Judge Mitchell L. Beckloff, Case 20STCP00008 2022-10-26 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP00008, Date: 2022-10-26 Tentative Ruling

Petitioner, Pooja Khungar, brings this proceeding to challenge the December 2, 2019 decision by Respondent, Medical Board of California (Board) imposing discipline on her. Petitioner seeks a court order compelling the Board to set aside its order. The Board opposes the petition.

The petition is denied. Petitioner’s request for attorney’s fees is also denied.

On March 22, 2006, Petitioner obtained a California physician’s and surgeon’s license. (AR 1, 141.) Thereafter, in 2007, Petitioner obtained a license to practice medicine in the state of Illinois. (AR 15.)

On February 16, 2016, the Illinois Department of Financial and Professional Regulation (Illinois Department)[1] filed a complaint against Petitioner. (AR 11.) On June 13, 2018, the Illinois Department suspended Petitioner’s Illinois physician’s license based on its own finding that Petitioner had behaved unprofessionally and had made misrepresentations to an employer. (AR 8, 143-254; Reporter’s Transcript (RT) 12.)

On May 30, 2019, the Board filed an accusation against Petitioner’s medical license. (AR 1-5.) Petitioner filed a notice of defense on June 5, 2019. (AR 132.)

On September 5, 2019, an administrative law judge (ALJ) conducted a hearing on the Board’s accusation. (AR 137; See RT.) Two days later, the ALJ issued a proposed decision finding Petitioner committed unprofessional conduct in Illinois. The ALJ concluded the finding of unprofessional conduct in Illinois constituted cause of conduct in California pursuant to Business and Professions Code sections 141, 2227, 2234 and 2305. (Decision.)[2] On October 23, 2019, the Board adopted the ALJ’s proposed decision as its own and revoked Petitioner’s Physician’s and Surgeon’s Certificate. The Board, however, stayed the revocation and placed Petitioner on probation for five years with various terms and conditions, including that Petitioner undergo a psychiatric evaluation, complete a professionalism course, not engage in sole practice, and employ a practice monitor. (Decision, pp. 8-18.)

Petitioner seeks relief from the court pursuant to Code of Civil Procedure section 1094.5. Petitioner asserts the Board’s disciplinary decision is an abuse of discretion.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the respondent 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. (Code Civ. Proc. § 1094.5, subd. (b).)

“When an administrative decision substantially affects a fundamental vested right, such as the revocation of a professional license, the independent judgment standard of review applies.” (Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1; Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 447.) The parties do not dispute this court’s standard of review. (Opening Brief 5:4-5; Opposition 8:26-28.)

Accordingly, Code of Civil Procedure section 1094.5, subdivision (c) dictates the court determine whether the weight of the evidence supports the administrative findings. Using its independent judgment, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.)

Where an agency’s factual determinations are in issue, the exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.) “[I]n exercising its independent judgment ‘the trial court has the power and responsibility to weigh the evidence at the administrative hearing and to make its own determination of the credibility of witnesses.’ ” (Ibid. [quoting Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1016.)

“In exercising its independent judgment, a 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 v. City of Angels, supra, 20 Cal.4th at 817.)

Further, when administrative findings are at issue, on review, the court must account for the standard of proof applied in the underlying proceeding. (Li v. Superior Court (2021) 69 Cal.App.5th 836, 844.) In this case, the Board’s findings were subject to a clear and convincing standard. Thus, the court “must account for the standard of proof in the underlying administrative proceeding when exercising its independent judgment in reviewing the sufficient of the evidence supporting the administrative agency’s findings. (Id. at 865.)[3]

[The court discusses the standard of review for challenges to penalties imposed by an agency below.]

First, Petitioner argues the Board acted in excess of its jurisdiction by finding Business and Professions Code section 2305 applied to the underlying Illinois misconduct. Second, Petitioner argues the Board failed to proceed in the manner required by law because the Board was required, under Government Code section 11425.50, to identify the specific evidence that supported its credibility determination and failed to do so. Finally, Petitioner argues the Board imposed an excessive penalty.

