Filed 7/23/24 Weinstein v. Hines CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

STEVEN WEINSTEIN,

Plaintiff and Appellant

,

v.

OSCAR JOE HINES et al

.,

Defendant s and Respondents

. B318163

Los Angeles County

S uper. Ct. No. 19CHCV00400

APPEAL from order and judgment of the Superior Court of

Los Angeles County. Stephen Pfahler , Judge. Affirmed in part,

r eversed in part, and remanded with instructions

. Glenn Stern Law, Glenn E. Stern and Frederick H.

Alschuler for Plaintiff and Appellant.

Horvitz & Levy, Dean A. Bochner

, Lacey L. Estudillo ;

David Weiss Law, David J. Weiss and Nicholas A. Weiss for

Defendants and Respondent s.

___________________________________________2 This appeal is from a judgment entered for defendants and

respondents Oscar Joe Hines and Kit M. Song after the trial

court sustained their demurrer without leave to amend the

second amended complaint (SAC) of plaintiff and appellant

Steven Weinstein. Also named as a defendant in the SAC is The

Regents of the University of California (The Regents). The

Regents is not a party to this appeal and our references to

“defendants” are to defendants Hines and Song only.

We affirm the judgment in part and reverse it in part. We

remand with directions to enter a new order (1) overruling the

demurrer as to plaintiff’s causes of action for intentional infliction

of emotional distress and negligence ; (2 ) sustaining the demurrer

with leave to amend the cause of action under Labor Code

sections 1050 and 1054 for misrepresentation preventing a

former employee from obtaining employment ; and (3 ) sustaining

without leave to amend all other causes of action.

BACKGROUND

1. Allegations of the Second Amended Complaint

Plaintiff and appellant Steven Weinstein has been a

licensed physician and surgeon since 1984. Defendants and

respondents Oscar Joe Hines and Kit M. Song are also

physicians. For a time beginning in 2015, the three doctors

worked together at the Northridge Hospital Medical Center.

They worked within the UCLA Health system and were

employees of The Regents through The Regents ’ UCLA Medical

Group.

In June 2016, a 41

- year

- old female patient presented to

plaintiff for a preoperative consultation about possible gall

bladder surgery. She was accompanied at the appointment by

her eight

- year

- old son. The patient was overweight and had a3

family history of breast cancer. She also had various mental

health issues for which she was prescribed numerous

medications. In performing his history and physical

examination, plaintiff performed a breast exam on the patient, to

which she did not object.

Plaintiff alleges this examination was part of his custom

and practice, as well as The Regents’ guidelines. P laintiff had

expertise in matters of breast health. He held breast health

leadership positions with his former employer and was

“knowledgeable about and skilled and experience d in the

performance of breast examinations and the importance of same

in early detection of breast cancer.”

Following his examination of the patient, plaintiff

discussed her biliary tract disease and related symptoms as well

as the surgical procedure for treating them. The patient stated

she wished to proceed with the surgery and signed a consent form

for it

. However, shortly after the appointment, the patient

contacted her referring physician and asked for a

recommendation for another surgeon. She said she did not like

plaintiff and did not feel comfortable going to him. The following

day, after plaintiff unsuccessfully tried to contact her, the patient

messaged her referring physician, explaining: “ ‘[ plaintiff ] was

very rude to my son, who is a very sweet [ sic ]. You’ve met him;

he’s a good boy. Also, he did a breast exam which really took [ sic ]

aback. Seems inappropriate. He was a jerk and a creep

. . . .’ ”

The patient also called plaintiff and stated she was unhappy he

had done a breast exam and about his interaction with her son at

the appointment. She said she was going to a different surgeon

for her operation.4 Immediately after his call with the patient, plaintiff

reported the interaction to the director of operations for his

practice group, Annette Mosl e y, and suggested she report the

matter to risk management. He also voluntarily told his office

staff that he would have a female nurse present for any future

breast exam and that he would refrain from performing breast

exams during preoperative history and physical examinations

unless specifically medically indicated.

The next day, Ms. Mo sle y spoke with defendant Song,

m edical d irector of Surgical Services, about the patient

complaint. According to Ms. Mos le y’s notes, “ ‘Dr. Song agrees

[the Joint Commission on Accreditation of Healthcare

Organizations] encourages surgeons to complete History and

Physicals [ ( H&P ) ] as a routine step in patient pre

- op care. He

agrees that breast exam is a routine step in the H&P.’ ”

The patient, while satisfied with being rescheduled with

another surgeon, remained concerned about her interaction with

plaintiff

. She submitted an online complaint to The Regents, via

UCLA Health, that she did not feel the breast exam performed by

plaintiff was necessary. She also alleged for the first time that

plaintiff told her he needed to perform pelvic and rectal exams,

but she “ ‘made it clear he would not be doing either.’ ” A week

later, she submitted another online complaint stating that

plaintiff asked her to remove her bra in his presence and warned

her there would be fines if she did not submit to breast, pelvic

and rectal examinations. ( Plaintiff alleges what he actually said

was that, if he performed incomplete or inappropriate

treatments

, it could negatively affect the Medicare

reimbursement rates for the hospital. )5 A patient liaison nurse for The Regents forwarded these

complaints to plaintiff a few days later as part of a notice that the

patient had filed a grievance against him. Also copied was

defendant Hines, c hief of the Division of General Surgery.

D r. Hines contacted Dr. Song

, who in turn contacted plaintiff to

advise that Dr. Hines would be getting in touch with him.

D r. Hines called plaintiff two days later and they discussed the

patient complaint but did not delve into its substance. In the

ensuing weeks, neither Dr s

. Song nor Hines conducted any

further investigation of the patient’s complaints.

In early August 2016, Dr. Hines e

- mailed Dr. Song and the

patient liaison nurse to state that he and Dr. Song both

interviewed plaintiff

, and “ ‘[g]oing forward all female patients

will be examined by [plaintiff] with a member of the clinic staff in

the patient room, [plaintiff] will limit components of the physical

exam to those that are specific to the patient’s condition

. . . , a

letter of concern was sent to [plaintiff] from UCLA Health, [and

plaintiff’s ] practice will be audited every 3 months for

compliance

. . . .’ ” Plaintiff disputes that D rs. Song and Hines

ever interviewed him or that his practice was subject to audits

.

He alleges he “was never advised of these ‘conditions’

. . . and

never agreed to them.” A letter signed by Dr. Hines listing these

conditions was mailed to the patient. Plaintiff was not notified of

the letter at the time.

According to plaintiff

, if the conditions recited in the letter

had been imposed, it would have triggered obligations on

defendants under Business and Professions Code section 805,

subdivisions (a)(7) and (b)(3) to notify the California Medical

Board. D efendants made no such report at the time

.6 In October 2016, The Regents and defendants renewed

plaintiff’s employment agreement

.

In February 2017, the patient filed a police report

concerning her interaction with plaintiff

. The police interviewed

plaintiff but took no further action against him. The police also

notified T he Regents they received a report about plaintiff from

the patient. “ A fter learning of the patient’s police report

, [defendants] immediately went into ‘self

- protection’ and ‘self

survival ’ mode, fearing for their own jobs and protecting their

own pecuniary interests for potentially being viewed by The

Regents as not taking any action against [plaintiff]

, even though

they had already determined six to seven months earlier that

there was no basis for taking any action against [plaintiff]

. The

only new factor in the equation was the patient filing a police

report, prompting [defendants] to corruptly and maliciously move

forward to ‘scapegoat’ [plaintiff] and do whatever they could to

ensure th at they were not accused of mishandling the patient

complaint and save their own jobs.”

