Judge: Mary H. Strobel, Case: 21STCP03715, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCP03715    Hearing Date: December 6, 2022    Dept: 82

            Petitioner Gezel Saheli, M.D. (“Petitioner”) petitions for a writ of administrative mandate directing Respondent Medical Board of California (“Respondent” or “Board”) to set aside its decision after remand denying Petitioner’s application for a physician’s and surgeon’s certificate. 

Background and Procedural History

This writ petition follows this court’s issuance of a writ of mandate in a prior writ action, Case No. 20STCP01153.  In the prior writ action, Petitioner challenged Board’s decision dated December 10, 2018, denying her application for a physician’s and surgeon’s certificate. 

On March 16, 2021, the court granted the writ petition in part and denied the petition in part.  In summary, the court found that substantial evidence did not support the Board’s findings that Petitioner’s responses to Questions 17-19 on her March 2017 application for a medical license were misleading. (AR 1253-1256.) The court found that substantial evidence supported the Board’s findings that Petitioner knowingly made a false statement of fact in her response to Question 21, and that Petitioner was not a credible witness at the hearing.  (AR 1256-60.)  The court issued a detailed written ruling that summarizes the relevant factual background and procedural history prior to remand, and that sets forth the court’s legal reasoning.  That ruling, which is part of the administrative record, is not repeated here but is incorporated by reference.  (Administrative Record (“AR”) 1246-1262.) 

On May 5, 2021, the court issued a writ directing Board “to set aside the findings in your decision dated December 10, 2018, with respect to Questions 17-19, to reconsider penalty accordingly, and to issue a new decision consistent with the ruling of the Court.”  (See AR 1264.)  The court directed Board to report its compliance with the writ by way of a return within 30 days of being served with notice of entry of the judgment.  (Ibid.) 

On June 1, 2021, within 30 days of issuance of the writ, Board filed its return stating that Board had set aside the findings of the December 10, 2018 decision with respect to Questions 17-19; had scheduled oral argument at the next quarterly Board meeting on August 19, 2021; and would notify the parties of the briefing schedule and other details. (AR 1266.)  Board further stated that it would reconsider the level of discipline and issue a new decision consistent with the court’s ruling, based on the briefs and argument by the parties and the findings from the original decision that were not set aside. (AR 1266-1267.)

On July 9, 2021, the Board issued an order setting a deadline for the parties to submit written argument by August 3, 2021. (AR 1311.) The order provided additional details about oral argument. (AR 1311.) It further stated:

In addition to any argument relating to penalty that the parties may wish to submit, it would be helpful to the Board if the parties specifically address the following issues in their arguments: (1) protection of the public, (2) the circumstances surrounding the misconduct, (3) the likelihood of the misconduct recurring, and (4) any mitigating factors that the Board should consider, including factors that may be considered as extenuating or reducing the degree of moral culpability. (AR 1311.)

On August 3, 2021, counsel for Respondent submitted written argument to the Board. (AR 1289.) Petitioner did not submit written argument. (AR 1289.)  On August 19, 2021, the matter came before a panel of the Board. Neither party offered oral argument. (AR 1289.)

            On September 14, 2021, Board issued its decision after remand, which affirmed the denial of Petitioner’s application for a physician’s and surgeon’s certificate.  (AR 1270-87.)

            On November 10, 2021, Petitioner filed a petition for writ of administrative mandate challenging Board’s decision after remand.  On October 6, 2022, Petitioner filed her opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, and the administrative record.

Standard of Review

A Board decision denying an application for a physician’s and surgeon’s certificate is challengeable by writ of administrative mandate under Code of Civil Procedure, section 1094.5. (Bus. & Prof. Code, § 2087.)  Under CCP section 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).)

