Yazdi v. Dental Board of Cal. CA2/1

Filed 10/6/20 Yazdi v. Dental Board of Cal. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MOHAMMADREZA YAZDI, B298130
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS172030)
v.
DENTAL BOARD OF
CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
Neufeld Marks and Paul S. Marks for Plaintiff and
Appellant.
Xavier Becerra, Attorney General, Carl W. Sonne,
Assistant Attorney General, David E. Brice and Morgan Malek,
Deputy Attorneys General, for Defendant and Respondent.
_______________________
Appellant Mohammadreza Yazdi, an orthodontist, appeals
from a judgment of the trial court denying his petition for writ of
administrative mandate under Code of Civil Procedure section
1094.5. The trial court denied the writ and affirmed a
November 6, 2017 decision of the Dental Board of California,
following a 10-day evidentiary hearing, revoking Yazdi’s dental
license but staying the revocation and placing him on probation
for five years. We have jurisdiction pursuant to Code of Civil
Procedure section 904.1, subdivision (a). Finding that the trial
court’s decision was supported by substantial evidence and
proper exercise of discretion, we affirm.
BACKGROUND
Yazdi was first licensed in California as a dentist in
October 1987. After further special training, he began private
practice in orthodontics in 1994.
Between June and early November 2009, in response to
patient complaints, the Dental Board directed Yazdi to produce
the complete dental records of 12 patients. Yazdi failed to
produce those records. The Dental Board then served on Yazdi
12 subpoenas for those records on November 12, 2009. Yazdi
failed to comply with the subpoenas. Based on the failure to
produce complete records, the Dental Board then issued 12
citations, one on February 24, 2010, and the other 11 on April 14,
2010. Eleven of the citations imposed a $250 per day fine, for
each day the records were not produced, up to a maximum of
$5,000. The February 24, 2010 citation imposed a $550 fine.
Each citation required that the fine be paid within 30 days of
issuance, and that the citation be abated by production of the
requested records within 30 days.
2
Yazdi did not appeal the citations. He did not request an
extension of time. He did not pay the fines. All 12 citations
became final and non-appealable as of May 15, 2010.
Nonetheless, Yazdi maintained communication with the Dental
Board and mailed some of the requested records to the Dental
Board. However, the Dental Board never received the complete
dental records of any of the 12 patients it had requested of Yazdi.
The Dental Board filed its original accusation against Yazdi
concerning the above events on October 21, 2010. A first
amended accusation was filed on November 8, 2011. A hearing
on these charges before a state administrative law judge was held
in Los Angeles on March 5, 6, and 7, 2012. Finding that Yazdi
had failed to pay the fines assessed by the Dental Board citations,
and failed to produce the complete dental records in abatement of
those citations, on May 4, 2012 the administrative law judge
issued a decision recommending that Yazdi’s dental license be
revoked, but that the revocation be stayed pending probation for
a period of three years. The Dental Board adopted the
administrative law judge’s decision on June 11, 2012, with an
effective date of July 11, 2012.
While the above matter was pending, the Dental Board
received four additional patient complaints against Yazdi that
are the subject of the instant appeal. All four patients were
minor children, and the complaints were made by one or both
parents. On May 13, 2009, Connor O.’s parents registered a
complaint seeking investigation of Yazdi’s dental license, a
refund of “appropriate portions of monies paid up front,” and the
release of the patient’s medical records. On July 25, 2009, the
parents of Stephanie M. and her brother Christopher M.
registered complaints alleging Yazdi’s failure to produce copies of
3
their service contracts and medical records, excessive charging of
fees, and dissatisfaction with the results of Yazdi’s orthodontic
services. On February 4, 2010, the parents of Irina S. registered
a complaint alleging that Yazdi refused to remove Irina’s braces
until a fee balance was paid, and that he charged excessive fees.
The Dental Board assigned these complaints to an
investigator who examined available medical records,
interviewed the parents of each child patient, and sought the
opinion of Dental Board expert Allan Sheridan, D.D.S. Dr.
Sheridan issued reports in each case, concluding that respondent
committed acts of gross negligence, repeated acts of negligence,
unprofessional conduct, fraud, and incompetence. These
conclusions led to the filing of the Dental Board’s third amended
accusation against Yazdi on March 24, 2017.
