Opinion
F061585
11-30-2011
FARSHAD SIRJANI OSTOVAR, Plaintiff and Respondent, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.
Gordon & Rees, George A. Acero for Defendant and Appellant. Fenton & Nelson, Henry R. Fenton, Dennis E. Lee, and Benjamin J. Fenton for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08CECG01665)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.
Gordon & Rees, George A. Acero for Defendant and Appellant.
Fenton & Nelson, Henry R. Fenton, Dennis E. Lee, and Benjamin J. Fenton for Plaintiff and Respondent.
Plaintiff and respondent Farshad Sirjani Ostovar was in the first year of a three-year medical residency at the Medical Education Program in Fresno (Fresno program) when he received notice that his contract would not be renewed for the second year based on allegations of unprofessional conduct. Dr. Ostovar appealed the decision internally, and the decision not to renew his contract was affirmed. He then filed a petition for a writ of administrative mandate seeking a court order to reinstate him into the residency program. The trial court granted his petition, and the Regents appeal.
The Fresno program is administered by the University of California, San Francisco, at Fresno (University). The Regents of the University of California (Regents) are the defendants and appellants in this case.
We reverse the judgment because the administrative decision upholding the nonrenewal of Dr. Ostovar's contract was supported by substantial evidence and was based on a reasonable interpretation of University rules and policies.
FACTUAL AND PROCEDURAL HISTORIES
Dr. Ostovar first applied to be an internal medicine resident at the Fresno program for the 2005-2006 academic year. The Fresno program ranked him, but he chose a preliminary year internship in surgery instead. Dr. Ostovar decided he did not want to pursue surgery, and he again applied to the Fresno program for the 2006-2007 year.
As explained by the Regents, admission to a residency position in the Fresno program is determined through the "match process." Applicants identify residency programs they are interested in and rank them in order of preference, and the residency programs similarly submit a ranked list of applicants. Using a computer algorithm, the National Resident Matching Program pairs, or "matches," applicants with residency programs based on the parties' preferences. Presumably, by "ranking" Dr. Ostovar, the University made it more likely that he would match with the Fresno program, provided he also ranked the Fresno program as a top preference.
At his interview for the Fresno program, Dr. Ostovar stated that he was applying to radiology programs, as well as internal medicine programs. Dr. Peterson, the program director, reminded Dr. Ostovar that the internal medicine residency was a three-year commitment. Dr. Ostovar promised to commit to internal medicine for three years if he matched with the Fresno program.
Dr. Ostovar matched with the Fresno program and began the first year of his internal medicine residency in June 2006. He soon became anxious and depressed and questioned whether practicing internal medicine in Fresno was the source of his difficulties. He applied to radiology residency programs for the next academic year, again submitting to the match process. In early November 2006, Dr. Ostovar heard from one of the radiology programs, and he scheduled an interview, which was to take place in January 2007.
By chance, Dr. Darden, the associate program director of the Fresno program, found out about Dr. Ostovar's applications. On November 13, 2006, she met with Dr. Ostovar and asked him if he had applied to other residency programs. Dr. Ostovar admitted that he had; he also told Dr. Darden he was uncertain and was struggling with the decision. Dr. Darden later said that Dr. Ostovar seemed "to have a lack of focus in his life." She suggested that Dr. Ostovar meet with Dr. Campbell, who works with residents when they are having personal issues. Dr. Darden gave Dr. Ostovar two weeks to withdraw from the match process. She explained that withdrawing from the match process would demonstrate a renewed commitment to the Fresno program.
Dr. Ostovar met with Dr. Darden again on December 6, 2006 (more than two weeks after their previous meeting). He was still undecided about whether to pursue radiology or continue in internal medicine. Dr. Darden pointed out that the residency class of 2006-2009 would be short a resident if Dr. Ostovar were to break his commitment after the match result became known in mid-March 2007 because it would be too late to find a suitable replacement. Dr. Ostovar told Dr. Darden that he cared about his fellow interns and residents and he did not want to leave anyone with the "danger of extra work because of [him]." Nonetheless, he did not recommit to his internal medicine residency. Dr. Darden informed Dr. Ostovar that the Fresno program would begin a search for a second-year resident to replace him for the next academic year. She told him that if he changed his mind and absolutely committed to internal medicine and they had not found a replacement yet, they would reconsider him for the next year.
