Judge James C. Chalfant, Case 22STCP03515 2023-01-05 Tentative Ruling

Respondent Medical Board of California (“Medical Board”) demurs to the Petition filed by Petitioner Anatoly Bulkin (“Bulkin”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Bulkin filed the Petition against the Medical Board on September 26, 2022 alleging a single cause of action for traditional mandamus under CCP section 1085. The Petition alleges in pertinent part as follows.

In 1997, the Legislature enacted Business and Professions Code[2] section 2027. Pet., ¶5. Section 2027 required the Medical Board to post to its website any information concerning arbitration awards reported to the Medical Board after January 1, 1993. Pet., ¶5. In 2002, the Legislature amended section 2027 to post such information only for ten years after the date the Medical Board obtains possession, custody, or control of the information. Pet., ¶5. The Medical Board was required to remove that information from the website at the end of the ten-year period. Pet., ¶5.

A January 1, 2015 amendment to section 2027 required the Medical Board to post historical information in its possession, custody, or control about arbitration awards for a claim or action for damages for death or personal injury caused by the physician and surgeon's negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services. Pet., ¶6; §2027(b)(6). Section 800 defines the historical record to include malpractice judgments and settlements over $3,000.00, but it does not list arbitration awards. Pet., ¶7. CCP section 1295 separately addresses the arbitration of medical malpractice claims. Pet., ¶8. The Legislature has amended section 800 but never added arbitration awards to the list of files to be included in the historical record. Pet., ¶8.

The Medical Board has licensed Bulkin as a physician and surgeon since 1994. Pet., ¶1. The discipline on the Medical Board’s website under his license history includes an arbitration award dated November 5, 2002 (“Award”) for $998,000 and does not identify Bulkin by name. Pet., ¶¶ 4, 9, Ex. A. The Award shows that multiple physicians and staff associated with Kaiser Foundation Health Plan (“Kaiser”) were involved in the patient’s care. Pet., ¶9, Ex. A. The Medical Board’s decision to post the Award in Bulkin’s license history was always improper. Pet., ¶10.

Assuming arguendo that the Medical Board was correct to post the Award, the iteration of section 2027 in effect required the Award’s removal from the Medical Board website on November 5, 2012. Pet., ¶10. Had the Medical Board removed the Award in 2012 as required at the time, that information would not have been in its possession, custody, or control in 2015 when the Legislature amended section 2027. Pet., ¶11.

The current iteration of section 2027 does not require posting of the Award as historical information because the award does not claim Bulkin caused the injury at issue; multiple Kaiser staff members caused it. Pet., ¶11. Section 800 also does not list arbitration awards as part of a licensee’s historical record. Pet., ¶11.

Bulkin believed in good faith that the Medical Board had removed the Award. Pet, ¶12. In July 2022, Bulkin learned that the Medical Board ascribes to Bulkin full responsibility for the Award and still has all information about it on the website. Pet., ¶13, Ex. B. Demands to remove association of the Award with Bulkin from the Medical Board website have failed. Pet., ¶14.

Petitioner Bulkin seeks (1) a writ of traditional mandate compelling the Medical Board to remove from its website any association between Bulkin’s license and the Award, and (2) attorney’s fees and costs.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP § 430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (“Blank”) (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47. The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. CCP §472a(c). However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. CCP §430.41(e)(1).

In 2014, AB 1886 proposed to recast and revise current law regarding the Internet posting of physician and surgeon licensee information. RJN Ex. 2. The California Committee Report and Legislative Council’s Digest explained that AB 1886 would require the Medical Board to post indefinitely on its website certain data related to physician and surgeon discipline. RJN Ex. 2, p. 2. This included the return of information that had been taken down after ten years. Ex. 2, p. 2. The California Committee Report acknowledged that the Medical Board removed 6,900 records from its website on January 1, 2013 because they were over ten years old. Ex. 2, p. 2. It continues to remove an additional 30-40 records per month. Ex. 2, p. 2. The Medical Board would return these records to the website if AB 1886 was passed. Ex. 2, p. 2. The information required to be posted includes a malpractice judgment or arbitration award. Ex. 2, p. 2.

