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Sandor J. Woren v. Osteopathic Medical Board of California

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 17, 2010

SANDOR J. WOREN, PLAINTIFF AND APPELLANT,
v.
OSTEOPATHIC MEDICAL BOARD OF CALIFORNIA, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 34200980000149CUWMDGS

The opinion of the court was delivered by: Cantil-sakauye ,j.

Woren v. Osteopathic Medical Bd. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sacramento)

The Osteopathic Medical Board of California (the Board) disciplined the licensee, Sandor J. Woren, a doctor of osteopathic medicine, after Woren was convicted of petty theft for stealing an inexpensive cell phone cover from Home Depot. Woren appeals from a judgment denying his petition for a writ of mandate to set aside the Board's discipline order after the trial court sustained the Board's demurrer without leave to amend. He contends the trial court erred in finding his petition was untimely and also in finding his crime of petty theft was substantially related to the practice of medicine.

We affirm. Woren's petition for a writ of mandate was not filed within the time limit set forth in Government Code section 11523. Accordingly, the trial court properly sustained the demurrer.

BACKGROUND

In February of 2008, the Board filed an accusation against Woren. The accusation stated two grounds for discipline: engaging in dishonest or corrupt acts, and the conviction of a substantially related offense. These grounds were based on Woren's theft of a cell phone cover, worth $6 or $7, from Home Depot and his subsequent conviction by jury of petty theft (Pen. Code, § 484, subd. (a)).*fn1

After a hearing, an administrative law judge (ALJ) issued a decision. The ALJ found cause existed to discipline Woren for his dishonest act of stealing and his conviction for petty theft. Under the Board's Disciplinary Guidelines, the minimum discipline for an act of dishonesty or the conviction of a crime was a stay of revocation and five years' probation. The ALJ found, however, that only three years' probation was necessary to protect the public welfare. The ALJ further found imposing psychiatric treatment as a condition of probation was not necessary to protect the public.

At the conclusion of the hearing, the ALJ told Woren that if he was not happy with the decision, he could petition for a writ of mandate. The ALJ advised Woren to have assistance of counsel to file the petition because "[i]t is kind of a specialized legal proceeding" and "[t]here is a limited amount of time to file those applications."

The Board adopted the ALJ's decision on November 20, 2008. It set an effective date for its order of December 22, 2008. In the meantime, on December 15, 2008, the Board sent Woren a letter informing him of the Board's decision and its effective date.

Woren then requested a stay of any action by the Board. The Board replied it was without jurisdiction to stay the matter once the decision had been accepted. On January 14, 2009, Woren requested a transcript of the hearing.

On January 23, 2009, Woren, representing himself, petitioned for a writ of mandate, seeking to have the Board's decision set aside. Woren contended the crime of petty theft was not substantially related to the practice of osteopathic medicine.

The Board demurred to Woren's second amended petition for a writ of mandate. The Board asserted the petition failed to state a cause of action for two reasons. First, the petition was barred by the statute of limitations of Government Code section 11523. Second, it was well established that petty theft was a crime of dishonesty bearing a substantial relationship to the practice of medicine.

The trial court sustained the demurrer without leave to amend. A judgment denied Woren's petition.

DISCUSSION

Woren's Petition Was Untimely

Proceedings against a licensee of the Board for unprofessional conduct are conducted in accordance with the provisions of the Administrative Procedure Act (Chapter 5 (commencing with section 11500) of Part I Division 3 of Title 2 of the Government Code). (Bus. & Prof. Code, §§ 3600, 2230, subd. (a).)

A licensee may seek judicial review of the Board's decision by filing a petition for a writ of mandate. The petition must be filed within 30 days of the last day on which reconsideration may be ordered. (Gov. Code, § 11523.)*fn2 "'"The time period within which a mandamus petition must be filed is a statute of limitations and the rules regarding limitations of actions are applicable to mandamus proceedings." [Citation.]' [Citation.]" (Jahangiri v. Medical Bd. of California (1995) 40 Cal.App.4th 1657, 1661.)

Although Woren did not request reconsideration of the Board's decision, he nonetheless asserts his time to file a petition is extended by the period of reconsideration. "The agency itself may order a reconsideration of all or part of the case on its own motion or on petition of any party. The agency shall notify a petitioner of the time limits for petitioning for reconsideration. The power to order a reconsideration shall expire 30 days after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period or at the termination of a stay of not to exceed 30 days which the agency may grant for the purpose of filing an application for reconsideration." (§ 11521, subd. (a).)

"An agency may, pursuant to the second segment of the second sentence, shorten the standard 30-day period in which to order a reconsideration by making its decision effective on a date 'prior to the expiration of the 30-day period.' [Citation.]" (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1262.) Here the Board shortened the period for reconsideration by setting an effective date of December 22, 2008. Thus, the power to reconsider the Board's decision expired on this date. (§ 11521, subd. (a).) A petition for writ of mandate challenging the decision had to be filed within 30 days of December 22, or by January 21, 2009. (§ 11523; Negaard v. Dept. of Aeronautics (1973) 32 Cal.App.3d 92, 94 [statute of limitations expires 30 days after effective date of decision].) Woren did not file his petition until January 23, 2009. Therefore, it was untimely and the trial court properly sustained the demurrer.

