Judge Mitchell L. Beckloff, Case Number: 22STCP04363, Date: 2024-02-09 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP04363, Date: 2024-02-09 Tentative Ruling

Petitioner, Lilibeth Manglicmot, seeks a writ of administrative mandate directing Respondent, California State Personnel Board (the Board) to set aside its decision upholding an official reprimand served on Petitioner in her position as Certified Nursing Assistant (CNA) by Real Party in Interest, California Department of Veterans Affairs (the Department).[1] The Department opposes the petition.

Petitioner has worked as a CNA at the Department’s Chula Vista Veterans Home since February 7, 2015. (AR 2.) Petitioner “has no prior formal discipline. Overall, [Petitioner] was considered a good and dependable CNA by her peers and supervisors.” (AR 321 [Administrative Decision].)

“In her role as a CNA, [Petitioner] was responsible for caring for and tending to the physical needs of the residents of the Veterans Home. This included checking the residents’ vital signs, helping them eat, and assisting with personal hygiene matters such as bathing and going to the restroom.” (AR 321; see also AR 9.) As a CNA, Petitioner worked under the supervision of licensed nurses and medical staff. (AR 9.) Although CNAs do not perform medical assessments, they do “observe or examine” residents “to detect symptoms that may require medical attention.” (AR 9, 163.)

As relevant to the petition, the Department’s Nursing Documentation & Confidentiality Policy states CNAs perform the following duties:

A. Completes the required documentation each shift and makes brief narrative note of unusual occurrences and has the licensed nurse co-sign.

H. Ensures licensed nurse is kept informed and countersigns any narrative documentation. (AR 74).

Supervising Registered Nurse III, Crissene Caramoan, who oversees nursing care of all units in the skilled nursing facility, testified CNAs are required by the Department’s policies and procedures to document pain and notify their immediate supervisor “when an unusual occurrence has happened with the resident.” (AR 211-212.) Caramoan testified a resident’s expression of pain to a CNA would “absolutely” warrant documentation. (AR 211.) If “a resident had explained to a CNA that they were in pain,” a licensed nurse would immediately address it. (AR 212.) It is the “explanation of pain that would prompt action.” (AR 212.) Caramoan testified all CNAs are informed of these policies upon hire. (AR 211-212.)

The official reprimand at issue arose from Petitioner’s care for Resident A, a resident at the Veterans Home being treated for bladder cancer. The administrative decision summarizes the essential facts as follows:

7. . . . As part of his cancer treatment, Resident A had a nephrostomy tube (N-tube) attached to his body. An N-tube is a long tube that is sutured onto a person’s kidney and extends out of the body. A waterproof plastic dressing is fitted around the tube where it extends out of the body. The N-tube allows urine to be extracted directly from the kidney to outside the body, bypassing the bladder. It is important that the N-tube is not dislodged in any matter because if the N-tube is not properly secured, urine and waste products from the kidney will not properly extract from the body. The build-up of these waste products in the kidney can cause serious harm, including death.

8. Because the N-tube is inside the body, it is not always apparent that the tube has been pulled or dislodged from its suture. There are several ways to check whether the N-tube has been dislodged, including measuring the length of the tube, checking the dressing for any leaks, noting pain felt by the person, or seeing a lack of urine output. These assessments must be conducted by a licensed nurse, not a CNA.

9. On November 10, 2020, at approximately 11:30 a.m., [Petitioner] was in Resident A’s room after being informed that there was a problem with his bed. [Petitioner] was aware that Resident A had an N-tube. [Petitioner] was looking around Resident A’s bed and trying to locate the remote for the bed, which is attached to the bed via a long cord. While doing so, [Petitioner] accidentally touched Resident A’s N-tube. When she did, Resident A yelled out, “Ouch!” He also said, “That’s my tube.” [Petitioner] replied, “I’m sorry.” Resident A stated, “It’s okay, I’m fine.” [Petitioner] checked the N-tube dressing and believed everything was in place. [Petitioner] asked Resident A if he was okay and he stated that he was. Resident A did not report any further pain until the next morning.

