Judge James C. Chalfant, Case Number: 23STCP03598, Date: 2024-10-03 Tentative Ruling

Katherine Berberian v. Los Angeles Counnty Civil Service Commission, 23STCP03598

Tentative decision on petition for mandamus: granted

Petitioner Katherine Berberian (“Berberian”) seeks mandamus compelling Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision upholding her 25-day suspension.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Berberian filed the Petition against Respondent Commission on October 2, 2023, naming as Real Parties-in-Interest Los Angeles County (“County”) and the County’s Department of Health Services (“Department”). The verified Petition alleges in pertinent part as follows.

The Department is a County department operating and overseeing the County's health service programs, including its various medical centers. Pet., ¶2. At all relevant times, Berberian was employed by the Department at its Olive View-UCLA Medical Center (“Olive View”). Pet., ¶2. Respondent Commission is an agency of the County which has the authority to review all disciplinary actions by the Department. Pet., ¶3.

On about January 15, 2021, the Department and County notified Berberian that she was being suspended from her position for 25 days, effective January 18, 2021. Pet., ¶6. Berberian appealed her suspension to the Commission. Pet., ¶7.

The matter was heard by a Hearing Officer. Pet., ¶10. Based upon the evidence at hearing, the Hearing Officer recommended that Berberian’s suspension be sustained. Pet., ¶11. Berberian thereafter submitted written objections to the Hearing Officer's report. Pet., ¶13. On July 12, 2023, the Commission considered and overruled Berberian's objections. Pet., ¶14.

On July 26, 2023, the Commission announced its decision to sustain the Department in its suspension. Pet., ¶15.

Petitioner Berberian seeks a writ of mandate to set aside the Commission's determination that her suspension was warranted. Pet., ¶16. The Commission's conclusions are not supported by the administrative findings and the weight of the evidence, are arbitrary, capricious and/or contrary to established law, and thus are insufficient to justify Petitioner's suspension. Pet., ¶17. The Commission also failed to provide an analytical bridge between the evidence and the final conclusion to sustain the suspension and failed to proceed in the manner required by law in rendering its final decision. Pet., ¶¶ 18-21.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). The independent judgment standard of review applies to administrative findings in cases involving a public employee’s vested property interest in her employment. See Barber v. Long Beach Civil Service Comm’n, (1996) 45 Cal.App.4^th 652, 658.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“In exercising its independent judgment, the trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the court should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d at 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly v. State Personnel Board, (“Skelly”) (1975) 15 Cal.3d 194, 217-18. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (1972) 26 Cal.App.3d 961.

Berberian has been a 33-year employee of the Department, holding the position of Cytology Laboratory Technologist I since August 1990. AR 209. Berberian’s performance reviews reflected “Competent” evaluations in her three years the three years before her discipline. AR 47, 113-34. Berberian has no prior discipline. AR 41-49.

Since January of 2018, Berberian has worked at Olive View, a facility operated by the Department. AR 728. Olive View is required by federal law and Department policy to safeguard all patient information. The facility’s license and joint commission accreditation depend upon compliance with privacy and confidentiality rules. AR 591-94.

Shortly after Berberian began working at Olive View in January 2018, she signed an agreement of understanding acknowledging that she had received and read the Department’s privacy and confidentiality policies and agreeing that she would comply with them. AR 95-97. She received multiple trainings and orientations regarding the privacy and confidentiality rules. AR 595. In her interview and testimony, Berberian acknowledged that “she was ‘very aware of the HIPAA rules’ and had received a ‘lot’ of training regarding patient privacy rules.” AR 613, 758-59. She knew that protecting the privacy of patients was extremely important to the Department, and that the facility’s licensing depended on protecting patient privacy. AR 787.

Berberian’s duties at Olive View followed the County's Job Classification Specifications for her position. AR 109-11. In general, Berberian reviews slides of patient biological samples to check for diseases and cancer. AR 729. If there are abnormal findings, it goes to the pathologist to evaluate. AR 729.

In performing her duties, Berberian accesses a general database, Orchid, which has several modules. AR 421, 717-18. The Orchid system tracks every single movement, page accessed, and click that is done, which then can be extracted and reviewed in a report or audit and the accuracy of the data is reliable. AR 597-98. One Orchid module, PowerChart, is an all-encompassing medical record, which includes all information about a patient, including his or her care plan, x-rays, and pharmacy information. AR 421-22. Powerchart is akin to an old fashion file folder that would have contained x-rays and other medical test results. AR 717-18. PathNet is another module that pathologists and cytologists use. AR 421.

Any time an employee needs to access information about a patient, she should use the medical record number (“MRN”) that she had been provided. AR 424-25. Employees are directed to use the MRN if it is available. If an employee uses a patient’s name, they might inadvertently access records to which there was no legitimate reason to access. AR527-28. For example, use of the name “Maria Garcia” could generate hundreds of Maria Garcias. AR 527.

On January 15, 2021, the Department notified Berberian that she was suspended for 25 days for improper access of protected patient health records. AR 41-49. The Department stated that Berberian had accessed her own medical records on two occasions without authorization or need. AR 46. She also accessed and attempted to access the protective health information of 63 patients. AR 46.

The suspension was based upon an investigative report. AR 104-08. The report stated that multiple audits for the period of December 1, 2018 through December 19, 2019 revealed that Berberian accessed 63 patients patient records without authorization or business need. AR 106. Nine of these patients were not assigned to Berberian or were not a current case that she should have been accessing. AR 106. Each of these patient records were accessed through Powerchart, which Berberian does not need to perform her duties. AR 106. Berberian attempted to view unauthorized documents of 53 patients, printed documents of five patients, and searched for eight of these patients by name instead of by MRN. AR 106-07. Berberian searched for four patients by name but did not access the patient records. AR 107.

Berberian also accessed her own medical records on April 24 and May 6, 2019. AR 107. She did not submit a request to do so as required by DHS Policy 361.15. AR 17.

