Judge: Curtis A. Kin, Case: 24STCP01587, Date: 2025-01-14 Tentative Ruling

24STCP02299  Luchia Tsegaberhan
The Petition will be granted.  A copy of the signed decree will be available in Room 112 of the clerk’s office seven days after the date of the hearing.

Case Number: 24STCP01587    Hearing Date: January 14, 2025    Dept: 86

            Petitioner Nathan Russell Lynes seeks a writ of mandate directing respondent Board of Vocational Nursing & Psychiatric Technicians to vacate its decision to revoke petitioner’s psychiatric technician license.

I.       Factual Background

A.           License at Issue and Subject Incident

On June 16, 2012, the Board of Vocational Nursing & Psychiatric Technicians (“Board”) issued a psychiatric technician license to petitioner Nathan Russell Lynes. (AR 3.)  

During the time of the subject incident, petitioner worked at Patton State Hospital (“Patton”) as a psychiatric technician. (AR 129.) According to an Incident Report prepared by hospital police, on January 18, 2019, at 9:45 a.m., A.D., a staff member at Patton, entered an interior stairwell and closed the door behind her. (AR 81, 88.) A.D. then saw petitioner, who had been hidden behind the door. (AR 81, 89.) Petitioner stood with his back against the door and faced A.D. with his jeans open. (AR 81.) A.D. recalled the words “Tommy Hilfiger” on the waistband of petitioner’s underwear. (AR 89-90.) Petitioner lowed his underwear and exposed his penis. (AR 81, 89.) A.D. observed that petitioner was circumcised. (AR 91.) A.D. saw a tattoo of a women’s red lips on the left side of petitioner’s groin area below his hip. (AR 89, 91.) A.D. descended the stairwell saying: “Why are you doing that? Stop doing that!” (AR 81.) Petitioner responded: “My wife works here; don’t tell anyone about this.” (AR 81, 89.) A.D. reported the incident on January 23, 2019. (AR 81.)

B.           Termination

            On July 12, 2019, Patton served petitioner with a Notice of Adverse Action, dismissing him as of July 26, 2019. (AR 128-44.) The dismissal was based on the alleged January 18, 2019 incident between petitioner and A.D. in the stairwell. (AR 130.) Patton notified the Board of petitioner’s dismissal on September 9, 2019. (AR 126.)

C.           Criminal Charges and Conviction

On January 31, 2019, the San Bernardino County District Attorney filed a misdemeanor complaint against petitioner for one count of Indecent Exposure in violation of Penal Code § 314(1) and one count of False Imprisonment in violation of Penal Code § 236. (AR 70.)

On June 20, 2022, petitioner pleaded nolo contendere to an added count of “Fighting, Noise, Offensive Words” in violation of Penal Code § 415. (AR 76, 78.) The initial two counts of Indecent Exposure and False Imprisonment were dismissed. (AR 79.) Petitioner was sentenced to one year of summary probation and 45 days in county jail.[1] (AR 79.) Petitioner was ordered to stay away from A.D. (AR 78.)

D.           Accusation

            On November 8, 2022, the Board filed an Accusation against petitioner based on the January 18, 2019 incident. (AR 13.) The First Cause for Discipline was for Conviction of a Substantially Related Crime pursuant to Business and Professions Code §§ 490 and 4521, in conjunction with California Code of Regulations, title 16, section 2578. (AR 15.) The Board alleged that petitioner was “convicted of a crime substantially related to the qualifications, functions or duties of a licensed psychiatric technician which to a substantial degree evidences his present or potential unfitness of a licensed psychiatric technician to perform the functions authorized by the license in a manner consistent with the public health, safety, or welfare.” (AR 15.) The Second Cause for Discipline was for Unprofessional Conduct pursuant to Business and Professions Code § 4521(m) based on petitioner having committed acts of unprofessional conduct. (AR 16.) Both causes for discipline were based on the January 18, 2019 incident and petitioner’s subsequent conviction. (AR 15-16.)