Administrate Law Judge Matthew Goldsby, with the state
Office of Administrative Hearings, heard this matter in Los
Angeles, California on June 19 to 22, 2017, June 26 to 30, 2017,
and July 21, 2017, for a total of 10 hearing days. Eighteen
witnesses testified. The record was held open until August 28,
2017, to allow both sides to file concurrent closing briefs, which
both sides did. The matter was taken under submission on
August 28, 2017. The administrative record is comprised of
nearly 3,700 pages, including numerous exhibits and nearly 2,700
pages of hearing transcripts. Both the Dental Board’s expert, Dr.
Sheridan, and Yazdi’s expert, Jeffrey Cohen, D.M.D., testified
concerning the relevant standards of care applicable to the
disciplinary charges.
The administrative law judge’s decision, dated
September 26, 2017, found that the Dental Board had not proved
the accusations of gross negligence (1st, 6th, 11th, and 18th
4
causes for discipline), incompetence (5th, 10th, and 15th causes
for discipline), and two of the accusations of excessive treatment
(7th and 14th causes for discipline). The decision found that the
Dental Board had proved by clear and convincing evidence the
accusations of repeated acts of negligence (2d cause for
discipline), obtaining fees by fraud or misrepresentation (3d, 8th,
12th, 14th, and 17th causes for discipline), failure to comply with
record requests and excessive charges for records (4th, 9th, and
13th causes for discipline), excessive treatment (16th cause for
discipline), and unprofessional conduct by refusing to remove a
patient’s braces until an outstanding fee was paid (19th cause for
discipline). After reviewing the factors enumerated in the Dental
Board’s published guidelines, the administrative law judge
recommended discipline for Yazdi consisting of revocation of his
dental license, stayed and placed him on probation on specified
terms for a period of five years, with Yazdi’s license to be fully
restored upon successful completion of probation. The decision
also required Yazdi to reimburse $51,081.03 in costs incurred for
investigation and prosecution of the charges.
The Dental Board adopted the administrative law judge’s
decision and recommendation by order dated November 6, 2017.
On January 5, 2018, Yazdi filed in superior court a petition
for writ of mandate challenging this decision under Code of Civil
Procedure sections 1085 and 1094.5. The Dental Board answered
the petition on February 1, 2018. Yazdi filed his opening brief in
support of the petition on December 24, 2018. The Dental Board
5
filed its opposition memorandum on February 26, 2019. Yazdi
filed his reply brief in support of the petition on March 4, 2019.1
The trial court held a hearing as scheduled on March 19,
2019. Oral argument consumed roughly 90 minutes, after which
the trial court took the matter under submission. Later that day,
the trial court issued a 12-page written decision affirming the
majority of the findings of the Dental Board and affirming the
discipline imposed by the Dental Board. Judgment denying the
petition for writ of mandate was entered on April 2, 2019.
Yazdi filed his notice of appeal on May 31, 2019. The
record on appeal includes an opening brief from Yazdi, a
respondent’s brief from the Dental Board, appendices submitted
by both Yazdi and the Dental Board, and the administrative
record from the Dental Board proceedings (the same record
considered by the trial court). No reply brief was filed by Yazdi.
DISCUSSION
A. Standard of Review
As revealed by its written decision, the trial court applied
the “independent judgment” standard of review to the Dental
Board’s decision ordering stayed, probational revocation of
Yazdi’s license to practice. (Code Civ. Proc., § 1094.5; see Fukuda
v. City of Angels (1999) 20 Cal.4th 805, 817.) This accorded with
a long line of California precedent.
1 Neither the petition and answer nor any of the briefs filed
in the trial court have been made part of the record on this
appeal. The above information is derived from the trial court
civil register.
6
“ ‘ “Under the independent judgment rule, the trial court
must weigh the evidence and make its own determination as to
whether the administrative findings should be sustained. When
an appeal is taken from the trial court’s determination, it is given
the same effect as any other judgment after trial rendered by the
court: the only question is whether the trial court’s (not the
administrative agency’s) findings are supported by substantial
evidence. [Citation.] Conflicts in the evidence must be resolved
in favor of the judgment and where two or more inferences can be
reasonably drawn from the facts, the reviewing court must accept
the inferences deduced by the trial court.” [Citation.] However,
“. . . the trial court’s legal conclusions are open to our
examination to determine if errors of law were committed.”
