Lopez v. The Regents of the U. of Cal. CA4/1

Filed 10/27/26 Lopez v. The Regents of the U. of Cal. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CYNTHIA LOPEZ, Individually and as D084868 Successor in Interest, etc., Plaintiff and Appellant, (San Diego Super. Ct. v. No. 37-2021-00008121-CU-MC-CTL) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent. APPEAL from an order of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Appellant’s request for judicial notice is denied. Respondent’s request for judicial notice is denied. Order vacated with directions. Iredale and Yoo, Eugene G. Iredale, Julia Yoo and Peter Bibring, for Plaintiff and Appellant. Arentfox Schiff, Matthew B. Mock and Neil Lloyd, for Defendant and Respondent.  Bradley Hay, an anesthesiologist with UC San Diego Medical Center (UCSD), struggled with an opiate addiction over the course of his career. Hay obtained all his drugs by taking excess medication that was not administered to his patients during surgery. He most recently relapsed in April 2016 and overdosed at work in January 2017. UCSD promptly reported the overdose incident to the Medical Board of California (Medical Board) and the California State Board of Pharmacy, as well as federal, state, and local law enforcement agencies. Hay has not practiced medicine since. Cynthia Lopez seeks a writ of mandate compelling the Regents of the University of California (the Regents) to also report Hay’s misconduct to the California Department of Public Health (DPH or the department) and to hundreds of patients that Hay may have treated while he was using drugs between April 2016 and January 2017. Lopez claims the Regents have a duty to make this additional report under Health and Safety Code1 section 1279.1. We conclude that Lopez lacks standing to pursue this writ. She admittedly has no beneficial interest in having the Regents report Hay to DPH. And given the fact that she can make the report herself, this case does not merit application of the public interest exception to the beneficial interest requirement. We therefore direct the trial court to dismiss her petition. FACTUAL AND PROCEDURAL BACKGROUND Hay struggled with alcohol abuse throughout high school, college, and medical school. His substance abuse escalated during his residency in anesthesiology at UCSD, when he began stealing fentanyl from work. Hay would take fentanyl that was left over from a surgery by either indicating 1 Undesignated statutory references are to the Health and Safety Code. 2 in the medical record that a greater amount was given to the patient or by disposing of saline in lieu of the actual drug. He initially brought the drug home to use, but eventually began injecting himself at work. Despite his addiction, Hay secured a position as an attending anesthesiologist with UCSD in 2007. He used fentanyl irregularly until late 2008, when he completed treatment and achieved sobriety. Several years later, in April 2016, Hay unfortunately relapsed and resumed stealing fentanyl from work. He used the drug on and off for the next several months. Sometimes he would go weeks without using, sometimes he would only use at the end of the day, and sometimes he would inject himself six to eight times throughout the day. During the relevant time period (between April 2016 and January 2017), Hay was involved in the treatment of hundreds of patients. As an attending physician, he usually supervised residents and nurse anesthetists—who directly administered the anesthesia—in multiple operating rooms simultaneously. He rarely performed anesthesia himself.2 When he was using fentanyl, the majority of his patients underwent surgery while he was under the influence and many of their records were falsified. Hay nevertheless maintained a “stellar” clinical performance record, according to the Chair of the Department of Anesthesiology. Hay’s struggle with addiction came to a head on January 27, 2017. On that day, he was scheduled to administer anesthesia to patients Randy Dalo and Robert Lopez. After Dalo’s surgery was complete, Hay took some sufentanil that was not administered to Dalo and injected himself with it. 2 UCSD records indicate Hay directly performed anesthesia on about 15 patients between April 2016 and January 2017. 3 A nurse found Hay overdosed in the bathroom later that afternoon. Hay promptly took a medical leave of absence and enrolled himself in treatment.3 UCSD reported the January 27, 2017 event to the Medical Board, the California State Board of Pharmacy, the United States Drug Enforcement Administration, the California Department of Justice, and the San Diego Police Department. The Medical Board filed several charges against Hay based on his misconduct, and he voluntarily surrendered his license to practice medicine. Hay also pleaded guilty to a felony charge of obtaining sufentanil by fraud in violation of the United States Code, title 21, section 843(a)(3). He was placed on probation for one year. In February 2021, Lopez, individually and as successor in interest for her