10. [Petitioner] did not document that Resident A yelled out in pain when she touched his N-tube. She did not inform the licensed nurse or anyone else of the incident.

11. After the incident and throughout the late afternoon, there was some urine output from Resident A’s N-tube. However, between 10:00 p.m. and 7:00 a.m. the next morning, there was no urine output from the N-tube. Instead, it was noted that urine was coming out of the Resident A’s penis, which indicated that the N-tube had been dislodged from the kidney. Resident A also began experiencing pain in the morning. As a result, on the morning of November 11, 2020, Resident A was taken by ambulance to a hospital.

12. At the hospital, it was discovered that the N-tube had become dislodged from its sutured location in the kidney. Without the suture holding it firmly to the kidney, the tube had begun to slowly move into the soft tissues of the kidney, eventually becoming plugged up completely.

(AR 323, ¶ 9; see also AR 271-272, 277-279 [Petitioner’s testimony]; AR 41 [complaint from Resident A’s daughter]; AR 43 [social worker’s notes]; AR 72, 197-202 [progress note].)[2]

After an investigation, the Department served Petitioner with a Notice of Adverse Action. The notice officially reprimanded Petitioner for failing to report to nursing staff that she had pulled Resident A’s N-tube on November 10, 2020 causing him pain and discomfort. (AR 1-6.)

Petitioner appealed the Notice of Adverse Action. An administrative law judge (ALJ) conducted the appeal hearing on April 8, 2022. (AR 320.) On May 3, 2022, the ALJ issued a proposed decision recommending the Board sustain the official reprimand. (AR 329.) On June 9, 2022, the Board adopted the proposed decision as its final decision. (AR 336.)

Petitioner seeks relief from the court pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the relevant 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. (Code Civ. Proc., § 1094.5, subd. (b).)

“Because the [Board] is vested with quasi-judicial powers, the trial court may not exercise its independent judgment, but must uphold the Board's findings if they are supported by substantial evidence.” (Dept. of Corrections & Rehabilitation v. State Personnel Bd. (2022) 74 Cal.App.5th 908, 922. See Opening Brief 2:13-15 [substantial evidence review].)

Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-585), 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.) The court does “not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073.)

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.) A petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.) The 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.) Where there is a challenge to “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [the challenger’s] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“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 interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

The Board found Petitioner “violated the Nursing Documentation and Confidentiality Policy when she failed to report that Resident A experienced pain after she touched his N-tube. This was clearly an unusual occurrence because Resident A expressed feeling pain.” (AR 326.)

Petitioner contends “[s]ubstantial evidence shows that Resident A did not report that he was in pain.” (Opening Brief 14:4.) On substantial evidence review, the pertinent question is whether substantial evidence supports the Board’s finding Resident A “expressed feeling pain” after Petitioner touched his N-tube. To the extent Petitioner suggests her burden on writ here is to cite substantial evidence that could support a different finding, Petitioner is incorrect.

Here, as Petitioner herself testified, Resident A said “ouch, that’s my tube” after Petitioner touched his N-tube. (AR 278; see also AR 45.) According to a social worker’s notes of an interview of Resident A, on November 13, 2020, Resident A recalled that he “yelled loudly” after Petitioner pulled on his N-tube. (AR 43, 86.) Since Resident A reacted with an expression of pain (“ouch”) immediately after Petitioner touched his N-tube, a reasonable person could conclude, as the Board did, Petitioner’s “touching of the N-tube caused Resident A pain.” (AR 326.)

