Judge James C. Chalfant, Case 22STCP03515 2023-04-13 Tentative Ruling

Petitioner Anatoly Bulkin, M.D. (“Bulkin”) seeks a writ of mandate compelling Respondent Board of California (“Board”) to remove an arbitration award dated November 5, 2002 from the Board’s website.

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

Petitioner Bulkin filed the Petition against the 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[1] section 2027. Section 2027 required the Board to post to its website any information concerning arbitration awards reported to the Board after January 1, 1993. In 2002, the Legislature amended section 2027 to require the Board to post such information only for ten years after the date the Board obtains possession, custody, or control of the information. The Board was required to remove that information from the website at the end of the ten-year period.

A January 1, 2015 amendment to section 2027 requires the 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. §2027(b)(6). Section 800 defines an “historical record” to include malpractice judgments and settlements over $3,000, but it does not include arbitration awards. The Legislature has amended section 800 but never added arbitration awards to the list of information to be included in the historical record.

The Board has licensed Bulkin as a physician and surgeon since 1994. The discipline on the Board’s website under his license history includes an arbitration award (sometimes, the “Award”) for $998,000, which does not identify Bulkin by name. The Award shows that multiple physicians and staff associated with Kaiser Foundation Health Plan (“Kaiser”) were involved in the patient’s care. The Board’s decision to post the Award in Bulkin’s license history always has been improper.

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

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

Bulkin believed in good faith that the Board had removed the Award. In July 2022, Bulkin learned that the Board ascribes to Bulkin full responsibility for the Award and still has the Award on its website. Demands to remove the Award’s association with Bulkin from the Board website have failed.

Bulkin seeks a writ of traditional mandate compelling the Board to remove from its website any association between Bulkin’s license and the Award and attorney’s fees and costs.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Ibid.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584. Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles Registrat Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

The Board is required to maintain a central file for its licensees “to provide an individual historical record for each licensee. §800(a). Each central file shall be created and maintain 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).

The Board shall prescribe and promulgate forms on which members of the public and other licensees or certificate holders may file written complaints alleging any act of misconduct in, or connected with, the performance of professional services by the licensee. §800(b)(1).

The contents of any central file that is not a public record under any other provision of law shall be confidential except that the licensee involved, or the licensee's counsel or representative, may inspect and have copies made of the licensee's complete file except for the provision that may disclose the identity of an information source. §800(c)(1). The Board may protect an information source by providing a copy of the material with only those deletions necessary to protect the identity of the source or by providing a summary of the substance of the material. §800(c)(1). Whichever method is used, the Board shall ensure that full disclosure is made to the subject of any personal information that could reasonably in any way reflect or convey anything detrimental, disparaging, or threatening to a licensee’s reputation, rights, benefits, privileges, or qualifications, or be used by a board to make a determination that would affect a licensee's rights, benefits, privileges, or qualifications. §800(c)(1).

Every insurer providing professional liability insurance to a Board licensee shall send a complete report to that agency of any settlement or arbitration award of at least $3,000 for 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).

Because the filing of reports is essential for the protection of the public, it is the intent of the Legislature that reporting requirements are interpreted broadly in order to expand reporting obligations. §801.01. A complete report of a settlement of over $30,000, an arbitration award or civil judgment of any amount 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, shall be sent to the Board by any of the insurer, the licensee, or a state or local governmental agency that self-insures the license. §801.01(b).

The entity, person, or licensee obligated to report an arbitration award shall send the complete report if the award is entered against or paid by the employer of the licensee and not entered against or paid by the licensee. §801.01(c). For this purpose, “employer” means a professional corporation, a group practice, a health care facility or clinic licensed or exempt from licensure under the Health and Safety Code, a licensed health care service plan, a medical care foundation, an educational institution, a professional institution, a professional school or college, a general law corporation, a public entity, or a nonprofit organization that employs, retains, or contracts with a board licensee. §801.01(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. §801.01(g)(2)(B). The report must also include a description or summary of the facts of each claim, charge, or allegation, including the date of occurrence and the licensee’s role in the care or professional services provided to the patient with respect to those services at issue in the claim or action. §801.01(g)(2)(E).

The 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 2027, adopted in 1997, required that the Board post on the Internet any malpractice judgment or arbitration award reported to the Board after January 1, 1993. Pet. RJN Ex. G (§2027(a)(5)).

As amended in 2012 and effective until December 31, 2014, section 2027 required that the board post on the Internet information in its possession, custody, or control regarding licensed physicians and surgeons any malpractice judgment or arbitration award reported to the Board after January 1, 1993. Resp. RJN Ex. 16. For information obtained by the Board from and after January 1, 2003, the posting was required for ten years from the date that the Board obtained it and shall be removed thereafter. Ex. 16 (§2027(c)(1)). Information in the Board’s possession, custody, or control prior to January 1, 2003 shall be posted for ten years from that date and then removed. Id.

Unlike the current iteration of section 2027(b) effective January 1, 2015, neither earlier version specified that the information needed to be “historical information” in the Board’s possession, custody, or control or regarding “current and former” licensees. Compare Pet. RJN Exs. G, H; Resp. RJN Ex. 16.

In its 2013 Sunset Review of Issues, the Board noted that the removed records remained public and could be obtained from the Board by phone or in person. Barr-Fernandez Decl., ¶¶ 16-17, Ex. 15, p. 57. The Board noted, however, that most members of the public would not know how to obtain this information that unless they fully read and understood the Board’s disclaimers. Id. If the Board has information that it does not provide to the public in an easy to access format, it is not doing its due diligence related to transparency. Id. People have a tendency to not read disclaimers that warn them that the website does not reflect all public records, no matter how prominent those disclaimers are. Id. If a bad outcome occurs and a patient learns that the Board had information about the physician that it did not post, it will raise concerns about whether it can effectively protect consumers. Id.

Based on these concerns, the Board recommended that the Legislature eliminate the ten-year posting requirement to ensure transparency to the public. Ex. 15, p. 58.

In 2014, AB 1886 proposed to recast and revise current law regarding the Internet posting of physician and surgeon licensee information. Pet. RJN Ex. D. The California Committee Report and Legislative Council’s Digest explained that AB 1886 would require the Board to post indefinitely on its website certain data related to physician and surgeon discipline: revocation, suspension, probation, or surrender of a license by the licensee in relation to a disciplinary action or investigation, or other equivalent action taken against the licensee by the Board or a board of another state or jurisdiction. RJN Ex. D, p. 2.

The bill would also end the removal of public disciplinary records. Ex. D, p. 2. Pursuant to a 2003 amendment, the Board had begun to take down certain information after ten years, including any malpractice judgment or arbitration award. Id. The 2014 California Committee Report acknowledged that the Board removed 6,900 records from its website on January 1, 2013 because they were over ten years old and continued to remove an additional 30-40 records per month. Id. The Board had recommended in its 2013 Sunset Review that the Legislature eliminate the ten-year posting requirement to ensure transparency to the public. Id.

The California Committee Report explained that AB 1886 would reduce the differences in disclosure between public records and the Board website. Id. Although the Board posts disclaimers about the availability and extent of information it posts, consumers may reasonably believe that the website presents all the publicly available information on a license. Id. This could mislead a consumer to believe that a physician has no record of discipline when he does. Id. The bill would rectify the discrepancy by putting more but not all public disciplinary information online. Id.

