The opinion
Filed 5/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
KENNETH S. BRADLEY et al., B308040
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20STCV24147)
v.
CVS PHARMACY, INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark V. Mooney, Judge. Affirmed with
directions.
Fleming Law Firm and J. Patrick Fleming, Jr. for Plaintiffs
and Appellants.
Spertus, Landes & Umhofer, James W. Spertus and
Elizabeth A. Mitchell for Defendants and Respondents.
_________________________________
Kenneth S. Bradley and his medical corporation, Southern
California Pain Consultants, Inc. (collectively, Bradley) appeal
from an order denying Bradley’s motion for a preliminary
injunction against respondents CVS Pharmacy, Inc., Longs Drug
Stores California LLC (Longs), Garfield Beach CVS, LLC
(Garfield), and Autumn Miller (collectively, CVS).1 Bradley is a
doctor who specializes in pain management. In June 2020, CVS
stopped filling Bradley’s prescriptions for controlled substances
for his patients, citing concerns about his prescribing patterns.
Bradley sued CVS and then sought a preliminary injunction to
require CVS to fill his prescriptions.
The trial court denied the injunction on several grounds,
including the conclusion that Bradley should have first sought
relief from the California State Board of Pharmacy (Board). The
Board is charged with the responsibility of enforcing state rules
governing pharmaceutical licensees. (See Bus. & Prof. Code,
§ 4001, subd. (a).)2
The trial court based this conclusion on the doctrine of
exhaustion of administrative remedies. We affirm the trial
court’s ruling on an alternative but closely related ground. The
trial court’s decision to deny the preliminary injunction and to
stay the action pending review by the Board is supported by the
doctrine of primary jurisdiction.
1 Longs and Garfield are subsidiaries of CVS Pharmacy,
Inc. Miller is a pharmacist with CVS who allegedly was involved
in the decision by CVS to stop honoring Bradley’s prescriptions
that is the subject of Bradley’s complaint.
2Subsequent undesignated statutory references are to the
Business and Professions Code.
2
The Board has primary jurisdiction to consider the
particular statutory obligations underlying Bradley’s injunction
motion. Bradley’s claim that CVS has an obligation to fill his
prescriptions rests primarily on Business and Professions Code
section 733, which provides in part that a “licentiate shall not
obstruct a patient in obtaining a prescription drug or device that
has been legally prescribed or ordered for that patient.” (Id.,
§ 733, subd. (a).) The Board is empowered to issue fines and
“orders of abatement” for violations of that section. (Id., § 4314,
subd. (a).) The Board is also charged with the responsibility to
remedy unprofessional conduct by licensees. (Id., § 4301.) Such
conduct includes the “clearly excessive furnishing of controlled
substances” in violation of a pharmacist’s responsibility to ensure
that prescriptions for controlled substances are issued only for a
legitimate medical purpose. (Bus. & Prof. Code, § 4301, subd. (d);
Health & Saf. Code, § 11153, subd. (a).)
Thus, the trial court correctly recognized that an order
requiring CVS to honor particular prescriptions would involve
judgments concerning the statutory obligations of pharmacists
that the Board is both expected and equipped to resolve. The
Board is also empowered to issue an abatement order, if
warranted, that would perform the equivalent role of an
injunction in providing the relief that Bradley seeks. The trial
court therefore reasonably ruled that Bradley should first seek
relief from the Board before pursuing his claims in court.
BACKGROUND
1. Bradley’s Practice
Bradley is a licensed physician with 26 years of experience
in his own practice and as an officer in the Army Reserve. He
specializes in the “treatment and management of pain.” His
3
patients include persons who experience chronic pain from
conditions such as cancer, surgeries, and degenerative disk
disease.
Bradley’s practice primarily serves patients from health
maintenance organizations (HMO’s). He has referral
relationships with about 30 HMO’s in the Los Angeles area.
Most of Bradley’s patients are minorities who receive medical
insurance through Medicare or Medi-Cal.
Bradley’s pain management treatment often includes
prescriptions for controlled substances, including opiates such as
oxycodone, hydrocodone, and morphine. Bradley is licensed to
prescribe these medications. According to Bradley, most of his
patients fill their prescriptions at their local CVS pharmacies.
2. CVS’s Decision Not to Fill Bradley’s Controlled
Substance Prescriptions
In 2018 and 2019 CVS contacted Bradley to ask him about
increases in his prescriptions for Norco (a hydrocodone). Bradley
explained to CVS that Norco is a low potency opiate and therefore
has a “lower potential for overdose while still controlling pain.”
CVS took no action after these communications.
