Opinion
C083101
09-08-2017
M. MELANIE SAPIENZA, Plaintiff and Appellant, v. BOARD OF PSYCHOLOGY, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201580002163CUWMGDS)
The Board of Psychology (the Board) revoked appellant M. Melanie Sapienza's license to practice psychology based on violations of Business and Professions Code section 2960, subdivisions (h), (j) and (n). Sapienza petitioned the superior court for a writ of mandate, seeking an order requiring the Board to set aside its decision. The court entered judgment denying the petition based in part on the presumption of regularity because Sapienza failed to provide it with a complete administrative record. On appeal, Sapienza purports to challenge: (1) the superior court's rejection of her claim regarding the admissibility of patient C.G.'s testimony and (2) the sufficiency of the evidence to support various findings in the Board's statement of decision. A sufficiency of the evidence claim is unavailable on a partial record, and Sapienza's assertion that the admission of C.G.'s testimony was prejudicially erroneous is also unavailing for this reason, among others. Accordingly, we will affirm the judgment.
I. BACKGROUND
We are limited in our recitation of the relevant facts by the lack of record supplied by Sapienza. Our summary relies only on documents properly in the record before us:
Sapienza has proceeded by an appendix that contains the ALJ's proposed decision and the Board's decision to adopt it, but no documents that were part of the administrative proceedings before that point. In particular, the appendix does not include the accusation against her. As the superior court did, we have before us a transcript of the administrative proceedings to which Sapienza does not cite. A stack of loose paper was transmitted with it that apparently includes the operative accusation. Sapienza filed a notice of lodging in the trial court on December 19, 2016, and a contemporaneous "Request to Transmit Selected Items from the Administrative Record to the Court of Appeal of the State of California, Third Appellate District." We assume these are the documents that made their way to us. As the notice of lodging post-dates the judgment, it is unclear what if any of these documents were before the trial court when it ruled. Our review of the trial court's decision is based only on evidence that was before it when it entered judgment. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Regardless, these documents do not purport to be a complete administrative record. Thus, even if we were to consider them, they would not alter our analysis.
On June 5, 2015, the Administrative Law Judge (ALJ) issued a 41-page proposed decision finding that Sapienza: (1) violated patient C.G.'s professional confidence and privacy as alleged in the second, sixth and seventh causes for discipline; (2) engaged in extreme departures from the standard of care and was grossly negligent in her treatment of C.G. as alleged in the first, fifth and sixth causes for discipline, and (3) committed multiple dishonest acts as alleged in the 11th, 12th, 13th and 14th causes for discipline. These findings established violations of Business and Professions Code section 2960, subdivisions (h), (j) and (n), respectively, each of which were grounds for the revocation of Sapienza's license. (Bus. & Prof. Code, § 2960.) The proposed decision revoked Sapienza's license and ordered her to pay the Board $40,000 in costs. The Board adopted this proposed decision effective August 16, 2015.
The remaining causes for discipline were dismissed. The fourth, ninth and 10th causes for discipline were dismissed by stipulation. The ALJ found that the third, eighth and 15th causes for discipline were not established, and dismissed them.
Two days later, Sapienza filed a petition for writ of mandate under Code of Civil Procedure section 1094.5 seeking to have the superior court set aside the Board's decision.
On August 23, 2016, the court issued a written ruling denying the petition. As pertinent to this appeal, the court found that "[Sapienza] has not provided the Court a full copy of the administrative record. Instead, [Sapienza] has attached selected exhibits to her opening brief, and it is unclear whether these exhibits constitute the entirety of the record before the ALJ at the time of the subject decision. [The Board] has lodged the hearing transcripts from the administrative matter, however [Sapienza] has not provided any citations to these transcripts in her opening brief or her reply brief." (Fn. omitted.) The court further explained that exhibits filed in connection with Sapienza's reply brief were not considered.
