Judge Stephen I. Goorvitch, Case Number: 23STCP02398, Date: 2025-04-11 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP02398, Date: 2025-04-11 Tentative Ruling

Petitioner Patrick Peoples (“Petitioner”) is a registered nurse with the California Department of State Hospitals (the “Department” or “DSH”). The Department found that Petitioner did not address a medical complaint by a patient and was dishonest during the related investigation. Accordingly, the Department imposed a two-step reduction in salary for 13 pay periods. Petitioner challenged the decision, and following an evidentiary hearing, an administrative law judge found that another percipient witness was credible; Petitioner was not credible; the Department proved the dispositive charges; and the penalty was reasonable under the circumstances. The Board adopted the ALJ’s decision. Petitioner now seeks a writ of mandate to set aside that decision. Essentially, Petitioner asks this court to revisit the ALJ’s credibility determinations. Petitioner also reargues the evidence without consideration for the deferential standard of review and asks this court to revisit evidentiary rulings which were not an abuse of discretion. In the alternative, Petitioner argues that this temporary reduction in salary was a manifest abuse of discretion. The court denies the petition for writ of mandate.

Petitioner began his employment as a registered nurse (“RN”) with the designation “RN (Safety)” with the Department on March 1, 2019, after working as an RN in the private sector. (Administrative Record (“AR”) 371-372, 1112.)[1] Petitioner worked as a RN at Metropolitan State Hospital until January 1, 2020, when he transferred to Patton State Hospital (“Patton”). (AR 372, 1112.) The classification for RN (Safety) provides, in relevant part, that employees in that position “administer nursing care to forensic clients, patients, or inmates at developmental centers, State hospitals, and correctional facilities contracting with the Department of Mental Health.” (AR 204.) Among other things, the Duty Statement at Patton provides that an RN is responsible for providing a “basic level of general and psychiatric nursing care to mentally ill and emotional disturbed clients/patients.” (AR 208.)

At Patton, the primary nurse, or treatment nurse, is the lead nurse who takes a patient’s vital signs and provides treatment. (AR 381, 566.) In Unit 73, it is also a “common practice” for the primary nurse to prepare the SBAR (“Situation, Background, Assessment, Recommendation”), which is a form that nurses complete when assessing a patient and documenting any changes in a patient’s medical condition. (AR 382, 474-481, 506-507, 553-554, 566-567.) The secondary nurse does the restraints, completes administrative tasks, and backs up the primary nurse as necessary. (AR 566, 1115, 381.)

On January 14, 2021, Petitioner and RN Girlie Natividad (“Natividad”) worked the evening shift in Unit 73 of Patton, which was from 3:00 pm to 11:00 pm. (AR 214, 379-381, 478-484, 1115.) Unit 73 of Patton is generally staffed with two nurses. (AR 524.) Petitioner was the primary or treatment nurse during the evening shift. (AR 381.) RN Natividad was the secondary nurse. (AR 214, 386-389, 478, 483-485, 523.)

At approximately 8:00 p.m., Petitioner and Natividad were working in the nurses’ office of Unit 73. (AR 485-486, 509-510.) Patient Adrian Loney came to the nurses’ office and, while Petitioner held the door open, had a discussion with Petitioner. (AR 487, 512-513, 517-518, 1115.)[2] Natividad, who was working on the computer, did not hear the full discussion between Loney and Petitioner. (AR 487, 512-513, 517-520.) After speaking with Loney, Petitioner turned to Natividad and asked who was the primary care physician (“PCP”) for the morning shift. (AR 487, 517.) Natividad replied that she did not know because the regular PCP was on vacation. (AR 487-488.) Based on Petitioner’s question about the PCP, Natividad believed that Loney had complained to Petitioner about a change in his medical condition. (AR 517-518.) Subsequent assessments, as well a “sick call log,” show that Loney did make a complaint about hemorrhoids on January 14, 2021. (AR 1116, fn. 1; see AR 490, 497, 246.) Natividad then advised Petitioner to assess the patient, initiate a SBAR, enter the patient’s name on the sick call log for the PCP to follow-up in the morning, and contact the medical officer of the day (“MOD”). (AR 487-488, 517-520, 804-805.) Petitioner then walked out of the nurses’ office and Natividad heard him tell Loney, “I will assess you later.” (AR 488-489.) Petitioner did not assess Loney, complete the SBAR, or document Loney’s medical complaint in his medical chart on January 14, 2021. (AR 283, 1116, 490.)

