Judge: Mitchell L. Beckloff, Case: 22STCP02030, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCP02030    Hearing Date: May 5, 2023    Dept: 86

GROSS v. PRASIFKA

Case Number: 22STCP020030

Hearing Date: May 5, 2023

[Tentative]       ORDER DENYING PETITION FOR WRIT OF MANDATE

This action challenges a Notice of Automatic Suspension of License issued by Respondent, Medical Board of California,[1] against Petitioner, Jeffrey David Gross, M.D., on April 28, 2022. Petitioner is a physician licensed to practice medicine in this state.

The petition seeks a court order directing Respondent to “terminate the Automatic Suspension” of his medical and surgeon license. The petition also requests an order enjoining Respondent from “re-implementing the Automatic Suspension unless new and subsequent facts warrant such.” (Pet., Prayer ¶¶ 1-2.)

Respondent opposes the petition.

The petition is denied as moot.

STATEMENT OF THE CASE[2]

On May 21, 2021, Petitioner was convicted of conspiracy to commit honest services mail and wire fraud, in violation of 18 United States Code section 371. Petitioner received a 15-month sentence in federal prison. Upon release from prison, Petitioner was ordered placed on three years of supervised release.

The sentencing court ordered Petitioner to surrender to an institution designated by the Bureau of Prisons (BOP) on August 16, 2021.

Approximately six months into service of his sentence, the BOP transferred Petitioner to an inmate halfway house in Las Vegas, Nevada effective February 24, 2022.

Two months after Petitioner’s transfer to a halfway house, on April 28, 2022, Respondent issued a Notice of Automatic Suspension of License pursuant Business and Professions Code section 2236.1. The notice provided the effective date of the suspension as May 21, 2021 and noted the suspension would continue “while [Petitioner] is incarcerated” and “thereafter until a hearing may be held pursuant to Business and Professions Code section 2236.1, subdivision (1) and (d)(2), or until further order of [Respondent].” (Petitioner’s Appendix, Ex. A.)

On May 27, 2002, Petitioner filed his petition in this court.

On July 5, 2022, the BOP released Petitioner from custody. Consistent with his sentence, he is now on supervised release for a period of three years. (Petitioner’s Appendix, Ex. B; Gross Decl., ¶ 9.)

On July 8, 2022, this court stayed the notice pending judicial review of Respondent’s action.

On July 13, 2022, Respondent issued its termination of automatic suspension order. The order states:

“[Petitioner] having complied with the terms and conditions in the Automatic Suspension Order, it is hereby ordered that the Automatic Suspension Order issued against [Petitioner], on May 21, 2021, is hereby terminated.” (Tarwater Decl., Ex. A.)

STANDARD OF REVIEW

Petitioner challenges Respondent’s decision to impose an automatic suspension of Petitioner’s license as a medical doctor. Respondent imposed the suspension without any evidentiary hearing. The parties agree judicial review here is governed by Code of Civil Procedure section 1085. (Opening Brief 11:4-12:4; Opp. 9:11-10:15.)

An agency’s ministerial acts, quasi-legislative acts, and quasi-judicial decisions that do not meet the requirements for review under Code of Civil Procedure section 1094.5 are subject to judicial review under Code of Civil Procedure section 1085. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.) “[O]rdinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of University of California, supra, 35 Cal.App.4th at 848.)

Under Code of Civil Procedure section 1085, a writ:

“may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, a petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

“A ministerial duty is one that a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the propriety of such act.” (Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 528 [cleaned up].) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 177.)

A traditional writ of mandate may issue where the agency's action was arbitrary, capricious, entirely lacking in evidentiary support, or failed to follow the procedure required by law. (Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, 814; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 846.)

ANALYSIS

Petitioner contends the “narrow and solitary” issue upon which Petitioner seeks relief is “whether Petitioner’s legal status in a halfway house following his release from prison gives rise to the meaning of the term ‘incarceration’ as set forth specifically in California Business & Professions Code Section 2236.1, subdivision (a).” (Opening Brief 1:11-15.)[3]

Whether the Matter is Moot:

Respondent contends the matter is now moot and should be dismissed. The court agrees.

As a preliminary matter, the petition filed May 27, 2022 sought the following relief:

“1. For issuance of a Writ of Mandate pursuant to California Civil Procedure Code Section 1085 directed at Respondents, compelling them, their employees, agents, officers, and all persons acting on their behalf, to terminate the Automatic Suspension;

2. For a Writ of Prohibition pursuant to California Civil Procedure Code Section 1102 enjoining and prohibiting Respondents from re-implementing the Automatic Suspension unless new and subsequent facts warrant such;

3. For an award of costs of suit and attorneys’ fees therein incurred; and

4. That the Court grant Petitioner such other and further relief it may deem to be just and proper under circumstances presented, or predicated upon such further ex parte or other applications as Petitioner may hereafter bring.” (Pet., Prayer)

“ ‘The pleadings are supposed to define the issues to be tried.’ ” (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1048.) As explained by our Supreme Court, “[a] party is entitled to ‘any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved.’ ” (Estrin v. Superior Court (1939) 14 Cal.2d 670, 678 [emphasis added].) Indeed, as one authoritative treatise on California law has stated, “it is error to give a remedy or relief entirely outside the issues raised by the pleadings.” (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 291, p. 901.) In other words, “ ‘[a] judgment must be confined to matters which have been placed in issue by the parties.’ ” (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 123.)