The first step Dr. Hines took in the alleged scheme was to

send a letter to plaintiff

, on February 9, 2017, purporting to

document defendant s ’ response to the complaint. Plaintiff calls

this “the ‘CYA’ letter. ” It stated

— falsely, according to plaintiff

—

that defendants reviewed the patient’s written complaints and

concluded the breast examination was not within the standard of

care and that, as a result of the complaint, plaintiff had agreed to

restrictions imposed on his practice (a chaperone for all

examinations of female patients; no breast, pelvic, or rectal

examinations unless specifically related to the patient’s

complaint; and quarterly a udits to ensure his compliance). The

letter further stated defendants intended to make a report to the7

California Medical Board about the complaint pursuant to

Business and Professions Code section s 805 and 805.01 because

their review constituted “peer review activity

. ”

Plaintiff alleges any review by Drs. Hines and Song could

not have constituted peer review activity because fewer than all

persons required under applicable bylaws of The Regents and the

hospital where they worked had been involved. He further

alleges the misrepresentations in the February 9, 2017 letter

“were known to be completely false and made with the conscious

intent to deceive and cause harm to [plaintiff’s] position with The

Regents for the sole purpose of saving [defendants ’ ] jobs.”

The letter advised plaintiff of his right to request a hearing

on the imposition of restrictions a nd notified him that he was

suspended from his position. Plaintiff retained counsel and

requested a hearing. The hearing was initially set for the end of

May 2017 but was repeatedly postponed.

In June 2017, T he Regents threatened to fire plaintiff and

told him he should resign instead. He resigned.

About two months later, defendants filed a report with the

California Medical Board pursuant to Business and Professions

Code section 805. It included statements plaintiff alleges are

false, including that restrictions had been placed on his practice;

that he had voluntarily accepted the restrictions; that he

resigned following notice of an impending investigation; and that

an investigation had been initiated in July 2017. Plaintiff

, through counsel, disputed the contentions in the report with The

Regents

.

A few days later, The Regents, through Dr. Hines,

furnished plaintiff with an amended notice of charges to be

considered at his hearing. These charges largely reiterated the8

issues raised in the February 2017 letter but added that pelvic

and rectal examinations were also medically unnecessary in the

context of plaintiff’s evaluation of the patient. The notice further

advised The Regents would be reporting the restrictions to the

National Practitioner Da t a Bank (NPDB) pursuant to

section 11133(a)(1)(B)(i) of t itle 42 of the United States Code.

Such a report was made on August 30, 2017. Plaintiff alleges

this report falsely stated there was a n investigation pending

against him in June 2017.

After numerous delays caused by The Regents, the

administrative review hearing went forward in March 2018.

D r. Song and Ms. Mosl e y each testified. D r. Song testified he had

no knowledge of the standard of care applicable to plaintiff’s

interaction with the patient. He further admitted neither he nor

Dr. Hines interviewed anyone about plaintiff’s interaction with

the patient; that he (Dr. Song ) was unaware of restrictions ever

having been communicated to plaintiff; and that plaintiff did not

violate any policies or procedures in his interaction with the

patient.

Ms. Mosley similarly testified she did not believe plaintiff

had violated any policy, procedure, or standard of care in his

interaction with the patient.

Plaintiff next sought testimony from Dr. Hines. However,

Dr. Hines was unavailable for several weeks

. Based on, among

other things, delays and other claimed violations of the internal

procedures governing the hearing process, plaintiff asked the

hearing officer to dismiss the action. “With [defendant] Hines’ [s]

testimony pending, and in light of the testimony favorable to

[plaintiff’s] position provided by [ Dr. ] Song and [Ms.] Mosley,

. . .9

[d]efendants agreed to dismiss the allegations against [plaintiff]

and ended the hearing proceeding.”

Two months later

, the California Medical Board notified

plaintiff it “ ‘did not find a departure from the standard of care’ ”

in his interaction with the patient but suggested he offer to use a

chaperone in any future breast examination.

Nevertheless, T he Regents and defendants “refused to file

supplemental and/or corrective reports to the [California] Medical

Board and/or the [NPDB] advising that the hearing against

[plaintiff] had been dismissed, leaving the false and damaging

accusations and adverse actions taken against [plaintiff] on

record at both the [California Medical Board] and the [NPDB],

rendering it impossible for [plaintiff] to obtain employment as a

Physician and Surgeon and causing him to lose his Board

certification with the American Board of Surgery.”

2. Procedural History

Plaintiff filed this action against defendants and The

Regents in 2019. The original complaint included all of the

causes of action asserted in the SAC, plus two more that are

irrelevant for present purposes

. The Regents responded with a

motion for judgment on the pleadings (MJOP) as to, in relevant

part, plaintiff’s causes of action for failure to perform mandatory

duties (Gov. Code

, § 815.6); intentional misrepresentation;

intentional infliction of emotional distress, deprivation of due

process rights (42 U.S.C. § 1983); use of fa bricated evidence

( 42 U.S.C. § 1983); negligence; and negligence per se. The trial

court granted The Regents’ MJOP with leave to amend as to all

these causes of action

. Defendants also filed a MJOP but later

withdrew it.10 Following the trial court ’ s ruling on The Regents ’ MJOP,

plaintiff filed a first amended complaint (FAC), to which The

Regents and defendants each demurred. The trial court decided

The Regents ’ demurrer to the FAC but declined to rule on

defendants’, explaining its ruling on The Regents ’ demurrer

rendered a ruling on the defendants’ demurrer “substantially

moot” due to overlap in the parties’ arguments. The trial court

largely sustained, with leave to amend, The Regents ’ demurrer

but overruled the demurrer as to plaintiff’s cause of action for

intentional infliction of emotional distress

. And, because plaintiff

agreed to withdraw the cause of action for misrepresentation

preventing a former employee from obtaining employment (Lab.

Code

, §§ 1050, 1054) against The Regents only

, the trial court

sustained The Regents’ demurrer to that cause of action without

leave to amend.

Plaintiff filed the SAC and defendants again demurred.

The trial court sustained their demurrer without leave to amend

as to each cause of action

, largely on the basis of unspecified

statutory immunities

.

Plaintiff timely appeal ed

.

DISCUSSION

1. Demurrer and Standard of Review

A demurrer tests the legal sufficiency of the complaint. We

review the complaint de novo to determine whether it alleges

facts sufficient to state a cause of action. For purposes of review,

we accept as true all material facts alleged in the complaint, but

not contentions, deductions or conclusions of fact or law. ( Blank

v. Kirwan (1985) 39 Cal.3d 311, 318.)

“[W] e review the trial court ’ s result for error, and not its

legal reasoning.” ( Davies v. Sallie Mae, Inc

. (2008)11

168 Cal.App.4th 1086, 1090.) Thus, we may affirm a judgment of

dismissal if it is correct on any ground proffered in the demurrer.

( Aubry v. Tri

- City Hospital Dist

. (1992) 2 Cal.4th 962, 967

( Aubry ).)

