Filed 5/25/18 Caron v. California Board of Pharmacy CA2/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



CRAYA C. CARON,

Plaintiff and Appellant,

v.

CALIFORNIA BOARD OF PHARMACY et al.,

Defendants and Respondents.


E067975

(Super.Ct.No. PSC1604591)

OPINION


APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed.
Craya C. Caron, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Diann Sokoloff, Acting Assistant Attorney General, Antoinette B. Cincotta and Theodore S. Drcar, Deputy Attorneys General, for Defendants and Respondents.

Craya C. Caron filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) to challenge the decision of the California State Board of Pharmacy (the board) to cite and fine her for abandoning supervision of her pharmacy on September 1, 2012. On the board’s demurrer, the trial court dismissed the petition with prejudice because Caron had failed to exhaust administrative remedies before going to court. Caron appeals, contending her failure should be excused because she did not learn of the citation until after the period for seeking administrative remedies had expired. We affirm.
I
FACTUAL BACKGROUND
Craya Caron was, at the time of these events, a pharmacist licensed in the State of California and employed by CVS Pharmacy, Inc. On October 1, 2012, she reported to the board events that ended with her leaving her pharmacy unsupervised for about 30 minutes. She came to believe leaving the pharmacy was a violation of Business and Professions Code, sections 4329 and 4330, subdivision (b), which section 4306.6 required her to report to the board.
Ultimately (in June 2014), the board cited and fined her for leaving the pharmacy unsupervised. This appeal arises from her attempt to challenge the board’s action over two years later (in September 2016) by writ of mandamus in the trial court instead of the administrative process provided by statute and regulation.
A. The Reported Violation
According to Caron, she was accosted—first telephonically and then in person—while working at a CVS pharmacy on September 1, 2012. Her report of the events is muddled and lacks detail, she says because she was traumatized by the experience. She had been assigned to work the pharmacy, which was new to her, only one day earlier. She reported being “inappropriately accosted over the telephone by someone who may or may not have properly identified themselves as a store manager . . . I vaguely remember sometime thereafter being confronted by 3 or 4 very large and intimidating men at my Pharmacy counter where some form of argumentative discussion ensued most likely as an attempt by me to defend my professional integrity and/or the integrity of my pharmacy and patients . . . I cannot recall exactly how or why I was told to leave or that I was suspended and then told to leave, I vaguely recall leaving the pharmacy and going to my car, driving to some distant point in the parking lot while crying and shaking uncontrollably.”
Caron later returned to the pharmacy, where she found one of the men who had accosted her “acting as the person in-charge of the Pharmacy.” Caron apparently stayed at the pharmacy after that point, because she reported she “vaguely recall[ed] leaving the store at closing time.” CVS later suspended Caron pending an investigation.
On October 1, 2012, Caron reported to the board that, as a result of her leaving the pharmacy, “on 09/01/2012 [it] was subsequently under the personal control of a non-licensed CVS employee(s) for more than a brief period,” which “amounted to violations of CA B&P Code 4329 and 4330(b).”
B. The Citation
On June 30, 2014, the board issued a citation against Caron related to these events. The citation says, “California Code of Regulations Section 1714, subdivision (d), requires each pharmacist be responsible for the security of the prescription department, including provisions for effective control against theft or diversion of dangerous drugs. Pharmacist Caron was not compliant. Specifically on 9/1/12, pharmacist Caron while working at CVS 8849 Pharmacy, located at 1545 W. 17th St. in Santa Ana, CA 92706, jeopardized the security of [the] pharmacy, its dangerous drugs and [the] safety of [the] public by abandoning the pharmacy for nearly half an hour. This was a violation of pharmacy law.”
The citation required Caron to have a mental health exam to determine if it was safe for her to practice (the abatement) and required her to pay $1,000 (the fine). A cover letter provided directions for contesting or otherwise responding to the citation. “It is your responsibility to read the entire citation and instructions, to understand the process for contesting the citation and to respond to the citation within the [applicable] time frames.” Unless she chose to contest the citation, she was required to provide proof of abatement and pay the fine by July 30, 2014.
Detailed instructions explained how to contest the citation. “If you wish to contest all or part of your Citation you may request an informal office conference or an appeal before an administrative law judge, or both.” The instructions explained an office conference is an informal discussion about the case at which Caron would be able to present a written statement or documents and that after a conference, the board may affirm, modify or dismiss the citation. They explained an appeal is “a formal adjudicative hearing before an Administrative Law Judge” conducted in accordance with Government Code, section 11500 et seq. To request an office conference, Caron could complete the “Request of Office Conference” form and mail it to the board to arrive by July 14, 2014. She could request an appeal by completing the “Request for Hearing” form and mailing it to arrive at the board by July 30, 2014. The instructions warned the Citation would become final 30 days from the date of service unless contested.