The California Committee Report explained that AB 1886 would, in conjunction with existing law, require information posted for all current and former licenses, including the following disciplinary information for as long as the information is public: (ii) a malpractice judgment or arbitration award. Id. The Board would return the applicable records to its website should AB 1886 be enacted. Id.

On August 25, 2014, the Legislative Council’s Digest for AB 1886 stated that existing law required the Board to post certain information indefinitely and post specific information for ten years, including malpractice judgements, arbitration awards, and settlement information. Pet. RJN Ex. C, p. 1. AR 1886 would revise this law because it would require the Board to post specific information indefinitely, including enforcement actions, disciplinary actions, civil judgments, arbitration awards, and certain misdemeanor convictions. Ex. C, p. 1.

In 1975, AB 1 enacted section 800, which requires the Board, and other boards, to create and maintain a central file of the names of all its licensees. Pet. RJN Ex. F (§800(a)). Through 2022, the Legislature has amended section 800 multiple times. RJN Ex. I. To date, section 800 does not explicitly mention arbitration awards. RJN Ex. I.

On February 10, 2001, a 44-year-old man died after he underwent a hemorrhoidal banding procedure at Kaiser. Pet. Ex. A, p. 15. His widow and children asserted that complications that arose from the procedure led to his death. Ex. A, p. 15. They asserted that the physician who performed the banding procedure failed to start the patient rapidly enough on needed antibiotics or perform an early surgery when needed. Ex. A, p. 15. The physician also turned the patient over to doctors who did not have the required background or experience for treating him in his condition. Ex. A, p. 15. The physicians at Kaiser did not understand what was taking place with the patient and failed to understand a CatScan reading of the patient. Ex. A, p. 15.

On November 5, 2002, arbitrators entered an Award against Kaiser for $998,000. Ex. A, p. 20. The Award found that Kaiser admitted the patient to administer hemorrhoidal banding but the physicians and staff in a position to treat the patient were not readily available. Ex. A, p. 17. The available physicians apparently did not know what was taking place in the patient’s body, misdiagnosed his problem and misread his chart. Ex. A, p.18. If the patient had been diagnosed within five or six days of his complaints, he most likely would have survived. Ex. A, p. 19. Although complications from banding are rare, the care and treatment of patient fell below the standard of care. Ex. A, p. 18.

In July 2022, Bulkin first learned that his license history on the Board website includes the Award with its date and full value. Pet., ¶¶ 4, 9, 13 Ex. B. This Award is against Kaiser and does not identify Bulkin as one of the multiple physicians and staff responsible for the patient’s care. Pet., ¶¶ 4, 9. The online entry says that it does not necessarily reflect that Bulkin’s medical competence was below the standard of care. Pet., ¶13, Ex. B. Bulkin repeatedly demanded removal of the Award from the website, but to date the Board has not complied. Pet., ¶¶ 14-15.

The Petition asserts that the Board has failed to perform its ministerial duty to remove the Award from his license history. Pet., ¶4. The Award is not part of his individual historical record under section 800. Pet., ¶4. Assuming arguendo that it was at the time of the Award, the version of section 2027 in November 2012 required the Board to remove it at that time. Pet., ¶4. Bulkin has a clear, present, and substantial right to compel the Board to fulfill this mandatory duty. Pet., ¶16. He has no plain, speedy, and adequate remedy in the ordinary course of law. Pet., ¶17.

On October 21, 2022, Bulkin served the Board with Requests for Production of Documents (“RFPs”). Mazor Decl., ¶2, Ex. 1. The RFPs included requests for any documents relating to the Award, to Bulkin, the report of the Award to the Board, posting or removing any reference of it from the website, and reposting it. Mazor Decl., ¶2, Ex. 1. The RFPs also asked for any documents relating to any investigation of the Award by or on behalf of the Board, as well as any communications the Board sent or received related to the Award. Mazor Decl., ¶2, Ex. 1. The RFPs further asked for any documents the Board maintained in Bulkin’s individual and historical record pursuant to section 800. Mazor Decl., ¶2, Ex. 1.

On November 28, 2022, the Board responded to the RFPs. Pet. RJN Ex. E.[3] All eleven responses raised General Objections 4, 6, 7, 8, and 9 and asserted that the RFPs seek information obtained in a confidential investigation that is not public and not discoverable pursuant to Evidence Code section 1157. Ex. E. Produced documents were redacted to reflect confidential information pursuant to those objections. Ex. E.

The Board produced the correspondence between the parties in this action in which counsel debated whether the Board should remove the Award from its website. Mazor Decl., ¶2, Ex. 2. The Board also produced three redacted screenshots depicting the information provided to the Board about the Award. Ex. 2. This included two confidential work notes with redactions. Ex. 2. The first work note reflects an allegation of a failure to timely diagnose and treat pelvic septic syndrome following a hemorrhoid banding procedure, leading to death. Ex. 2. The second work note, dated December 3, 2022, lists an 802 Report of the Award and asserts that the “subject” failed to timely diagnose and treat pelvic septic syndrome after a hemorrhoid banding procedure, leading to death. Ex. 2.

On December 27, 2022, Bulkin’s counsel wrote to the Board to protest the redactions in its responses to the RFPs. Mazor Decl., ¶5, Ex. 3. The Board is required by section 800(a) to create and maintain a central file to provide an individual historical record for each licensee. Ex. 3. When a licensee asks to see his central file, section 800(c)(1) only allows the Board to redact those portions that may disclose the identity of an information source. Ex. 3. Section 800(c)(1) requires the Board to make full disclosure of any personal information that could reasonably in any way reflect or convey anything detrimental to a licensee’s reputation, rights, benefits, privileges, or qualifications. Ex. 3. The screenshots produced by the Board do not do that. Ex. 3. The Board admitted that it redacted internal investigation notes which contained information acquired by a public employee in the course of his or her duty and not open or officially disclosed to the public. Ex. 3.

On January 3, 2023, the Board replied that section 800(c)(1) allows the Board to respond with a summary of the substance of the material, and it did so. Mazor Decl., ¶5, Ex. 3. The redacted portions of the screenshots were confidential and privileged information that are not part of Bulkin’s central file. Mazor Decl., ¶5, Ex. 3.

The Board’s Discipline Coordination Unit (“DCU”) processes all disciplinary documents and monitors cases while they are at the Attorney General’s Office. Barr-Fernandez Decl., ¶13, Ex. 11 (Romero Decl., ¶2). Paulette Romero (“Romero”) is a 26-year Board employee and the manager of DCU. Romero Decl., ¶1. The DCU’s public disclosure analyst reviews the reports of arbitration awards to determine if the award is subject to public disclosure. Romero Decl., ¶2. To provide transparency and foster public protection under section 801 et seq., the analyst reviews and processes the reports as fast as possible. Romero Decl., ¶2.