In April 2020, Miller contacted Bradley and introduced
herself as a pharmacist at a CVS pharmacy in Carson. According
to Bradley, Miller told him that she would not fill Bradley’s
prescriptions unless he provided plans for his patients to “taper
off their opiate medications.” Bradley explained his office
procedures and his practice of using “great caution when
prescribing opiates.” However, Bradley “refused to comply with
Ms. Miller’s demand that I create plans to reduce and ultimately
eliminate the dosage levels of opiate medications that I had
concluded are necessary for my patients.” After that
4
conversation, Miller adopted a policy of refusing to fill Bradley’s
controlled substance prescriptions in the pharmacy where she
worked.
In May 2020, a CVS senior manager wrote Bradley a letter
concerning CVS’s review of Bradley’s “prescription dispensing
records.” The letter stated that, “[b]ased on our data we have
identified that your controlled substance prescribing may be
outside the normal range in comparison with other prescribers in
your specialty and geographic region.” The letter requested an
opportunity to speak with Bradley to “obtain a better
understanding” of Bradley’s controlled substance prescriptions.
After receiving the letter, Bradley spoke with CVS
representatives. The representatives had questions about:
(1) Bradley’s prescriptions for Norco for a majority of his patients;
(2) Bradley’s prescriptions for Valium; and (3) a spike in
Bradley’s controlled substance prescriptions during March and
April of 2020. Bradley explained that his prescription options
were limited by HMO requirements; Norco is a low potency
opiate; and Valium is a low potency drug that is helpful for sleep.
He also explained that his prescriptions spiked for several
months as a result of the Los Angeles Covid-19 stay at home
order. Because he was the only person in his practice who was
certified to “conduct e-prescribing,” he had “temporarily carried
the prescription load” for the other two prescribers in his office
while the office was closed.
On June 17, 2020, CVS wrote to Bradley informing him
that, effective June 25, 2020, “CVS/pharmacy stores will no
longer be able to fill prescriptions that you write for controlled
substances.” The letter stated that, “[d]espite our attempts to
5
resolve the concerns with your controlled substance prescribing
patterns these concerns persist.”
According to CVS, it took this step based upon its
“prescription monitoring program.” CVS created this program in
2012 and has implemented it nationwide. The program “uses
algorithms to gather aggregate data on physician prescribing
practices to identify physicians who demonstrate extreme
patterns of prescribing certain highly regulated drugs.” Those
physicians “who are flagged for high-risk prescribing activity” are
then interviewed and investigated.
CVS claimed that Bradley had been flagged by its program
“multiple times” since 2015 and had also been the subject of
complaints by individual CVS pharmacists. CVS explained that
Bradley was the top prescriber for hydrocodone “[a]mong the ten
CVS locations that most frequently serve Bradley’s patients.”
CVS also cited the fact that, between March and May of 2020,
“Bradley’s prescriptions increased from approximately 10,000
tabs of hydrocodone per month to almost 50,000 tabs.”
3. Proceedings in the Trial Court
Bradley filed his initial complaint on June 25, 2020,
followed by an amended complaint (Complaint) on July 8, 2020.
Bradley’s Complaint alleges claims for (1) declaratory relief,
(2) unfair competition under Business and Professions Code
section 17200, (3) tortious interference with contract and
prospective economic advantage, and (4) civil rights violations
under the Unruh Civil Rights Act (Civ. Code, § 51.)3
3 Bradley’s claims for tortious interference are based on the
theory that CVS’s refusal to honor his prescriptions damaged his
6
After the trial court denied a request for a temporary
restraining order, Bradley filed his motion for a preliminary
injunction on July 20, 2020. CVS opposed the injunction and
demurred to Bradley’s Complaint. Both CVS’s opposition and its
demurrer argued that the trial court should defer to the Board
under the doctrines of exhaustion of administrative remedies,
equitable abstention, and primary jurisdiction.
Following a hearing on September 15, 2020, the trial court
denied Bradley’s motion for a preliminary injunction and
sustained CVS’s demurrer with leave to amend. The court
concluded that Bradley’s claims raised issues that “should be
dealt with by the Pharmacy Board.” The court explained that,
“[w]hether we talk about it in terms of the demurrer or the
injunction, there is an administrative body that is set up to deal
with this.”
The trial court also found that Bradley had failed to show
that he would suffer irreparable injury in the absence of an
injunction. The court concluded that Bradley’s alleged loss of
business was compensable through damages, and that, “[i]n
terms of the patients, there are other pharmacies they can go to,
other doctors they can go to, if that’s the concern.”
After Bradley amended his Complaint, CVS again
demurred. The trial court again sustained CVS’s demurrer and
ordered the action stayed pending consideration by the Board.
business relationships with HMO’s. His Unruh Act claim is
based on the theory that CVS’s conduct was motivated by an
intent to discriminate against Bradley’s low-income minority
patients in favor of wealthier customers who have more lucrative
insurance plans.