father Robert Lopez, filed a lawsuit against Hay, the Chair of the Department of Anesthesiology, the Chief Executive Officer of UCSD, and the Regents. She alleged that her father underwent surgery at UCSD on January 27, 2017—the day of Hay’s overdose—that Hay administered his anesthesia, and that he died several months later (due to various health conditions). Lopez asserted class claims of breach of contract, breach of implied contract, corporate negligence, and willful negligence. As relevant here, she also requested a writ of mandate (Code Civ. Proc., § 1085) compelling 3 Dalo sued Hay and UCSD for medical negligence, claiming he received insufficient anesthesia and woke up during his surgery. The jury found in favor of UCSD and awarded Dalo no damages. This court affirmed the judgment in an unpublished opinion. (Dalo v. Hay (July 29, 2025, D082559) [nonpub. opn.] .) 4 the Regents to report Hay’s misconduct to DPH and to his patients pursuant to section 1279.1.4 The trial court sustained the Regents’ demurrer as to the breach of implied contact and willful negligence claims and Lopez dismissed her breach of contract and corporate negligence claims without prejudice, leaving only the request for a writ of mandate at issue. Following a hearing, the trial court denied Lopez’s request for a writ of mandate. It observed that Lopez needed to establish, in part, that the Regents had a clear duty to perform a ministerial act imposed by law. (See Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 184–185 (Physicians Committee).) The court found that Lopez failed to demonstrate that the Regents had a clear duty to report Hay’s conduct under section 1279.1. It read the statute as setting forth a “specific” and “narrow” list of reportable events that did not cover drug diversion and physician impairment. Even if it were appropriate to add to the list, the court would not do so in this case because the conduct at issue was significantly dissimilar to the listed events. DISCUSSION Lopez maintains that the Regents have a duty to report to DPH that between April 2016 and January 2017, one of its physicians engaged in a sustained pattern of providing anesthesia to patients while impaired by narcotics, falsifying patients’ medical records to enable his theft of narcotics, and fraudulently eliciting consent from patients knowing he was going to provide care while impaired. In response, the Regents insist that because 4 Lopez initially alleged an individual claim of medical battery against Hay, but that claim was not included in the first amended complaint. 5 such conduct is not described on the face of section 1279.1, it has no clear, present, and ministerial duty to report, and thus writ relief is not warranted. In a perfunctory “alternative” argument, the Regents suggested that Lopez lacks standing to seek a writ of mandate. Because standing is a “threshold issue necessary to maintain a cause of action” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810), we requested supplemental briefing on the issue. In her letter brief, Lopez claims the Regents waived their right to challenge standing and she otherwise meets the criteria for public interest standing, an exception to the general requirement that a petitioner have a special interest in the relief sought. The Regents posit that this is an inappropriate case to recognize such standing because Lopez can simply report Hay’s misconduct to DPH herself. We reach the standing issue and agree with the Regents that this case does not merit application of the public interest exception. Because Lopez does not have standing, we have no occasion to decide whether Hay’s conduct constitutes an “adverse event” within the meaning of section 1279.1. A. Additional Background After Lopez’s breach of contract and negligence claims were dismissed, leaving only her request for a writ of mandate at issue, she represented to the trial court that she was abandoning her claim to standing as her father’s successor in interest and proceeding solely on a theory of public interest standing. In a subsequent order resolving discovery issues, the court noted it was making no findings as to whether Lopez had public interest standing and invited briefing on the issue. 6  Lopez then filed a standalone petition seeking writ relief in lieu of an amended complaint. In her petition and reply papers, she contended it was indisputable that compliance with section 1279.1’s reporting requirements was a public duty. She further asserted that the public had a right to ensure the Regents notified “Hay’s patients of his illegal and improper conduct so they may make informed decisions about their health going forward and timely pursue legal action,” if desired. She pointed to her own deposition testimony in which she confirmed her goal with this lawsuit was for Hay’s former patients to be notified about his misconduct. She maintained she was the only person who could pursue this writ since the potentially affected patients remained unaware of Hay’s misconduct by virtue of