The Central Complaint Unit (“CCU”) is part of the Board’s Enforcement Program and reviews all reports and complaints about physicians. Barr-Fernandez Decl., ¶4, Ex. 3 (Smith Decl., ¶2). According to Sharlene Smith (“Smith”), a CCU employee since 2007 and its current manager, the complaint review process in 2002 was substantially similar to the current complaint review process. Smith Decl., ¶¶1-2.

Both today and in 2002, arbitration awards in any amount are required to be reported to the Board. Smith Decl., ¶2. The Board provides Form ENF-801, “Report of Settlement, Judgment or Arbitration Award,” to report information for any arbitration award as required. Smith Decl., ¶3, Ex. 4. If the arbitration award does not name the licensees that allegedly were negligent, the reporting party must list the name and last known address of every licensee who acted improperly. Smith Decl., ¶4, Ex. 4.

When the Board receives a report of an arbitration award, it opens a complaint, assigns it a number, and assigns it to a CCU technician for review. Smith Decl., ¶5. The CCU technician gathers the information necessary to evaluate the complaint. Smith Decl., ¶5. In a quality-of-care investigation, the Board obtains copies of the patient’s medical records pertaining to the treatment and a written summary of the care from each doctor that the award alleges acted improperly. Smith Decl., ¶¶ 5-6. The CCU then forwards the file with all records and summaries to a Board medical consultant for review. Smith Decl., ¶6.

Due to the passage of time, the Board no longer has the original report from Kaiser submitted with respect to the arbitration award and Bulkin. Smith Decl., ¶8. However, the Board has data entries made in the regular course of business at or about the time of the events documented. Smith Decl., ¶8.

Kaiser provided the Award to the Board on December 2, 2002. Smith Decl., ¶¶ 9, 11, Ex. 7. The system assigned Complaint Number 1000374782 to the Award. Barr-Fernandez Decl., ¶7; Smith Decl., ¶¶ 10-11, Exs. 5-6. The DCU analyst would have reviewed the report of the Award attributed to Bulkin and determined it concerned a claim of damages for death or personal injury, described a personal injury that resulted in death, and attributed the death at issue to the negligent medical care. Romero Decl., ¶3. This meant that the Award was subject to immediate public disclosure, and the Board created the public disclosure on December 3, 2002. See Romero Decl., ¶3, Ex. 5.

The CCU requested additional information from Bulkin, including a written summary of the care at issue, on December 17, 2002. Smith Decl., ¶¶ 9, 11, Ex. 7. On January 8, 2003, the CCU reported that Bulkin submitted his written summary and the patient’s medical records. Smith Decl., ¶¶ 9, 11, Ex. 7. The Board closed the case on January 21, 2003. Smith Decl., ¶¶ 10-11, Ex. 5.

The law originally required the Board to remove some public disclosure records from its website after enough time. Romero Decl., ¶4. After a change to the law in 2015, the DCU analysts returned all removed records to the Board’s website. Romero Decl., ¶4.

Kaiser’s website states that Kaiser was founded in 1945 and offers care from teams of experts who take time to get to know the patient. Mazor Reply Decl., ¶3, Ex. A. Its current staff includes 23,982 physicians, 68,218 nurses, and 223,735 employees. Mazor Reply Decl., ¶3, Ex. A.

Barr-Fernandez Decl., Exs. 5 and 7 were not produced in its responses to Bulkin’s RFPs. Mazor Reply Decl., ¶2. The Board provided these documents as part of its supplemental responses on February 10, 2023. Mazor Reply Decl., ¶2.

Petitioner Bulkin seeks traditional mandamus compelling the removal of his name from the Board’s website concerning the November 5, 2002 Award.

Section 800(a) requires the Board to maintain a central file for its licensees “to provide an individual historical record for each licensee”, which must include “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 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 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).

This case requires the proper interpretation of sections 800 and 2027. In construing a statute, a court must ascertain the intent of the legislature so as to effectuate the purpose of the law. Brown v. Kelly Broadcasting Co., (1989) 48 Cal.3d 711, 724; Orange County Employees Assn. v. County of Orange, (“Orange County”) (1991) 234 Cal.App.3d 833, 841. The court first looks to the language of the statute, attempting to give effect to the usual, ordinary import of the language and seeking to avoid making any language mere surplusage. Brown v. Kelly Broadcasting Co., (1989) 48 Cal 3d 711, 724. Significance, if possible, is attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. Orange County, supra, 234 Cal.App.3d at 841. “’The statute's words generally provide the most reliable indicator of legislative intent; if they are clear and unambiguous, ‘[t]here is no need for judicial construction and a court may not indulge in it. [Citation.]’” MCI Communications Services, Inc. v. California Dept. of Tax & Fee Administration, (“MCI”) (2018) 28 Cal. App. 5th 635, 643.

Where ambiguity still remains, the court should consider “reason, practicality, and common sense.” Id. at 1084. This requires consideration of the statute’s purpose, the evils to be remedied, public policy, and contemporaneous administrative construction. MCI, supra, 28 Cal.App.5^th at 643. The enactment must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity. Lungren v. Deukmejian, (1988) 45 Cal. 3d 727, 735.

At the demurrer hearing, the court ruled that any duty the Board had to remove the Award in 2012 under the previous version of section 2027 is moot because in 2015 AB 1886 changed section 2027 to require the indefinite posting of information including arbitration awards. Any duty for the Board not to post the Award must be based on current law.

The court noted that 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. According to the Petition, this provision informs what historical information the Board must post to its website under section 2027(b)(6). Pet., ¶6. Bulkin argued 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 – Bulkin argued that the Board cannot post the Award.

In response, the Board argued that all records required to comply with sections 801 and 802 are included in section 800’s historical record for each licensee. From sections 801 and 802, the Board concluded that arbitration awards are included in the individual historical record that must be maintained under section 800(a).

The court rejected the Board’s argument that the Award is a malpractice judgment under section 2027(b)(6). 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 court also agreed with Bulkin that section 801’s reporting requirements do not appear to directly bear on the individual historical record the 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 Board must post to its website under section 2027. Section 2027(b)(6) expressly states that the 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 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 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 Board cannot post such awards on its website under section 2027(b). The Board is obligated to post any arbitration award caused by the doctor’s negligence, error, or omission in practice. §2027(b).

The Board asserted 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. Therefore, the Board’s posting duty under section 2027 extends to the Award which Kaiser reported was made against Bulkin.

The Petition attaches a copy of the Award, but the Award does not identify Bulkin by name. Pet., Ex. A. The Award shows that multiple Kaiser physicians and staff were involved in the patient’s care. Ex. A. The Board noted 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. However, the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Neither the Petition nor any other evidence includes Kaiser’s report to the Board and there was no evidence that Kaiser attributed the injury to Bulkin’s negligence, error, or omission. The Board had 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.

As there was no evidence in the Petition or from matter subject to judicial notice 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 was overruled.

3. Section 2027 Does Not Require the Board to Post Only Post-2015 Arbitration Awards

Bulkin argues that the Board has a statutory duty to refrain from posting on its website references to arbitration awards against a licensee unless the award is part of the “individual historical record” in its possession, custody or control as defined in section 800. §§ 2027(b)(6), 800(a)(2). Bulkin contends that he has a clear, present, and substantial right to the Board’s performance of its duty to remove its post of the Award in association with Bulkin and that the Board’s refusal to perform its duty justifies a writ of mandate. Pet. Op. Br. at 3-4.

