Judge: Curtis A. Kin, Case: 22STCV01770, Date: 2022-12-20 Tentative Ruling

Case Number: 22STCV01770    Hearing Date: December 20, 2022    Dept: 72

MOTION FOR SUMMARY JUDGMENT

Date:         12/20/22 (9:30 AM)               

Case:         Gezel Saheli, M.D. v. California Medical Board (22STCV01770)

TENTATIVE RULING:

Defendant Medical Board of California’s Motion for Summary Judgment is GRANTED.

Defendant Medical Board of California’s requests for judicial notice are GRANTED, pursuant to Evidence Code § 452(d).  Defendant’s evidentiary objections are OVERRULED.

Defendant Medical Board of California (“Board”) moves for summary judgment on the ground that plaintiff Gezel Saheli, M.D.’s failure to exhaust administrative remedies bars the entire action.

I.                   REQUIREMENT TO EXHAUST ADMINISTRATIVE REMEDIES

Under the doctrine of exhaustion of administrative remedies, “‘where an adequate

administrative remedy is provided by statute, resort to that forum is a “jurisdictional”

prerequisite to judicial consideration of the claim.’ [Citation.]” (McAllister v. County of

Monterey (2007) 147 Cal.App.4th 253, 274.) “[A]n administrative remedy is exhausted only

upon ‘termination of all available, nonduplicative administrative review procedures.’ [Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.)

An individual seeking medical licensure files an application pursuant to B&P Code § 2080 et seq. In response, the Board may issue a license, deny a license, or issue a probationary license subject to terms and conditions. (B&P Code §§ 2004(h), 2221(a).) If the application for a license is denied, the applicant can seek review of that decision before an administrative law judge. (B&P Code § 2230 [proceeding against an applicant for licensure to be conducted in accordance with Administrative Procedure Act, Gov. Code § 11500 et seq.]; Gov. Code §§ 11504, 11512.) The applicant has the right to call witnesses, cross-examine opposing witnesses, and present evidence during the hearing. (Gov. Code § 11513.) After the hearing, the administrative law judge prepares a proposed decision that a panel of Board members may thereafter adopt, modify, or reject. (Gov. Code § 11517(c)(1), (c)(2); B&P Code § 2008.) The applicant can then challenge the Board’s decision through a petition for writ of mandate. (CCP § 1094.5.)

II.                DENIAL OF APPLICATION

Defendant meets its initial burden on summary judgment by presenting a letter it issued to plaintiff on September 2, 2022, which stated: “After careful consideration of all documentation submitted in support of your application, it has been determined that grounds exist to deny your application for licensure….” (UMF 61, citing Lyles Decl. ¶ 22 & Ex. 38 at 1.) The letter then set forth the grounds for denial, including dishonesty in plaintiff’s initial application for licensure, behavior issues during training, continued dishonesty in communications with Board staff, and refusal to submit to a psychiatric examination. (Ibid.)

Plaintiff maintains that defendant’s phrasing that “grounds exist” to deny the license does not constitute an affirmative denial. (Resp. to UMF 61.) Based on this argument, plaintiff maintains that she cannot avail herself of the administrative review procedures set forth above.  Even if the Board’s use of “grounds exist” in the letter is arguably ambiguous, plaintiff fails to raise a genuine issue of dispute material fact concerning whether the letter is a denial.  After the Board set forth the grounds for denial of plaintiff’s application, the Board states unambiguously in the letter: “If you choose to contest this denial, you have the right…to request an administrative hearing if a written request is made within sixty (60) days from the date of receipt of this letter.” (UMF 61, citing Lyles Decl. ¶ 22 & Ex. 38 at 2.) The Board continued: “Denial of the application will give you the right to request an administrative hearing before an administrative law judge (ALJ).” (Ibid.) Toward the end of the letter, the Board requested plaintiff to “provide a written response no later than November 2, 2022, regarding your intention to either withdraw [your application], accept the denial of your application, or contest the denial of your application and request an administrative hearing.” (Id. at 3.)

The September 2, 2022 letter read as a whole leaves no doubt that the Board denied plaintiff’s application for medical licensure.

Case law recognizes an exception to exhaustion exists when the agency “indulges in unreasonable delay.” (Hollon v. Pierce (1967) 257 Cal.App.2d 468, 476.) However, such an exception is appropriate when the “administrative machinery had stopped.” (Ibid. [administrative commission decided to take no action pending civil action].) Here, regardless of whether defendant unreasonably delayed in denying plaintiff’s application, the Board has now denied plaintiff’s application. Accordingly, for plaintiff to proceed with this action, plaintiff must demonstrate that she exhausted the administrative remedies provided in B&P Code § 2230 and Gov. Code § 11500 et seq, namely a hearing before an administrative law judge.

