Filed 9/25/19 Ashmore v. Cal. Bd. of Registered Nursing CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

GREGORY C. ASHMORE,

Plaintiff and Appellant,

v.

CALIFORNIA BOARD OF REGISTERED NURSING,

Defendant and Respondent.

C086077

(Super. Ct. No. 342016800002340CUWMGDS)

Appellant Gregory C. Ashmore (Ashmore) appeals from the trial court’s judgment denying his petition for writ of administrative mandate, in which he sought to have respondent Board of Registered Nursing (the Board) set aside its decision revoking his probation. We affirm.

I. BACKGROUND

Ashmore was licensed as a registered nurse in the State of Tennessee. He was subject to disciplinary proceedings in Tennessee following an incident in which he was found to have had sex with a patient admitted to the alcohol and drug ward of a mental health facility. The misconduct occurred only once, in 1998, and resulted in the termination of Ashmore’s employment and revocation of his Tennessee license in 2002. By then, however, Ashmore had moved to California.

A. Administrative Proceedings

Ashmore obtained a California nursing license in 2000 and worked in a series of nursing positions, without incident, until early 2011. The Board found out about the revocation of Ashmore’s Tennessee license and filed an accusation seeking to suspend or revoke his California license pursuant to Business & Professions Code section 2761, which authorizes the Board to take disciplinary action against a licensed nurse for “[u]nprofessional conduct,” including license revocation by another state. Ashmore contested the accusation, and an evidentiary hearing was held before an administrative law judge (ALJ) in December 2010. Following the hearing, the ALJ issued a proposed decision which was subsequently adopted in full by the Board (the 2011 decision). Among other things, the Board found that Ashmore’s sexual encounter with a patient was an isolated, one-time occurrence, which Ashmore recognized as having been inappropriate. The Board further found that Ashmore had been working as a nurse in California for more than 10 years, often meeting with patients on a one-on-one basis, and was not alleged to have acted inappropriately on any other occasion.

The Board revoked Ashmore’s license, but stayed the revocation and placed him on probation for three years, subject to various terms and conditions. We are concerned with one such condition (hereinafter, the nursing practice condition), which required that Ashmore “engage in the practice of registered nursing in California for a minimum of 24 hours per week for 6 consecutive months or as determined by the board.” In recognition of the possibility that Ashmore might require additional time in which to satisfy the nursing practice condition, the Board further provided that, “If [Ashmore] has not complied with this condition during the probationary term, and [Ashmore] has presented sufficient documentation of his good faith efforts to comply with this condition, and if no other conditions have been violated, the board, in its discretion, may grant an extension of the . . . probation period up to one year without further hearing in order to comply with this condition.” Ashmore did not challenge the 2011 decision, which became effective in March 2011 and has long-since become final.

As we shall see, the nursing practice condition proved difficult to satisfy. The Board extended Ashmore’s probation by one year on November 7, 2013, giving him until March 16, 2015, to comply. By November 2014, Ashmore had still failed to satisfy the nursing practice condition and could no longer complete the required six months of nursing practice before the probationary period came to an end in March 2015. Accordingly, the Board filed a petition to revoke Ashmore’s probation. The filing of the petition had the effect of automatically extending the probationary period until such time as the petition could be decided.

A hearing on the petition to revoke Ashmore’s probation was held in August 2015. Ashmore represented himself. Lisa Hall, a probation monitor, testified for the Board. Hall explained that Ashmore needed prior approval from the Board before he could accept employment as a nurse. The Board’s approval process begins when a potential employer (1) certifies that it has received a copy of the 2011 decision, and (2) submits a package of required documents, including an approval process form, an organization chart, and a job description. The probation monitor sends these materials to a nurse consultant who reviews everything and then contacts the potential employer to discuss the job opportunity.

Significantly, the nurse consultant does not even begin to evaluate a job offer until he or she has received all of the required documents. In Hall’s words: “The nurse consultant does not review hypothetical jobs. She needs absolutely everything to be able to review the job. That includes the employment approval process form, all of the required documents and the probationer’s file. So the actual approval process does not even start until I have everything that I need.” Hall explained that the approval process can take as long as two weeks. According to Hall, the nursing practice condition promotes public safety by allowing “another nurse with an active license in good standing” to “supervise the nurse while they are on probation, so that they can provide written reports to [the Board] to ensure that they are working appropriately, that they are not violating any of the terms of their employment[,] and that they maintain a certain level of supervision.”