            On November 17, 2022, petitioner filed a Notice of Defense, and a hearing on the Accusation followed. (AR 63-64.)

E.           Hearing

            On August 3, 2023, the hearing took place before Administrative Law Judge Carmen D. Snuggs-Spraggins (“ALJ”). (AR 190.) During the hearing, the Board called Jesse Adams, an investigator for the Board. Through the investigator’s testimony, the Notice of Adverse Action and Incident Report were admitted into evidence. (AR 205-06 [HT 16:21-17:5], 210-11 [HT 21:10-22:18], 298 [HT 109:11-21].) Petitioner objected to the admission of the documents as inadmissible hearsay. (AR 206 [HT 17:13-18:4], 211 [HT 22:12-14].)

Petitioner testified during the hearing. Petitioner claimed that AD flirted with him by staring at his private parts, biting her lip, and making comments. (AR 226, 294-95 [HT 37:3-9, 105:23-106:4].) Petitioner thought that A.D. was attracted to him. (AR 226 [HT 37:10-12, 37:23-25].)

Petitioner also claimed that he and his coworkers would discuss their personal and romantic lives. (AR 224 [HT 35:9-11].) Petitioner purportedly told his coworkers, including potentially A.D., about the tattoos around his private areas. (AR 225, 228, 292 [HT 36:14-23, 39:10-14, 103:9-25.) Petitioner admitted having a tattoo of red female lips on his pelvic area and having flirted with A.D. (AR 227 [HT 38:1-3], 291 [HT 102:8-21].) Petitioner learned to maintain a professional relationship with his coworkers and not discuss his personal life with them. (AR 231-32 [HT 42:5-8, 43:15-17].) However, petitioner denied having been alone with A.D. in a stairwell, having held A.D. against her will, or having exposed his genitals to her. (AR 227 [HT 38:6-19].)

            Petitioner presented character witnesses, who provided testimony at the hearing and/or through affidavits. Billie Lynes, petitioner’s mother and a registered nurse, testified that it was inappropriate for petitioner to discuss personal things with coworkers. She indicated the public would benefit if petitioner were allowed to work as a psychiatric technician because he is kind, compassionate, and an advocate for patient care. (AR 242, 245, 249 [HT 53:16-18, 53:25, 56:10-12, 59:2-10].) Dr. Patti Andre, a nurse practitioner with a doctorate in nursing practice and a friend of petitioner’s mother for decades, testified that petitioner is a person of integrity, honesty, and trustworthiness and that she believed petitioner does not pose a risk to the public as a psychiatric technician. (AR 257-60 [HT 68:9-12, 69:13-16, 70:17-71:4]; see also AR 167-68 [¶¶ 4, 10, 11].) Dr. Andre testified that, based on her time working with men in prisons, 85% of men are circumcised. (AR 264-65 [HT 75:13-19, 76:13-20].)

            Lauren McMullen, who has known petitioner for 23 years, testified that, despite petitioner’s conviction for disturbing the peace by loud noise and offensive conduct, petitioner does not pose a risk to the public. (AR 271-72 [HT 82:25-83:11].) McMullen also testified that it was not necessary for petitioner’s private area to be exposed to see his pelvic tattoo; she saw petitioner’s pelvic tattoo while swimming based on the placement of his trunks, even though his private area was not exposed. (AR 274-75 [HT 85:23-86:5].) Austin Grabowski, petitioner’s friend since Grabowski was 17 or 18 years old, testified that he would trust petitioner to take care of any family member in a psychiatric hospital. (AR 280 [HT 91:20-23]; see also AR 186 [¶ 12].)

            Jeovana Huerta, the administrative assistant at the automotive shop where petitioner works, has known petitioner for three years. (AR 174 [¶ 7].) Ms. Huerta declared that petitioner is “very responsible, respectful, and caring when it comes to helping others in need” and is not a danger to the public. (AR 174 [¶ 11].) Eleazor Fierros, the manager of the restaurant where petitioner works, has known petitioner since 2001. (AR 178 [¶ 7].) Mr. Fierros described petitioner as a “very caring, honest team player” and not a danger to the public. (AR  178 [¶ 11].)