In reviewing whether the findings are supported by the evidence, the trial court is to conduct substantial evidence review; it may not exercise its independent judgment on the evidence.  (See Bus. & Prof. Code § 2087; Savelli v. Board of Medical Examiners (1964) 229 Cal.App.2d 124, 132.)  Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.)  Under the substantial evidence test, “[c]ourts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.”  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)   

An agency is presumed to have regularly performed its official duties.  (Evid. Code § 664.)  “[A] trial court must afford a strong presumption of correctness concerning the administrative findings.”  (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)   Under CCP section 1094.5, Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings.  (Local Rule 3.231(i)(2); Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137.)  A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) 

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)   “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)  

Analysis  

Board Complied with the Writ

            Petitioner argues that the Board’s remand decision is a “rubber stamp” of the 2020 decision and failed to comply with the writ.  (Opening Brief (“OB”) 6-9; Reply 1-7.)  Petitioner contends that the Board’s fact findings for Questions 17-19 remain “substantively unchanged” and “provide[] no indication whatsoever that meaningful consideration was given to the Court's analysis.”  (Mot. 6-7.)  The court does not agree. 

              Petitioner answered “no” to Question 17, which asked, “Have you ever received partial or no credit for a postgraduate training program?” (AR 247.)  Board originally found this answer misleading, stating that Petitioner should have informed Board of the Graduate Medical Education Committee’s recommendation that she be terminated “to avoid misleading the Board.”  (AR 9.)  In compliance with the writ, Board set aside this finding on remand and instead found that Petitioner “did not have an affirmative obligation to disclose the recommendation of termination and leave pending final determination.”  (AR 1297-98.)  On remand, Board did not find Petitioner’s answer to Question 17 to be false or misleading.  Nothing further was required to comply with the writ as to Question 17. 

            Petitioner also answered “no” to Question 18, which asked, “Have you ever taken a leave of absence or break from your training?” (AR 247.) The Board originally found this response misleading because Petitioner omitted being placed on a leave of absence during her residency training.  (AR 9.)  In compliance with the writ, Board set aside this finding and instead found that Petitioner’s answer was “in the narrowest sense, true.”  (AR 1298.)   On remand, Board did not find Petitioner’s answer to Question 18 to be false or misleading. 

Contrary to Petitioner’s assertion, Board’s finding that Petitioner’s answer to Question 18 was “in the narrowest sense, true” is not the same as finding that the answer was misleading.  (OB 8.)  Petitioner has not challenged the evidentiary sufficiency of the new findings on remand.  Even if she did, substantial evidence supports the finding that her answer to Question 18 was “in the narrowest sense, true.”  While Petitioner did not herself take a leave of absence or break from her training, as the question asked, she had been placed on leave on March 2, 2017, shortly before she answered Question 18 in her March 16, 2017, application.  (See AR 1248-49, 1254-55.)  Thus, Board could reasonably find that the answer was true “in the narrowest sense.”  To the extent there is a “negative inference” from Board’s new finding on remand, as Petitioner argues, Board did not abuse its discretion or fail to comply with the writ.  The writ directed Board to issue a new decision “consistent with the ruling of the Court.”  (AR 1264.)  In its decision prior to remand, the court did not find that Board prejudicially abused its discretion in the finding that the answer was “in the narrowest sense, true,” only in its finding that the answer was misleading.  (AR 1254-55.)  Accordingly, the new finding for Question 18 complies with the writ.

            Petitioner also answered “no” to Question 19, which asked, “Have you ever been terminated, dismissed or expelled from a program?” (AR 247.) In the decision prior to remand, the Board found Petitioner’s answer “misleading” because she should have mentioned the recommendation that she be terminated or that she had been placed on leave “to avoid misleading the Board.” (AR 10.)  In compliance with the writ, Board set aside this finding on remand and instead found that Petitioner “did not have an affirmative obligation” to disclose GMEC’s recommendation that she be terminated and her response “was not false.”  (AR 1297-98.) 

            Petitioner speculates that “given that the Board had originally, characterized her response [to Question 19] as ‘misleading’ (rather than false) there is no indication that this finding changed whatsoever.”  (OB 8.)  The court disagrees.  On remand, Board did not find Petitioner’s answer to Question 19 to be false or misleading.  The new finding complies with the writ.

