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The
following is a TELEPHONIC, ruling for 2/20/2003, Department
#30, the Honorable THOMAS P. NUGENT presiding.
Case
Number GIN024734
THE
GENERAL DEMURRER OF DEFENDANT CALIFORNIA DEPARTMENT OF MANAGED
HEALTH CARE TO THE PETITION/COMPLAINT IS SUSTAINED WITHOUT LEAVE
TO AMEND AS TO CAUSES OF ACTION 1-3 AND OVERRULED AS TO THE
FOURTH CAUSE OF ACTION.
AS A
PRELIMINARY MATTER, THE COURT HAS NOT CONSIDERED ON THIS DEMURRER
DEFENDANT'S ARGUMENTS REGARDING PLAINTIFF'S EVIDENCE. FOR PURPOSES
OF A DEMURRER, THE COURT ASSUMES ALL FACTS PLED IN THE COMPLAINT
ARE TRUE EXCEPT WHERE CONTRADICTED BY EXHIBITS ATTACHED TO THE
COMPLAINT. THE EXHIBITS ATTACHED TO PLAINTIFF'S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF MANDATE
CANNOT BE CONSIDERED.
THE SOLE
ISSUE ON THIS DEMURRER IS WHETHER ANY CAUSE OF ACTION HAS BEEN
STATED. THE INITIAL PLEADING FILED BY PLAINTIFF IN THIS CASE
IS ENTITLED "PETITION FOR WRIT OF MANDATE AND COMPLAINT
FOR DECLARATORY RELIEF AND MANDATORY INJUNCTION". THE BODY
OF THE PLEADING THEN ALLEGES: "PLAINTIFF, PURSUANT TO CCP
1085 AND 1086, SUBMITS THIS PETITION FOR WRIT OF MANDATE…"
"IT
IS NOT NECESSARY THAT THE CAUSE OF ACTION BE THE ONE INTENDED
BY PLAINTIFF. THE TEST IS WHETHER THE COMPLAINT STATES ANY VALID
CLAIM ENTITLING PLAINTIFF TO RELIEF. THUS, PLAINTIFF MAY BE
MISTAKEN AS TO THE NATURE OF THE CASE OR THE LEGAL THEORY ON
WHICH HE OR SHE CAN PREVAIL. BUT IF THE ESSENTIAL FACTS OF SOME
VALID CAUSE OF ACTION ARE ALLEGED, THE COMPLAINT IS GOOD AGAINST
A GENERAL DEMURRER". WEIL AND BROWN, CIVIL PROCEDURE BEFORE
TRIAL (THE RUTTER GROUP, 2002) SECTION 7:41 CITING QUELIMANE
CO., INC. V. STEWARD TITLE GUAR. CO.(1998) 19 CAL.4TH 26, 38.
NONE
OF THE CAUSES OF ACTION SET FORTH A PROPER CLAIM FOR WRIT OF
MANDATE. PLAINTIFF HAS NOT ALLEGED FACTS SHOWING DEFENDANT HAS
A CLEAR, PRESENT AND MINISTERIAL DUTY TO PERFORM A PARTICULAR
ACT AND FAILED TO DO SO. FURTHER, THE PRAYER OF THE PETITION
DOES NOT EVEN SEEK ISSUANCE OF A WRIT OF MANDATE. THEREFORE,
IT MUST BE DETERMINED WHETHER ANY COGNIZABLE CAUSE OF ACTION
HAS BEEN PLED IN THE PETITION/COMPLAINT.
THE FIRST
CAUSE OF ACTION PURPORTS TO ALLEGE THAT DEFENDANT HAS VIOLATED
HEALTH AND SAFETY CODE SECTION 1342 ET SEQ. BY "REFUSING
TO ACKNOWLEDGE AND BY CONDONING UNLAWFUL COERCION AND RETALIATION
AGAINST PATIENTS WHO DEMAND ADVOCACY AND UNCENSORED, HONEST
COMMUNICATION REGARDING THEIR STATUTORY MANDATED LEGAL RIGHTS
WITH PHYSICIANS PRIOR TO THE ESTABLISHMENT OF THE PHYSICIAN-PATIENT
RELATIONSHIP AND THE ENFORCEMENT OF THOSE RIGHTS DURING THE
COURSE OF THE RELATIONSHIP". THE FIRST CAUSE OF ACTION
ALSO MAKES REFERENCE TO HEALTH AND SAFETY CODE SECTION 1342.1.
NOTHING IN EITHER SECTIONS 1342 OR 1342.1 IMPOSE A MANDATORY
DUTY ON DEFENDANT. FURTHER, NOTHING IN THESE STATUTES CREATES
A PRIVATE RIGHT OF ACTION. SEE SAMURA V. KAISER FOUNDATION HEALTH
PLAN, INC. (1993) 17 CAL.APP.4TH 1284.