            Dr. Lanikai Clouse, a clinical psychologist, evaluated petitioner’s psychological fitness to serve as a psychiatric technician and maintain his license. (AR 181 [¶¶ 6, 7].) Dr. Clouse attested to petitioner’s remorse for “crossing boundaries at work with flirting with a female worker coworker and sharing personal information.” (AR 183 [¶ 7].) Dr. Clouse believes that petitioner does not pose a risk to the public as a psychiatric technician. (AR 183 [¶ 9].) Dr. Clouse recommended that petitioner be able to keep his license. (AR 184 [¶ 10].)

            Neither A.D. nor any witnesses to the incident testified at the hearing. (AR 36 [¶ 8].)

F.           Proposed Decision and Non-Adoption

On September 5, 2023, the ALJ issued a proposed decision. (AR 18-37.) The ALJ concluded that the Board did not establish cause to impose discipline on petitioner’s license. (AR 37 [¶¶ 10, 11].) The ALJ held that, under the current version of Business and Professions Code § 493, the Board could not consider the circumstances and facts underlying petitioner’s crime in determining the extent of discipline on petitioner’s license. (AR 35-36 [¶¶ 6, 7].) Because neither A.D. nor any other witness to the subject incident testified at the hearing, the ALJ concluded that the Board failed to establish that petitioner exposed himself to A.D. (AR 36 [HT ¶ 8].) Even though petitioner submitted the Incident Report and the Notice of Adverse Action, the ALJ determined that such documents contained inadmissible hearsay. (AR 36 [HT ¶ 8].) The ALJ found that petitioner’s conviction for disturbing the peace did not evidence to a substantial degree an unfitness to practice as a licensed psychiatric technician. (AR 36 [¶ 9].)

            On November 22, 2023, the Board rejected the proposed decision and issued an Order of Non-Adoption. (AR 3.)

G.           Decision After Rejection of Proposed Decision

On April 17, 2024, the Board issued a decision immediately revoking petitioner’s license. (AR 1-12.) The Board determined that, under Business and Professions Code § 4521, it may consider the circumstances of petitioner’s crime to determine the degree of discipline. (AR 10 [¶ 3].) With respect to the First Cause for Discipline for Conviction of a Substantially Related Crime, the Board found that, based on the facts and circumstances underlying petitioner’s conviction for disturbing the peace, petitioner was convicted of a crime evidencing his unfitness to perform the functions of a licensed psychiatric technician. (AR 11 [¶ 6].) With respect to the Second Cause for Discipline for Unprofessional Conduct, the Board also found that A.D.’s statement in the Incident Report was clear and convincing evidence that petitioner exposed himself to A.D. (AR 11 [¶ 7].) The Board explained: “A.D. accurately and credibly described [petitioner’s] underwear, his anatomy, and his tattoo located below his hip. [Petitioner’s] denials and explanation are not credible.” (AR 11 [¶ 7].)

II.      Procedural History

             On May 16, 2024, petitioner filed a Verified Petition for Writ of Mandate. On October 4, 2023, respondent filed an Answer.

On November 15, 2024, petitioner filed an opening brief. On December 13, 2024, respondent filed an opposition. On December 30, 2024, petitioner filed a reply. On November 21, 2024, petitioner filed the administrative record.

III.     Standard of Review

CCP § 1094.5 is the administrative mandamus provision providing the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. 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).)

“Where the decision of a statewide administrative tribunal lacking constitutional authority to exercise judicial functions substantially affects fundamental rights, particularly the right to practice one’s profession or trade, courts must exercise their independent judgment in determining whether the administrative findings are supported by the weight of the evidence. [Citations.]” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966; see also Li v. Superior Court (2021) 69 Cal.App.5th 836, 846 [“The independent judgment standard of review applies to agency decisions revoking or suspending a medical license”].) “To the extent an administrative decision involves a question of law, including the interpretation of statutes and application of judicial precedent, the reviewing court exercises independent judgment.” (Neptune Management Corp. v. Cemetery and Funeral Bureau (2024) 100 Cal.App.5th 1007, 1012.)

