Case Number:?BC699596????Hearing Date:?July 12, 2018????Dept:?85
Frank M. Ifediba v. California Board of Registered Nursing, et al., BC 699596
Tentative decision on application for preliminary injunction:??denied
Plaintiff Frank M. Ifediba (?Ifediba?) applies for a preliminary injunction against Defendants California Board of Registered Nursing (?Board?) and the Board?s Executive Officer, Joseph L. Morris (?Morris?), to stay the probation imposed on Ifediba.
The court has read and considered the moving papers, opposition, and reply,?and renders the following tentative decision.
- Statement of the Case
Plaintiff Ifediba commenced this proceeding on April 13, 2018, alleging causes of action for injunctive relief and alternative writ of mandate.??The verified Complaint alleges in pertinent part as follows.
????????????Ifediba is a registered nurse (?RN?) who owns a home health agency (?HHA?).??On March 30, 2016, Ifediba plead?nolo contendere?to one misdemeanor count of driving under the influence of alcohol (?DUI?) and was convicted.??On September 15, 2016, the Board filed an accusation against Ifediba because of this conviction.
????????????On September 15, 2017, Ifediba and the Board entered into a Stipulated Settlement in which Ifediba was required to receive physical and mental examinations confirming his safety to practice nursing.??If both examiners determined that Ifediba did not possess problems with drugs or alcohol dependence which might reasonably affect his safe practice of nursing, then the Board would subject Ifediba to a public letter of reprimand and costs.??If an examiner determined Ifediba possessed a dependence problem, then his nursing license would be revoked and the revocation stayed pending the completion of a three year probation under certain terms and conditions.??On December 29, 2017, the Board formally approved this stipulated settlement.
In March 2018, Dr. Mark Honzel (?Honzel?), whom the Board designated as Ifediba?s examiner, issued his report.??Honzel?s report contained a glowing appraisal of Ifediba.??He found,?inter alia, no evidence of any ongoing issues related to alcohol or drug abuse.??He concluded that Ifediba ?is fully safe to perform the functions of a registered nurse in a safe and competent manner.???Nevertheless, Honzel recommended probationary terms for Ifediba solely based on the fact that Ifediba was convicted of the DUI on March 30, 2016 and had been convicted of a DUI many years earlier.
On March 13, 2018, the Board informed Ifediba that, pursuant to the examination, the Board was placing Ifediba?s RN license on probation for three years effective immediately.
On April 4, 2018, Ifediba?s counsel sent a letter to the Board explaining that the imposition of probation violated the Stipulated Settlement.??To date, the Board has ignored the letter.
- Course of Proceedings
On May 7, 2018, the court granted Ifediba?s?ex parte?application for a temporary restraining order (?TRO?) and order to show cause (?OSC?) re: preliminary injunction restraining the decision that placed Ifediba on probation.??The restraint was conditioned on Ifediba not using alcohol under any circumstances.??The court also ruled that the restraint would dissolve should Honzel issue a report finding that Ifediba is dependent on alcohol or at risk.
Proofs of service on file shows that Defendants were served by substitute service with the Summons and Complaint on April 25, 2018 and were served by mail with the court?s order on May 21, 2018.
- Applicable Law
- Preliminary Injunction
An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.??CCP ?525.??An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act.??See?Comfort v. Comfort, (1941) 17 Cal.2d 736, 741.?McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.??It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right.??Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.
The purpose of a preliminary injunction is to preserve the?status quo?pending final resolution upon a trial.??See?Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536.?Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316;?Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623.??The?status quo?has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy.??Voorhies v. Greene?(1983) 139 Cal.App.3d 989, 995, quoting?United Railroads v. Superior Court,?(1916) 172 Cal. 80, 87.?14859 Moorpark Homeowner?s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.
A preliminary injunction is issued after hearing on a noticed motion.??The complaint normally must plead injunctive relief.??CCP ?526(a)(1)-(2).??Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief.??See e.g.?Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150.??Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts.??See?CCP ?527(a).??For this reason, a pleading alone rarely suffices.??Weil & Brown,?California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007).??The burden of proof is on the plaintiff as moving party.??O?Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.
A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law.??CCP ?526(4);?Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307;?Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.??The concept of ?inadequacy of the legal remedy? or ?inadequacy of damages? dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.??Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.