When a demurrer is sustained without leave to amend, “ we

decide whether there is a reasonable possibility that the defect

can be cured by amendment: if it can be, the trial court has

abused its discretion and we reverse; if not, there has been no

abuse of discretion and we affirm. ” ( Blank v. Kirwan

, supra

,

39 Cal.3d at p. 318.) Plaintiff has the burden to show a

reasonable possibility the complaint can be amended to state a

cause of action. ( Ibid .)

2. Analysis

a. Immunities

“ [I] n governmental tort cases ‘the rule is liability, immunity

is the exception.’ [Citation.] .

. . [Citation.] ‘Accordingly, courts

should not casually decree governmental immunity [.] . . .’

[Citation.] Unless the Legislature has clearly provided for

immunity, the important societal goal of compensating injured

parties for damages caused by willful or negligent acts must

prevail.” ( Ramos v. County of Madera (1971) 4 Cal.3d 685, 692

( Ramos ) .)

Here, defendants’ grounds for immunity argued in their

demurrer were spare, spanning just a few lines with no citation

to authority beyond recitation of the statutory language. In

adopting defendants’ undeveloped theories of immunity, the trial

court did not clearly specify which immunity it was relying on to

dismiss. We review the claimed grounds for immunity with

greater rigor.12 i. Discretionary Act Immunity u nder

Government Code section 820.2

Government Code s ection 820.2 immunizes a public

employee from liability for injuries “resulting from his act or

omission where the act or omission was the result of the exercise

of the discretion vested in him , whether or not such discretion

was abused.” ( Ibid. )

There is no bright line test for when an act is discretionary

as opposed to ministerial. In Johnson v. State of California

(1968) 69 Cal.2d 782 ( Johnson ), our Supreme Court rejected a

literal interpretation of “ discretionary ”

— i.e., any act which can

be performed in more than one way

— in favor of a flexible

approach informed by the purposes of the immunity. ( Id. at

p. 789.) Government Code s ection 820.2 is intended to insulate

policymaking from judicial oversight. ( Johnson, at p. 793.)

“Courts and commentators have therefore centered their

attention on an assurance of judicial abstention in areas in which

the responsibility for basic policy decisions has been committed to

coordinate branches of government.” ( Ibid .)

To help identify what constitutes a “basic policy decision

, ”

the court offered the distinction “between the ‘planning’ and

‘operational’ levels of decision

- making.” ( Johnson

, supra

,

69 Cal.2d at p. 794.) Assessing whether a decision rises to the

level of “planning” exempt from judicial oversight “requires

sensitivity to the considerations that enter into it and an

appreciation of the limitations on the court’s ability to reexamine

it.” ( Ibid .) Courts must “find and isolate those areas of

quasi

- legislative policy

- making which are sufficiently sensitive to

justify a blanket rule that courts will not entertain a tort action

alleging that careless conduct contributed to the government13

decision.” ( Ibid .) These areas contrast with “routine duties

incident to .

. . normal operations,” which are ministerial in

nature. (See Barner v. Leeds (2000) 24 Cal.4th 676, 685.)

The burden lies with the person claiming immunity under

Government Code section 820.2 to prove “a policy decision,

consciously balancing risks and advantages, took place. The fact

that an employee normally engages in ‘discretionary activity’ is

irrelevant if, in a given case, the employee did not render a

considered decision. ” ( Johnson

, supra , 69 Cal.2d at p. 794, fn. 8.)

Plaintiff contends defendants’ course of conduct alleged in

the SAC does not qualify for discretionary immunity because it

implicates no policy making. D efendants did not balance the

risks and advantages of a particular course of action in

furtherance of a particular governmental objective; rather, they

acted reflexively to the prospect of losing their jobs and entirely

out of self

- interest.

Defendants argue they are immune because plaintiff

challenges their decisions “to impose restrictions on [plaintiff’s]

medical practice, suspend his employment, and initiate a peer

review proceeding.” They contend these are “basic policy

decisions” subject to immunity pursuant to caselaw that

“decisions of public employees to institute disciplinary

proceedings to terminate a plaintiff’s employment” are covered by

Government Code section 820.2.

We begin by noting plaintiff’s primary theory of harm is

that he can no longer work as a physician because defendants

failed to fulfill their mandatory obligations to update their

reports to the California Medical Board and the NPDB when the

internal proceedings against plaintiff were dismissed. He also

alleges the way defendants treated him after restricting his14

practice and suspending his employment violated T he

Regents ’ /Northridge Hospital Medical Center ’s Staff Bylaws and

The Regents ’ /UCLA Medical Group’s Fair Process Procedure.

While defendants identify a few allegations faulting the

imposition of restrictions, th ose allegations are incidental and

nonessential to the causes of action

— intentional infliction of

emotional distress and violations of his due process rights

— to

which the allegations relate. Plaintiff also supports these causes

of action with allegat ions of misconduct after the initial decisions

to discipline plaintiff, such as mishandling his hearing process,

falsifying evidence, and wrongfully and otherwise improperly

reporting his conduct.

W e agree with plaintiff that the SAC does not establish a

right to immunity under Government Code section 820.2.

Plaintiff alleges a comprehensive framework of policies, rules,

statutes, regulations and bylaws governed the hand l ing of the

patient’s complaint, through and including the reporting and

failure to file supplemental report s that are at the core of the

SAC. In Ramos

, supra, 4 Cal.3d at pages 693

– 695, our Supreme

Court denied immunity under section 820.2 for a public entity’s

implementation of public aid programs because the eligibility

criteria w ere comprehensively established by statute. The court

in Toney v. State of California (1976) 54 Cal.App.3d 779 used the

same rationale to find no section 820.2 immunity for a state

college against claims by a professor that the college mishandled

disciplinary proceedings against him: “The manner of carrying

out the d isciplinary proceedings against [the professor] pursuant

to [the] executive order [governing academic personnel

discipline], which carefully detailed all procedures to be followed,

is .

. . ministerial and operational rather than discretionary,15

including the failure to dismiss those proceedings and permitting

the proceedings to remain pending for some eight months.”

( Toney, at p. 793.)

D efendants fail to identify how their actions against

plaintiff amounted to “quasi

- legislative policy making.” To the

contrary, it appears from the SAC that their course of conduct

was heavily regulated by existing policies. “[T]here is no basis for

immun izing lower level decisions that merely implement a basic

policy already formulated.” ( Barner v. Leeds

, supra , 24 Cal.4th at

p. 685.)

Defendants rely on two cases as purportedly establishing

Government Code section 820.2 immunity for decisions to

institute disciplinary proceedings and terminate a plaintiff’s

employment. Even if plaintiff’s theory of liability were based on

the decisions to restrict his practice and suspend him, we would

still be unpersuaded that, on the face of the SAC, defendants

would be entitled to immunity under the authorities cited.

Defendants’ first case is Caldwell v. Montoya (1995)

10 Cal.4th 972 ( Caldwell ). Caldwell concerned claims against

members of a school board for allegedly terminating a school

superintendent in violation of the Fair Employment and Housing

Act. ( Caldwell, at p. 977.) The court found that immunity was

appropriate under Johnson ’s separation of powers rationale

because of statutes “plac [ing] the superintendent’s employment

within the sole authority and discretion of the [school] district’s

governing board.” ( Caldwell, at p. 982 .) Decisions concerning the

employm ent of school superintendents were “therefore ‘expressly

entrusted to a coordinate branch of government’ at its highest

level.” ( Ibid. ) Moreover, the court observed a superintendent is

“the district’s foremost appointed official, with primary16

responsibility for representing, guiding, and administering it.