IV.     Analysis

Petitioner seeks to set aside the revocation of his psychiatric technician license on the grounds that (1) the statements in the Incident Report and Notice of Adverse Action were inadmissible hearsay that the Board could not consider, (2) the Board could not consider the facts and circumstances underlying petitioner’s conviction to determine that petitioner’s crime was substantially related to the qualifications, functions, and duties of a psychiatric technician, and (3) the Board did not demonstrate clear and convincing evidence of petitioner’s unfitness to practice as a psychiatric technician.

A.           Governing Statutes and Regulations

            Petitioner’s psychiatric license is a professional license. (16 C.C.R. § 2576.6(b).) “[A] board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued.” (Bus. & Prof. Code § 490(a).)

            With respect to psychiatric technicians, the Board may suspend or revoke a license for “unprofessional conduct,” including, but not limited to, categories of conduct specified in the statute. (Bus. & Prof. Code § 4521(a).) The Board may also suspend or revoke a license for “[c]onviction of any offense substantially related to the qualifications, functions, and duties of a psychiatric technician, in which event the record of the conviction shall be conclusive evidence of the conviction.” (Bus. & Prof. Code § 4521(f).) In fixing the degree of discipline, the Board “may inquire into the circumstances surrounding the commission of the crime.” (Bus. & Prof. Code § 4521(f).)

When considering whether to suspend or revoke a license, a crime “shall be considered to be substantially related to the qualifications, functions or duties of a licensed psychiatric technician if to a substantial degree it evidences present or potential unfitness of a licensed psychiatric technician to perform the functions authorized by the license in a manner consistent with the public health, safety, or welfare.” (16 C.C.R. § 2578(a).) A substantially related crime includes “[c]onviction of sex offenses requiring a person to register as a sex offender pursuant to section 290 of the Penal Code” and “[c]onviction of a crime or act involving harassment….” (16 C.C.R. § 2578(c)(8), (c)(12).)

B.           The Incident Report Was Admissible Hearsay, but the Statements Therein Were Inadmissible

Petitioner contends that the hearsay statements in the Incident Report and Notice of Adverse Action cannot be used to establish the sexual conduct in question, as no witness to the incident, including A.D., testified. (Opening Br. at 13:10-11, 14:9-20.)

            The Board determined that A.D.’s statements in the Incident Report were clear and convincing evidence that petitioner “exposed his penis to A.D. while in an interior stairwell at the hospital during work hours.” (AR 4 [¶ 7], 11 [¶ 7].)  The Board found that “A.D. accurately and credibly described [petitioner’s] underwear, his anatomy, and his tattoo located below his hip.” (AR 11 [¶ 7].) Because the Board relied solely on the Incident Report, the Court focuses on whether A.D.’s statements therein are admissible hearsay.

            The admissibility of evidence in administrative hearings is governed by Government Code § 11513.  Subdivision (c) of Government Code § 11513 states, “Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions.” (Gov. Code § 11513(c).)  With respect to hearsay, however, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code § 11513(d).)

For the purposes of Government Code § 11513(c), “[a] police officer's report, even if unsworn, constitutes ‘the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.’” (Lake v. Reed (1997) 16 Cal.4th 448, 461.) Here, the Incident Report was prepared by the Patton State Hospital Police. (AR 81.) Accordingly, the ALJ properly admitted the Incident Report over petitioner’s objection.

However, according to petitioner, the Incident Report may not itself support a finding that he exposed himself to A.D., because the statements therein were hearsay, A.D. did not testify at the hearing (AR 36 [¶ 8]), and petitioner objected to the use of the Incident Report at the hearing (AR 210-11 [HT 21:10-22:18]).  The Court agrees. While hearsay evidence may be used to “supplement[ ] or explain [ ] other evidence,” in accordance with Government Code § 11513(d), hearsay evidence may not itself support a finding “unless it would be admissible over objection in civil actions.” (Gov. Code § 11513(d).)