Berberian appealed her suspension to the Commission. During the hearing, the Department called four witnesses: Susan Mawer-Spike (“Spike”), Dr. Holli Mason (“Mason”), Suren Tamrazyan (“Tamrazyan”), Anne Robinson-Koreisz (“Koriesz”), and Dr. Armine Baltayan (“Baltayan”). Berberian also called Baltayan and testified herself. AR 198.

Spike testified in pertinent part as follows. She has been employed by the County since 2012 and has been a Supervising Clinical Lab Scientist 2 for eight years. She supervised Berberian from December of 2018 until February of 2020. See AR 198.

Olive View uses a DHS system-wide computer program called Orchid. AR 421. The the Orchid system "shows everything ... when you log into the system, it tracks each and every step and each and every thing you look at.... It's very specific. There's no disputing what is being done in the system by the user." AR 437-38.

Among the components of the Orchid system is PathNet which contains patient medical information and is used by pathologists and cytologists. AR 421. Another program is PowerChart, which is DHS's all-encompassing medical records for every patient. AR 421.

Of the two components, Berberian would have used PathNet on a regular basis in the performance of her assigned duties. AR 421. She would have a case assigned to her and would have looked at patient records when there was need to do so. AR 423. Employees are only supposed to access patient records when there is need to do so. AR 423. Berberian would not routinely have accessed PowerChart patient records. AR 424. She may have had to look up a previous case if there was a subsequent pathology case arising years later, but there would not be any other need for her to use PowerChart. AR 424.

The proper way of accessing a patient's medical record in Orchid is searching by a patient's unique MRN. AR 425. It is a unique identifier, unlike date of birth or name. AR 425. Berberian would have been given a MRN for each patient whose medical records in PathNet she was authorized to access that day. AR 425.

In October 2019, after Berberian reported an issue with the odor coming from the mounting media for the slides, she was removed from her duty to read slides and assigned to review completed cases to see whether she agreed with the pathologist’s final determination. AR 425-27.

Spike asked Berberian on a couple of occasions what she was doing in her case reviews for the seven-and-a-half hour workday. AR 426. Berberian was not cooperative and deferred to her technical supervising pathologist. AR 426. Spike asked pathologist Baltayan what Berberian’s work entailed so that she (Spike) could assess Berberian’s workload. AR 426. Baltayan explained that Berberian’s job entailed pulling previously read and completed cases, looking at the slide, and seeing if she agreed with the pathologist’s final determination. AR 427.

To firm that Berberian was performing this task for the entire workday, Spike asked for an audit. AR 428. Spike did the initial review herself. AR 428. From that audit, Spike learned that Berberian was spending no more than an hour of her workday in the Orchid system. AR 430. In “reading through this report”, which was quite detailed, Spike noticed that Berberian had searched for records by typing in her own last name instead of a MRN. AR 431. This yielded information about a patient with the same last name as Berberian who had not been an Olive View patient; the patient had been seen at County/USC hospital. AR 431. She also saw that Berberian had accessed her own medical records, which an employee cannot do. AR 433.

She contacted Koriesz, a security officer. AR 432. She originally asked for an audit through the lab information systems person, Kathleen Singer, but the latter deferred to the IT people. AR 434. So she went through her supervisor, John Agaton, and a “second audit” was conducted. AR 434. Koriesz’ second audit was a close continuation of what Spike had requested with an additional three or four months of activity. AR 480.

In her review of the audit – it is unclear whether Spike was testifying about her own initial review or Koriesz’ second audit -- she discovered that Berberian had searched her last name in Orchid and accessed the medical record of another person with the same last name. AR 435-36. Berberian had no business need to access that record. AR 435. She also did name searches on other patients. AR 436-37.

Koriesz provided Spike with the audit to review. AR 435. Thus, Spike reviewed both audits. AR 481. She told Kiriesz that she did not find any further violations. AR 482. Koriesz told her that Berberian denied accessing all these records except her own. AR 484.

In September of 2019, she reported to the Facility Privacy Manager Robinson-Koreisz that she was concerned Berberian was improperly accessing patient records in Orchid. AR0199.

Koreisz testified in pertinent part as follows. She has been employed with the County for 28 years. AR 592. Since 2017, she has been the Facility Privacy Manager at Olive View, which is the regulatory officer responsible for the hospital's licensing, accreditation, and compliance with HIPAA privacy requirements. AR 592. As part of her duties, she investigates patient privacy violations. AR 591-92, 594.

Olive View employees are required annually to reorient themselves with a handbook on patient confidentiality and privacy. AR 595. Berberian had received substantial training regarding patient privacy, and she should have known it was against policy to access her own records without a business need. AR 595-96.

There are certain levels of information an employee can access depending on their role in the system. AR 597. It is all very contained and built in a way that actively safeguards patient information at all times. AR 597. The scope of an employee's accessibility within Orchid is determined by one's job title. AR 597. An employee may be able to access an area and also be limited as to what parts within that area the employee can access. AR 597. The Orchid system "tracks every single click in the system, every time someone opens something, every time someone opens a new window, it tracks it. The system tracks all of that information and so basically you can run a report. You can run a report by employee. You can run a report by unit. You can run a report by patient, and you can see line by line, click by click everything that was accessed in a patient's record.” AR 598.

In September 2019, Berberian's supervisor, Spike, informed her that she (Spike) was concerned Berberian may have violated privacy rules in accessing patients' private health information in Orchid, including improper access to Berberian's own patient records. AR 599.

Koriesz prepared a report of her investigation. AR 600. She conducted an audit to determine if Spike’s understanding was accurate. AR 603. In the course of her investigation, Koriesz actually did three audits. AR 603, 627. To conduct an audit, she contacts “our ... Department Information Security Officer ... obviously on the I.T. side - - I.T. security, and he's the one who runs the access audit for me. So I contact him. I ask him to run the audit, and he e-mails it to me, ... as an Excel spreadsheet." AR 618-19.