On January 15, 2021, Natividad worked the morning shift. (AR 215.) Around 6:30 a.m., as Natividad was starting her shift, Loney approached Natividad and asked her to make sure that he would be seen by a doctor that morning. (AR 489-490, 508.) Natividad asked Loney whether he received treatment last night, and Loney stated that he had not. (AR 490.) Natividad checked Loney’s chart and did not see a SBAR, a doctor’s order for any treatment, or documentation of any assessment. (AR 490-491, 546.) Natividad looked at the sick call log for January 14, 2021, and saw an entry pertaining to Loney for hemorrhoids. (AR 246-247, 491-492, 534-535.) Natividad testified that she believes Petitioner completed the entry on the sick call log pertaining to Loney because “there’s nobody there that knows about the situation. It’s just (inaudible) and me.” (AR 492-493.) As a result, Natividad called Loney, assessed Loney using the SBAR, and completed the SBAR form herself. (AR 496.) On January 15, 2021, Petitioner also performed a reassessment of Loney for hemorrhoids. (AR 251-252, 460-462, 497, 901-903.)

On January 16, 2021, Natividad e-mailed Unit Supervisor Sean Akintewe and advised him that on January 14, 2021, Loney had complained to Petitioner about a medical problem, but Petitioner failed to perform the SBAR and instead mumbled to Loney, “I will assess you later.” (AR 257, 497-500.) On January 28, 2021, Natividad drafted an incident report regarding the events of January 14, 2021, that was consistent with her email to Akintewe and her subsequent testimony at the Board hearing. (AR 258-259, 502-504.) Akintewe spoke with Petitioner about the January 14, 2021, incident. (AR 575.) According to Akintewe, Petitioner stated it was a “he said, she said” incident, maintained that “it didn’t happen that way,” and denied Natividad’s version of events. (AR 575, 577, 588.)

The Department commenced an investigation into the events of January 14, 2021. On May 14, 2021, as part of the investigation, Investigator Laura Young interviewed Petitioner. Investigator Young advised Petitioner: “You are hereby directed to answer all questions honestly and completely. Your refusal to answer, or any type of evasion, deception, dishonesty, or lack of cooperation on your part, could constitute insubordination and/or inexcusable neglect of duty and result in disciplinary action up to and including dismissal.” (AR 249, 419.) When the investigator asked Petitioner what he remembered about the January 14, 2021, incident, Petitioner stated, “I don’t remember. What’s supposed to have happened? Can you tell me?” (AR 425.) During his interview, Petitioner stated that he could not recall whether he had been the treatment nurse on January 14, 2021, whether he asked Natividad who the doctor on duty was, whether Natividad advised him to assess Loney and initiate a SBAR, and whether Loney came to him on January 14, 2021, with a medical complaint. (AR 427-429, 433-434.) When asked whether Loney came to him at all on January 14, 2021, Petitioner replied, “Not that I remember.” (AR 426-427.) Petitioner later admitted to the investigator that he was the primary treatment nurse that night and that he spoke with Loney that evening, but he denied that Loney complained about hemorrhoids or any other condition requiring medical treatment. (AR 432, 441-445.) Petitioner denied treating or assessing Loney for hemorrhoids. (AR 440.)