The court has considered all of Petitioner’s record citations, including, but not limited to, Petitioner’s testimony Resident A told her “okay, I’m fine” after Petitioner apologized for pulling his N-tube (AR 278); Resident A did not complain of additional pain at lunch or during his bath on November 10, 2020 (AR 283-284); and Resident A worked with a speech therapist, occupational therapist, and physical therapist after the alleged incident and did not report pain (AR 278). Also, on November 10, 2020, at 1:06 p.m., a licensed nurse checked on Resident A and documented, “received in bed pleasant with staff with respiration even and non-labored. No pain or any discomfort noted. . . . Bilateral nephrostomy intact with clean dry dressing. No bladder pain or any bladder discomfort noted.” (Opening Brief 8:10-14 [citing AR 170-172].) In addition, Supervising Registered Nurse “Atencio testified that the resident had output from his left nephrostomy tube of 200 during Manglicmot’s shift and 300 during the shift afterwards. (AR195, HT 53: 14-20.) But no output during the night shift. (AR 158, HT 16:11-12.).” (Opening Brief 9:26-28.)

As discussed below, substantial evidence demonstrates Resident A’s immediate expression of pain after Petitioner pulled his N-tube was an unusual occurrence triggering Petitioner’s reporting obligations under the Nursing Documentation and Confidentiality Policy. In that respect, Resident A’s statements or activities after the alleged incident, as well as the care of licensed nurses or other CNAs, are not dispositive.

Moreover, on substantial evidence review, Petitioner’s cited evidence does not show any prejudicial abuse of discretion in the Board’s findings. Resident A’s level of pain (i.e., immediate pain) could have subsided until the next morning when urine began coming out of his penis. (AR 324; see e.g. AR 230-231 [testimony there may not be “continued pain” after a N-tube is pulled out].) Also, since the N-tube is “sutured onto the kidney itself, it is not always apparent when it becomes dislodged.” (AR 326.) Substantial evidence demonstrates a licensed nurse may not have noticed the dislodged N-tube immediately after the alleged incident. Thus, even if Resident A told Petitioner “okay, I’m fine” after she apologized or Resident A did not report additional pain to his care providers on November 10, and even if medical staff did not immediately diagnose a dislodged N-tube, a reasonable person could conclude from the administrative record Resident A expressed pain to Petitioner immediately after she pulled his N-tube.

Substantial evidence supports the Board’s finding Resident A expressed feeling pain to Petitioner after she pulled his N-tube on November 10, 2020. (AR 326.)

Definition of “Unusual Occurrence” and the Department’s Training on CNA-Reporting Policies

The Board found the Department’s Nursing Documentation and Confidentiality Policy required Petitioner, as a CNA, to “note any unusual occurrences that may occur while caring for a resident by documenting it and having a licensed nurse review and sign the documentation.” (AR 322.) “An unusual occurrence can include anything out of the norm,” including “any pain reported by the resident.” (AR 322.) Relatedly, the Board found “CNA’s are not licensed nurses or otherwise authorized to conduct any clinical assessments of residents,” and “it is the responsibility of the CNA to ensure that a licensed nurse, who can make assessments of residents, is well informed of any issues with residents.” (AR 322, ¶ 5 [emphasis added].)

As relevant here, in Finding of Fact 5, the Board found “there is no requirement that an unusual occurrence be a certain level of severity or length of time in order for it to be reported. For example, if a resident yells, ‘Ouch!’ during a care check, this singular note of pain would be considered an unusual occurrence that requires documentation.” (AR 322.)

Petitioner challenges this latter part of Finding of Fact 5. She argues “there was no evidence to support that [Petitioner] was [ever] cautioned to report any fleeting ‘ouch’ regardless of brevity.” (Opening Brief 1418-19.) Petitioner also appears to challenge the Board’s conclusion Petitioner “violated the Nursing Documentation and Confidentiality Policy when she failed to report that Resident A experienced pain after she touched his N-tube.” (AR 326.) Petitioner’s contentions and record citations do not show a prejudicial abuse of discretion in the Board’s findings.

