Filed 10/11/17 Gulbransen v. Far Northern Regional Center 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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| CHRISTIAN GULBRANSEN, a Minor, etc., et al.,
Plaintiffs and Appellants,
v.
FAR NORTHERN REGIONAL CENTER,
Defendant and Respondent.
| C075375
(Super. Ct. Nos. 151024, 153745)
|
After the Far Northern Regional Center (FNRC) asserted a change in the law and declined to pay for services ordered in a final order by an administrative law judge (ALJ), Christian Gulbransen, an individual with disabilities, filed a lawsuit against FNRC, case No. 151024, seeking to enforce the ALJ’s order and also asserting additional causes of action. The trial court ordered FNRC to pay for some of the services and directed that additional determinations be made through the administrative hearing process set forth in the Lanterman Developmental Disabilities Services Act, Welfare & Institutions Code section 4500 et seq. Gulbransen subsequently filed a second lawsuit against FNRC, case No. 153745, claiming FNRC breached the implied covenant of good faith and fair dealing by not complying with the ALJ order. The trial court consolidated the two lawsuits.
Regarding the claim for breach of the implied covenant of good faith and fair dealing, the trial court sustained FNRC’s demurrer without leave to amend, ruling that all common law remedies for the failure to provide Lanterman Act services have been superseded by the Lanterman Act, and such claims must be presented to and resolved by administrative tribunals rather than through civil litigation; but in any event, there was no contractual relationship between Gulbransen and FNRC from which to imply a covenant of good faith and fair dealing. Regarding the lawsuit to enforce the ALJ order, the trial court granted FNRC’s motion for judgment on the pleadings because the trial court had already ordered FNRC to pay for certain services and any other claims had to be presented to administrative tribunals under the Lanterman Act.
Gulbransen now contends the trial court erred in ruling that the Lanterman Act is his exclusive remedy and it abused its discretion in not granting leave to amend. We will affirm the judgment.
BACKGROUND
In response to a lengthy request for services from Gulbransen and his parents, an ALJ issued an order denying most of the requested services but requiring FNRC to fund a 24-hour home program and certain other services. Two weeks later, citing a fiscal emergency, the Legislature enacted a broad and immediate reduction in funding for certain services. (Assem. Bill No. 9, Stats. 2009, ch. 9, § 13, codified as Welf. & Inst. Code, § 4648.5.) FNRC sought reconsideration of the ALJ order in light of the statutory changes, but the order was final. Nevertheless, FNRC notified Gulbransen it was denying some of the services ordered by the ALJ because the services were no longer authorized by statute.
Gulbransen promptly requested an administrative hearing to challenge FNRC’s denial of the services ordered by the ALJ. He obtained several continuances until his further request for continuance was denied. Three days later, Gulbransen’s attorney withdrew the request for an administrative hearing.
Instead, Gulbransen filed case No. 151024, seeking enforcement of the ALJ order and an award of money damages and civil penalties for disability discrimination under the Unruh Act, Civil Code section 51 et seq. The trial court ordered FNRC to pay for certain services and directed that other determinations be made through the administrative hearing process set forth in the Lanterman Act.
Gulbransen subsequently filed case No. 153745, claiming FNRC breached the implied covenant of good faith and fair dealing by not complying with the ALJ’s order. The trial court consolidated the two lawsuits.[1]
Regarding the claim for breach of the implied covenant of good faith and fair dealing, the trial court sustained FNRC’s demurrer without leave to amend, ruling that all common law remedies for the failure to provide Lanterman Act services have been superseded by the Lanterman Act, and such claims must be presented to and resolved by administrative tribunals rather than through civil litigation; but in any event, there was no contractual relationship between Gulbransen and FNRC from which to imply a covenant of good faith and fair dealing. Regarding the lawsuit to enforce the ALJ order, the trial court granted FNRC’s motion for judgment on the pleadings because the trial court had already ordered FNRC to pay for certain services and any other claims had to be presented to administrative tribunals under the Lanterman Act.
STANDARD OF REVIEW
On review of a demurrer, we treat all properly pleaded material facts as true and then determine as a matter of law whether the complaint states facts sufficient to constitute a cause of action on which relief may be granted. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A trial court has discretion to allow amendment of the pleadings, but if a demurrer is sustained without leave to amend, we also decide whether the court has abused that discretion, placing the full burden of proving the possibility of amendment on the plaintiff. (Ibid.) A motion for judgment on the pleadings has the same function as a demurrer, attacking defects on the face of the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) On appeal, we apply the same standard of review to both pleadings. (People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 777.) We do not credit as true any contentions, deductions or conclusions of law but we may judicially notice matters in the pleadings. (Ibid.)
