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David C. Patkins v. Barbara Johnston

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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., ยง 1086.) The Board asserted that Patkins's interest in Piantini's trial testimony was ...


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