Filed 4/29/14 Lanham v. County of Los Angeles CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


GORDON LANHAM,                                                         B252156

         Plaintiff and Appellant,                                      (Los Angeles County
                                                                       Super. Ct. No. BC508840)
         v.

COUNTY OF LOS ANGELES et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Affirmed.


         Gordon Lanham, in pro. per., for Plaintiff and Appellant.


         John F. Krattli, County Counsel, Narbeh Bagdasarian, Deputy County Counsel;
Pollak, Vida & Fisher and Daniel P. Barer for Defendants and Respondents.


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       Plaintiff Gordon Lanham appeals pro se a judgment following the sustaining of
a demurrer and dismissal of his complaint against the County of Los Angeles,
LAC+USC Medical Center (LAC+USC), and several LAC+USC employees without
leave to amend. We affirm.
                                   BACKGROUND
       Plaintiff filed a complaint against the County of Los Angeles, LAC+USC, and
several LAC+USC employees solely in their official capacities (together the County),
alleging violations of provisions in the Health and Safety Code governing patient
access to health records (the Patient Access Law). (See Health & Saf. Code, § 123100
et seq.1) Plaintiff alleged he had mailed a series of requests for his medical records to
LAC+USC on May 8, May 12, and May 30, 2012, but did not receive a response. He
attempted calling the medical records department, but his calls went unanswered.
After two or three weeks of calls with no resolution, he sent another request on June
25, 2012. He waited another two weeks without receiving a response. On July 25,
2012, he called every department seeking his medical records. He got in touch with
LAC+USC’s Chief Executive Officer, but after he explained his complaint, the
telephone went dead and repeated calls to the telephone number indicated the number
was no longer in service. He also got in touch with LAC+USC’s Chief Operating
Officer, but the result was the same—the line promptly went dead when he explained
his complaint. After more telephone calls, transfers, and waiting on hold for 30
minutes, plaintiff finally spoke with someone named Pamela in the records
department, and she told him he could request his records through her.
       On August 3, 2012, plaintiff received a small portion of his records, but he did
not receive the financial portion, despite having requested all his records. On August
5, 2012, plaintiff sent another request for a copy of his complete records, but they were



1     All undesignated statutory citations refer to the Health and Safety Code unless
otherwise noted.


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not sent. Plaintiff sent another request on September 26, 2012, and he finally received
the financial portion of his records on November 3, 2012. That was 90 days after his
August 5, 2012, request for copies of his complete records, more than 100 days after
he spoke with Pamela in the records department on July 25, 2012, and nearly 180 days
after he mailed his original request on May 8, 2012. It appears he has received all the
records he was seeking.
       Based on these facts, plaintiff made an administrative claim against LAC+USC,
which was rejected. He then filed a civil complaint alleging the County violated its
own policies and sections 123100 and 123110, subdivision (b) of the Patient Access
Law by belatedly producing his medical records. He sought general and punitive
damages, costs, and “further relief as this Court deems just and proper.” He did not
seek an injunction or other equitable remedy.
       The County demurred to the complaint, arguing plaintiff did not have standing
to sue for damages under sections 123100 and 123110, subdivision (b) of the Patient
Access Law. Plaintiff opposed and the court held a hearing on August 27, 2013, that
was not transcribed. The court sustained the demurrer without leave to amend and
entered judgment accordingly.2 Plaintiff timely appealed.
                                      DISCUSSION
       We review the trial court’s sustaining of a demurrer de novo to determine
whether, as a matter of law, the complaint alleges a valid cause of action. (Jenkins v.
JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 506.) We assume the truth
of all properly pleaded and judicially noticeable material facts, but we will not assume


2      The trial court provided no explanation for its ruling, even though it was
required to “include in its decision or order a statement of the specific ground or
grounds upon which the decision or order is based which may be by reference to
appropriate pages and paragraphs of the demurrer.” (Code Civ. Proc., § 472d.)
Nonetheless, plaintiff waived this error because there is nothing in the record to
suggest he brought it to the court’s attention. (Ibid.; see E.L. White, Inc. v. City of
Huntington Beach (1978) 21 Cal.3d 497, 504, fn. 2.)


