Filed 9/27/19 Bashir v. State Dept. of Public Health CA4/2

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CHAUNTA BASHIR,

Plaintiff and Appellant,

v.

STATE DEPARTMENT OF PUBLIC HEALTH,

Defendant and Respondent.

E071417

(Super.Ct.No. CIVDS1609192)

OPINION

APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed.

Davis, Grass, Goldstein & Finlay and Jeffery W. Grass for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Cheryl Feiner, Assistant Attorney General, Richard T. Waldow and Gregory M. Cribbs, Deputy Attorneys General for Defendant and Respondent.

Chaunta Bashir appeals from a trial court judgment denying his petition for a writ of administrative mandamus and affirming the California State Department of Public Health’s (Department) final administrative decision revoking his certifications as a certified nurse assistant (CNA) and home health aide (HHA) and publishing a finding of patient abuse with the State Nurse Aide Registry.

The Department and trial court imposed these sanctions based on their findings that Bashir, while working at a nursing facility, offered to pay one resident to engage in a sex act with another resident while he watched. Bashir argues the Department erred in finding he committed these acts. We conclude the factual findings are supported by substantial evidence in the record.

Bashir also argues we should overturn the judgment because the Administrative Law Judge (ALJ) found in his favor and the Department’s decision to reject the ALJ’s decision was untimely under Government Code section 11517. That provision requires the Department to “act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision” or the ALJ decision “shall be deemed adopted by the agency.” It is uncontested the Department issued its final decision within the 100 days, but did not serve notice of the decision until eight days later. We conclude the statute does not require service within the 100 days because a subsection of the statute that falls outside subparagraphs (A) to (E) imposes the service requirement.

We therefore affirm the judgment of the trial court denying Bashir’s petition for a writ of mandate.

I

FACTS

A. The Incident
B.
This appeal involves alleged incidents of abuse against residents at a nursing facility in Riverside.

According to residents of Vista Pacifica Center, in August 2014, Bashir offered to pay one resident, J., to perform fellatio on another resident, K. J. said Bashir “asked if I would give a blowjob for five bucks to [K.].” He said he performed the sexual act in front of Bashir, who watched and was touching his genitals and appeared to be masturbating. He said he performed fellatio until the other resident ejaculated. J. also submitted a declaration, which was admitted as evidence, in which he said, “Mr. Bashir offered me $5 to perform oral sex on [K.]” and “Mr. Bashir was watching and touching himself in a sexual manner while the sexual act was being performed.” J. said after he finished, Bashir game him $5.

K. did not testify, but submitted a declaration under penalty of perjury, which was also admitted as evidence at the hearing. According to K., Bashir had harassed him about being gay a few times before the events J. described. He reported, “CNA Bashir kept reassuring me, ‘There was nothing wrong with being gay.’ I wanted to prove to both of them that I was not a homosexual. Therefore, I allowed both, CNA Bashir and [J.] to touch my private parts. I felt this proved to CNA Bashir that I was not a homosexual. Because of the failed attempt to be aroused and excited, CNA Bashir then offered [J.] $5 to perform oral copulation on me. [J.] proceeded to place his mouth on my penis.” K. denied ejaculating, however, and instead insisted he was unable to get aroused. He said, “These actions were a way to prove to CNA Bashir that I was not a homosexual so he would stop questioning me about his sexual orientation.”

The notice of revocation alleged a second incident took place on September 13 or 14, 2014 at Riverside Behavioral Healthcare Center. A resident at that facility submitted a declaration saying Bashir touched his penis after implying he would provide him marijuana for allowing intimate contact. We omit discussion of this incident because the trial court did not rely on it to find Bashir engaged in unprofessional conduct.

Bashir denied the residents’ allegations. Both facilities terminated Bashir.

C. Administrative Proceedings
D.
In January 2015, the Department revoked Bashir’s CNA and HHA certificates under the provisions of Health and Safety Code section 1337.9, subdivision (b)(1). The notice informing Bashir of their action was based on an investigation into allegations he had offered to pay a resident to perform a sex act on another resident and engaged residents in inappropriate and unprofessional conversations while he worked at one facility, and had touched a resident’s private parts while he worked at another facility.

Health and Safety Code section 1337.9, subdivision (b)(1) provides that the Department may initiate an action to revoke a certificate for a nurse assistant for unprofessional conduct, which includes physical, mental, or verbal abuse of a patient. The notice of revocation informed Bashir each incident on its own warranted the revocation and that a finding of abuse would be included in the State Nurse Aide Registry.