In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP ?526(a)(1)), and (2) a balancing of the ?irreparable harm? that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.??CCP ?526(a)(2);?14859 Moorpark Homeowner?s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402;?Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283;?Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446;?Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636.??Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief.??Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304.??The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.?Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.
A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction.??See?CCP ?529(a);?City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.
- Statement of Facts
- Plaintiff?s Evidence
On January 5, 2000, the Board placed Ifediba?s RN license on probation for three years because Ifediba was convicted of recklessly driving while under the influence.??Fenton Decl. Ex. D, pp. 1, 5.??On August 7, 2003, Ifediba successfully completed his probation.?Fenton Decl. Ex. D, p.1.
In 2008, Ifediba founded Allwell Medical Services (?Allwell?), a duly-licensed HHA with 20 employees that provides nursing services for about 25 patients.??Ifediba Decl. ?? 2, 4.??Ifediba presently owns 70% of Allwell and holds the position of Director of Nursing.??Id.
On May 27, 2014, Inglewood Police Department officers observed Ifediba driving without headlights at night and conducted a traffic stop.??Compl. Ex. 1.??The officers observed that Ifediba had watery and glassy eyes and slurred speech and that his clothing and person emitted an alcoholic odor.??Id.??Ifediba submitted to a Preliminary Alcohol Screening (?PAS?) test yielding a blood alcohol content (?BAC?) of 0.10% and 0.09%.??Id.
On March 30, 2016, Ifediba pled?nolo contendere?and was convicted of one misdemeanor count of violating Vehicle Code section 23103 (reckless driving) in?People v. Maduka Frank Ifediba, LASC No. 51G02704.??Compl. Ex. 1.??The court suspended sentence and placed Ifediba on 24-months summary probation with terms and conditions and ordered him to serve 11 days in Los Angeles County Jail, complete a three-month first offender alcohol program, and pay fines.??Id.
- Stipulated Settlement
On September 15, 2016, Morris, acting in his official capacity as Executive Director of the Board brought an Accusation against Ifediba alleging three causes for discipline: (1) convictions of substantially-related crimes, (2) dangerous use of alcohol, and (3) alcohol-related conviction.??Compl. Ex. 1.
On September 15, 2017, Ifediba and the Board entered into a Stipulated Settlement.??Fenton Decl. Ex. C; Ifediba Decl. ?5, Ex. 1.?Pursuant to its terms, Ifediba would promptly submit to physical and mental examinations.??Fenton Decl. Ex. C, p.4.??If the examiner determined that Ifediba is unable to practice safely as an RN, Ifediba would cease practice and not resume practice until notified by the Board.??Fenton Decl. Ex. C, pp. 4-5.??If the examiner determined that Ifediba is not dependent upon drugs or alcohol, or has not had problems with drugs or alcohol (i.e.?dependence in remission), such that it might reasonably affect Ifediba?s safe practice of nursing, then his RN license would be publicly reproved by the Board.??Fenton Decl. Ex. C, pp. 5-6.??If one of the examiners determined that Ifediba has problems with drugs or alcohol that might reasonably affect his safe practice of nursing, the Board would revoke Ifediba?s license, stay the revocation, and place Ifediba on probation for three years and require him to comply with certain terms and conditions.??Fenton Decl. Ex. C, p.6.??One of these probationary conditions requires Ifediba to ?obtain prior approval from the Board before commencing or continuing any employment, paid or voluntary, as a registered nurse.???Ifediba Decl. Ex. 1, p.8.
On December 1, 2017, the Board adopted the Stipulated Settlement.??Fenton Decl. Ex. C, p.1.
On February 5, 2018, Honzel conducted mental and physical health examinations of Ifediba pursuant to the Stipulated Settlement.?Fenton Decl. Ex. D.
On March 8, 2018, Honzel issued his report.??Id.??In a discussion section, Honzel noted that the purpose of any evaluation of a licensed nurse is to accurately evaluate the individual in the context of the Board?s mission which is to protect the people of the state of California.??Fenton Decl. Ex. D, p.5.??To this end, Honzel concluded that prudence dictates placing Ifediba on three years of probation with certain terms and conditions because Ifediba had twice been convicted for reckless driving related to being under the influence.?Id.??One of the terms and conditions is the following: ?Respondent [Ifediba] is fully able to perform the functions of a registered nurse in a safe and competent manner.???Id.