[Citation.] [¶] “Evidence is substantial if any reasonable trier of
fact could have considered it reasonable, credible and of solid
value.” [Citation.] Additionally, a reviewing court “may look to
the findings in [the administrative agency’s] decision for guidance
in determining whether the trial court’s judgment is supported by
substantial evidence.” [Citation.]’ (Lam v. Bureau of Security &
Investigative Services [(1995)] 34 Cal.App.4th [29,] 35-36.)”
(Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786,
796.)
“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. [Citation.] Specifically,
we review the trial court’s factual findings for substantial
evidence. In doing so, we must resolve all conflicts in favor of
[the respondent], the party prevailing below. Further, we cannot
reweigh the evidence. Thus, we do not determine whether
substantial evidence would have supported a contrary judgment,
7
but only whether substantial evidence supports the judgment
actually made by the trial court. [Citations.] In sum, ‘[t]he
question on appeal is whether the evidence reveals substantial
support—contradicted or uncontradicted—for the trial court’s
conclusion that the weight of the evidence supports the [agency’s]
findings of fact. [Citation.] We uphold the trial court’s findings
unless they so lack evidentiary support that they are
unreasonable.’ [Citation.]” (Norasingh v. Lightbourne (2014) 229
Cal.App.4th 740, 753.)
At oral argument, counsel for Yazdi asserted for the first
time that a different standard of review should have applied in
the trial court, based on the California Supreme Court decision in
Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.), which had
been handed down two months before. We gave leave to the
parties to submit further briefing on this question.
After reviewing this decision in light of the further briefing
submitted by the parties, we have concluded that the O.B.
decision is not apposite to the administrative mandate setting we
address here. O.B. addressed the situation where the trial court
was the original finder of fact in a contested proceeding, and the
“clear and convincing” standard of proof applied to particular
findings made by the trial court. O.B. held that “an appellate
court evaluating the sufficiency of the evidence in support of a
finding must make an appropriate adjustment to its analysis
when the clear and convincing standard of proof applied before
the trial court. In general, when presented with a challenge to
the sufficiency of the evidence associated with a finding requiring
clear and convincing evidence, the court must determine whether
the record, viewed as a whole, contains substantial evidence from
which a reasonable trier of fact could have made the finding of
8
high probability demanded by this standard of proof.” (O.B.,
supra, 9 Cal.5th at p. 1005.) The court further emphasized, “an
appellate court reviewing a finding made pursuant to the clear
and convincing standard does not reweigh the evidence itself. In
assessing how the evidence reasonably could have been evaluated
by the trier of fact, an appellate court reviewing such a finding is
to view the record in the light most favorable to the judgment
below; it must indulge reasonable inferences that the trier of fact
might have drawn from the evidence; it must accept the
factfinder’s resolution of conflicting evidence; and it may not
insert its own views regarding the credibility of witnesses in
place of the assessments conveyed by the judgment.” (Id. at
p. 1008, italics added.)
Contrary to Yazdi’s assertion, we do not read the O.B.
decision as overturning the standard to be applied by the trial
court in reviewing an administrative proceeding pursuant to a
petition for writ of administrative mandate under Code of Civil
Procedure section 1094.5. The O.B. case involved an appeal from
a probate proceeding, not an administrative mandate proceeding.
The O.B. decision made no mention of the decades of case law
(including the cases cited earlier) concerning the review to be
made initially in the trial court and subsequently by this court in
the administrative mandate setting. Perhaps most significantly,
the established standards for trial court review of an
administrative proceeding involving a “fundamental vested right”
explicitly call for the trial court to reweigh the evidence in its
independent judgment. (E.g., Green v. Board of Dental
Examiners, supra, 47 Cal.App.4th at p. 796.) This runs contrary
to the language in the O.B. decision that we emphasized above,
stating that the trial court should not reweigh the evidence. In
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sum, we are not persuaded that the O.B. decision intended to
abolish the independent judgment standard in administrative
mandate proceedings, and decline to do so here.
As for the discipline selected by the Dental Board and
affirmed by the trial court, “[i]n a mandamus proceeding brought
to review an administrative order, the determination of penalty
by the administrative body will not be disturbed absent a
showing of an abuse of discretion. (Skelly v. State Personnel Bd.