            Petitioner argues that Board did not comply with the writ because, according to Petitioner, the “Causes for Denial” section of the remand decision is the same as the 2020 decision.  (OB 8-9.)  This is not entirely accurate.  In the Causes for Denial section of the original decision, Board found that cause existed to deny Petitioner’s application “in that she committed acts of dishonesty” and “knowingly made false statements of fact regarding issues occurring during her residency training in her application.”  (AR 19, ¶¶ 8-9.)  Thus, Board used plural language for these legal conclusions in the original decision.  However, in the decision after remand, Board amended these legal conclusions and stated, in the singular, that cause exists to deny Petitioner’s application “in that she committed an act of dishonesty” and “knowingly made a false statement of fact regarding issues occurring during her residency training in her application.”  (AR 1306, ¶¶ 8-9.)  Thus, in compliance with the writ and Board’s new findings for Questions 17-19, Board amended these legal conclusions such that the cause for denying Petitioner’s application was based only on her false answer to Question 21.

Petitioner states that Board “neglected to delete the ‘s’ in paragraph 10, which states, in pertinent part, ‘...her answers to application questions … relating to her experience at White Memorial were at best misleading and at worst false and dishonest.’"  (OB 9; see AR 1306, ¶ 10.)  The court agrees that Board should have amended this sentence to describe only a single false answer to the application questions.  However, Petitioner does not show a prejudicial abuse of discretion requiring remand.  (CCP § 1094.5(b).) 

Here, as discussed above, Board amended its decision to remove its finding that Petitioner’s answers to Questions 17-19 were false or misleading.  Board also amended its legal conclusions to state, in the singular, that cause exists to deny Petitioner’s application “in that she committed an act of dishonesty” and “knowingly made a false statement of fact regarding issues occurring during her residency training in her application.”  (AR 1306, ¶¶ 8-9.)  The reference to “application questions” in paragraph 10 does not show an intent by Board to conclude, in contradiction to its earlier findings, that Petitioner gave false or misleading answers to any application question other than Question 21 on her March 2017 application.   Moreover, the quoted section of Paragraph 10 is a lead in to Board’s concerns that not only was Petitioner dishonest in her application with respect to her experience at White Memorial, she also failed to acknowledge she should have been forthcoming.  Board noted that Petitioner insisted on “asserting a version of events at White Memorial that is directly contracted by logic and the documentary record.”  The fact she was placed under investigation with respect to the events at White Memorial is the subject matter upon which the court has previously determined Petitioner’s answer to Question 21 was false.  The erroneous use of the term “questions” rather than “question” in paragraph 10 is thus not material to the Board’s discussion and analysis.  The error is using the plural term was not prejudicial to Petitioner.    

The writ directed Board “to set aside the findings in your decision dated December 10, 2018, with respect to Questions 17-19, … and to issue a new decision consistent with the ruling of the Court.”  (See AR 1264.)  Based on the foregoing, Board complied with this aspect of the writ.

Board’s Fact Findings Are Supported by Substantial Evidence; and Petitioner Cannot Challenge Findings that Were Upheld in the Prior Writ Action

            For the first time in reply, Petitioner seems to challenge the evidentiary sufficiency of Board’s findings that her answer to Question 21 was false, and that Petitioner was not a credible witness at the administrative hearing.  (See Reply 4-7.)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.)  The writ petition was filed in November 2021, and the trial date was set in February 2022.  Petitioner does not show good cause to raise entirely new arguments in reply about the sufficiency of the evidence.  Furthermore, in its March 16, 2021, ruling in the prior action, the court expressly found that substantial evidence supported the Board’s findings that Petitioner knowingly made a false statement of fact in her response to Question 21, and that Petitioner was not a credible witness at the hearing.  (AR 1256-60.)  If Petitioner did not agree with that ruling, she needed to challenge the court’s ruling by appeal or petition for writ of mandate taken in the prior action.  Petitioner cannot challenge the court’s ruling in the prior action in this new writ action. 