Bulkin notes that in 2015 section 2027 was replaced with the current version, which limits the Board to posting about arbitration awards that are part of its “historical information in its possession, custody, or control.” §2027(b). Section 800 defines what constitutes a licensee’s “historical record” and arbitration awards are not included in that definition. See §800(a)(2). Bulkin argues that, in order to give effect to both sections 800 and 2027, the latter must be interpreted to encompass only those arbitration awards which come into the Board’s possession, custody or control after the effective date of the statute in 2015. Indeed, while section 2027 has consistently required the Board to post arbitration awards on its website, only the current section 2027 limits the Board to posting awards that are part of the “historical information in its possession, custody, or control.” Compare Pet. RJN Ex. G (1997 version of §2027(a)(5)) and Pet. RJN Ex. H (current version of §2027(b)(6)). Pet. Op. Br. at 4-5.

Bulkin argues that the Legislature’s omission of arbitration awards from licensees’ “historical records” in section 800 was a conscious choice. The omission occurred despite the fact that the relevant bill, SB 1, specifically deals with arbitration awards in several different contexts, including the enactment of CCP section 1295 authorizing the arbitration of medical malpractice claims. Pet. RJN, Ex. F. When language is included in one part of a statute, the omission of that language from a similar statute on the same or a related subject suggests a different intent. See, e.g., Kabran v. Sharp Memorial Hosp., (2017) 2 Cal. 5th 330, 344. Bulkin adds that the Legislature amended section 800 on at least 19 occasions and yet never added an arbitration award to its definition of “historical.” Pet. Op. Br. at 5-6.

Bulkin concludes that section 2027(b)(6)’s requirement that the Board post arbitration awards can only be construed as forward-looking, authorizing the Board only to reference awards entered after the January 2015 date that section 2027 took effect. Section 2027(b)’s legislative mandate is for the Board to post on its website only arbitration awards that are part of the “historical information in [the Board’s] possession, custody, and control,” and the legislative mandate in section 800 is to omit arbitration awards from the Legislature’s definition of “historical.” To interpret section 2027(b)(6) to apply to all arbitration awards, including archaic awards dating back over two decades, would ignore the canon of construction that every word of a statute should be construed to ensure that the intent of the Legislature is carried out fully, as well as the legislative history of the statutes which elucidate the legislative intent. Pet. Op. Br. at 6.

Bulkin is wrong. It is undisputed that the plain meaning of section 800(a) requires the Board to create and maintain a central file for its licensees “to provide an individual historical record” that must include information on, inter alia, information on any judgment or settlement requiring payment of damages above $3,000 for any claim of malpractice. §800(a)(2).

As for section 2027, its plain meaning requires the Board to post on its website certain information about its licensees, including historical information in its possession, custody, or control regarding an arbitration award in any amount. §2027(b)(6). As the court stated in its demurrer ruling, section 2027(b)(6) could not be clearer in stating that the Board must post arbitration awards. Section 2027 contains no limitations about how the Board came into possession of the arbitration award or its age. It also contains no language limiting arbitration awards to those occurring after 2015.

Nor is there any conflict between the licensee file containing an “individual historical record” that the Board is required to maintain under section 800 and the “historical information” that the Board is required to post under section 2027(b)(6). The former is a central file created by the Board and to which the public does not have access (§800(c)(1)), and the latter is the information that the Board is required to make publicly available by posting it on the Internet.

Bulkin’s error lies in assuming that the “individual historical record” referred to in section 800 is the same as the “historical information” referred to in section 2027. It is not. Section 800(a) refers to a licensee’s individual historical record that contains various items, including a judgment or settlement in excess of $3000 for malpractice. In contrast, section 2027 requires the Board to post two categories of information on the Internet: (a) certain information on the current status of the licensee and (b) historical information in its possession, custody, or control about the license. §2027(a), (b). Section 2027(b)’s use of the word “historical” is not a reference to section 800’s historical record in the central file but rather the Legislature’s distinction between the “current status” information about the licensee required in section 2027(a) and the historical information required in section 2027(b). As such, there are different uses of the word “historical” in sections 800 and 2027; these uses are apples and oranges.[5]

The 2015 change in section 2027’s language has no bearing on this interpretation. The version in effect before 2015 lumped together the current status and historical information that the Board was required to post for a licensee. See Pet. RJN Ex. G. The 2015 version of section 2027 split this current status from historical information and added a number of different categories. The 2015 amendment remains consistent with the court’s plain meaning interpretation.

Bulkin’s interpretation also is a non-sequitur. He notes that section 800 does not include arbitrations in the definition of “historical” and contends that, pursuant to section 2027(b), the Board may post only historical information in its “possession, custody, and control”. According to this logic, however, the Board could never post an arbitration award because it is not historical information. Yet, section 2027(b)(6) expressly requires the Board to post arbitration awards issued in any amount for a claim of injury caused by a physician’s negligence.

To deal with this logical problem, Bulkin suggests that section 2027(b)(6) only concerns arbitration awards issued after the 2015 date that the latest iteration of section 2027 was promulgated. Yet, he points to nothing in the statutory language that would permit that to be true. Nor does his suggestion deal with the logical inconsistency in his reliance on the word “historical” in the two statutes.[6]

In sum, the plain language of section 2027(b)(6) requires the Board to post all arbitration awards in its possession, custody, or control against a licensee for a claim for damages for death or personal injury caused by the physician’s negligence, error, or omission in practice, or by his rendering of unauthorized professional services.

Because section 2027’s language has a plain meaning, the court need not address its legislative history. MacIsaac v. Waste Management Collection & Recycling, Inc., supra, 134 Cal.App.4th at 1082. Even if arguendo the court were to do so, the legislative history supports the court’s plain language interpretation.

Bulkin notes that the Board argued in its demurrer that, in amending section 2027 in 2015, the Legislature specifically contemplated that the Board would repost arbitration awards that had been removed from its website. He argues that a careful review of the legislative history does not support the Board’s position. AB 1886’s Legislative Council’s Digest, dated August 25, 2014, merely states that the Board should post malpractice judgements, arbitration awards, and settlement information indefinitely; it does not reflect any intent that such postings should occur prior to the 2015 effective date of section 2027. Pet. RJN Ex. C, p. 1. Pet. Op. Br. at 6-7.

Bulkin argues that the forward-looking nature of section 2027 is buttressed by Paragraphs 1-13 of AB 1886’s California Committee Report dated August 8, 2014. Pet. RJN Ex. D. Paragraph 1 of the Comments states: “This bill will require [the Board] to post indefinitely on its Web site certain data related to physician and surgeon discipline (a revocation, suspension, probation, surrender of a license by the licensee in relation to a disciplinary action or investigation, or other equivalent action taken against the licensee by MBC or a board of another state or jurisdiction) that is currently taken down after 10 years.” Id. Arbitration awards are not among the specified items listed in Paragraph 1 that the Legislature intended the Board to repost after previously having taken them down. Pet. Op. Br. at 7.