[Citation.] The governing board’s choice about who should occupy

this crucial post is therefore a peculiarly sensitive and subjective

one, with fundamental policy implications.” ( Id . at p. 983.)

We agree with plaintiff that these considerations do not

apply to the relationship between him and defendants. There are

no allegations in the SAC that defendants have broad discretion

over the employment of physicians at The Regents or the UCLA

Medical Group. W e presume Dr. Hines, by signing a letter

restricting plaintiff’s practice and suspending his employment,

had authority to do so, but plaintiff alleges his authority is

subject to oversight by a hearing board with the power to override

his decision if prove n unwarranted. Unlike the school board

members in Caldwell , d efendants cite no statutes vesting them

with sole authority and discretion over plaintiff’s employment.

Further, unlike the plaintiff in Caldwell

, the SAC does not allege

plaintiff held a leadership position in implementing The Regent s ’

policies. The allegations are that plaintiff was a rank

- and

- file

surgeon working on annual contracts.

In Caldwell , it was also important to the court that the

complaint alleged “an actual, conscious and considered collective

policy decision to replace plaintiff as superintendent,” and

“admit[ted]

. . . no theory that the Board acted unconsciously or

failed to weigh pros and cons.” ( Caldwell

, supra , 10 Cal.4th at

p. 984.) Plaintiff alleges defendants did not take policy into

account when suspending him but rather acted exclusively in

self

- interest to preserve their own jobs.

Defendants’ second case is Kemmerer v. County of Fresno

(1988) 200 Cal.App.3d 1426 ( Kemmerer ), disapproved on another

ground in Quigley v. Garden Valley Fire Protection Dist. (2019)17

7 Cal.5th 798, 815, footnote 8. That case found government

employees immune from claims of a subordinate based on their

decision to initiate disciplinary proceedings against him,

resulting in his termination. The court held the decision to

initiate the pro ceedings was a policy decision because it was

“entirely within” the discretion of the defendant’s office and

“involve[d] the exercise of analysis and judgment as to what is

just and proper under the circumstances and is not a purely

ministerial act.” (

K emmerer , at p. 1438.)

Kemmerer is difficult to reconcile with our Supreme Court’s

opinion in Johnson . First, Kemmerer relied on the pre

- Johnson

decision in Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 448,

449 to deem “discretionary” actions requiring consideration of

“what is just and proper under the circumstances.” (See

Kemmerer

, supra

, 200 Cal.App.3d at pp. 1437, 1438.) This

interpretation of “discretionary” is no longer good law after

Johnson . (See Wheeler v. County of San Bernardino (1978)

76 Cal.App.3d 841, 849 [ Bur g dorf definition of discretion “no

longer a correct statement of the law”]; Sanborn v. Chronicle

Publishing Co . (1976) 18 Cal.3d 406, 414 [“The broad rule of

discretionary immunity suggested by .

. . Burgdorf must be

reexamined in the light of [ Johnson

, supra , 69 Cal.2d 782].”].)

Second, the Kemmerer court justified immunity out of an

outdated concern that liability for subjecting coworkers to

discipline would “bode ill for the continuing efficiency and morale

of the civil service system” and, without immunity, “[s]upervisors

within the civil service system would not be able to fulfill their

fu nction without the overhanging threat of legal action from

employees who become subject to discipline .” ( Kemmerer

, supra

, 200 Cal.App.3d at p. 1439.) But Johnson held “[ t ] he danger that18

public employees will be insufficiently zealous in their official

duties does not serve as a basis for immunity in California .”

( Johnson

, supra , 69 Cal.2d at p. 790.)

Whatever value Kemmerer may have, we find it is

distinguishable on its facts. In granting Government Code

section 820.2 immunity, the Kemmerer court emphasized that the

discipline followed a thorough investigation that uncovered

wrongdoing

, and the finding of wrongdoing was later validated by

a civil service commission that reviewed the matter. ( Kemmerer

,

supra , 200 Cal.App.3d at pp. 1439

– 1440.) While we acknowledge

that a decision need not be correct to be entitled to protection, the

Kemmerer facts indi cate a considered and informed decision to

discipline the plaintiff based on the governmental interests at

stake. Plaintiff alleges the discipline he faced was administered

with no such consideration.

For these reasons, we conclude the demurrer was not

properly sustained on the basis of Government Code section 820.2

immunity.

ii. Prosecutorial i mmunity u nder

Government Code section 821.6

Government Code s ection 821.6 immunizes a public

employee from liability for injuries “caused by his instituting or

prosecuting any judicial or administrative proceeding within the

scope of his employment, even if he acts maliciously and without

probable cause.” ( Ibid. )

The statute applies to “claims of injury arising from a

public employee’s initiation or prosecution of an official

proceeding, whether the act was allegedly done with malice and

without probable cause, as required for a malicious prosecution

action, or was allegedly tortious for other reasons.” ( Leon v.19

County of Riverside (2023) 14 Cal.5th 910, 929.) Though

traditionally associated with immunity from claims for malicious

prosecution, it also applies to “claims of injury based on tortious

or wrongful prosecution. The immunity is narrow in the sense

that it applies only if the conduct that allegedly caused the

plaintiff’s injuries was the institution or prosecution of an official

proceeding. B ut this immunity is broad in the sense that it

applies to every such tort claim, whether formally labeled as a

cl aim for malicious prosecution or not.” ( Id . at p. 922.)

Defendants claim they are immune from liability for the

initiation and prosecution of the administrative proceeding

regarding the restrictions they imposed on his medical practice.

Plaintiff does not dispute this.

However, plaintiff contends “the crux” of his complaint was

that defendants “failed and refused to provide the mandatory

corrections to the California Medical Board and the [NPDB].”

The SAC alleges this failure took place after the administrative

proceedings against him had been dismissed. We agree with

plaintiff that no immunity under Government Code section 821.6

applies to harms resulting from defendants’ postdismissal

conduct. (Cf. Sullivan v. County of Los Angeles (1974) 12 Cal.3d

710, 719 [ § 821.6 immunity applies to acts to institute and

prosecute; not those taken after conclusion of proceedings ].)

iii. Misrepresentation i mmunity u nder

Government Code section 822.2

Government Code s ection 822.2 immunizes a public

employee from liability for injuries “caused by his

misrepresentation, whether or not such misrepresentation be

negligent or intentional, unless he is guilty of actual fraud,

corruption or actual malice.” ( Ibid. ) Misrepresentation20

immunity under section 822.2 can not apply as a matter of law to

any of plaintiff’s causes of action other than intentional

misrepresentation. (See City of Costa Mesa v. D’Alessio

Investments, LLC (2013) 214 Cal.App.4th 358, 383 [ immunity

limited to common law deceit torts; does not extend to causes of

action based on allegations defendant caused harm by

“ provid[ing] inaccurate information to third parties ” ].) We need

not consider whether defendants are entitled to immunity from

plaintiff’s intentional misrepresentation cause of action because,

as discussed post

, the underlyi ng misrepresentations cannot

support a cause of action as a matter of law.

b. Causes of Action

i. First cause of action (failure to perform

mandatory duties)

Government Code section 815.6 provides: “Where a public

entity is under a mandatory duty imposed by an enactment that

is designed to protect against the risk of a particular kind of

injury, the public entity is liable for an injury of that kind

proximately caused by its failure to discharge the duty unless the

public entity establishes that it exercised reasonable diligence to

discharge the duty.” ( Ibid .)