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the truth of contentions, deductions, or conclusions of law. (Ibid.) If the complaint
fails to state a claim, the plaintiff bears the burden to demonstrate there is a reasonable
possibility the defects can be cured by amendment. (Id. at pp. 506-507.)
       The Patient Access Law is set forth in a chapter of the Health and Safety Code
entitled “Patient Access to Health Records.” (§ 123100 et seq.) Section 123100 states
its purpose: “The Legislature finds and declares that every person having ultimate
responsibility for decisions respecting his or her own health care also possesses a
concomitant right of access to complete information respecting his or her condition
and care provided. Similarly, persons having responsibility for decisions respecting
the health care of others should, in general, have access to information on the patient’s
condition and care. It is, therefore, the intent of the Legislature in enacting this chapter
to establish procedures for providing access to health care records or summaries of
those records by patients and by those persons having responsibility for decisions
respecting the health care of others.”
       Section 123110 states in relevant part, “(a) Notwithstanding Section 5328 of the
Welfare and Institutions Code, and except as provided in Sections 123115 and 123120,
any adult patient of a health care provider . . . shall be entitled to inspect patient
records upon presenting to the health care provider a written request for those records
and upon payment of reasonable clerical costs incurred in locating and making the
records available. . . . A health care provider shall permit this inspection during
business hours within five working days after receipt of the written request. The
inspection shall be conducted by the patient or patient’s representative requesting the
inspection, who may be accompanied by one other person of his or her choosing. [¶]
(b) Additionally, any patient or patient’s representative shall be entitled to copies of
all or any portion of the patient records that he or she has a right to inspect, upon
presenting a written request to the health care provider specifying the records to be
copied, together with a fee to defray the cost of copying, that shall not exceed twenty-
five cents ($0.25) per page or fifty cents ($0.50) per page for records that are copied


                                              4
from microfilm and any additional reasonable clerical costs incurred in making the
records available. The health care provider shall ensure that the copies are transmitted
within 15 days after receiving the written request.”3
       Section 123120 provides, “Any patient or representative aggrieved by a
violation of Section 123110 may, in addition to any other remedy provided by law,
bring an action against the health care provider to enforce the obligations prescribed
by Section 123110. Any judgment rendered in the action may, in the discretion of the
court, include an award of costs and reasonable attorney fees to the prevailing party.”
       The County focuses on the fact that plaintiff brought his claims directly under
sections 123100 and 123110, subdivision (b) in his complaint, not section 123120,
which creates a statutory basis to privately enforce section 123110, as we discuss
below. Giving plaintiff a generous interpretation of his complaint, we think plaintiff
could allege his claims under section 123120. Thus, our question is whether section
123120 creates a private right of action for plaintiff to seek damages for the County’s
failure to timely provide copies of his medical records under section 123110,
subdivision (b). This is an issue of statutory interpretation and we are guided by
familiar principles.4 “‘[O]ur goal is “to ascertain the intent of the enacting legislative
body so that we may adopt the construction that best effectuates the purpose of the
law.”’ [Citation.] First, we must look to the words of the statute, which generally
provide the most reliable indicator of legislative intent. [Citation.] If the statutory
language is unambiguous, then we presume the Legislature meant what it said and our


3      Neither plaintiff nor the County states whether plaintiff paid these costs. For
the purpose of the County’s demurrer, we will presume plaintiff paid these costs or
was excused from doing so.
4       As a public entity, the County is not liable for injuries except as provided by
statute. (Gov. Code, § 815; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40
Cal.3d 780, 785, fn. 2.) Because the dispositive question here is whether section
123120 creates a private right of action to seek damages at all, the County’s public
entity status does not impact our analysis.


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inquiry ends. [Citation.] We give words in a statute their plain and common sense
meaning, and we avoid a construction that would produce absurd results, which we
presume the Legislature did not intend. [Citation.] We also ‘do not construe statutes
in isolation; rather, we construe every statute with reference to the whole system of
law of which it is a part, so that all may be harmonized and anomalies avoided.’
[Citation.]” (Barker v. Garza (2013) 218 Cal.App.4th 1449, 1454.)
       Because violation of a statute does not necessarily give rise to a private cause of
action, whether a statute creates a private right to sue “depends on whether the
Legislature has ‘manifested an intent to create such a private cause of action’ under the
statute. [Citations.] Such legislative intent, if any, is revealed through the language of
the statute and its legislative history. [Citation.]” (Lu v. Hawaiian Gardens Casino,
Inc. (2010) 50 Cal.4th 592, 596.) A statute may contain “‘“clear, understandable,
unmistakable terms,”’ which strongly and directly indicate that the Legislature
intended to create a private cause of action. [Citation.] For instance, the statute may
expressly state that a person has or is liable for a cause of action for a particular
violation. [Citations.] Or, more commonly, a statute may refer to a remedy or means
of enforcing its substantive provisions, i.e., by way of an action. [Citations.] If,
however, a statute does not contain such obvious language, resort to its legislative
history is next in order. [Citations.]” (Id. at p. 597, fn. omitted.)
       The plain language of section 123120 creates a private right of action “against a
health care provider to enforce the obligations prescribed by Section 123110.” (Italics
added.) Read in light of the legislative intent expressed in section 123100 that patients
have a “right of access to complete information respecting his or her condition and
care provided,” section 123120 clearly and unmistakably creates a private right of
action to compel a health care provider to provide access to and copies of medical
records upon request under section 123110, subdivisions (a) and (b). But because
plaintiff eventually obtained copies of all his records as he requested, we must decide