Paragraph 2 of the Comments references “certain public information” which logically is the same “certain information” enumerated in Paragraph 1. This paragraph recounts the Board’s removal of approximately 6,900 records from its website and speaks of the return of only “applicable records”, not all records. The reference to “applicable records” must be to the records enumerated in Paragraph 1. Pet. Op. Br. at 7.

Paragraph 3 of the Comments for the first time specifies arbitration awards in subsection (a)(ii) and states an legislative intent that they be “posted for as long as the information is public.” Id. Unlike the first two paragraphs, nothing in Paragraph 3 reflects a legislative intent for archaic arbitration awards to be reposted. If the Legislature intended awards to be reposted, it would have said so, just as it did for other items in the first two paragraphs. Pet. Op. Br. at 7-8.

Bulkin concludes that the only logical interpretation of this legislative history is that “indefinitely” does not mean forever but rather is commensurate with the period that the information remains public. Arbitrations are contractual in nature. CCP §1287.4. Pet. RJN Ex. B (Dem. Decision, p. 5). In line with the confidential nature of most contracts and arbitrations, the Award was never intended to be public. More importantly, the legislative histories of sections 2027 and 800 reveal that the Legislature never intended for the Board to repost the 2002 arbitration award after it was statutorily mandated to remove such posting. Pet. Op. Br. at 8-9.

Bulkin is attempting to apply a plain meaning interpretation to legislative history, not a statute. There is no legal basis to apply rules of statutory interpretation and construction to legislative history. In any event, as the Board points out (Opp. at 9-10), the Legislative Counsel’s Digest and the California Committee Report (Pet. RJN Exs. C, D) explain that AB 1886 was intended to “revise and recast” existing law regarding internet posting of physician and surgeon license information and require the Board to post indefinitely on its website information about disciplinary records, including arbitration awards, that previously was required to be taken down after ten years. This amendment to section 2027 to remove the ten-year limitation on posting was intended “to ensure transparency to the public.” Ex. D, p. 2 (¶3).

The California Committee Report makes clear that section 2027 requires the posting (and reposting) of all arbitration awards, not just those entered after 2015. The report acknowledged that the Board removed 6,900 records from its website on January 1, 2013 because the records were over ten years old, and continued to remove an additional 30 to 40 records per month. Ex. D, p. 2 (¶2). It also made clear that if AB 1886 was passed, the Board would return these records, including arbitration awards, to the website. Id.

Bulkin’s argument that arbitration awards are not in the specified items that the Legislature intended the Board to repost is incorrect. Paragraph 1 of the California Committee Report refers to records “currently taken down after 10 years,” and Paragraph 3 states that the “approach taken by this bill is echoed in recommendations from MBC’s 2013 Sunset Review report, in which Senate staff recommended that the 10-year posting requirement be removed ‘in order to ensure transparency to the public.’” Ex. D, p. 2.

In its 2013 Sunset Review Report, the Board expressed concern about section 2027’s requirement for the removal after ten years of records that had been posted, including arbitration awards. Ex. 15, pp. 56-57. The Board noted:

“Although the statute requires the removal of the information from the Board’s website, these records are considered to be indefinitely public and therefore can be obtained from the Board’s office via phone or in person. However, most member so the public would not know to call the Board unless they fully read and understand the Board’s disclaimers. If the public does read the disclaimer and calls the Board, staff will copy the documents and provide them to the public.” Ex. 15, p. 57 (emphasis in original).

The Board recommended elimination of the 10-year posting requirement in order to ensure transparency to the public. Ex. 15, p. 58. Senate staff recommended elimination of the ten-year posting limitation, which the Legislature adopted the amended section 2027 in 2015. This included the reposting of arbitration awards.

The legislative history of AB 1886 supports the conclusion that all arbitration awards are required to be posted, and that any such awards taken down should be reposted.

The Award resulted from an action involving a patient death on February 10, 2001, ten days after the patient underwent a hemorrhoidal banding procedure at Kaiser. Pet. Ex. 1, p. 3. The claimants alleged that Kaiser physicians failed to perform timely surgery and lacked the background or experience for treating a patient in decedent’s condition. Ex. 1, p. 3. After seven days of hearing, the arbitrators agreed, finding that “the evidence and testimony show by a preponderance of the evidence that the Respondents (sic.) care and treatment of the patient fell below the standard of care” and “that the conduct of the Respondents was the legal cause for the subsequent death…” Ex. 1, p. 2, 5-7. The arbitrators issued a monetary award for a claim or action for death resulting from physicians’ negligence.

On December 2, 2002, a representative from Kaiser reported the arbitration award to the CCU and attributed the arbitration award to Bulkin. Smith Decl.,, ¶2, 11, Ex. 5 (screenshot of complainant screen), Ex. 6 (screenshot of 801 reporting screen, p. 2), Ex. 7 (screenshot of timeline data). Upon receiving the report from Kaiser, the CCU opened a quality-of-care complaint under Bulkin’s name. The computer system assigned Complaint Number 1000374782 to the Complaint. Smith Decl., ¶¶ 5, 11, Ex. 7 (timeline). See Opp. at 6.

The Board’s complaint review process in 2002 was substantially similar to the complaint review process today. Once a quality-of-care complaint is opened, it is assigned to a CCU technician for review. The CCU technician gathers the information necessary to evaluate the complaint. Smith Decl., ¶5. For quality-of-care complaints following the reporting of an arbitration award, the CCU technician contacts the plaintiff and defense attorneys and requests the relevant records. The CCU technician also contacts the doctor alleged to have acted improperly and requests a written summary of the care from them. Once the medical records and physician summaries are received, the technician forwards the file, including the records and physician summaries, to one of the Board’s medical consultants for review. Smith Decl., ¶6. If the arbitration award did not specifically name the licensee(s) alleged to have been negligent, the reporting party was required to provide the name and last known address of every licensee who was alleged to have acted improperly, whether or not that person was named in the action, and whether or not that person was required to pay any damages pursuant to the arbitration award. Smith Decl., ¶4, Ex. 4 (Items 4-11). Opp. at 6-7.

In the interest of transparency and public protection, DCU staff review and process these reports as expeditiously as possible. Staff in the DCU processed the subject arbitration award between December 2 and 3, 2002. Romero Decl., ¶2. The public disclosure analyst in the DCU would have reviewed the arbitration award that Kaiser attributed to Bulkin and determined that it was for a claim of damages for death or personal injury, it described a personal injury that resulted in death, and it stated that the individual’s death was attributed to negligent medical care. Accordingly, the arbitration award was determined to be subject to immediate public disclosure which occurred on December 3, 2002. Romero Decl., ¶¶ 2, 3; Ex. 6 (screenshot of 801 screen, p. 2). See Opp. at 6.

On December 17, 2002, a CCU technician contacted Bulkin to request that he provide a written summary of the care at issue. On January 8, 2003, the CCU technician documented receipt of Bulkin’s written summary of care and the patient’s medical records. Smith Decl., ¶11, Ex. 7.

When the revised version of section 2027 went into effect in 2015, the Board’s DCU analysts were directed to return previously removed public disciplinary records, including arbitration awards, to the Board’s website for posting indefinitely. Romero Decl., ¶ 3. Thus, the arbitration award attributed to Bulkin issued in 2002 was returned to the Board’s website in compliance with the law. See Opp. at 7.