Defendants argue they cannot be liable under this

provision because neither is a “ public entity.” Plaintiff objects

that they did not raise this argument below. However, “[w] e can

reach a ground for demurrer that was not raised below if it

presents a pure question of law.” ( Woods v. Fox Broadcasting

Sub., Inc. (2005) 129 Cal.App.4th 344, 357.)

Government Code s ection 815.6, by its plain language, does

not impose liability on individuals like Drs. Hines and Song.

“Public entity” is defined for purposes of the Government Claims21

Act (Gov. Code

, §§ 810

– 996.6) as including “the state, the Regents

of the University of California, the Trustees of the California

State University and the California State University, a county,

city, district, public authority, public agency, and any other

political subdivision or public corporation in the State.” (§ 811.2.)

“Public employee,” on the other hand, is defined as “ an employee

of a public entity.” (§ 811.4.) The act “clearly differentiates

between entity liability (Gov. Code, § 815 et seq.) and employee

liability (Gov. Code, § 820 et seq.).” ( Bradford v. State of

California (1973) 36 Cal.App.3d 16, 19.) Section 815.6 is within

the provisions addressing public entity liability and speaks only

of liability of public entities. It cannot impose liability on

individual defendants.

The cases plaintiff cites for the proposition that “[a]n action

under Government Code section 815.6 may include public

employees” does not persuade us otherwise. None of the cases

hold s a public employee may be liable under section 815.6

. “A

case is not authority for a proposition not even mentioned, much

less discussed, in it.” ( Association for Los Angeles Deputy Sheriffs

v. County of Los Angeles (2021) 60 Cal.App.5th 327, 342.)

The trial court correctly sustained the demurrer to this

cause of action without leave to amend.

ii. Second c ause of a ction (intentional

misrepresentation)

The SAC alleges that Drs. Hines and Song made numerous

misrepresentations in the letters that Dr. Hines sent to plaintiff

in February 2017 and August 2017. These allegations do not

state a cause of action for intentional misrepresentation

, and

plaintiff fails to satisfy his burden of showing a reasonable

possibility he could amend to cure his pleading deficiencies

.22 The elements of intentional misrepresentation are : “(1) a

misrepresentation, (2) knowledge of falsity, (3) intent to induce

reliance, (4) actual and justifiable reliance, and (5) resulting

damage.” ( Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217,

230

– 231.) “Actual reliance occurs when a misrepresentation is

‘ “an immediate cause of [a plaintiff’s] conduct, which alters his

legal relations,” ’ and when, absent such representation

, ‘ “he

would not, in all reasonable probability, have entered into the

contract or other transaction.” ’ ” ( Engalla v. Permanente Medical

Group, Inc

. (1997) 15 Cal.4th 951, 976 ( Engalla ).)

The trial court found the allegations of actual and

justifiable reliance lacking from the SAC. In his opening brief,

the only citation plaintiff provides to an allegation of reasonable

reliance is paragraph 120 of the SAC, where plaintiff alleges

“ [plaintiff] reasonably relied on Hines’[s] and Song’s

representations.” In conducting our de novo review, “we must

disregard any ‘contentions, deductions or conclusions of fact or

law alleged

. . . .’ ” ( People ex rel. Gallegos v. Pacific Lumber Co

. (2008) 158 Cal.App.4th 950, 957.) Plaintiff’s citation to a single

boilerplate allegation does not show error

.

On reply, plaintiff asserts he is excused from alleging

reliance because he alleged that the misrepresentations were

material. For this proposition, he relies on Engalla

, supra

,

15 Cal.4th 951 for the proposition that “a presumption, or at least

an inference, of reliance arises wherever there is a showing that a

misrepresentation was material.” ( Id

. at p. 97 7 .) A

misrepresentation is material if “ ‘a reasonable man would attach

importance to its existence or nonexistence in determining his

choice of action in the transaction in qu estion.’ ” ( Ibid .) Plaintiff

fails to identify which misrepresentations he contends were23

material. The SAC’s primary allegations supporting this cause of

action are purported misrepresentations made to plaintiff about

plaintiff

— that his encounter with the patient did not comply with

the standard of care; that he was subjected to restrictions in his

practice at the time of the patient’s complaint; that he agreed to

those restrictions; and that he admitted proposing a pelvic and

rectal exam to the patient. To the extent these statements were

false, plaintiff necessarily knew this when they were made as

they were about things that he did or experienced firsthand.

Moreover, plaintiff does not identify how these

misrepresentations might have affected his course of action in a

transaction.

Plaintiff offers in his reply that he could amend his

allegations to show he relied on defendants’ representations to

him that they would comply with their own obligations and

generally treat him fairly. Plaintiff does not explain

, and it is

unclear to us, what he might have done in reliance on these

purported misrepresentations. ( See Rakestraw v. California

Physicians’ Service (2000) 81 Cal.App.4th 39

, 4 3 ( Rakestraw ) [ to

show entitlement to leave to amend “a plaintiff ‘must show in

what manner he can amend his complaint and how that

amendment will change the legal effect of his pleading’ ” ].)

Finally, plaintiff contends he could amend to allege

defendants told him there was no finding he failed to meet the

standard of care in his interaction with the patient

, and that no

action would be taken against him

. As a result, plaintiff asserts,

he made no investigation into the patient’s complaint

, took no

steps to protect himself

, and entered into a new employment

agreement with The Regents in November 2016. But his existing24

allegations show these proposed allegations about pre

- November

2016 representations are not actionable misrepresentations.

“To maintain an action for deceit based on a false promise,

one must specifically allege

. . . the promisor did not intend to

perform at the time he or she made the promise and that it was

intended to deceive or induce the promisee to do or not do a

particular thing.” ( Tarmann v. State Farm Mut. Auto. Ins. Co

. (1991) 2 Cal.App.4th 153, 159.) Plaintiff alleges there was no

finding of substandard care until defendants falsely asserted

there was in defendant Hines’s February 2017 letter, prompted

by the patient’s police report filed earlier that month. Plaintiff

alleges no further action would have been taken against him but

for the patient’s February 2017 police report. He says defendants

“had already determined six to seven months earlier that there

was no basis for taking any action against [plaintiff]” and that

only “the patient filing a police repor t[] prompt[ed] [defendants]

to corruptly and maliciously move forward to ‘scapegoat’

[plaintiff] and do whatever they could to ensure that they were

not accused of mishandling the patient complaint and save their

own jobs.” Thus, any pre

- February 2017 sta tement that there

was no finding plaintiff failed to meet the standard of care in his

interaction with the patient

, and that no action would be taken

against him

, could not have been false when made

. To the

contrary, p laintiff’s allegations are that defendants believed their

statements were true when they made them.

Plaintiff fails to show the trial court abused its discretion in

denying leave to amend. (See Rakestraw

, supra , 81 Cal.App.4th

at p. 44.)25 iii. Fourth and f ifth c auses of a ction

(intentional interference with contractual

relations and prospective economic

relations)

These causes of action are predicated on defendants’

alleged interference with plaintiff’s relationship with The

Regents

— the counterparty to plaintiff’s employment contract.

