# Garfield Beach CVS v. Board of Pharmacy etc. CA4/1

> California Court of Appeal · July 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11103023

## Case

- **Court:** California Court of Appeal
- **Decided:** July 18, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 7/18/25 Garfield Beach CVS v. Board of Pharmacy etc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GARFIELD BEACH CVS, LLC, D083962

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2023-
00006013-CU-WM-CTL)
BOARD OF PHARMACY,
DEPARTMENT OF CONSUMER
AFFAIRS,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed.
Much Shelist and Ryan N. Burns, for Plaintiff and Appellant.
Rob Bonta, Attorney General, Carl W. Sonne, Assistant Attorney
General, Gregory J. Salute and Nicole R. Trama, Deputy Attorneys General,
for Defendant and Respondent.
In 2020, the Board of Pharmacy, Department of Consumer Affairs cited
Garfield Beach CVS, LLC for failure to maintain prescription records at CVS
pharmacy number 5837 (Buena Park CVS) in a secure manner preserving
patient confidentiality in violation of title 16 of the California Code of
Regulations sections 1714, subdivision (d) and 1707, subdivision (g)(2), as
well as Civil Code section 56.101. After the Board affirmed the citation, CVS
petitioned for a writ of administrative mandate to compel the Board to set
aside its decision and order. The court denied the petition. On appeal, CVS
raises three arguments.
First, CVS argues substantial evidence was not presented that an
alarmed but unlocked door inadequately secures prescription records and
protects their confidentiality. We determine, however, that the record
contains substantial evidence, including reasonable inferences drawn from
the record evidence, to support that finding.
Second, CVS contends the Board was collaterally estopped from
affirming the citation given its prior dismissal of a similar citation against
CVS pharmacy number 6755 (Long Beach CVS). Yet because (1) the citations
arose out of different transactions and (2) the Long Beach CVS prescription
records were stored behind a locked door, whereas the doors to the storage
area of the Buena Park CVS were alarmed but unlocked, we conclude the
issues are not identical, so collateral estoppel does not apply.
Finally, CVS claims the Board abused its discretion in interpreting the
relevant regulations and statute to require that access to prescription records
be restricted to pharmacy employees. But the record, which shows the Board
was concerned about non-employees’ access to the records as well, does not
support CVS’s argument.
Accordingly, we affirm the court’s dismissal of the petition.

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I.
A.
The Buena Park CVS has a “typical” layout, in which the front of the
store carries general merchandise and groceries while a pharmacy at the
back of the store fills and dispenses medications.
A storage room sits at the back of the Buena Park CVS. The only way
to enter the storage room is through a set of double doors. To enter the
storage room without setting off an alarm, a person needs to input a code
onto a keypad next to the door. The keypad has no locking mechanism, so it
does not physically prevent anyone from opening the doors. A single code is
shared by all employees of the store, and the district leader—who oversees
14 CVS pharmacies, including Buena Park—was uncertain how often, if at
all, the code was changed, even after employee terminations.
The Buena Park CVS keeps prescription records in the upstairs portion
of the storage room. The records are kept in closed cardboard boxes, at least
some of which are labeled as containing “Confidential Hardcopy Pharmacy
Records.” Some boxes are taped shut.
At the administrative hearing, the district leader agreed “there are
security cameras at the entry to the storage room or in the storage room.”
(Italics added.) She later explained there is one security camera inside the
storage room, but not in the upstairs portion where pharmacy records are
kept.
CVS’s policy is that vendors or delivery persons must be accompanied
by a CVS employee to enter the storage room. Additionally, it is CVS’s policy
to keep documents containing confidential information in a locked file cabinet
or desk drawer. The district leader acknowledged the prescription records
were not maintained according to policy.