Bulkin argues that the Board’s website may only reference an arbitration award in relation to a licensee if the information in its possession, custody or control establishes that such award is the result of harm caused by the licensee’s negligence. §2027(b)(6). Bulkin denies that he caused the patient’s injury or death. Pet., ¶¶ 4, 9. He argues that the Award itself supports his position and the Board’s verified discovery responses establish that the documents in its possession, custody and control do not justify the posting. Mazor Decl., Ex. 2; Pet. RJN Ex. E. The Award is not made against Bulkin, but against Kaiser. Pet. RJN Ex. A. The Award does not even mention Bulkin and reflects that multiple Kaiser physicians and staff members were involved in the patient’s care without specifically identifying any individual. Id., pp. 3, 6. Pet. Op. Br. at 9; Reply at 4.

Section 2027 permits reporting on only those arbitration awards resulting from harm, “caused by” the physician’s negligence, as reflected in information in the Board’s, “possession, custody, or control.” §2027(b). While section 2027(b)(6) may not require that Bulkin be the only or primary cause of the negligence leading to the harm, California law has long held that causation requires proof that the actor’s negligence was a “substantial factor” in bringing about the harm. Rutherford v. Owens-Illinois, Inc., (1997) 16 Cal.4th 953, 968–69. Pet. Op. Br. at 9-10.

Nothing in the Award suggests that Bulkin’s negligence was a substantial factor in causing the injury at issue. Notably, conduct is not deemed to be a substantial factor in causing harm if the same harm would have occurred without that conduct. Restatement Torts 2nd §432; Yanez v. Plummer, (2013) 221 Cal.App.4th 180, 187. Given that the Award is against Kaiser and recounts that a number of unnamed persons were involved in caring for the patient, the Board cannot establish Bulkin’s involvement, much less establish any definitive role that he might have played causing the patient’s injury or death. “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Leyva v. Garcia, (2018) 20 Cal.App.5th 1095, 1104. The Board’s’ ascription of causation to Bulkin is a matter of pure speculation and conjecture. Pet. Op. Br. at 10-11.

Bulkin argues that, once he establishes his prima facie case for relief, the burden shifts to the Board to prove the contrary. Lotus Car Ltd. v. Municipal Court, (1968) 263 Cal. App. 2d 264, 270, 271; see also Rosenthal v. Great W. Fin. Secs. Corp., (1996) 14 Cal. 4th 394, 413. There is nothing that the Board could do to satisfy its burden. Sections 2027 and 800 do not permit the Board to post an arbitration award in connection with a licensee unless the award is based on information in the Board’s possession, custody, or control evidencing that the award resulted from harm caused by the licensee. The documents produced by the Board conclusively establish that it has no such information relative to the Award, which is against Kaiser and speaks of a number of unspecified Kaiser doctors and staff members who were involved in the care of the patient. Pet. Op. Br. at 15; Reply at 10.

The Board’s discovery responses confirm the absence of information that the Award resulted from injury or death caused by Bulkin. Bulkin’s RFPs requested that MBC produce, inter alia, his individual historical record maintained pursuant to section 800, any investigation of the Award conducted by the Board, all communications relating to the Award, and any other documents relating to Bulkin. Mazor Decl., Ex. 1. The Board’s production consisted of prelitigation correspondence between counsel, three redacted copies of screenshots depicting information provided to the Board regarding the Award, and the redactions are not part of Bulkin’s file. Mazor Decl., Ex. 2; Pet. RJN Ex. E. Bulkin’s name appears on only one of the produced screenshots. Above his name appears a single line consisting of nothing more than a summary of allegations. Thus, the Board’s verified responses show that it was not, and is not now, in possession of either the Award or any documents relating thereto that would establish that any negligence on Bulkin’s part was a substantial cause of the harm resulting in the Award, as legally mandated by section 2027(b)(6). Pet. Op. Br. at 12.

The Board wrongly lays the blame for the Award at Bulkin’s feet based on speculation that Kaiser was his employer. The Board’s production, however, reveals that it has no documents establishing that Bulkin was employed by Kaiser. Notably, in accordance with section 801.01(b), any report about the Award would have to come not from an employer, but from an insurer providing professional liability insurance, the licensee or his counsel, or a state or local government agency that self-insures the licensee, and would have necessarily included allegations, not proof of causation. §801.01(b). Section 801.01 also mandates: “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…arbitration award….” §801.01(g)(2). Section 801.01(E) buttresses the mandate that any report contain “[a] description or summary of the …allegation…” and subsection (G) requires the inclusion of, “a copy of the award document.” The Board has failed to produce any documents to evidence anything more than some unidentified third-party’s hearsay report of mere allegations. Pet. Op. Br. at 12-13.

Even if the Board could establish that Bulkin worked at Kaiser, that he was involved in the care of the patient, and that the Board can rely upon the meager shreds of documentation in its file, its screenshots depicting a mere allegation do not establish the causation required by a negligence standard in California. Nothing in them proves that Bulkin’s acts were a substantial factor of the harm resulting in the Award. The manager of the CCU admits: “Due to the passage of time, the Board no longer has the original report form submitted with respect to the arbitration award” at issue. Smith Decl., ¶8. Given this, the statutory predicate which the Board must possess in order to ascribe the Award to Bulkin is absent. See Opp. at 4. Pet. Op. Br. at 13-14; Reply at 1, 5.

Bulkin argues that the Board attempts to fill this void in evidentiary support with a manufactured explanation of its historical procedures and late-produced computer records proffered by declarants with no personal knowledge of the facts. Exhibits 5 and 7 consist of nothing more than two equivocal screenshots that the Board miraculously located and served after Bulkin filed his opening brief. This despite Bulkin’s RFPs for such documents in October 2022. See Mazor Reply Decl., ¶2, Exs. 1 and 2. Reply at 6.

Exhibit 5 is dated January 21, 2003, updated on October 3, 2013, and mentions some unidentified complaint and Kaiser next to the ambiguous designation “routing”. It does nothing to suggest or prove that it relates to the Award. Exhibit 7 similarly does not refer to the Award or to any findings it makes. It only sets forth what appears to be a series of administrative steps taken with respect to a complaint that required additional information from Bulkin, which he provided. No notation on Exhibit 7 discusses any aspect of the Award. Moreover, Exhibit 7 does nothing to establish that the complaint is more than a mere allegation, which Bulkin must have addressed to the Board’s satisfaction as there is no evidence of any disciplinary action taken against him. Reply at 6-7.

The Board’s witnesses also describe the procedures that would have been, rather than actually were, in the Board’s CCU and DCU over two decades ago. Yet, the two declarants have no foundational basis for expounding upon 2002 records and procedures. Smith admits that she did not become employed by the Board until 2007, five years after entry of the Award. Smith Decl., ¶1. Romero currently oversees the DCU but studiously avoids stating that she was associated with either the CCU or DCU in 2002. Romero Decl., ¶1. Her declaration makes clear that she has no firsthand knowledge about the Award or any connection between it and Bulkin. The declarations only prove that the personal knowledge necessary to testify to any matter relevant to this action is lacking, and that the Board has no competent evidence about what, if anything, was reported to it in 2002. In fact, Smith admits that where “…the arbitration award did not specifically name the licensee(s)…the reporting party was required to provide the name…of every licensee who was alleged to have acted improperly….” Smith Decl., ¶4 (emphasis added). All the Board has is speculation that is insufficient to carry its burden. Reply at 2-3, 5-6, 8.

