Filed 10/30/19
                 CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION TWO


NOVARRO C. STAFFORD,                    B288008

       Plaintiff and Respondent,        (Los Angeles County
                                        Super. Ct. No. BS160519)
       v.

ATTENDING STAFF ASSOCIATION
OF LAC + USC MEDICAL CENTER,

       Defendant and Appellant.




     APPEAL from a judgment of the Superior Court of Los
Angeles County. Mary H. Strobel, Judge. Affirmed.
     John D. Harwell for Defendant and Appellant.
     Steven Trolard for Plaintiff and Respondent.
             _________________________________
       The Attending Staff Association of LAC + USC Medical
Center (Association) appeals from a judgment granting a writ of
mandamus against it. Respondent Novarro C. Stafford is a
physician whose clinical privileges were terminated by the
Association. Stafford requested an administrative hearing. The
administrative process began, but the Association subsequently
took the position that Stafford withdrew or abandoned his right
to an administrative hearing through his communications and
conduct and by filing an unsuccessful action in superior court.
       Stafford filed a petition for a writ of mandate seeking an
order directing the Association to complete Stafford’s
administrative proceeding. The trial court granted the petition.
We affirm.
       The Association argues that, because Stafford filed an
action in superior court before concluding the administrative
appeal process, he forfeited his administrative remedy as a
matter of law. The argument misinterprets the doctrine of
exhaustion of administrative remedies. That doctrine precludes
premature lawsuits; it does not mean that filing a premature
lawsuit necessarily waives an administrative remedy.
       The Association also makes the factual argument that
Stafford withdrew his request for an administrative hearing. The
trial court found against the Association on that claim. That
finding is supported by substantial evidence, and we therefore
must affirm.
                          BACKGROUND
1.     The Suspension of Stafford’s Clinical Privileges
       Stafford is an anesthesiologist who was employed by the
County of Los Angeles (County), working at the LAC + USC
Medical Center (Medical Center). At the time of the relevant




                               2
events Stafford was over 80 years old and had enjoyed staff
privileges at the Medical Center for over 30 years. The
Association is responsible for providing such privileges.
       On September 16, 2013, a female patient filed a written
complaint claiming that Stafford had acted inappropriately and
made her feel uncomfortable during an examination. On
February 7, 2014, the Director of Health Services of Los Angeles
County informed Stafford by letter that his clinical privileges had
been summarily suspended “[i]n accord with the bylaws of the . . .
Association.” The stated reason was “to reduce the substantial
likelihood of imminent impairment to patient health and safety.”
Stafford received a “referral to the Well-Being Committee and
requirement of a neurocognitive examination, to be completed no
later than sixty days and coordinated through the Well-Being
Committee.”
       The Association subsequently terminated Stafford’s
privileges on the ground that he failed to submit a timely
neurocognitive evaluation.1 Stafford appealed the decision and
requested an administrative hearing.
2.     Initiation of the Administrative Proceedings
       In September 2014, James Lahana was appointed as
hearing officer for the administrative hearing. Counsel for
Stafford and for the Association corresponded concerning voir
dire of Lahana and various discovery issues.


      1 Stafford disputed this ground, claiming that the Well-
Being Committee refused to postpone a meeting to permit
Stafford’s union representative to attend. The dispute is not
material.




                                 3
       In November 2014, Stafford requested retirement from the
County.
       Also in November 2014, new counsel for Stafford, Steven
Trolard, wrote to the Association advising it that Stafford
intended to file a civil suit. Trolard claimed that the
Association’s failure to schedule a prompt hearing was a breach
of its bylaws, permitting recourse to the court.
       Trolard participated in voir dire, but subject to an objection
“to the subject matter jurisdiction of the peer review procedure
itself.” Trolard’s e-mail explaining his objection stated, “I do not
see any requirement that Dr. Stafford subject himself to the peer
review process before a civil suit can be filed since Dr. Stafford
has taken retirement.”
       On March 26, 2015, Trolard sent several e-mails to the
Association’s counsel, John Harwell. Trolard’s first e-mail
requested an appointment to see Stafford’s employment file,
proposing a date of April 7, 2015, for the inspection. A follow-up
e-mail changed the proposed date to April 15, 2015. In the
follow-up e-mail, Trolard also stated, “In our last meeting you
said you would be dismissing the matter since Dr. Stafford is no
longer an employee of LA USC+. [¶] Please go ahead and
dismiss the matter.”
       In his declaration in support of Stafford’s writ petition,
Trolard explained that this statement referred to an earlier
conversation he had with Harwell after the voir dire of Lahana.
Trolard testified that, in that conversation, Harwell told him that
“since Dr. Stafford had taken retirement from the County of Los
Angeles, the . . . Association would consider dismissing the
allegations against Dr. Stafford.”




