This case was last updated from Los Angeles County Superior Courts on 04/09/2020 at 06:15:45 (UTC).

ARASH AKMAL ET AL VS CALIFORNIA STATE BOARD OF PHARMACY

Case Summary

On 01/17/2018 ARASH AKMAL filed an Other - Writ Of Mandamus lawsuit against CALIFORNIA STATE BOARD OF PHARMACY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARY H. STROBEL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1868

  • Filing Date:

    01/17/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MARY H. STROBEL

 

Party Details

Plaintiffs and Petitioners

PARS PHARMACY INC

AKMAL ARASH

Defendant and Respondent

CALIFORNIA STATE BOARD OF PHARMACY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CUCHER ROB D. ESQ.

CUCHER ROB D ESQ.

Respondent Attorneys

WILSON SUSAN MELTON

KING MATTHEW ARTHUR

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON PETITION FOR WRIT OF MANDATE)

2/27/2020: Minute Order - MINUTE ORDER (HEARING ON PETITION FOR WRIT OF MANDATE)

Opposition - OPPOSITION TO PETITION FOR WRIT OF MANDATE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

10/24/2019: Opposition - OPPOSITION TO PETITION FOR WRIT OF MANDATE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

Request for Judicial Notice

10/24/2019: Request for Judicial Notice

Notice of Lodging - NOTICE OF LODGING PETITIONERS NOTICE OF LODGING OF ADMINISTRATIVE RECORD VOLUMES I AND II

11/14/2019: Notice of Lodging - NOTICE OF LODGING PETITIONERS NOTICE OF LODGING OF ADMINISTRATIVE RECORD VOLUMES I AND II

Notice of Lodging - NOTICE OF LODGING PETITIONERS NOTICE OF LODGING OF JOINT APPENDIX

11/14/2019: Notice of Lodging - NOTICE OF LODGING PETITIONERS NOTICE OF LODGING OF JOINT APPENDIX

Reply - REPLY PETITIONERS REPLY TO RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

11/14/2019: Reply - REPLY PETITIONERS REPLY TO RESPONDENT'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

Minute Order - MINUTE ORDER (COURT ORDER)

12/9/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Brief - BRIEF PETITIONERS' AMENDED OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

8/14/2019: Brief - BRIEF PETITIONERS' AMENDED OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

Brief - Brief Petitioners' Opening Brief in Support of Petition for Writ of Administrative Mandamus

2/20/2019: Brief - Brief Petitioners' Opening Brief in Support of Petition for Writ of Administrative Mandamus

Stipulation and Order - Stipulation and Order TO CONTINUE HEARING AND SET NEW BRIEFING SCHEDULE; PROPOSED ORDER

3/4/2019: Stipulation and Order - Stipulation and Order TO CONTINUE HEARING AND SET NEW BRIEFING SCHEDULE; PROPOSED ORDER

Order - Order [PROPOSED] ORDER

3/8/2019: Order - Order [PROPOSED] ORDER

Minute Order - Minute Order (NON-APPEARANCE CASE REVIEW)

3/8/2019: Minute Order - Minute Order (NON-APPEARANCE CASE REVIEW)

Minute Order -

6/12/2018: Minute Order -

Minute Order -

5/1/2018: Minute Order -

NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

1/26/2018: NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

Minute Order -

1/26/2018: Minute Order -

PROOF OF SERVICE OF PETITIONER'S EX PARTE APPLICATION FOR EMERGENCY STAY THE BOARD OF PHARMACY'S DECEMBER 29, 2017 ORDER AND [PROPOSED] ORDER

1/26/2018: PROOF OF SERVICE OF PETITIONER'S EX PARTE APPLICATION FOR EMERGENCY STAY THE BOARD OF PHARMACY'S DECEMBER 29, 2017 ORDER AND [PROPOSED] ORDER

RESPONDENT BOARD OF PHARMACY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO STAY DISCIPLINARY ORDER

1/26/2018: RESPONDENT BOARD OF PHARMACY'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER TO STAY DISCIPLINARY ORDER