In Lake v. Reed, an administrative per se case, after having determined that the Department of Motor Vehicles hearing officer did not err in admitting an unsworn police report, the Supreme Court inquired whether the report was hearsay and whether a hearsay exception applied to the statements therein to prove that the arrestee was driving. (Lake, 16 Cal.4th at 461.) The Supreme Court determined that the report itself was admissible under the public employee records exception. (Ibid.) The Supreme Court then determined that the arrestee’s admission that he was driving, which was in the report, was admissible as a party admission. (Ibid.) The Supreme Court then determined that other witnesses’ statements, including the statement of the victim into whose vehicle the arrestee collided, were admissible to supplement or explain the arrestee’s own admission. (Ibid.)

            Applying Lake here, while the Incident Report was admissible, A.D.’s hearsay statements therein were not sufficient of themselves to prove the petitioner’s alleged conduct against A.D. in the stairwell. Neither A.D. nor any other witness to the incident testified at the administrative hearing. (AR 36 [¶ 8].) No exception to the hearsay rule applied, and the Board offers none. (Opp. at 16:10-16.) Petitioner denied having committed the conduct in question. (AR 227 [HT 38:6-19]; see also AR 92 [petitioner’s denial of A.D.’s allegations in Incident Report].) A.D.’s statements in the Incident Report thus could not be used to supplement or explain any other evidence, because there was no other evidence of petitioner’s purported misconduct in the stairwell other than A.D.’s statements. (See Gov. Code § 11513(d).)

Under Government Code § 11513(d), unless admissible over objection in civil actions, hearsay evidence alone is insufficient to support a finding. Accordingly, the Board inappropriately relied on A.D.’s statements in the Incident Report to establish that petitioner exposed himself to her.

C.           Regardless of Whether the Board Could Use the Circumstances Underlying Petitioner’s Conviction to Fix the Degree of Discipline, Clear and Convincing Evidence Did Not Support the Revocation of Petitioner’s Psychiatric Technician License

Petitioner argues that, under Business and Professions Code § 493(a), the Board could not inquire into the circumstances surrounding petitioner’s conviction. The statute provides that, in a license revocation hearing, “notwithstanding any law,” when determining whether the licensee was convicted of a crime substantially related to the qualifications, functions, or duties of the licensee, “the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but only of that fact.” (Bus. & Prof. Code § 493(a).) According to petitioner, the Board could only consider the fact of petitioner’s conviction for Penal Code § 415, and nothing more, including the circumstances surrounding the conviction. (See AR 78-79.)

            The Board responds that, under Business and Professions Code § 4521, which applies specifically to psychiatric technicians, when the licensee is convicted of any offense substantially related to the qualifications, functions, or duties of the licensee, the Board “may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline.” (Bus. & Prof. Code § 4521(f).)

            It is unnecessary for the Court to determine whether Business and Professions Code section 493 or 4521 applies. Even assuming that the Board could inquire into the circumstances surrounding petitioner’s conviction, the Board did not meet its burden to establish that petitioner committed any conduct that would warrant the revocation of his license.

            “[A] trial court reviewing an administrative agency's findings under the independent judgment standard of review in section 1094.5 must…account for the standard of proof required and applied in the underlying proceeding.” (Li v. Superior Court (2021) 69 Cal.App.5th 836, 844.) The standard of proof in an administrative hearing to revoke a professional license is “clear and convincing proof to a reasonable certainty and not a mere preponderance of the evidence.” (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856, italics in original.) “Clear and convincing” means evidence that is “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Angelia P. (1981) 28 Cal.3d 908, 919, quoting Sheehan v. Sullivan (1899) 126 Cal. 189, 193.)