                                  4
       Although Trolard sent his March 26 e-mail only to Harwell,
Lahana wrote a letter dated April 7, 2015, to Trolard and
Harwell stating that he had seen the March 26 correspondence.
The letter asked whether Trolard was “authorizing dismissal of
Dr. Stafford’s medical staff appeal” since Stafford was no longer a
Medical Center employee. Lahana wrote another letter to
Trolard dated May 26, 2015, stating that he had not received a
response to his April 7 letter and requesting “clarification as to
whether Dr. Stafford is affirmatively withdrawing his appeal.”
Trolard testified in his declaration that he never received those
letters.
 3.    Stafford’s Civil Suit
       On June 2, 2015, Stafford filed a civil action against the
County, the Medical Center, and various individuals alleging
employment discrimination, breach of the covenant of good faith
and fair dealing, and negligence. One of the named defendants
filed a demurrer and a motion to strike under the anti-SLAPP
statute (Code Civ. Proc., § 425.16).2 Stafford dismissed his action
on August 18, 2015, before a ruling on those pending motions.
4.     Stafford’s Attempt to Proceed with the
       Administrative Process
        On July 28, 2015, Trolard sent an e-mail to Lahana stating
that his “client, Dr. Novarro C. Stafford, wants to proceed with
the appeal forthwith.” Lahana responded on August 4, 2015,
with a letter to Trolard and Harwell. The letter referred to
Lahana’s prior letters of April 7 and May 26. Lahana stated that


      2Subsequent undesignated statutory references are to the
Code of Civil Procedure.




                                 5
he had not received a response to those letters and that
“[c]onsequently, I construed Mr. Trolard’s silence as an
abandonment by Dr. Stafford of the administrative hearing
process required under the Bylaws.” Lahana requested that the
parties “provide their respective positions and provide a response
as to the issue of whether the appeal should be deemed dismissed
based upon Mr. Trolard’s email of March 26, 2015 requesting
dismissal of the appeal.”
       Trolard responded the next day, explaining that Lahana
had misinterpreted his March 26 e-mail. Trolard said that his
statement was “not an independent, stand alone request for
dismissal of the appeal.” He explained that “Mr. Harwell told me
that since Dr. Stafford had retired the suspension and appeal
may be moot and he would be looking into dismissing the
summary suspension of Dr. Stafford. I then told Mr. Harwell
that if the Suspension is dismissed there is no basis for the
appeal.” He requested that “the appeal process proceed as soon
as possible.”
       Neither Lahana nor the Association ever purported to
dismiss or close the administrative appeal. However, the appeal
process did not proceed any further.
5.     Stafford’s Writ Petition
       On February 8, 2016, Stafford filed a petition for a writ of
mandate pursuant to section 1085, seeking an order requiring the
Association, the County, and the University of Southern
California to “complete the peer review process” or show cause