Koreisz conducted two interviews of Berberian on October 9 and November 18, 2019. AR 620, 622. Koreisz explained that her office’s protocol is not to record investigatory interviews because of privacy concerns. AR 609-10.

At the first interview, she discussed Berberian’s training with her and Berberian agreed that she was very well versed in HIPPA privacy policy. AR 613. asked Berberian whether she knew the patient with the same last name as hers, and Berberian said she did not and that she could not remember accessing that person's medical records. AR 614. Berberian told her that she remembered she had accessed her own records to look at her x-ray and Koriesz told her the audit showed that she looked at more than that. AR 615. Berberian did not remember doing so. AR 615. Koriesz spoke with that person who had the same last name as Berberians's and was told that he did not know Berberian and had not authorized access to his medical records. AR 617.

After this, Koreisz widened the scope and conducted another audit. AR 618. She identified that Berberian had accessed two more patient records and also accessed her own medical records again. AR 618. She also found that Berberian had performed around ten person searches rather than using MRNs. AR 619.

At Berberian’s second interview, she discussed Berberian’s work process with her and her (Koreisz’) findngs. AR 621. Again, Berberian said that she just wanted to see her own medical information. AR 623. A single access to private records leads to discipline. AR 623.

Koreisz wanted to make sure she was seeing the information correctly and “pulled” another audit. AR 625. She reached out to Berberian’s former supervisors at County/USC and was informed that her job did not require her to use PowerChart. Her work at County/USC was all within PathNet. AR 626. She had no business need to use that module. AR 626.

The third audit revealed that Berberian "had accessed over 60 patients' information inappropriately, that she had attempted to open documents that she was not authorized to view given her role in Orchid. The access audit shows ... every click that you make, and if you attempt to open documents in the system, it will block you. So she also attempted to open several documents that she was not authorized to access, and the system blocked her." AR 627.

The results of Koreisz’s investigation were compiled into a “Privacy Incident Summary,” which identified the policy violations that were the basis for the 25-day suspension. AR 103-08, 639, Ex. 12. She gave the Department’s Privacy Office information about her investigation, mostly about her audits, and the Privacy Office drafted the summary which she reviewed and then the Privacy Office put it into final. AR 636-41. She discussed her audits with Spike but did not use Spike’s audit because she is not an investigator. AR 641, 646.

She gave each of the 63 patients whose records had been improperly accessed a written notification that their medical record had been improperly accessed. AR 629. She also gave written notification to the California Department of Health. AR 629.

Mason testified in pertinent part as follows. She has been employed with the County since 2001. See AR 202. She is the Chair of the Pathology Departments and the Director of the pathology laboratories at both the Harbor (since 2017) and Olive View (since 2020) medical centers. See AR 202. She was not the decision-maker in Berberian's case. See AR 202. The decision-maker was Rima Metavosia, who retired last year, and Mason was testifying as the representative of the discipline decision maker. See AR 202.

She reviewed all the exhibits and, like the decision-maker, found that Berberian had committed multiple violations of accessing patients' records, including her own patient records, without a business need. AR 522, 524. Access to patient records without authorization violates HIPPA and cause notifications to be made of a data breach for those patients. AR 522. The policy also is clear that an employee has a right to her own medical records, but she has to make a formal request to do so. AR 542.

Accessing patient records by using a patient name is problematic and can lead to review of the wrong record. AR 527. There is no written policy to use the MRN, but it is referred if available and that is the direction employees are given. AR 527. People do make mistakes and an employee realizing the wrong medical record has been accessed who immediately backs out without spending time going through a chart is "a different story" and it might not be a HIPAA violation. AR 528.

The guidelines indicate that the discipline for such a violation is 25 days to dismissal. AR 521. Her opinion is that the discipline was justified, and she was surprised that the discipline issued to Berberian was not a dismissal. AR 542-43. A single incidence of Berberian viewing her own records without written authorization would have supported the 25-days suspension. AR 576.

Baltayan testified in pertinent part as follows. She is a pathologist, and she supervised Berberian's work at Olive View in 2017. See AR 203. She sent Berberian an email in February 2017 regarding whether Berberian's notes were viewable in the PowerChart section of the Orchid system. See AR 204. She wanted Berberian's notes entered in the PathNet section of the Orchid system, and did not want them viewable in PowerChart. See AR 204.

Berberian may have had the ability to access PowerChart but Berberian's work should have been done in PathNet. See AR 204. She did not ever grant Berberian permission to go into PowerChart and look at clinical diagnoses for patients. See AR 204.

Berberian testified in pertinent part as follows. She has been a cytotechnologist working for the County since 1990. AR 728. The primary duties of a cytotechnologist are to read slides with tissue and fluid samples on them looking for abnormal cells, and to report to the pathologist when abnormal cells are found. AR 729.

In order to evaluate slides, the College of American Pathology guidelines suggest referencing patient's medical charts to check patient history. AR 735-36. She had the ability to access patient charts in PowerChart and Dr. Baltayan authorized her to go into PowerChart to review patient history, including when she had a "consult case" rather than a hospital patient case. See AR 204. She would search for patient record by the patient's medical record number or by name, and would cross-reference name and MRN and date of birth to make sure she had the right patient file. AR 747. She was allowed to search by date of birth, name or MRN. AR 749.

She testified that she received training on patient privacy. AR 752. She had never read that the privacy rules applied to her seeking her own medical records. AR 752. She “kind of” remembers searching for her own medical records on two occasions. AR 751-52. She recalled speaking with Koriesz and being asked if she had accessed and viewed her own records, and she told Koreisz "yes" she had. AR 752-53.

The Hearing Officer issued his recommended decision on March 6, 2023. AR 213. The Hearing Officer stated as follows.