            Substantial evidence supports the Board’s new findings in the decision after remand.  Petitioner does not show a prejudicial abuse of discretion in the new findings.  (CCP § 1094.5(b).)

Board’s Penalty Determination Complies with Topanga

            For the first time in reply, Petitioner argues that Board’s penalty determination after remand does not comply with Topanga findings requirement.  (Reply 6-7.)  Petitioner has the burden of proof and persuasion under CCP section 1094.5.  Thus, Petitioner should have raised any Topanga argument in the moving papers.  Nonetheless, since Respondent raised the Topanga issue in opposition, the court will consider it.  (See Oppo. 18:16-22.)

In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order."  The court explained that "among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. [Citations.]  In addition, findings enable the reviewing court to trace and examine the agency's mode of analysis."  (11 Cal. 3d at 516-517 [fns. Omitted].)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein” but must allow for “meaningful judicial review.”  (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954; Glendale Memorial Hosp. & Health Center v. Department of Mental Health (2001) 91 Cal.App.4th 129, 139.)

As relevant here, Topanga requires the agency to “justify the penalty imposed, including ‘a statement of the factual and legal basis for the decision.’”  (Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113.)   “However, there is no legal requirement to explicitly discuss, consider, and explain the rejection of all forms of discipline short of the one selected.”  (Id. at 115.)  “So long as the findings ‘enable the reviewing court to trace and examine the agency's mode of analysis’ …, there is no abuse of discretion under Code of Civil Procedure section 1094.5, subdivision (b).”  (Ibid.) 

            Here, Board issued factual findings with regard to Petitioner’s answers to questions on her March 2017 application.  (See AR 1271-1282.)  Board also made factual findings about Petitioner’s residency at White Memorial Hospital and about Petitioner’s credibility and lack of contrition, which were relevant to the penalty determination. (See AR 1278-1281.)  For instance, Board found that Petitioner’s explanations for her false answer to Question 21 “do not reflect any contrition for misleading the Board and were themselves, in certain instances, dishonest and not credible.”  (AR 1278-79, ¶ 23.)  Board also issued legal conclusions, in which the Board explained why it believed that denying Petitioner’s application was the appropriate penalty.  (AR 1282-87.)  Thus, Board noted that, “rather than acknowledge that she should have been more forthcoming, … which might have supported issuing a certificate with a period of probation … [Petitioner] insisted on asserting a version of events at White Memorial that is directly contradicted by logic and by the documentary record ….”  (AR 1286, ¶ 10.)  Board sufficiently explained its reasoning for deciding that denying her application was the appropriate penalty.  Board was not required to explain why it rejected all other forms of discipline short of the one selected.  (Oduyale, supra, 41 Cal.App.5th at 113.) 

            The decision after remand complies with Topanga.

The Penalty Was Reasonable 

Petitioner contends that denying her application was a “disproportionate” penalty and an abuse of discretion.  (OB 9-12; Reply 7-10.)  The court disagrees. 

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.)   “[T]he court does not exercise its own judgment and may not substitute ‘its own ... discretion for that of the board with respect to the penalty to be imposed.’”  (Bryce v. Board of Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1474.)  If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion.  (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

“The purpose of the State Medical Practice Act … is to assure the high quality of medical practice.”  (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.)  “The revocation or suspension of a license is not penal, but rather, the Legislature has provided for such to protect the life, health and welfare of the people at large ….”  (Furnish v. Board of Medical Examiners (1957) 149 Cal.App.2d 326, 331.)  These same principles apply to Board’s decision to deny an application for a medical license. 

