Judge Stephen I. Goorvitch, Case Number: 24STCP01797, Date: 2024-12-11 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01797, Date: 2024-12-11 Tentative Ruling

Case Number: 24STCP01797 Hearing Date: December 11, 2024 Dept: 82

Yana Budnitsky Case No. 24STCP01797

v. Hearing: December 11, 2024

Location: Stanley Mosk Courthouse

California State Board of Department: 82 Pharmacy Judge: Stephen I. Goorvitch

[Tentative] Order Granting in Part and Denying in Part Motion for Judgment

INTRODUCTION

Petitioner Yana Budnitsky (“Petitioner”) was a pharmacist who, in 2017, self-furnished Hydrocodone “with a photocopy of a previously used script,” “with no prescription,” and “with a quantity greater than prescribed.” The California State Board of Pharmacy (“Respondent” or the “Board”) revoked Petitioner’s license on October 15, 2018, which became effective on November 14, 2018, but stayed the revocation and placed Petitioner on probation. While on probation, Petitioner tested positive for tramadol, even though she did not have a prescription. On March 1, 2024, the Board issued a Notice of Suspension. On June 4, 2024, Petitioner filed the instant petition for writ of mandate challenging the Notice of Suspension, following which the Board a Petition to Revoke Probation.

Now, Respondent moves for judgment pursuant to Code of Civil Procedure section 1094 on two grounds. First, Respondent argues that the writ is untimely because it is too late to challenge the Board’s decision of November 14, 2018. Second, Respondent argues that Petitioner has not exhausted administrative remedies. The court grants the motion to the extent Petitioner seeks to challenge the decision of October 15, 2018, which became effective on November 14, 2018, because the challenge is untimely. However, the court denies the motion to the extent Petitioner seeks to challenge the Notice of Suspension on March 1, 2024.

BACKGROUND

On or about October 3, 2007, the Board issued Pharmacist License No. RPH 60296 to Petitioner. (Petition for Writ of Mandate (“Pet.”), Exh. A, ¶ 3; Administrative Record (“AR”) 169.) On July 19, 2017, the Board filed Accusation Number 6076 (the “Accusation”) seeking to discipline Petitioner for self-furnishing the drug Hydrocodone. (Pet. ¶ 3 and Exh. A; Answer (“Ans.”) ¶ 3.) The Accusation alleged, inter alia, that Petitioner self-furnished Hydrocodone “with a photocopy of a previously used script,” “with no prescription,” and “with a quantity greater than prescribed.” (Pet. Exh. A at Exh. A, ¶ 21; Ans. ¶ 3; AR 174.) On September 11, 2018, the parties signed a Stipulated Settlement and Disciplinary Order (the “Stipulation”) to resolve the matter of the Accusation. (Pet. Exh. A; Ans. ¶ 4; AR 147-167.) On October 15, 2018, the Board issued its decision (the “Decision”), effective November 14, 2018, in which the Board adopted the Stipulation. Pursuant to the Decision and the Stipulation, the Board revoked Petitioner’s pharmacist license, but stayed said revocation and placed the license on probation for five years, subject to numerous terms and conditions. (Pet. Exh. A, B; AR 147-167.) Petitioner was required to undergo drug testing and, if necessary, provide documentation that any detected substance was taken pursuant to a legitimate prescription. (Pet. ¶ 5.)

The Decision and Stipulation provided for five years of probation, from November 14, 2018, through November 13, 2023. (Pet. Exh. A, B; AR 147-167; Ans. ¶ 4.) The Board asserts that the probation was extended or tolled starting in or around April 2023 due to Petitioner’s failure to meet Board practice requirements, as provided for in the terms of probation, among other reasons. (See Request for Judicial Notice (“RJN”) Exh. A at p. 17 of 73.)