                                6
why they have not done so.3 The Association and the County
opposed the petition, arguing that Stafford had withdrawn or
abandoned his right to an administrative hearing.
       Following oral argument on November 2, 2017, the trial
court adopted its tentative ruling granting the petition. The trial
court’s ruling rejected the Association’s argument that Stafford’s
decision to file the civil action constituted an abandonment of the
administrative proceeding. The court acknowledged the
requirement in the Association’s bylaws that a party “ ‘exhaust
all the remedies afforded by these bylaws before resorting to any
legal action.’ ” The court concluded that this requirement
provided a defense to a premature legal action, but did not mean
that a civil suit “acts as a forfeiture of a pending administrative
appeal.”
       The court also rejected the Association’s argument that
Stafford’s conduct during the prehearing activities amounted to
an abandonment of the administrative proceedings under the
Association’s bylaws. The court noted that the Association’s
bylaws state that a requesting party’s failure to “ ‘appear or
proceed’ ” at a requested hearing “ ‘shall be deemed to constitute
voluntary acceptance of the recommendations or actions involved
which shall become final and effective immediately.’ ” The court
interpreted this provision to apply only when a party fails to




      3 In the alternative, the petition sought a ruling that
Stafford “is not required to exhaust the peer review hearing
process before resorting to the courts.” The trial court denied
that relief, and Stafford has not appealed that ruling.




                                 7
appear at an actual hearing, which was never scheduled in this
case.
       In addition, the court found that Stafford did not fail to
appear or proceed even if the term “hearing” were interpreted
more broadly. The court credited Trolard’s testimony that he did
not receive Lahana’s April 7 letter. And, even though the court
found sufficient evidence that Lahana’s May 26 letter was sent to
Trolard by e-mail, the court noted that the letter did not provide
any notice that a failure to respond would result in dismissal or
abandonment of the case. The court cited Lee v. Blue Shield of
California (2007) 154 Cal.App.4th 1369, 1375, for the principle
that a decision whether a doctor has forfeited the right to a
hearing “ ‘must be made by the hearing panel in the course of the
[Business and Professions Code section] 809 hearing itself after
affording the doctor notice and an opportunity to be heard.’ ”
       Finally, the trial court rejected the Association’s argument
that Trolard actually requested dismissal of his appeal through
his March 26, 2015 e-mail. The court reasoned that, if Stafford
had intended the e-mail to dismiss his administrative appeal, he
would have sent the e-mail to Lahana as well as to opposing
counsel. The court also noted that the reference to “ ‘matter’ ” in
the e-mail was vague. And the court credited Trolard’s testimony
that his e-mail referred to his previous conversation with Harwell
in which Harwell had “informed him that since [Stafford] had
taken retirement, the [Association] would consider dismissing the
allegations” against Stafford.
       The court’s ruling was incorporated into a formal judgment
ordering the Association “to complete the administrative appeal
of the suspension and termination of the clinical staff privileges”
of Stafford.




                                8
                           DISCUSSION
1.     Standard of Review
       A “traditional” writ of mandate under section 1085 is a
“method for compelling a public entity to perform a legal and
usually ministerial duty.” (Klajic v. Castaic Lake Water Agency
(2001) 90 Cal.App.4th 987, 995 (Klajic).)4 A trial court reviews
an administrative action under section 1085 “to determine
whether the agency’s action was arbitrary, capricious, or entirely
lacking in evidentiary support, contrary to established public
policy, unlawful, procedurally unfair, or whether the agency
failed to follow the procedure and give the notices the law
requires.” (Ibid.)
       On appeal, we review the trial court’s factual findings
underlying its decision to issue a writ under the substantial
evidence standard. (Klajic, supra, 90 Cal.App.4th at pp. 995–996;


      4  The trial court properly issued its writ under the
authority of section 1085 rather than under section 1094.5.
Section 1094.5 applies where a writ “is issued for the purpose of
inquiring into the validity of any final administrative order or
decision made as the result of a proceeding in which by law a
hearing is required to be given, evidence is required to be taken,
and discretion in the determination of facts is vested in the
inferior tribunal, corporation, board, or officer.” (§ 1094.5, subd.
(a), italics added.) Here, there was no final administrative order
or decision, but rather a refusal to proceed to a hearing.
“[S]ection 1085 anticipates the arbitrary or improper refusal by
an association to hold a hearing and authorizes resort to a writ of
mandate to compel such a hearing.” (Haller v. Burbank
Community Hospital Foundation (1983) 149 Cal.App.3d 650,
658.)