On January 9, 2007, Dr. Ostovar met with Dr. Peterson. Dr. Ostovar still could not make up his mind. He informed Dr. Peterson that he had an interview in Maine for a radiology residency position. Dr. Peterson told Dr. Ostovar that his indecision really was a decision not to commit to internal medicine. Dr. Peterson said the program needed to move forward and fill his position with someone who was ready to commit to the training program. The next day, Dr. Ostovar canceled the interview.
Dr. Peterson recalled that Dr. Ostovar told him he was going to go to the interview in Maine. Dr. Ostovar denies that he said he intended to go to the interview, although he agrees that he told Dr. Peterson he had an interview scheduled in Maine.
By a letter dated January 25, 2007, Dr. Darden notified Dr. Ostovar that he would not be offered a contract for the following academic year. She wrote, "As you know and as we have discussed ... your pursuit of a Radiology residency position was a significant breach of professionalism." She continued, "You made a commitment to both Dr. Peterson and me that if you matched here, you would honor your [three-year] commitment to our program. We ranked you in good faith, believing your word. [¶] Applying to a Radiology residency through the Match this year breaks your commitment." Dr. Darden noted that she had initially given him two weeks to withdraw from the match process, and eventually Dr. Ostovar had almost two months to change his mind, but he did not recommit to internal medicine. Dr. Darden reminded Dr. Ostovar that his actions could result in the internal medicine residency class of 2006-2009 being short a resident, and "[t]his is not fair to your colleagues."
Dr. Ostovar requested an informal review of the decision. After informal review, a committee of the internal medicine department upheld the nonrenewal decision. Pursuant to the University's "Academic Due Process and Leave Policy," Dr. Ostovar filed a formal appeal. An ad hoc committee met on April 6, 2007, to consider the matter. Drs. Ostovar, Peterson, Darden, and Campbell, among others, were witnesses. Dr. Ostovar represented himself before the committee.
At the committee hearing, Dr. Peterson explained his perspective on the events leading to the decision not to renew Dr. Ostovar's contract:
"Sometime in November we became aware that [Dr. Ostovar] had in fact entered his name into the match to apply for radiology residencies. At that point in time, Dr. Darden met with him and said this is not consistent with the commitments you've made to the programs. You are going to have to make a decision. Are you going to apply to radiology or are you going to stay in medicine? Well he couldn't really make up his mind.... Over the course of the next 2 months, he didn't make a decision. Left himself with the match. Then he asked to meet with me. And I talked with him about the fact that in the first part of January, the time was really running out and the fact that he couldn't make a decision ... was really a decision. It meant that he wasn't making a commitment to medicine and that we were going to have to move on and fill his position unless he could give us a commitment that he was going to be in the program. Because waiting until match happened puts us in a position that we will never get a decent candidate to fill the PGY2 [second-year] position. So it was at that point that he was still in the radiology match and actually had an invitation to interview and said that he intended to follow through with that interview that we said okay then we are just going to have to move on and not give you a position and recruit somebody for the position."
Drs. Darden and Peterson agreed that Dr. Ostovar's work performance was satisfactory.
Dr. Ostovar explained why he did not think his conduct was unprofessional. Although he sent applications to programs, he canceled his interview and did not match with any program. At no point in his 10 months as a resident with the Fresno program did he make a new commitment to another program. He told the committee, "[T]hat means I did not break my commitment to this program." He opined that, even if a current resident were to apply, interview, and match with another program, he would not label that conduct as unprofessional. "[A]nybody who does it and changes specialties does it for a good reason I think and so he [does] it because he is looking for a better professional or personal life."
Dr. Ostovar continued, "The other reason I think [it's] not unprofessional is that in the contract it clearly states it ... is year to year ... and [the] residents handbook . mentioned that one of the situations that a resident, that a contract would not be renewed is if a resident wants to leave that program at the end of that current academic year.... [T]he only thing that that resident has to do is inform the program before March 15. So these are I think the policies that I think are currently valid ...." Dr. Ostovar could not find any policy indicating that a resident who wants to leave a program is engaging in unprofessional behavior.
He observed that it is common for residents to change specialties or programs, pointing to the testimony of Dr. Campbell. Asked whether Dr. Ostovar's indecision about what specialty to pursue was unusual, Dr. Campbell responded:
"Not at all. In fact, in that same month [that he met with Dr. Ostovar], I know at least one or two other residents from that same department came to me with similar issues. I think it's common. I know, statistically, that it is pandemic to the internship. And this is an unsolicited comment, but had I not been involved with this from this angle, I'd be sitting on your guys' side of this. And as a program director I find this to be a very difficult issue and I told Farshad I can see this case going to the Supreme Court to know how it's going to get resolved because, I don't know, if this is what they're referring to talking about professionalism. But as a program that struggles with retention and recruitment, I know these are real issues. With the limitations of a program director's power ... are you going to start kicking people out of programs because they're starting to question[] the specialty they should be in? That's tough, because that's pretty common."
