Judge: Robert C. Longstreth, Case: 37-2021-00008121-CU-MC-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  02:00:00 PM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Misc Complaints - Other Hearing on Petition 37-2021-00008121-CU-MC-CTL ROBERT LOPEZ, DECEDENT, BY AND THROUGH HIS SUCCESOR-IN-INTEREST CYNTHIA LOPEZ VS HAY [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/28/2024

Petitioner's Motion for Writ of Mandate, Injunction and Declaratory Relief (ROA 227) is DENIED.

Whether the Petition is Barred by the Statute of Limitations Respondent, the Regents of the University of California ('UC Regents') contends that the writ petition is barred by the statute of limitations. It is undisputed between the parties that the three-year statute of limitations in Code of Civil Procedure section 338(a) applies to Petitioner's claims. At issue in this writ petition is the conduct of former anesthesiologist, Bradley Hay, including his drug diversion while employed at the University of California San Diego Medical Center ('UCSDMC'), culminating in an overdose incident that occurred at UCSDMC on January 27, 2017. Petitioner's Complaint in this action was not filed until February 25, 2021. UC Regents contends that the action is untimely.

Petitioner responds that her Complaint in this action relates back to her federal court complaint, which was filed on January 24, 2020. 'The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one.' (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-09.) The relation-back doctrine is to be liberally applied and 'courts should keep in mind our state's strong policy of deciding cases on their merits.' (Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 715.) New claims and new theories are generally permissible as long as they rely on the same set of operative facts as the prior complaint. A state court complaint can relate back to a timely-filed federal court complaint. (See Dudley v. Dept. of Transportation (2001) 90 Cal.App.4th 255, 266.) Here, though the claims and theories have changed over time, the federal court complaint relies on the same set of operative facts as are alleged in Petitioner's state court complaint. (ROA 236, Mock Decl. at Exh. 15-16.) UC Regents attempts to assert that the relation-back doctrine cannot be applied because UCSDMC was never served with the federal complaint. UC Regents is the Respondent in this action and according to its own evidence, it was served with the federal complaint. (Id. at Exh. 17.) Further, UC Regents filed its opposition brief as 'Respondent The Regents of the University of California, on behalf of the University of California San Diego Medical Center ('UCSDMC').' (Opp. at 5:1-2.) The court concludes that the Complaint in this state court action relates back to the prior federal court complaint.

Petitioner also asserts that the discovery rule supports a conclusion that her Complaint is timely. A cause of action generally accrues when it is 'complete,' meaning that all of the elements of the cause of action have occurred. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) 'An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of Calendar No.: Event ID:  TENTATIVE RULINGS

3093068  54 CASE NUMBER: CASE TITLE:  ROBERT LOPEZ, DECEDENT, BY AND THROUGH HIS  37-2021-00008121-CU-MC-CTL action until the plaintiff discovers, or has reason to discover, the cause of action.' (Id. at p. 807.) UC Regents contends that the discovery rule cannot be applied because Petitioner lacks a direct beneficial interest, citing Hogar Dulce Hogar v. Community Dev. Comm. (2003) 110 Cal.App.4th 1288.

In Hogar Dulce Hogar, the Fourth District, Division One held that 'a discovery rule is not appropriate, where as here, a public agency's violation of a statute is a matter of public record and the violation is being asserted by a plaintiff which has no direct beneficial interest in the outcome of the litigation.' (Hogar Dulce Hogar at p. 1297.) However, in Hogar Dulce Hogar, the public agency's alleged violations 'were the subject of public meetings and public records. There was no attempt by the agency to conceal its payment to the Housing Fund.' (Ibid.) Thus, 'a diligent plaintiff should have been able to discover whether a cause of action existed.' (Ibid.) Here, UC Regents is not pointing to evidence of the alleged statutory violations within its own public records. Instead, it refers to two items – Hay's guilty plea (a public court record) and a single news article. The provided court records consist of an April 11, 2018 charge by the U.S. Attorney General and an August 6, 2018 judgment. (Blood Decl. at Exh. G.) Using the earlier April 11, 2018 date supports a conclusion that the Complaint was timely filed, so this evidence does not support UC Regents' argument. As for the news article (dated November 16, 2017), it generally reports that Hay's license was suspended after the overdose incident. (Mock Decl. at Exh. 21.) Presuming that a single news article is enough to put the Petitioner on inquiry notice of her claim, again, her claim would be timely if November 16, 2017 was the accrual date because the federal complaint was filed less than three years later on January 24, 2020.

