Judge Stephen I. Goorvitch, Case Number: 22STCP00012, Date: 2024-10-09 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 22STCP00012, Date: 2024-10-09 Tentative Ruling

The Board of Psychology, Department of Consumer Affairs of the State of California (the “Board” or “Respondent”) revoked the license of Dr. Robert A. Geffner (“Petitioner”)—but stayed the revocation and placed Petitioner on five years’ probation—after it found that he violated the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct (the “Ethical Standards”). Specifically, the Board found that Petitioner erred by evaluating two children for suicidality without their father’s consent and without consulting their existing therapist; making custodial recommendations that went beyond the scope of an emergency risk assessment; and delegating the duty to warn the father that one child had thoughts about killing him. Petitioner sought a writ of mandamus to vacate the Board’s decision. The court (Beckloff, J.) denied the petition and declined to issue the writ.

The District Court of Appeal reversed the judgment with directions to the trial court to grant the petition for a writ of mandate and to reverse the Board’s findings. The Court of Appeal held that: (1) “Neither the Ethical Standards nor the evidence supports” the trial court’s finding that Petitioner “violated Ethical Standards 3.10 and 9.03 by failing to obtain father’s consent before evaluating the children;” (2) There was insufficient evidence to support the Board and the trial court’s finding that Petitioner violated Ethical Standard 3.09 by failing to contact the children’s therapist; (3) There was insufficient evidence to support the trial court’s finding that Petitioner made custody recommendations; and (4) While Petitioner generally had a duty to warn others of foreseeable and unavoidable harm, he did not violate any duty owed to warn father. The Court of Appeal also discussed the legal definition of “emergency,” especially as applied to the Ethical Standards, and concluded that “the trial court’s finding that no ‘true emergency’ existed under these circumstances finds little support in the law or evidence.” (See Shaughnessy Decl. Exh. A at 21-38.)

Petitioner now moves for attorneys’ fees pursuant to Code of Civil Procedure section 1021.5 on the grounds that the Court of Appeal’s published decision “provided valuable precedent that benefits California health care professionals who may be called to provide emergency assessments under circumstances like those faced by Doctor Geffner” and “also benefits California minors who need the help of a health care professional in an emergency.” (Memorandum of Points and Authorities in Support of Motion for Attorney’s Fees (“Mot.”) 5:18-22.) The court denies the motion.

A detailed statement of the underlying facts, the Board’s decision, and the trial court’s decision is set forth in the Court of Appeal’s published decision and is incorporated by reference. (See Shaughnessy Decl. Exh A at 3-17; Geffner v. Board of Psychology (2024) 100 Cal.App.5th 19.) In addition, the following procedural history is particularly relevant to this motion for attorney’s fees:

The Board revoked Petitioner’s license effective December 24, 2021. The Board stayed the revocation for five years with multiple terms and conditions, including: (1) a psychological evaluation; (2) oversight of Petitioner’s practice by a monitor; (3) passage of the California Psychology Law and Ethics Examination; (4) completion of 24 additional hours of Respondent-approved coursework on ethics and boundaries of competence; (5) completion of Board-approved course in law and ethics; (6) payment of $42,418.75 for Respondent's costs for the investigation and prosecution of Petitioner; and (7) payment of costs for annual probation monitoring. (Mejia Decl. Exh. D at 7.)

On January 3, 2022, Petitioner filed his petition for writ of mandate challenging the Board’s decision. On January 25, 2022, Petitioner filed an ex parte application for a temporary stay of the Board’s decision, which the trial court (Beckloff, J.) denied. On June 13, 2022, after briefing and a hearing, the trial court (Beckloff, J.) denied the petition for writ of mandate. On August 11, 2022, Petitioner filed his notice of appeal.

On or about September 15, 2023, after Petitioner appealed the trial court’s judgment, attorney Seth L. Goldstein, who specializes in child protection matters in family courts, filed an application with the Court of Appeal to file a late brief of amici curia in support of Petitioner’s appeal. (Reply Shaughnessy Decl. Exh. H.)[1] The signatories to the amicus application included “professionals in the fields of psychology, academia, medicine, and law, all of whom have dedicated their practices and lives as a mission to ensure the safety and well-being of children caught up in family violence, in divorce, victimized by their parent(s) and facing traumatic changes as a result of the Court orders made on their behalf.” (Id. at 2.) The application included a list of 21 organizations and multiple individuals, located throughout California and in some other states, that joined the application. (Id. at 2-8.)