Dr. Ostovar argued that the Fresno program has problems retaining residents and was unfairly making an example out of him to discourage other residents from considering changing programs. He also asked, if the act of applying for a radiology residency was unprofessional, why would the University allow him to continue in the Fresno program if he changed his mind and committed to internal medicine?
Dr. Peterson explained, addressing Dr. Ostovar at the committee hearing:
"[I]f we don't feel that this is fitting with the commitment that you made to the program and therefore unprofessional, I'm going to give you an opportunity to rethink this, reassess that and say you know, you're right, I learned from that and I should have done that, and I've made that commitment. And [the two weeks] was the opportunity to do that. The
second thing is as we've talked about is it is also a balancing act ... to address the needs of the individual and the needs of the program at the same time. You remember we had that discussion. And the discussion meaning ok there is no injury to the program so long as the decision is rescinded and things can change up to a certain point. After that there ends up being injury to the other participants in the program because of the fact that it's so late that it's not possible to fill.... So it was the opportunity to see that that was not the right judgment, that there were issues here in terms that there could have been an opportunity for you to learn from it and change and you decided that you really couldn't make that decision."
On April 11, 2007, the ad hoc committee issued a recommendation. The committee agreed unanimously that it was unprofessional of Dr. Ostovar to enter the radiology match while under commitment to the internal medicine program. The committee also concluded that there was no evidence to suggest there was a clinical reason that prevented Dr. Ostovar from making a decision about whether to pursue radiology or recommit to internal medicine within the two-week time frame set by Dr. Darden. On May 14, 2007, Associate Dean Voris issued a final decision, upholding the nonrenewal of Dr. Ostovar's contract based on unprofessional conduct. She wrote, "My review of the records indicates sufficient evidence to support the Committee's recommendation and no new evidence was presented, therefore the Committee's recommendation is upheld." Dr. Voris cited the University's "Academic Due Process and Leave Policy": "'Reasons for dismissal may include but are not limited to the following: [¶] ... [¶] c. unprofessional, unethical or other behavior that is otherwise considered unacceptable by the GME training program.' The Department of Medicine's decision to non-renew Dr. [Ostovar's] contract based on unprofessional behavior is upheld." The dean's decision was the final step of the formal review process within the University.
On May 13, 2008, Dr. Ostovar filed a petition for writ of administrative mandate and complaint for violation of civil rights. He alleged two counts. Count one was the petition for writ of administrative mandate, seeking judicial review of the final appeal decision upholding the nonrenewal of his contract. In count two, Dr. Ostovar alleged that he had been discriminated against because of his Iranian ancestry and religion. On February 11, 2010, the trial court granted summary adjudication in favor of the Regents on count two, and that claim is not an issue in this appeal.
On June 11, 2010, the trial court heard oral argument on the writ petition. The court issued a statement of decision and judgment granting writ of mandate on September 2, 2010. The trial court ordered the ad hoc committee to set aside its decision dated April 11, 2007, and to enter a new decision reinstating Dr. Ostovar's contract.
DISCUSSION
As a preliminary matter, we decline to address the Regents' argument that the trial court erred by failing to dismiss the petition as fatally flawed because the verification was defective. Dr. Ostovar admits that his attorney signed his (Ostovar's) name on the petition. Ostovar had reviewed the petition and authorized his attorney to sign it on his behalf, and he was out of the country at the time the petition was filed. (See Code Civ. Proc., § 446, subd. (a) ["where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same"].) Assuming for the sake of argument that the Regents are correct and the verification was deficient, it was a curable defect for which leave to amend is routinely and liberally granted. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146; see also Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1162-1170.) Consequently, even if the Regents were to prevail on this argument, the remedy would be to reverse the trial court with instructions to dismiss with leave to amend to cure the procedural defect. For the sake of judicial efficiency, rather than decide this procedural issue, we will address the substantive issues the Regents raise on appeal.
Subsequent statutory references are to the Code of Civil Procedure.
"The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Quasi-judicial or adjudicatory acts are reviewed by administrative mandate. (Ibid; § 1094.5.) "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." (§ 1094.5, subd. (b).)
