Judge: Elaine W. Mandel, Case: 21SMCV01884, Date: 2023-02-23 Tentative Ruling

Case Number: 21SMCV01884    Hearing Date: February 23, 2023    Dept: P

Tentative Ruling

Chein v. Providence Saint John’s Health Center et al., Case No. 21SMCV01884

Hearing Date February 23, 2023

Defendants’ Motion for Stay of Action Pending Peer Review

Defendants’ Demurrer to Third Amended Complaint

Plaintiff doctor Chein alleges defendants wrongfully suspended her staff privileges in retaliation for exposing alleged racial discrimination and substandard care at defendants’ hospital. An administrative peer review hearing under Cal. Bus. and Profs. Code §809 is pending. This lawsuit also challenges the events at a prior peer review §809 hearing. Defendants move to stay this action pending the hearing or, in the alternative, to stay discovery. Defendants also demur to the third amended complaint. The court previously sustained a demurrer to all non-whistleblower claims in the second amended complaint because plaintiff had not exhausted administrative remedies.

Motion for Stay

A court has inherent power to stay proceedings where a stay will accommodate the ends of justice. OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141. The California Supreme court opined, in dicta, that efficiency and deference to the peer review process may justify delaying a health care facility whistleblower action under Cal. Health and Safety Code §1278.5 until peer review proceedings are resolved. Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 684. Dicta from a California Supreme Court opinion should be treated as persuasive authority by lower courts. Mendoza v. Easton Gas Co. (1988) 197 Cal.App.3d 781, 788.

Defendants seek to stay pending the peer review hearing, arguing it will address the same issues as the litigation. Defendants argue the outcome of the administrative will be binding as to overlapping issues and allowing both to proceed risks inconsistent rulings.

Plaintiff notes Fahlen is dicta, not binding authority. Although dicta in a Supreme Court ruling is persuasive authority, the relevant dicta is inconclusive. The Supreme Court stated it would “pass no judgment” on when or whether a stay applies in a whistleblower case, stating it would “await [the issue’s] development in further cases. Fahlen, supra, 58 Cal. 4th 655 at 685. Fahlen declined to establish a test for determining whether a pending administrative hearing should stay a whistleblower action; absent such guidance, this court declines to stay the proceedings.

Whistleblower actions are specifically exempted from the administrative exhaustion rule. Granting defendants’ motion and requiring plaintiff to wait until the administrative proceedings conclude essentially abrogates the exception, imposing a judge-made exhaustion requirement not included in the statute. DENIED.

Demurrer

Non-Whistleblower Claims

Defendants demur to the non-whistleblower claims on the grounds that plaintiff has not adequately alleged the administrative remedies are futile.

As the court noted in its previous rulings on demurrers, administrative exhaustion is excused when “the administrative remedy is unavailable or inadequate.” Tiernan v. Trustees of California State University & College (1983) 655 P.2d 317. Previous versions of the complaint did not adequately allege inadequacy.

The third amended complaint is similarly deficient. The new inadequacy allegations state defendants “kept open” a Medical Board proceeding against plaintiff but fail to explain how defendants have the power to influence such proceeding or how the proceeding affects the peer review hearing. Additionally, plaintiff claims defendants’ hearing officer, Glenda Zarbock, will be biased due to Zarbock’s prior legal practice as a “pro-hospital” attorney. Plaintiff fails to adequately allege bias and does not present case or statutory authority that a hearing officer’s legal background is proof of bias or inadequacy. Plaintiff’s arguments regarding the bylaws and availability of sufficient remedies were twice rejected by this court in the prior demurrers. The court will not entertain arguments it has already considered and rejected. SUSTAINED without leave to amend.

Whistleblower Claim

Defendant Providence demurs under Cal. Health & Safety Code §1278.5. Providence was named in this cause of action in the second amended complaint and did not include the whistleblower claim in its demurrer to that pleading. Under Cal. Code of Civ. Proc. §430.41 (b), “a party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any version of the amended complaint . . . that could have been raised by demurrer to the earlier version of the complaint[.]” PH&S could have demurred to the whistleblower claim in the earlier version of the complaint on the same grounds raised here, but failed to do so. OVERRULED.