D efendants argue they cannot be liable under these theories

because they are not “strangers” to the relationship. In support,

they cite plaintiff’s allegations that defendants acted as “agents”

of The Regents

, and they cite authority that agents of contract

parties cannot be liable for interference. ( Redfearn v. Trader

Joe’s Co. (2018) 20 Cal.App.5th 989, 999

– 1000, disapproved on

another ground in Ixchel Pharma, LLC v. Biogen, Inc. (2020)

9 Cal.5th 1130, 1148.)

Plaintiff responds that his allegation defendants acted

“individually, and as employees, agents, and/or servants” was

“generalized and in

- the

- alternative” and, in reality, defendants

were just “employees of The Regents .

. . and nothing further.”

He then explains that “[a]gency and employment are distinct

relationships[, and] [o]ne may be an employee but not an agent of

the employer with regard to any given transaction. [ ( ] Wallace v.

Sinclair (1952) 114 Cal.App.2d 220, 230. [ ) ] ” He asserts, without

citati on to the SAC, that defendants “had no role in the

contractual transaction between [plaintiff] and The Regents and

had no authority pursuant to the contract to represent T he

R egents .”

As a preliminary matter, plaintiff’s efforts to argue

defendants were non

- agent employees with “no role” in plaintiff’s

contractual relationship with The Regents is belied by the SAC.26

For example, in alleging his employment contract was renewed in

2016, plaintiff says it was The Regents and defendants who

approved it. He also alleged it was The Regents and

“ [d] efendants ” who threatened to fire him. As a public

corporation (see Gomez v. Regents of University of

California (2021) 63 Cal.App.5th 386, 399), The Regents can act

only through its agents (see Arnold v. San Jose (1889) 81 Cal.

618, 619)

. As no other individuals are alleged to have approved

plaintiff’s employment contract or th reatened to terminate it, it is

difficult to see how defendants did not act as The Regents ’ agents

by these allegations.

In any event, whether defendants were “agents” or

“employees” is a distinction without a difference for these

purposes. In Shoemaker v. Myers (1990) 52 Cal.3d 1, our

Supreme Court observed “that corporate agents and employees

acting for and on behalf of a corporation cannot be held liable for

inducing a breach of the corporation’s contract.” ( Id. at p. 24,

italics added.) In that case, the plaintiff sought recovery from his

“supervisors: agents of the employer who are vested with the

power to act for th e employer (rightly or wrongly) in terminating

plaintiff’s employment. For the purposes of [his] cause of action

[for interference with prospective economic advantage], then,

these defendants stand in the place of the employer, because the

employer

— the ot her party to the supposed contract

— cannot act

except through such agent s

. [¶] Thus, there is no viable

‘inducement of breach of contract’ or ‘interference with economic

advantage’ that is distinguishable from a cause of action for

breach of contract.” ( Id . at p. 25.)

T here was no error in the trial court denying plaintiff leave

to amend these causes of action

.27 iv. Sixth c ause of a ction ( i ntentional

i nfliction of e motional d istress)

T he trial court relied exclusively on defendants’ claimed

immunities in sustaining their demurrer to plaintiff’s cause of

action for intentional infliction of emotional distress. In light of

our discussion about the claimed immunities, ante

, the question

before us is whether, disregarding his allegations about initiating

and prosecuting the administrative hearing against him, 1

plaintiff adequately pled the elements of the cause of action. We

conclude he did.

To state a cause of action for intentional infliction of

emotional distress, a plaintiff must allege : “ ‘ “(1) extreme and

outrageous conduct by the defendant with the intention of

causing, or reckless disregard of the probability of causing,

emotional distress; (2) the plaintiff ’ s suffering severe or extreme

emotional distress; and (3) actual and proximate causation of the

emotional distress by the defendant’s outrageous conduct. . . .”

Conduct to be outrageous must be so extreme as to exceed all

bounds of that usually tolerated in a civilized community.’

[Citation.] The defendant must have engaged in ‘conduct

intended to inflict injury or engaged in with the realization that

1 At oral argument, counsel for defendants suggested the

allegations supporting plaintiff’s cause of action for intentional

infliction of emotional distress were covered by prosecutorial

immunity

, Government Code section 821.6

. We disagree

. Plaintiff’s allegations are that defendants ’ investigation into the

patient’s complaint , if any, concluded not later than June 2016

and, following their February 2017 letter, they actively sought to

deny plaintiff a bona fide administrative proceeding even after he

demanded one

. In considering this cause of action, we rely on

allegations about defendants ’ conduct in the intervening period.28

injury will result.’ ” ( Christensen v. Superior Court (1991)

54 Cal.3d 868, 903.)

Here, the only issue in dispute is whether plaintiff pled

conduct that is “outrageous.” Conduct is “extreme and

outrageous” when it is “ ‘so extreme as to exceed all bounds of

that usually tolerated in a civilized community.’ ” ( Christensen v.

Superior Court

, supra , 54 Cal.3d at p. 903.) “ ‘ “[T]he extreme

and outrageous character of the conduct may arise from an abuse

by the actor of a position, or a relation with the other, which gives

him actual or apparent authority over the other, or power to

affect his intere sts.” ’ ” ( McDaniel v. Gile (1991) 230 Cal.App.3d

363, 372.) Whether conduct is “outrageous” is ordinarily a

question of fact. ( So v. Shin (2013) 212 Cal.App.4th 652, 672.)

Defendants argue their actions amount to mere “personnel

management decisions.” For this proposition, they rely on

Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55,

which held that “ [a] simple pleading of personnel management

activity is insufficient to support a claim of intentional infliction

of emotional distress, even if improper motivation is alleged.”

( Id . at p. 80.) J

anken does not support the proposition that

s uperiors and employers who make employment decisions are

in capable of engaging in outrageous conduct.

Other cases have held an employee stated a cause of action

for intentional infliction of emotional distress against the

employer and certain supervisors. ( See , e.g., Lagies v.

Copley (1980) 110 Cal.App.3d 958, 974 [ the defendants

intentionally humiliated the plaintiff

, singled him out for denial

of merit raises, demoted and blackballed him, thus precluding

other employment ]

, disapproved on another ground in Brown v.

Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738 ; see also Rulon

-29

Miller v. International Business Machines Corp

. (1984)

162 Cal.App.3d 241 [supervisor was deceitful in claiming recent

discovery of employee’s personal relationship with a competitor’s

employee, acted in violation of company policy, and

condescendingly offered and then rescinded the chance to choose

between the relationship and the employee’s job ] , overruled on

another ground in Guz v. Bechtel National, Inc . (2000) 24 Cal.4th

317, 351 .) The Rulon

- Miller court found the “statements and

conduct would under any reasoned view tend to humiliate and

degrade” the employee, and communicated to the employee she

was “powerless” in the situation. ( Rulon

- Miller, at p. 255.) It

considered “such powerlessness [to be] one of the most

debilitating kinds of human oppre ssion.” ( Ibid .)