After the investigation, the Department served a Notice of Adverse Action (“NOAA”) on Petitioner that reduced Petitioner’s salary by two pay steps for 13 pay periods, effective February 3, 2022. In the NOAA, the Department alleged that: (1) Petitioner engaged in inexcusable neglect of duty, inefficiency, discourteous treatment, willful disobedience, and other failure of good behavior by failing to timely assess Loney; and (2) Petitioner was dishonest when he misrepresented events related to his failure to assess Loney to the Department’s investigator. (AR 2-10, 1111.)

Petitioner challenged the NOAA and an evidentiary hearing was held before an administrative law judge (the “ALJ”) on October 5 and 6, 2022. (AR 1111.) Among other witnesses, Petitioner and Natividad testified at the hearing. Neither Petitioner nor the Department called Loney to testify. Over objections from the Department, the ALJ admitted as administrative hearsay an audio recording of an interview of Loney, which was taken by Hospital Police Officer Angel Salinas on January 28, 2021. (AR 195-201, Exh. C; AR 815-839, 872-873.) In the audio recording, Loney stated that he made a complaint to a staff member named “Richard,” not “Patrick,” on January 14, 2021, about his hemorrhoids. (AR 201, Exh. C & OB, Petitioner’s Counsel’s Transcription of Exh. C.) It is undisputed that RN Richard Jumba was on leave on January 14, 2021, and did not work that day. (Opening Brief (“OB”) 3:3-4; see also AR 214, 386-389, 405, 478-485, 523.)

In a proposed decision, the ALJ found that Natividad was more credible than Petitioner with respect to the events of January 14, 2021; the Department proved all the charges against Petitioner, except for inefficiency; and the penalty imposed by the Department was “just and proper.” (AR 1118-1128.) On February 14, 2023, the Board adopted the ALJ’s decision and upheld the discipline. (AR 1110.) This writ petition followed.

Under Code of Civil Procedure 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. (Code Civ. Proc. § 1094.5(b).)

Because the SPB 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. In applying the substantial evidence test, the trial court must examine all relevant evidence in the entire record, considering both the evidence that supports the Board’s decision and the evidence against it, in order to determine whether that decision is supported by substantial evidence. This does not mean, however, that a court is to reweigh the evidence; rather, all presumptions are indulged and conflicts resolved in favor of the Board’s decision.

(Tellish v. State Personnel Board (2015) 234 Cal.App.4th 1479, 1487.) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion, or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85; Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 fn. 28.) 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 Univ. of Cal. (2016) 5 Cal.App.5th 1055, 1073.) 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.) The 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.) 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.) When an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [its] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

The court exercises independent judgment on questions of law arising in mandate proceedings. (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.) In addition, “[a] challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

“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.)

Petitioner argues that the court should “exercise its independent judgment” on the evidence. (OB 12-14; Reply 3.) Petitioner relies on the rule stating that “[w]here the facts before the administrative body are uncontradicted, the determination of their effect is a question of law.” (Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 545.) This is not a case where the facts before the administrative agency are uncontradicted. To the contrary, the evidence was in conflict. Natividad testified that on the evening of January 14, 2021, Loney “came to the nurses’ station and complained of a medical issue, [Petitioner] asked Natividad who the PCP was for the following morning, Natividad advised [Petitioner] to complete the SBAR, and [Petitioner] told [Loney] that he would assess him later.” (AR 1118.) In contrast, Petitioner “testified that these events did not happen according to his recollection.” (Ibid.; see e.g. AR 390-393, 409, 426-440, 487-488, 517-520, 804-805, 878-879, 897.) Because there were material conflicts in the evidence, it was the duty of the ALJ and the Board to make credibility determinations and weigh the evidence. (See Mullen v. Dept. of Real Estate (1988) 204 Cal.App.3d 295, 300-301 [“the determination of the credibility of witnesses in an administrative proceeding is within the province of the hearing officer”].) Accordingly, the substantial evidence standard of review applies to the fact findings made by the Board.

Petitioner challenges the Board’s credibility determinations, but he does not properly frame this issue for judicial review. (See OB 19.) In judicial review of a decision of the Board, Government Code section 11425.50 governs and requires the court to give “great weight” to certain credibility determinations made by the Board:

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(b); see generally California Youth Authority, supra, 104 Cal.App.4th at 588 [“section 11425.50 applies to SPB administrative adjudications of employment disciplinary actions”].)