Petitioner cites a log indicating that, on April 14, 2020, Petitioner received training on reporting unusual occurrences related to “Preventing Falls and Fall Related Injury.” (AR 78.) As Petitioner indicates (see Opening Brief 5:11-17), Supervising Registered Nurse III Caramoan, who oversees nursing care of all units in the skilled nursing facility, testified CNAs are required by the Department’s policies and procedures to document pain and notify their immediate supervisor “when an unusual occurrence has happened with the resident.” (AR 211-212.) Caramoan testified a resident expressing pain to a CNA would “absolutely” warrant documentation. (AR 211.) If “a resident had explained to a CNA that they were in pain,” a licensed nurse would immediately address it. (AR 212.) “It’s the explanation of pain that would prompt action.” (AR 212.) Caramoan testified all CNAs are informed of these policies upon hire. (AR 211-212.) Supervising Registered Nurse Roland Atencio also testified that “normally, when the resident complain[s] of pain. It should be reported to a licensed nurse.” (AR 163.) Contrary to Petitioner’s assertions, the testimony of Caramoan and Atencio, along with the training log, supports a finding the Department trained Petitioner that an expression of pain from a patient is generally an unusual occurrence that must be reported to a CNA’s supervisor.

Petitioner does not cite any written policy or training materials of the Department showing there is some requirement that an unusual occurrence “be a certain level of severity or length of time” in order for the CNA to have a reporting obligation. Further, “it is the responsibility of the CNA to ensure that a licensed nurse, who can make assessments of residents, is well informed of any issues with residents.” (AR 322 [emphasis added], 31.)

Petitioner supports her position with testimony of Nurse Instructor Annelyn Tan. Tan testified CNAs are required to report “abnormalities,” and reporting is required only if vital signs and pain are “beyond the normal” limit. (AR 266.) When Tan was asked if a report must be made if the resident says “I’m fine,” Tan responded “[a]s long as there’s no pain involved, yes” and that “if everything is normal, nothing to report.” (AR 265-266.) Notably, Tan also testified if the CNA saw or knew a N-tube had been pulled, “then you have to report it.” (AR 113.)

In context, Tan’s testimony does not support Petitioner’s position that she was not required to report Resident A loudly yelling “ouch” after Petitioner pulled his N-tube and knew she had pulled his N-tube. (AR 43, 116 [“that’s my tube”].) Rather, Tan’s testimony suggests that a resident saying “ouch” after his N-tube was pulled would be considered an “abnormality” that falls within the unusual occurrence policy especially given “the excruciating pain [Resident A] was in.” (AR 43 [social worker notes], 86 [Petitioner said she “checked the site of the nephrostomy” and excruciating pain, 92 [excruciating pain].)

Finally, Petitioner contends Caramoan admitted the Department does not have a policy and procedure for disciplinary investigations. Petitioner contends “[a]n establishment that lacks procedures for gathering facts can hardly be believed to adequately training staff to report a vocalization neutralized by an ‘I’m fine.’ ” (Opening Brief 15:5-7; see also Opening Brief 10:2-8 [citing AR 213-215].)

To be clear, Caramoan testified: “When it comes to -- to fact-finding -- we actually call it Fact-Finding Report. It's the same as invest -- investigation. When it comes to Fact-Finding Report, we don't have a policy and procedure.” (AR 214.) That the Department has no policy and procedure for its fact finding and investigation does not inform on the Department’s training procedures—the investigation procedures are distinct and seemingly unrelated to those related to training.

Based on the foregoing, substantial evidence supports the Board’s findings Petitioner “violated the Nursing Documentation and Confidentiality Policy when she failed to report that Resident A experienced pain after she touched his N-tube,” and “this was clearly an unusual occurrence because Resident A expressed feeling pain.” (AR 326; see also AR 322 ¶¶ 4-5.)

Petitioner contends the Board made certain “implied” credibility determinations, such as crediting testimony of Caramoan and Atencio and “disregarding” aspects of Petitioner’s testimony. Petitioner argues the Board’s implied credibility findings are not supported by the “weight of the evidence.” (Opening Brief 15:9-10.)[3] The court has considered all of Petitioner’s arguments and record citations. None persuade.