The court noted that some of Sapienza's arguments required a review of the hearing transcript. It also explained that where a partial administrative record is insufficient, "the presumption of regularity will prevail and the Court will uphold the administrative body's decision. [Sapienza] has not cited to the hearing transcript, and the Court will not conduct its own independent search of the transcripts to try and support [her] arguments."
Additionally, "the Court inquired whether [Sapienza] desired additional time to lodge the full administrative record and provide additional record citations. [Sapienza] declined and chose instead to proceed on the merits."
In lieu of making factual findings, the trial court stated that because it lacked a complete administrative record and Sapienza did not cite to any part of the hearing transcripts, "the Court must accept the ALJ's recitation of the factual background in this matter." The trial court therefore incorporated by reference the factual findings from the ALJ's proposed decision.
The court rejected challenges to C.G.'s competency and credibility to testify: "[A]s the Court has noted above, [Sapienza] failed to provide any citations to the hearing transcripts. Accordingly, the Court has no evidence before it concerning [Sapienza]'s hearing objections, and the ALJ's handling of them.
"The ALJ's Proposed Decision contains a detailed evaluation of C.G.'s competency and testimony. The ALJ cited to [E]vidence [C]ode sections 700, 701, and 780 concerning a witness's competency and credibility. The ALJ acknowledged C.G.'s cognitive limitations, but found C.G. to be competent and credible in his testimony.
"[Sapienza] cites to attached exhibits, which appear to be excerpts of C.G.'s medical records, as evidence that C.G.'s traumatic brain injury and related conditions prevented him from accurately recalling events, such that none of his testimony can be found credible. [Sapienza] does not cite to any excerpts of C.G.'s testimony. While the medical records do raise a question as to C.G.'s mental capacity to recall events, these records appear to have all been considered by the ALJ. In the absence of testimony supporting [Sapienza]'s contention that C.G. could not accurately recall past events, the Court defers to the ALJ's credibility determination, as the ALJ was able to actually observe C.G. testify. The ALJ also considered C.G.'s testimony in connection with other evidence, and discredited testimony that could not be corroborated. . . .
"Based on its review of the administrative record sections provided by [Sapienza], the Court finds [Sapienza] has failed to rebut the presumption of regularity with regard to the ALJ's decision to consider C.G.'s testimony. Accordingly, the Court finds the ALJ did not commit an abuse of discretion in allowing C.G[.] to testify and utilizing his testimony to corroborate the allegations."
Sapienza apparently raised sufficiency of the evidence arguments in the superior court, though what these arguments were is unclear. We know only that the court denied them: "[Sapienza]'s remaining substantive arguments are that the evidence did not support the sustained causes of discipline. The Court has reviewed [Sapienza]'s briefs, the exhibits provided, [the Board]'s opposition, and the oral arguments presented at the hearing. The Court finds [Sapienza] has failed to prove any of the sustained causes of discipline were not supported by the weight of the evidence."
On September 23, 2016, Sapienza filed a notice of appeal purportedly from a judgment based on this ruling.
The superior court entered judgment denying her writ petition on October 20, 2016.
We treat Sapienza's premature notice of appeal as being timely filed from the judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
II. DISCUSSION
A. Standard of Review
Code of Civil Procedure section 1094.5 governs petitions for writ of administrative mandate. "The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b).)
The independent judgment standard of review applies to a decision by the Board to revoke a license. (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 574.) Under this standard, "[t]he superior court examines the administrative record for errors of law and exercises its independent judgment upon the evidence 'in a limited trial de novo.' [Citations.] The superior court resolves evidentiary conflicts, assesses the witnesses' credibility, and arrives at its own independent findings of fact." (Ibid.) After it does so, "the trial court's factual determinations are conclusive on appeal if they are supported by substantial evidence." (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 452.) Additionally, "[w]e must resolve all conflicts in the evidence, and indulge all reasonable inferences, in favor of the superior court's judgment. [Citations.] However, we are not bound by any legal interpretations made by the administrative agency or the trial court; rather, we make an independent review of any questions of law." (Rand v. Board of Psychology, supra, at p. 575.)