Here, as discussed above, the administrative decision is based substantially on a determination of the credibility of Petitioner and Natividad. (See AR 1118.) The ALJ based his credibility findings—which were adopted by the Board—on witness demeanor, manner, and attitude and the criteria set forth in Evidence Code section 780. (AR 1118-1120.) Specifically, the ALJ credited Natividad’s testimony because:

Natividad testified in a professional manner and maintained a serious demeanor. She did not appear nervous during her testimony or provide evasive answers. Natividad did not recall every single detail of her interactions with [Petitioner] on the evening of January 14, 2021 . . . . For instance, she did not know the exact time when the incident occurred. Natividad had a good recall of the significant events from January 14, 2021, however, and answered questions about the incident without undue pauses or delay. Her demeanor and good recollection of events reflected favorably upon her credibility.

(AR 1119.) Conversely, the ALJ discredited Petitioner’s testimony because Petitioner “did not testify in a straightforward manner,” “failed to provide direct answers to questions,” and “appeared evasive and feigned memory loss.” (Ibid.) The ALJ’s credibility determinations are based, in substantial part, on “the observed demeanor, manner, or attitude of the witness[es].” (Gov. Code § 11425.50(b).) Accordingly, those parts of the ALJ’s credibility determinations must be given “great weight” in judicial review of the decision. (Ibid.)[3]

The Board found Petitioner guilty of inexcusable neglect of duty, discourteous treatment, willful disobedience, and other failure of good behavior because he failed to assess Loney’s medical complaint on January 14, 2021. (AR 1122-1126.) The Board found, inter alia, that Petitioner violated Patton’s administrative directives regarding patient care “by failing to timely assess [Loney’s] change in medical condition, complete the SBAR, inform a physician of [Loney’s] medical conditions, and document [Loney’s] medical condition and complaint.” (AR 1122.) The Board found that Petitioner knew of his duties to care for Loney; “there was no reason to delay” providing such care; and Petitioner nonetheless told Loney “that he would assess him later.” Thus, the Board found that Petitioner’s “initial actions were intentional.” (AR 1122.)

There is substantial evidence to support these findings. Patton’s Administrative Directive 1.08, Administrative Rules for Employees, provides, in part, that “[p]atients are to be treated with dignity and respect, [and] with care and understanding.” (AR 221, 394-395.) Administrative Directive 10.41, Pain Management, in relevant part, provides that it is Patton’s policy to “[r]ecognize the right of patients to receive timely response to reports of pain through assessment and management” and to “assess the patient’s pain utilizing the patient’s self-report as the primary source of assessment.” (AR 229.) Administrative Directive 10.41 also provides that “[p]atients will receive pain assessment . . . when clinically indicated.” (AR 229.) “If a patient develops or complains of new pain (pain rating 1-4) during the course of his or her hospitalization, the RN will assess the patient, triage the patient for physician notification, take appropriate action if clinically indicated, and indicate a SOAP note.” (AR 230.) Administrative Directive 15.13, Patient Abuse and Neglect, defines “neglect” as the “[f]ailure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise” and includes “[f]ailure to provide medical care for physical and mental health needs.” (AR 233, 399-400; see also AR 237 [Patton’s Nursing Policy & Procedure 326, Pain Management].)