3
B.
In October 2019, Board inspector Sejal Desai inspected the Buena Park
CVS in response to a complaint. As part of her inspection, Desai inspected
the prescription records kept in the storage room and found the way they
were stored “problematic.”
That same day, Desai issued a notice of citation for a violation of
section 1714(d) of title 16 of the California Code of Regulations “[a]s it relates
to” section 1707(g)(2) and Civil Code section 56.101, noting “the prescription
records were store[d] upstairs in the stock room with other store merchandise
and records” and “not in a secured manner.”
In November 2020, the Board issued a citation and fine alleging CVS
violated the above provisions because it “did not have effective control against
theft and diversion of records for drugs/devices” and the “prescription records
were not secure to maintain patient confidentiality” at the Buena Park CVS.
CVS was to pay a fine of $2,500.
CVS contested the citation and requested an office conference. In
February 2021, following the office conference, the Board affirmed the
citation and fine. An administrative hearing was scheduled for October 2022.
At the administrative hearing, the Attorney General focused on non-
pharmacy employees’ access to the prescription records. Desai, however,
testified the storage room was “accessible” to CVS customers “because you
can walk in and the alarm would still go off, but it is accessible because it’s
not locked.” She also testified she was not aware of any material differences
between the physical security measures employed by the Buena Park CVS
and the Long Beach CVS in storing their records.
There was no evidence any unauthorized person ever accessed or stole
the prescription records from the Buena Park CVS.

4
C.
During the administrative hearing, CVS argued collateral estoppel
barred the Board’s claims given its prior decision to dismiss a citation issued
in similar circumstances to the Long Beach CVS.
In December 2019, Desai inspected the Long Beach CVS. The Long
Beach CVS stored prescription records in the upstairs portion of a storage
room that also held regular store merchandise. The boxes were labeled
“‘Confidential Hardcopy Pharmacy Records,’” but some boxes were broken
and papers were visible inside. The storage room was accessible through “a
door with a keypad that required a code to be entered to unlock.” There was
“a camera in the receiving area where the keypad on the door permits access
from the store,” as well as “a camera that covers the top of the stairs.”
The Board issued a citation and fine alleging violations of the same
regulations and statute as the Buena Park CVS.
Following an administrative hearing, the Board dismissed the citation.
It found the Long Beach CVS’s security measures “sufficient” because, among
other measures, “access to the storage room was limited by means of a
keypad whose combination was given to CVS employees only” and “the
bottom of the stairs and the top of the stairs leading to the storage room were
monitored by security cameras.”
D.
In November 2022, an administrative law judge issued a proposed
decision affirming the Buena Park CVS’s citation. In December, the Board
adopted the proposed decision as its decision.
In February 2023, CVS filed a petition for writ of administrative
mandate in which it sought to compel the Board to set aside its decision. As
here, CVS contended (1) the Board abused its discretion in concluding

5
collateral estoppel did not bar its claim, (2) no evidence established that the
keypad alarm was insufficient to safeguard the security or confidentiality of
the prescription records, and (3) CVS did not violate the asserted regulations
and statutes in allowing front-of-store employees access to the storage room
containing the records.
The court denied the writ. It concluded collateral estoppel did not bar
the Board’s claim because “a critical difference between the two cases” was
that the storage room access door at the Long Beach CVS was “locked” while
the door at the Buena Park CVS was “always unlocked and only had a code to
enter on a keypad to prevent an alarm from sounding” that “did not prevent
anyone from entering the storage room.”
The court also found substantial evidence supported the Board’s
decision. It concluded evidence of actual unauthorized access to the records
was not required because “the Board was not required to wait for patient
harm before taking action.” The record further established that “non-
pharmacy employees and members of the public” could enter the “unlocked
storage area,” which was “substantial evidence of CVS not preserving the
confidentiality of patient records.”
The court entered judgment accordingly.
II.
“Our standard of review of a judgment denying a petition for writ of
administrative mandate is the same as that of the trial court when it reviews
the determination of the administrative board.” (Blazevich v. State Bd. of
Control (1987) 191 Cal.App.3d 1121, 1125.) Here, the trial court reviewed the
Board’s decision for abuse of discretion and substantial evidence.
Code of Civil Procedure section 1094.5(a) lets courts “inquir[e] into the
validity of any final administrative order or decision made as the result of a