7
DISCUSSION
1. Legal Principles and Standard of Review
There are several different but closely related doctrines
that either require or permit judicial deference to administrative
agencies. One such doctrine, typically described as the
exhaustion doctrine, requires parties to exhaust their remedies in
an administrative tribunal before seeking relief in court. In
Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917
(Jonathan Neil), our Supreme Court explained that there are
“three distinct strands” of this doctrine that are each “justified by
somewhat different rationales.” (Id. at p. 930.)
First, an aggrieved party is generally required to seek
administrative relief when “a statute and lawful regulations
pursuant thereto establish a quasi-judicial administrative
tribunal to adjudicate statutory remedies.” (Jonathan Neil,
supra, 33 Cal.4th at p. 930.) In such a situation, the
administrative tribunal is charged with the responsibility to
resolve the dispute, and “ ‘ “the courts may act only to review the
final administrative determination.” ’ ” (Ibid.)
Second, the exhaustion doctrine generally applies “when a
private or public organization has provided an internal remedy.”
(Jonathan Neil, supra, 33 Cal.4th at p. 930.) This strand of the
doctrine is based on a judicial policy “ ‘ “that the association itself
should in the first instance pass on the merits of an individual’s
application rather than shift this burden to the courts.” ’ ” (Ibid.,
quoting Rojo v. Kliger (1990) 52 Cal.3d 65, 86 (Rojo).)
Third, courts have required exhaustion of administrative
remedies in “ ‘a variety of public contexts’ ” where the
administrative agency “ ‘possesses a specialized and specific body
of expertise in a field that particularly equips it to handle the
8
subject matter of the dispute.’ ” (Jonathan Neil, supra, 33
Cal.4th at p. 931, quoting Rojo, supra, 52 Cal.3d at p. 87.) As an
example of a case in this category, our Supreme Court cited
Karlin v. Zalta (1984) 154 Cal.App.3d 953 (Karlin). That case
involved allegations of excessive medical malpractice insurance
rates. The plaintiffs’ claims raised factual issues concerning the
heavily regulated area of medical malpractice insurance
ratemaking that made the expertise of the Insurance
Commissioner indispensable. (Jonathan Neil, at p. 931.)
The primary jurisdiction doctrine also permits judicial
deference to administrative expertise. Like the exhaustion
doctrine, the doctrine of primary jurisdiction promotes “ ‘ “comity
between courts and agencies.” ’ ” (Jonathan Neil, supra, 33
Cal.4th at p. 931, quoting Farmers Ins. Exchange v. Superior
Court (1992) 2 Cal.4th 377, 390 (Farmers).) The major difference
between the two doctrines is whether courts are required to defer
to an administrative agency. The exhaustion doctrine applies
“ ‘ “where a claim is cognizable in the first instance by an
administrative agency alone,” ’ ” and the primary jurisdiction
doctrine applies “ ‘ “where a claim is originally cognizable in the
courts” ’ ” but involves issues “ ‘ “which, under a regulatory
scheme, have been placed within the special competence of an
administrative body.” ’ ” (Jonathan Neil, at p. 931, quoting
Farmers, at p. 390.) In the latter circumstance, the “ ‘ “judicial
process is suspended pending referral of such issues to the
administrative body for its views.” ’ ” (Ibid.)4
4
This difference does not necessarily help in deciding
whether the exhaustion doctrine or the primary jurisdiction
9
As our Supreme Court has explained, the policy reasons
behind the doctrines of exhaustion and primary jurisdiction are
“ ‘similar and overlapping.’ ” (Jonathan Neil, supra, 33 Cal.4th at
p. 932, quoting Farmers, supra, 2 Cal.4th at pp. 391–392.) Both
focus on “ ‘judicial efficiency.’ ” (Ibid.) They differ somewhat with
respect to the reasons for deference to the administrative agency.
The exhaustion doctrine respects the autonomy of administrative
agencies to reach a final decision without judicial interference,
while the primary jurisdiction doctrine allows courts to “ ‘take
advantage of administrative expertise.’ ” (Ibid.)
The doctrines also differ in the procedures they employ.
Unless an agency is empowered to decide all the issues in a
pending lawsuit, the appropriate procedure for a court that
applies the primary jurisdiction doctrine is to stay the lawsuit
pending a decision by the administrative agency. (Jonathan Neil,
supra, 33 Cal.4th at p. 935.) In contrast, where exhaustion of
administrative remedies is required, courts may dismiss
prematurely filed lawsuits in favor of an administrative remedy.