Petitioner acknowledged that he had seen and received training on Patton’s administrative directives. (AR 378-379, 396, 474, 552-553.) Nonetheless, there is evidence that Petitioner neglected his duties on the evening of January 14, 2021. Specifically, Loney came to the nurses’ office and informed Petitioner of a change in his medical condition, viz., pain related to hemorrhoids. (AR 246, 487-490, 497, 512-513, 517-518, 1115.) After speaking with Loney, Petitioner turned to Natividad and asked who was the primary care physician for the morning shift. (AR 487, 517-518.) Subsequent assessments, as well a “sick call log,” show that Loney made a complaint about hemorrhoids on January 14, 2021. (AR 1116, fn. 1; see AR 490, 497, 246.) Natividad advised Petitioner to assess the patient, initiate a SBAR, enter the patient’s name on the sick call log for the PCP to follow-up in the morning, and contact the medical officer of the day (“MOD”). (AR 487-488, 517-520, 804-805.) Rather than assess Loney at that time, Petitioner then walked out of the nurses’ office and told Loney, “I will assess you later.” (AR 488-489.) Petitioner did not assess Loney, complete the SBAR, or document Loney’s medical complaint in his medical chart on January 14, 2021. (AR 283, 1116, 490.) Because the ALJ found Natividad to be credible, this evidence supports the Board’s findings.

In his writ briefing, Petitioner does not dispute that the Board’s factual findings support all elements inexcusable neglect of duty, discourteous treatment, willful disobedience, and other failure of good behavior. (AR 1122-1126.) Rather, Petitioner argues, among other things, that substantial evidence does not support the Board’s findings because: (1) Petitioner was a credible witness and was not dishonest; and (2) the record contains evidence, including the audio recording of Loney’s interview, that “Loney never complained to [Petitioner].” (OB 14-19.)

Substantial evidence supports the Board’s credibility determinations. (See AR 1118-1120.) As discussed, the Board’s credibility determinations are entitled to great weight to the extent they are based on “the observed demeanor, manner, or attitude of the witness[es].” (Gov. Code § 11425.50(b).) As discussed, the ALJ credited Natividad because she “testified in a professional manner and maintained a serious demeanor” and because “[s]he did not appear nervous during her testimony . . . .” (AR 1119.) By contrast, the ALJ disbelieved Petitioner’s testimony. (AR 1119-1120.)

Putting aside credibility determinations based on demeanor—which this court cannot revisit—the Board could reasonably find, as it did, that Natividad was the more credible witness. Natividad testified clearly and consistently about the events that occurred on January 14, 2021. (See e.g. AR 1118-19, AR 485-520.) In contrast, the Board could reasonably find, as it did, that Petitioner “did not testify in a straightforward manner,” “failed to provide direct answers to questions,” and “often answered yes or no questions with a statement[,] and provided answers that were unresponsive to the questions.” (AR 1119.) As the Board noted, Petitioner was interviewed on May 14, 2021, a few months after the incident, and he also phrased many of his answers at the interview as “not recalling information, rather than denying the allegations.” (AR 1119-1120; see e.g. AR 425-431.) The Board could reasonably weigh this evidence and find that Petitioner was evasive and less credible as a witness than Natividad.[4]

Primarily in reply, Petitioner argues that Natividad’s statements were not always consistent and she was “dishonest.” (Reply 5-6.) Petitioner does not show good cause to raise new arguments in reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Regardless, the Board, as the trier of fact, could reasonably consider the statements of Natividad cited by Petitioner, in the opening brief and reply, and conclude that Natividad was credible. (See e.g. OB 4-5, 18-19 and Reply 5-6, citing record.) The purported inconsistencies that Petitioner highlights were relatively small and not material to Natividad’s testimony about the relevant events of January 14, 2021. The court cannot reweigh the evidence or independently assess Natividad’s credibility on substantial evidence review.

Petitioner argues, in effect, that the Board should have given more weight to other evidence, including, but not limited to: (1) Loney’s hearsay statements to Hospital Police Officer Salinas about the incident; (2) the lack of evidence “matching” Petitioner’s “writing to that on the sick call log;” (3) Petitioner’s “lack of recall and denial of receiving a complaint from Loney;” (4) evidence that “there were three RN’s working on unit 73 that night;” and

(5) Petitioner’s statements to interviewer Young that Loney had approached Petitioner in the hall and asked “why are all these people asking questions about you? Did you do something? Are you in trouble?” (OB 18-19, citing AR 889, 934-935, 441, 444-445, 198.)

