Preview
ROB BONTA
E-FILED
Attorney General of California
9/20/2021 10:53 AM
DAVID E. BRICE
Superior Court of California
Supervising Deputy Attorney General
County of Fresno
PHILLIP L. ARTHUR
Deputy Attorney General By: L Peterson, Deputy
State Bar No. 238339
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 210-7866
Fax:
\OOOQQM-b
(916) 327-8643
E-mail: Phillip.Arthur@doj.ca.gov
Attorneysfor Respondent Board afBehavioral
Sciences, Department 0f Consumer Aflaz‘rs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11
12
EVALYN BEAUCHAMP, Case No. 2 1 CECG00403
13
Plaintiff, RESPONDENT’S REPLY T0
14 PETITIONER’S OPPOSITION T0
v. DEMURRER
15
Date: September 29, 2021
16 BOARD 0F BEHAVIOR SCIENCES, Time: 1:30 pm
DEPARTMENT 0F CONSUMER Dept: 402
17 AFFAIRS, STATE 0F CALIFORNIA; Judge: Hon. Gabriel Brickey
DOES 1 TO 10, INCLUSIVE,
18
Defendants.
19
20
21 In an effort to avoid a clear statute of limitations defense, petitioner characterizes her
22 petition as a challenge to the Board’s decision to post her medical information on itswebsite. But
23 what she is challenging is a decision made by an administrative law judge that was adopted by the
24 Board. That discretionary act is properly the subject 0f a petition for writ of administrative
25 mandate under section 1094.5, for Which the statute of limitations has run. (Code Civ. Proc., §
26 1094.5, subd. (a); Gov. Code, § 11523.) That petitioner refers to Code of Civil Procedure section
27 1085 in her petition is immaterial. The subject of the petition iswhat determines the nature 0f the
28 action. (Morton v. Bd. ofReg. Nursing (1991) 235 Ca1.App.3d 1560, 1566.)
1
Respondent’s Reply to Petitioner’s Opp. To Demurrer (2]CECGOO403)
Here, petitioner appeared at an administrative hearing in 2017 and testified about certain
health information. Afterwards, the administrative law judge prepared a proposed decision that
wk)
incorporated evidence from the hearing—including petitioner’s health information. That
proposed decision was then adopted by the Board. This process is governed by the
Administrative Procedure Act (Gov. Code, § 115 17, subd. (c)), and is subject to the 30-day
statute of limitations in Government Code section 11523.
\OWNO‘\Ui#
Petitioner has had two hearings: the original administrative hearing and then a hearing
before the Board on her petition for early termination of probation. At the first hearing she did
not take steps to keep her information private, in fact, she disclosed it herself in a public forum.
10 At the second hearing, she did move to keep it confidential‘. The decision from the first hearing
11 was effective on February 21, 2018, and the decision fiom the second hearing was effective on
12 October 15, 2020. For either one, the 30-day time period to file a petition for writ of mandate
13 challenging anything about the decision expired long before February 10, 2021, when petitioner
14 filed this petition for writ of mandate. For this reason, the demurrer should be granted without
15 leave to amend.
16 Dated: September 20, 2021 Respectfully Submitted,
17 ROB BONTA
W
Attorney General of California
18 DAVXD E. BRICE
Supervising Deputy Attomey General
19
20
21
PHILLIP L. ARTHUR
v
22 Deputy Attorney General
Attorneysfor Respondent
23 Board ofBehavioral Sciences, Department
ofConsumer Aflairs
24
SA202 1302326
25
26
27 l
In her opposition, petitioner notes that she raised the issue of the privacy of her medical
information to the Board at the second hearing and the Board “took no action” to change its prior
28 decision. (Opposition at p. 3:15-19.)
2
Respondent’s Reply to Petitioner’s Opp. To Demurrer (21CECGOO403)
DECLARATION OF SERVICE BY E-MAIL and U.S. Mail
Case Name: Evalyn Beauchamp v. Board of Behavioral Sciences, et a1.
Case No.: 21CECG00403
I declare:
I am employed in the Office ofthe Attorney General, which is the office of a member of the
California State Bar, at which member‘s direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On September 20, 2021, I served the attached RESPONDENT’S REPLY TO PETITIONER’S
OPPOSITION T0 DEMURRER by transmitting a true copy via electronic mail. In addition, I
placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office
of the Attorney General, addressed as follows:
Robert M. Moss, Esq.
Law Offices of Robert M. Moss, Inc.
2425 Olympic Blvd, Suite 4000-W
Santa Monica, CA 90404
E-mail Address: rmmosslanhotmail.com
Counselfor Plaintifvaalyn Joann Beauchamp
I
20, 2021, at Sacramento,
sumumza
35483 l73.dncx
Natalie Y.
California.
