims have different issue preclusion rules than do claims under other whistleblower-protection statutes.

A final point is that the issue decided in the administrative proceeding/writ action and in the instant civil action are identical.

To determine whether two proceedings involve identical issues, courts “consider several factors: ‘Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings?’ ” (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1689.)

Here, the same operative facts are underlying both the civil action for a violation of Health and Safety Code section 1278.5 and the prior administrative action. (See also Compl., ¶¶ 10-32; DSS 7-18.) In opposition, Plaintiff argues that “given that the retaliation against Dr. Koos occurred before, during, and after the peer review proceeding, UCLA’s pattern of ongoing retaliation certainly was not part of the adverse decision that was the subject of the prior peer review proceeding.” (Opp. 5:1-3.) Plaintiff does not identify what those acts are. More importantly, the Complaint here was filed in October 2018 – during the administrative proceeding. No amended complaint has been filed. Thus, the Complaint frames the issue on a motion for summary judgment. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“ ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ ” and to frame “the outer measure of materiality in a summary judgment proceeding.”];  Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 [“We do not require [defendant] to negate elements of causes of action plaintiffs never pleaded.”].)

Plaintiff argues that the civil litigation here does not involve the “identical issue” raised in the administrative proceeding and writ petition because the peer review proceeding did not address UCLA’s alleged retaliatory intent.

It is true Plaintiff did not seek adjudication of his Section 1278.5 claim in the underlying administrative proceeding or the subsequent mandamus action. However, UCLA invokes issue preclusion, not claim preclusion. Thus, as is relevant under this doctrine, the issue –  wrongfulness of the discharge – is identical in both the administrative proceeding and this suit.

Defendant UCLA relies on Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477. This case is instructive.

In Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, a municipal employee was terminated for tardiness and unauthorized absences. (Id. at p. 479.) He unsuccessfully challenged his termination at an administrative hearing, at which he presented evidence showing that his attendance was satisfactory. (Id. at pp. 479, 482.) He also presented some evidence of disparate treatment, but did not argue that the discrimination was based on age, race, or national origin—factors which formed the basis of his subsequent FEHA action. (Id. at pp. 479–480, 482.) After his discharge was reaffirmed in the administrative proceeding, he then filed a petition for administrative mandate seeking review of the administrative decision. (Id. at 479.)  

While the mandate petition was pending, the plaintiff filed an action in which he alleged that he had been wrongfully discharged based on his age, race, and national origin, and in violation of public policy. (Id. at p. 480.) After the writ of mandate petition challenging the administrative decision was denied, the trial court in the civil FEHA action granted the defendant employer's motion for summary judgment on the FEHA wrongful discharge complaint on the ground that it was barred by collateral estoppel. (Id. at p. 481.)

In reviewing the trial court’s decision granting summary judgment on collateral estoppel, the Court of Appeal held since the employee could not prove wrongfulness of discharge, an element of a FEHA claim of discrimination, the employer was entitled to judgment as a matter of law. (Id. at pp. 486–487.)

Koos’s Complaint specifically alleges that the retaliatory conduct of Defendant UCLA “resulted in disciplinary action of [Plaintiff] done in bad faith . . ..” (Compl., ¶ 43.) That is, he alleged that the decision to discipline was wrongful because it was based on unlawful retaliation. The administrative action and subsequent writ action adjudicated the same issue: whether Plaintiff violated policies that warranted discipline in the administrative action and, in the writ action, whether UCLA’s purported basis for disciplining Plaintiff was supported by the weight of the evidence. (DSS 7-18.) As in Castillo, Plaintiff posited a new legal theory to attack this issue in the civil action before this Court. Nevertheless, the issue remains the same. Both proceedings are based on the same set of facts and adjudicated the same issue. Thus, Koos’s administrative challenge, finally rejected by the Court of Appeal, precludes him from relitigating the same issue in this action.

There is no dispute that the administrative proceeding and subsequent writ of mandamus action resulted in a final adjudication on the merits. Nor is there any dispute that the same parties were involved. Therefore, each element of collateral estoppel is met.[4]

Further, to allow Plaintiff to relitigate the same issue would “diminish the value of the administrative process that concluded that [discipline imposed] was proper,” encourage repetitive litigation, and subject the state to baseless or unjustified litigation after Plaintiff had an adequate opportunity in the administrative proceeding to prove that his discipline was wrongful. (Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 483–484.)

Conclusion

            Defendant UCLA’s motion for summary judgment is granted. Within 10 days, Defendant is to submit and serve a proposed Judgment consistent with the Court’s ruling.