Over objections from the Department, the ALJ admitted as administrative hearsay an audio recording of an interview of Loney, which was taken by Hospital Police Officer Salinas on January 28, 2021. (AR 195-201, Exh. C; AR 815-839, 872-873.) In the audio recording, Loney stated that he made a complaint about his hemorrhoids to a staff member named “Richard,” not “Patrick,” on January 14, 2021. (AR 201, Exh. C & OB, Petitioner’s Counsel’s Transcription of Exh. C.) Apparently, Loney referred to RN Richard Jumba. (See AR 1117, ¶ 23.) However, it is undisputed that RN Richard Jumba was on leave on January 14, 2021, and did not work that day. (OB 3:3-4; see also AR 214, 386-389, 405, 478-485, 523.) Thus, the Board was reasonable in concluding that Loney’s statement was incorrect and not entitled to much, if any, weight. Nor do Loney’s hearsay statements benefit Petitioner. In administrative proceedings, “[h]earsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Gov. Code § 11513(d).) Petitioner does not show that Loney’s hearsay statements supplement or explain any material, non-hearsay evidence about the incident.[5]

Petitioner argues that the Department’s evidence, including the testimony of Natividad, should be viewed with distrust, because the Department did not call Loney to testify and because it redacted Loney’s name from the sick log. Petitioner relies on Evidence Code section 412, which states: “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” (OB 15.) As an initial matter, it was the Board’s duty as the trier of fact, to weigh the evidence and decide whether to apply Evidence Code section 412 to the facts before it. Petitioner does not show that this court, on writ review, should determine independently whether any negative inferences should be drawn against the Department’s case pursuant to section 412. (See Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2018) 23 Cal.App.5th 1129, 1183 [“the Board was within its discretion to draw a negative inference from the fact that Gerawan did not call Villavicencio to testify”]; see also Underwriters Laboratories Inc. v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998) [“The decision to draw an adverse inference lies within the sound discretion of the trier of fact.”].)

Regardless, Petitioner does not show that the Board prejudicially abused its discretion in declining to draw negative inferences from the facts that the Department did not call Loney to testify or submit the unredacted sick call log. Petitioner assumes, incorrectly, that testimony of Loney would necessarily have been “stronger or more satisfactory” than the testimony of Natividad and the other evidence submitted by the Department. As discussed, Loney was a forensic client of Patton and he stated at his interview that he informed “Richard”—Richard Jumba—of his medical complaint, which could not have been true since Jumba did not work on January 14, 2021. Thus, there is substantial evidence that Loney may not have been a credible or reliable witness. The Department reasonably could have determined that Loney was not “favorably disposed” to its case and declined to call him for legitimate reasons that do not reflect negatively on the Department’s case. (Cf. Gerawan, supra, 23 Cal.App.5th at 1183 [“[W]hen a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge.”] [emphasis added].) More important, Petitioner does not explain why he did not call Loney as a witness. Similarly, Petitioner could have filed a motion to compel an unredacted version of the sick call log before the administrative hearing, but he did not do so. (See AR 246.) The Board also could have reasonably given more weight to other evidence, such as Natividad’s testimony, over the handwriting on the sick call log. Also, the Department had no obligation to produce a handwriting expert. For all these reasons, Petitioner’s reliance on Evidence Code section 412 is misplaced.

The same analysis applies to the other evidence cited by Petitioner. (See e.g. OB 14-19, citing AR 198, 214, 246, 251-252, 408, 441-445, 889, 934-935.) The Board was entitled to weigh this evidence and it could reasonably conclude, as it did, that Petitioner’s cited evidence deserved less weight than the testimony of Natividad and other evidence, discussed above, that supports the Board’s findings. On writ review, 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 Univ. of Cal. (2016) 5 Cal.App.5th 1055, 1073.) 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.)