Quinonez
Declarant
w W
declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on September
Signature
’0 Q '
Preview
ROB BONTA E-FILED Attorney General of California 9/20/2021 10:53 AM DAVID E. BRICE Superior Court of California Supervising Deputy Attorney General County of Fresno PHILLIP L. ARTHUR Deputy Attorney General By: L Peterson, Deputy State Bar No. 238339 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7866 Fax: \OOOQQM-b (916) 327-8643 E-mail: Phillip.Arthur@doj.ca.gov Attorneysfor Respondent Board afBehavioral Sciences, Department 0f Consumer Aflaz‘rs SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 EVALYN BEAUCHAMP, Case No. 2 1 CECG00403 13 Plaintiff, RESPONDENT’S REPLY T0 14 PETITIONER’S OPPOSITION T0 v. DEMURRER 15 Date: September 29, 2021 16 BOARD 0F BEHAVIOR SCIENCES, Time: 1:30 pm DEPARTMENT 0F CONSUMER Dept: 402 17 AFFAIRS, STATE 0F CALIFORNIA; Judge: Hon. Gabriel Brickey DOES 1 TO 10, INCLUSIVE, 18 Defendants. 19 20 21 In an effort to avoid a clear statute of limitations defense, petitioner characterizes her 22 petition as a challenge to the Board’s decision to post her medical information on itswebsite. But 23 what she is challenging is a decision made by an administrative law judge that was adopted by the 24 Board. That discretionary act is properly the subject 0f a petition for writ of administrative 25 mandate under section 1094.5, for Which the statute of limitations has run. (Code Civ. Proc., § 26 1094.5, subd. (a); Gov. Code, § 11523.) That petitioner refers to Code of Civil Procedure section 27 1085 in her petition is immaterial. The subject of the petition iswhat determines the nature 0f the 28 action. (Morton v. Bd. ofReg. Nursing (1991) 235 Ca1.App.3d 1560, 1566.) 1 Respondent’s Reply to Petitioner’s Opp. To Demurrer (2]CECGOO403) Here, petitioner appeared at an administrative hearing in 2017 and testified about certain health information. Afterwards, the administrative law judge prepared a proposed decision that wk) incorporated evidence from the hearing—including petitioner’s health information. That proposed decision was then adopted by the Board. This process is governed by the Administrative Procedure Act (Gov. Code, § 115 17, subd. (c)), and is subject to the 30-day statute of limitations in Government Code section 11523. \OWNO‘\Ui# Petitioner has had two hearings: the original administrative hearing and then a hearing before the Board on her petition for early termination of probation. At the first hearing she did not take steps to keep her information private, in fact, she disclosed it herself in a public forum. 10 At the second hearing, she did move to keep it confidential‘. The decision from the first hearing 11 was effective on February 21, 2018, and the decision fiom the second hearing was effective on 12 October 15, 2020. For either one, the 30-day time period to file a petition for writ of mandate 13 challenging anything about the decision expired long before February 10, 2021, when petitioner 14 filed this petition for writ of mandate. For this reason, the demurrer should be granted without 15 leave to amend. 16 Dated: September 20, 2021 Respectfully Submitted, 17 ROB BONTA W Attorney General of California 18 DAVXD E. BRICE Supervising Deputy Attomey General 19 20 21 PHILLIP L. ARTHUR v 22 Deputy Attorney General Attorneysfor Respondent 23 Board ofBehavioral Sciences, Department ofConsumer Aflairs 24 SA202 1302326 25 26 27 l In her opposition, petitioner notes that she raised the issue of the privacy of her medical information to the Board at the second hearing and the Board “took no action” to change its prior 28 decision. (Opposition at p. 3:15-19.) 2 Respondent’s Reply to Petitioner’s Opp. To Demurrer (21CECGOO403) DECLARATION OF SERVICE BY E-MAIL and U.S. Mail Case Name: Evalyn Beauchamp v. Board of Behavioral Sciences, et a1. Case No.: 21CECG00403 I declare: I am employed in the Office ofthe Attorney General, which is the office of a member of the California State Bar, at which member‘s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On September 20, 2021, I served the attached RESPONDENT’S REPLY TO PETITIONER’S OPPOSITION T0 DEMURRER by transmitting a true copy via electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope, in the internal mail system of the Office of the Attorney General, addressed as follows: Robert M. Moss, Esq. Law Offices of Robert M. Moss, Inc. 2425 Olympic Blvd, Suite 4000-W Santa Monica, CA 90404 E-mail Address: rmmosslanhotmail.com Counselfor Plaintifvaalyn Joann Beauchamp I 20, 2021, at Sacramento, sumumza 35483 l73.dncx Natalie Y. California. Quinonez Declarant w W declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on September Signature ’0 Q '