"Where a 'statewide agency is delegated quasi-judicial power by the Constitution, the reviewing court is limited to determining whether there was substantial evidence supporting the agency's decision.'" (Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1091.) The Regents are such a statewide agency, since "[t]he California Constitution establishes the Regents as a 'public trust ... with full powers of organization and government,'" and the "grant of constitutional power to the University includes the grant of quasi-judicial powers ...." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)
"'Substantial evidence has been defined as "relevant evidence that a reasonable mind might accept as adequate to support a conclusion [Citation.] ... [In applying the substantial evidence rule,] the trial court must review the entire record." (Apte v. Regents of University of California, supra, 198 Cal.App.3d at p. 1091.)
We review the administrative decision without reference to the trial court's decision. (McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, 1786; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 218 [if substantial-evidence test governed at trial, "the appellate court focuses on the findings made by the agency rather than on findings made by the superior court"].) We review the administrative record to determine whether the findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them. (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058.)
The substantial-evidence standard, however, does not apply to questions of law, including interpretations of rules. "The reviewing court is free to determine independently the application of laws, regulations, or procedures," including "University policies and procedures which have the status of statutes in its internal governance." (Apte v. Regents of University of California, supra, 198 Cal.App.3d at p. 1092.) Consequently, we independently review the University's interpretation of its own rules, although we give that interpretation great deference. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 220; Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 701 ["[W]e give great deference to the agency's interpretation of statutes affecting issues within its administrative sphere"]; see also Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12 [observing agency may have interpretative advantage "where the legal text to be interpreted is ... open-ended, or entwined with issues of fact, policy, and discretion"].)
We turn now to the rules and policies applicable to this case. The University has a "Housestaff Handbook," which "outline[s] the policies and procedures of the UCSF Fresno Medical Education Program established by its Graduate Medical Education Committee (GMEC)."
The handbook's "Academic Due Process and Leave Policy" (Policy) provides:
"Graduate medical education involves the development of clinical skills and professional competencies and the acquisition of detailed factual knowledge in a medical specialty. These professional standards of conduct include, but are not limited to, professionalism, honesty, punctuality, attendance, timeliness, proper hygiene, compliance with all applicable ethical standards and UCSF Fresno policies and procedures, and ability to
work cooperatively and collegially with staff and with other healthcare professionals, and appropriate and professional interactions with patients and their families."
Under the Policy, the program director has discretion, "as approved by the Associate Dean," to dismiss a resident for academic deficiencies. Academic deficiencies "refer to unacceptable conduct or performance, in the professional and/or academic judgment of the Program Director including failure to ... achieve and/or maintain professional standards of conduct ...."
The Policy also provides:
"Reasons for dismissal may include but are not limited to the following:
"a. A failure to achieve or maintain programmatic standards in the GME training program;
"b. A serious or repeated act or omission compromising acceptable standards of patient care, including but not limited to an act which constitutes a medical disciplinary cause or reason;
"c. Unprofessional, unethical or other behavior that is otherwise considered unacceptable by the GME training program;
"d. A material omission or falsification of a GME training program application, medical record, or UCSF Fresno or medical document, including billing records."
In addition, in a separate part of the handbook governing "Resident Academic and Administrative Issues," rule 22 provides:
"22. Termination
"The appointment of residents in training may be terminated under the following conditions:
"a. The resident has completed his/her training satisfactorily under the current guidelines of the residency program and has graduated from the program.
"b. The resident has not completed his/her training satisfactorily under the current guidelines of the residency program. Residents will be
notified of non-renewal of contracts according to guidelines as outlined herein.
"c. Residents who have not completed their residency training and who wish to be released from their training program at the completion of the current academic year must notify both the Program Director and the Graduate Medical Education Committee prior to March 15 of the current year of their intention to leave.
"d. Resident termination (dismissal) prior to the end of an academic year shall be only for cause. Appeal of the decision for termination (dismissal) must be made in accordance with the UCSF Fresno Medical Education Program Academic Due Process Policy."
In this case, Dr. Ostovar's contract was not renewed under rule 22b based on his unprofessional conduct. During the application process for the 2006-2007 academic year, Drs. Darden and Peterson discussed with Dr. Ostovar that the internal medicine residency was a three-year commitment. Dr. Ostovar promised that he would commit to three years. The University viewed Dr. Ostovar's applying to radiology programs for the 2007-2008 academic year while he was under a commitment to the Fresno program in the class of 2006-2009 as a breach of his promise and, therefore, unprofessional. Dr. Ostovar was given time to change his mind, and his inability to decide or recommit to the Fresno program over the course of almost two months was also viewed as unprofessional.