(1975) 15 Cal.3d 194, 217 . . . ; Magit v. Board of Medical
Examiners (1961) 57 Cal.2d 74, 87 . . . .) The discretion exercised
by the administrative body must be an impartial one taking into
account all relevant facts, together with legal principles essential
to an informed and just decision. (Skelly v. State Personnel Bd.,
supra, . . . at pp. 217-218 . . . ; Catricala v. State Personnel Bd.
(1974) 43 Cal.App.3d 642, 646 . . . .) However, even were the
penalty to appear harsh to us, still we would not be free to
substitute our discretion for that of the administrative body.
(Code Civ. Proc., § 1094.5, subd. (e); Cooper v. Board of Medical
Examiners [(1975)] 49 Cal.App.3d [931,] 950 . . . .) The fact that
reasonable minds might differ as to the propriety of the penalty
imposed fortifies the conclusion that the administrative body
acted within its discretion. (Ibid.; see also Lake v. Civil Service
Commission (1975) 47 Cal.App.3d 224, 288 . . . .)” (Shea v. Board
of Medical Examiners (1978) 81 Cal.App.3d 564, 579.) And,
contrary to Yazdi’s assertion, the severity of the discipline which
may be imposed does not depend on whether patients have been
medically injured by the challenged practices. (Bryce v. Board of
Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1475.)
Yazdi has not followed the above principles in pursuing this
appeal. Yazdi writes in his brief, “We prove below . . . that the
10
grounds for discipline found by the [h]earing [o]fficer did not meet
the ‘clear and convincing’ standard of evidence.” This misses the
point; we are no longer concerned with the quality of evidence at
the administrative hearing. We are addressing whether the trial
court’s decision reviewing the administrative hearing, based on
the trial court’s own independent judgment, was supported by
substantial evidence.
B. Statutory Framework
The disciplinary proceedings against Yazdi proceeded
against the backdrop of three principal statutes.
Business and Professions Code section 1670 provides, in
pertinent part: “Any licentiate may have his license revoked or
suspended or be reprimanded or be placed on probation by the
board for unprofessional conduct, or incompetence, or gross
negligence, or repeated acts of negligence in his or her
profession . . . .”
Business and Professions Code section 1680 provides, in
pertinent part: “Unprofessional conduct by a person licensed
under this chapter is defined as, but is not limited to, any one of
the following: [¶] (a) The obtaining of any fee by fraud or
misrepresentation. [¶] . . . [¶] (n) The violation of any of the
provisions of this division.”
Business and Professions Code section 1685 provides: “In
addition to other acts constituting unprofessional conduct under
this chapter, it is unprofessional conduct for a person licensed
under this chapter to require, either directly or through an office
policy, or knowingly permit the delivery of dental care that
discourages necessary treatment or permits clearly excessive
treatment, incompetent treatment, grossly negligent treatment,
11
repeated negligent acts, or unnecessary treatment, as determined
by the standard of practice in the community.”
Significantly, “[Business and Professions Code s]ection
1680’s statement that unprofessional conduct ‘is not limited to’ its
list of examples means unlisted conduct may be ‘unprofessional
conduct’ subject to discipline. (People v. Arias (2008) 45 Cal.4th
169, 182 . . . [it is a ‘general rule of statutory construction that
“[u]se of the language ‘including, but not limited to’ in the
statutory definition is a phrase of enlargement rather than
limitation” ’]; People v. Williams (2010) 184 Cal.App.4th 142, 147
. . . [the phrase ‘strongly indicates that the categories listed in the
statute were not intended to be exclusive’]; Sanchez v. State of
California (2009) 179 Cal.App.4th 467, 484 . . . [the phrase means
a list is not exclusive].) Moreover, the Legislature’s selection of
the ‘not limited to’ phrase was no accident. The Legislature
inserted the phrase by amendment in 1979, purposefully
expanding the statute’s reach. (Stats. 1979, ch. 653, § 7, p. 2011;
id., ch. 1007, § 5.5, p. 3426 [substituting ‘by a person licensed
under this chapter is defined as, but is not limited to, the
violation of’ for ‘is defined to be’ in the introductory clause of
[Bus. & Prof. Code,] § 1680].)” (Gillis v. Dental Bd. of California
(2012) 206 Cal.App.4th 311, 320, disapproved on other grounds in
Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, fn. 2;
see Shea v. Board of Medical Examiners, supra, 81 Cal.App.3d at
p. 575 [in medical doctor context, interpreting phrase “ ‘but is not
limited to’ ” to allow discipline for unlisted conduct “which
indicates an unfitness to practice medicine,” and concluding there
is no unfairness to discipline respondents in so doing].)