The Department concluded that Berberian repeatedly searched for medical records in the Orchid system by using names rather than MRNs. AR 208. That practice showed poor judgment and resulted in at least one incidence of improper access to protected health information that required reporting the unauthorized access to regulatory bodies which placed Olive View's licensing and accreditation in jeopardy. AR 208. Similarly, Berberian's accessing PowerChart records without authorization showed poor judgment and repeatedly violated DHS policies, necessitating reporting the unauthorized accesses to the regulatory bodies and to more than 60 affected individuals. AR 208.

Berberian's ability to access some sections of the Orchid system did not mean that she was authorized to roam freely in the electronic records of those sections she had the ability to access. She was not so authorized, and through her training and long experience, she should have known her authorized access during a given work shift was limited to working only in PathNet and only on the records of the patients specified on her daily work list. AR 208. DHS Policy No. 361.23 specially states that "A workforce member with access to a system for completion of certain assignments is not authorized to view, use or access other information in the system not related to their job responsibilities or particular assignment/ case." AR 208. On January 30, 2018, Berberian had confirmed in writing that she had received and read, and would comply with, Policy No. 361.23. AR 208.

CSR 18.031 provides that an employee may be suspended if the employee fails to perform her duties so as to fully meet stated or implied standards of performance, including failure to exercise sound judgment. AR 209. Berberian failed to meet standards of protecting individuals' protected health information, including as to her own records. AR 209.

The DHS Discipline Manual & Guidelines ("Guidelines”) recommended range of discipline for an employee's "Failure to comply with the policies, procedures, or practices of the Department and/or facility which may jeopardize the facility's accreditation, licensure, financial status, or favorable standing in the community" is from a reprimand to a 15-day suspension. AR 209. Each of the more than 60 incidents of Berberian improperly accessing protected patient information, which necessitated reporting the privacy breaches to regulatory agencies and to each of the affected individuals, thus jeopardizing Olive View's licensing and accreditation and the Department's financial status, supports a 15-day suspension. AR 209.

The Guidelines recommended range of discipline for an employee's "Improper access, use, or disclosure of confidential and/or protected patient information (including but not limited to medical records)" is a 25-day suspension to a discharge. AR 209. Each of the scores of incidents of Berberian improperly accessing protected patient information, including her admitted accessing of her own information, supports the 25-day suspension Berberian received. AR 209. While Berberian admitted accessing her own records without written permission on one occasion and, although she could not recall doing so a second time, the weight of the evidence is that Berberian did access her records twice without authorization or a business need. AR 209.

The 25-day suspension is consistent with Guidelines section 200, which calls for progressive discipline. AR 209.

On April 19, 2023, the Commission stated that it proposed to adopt the Hearing Officer’s recommended decision. AR 266-67. Berberian filed written objections (AR 217-27) and, on July 12, 2023, the Commission overruled the objections and adopted the Hearing Officer’s recommended decision (AR 275-80). The Commission signed an order upholding the suspension on July 26, 2023 and issued notice to the parties. AR 250-52.

Petitioner Berberian contends that her 25-day suspension must be set aside because (1) the weight of the evidence does not support her guilt, particularly because the audit results were hearsay and (2) the penalty of a 25-day suspension is excessive.[3]

Berberian argues that, while the Department asserts that this matter is about patient privacy, there are key signposts demonstrating that the Department’s allegations are not supported by actual evidence of any wrongdoing. The Department never provided any specific audit finding to Berberian, giving her only general information when she was interviewed. AR 494-508, 752-53. The Hearing Officer’s decision confirms that the audit was never provided to Berberian during the Department’s investigation or at the Skelly meeting. AR 198-205. Nor was it ever submitted as evidence at the administrative hearing. AR 197. Pet. Op. Br. at 8; Reply at 2-3.

The Notice of Intent to Suspend alleged that Berberian’s supervisor Spike “discovered on September 26, 2019, that Ms. Berberian had accessed a patient health record on May 6, 2019 without authorization or business need”. AR 33-40. The Notice of Intent alleges that Spike also discovered on this same date that Berberian had accessed her own patient health records without proper authorization. Id.

The Department’s Notice of Suspension repeated these same allegations (AR 41-49) and adds that, as a result, the Department’s Privacy Office conducted a comprehensive review of Berberian’s access audit for the period of December 1, 2018 through December 19, 2019. AR 33-40, 41-49. The Privacy Office found that Berberian performed ten improper person searches for the date of June 24, 2019. Id.

Berberian contends that the evidence presented at the appeal hearing varied from this oversimplified account in the Notice of Intent and Notice of Suspension in material ways. Pet. Op. Br. at 8. Spike initially testified that she conducted two specific audits herself which she then shared with the Privacy Office. AR 428-35, 438-39. According to Spike, the Privacy Office reviewed and confirmed her audit findings. Id. Spike attributed her closer inspection of Berberian’s work to her concern about the nature of Berberian’s work and the time she was spending on it. Id.

During cross-examination, Spike referred to an undisclosed document. AR 453-54. As a result, the Department was required to produce her three-page set of notes (“Notes”). AR 136-38 (Ex. 15). Spike then testified about the Notes. AR 480-84, 486. The Notes specify that on September 16, 2019, hospital safety officer Frank Colbert received a letter from OSHA (140-41) about a complaint of odor on cytology slides which Berberian “subsequently admitted” she had lodged. AR 136. This gives rise to an inference that Spike’s decision to take a closer look at Berberian’s work was more related to the OSHA complaint than any business reason. The Notes next write in highlighted text “As of 10/23/19, Ms. Berberian was removed from reading any cytology slides” AR 136. A comparison of Spike’s testimony to her Notes reveals that she was selective in testimony, making it suspect. AR 135-38, 428-35, 438-39. Pet. Op. Br. at 8-9.[4]

The facts became even more muddled when Koreisz testified. According to Koreisz, she received the referral from Spike and then conducted two audits of Berberian’s computer access. AR 599-604, 625-27, 641-42, 645-46. Although Spike testified that that the Privacy Office reviewed her two audits, Koreisz testified that the Privacy Office made two independent audits. AR 599-604, 625-27, 641-42, 645-,46.