6
proceeding in which by law a hearing is required to be given, evidence is
required to be taken, and discretion in the determination of facts is vested in
the inferior tribunal, corporation, board, or officer.” We review the
administrative decision to determine if it was “without, or in excess of,
jurisdiction; whether there was a fair trial; and whether there was any
prejudicial abuse of discretion.” (§ 1094.5(b).) An abuse of discretion occurs
“if the respondent has not proceeded in the manner required by law, the
order or decision is not supported by the findings, or the findings are not
supported by the evidence.” (Ibid.) We “resolv[e] all evidentiary conflicts and
draw[ ] all legitimate and reasonable inferences in favor of the court’s
decision.” (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th
620, 627.)
A.
CVS claims there was “no evidence, never mind substantial evidence,”
to support a conclusion that the Buena Park CVS’s keypad alarm system was
less secure and less preserving of confidentiality than the Long Beach CVS’s
keypad lock system. We conclude otherwise.
Our review for substantial evidence “begins and ends with the
determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the
determination, and when two or more inferences can reasonably be deduced
from the facts, a reviewing court is without power to substitute its deductions
for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870,
873-874.) “Substantial evidence is evidence of ponderable legal significance,
reasonable in nature, credible, and of solid value.” (Ermoian v. Desert
Hospital (2007) 152 Cal.App.4th 475, 501.)

7
Here, as the Board states, “[i]t is undisputed that the [Buena Park
CVS’s] patient records were stored in an unlocked storage area.” Nor were
the records monitored by security cameras. Meanwhile, the Long Beach CVS
stored its records in a locked storage area with security cameras covering
both the bottom and the top of the stairs leading to the records. As the Board
argues, a reasonable inference from the evidence is “that a locked door is
more secure than an unlocked door.” We agree such an inference is
permissible and constitutes substantial evidence. (See Moran v. Foster
Wheeler Energy Corp. (2016) 246 Cal.App.4th 500, 518.) Desai’s testimony
that she was aware of no material differences between the physical security
measures employed by the two CVS locations does not compel a contrary
result because other evidence belies her statement. Nor does the lack of any
testimony about an alarm being inadequate, as that fact could be permissibly
inferred from the evidence before the court.
B.
CVS also claims the Board was collaterally estopped from “relitigating”
the alleged violation against the Buena Park CVS given the dismissal of the
citation against the Long Beach CVS. We disagree.
“Collateral estoppel precludes relitigation of issues argued and decided
in prior proceedings” if (1) the relevant issue is “identical to that decided in a
former proceeding,” (2) the issue was “actually litigated” and “necessarily
decided,” (3) “the decision in the former proceeding” is “final and on the
merits,” and (4) “the party against whom preclusion is sought” is “the same
as, or in privity with, the party to the former proceeding.” (Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341.) Here, only the first requirement is
contested.