The notice also informed Bashir of his right to an administrative appeal. On February 23, 2015, Bashir served the Department with a notice of appeal. ALJ Mark Otto held a hearing on July 25, 2015, at which he heard the testimony recounted above by J. and Bashir, among other witnesses.

In July 2015, the ALJ issued a proposed decision granting the appeal and finding the Department’s decision to revoke Bashir’s CNA and HHA certifications was not justified. The ALJ considered J.’s testimony, the declarations of J. and K., the investigative reports prepared by Department investigators, and Bashir’s declarations and testimony denying the accusations against him. The ALJ concluded J.’s testimony was problematic because it was inconsistent with K.’s statements. K. submitted a declaration and told investigators Bashir offered to pay J. $5 to perform fellatio on K., but contradicted J. by saying he did not become aroused or ejaculate. The ALJ also found fault with the Department for deciding, in the court’s view, to revoke his licenses “based upon more than just the two incidents . . . referenced in the Department’s Notice of Revocation.” The ALJ concluded the Department failed to present clear and convincing evidence Bashir committed the unprofessional acts the Department accused him of in the notice of revocation.

The proposed Decision was mailed to the parties on July 28, 2015. On November 2, 2015, Brandon Nunes, the Department’s Chief Deputy Director of Operations, signed its rejection of the proposed decision, and elected to decide the case itself, without taking additional evidence, as provided in Government Code section 11517, subdivision (c)(2)(E). The rejection was served on the parties on November 13, 2015.

On November 19, 2015, Bashir served an objection to the rejection of the proposed decision, arguing it was untimely and the proposed decision should be deemed adopted. On November 24, 2015, the Department invited the parties to submit written arguments on the merits and rejected Bashir’s objection of untimeliness, stating “the Rejection was signed and made effective three (3) days prior to the default date. Therefore, the Rejection of the Proposed Decision is timely per Government Code section 11517(c)(2) and no default has occurred.”

On April 14, 2016, the Department served its final decision. The Department denied the appeal and found the Department had “demonstrated by clear and convincing evidence to a reasonable certainty that Appellant engaged in unprofessional conduct while employed as a CNA/HHA.” The Department noted “there appear to be inconsistencies between the evidence presented,” but emphasized “there is no inconsistency as to the existence of an offer made by [Bashir] to a resident in his care of money in exchange for performing sexual acts on another resident, while in [Bashir’s] presence. The very existence of this disturbing offer is unquestionable. As such, the evidence surrounding the two incidents . . . meets the clear and convincing threshold.” The Department concluded “the revocation of Appellant’s certifications was proper. The Department’s entry of abuse noting Appellant’s conduct into the State Nurse Aide Registry was also proper.”

E. Superior Court Proceedings
F.
On June 10, 2016, Bashir filed a petition for writ of administrative mandamus in the San Bernardino County Superior Court.

The trial court held a hearing on May 11, 2018. On May 14, 2018, the trial court issued a minute order and ruling denying the petition and entered judgment on June 5, 2018. “Given the above considerations, the Court finds the agenc[y’s] action to be timely as it is required to only act within the hundred days not serve. [¶] Additionally, the Court finds that the weight of the evidence supports the Department[’]s finding that petitioner offered to pay money to a resident in exchange for the resident engaging in a sex act with another resident. Accordingly, the Writ is denied.”

Bashir filed a timely notice of appeal.

II

ANALYSIS

A. Substantial Evidence Supports the Finding of Inappropriate Conduct
B.
Health and Safety Code section 1337.9, subdivision (b)(1) allows the state to “initiate an action to suspend or revoke a certificate for . . . a nurse assistant for . . . [¶] . . . [u]nprofessional conduct, including . . . physical, mental, or verbal abuse of patients. (Health & Saf. Code, § 1337.9, subd. (b)(1).) Bashir argues we should reverse the trial court because the Department did not carry its burden of proving Bashir engaged in unprofessional conduct while employed as a CNA and HHA. This position misstates our role in the case.

“When a trial court rules on a petition for writ of mandate following a license revocation, it must exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision.” (Finnery v. Board of Registered Nursing (2008) 168 Cal.App.4th 219, 227.) On review, we decide only whether “credible, competent evidence supports [the trial] court’s judgment.” (Ibid.) The question we face is “whether the evidence reveals substantial support, contradicted or uncontradicted, for the trial court’s conclusion.” (Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69, 72.)