The cover letter also warned failure to comply could affect Caron’s license. “[I]f, at the time of license renewal, the Board has not received full payment of assessed fine(s) and a request to contest the Citation has not been received within the time frames specified, the license shall not be renewed until the assessed fine(s) and renewal fee/s are paid in full.”
C. Notice and Petition for Mandamus
On June 30, 2014, the board sent the citation and instructions by certified mail to Caron at a post office box in Sunset Beach, which she maintained as her address of record with the board. Though Caron admits she maintained the post office box as her address of record, she says she had registered an address in Huntington Beach as her residential address and, in October of 2013, submitted a notice of change of address with the board.
Caron claimed she “intended that the October 2013 change of address notice to the Board replace both her residence and [her] . . . PO Box address.” However, the change of address form she signed on October 30, 2013 has fields for her address of record and her residence address, and she changed only the residence address. The field for changing the address of record says, “All Board mailings—license renewal applications, license renewals, newsletters, notices, etc.—will go to this address.”
Caron also claimed she did not receive notice of the citation “because unfortunately as a result of circumstances beyond [her] control, Civ. Code [section] 3526, [she] was out of the jurisdiction for 32 days from June 25, 2014 until July 28, 2014—which was the time-period the Board of Pharmacy attempted to serve Petitioner by certified mail notice of the action taken against her.”
In any event, it is uncontested Caron did not receive the original citation until much later. On July 21, 2014, the United States Postal Service returned the original mailing to the board stamped “Unclaimed.” In August, the board sent a letter to the post office box demanding she pay the fine and informing her failure to pay the fine would result in her license not being renewed and may result in disciplinary action. In December, it sent another demand letter to the same address, which informed Caron the board had placed a hold on renewal of her license, and it would not renew when it expired on October 31, 2015. In early 2015, the board sent information about the citation to Caron’s previous residential address. Finally, on April 24, 2015, the board sent the same correspondence to Caron’s new residential address in Twentynine Palms.
Still, she says, she did not receive the citation. On March 2, 2016, Caron sent a letter to the board inquiring about her trouble renewing her license. On March 23, the board responded, “your license has not been renewed and you are not permitted to work as a pharmacist in California due to an unpaid citation. On June 30, 2014, the Board issued a citation in the amount of $1,000 against your pharmacist license. Your license will NOT be renewed until this citation is paid in full.” Two days later, Caron responded that was “the first notice I have received regarding being ‘issued a citation’ by the board,” and asked them to send her the citation and related documents.
On April 14, 2016, an enforcement officer for the board sent Caron an email attaching the original citation package and the board’s previous demand letters. The letter also set out the board’s attempts to transmit the citation to Caron. Caron confirmed receipt of that communication by reply email four days later asking for information to allow her to respond. The enforcement analyst replied the same day that Caron was not required to respond, but “if you do not wish to pay the fine, and would still like to contest the citation and fine . . . then you would need to write a letter to . . . the Executive Officer of the Board of Pharmacy, explaining why you object to the citation and fine. . . . You may submit your response to me, (via mail, email, or fax) and I will prepare a memo, attach it to your file (along with your response in its entirety), and submit it to [the Executive Officer] for her review and consideration.”
Three days later, Caron responded by email and informed the board she intended to file a lawsuit. She said she had obtained legal advice and believed she had claims the board had deprived her of due process, retaliated against her for complaining against her former employer, conspired against her with her former employer and state officers of the California Labor Commissioner, and that the members of the board as individuals had injured her through negligence. She asked the board to consider the email her “official response” to the citation. On May 9, 2016, Caron sent a letter to the board’s executive officer notifying her she intended to sue, setting out the same claims. She offered to settle for $300,000 in lost wages damages, dismissal of the citation, a public apology, creation of a committee of working pharmacists to review board activities, and imposition of $100,000 fine against each “responsible member” of the board and $500,000 against the board’s executive officer, all going to fund the review committee.
On September 13, 2016, Caron filed a petition for writ of administrative mandate in the Riverside County Superior Court. The petition sought to set aside the citation. On December 19, 2016, Caron filed an amended petition seeking the same relief.
D. Demurrer and Appeal