Based on the foregoing, substantial evidence supports the Board’s findings that Petitioner engaged in inexcusable neglect of duty, discourteous treatment, willful disobedience, and other failure of good behavior when he failed to assess Loney’s medical complaint on January 14, 2021. (AR 1122-1126.) Petitioner does not show a prejudicial abuse of discretion in those findings. (Code Civ. Proc. § 1094.5(b).)

The Board found that, at his May 14, 2021, interview, Petitioner “willfully denied that [Loney] came to the nurses’ station on January 14, 2021, with medical complaints” and “that he failed to assess, treat, or document [Loney’s] medical condition.” (AR 1123.) Based on these findings, the Board sustained the charges of dishonesty. (Ibid.) At the investigative interview on May 14, 2021, Investigator Young advised Petitioner:

You are hereby directed to answer all questions honestly and completely. Your refusal to answer, or any type of evasion, deception, dishonesty, or lack of cooperation on your part, could constitute insubordination and/or inexcusable neglect of duty and result in disciplinary action up to and including dismissal.

(AR 249, 419.) Despite this warning, Petitioner initially stated at the interview that he could not recall what happened on January 14, 2021. (AR 425, 427-429, 433-434, 426-427.) Later, Petitioner admitted that he was the primary treatment nurse and that he had spoken with Loney on the evening of January 14, 2021, but denied that they discussed anything requiring medical treatment. (AR 432, 441, 443-445.) However, as discussed above, substantial evidence supports the Board’s findings that Petitioner did, in fact, receive a medical complaint from Loney on January 14, 2021, and that Petitioner failed to timely assess, treat, or document Loney’s medical conditions. (AR 1122.) Accordingly, substantial evidence supports the Board’s findings that Petitioner knowingly made evasive and false statements to the investigator during his May 14, 2021, interview. The Board properly sustained the dishonesty charge.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues include whether there was a fair trial. “Generally, a fair procedure requires notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240 [citations omitted].) Here, Petitioner received notice of the charges and a reasonable opportunity to respond at a two-day evidentiary hearing before the ALJ. Petitioner, who was represented by counsel, had the opportunity to cross-examine the Department’s witnesses, call his own witness, and present documentary evidence.

Petitioner argues, in effect, that he was denied a fair trial because of certain evidentiary rulings and because of how the ALJ and the Board weighed the evidence. (See OB 16-18, 19-20 and Reply 6-7.) Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) Specifically, the following legal standard applies to Petitioner’s contentions:

Error of law is not reversible unless, on an examination of the record, it appears to have resulted in a miscarriage of justice. And it is well-settled that the improper admission or rejection of evidence at an administrative hearing does not provide grounds for reversal unless the error has resulted in a miscarriage of justice. In other words, it must be reasonably probable a more favorable result would have been reached absent the error…. Generally, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice.

(Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200, emphasis added; internal citations and quotation marks omitted; accord Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 1255.)

Petitioner does not satisfy this burden. Petitioner contends that the ALJ unfairly precluded him from submitting testimony, from his supervisor Ruth Lang, about an incident where witnesses supposedly misidentified Petitioner as committing misconduct on August 3, 2021. (OB 19-20, citing AR 855-860.) At the hearing, Petitioner’s counsel argued that the proposed testimony is “pertinent for showing that witnesses who . . . purport to identify that [Petitioner] engaged in misconduct were mistaken, and [Petitioner] has … been, unfortunately, subjected to this.” (AR 856-857.) However, Petitioner’s counsel acknowledged that the incident on August 3, 2021 did not involve Natividad or Loney and apparently occurred in a different unit. (AR 857-859.) The ALJ did not abuse his discretion in finding that the proposed testimony was not relevant to what occurred in Unit 73 on January 14, 2021, “because it involves different people altogether.” (AR 859.)