Plaintiff alleges defendants lied to him and The Regents

when they belatedly assessed his interaction with the patient as

not within the standard of care. He alleges they did this because

they were afraid of losing their jobs when the patient’s police

report might have suggested to defendants’ superiors her

concerns warranted more attention than defendants had given

them months earlier. To carry out their plan of “scapegoat[ing]”

plaintiff, defendants falsely asserted plaintiff had been subject,

and agreed, to res trictions which he had not, and made

admissions which he had not. They also asserted the patient

interaction was reportable to the California Medical Board. In

sum, p laintiff’s superiors with direct authority over his

employment were allegedly gaslighting him and threatening

actions that would adversely affect his ability to continue in his

profession. The sense of powerlessness this might impart would

have been amplified by de fendants’ alleged attempt to deny

plaintiff the administrative hearing to whic h he was entitled,30

and, once that hearing was dismissed, refusal to file corrective

reports with the California Medical Board and NPDB. Whether

this conduct is outrageous is a question of fact.

The trial court erred by sustaining defendants’ demurrer to

plaintiff’s cause of action for intentional infliction of emotional

distress.

v. Seventh c ause of a ction (deprivation of

due process rights ; 42 U.S.C. § 1983)

P laintiff ’s cause of action for deprivation of due process

rights is based on defendants “violating his inalienable and

fundamental rights to pursue employment as a physician and

surgeon and/or to make a contract to work as a physician and

surgeon.” They did this , plaintiff explains, by “fail[ing] and

refus[ing] to file the mandatory supplemental reports correcting

their false [Business and Professions Code section] 805 Reports.”

A cause of action under section 1983 of title 42 of the

United States Code exists where a person acting under color of

state law violates “ ‘a right secured by the Constitution and laws

of the United States.’ ” ( Arce v. Childrens Hospital Los Ang e les

(2012) 211 Cal.App.4th 1455, 1472.) We “ ‘ “look to federal law to

determine what conduct will support an action under

section 1983.” ’ ” ( Ibid. ) Plaintiff here relies on the Fourteenth

Amendment of the United States Constitution, which prohibits

states fro m “depriv[ing] any person of life, liberty, or property,

without due process of law.”

One liberty interest embraced by the Fourteenth

Amendment is an individual’s right to pursue an occupation or

profession of his choosing. ( Dittman v. California (9th Cir. 1999)

191 F.3d 1020, 1029.) A liberty interest is implicated in the

employment termination context where the government makes31

stigmatizing statements that have the effect of completely

excluding the terminated employee from his chosen profession.

( Blantz v. Cal. Dept

. of Correction s & Rehabilitation (9th Cir.

2013) 727 F.3d 917, 925.) S tatements suggesting only

incompetence or lack of ability are inadequately stigmatizing to

implicate a liberty interest. ( Id. at p. 925, fn. 6.) Further,

stigmatizing statements must be publicized by the employer to

implicate a liberty interest. ( Perez v. City of Roseville (9th Cir.

2019) 926 F .3d 511, 523.)

Defendants contend plaintiff failed to plead adequately

stigmatizing statements to support his due process cause of

action. The SAC alleges the Business and Professions Code

section 805 report forming the basis of the cause of action stated

plaintiff was subject to restrictions “ ‘for a medical disciplinary

cause or reason.’ ” Similarly, the report to the NPDB reflected

plaintiff had resigned in relation to an investigation into his

“professional competence or conduct.” These statements go only

to plaintiff’s competence as a practitioner of medicine.

Plaintiff responds that he pled defendants falsely accused

him of “conduct[ing] unnecessary breast and rectal exams on a

patient, in essence accusing him of assault and battery, as well as

perverse and/or abusive conduct toward a patient.” Plaintiff fails

to point to allegations that defendants publicized these

statements. Plaintiff proposes no amendment that would cure

this pleading deficiency. Plaintiff therefore fails to show the trial

court erred in sustaining the demurrer to his cause of action

with out leave to amend . (Cf. Federal Deposit Ins. Corp. v.

Henderson (9th Cir. 1991) 940 F.2d 465, 477 [“[f]atal to [the

plaintiff’s] claim that [the defendant] deprived him of a protected

liberty interest is .

. . that none of the public pronouncements for32

which [the defendant] was responsible can be said to impugn [the

plaintiff’s] morality or question his honesty” (italics added)].)

vi. Eighth c ause of a ction (use of fabricated

evidence ; 42 U.S.C. § 1983)

A cause of action for use of fabricated evidence under

section 1983 of title 42 of the United States Code arises when the

defendant provides evidence, knowing it to be false, causing the

deprivation of the plaintiff’s life, liberty, or property.

(CACI No. 3052; Costanich v. Dept

. of Soc. & Health Servs . (9th

Cir. 2009) 627 F.3d 1101, 1110 ( Costanich ).) To establish the

causation element, “ the plaintiff must show that (a) the act was

the cause in fact of the deprivation of [the protected interest],

meaning that the injury would not have occurred in the absence

of the conduct; and (b) the act was the ‘proximate cause’ or ‘legal

cause’ of the injury, meaning that the injury is of a type that a

reasonable person would see as a likely result of the conduct in

question.” ( Spencer v. Peters (9th Cir. 2017) 857 F.3d 789, 798.)

Citing Costanich , plaintiff contends he adequately alleged

t his cause of action because he alleged fabrication of evidence

.

Plaintiff misreads Costanich. For the cause of action to arise, the

fabrication must “result in the deprivation of protected liberty or

property interests .

. . .” ( Costanich

, supra , 627 F.3d at p. 1115 .)

In Costanich , the plaintiff alleged social workers fabricated

evidence, resulting in her loss of a property interest in her foster

care license and a liberty interest in the guardianship of her

foster children. ( Id. at p. 1110.) The act of fabrication is not

independently actionable without the deprivation of the protected

substantive right. ( Ibid. ; s ee also Zahrey v. Coffey (2d Cir. 2000)

221 F.3d 342, 348 [“ The manufacture of false evidence, ‘in and of33

itself,’ .

. . does not impair anyone’s liberty , and therefore does not

impair anyone’s constitutional right.”] )

Plaintiff alleges defendants fabricated evidence in letters

they sent him. He then alleges this fabrication resulted in loss of

“his employment, past and future.” Plaintiff does not argue he

had a property interest in his past employment with The

Regents. Indeed, he appears to concede he did not. The only

constitutionally protected interest he claims relating to his

employment is a liberty interest in his ability to practice

medicine elsewhere . We have already determined this liberty

interest was not implicated by the public reports made to the

California Medical Board and NPDB. The allegations defendants

allegedly made privately to plaintiff likewise do not implicate his

ability to practice medicine.

Thus, like the trial court did, we conclude plaintiff’s failure

to establish loss of a federally protected interest defeats his cause

of action for fabrication of evidence. And because plaintiff does

not offer curative amendments to establish loss of a protected

interest, he fails to show the trial court abused its discretion in

denying him leave to amend.

vii. Ninth c ause of a ction ( misrepresentation

preventing former employee from

obtaining employment)

Labor Code section 1050 provides: “Any person, or agent or

officer thereof, who, after having discharged an employee from

the service of such person or after an employee has voluntarily

left such service, by any misrepresentation prevents or attempts

to prevent the former employee from obt aining employment, is

guilty of a misdemeanor.” S ection 1054 provides for civil liability

(treble damages) for violations of section 1050. S ection 105034

applies only to misrepresentations made to prospective employers

other than the defendant. ( Kelly v. General Telephone Co . (1982)

136 Cal.App.3d 278, 288.)

Plaintiff’s primary allegations in support of this cause of

action are that defendants failed to file corrective reports with

the California Medical Board and NPDB. He also alleges

defendant s have “misrepresented to prospective employers of

[plaintiff] that the accusations against him are valid and remain

in effect.”