- Board Decision
On March 17, 2018, Ifediba learned that that the Board had placed him on probation for three years, effective March 13, 2018.??Fenton Decl. Ex. E; Ifediba Decl. ?6, Ex. 2.??On March 26, 2018, Ifediba?s probation officer, Lisa Hall (?Hall?), informed him that he must cease working at Allwell as an RN or in any other capacity until he hears otherwise from her.??Ifediba Decl. ?7, Ex. 5.
Since being placed on probation, Ifediba has been completely unable to work as an RN and has been barred from practicing with Allwell.??Ifediba Decl. ?3.??He has arranged for a nurse consultant to take over the management of Allwell during his probationary period.??Ifediba Decl. ?4.??This nurse consultant is retired and in poor health and will be unable to function in that role indefinitely.??Id.?Should she be unable to manage Allwell, Allwell?s employees will lose their jobs, Allwell?s patients will have to find a new nursing services provider, and Ifediba will be faced with the failure of his lifetime achievement and only source of livelihood.??Id.
- Expert Opinion
Alan Karbelnig (?Karbelnig?) is a clinical psychologist and marriage and family therapist.??Karbelnig Decl. ?1.??Karbelnig opines in pertinent part as follows.
Honzel?s report correctly concluded that Ifediba is fully safe and qualified to practice nursing and poses no risk to patient safety or welfare.??Karbelnig Decl. ?4.??There is no evidence that Ifediba possesses ongoing problems with alcohol or substance abuse.??Id.
Honzel?s inclusion of detailed recommendations for various probationary terms far exceeded the scope of the Board?s request, Honzel?s duties, and the Stipulated Settlement.??Karbelnig Decl. ?5.??The Board did not ask Honzel to provide a legal opinion.??Id.??In his expertise as a reviewer for the Board of Psychology, Karbelnig is taught to provide only expert opinions and to avoid legal terms and recommendations for psychologist disciplinary actions.??Karbelnig Decl. ?6.
Additionally, Honzel?s detailed probationary recommendations were not supported by Honzel?s own medical exam and findings.?Karbelnig Decl. ?6.??Honzel administered the Global Assessment of Functioning (?GAF?) test and gave Ifediba a perfect score.?Karbelnig Decl. ?7;?see also?Fenton Decl. Ex. D, p.5.??This score indicates Ifediba is a high-functioning individual free of significant problems.??Id.??This test supports Honzel?s conclusion that Ifediba is safe to practice nursing.??Id.
- Defendants? Evidence
In an Examination Addendum dated March 8, 2018 and part of the original report, Honzel was posed the following question: ?Is this nurse dependent upon drugs or alcohol OR has this nurse had problems with drugs or alcohol (e.g., drug dependence in remission or alcohol dependence in remission) that might reasonably affect the safe practice of nursing???You must circle one.???Fenton Decl. Ex. D.?Honzel circled ?Yes.???Id.
On May 15, 2018, the Board asked Honzel for a clarifying response as to his answer to this Examination Addendum question.??Thomas Decl. Ex. 2.??On May 18, 2018, Honzel responded, ?Ifediba is safe to practice nursing while participating in a monitoring program specified by the Board of Registered Nursing.???Thomas Decl. Ex. 3.
Plaintiff Ifediba applies for a preliminary injunction against Defendants Board and Morris to stay the probation imposed on him. In issuing the TRO, the court noted that it would be dissolved should Honzel issue a report finding that Ifediba is dependent on alcohol or at risk.
- Probability of Success
Ifediba contends that he is likely to prevail on the merits of his traditional mandate cause of action.??App. at 10.??Ifediba contends that the Board had a clear, present, and ministerial duty to comply with the terms of the Stipulated Settlement.??Id.??Under the terms of the Stipulated Settlement, the Board must impose no more than a public letter of reprimand on Ifediba because Honzel concluded that Ifediba is ?is not dependent upon drugs or alcohol, or has not had problems with drugs or alcohol (i.e. drug dependence in remission or alcohol dependence in remission), that might reasonably affect the safe practice of nursing.???Id. (quoting Stipulated Settlement).
To support this contention, Ifediba relies on the following excerpt from Honzel?s report: ?Respondent [Ifediba] is fully able to perform the functions of a registered nurse in a safe and competent manner.???Felton Decl. Ex. D, p.5.
