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David C. Patkins v. Barbara Johnston

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 12, 2011

DAVID C. PATKINS, PLAINTIFF AND APPELLANT,
v.
BARBARA JOHNSTON, AS EXECUTIVE DIRECTOR, ETC., DEFENDANT AND RESPONDENT.

(Super. Ct. No. 06CS01729)

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

Patkins v. Johnston

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

David Patkins filed a petition for writ of mandate seeking to compel the Medical Board of California (Board) to investigate a doctor based on her expert testimony in Patkins's trial for murder and child abuse. The trial court sustained the Board's demurrer without leave to amend, concluding that Patkins lacked standing to bring the mandamus action.

Patkins contends on appeal that the trial court erred because (1) he has a direct beneficial interest in issuance of the writ, and (2) he falls within the exception to the beneficial interest rule, because he has a citizen's interest in enforcing the Board's duty to investigate consumer complaints.

The issue presented is narrow. It does not involve whether the Board can be compelled to reach a particular result,*fn1 or whether Patkins can use his consumer complaint against the doctor to collaterally attack his conviction, or whether such a complaint is an attempt to influence or harass a witness. The only issue before us is whether Patkins has standing in this mandamus action. We conclude that he does.

We will reverse the judgment of dismissal and remand the matter to the trial court with directions to reinstate the petition.

BACKGROUND

Patkins was charged with second degree murder and child abuse following the death of his infant son. Dr. Rebecca Piantini, a forensic pediatrician, testified during the trial as an expert witness for the prosecution. A jury found Patkins guilty of second degree murder, child abuse resulting in death, and possession of brass knuckles. The trial court found true that Patkins had previously been convicted of a serious and/or violent felony (child abuse) and sentenced him to 59 years to life in state prison.

Following an unsuccessful appeal of his criminal conviction, Patkins filed a consumer complaint with the Board against Dr. Piantini. He alleged that Dr. Piantini committed "intentional misdiagnosis/malpractice." Specifically, Patkins alleged Piantini "made numerous medical diagnos[e]s known not to exist. Dr. Piantini attended the May 2, 2001 autopsy of Erik James Patkins [citations], performed by forensic pathologist, Steven Trenkle. In spite of Dr. Trenkle[']s autopsy medical evidence findings, Dr. Piantini asserted a contrary diagnosis, and findings of medical evidence, beyond her discipline of expertise [and] while under oath asserted reliance on the autopsy findings as substantiating her diagnosis and evidential findings [citations]." Patkins's consumer complaint alleged disparities between the trial testimony of Drs. Piantini and Trenkle, attaching trial exhibits and illustrative excerpts of trial testimony.

Approximately two months after filing his consumer complaint, Patkins initiated this mandamus action alleging he was "repeatedly" denied access to the Board. He asked the trial court to order the Board "to address, investigate, and give disposition [to]" his consumer complaint against Dr. Piantini.

The Board demurred to Patkins's petition for writ of mandate. The Board recognized that for purposes of the demurrer, Patkins's well-pleaded allegations must be treated as true, including the allegations that the Board had a ministerial duty to investigate consumer complaints and that Patkins was "repeatedly denied access" to the Board. Nonetheless, the Board argued that Patkins lacked standing to pursue the petition because he "failed to allege a clear, present and beneficial right to the performance of a ministerial duty" by the Board. (Code Civ. Proc., § 1086.) The Board asserted that Patkins's interest in Piantini's trial testimony was that of a mere "interested bystander." It argued that because Patkins lacks a "direct and substantial" interest, he has no standing to seek a writ against the Board.

The trial court agreed with the Board that Patkins has no "direct interest in the duty he seeks to enforce," and therefore lacks the "beneficial interest" required to confer standing to bring this petition. The trial court added there is no basis to recognize an exception to this requirement.

STANDARD OF REVIEW

Standing is a jurisdictional issue that may be examined at any point in the proceedings. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232, limited on other grounds in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 161, 167-168.) If a petition for writ of mandamus reveals that the petitioner lacks standing to sue, it is vulnerable to a general demurrer on the ground that it fails to state a cause of action. (Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796.) We independently determine questions of law when the facts are undisputed. (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031-1032; Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700.)

DISCUSSION

Patkins contends that the trial court erred because (1) he has a direct beneficial interest in issuance of the writ, and (2) he falls within the exception to the beneficial interest rule, because he has a citizen's interest in enforcing the Board's duty to investigate consumer complaints. We agree with Patkins's second contention.

Generally, to have standing to petition for writ relief, "a party must be 'beneficially interested' (Code Civ. Proc., § 1086), i.e., have 'some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.'" (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361-362; Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at pp. 1232-1233 [section 1086 "has been held to establish a standing requirement"].) Thus, a writ will issue only at the request of one who is beneficially interested in the subject matter of the action. (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at p. 1232; Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796.) To establish the requisite beneficial interest, a petitioner must show he has some special interest to be served or some particular right to be preserved or protected through issuance of the writ. Stated differently, "the writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied." (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at p. 1232.)

But the California Supreme Court recognized an exception to the beneficial interest rule: "'[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced. . . .'" (Bd. of Soc. Welfare v. County of L. A. (1945) 27 Cal.2d 98, 100-101.)

This "well-established exception" to the beneficial interest rule (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479), described variously as a "citizen's action" (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at p. 1236) or "the 'public right/public duty' exception" to the beneficial interest standing requirement (Green v. Obledo (1981) 29 Cal.3d 126, 145), "promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. [Citation.]" (Id. at p. 144; Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 479.)

A plaintiff's beneficial interest and the interest of a citizen in enforcing a public duty thus represent independent and "separate bases" for establishing standing to bring a petition for writ of mandamus. (Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at pp. 1233, 1236.)

Patkins contends he is simply seeking the relief to which every citizen has a right. His writ petition seeks an order directing the Board "to address, investigate, and give disposition" to his complaint. Patkins characterizes his petition as a request for an order that the Board "process" his consumer complaint.*fn2

The Board conceded, for purposes of its demurrer, that it has a ministerial duty to investigate complaints from members of the public, and that the Board repeatedly denied access to Patkins. Thus, Patkins has an interest as a citizen in ensuring that the laws are executed and that the Board's ministerial duty is enforced. (See Waste Management of Alameda County, Inc. v. County of Alameda, supra, 79 Cal.App.4th at p. 1233.) Accordingly, he has standing under the citizen interest exception to the beneficial interest rule. (Ibid.; Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 479; Green v. Obledo, supra, 29 Cal.3d at pp. 144-145; Bd. of Soc. Welfare v. County of L. A., supra, 27 Cal.2d at pp. 100-101.)

DISPOSITION

The judgment of dismissal is reversed. The matter is remanded to the trial court with direction to set aside its order sustaining the Board's demurrer, and to reinstate the petition.

We concur: BLEASE , Acting P. J. NICHOLSON , J.


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