In the application, the amici summarized the purpose of their proposed brief, as follows:

In this brief, Amici intends to expose, explore, and propose a solution to the Sophie’s Choice perplexing mental health professionals throughout California when faced with children refusing to cooperate with court orders that cause them to commit or attempt to commit suicide and/or violent acts against others, including their parents, as a result. This is a recurrent problem that needs this Court's direction. As can be noted by looking at the list of individuals and organizations signing onto this brief, the implications of this Court’s decision will have a far-reaching effect going beyond the borders of our state and nation.

(Id. at 8.) The Court of Appeal granted the application. In the amicus brief that was filed and considered by the Court, the amici summarized the public interest at stake in the appeal, as follows:

[T]his brief brings to the Court's attention an important issue raised below but not resolved, an issue that— depending on how this Court addresses it—could chill the willingness of mental health professionals to evaluate children who are in need of emergency assistance from mental health professionals when in potentially life-endangering situations. The issue of state-wide importance in this case may be stated as follows: When parents have joint legal custody, does the law require in all cases that a mental health professional obtain consent in advance from both parents for an evaluation of the child? .... If there are emergency or other situations (such as with child maltreatment) when the advance consent of both parents is not required or appropriate, and if this is one of those cases, then Dr. Geffner may have acted properly, and should not be disciplined for his decision to forego obtaining Father's advance consent.

An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.” (Code Civ. Proc. § 1021.5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214, internal quotations and citation omitted.)

Petitioner does not demonstrate that the necessity and financial burden of private enforcement support an award of attorneys’ fees in this case.

In evaluating the element of financial burden, the inquiry before the trial court is whether there were insufficient financial incentives to justify the litigation in economic terms. If the plaintiff had a personal financial stake in the litigation sufficient to warrant the decision to incur significant attorney fees and costs in the vigorous prosecution of the lawsuit, and award under section 1021.5 is inappropriate. Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.

(Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 768-769, internal quotations, alterations, and citations omitted.) The purpose of attorneys’ fees is to compensate “litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” (Broad Beach Geologic Hazard Abatement Dist. v. 31506 Victoria Point LLC (2022) 81 Cal.App.5th 1068, 1096.)

Petitioner attempts to portray himself as pursing this litigation “to hold the Board to account, to clarify the law, and to compel the Board to follow the law as clarified by the County of Appeal.” That is not accurate. Petitioner’s motivations and incentives were purely personal. In seeking a temporary restraining order, Petitioner submitted a declaration focusing on the costs of probation, the financial impact on his practice, the potential loss of other licenses, and the loss of income from other activities, like training graduate students and performing expert work. (See Mejia Decl. Exh. C (Declaration of Robert A. Geffner, Ph.D.) He states:

The Decision markedly impairs my ability to continue in even a semblance of what my practice of over 45 years has become. . . . I believe there will be nothing left by irreparably damaged pieces if the Board’s Decision and disciplinary order remain in place for the many months it will take before the court will be able to consider and rule on the merits of the writ petition.

(Id. at 16.) This is very different from his current argument—in the memorandum of points and authorities, not a sworn declaration—stating that he was “disciplined near the end of his professional career” and therefore had no financial incentive to pursue this case because “there was no large award of damages available to him at the end of the day even if he prevailed.” (Petitioner’s Memorandum of Points & Authorities at 14:3-9.) While Petitioner also had non-pecuniary interests, they were personal in nature, viz., repairing the damage to his reputation. (See ibid.) Any clarification of the law was secondary to these personal considerations. Simply, Petitioner had ample personal reasons to pursue this action, and there was not need to incentive him through the award of attorneys’ fees.

[1] Petitioner submitted the amicus brief with the moving papers. However, a copy of this application was submitted with Petitioner’s reply brief. The court views this reply evidence as proper rebuttal to arguments made in the opposition and will consider it.