Hall testified that the Board had not received any documents from any potential employer interested in hiring Ashmore during the entire probationary period. Hall acknowledged on cross-examination that she had received an email from Ashmore the day before the hearing indicating that he had been offered a position with an entity called Golden Living Center. However, Hall noted that the Board had not received any documents from that entity. As Hall put it, “we have, to this day, not received a single item to approve employment for [Ashmore] throughout the entire duration of [his] probation.”

Ashmore testified that he had made strenuous efforts to secure a nursing position within the probationary period. He elaborated that he had submitted more than 150 applications for nursing positions around the state. Although he had been invited to interview dozens of times, he had not received any offers to work as a nurse within the probationary period, other than the recent offer from Golden Living Center. In Ashmore’s opinion, potential employers were afraid of the probationary process and unwilling to commit to the Board’s monitoring and reporting requirements for probationers. Ashmore indicated that he hoped to have his probationary period extended, or the terms of his probation modified (for example, by reducing the time for the nursing practice condition from six to three months).

Sabra Malika, a former executive director of a nursing placement agency, testified on Ashmore’s behalf. Malika testified that she had been helping Ashmore with his job search for the past two years and was aware of several instances in which directors of nursing had been interested in hiring Ashmore, only to be overruled by their human resources departments. In Malika’s opinion, Ashmore had been “very dedicated, very diligent,” in his job search, but human resources departments were not willing to undertake the paperwork required by the terms of his probation.

The ALJ issued a proposed decision in September 2015. As relevant here, the ALJ found that Ashmore failed to satisfy the nursing practice condition within the probationary period, and it would not be in the public interest to continue the probationary period further. The ALJ also concluded that Ashmore had failed to sufficiently show the ability or willingness to work as a registered nurse. Specifically, the ALJ found, “Although [Ashmore] claims that he has filed hundreds of applications for employment, [Ashmore] did not show that he has, in fact, demonstrated the ability or willingness to work as a registered nurse. Other than his testimony, [Ashmore] did not present corroborating proof that he has made formal applications for employment over the past four years of his licensure probation status.” The Board adopted the ALJ’s decision by order dated October 20, 2015.

Ashmore filed a motion for reconsideration on November 16, 2015. The motion was accompanied by a declaration averring that Ashmore had received and accepted offers of employment from two potential employers. The exhibits attached to the declaration identify the potential employers as American Home Health Care and Care Options, and indicate that both had submitted some or all of the documents required to begin the approval process. The motion for reconsideration made no mention of Golden Living Centers, the entity said to have offered Ashmore a job the day before the hearing. The Board granted the motion for reconsideration, thereby extending Ashmore’s probationary period.

The parties submitted written arguments for and against reconsideration. Ashmore’s written submission represented that he had been offered an unpaid nursing position by a Dr. Ernest Bonner, who was in the process of submitting the required documents. Ashmore made no mention of the offers from American Home Health Care or Care Options. The Board reconsidered the case and reissued the prior decision revoking Ashmore’s license effective April 22, 2016.

B. Trial Court Proceedings

Ashmore filed a petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5. The trial court issued a tentative ruling granting the petition, in part, and concluding that the Board’s finding that Ashmore failed to demonstrate the ability or willingness to work as a registered nurse was unsupported by the evidence. The trial court’s tentative ruling would have remanded the case with instructions to the Board to (1) clarify whether the unsupported finding played a role in its ultimate decision to revoke probation, and (2) reconsider the penalty based on a proper assessment of the evidence.

