Gal v. Bureau of Security etc. CA2/2 ( 2020 )

Filed 11/4/20 Gal v. Bureau of Security etc. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ODED DANIEL GAL, B296963
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS171943)
v.
BUREAU OF SECURITY AND
INVESTIGATIVE SERVICES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. James C. Chalfant, Judge. Affirmed.
Marks & Brooklier and Donald B. Marks, for Plaintiff and
Appellant.
Xavier Becerra, Attorney General, Carl W. Sonne, Linda L.
Sun and Joshua A. Room, Assistant Attorneys General, and
Stephen D. Svetich, Deputy Attorney General, for Defendant and
Respondent.
Petitioner and appellant Oded Daniel Gal (appellant)
appeals from the judgment denying his petition for writ of
administrative mandamus to set aside a decision by the Director
of Consumer Affairs for the Bureau of Security and Investigative
Services (Bureau) revoking appellant’s private investigator
license. Appellant contends the Bureau’s basis for the license
revocation -- his 2015 conviction for passport fraud -- was not
substantially related to his duties as a private investigator and
revocation was an excessive penalty. We affirm the judgment.
BACKGROUND
The Bureau issued a private investigator license to
appellant on March 21, 1986. The license was valid at all times
relevant to this case and expired on March 31, 2018.
1998 discipline
In 1998, the Bureau revoked appellant’s license but stayed
the revocation pending a probationary period. The discipline was
based on appellant’s conviction of one felony count of conspiring
to commit assault, two felony counts of assault with a deadly
weapon, and one felony count of false imprisonment. Appellant
was sentenced to four years in state prison for those offenses.
2015 conviction for passport fraud
In September 2014, appellant was charged in the United
States District Court for the Southern District of New York with
violating section 1542 of title 18 of the United States Code for
making a false statement in a 2006 passport application. The
criminal complaint alleged that appellant willfully and knowingly
made false statements in a passport application with intent to
secure the issuance of a United States passport. In the
application, appellant provided a false name and date of birth
and presented a fraudulent driver’s license and birth certificate.
2
Appellant pleaded guilty to one count of violating title 18,
section 1542 of the United States Code. He received a one-month
sentence followed by six months of home confinement and three
years of supervised release. Appellant’s period of supervision
was scheduled to terminate on November 15, 2018.
2016 discipline
Appellant’s 2015 passport fraud conviction was the basis
for the Accusation the Bureau filed against him on October 17,
2016. The Accusation charged appellant with violations of
Business and Professions Code section 7561.1, subdivision (d)1;
former section 480, subdivision (a)2; section 490, subdivision (a);
and alleged that appellant had been convicted of a crime
substantially related to the qualifications, functions, or duties of
a private investigator. The Accusation further alleged that
appellant committed acts of dishonesty, fraud, or deceit with the
intent to substantially benefit himself or another.
At the June 27, 2017 hearing on the Accusation, appellant
testified that he submitted false information in the passport
application because he believed his 1996 felony conviction would
bar him from traveling abroad and he wanted to visit elderly
relatives in Europe and Israel. Appellant admitted that a private
investigator must be honest and act with honesty. Appellant
testified that as a private investigator, he investigated the
honesty, integrity, credibility, and trustworthiness of others. He
had access to consumers’ confidential information, including
1 All further statutory references are to the Business and
Professions Code, unless stated otherwise.
2 We reference the version of section 480 in effect at the time
of appellant’s license revocation hearing.
3
home addresses and social security numbers. Appellant admitted
that he pleaded guilty and was convicted of violating title 18,
section 1542 of the United States Code for making false
statements in an application for a passport. At the conclusion of
the hearing, the Bureau revoked appellant’s private investigator
license.
Appellant filed a petition for writ of mandate seeking to set
aside the Bureau’s decision. After hearing argument by counsel,
the trial court denied the petition. This appeal followed.
DISCUSSION
I. Standard of review
Code of Civil Procedure section 1094.5 “structures the
procedure for judicial review of adjudicatory decisions rendered
by administrative agencies. (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.)
In a proceeding inquiring into the validity of a final
administrative order, the trial court’s review is limited to
determining whether the agency proceeded without, or in excess
of jurisdiction; whether there was a fair trial; and whether there
was a prejudicial abuse of discretion. A prejudicial abuse of
discretion is established if the agency did not proceed in the
manner required by the 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).)
