Filed 6/30/14 Hyhaw v. St. Francisco Medical Center Executive Committee CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


CLARENCE M. HYSHAW,                                                  B249424

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. TS014552)
         v.

SAINT FRANCIS MEDICAL CENTER
MEDICAL EXECUTIVE COMMITTEE
et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County. William
P. Barry, Judge. Affirmed.
                                                         ______
         Peterson, Bradford, Burkwitz, George E. Peterson; and Wayne J. King for Plaintiff
and Appellant.
         Van Hall Law Office, Suzanne F. van Hall; Horgan, Rosen, Beckham & Coren,
and Richard A. McDonald for Defendants and Respondents.
                                                         ______
         Dr. Clarence M. Hyshaw petitioned the superior court for a writ of administrative
mandate, seeking to overturn a hospital’s determination that he did not qualify for
reinstatement following a leave of absence. The superior court dismissed the petition on
the ground that Hyshaw failed to exhaust his administrative remedies. Hyshaw appeals,
and we affirm.
                                      BACKGROUND
         Hyshaw is a licensed physician who completed his residency in neurosurgery in
1980. He was admitted to the staff of St. Francis Medical Center (the Hospital) in the
1980s.
         In 2009, the Hospital’s Medical Executive Committee (the Committee)
identified certain concerns regarding Hyshaw’s professional performance. After an
unfavorable initial evaluation by the Physician Assessment and Clinical Evaluation
Program at the University of California, San Diego Medical Center, the Hospital’s chief
of staff offered Hyshaw two options: take a temporary leave of absence or be summarily
suspended. Hyshaw chose to take a temporary leave of absence.
         Hyshaw subsequently sought reinstatement, and the Committee denied his request
on March 10, 2010. Hyshaw requested a hearing before a “judicial review committee,”
and the hearing was conducted on September 19, November 15, and December 21, 2011.
         The judicial review committee issued its written decision on January 11, 2012.
The decision stated that the judicial review committee unanimously concluded that the
Committee’s denial of Hyshaw’s request for reinstatement was “reasonable and
warranted.” The decision further stated that “[w]ithin 15 days of receipt of the [judicial
review committee’s] decision,” Hyshaw could “request appellate review by the Board of
Directors of the hospital.”
         Hyshaw timely requested appellate review. By letter to Hyshaw dated
March 29, 2012, the hearing officer for the appeal confirmed that the appeal would
be heard on April 23, 2012. The same letter informed Hyshaw that his opening brief
was due April 6, 2012.



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       On April 23, 2012, the appeal board issued its unanimous written decision.
The decision stated that although in the morning of April 6 the hearing officer for the
appeal left a voice message for Hyshaw reminding him of the deadline for his opening
brief, Hyshaw “did not respond to the April 6, 2012 deadline.” The decision concluded
that although Hyshaw “has had sufficient opportunity to comply with the requirements”
for prosecuting his appeal, and was “given multiple opportunities to request a
continuance and state his reasons for same,” Hyshaw “has not met the requirements” for
prosecuting his appeal from the judicial review committee’s decision. The appeal board
accordingly affirmed the judicial review committee’s decision.
       By letter to the hearing officer dated May 3, 2012, Hyshaw said that the officer’s
letter of March 29 (giving Hyshaw notice of the April 23 hearing date) gave him
(Hyshaw) “less than 30 days to confirm,” and Hyshaw suggested that “we . . .
[r]econsider the hearing date.” The record does not contain a response to Hyshaw’s letter
of May 3, but Hyshaw alleges that the appeal board’s decision was “unfair,” particularly
in light of the board’s “refusal to consider” the “request for additional time” contained in
his May 3 letter.
       Hyshaw then filed in the superior court an “application for writ of mandamus
reinstatement of medical privileges.” (Boldface and capitals omitted.) The Committee
was the only named respondent, and it moved to strike the petition on numerous
procedural grounds. The respondents’ brief in the present appeal states that the
superior court granted the motion with leave to amend, but, as best we can determine,
the record on appeal does not contain an order ruling on the motion. In any event,
on January 17, 2013, Hyshaw filed an amended petition, in which he added the Daughters
of Charity Health Systems Board of Directors (Daughters of Charity) as a respondent.
       The Committee and Daughters of Charity demurred to the first amended petition.
They argued that the court lacked jurisdiction because Hyshaw failed to exhaust his
administrative remedies. They also argued that Daughters of Charity was not a proper
party, because “the Daughters of Charity Health System is a separate corporation from
St. Francis Medical Center, and has had nothing whatsoever to do with the medical staff