                                 9
City of San Diego v. San Diego City Employees’ Retirement
System (2010) 186 Cal.App.4th 69, 78.) We independently review
legal questions. (Klajic, at pp. 995–996; San Diego, at p. 78.)
2.     Stafford Did Not Abandon His Administrative
       Remedy By Filing a Civil Action
       The Association’s primary argument on appeal is that the
doctrine of exhaustion of administrative remedies now precludes
Stafford from obtaining any administrative relief. In essence, the
Association contends that Stafford’s decision to file a civil action
before concluding the administrative proceedings constituted an
abandonment of the administrative proceedings as a matter of
law.
       The Association cites no authority supporting that
contention. The purpose of the exhaustion doctrine also does not
support it.
       The doctrine that a party must exhaust his or her
administrative remedies before pursuing a judicial proceeding is
based on considerations of efficiency. The doctrine “serves the
salutary function of eliminating or mitigating damages” if an
organization can quickly recognize through its internal
procedures that it has committed error; it accords “recognition to
the ‘expertise’ of the organization’s quasi-judicial tribunal,” and,
even if the administrative proceeding does not eliminate the need
for a subsequent judicial action, it “will still promote judicial
efficiency by unearthing the relevant evidence and by providing a
record which the court may review.” (Westlake Community Hosp.
v. Superior Court (1976) 17 Cal.3d 465, 476.) These purposes are
unrelated to the question of whether filing a premature civil
action causes forfeiture of pending administrative proceedings as
a matter of law. If anything, the goals underlying the exhaustion




                                10
doctrine support the conclusion that one should not readily infer
waiver. Those goals emphasize the value and importance of
administrative proceedings. That emphasis is inconsistent with a
rule that filing a civil suit waives administrative remedies even if
a party did not intend to abandon the administrative proceeding.
      And intent is generally the controlling principle in waiver
analysis. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 33–34 (Waller) [defining waiver as the intentional
relinquishment of a right or acts that are so inconsistent with an
intent to enforce a right as to induce a reasonable belief that the
right has been relinquished].) A party’s decision to file a judicial
action might or might not reflect an actual intent to abandon
pending administrative proceedings. The party might intend to
seek a remedy only through the courts, or might intend to pursue
both proceedings simultaneously. The doctrine of exhaustion of
administrative remedies precludes pursuing a judicial remedy
before the conclusion of an administrative proceeding, but it says
nothing about a party’s intention to abandon the administrative
process.
      The Association cites several cases in which the parties
actually abandoned or failed to pursue administrative remedies
before beginning a judicial action. (See Murray v. Alaska
Airlines, Inc. (2010) 50 Cal.4th 860; Palmer v. Regents of
University of California (2003) 107 Cal.App.4th 899.) Those
cases do not support the proposition that filing a civil action itself
causes a party to relinquish the right to pursue administrative
remedies.
      Page v. Los Angeles County Probation Dept. (2004) 123
Cal.App.4th 1135, which the Association also cites, actually
supports the conclusion that filing a civil action does not waive




                                 11
administrative remedies. The plaintiff in that case filed her
lawsuit before obtaining a ruling from the Civil Service
Commission concerning her employment claims. The court held
that her judicial action was barred, but suggested that she
nevertheless could continue to pursue her administrative
remedies: “If the Commission’s final decision is unsatisfactory to
Page, then she must exhaust her judicial remedy by filing a
petition for writ of administrative mandamus in the trial court.
If she does not prevail in the writ proceedings, then the
Commission’s decision will be binding and defeat her [Fair
Employment and Housing Act] claims. If she does prevail in the
writ proceedings, she may ultimately obtain relief from the
Commission. Her FEHA claims may be time-barred, or the
doctrine of equitable tolling may avoid that problem.” (Id. at p.
1143, italics added.)
       Stafford’s decision to pursue a judicial remedy before
completing the administrative process, while unwise, did not
forfeit his right to pursue his administrative remedies as a
matter of law.
3.     Stafford Did Not Withdraw His Administrative
       Appeal
       On appeal, the Association does not renew the argument it
made in the trial court that Stafford abandoned or waived his
administrative rights through a lack of diligence or a failure to
cooperate with the administrative process. The Association
correctly recognizes that under our Supreme Court’s decision in
Mileikowsky v. West Hills Hospital & Medical Center (2009) 45
Cal.4th 1259 (Mileikowsky) Lahana did not have the authority to