            With respect to the First Cause of Discipline for Conviction of a Substantially Related Crime asserted in the Accusation, the Board relied on petitioner’s conviction for violation of Penal Code § 415 and the circumstances underlying the conviction. (AR 15-16 [¶ 11(a), 11(b)].) Specifically, the First Cause for Discipline was based on petitioner’s having exposed himself to A.D. in a stairwell. (AR 15-16 [¶ 11(b)].) In its Decision, the Board determined that the facts and circumstances underlying petitioner’s conviction for Penal Code § 415, disturbing the peace, demonstrated petitioner’s unfitness to perform the duties of a psychiatric technician to a substantial degree. (AR 11 [¶ 6].) As discussed above, however, other than with A.D.’s hearsay statements in the Incident Report, the Board did not establish with any evidence, let alone clear and convincing evidence, that petitioner exposed himself to A.D.  Because the Board’s conclusion was based solely on A.D.’s hearsay statements in the Incident Report (AR 11 [¶ 7]), the evidence was insufficient to support the First Cause of Discipline.

            Invoking Evidence Code § 452.5, the Board contends that petitioner’s record of conviction constitutes sufficient evidence to support the First Cause of Discipline.  Evidence Code § 452.5 provides that an “official record of conviction” is admissible under the public records hearsay exception “to prove the commission…or other act, condition, or event recorded by the record.” (Evid. Code § 452.5(b)(1).)  While that is true, petitioner’s official record of conviction does little to provide evidence necessary to support the Board’s contention.  The records of conviction—consisting of an Advisement of Rights, Waiver and Plea Form (AR 73-75), the Plea Agreement (AR 76-77), and Minute Order (AR 78-80)— prove only that petitioner was convicted by a no-contest plea to a misdemeanor violation of Penal Code § 415, “Fighting, Noise, Offensive Words.”  Penal Code § 415(a) makes it a crime for “(1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. [¶] (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” (Pen. Code § 415(1-3).) Petitioner’s record of conviction provides no proof of the particular conduct forming the basis of his § 415 conviction and, more to the point, does not prove that petitioner exposed himself to A.D. as alleged. (AR 15) or engaged in a crime that “evidences present or potential unfitness of a licensed psychiatric technician to perform the functions authorized by the license in a manner consistent with the public health, safety, or welfare.” (See 16 C.C.R. § 2578(a).)

The Court recognizes the misdemeanor complaint initially charged petitioner with one count of Indecent Exposure in violation of Penal Code § 314(1) and one count of False Imprisonment in violation of Penal Code § 236. (AR 70.)  That complaint also alleges that petitioner “willfully, unlawfully, and lewdly” exposed his “person, and the private parts thereof, in a public place” and that he “unlawfully violate[d] the personal liberty of” A.D. (AR 70 [misdemeanor complaint].) However, the counts in the complaint were dismissed and stricken (AR 79), and petitioner pleaded no contest to a newly added count for “Fighting, Noice, Offensive Words.” (AR 76, 78.)  The Complaint is merely evidence of what petitioner was initially charged with, it is not evidence of what petitioner actually did.

            Accordingly, the Board did not demonstrate by clear and convincing evidence that petitioner was convicted for exposing himself to A.D., upon which the First Cause for Discipline for Conviction of a Substantially Related Crime was based.

With respect to the Second Cause for Discipline for Unprofessional Conduct, the Board based this cause for discipline on Business and Professions Code § 4521(m) and incorporated the allegation that petitioner exposed himself to A.D. (AR 16 [¶ 12].) Business and Professions Code § 4521(m) allows the Board to revoke a psychiatric technician license for the “commission of any act punishable as a sexually related crime, if that act is substantially related to the duties and functions of the licensee.” (Bus. & Prof. Code § 4521(m).) As discussed above, however, because the Board relied solely on A.D.’s statements in the Incident Report as evidence to establish that petitioner exposed himself, the Board did have any evidence—let alone clear and convincing—that petitioner committed any unprofessional conduct warranting revocation of his license.

For the foregoing reasons, the Board failed to meet its burden to establish by clear and convincing evidence that discipline on petitioner’s psychiatric technician license was warranted based on the causes for discipline asserted in the Accusation. Accordingly, the Board must set aside its order revoking petitioner’s psychiatric technician license.

V.      Conclusion

            The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and a proposed writ of mandate.