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proceedings involving Dr. Hyshaw.” The Committee and Daughters of Charity also filed
another motion to strike the petition.
       The superior court sustained the demurrer without leave to amend, agreeing with
both grounds advanced by the Committee and Daughters of Charity. The court then
entered judgment dismissing the action with prejudice and awarding attorney fees and
costs to respondents, in amounts to be determined, pursuant to Business and Professions
Code section 809.9. On respondents’ motion, the court later awarded $57,106.25 in fees
and costs. Hyshaw timely appealed from the judgment.
                                 STANDARD OF REVIEW
       In reviewing a judgment after a demurrer was sustained without leave to amend,
we “must assume the truth of the [petition]’s properly pleaded or implied factual
allegations” and “must also consider judicially noticed matters,” and “we determine
whether the [petition] states facts sufficient to state a cause of action.” (Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We also “rely on and accept as true
the contents of the exhibits” to the petition. (Barnett v. Fireman’s Fund Ins. Co. (2001)
90 Cal.App.4th 500, 505.)
                                         DISCUSSION
       “[B]efore a doctor may initiate litigation challenging the propriety of a hospital’s
denial or withdrawal of privileges, he must exhaust the available internal remedies
afforded by the hospital.” (Westlake Community Hosp. v. Superior Court (1976)
17 Cal.3d 465, 469.) The doctor “must pursue the internal remedies afforded by that
hospital to a final decision on the merits before resorting to the courts for relief.”
(Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 619; see also
Kumar v. National Medical Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1055
[“a party must go through the entire proceeding to ‘a final decision on the merits of the
entire controversy’ before resorting to the courts for relief”].) And the failure to exhaust
administrative remedies bars judicial relief even if the unexhausted administrative
remedy is no longer available, “as to hold otherwise would obviously permit



                                               4
circumvention of the entire judicial policy behind the doctrine.” (Roth v. City of
Los Angeles (1975) 53 Cal.App.3d 679, 687.)
       The exhibits attached to Hyshaw’s petition show that he did not file an opening
brief in his appeal from the decision of the judicial review committee. The petition
contains no allegation to the contrary. Because Hyshaw did not exhaust his
administrative remedies, his petition for administrative mandamus is barred, unless an
exception to the administrative exhaustion requirement (e.g., futility) applies. Hyshaw
does not argue that any exception applies.
       Instead, Hyshaw argues that he was prevented from exhausting his administrative
remedies, or perhaps that he was excused from exhausting them, because he was not
given proper notice of the briefing schedule, hearing date, and other matters pursuant to
the Hospital’s Medical Staff Bylaws (Bylaws). In particular, he points out that the
Bylaws define “special notice” as “a written communication delivered personally to the
required addressee or sent by United States Postal Service, First-Class Postage Prepaid,
Certified or Registered Mail, Return Receipt Requested, addressed to the required
addressee at this address as it appears in the records of this hospital.” He claims that he
did not receive such special notice of the hearing date, briefing schedule, and various
other matters.
       We conclude that the argument lacks merit. Although the Bylaws do require
special notice of certain things, they do not require special notice of the hearing date or
briefing schedule for an appeal from a decision of a judicial review committee. They
require only “notice.” Hyshaw does not identify any Bylaw that requires special notice
for an event, proceeding, or other matter of which he did not receive special notice.
       Hyshaw’s opening brief contains no other argument against application of the
administrative exhaustion requirement.1 In addition, Hyshaw asks that we overturn the


1
       Most of the arguments in Hyshaw’s opening brief relate to matters that are
irrelevant to the administrative exhaustion issue, and others are unsupported on their face.
For example, Hyshaw argues that the hearing officer for Hyshaw’s appeal from the
judicial review committee’s decision received from Hyshaw a request for a continuance

                                              5
award of attorney fees pursuant to Business and Professions Code section 809.9, but
he fails to argue in support of that request (apart from his contention that “the [c]ourt’s
decision that appellant did not exhaust his administrative remedies is in error,” which we
have rejected). We therefore must affirm the judgment of dismissal in its entirety, and
we need not address the other issues Hyshaw raises.
                                       DISPOSITION
       The judgment is affirmed. Respondents shall recover their costs of appeal.
       NOT TO BE PUBLISHED.



                                                  ROTHSCHILD, Acting P. J.
We concur:



              JOHNSON, J.



              WILEY, J.




on April 12, 2012, well ahead of the April 23 hearing date. Hyshaw’s only citation to the
record in support of that argument refers to a page of the reporter’s transcript of the
hearing on respondents’ demurrer to the first amended petition, at which Hyshaw’s
counsel made the same argument. The trial court asked counsel whether the record
contained any evidence of such a request for a continuance. After some evasive answers
and further questioning from the court, Hyshaw’s counsel eventually admitted that the
continuance request was “not in the material that you have at this point.”

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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