the Regents’ failure to report.5 Opposing the writ, the Regents acknowledged that Lopez was claiming public interest standing. But they did not meaningfully challenge that claim. They merely pointed out that Lopez “admits she has no personal interest whatsoever in the outcome of the litigation” and referenced the principle that public interest standing is not a matter of right. The trial court did not rule on standing in its order denying the writ. B. Public Interest Standing Generally, to have standing to request a writ of mandate, the petitioner must be “beneficially interested” in the relief sought. (Code Civ. Proc., § 1086.) This “ ‘has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held 5 In her writ papers, Lopez reasserted successor-in-interest standing. The Regents pointed out in their opposition that Lopez affirmatively abandoned this theory. Lopez does not press this theory on appeal. 7 in common with the public at large.’ ” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165 (Save the Plastic Bag).) “The beneficial interest must be direct and substantial.” (Ibid.) Public interest standing is an exception to the beneficial interest requirement. (Save the Plastic Bag, supra, 52 Cal.4th at p. 166.) “ ‘ “[W]here the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the [petitioner] need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced.” ’ ” (Green v. Obledo (1981) 29 Cal.3d 126, 144.) The exception may be warranted “ ‘when the public duty is sharp and the public need weighty.’ ” (SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1058 (SJJC).) Even if a petitioner can identify a public right to be vindicated and a public duty to be enforced, no one is entitled to public interest standing as a matter of right. (Save the Plastic Bag, supra, 52 Cal.4th at p. 170, fn. 5; Reynolds v. City of Calistoga (2014) 223 Cal.App.4th 865, 874 (Reynolds).) Deciding whether the exception should apply “involves a ‘judicial balancing of interests’.” (SJJC, supra, 12 Cal.App.5th at p. 1058.) The policy behind the exception—“ ‘guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right’ ”—“may be outweighed by competing considerations of a more urgent nature.” (Save the Plastic Bag, at p. 166; see id., at p. 170, fn. 5.) 8 C. Waiver As an initial matter, Lopez argues the Regents waived their right to challenge her claim to public interest standing by failing to do so in the trial court. Although she acknowledges it has long been clear “that contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438), she asserts that not all standing arguments can be raised for the first time on appeal. Specifically, analogizing to United States Supreme Court cases discussing third party standing (see Kowalski v. Tesmer (2004) 543 U.S. 125, 128–130 & fn. 2; June Medical Services LLC v. Russo (2020) 591 U.S. 299, 316–317), she suggests that when the public right/public duty criteria are satisfied, a court can recognize public interest standing, and a decision to nevertheless deny such standing based on competing policy considerations is discretionary—a “ ‘prudential limitation[]’ ” on the exercise of jurisdiction (Kowalski, at p. 128). From this premise, Lopez contends that arguments appealing to the court’s exercise of discretion can be waived. But Lopez points to no California authorities indicating that standing challenges can be forfeited or waived in part. In her supplemental brief, Lopez cites Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330 for the proposition that “[s]tate court standing doctrines, too, involve both fundamental limits on courts’ authority to hear cases (which cannot be waived) and ‘prudential’ considerations about whether courts should exercise that authority in certain instances (which can).” Kabran distinguishes claims that a court lacked fundamental jurisdiction from assertions that it acted “ ‘in excess of jurisdiction’ ” (see Kabran, at pp. 339–340) but it does not address standing at all. In any event, we need not decide whether a 9 challenge to public interest standing can be waived in part. Even assuming the Regents waived the arguments they make in this court, we have discretion to address issues of law based on undisputed facts even if the issue was not raised in the trial court (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24), and choose to do so here. D. This Is Not an Appropriate Case to Recognize Public Interest Standing Lopez maintains she has standing under the public interest exception. She insists the Regents, as the body governing a public hospital, have a duty to comply with section 1279.1 and the public has a concomitant “right [to] receive notice of adverse events under section 1279.1 and have them reported to [DPH] for inclusion in public health care information.” The Regents, on the other hand, emphasize that public interest standing is not a matter of right and urge us to deny Lopez the exception because she can simply report Hay’s misconduct to DPH herself according to a complementary statute, section 1279.2. We