Here, Petitioner’s false answer to Question 21 concealed from Board that GMEC had recommended her termination from the medical residency program at White Memorial for reasons that reflected negatively on Petitioner’s ability to practice medicine safely and ethically.  The following summary of evidence from the court’s March 16, 2021, ruling, is relevant:

On March 2, 2017, Leroy Reese, M.D., Chair of the GMEC, wrote to Petitioner notifying her that the GMEC recommended her termination from residency training, based both on her inability to fulfill her responsibilities and on conduct that violated the ethical standards of the medical profession. Specifically, Dr. Reese wrote that Petitioner had engaged in the improper supervision of a junior resident in placing a central line while neither was certified to perform the procedure, an act of insubordination that placed the patient at risk (hereafter the “Central Line Incident”), and that she had continued to intimidate interns and residents and engage in disruptive actions, such as sending a threatening text to a resident. He also wrote that Petitioner continued to refuse to accept constructive criticism, and that her conduct "has created a toxic environment jeopardizing the learning experience of others, as well as patient care and safety." The letter notified Petitioner she was being placed on a paid leave of absence and had the right to request a hearing. (AR 419-421.)

(AR 1248-49.)

Question 21 asked whether Petitioner had been disciplined or placed under investigation.  Even though Petitioner had been placed under investigation at White Memorial, Petitioner submitted an application to Board on March 16, 2017 – just days after receiving the above letter from GMEC – falsely stating that she had not been placed under investigation.  That answer concealed from Board important information about Petitioner’s qualifications to practice medicine safely and ethically.

As found by the Board, and confirmed by this court in the writ action, Petitioner did not credibly explain her false answer to Question 21 at the administrative hearing.  (AR 1258-59.)  Board could reasonably conclude, as it did, that Petitioner has not shown contrition for misleading the Board.  (See AR 1278-1281, 1286-1287.)  Notably, in the remand proceeding, Board invited Petitioner to submit further argument relating to (1) protection of the public, (2) the circumstances surrounding the misconduct, (3) the likelihood of the misconduct recurring, and (4) any mitigating factors that the Board should consider, including factors that may be considered as extenuating or reducing the degree of moral culpability. (AR 1311.)  Petitioner declined to do so.  While she may not have been required to submit additional argument on remand (see Reply 7), Petitioner did not avail herself of the new opportunity to show Board contrition for her misconduct or other mitigating factors.  

In these circumstances, Board was well within its discretion on remand to deny Petitioner’s application for a medical license.  Protection of the public is Board’s paramount duty.   (Bus. & Prof. Code § 2229(c).)  By concealing information about the residency investigation, Petitioner hindered that paramount duty of the Board.  Further, the Board “has the right to require that the possessor of a license to practice medicine and surgery shall be a person of good moral character, reliable, trustworthy and not given to deception of the public.” (Fuller v. Board of Medical Examiners (1936) 14 Cal.App.2d 734, 741- 742; see also Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574.)  “[T]here is more to being a licensed professional than mere knowledge and ability. Honesty and integrity are deeply and daily involved in various aspects of the practice.”  (Griffiths v. Sup. Ct. (2002) 96 Cal.App.4th 757, 772.)

Petitioner’s arguments concerning the penalty are unpersuasive.  (OB 9-12; Reply 7-10.)  Petitioner faults Board for “adopt[ing] the same level of discipline … where Petitioner was determined to have improperly answered a single application question improperly, as it did upon its earlier determination that Petitioner answered four application questions improperly.”  (OB 10 [italics in original].)  Petitioner understates the seriousness of her misconduct.  Petitioner knowingly provided a false response that concealed from Board important information about Petitioner’s qualifications to practice medicine safely and ethically.  Whether she did so by answering one question falsely, or four, is not dispositive.  The detriment to the public from concealing that information from the Board was the same.  Furthermore, Petitioner did not show contrition for her misconduct, which Board reasonably considered as an aggravating factor.