Petitioner asserts the Board acted in excess of its jurisdiction when it imposed discipline on Petitioner. Petitioner explains the Board did so by imposing discipline pursuant to Business and Professions Code section 2305 for out-of-state conduct that does not constitute unprofessional conduct under the California’s Business and Professions Code.

The Illinois Department charged Petitioner with seven counts of misconduct. (AR 11.) Based on factual allegations, the Illinois Department alleged Petitioner violated two statutes—225 Illinois Compiled Statutes (ILCS) sections 60/22(A)(5) and 60/22(A)(31).

“The Department may revoke, suspend, place on probation, reprimand, refuse to issue or refuse to renew, or take any other disciplinary or non-disciplinary action as the Department may deem proper with regard to the license or permit of any person issued under this Act, including imposing fines not to exceed $10,000 for each violation upon any of the following grounds:”

“Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public.”

“The use of any false, fraudulent, or deceptive statement in any document connected with practice under this Act.”

The Illinois Department disciplined Petitioner after a five day hearing before an ALJ where the ALJ heard from at least 39 witnesses and considered extensive documentary evidence. (AR 14, 15, 113-118.)

Relying on the findings of made in the Illinois disciplinary action, the Board determined Petitioner had engaged in unprofessional conduct under Business and Professions Code sections 2234 and 2305. The Board noted:

“Unprofessional conduct includes conduct occurring in another state and constituting cause for professional discipline in that state, if such conduct also would constitute cause for discipline in California. (Bus. & Prof. Code, § 2305; see also id., § 141.) The [Illinois Department] order described in Finding 12 constitutes cause for discipline in California under these statutes.” (Decision, p. 8 ¶ 3.)

“The Illinois Medical Disciplinary Board[4] findings on which the [Illinois Department] based its order (described in Findings 7 through 11) raise serious questions about [Petitioner’s] fitness to practice medicine. At the same time, these matters along with the matters described in Findings 13 through 30 do not establish definitively that [Petitioner] is unfit. An order requiring [Petitioner] to submit to evaluation before resuming practice in California will protect the public if [Petitioner] is unfit, but will permit her to continue her career and to serve the public if she is fit.” (Decision, p. 8 ¶ 4.)

Business and Professions Code section 2234 provides in part: “The board shall take action against any licensee who is charged with unprofessional conduct.” (Emphasis added.)

“The revocation, suspension, or other discipline, restriction, or limitation imposed by another state upon a license or certificate to practice medicine issued by that state, or the revocation, suspension, or restriction of the authority to practice medicine by any agency of the federal government, that would have been grounds for discipline in California of a licensee under this chapter, shall constitute grounds for disciplinary action for unprofessional conduct against the licensee in this state.”

Petitioner contends the Board’s findings of unprofessional conduct based on Business and Professions Code section 2305 are unsupported by the evidence because California does not have a “comparable statute” to the Illinois statute under which the Illinois Department disciplined Petitioner.

Petitioner focuses solely on the allegations regarding Petitioner sending “unwelcome” emails to a former friend and how such conduct cannot demonstrate a “likelihood” to deceive, defraud or harm the public.” (Opening Brief 9:1-9.) Petitioner further contends the underlying conduct in Illinois involving “[s]ending unwanted emails to a former boyfriend” “may be annoying, distasteful, displeasing, obnoxious, even offensive, but it does not constitute ‘unprofessional conduct’ warranting discipline in California, which requires a nexus tying the claimed ‘unprofessional conduct’ to fitness or competence to practice medicine.” (Opening Brief 8:4-7.) Petitioner notes that neither the Illinois Department nor the Board made any findings of sub-standard patient care.

Petitioner’s argument is unpersuasive. It ignores the Board’s decision as well as the other evidence in the record underlying the discipline imposed by the Illinois Department. Petitioner’s discipline by the Illinois Department was not merely related to unwanted electronica communications. In fact, the Board specifically stated the factual findings concerning unwanted electronic communications with a former friend (as found by the Illinois Department) did not “establish definitively that [Petitioner] was unfit.” (Decision p. 8 ¶¶ 3-4 [citing Factual Finding 12, 13 through 30].) Instead, the Board focused on:

Based on such findings, the Illinois Department found that Petitioner had “engaged in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public in violation of 225 ILCS 60/22(A)(5).” (AR 94-109.) Petitioner’s characterization of the basis for her discipline in Illinois is inaccurate.

