Patkins v. Brown CA3

Filed 11/12/14 Patkins v. Brown CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

DAVID C. PATKINS, C073964

Plaintiff and Appellant, (Super. Ct. No. 06CS01729)

v.

DENISE D. BROWN, as Director, etc.,

Defendant and Respondent.

Petitioner David C. Patkins appeals the trial court’s denial of his petition for writ of mandate, contending respondent Denise D. Brown, Director of the Medical Board of California, (the Board) has a ministerial duty to “ ‘process,’ ” i.e., to “ ‘address, investigate, and give disposition’ ” to, his consumer complaint filed with the Board against Rebecca Piantini, M.D., for testimony she provided in Patkins’s criminal proceeding related to the death of his infant son. The Board contends the trial court properly denied Patkins’s petition because: 1) the Board, pursuant to its discretionary authority, investigated Patkins’s complaint; and 2) the petition is moot since the Board is

1

time-barred from pursuing disciplinary action against Piantini. We conclude Patkins has failed to present an adequate record to support his contentions, and that the petition is moot because any disciplinary action against Piantini is barred by the applicable statute of limitations. Accordingly, we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND A jury found Patkins guilty of second degree murder, child abuse resulting in death, and possession of brass knuckles. Among the evidence presented at trial, on or about April 28, 2001, was Piantini’s expert testimony that the child died as a result of child abuse. Patkins was sentenced to 59 years to life in prison, and he unsuccessfully appealed his conviction. Thereafter, in March of 2003, Patkins filed a consumer complaint with the Board against Piantini, and the Board closed Patkins’s complaint as not raising a violation of the Medical Practice Act. (Bus. & Prof. Code,1 § 2000 et seq.) Patkins does not contest the Board’s rejection of this complaint. In August 2006, Patkins filed another complaint against Piantini. He alleged Piantini had committed “ ‘intentional misdiagnosis/malpractice’ ” by making diagnoses contrary to the evidence and contrary to the autopsy findings of the forensic pathologist, and by testifying to those false findings under oath. The Board closed that complaint as “ ‘redundant’ ” to the 2003 complaint on August 17, 2006. On December 5, 2006, Patkins petitioned the trial court for a writ of mandate claiming he was “ ‘repeatedly’ ” denied access to the Board, and asking the trial court to compel the Board to “ ‘address, investigate, and give disposition’ ” to his 2006 complaint against Piantini. The Board demurred on June 19, 2009, contending Patkins lacked standing to compel the Board to investigate Patkins’s complaint. The trial court sustained the demurrer and dismissed Patkins’s petition.