Petitioner contends that Board “fail[ed] to even consider alternative forms of discipline in the Remand Decision, and [failed] to consider the Court's analysis with respect to any of the application questions at issue.”  (OB 10.)  Relatedly, Petitioner contends that the remand decision is a “disingenuous rubber stamp” of the original decision.  (Ibid.)  Petitioner also states that the remand decision was a “punitive means to prevent Petitioner’s practice of medicine,” was “predetermined,” and reflected “bias on the part of the Board.”  These arguments are not persuasive.

As discussed above, Board did consider alternative forms of discipline, including probation, but decided against that penalty.  (AR 1286.)  Board was not required to explain why it rejected all other forms of discipline short of the one selected.  (Oduyale, supra, 41 Cal.App.5th at 113.)  Further, the remand decision was not a “rubber stamp” of the original decision.  Board complied with the writ, set aside the unsupported findings for Questions 17-19, and reconsidered the penalty based on the findings that are supported by substantial evidence.  Given Board’s duty to protect the public, and the importance of honesty and good moral character to the medical profession, Board’s decision was not punitive.  Nor is there is any evidence that Board predetermined its decision or was biased.  “Bias and prejudice are never implied and must be established by clear averments.”  (Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 581-582.)  Petitioner cites no evidence, and certainly not “by clear averments,” that any decisionmaker on the Board panel was biased against her or predetermined the case.

Finally, Petitioner argues that the circumstances show that the penalty was excessive.  Petitioner points out that she made the false statement on March 16, 2017, and the remand decision was issued more than four years later in September 2021.  She asserts that her dishonesty did “not involve patient care, her dealings with patients, or her competency to practice her profession.”  She asserts that “Board has offered less severe penalties in cases where the conduct in question was more severe altogether.”  She also contends that Board’s decision “has resulted in and will continue to result in financial and emotional damage to Plaintiff and her family” and that she practiced medicine in California, without incident, under COVID emergency licenses.  (OB 11-12, citing Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438.)

Petitioner does not show any abuse of discretion.  While the false statement occurred more than four years prior to Board’s remand decision, Petitioner did not show contrition for her misconduct at the original hearing or in the remand proceedings.  Nor did Petitioner avail herself the opportunity, on remand, to present arguments about other mitigating factors.  Furthermore, the misconduct was serious and impacted Board’s ability to learn of important information about Petitioner’s qualifications to practice medicine safely and ethically.  Board could reasonably determine, as it did (see AR 1286), that Petitioner has not rehabilitated and that a lesser penalty was not appropriate.  It is unclear from the legal briefs whether Petitioner informed Board of the other mitigating factors, including her work under COVID emergency licenses.  The court cannot consider that information in the first instance.  To the extent she did disclose such information to Board, it did not compel a different result for the reasons discussed above.

Petitioner’s reliance on Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438 is misplaced.  Unlike here, Dr. Pirouzian admitted that he acted dishonestly and intended to do so (id. at 444); he testified that he was ashamed and remorseful (ibid.); and he was licensed approximately 10 years before the dishonest conduct and continued to practice without incident for another 6 years after that (id. at 441, 443, 449). Unlike here, the court found that the ALJ made statements and written findings indicating that he imposed discipline “for the improper purpose of punishing” the doctor. (Id. at 450.)  Finally, unlike Petitioner’s false answer to Question 21, Dr. Pirouzian’s misrepresentations that he remained unemployed while receiving disability payments did not impact Board’s ability to learn of potential issues in his medical competency or ethics.  (Id. at 441-443.) 

Based on the foregoing, Board did not manifestly abuse its discretion on remand in affirming the denial of Petitioner’s application for a medical license.

Other Issues Pleaded in Petition

            While Petitioner’s prayer seeks additional relief, including, but not limited to, an order requiring Board to process Petitioner’s 2021 medical license applications, Petitioner either has not addressed those requests for relief or has indicated they are not at issue in this writ action.  (See Pet. Prayer ¶¶ 1-2; Mot. 2:18-25; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [issue waived if not raised or adequately briefed].)

Conclusion

            The petition is DENIED.