Judge: Curtis A. Kin, Case: 22STCP03196, Date: 2023-10-10 Tentative Ruling

Case Number: 22STCP03196    Hearing Date: October 10, 2023    Dept: 82

          Petitioner Unity Healthcare Hospice, Inc. petitions for a writ of mandate directing respondent California Department of Public Health to approve and issue petitioner a hospice license.

I.       Factual Background

            On March 1, 2021, respondent California Department of Public Health (“CDPH”) received petitioner Unity Healthcare Hospice, Inc.’s initial application for a hospice license. (Pet. Ex. 1.) On August 26, 2021, CDPH sent petitioner a letter indicating that certain forms were missing from the application. (Pet. Ex. 1.)

            On September 16, 2021, CDPH sent a letter to petitioner stating that all required forms and supporting documents were received and asking petitioner to pay the required application fee. (Pet. Ex. 2.) Petitioner sent the required fee. (Pet. Ex. 3; Opp. at 6:23-24, citing CDPH 5.)

            On November 2, 2021, CDPH sent petitioner an email listing errors in the application for petitioner to fix by December 21, 2021. (Pet. Ex. 4.) Petitioner sent the required corrections the same day. (Pet. Ex. 4; Opp. at 7:3-4, citing CDPH 8.)

            On November 17, 2021, CDPH asked petitioner whether it preferred the local District Office of CDPH or an accreditation organization hired by petitioner to conduct the required initial licensing survey. (Pet. Ex. 5.) Petitioner responded that it preferred the local District Office to conduct the survey. (Pet. Ex. 5.)

            On December 3, 2021, the Los Angeles County Department of Public Health (“LACDPH”) sent petitioner an email asking the date when it would be ready to be surveyed. (Pet. Ex. 5.) Petitioner stated that it was ready for a survey. (Pet. ¶ 15; Opp. at 7:12.)

            On December 20, 2021, LACDPH called petitioner to notify it that the survey was cancelled due to petitioner’s location in Ventura County.[1] (Pet. ¶16; Opp. at 7:13-15.) The survey was to be conducted by CDPH’s Ventura County District Office (“VCDO”) instead of LACDPH. (Pet. ¶16; Opp. at 7:13-15.) On December 23, 2021, the VCDO explained to petitioner that CDPH had sent its application to LACDPH by mistake. (Pet. ¶ 18; Opp. at 7:16-18.) The VCDO said that the survey of petitioner’s facility could not be conducted until after the new year in 2022. (Pet. ¶ 18; Opp. at 7:18-20.)

            Meanwhile, through the passage of Senate Bill 664 in the state legislature, there was an imminent statutory moratorium on the issuance of new hospice licenses as of January 1, 2022. (Former Health & Saf. Code § 1751.70, effective January 1, 2022 to December 31, 2022.) The moratorium remains in effect. (Health & Saf. Code § 1751.70.)

According to petitioner, a supervisor at the VCDO assured her that it would be issued an initial license despite the moratorium, because CDPH made the error that caused a delay in the survey. (Pet. ¶ 18.)

            On February 23, 2023, the VCDO conducted the initial licensing survey. (Pet. Ex. 7.) On March 1, 2023, CDPH sent a letter to petitioner indicating that no deficiencies were identified during the survey. (Pet. Ex. 7.)

            On March 16, 2022, CDPH informed petitioner that the application was deemed withdrawn. (Pet. Ex. 8.) Petitioner was previously informed of the option of seeking an exception to the moratorium by submitting documentation demonstrating the need for hospice services where petitioner sought to operate based on the concentration of existing hospice services in the area of the proposed facility. (Pet. Ex. 8; Health & Saf. Code § 1751.75(a).) Because petitioner did not submit any response by CDPH’s deadline of January 31, 2022, petitioner’s application was automatically withdrawn, and the application fee was refunded. (Pet. Ex. 8.)

            On May 4, 2022, a District Administrator at the Ventura County District Office of CDPH acknowledged to another CDPH employee that petitioner was misinformed that its application posed no problem despite the moratorium. (Pet. Ex. 9.)

II.      Procedural History

            On August 29, 2022, petitioner filed a verified petition for writ of mandate. On October 17, 2023, respondents CDPH and Tomas Aragon, M.D., in his official capacity as Director of CDPH, filed an answer. On July 31, 2023, petitioner filed an opening brief. On September 11, 2023, respondent CDPH filed an opposition. No reply has been filed.

III.     Standard of Review

“The procedure set forth in [CCP] section 1085 is used to review adjudicatory decisions when the agency is not required by law to hold an evidentiary hearing.” (Scott B. v. Board of Trustees of Orange County High School of the Arts (2013) 217 Cal.App.4th 117, 122-23.) CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency's action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court’s decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “[a]n administrative agency’s interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)        

IV.     Analysis

A.           Opening Brief

Respondent CDPH contends that petitioner did not meet its burden of proof because the opening brief was not accompanied by documents, contains no citation to documents, and contains no analysis of case law or statutory language.