                                12
dismiss Stafford’s administrative appeal on that basis.5 Thus,
the Association concedes that “[o]nly the physician can withdraw
his or her appeal.” However, it contends that “through Mr.
Trolard, Dr. Stafford did.”
       The Association’s argument that Stafford forfeited his
administrative appeal rights therefore depends upon the factual
issue of whether Trolard’s March 26, 2015 e-mail was a request
to abandon the administrative appeal.6
       The trial court decided that issue against the Association.
Its finding was based on substantial evidence. Trolard testified
in his declaration that the request in his March 26 e-mail to
“please go ahead and dismiss the matter” referred to Harwell’s

      5 In Mileikowsky, the court held that a hearing officer does
not have the authority under the governing legislative scheme to
dismiss a doctor’s administrative appeal for a failure to
cooperate. (Mileikowsky, supra, 45 Cal.4th at pp. 1269–1273.)
The court held that “once a hearing has been requested, the
review process may not be concluded without the reviewing
panel’s informed approval.” (Id. at p. 1273.) Here, there was no
reviewing panel because the proceedings had not yet progressed
to that point.
      6 Any argument that the Association properly terminated
the administrative process on the ground that Stafford implicitly
abandoned or waived his appeal would also founder on the
holding in Mileikowsky. (See Mileikowsky, supra, 45 Cal.4th at p.
1273.) A decision by a hearing officer that a doctor’s lack of
diligence caused a waiver of the right to an administrative appeal
would impinge on the doctor’s right to a ruling by a reviewing
panel in the same manner as a decision that an appeal should be
dismissed for the doctor’s failure to cooperate. (Id. at pp. 1269–
1270.)




                                13
prior statement that the Association would consider dismissing
the allegations against Stafford in light of his retirement. As the
trial court noted, the circumstances of the communication also
support Trolard’s explanation. Trolard sent his e-mail only to
Harwell, not to Lahana, which is not what one would expect if
Trolard had intended that the Association dismiss the
administrative proceedings. Moreover, Trolard’s reference to
“matter” in the e-mail was sufficiently ambiguous that Lahana
himself sought clarification about what Trolard meant. As the
trial court logically concluded, “It seems inherently more likely
that [Stafford’s] counsel would ask opposing counsel to dismiss
the suspension against [Stafford], rather than [Stafford’s] own
administrative appeal.”
       The trial court’s finding that Stafford did not request
dismissal of his administrative appeal is supported by substantial
evidence. We therefore must accept it on appeal. The
Association’s argument that Trolard withdrew Stafford’s appeal
is therefore not supported by the record.
4.     The Trial Court Did Not Misapply the Burden
       of Proof
       The Association argues that the trial court’s ruling
suggests it placed the burden of proof on the Association to show
that Stafford abandoned or withdrew his appeal, rather than
requiring Stafford to prove that the Association failed to fulfill a
legal duty in proceeding with the appeal. The trial court’s ruling
did not expressly address the burden of proof. Nevertheless, even
if the court placed the burden on the Association to prove that
Stafford abandoned or withdrew his appeal, it did not err.
Waiver is an affirmative defense for which the party asserting
the defense bears the burden of proof. (See Waller supra, 11




                                14
Cal.4th at pp. 33–34; see also Evid. Code, § 500 [“Except as
otherwise provided by law, a party has the burden of proof as to
each fact the existence or nonexistence of which is essential to the
claim for relief or defense that he is asserting”].)
                           DISPOSITION
      The judgment is affirmed. Stafford is entitled to his costs
on appeal.
      CERTIFIED FOR PUBLICATION.




                                     LUI, P. J.
We concur:




      ASHMANN-GERST, J.




      CHAVEZ, J.




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