(See Tejon Real Estate, LLC v. City of Los Angeles (2014) 223
Cal.App.4th 149, 156 [“A demurrer may properly be sustained
based on the failure to adequately plead exhaustion of
administrative remedies”].)
doctrine applies in a particular case. As discussed above, the
third strand of exhaustion cases is based upon the need for
deference to the particular expertise of an agency in a heavily
regulated area. That same factor also underlies the primary
jurisdiction doctrine. Whether such deference is required or
merely discretionary seems to be the result of applying one
doctrine or the other rather than a criterion to determine which
doctrine should apply.
10
A third related doctrine permits courts to “abstain from
adjudicating a suit that seeks equitable remedies if ‘granting the
requested relief would require a trial court to assume the
functions of an administrative agency, or to interfere with the
functions of an administrative agency.’ ” (Blue Cross of
California, Inc. v. Superior Court (2009) 180 Cal.App.4th 1237,
1258 (Blue Cross), quoting Alvarado v. Selma Convalescent
Hospital (2007) 153 Cal.App.4th 1292, 1298.) For example, in
Alvarado the court concluded that the task of calculating “on a
classwide basis” whether nursing facilities were in compliance
with complex regulations was a “task better accomplished by an
administrative agency than by trial courts.” (Alvarado, at
p. 1306.)
A decision whether to defer to an administrative agency
under either the primary jurisdiction doctrine or equitable
abstention doctrine is reviewed for abuse of discretion. (Blue
Cross, supra, 180 Cal.App.4th at pp. 1257, 1260.)
2. The Trial Court Did Not Abuse Its Discretion in
Ruling that Bradley Should First Seek Relief
from the Board
a. The primary jurisdiction doctrine applies
Under the criteria discussed above, the doctrine of
exhaustion of administrative remedies was not the appropriate
ground to deny Bradley’s injunction motion. The statutory
scheme here does not fit within any of the three categories of
cases our Supreme Court identified in Jonathan Neil that require
administrative review prior to recourse to the courts.
First, the statutory scheme does not support the conclusion
that the Board is the exclusive forum to resolve disputes between
private parties of the type involved here. The Board is not a
11
“quasi-judicial administrative tribunal” that is tasked with the
responsibility “to adjudicate statutory remedies.” (Jonathan Neil,
supra, 33 Cal.4th at p. 930.) It has supervisory and enforcement
powers over pharmacists and pharmaceutical licensees. But
nothing in the governing statutes tasks it with the responsibility
to adjudicate individual claims for relief against pharmacists.
The Board has the authority to “issue citations containing
fines and orders of abatement for any violation of [Business and
Professions Code] Section 733, [or] for any violation of this
chapter[, sections 4000–4427.8].”5 (Bus. & Prof. Code, § 4314,
subd. (a).) The Board is also charged with the authority and the
responsibility to “take action against any holder of a license who
is guilty of unprofessional conduct.” (Bus. & Prof. Code, § 4301.)
Such unprofessional conduct includes the “clearly excessive
furnishing of controlled substances in violation of subdivision (a)
of Section 11153 of the Health and Safety Code.”6 (Bus. & Prof.
Code, subd. (d).)
These statutes give the Board the responsibility to decide
whether a pharmaceutical licensee has violated a duty to fill
prescriptions under Business and Professions Code section 733.
The statutes also give the Board the task of determining whether
pharmaceutical licensees have failed to meet their “corresponding
responsibility” to ensure that prescriptions are for a “legitimate
5 That chapter is described as the “Pharmacy Law.”
(§ 4000.)
6 That subdivision provides in part that “[t]he
responsibility for the proper prescribing and dispensing of
controlled substances is upon the prescribing practitioner, but a
corresponding responsibility rests with the pharmacist who fills
the prescription.” (Health and Saf. Code, § 11153, subd. (a).)
12
medical purpose.” (Health and Saf. Code, § 11153, subd. (a); Bus.
& Prof. Code, § 733.)
Thus, the statutory scheme empowers the Board to decide
key issues raised by Bradley’s injunction motion, including the
scope of CVS’s statutory obligation to fill Bradley’s prescriptions
and the extent of CVS’s corresponding responsibility to prevent
prescription abuse. However, that power arises from the Board’s
enforcement responsibility, not from any responsibility to
adjudicate particular civil disputes.
Second, there is no “private or public organization” here
that “has provided an internal remedy.” (Jonathan Neil, supra,
33 Cal.4th at p. 930.) The Board is not an organization with an
internal dispute resolution procedure, but an oversight and
enforcement entity.
The third category that the court identified in Jonathan
Neil presents a closer question. The majority of the Board is
composed of pharmacists drawn from different practice settings.
