Judge: Carolyn M. Caietti, Case: 37-2023-00006013-CU-WM-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Writ of Mandate Hearing on Petition 37-2023-00006013-CU-WM-CTL GARFIELD BEACH CVS LLC VS BOARD OF PHARMACY DEPARTMENT OF CONSUMER AFFAIRS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Petitioner Garfield Beach CVS, LLC dba CVS Pharmacy #5837's Verified Petition for Writ of Administrative Mandate is DENIED.

Preliminary Matter The Court received and reviewed Petitioner's unopposed Notice of Lodging Hearing Exhibits Conditionally Under Seal.

Background This is a petition brought under C.C.P. section 1094.5. The California State Board of Pharmacy (Board) adopted a proposed decision by an administrative law judge (ALJ), affirming a citation issued to CVS for failing to secure patient prescription records in a manner that would maintain confidentiality as required by law, and ordering CVS to pay an administrative fine in the amount of $2,500.

Underlying this matter is Petitioner's storage of patient records in an unlocked storage room on the second floor of Petitioner's store alongside other retail merchandise. On October 8, 2019, a Board inspector conducted an inspection of Petitioner's pharmacy. The pharmacy is located at the back of a retail space, which includes non-pharmacy retail items for sale. (AR 5-6; AR 288-289; AR 292-293.) The pharmacy area is a separate space with its own cameras, motion sensors, alarms and separated by doors and locks; only the pharmacists have keys to those locks. (AR 292-293; However, CVS also stored patient records upstairs in a warehouse area of the retail space along with other merchandise.

(AR 5; AR 287-288; AR 291-292.) Double-doors located on the first floor of the retail space led to a stairway to access the upstairs storage area. (AR 6-7; AR 288-289; AR 294-298; AR 287.) The double-doors were monitored by cameras, but did not lock. (Ibid.) A keypad at the doors required entry of a code. If no code or an incorrect code was entered before opening the door, an alarm would sound.

The keypad did not prevent anyone from walking through the doors. (Ibid.) Once through the double-doors, nothing prevented access to the patient records. (AR 297.) All CVS store employees, including non-pharmacy employees, had access to the storage warehouse and all had a code to prevent the alarm from sounding. (AR 6-7; AR 294-99.) The patient records were kept in closed boxes, some of which were taped, and located near other retail merchandise. (AR 7, AR 152-155; AR 303-307; AR 316-317.) Non-employees had access to the warehouse space, hours of operation of the retail space were longer than that of the pharmacy and non-pharmacy employees continued to have access to the space when the pharmacy closed. (AR 6-7; Calendar No.: Event ID:  TENTATIVE RULINGS

3005293  32 CASE NUMBER: CASE TITLE:  GARFIELD BEACH CVS LLC VS BOARD OF PHARMACY  37-2023-00006013-CU-WM-CTL AR 298-300.) At the inspection, the Pharmacist in Charge expressed concern with the way records were stored, stated she asked the district manager of CVS about it and was informed the records 'did not need to be locked up.' (AR 300.) The inspector issued a Written Notice of Violation, stating the pharmacy was not in compliance with the Board's requirements the pharmacy maintain prescription records in a manner that ensured patient confidentiality because it stored prescription records in an upstairs stock room with other store merchandise and those prescription records were not stored in a secure manner. (AR 7-8; AR 151, AR 314-317.) On November 6, 2020, the Board issued Citation No. CI2019 85547 in the amount of $2,500 based on the alleged violation of Civil Code section 56.101 and California Code of Regulations, title 16 (CCR) sections 1714(d) and 1707(g)(2). (AR 36-46.) Petitioner appealed the citation and the matter proceeded to a hearing before an ALJ, who rendered a proposed decision affirming the citation in full. On December 12, 2022, the Board adopted the proposed decision as its order. (AR 1-20.) On February 10, 2023, Petition filed the instant petition for writ of mandate.

Standard of Review When a party files a petition for writ administrative mandamus challenging an adjudicatory decision, the inquiry by the trial court is limited 'to the questions whether the [administrative agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [administrative agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.' (C.C.P., § 1094.5(b).) 'Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' (C.C.P., § 1094.5(c).) Petitioner does not maintain the administrative decision involved or substantially affected a 'fundamental vested right.' Thus, the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record. (Alpha Nu Assn. of Theta XI v. University of Southern California (2021) 62 Cal.App.5th 383, 408-09; see also, Handyman Connection of Sacramento, Inc. v. Sands (2004) 123 Cal.App.4th 867, 880 ['where the only sanction imposed is a fine-not revocation, suspension, or restriction of the petitioner's license-no fundamental vested right is implicated and the trial court is not authorized to exercise independent judgment on the evidence.'].) Discussion Collateral Estoppel Does Not Apply Petitioner first argues the Board abused its discretion in determining collateral estoppel, or issue preclusion, did not apply. As background, in a case decided In the Matter of Garfield Beach CVS, LLC dba CVS #6755 (Store 6755 Case), the Board held a hearing on a citation issued to Store 6755. There, the pharmacy records were stored 'behind a locked access door.' (AR 176.) Ultimately, the Board adopted the ALJ's decision to dismiss the citation.

