Medical Bd. of Cal. v. Super. Ct.

Filed 2/21/18; Modified and Certified for Pub. 3/1/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MEDICAL BOARD OF CALIFORNIA, Petitioner, v. THE SUPERIOR COURT OF SAN A152607 FRANCISCO COUNTY, (City & County of San Francisco Respondent; Super. Ct. No. CPF-17-515577) ALFRED EUGENE ADAMS, Real Party in Interest.

The Medical Board of California (the board) seeks a peremptory writ of mandate commanding the superior court to vacate its order and judgment setting aside the board’s order revoking the medical license of real party in interest, Alfred Eugene Adams, M.D. The parties have been notified that if circumstances warrant, this court may issue a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Having reviewed the letter from Adams dated December 18, 2017, stating his opposition to the petition and requesting additional time to submit a formal opposition, which was granted to January 5, 2018, and Adams having failed to submit any further opposition, and having considered the arguments made in the proceedings before the superior court, we conclude that a peremptory writ of mandate should be issued.

1

On September 28, 2016, the board filed an accusation against Adams alleging that he prescribed himself controlled substances, failed to participate in an interview with the board, and failed to provide the board with an accurate address. (Bus. & Prof. Code, § 2021; Cal. Code Regs., tit. 16, § 1303). The accusation was served by certified mail on his address of record in Emeryville. The unopened mail was returned to the board, stamped “Return to Sender, Unable to Forward.” On November 1, 2016, the board sent a notice of default by certified mail to Adams’s address of record, which was also returned, stamped “Return to Sender, Unable to Forward.” The board then conducted a Lexis search for an alternate address and on November 30, 2016, served by certified mail the accusation to another address in Emeryville (close to the original address). On January 20, 2017, the board issued a default decision pursuant to Government Code1 section 11520, revoking Adams’s medical license, which was served on the same date by certified mail and first class mail to both addresses. On April 7, 2017, Adams filed in the superior court a petition for a writ of mandate and, after a demurrer was sustained with leave to amend, an amended petition. The amended petition is based on the contention that “all attempts to serve [Adams] with a copy of the accusation and appropriate accompanying documents, and later the default decision and order of revocation were done by certified mail, and some by return receipt requested. There is no evidence of receipt. None of the evidence supports service on [Adams] as required by . . . section [8311], effective January 1, 2017.” The trial court overruled the board’s demurrer to the amended petition and issued an order directing the board to set aside its default decision revoking Adams’s license on the ground asserted by Adams. The court concluded that the “default decision and order were not properly served per . . . [section] 8311. Section 8311 was recently amended to require a receipt be provided in order to constitute proper service per that section. The judicially noticeable documents show that Dr. Adams did not sign a receipt for the service of the default decision and order.” The court’s order recites that “Dr. Adams has shown that he was not