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Thomas Pratt v. Board of Pharmacy et al

March 29, 2011

THOMAS PRATT, PLAINTIFF AND APPELLANT,
v.
BOARD OF PHARMACY ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 05AS02781)

The opinion of the court was delivered by: Mauro ,j.

Pratt v. Bd. of Pharmacy 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After plaintiff Thomas Pratt failed the pharmacist licensing examination three times, he sued the California Board of Pharmacy and other defendants for racial discrimination, fraud and breach of contract. The trial court sustained defendants' demurrers without leave to amend on the ground, among others, that Pratt asserted the same claims in a prior federal lawsuit and that the federal court's final judgment on the merits now precludes Pratt from asserting the same claims again. Among Pratt's contentions on appeal is the assertion that defendants waived the defense of "res judicata," or claim preclusion, when they agreed to stay the state court case while the federal case was pending and that Pratt asserted a new cause of action in the state court case.

Our review focuses on whether Pratt asserted the same "primary right" in both cases. We conclude that he did and that he forfeited any arguments to the contrary on appeal. We also conclude that defendants did not waive the defense of res judicata and that, as a result, Pratt is precluded from asserting the same primary right again in this case. Accordingly, it is unnecessary to address Pratt's other challenges to the trial court ruling. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Pratt took the Board of Pharmacy licensing examination three times -- in June 2002, January 2003 and June 2003 -- seeking to become a pharmacist. On each exam he passed the multiple choice portion but failed the essay portion.

In October 2004, Pratt initiated a lawsuit in the federal Central District of California. Pratt filed his first amended complaint in that case on November 22, 2004, naming as defendants, among others, the Board of Pharmacy and its officers Virginia Herold and Patricia Harris (collectively the Board defendants), and Applied Measurement Professionals, Inc. (AMP), a consulting firm that advised the Board on the content and grading of the exam. Pratt alleged that, according to statistics, the exam and grading scheme used by the Board had an adverse impact on African Americans in violation of 42 United States Code section 1983 and that the grading scheme used violated his right to procedural and substantive due process, as well as his right to equal protection under the Fourteenth Amendment to the United States Constitution. Pratt sought a declaration deeming him to have passed the examination and a declaration that Harris and Herold violated 42 United States Code section 1983. Pratt also sought damages from AMP, alleging it negligently designed the test.

In December 2004, Pratt initiated a similar complaint in the Los Angeles County Superior Court against the Board defendants and others. Pratt alleged that the exam and grading scheme had an adverse impact on African Americans in violation of 42 United States Code section 1983, Government Code section 12944, subdivision (a), and Civil Code sections 51 and 52. In addition, he asserted the test was negligently designed and did not meet mandatory criteria. Pratt sought damages, a declaration that the test was invalid, and a declaration that he was deemed to have passed the examination and was entitled to licensure.

The federal court action was transferred to the federal Eastern District of California in February 2005. Then, in March 2005, the state court action was transferred to the Sacramento Superior Court, and it was stayed at the request of the parties pending resolution of the federal action.

AMP moved for summary judgment in the federal action, and the federal district court granted the motion in January 2006. The district court observed that pursuant to a contract entered in 2000 between AMP and the Board, AMP performed a study of California pharmacist job activities that led to creation of a "Detailed Content Outline" which set forth the material to be covered in the pharmacy licensing exam. Pratt alleged that part 2 of the exam was not based on any reliable methodology or content outline and that AMP breached its duty to rectify the unreliability of the exam. AMP used the "Angoff method" to score part 2 of the exam, and Pratt asserted that application of the procedure was improper. The district court found that AMP presented evidence demonstrating the reliability of the methodology used and that Pratt failed to present any evidence that AMP's use of this methodology was negligent or that the testing method was unreliable. The district court denied Pratt's motion for a continuance to obtain further discovery responses because the discovery he sought was not essential to resist AMP's motion for summary judgment.

Defendants Harris and Herold also separately moved for summary judgment in the federal action. According to the district court, Pratt originally alleged that the grading methodology had a disparate impact on African Americans because the pass rate of Caucasians was significantly greater than the pass rate of racial minorities. But the Board did not compile or keep statistics of pass rates based on race; instead, Pratt relied on statistics regarding the pass rate of "foreigners," which did not provide information on specific racial groups. Pratt conceded that he did not know how many African Americans passed or failed any of the exams. Confronted with his lack of evidence, Pratt asserted for the first time in his opposition to summary judgment that defendants violated the law by failing to compile or keep statistics of pass rates based on race. Pratt presented expert testimony that the Board's failure to compile or keep such statistics violated Equal Employment Opportunity Commission (EEOC) Guidelines.

The district court rejected Pratt's new contention, determining that Pratt failed to timely disclose his expert witness and did not plead that defendants had an affirmative duty to compile statistics on discriminatory impact. The district court added that even if Pratt had pleaded such a theory, he failed to identify the specific guidelines that defendants allegedly violated, failed to cite authority for his new theory, and made no showing that he was prejudiced by the defendants' failure to keep statistics. According to the district court, "[t]he failure to keep statistics does not equate to a showing that Pratt was wrongfully denied a passing score or licensure, or that defendants intentionally discriminated against him, because of his race." The district court granted Harris and Herold's motion for summary judgment.

Pratt filed an appeal and, in March 2008, the Ninth Circuit Court of Appeals affirmed the judgment in favor of the Board defendants and AMP. The Ninth Circuit held that the district court did not abuse its discretion when it refused to continue AMP's motion for summary judgment; Pratt failed to demonstrate why a continuance for further discovery was essential to resist the motion. In addition, the Ninth Circuit held the district court did not err in granting summary judgment for AMP because Pratt presented no relevant evidence creating a triable issue of material fact on whether AMP breached its duty of care as a professional examination consultant.

Furthermore, the Ninth Circuit held the district court did not err in granting summary judgment for the Board defendants on Pratt's constitutional claims because he failed to generate a triable issue of fact on either disparate impact, or the intent to discriminate. Pratt also failed to create a triable issue of fact on his due process theory, as he did not present evidence that the examination was arbitrary or irrational. The Ninth Circuit said the district court did not abuse its discretion in refusing to permit Pratt to proceed on his "new theory that [the Board's] failure to maintain statistics on pass rates by race was itself a constitutional violation." Pratt did not provide any legal authority to support this theory and did not articulate ...


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