13 More Documents Available

 

Docket Entries

  • 03/16/2020
  • DocketDeclaration (OF ROB D. CUCHER RE: DRAFTS OF PROPOSED JUDGMENT AND WRIT AFTER HEARING (DRAFTS ATTACHED)); Filed by Arash Akmal (Petitioner); Pars Pharmacy, Inc (Petitioner)

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  • 02/27/2020
  • Docketat 1:30 PM in Department 82; Hearing on Petition for Writ of Mandate - Held

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  • 02/27/2020
  • DocketMinute Order ( (HEARING ON PETITION FOR WRIT OF MANDATE)); Filed by Clerk

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  • 12/10/2019
  • Docketat 09:32 AM in Department 82; Hearing on Petition for Writ of Mandate - Not Held - Clerical Error

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  • 12/10/2019
  • Docketat 09:30 AM in Department 82; Hearing on Petition for Writ of Mandate - Not Held - Continued - Court's Motion

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  • 12/09/2019
  • Docketat 11:04 AM in Department 82; Court Order

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  • 12/09/2019
  • DocketMinute Order ( (COURT ORDER)); Filed by Clerk

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  • 11/14/2019
  • DocketReply (Petitioners Reply to Respondent's Opposition to Petition for Writ of Administrative Mandamus); Filed by Arash Akmal (Petitioner); Pars Pharmacy, Inc (Petitioner)

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  • 11/14/2019
  • DocketNotice of Lodging (Petitioners Notice of Lodging of Administrative Record Volumes I and II); Filed by Arash Akmal (Petitioner); Pars Pharmacy, Inc (Petitioner)

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  • 11/14/2019
  • DocketNotice of Lodging (Petitioners Notice of Lodging of Joint Appendix); Filed by Arash Akmal (Petitioner); Pars Pharmacy, Inc (Petitioner)

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23 More Docket Entries
  • 01/26/2018
  • DocketEx-Parte Application; Filed by Arash Akmal (Petitioner)

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  • 01/26/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Arash Akmal (Petitioner)

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  • 01/26/2018
  • DocketOpposition Document; Filed by California State Board Of Pharmacy (Respondent)

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  • 01/26/2018
  • DocketNotice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 01/26/2018
  • DocketNOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 01/26/2018
  • DocketPETITIONER'S EX PARTE APPLICATION FOR EMERGENCY STAY THE BOARD OF PHARMACY'S DECEMBER 29, 2017 ORDER

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  • 01/26/2018
  • DocketPROOF OF SERVICE OF PETITIONER'S EX PARTE APPLICATION FOR EMERGENCY STAY THE BOARD OF PHARMACY'S DECEMBER 29, 2017 ORDER AND [PROPOSED] ORDER

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  • 01/17/2018
  • DocketSUMMONS

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  • 01/17/2018
  • DocketPetition; Filed by null

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  • 01/17/2018
  • DocketVERIFIED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS

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Tentative Rulings

Case Number: BS171868    Hearing Date: March 04, 2021    Dept: 82

Arash Akmal, et al.,

v.

California State Board of Pharmacy,

Judge Mary Strobel

Hearing: March 4, 2021

BS171868

Tentative Decision on “Motion for Order that Board of Pharmacy Set Aside Its September 8, 2020 Decision After Writ”

Petitioners Arash Akmal (“Akmal”) and Pars Pharmacy, Inc. (“Pars”) (“Petitioners”) move for an order setting aside the September 8, 2020 decision of Respondent California State Board of Pharmacy (“Respondent” or “Board”), which was issued in response to this court’s writ of mandate. In their proposed order, Petitioners request an order directing Board to remove all discipline from Petitioners’ record or, alternatively, to reduce the discipline. Petitioners also ask for an order directing Board to reevaluate this court’s ruling on the writ petition and to issue a new decision in response to the writ.

Procedural History

On January 17, 2018, Petitioners filed a verified petition for writ of administrative mandate.

On January 26, 2018, the court denied Petitioners’ ex parte application for an emergency stay of the Board’s December 29, 2017 order.