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C. Yazdi’s Contentions on Appeal
In reviewing the trial court’s decision, we start with the
presumption the judgment is correct. (In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133.) An appellant has the
burden to demonstrate error. (Denham v. Superior Court (1970)
2 Cal.3d 557, 564.)
California Rules of Court, rule 8.204(a)(1)(B) provides that
“[e]ach brief must: [¶] . . . [¶] [s]tate each point under a separate
heading or subheading summarizing the point, and support each
point by argument and, if possible, by citation of authority . . . .”
This is important because this court is “not required to make an
independent, unassisted study of the record in search of error or
grounds to challenge a trial court's action. We are entitled to the
assistance of counsel.” (Ellenberger v. Espinosa (1994) 30
Cal.App.4th 943, 948.) Yazdi has not complied with these
requirements here.
In a section of his opening brief entitled “Introduction,”
Yazdi sets out the following grounds of challenge to the trial
court decision denying his petition for writ of administrative
mandate:
“1. The record on appeal lacks substantial evidence
demonstrating that [Yazdi] breached the standard of care in his
treatment of any of the four patients under review.
“2. There was no substantial evidence showing that any of
the four patients was harmed. Indeed, the evidence
demonstrated to the contrary, that no patient was harmed.
“3. The evidence demonstrated that none of the four
patients required any corrective orthodontics after leaving
[Yazdi’s] practice; this again demonstrates a lack of substantial
evidence of patient harm.
13
“4. The purported billing irregularities alleged in the
operative [t]hird [a]mended [a]ccusation were not supported by
substantial evidence.
“5. [Dental Board] failed to prove, with substantial
evidence, any violation of the California Dental Practice Act.”
However, the argument section of Yazdi’s brief does not
follow this outline. Instead, the argument section consists of an
unbroken, discursive commentary on topics from the Dental
Board hearing and decision with no subheadings, only one
citation to authority in 13 pages, and only occasional citations to
the administrative record. There are no citations to the trial
court’s written decision denying Yazdi’s petition, despite the fact
that this appeal is from that trial court decision. There is
virtually no specific discussion providing reasoning as to why this
court, applying the standard of review applicable to this court,
should reverse the trial court’s decision. Nonetheless, we
endeavor below to discern the contentions he seeks to make
before this court.
1. Study Models2
Yazdi opens the “Argument” section of his brief with the
following inaccurate statement: “The Administrative Law Judge
found, and the Superior Court upheld the finding, that [Yazdi]
was subject to discipline for ‘gross negligence,’ because he failed
to take ‘study models’ . . . .” On the contrary, the Dental Board’s
decision states as follows: “Cause does not exist to discipline
2 An orthodontic study model is a three-dimensional model
of a patient’s teeth and gums, taken at the beginning of
treatment, to mimic the patient’s mouth at the time before
treatment begins.
14
respondent’s license under Business and Professions Code
sections 1670, [1680, subdivision (n), and 1685] on the grounds of
gross negligence because complainant did not establish by clear
and convincing evidence that the departure from the standard of
care was sufficiently extreme.” (Italics added.) Apparently Yazdi
previously made the same inaccurate contention to the trial
court, which stated in its ruling, “Contrary to [Yazdi’s] assertion
. . . , the [Dental] Board did not find [Yazdi’s] failure to take study
models was ‘gross negligence,’ rather it found the failure
constituted negligence.”
Addressing this issue, the trial court noted: “The [Dental]
Board found that the standard of care for orthodontists involves
taking study models.” The trial court continued its analysis as
follows:
“Several orthodontists testified as to this issue. Three
([Dr.] Sheridan, [Peter M.] Roth[, D.D.S.], and [John R.]
Dandona[, D.M.D.]) stated that models are required; Yazdi, [Dr.]
Cohen, and Richard Gutierrez[, D.D.S.] stated that they are not.
