Sumida, DDS, Steven vs. Dental Board of California

On January 18, 2022, petitioner provided records to the Board, including a signed declaration averring that the records were the patient's complete records. Later, on July 5, 2024, petitioner produced to the Board approximately 20 additional pages of records that had not previously been provided on January 18, 2022. On October 2, 2024, the Executive Officer of the Board issued a citation for two violations of the Business and Professions Code, including, as relevant here, section 1684.1, subd. (a)(1) for failing to timely provide patient records requested by the Board.

As to asserted patient's records violation, petitioner testified at the hearing solely by repeating a statement that he was not responsible for the citation because the underlying events had occurred four years prior. Petitioner refused to answer questions on cross-examination, except by repeating his statement. The ALJ interpreted petitioner's statement as an assertion of a statute of limitations defense.

The ALJ observed that the challenged citation was issued on October 2, 2024, less than three years from January 2022, and that Business and Professions Code section 1670.2, subdivision (a), provides that any proceeding by the Board against a licensee shall be commenced within three years after the Board discovers the act or omission giving rise to the proceeding. The ALJ accordingly found the citation was timely issued as to the asserted patient's records violation. The court views this evidence as undisputed based on petitioner having presented the ALJ's Decision and Order reflecting the foregoing, and on petitioner having not asserted any dispute as to any of what is reflected.

DISCUSSION

In his petition for writ of administrative mandate, petitioner now appears to maintain that he submitted complete records to the Board in January 2022, though, notably, petitioner is not particularly clear about what he is asserting. Petitioner does, though, clearly assert that his repeated statement to the board "did not refer to the statute of limitations," but less coherently, he asserts that his statement referred "to the board's filing system." Petitioner also vaguely states he "sent another copy of the records as requested."

Petitioner references pages of an attached copy of the ALJ's Decision and Order, which includes various statements of the Board's evidence. Petitioner references one page that includes a statement, underlined by petitioner, that, "[o]n January 18, 2022, respondent [i.e., petitioner in this case] provided records to the Board, including a signed declaration certifying that the records were [the subject patient's] complete patient records." Petitioner then references another page that includes a statement, underlined by petitioner, that "Respondent [i.e., petitioner] believed they [certain of the subject patient's records that an investigator had informed petitioner had not been included amongst records he provided on January 18, 2022] were included with the records respondent provided in January 2022."

Petitioner appears to suggest that the aforementioned statements reflected evidence, in some unidentified way, that petitioner ultimately timely provided the patient records demanded by the Board on January 5, 2022.

The Board demurrers to petitioner's petition on the grounds that petitioner fails to state facts sufficient to support his request for writ relief. Additionally, the Board demurrers on the ground that, insofar as petitioner purports to assert some challenge to the asserted patient records violation beyond the rote repeating of the statement that he was not responsible for the citation because the underlying events had occurred four years prior, petitioner failed to exhaust his administrative remedies by refusing to elaborate whatever that challenge was intended to be during the subject administrative proceedings.

Petitioner responds to the demurer with an opposition that appears to include a new assertion. In pertinent part, petitioner states: "Dr Sumida determines what records are in his files. Dr Sumida's files averaged 15 pages each and now have been reduced to 10 pages. It is not possible for 20 pages to be missing from the record he sent to the Dental Board in 2022." Petitioner, elsewhere, flatly asserts there is "[n]o legal basis for the citation" and that "Records were timely submitted." He also argues that the ALJ's interpretation of his rote repeated statement as a statute of limitations defense was a "[m]isinterpretation" that supplies "the statutory basis for the writ."

ANALYSIS

On petition for writ of administrative mandate, the court's inquiry is limited to "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., Sec. 1094.5.)

Petitioner's own petition and attached documents reflect uncontested evidence was received by the ALJ that petitioner failed to timely provide patient records in violation of Business and Professions Code section 1684.1, subdivision (a)(1), and that, confronted with this evidence, petitioner solely stated, as asserted in his petition, "that he is not responsible for the supposedly missing papers from 4 years ago." Petitioner's own pleading refutes that the Board "misinterpret[ed]" his evidence, and, instead, conclusively establishes that the Board gave the only evident colorable interpretation to the statement made by petitioner that it could--and, further, that it addressed that argument with reference to uncontroverted facts, not challenged during the course of the proceedings.

While the court, on demurrer, takes the facts from the underlying petition as true, it also assumes the attachments to the petition are true, and "they take precedence over any conflicting allegations." (Nede Mgmt. Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th 1121, 1127 [284 Cal.Rptr.3d 122].) Here, the only facts alleged in the petition that could be construed to support writ relief are conclusory assertions that the ALJ's determination was "invalid" because the Board "confirmed there was no violation" and that petitioner's "evidence" was "misinterpreted at the hearing." Petitioner's attachments, however, establish to the contrary and take precedence over petitioner's conflicting allegations.

The court additionally agrees with the Board that petitioner failed to exhaust his administrative remedies, insofar as he now purports to assert some challenge to the asserted patient's records violation beyond his rote repeating of the statement, at the hearing before the ALJ, that he was not responsible for the citation because the underlying events had occurred four years prior. According to the doctrine of exhaustion of administrative remedies, the agency must be provided the "opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review" (Park Area Neighbors v.

Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447 [35 Cal.Rptr.2d 334]). It follows from this that, where a petitioner does not occasion opportunity to respond to an argument--because the petitioner fails or refuses to articulate that argument when the occasion is presented during administrative proceedings--the petitioner has failed to exhaust his administrative remedies with respect to that argument.

Based on the foregoing, the court sustains the demurrer, and without leave to amend because petitioner fails to carry his burden to show any reasonable possibility of cure by further amendment. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501 [82 Cal.Rptr.2d 368].)

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia Division Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared July 22, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc. Case Number | Case Name | Type | Status | Comments