Following a hearing, the trial court reversed its tentative ruling and denied the petition. The trial court found that it was undisputed that “Ashmore has been unable to comply with the nursing practice condition, despite having been given over four years to do so.” Although the trial court had no occasion to consider the propriety of the 2011 decision, the court found that the nursing practice condition is “one of the Board’s standard conditions of probation.” The trial court further found that the decision to impose the nursing practice condition was “entirely reasonable,” noting that the rationale for the condition, as described in the Board’s disciplinary guidelines, is that it “ ‘provides the Board with an opportunity to monitor the respondent and demonstrate if he/she can perform the functions and duties of a registered nurse in a competent manner.’ ”

The trial court found no abuse of discretion in the Board’s determination that it would not be in the public interest to continue Ashmore’s probationary status. The trial court observed that Ashmore had received additional time in which to satisfy the nursing practice condition, but had not only failed to complete six consecutive months of nursing practice, he had not even started in a nursing position that would allow him to do so. The trial court additionally observed that the job offers from Golden Living Centers, American Home Care, Care Options, and Dr. Bonner came too late for Ashmore to timely satisfy the nursing practice condition, even assuming that all of the required documents had been submitted (which Ashmore failed to show for all but Dr. Bonner), and that Ashmore had failed to show that any of the potential positions had been approved by the Board. Under the circumstances, the trial court found no abuse of discretion in the Board’s decision to revoke Ashmore’s probation, which had the effect of revoking his nursing license. Accordingly, the trial court denied the petition. The trial court made no findings as to whether Ashmore had sufficiently demonstrated his willingness or ability to work as a registered nurse.

This appeal timely followed.

II. DISCUSSION

A. Standard of Review

Section 1094.5 governs judicial review by administrative mandate of any final decision or order entered by an administrative agency. Under that section, the reviewing court considers whether the agency “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 [agency] 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).)

When an administrative decision affects a fundamental vested right, such as the revocation of a professional license, the trial court must exercise its independent judgment in reviewing that decision to determine if it is supported by the weight of the evidence. (§ 1094.5, subd. (c); Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 574 (Rand).) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision”—here, Ashmore—“bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Thus, the trial court reweighs the evidence, including the credibility of witnesses, and after “giving due respect to the agency’s findings,” may “substitute its own findings” for that of the agency. (Id. at p. 818; see also Rand, supra, at p. 574 [the trial court conducts a “ ‘limited trial de novo’ ” in which it “resolves evidentiary conflicts, assesses the witnesses’ credibility, and arrives at its own independent findings of fact”].)

We, in turn, review the trial court’s findings, rather than the agency’s findings, for substantial evidence. (Duarte v. State Teachers’ Retirement System (2014) 232 Cal.App.4th 370, 383-384 (Duarte); Rand, supra, 206 Cal.App.4th at p. 591 [“we review the trial court’s factual findings, not those of the administrative agency”].) Thus, “our review of the record is limited to a determination whether substantial evidence supports the trial court’s conclusions and, in making that determination, we must resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659.) “Further, we cannot reweigh the evidence. Thus, we do not determine whether substantial evidence would have supported a contrary judgment, but only whether substantial evidence supports the judgment actually made by the trial court.” (Duarte, supra, at p. 384.) Substantial evidence is “evidence of ‘ “ponderable legal significance . . . reasonable in nature, credible, and of solid value.” ’ ” (Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 773, fn. 9.) “ ‘We uphold the trial court’s findings unless they so lack evidentiary support that they are unreasonable.’ ” (Duarte, supra, at p. 384.)

We review de novo whether the agency’s imposition of a particular penalty on the petitioner constituted an abuse of discretion. (Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 627.) But we will not disturb the agency’s choice of penalty absent “ ‘ “an arbitrary, capricious or patently abusive exercise of discretion.” ’ ” (Id. at pp. 627-628; Harrington v. Department of Real Estate (1989) 214 Cal.App.3d 394, 405 [“the penalty imposed by an administrative agency will not be disturbed unless there has been a clear abuse of discretion”]; Cadilla v. Bd. of Medical Examiners (1972) 26 Cal.3d 961, 966 [“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”].) Such an abuse of discretion is not established where reasonable minds may differ as to the appropriate level of discipline (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46-47), even if the trial court or appellate court believes the penalty imposed was too harsh. (Szmaciarz v. State Personnel Bd. (1978) 79 Cal.App.3d 904, 921.)