(§ 4001, subds. (b) & (c).) The Board therefore “ ‘possesses a
specialized and specific body of expertise in a field that
particularly equips it to handle the subject matter of the
dispute.’ ” (Jonathan Neil, supra, 33 Cal.4th at p. 931.)
However, such administrative expertise is also a factor
supporting a finding of primary jurisdiction. (Id. at p. 934.)
The statutory scheme here does not suggest that the Board
has authority over a “ ‘ “pervasive and self-contained system of
administrative procedure” ’ ” that makes its expertise
“ ‘ “indispensable.” ’ ” (Jonathan Neil, supra, 33 Cal.4th at p. 931,
quoting Karlin, supra, 154 Cal.App.3d at p. 983.) The Board has
expertise in the subject matter of Bradley’s claims, including the
scope of pharmacists’ responsibilities and the identification of
13
factors indicating prescription abuse. But the governing statutes
do not establish a separate universe of administrative rules and
procedures that only the Board has the expertise to interpret.
The exhaustion doctrine therefore does not apply.
This conclusion is supported by the holding in Jonathan
Neil. That case involved a claim that premiums the defendants
charged for “assigned risk insurance” for a trucking company
were too high. (Jonathan Neil, supra, 33 Cal.4th at p. 923.) The
premiums were governed by rules promulgated by the
Department of Insurance. (Id. at p. 925.) However, the common
law claims involved in the lawsuit were “originally cognizable in
court. The Insurance Commissioner has no authority to decide
these common law claims, but can only make a determination
regarding some of the issues in the case. Nor can we discern in
Insurance Code section 11620 et seq. an absolute statutory bar to
prosecuting such claims absent a prior administrative
determination.” (Id. at p. 933.) The exhaustion doctrine
therefore did not apply. (Id. at p. 934.)
Similarly, here, Bradley’s statutory and common law claims
were originally cognizable in court. The Board cannot finally
adjudicate those claims, but can only determine important issues
that are relevant to them. And the governing statutes do not
suggest that litigants are absolutely barred from seeking relief in
court before raising such issues before the Board.
However, the decision in Jonathan Neil also supports the
conclusion that the primary jurisdiction doctrine does apply here.
The court in Jonathan Neil decided that, although the exhaustion
doctrine was not applicable, “the case for invoking the primary
jurisdiction of the Insurance Commissioner is compelling.”
(Jonathan Neil, supra, 33 Cal.4th at p. 934.) The court observed
14
that the issues raised in the trucking company’s cross-complaint
“directly implicate the regulatory authority and expertise of the
Insurance Commissioner.” (Ibid.) The court also explained that
the Department of Insurance’s interpretation and application of
the governing regulations in the first instance was “necessary to
secure regulatory uniformity informed by its expertise and
extensive experience with this area of regulation.” (Ibid.) The
same factors apply here.
First, as discussed, Bradley’s injunction motion raises
issues that are within the particular expertise of the Board.
Bradley’s claims depend upon the theory that CVS had a legal
obligation to fill his prescriptions.7 The critical allegation in
Bradley’s complaint is that, “[a]s a matter of California law, CVS
and its pharmacists are required to honor any prescription issued
by a physician such as Dr. Bradley, subject only to a
corresponding duty to confirm that the prescription has been
issued for legitimate medical purposes relating to the patient’s
7 A possible exception is Bradley’s cause of action for
violation of the Unruh Act. As mentioned, Bradley’s theory
under that claim is that “a substantial motivating reason for
[CVS’s] conduct is the race, color, disability or medical condition
of [Bradley’s] patients, who for the most part are minorities
suffering from medical conditions causing chronic pain requiring
opiate medications.” A refusal to deal on the ground of race or
other protected characteristic may be unlawful. (See 5 Witkin,
Summary of Cal. Law (11th ed. 2020) Torts, § 877(1)(a) (hereafter
Witkin).) However, the Board’s expertise is nevertheless
relevant. Whether CVS had a legal justification under the
Pharmacy Law to refuse to fill Bradley’s prescriptions could bear
upon the question whether CVS’s stated reason for its refusal
was pretextual.
15
care.” Bradley’s claims depend upon such a legal obligation to
overcome the principle that, “[a]bsent a legal provision to the
contrary, a private party generally may choose to do or not to do
business with whomever it pleases.” (Drum v. San Fernando
Valley Bar Assn. (2010) 182 Cal.App.4th 247, 254; see 5 Witkin,
supra, Torts, § 877(1).) The theory that CVS was legally
obligated to fill Bradley’s prescriptions underlies his request for
declaratory relief,8 his claim that CVS’s conduct was unfair or
unlawful under section 17200,9 and his causes of action for
tortious interference with contract and prospective economic
advantage.10
Bradley’s claim that CVS had a legal obligation to fill his
prescriptions raises questions that the Board has the expertise to
answer. Bradley relies upon Business and Professions Code
section 733 as the source of this obligation. As mentioned, that
8Bradley seeks a declaration that “under California law
[CVS is] not allowed to impose a blanket ban on all controlled
substance prescriptions issued by Dr. Bradley to his patients.”