Bulkin also argues that evidence of custom and practice has been routinely rejected by courts for lack of personal knowledge, relying on In Juen v. Alain Pinel Realtors, Inc., (“Juen”) (2019) 32 Cal. App. 5th 972.

In Juen, the court rejected the defendant realtors’ attempt to compel arbitration in reliance on the arbitration clause of a residential listing agreement, holding they failed to establish through custom and practice evidence that they initialed the arbitration clause on the residential listing agreement. Id. at 975-76. The defendants had a copy of the listing agreement signed and initialed by the plaintiff, but the defendants’ listing agent had not initialed the arbitration provision in the agreement. Id. The defendants submitted a declaration of their managing broker at the time of the transaction who stated that the brokerage had destroyed the their files for plaintiff’s home in accordance with their document retention policy. Id. The managing broker stated that the brokerage’s custom and practice was to allow a client to elect whether to agree to the arbitration provision in the listing agreement by initialing and, if he or she did so, the managing broker “would as a matter of policy and custom and practice adopt the election of the client and initial.” Id. Thus, as a matter of policy and custom and practice, the supervising broker would have adopted the client’s election of arbitration and initialed the paragraph. Id.

The Juen court held that the declaration was not sufficient evidence because, while the managing broker’s declaration established through custom and habit that she initialed the arbitration provision in all residential listing agreements presented to her in which the provision had been initialed by the client, it did not establish that the listing agent ever presented plaintiff's listing agreement to her. Id. at 980. The existence of a policy is not evidence of adherence to the policy; what was missing was a statement from the supervising broker or other employee that all listing agreements were presented to the managing broker during the relevant period. Id. at 981.

Bulkin contends that Juen makes clear that the Board must not only show its custom and practice, but also that it took action in conformity with that practice with respect to the Award. The Board’s declarations are insufficient because they cannot affirm from personal knowledge what the procedures in CCU and DCU actually were in 2001-2002, and Smith and Romero cannot competently testify that those procedures were in fact followed relative to the Award and Bulkin. Reply at 9-10.

Bulkin’s argument is based on a false premise -- that he has presented a prima facie case and that the burden has shifted to the Board to prove that he was properly named by Kaiser as a negligent physician causing the patient’s death.[7] In a traditional mandamus claim brought pursuant to CCP section 1085, the petitioner bears the burden of proving the facts on which the claim for relief is based. California Correctional Peace Officers Assn. v. State Personnel Board, (1995) 10 Cal.4^th 1133, 1153-54.

Bulkin has not made a prima facie case. He has not presented any evidence that he was not employed by Kaiser at the relevant time, that Kaiser improperly attributed the arbitration award to him, or that the Board improperly posted it to his license history. Specifically, he has not submitted a declaration concerning these facts. Nor has he obtained and presented Kaiser’s records to support any defect in attribution of professional negligence to him or the Board’s posting.

The Petition does not deny that Bulkin worked for Kaiser or that he was properly named by Kaiser. Bulkin now argues that he did not cause the patient’s injury or death (Pet. Op. Br. at 9), but he does not present any evidence on the issue. Paragraphs 4 and 9 of the Petition merely point out that he is not named or identified in the Award, and that the Award refers to multiple Kaiser physicians and staff involved in the patient’s care. These allegations do not amount to a denial. In fact, the Petition admits that Bulkin was aware of the reporting of the arbitration award on the Board’s website and states that he “believed in good faith that Respondent removed all information pertaining to the Award from Petitioner’s license history when Respondent was statutorily required to do so no later than November 2012.” Pet., ¶12.

Because he has not presented a prima facie case, Bulkin’s arguments about the lack of evidentiary value in the Board’s screenshots, that Exhibits 5 and 7 were not produced in discovery, and that the Board’s declarants lack firsthand knowledge about what happened in 2002 are not significant. Bulkin has the burden of showing that he is not properly a physician whose malpractice was a significant factor in the death of the Kaiser patient, and he has not met that burden.

In any event, Bulkin’s evidentiary arguments are not well taken. The Board no longer has Kaiser’s original report form (Smith Decl., ¶8), and it is true that the evidence the Board has is not compelling. Yet, Bulkin hardly can wait 20 years to complain about the posting of the Award and then fairly criticize the quality of evidence the Board possesses.

There is nothing wrong with current employees testifying to the Board’s past practices in 2002 even though they may have not been employed during that time. Smith explains that her 15 years in the CCU made her familiar with the Board’s procedure in 2002 and that the complaint process has remained substantially the same over time. Smith Decl., ¶¶ 1-2. Smith is entitled to interpret the Board’s computer screenshots because she is familiar with the screen information, including the meaning of the codes. Smith Decl., ¶¶ 9, 11. Romero, who is the manager of DCU, has worked for the Board for 26 years and is familiar with whether public disclosure of disciplinary information, including arbitration awards, is necessary. Romero Decl., ¶1. She also is entitled to interpret Exhibit 5 as showing the Award was subject to immediate public disclosure. Romer Decl., ¶3.[8]

Juen also does not aid Bulkin’s position. Juen held that the existence of a policy is not evidence of adherence to the policy. But Smith and Romero provide declarations about the practice in 2002, and the computer screenshots show that the policy was followed. Consequently, the Smith and Romero declarations do not speculate about whether the 2002 practice was followed in violation of Juen.

The screenshots interpreted by Smith and Romero show that Kaiser, which apparently was Bulkin’s employer and insurer at the time, reported the Award to the Board and identified Bulkin as one of the physicians found by the arbitrators to have caused or contributed to the injury or subsequent death of the patient due to his negligence. This is not a mere allegation. As the entity against which the arbitration award was entered, Kaiser would have been in the best position to identify the physicians who were at fault. There is no evidence that Kaiser made a mistake in attributing the award to Bulkin. Opp. at 9. [9]

While the Award does not name or identify Bulkin, there is no requirement that it do so to trigger reporting on the website. In 2002, pursuant to then section 803.2 an arbitration award entered against the employer of a negligent licensee was required to be reported by the licensee’s insurer or other entity described in sections 801-803. In 2007, section 803.2 was replaced by section 801.01, which also requires a report to the Board or of any arbitration award by licensee’s insurer, the licensee or his counsel if he does not have professional liability insurance, or a state or local government agency that self-insures the license. §801.01(a), (b). So, in 2002, as today, if an arbitration award was entered against an employer, the insurer of the licensee was and is required to identify and report the responsible negligent physician by name and license number. Kaiser apparently was Bulkin’s employer and insurer at the time, and it reported the arbitration award and identified Bulkin as a responsible negligent physician. Opp. at 13.