At the committee hearing, Dr. Ostovar said, "I verbally had mentioned that I would commit three years in medicine and as I have accepted it all the time and will accept it again. Yes Dr. Darden told me, Dr. Peterson told me, and I told [them] yes I would accept that."
Dr. Ostovar argues that rule 22c of the handbook expressly allows a resident to leave voluntarily so long as he or she informs the program director and the graduate medical education committee prior to March 15 of the current academic year (in this case, March 15, 2007). He argues, "The presence of [rule 22,] subdivision (c) alongside subdivisions (b) and (d) clearly indicates that the failure of a resident to '100 percent commit' to return, prior to March 15 of the academic year, does not and cannot constitute a 'failure to complete training satisfactorily' ([subd.] (b)), nor does it provide 'cause' for termination ([subd.] (d.))."
The trial court was persuaded by this argument, observing, "The Handbook, drafted by Respondents, expressly grants residents until March 15th to notify the Program of their desire to be released from the [P]rogram. If this date is too late in the year to find acceptable candidates to replace a resident who desires to leave the Program, it behooves Respondents to rewrite the Handbook and change the notification date. 'Professionalism' cannot be twisted into an excuse to make a preemptive strike against residents considering exercising their rights granted in the Handbook."
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The Regents respond that Dr. Ostovar was a known "flight risk" because he had turned down the Fresno program the previous year and because he was also interested in radiology. He was accepted (or, rather, "ranked" highly) because of his promise to stay in the program for three years. The Regents point out that Dr. Ostovar's conduct of applying for radiology residency positions was much more than simply reconsidering whether internal medicine was the appropriate specialty for him. Applying to match was a formal process, the purpose of which was to secure a radiology residency position for the 2007-2008 academic year. To take a radiology position, Dr. Ostovar would have had to break his three-year commitment to the Fresno program. Under these circumstances, Dr. Ostovar's applying to radiology programs, by itself, was found to be a breach of his promise to honor his three-year commitment to the internal medicine residency. This finding was not unreasonable. (See Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 426 [administrative decision may be reversed only if no reasonable person could reach conclusion reached by agency].)
The breach of promise was, in turn, deemed unprofessional. As the trial court observed, "professionalism" is not defined in the handbook. The University's interpretation that professionalism includes keeping one's promises is not clearly erroneous. (See Camarena v. State Personnel Bd., supra, 54 Cal.App.4th at p. 701; In re Marriage of Colvin (1992) 2 Cal.App.4th 1570, 1581 ["Courts generally respect administrative interpretations of law and, unless clearly erroneous, consider them significant in ascertaining statutory meaning and purpose"].)
The Regents further argue that rule 22c, which requires residents to notify the program director prior to March 15 of their intention to leave, does not create a guarantee that residents have until March 15 to contemplate transferring to other programs. Again, this interpretation of rule 22c is not unreasonable or clearly erroneous. Nothing in rule 22c indicates that, after learning Dr. Ostovar had applied to other residency programs, the University was prohibited from asking Dr. Ostovar to decide, prior to March 15, 2007, whether he was going to recommit to the internal medicine residency or continue to pursue a different program.
Dr. Ostovar contends that imposing a two-week deadline was arbitrary and unreasonable. As Dr. Peterson explained, however, there was a reason for asking Dr. Ostovar to make up his mind sooner rather than later. The Fresno program needed time to recruit a doctor to fill Dr. Ostovar's position if he were to quit the program to start a radiology residency. Leaving the position unfilled would cause "injury to the other participants in the program .... "
Considering the evidence in the administrative record, we conclude the determination that applying to other residency programs was unprofessional was supported by substantial evidence and was not unreasonable or clearly erroneous. The associate dean did not abuse her discretion in upholding the decision not to renew Dr. Ostovar's contract.
Finally, the Regents claim errors related to the admission of evidence. At the trial court level, Dr. Ostovar requested that the court take judicial notice of (1) interrogatory responses from the Regents regarding the hiring of two residents in January 2007 and (2) declarations from Dr. Ostovar and two doctors of Iranian descent related to alleged racist remarks made by a faculty member. The trial court took judicial notice of these documents. In an action for administrative mandate under section 1094.5, however, "appellate review is limited to issues in the record at the administrative level." (City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1019.) Consequently, we agree with the Regents that it was error to take judicial notice of these documents. There is no prejudice because this court's review also is confined to the administrative record, and we have not considered Dr. Ostovar's additional documents.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to enter an order denying the petition for writ of administrative mandate. The parties shall bear their own costs on appeal.
Wiseman, Acting P.J. WE CONCUR: Gomes, J. Dawson, J.