On March 1, 2024, the Board issued a Notice of Suspension informing Petitioner that her pharmacist license had been suspended “until notified by the Board in writing that she may resume practice . . . .” (Pet. ¶ 5, Exh. C; Ans. ¶ 5.) The Notice of Suspension alleged that Petitioner testified positive for Tramadol on February 13, 2024, for which Petitioner did not have a valid prescription. (Ibid.) On June 4, 2024, Petitioner filed a verified petition for writ of administrative mandate challenging the suspension of her pharmacist license. (See Pet. ¶¶ 6-13.)

On October 11, 2024, the Board filed a Petition to Revoke Probation (“Revocation Petition”) seeking to revoke the probation granted to Petitioner as part of the Decision and to revoke or suspend Petitioner’s license. (RJN Exh. A.) The Revocation Petition is based on multiple alleged violations of the terms of Petitioner’s probation, including, but not limited to, Petitioner’s positive test for Tramadol on February 13, 2024, without a valid prescription. (Ibid.) The Statement to Respondent included with the Revocation Petition gave notice to Petitioner that she could request an administrative hearing and file a “Notice of Defense.” (Ibid.)

STANDARD OF REVIEW

Code of Civil Procedure section 1094 states that “[i]f a petition for a writ of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ.” Section 1094 allows for a streamlined review of an agency’s decision when the petition “presents no triable issue of fact or is based solely on an administrative record.” (See Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1293; see also Swars v. Council of City of Vallejo (1944) 64 Cal.App.2d 858, 861; Gray v. Board of Supervisors (1957) 154 Cal.App.2d 700, 702.)

EVIDENTIARY ISSUES

Respondent requests Judicial Notice of Exhibit A, Petition to Revoke Probation, Case Number 7782, dated October 11, 2024. Petitioner has not objected to the request. The request is granted pursuant to Evidence Code section 452(c).

DISCUSSION

A. Statute of Limitations

The Board argues that Petitioner is time-barred from challenging the decision of November 14, 2018, pursuant to Government Code section 11523. Petitioner represents as follows:

Finally, the Board strangely argues that the Petition is time-barred, since it is too late to challenge its Decision of November 14, 2018. However, the Petition doesn’t challenge that Decision; instead, the Petition challenges the Board’s suspension order, issued on March 1, 2024.

(Petitioner’s Opposition at 2:15-17.) In fact, the petition seeks to “set aside the Decision in its entirety and grant Petitioner’s Petition for Reduction of Probation.” (Pet. Prayer at ¶ 1.) The petition defines the term “Decision” as the decision of October 15, 2018, effective on November 14, 2018, to revoke Petitioner’s license, stay the revocation, and impose five years of probation. (See Pet. ¶ 4.)

To the extent Petitioner challenges the original decision of October 15, 2018, effective November 14, 2018, the petition is time-barred because it was not filed within 30 days of the effective date of the decision. (See Gov. Code §§ 11523, 11521; Morton v. Board of Registered Nursing (1991) 235 Cal.App.3d 1560, 1565.) The court interprets Petitioner’s counsel’s representation as a stipulation that he does not intend to challenge that decision in this proceeding, and the motion is granted in this respect. However, the petition is not time-barred to the extent it challenges the Notice of Suspension, dated March 1, 2024.

B. Exhaustion of Administrative Remedies

The Board contends that the suspension of Petitioner’s license for probation violations was not a “final administrative decision,” and that Petitioner has not exhausted administrative remedies. (Motion for Judgment (“Mot.”) 4-6.) Petitioner argues to the contrary, that the suspension itself was a final administrative decision because it is indefinite in length, and she was not afforded any means of challenging this decision, i.e., “Petitioner simply had no administrative remedies to exhaust.” (Opening Brief at 7:25.)

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (Cal. Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “The exhaustion requirement applies whether relief is sought by traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus.” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520 [emphasis added].) “The exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency. A party must proceed through the full administrative process ‘to a final decision on the merits.’” (Alta Loma School Dist. v. San Bernardino County Com. On School District Reorganization (1981) 124 Cal.App.3d 542, 554.) “The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) There are exceptions to the exhaustion requirement, including

[W]hen the subject of the controversy lies outside the administrative agency’s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency’s decision in his particular case would be.