9 Bradley claims that CVS engaged in unlawful conduct by
“blacklisting . . . all of Dr. Bradley’s controlled substance
prescriptions without considering the legitimate medical purpose
for which the prescriptions have been issued.”
10 Unless CVS was legally obligated to fill Bradley’s
controlled substance prescriptions, its refusal to do so may have
been privileged as an exercise of its right to choose its business
customers or justified under its statutory obligations as a
pharmaceutical licensee. (See Environmental Planning &
Information Council v. Superior Court (1984) 36 Cal.3d 188, 193–
194 (interference with contract or with prospective economic
advantage is not actionable if privileged); 5 Witkin, supra, Torts,
§ 877(1).)
16
statute provides that a “licentiate shall not obstruct a patient in
obtaining a prescription drug or device that has been legally
prescribed.” (Id., § 733, subd. (a).) A licentiate has no duty to fill
a prescription if, “[b]ased solely on the licentiate’s professional
training and judgment, dispensing pursuant to the order or the
prescription is contrary to law.” (Id., § 733, subd. (b)(1), italics
added.) By virtue of its composition and its role, the Board has a
unique ability to evaluate whether a decision not to fill
prescriptions was justified by a pharmaceutical licensee’s
“professional training and judgment.” The Board also has the
expertise to evaluate the scope of CVS’s obligation not to fill
particular prescriptions under the corresponding responsibility
rule. (See Health and Saf. Code, § 11153, subd. (a).)
The Board also has the background to evaluate the specific
facts that are relevant to these issues. For example, Bradley
claimed in his declaration supporting his injunction motion that
the dosages he prescribes for his patients “are not excessive.” He
explained that, “[w]ith a few exceptions for particularly difficult
conditions, I prescribe hydrocodone to my patients. Hydrocodone
is the lowest potency pure mu receptor opiate agonist available,
and I almost always prescribe daily dosages less than 50 daily
morphine milligram equivalents (“MME”), well below the 90
MME guideline set by CVS in its 2018 CVS Pharmacy Reference
Guide.”11 The Board is better equipped than the courts to
evaluate how such technical claims affect CVS’s statutory
“corresponding responsibility.”
11 Bradley explained that “ ‘mu’ is a pain receptor for
opiates; ‘agonist’ describes the hydrocodone molecule which fits
onto the receptor.”
17
Moreover, as the trial court observed, the issue of CVS’s
statutory obligations arises in the context of a national opioid
problem. The trial court explained that “[o]pioids is a very
serious issue that I don’t think the court has nearly enough
information to make the call on.” The trial court reasonably
concluded that the Board has more experience in evaluating a
pharmaceutical licensee’s responsibilities in this context.
Second, the wide scope both of the opioid problem and of
CVS’s program to monitor prescriptions supports the need for
“regulatory uniformity.” (See Jonathan Neil, supra, 33 Cal.4th at
p. 934.) CVS claims that its computerized prescription
monitoring program has “been implemented nationwide.” This
widely implemented program thus is likely to affect prescribing
doctors in addition to Bradley. The Board is well positioned to
adopt a uniform approach to determining whether such
programs—and CVS’s implementation of its own program here—
are consistent with pharmacists’ professional obligations.
b. Bradley does not identify any impediment
to applying the doctrine of primary
jurisdiction here
Bradley makes a number of arguments as to why Board
review is not appropriate. None are persuasive.
Bradley argues that the Board does not have jurisdiction
over CVS, which is not a California licensee. But Longs and
Garfield—CVS subsidiaries that are both named defendants in
this action—do hold California pharmacy licenses. CVS claimed
below that those entities did not “directly operate” the CVS
monitoring program and did not “take the challenged action
against Bradley.” However, regardless of which entity made the
decision not to fill Bradley’s prescriptions, Longs and Garfield
18
were responsible for complying with California law in
implementing that decision. Bradley does not provide any reason
to conclude that those entities would be immune from a Board
enforcement remedy simply because they were following orders
from their parent company.
Bradley also claims that the Board has authority only over
violations of section 733 by individuals and may not take any
action against corporate violators. Bradley bases this claim on
the Legislature’s use of the term “his or her” in some portions of
section 733. (See, e.g., § 733, subd. (a) [“A violation of this section
constitutes unprofessional conduct by the licentiate and shall
subject the licentiate to disciplinary or administrative action by
his or her licensing agency”], italics added.) We reject the
argument, which cannot be reconciled with the express scope of
section 733 and of the Board’s enforcement powers.