On March 16, 2018, Board filed an answer.

On August 14, 2019, Petitioners filed their amended opening brief in support of the petition. The court received Board’s opposition, Petitioners’ reply, the administrative record, and the joint appendix.

On February 27, 2020, after a hearing, the court issue an order granting the writ petition in part.

On May 21, 2020, the court entered a final judgment and a writ of mandate. The court ordered Board to reconsider its decision and the discipline previously imposed after setting aside the following fact findings and legal conclusions:

1. Board’s factual findings that Akmal admitted to the Indio Police, or at the hearing, to filling prescriptions for Iran S. without authorization. (See AR 24-31, ¶¶ 12, 13(d), 13(e), 19(h).)

2. Board’s factual findings that Akmal did not obtain authorization from Dr. Shakibai for two prescriptions for Lovaza Petitioner filled for Iran S. on January 31, 2012. (See AR 21-25, ¶¶ 8(c), 10(a)-(e), 12.)

3. Board’s factual finding that Akmal did not obtain authorization from Dr. Shakibai for other prescriptions Petitioner wrote for Iran S. but did not fill. (See AR 24, ¶ 11.)

4. Board’s factual finding that Petitioners did not obtain verbal authorization from Dr. Soni’s office for 11 prescriptions, numbers 10035 through 10046, that Petitioner filled for Iran S. while at Pars. (AR 26, ¶¶ 15(c), 16(a).)

5. Board’s legal conclusions for all causes for discipline to the extent such legal conclusions were based on the findings that Akmal wrote and filled fraudulent or unauthorized prescriptions for Iran S. at Walgreens or Pars. (See AR 21-25, ¶ 8(c), ¶ 12, ¶ 13(a), ¶ 13(e); AR 33-34 ¶¶ 2-6.)

On October 1, 2020, the Board filed its “Final Return to Writ of Administrative Mandate.” The return indicates that, on September 8, 2020, Board issued a new decision after remand. Board attached the new decision as Exhibit A to the return. As discussed below, the decision reflects that Board set aside the fact findings and legal conclusions specified in the writ and reconsidered the case and discipline. After reconsideration, Board again imposed a five-year probation on Petitioners from the original effective date of February 8, 2018.

On February 4, 2021, Petitioners filed the instant motion. The court has received Respondent’s opposition and Petitioners’ reply.

Summary of Applicable Law

“When a respondent believes it has completely fulfilled the terms of a writ, its return should state that it has satisfied the writ in full compliance with the final judgment and writ, and set out the actions taken to meet the writ's terms.” (Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) “The trial court that issues a writ of mandate retains continuing jurisdiction to make any orders necessary for complete enforcement of the writ.” (Ibid.; see CCP § 1097.)

CCP section 1097 “authorizes three methods by which a court may enforce a peremptory writ of mandate: (1) a court may impose a fine not exceeding $1,000; (2) a court may order the disobedient party to be imprisoned until the writ is obeyed; and (3) a court may make any order necessary and proper to enforce the writ.” (King v. Woods (1983) 144 Cal.App.3d 571, 577-578.)

Analysis

Petitioners appears to contend that Board failed to set aside fact findings and legal conclusions and to reconsider the case, as ordered by the court. The court interprets Petitioners as moving to enforce the court’s writ pursuant to CCP section 1097.

Petitioners also make arguments about the propriety of Board’s decision after remand, including the reasonableness of the penalty. As discussed below, those arguments about Board’s exercise of discretion are not properly addressed in a motion to enforce the writ pursuant to CCP section 1097. If Petitioners contend that Board prejudicially abused its discretion in the decision after remand, Petitioners must file a new petition for writ of administrative mandate. (See CCP § 1094.5.)

Board Complied with the Court’s Writ

Petitioners apparently contend that “Board failed to comply with the Ruling [on the writ petition] or issued a new decision that was not within the scope of the Ruling.” (Mot. 8.)