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whether the Legislature also intended to create a private right of action for damages for
untimely compliance. We think it did not.
         The language of section 123120 demonstrates the Legislature intended to create
only a narrow right to sue to compel compliance with section 123110. Black’s Law
Dictionary defines “enforce” as, “to give force or effect to (a law, etc.); to compel
obedience to” (Black’s Law Dictionary (9th ed. 2009) p. 608, col. 2), which is
consistent with confining the right of action to compelling compliance with section
123110. Further, an aggrieved patient’s right to bring an action to enforce the
obligations in section 123110 is “in addition to any other remedy provided by law,”
suggesting the Legislature was creating only a narrow injunctive remedy when access
to medical records has been withheld or copies have not been provided while leaving
other remedies for untimely compliance, including damages, to other laws that might
apply.
         Section 123120 must also be read in light of the stated purpose of the Patient
Access Law, which seeks to support a patient’s “ultimate responsibility for decisions
respecting his or her own health care” by creating a “right of access to complete
information respecting his or her condition and care provided.” (§ 123100.) To do so,
the Legislature intended to establish “procedures for providing access” to health care
records. (Ibid.) Given the Legislature’s focus on ensuring patients’ access to medical
records, we are reluctant to infer a more expansive right to recover damages once a
patient has been given access to and copies of his or her medical records, even if that
occurs beyond the statutory deadlines.
         Other sections of the Patient Access Law reinforce this conclusion. Section
123145, subdivision (a) requires certain licensed health care providers that cease
operations to preserve patient records for at least seven years after the patient is
discharged. Subdivision (b) of that section provides that “any person injured as a
result of the licensee’s abandonment of health records may bring an action in a proper
court for the amount of damage suffered as a result thereof.” (§ 123145, subd. (b),


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emphasis added.) “‘It is a settled rule of statutory construction that where a statute,
with reference to one subject contains a given provision, the omission of such
provision from a similar statute concerning a related subject is significant to show that
a different legislative intent existed with reference to the different statutes.’” (In re
Jennings (2004) 34 Cal.4th 254, 273.) Having expressly permitted suits for damages
for a health care provider’s failure to preserve medical records, the Legislature must
have intended to exclude similar actions for untimely compliance with section 123110
by not mentioning them in section 123120. This conclusion is particularly apt here,
given section 123145, subdivision (c) refers to section 123110 by defining
“[a]bandoned” to mean “violating subdivision (a) and leaving patients treated by the
licensee without access to medical information to which they are entitled pursuant to
Section 123110.”
       Moreover, the Patient Access Law contains punitive consequences for willful
violations, which would encourage health care providers to abide by the time limits in
section 123110 without also reading a private right to sue for damages into section
123120 for untimely compliance. Certain licensed health care providers who willfully
violate the Patient Access Law are “guilty of unprofessional conduct.” (§ 123110,
subd. (i).) Similarly, certain institutional health care providers that willfully violate
the Patient Access law are “guilty of an infraction punishable by a fine of not more
than one hundred dollars ($100).” (Ibid.) For all of those entities, “[t]he state agency,
board, or commission that issued the health care provider’s professional or institutional
license shall consider a violation as grounds for disciplinary action with respect to the
licensure, including suspension or revocation of the license or certificate.” (Ibid.)
       Finally, we are not the only court to interpret section 123120 to preclude an
action for damages for untimely compliance with section 123110. (Maher v. County
of Alameda (2014) 223 Cal.App.4th1340, 1354 [“[T]he Patient Access Law . . .
contains no express language authorizing an award of consequential damages[,]” but
instead “contemplates a proceeding to secure access to one’s medical records, and a


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discretionary award of attorney fees and costs to the prevailing party in that
proceeding. We do not believe section 123120 authorizes the remedy [the plaintiff]
seeks -- an award of prelitigation attorney fees or investigation costs as consequential
damages for the failure to timely provide access to medical records.”].) Thus, no
private right of action exists under section 123120 for damages for the County’s
belated production of copies of plaintiff’s medical records. Because plaintiff’s claim
is legally flawed, there is no reasonable possibility he could cure the defects in his
complaint by amendment and the trial court properly denied leave to amend.
                                     DISPOSITION
       The judgment is affirmed. Each party to bear their own costs on appeal.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




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