8
“The ‘identical issue’ requirement addresses whether ‘identical factual
allegations’ are at stake in the two proceedings, not whether the ultimate
issues or dispositions are the same.” (Lucido, 51 Cal.3d at p. 342.) Thus,
“‘where the subsequent action involves parallel facts, but a different
historical transaction, the application of the law to the facts is not subject to
collateral estoppel.’” (Chern v. Bank of America (1976) 15 Cal.3d 866, 871.)
“The party asserting collateral estoppel bears the burden of establishing” the
issues are identical. (Lucido, at p. 341.)
We review collateral estoppel determinations de novo. (Murphy v.
Murphy (2008) 164 Cal.App.4th 376, 399.)
Given these principles, we agree with the Board that CVS failed to
satisfy its burden of establishing the issues in the Buena Park and Long
Beach CVS matters are identical. Here, the citations arose from different
inspections of different CVS locations at different times; accordingly, they
arose out of different transactions. (Chern, 15 Cal.3d at p. 871.) Even were
that not so, as the Board aptly points out, the facts are not identical given the
Long Beach CVS’s prescriptions records were kept behind a locked door while
the Buena Park CVS’s records were kept behind an alarmed but unlocked
door. Accordingly, neither the Board nor the court erred in finding this
“critical difference” made collateral estoppel inapplicable here.
CVS claims the issue raised in this case was whether, “for records to be
secure and confidential, access must be limited to pharmacists and
technicians.” While the Board primarily argued during the hearing that
access by other CVS employees was problematic, the citation was not so
limited. Instead, it broadly alleged the Buena Park CVS “did not have
effective control against theft and diversion of records for drugs/devices” and
because “[t]he prescription records were not secure to maintain patient

9
confidentiality.” The administrative law judge similarly defined the relevant
issue as “whether [CVS] complied with the requirements as set forth in” the
asserted regulations and statute. Because the issue and allegations were not
limited to the access of non-pharmacy CVS employees, neither the
administrative law judge nor the court erred in concluding the potential for
access by members of the public was also problematic. To the extent CVS
asserted for the first time at oral argument that the shift in focus from non-
pharmacy CVS employees to members of the public violated its right to due
process, the claim is forfeited. (People v. Carrasco (2014) 59 Cal.4th 924, 990
[“‘Obvious reasons of fairness militate against consideration of an issue
raised initially’ at oral argument.”].)
C.
Finally, CVS claims it did not violate the asserted regulations or
statute “by storing records in a warehouse accessible to CVS employees other
than pharmacists and pharmacy technicians” because “those provisions
simply do not impose the restrictions” the Board asserts. On this record,
however, we conclude the administrative law judge and trial court did not err
in upholding at least one of the violations determined by the Board.
“‘The standard for judicial review of agency interpretation of law is the
independent judgment of the court, giving deference to the determination of
the agency appropriate to the circumstances of the agency action.’” (Yamaha
Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8.) “A court
is more likely to defer to an agency’s interpretation of its own regulation than
to its interpretation of a statute.” (Id. at p. 12.)
Section 1707(g) requires, when pharmacy prescription records are
stored “in a storage area at the same address or adjoining the licensed
premises” rather than within the pharmacy itself, “[t]he storage area” to be

10
“maintained so that the records are secure and so that the confidentiality of
any patient-related information is maintained.”
As explained above, it is reasonable to conclude an unlocked storage
room with no security cameras trained on its entrance or the access point to
patients’ confidential prescription records is not “secure” and fails to
maintain the confidentiality of patients’ information. As CVS argues, the
regulation cannot reasonably be read to require that access be limited to
pharmacists or pharmacy technicians, but the Board’s citation and the
administrative law judge’s decision that CVS violated the regulation do not
rely on such an interpretation. Thus, is does not matter if the Board
advanced such an argument at the hearing. Nor did the administrative law
judge conclude, as CVS claims, a locked door is required. Instead, the
administrative law judge reasonably concluded something more than an
alarm on an unlocked door was required to preserve patient confidentiality.
Because we determine the administrative law judge and trial court
properly concluded at least one regulation the Board alleged CVS violated
was, in fact, violated, we need not reach CVS’s arguments as to the
remaining regulation or statute, including its contention that
section 56.101(a) requires “an actual breach of confidentiality.” CVS did not
raise a similar argument as to section 1707(g), and we agree with the trial
court that the Board is not required to wait to enforce its regulations until
harm has already occurred.

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III.
We affirm and award the Board of Pharmacy, Department of Consumer
Affairs its costs on appeal.

CASTILLO, J.

WE CONCUR:

DO, Acting P. J.

KELETY, J.

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11103023. Public record. Not legal advice.