The conduct above focused on by the Board is sufficient to demonstrate unprofessional conduct under Business and Professions Code section 2234. As the conduct falls within Business and Professions Code section 2234, the Board had the authority to discipline Petitioner.

“Unprofessional conduct is that conduct which breaches the rules or ethical code of a profession, or conduct which is unbecoming a member in good standing of a profession.” (Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 575.) As to acts of dishonesty and physician discipline, the Court of Appeal has explained:

“[A]lthough there is no evidence that [the doctor subject to discipline] was dishonest or acted improperly with respect to any patient, the Board may conclude that intentional dishonesty, even toward persons outside the practice of medicine, relates to the qualifications for practicing medicine and can be the basis for imposing discipline.” (Pirouzian v. Superior Court (2016) 1 Cal.App.5th 438, 447-448.)[6]

Similarly, in Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, the Court found:

“A physician who commits income tax fraud, solicits the subornation of perjury, or files false, fraudulent insurance claims has not practiced medicine incompetently. Nonetheless that physician has shown dishonesty, poor character, a lack of integrity, and an inability or unwillingness to follow the law, and thereby has demonstrated professional unfitness meriting license discipline.” (Id. at 771-772.)

Thus, while there are no allegations Petitioner negligently cared for her patients, the misconduct found by the Illinois Department raises concerns regarding Petitioner’s honesty, character, and integrity—all informing on her professional unfitness. Aside from sending unwanted electronic communications to a friend, Petitioner threatened harm to a medical clinic after losing her job, lied to a medical clinic about pending disciplinary action and her criminal history and publicly maligned former colleagues from a medical clinic who would not give her a favorable employment reference.[7] The Board reasonably found a connection between Petitioner’s misconduct and the practice of medicine. Petitioner has failed to demonstrate the Board acted in excess of its jurisdiction.

Petitioner challenges the Board’s finding that Petitioner was not credible under Government Code section 11425.50.

“If the factual basis for the decision includes a determination based substantially on the credibility of a witness, the statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it. (Gov. Code § 11425.50, subd. (b).)

During the proceeding on the Board’s accusation, Petitioner testified about the alleged conflict with other employees at Access Community Health Network:

“Finally, while I was at Access Community Health Network, I was harassed by another pediatrician, which is very embarrassing to share. The pediatrician’s name was Dr. Tara DeJesus Dargan. She was extremely derogatory to me about my Indian heritage, posting things to my social media ridiculing Indian people, and I was dismissed from Access Community Health Network accused of being a fire or bomb threat.” (RT 63.)

Petitioner argues her colleagues victimized and harassed her by making false and insulting complaints about her.[8] (Opening Brief 9:20-10:1.)

Petitioner also introduced a declaration from a state court proceeding in Illinois related to an alleged bomb threat made by Petitioner after Access Community Health Network terminated Petitioner’s employment. (RT 64.) The declaration suggests an office manager made derogatory comments to Petitioner once a week. (AR 415.) The declaration also reports Dr. Dejesus Daragan regularly reviewed Petitioner’s medical charts without “patient care purpose” on a regular basis. (AR 416.)

The Board (through the ALJ) found Petitioner’s statements and the declaration not credible. (Decision p. 5 ¶ 16.)

Petitioner argues the Board failed to comply with Government Code section 11425.50, subdivision (b) because the Board did not “identify any specific evidence of the observed demeanor, manner, or attitude of the witness” in support of the credibility determination. (Gov. Code, § 11425.50, subd. (b).) Petitioner asserts, “By failing to comply with that section’s mandate, the Board did not proceed in the matter required by law, which is a ground for relief under Code of Civil Procedure section 1094.5, subdivision (b).” (Opening Brief 5:21-23.)