Issue preclusion applies: (i) after final adjudication; (ii) of an identical issue; (iii) actually litigated and necessarily decided in the first suit; and (iv) 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.) The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. (Lucido v. Superior Court (1990) 51 Cal.3d Calendar No.: Event ID:  TENTATIVE RULINGS

3005293  32 CASE NUMBER: CASE TITLE:  GARFIELD BEACH CVS LLC VS BOARD OF PHARMACY  37-2023-00006013-CU-WM-CTL 335, 342 [requirement fulfilled because the petitioner's alleged commission of indecent exposure was at issue in each proceeding].) Thus, 'when an issue of ultimate fact has been determined by a valid and final judgment, that issue cannot be relitigated...in a future lawsuit.' (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 249; see also, Thompson v. Crestbrook Insurance Company (2022) 81 Cal.App.5th 115, 126 (explaining, although the 'ultimate issue' of how to interpret a policy term may have been identical, it did not create 'the sort of 'identity of issues' required for issue preclusion').) Here, Petitioner has not met its burden the two cases involve an identical issue. Among other factors, access to the storage room at Store 6755 was limited by a locked access door. Comparatively here, the doors leading to the storage area where the patient records were kept were always unlocked and only had a code to enter on a keypad to prevent an alarm from sounding when the doors opened. The keypad did not prevent anyone from entering the storage room. Contrary to Petitioner's arguments, this is a critical difference between the two cases. Thus, the Board did not prejudicially abuse its discretion when it affirmed the citation, finding the issues were not identical, precluding claim preclusion.

Substantial Evidence Supports the Board's Decision Petitioner Failed to Comply with the Pertinent Laws and Regulations Harm and Injury are Not Required Petitioner first maintains the Board abused its discretion in affirming the citation because the Board did not present evidence that any member of the public accessed the warehouse or any of the pharmacy records stored there. However, no such evidence was required in this context.

Unlike a civil action for damages, injury or harm to a patient is not required in an administrative action by a licensing agency. Civil Code section 56.101 requires every provider of health care who 'creates, maintains, preserves, stores, abandons, destroys, or disposes of medical information shall do so in a manner that preserves the confidentiality of the information contained therein.' (Civil Code, § 56.101(a).) Thus, CVS was required to store the records in such a way that preserves confidentiality of the information.

It then goes on to state any provider who acts negligently in certain ways is subject to remedies and penalties. (Ibid.) While civil actions for damages can follow, for example, pursuant to Civil Code section 56.36, Civil Code section 56.101 does not require injury or harm to a patient in an administrative action by a licensing agency. (See, Kearl, MD v. Bd. Med. Qual. Assur. (1986) 189 Cal.App.3d 1040, 1053 (ruling Business and Professions Code section 2234, which allows the medical board to take action against licensees for 'unprofessional conduct,' did not require injury or harm to the patient before action could be taken against the physician or surgeon); Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 515, fn. 7 (actual harm to the patient and causation are not required to be shown in a license disciplinary proceeding because the purpose of such proceedings is to protect the public by imposing discipline before the licensee causes actual harm).) This makes Petitioner's reliance on Sutter Health v. Superior Court (2104) 227 Cal.App.4th 1546, 1556 misplaced as Sutter concerned a civil action for damages under Civil Code section 56.36, which required a showing of injury. The Court agrees with Petitioner that the Board was not required to wait for patient harm before taking action.

Maintenance of Records Petitioner next argues it did not violate any regulation or statute by storing pharmacy records in a room accessible to non-pharmacy employees. However, substantial evidence supports the finding Petitioner violated various laws when it did not properly store patient records.

As discussed above, providers like Petitioner must maintain and preserve medical information 'in a manner that preserves the confidentiality of the information contained therein.' (Civ. Code, § 56.101(a).) Pharmacy records may be stored in a storage area at the same address or adjoining the licensed Calendar No.: Event ID:  TENTATIVE RULINGS

3005293  32 CASE NUMBER: CASE TITLE:  GARFIELD BEACH CVS LLC VS BOARD OF PHARMACY  37-2023-00006013-CU-WM-CTL premises without the necessity of a waiver on the condition that 'the storage area is maintained so that the records are secure and so that the confidentiality of any patient-related information is maintained.

(CCR § 1707(g).) In addition, CCR 1714 provides, '[e]ach pharmacist while on duty shall be responsible for the security of the prescription department...' (CCR § 1714.) Here, the administrative record shows the patient records were stored in an unlocked storage area alongside other retail merchandise. The doors to the storage area remained unlocked during store hours (including after the pharmacy closed), allowing non-pharmacy employees and members of the public to enter. A code to a keypad was only required to prevent an alarm from sounding; but not from preventing unauthorized entry. There was no evidence the code ever changed after CVS employee's employment was terminated or left employment. The district manager also admitted it was possible for non-pharmacy staff to gain access and view confidential patient records without her knowledge. Other CVS locations maintained patient records secured behind a locked gate. The Pharmacist in Charge tried addressing the security concern to no avail. Petitioner's own policies required keeping records in a locked file cabinet or desk drawer, but the district manager confirmed Petitioner did not comply with this policy. (AR 429-430.) Taken as a whole, this is substantial evidence of CVS not preserving the confidentiality of patient records. In addition, the Court is mindful that the construction of a statute by the officials charged with its administration is entitled to great weight. (Morris v. Williams (1967) 67 Cal.2d 733, 748.) Thus, the Board did not prejudicially abuse its discretion when it affirmed the citation, finding Petitioner did not maintain the confidentiality of its patient records.

Concluding Orders For these reasons, the petition for writ of mandate is DENIED.

Respondent is ordered to maintain custody of the administrative record in its original form pending exhaustion of any appeals of this matter.

Petitioner is ordered to: (i) prepare and submit a judgment in accordance with any rules and laws; and (ii) serve written notice of this ruling by December 19, 2023.

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