conclude this is not an appropriate case to recognize public interest standing given the alternative, more efficient remedy available to Lopez.6 Section 1279.1 requires licensed health facilities to “report an adverse event to the department no later than five days after the adverse event has been detected, or, if that event is an ongoing urgent or emergent threat to the welfare, health, or safety of patients, personnel, or visitors, not later than 24 hours after the adverse event has been detected.” (Id., subd. (a).) By the time the report is made to the department, the health facility must inform 6 In light of our conclusion, we need not address the Regents’ additional argument that Lopez lacks standing because she failed to present evidence of the public’s interest. 10 the affected patient (or their representative) of the adverse event as well. (Id., subd. (c).) The statute defines an “adverse event” as “include[ing] any of the following” and then lists 27 specific events (e.g., surgery performed on the wrong patient, infant discharged to the wrong person, patient death after a fall), organized into six categories, with a catchall for “events that cause the death or serious disability of a patient, personnel, or visitor.” (Id., subd. (b).) Section 1279.2, enacted together with section 1279.1 (Stats. 2006, ch. 647, §§ 1–2), requires DPH to complete an investigation any time it “receives a report from a facility pursuant to Section 1279.1, or a written or oral complaint involving a [licensed] health facility” within 45 days. (§ 1279.2, subds. (a) & (b), italics added.) DPH must “notify the complainant and licensee in writing of the department’s determination as a result of an inspection or report.” (Id., subd. (d).) The statute specifies that in this context “ ‘complaint’ means any oral or written notice to the department, other than a report from the health facility, of an alleged violation of applicable requirements of state or federal law or an allegation of facts that might constitute a violation of applicable requirements of state or federal law.” (Id., subd. (e).) DPH must “provide information regarding reports of substantiated adverse events pursuant to Section 1279.1 and the outcomes of inspections and investigations conducted pursuant to Section 1279.1, on” its website “and in written form in a manner that is readily accessible to consumers in all parts of California, and that protects patient confidentiality.” (§ 1279.3, subd. (a).) If a hospital fails to report an adverse event, DPH may assess a civil penalty “in an amount not to exceed one hundred dollars ($100) for each day that the adverse event is not reported ... .” (§ 1280.4, subd. (a).) 11  Public interest standing has been denied where there were meaningful alternative avenues for relief. In Department of Consumer Affairs v. Superior Court (2016) 245 Cal.App.4th 256 (Consumer Affairs), for instance, the real parties in interest sought to invalidate an alleged underground regulation issued by the Department of Consumer Affairs allowing car manufacturers to reduce the price of a “lemon” to account for excessive wear and tear when repurchasing the defective vehicle from its owner. (See id. at pp. 259–260.) The appellate court declined to extend public interest standing to the real parties in interest because existing regulations allowed “ ‘any person’ ” to petition the Office of Administrative Law (OAL) and allege that a state agency had issued an underground regulation. (Id. at p. 262.) To recognize such standing in that circumstance, the court reasoned, “would undermine the efficacy of the administrative remedy provided to citizen taxpayers by the OAL.” (Ibid.) The Consumer Affairs court further reasoned that denying public interest standing to the real parties in interest—who did not have any repair issues let alone disputes with the manufacturers of their vehicles—did not risk leaving rights unaddressed and unvindicated. (Consumer Affairs, supra, 245 Cal.App.4th at p. 263.) To that point, the court noted that the lemon law allows consumers to sue manufacturers when they disagree with the wear- and-tear deduction, and the record confirmed that such claims were being actively litigated in other cases. (Id. at p. 264, citing Civ. Code, § 1793.22, subd. (c).) Apart from Consumer Affairs, public interest standing has been denied in other cases where the issue raised could be litigated by others with more immediate interests. (See, e.g., Reynolds, supra, 223 Cal.App.4th at pp. 868– 869, 875 [nonresident lacked public interest standing to challenge city’s 12 allocation of sales tax revenue where such action was “already subject to challenge by county taxpayers, including the retailers who bear the sales tax”]; Sacramento County Fire Prot. Dist. v. Sacramento County Assessment Appeals Bd. II (1999) 75 Cal.App.4th 327, 330, 334 [district lacked standing to challenge county assessment appeals board’s decision to uphold reduced valuation of certain real property where county, city, or State Board of