DISCUSSION
Gulbransen contends the trial court erred in ruling that the Lanterman Act is his exclusive remedy and it abused its discretion in not granting leave to amend.
The Lanterman Act includes extensive fair hearing procedures to resolve disputes over decisions made by regional centers. (Welf. & Inst. Code, § 4705.) Under sections 4710.5 and 4712, a regional center must afford dissatisfied recipients an opportunity for a fair hearing by an independent hearing officer who has special training in the applicable law and the results of a fair hearing are binding, although the losing party may appeal to a superior court by writ of administrative mandate. (Welf. & Inst. Code, § 4712.5, subd. (a).) These procedures apply to “all issues concerning the rights of persons with developmental disabilities to receive services.” (Welf. & Inst. Code, § 4706.)
When FNRC declined to pay for services ordered by the ALJ, it provided Gulbransen with instructions on the right to appeal. Gulbransen sought a further administrative hearing but ultimately withdrew his request for such a hearing. He also filed an unsuccessful petition for writ of administrative mandamus. Nevertheless, in his lawsuit to enforce the final ALJ order, the trial court ordered FNRC to pay for certain services but directed that other determinations be made through the administrative hearing process set forth in the Lanterman Act. The record indicates Gulbransen did not exhaust his administrative remedies.
Failure to exhaust Lanterman Act remedies bars further relief on the same claims by the same parties. (In re Michael K. (2010) 185 Cal.App.4th 1112, 1126.) The requirement of exhausting administrative remedies is jurisdictional. (California Aviation Council v. County of Amador (1988) 200 Cal.App.3d 337, 341.) Because it is a statutory requirement that a recipient of services identified in the Lanterman Act must exhaust his administrative remedies before resorting to a civil action against a regional center, and because Gulbransen does not claim to have done that, we agree with the trial court.
Gulbransen argues the Legislature cannot have intended to deprive developmentally disabled individuals of rights or remedies such as those in common law tort or the Unruh Act. He cites the Lanterman Act’s “Bill of Rights,” which references rights such as dignity, privacy, prompt medical care, religious freedom, social interaction and physical exercise and assures prompt investigation of alleged abuse. (Welf. & Inst. Code, § 4502.) Absent from the list is a right to bring civil actions against a regional center without exhausting administrative remedies. Gulbransen also claims the Lanterman Act’s remedy limitation applies only very narrowly to community placement decisions, but he quotes the following contrary rule from a case involving such placement: “As a general rule, where a statute creates a right that did not exist at common law and provides a comprehensive and detailed remedial scheme for its enforcement, the statutory remedy is exclusive.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 79.) Gulbransen goes on to assert without citation to authority that it could not have been the Legislature’s intent to deny him a remedy for a regional center’s alleged misconduct or civil rights violations. But the trial court ordered FNRC to pay for certain services; it merely required that other matters be pursued through the Lanterman Act process.
Gulbransen cites Morohoshi v. Pacific Home (2004) 34 Cal.4th 482 for the proposition that some claims regarding services are not subject to the Lanterman Act’s limitations. But the case he cites does not assist him. It held that a regional center could not be held vicariously liable under the Lanterman Act for the direct negligence of a care home whose nurse failed to check the blood sugar of a diabetic resident it had placed in the home. (Id. at pp. 486, 493.) It did not address or describe extra-statutory remedies for individuals with developmental disabilities claiming a right to more funding.
The statute that created Gulbransen’s right to services also provided administrative remedies for denial of those services and Gulbransen was required to exhaust those remedies. We reject his argument that exhaustion was not required.
In addition, Gulbransen asserts he could amend his complaint to state a cause of action by adding some dates. But vagueness was not the problem. He offers other ideas for amending the complaint in his reply brief. But we do not consider matters raised for the first time in a reply brief because the respondent has had no opportunity to respond. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
The trial court properly dismissed his complaints and it properly denied him leave to amend.
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
NICHOLSON, J.
[1] Gulbransen also filed a petition for writ of administrative mandamus, once again seeking compliance with the ALJ’s order. The trial court denied Gulbransen’s writ petition because Gulbransen did not provide the administrative record to the court. This court affirmed. (Gulbransen v. Far Northern Regional Center (June 7, 2017, C074262) [nonpub. opn.].)