            For ordinary mandamus proceedings, “The evidence must be attached as exhibits to the parties’ briefs….” (Local Rule 3.231(h).)

A memorandum of points and authorities is required for a noticed motion, including for mandamus. (See CCP § 1094; Cal. Rule of Court 3.1113(a), (b).) “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rule of Court 3.1113(b); see also Local Rule 3.231(i)(2) [opening brief must cite to administrative record].)

            Petitioner’s opening brief contains a citation to CCP § 1085, along with its position concerning CDPH’s official duty and petitioner’s beneficial interest. (OB at 4:19-5:5.) While petitioner’s brief was not accompanied by exhibits, the documents referenced in the opening brief were attached to the operative petition and authenticated by one of petitioner’s owners. (Verification to Petition; CDPH 17.) The Court accordingly addresses the merits of petitioner’s opening brief and petition.

B.           Exhaustion of Administrative Remedies

“In general, a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) The exhaustion doctrine “requires that a party must not only initially raise the issue in the administrative forum, but he must proceed through the entire proceeding to a final decision on the merits of the entire controversy.” (McHugh v. County of Santa Cruz (1973) 33 Cal.App.3d 533, 539.) “[E]xhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts.” (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 293.) “The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 391.)

Under Health and Safety Code §§ 1747(a) and 1748(a), no person shall establish or operate a hospice without a license issued by CDPH. Persons who have been denied a hospice license can request an administrative hearing. (Health & Saf. Code § 1755(b) [“Proceedings for the denial, suspension, or revocation of licenses under this chapter shall be conducted in accordance” with the administrative hearing requirements under Gov. Code § 11500, et seq.].) Thus, according to respondent, because petitioner did not avail itself of that administrative process, petitioner failed to exhaust administrative remedies.

However, petitioner’s application was not denied. Rather, because petitioner did not attempt to demonstrate the need for hospice services in the area of the proposed facility, as provided under Health and Safety Code § 1751.75(a), petitioner’s application was deemed “withdrawn,” and CDPH refunded the application fee, closed the application, and took “no further action.”  (Pet. Ex. 8; CDPH 13-14.)  No decision or denial was made with respect to petitioner’s application. Thus, because Health & Safety Code § 1755(b) only provides for an administrative hearing when the agency denies, suspends, or revokes a license, petitioner did not fail to exhaust administrative remedies with respect to the agency’s failure to issue a hospice license here.  (See Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 99-100 [“The doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided by statute, regulation, or ordinance, relief must be sought by exhausting this remedy before the courts will act] [emphasis added].)  Respondent makes no other argument and cites no other authority to support the claim that petitioner fails to demonstrate exhaustion of administrative remedies.

            Indeed, it would appear that petitioner did seek relief directly with CDPH with respect the non-issuance of a hospice license.  Petitioner submits internal correspondence between CDPH officials indicating that petitioner made some type of internal “appeal” to CDPH.  (See Pet. Ex. 9 [“This was an appeal based on issues from the get go of CAB sending this application to the incorrect DO where it sat until December 23rd at which time the Ventura DO received it and due to our surveyor workload and holidays we were unable to schedule the survey until after the first of the year”].)

            Accordingly, the Court finds petitioner availed itself of the remedies available to it and did not fail to exhaust administrative remedies.

C.           Section 1085 Writ Relief

Respondent argues that petitioner has not demonstrated that it would have obtained a hospice license but for CDPH’s error in sending the application to Los Angeles County, instead of Ventura County. Respondent maintains that petitioner has not demonstrated that it satisfied all the requirements for licensure, specifically being of good moral character and demonstrating the ability to comply with the rules and regulations governing hospice care. (Health & Saf. Code § 1749(a)(1-2).)  The Court agrees.

Even if true that CDPH acted arbitrarily and capriciously (or failed to follow proper procedures) by failing in a ministerial duty to timely adjudicate and send petitioner’s application to the correct District Office (i.e., Ventura County) for a licensing survey, petitioner nonetheless fails to demonstrate its entitlement to a clear, present, and beneficial right to the grant of its application prior to the January 1, 2022 hospice license moratorium.  As pointed out by respondent, petitioner makes no showing of good moral character or ability to comply with governing hospice rules and regulations.  Thus, even if CDPH had timely completed its licensing survey of petitioner’s facility prior to January 1, 2022, as petitioner argues CDPH was obligated to do, petitioner still fails to show that petitioner was entitled to the grant of its hospice license by the start of the moratorium.

 For the foregoing reasons, petitioner fails to show entitlement to mandamus relief pursuant to CCP § 1085. (California Assn. for Health Services at Home, 148 Cal.App.4th at 704 [essential element for issuance of traditional writ of mandate is “a clear, present and beneficial right on the part of the petitioner to the performance” of respondent’s ministerial duty].)

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), respondent California Department of Public Health shall prepare, serve, and ultimately file a proposed judgment in accordance herewith.