It is undisputed that Petitioner did not have actual knowledge of Hay's wrongdoing until May 2018, when she learned of it from a California medical board examiner per her deposition testimony. (Mock Decl. at Exh. 9, 19:14-20:2.) The court concludes that UC Regents has not demonstrated that the Complaint is barred by the statute of limitations.

Whether the Petition is Barred by the Equitable Doctrine of Laches UC Regents contends that the writ petition is barred by laches.

'The doctrine of laches bars a cause of action when the plaintiff unreasonably delays in asserting or diligently pursuing the cause and the plaintiff has acquiesced in the act about which the plaintiff complains, or the delay has prejudiced defendant.' (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 77.) Although UC Regents asserts that Petitioner unreasonably delayed in bringing her claim, the argument is not persuasive. As the court has concluded above, Petitioner has brought her claims within the statutory time limit. (Code Civ. Proc. § 338(a).) Nor is UC Regents' assertion of prejudice persuasive.

UC Regents knew of Hays' wrongdoing at the time of the overdose and was required to report it to multiple other agencies; it therefore had ample notice to maintain relevant evidence, interview witnesses, and otherwise prepare for potential litigation.

The court concludes UC Regents has not demonstrated that the Complaint is barred by laches.

Whether Petitioner is Entitled to a Writ of Mandate Petitioner seeks a traditional writ of mandate pursuant to Code of Civil Procedure section 1085 compelling UC Regents to report Hay's conduct to the California Department of Public Health ('CDPH') and to Hay's patients in accordance with Health and Safety Code section 1279.1.

To obtain a writ of mandate, Petitioner must establish three elements: 1) there is no plain, speedy, and Calendar No.: Event ID:  TENTATIVE RULINGS

3093068  54 CASE NUMBER: CASE TITLE:  ROBERT LOPEZ, DECEDENT, BY AND THROUGH HIS  37-2021-00008121-CU-MC-CTL adequate remedy at law, 2) the public entity has a clear duty to perform some ministerial act imposed by law, and 3) the petitioner has a clear and beneficial right to performance of the duty. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 184-85; see also Code Civ. Proc. § 1086.) The parties do not dispute that Petitioner has no adequate legal remedy.

Section 1279.1 requires licensed health facilities to 'report an adverse event to [CDPH] no later than five days after the adverse event has been detected, or, if that event is an ongoing urgent or emergent threat to the welfare, health, or safety of patients, personnel, or visitors, not later than 24 hours after the adverse event has been detected.' (Health & Saf. Code § 1279.1(a).) The statute contains an extensive list of events that constitute an 'adverse event,' including subcategories for surgical events (subd. (b)(1)), product or device events (subd. (b)(2)), patient protection events (subd. (b)(3)), care management events (subd. (b)(4)), environmental events (subd. (b)(5)), criminal events (subd. (b)(6)), and a catch-all (subd. (b)(7)).

Petitioner asks the court to interpret this statute broadly, asserting that it contains an illustrative but not-exhaustive list of adverse events that must be reported. Petitioner's asserts that Hay's conduct could be considered a reportable adverse event under the statute as a patient protection event, care management event, criminal event, or as an 'unusual occurrence.' Beyond making this broad assertion, however, Petitioner does not analyze how Hay's conduct might be encompassed within the plain language of the statute.

As to each subcategory, the statute defines what events must be reported. For example, under subdivision (b)(6), the statute defines an adverse event to include 'Criminal events, including the following: (A) Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed health care provider. (B) The abduction of a patient of any age. (C) The sexual assault on a patient within or on the grounds of a health facility. (D) The death or significant injury of a patient or staff member resulting from a physical assault that occurs within or on the grounds of a facility.' (Health & Saf. Code § 1279.1(b)(6).) The list of specific criminal events that must be reported is relatively narrow. Even if it were appropriate for the court to add events to this list, it would be proper to do so if these added events were reasonably similar to the events already listed. Drug diversion and physician impairment are significantly dissimilar to the listed events.

The court concludes that Petitioner has not established that UC Regents had a clear legal duty to report Hay's conduct under section 1279.1. Accordingly, Petitioner's request for issuance of a writ of mandate is denied.

Petitioner's and Respondent's requests for judicial notice are both granted. However, separate supporting and opposing memoranda related to the requests for judicial notice are not authorized. Court rules require 'a separate document listing the specific items for which notice is requested,' not additional memoranda. (Cal. R. Court, rule 3.1113(l).) Since resolution of the evidentiary objections made by the parties does not materially affect the court's analysis, the court declines to rule on those objections.

Respondent is to submit a proposed Judgment within five (5) days.

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