Superior Court
San Diego County, State of California

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 ruling file retrieved by browser: Fri, Feb 21, 2003, 8:23 AM

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