Landau v. Superior Court

• Decision Date: 12 January 1998
• Docket Number: No. A075493.,No. A075251.,A075251.,A075493.
• Citation: 81 Cal.App.4th 191,97 Cal.Rptr.2d 657
• Court: California Court of Appeals Court of Appeals
• Parties: Allyn Beth LANDAU, M.D., Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; Medical Board of California, Real Party in Interest. Allyn Beth Landau, M.D., Plaintiff and Appellant, v. Medical Board of California, Defendant and Respondent.

97 Cal.Rptr.2d 657

81 Cal.App.4th 191

Allyn Beth LANDAU, M.D., Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent;

Medical Board of California, Real Party in Interest.

Allyn Beth Landau, M.D., Plaintiff and Appellant, v. Medical Board of California, Defendant and Respondent.

No. A075251.

No. A075493.

Court of Appeal, First District, Division 2.

January 12, 1998.

Certified for Partial Publication.^*

As Modified January 16, 1998.

Rehearing Denied February 4, 1998.

Review Dismissed June 14, 2000.

Tony J. Tanke, Tanke & Willemsen, Redwood City, for Plaintiff and Appellant Dr. Landau.

Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Alvin J. Korobkin, Senior Assistant Attorney General, Vivien Hara Hersh, Supervising Deputy Attorney General, Alfredo Terrazas, Deputy Attorney General, for Defendant and Respondent Medical Board of California.

KLINE, Presiding Justice.

INTRODUCTION

In this opinion, we consider, among other things, the constitutionality of the provision of Business and Professions Code section 2337 requiring that appellate court review of a superior court decision reviewing the revocation, suspension or restriction of a physician's medical license by the Medical Board of California be by way of a petition for extraordinary writ. We shall conclude the statute is constitutional.

Effective March 16, 1996, the Medical Board of California revoked the medical license of Dr. Allyn Beth Landau, following extensive administrative proceedings before an administrative law judge. The San Francisco Superior Court denied her petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5). Dr. Landau filed both an appeal (A075493) and, pursuant to Business and Professions Code section 2337, a petition for a writ of mandate (A075251) challenging the superior court decision.

We consolidated the appeal and the writ petition and ordered supplemental briefing on the legislative history of Business and Professions Code section 2337. We issued an order to show cause in connection with the writ petition.

Dr. Landau challenges the actions of the administrative law judge (ALJ), the Medical Board of California, and the superior court on numerous grounds.¹ In this opinion, we reject her claims that Business and Professions Code section 2337 unconstitutionally denies her right to a direct appeal, accompanied by an entitlement to oral argument and a written opinion on the merits; denies her both equal protection and due process of the law; and in her case constitutes an impermissible retroactive application of the statute. We shall therefore dismiss the appeal. On the merits of her writ petition, we shall affirm the judgment and deny the petition.

STATEMENT OF FACTS/STATEMENT OF THE CASE

On April 29, 1993, the Medical Board of California (hereafter "Board" or "Medical Board") filed two separate causes for disciplinary action, seeking revocation of Dr. Landau's medical license for alleged multiple and serious violations of the Medical Practice Act in the care and treatment of two patients in 1986 and 1987. (Bus. & Prof.Code, § 2000, et.seq.)

The allegations centered around the care and treatment of two patients, S.B., a 37-year-old male and J.Y., a 27-year-old female. On December 20, 1995, following a nine-day administrative hearing, Administrative Law Judge Michael C. Cohn issued a detailed "Proposed Decision" finding cause for disciplinary action against Dr. Landau. The ALJ found such cause was established for gross negligence (Bus. & Prof.Code, § 2234. subd. (b)), as Dr. Landau's failure to follow-up with patients S.B. and J.Y. to advise them of suspicious and/or inconclusive biopsy results constituted in each instance an extreme departure from the standard of care. (Proposed Decision, Findings Nos. 20 and 34, Determination of Issues Nos. 2 and 5.) Cause for disciplinary action was further established for gross negligence (Bus. & Prof.Code, § 2234, subd. (b)) and/or incompetence (Bus. & Prof.Code, § 2234, subd. (d)) by reason of Dr. Landau's allowing her medical assistant to evaluate and remove pigmented lesions from J.Y., including taking samples for biopsy, which conduct constituted an extreme departure from the standard of medical care. (Proposed Decision, Finding No. 30, Determination of Issue No. 3.) The ALJ determined that the public interest demanded revocation of Dr. Landau's certificate to practice medicine. (Proposed Decision, Determination of Issue No. 7.)