Respondent Medical Board demurs to the Petition and argues that (1) it has no ministerial duty to remove the Award from the website, (2) arbitration awards are part of a licensee’s historical record under sections 800 to 802, and (3) there is no requirement that the Award must identify Bulkin by name to trigger reporting on the Medical Board website.

On the morning on October 18, 2022, the Medical Board requested to meet and confer with Bulkin and sent a copy of the demurrer. Barr-Fernandez Decl., ¶2. Counsel for Bulkin responded that the issues were fundamental disagreements on the interpretation of applicable facts and law. Barr-Fernandez Decl., ¶3. These disputes were not amenable to informal resolution. Barr-Fernandez Decl., ¶4.

The rule is settled that mandamus will not lie to compel the performance of any act which would be void, illegal, or contrary to public policy. Torres v. City of Montebello, (2015) 234 Cal.App.4th 382, 403. Because mandamus must operate in the present, an intervening change in law may moot or otherwise make such relief unavailable. Id.

The Petition alleges that the version of section 2027 in effect during 2012 required removal of the Award from the Medical Board website ten years after the Award was issued, or on November 5, 2012. Pet., ¶10. Had the Medical Board removed the Award in 2012 as required at the time, the information would not have been in its possession, custody, or control in 2015 when the Legislature amended section 2027. Pet., ¶11.

The Medical Board argues that the Petition’s allegation that it had a duty to remove the Award from its website in 2012 is moot because in 2015 AB 1886 changed section 2027 to require the indefinite posting of disciplinary information, including arbitration awards. §2027(b)(6). The legislative history of AB 1886 states that the Medical Board would be required to restore any records removed from the website due to the ten-year time limit. RJN Ex. 2, p. 2; Reply at 6. Thus, the Medical Board has no ministerial duty under an earlier version of section 2027 to remove the Award. Dem. at 10-11.

Bulkin asserts that he does not rely only on the pre-2015 section 2027. His Petition also asserts that the Medical Board should have removed the Award from its website in 2012 because it does not qualify as a historical record that may be posted under the current version of section 2027. Pet., ¶4. Opp. at 10.

The Medical Board’s duty to remove the Award in 2012 under the previous version of section 2027 is moot and irrelevant to the remaining issues. Any duty for the Medical Board not to post the Award must be based on current law.

The Medical Board must post to its website indefinitely “all of the following historical information in its possession, custody or control regarding all current and former licensees:…(6) civil judgments in any amount and arbitration awards issued in any amount, for a claim or action for damages for death or personal injury cause by the physician and surgeon’s negligence, error, or omission in practice….” §2027(b).

Section 800(a) requires the Medical Board to maintain a central file for its licensees “to provide an individual historical record for each licensee with respect to…any judgment or settlement requiring the licensee or the licensee’s insurer to pay any amount of damages above $3,000 for any claim that injury or death was proximately caused by the licensee’s negligence, error, or omission in practice, or by rendering unauthorized professional services, pursuant to the reporting requirements of section 801 or 802.” §800(a)(2).

Thus, the individual historical record of a licensee must include any malpractice judgment or settlement greater than $3000, pursuant to the reporting requirements of section 801 or 802. In turn, section 801 requires insurance carriers to report to the Medical Board any settlement or arbitration award over $3,000 of a claim or action for damages for death or personal injury caused by the licensee’s negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services. §801(a).

The Petition asserts that section 800 defines “historical records” to include malpractice judgments and settlements over $3,000 but does not include arbitration awards. Pet., ¶7. This provision informs what historical information the Medical Board must post to its website under section 2027(b)(6). Pet., ¶6. Bulkin argues that section 800’s omission of “archaic arbitration awards” from a licensee’s historical record was the Legislature’s conscious choice. Since section 2027 requires the posting of historical records, which do not include arbitration awards, the Medical Board cannot post the Award. Opp. at 4, 9-10.