As set forth at length in opposition, Board set aside the fact findings and legal conclusions specified in the court’s writ. (See Oppo. 1-11.) Thus, for example, the writ ordered the Board to set aside its factual findings that Akmal admitted to the Indio Police or, at the hearing, to filling prescriptions for Iran S. without authorization. (AR 24– 31, ¶¶ 12, 13(d), 13(e), 19(h).) Paragraph 12 formerly read, in part, that “[b]ased upon his own admission to filling prescriptions without prior authorization,…including two identified as Dr. Shakibai’s, Akmal filled prescriptions based upon history, or made new prescriptions instead of securing the transfer of prescriptions.” In its decision after remand, the Board completely removed paragraph 12. Board also modified paragraphs 13(d) and (e) and 19(h) in compliance with the writ.

In a detailed discussion, Respondent shows in its opposition brief that Board made similar changes to the decision in response to the other fact findings and legal conclusions that the court ordered Board to set aside. (Oppo. 1-11.) Petitioners do not challenge this detailed discussion in reply and do not show that Board failed to set aside any of the fact findings and legal conclusions as ordered by the court.

Petitioners do not show non-compliance with the court’s writ.

Petitioners Cannot Litigate the Writ Petition or the Court’s Findings

Petitioners dedicate a substantial part of their motion to relitigating the Board’s findings and legal conclusions concerning Petitioners’ drug inventory. (Mot. 6–8.) However, those issues were already decided in the Board’s favor. The writ did not command the Board to modify any part of its decision concerning Petitioners’ drug inventory. Petitioners cannot now re-litigate those findings.

Petitioners seem to take issue with other parts of the court’s writ decision. For instance, in their discussion of the second and third causes for discipline, Petitioners state: “The Court may not have realized, and the Board fails to address , that the only doctor who prescribed for family members was Dr. Gharib who, as agreed, did authorize all of his prescriptions.” (Mot. 4.) Petitioners state that “the Board cannot point to one single instance of Akmal dispensing to family members any medications at all. This admission of ‘one time’ somehow got blown out of proportion by the Court and the Board into a pattern and practice issue.” (Mot. 5.) On a motion to enforce the writ, Petitioners cannot re-litigate the court’s writ decision.

Petitioners’ Remaining Contentions Are Not Proper for a Motion to Enforce the Writ

Petitioners’ remaining contentions must be made in a new petition for writ of administrative mandate. Under CCP section 1094.5(b), an abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Petitioners argue that Board prejudicially abused its discretion in imposing “the same exact discipline on Petitioners as before the Ruling” on the writ petition. (Mot. 3.) Petitioners state that “5 years probation is simply not reasonable in light of the actual facts and evidence here” and that “[t]he factual findings referred to in the Decision … do not support the discipline imposed on Akmal.” (Mot. 5-6.) “Petitioners believe the proper discipline here should be 2 years, and were willing to accept 3 years as a means to resolve this case, but the request was denied.” (Mot. 8.) Petitioners contend that “[t]he Board’s Decision, however, imposes discipline that is not consistent with these findings, far exceeding its own disciplinary guidelines as to both Petitioners.” (Reply 2.) “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) On a motion to enforce under CCP section 1097, the court does not decide whether Board abused its discretion in imposing a 5-year probation based on the amended findings and legal conclusions after remand. Petitioners must raise those contentions in a new petition for writ of administrative mandate.

Petitioners contend that “[t]he Second and Third Cause for Discipline must be stricken as there are not sufficient grounds to support them based on the Court’s Ruling; or, alternatively, a lower level of discipline should be ordered under the circumstances.” (Mot. 6.) The court’s writ did not instruct Board to set aside all of its findings or legal conclusions for the second and third causes of discipline. Board’s legal conclusions for the second and third causes for discipline were based, in part, on fact findings that the court did not set aside. (See AR 21-25, ¶ 8(c), ¶ 12, ¶ 13(a), ¶ 13(e); AR 33-34 ¶¶ 2-6.) However, if Petitioners believe that the Board prejudicially abused its discretion in its new legal conclusions or in imposing discipline based on specific causes for discipline, Petitioners must make such contention in a new petition for writ of administrative mandate.

Conclusion

The motion is DENIED.

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