Petitioner correctly recognizes the result that flows from the Board’s failure to “identify any specific evidence of the observed demeanor, manner, or attitude of the witness” in support of the credibility determination. (Gov. Code, § 11425.50, subd. (b).) The court “need not defer to the Board’s credibility determination on petitioner’s testimony regarding her termination from Access Community Health Network.” (Opening Brief 6:1-2.) The court is required to provide deference to credibility findings “only to the extent the ALJ identifies observed demeanor, manner or attitude of the witnesses, and in this case the ALJ made no such identification in connection with his determinations on witness credibility.” (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 588.)

Petitioner, however, has not argued the Board’s findings are not supported by the weight of the evidence. The court notes, even assuming, Petitioner did not cause conflict with her co-workers at Access Community Health Network, Petitioner’s testimony did not “address misrepresentations found by the Illinois Medical Board” regarding her false report to Access Community Health Network that no professional disciplinary action was pending against her and her false statement that she had never been charged or convinced with a crime. (Decision, p. 5 ¶ 17; see also Decision 3, ¶ 10.) Further, the Board found Petitioner’s testimony also did not address the unprofessional conduct found regarding Petitioner’s actions “publicly malign[ing] former colleagues who declined to give her favorable employment references after she left Access Community Health Network.” (Decision, p. 5 ¶ 18; see also Decision 4, ¶ 11.) Thus, nothing undermined the Board’s findings on those issues subjecting Petitioner to discipline.

Finally, Petitioner misses the most important point about the Board’s discipline—the Board sanctioned Petitioner pursuant to Business and Professions Code section 2305. The section does not require the Board to “take evidence on or establish the factual predicate for that other state’s disciplinary action . . . .” (Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089, 1093.) The “limited factual question” before the Board is “whether discipline was imposed by another state.” (Ibid.) “The focus of section 2305 is the mere fact that a measure of discipline was imposed on the licensee and not how it was imposed by the foreign jurisdiction.” (Id. at 1096-1097.) Business and Professions Code section 2305 does not require the Board to investigate or provide “proof of the underlying basis” for the discipline. (Id. at 1097.) The statute “on its face [does] not require any broad inquiry into the licensee’s underlying conduct which led to the” foreign jurisdiction’s discipline. (Id. at 1098.) Business and Professions Code section 2305 does not “burden California with the physical and financial task of investigating allegations of misconduct by its licensees in foreign jurisdictions and then bringing witnesses and evidence to this state to prove its case at an administrative hearing.” (Ibid.)

Thus, Petitioner’s testimony about an underlying factual allegation does not inform on “whether discipline was imposed by another state.” (Id. at 1093.)

The Board’s decision revoked Petitioner’s Physician’s and Surgeon’s Certificate but stayed the revocation under a probation term of five years upon certain terms and conditions. (Decision pp. 8-18.) Petitioner argues the penalty imposed by the Board constituted a was manifest abuse of discretion.

As a preliminary matter, the standard of review of the imposition of a penalty is vastly different than the court’s standard of review of the Board’s findings. “[T]he 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.” (Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961, 966.) “A manifest abuse of discretion exists if the penalty was arbitrary, capricious, or patently abusive.” (Oduyale v. California State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 118.)

“If reasonable minds could differ over the appropriateness of a penalty imposed, there is no manifest abuse of discretion.” (Id. at 118.) “Even if a penalty were to appear to be too harsh according to the court's evaluation, the court is not free to substitute its own discretion for that exercised by the administrative agency.” (Landau v. Superior Court (1998) 81 Cal.App.4th 191, 221.)

Petitioner argues the penalty the Board imposed was too harsh because the “there were no findings relating to sub-standard care of patient harm.” (Opening Brief 12:14-15.) Petitioner relies on the holding in Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74 to support her legal position.