The standard of review is relevant to Petitioner’s arguments. As discussed, “[o]n substantial evidence review, we do not ‘weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.’

. . . . ‘Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence.’ ” (Doe v. Regents of the University of California, supra, 5 Cal.App.5th at 1073.)

The Board found “[t]here was no reliable evidence [as] to how Appellant touched the tube, whether she touched it lightly, moved it aside, or pulled on it.” (AR 323, fn. 2.) Thus, the Board expressly found Petitioner’s testimony that she “gently” moved the N-tube was not “reliable.” (AR 278.) The Board was entitled to make that credibility determination, and the court cannot substitute its own judgment about the credibility of Petitioner’s testimony. As Petitioner acknowledges, the Board did not make any other express credibility determinations.

Contrary to Petitioner’s assertion, the Board did not disregard her testimony that Resident A stated “I’m fine” after she pulled on his N-tube. (Opening Brief 15:23-28.) Rather, the Board credited Petitioner’s testimony that Resident A said “It’s okay, I’m fine” but nonetheless concluded Resident A’s initial expression of pain, after Petitioner pulled his N-tube, was an unusual occurrence that required a report. (AR 322-324, 325-326.) For the reasons discussed above, that finding is supported by substantial evidence.

Petitioner argues, at some length, why she believes that Caramoan and Atencio were biased or otherwise unreliable witnesses. As examples, Petitioner takes issue with Caramoan’s testimony Resident A could have died if the dislodged N-tube was not properly treated, and it was not possible for the tube to have been pulled out at a different time. (AR 231, 239.) Petitioner also cites Atencio’s testimony about “how to determine if a nephrostomy tube has been discharged.” (AR 172-173.) Notably, in her arguments, Petitioner has not cited any specific Board finding she contends is unsupported by substantial evidence. For that reason alone, her arguments about “implied” credibility determinations are not persuasive. (See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513 [in administrative mandamus “the challenger must identify (with citations to the record) the factual findings made by the board that he or she is challenging”].) Further, Petitioner has not cited any evidence that conflicts with the cited testimony of Caramoan or Atencio. Even if she had, as discussed, on substantial evidence revie, the court cannot reweigh the evidence or resolve any conflicts within it.

Based on the foregoing, the Board’s express credibility determination is supported by substantial evidence. (See AR 323, fn. 2.) To the extent the Board made “implied” credibility determinations as to the testimony of Petitioner, Caramoan, or Atencio, Petitioner does not show a prejudicial abuse of discretion. The court concludes the Board’s credibility determinations are supported by substantial evidence.

Based on the administrative findings, among others, the Board concluded Petitioner had committed an inexcusable neglect of duty and “other failure of good behavior.” (AR 325-327.) Although Petitioner refers generally to the “other failure of good behavior” conclusion in her briefs, she does not specifically address that legal conclusion. (See Opening Brief 17:24-25.) Rather, Petitioner contends that substantial evidence does not support the elements of “inexcusable neglect of duty.” (Opening Brief 17:26-18:2.)

“To establish that an employee inexcusably neglected a duty by violating a policy, the employer must show that: (1) it had a clear policy, (2) the employee had notice of the policy, and (3) it intended to enforce the policy.” (AR 325.) In challenging the Board’s conclusions the Department established the requisite elements, Petitioner largely reiterates the same arguments discussed earlier.

For the reasons discussed, the court concludes substantial evidence supports the Board’s findings Resident A expressed feeling pain after Petitioner pulled on his N-tube, such expression of pain was an “unusual occurrence” that should have been reported to a licensed nurse pursuant to the Department’s policies, and Petitioner violated the Department’s policies by failing to make such report.

Petitioner also contends “the decision leap [sic] to conclude that [Petitioner] violated the policy of reporting unusual occurrences without analyzing whether [the Department] had a clear policy, whether there was notice of the policy and [Petitioner’s] intention to enforce that policy.” (Opening Brief 19:2-5.) The court disagrees.