Spike’s testimony was problematic at best. The Hearing Officer failed to take into consideration the variations between Spike’s direct testimony, her admissions on cross-examination, and her Notes. Koreisz’ testimony likewise was problematic, in part due to its conflicts with Spike’s testimony. Pet. Op. Br. at 9, 11.

In contrast, Berberian has an unblemished 31-year work record with the Department without even a hint of any substantial work issue. She previously had no honesty-related issue at all. AR 112-34, 141-47. This 31-year record of a good employee provides strong support for Berberian’s overall credibility. Pet. Op. Br. at 14.

From its review, the court draws no conclusion that Spike or Koreisz lacked credibility. Their testimony about the audits was not entirely clear, but it is clear that each reviewed audit documents and drew conclusions about them. Spike’s motivation to check Berberian’s work ultimately is irrelevant. Koreisz was the investigator, and it is her audit results that supported the suspension. Berberian’s contentions about who performed the audits bears more on the audit hearsay issue than credibility. See post.

Berberian argues (Pet. Op. Br. at 10) that the Hearing Officer erred in not applying CSR 4.10 to Spike’s and Koreisz’s summary of audit findings (“Summary”). CSR 4.10 codifies the general practice in administrative hearings of allowing the admission of hearsay but specifying that it cannot alone be used as the basis for a founded fact: “Hearsay evidence may be admitted for any purpose, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” CSR 4.10 is consistent with the due process requirement that hearsay evidence alone does not constitute substantial evidence to support an administrative tribunal’s decision. Gregory v. State Bd. of Control, (1999) 73 Cal.App.4th 584, 597.

Berberian contends that the Hearing Officer’s Findings of Fact 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23 24 and 25 were expressly based upon the audits which were not in evidence. AR 197, 217-27. The audits were never produced in the pre-deprivation procedure or the Skelly process. At the administrative hearing, the Department only submitted the Summary, not the actual audits. Reply at 2. Both Spike and Koreisz testified to the Summary’s out-of-court assertions about the audits. Since the alleged violations were based on the audits, these assertions were offered for the truth of the matter asserted. Pet. Op. Br. at 9-10.

Berberian argues that it was not until the middle of the administrative hearing that the Department sought to produce the audits (Ex. 16). AR 494-508. Berberian’s counsel argued that an attempt to produce the audits at that point would be an undisputed Skelly violation. Id. He contended that the Department had responsibility for its own actions. It, not Berberian, was in charge of the investigation, the Skelly meeting, and the suspension. Id. Pet. Op. Br. at 10; Reply at 4.

The court notes that the Administrative Record shows the following colloquy. The Department’s counsel offered Exhibit 16, which was the audit results. AR 494. Beberian’s counsel objected because the audit results had not been provided to her during the Skelly process. AR 494. He argued that the audit summary (Ex. 12) was hearsay because it was “a summary of what somebody says they saw somewhere.” AR 495. If the Department offered Exhibit 16, Berberian’s counsel would have to go back to the Commission to certify a Skelly violation issue. AR 496. The Department’s counsel stated that the Skelly decision-maker did not review the actual audits, only the summary, and there was no Skelly violation because Berberian received everything the decision-maker relied upon. AR 496-97. She was offering the audit results because it would help clarify Spike’s testimony. AR 497, 500.

Berberian’s counsel disagreed and stated he would have to go back to the Commission to certify a new issue if the Department offered Exhibit 16. AR 498-500, 502. He argued that it would make the most sense to avoid a Skelly violation, especially since the Department only offered Exhibit 16 to clarify Spike’s testimony. AR 503-04. The Department’s counsel complained that Berberian’s counsel was putting her between a rock and a hard place (AR 504), to which Berberian’s counsel argued that the quandry was of the Department’s own making. AR 506. The Department’s counsel withdrew Exhibit 16. AR 508.

From the testimony concerning the Summary, Berberian makes two hearsay arguments. First, she contends that the Department’s sole evidence of privacy violations is the hearsay testimony of Spike and Koreisz. The Commission erred in according this hearsay testimony as trustworthy evidence of any policy violations. Pet. Op. Br. at 10-11.

Second, Berberian contends that Koreisz insisted that the audit report was prepared by the Privacy Office, not herself. AR 635-37. Based upon Koreisz’ testimony, there is an inference that the audit report was prepared by someone other than Koreisz, or perhaps was a multiple person endeavor. The Hearing Officer trusted the testimony of Koreisz while not requiring her to provide some more concrete statement about how or who produced the report. Berberian argues that the Commission should have found that the Department failed to produce direct evidence of the alleged policy violations, which was a prejudicial abuse of discretion. Pet. Op. Br. at 11.

The County responds that all facts supporting Berberian’s policy violations regarding access to patient health records can be found in the Summary (Ex. 12), which contains the results of Koreisz’s investigation. AR 103-08. The Summary is admissible under two exceptions to the hearsay rule. Opp. at 11.

The County first argues that the Summary is a published compilation of data obtained from the audits of Berberian’s activities in the Orchid system. “Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.” Evid. Code §1340. For purposes of the Evidence Code, a “business” includes “governmental activity.” Evid. Code §1270. A wide range of writings have been held admissible under Evid. Code section 1340, including an ingredient label on a manufacturer’s product. In re Michael G., (1993) 19 Cal.App.4th 1674, 1678 (“A label including (rather than excluding) a hazardous substance is inherently trustworthy, in that a manufacturer would have no interest in proclaiming that the product contained such a substance if in fact it did not.”). Opp. at 11.