The Medical Board first asserts that the Award is a malpractice judgment under section 2027(b)(6). Dem. at 15. By itself, an arbitration award clearly is not a judgment. Instead, an arbitration award has the same force and effect as a contract between the parties. CCP §1287.4. An arbitration award may be confirmed by a court which has the same effect as a civil judgment. CCP §1287.4. There is no Petition allegation or other evidence that the Award was confirmed by a civil judgment. The Award is not a judgment.

The Medical Board next argues that, assuming arguendo that the Award is not a civil judgment, section 800 includes in the historical record for each licensee all records required to comply with sections 801 and 802. From sections 801 and 802, the Medical Board concludes that arbitration awards are included in the individual historical record that must be maintained under section 800(a). Dem. at 15.

Bulkin responds that section 801(a)[4] concerns an insurer’s duty to report a pertinent “settlement or arbitration award” and does not refer at all to judgments. Opp. at 8. As such, section 801’s reporting requirements have little to do with the posting of a malpractice judgment under section 2027(b)(6). Opp. at 7-8.

The court agrees that section 801’s reporting requirements do not appear to directly bear on the individual historical record the Medical Board must maintain under section 800. It is also true, however, that the information required to be included in “an individual historical record” under section 800 does not control what information the Medical Board must post to its website under section 2027. Section 2027(b)(6) expressly states that the Medical Board shall post to its website indefinitely “all of the following historical information…(6) civil judgments in any amount and arbitration awards issued in any amount, for a claim or action for damages for death or personal injury cause by the physician and surgeon’s negligence, error, or omission in practice….” §2027(b) (emphasis added).

Section 2027(b)(6) could not more clearly state that the Medical Board must post arbitration awards. Insurers must report malpractice arbitration awards over $3000 under section 801(a) and any arbitration award under section 801.1(a)(1), and the Medical Board must post any arbitration award under section 2027(b)(6). The fact that arbitration awards may not qualify as historical information required to be maintained in a licensee’s central file by section 800 does not mean that the Medical Board cannot post such awards on its website under section 2027(b). See Reply at 5.

The Medical Board is obligated to post any medical malpractice arbitration award caused by the doctor’s negligence, error, or omission in practice. §2027(b).

A complete report shall be sent to the Medical Board with respect to a licensee as to a settlement over $30,000 or arbitration award or civil judgment of any amount, whether or not vacated by a settlement after entry of the judgment, that was not reversed on appeal, of a claim or action for damages for death or personal injury caused by the licensee’s alleged negligence, error, or omission in practice, or by the licensee’s rendering of unauthorized professional services. §801.1(a)(1).

A complete report shall also be sent as to a settlement over $30,000, if the settlement is based on the licensee’s alleged negligence, error, or omission in practice, or on the licensee’s rendering of unauthorized professional services, and a party to the settlement is a corporation, medical group, partnership, or other corporate entity in which the licensee has an ownership interest or that employs or contracts with the licensee. §801.1(a)(2).

The party obligated to report the settlement, arbitration award, or judgment shall send the complete report if the judgment, settlement agreement, or arbitration award is entered against or paid by the employer of the licensee and not entered against or paid by the licensee. §801.1(c). The report shall be deemed complete only if it includes the name and last known business and residential addresses of every licensee who was alleged to have acted improperly, whether or not that person was a named defendant in the action and whether or not that person was required to pay any damages pursuant to the settlement, arbitration award, or judgment. §801.1(g)(2)(B).

The Medical Board asserts that section 801.1 shows that an arbitration award against an employer must be reported to it as an arbitration award against the licensee found to have been negligent. Dem. at 14. Therefore, the Medical Board’s posting duty under section 2027 extends to the Award which Kaiser reported was made against Bulkin. Dem. at 14.