The Board sufficiently analyzed the elements of inexcusable neglect of duty in its decision. (See AR 322-324, 325-326.) For example, the Board stated: “Appellant violated the Nursing Documentation and Confidentiality Policy when she failed to report that Resident A experienced pain after she touched his N-tube. This was clearly an unusual occurrence because Resident A expressed feeling pain.” (AR 326.) The Board sufficiently explained how the Nursing Documentation and Confidentiality Policy is “clear,” Petitioner had notice of and knew of the policy, and the Department intended to enforce the policy. (See e.g. AR 322 ¶¶ 4-6 and 326.) For the reasons discussed, substantial evidence supports these findings.

Based on the foregoing, the court concludes the Board’s findings and legal conclusions are supported by substantial evidence. Petitioner has not shown the Board prejudicially abused its discretion.

The public service is harmed when employees do not report unusual occurrences, which can lead to delayed treatments and further injury or death of those in [the Department’s] care. Also, the likelihood of recurrence is high. [Petitioner] took no responsibility for her actions and tried to downplay the seriousness of the incident. In mitigation, [Petitioner] has no prior formal discipline and her supervisor testified that aside from this incident, [Petitioner] has been a good dependable CNA. However, the harm to the public service caused by [Petitioner’s] misconduct and the likelihood of recurrence is too high to justify modification of penalty. Also, the penalty imposed is the lowest possible form of adverse action despite the seriousness of [Petitioner’s] misconduct and the actual as well as potential harm of her actions. Therefore, the imposed penalty of an official reprimand is just and proper. (AR 328.)

“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.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

In considering whether an abuse of discretion occurred, the “overriding consideration . . . is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the public service.’ [Citations.] Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.” (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 218.)

Petitioner argues why she believes the surrounding circumstances, the potential harm to the public service, and the likelihood of recurrence did not justify an official reprimand. Petitioner also contends the Board did not follow “progressive discipline,” and “[a] verbal or written warning would more than suffice considering the record lacked substantial evidence of adequate training for the situation.” (Opening Brief 20:19-23.)

As discussed, substantial evidence supports the Board’s findings Petitioner “violated the Nursing Documentation and Confidentiality Policy when she failed to report that Resident A experienced pain after she touched his N-tube” and committed an inexcusable neglect of duty. The misconduct at issue was relatively serious given the potential consequences to Resident A.

Further, as the Board found, Petitioner has not taken responsibility for her misconduct but rather has maintained she did not violate the policy because Resident A stated “I’m fine” after his initial expression of pain. Finally, since the official reprimand is the “lowest possible form of adverse action” (AR 328), Petitioner does not show the penalty was inconsistent with progressive discipline. Under these circumstances, the official reprimand was reasonable even though Petitioner did not have prior discipline and had “been a good dependable CNA.” (AR 328.) Petitioner does not show a manifest abuse of discretion as to the penalty imposed by the Board.

[1] Petitioner’s opening brief is 22 pages and substantially exceeds the applicable 15-page limit. (California Rules of Court (CRC), Rule 3.1113, subd. (d) and Los Angeles County Court Rules, Rule 3.231, subd. (i).) Petitioner did not request leave to file an over-sized brief. The court admonishes Petitioner’s counsel to seek leave of court before filing an oversized brief. (See CRC, Rule 3.1113, subd. (e). Neither the Department nor the Board has objected to Petitioner’s oversized brief. While the court is inclined to disregard all that follows page 15 of Petitioner’s Opening Brief, given the lack of objection, the court considers the entire brief.

[2] Additional evidence supporting these and other relevant findings is discussed in the Analysis section infra.

[3] Presumably, Petitioner contends that the credibility determinations are not supported by “substantial evidence.” As conceded by Petitioner, the court’s independent judgment and the weight of the evidence standard has no application here.