In Magit v. Board of Medical Examiners, the Board of Medical Examiners revoked a doctor's license to practice medicine after he permitted three highly trained—but unlicensed—anesthesiologists to administer anesthetics under his supervision. (Id. at 79.) The Supreme Court held the doctor violated the law and was guilty of unprofessional conduct. (Id. at 87.) The Supreme Court also concluded, however, the board's imposition of the maximum penalty (license revocation) was excessive because the law on the issue was uncertain. In addition, the Supreme Court noted the physician acted in the “utmost good faith” and immediately halted the use of the unlicensed anesthesiologists after he learned it was improper. (Id. at 88.)

Petitioner’s penalty argument is largely undeveloped and conclusory. Petitioner makes no comparison to the facts in her case with those in Magit v. Board of Medical Examiners. In fact, the relevance of Magit v. Board of Medical Examiners to Petitioner’s matter escapes the court.

The Board explains and emphasizes the purpose of its disciplinary proceedings is “to protect the public.” (Medical Board v. Superior Court (2003) 111 Cal.App.4th 163, 173; see also Bryce v. Board of Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1476.) The Board asserts given its responsibility to protect the public, “harm to the patient and causation are not required to be shown in a license disciplinary proceeding because the purpose of such proceedings is to protect the public by imposing discipline before the licensee causes actual harm.” (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 515, fn. 7.)

Petitioner’s misconduct directly informs on her professional ability and competency as a physician providing services to the public. Petitioner’s misconduct involved dishonesty in her medical practice employment. Such dishonesty—about such things as whether disciplinary proceedings are pending against her—seriously implicates Petitioner’s qualifications to provide services as a physician. The Board also made threats against a medical clinic after the clinic terminated her employment. The Board’s disciplinary decision—revocation with reinstatement subject to probation—allows Petitioner to practice medicine but also ensures the public is protected.

In light of the seriousness of Petitioner’s multiple episodes of misconduct, the court cannot find the penalty imposed by the Board demonstrates a manifest abuse of discretion, especially when the purpose of physician discipline is protection the public. (Bus. & Prof. Code, § 2229.)[9] As reasonable minds might differ on the appropriate penalty here, the court cannot find the penalty imposed by the Board is a manifest abuse of discretion.

[1] The Illinois Department licenses physicians. (AR 11.)

[2] The decision has been submitted to the court separately from the paginated administrative record and is provided in the binder of exhibits.

[3] Contrary to Petitioner’s position, the Board does not dispute the applicability of Li v. Superior Court, supra, 69 Cal.App.5th at 836 to the review of administrative proceedings generally. Instead, the Board disputes Petitioner’s suggestion the case applies where penalty decision are in issue. The Board argues: “Petitioner offers argument about the weight of the evidence, relying on Li v. Superior Court (2021) 69 Cal. App. 5th 836, to claim that this court should not defer to the Board’s penalty determination, but the independent judgment standard does not mean the Superior Court must turn a blind eye, or ignore administrative fact finding in administrative mandate proceedings.” (Opposition 9:25-28.)

[4] It appears the Illinois Medical Disciplinary Board makes recommendations to the Director of the Illinois Department. The Director decides whether to impose discipline based on the Illinois Medical Disciplinary Board’s findings and recommendation. (See AR 7.)

[5] That Petitioner does not address any of the other findings of professional misconduct made by the Illinois Department necessarily undermines her position here. Even assuming Petitioner is correct, the Board did not merely proceed with discipline against Petitioner based on unwanted electronic communications with a friend.

[6] The court acknowledges the Court in Pirouzian v. Superior Court ultimately concluded the doctor’s “dishonest acts, while serious, were focused on his efforts to obtain disability insurance benefits and preserve the possibility of returning to work . . . . Significantly, there is no evidence that his dishonesty involved or affected the treatment or care of any patient, or the billing of clients.” (Id. at 449.)

[7] Petitioner also violated a restraining order, resisted arrest and told arresting officers “she would let their children die rather than treating them if they children came to her hospital.” (Decision p. 3 ¶ 7.) (AR 20, 21.)

[8] Petitioner does not cite any support in the administrative record for her position.

[9] The Board believes Petitioner attempts to explain her conduct as related to a brain tumor. (Opposition 14:23-15:2.) The court does not agree.