Woren, representing himself on appeal, disputes that the statute of limitations had run by the time he filed his petition. First, he contends the period for reconsideration runs for 30 days after the effective date of the decision. This contention is based on a misreading of section 11521, subdivision (a). The 30-day period applies only where the triggering event is the mailing or delivery of the decision, not where it is the effective date set by the Board. "The power to order a reconsideration shall expire . . . on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period . . . ." (§ 11521, subd. (a), italics added.)

Woren relies on Walters v. Contractors' State License Board (1964) 229 Cal.App.2d 449. In Walters, a petition filed within 60 days of the effective date of the decision was found to be timely. (Id. at p. 454.) The court focused on the language of section 11523 that provides: "The right to petition shall not be affected by the failure to seek reconsideration before the agency." The court believed this language was intended to mean that the failure to seek reconsideration was not prejudicial as a failure to exhaust administrative remedies. (Walters, supra, at p. 454.) It found, however, that the language was also susceptible of the interpretation urged by the petitioner, that, although he did not seek reconsideration, he had the additional 30 days he would have received if he had requested reconsideration. (Id. at pp. 453-454.) Applying the principle that prefers trial on the merits, the court adopted petitioner's interpretation. (Id. at p. 454.)

However, as recognized by other courts, Walters is contrary to the clear language of section 11521, subdivision (a). In Reimel v. Alcoholic Beverage Control Appeals Bd. (1967) 254 Cal.App.2d 340, the court declined to follow Walters. It noted that Walters failed to cite any authority for its interpretation and that it was contrary to other cases, such as Eichman v. Escondido Union High School District (1964) 61 Cal.2d 100, 102. (Reimel v. Alcoholic Beverage Control Appeals Bd., supra, at p. 344.) In Reimel v. House (1968) 264 Cal.App.2d 173, at page 175, the same court that decided Walters suggested that the Supreme Court had acknowledged that Walters had been overruled by declining to grant review in the earlier Reimel case that disagreed with Walters. Another court has stated that Walters "was abandoned by its collective creator in Reimel v. House, 264 Cal.App.2d 173, 175 []." (Negaard v. Dept. of Aeronautics, supra, 32 Cal.App.3d 92, 94.) We find Walters is not persuasive authority and decline to follow it.

Second, Woren contends time period for filing his petition was extended because the Board violated subdivision (a) of section 11521 by failing to notify him of the time limit for petitioning for reconsideration. That subdivision provides in part: "The agency shall notify a petitioner of the time limits for petitioning for reconsideration." (§ 11521, subd. (a).) Woren suggests the Board's failure to meet this statutory requirement means the statute of limitations still has not run because it has not yet been triggered by notification of the time limit for reconsideration.

We reject this contention. First, the Board's notice to Woren did include the effective date of the decision, which in turn was the time limit for reconsideration. (§ 11521, subd. (a).) So, while not explicit, the Board did give Woren notice of the time period for reconsideration.

Second, Woren's argument finds no support in the statutory scheme. The time for filing a writ of mandate is not triggered by the Board giving notice of the time limit for reconsideration; rather, the statute expressly provides the time for filing a writ of mandate is triggered by the expiration of the time period for reconsideration. (§ 11521, subd. (a).) Further, as discussed post, section 11523 provides for an extension of the 30-day statute of limitations where the petitioner requests the administrative record. "Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed. [Citations.]" (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195.)

In determining the effect of the Board's failure to give explicit notice of the time period for reconsideration, we find helpful the analogous situation of whether time limits for agency action are mandatory and thus jurisdictional or merely directory. "[G]enerally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed. [Citations.] In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory 'unless a consequence or penalty is provided for failure to do the act within the time commanded.' [Citations.]" (Edwards v. Steele (1979) 25 Cal.3d 406, 410.)

Under either test, the requirement that the Board notify Woren of the time limits for reconsideration would not be mandatory and thus would have no jurisdictional effect. Tying the time period for seeking judicial review to the Board's explicit notification of the reconsideration period is contrary to the express language of the statute and would defeat the policy of expeditious administrative adjudication. (See Reimel v. Alcoholic Beverage Control Appeals Bd., supra, 254 Cal.App.2d at p. 347; Heidkamp v. Department of Alcoholic Beverage Control (1963) 212 Cal.App.2d 516, 519.) Further, section 11521, subdivision (a) provides no penalty for the failure to notify a licensee of the time period for reconsideration.

Woren next contends the trial court erred in sustaining the demurrer because it failed to consider legislative intent and statutory changes. Woren claims the Legislature has amended section 11523 with respect to the 30-day time period. He also notes that the California Law Revision Commission has recommended revisions to mandamus review of agency actions. He fails to explain, however, what these amendments were and how they affect this case, nor does he indicate what the recommended revisions are and whether they were adopted. We decline to make Woren's argument for him. "Pro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) "Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Woren has failed to carry his burden to show error.

Finally, Woren contends the time for petitioning for a writ of mandate was extended under section 11523 because he requested the record of the administrative hearing. While a request for the administrative record can extend the deadline for petitioning for judicial review, Woren's request came too late.

Section 11523 provides in part: "If the petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her." As set forth ante, the last day for reconsideration was December 22, 2008. Woren did not request the record until January 14, 2009. His request was more than 10 days after the last day for reconsideration; therefore, it did not serve to extend the time period for filing the petition for a writ of mandate.

Woren's petition for a writ of mandate was not timely. The trial court properly sustained the Board's demurrer without leave to amend on the ground Woren's petition for writ of mandate is barred by the 30-day statute of limitations of section 11523.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (a)(2).)

We concur:

RAYE , P.J.

BLEASE ,J.


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