Section 733 specifically applies to any “licentiate.” (§ 733,
subds. (a) & (b).) The term “licentiate” is equivalent to “licensee,”
and applies to any “person authorized by a license, certificate,
registration, or other means to engage in a business or profession
regulated by [the Business and Professions Code].” (§ 23.8, italics
added.) The Pharmacy Law in turn defines “person” broadly to
include a “firm, association, partnership, corporation, limited
liability company, state governmental agency, trust, or political
subdivision.” (§ 4035.)
The statute describing the Board’s enforcement authority
confirms that the Board may take remedial action against
licensed entities as well as individuals. Section 4314, subdivision
(a) states that the Board may issue citations, including fines and
orders of abatement, “for any violation of Section 733” and other
relevant statutes. Subsequent subdivisions explain that the
19
Board may issue such citations to a “person or entity.” (§ 4314,
subds. (b) & (c).) In particular, an order of abatement may
“require the person or entity to whom the citation is issued to
demonstrate how future compliance with the Pharmacy Law, and
the regulations adopted pursuant thereto, will be accomplished.”
(§ 4314, subd. (c), italics added.)
Finally, section 4301 provides that the Board “shall take
action against any holder of a license who is guilty of
unprofessional conduct.” (§ 4301, italics added.) “Any” holder of
a license necessarily includes licensed entities. And, as
mentioned, section 733 expressly provides that a violation of that
statute constitutes unprofessional conduct. (§ 733, subd. (a).)
In light of these provisions, the Legislature’s occasional use
of the term “his or her” rather than “his, her or its” in section 733
cannot reasonably be read as a limitation on the scope of the
Board’s authority to take remedial action against any licensee,
including a corporate licensee, for violations of the Pharmacy
Law.
Bradley also claims that the primary jurisdiction doctrine
does not apply here because resolution of the legal and factual
issues in this case “does not require any specialized knowledge or
specific body of expertise.” He argues that his claims raise only
“matters that are routinely handled by California courts.”
However, the issue is not whether the courts are capable of
adjudicating Bradley’s claims, but whether those claims require
“ ‘ “the resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an
administrative body.” ’ ” (Jonathan Neil, supra, 33 Cal.4th at
20
p. 931.) For the reasons discussed above, we conclude that
Bradley’s claims fall in this category.12
Finally, Bradley argues that any benefit from the Board’s
review of the issues would be outweighed by the delay that would
result. In considering whether to stay an action pending
administrative review, a court should balance the benefits that
the court would obtain from such review against the detriment
from delay and the potential prejudice to the plaintiff’s right to a
jury trial. (Miller v. Superior Court (1996) 50 Cal.App.4th 1665,
1677–1678 (Miller).)
Here, the trial court considered the harm from delay in
rejecting Bradley’s claim that a preliminary injunction was
necessary to prevent irreparable harm. The court recognized that
CVS’s conduct might have had an effect on Bradley’s practice but
concluded that this damage was no different from “every case
where a plaintiff is suffering damages. They want to resolve it as
soon [as] possible to get their reimbursement, get their damages.
That doesn’t create irreparable harm.”
Bradley presented evidence that he had lost 20 to 30
percent of his patients and a large number of referrals from
12 Bradley’s argument that the Board cannot award
damages or finally adjudicate all of Bradley’s claims is not a basis
to reject a decision to defer to the Board in the first instance
under the primary jurisdiction doctrine. As discussed, under the
primary jurisdiction doctrine, administrative review does not
preclude or replace judicial relief. Rather, “ ‘ “the judicial process
is suspended pending referral.” ’ ” (Jonathan Neil, supra, 33
Cal.4th at pp. 931–932, italics added.) Any remaining issues in
this lawsuit can be adjudicated in court after the Board has had
an opportunity to review the questions that fall within its
jurisdiction.
21
HMO’s. If he is successful in proving that tortious conduct by
CVS caused such losses, he might recover significant damages.
But the trial court reasonably concluded that such monetary
losses did not amount to irreparable harm justifying an
immediate order.
Moreover, Bradley shares some responsibility for the delay
in adjudicating his claims. Rather than initiating a complaint
with the Board, Bradley has elected to pursue only his judicial
remedies. But for that choice, the Board might have already
decided whether to issue an abatement order or made some other
final ruling that cleared the way for Bradley’s tort claims to be
adjudicated.
Finally, referral to the Board will not have any effect on
Bradley’s right to a jury trial. For all the reasons discussed
above, a ruling from the Board will provide a benefit to the court
in ruling on issues that are reserved for its decision.13 If jury
issues remain, a jury trial may proceed following Board review.