Equalization could sue to ensure proper assessment].) By contrast, courts have recognized public interest standing where the issue raised would otherwise “be effectively insulated from judicial review.” (Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 206; see id. at pp. 204–206 [petitioner had public interest standing to challenge the city’s delegation of parking ticket review since it was unlikely an individual motorist would do so given the short timeframe to contest the ticket and the small fine at issue]; Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11 Cal.App.4th 1513, 1519 [petitioner had public interest standing to challenge school district charging fees for driving school since high school students “are unlikely to have the financial resources or the economic interest” to do so].) In this case, Lopez ultimately wants us to decide that Hay’s misconduct constitutes an “adverse event” under section 1279.1 and accordingly direct the Regents to report the conduct to DPH and any affected patients. She suggests it is essential this information is included “in public health care information” and provided to the patients and so that they “may make informed decisions about their health going forward and timely pursue legal action” if desired. But there is a simple and more efficient alternative way to pursue this goal without resorting to public interest standing. As Lopez conceded at oral argument, she can report Hay’s misconduct to DPH herself. Section 1279.2 expressly contemplates that DPH will take and investigate 13 reports of unlawful conduct from sources other than licensed health facilities. It specifically requires DPH to investigate any time it “receives a report from a facility pursuant to Section 1279.1, or a written or oral complaint involving a health facility” within 45 days. (§ 1279.2, subds. (a) & (b), italics added.) For purposes of section 1279.2, a “ ‘complaint’ ” is “any oral or written notice to the department, other than a report from the health facility, of an alleged violation of applicable requirements of state or federal law or an allegation of facts that might constitute a violation of applicable requirements of state or federal law.” (Id., subd. (e), italics added.) DPH must then “notify the complainant and licensee in writing of the department’s determination as a result of an inspection or report.” (Id., subd. (d).) If Lopez reported to DPH that Hay was diverting and using drugs at the hospital and falsifying medical records, there is no reason to doubt DPH would investigate the facts, determine if they constituted an adverse event, and decide whether to publish relevant information and notify affected patients if warranted. Once notified, the patients—who theoretically have the most immediate interests at stake—can make informed decisions about their health and whether to take legal action. It is therefore unnecessary for Lopez to invoke public interest standing in seeking writ relief to compel the Regents to report Hay, when she can make the report herself. This is not an appropriate case to grant an exception to the general requirement that a petitioner have a beneficial interest in the relief sought. Lopez argues that section 1279.2 is an inadequate substitute for allowing her to pursue a writ petition. She maintains that making a complaint directly to DPH will yield no judicial determination that Hay’s misconduct constitutes an “adverse event” within the meaning of section 1279.1. She also protests that there is “no opportunity for further input 14 much less judicial review” once a report is made. Without necessarily accepting any of these assertions, we simply note they might be relevant considerations had Lopez filed a complaint before or in conjunction with filing her writ petition. But mere speculation about possible responses to a complaint she never made does not justify a blanket exception to the beneficial interest standing requirement. In sum, given the alternative and more efficient remedy available to Lopez, extending her public interest standing is not warranted. Her lack of standing means her petition for writ of mandate should be dismissed. (See Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87.)7 DISPOSITION The order denying the petition for writ of mandate is vacated. The trial court is directed to enter an order dismissing the petition for lack of standing. Respondent is entitled to costs on appeal. DATO, J. WE CONCUR: McCONNELL, P. J. CASTILLO, J. 7 Lopez requested judicial notice of the legislative history behind Senate Bill No. 1301 (2005–2006 Reg. Sess.), which enacted section 1279.1. The Regents sought judicial notice of Brugaletta v. Garcia (2018) 234 N.J. 225, a case relevant to another alternative argument they made about judicial abstention. As we do not reach the merits of Lopez’s claim or the Regents’ abstention argument, we deny both requests for judicial notice. (See People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6 [denying request for judicial notice of irrelevant record].) 15