This argument is erroneous. Evidence Code section 1340 (“section 1340”) states that “evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register or other published compilation is not made inadmissible…if the compilation is generally used and relied upon as accurate in the course of business....” (emphasis added). Berberian correctly replies (Reply at 3) that section 1340 applies to a “published compilation”. The Summary is not a “published compilation.” Nor is it generally used and relied on in the course of business. The Summary’s statements more accurately can be described as summarizing the opinion of Spike, Koreisz, or whomever prepared it.

In Re Michael G. (1993) 19 Cal.App.4th 1674, 1678, is not on point. That case involved a label on can of spray paint. The label was determined to be a hearsay exception under section 1340 because it was a published compilation and the manufacturer’s inclusion of a potentially harmful chemical in the list of ingredients was reliable because its interest would be to leave out a dangerous ingredient. No such reliability exists for the Summary. The Department’s interest is to include audit violations in the Summary, not exclude them.

The County second argues that the Summary is admissible as a record by a public employee under Evidence Code section 1280 (“section 1280”). Section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: (a) The writing was made by and within the scope of duty of a public employee. (b) The writing was made at or near the time of the act, condition, or event. (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” The County argues that the testimony of the Department’s witnesses established these conditions. The Summary (Ex. 12) was a record of the events reported on Orchid, made by a public employee (Koreisz) within the scope of her duty as the regulatory manager at Olive View, and the Orchid system is trustworthy. Opp. at 11-12.

Section 1280 is inapplicable to the Summary. It is true that the source of the information for the Summary is the Orchid database and the Hearing Officer concluded that the information gleaned from the Orchid system is reliable: “The data tracked in real time and generated by the Orchid system is trustworthy and reliable. It is the DHS computer system, which doctors, cytologists, and other medical technicians utilize and rely upon every hour of every day. As [Berberian’s] supervisor, Supervising Clinical Lab Scientist 2 Susan Mawer-Spike testified, ‘There’s no disputing what is being done in the system by the user.’” AR 205. See Opp. at 12, n. 1.

Although the Orchid database is reliable, the Summary must reliably summarize Orchid’s information. This requires non-hearsay testimony about the method and time of the Summary’s preparation so as to indicate its trustworthiness. §1280. Someone –Spike, Koreisz, or more likely someone from the Privacy Office -- interpreted the Orchid data to create the Summary. Koreisz testified that, to conduct an audit, she contacts the Privacy Office IT security officer who runs the audit on Orchid, and he then e-mails the audit to her as an Excel spreadsheet. AR 618-19. Someone then prepared the Summary from that Excel spreadsheet. That person was required to testify to lay the proper foundation, and possibly also the IT security officer who ran the audit.

This raises an issue about which Berberian was wrong at the hearing. Berberian’s counsel argued that admission of the audit results (Ex. 16) would create a Skelly issue, and he would have to go back to the Commission to certify a new issue of a Skelly violation if the Department offered Exhibit 16. AR 498-500, 502. Whatever the merits of his Skelly issue, a properly authenticated summary may be received into evidence without the underlying records (often voluminous) also being received into evidence. For a summary to be admissible, it is sufficient that the underlying records are available in the courtroom for use by the opposing party. That is the whole purpose of using a summary at trial.

Thus, the Department properly followed the procedure of preparing a summary of audit results (Ex. 12) and making the underlying audit records (Ex. 16) available in the courtroom for Berberian’s counsel to use. The defect in the Department’s presentation lay in the fact that the witness who prepared the Summary (Ex. 12), and possibly the witness who prepared the audit (Ex. 16), did not testify to its manner and timing of preparation to show its trustworthiness. For this reason – and solely for this reason – the Summary lacked a foundation, and Berberian’s hearsay objection should have been sustained.

The County notes that the Hearing Officer stated that, although he had admitted evidence that may have constituted hearsay, “no finding of fact set forth below resulted from only hearsay evidence.” AR 197. The finding that Berberian accessed her own health information was supported by her admission that she had done so, and that she understood that doing so was a policy violation. That evidence is admissible as a party admission. Evid. Code §1220. Opp. at 11.

Berberian agrees that she admitted accessing her own medical information. She explains that, as Koreisz testified, she was interviewed twice and neither interview was recorded. AR 607-09, 619-21. The only evidence of her answers comes from Koriesz’s summary recollections. Moreover, the Department frequently cross-examined Berberian at the administrative hearing as follows: “Isn’t it true that you admitted to [blank] in the interview”. AR 760-65. This was nothing more than an attempt to bully the witness with alleged hearsay and Berberian also was being asked to recall statements in an interview that took place three years earlier (October and November 2019). As such, the only potentially reliable admission information was Berberian’s forthright acknowledgement that she had accessed her own medical records. AR 758. Pet. Op. Br. at 11-12.

This argument is not relevant to the issue which is that Berberian admitted accessing her own medical records. Berberian is incorrect that there is no rule against accessing her own medical information. DHS Policy No. 361.15 provides that an individual may request access to her own protected health information: “Access for inspection or copying of information requires a written request from the individual using the Request for Access to Protected Health Information form.” AR 61. Mason testified that the policy is clear that an employee has a right to her own medical records, but she has to make a formal request to do so. AR 542. Berberian admitted that she had accessed her own health information without submitting a written request as required by this policy.

Berberian argues that she is a 31-year employee with a good record and no prior discipline. She testified how and why she would access the various databases to which she had access as a Cytotech I. AR 732-37. It was undisputed that a Cytotech I has access to the overall Orchid Database that includes PowerChart and PathNet sub-databases. AR 664. Although Berberian had access to all three databases, the Department asserted that she was prohibited from conducting certain kinds of search and from accessing all portions of the PowerChart and PathNet modules. AR 665-67, 672. The Department did not produce any written documentation about this strict rule. In fact, both Berberian and one of her former supervisors, Baltayan, testified about her ability to access Powerchart beyond the strict rules asserted by Spike and Koreisz. AR 139, 709-10. Pet. Op.Br. at 12; Reply at 4.