The trial court dismissed the cause of action because the

SAC “lack[ed] facts regarding any report to an actual third party

employer.” On appeal, plaintiff points to his allegation that

defendants did make misrepresentations to prospective

employers. Def

endants respond that the SAC lacks allegations

that any misrepresentation by either defendant prevented

plaintiff from obtaining employment with any particular

employer.

N othing on the face of the SAC shows plaintiff cannot add

factual allegations and prove this cause of action

. P laintiff

should have the opportunity to amend this cause of action to

allege specific prospective employers to whom defendants

allegedly communicated derogatory information about plaintiff

and how such communication was intended to or did prevent

plaintiff from obtaining employment . (See Aubry

, supra

,

2 Cal.4th at pp. 970

– 971 [leave to amend should be liberally

granted where court perceives reaso nabl e possibility defect can

be cured by amendment].)35 viii. Tenth and e leventh c auses of a ction

(negligence and negligence per se)

Plaintiff bases these cause s of action on defendants’ alleged

failure to make supplemental filings with the California Medical

Board and the NPDB and to comply with internal procedures

relating to his administrative hearing

. The trial court concluded

the SAC “sufficiently articulate[d] negligence” based on the filing

failures but found defendants were entitled to immunity.

On appeal, plaintiff contends defendants’ immunities do

not apply to this cause of action. As discussed ante , we agree to

the extent plaintiff’s causes of action do not rely on allegations

concerning the conduct of the hearing, for which plaintiff does not

dispute defendants are entitled to immunity under Government

Code section 821.6. Plaintiff contends he otherwise states cause s

of action for negligence and negligence per se

. As a preliminary matter, negligence per se is not a cause of

action separate and apart from the cause of action of negligence.

“ Negligence per se is an evidentiary doctrine, rather than an

independent cause of action. ” ( Jones v. Awad (2019)

39 Cal.App.5th 1200, 1210 .) On this basis, we affirm the trial

court’s order on plaintiff’s negligence per se cause of action,

without prejudice to plaintiff’s ability to establish negligence by

resort to the doctrine of negligence per se , codified at Evidence

Code se ction 669

. Turning to substance, w e agree with the trial court that

plaintiff adequately alleged negligence based on defendants’

breach of their duty to file corrective reports with the California

Medical Board and the NPDB.

A cause of action for negligence arises when a defendant

(1) has a legal duty to use due care; (2) breaches that duty; and36

(3) such breach is the proximate or legal cause of injury to the

plaintiff. ( Ladd v. County of San Mateo (1996) 12 Cal.4th 913,

917.) Evidence Code section 669 creates a presumption that the

defendant failed to exercise due care where: “(1) He violated a

statute, ordinance, or regulation of a public entity; [¶] (2) The

violation proximately caused death or injury to person or

property; [¶] (3) The death or injury resulted from an occurrence

of the nature which the statute, ordinance, or regulation wa s

designed to prevent; and [¶] (4) The person suffering the death

or the injury to his person or property was one of the class of

persons for whose protection the statute, ordinance, or regulation

was adopted.” ( § 669.)

Defendants contend plaintiff cannot establish their

negligence in reliance on the physician reporting schem es

embodied in Business and Professions Code section 805 and

regulations pertaining to the NPDB as these schemes were

designed to protect patients, not physicians. Any benefit to

physicians

, defendants argue, is therefore incidental. (See

Bologna v. City and County of San Francisco (2011)

192 Cal.App.4th 429, 439

– 440 [“ a benefit that is incidental to the

enactment’s purpose does not support tort liability under .

. .

Evidence Code section 669”].)

It is undoubtedly true that the overall purpose of the

reporting schem es is to protect the public from unqualified

physicians . (See Stiger v. Flippin (2011) 201 Cal.App.4th 646,

655

– 656 ; 42 U.S.C. § 11101 .) However, it is also clear these

schem es contain protections for physicians about whom

derogatory information has been reported. Business and

Professions Code section 805, subdivision (f)(3) requires filing of a

supplemental report after the subject of a section 805 report “is37

deemed to have satisfied any terms, conditions, or sanctions

imposed as disciplinary action by the reporting peer review body.”

45 Code of Federal Regulations part 60.6 (a) similarly requires a

person or entity who reported incorrect or incomplete information

to the NPDB to file a correction to any “errors or omissions

, ” and

to update reports when a reported action has been reversed.

While correcting or updating negative disclosures about a

physician may have an incremental public benefit by increasing

the number of qualified doctors available to provide care, the

primary benefit inures to the physician whose ability to practice

may be severely curtailed by an erroneous or outdated filing.

Defendants argue they had no duty to correct the prior

filings under Business and Professions Code section 805 or

45 Code of Federal Regulations part 60.6 because the

supplemental or corrective filing conditions were unmet as a

matter of law . Taking plaintiff’s allegations as true, we cannot

agree. Plaintiff alleges defendants reported to the California

Medical Board that he was subject to restriction s in his practice

. He alleges these sanctions were based on allegations against him

relating to the patie nt’s complaint. He further alleges that, in

terminating the administrative hearing against him,

“ [ d ] efendants agreed to dismiss the allegations against [him].”

As the sanctions imposed against plaintiff were based on those

allegations, we find it difficult to understand how plaintiff was

not “ deemed to have satisfied” the sanctions against him when

the allegations were dismissed. ( § 805, subd. (f)(3).) If the

allegations were dismissed, there could be no basis for

continuation of the restrictions

. Likewise, t he NPDB report references “restrictions up on

[plaintiff’s] practice.” Reporting persons must report “ reversal ” of38

a previously reported “professional review action”

— which

includes an action of a health care entity taken through

professional review activity based on the subject’s professional

competence or conduct implicating patient welfare which

“adversely affects or may adversely affect the clinical privileges”

of the subject. (4 5 C

. F

. R

. § 60.3.) To the extent defendants

dismissed the allegations against plaintiff , they should have

reported there were no longer grounds for restrictions. (Cf. Van

Boven v. Freshour (Tex. 2022) 659 S.W.3d 396, 403

– 404 [failure

to prove misconduct against physician rendered reported

sanctions against him “error” such that supplemental reporting

to NPDB was necessary].)

T he trial court erred by sustaining defendants’ demurrer to

the negligence cause of action.

DISPOSITION

The judgment is affirmed in part and reversed in part

. The

trial court’s order sustaining defendants’ demurrer to the entire

SAC is vacated. The trial court is instructed to enter a new order

(i) sustaining, without leave to amend, defendants’ demurrer as

to plaintiff

’ s causes of action for failure to perform mandatory

duties, intentional misrepresentation, intentional interference

with contractual relations, intentional interference with

prospective economic relations, deprivation of due process rights,

use of fabricated evidence, and negligence per se (without

prejudice to plaintiff’s right to rely on the evidentiary doctrine of

negligence per se in pursuing his negligence cause of action) ;

(ii) sustaining, with leave to amend, defendants’ demurrer as to

plaintiff’s cause of action for misrepresentation preventing former

employee from obtaining employment; and (iii) overruling

defendants’ demurrer to plaintiff’s causes of action for intenti onal39

infliction of emotional distress and negligence. Plaintiff to

recover costs.

GRIMES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.