Ifediba quotes Honzel?s statement out of context.??The quotation is the tenth item in a list of probationary ?terms and conditions? recommended by Honzel.??This conclusion is supported by the fact that the other items include requirements that Ifediba attend weekly nursing support group, abstain from use of psychotropic drugs, and attend weekly psychotherapy sessions.??Thus, the quotation was a condition of probation and not an opinion.
Honzel never concluded that Ifediba is not dependent upon drugs or alcohol.??Ifediba draws this conclusion based on Ifediba?s GAF score and Honzel?s mostly positive remarks.??Ifediba ignores the fact that this inference conflicts with Honzel?s Examination Addendum answer and his recommendation that Ifediba be placed on probation.??At best, the evidence shows a vague determination.
Honzel?s clarifying response on May 18, 2018 is dispositive.??Honzel opined that Ifediba is ?safe to practice nursing while participating in a monitoring program.???In other words, Ifediba has, or is at risk of, alcohol or drug dependency problems which might reasonably affect his safe practice of nursing.??This clarifying response, in conjunction with the Examination Addendum answer, warrants the imposition of probation under the Stipulated Settlement and vitiates Ifediba?s showing of a reasonable probability of success.
In reply, Ifediba argues that Honzel?s opinion in his original report is not supported by any evidence of ongoing problems with alcohol or drug abuse, and only ?prudence? led him to conclude that three years of probation is required.??Reply at 3.??Ifediba notes that an expert?s opinion is only as good as the facts on which it is based.??Kelley v. Trunk, (1998) 66 Cal.App.4th?519, 523-24.??Ifediba criticizes Honzel?s supplemental report as not adding anything of substance, and not a basis for the TRO to dissolve.??Reply at 5.
The court need not evaluate the quality and substance of Honzel?s opinion or balance the expert opinions of Honzel and Karbelnig because the Stipulated Settlement required the parties to rely exclusively upon Honzel?s opinion.??This is a contract issue, and the issue does not concern the adequacy of Honzel?s opinion.
- Balance of Hardships
In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction.??Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177.??This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.??Id.
Ifediba contends that the Board?s decision to place him on probation has caused him irreparable harm.??App. at 11.??Ifediba presently cannot work as a nurse or in any capacity at HHA.??Id.??Ifediba contends that Allwell?s employees are at risk of losing their jobs and its patients may have to find new nursing services providers.??Id.
While this is true, the court pointed out at hearing that Ifediba still owns 70% of Allwell, it is still operating, and he presumably still has income.??In reply, Ifediba contends that he will lose the compensation derived from his own nursing services and will not receive a dividend from Allwell until December 2018.??Supp. Ifediba Decl. ?5.
This evidence does not necessarily show irreparable harm.??Ifdediba can still work as a nurse and can run Allwell with probationary approval.??See?Ifediba Decl. ?7, Ex. 5.??Nonetheless, Defendants present no counterarguments and the balance of harms favors Ifediba.
A preliminary injunction requires some showing of reasonable probability of success even if the balance of harms works in the plaintiff?s favor.??Ifediba has not shown a breach of the Stipulated Settlement, and the application for a preliminary injunction is denied.
?The court has not read or considered Ifediba?s unauthorized supplemental memorandum, filed after the court?s tentative was issued without leave of court.
?The June 21, 2018 hearing was continued to the instant date because of the court?s unavailability.??The continuance occurred after the court issued its tentative decision, and no party was authorized to file any additional papers.??Consequently, the court also has read, but not considered, Ifediba?s unauthorized ?Supplemental Memorandum in Support of Request for Preliminary Injunction?, filed on July 3, 2018.
?This service was inconsistent with the court?s order at the hearing for personal service of Summons, Complaint, and TRO/OSC.?However, the signed order does not require personal service.
?The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory.??Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713.??A mandatory injunction ? one that mandates a party to affirmatively act, carries a heavy burden: ?[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.???Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.
?However, a court may issue an injunction to maintain the?status quo?without a cause of action in the complaint.??CCP ?526(a)(3).
?Pursuant to the Stipulated Settlement noted?post, Ifediba admitted the truth of each allegation in the Accusation.??Fenton Decl. Ex. C, p.3.