13 For example, a decision by the Board could assist the
court in resolving Bradley’s requests for injunctive and equitable
relief, including his unfair competition claim. (See Nationwide
Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th
279, 333, 334 [claims under section 17200 are equitable in
nature, and “there is no right to a jury trial in such actions under
California law either as a statutory or constitutional matter”].)
Such a decision could also assist the court in deciding legal issues
concerning the scope of pharmaceutical licensees’ rights and
obligations under section 733 for purposes of fashioning
declaratory relief and crafting jury instructions.
22
c. The trial court properly exercised its
discretion in denying the preliminary
injunction
Although the primary jurisdiction doctrine supports the
trial court’s ruling, the question remains whether we should
affirm on that ground. As mentioned, the doctrine is
discretionary. When a trial court has not considered the issue,
and therefore has not exercised its discretion in deciding whether
the primary jurisdiction doctrine applies, it may be appropriate
for a reviewing court to remand to permit such consideration
rather than first deciding the issue as a matter of law. (See City
of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211,
fn. 14 [holding that the exhaustion doctrine did not apply, and
that, because the primary jurisdiction doctrine had not been
raised below, the “trial court in the first instance should decide
whether this case should be stayed” under that doctrine]; Miller,
supra, 50 Cal.App.4th at p. 1677 [remanding for the trial court to
consider the primary jurisdiction issue where “the trial court’s
stay of the action was not the result of an exercise of discretion
under the primary jurisdiction doctrine, but of the belief that it
had no choice under the exhaustion of remedies doctrine”].)
The trial court here did not explain its reasoning in a
written ruling, so we must discern the basis for its decision from
the hearing transcripts. At the hearing on the preliminary
injunction, the trial court identified the exhaustion requirement
as the basis for its ruling that the Board should first consider the
issues that fall within its jurisdiction. However, the factors the
court cited as the basis for its ruling could apply equally to the
discretionary doctrines of primary jurisdiction and equitable
abstention.
23
The court identified the relevant issue as whether this is “a
matter that should be dealt with by the Pharmacy Board.” The
court observed that “there is an administrative body that is set
up to deal with this,” and that “there’s a very specific code section
dealing with the regulation of pharmacists that indeed the doctor
could have and should have taken advantage of.”
As discussed above, the expertise of the Board is a key
factor supporting the conclusion it has primary jurisdiction over
the statutory obligations of pharmaceutical licensees. And the
court’s conclusion that Bradley “should have” taken advantage of
that expertise suggests that the trial court recognized the
benefits of administrative review. Certainly nothing in the
court’s comments suggests that the court would have exercised
its discretion to proceed with the case in the first instance but for
a mandatory exhaustion requirement. (See Miller, supra, 50
Cal.App.4th at p. 1677.)
The trial court’s comments at a later hearing confirm that
the court intended to exercise its discretion to stay the action
pending review by the Board. On January 11, 2021, the trial
court heard arguments on the demurrer that CVS filed after
Bradley had amended his Complaint.14 The court sustained the
demurrer and ordered the action stayed pending Board
consideration. In doing so, the court explained that “[w]hat’s
been presented to me thus far, as I review it, I still think that it
appears that this a matter that should have been brought before
14At CVS’s request, we took judicial notice of the transcript
from that hearing.
24
the Board of Pharmacy. [¶] I think the Josh [sic][15] argument is
good. I also think the doctrine of equitable abstention is a good
argument that they make, that if we have two different forums
addressing this, one the Board of Pharmacy, one the court, we
have the potential of conflicting rulings. I think the court should
allow the Board of Pharmacy to proceed first on this, and if
there’s anything that remains to be adjudicated, then we can
adjudicate that in this court. [¶] That’s why I think a stay is the
appropriate course.”
Although we conclude that primary jurisdiction rather than
equitable abstention is the appropriate doctrine to apply here, the
two doctrines are closely related and both require the exercise of
discretion. The record shows that the trial court exercised its
discretion in deciding that the “appropriate” course was to stay
the action pending review by the Board. Under these
circumstances, remand for further consideration of the primary
jurisdiction doctrine is unnecessary.
15 The trial court presumably said “exhaustion.”
25
DISPOSITION
The trial court’s ruling denying Bradley’s motion for a
preliminary injunction is affirmed. This action shall remain
stayed to permit Bradley to pursue a complaint with the Board.
Following a final Board decision on such a complaint, the action
shall proceed on any remaining issues. Should Bradley elect not
to file such a complaint, the action shall be dismissed.
Respondents CVS Pharmacy, Inc., et al., are entitled to
their costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
26