The dispute in this matter arose after the BOP released Petitioner from prison and transferred him to a halfway house. (Pet., ¶ 13; Opening Brief 111-14.) The dispute focused on the automatic license suspension during “the time period when Petitioner slept at the halfway house . . . .” (Opening Brief 4:8-9.) There is no dispute today Petitioner has been released from custody and the notice of suspension terminated. The controversy between the parties has ended.

“A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) “An issue becomes moot when some event has occurred which ‘deprive[s] the controversy of its life.’ ” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257; Boccato v. City of Hermosa Beach (1984) 158 Cal.App.3d 804, 808.) “The policy behind a mootness dismissal is that ‘courts decide justiciable controversies and will normally not render advisory opinions.’ ” (Giraldo v. Department of Corrections & Rehabilitation, supra, 168 Cal.App.4th at 257; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1179.)

Based on the relief sought in the petition, the court can no longer provide effectual relief—that is, the court cannot issue an order “terminating” the automatic suspension where the automatic suspension has already been terminated. The court cannot grant any relief here and any order would have no practical impact.

Petitioner argues his petition is not moot. (Opening Brief 2:9-3:3.) Petitioner notes there are exceptions to the mootness doctrine. He relies on the notion the controversy is capable of repetition and evading review. He also notes if a party can demonstrate some prior decision if allowed to stand “ ‘may have collateral consequences adverse to its interests,’ the party can avoid dismissal for mootness.” (Fritsch v. Swift Transportation Company of Arizona, LLC (2018) 899 F.3d 785, 791.)

“There are three discretionary exceptions to the rules regarding mootness allowing a court to review the merits of an issue: ‘(1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination.’ [Citation.]” (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547-1548.)

Where a proceeding raises an issue of “broad public interest that is likely to recur,” the exception to the rule of mootness applies only where the issue “. . . may otherwise . . . evade review.” (People v. Harrison (2013) 57 Cal.4th 1211, 1218; see California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 303-304. [“There is ample precedent for resolving important issues of substantial and continuing public interest that may otherwise evade review.”])

Even assuming for Petitioner raises an issue of “broad public interest that is likely to recur,”[4] Petitioner has not demonstrated the issue is capable of evading review. While Petitioner argues stays in halfway houses are “inherently limited in duration,” Petitioner has not demonstrated others cannot obtain timely judicial review. A petition for an alternative writ may result in an order to show cause and a prompt hearing. A petition for peremptory writ may also be heard promptly where circumstances so dictate. For example, under the circumstances here, the BOP placed Petitioner in the halfway house for 131 days—from February 24 to July 5, 2022. In such time, Petitioner could have sought judicial intervention.

As to the remaining relief sought by Petitioner to “enjoin[] and prohibit[] Respondents from re-implementing the Automatic Suspension unless new and subsequent facts warrant such” pursuant to Code of Civil Procedure section 1102, it appears Petitioner has abandoned the claim. Petitioner does not cite Code of Civil Procedure section 1102 in his Opening Brief. Moreover, Petitioner does not provide any argument about the statute’s applicability here.

Finally, Petitioner contends an exception to mootness applies here because “Respondents have created an incorrect and unwarranted gap in [his] California professional medical licensure.” (Reply 2:25-26.) Petitioner attests, “With the Automatic Suspension on my record with [Respondent], this compromises my licensure in other states (Nevada and Utah), and it impacts my ability to enjoy my professional licensure without restraint and risks future professional employment and licensure.”[5] (Gross Decl., ¶ 10.)

There can be no dispute Petitioner was incarcerated from August 16, 2021 through February 24, 2022. There can also be no dispute Petitioner’s incarceration in prison resulted in an automatic suspension pursuant to Business and Professions Code section 2236.1, subdivision (a).[6] The gap in Petitioner’s licensure resulted from Petitioner’s felony conviction and incarceration. Petitioner has not demonstrated a gap of six months (during his incarceration) impacted him differently than a gap of 11 months (incarceration and halfway house time). In addition, Respondent’s letter concerning Petitioner’s licensure indicates Petitioner’s automatic suspension ran from April 28, 2022 to July 13, 2022, a period of less than three months.

On the evidence presented, the court finds Petitioner has not demonstrate he continues to suffer any collateral consequences based on any error by Respondent in not terminating the automatic suspension during the time Petitioner resided in an halfway house.

CONCLUSION

Based on the foregoing, the petition is denied as moot.

IT IS SO ORDERED.

May 5, 2023                                                                            ________________________________

                                                                                                                   Hon. Mitchell Beckloff

                                                                                                                   Judge of the Superior Court