On February 15, 1996, the Division of Medical Quality of the Medical Board of California adopted the Proposed Decision of the ALJ, revoking Dr. Landau's certificate of licensure as a physician and surgeon, effective March 16, 1996. (Order dated Feb. 15, 1996.)

On March 15, 1996, on Dr. Landau's ex parte application, the superior court issued a two-week stay order of the Medical Board's decision revoking her license and scheduled an expedited hearing on her Code of Civil Procedure section 1094.5 petition for writ of mandate.

On April 1, 1996, after conducting oral argument, the court filed its eight-page order denying the petition for writ of mandate. The court discharged the stay and ordered the Medical Board to prepare a statement of decision in conformity with the court's order.

On April 16, 1996, Dr. Landau moved for a new trial and for an order setting aside and vacating the judgment. On June 5, 1996, the superior court denied these motions and filed a detailed 17-page statement of decision.

On August 6, 1996, appellant filed a notice of appeal. On August 12, 1996, the Medical Board filed an objection to the notice of appeal on the grounds that pursuant to Business and Professions Code section 2337 this court lacked jurisdiction to take action on anything other than a petition for extraordinary writ. On August 12, 1996, Dr. Landau filed a petition for extraordinary writ. On December 23, 1996, we issued an order that the writ petition and the appeal would be considered together and on July 31, 1997, we issued an order to show cause on the petition for extraordinary writ.

I. WRIT REVIEW VERSUS APPEAL

Review of a decision of the Division of Medical Quality revoking, suspending or restricting a medical license is by writ of administrative mandamus in the superior court. (Code Civ. Proc., § 1094.5.) Traditionally, review of the superior court decision has been by direct appeal² from the final judgment or order of the superior court granting or denying the writ petition. Effective January 1, 1996, the Legislature has provided that appellate review of the superior court's decision shall be pursuant to a petition for an extraordinary writ. (Bus. & Prof.Code, § 2337.)³

This amendment eliminated direct appeal via Code of Civil Procedure section 1094.5 from the superior court decision granting or denying the petition for writ of mandate and substituted discretionary writ review by the appellate court. Dr. Landau contends this provision cannot be applied to deny her a direct appeal from the superior court judgment. In the alternative, she argues she is entitled to issuance of an alternative writ or an order to show cause "because she will have no adequate remedy at law." The Medical Board contends Dr. Landau is entitled to neither issuance of an alternative writ or order to show cause nor to direct appeal of the superior court decision.

We recognize that issuance of the order to show cause in this case has arguably rendered this issue moot, as Dr. Landau has been afforded oral argument, a decision on the merits and a written opinion. Nevertheless, we examine her claim, which amounts to an assertion that in every case to which Business and Professions Code section 2337⁴ applies, and in which a timely, procedurally sufficient petition is filed, the appellate court must issue an alternative writ or order to show cause. In this assertion, she is simply wrong. We therefore consider Dr. Landau's claims that in relegating her to review by extraordinary writ, the statute runs afoul of Powers v. City of Richmond, supra, 10 Cal.4th 85, 40 Cal.Rptr.2d 839, 893 P.2d 1160, denies her equal protection of the laws, and violates her due process rights.

A. Powers v. City of Richmond.

Both Dr. Landau and the Medical Board rely upon the recent California Supreme Court opinion Powers v. City of Richmond, supra, 10 Cal.4th 85, 40 Cal.Rptr.2d 839, 893 P.2d 1160 [hereafter Powers], upholding the constitutionality of section 6259, subdivision (c) of the Public Records Act (hereafter PRA) (Gov.Code, § 6250 et seq.), providing that superior court, decisions in PRA cases are not appealable but instead are "immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ." Dr. Landau claims the lead opinion supports her assertion that a writ petition pursuant to section 2337 may not be summarily denied because there is no adequate remedy by way of appeal.

In Powers, the lead opinion of Justice Kennard, joined by Justices Baxter and Werdegar, stated that article VI, section 11 of the California Constitution⁵ does not confer upon litigants a right of direct appeal from final orders and judgments in proceedings in which superior courts exercise original jurisdiction. (Powers, supra, 10 Cal.4th at pp. 91-93, 40 Cal.Rptr.2d 839, 893 P.2d 1160 (lead opn. of Kennard, J.).) Rather, the term "appellate jurisdiction" used therein is simply the power of a reviewing court to correct error in a trial court proceeding. "By common understanding, a reviewing court may exercise this power in the procedural context of a direct appeal, a writ petition, or otherwise." (Id. at p. 93, 40 Cal.Rptr.2d 839, 893 P.2d 1160.) The grant of judicial authority contained in the constitutional provision has been interpreted to mean that "although the Legislature may regulate the mode of appellate review, it may do so only to the extent that it does not thereby `"substantially impair the...