In conducting such a substantial evidence review, we resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. (Lake v. Reed (1997) 16 Cal.4th 448, 457.) Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. (Ibid.) We will overturn the trial court’s factual findings only if the evidence was insufficient as a matter of law to sustain those findings. (Ibid.)

We cannot do so in this case. The Department and the trial court limited themselves to considering the evidence showing Bashir offered one resident under his care $5 to perform fellatio on a second resident under his care. Such an act unquestionably constitutes unprofessional conduct for a health care professional, and Bashir doesn’t challenge that aspect of the ruling. Instead, he challenges the evidentiary basis for finding he made that offer. However, there is a great deal of evidence to show he did make the offer. J. testified Bashir asked him to perform fellatio on K. in return for $5. K. submitted a declaration and told investigators that Bashir made that offer. More, both also said J. followed through with the sexual act, and J. said Bashir paid him the $5. The testimony of one witness may constitute substantial evidence. Here, the trial court could have relied on J.’s testimony on its own, even absent K’s confirming statement, and despite Bashir’s denials contradicting him. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [“Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the [substantial evidence] standard is sufficient to uphold the finding”].)

It’s true that J.’s testimony and K.’s version of events differed on what happened when J. performed the sexual act. And it’s also true a fact finder could have concluded J.’s testimony lacked credibility because of the conflict. But it would be equally reasonable for a fact finder to conclude J.’s testimony was true, but K. was lying when he claimed not to have become aroused, perhaps because he was uncomfortable with being identified as homosexual. We don’t know whose testimony was true on that point. But we do know the Department and the trial court, not this court, are the relevant fact finders, and on substantial evidence review we must “examine the record in the light most favorable to the judgment and uphold[] it if the record contains reasonable, credible, evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.” (People v. Barnwell, supra, 41 Cal.4th at p. 1052.) The same is true with regard to Bashir’s claim that J. was not credible because he had mental health problems. The trial court, reviewing the record could have concluded J. told the truth when he accused Bashir of offering to pay him $5 to perform fellatio on K., and that ends our substantial evidence inquiry. The trial court finding had sufficient evidentiary support.

A. The Department Timely Rejected the Proposed Decision
B.
Bashir argues the ALJ’s proposed decision should have been deemed adopted because the Department “failed to respond” to the decision within 100 days of its receipt, as required by Government Code section 11517.

On issues like the timeliness of the Department’s decision, where the facts are not in dispute and we are asked to resolve a legal question, we review de novo. (Unnamed Physician v. Board of Trustees (2002) 93 Cal.App.4th 607, 611.)

The facts relevant to this issue are not in reasonable dispute. The Department received the ALJ’s proposed decision on July 28, 2015. The Department executed its rejection 97 days later, on November 2, 2015. The Department served the rejection 11 days later, on November 13, 2015.

Bashir argues first that the Department was required to serve its rejection within 100 days of receiving the proposed order, but didn’t serve it until 108 days after. Bashir misreads the statute. The governing provision of the Administrative Procedure Act requires that the Department “act” on the proposed decision within 100 days, not that it serve parties within that time frame.

Government Code Section 11517, subdivision (c)(2) sets out the agency’s obligations to act on receiving a proposed decision and the consequences of failing to act in a timely fashion. “Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency.” The acts the agency may take under subparagraphs (A) to (E) are adopting the decision, reducing the proposed penalty and adopting the rest of the decision, making technical or minor changes in the decision and adopting it, rejecting the decision and referring it back to the ALJ, or—what the Department did here—rejecting the decision and deciding the case on the record. (Gov. Code, § 11517, subd. (c)(2)(A)-(E).) The relevant subsections say nothing about serving the parties with notice of the Department’s action.

On the contrary, the obligation to serve the parties appears in the next subsection of the statute. “The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney.” (Gov. Code, § 11517, subd. (d).) Thus, the plain language of the statute required the Department to rule on the merits—by adopting, modifying and adopting, or rejecting the proposed decision—within 100 days of receiving the decision. The 100 day period simply does not apply to the Department’s separate obligation to serve the parties. Thus, we conclude the trial court correctly interpreted the statute and correctly held the Department’s rejection was timely.

III

DISPOSITION

We affirm the judgment. Parties shall bear own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.