Review in this proceeding was and is complicated by the state of the record. "[I]t is the responsibility of the petitioner to make available to the trial court an adequate record of the administrative proceeding; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed ' "prejudicial abuse of discretion." ' " (Foster v. Civil Service Com., supra, 142 Cal.App.3d at p. 453.) "Even though [Code of Civil Procedure] section 1094.5, subdivision (a) allows both parties in a mandamus proceeding to file either 'all or part' of the record of the administrative proceeding for review by the court, this does not mean respondent is required to file the administrative record or that petitioner is relieved from the burden of providing a sufficient enough record to establish error." (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354.) A petitioner can satisfy its burden by filing a partial record if that record "will allow sufficient and effective review by the court." (Id. at p. 355.) A partial record is sufficient "if it provides the reviewing court a basis for the affirmance or reversal of the order or decision, and establishes where in the proceedings the administrative body proceeded in excess of its jurisdiction, or denied a fair hearing or abused its discretion. This partial record must accurately represent the administrative proceedings, provide the reviewing court an understanding of what occurred below, and enable that court to provide an independent judicial review of the administrative decision." (Ibid.) A petitioner who fails to file a sufficient administrative record "runs the risk of having the petition denied." (Hawthorne Savings & Loan Assn. v. City of Signal Hill (1993) 19 Cal.App.4th 148, 154, fn. 1.) In particular, " '[i]n the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.' " (Elizabeth D. v. Zolin, supra, at p. 354.) B. Sufficiency of the Evidence
Sapienza complains that "[t]he trial judge did not indicate how or why [she] failed to prove any of the sustained causes of discipline were not supported by the weight of the evidence." She then asserts that we must review de novo whether clear and convincing evidence supported all of the causes for discipline that were established in the administrative proceeding. Not so. As set forth above, conducting a de novo review of the evidence is not our role. Further, on this record, the superior court did not err by disposing of Sapienza's sufficiency of the evidence claims without further detail. The court found that Sapienza did not supply a complete record of the administrative proceedings. Accordingly, " 'sufficiency of the evidence is not an issue open to question. Rather, we must presume that the findings were supported by substantial evidence.' " (Elizabeth D. v. Zolin, supra, 21 Cal.App.4th at p. 354.) Moreover, we must affirm the superior court's rejection of Sapienza's sufficiency of the evidence claims on this basis. C. Admission of C.G.'s Testimony
The standard of proof in an administrative hearing to revoke or suspend a medical license is "clear and convincing proof to a reasonable certainty." (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853, 856, italics omitted.)
Sapienza asserts that the trial court erroneously upheld the ALJ's decision to allow patient C.G. to testify over her objection, and that this allegedly inadmissible evidence prejudiced her case because "it contributed significantly to the outcome of the hearing and without this testimony, there would not have been sufficient evidence for the case to go forward in a hearing." Again, sufficiency of the evidence is not open to question on this record. (Elizabeth D. v. Zolin, supra, 21 Cal.App.4th at p. 354.) Regardless, Sapienza's contentions are without merit. She essentially argues that since she disagrees with the ALJ's credibility determination, the ALJ did not consider the evidence or make her credibility determination in accordance with the law. We disagree. Further, Sapienza's claim that only a neuropsychologist could have assessed C.G.'s credibility misunderstands our judicial system. The trier of fact determines the credibility of a witness. (People v. Avila (2006) 38 Cal.4th 491, 590.) More importantly, "[t]he issue of competency is distinct from the issue of credibility." (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 959.) Therefore, Sapienza needed to establish incompetency in order to prevent C.G. from testifying at all. (See Evid. Code, § 701.) She has forfeited any claim that she did so by failing to assert it on appeal. Thus, Sapienza's claim regarding the admission of C.G.'s testimony affords her no relief.
III. DISPOSITION
The judgment is affirmed. The Board of Psychology shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J.
We concur:
/S/_________
RAYE, P. J.
/S/_________
MAURO, J.