The Petition attaches a copy of the Award, but the Award does not identify Bulkin by name. Pet., ¶9, Ex. A. The Award shows that multiple Kaiser physicians and staff were involved in the patient’s care. Ex. A. The Medical Board notes that Bulkin does not deny that he had knowledge of the matter, that he was involved in the care and treatment of the patient, or that he was one of the physicians that the arbitrators found negligent in the care and treatment of the patient and responsible for the patient’s death. Dem. at 14.

Bulkin correctly points out that the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank, supra, 39 Cal.3d at 318. Neither the Petition nor any other evidence includes Kaiser’s report to the Medical Board and the Medical Board cannot rely on Kaiser’s report on demurrer. There is no evidence that Kaiser attributed the injury to Bulkin’s negligence, error, or omission. Opp. at 6. That Bulkin knew that the Medical Board posted the Award in 2002 and assumed that it would be removed in November 2012 is not an admission of fault. See Pet., ¶12. The Petition alleges that the decision to post the Award to his license history always was improper. Pet., ¶¶ 9-10.[5]

The Medical Board argues that the Petition “fails to establish” that Bulkin was not negligent in caring for the patient at issue in the Award, presumably because he cannot do so for a verification under penalty of perjury. Reply at 2. This is an inference which may not be drawn on demurrer. The Medical Board has not demonstrated that it was proper to post the Award under section 2027(b)(6) because it resulted from personal injury caused by Bulkin’s negligence.

The Medical Board’s duty to remove the Award in 2012 under the previous version of section 2027 is moot and irrelevant to any duty for the Medical Board not to post the Award. The Medical Board is obligated to post any medical malpractice arbitration award caused by Bulkin’s negligence, error, or omission in practice. §2027(b). As there is no evidence before the court that the Award is a malpractice arbitration award on a claim for damages for death or personal injury caused by his negligence, error, or omission in practice, the demurrer is overruled. The Medical Board has 30 days to answer only.

[1] The footnote in Bulkin’s opposition do not meet the 12-point type requirement of CRC 2.104 and has not been considered.

[2] All further statutory references are to the Business and Professions Code unless otherwise stated.

[3] In support of its demurrer, the Medical Board requests judicial notice of AR 1886’s California Committee Report, dated August 8, 2014 (RJN Ex. 2). The request is granted. Evid. Code §452(b). While the Medical Board also attaches AB 1886’s Legislative Council’s Digest, dated August 25, 2014 (RJN Ex. 1), for an unknown reason it does not seek judicial notice of this exhibit.

[4] Except as provided in sections 801 and 801.1, every insurer providing professional liability insurance to a Medical Board licensee shall send a complete report to that Medical Board as to any settlement or arbitration award over $3,000 of a claim or action for damages for death or personal injury caused by that person’s negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services. §801(a). The report shall be sent within 30 days after the written settlement agreement has been reduced to writing and signed by all parties thereto or within 30 days after service of the arbitration award on the parties. §801(a).

Section 802(a) concerns the reporting requirements of uninsured licensees. Every settlement, judgment, or arbitration award over $3,000 of a claim or action for damages for death or personal injury caused by negligence, error or omission in practice, or by the unauthorized rendering of professional services, by a licensee who does not possess professional liability insurance as to that claim shall, within 30 days after the written settlement agreement has been reduced to writing and signed by all the parties thereto or 30 days after service of the judgment or arbitration award on the parties, be reported to the agency that issued the license, certificate, or similar authority. §802(a).

[5] Bulkin asserts that the Award wrongly gives the impression that he is responsible for the full $998,000 award of damages to the patient. Opp. at 6-7; Pet., ¶9, Ex. A. Section 2027(b)(6) only requires that the physician’s negligence, error, or omission in practice caused the death or personal injury that underlies the claim. It does not require that the negligence or error was the only or primary cause. Even if posting the Award inaccurately suggests that Bulkin was entirely responsible for the damages, that fact would not entitle Bulkin to relief. See Reply at 3.