The [administrative law judge] notes that ‘a survey taken by the
American Association of Orthodontists revealed that one-third of
all orthodontists do not take study models in the regular course of
practice.’ . . . The [administrative law judge] articulated several
reasons why he gave more weight to [Dr.] Sheridan’s opinion
than [Dr.] Cohen’s. . . . Like the [administrative law judge], the
court is persuaded to follow [Dr.] Sheridan. . . . [¶] In his brief,
[Yazdi] cites to [the administrative record] for the evidence that
“about 33[ percent] of all orthodontist[s] choose not to take study
models.” . . . The cited pages of the record do not support that
proposition. The evidence cited is the testimony of [Yazdi’s]
expert in which he refers to ‘the most recent survey’ of the
15
American Association of Orthodontists showing that ‘most don’t
take study models.’ . . . The [administrative law judge] sustained
an objection to the survey being received in evidence. . . . [¶]
[Yazdi] also argues that . . . ‘a large percentage of the remainder
of survey respondents took study models for only “legal
reasons,” [’] and that ‘Dr. Sheridan did not disagree with the
accuracy of the [American Association of Orthodontists] survey
results.’ . . . [Yazdi] points to the same pages in the record . . . to
support these contentions. Again, the cited pages do not contain
this evidence. [¶] [Yazdi] also argues that the textbooks relied
upon by Dr. Sheridan do not support the conclusion that
orthodontists are required to use study models. To support this
assertion, [Yazdi] cites to [the administrative record]. This
citation is to the opening statement made by [Yazdi’s] counsel in
which he purported to read from a textbook. The opening
statement and arguments of counsel are not evidence. [¶] As
noted by the [administrative law judge], Yazdi does not dispute
that he did not use study models for these patients. . . . [¶]
Based on the testimony of the [Dental] Board’s orthodontist
witnesses, and the lack of specific persuasive evidence from
[Yazdi’s] expert, the weight of the evidence supports the finding
that failing to take study models falls below the standard of care.
Accordingly, the [Dental] Board’s findings that Yazdi engaged in
negligent acts flows directly from its finding as to the standard of
care.”
Although Yazdi’s opening brief urges that “the issue of
‘study models’ permeates this entire case, and is perhaps the
most salient cause for the implementation of discipline,” Yazdi’s
argument before this court does not address the trial court’s
analysis and conclusions. Instead, Yazdi appears simply to have
16
repeated the exact same assertions, citing to the exact same
portions of the record, that were rejected by the trial court as set
out above. As noted earlier in the discussion of standard of
review, it is not our task (nor our prerogative) to reweigh the
evidence in the manner Yazdi seeks.
We also do not share Yazdi’s assessment that “the issue of
‘study models’ permeates [the] entire case.” The Dental Board
found (and the trial court upheld) only a single charge of
“repeated acts of negligence” relating to Yazdi’s failure to take
study models at the beginning of treatment. The remainder of
the charges upheld—obtaining fees by fraud or
misrepresentation, failure to comply with record requests and
excessive charges for records, excessive treatment, and refusing
to remove a patient’s braces until an outstanding fee was paid—
have no obvious connection to whether study models were taken.
From our unaided review of the administrative record, we
note that the Dental Board’s orthodontic expert, Dr. Sheridan,
testified for an entire hearing day, June 22, 2017, and for parts of
three additional days, on June 26, 2017, June 27, 2017, and
July 21, 2017. Dr. Sheridan’s initial testimony describing study
models and their importance in orthodontic practice covers more
than 20 pages of transcript. Dr. Dandona, an orthodontist who
subsequently treated patient Connor O., testified that he
considered study models to be “essential” to orthodontic practice.
Both the administrative law judge and the trial court noted
that there was conflicting evidence on the subject of study
models, but concluded that the evidence that failure to take study
models constituted negligence was more persuasive.
Before this court, Yazdi has cited to portions of the
testimony of his retained expert, Dr. Cohen, and others (including
17
Yazdi himself) as to why the taking of study models was not
required if other diagnostic tools were properly used. Yazdi also
emphasizes the administrative law judge’s finding that “[n]o
evidence was presented to show that [Yazdi] failed to make a
correct diagnosis of any of the four patients.” Yazdi argues that
because the administrative law judge “did not point to any
patient harm directly caused by the absence of ‘study models’ ”
this “was, at worst, a ‘no harm, no foul’ situation.”