Koriesz considered any access by Berberian to Powerchart to be a policy violation solely based upon hearsay statements with Berberian’s former supervisors at County/USC. AR 665-67, 672. While Koriesz testified to hearsay on this rule, Berberian testified that it had been her practice both at her prior workplace (County/USC) and her current workplace (Olive View). AR 732-37, 743-46. Given Berberian’s 31 years of unblemished work record, there is little basis for disputing her testimony on this point. Pet. Op. Br. at 12; Reply at 4-5.

Berberian also argues that she testified credibly about her reason for occasionally using the name search function. AR 732-37, 743-46. With no prior patient privacy issues in Berberian’s work record prior to her making an OSHA complaint, it seems unusual that she would suddenly develop the need to engage in violations of patient health record privacy. Berberian was specific that her consulting with the pathologists with whom she worked resulted in her accessing patient records for patients not on her patient list. AR 732-37, 743-46. This testimony was credible especially in light of the work assigned to a Cytotech I (AR 804-05) and the fact that Cytotechs had access to the PowerChart and PathNet. Berberian’s overall unblemished work record without prior privacy issues outweighs the questionable assertions by Spike and Koreisz and the totality of evidence does not support any policy violation. Pet. Op. Br. at 12-13.

These issues – including use of PowerChart and the name search function – are all dependent on the admissibility of the audit results. Without audit results showing that Berberian performed these tasks, the allegations are merely general proscriptions. With the audit results, Berberian’s arguments do not carry much weight. Not only Spike and Koreisz testified to Berberian’s viollations. Baltayan testified that Berberian may have had the ability to access PowerChart but her work should have been done in PathNet. See AR 204. She did not ever grant Berberian permission to go into PowerChart and look at clinical diagnoses for patients. See AR 204. Mason also testified that she reviewed all the exhibits and found that Berberian had committed multiple violations of accessing patients' records, including her own patient records, without a business need. AR 522, 524.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake, supra, 47 Cal.App.3d at 228. The Commission’s decision must be “an arbitrary, capricious, or patently abusive exercise of discretion” to be overruled by the trial court. If there is “any reasonable basis to sustain it,” the penalty should be upheld. County of Los Angeles v. Civil Service Com. of County of Los Angeles, (2019) 40 Cal.App.5th 871, 877. “Only in an exceptional case will an abuse of discretion be shown because reasonable minds cannot differ on the appropriate penalty.” Ibid. In determining whether there has been an abuse of discretion, the court must examine the extent of the harm to the public service, the circumstances surrounding the misconduct, and the likelihood that such conduct will recur. Skelly, supra, 15 Cal.3d at 217-18.

Berberian argues that the Department failed to support a 25-day suspension for a 31-year employee with a good work record and no prior discipline. Pet. Op. Br. at 14. In all her Performance Evaluations, Berberian was noted as “Competent” in maintaining patient confidentiality as well as all substantive ratings. AR 804-05. In her Performance Evaluation for 2014-15, Berberian was noted for needing improvement in terms of how she relates to her supervisors and that she does not accept criticism very well. AR 141-47. However, Berberian was noted as being a good employee in all other areas. Id. Her good work record without any prior discipline is a strong mitigating factor against the imposition of suspension-range discipline. It supports a conclusion that she consistently performed her duties in compliance with Department-accepted policies and practices, specifically in maintaining patient privacy. In the absence of any credible evidence that Berberian engaged in any willful/substantial policy violation, a suspension was not supported. Pet. Op. Br. at 13-14.

The most important factor for the court’s consideration is harm to the public service. See Skelly, supra, 15 Cal.3d at 217-18. Berberian’s actions caused harm to the public service. Mason testified that Berberian’s actions caused the Department to inform all 63 patients that their private medical records had been accessed and their private information was compromised. AR 521-23. The Department further had to inform the California Department of Public Health and the Office of Civil Rights about the data breach. This notification placed the County in legal jeopardy and Olive View faced potential loss of its licensure. The public perception of Olive View and the Department also was impacted.

The 25-day suspension was the minimum level of discipline under the Department Guidelines for improper access of confidential patient information. Mason testified that she felt that discharge would have been appropriate but Berberian received a 25-day suspension because she did not have any prior discipline. AR 542-43.

Plainly, the 25-day suspension was appropriate for the offenses for which Berberian was found guilty. What would the penalty have been if, due to the fact that the impermissible hearsay Summary was considered, the only offense proven was Berberian’s admitted access to her own medical records? Would she necessarily still have received a 25-day suspension?

The County notes that the improper admission of evidence does not provide grounds for reversal unless it is reasonably probable a more favorable result would have been reached absent the error.” Thornbrough v. Western Placer Unified School Dist., (2013) 223 Cal.App.4th 169, 200, (quoting Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services, (2009) 176 Cal.App.4th 1249, 1254–55.) The Guidelines for discipline and the testimony of Mason established that one violation of the rules for accessing protected health information requires at least a 25-day suspension. The County argues that it is not reasonably probable that the Commission would have reached a result more favorable to Berberian without the evidence about access to other patients’ information. Opp. at 12.

While it is true that a 25-day suspension is the minimum Guideline discipline for Berberian’s access to patient records, the court is not persuaded that the Commission could not have reached a different result for access to her own medical records without proof of the other violations from the audits. The Commission’s exercise of discretion for the appropriate discipline cannot be assumed by the court. Since the audit findings for persons other than Berberian were impermissibly based on hearsay, the matter should be remanded to the Commission to reconsider its findings and subsequently determine an appropriate level of discipline. Reply at 5.