Petitioner contends that he was denied a fair trial because the ALJ “neglected” evidence concerning the “redaction of Loney’s handwritten name from the sick call log;” the “absence of a match to [Petitioner’] known writing of Loney;” and various hearsay statements made by Loney. (OB 20:7-15.) The ALJ did not “neglect” this evidence, but rather weighed the evidence and made findings with which Petitioner does not agree. That does not show that Petitioner was denied a fair trial. As discussed above, Petitioner could have subpoenaed Loney to testify or filed a motion to compel an unredacted version of the sick call log before the administrative hearing, but he did not do so. (See AR 246.) Because Petitioner had the opportunity to present such evidence in defense, he was not denied a fair trial when the Department relied on other evidence (e.g., Natividad’s testimony) to prove its case.

Relatedly, Petitioner contends that the Board prejudicially abused its discretion, and denied Petitioner a fair trial, by failing to admit Loney’s statements as non-hearsay or pursuant to exceptions to the hearsay rule. (OB 16-18; Reply 6-7.) The ALJ’s evidentiary rulings were reasonable. The Department did not “adopt” Loney’s claim to have told Richard Jumba, and not Petitioner, about his medical complaint. (OB 16:2-12.) To the contrary, the Department found that Loney told Petitioner about his condition. (AR 1115-1117, ¶¶ 16-20, 23.) Evidence Code section 1221 does not apply to Loney, who was not a party to the case. (OB 16:2-12.) Contrary to Petitioner’s assertions, he plainly seeks to offer Loney’s statements to Officer Salinas for their truth, i.e., to prove that Loney complained to someone other than Petitioner. Petitioner does not seek to offer Loney’s statements “as circumstantial proof of the declarant’s state of mind,” but rather to prove “the fact remembered or believed.” (See OB 16:17:28; Jorgensen v. Loyola Marymount University (2021) 68 Cal.App.5th 882, 887; and Evid. Code § 1250(b).) Indeed, it is unclear how Loney’s state of mind is even relevant to whether or not he told Petitioner about his medical complaint. Petitioner also does not seek to offer Loney’s statements to show the “effect on the listener,” who was Officer Salinas. (People v. Ramirez (2022) 13 Cal.5th 997, 1115.) For all these reasons, Petitioner has not shown that the Board prejudicially abused its discretion, or that he was denied a fair trial, when the ALJ admitted Loney’s statements as administrative hearsay.

Finally, contrary to Petitioner’s assertion, the ALJ did not deny Petitioner a “fair trial by prejudicially presuming [Loney] was incompetent.” (OB 20:16-26.) The ALJ did not make any determinations regarding Loney’s competence; nor did he make any evidentiary rulings based on Loney’s competence. The ALJ merely commented that since Loney is a forensic patient at Patton, he “may have some mental health issues” that bear on his credibility, and the inability to cross-examine Loney would be very prejudicial to the Department. (AR 833-834.) This does not prove that Petitioner was denied a fair trial.

Based on the foregoing, the court concludes that Petitioner received a fair trial. Petitioner also has not shown a prejudicial abuse of discretion in any of the ALJ’s evidentiary rulings.

Petitioner was found guilty of serious misconduct, including inexcusable neglect of duty and dishonesty. Petitioner does not demonstrate that the penalty was a manifest abuse of discretion. To the contrary, the court finds that the penalty was reasonable under the circumstances.

[1] The court cites the Bates-stamp numbering that begins with the letters “SPB” at the bottom left corner of the administrative record.

[2] Loney is referred to as Patient A in the administrative decision. However, Loney is referred to by his true name in Petitioner’s legal briefs and in the administrative record. (See e.g. AR 461, 897.) Neither party has moved to seal Loney’s name from the public court file. Accordingly, the court will refer to Loney by his true name.

[3] The court would reach the same result and conclude that the decision is supported by substantial evidence even if Government Code section 11425.50(b) did not govern this proceeding.

[4] Petitioner refused to be interviewed by Hospital Police Officer Salinas on January 28, 2021, just days after the incident. (AR 1117, ¶ 23.) The court need not rely on this fact to deny the petition for writ of mandate.

[5] The Board was entitled to consider Loney’s status as a “forensic” client at Patton in evaluating this evidence.