The board filed a demurrer to Caron’s amended petition for writ of administrative mandate. The trial court held a hearing on the demurrer on March 2, 2017, but Caron, who represented herself in the trial court as here, failed to appear. The trial court sustained the demurrer without leave to amend. The court held the petition was barred by Caron’s failure to exhaust her administrative remedies. The court credited her claim she did not receive actual notice of the citation and fine until years later, but held she was required under Government Code section 11520, subdivision (c) to bring a motion to set aside the decision within seven days after she was ultimately served with the citation. Because she did not do so, the court held she had failed to exhaust her administrative remedies and dismissed the petition. On April 19, 2017, the court entered a judgment of dismissal.
Caron filed a notice of appeal prior to judgment, but this court construed the notice to have been taken from the April 19, 2017 judgment after Caron filed a copy of the judgment here.
II
DISCUSSION
Caron challenges the trial court’s dismissal of her petition for writ of mandate. She argues her failure to seek administrative review of the decision and her delay in filing her petition should be excused because she did not receive notice of the board’s citation and fine until March 2016.
We review de novo the trial court’s dismissal based on an order sustaining the demurrer. (Topanga & Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 780-781.) We review the trial court’s decision not to allow Caron to amend her petition for abuse of discretion, asking whether it is reasonably possible she could cure the defect by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Caron has the burden of proving an amendment would cure the defect. (Ibid.)
We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We may consider written documents that are the foundation of the action and are attached to the petition. (Qualcomm, Inc. v. Certain Underwriters At Lloyd’s, London, supra, 161 Cal.App.4th at p. 191.) Under these standards, we conclude dismissal was correct for two reasons.
First, Caron did not file her appeal within the statutory period. The citation became final when she failed to seek an administrative hearing within 30 days, by July 30, 2014. (Bus. & Prof. Code, § 125.9, subd. (b)(4); Cal. Code Regs., tit. 16, § 1775, subd. (c).) “Judicial review [of an agency action] may be had by filing a petition for a writ of mandate . . . [T]he petition shall be filed within 30 days after the last day on which reconsideration can be ordered.” (Gov. Code, § 11523.) Since Caron did not request a hearing, there was no decision from which she could seek reconsideration, so she was required to file a petition within 30 days of service. Caron admits she did not file until over two years later, so the filing was time-barred on the face of the petition, absent tolling of the limitations period or some other exception. (Fair Employment & Housing Com. v. Superior Court (2004) 115 Cal.App.4th 629, 633 [demurrer appropriate where petition shows petition for writ of mandate was untimely].)
Second, Caron was required to, but did not, exhaust administrative remedies prior to filing a petition for writ of mandamus. The rule of exhaustion of administrative remedies is “‘where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ [Citation.] The rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts.’ [Citation.] . . . ‘Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” [Citation].’” (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.) The rule (1) “serves the salutary function of mitigating damages; (2) it recognizes the quasi-judicial tribunal’s expertise; and (3) it promotes judicial economy by unearthing the relevant evidence and by providing a record should there be a review of the case.” (Id. at p. 322.)
“The ‘failure to exhaust administrative remedies is a proper basis for demurrer.’ [Citations.] A complaint is vulnerable to demurrer on administrative exhaustion grounds when it fails to plead either that administrative remedies were exhausted or that a valid excuse exists for not exhausting. [Citations.] A complaint is also vulnerable to demurrer on administrative exhaustion grounds where the complaint’s allegations, documents attached thereto, or judicially noticeable facts indicate that exhaustion has not occurred and no valid excuse is alleged in the pleading to avoid the exhaustion requirement.” (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379.)
Here, statute and regulations provide administrative remedies that allow the recipient of a citation or fine to challenge those determinations. “A citation or fine assessment issued pursuant to a citation shall inform the licensee that if he or she desires a hearing to contest the finding of a violation, that hearing shall be requested by written notice to the board, bureau, or commission within 30 days of the date of issuance of the citation or assessment . . . Hearings shall be held pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code,” the Administrative Procedure Act. (Bus. & Prof. Code, § 125.9, subd. (b)(4).)
The applicable regulations reiterate the procedure: “Any person or entity served with a citation may contest the citation by appealing to the board in writing within 30 days of the issuance of the citation. Appeals shall be conducted pursuant to the adjudication provisions of the Administrative Procedure Act. (Government Code Section 11500 et seq.).” (Cal. Code Regs., tit. 16, § 1775.4, subd. (a).) “[T]he person or entity cited may, within 14 calendar days after service of a citation, submit a written request for an informal office conference,” and in addition may request a hearing within 30 days of issuance of the citation. (Id. at subds. (b), (d).) The board’s correspondence with Caron explained this procedure.