This argument is unavailing at this stage. First, case law
makes clear that actual patient harm is not required as a
condition to the imposition of discipline on a licensed
professional. “If accepted, this argument would have a serious
implication for license discipline proceedings. In essence, it
would prohibit the imposition of discipline on a licensee until
harm to patients had already occurred. We reject this argument
because it overlooks the preventative functions of license
discipline, whose main purpose is protection of the public (Bryce
v. Board of Medical Quality Assurance, supra, 184 Cal.App.3d at
p. 1476), but whose purposes also include prevention of future
harm (In re Kelley (1990) 52 Cal.3d 487, 496 . . .) . . . .” (Griffiths
v. Superior Court (2002) 96 Cal.App.4th 757, 772, fn. omitted.)
Second, our review of the trial court’s decision is limited to
assessing whether the decision was supported by substantial
evidence. “ ‘ “When an appeal is taken from the trial court’s
determination, it is given the same effect as any other judgment
after trial rendered by the court: the only question is whether the
trial court’s (not the administrative agency’s) findings are
supported by substantial evidence. [Citation.] Conflicts in the
evidence must be resolved in favor of the judgment and where
two or more inferences can be reasonably drawn from the facts,
18
the reviewing court must accept the inferences deduced by the
trial court.” [Citation.]’ ” (Green v. Board of Dental Examiners,
supra, 47 Cal.App.4th at p. 796.) The trial court ruling here was
supported by substantial evidence, and the finding concerning
the failure to use study models must be affirmed.
2. Informed Consent
The administrative law judge made findings that the
failure of Yazdi to obtain informed written consent prior to
treatment of the four young patients fell below the standard of
care. This finding is not expressly referenced in the “Legal
Conclusions” section of the Dental Board decision, but appears to
fall under the general rubric of unprofessional conduct on which
Dental Board’s discipline order was based. In any event, Yazdi
apparently challenged this finding before the trial court, as the
trial court discussed it in its written decision.
Specifically, the court stated: “The [Dental] Board found
that the standard of care required the practice of obtaining
written informed consent. . . . [¶] The weight of the evidence
supports this finding. Dr. Sheridan testified that written
informed consent is required by the standard of care. . . . Though
he testified that written consent is not required by the standard
of care, Yazdi’s expert, Dr. Cohen, admitted that he uses written
consent forms in his own practice. . . . Given this discrepancy
between Dr. Cohen’s expert opinion and his own practice, the
[administrative law judge] was justified in crediting Dr.
Sheridan’s opinion on this issue. [¶] In its decision, the [Dental]
Board found that Yazdi failed to meet this standard by not
obtaining written consent from the patients. . . . But, in
opposition, the [Dental] Board admits that there is a consent
form in Connor’s file. . . . Accordingly, the [Dental] Board’s
19
finding that Yazdi violated the standard of care by not obtaining
written informed consent from Connor is not supported by the
weight of the evidence. [¶] Yazdi has not pointed the court to the
existence of written informed consent for any of the other
patients. . . . Accordingly, the court concludes that the weight of
the evidence supports the [Dental] Board’s conclusions that Yazdi
failed to meet the standard of care by failing to obtain written
informed consent from Stephanie, Christopher, and Irina.”
In his opening brief, Yazdi argues, in substance, that
neither the Dental Board nor the trial court should have given
weight to Dr. Sheridan’s opinion that the standard of care
required informed written consent, and that in any event there
was no evidence that Yazdi had done anything to any child that
the parents or the children did not want him to do. Yazdi states
that “as to all four patients, the evidence showed that they were
each well-informed by Dr. Yazdi.” However, Yazdi does not cite
to anything in the record in support of this claim.
We conclude that the trial court’s decision on this issue was
supported by substantial evidence, and must be affirmed.
3. Issues with Professional Fees
The charges against Yazdi in this category arose because
the parents complained of being billed unexpected (and
unconsented-to) charges by Yazdi. In the case of Connor O.,
Yazdi refused to refund advance payments for work not
performed when the parents chose to move to a different
orthodontist, basing his refusal on a financial agreement that the
parents had neither seen nor signed. In the case of Stephanie
and Christopher M., Yazdi began to charge monthly fees that the
parents did not believe they had ever agreed to, and again no
such signed agreement could be found in the records.