III.             AUTHORITY TO DENY APPLICATION FOR LICENSURE

Plaintiff maintains that the September 2, 2022 letter did not constitute a denial of plaintiff’s application because it was signed by Chief of Licensing. Plaintiff cites 16 C.C.R. § 1301(a) for the proposition that the Chief of Licensing can only approve applications for medical licensure, not deny such applications. Under 16 C.C.R. § 1302, “all functions necessary to the dispatch of business of the division [i.e., Medical Board of California] in connection with investigative and administrative proceedings under the jurisdiction of the division relative to denials of licensure” are delegated to, among others, the Chief of Licensing. (16 C.C.R. § 1300.4(e) [defining “division”].) After considering the documentation in support of plaintiff’s application, the Board decided to deny the application. (UMF 61, citing Lyles Decl. ¶ 22 & Ex. 38.) Under 16 C.C.R. § 1302, such denial can be executed by the Chief of Licensing.

IV.             PURPORTED ABANDONMENT OF APPLICATION

Plaintiff also argues that the September 2, 2022 letter was not an effective denial, because the application had been abandoned by plaintiff.

Title 16, California Code of Regulations, section 1306(a)(2) states that an application shall be deemed abandoned if the applicant fails to “undergo a required evaluation within six months from the date of written notification from the board of the need to undergo an evaluation.”  Section 1306(a)(2) also contains an explicit carve out for such deemed abandonment, namely, a situation “otherwise authorized by the board.”  (16 C.C.R. § 1306(a)(2).)

Here, on January 5, 2022, the Board informed plaintiff of the requirement to undergo a psychiatric evaluation. (UMF 22.)  It is undisputed defendant met and conferred with plaintiff regarding the psychiatric evaluation in May and June 2022. (UMF 45-47.)  On July 7, 2022, plaintiff sent the Board a letter from Mark McDonald, M.D. indicating that she underwent a psychiatric evaluation. (UMF 56.)  On August 12, 2022, the Board sent plaintiff a letter indicating that the letter rom Dr. McDonald “does not satisfy the requirement for a psychiatric condition” and indicating that, by August 22, 2022, plaintiff must inform the Board “whether you agree to undergo the required psychiatric assessment.”  (UMF 58; Ex. 36)   On August 22, 2022, plaintiff declined to undergo the psychiatric evaluation in an email to the Board. (UMF 59, 60.) Eleven days later, the Board denied plaintiff’s application. (UMF 61.)

Based on the Board’s undisputed meet and confer efforts up to August 2022, there is no genuine disputed issue of material fact that the Board authorized more than six months from notification of the psychiatric evaluation requirement for plaintiff to submit to such an evaluation. Accordingly, plaintiff’s application was not abandoned pursuant to section 1306(a)(2).  To the contrary, the undisputed facts show that plaintiff ultimately declined the evaluation, and the Board accordingly denied plaintiff’s application.

The Board’s denial triggered the requirement for plaintiff to seek an administrative hearing or lose the right to seek judicial relief.

V.                WITHDRAWAL OF REQUEST FOR HEARING

On September 8, 2022, the Board received a letter from counsel for plaintiff requesting an administrative hearing. (UMF 62.) Plaintiff contends that she withdrew that request on October 5, 2022. (Pl. UMF 9.)  Plaintiff thus takes the position that withdrawing the request for an administrative hearing somehow relieves her from exhausting administrative remedies.  Plaintiff cites no authority for this novel proposition. “The fact that the remedy is no longer available does not, of course, alter application of the doctrine, as to hold otherwise would obviously permit circumvention of the entire judicial policy behind the doctrine.” (Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 687.) Simply put, plaintiff cannot withdraw from the requirement to seek an administrative hearing before resorting to judicial intervention.

VI.             SUITABILITY OF COURT TO REVIEW LEGAL QUESTIONS

Plaintiff also argues that she is excused from the administrative review process because the resolution will not be based on disputed issues of fact, but whether the Board’s demand for a

psychiatric evaluation was authorized under B&P Code § 820. “Where the administrative review will serve no purpose due to there being no need for the hearing officer to either decide disputed

factual issues or furnish expertise essential for later judicial review, it is more efficient for the

court to review the legal questions.” (Bollengier v. Doctors Medical Center (1990) 222

Cal.App.3d 1115, 1130.)

Even if the issue of whether B&P Code § 820 authorizes the Board to require a psychiatric evaluation is a legal question requiring the interpretation of B&P Code § 820, when “the purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s its] independent judgment, taking into account

and respecting the agency's interpretation of its meaning.” [Citations.]’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.) Thus, it cannot be said that administrative

review would serve no purpose or would hinder judicial economy. Should plaintiff disagree with the Board’s interpretation of B&P Code § 820, she can seek a writ of mandate under CCP § 1094.5. (Contractors’ State License Bd. v. Superior Court (2018) 28 Cal.App.5th 771, 783 [“It is difficult to see how allowing a parallel declaratory judgment action will promote judicial economy”].)

VII.          CONCLUSION

Defendant Medical Board of California has demonstrated that it has denied plaintiff Gezel Saheli, M.D.’s application for medical licensure. (UMF 61.) Plaintiff fails to demonstrate a triable issue as to whether she is required to exhaust administrative remedies and as to whether she in fact failed to exhaust such administrative remedies.

The motion for summary judgment is GRANTED. Defendant Medical Board of California is ordered to submit a proposed judgment of dismissal within five (5) court days hereof.