It is uncontested Caron did none of these things. Her petition and amended petition do not allege she exhausted her remedies. Instead, she claims the board was responsible for her failing to get a hearing to challenge the citation and fine because they failed to provide her actual notice of their decision. She claims the board’s failure to give her actual notice constituted a violation of due process and excuses her failure to exhaust her administrative remedies.
We reject Caron’s argument the board denied her due process by acting absent her receiving actual notice. It is true the “holder of a professional license has a property interest in the right to practice his or her profession, which cannot be taken away or restricted without due process.” (Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195, 1201.) It is also true due process requires “notice and opportunity for hearing appropriate to the nature of the case.” (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313.) However, the notice requirement does not demand actual notice. It was sufficient for the board to give notice by means “reasonably calculated to reach” Caron. (Id. at p. 319.) And where a licensee has an obligation to keep a licensing agency informed of her current address, “the method of service provided by Government Code section 11505”—sending certified mail to the address of record—“is reasonably calculated to give the licensee notice” and “therefore satisfies due process.” (Baughman v. Medical Board (1995) 40 Cal.App.4th 398, 402.)
Caron had a duty to keep the board informed of her current address of record. (Bus. & Prof. Code, § 4100.) She admits the board sent the citation to her address of record via certified mail in June 2014. That method of service complied with Government Code section 11505, subdivision (c). (Miller Family Home, Inc. v. Department of Social Services (1997) 57 Cal.App.4th 488, 491-493 [certified mail is equivalent to registered mail under Gov. Code, § 11505, subd. (c)].) It follows the board did what it was constitutionally required to do to provide Caron notice and an opportunity to be heard.
Caron says she did not pick up her mail from her address of record during the key period because she was on vacation, but that failure does not provide an excuse. It certainly does not place the onus on the board to hunt her down before making its decision. It was incumbent on Caron to monitor her address of record. She failed to do so for a period of over a month, and the hardship accordingly falls on her shoulders. We note the board’s action did not come entirely out of the blue, since Caron herself reported the incident that led to the citation.
Nor does Caron’s assertion that she changed her residential address in October 2013 show notice was insufficient. First, that change occurred after the board properly notified her of its decision. To the extent she tried to change her address of record in October 2013, her failure to do so affected only the board’s multiple attempts to bring their action to her attention after the fact. Second, her change of address form altered her residential address, not her address of record. The form specifically warns official mail would be delivered to the address of record. There is no basis for expecting the change of residential address would ensure she received official communications from the board. It follows the board satisfied the requirements of due process even if, as Caron maintains, she did not actually receive notice of the citation until March 23, 2016. (Miller Family Home, Inc. v. Department of Social Services, supra, 57 Cal.App.4th at p. 493.) Accordingly, to the extent Caron was deprived of the ability to challenge her citation administratively or within the limitations period, her actions, not the board’s notice attempts, are to blame.
Moreover, even if we excused Caron’s failure to exhaust administrative remedies and accepted the limitations period did not begin until after she received actual notice of the citation and fine, her filing came too late. Under the discovery rule, “the accrual of a cause of action is postponed and the running of the associated statute of limitations is tolled until the plaintiff discover[ed] or [had] reason to discover the cause of action.” (Hansen v. Board of Registered Nursing (2012) 208 Cal.App.4th 664, 670-671.) Caron received actual notice on March 23, 2016. She confirmed receiving the notice two days later and requested the citation and related documents, which the board provided on April 14, 2016. On April 18, 2016, Caron confirmed receipt. Applying the discovery rule to the date on which the board sent Caron the citation by email after her request, Caron would have been obligated to bring her petition for a writ of mandate by May 14, 2016. (Gov. Code, § 11523.) Though Caron sent a letter to the board’s executive officer saying she intended to sue and offering to settle on May 9, 2016, she did not file her petition until September 13, 2016. She was therefore too late under the statute even were we to forgive the shortcomings we have already identified.
Accordingly, we affirm the order sustaining the demurrer, albeit on different grounds than supplied in its minute order. (People v. Perkins (2016) 244 Cal.App.4th 129, 139 [“on appeal we are concerned with the correctness of the superior court’s determination, not the correctness of its reasoning”].) We also agree there was no reasonable possibility Caron could cure these defects by amendment, and therefore affirm the trial court judgment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)
III
DISPOSITION
We affirm the judgment. Appellant shall bear costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


CODRINGTON
Acting P. J.


FIELDS
J.