THE SECOND
CAUSE OF ACTION ALLEGES THAT DEFENDANTS HAVE VIOLATED HEALTH
AND SAFETY CODE SECTION 1368(E) AND BUSINESS AND PROFESSIONS
CODE SECTIONS 510 AND 2056 BY COERCING AND RETALIATING AGAINST
PHYSICIANS WHO "ADVOCATE FOR MEDICALLY APPROPRIATE HEALTH
CARE FOR HIS OR HER PATIENTS." NOTHING IN HEALTH AND SAFETY
CODE SECTION 1368(E) IMPOSES A MANDATORY DUTY ON DEFENDANT OR
CREATES A PRIVATE RIGHT OF ACTION. SECTION 1368 IS ENTITLED
"GRIEVANCE SYSTEMS" AND SIMPLY DISCUSSES GRIEVANCE
AND RESOLUTION PROCEDURES FOR HEATH CARE SERVICE PLANS.
AS FOR
THE IMPOSITION OF ANY DUTY PURSUANT TO BUSINESS AND PROFESSIONS
CODE SECTIONS 510 AND 2056, ALTHOUGH CASE LAW RECOGNIZES CAUSES
OF ACTION BROUGHT BASED ON SUCH SECTIONS BY THE TERMINATED PHYSICIAN
[SEE FOR EXAMPLE KHAJAVI V. FEATHER RIVER ANESTHESIA MEDICAL
GROUP (2001) 84 CAL.APP.4TH 32], PLAINTIFF HAS CITED NO AUTHORITY
TO SHOW THAT SHE IS ENTITLED TO BRING A COMPLAINT FOR DECLARATORY
OR INJUNCTIVE RELIEF TO RESTRAIN DEFENDANT FROM SUCH ALLEGED
VIOLATIONS OF PUBLIC POLICY.
THE THIRD
CAUSE OF ACTION IS BASED ON DEFENDANT'S ALLEGED VIOLATION OF
A STATE LAW ENFORCEMENT ORDER IN VIOLATION OF HEALTH AND SAFETY
CODE SECTION 386(B)(6). THE COMPLAINT ALLEGES THAT DEFENDANT'S
HMO HELP CENTER NURSE CONSULTANT "ORDERED" KAISER
TO DISCUSS PLAINTIFF'S KNOX-KEENE ACT RIGHTS AND PROTECTIONS
WITH HER PRIOR TO THE ESTABLISHMENT OF A PHYSICIAN-PATIENT RELATIONSHIP.
WHILE IT IS QUESTIONABLE AS TO WHETHER A NURSE'S STATEMENT CONSTITUTES
AN OFFICIAL ORDER, PLAINTIFF HAS FAILED TO CITE ANY AUTHORITY
ENTITLING HER TO FILE SUIT BASED ON SUCH ALLEGED DISOBEDIENCE
OF THE "ORDER". NOTHING IN SECTION 386(B)(6) CREATES
A PRIVATE RIGHT OF ACTION.
THE FOURTH
CAUSE OF ACTION ALLEGES THAT DEFENDANTS "GAGGED" PLAINTIFF
AND PREVENTED HER FROM COMMUNICATING WITH HER HEALTH CARE SERVICE
PLAN AND ITS CONTRACT PHYSICIANS IN REGARD TO CALIFORNIA PUBLIC
POLICY AND HER RIGHTS UNDER THE ACT AND RETALIATED AGAINST PLAINTIFF
BY DENYING HER A SECOND OPINION FOR DERMATOLOGY CARE FROM THE
SPECIALIST OF HER CHOICE WITHIN THE HEALTH CARE PHYSICIAN GROUP.
PLAINTIFF ALSO ATTEMPTS TO ARGUE THAT DEFENDANTS HAVE COMMITTED
RICO VIOLATIONS [18 USC SECTION 1861]. SEE COMPLAINT, PP. 29-30.
INSUFFICIENT FACTS HAVE BEEN PLED TO ESTABLISH ANY RICO VIOLATIONS.
HOWEVER, TO THE EXTENT THAT THE FOURTH CAUSE OF ACTION ALLEGES
THAT DEFENDANTS FAILED TO ALLOW PLAINTIFF TO HAVE A SECOND OPINION
AS REQUIRED BY HEALTH AND SAFETY CODE SECTION 1383.15(F), SUFFICIENT
FACTS HAVE BEEN PLED TO STATE A CAUSE OF ACTION FOR BREACH OF
CONTRACT. WHETHER THERE WAS, IN FACT, A BREACH IS TO BE DETERMINED
BY SUMMARY JUDGMENT MOTION OR TRIAL.
DEFENDANT IS GRANTED 10 DAYS LEAVE TO ANSWER. PLAINTIFF SHALL
SERVE A NOTICE OF RULING WITHIN 24 HOURS OF THIS TELEPHONIC
RULING. CCP SECTION 472B. SINCE NO PROPER PETITION FOR WRIT
OF MANDATE HAS BEEN PLED, THE COURT VACATES THE MARCH 13, 2003
HEARING DATE ON THE PETITION FOR WRIT OF MANDATE.
THIS
IS A FINAL RULING ENTERED AS OF THIS DATE. NO FURTHER WRITTEN
ORDER IS REQUIRED. THE COURT WILL NOT ENTERTAIN ORAL ARGUMENT.
This
ruling file posted to web server: Thu, Feb 20, 2003, 1:45 PMThis
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