Contrary to Bulkin’s belief, section 2027 does not require the board to independently prove causation before posting an arbitration award. Rather, it was entitled to rely on Kaiser’s conclusion about his fault. As the Board notes, a requirement that the Board independently verify causation would cause an unnecessary delay in posting the arbitration award (and other similar information) to the Board’s website, and thereby diminish its purpose. Opp. at 13. Section 2027 does not impose on the Board any requirement to undertake an independent investigation or re-examine the evidence to confirm the arbitrators’ finding of negligence or causation, or Kaiser’s conclusion that Bulkin was one of the physicians at fault.

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Bulkin’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for May 25, 2023 at 9:30 a.m.

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

[2] Bulkin requests judicial notice of the following: (1) the Petition (Pet. RJN Ex. A); (2) the court’s January 5, 2023 decision on the Board’s demurrer (Pet. RJN Ex. B); (3) AB 1886’s Legislative Council’s Digest, dated August 25, 2014, also attached to the Board’s demurrer (Pet. RJN Ex. C); (4) AR 1886’s California Committee Report, dated August 8, 2014, also attached to the Board’s demurrer (Pet. RJN Ex. D); (5) the Board’s verified responses to Bulkin’s Demand for Production (Pet. RJN Ex. E); (6) portions of the legislative history of Stats 1975 2d Ex. Sess. ch. 1, which became section 800 and CCP section 1295 (Pet. RJN Ex. F); (7) section 2027 as enacted by Stats. 1997 ch. 359 section 7 (Pet. RJN Ex. G); (8) current section 2027 as enacted by Stats. 2014 ch. 285 section 2 (Pet. RJN Ex. H); and (9) the legislative history of section 800 (Pet. RJN Ex. I).

The court need not judicially notice Exhibits A-B; it may always review documents filed in the current action. The requests for judicial notice of Exhibits C-D, F, and G-I are granted. Evid. Code §452(b). Discovery responses do not qualify as records of the court and the request to judicially notice Exhibit E is denied.

The Board requests judicial notice of the following: (1) the Board’s Sunset Review Report 2012 (Barr-Fernandez Decl., ¶16, Opp. Ex. 14); (2) the Board’s Responses to Sunset Review Issues 2013 (Barr-Fernandez Decl., ¶17, Opp. Ex. 15); and (3) the version of section 2027 effective January 1, 2012 through December 31, 2014 (Barr-Fernandez Decl., ¶18, Opp. RJN Ex. 16).

Bulkin objects to the requests for Exhibits 14 and 15. Bulkin cites Atempa v. Pedrazzani (“Atempa”) (2018) 27 Cal. App. 5th 809, and Edna Valley Assn. v. San Luis Obispo County Etc. Coordinating Council (“Edna”) (1977) 67 Cal. App. 3d 444, as holding that an opinion by a government agency does not constitute an official act of that agency. RJN Obj. at 19. Neither case states as much. In Atempa, the court merely denied judicial notice of a federal report, a state agency news release, and a state agency report as irrelevant. 27 Cal.App.5^th at 819-20. In Edna, the court denied judicial notice because the records at issue were city records, which were not legal subdivisions of the state. 67 Cal. App. 3d at 449-50. When the records are from a legal subdivision of the state, they are judicially noticeable under Evid. Code section 452(c). Id. The Board is a state government agency, and its reports are official acts subject to judicial notice, if they are relevant.

Bulkin also objects to Exhibit 14 and 15 as irrelevant because they are not legislative history. Unless some source within the Legislature supports the Board’s interpretation, the Board’s perspective has no persuasive value for interpreting a statute. See Hussan v. Mercy Ant River Hosp. (2003) 31 Cal. 4th 709, 722-23. The California Committee Report for AB 1886, which amended section 2027, cites the Board’s 2013 Sunset Review in its justification for the amendments. See Pet. RJN Ex. D, p. 2. Exhibit 15 is therefore relevant. Exhibit 14, however, is not referred to in AB 1886’s legislative history. The request to judicially notice Exhibit 14 is denied as irrelevant and the request to judicially notice Exhibit 15 is granted. Evid. Code §452(c).

Finally, Bulkin objects to the Board’s request to judicially notice Exhibit 16 – section 2027 as it existed between 2012 and 2014 --- on the basis that the court ruled on demurrer that the Board’s actions or inactions pursuant to prior versions of section 2027 are moot. RJN Obj. at 7; Reply at 4. The Board relies on Exhibit 16 for its statutory interpretation of the current version of section 2027, which is the same reason that Bulkin cites a previous iteration of section 2027. See Opp. at 11. The objection is overruled, and the request to judicially notice Exhibit 16 is granted. Evid. Code §452(b).

[3] Although Mazor’s supporting declaration refers to the Board’s responses (Mazor Decl., ¶3), it does not authenticate them, and the court declined to judicially notice them. Therefore, they are not in evidence.

[4] The court has ruled on Bulkin’s written evidentiary objections, all of which were overruled with one exception. The clerk is directed to scan and electronically file the court’s rulings.

[5] For this reason, the Legislature’s failure to amend section 800 to include arbitration awards in the “individual historical record” in a licensee’s central file has no impact on the correct interpretation of section 2027.

[6] In reply, Bulkin argues that, while section 2027 plainly applies to arbitration awards, just as plainly it does not express any intent to apply to awards retroactively. A statute is not given retroactive application unless it contains a clear indication that the Legislature intended the law to be so applied. People v. Frahs, (2020) 9 Cal. 5th 618, 627. Reply at 3. There is nothing retroactive about applying section 2027(b)(6) to require the Board to post all arbitration awards that are currently in its possession, custody, or control.

[7] Bulkin contends that the court recognized that his verified Petition establishes his prima facie case. Pet. Op. Br. at 3. Not so. In ruling on the demurrer, the court never said that Bulkin had established a prima facie case. It merely held that the facts alleged in the Petition and that were subject to judicial notice did not show that Kaiser had attributed the patient’s injury to Bulkin’s negligence, error, or omission. That is not a statement that Bulkin had made a prima facie case for purposes of trial.

[8] Assuming that the Board should have produced Exhibits 5 and 7 in its November 28, 2022 responses to the RFPs, it did so in a supplemental response dated February 10, 2023. Reply Mazur Decl., ¶2. Bulkin does not show that this supplemental response, made after his opening brief was filed, violated any CCP provision or that it is subject to suppression.

[9] Bulkin argues that the Board’s attempt to read into Exhibits 5 and 7 information which does not exist based upon the declarations of persons who did not participate in creating the documents is reminiscent of West Coast University v. Board of Registered Nursing, (“West Coast”) (2022) 82 Cal.App.5^th 624, 636, where the court addressed the interpretation of a board regulation (16 CCR §1432). Id. at 636, n. 3. The West Coast court dismissed the evidentiary value of a declaration from the nursing board’s executive director which cited a 2010 board report that discussed the expansion of nursing programs but did not refer to the regulation at issue. Id. Nor was there anything in the declaration of the executive director, who joined the board years after the regulation’s adoption, that supported her claim of the board’s reasons for adopting the regulation. Id. Reply at 7.

West Coast does not aid Bulkin because the reasons why the court dismissed the executive director’s declaration – she cited a board report that did not discuss the regulation and her declaration did not support the board’s reasons for adopting the regulation – have nothing to do with the interpretation of exhibits by declarants who know the procedures that were in effect years earlier but were not present in creating them.