B. Substantial Evidence Supports the Trial Court’s Findings

Ashmore’s arguments on appeal focus on the Board’s findings that he (1) failed to show that he had demonstrated a willingness and ability to work as a registered nurse, and (2) failed to present corroborating proof that he had made formal applications for employment during the probationary period. Ashmore argues at length that the Board’s findings were not supported by substantial evidence, noting there was evidence he interviewed for scores of nursing positions and applied for many more, all of which shows that he demonstrated a willingness and ability to work as a registered nurse. Ashmore argues the Board relied on these purportedly unsupported findings in determining that he failed to comply with the conditions of probation. Ashmore’s arguments misapprehend the scope of our review.

“On appeal from a decision of a trial court applying its independent judgment, we review the trial court’s findings rather than those of the administrative agency.” (Duarte, supra, 232 Cal.App.4th at p. 383.) Here, as we have suggested, the trial court properly exercised independent judgment given that the Board’s decision affected Ashmore’s fundamental right to practice his profession. (Rand, supra, 206 Cal.App.4th at p. 574.) Because the trial court exercised independent judgment, we review the court’s findings, rather than the Board’s. (Id. at p. 591.) Consequently, we need not decide whether the Board’s findings were supported by substantial evidence, or whether the Board relied on unsupported findings in deciding that he failed to comply with the conditions of probation. We need only concern ourselves with the trial court’s findings, to which we now turn.

Unlike the Board, the trial court did not make any findings regarding the sufficiency of Ashmore’s job-seeking efforts, other than to note that they were ultimately unsuccessful. As relevant here, the trial court merely found that Ashmore failed to timely satisfy the nursing practice condition. Ashmore does not contest the trial court’s finding, and we conclude that substantial evidence supports it. That finding, in turn, constitutes substantial evidence that Ashmore failed to comply with the conditions of probation. Ashmore does not challenge the trial court’s ultimate finding either, and we conclude, again, that substantial evidence supports it. This conclusion would ordinarily end our analysis, as our review is limited to a determination whether substantial evidence supports the trial court’s ruling. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824.) But Ashmore raises additional arguments, which we will address briefly.

Ashmore’s arguments revolve around the trial court’s tentative ruling. As noted, the tentative ruling questioned whether the Board’s findings were supported by substantial evidence and contemplated remand to give the Board an opportunity to: “(1) clarify whether it considered the unsupported finding that Ashmore failed to prove he had applied for jobs as a nurse when reaching its decision in this case; and (2) reconsider the penalty based on a proper assessment of the evidence.” However, the trial court changed course for reasons that do not appear in the record. Following the hearing (for which no transcript has been provided), the trial court reversed the tentative ruling, removed the discussion of the Board’s unsupported findings from the final order, and denied the petition. Ashmore argues the trial court erred in failing to address the purportedly unsupported findings in the final order and failing to explain why the court changed its mind. Ashmore also appears to argue that the trial court’s failure to discuss the Board’s purportedly unsupported findings constitutes a failure to make a necessary factual finding. Ashmore is wrong.

The trial court, in exercising independent judgment, was free to reweigh the evidence and substitute its own findings, subject to the strong presumption of correctness of the Board’s findings. (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 818; see also Rand, supra, 206 Cal.App.4th at p. 574.) The trial court could have concluded—as we do—that the Board’s findings regarding Ashmore’s efforts to secure a nursing position were irrelevant to the ultimate question of whether he complied with the nursing practice condition. Nothing in the 2011 decision, which imposed the terms and conditions of probation, suggests the nursing practice condition can be satisfied by good faith efforts. Although the Board’s findings may have been relevant to the question whether to extend the probationary period, they were not relevant to the separate question whether Ashmore complied with the nursing practice condition by working as a nurse for six consecutive months for a minimum of 24 hours a week. Nor were the Board’s findings relevant to any other issue concerning the revocation of Ashmore’s probation. The trial court was not required to discuss irrelevant or unnecessary findings in the final order, even assuming they were unsupported by the evidence.