The County argues that any remand should enable the Commission to receive additional evidence to overcome its reliance on hearsay evidence as the sole support for some of its findings. As the Supreme Court has explained, “when a court has properly remanded for agency reconsideration on grounds that all, or part, of the original administrative decision has insufficient support in the record developed before the agency, the statute does not preclude the agency from accepting and considering additional evidence to fill the gap the court has identified.” Voices of the Wetlands v. State Water Resources Control Bd., (“Voices of the Wetlands”) (2011) 52 Cal.4th 499, 526. See also Save Our Schools v. Barstow Unified School Dist. Bd. of Education, (2015) 240 Cal.App.4th 128, 135 (“On remand, the District may accept and consider additional evidence not before it when it made its original exemption determinations”). Opp. at 13.

On remand, the Department would present the audit data of Berberian’s activities in the Orchid system and provide witnesses to explain how that raw data supports the findings contained in the Summary. Although such a remand might not be appropriate in every case, it is appropriate here because of the seriousness of the violations turned up in the audits. There would be no prejudice to Berberian. She has already served the suspension and remains employed. If the Commission arrives at the same decision after accepting and considering additional evidence, that will simply stand. If it arrives at a different decision, she will be compensated for any lost pay resulting from the 25-day suspension. Opp. at 13.

Berberian does not address the scope of remand. She only argues that, upon remand, the Commission should be directed to take into account her Performance Evaluations where she is noted as Competent in maintaining patient confidentiality. AR 112-34. The Commission also should directed to take into account her unblemished 31-year work record and the fact that her work record has no honesty-related issues. AR 112-34, 141-47. Obviously, the Commission should consider these mitigation factors on remand.

Whether new evidence should be permitted in a remand from a final judicial depends on the circumstance. In Sanchez v. Unemployment Insurance Appeals Board, (1977) 20 Cal.3d 55, an unemployed waitress sought unemployment benefits and stated an inability to work on weekends because she had no one to care for her young son. The agency and trial court found that restaurants were open on weekends and the waitress therefore did not meet the statutory available for work requirement to obtain unemployment. The California Supreme Court held that “available for work” is a factual inquiry which requires a determination whether the applicant had good cause to refuse weekend work and whether such work was suitable for her. As there had been no evidence taken on these issues, the matter was remanded for additional evidence. Id. at 68-69.

In Carlton v. Department of Motor Vehicles, (1988) 203 Cal.App.3d 1428, the trial court concluded that the evidence was insufficient to support revocation of the petitioner’s probationary driver’s license and ordered the DMV to set it aside. Id. at 1432. The appellate court concluded that the trial court was not required to remand for a new hearing because “[w]here an administrative decision is set aside for insufficiency of the evidence it is customary to remand the matter to the agency for a new hearing [citations] except in the rare case where as a matter of law no evidence could support the agency’s decision.” Id. at 1434. It was conceivable that the DMV could cure the defect in evidence and nothing in the trial court’s writ precluded it from doing so. Id. at 1434-35.

In Ashford v. Culver City Unified School Dist., (“Ashford”) (2005) 130 Cal.App.4th 344, a former employee of the Culver City Unified School District appealed from a trial court’s judgment ordering the issuance of a writ of mandate which directed the district’s board of education to set aside its decision terminating the petitioner’s employment, hold a new administrative hearing for the purpose of allowing the school district to present additional evidence, and reconsider its decision. The employee argued there was no legal authority for the trial court’s remand for new evidence because CCP section 1094.5(e) provides for only two circumstances to do so: (1) where such evidence was improperly excluded at the original hearing or (2) where the evidence could not, with reasonable diligence, have been produced at that hearing. Id. at 346-47, 351.

The Ashford court determined that CCP section 1094.5(e) limits and constrains section 1094.5(f), which is a more general provision providing that when a court remands a matter to an administrative agency, “it may order the reconsideration of the case in the light of the court’s opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent.” Were it otherwise, the broad discretion accorded to the agency by section 1094.5(f) would render section 1094.5(e) superfluous because its two circumstances for taking additional evidence would be swallowed by section 1094.5(f). Id. at 351.

The California Supreme Court stated in dictum in Voices of the Wetlands, supra, 52 Cal.4^th at 499, that, when a trial court concludes that the agency’s decision is “not sufficiently supported” by the record, the only possible cure is “the agency’s reconsideration of its decision on the basis of additional evidence.” 52 Cal.4^th at 531 (italics in original). The Court instructed that the trial court has the option under CCP section 1094.5(f) to order the agency to reconsider its decision, a reconsideration in which the agency may entertain all the additional evidence [missing] to support its new decision. Id. at 531. Alternatively, the trial court can simply vacate the agency’s decision, and it would have the discretion to conduct an additional evidentiary hearing. Ibid.

From this case law, the trial court has discretion to (1) permit a new evidentiary hearing when the evidence is insufficient – particularly where the insufficiency is based on hearsay or other easily curable defect, (2) say nothing, which gives the agency discretion to conduct a new hearing, or (3) limit the agency’s ability to hold a hearing where an issue was adequately presented and there is no reason to allow another one.

This case fits within the first circumstance. The Department failed to adequately present the audit results through a proper foundation and instead relied on hearsay concerning the Summary’s preparation. This insufficiency presumably is curable by additional evidence from foundation witnesses and the court will not limit the Commission’s ability to hear it.

The Petition is granted in part. A judgment and writ of remand will issue to the Commission to reconsider the charges based on the lack of proper foundation for the Summary, exercise its discretion whether to consider new evidence, and reconsider the penalty if any of the charges are not upheld.

Petitioner Berberian’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on the County’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for November 14, 2024 at 9:30 a.m.

[1] Petitioner requests judicial notice of Civil Service Commission (“CSR”) Rule 4.10 (RJN, Ex. A.). The request is granted. Evid. Code §42(c).

[2] Tamrazyan’s testimony is not summarized below.

[3] For convenience, the court will refer to the Hearing Officer’s recommended decision rather than the Commission’s decision adopting it.

[4] Berberian argues that the Hearing Officer’s decision failed to refer to the Notes (Ex. 15) and this part of Spike’s testimony. See AR 191-213. Pet. Op. Br. at 9.