We review the trial court’s findings and decision for
substantial evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th
805, 824.) Under that standard, the power of the appellate court
begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted, that will
support the judgment, resolving all conflicts in the evidence in
4
favor of the judgment. (Moran v. Board of Medical Examiners
(1948) 32 Cal.2d 301, 308-309.)
“The propriety of a sanction imposed by an administrative
agency is a matter resting in the sound discretion of that agency,
and that decision will not be overturned absent an abuse of
discretion. [Citations.]” (Hughes v. Board of Architectural
Examiners (1998) 68 Cal.App.4th 685, 692 (Hughes).) We review
the agency’s determination, not that of the superior court, under
that same abuse of discretion standard. (Schmitt v. City of Rialto
(1985) 164 Cal.App.3d 494, 501.) In reviewing the exercise of the
agency’s discretion, we bear in mind that an agency is “‘“‘vested
with a 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.’ [Citation.]” (Cassidy v. California Board of
Accountancy (2013) 220 Cal.App.4th 620, 633.)
II. Applicable law
Section 490 authorizes a board to discipline a licensee,
including revoking a license, for conviction of a crime “if the crime
is substantially related to the qualifications, functions, or duties
of the business or profession for which the license was issued.”
(§ 490, subds. (a), (b).) A crime “shall be considered to be
substantially related to the qualifications, functions, or duties of
a licensee if to a substantial degree it evidences present or
potential unfitness to perform the functions authorized by the
license in the manner consistent with the public health, safety,
and welfare.” (Cal. Code Regs., tit. 16, § 602.) Crimes deemed to
meet this standard include those “involving dishonesty, fraud, or
deceit with the intent to substantially benefit himself or herself
5
or another, or substantially injure another.” (Former § 480, subd.
(a)(2); § 7561.1, subd. (d).) The Bureau’s disciplinary guidelines,
incorporated by reference in its regulations (Cal. Code Regs., tit.
16, § 611), also state that dishonesty and fraud are substantially
related to the qualifications, functions, and duties of a private
investigator.
Dishonesty includes “the disposition to deceive, betray and
mislead” or acting with “a lack of complete integrity.” (Wayne v.
Bureau of Private Investigators & Adjusters, Dep’t of Professional
& Vocational Standards (1962) 201 Cal.App.2d 427, 437.) “Fraud
embraces multifarious means whereby one person gains an
advantage over another and means in effect bad faith, dishonesty
or overreaching.” (Ibid.)
III. Appellant’s conviction is substantially related to his
qualifications, functions, or duties as a private
investigator
We are unpersuaded by appellant’s argument that his
conviction for passport fraud is not substantially related to his
qualifications, functions, or duties as a private investigator.
Crimes “involving dishonesty, fraud, or deceit with the intent to
substantially benefit himself or herself or another” are statutorily
deemed to be “substantially related to the qualifications,
functions, or duties” of a private investigator. (Former § 480,
subd. (a)(2); § 7561.1, subd. (d); Cal. Code Regs., tit. 16, §§ 602,
610.)
The record shows that private investigators such as
appellant contract with public agencies to investigate crimes and
perform background checks. They have access to confidential
consumer information, including home addresses and social
security numbers. Private investigators testify in court and sign
6
reports under penalty of perjury. These functions and duties
require honesty and integrity so that the public, public agencies,
and courts can rely on the truthfulness of the testimony and
reports. (Cal. Code Regs., tit. 16, § 602.)
That appellant’s admittedly fraudulent and dishonest acts
did no harm to any of his clients did not preclude the Bureau
from disciplining him. The law does not require the existence of
a victim before an agency may order a license revoked as part of
its effort to protect the people of California from unscrupulous
conduct. (Hughes, supra, 68 Cal.App.4th at p. 693.)
IV. Revocation was not an excessive penalty
The record discloses no abuse of discretion by the Bureau in
the discipline it imposed. The Bureau’s disciplinary guidelines
provide that license revocation is an appropriate penalty for an
offense involving dishonest or fraudulent conduct. Appellant
admitted to multiple acts of dishonesty in furtherance of the
crime for which he was convicted. He admitted making false
statements in an application for a Nevada driver’s license and in
the State of New York in an application for a certified copy of a
birth certificate. Appellant had a prior disciplinary record. He
expressed no remorse for his actions. The delay between the
appellant’s commission of the crime and his conviction and
revocation of his license does not mitigate the seriousness of his
offense or his multiple acts of dishonesty.
7
DISPOSITION
The judgment is affirmed. The Bureau shall recover its
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
8