Contrary to Ashmore’s somewhat convoluted contention, the trial court was not required to account for its change of mind either. As Ashmore necessarily acknowledges, the trial court was free to change its ruling until such time as the ruling became the court’s final order. (Silverado Modjeska Recreation & Parks Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300 [“a trial court’s tentative ruling is not binding on the court; the court’s final order supersedes the tentative ruling”].) Accordingly, we disregard the trial court’s tentative ruling and consider only the trial court’s final order, which “constitutes a full and final adjudication” of the petition for writ of administrative mandate. (Ibid.) And even then, we are concerned with the correctness of the trial court’s decision and judgment, rather than the court’s reasons. (Estate of Kampen (2011) 201 Cal.App.4th 971, 1000 [“If a decision of the trial court is correct on any theory of law applicable to the case, the appellate court will affirm the judgment, whether the trial court’s reasons were correct or not”].) Together, these principles compel the conclusion that a trial court has no obligation to account for differences between a tentative ruling and a final order. It follows that the trial court was not required to account for its evolving view of the significance (or lack thereof) of the Board’s findings concerning the sufficiency of Ashmore’s job-seeking efforts, and the court’s failure to do so was neither an abuse of discretion nor a failure to make necessary findings. We therefore reject the claim of error.

C. No Finding Regarding Ashmore’s “Capacity for Safe Practice” Was Required

Next, Ashmore argues the trial court erred in failing to require a showing that he poses a threat to public safety. Specifically, Ashmore argues that the primary purpose of the nursing licensure scheme is public safety, and therefore, revocation of a nursing license requires a showing that the licensee is “ ‘not capable of safe practice.’ ” According to Ashmore, no such showing can be made in the present case, as there was no evidence he poses a danger to patients or the public. These arguments might have been relevant when the Board revoked Ashmore’s license and placed him on probation, but they are not relevant now. Nothing in the Board’s Recommended Guidelines for Disciplinary Orders and Conditions of Probation (Guidelines), on which Ashmore relies, suggests that the revocation of probation requires a finding that the licensee poses a threat to public safety. To the contrary, the Guidelines provide, “If a respondent violates the conditions of his/her probation, the Board after giving the respondent notice and an opportunity to be heard, may set aside the stay order and impose the stayed discipline (revocation/suspension) of the respondent’s license.” (Guidelines, at p. 23) This is precisely what happened here. Neither the Board nor the trial court was required to find that Ashmore poses a threat to public safety, and the failure to do so does not constitute error.

D. The Trial Court Did Not Err in Failing to Exercise Its Equitable Powers Finally, Ashmore argues the trial court erred in failing to exercise its equitable powers to set aside the revocation of his nursing license, which he characterizes as an impermissibly severe penalty given the isolated and remote nature of his misconduct, his 10-year record of successful nursing practice, and his diligent efforts to comply with the nursing practice condition. We are not unsympathetic to Ashmore’s predicament. Nevertheless, we find no error.

“ ‘In reviewing the severity of the discipline imposed, we look to the correctness of the agency’s decision rather than that of the trial court.’ [Citation.] ‘ “The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated. [Citations.] Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. [Citation.]” [Citation.] [¶] “In reviewing the exercise of this discretion we bear in mind the principle ‘courts should let administrative boards and officers work out their problems with as little judicial interference as possible . . . . Such boards are vested with high discretion and its abuse must appear very clearly before the courts will interfere.’ ” ’ [Citation.] ‘The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions.’ ” (Cassidy v. California Bd. of Accountancy, supra, 220 Cal.App.4th at p. 633.)

Here, though Ashmore has paid a high price for the choices he made more than 20 years ago, we cannot say that the Board abused its discretion in revoking probation. Ashmore had more than four years in which to satisfy the nursing practice condition—a standard condition of probation—and failed to show that he ever even secured a position that was approved by the Board and would allow him to complete six consecutive months of nursing practice for a minimum of 24 hours a week in the foreseeable future. The Board was not required to continue Ashmore’s probationary period indefinitely. The Board did not abuse its discretion in revoking Ashmore’s probation (which had the effect of revoking his license), and the trial court did not abuse its discretion in failing to exercise its equitable powers to set aside the Board’s decision.

III. DISPOSITION

The judgment is affirmed. The Board is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

DUARTE, Acting P. J.

/S/

KRAUSE, J.