(Edgren, supra, 158 Cal.App.3d at 520 [citations omitted and emphasis added].)

Petitioner may have a due process right before any suspension is imposed, especially an indefinite suspension, as in this case.

Even when the Board imposes a less serious form of discipline such as a short suspension

. . . , disciplinary proceedings may tarnish the [licensee’s] ‘good name, reputation, honor, or integrity’ . . . ., making it difficult or impossible for the [licensee] to find work, thereby affecting a due process liberty interest.

(Zuckerman v State Board of Chiropractic Examiners (2002) 29 Cal.4th 32, 43.) It is not entirely clear that Petitioner waived any due process right by virtue of her stipulation to accept probation. The suspension was based on paragraph 17 of the terms of Petitioner’s probation, which provides in relevant part as follows:

Any of the following shall be considered a violation of probation and shall result in respondent being immediately suspended from practice as a Pharmacist until notified by the board in writing that she may resume practice . . . failure to timely supply documentation demonstrating that a detected substance was taken pursuant to a legitimate prescription issued as a necessary part of treatment; and/or detection through testing of alcohol, or of an illicit drug, or of a controlled substance or dangerous drug absent documentation that the detected substance was taken pursuant to a legitimate prescription and a necessary treatment.

(Pet. ¶ 5, Exh. C; Ans. ¶ 5 [emphasis added].) However, the Board also informed Petitioner as follows:

[U]pon violation or failure to comply with any of the terms and conditions of this stay, the Board may, after notice and opportunity to be heard is given to you, vacate the stay and re-impose the revocation, or take other action as it deems appropriate.

(AR 143 [emphasis added].) This presents a triable issue whether Petitioner was entitled to “notice and opportunity to be heard” before her license was suspended indefinitely.

Petitioner also argues that the Board was required to comply with Business and Professions Code section 494 before suspending Petitioner’s license on an interim basis. (See Oppo. 6 [citing section 494]; see also Oppo. 2, fn. 1 [citing Gov. Code § 11529].) That section states in relevant part that a licensee “shall be given at least 15 days’ notice of the hearing on the petition for an interim order.” (Bus. & Prof. Code § 494(a).)

The Board has not responded in a reply brief to Petitioner’s arguments. The failure to do so is “equivalent to a concession.” (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16.) The Board also does not dispute that Petitioner was not afforded an “opportunity to be heard” before the indefinite license suspension was imposed. The administrative record lodged by Petitioner does not show that Petitioner was afforded any opportunity to challenge the suspension, either before or after it was imposed. The court need not decide at this stage what type of due process was required, i.e., whether Petitioner was entitled to a hearing or merely an opportunity to respond in writing.

In sum, there are triable issues whether the suspension is a final or interim administrative decision that can itself be challenged by petition for writ of mandate, and whether Petitioner was afforded adequate due process before the suspension was imposed. Therefore, the motion is denied with respect to Petitioner’s challenge to her suspension of March 1, 2024.

CONCLUSION AND ORDER

Based upon the foregoing, the court orders as follows:

1. The motion for judgment pursuant to Code of Civil Procedure section 1094 is granted in part and denied in part.

2. The court grants the motion to the extent Petitioner seeks to challenge the Board’s decision to revoke her license, stay the revocation, and impose probation for five years, dated October 15, 2018, which became effective on November 14, 2018.

3. The court denies the motion to the extent Petitioner seeks to challenge the Board’s Notice of Suspension, issued on March 1, 2024.

4. Respondent’s counsel shall provide notice and file proof of service with the court.

IT IS SO ORDERED

Dated: December 11, 2024 ______________________

Stephen I. Goorvitch

Superior Court Judge