20
The trial court addressed these issues as follows:
“The [Dental] Board found that Yazdi breached the
standard of care by charging Connor for work that was not
performed. . . . Yazdi argues that this finding constitutes a
reversible error because the [t]hird [a]mended [a]ccusation does
not include such a charge. . . . The court does not agree. While
the third cause for discipline charges [Yazdi] with obtaining a fee
by misrepresentation, the second cause for discipline charges that
‘[Yazdi] failed to present and obtain agreement for financial
arrangements prior to starting treatment. The standard of care
is to charge a person for actual work done but instead [Yazdi]
charged Connor O.’s parents based on a document that claimed
they had to forfeit advance fees paid if they stopped treatment
and which the parents were not presented and did not sign.’
Thus [Yazdi] was put on notice of the [Dental] Board’s claim of
charging Connor for work not performed.
“Fees Obtained by Misrepresentation [¶] The Board’s
decision states the following: [¶] 16. The third, eighth, twelfth,
and seventeenth causes of discipline alleged unprofessional
conduct by obtaining fees by misrepresentation or fraud. [¶]
17. Complainant establishes by clear and convincing evidence
that the parents of Connor O., Stephanie M., and Christopher M.
never signed a financial agreement for [Yazdi’s] services. Irina S.
did not sign a financial agreement for Phase I treatment. By
enforcing contractual terms that [Yazdi] withheld from his
patients, [Yazdi] obtained fees by misrepresentation, even if
collected only from insurance carriers. [¶] 18. In the case of
Connor O., [Yazdi] was paid in advance for services anticipated to
span 12 to 18 months. When those services were terminated in
six months, [Yazdi] refused and has yet to return the unearned
21
portion of those fees, notwithstanding a court judgment against
him. [¶] 19. Accordingly, cause exists to discipline [Yazdi’s]
license under Business and Professions Code sections 1670 and
1680, subdivision (a), because [Yazdi] engaged in unprofessional
conduct by obtaining fees by misrepresentation or fraud. . . .
“Business and Professions Code section 1680[, subdivision
](a) states that ‘the obtaining of any fee by fraud or
misrepresentation’ constitutes unprofessional conduct. [Yazdi]
argues that to sustain this charge, the [Dental] Board must
present evidence of a knowingly false representation made to
defendant with the intent to deceive or induce reliance, coupled
with reasonable reliance and damages. While this is certainly
one formulation of fraud, fraud can also be shown by concealment
or nondisclosure of material facts, especially when there is a
fiduciary relationship between the parties. [¶] The elements of
fraud by concealment are ‘(l) That the parties were in a fiduciary
relationship and defendant intentionally failed to disclose certain
facts to plaintiff; 2) that plaintiff did not know of the concealed
facts; 3) that defendant intended to deceive; 4) that had the
omitted information been disclosed, [p]laintiff reasonably would
have behaved differently; 5) that plaintiff was harmed; and
6) that defendant’s concealment was a substantial factor in
causing plaintiff’s harm. (CACI [No.] 1901; see also, e.g.,
Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230,
248.) The wording of the third, eighth, twelfth, fourteenth, and
seventeenth causes of action make it clear that the [Dental]
Board’s theory was failure to disclose and obtain consent to fees
prior to the rendering of services, or withholding copies of the
contracts. [¶] The weight of the evidence presented supports a
conclusion that Connor’s parents were not provided with a
22
financial agreement they saw, signed, or agreed to prior to
treatment that informed them, among other things, that [Yazdi]
would keep 50[ percent] of an unearned fee in the event of
cancellation. . . . Similarly, the weight of the evidence supports a
conclusion that [Yazdi] did not provide the parents of Stephanie
[and] Christopher with a contract to agree to and sign that
informed them of additional charges after two years of
treatment. . . .
“As to Irina, [the Dental Board] argues there was
concealment as to the charges for Phase I treatment. [The
Dental Board] did not provide a record citation to support this
conclusion in their brief, and could not do so when asked at the
hearing. [¶] On the issue of reliance, the [Dental] Board
correctly notes that in the fiduciary context reliance may be
presumed. . . . ‘[A] representation in the context of a trust or
fiduciary relationship creates a rebuttable presumption of
reasonable reliance subject to being overcome by substantial
evidence to the contrary.’ (Edmunds v. Valley Circle Estates
(1993) 16 Cal.App.4th 1290[, 1302].) Put differently, in the
doctor-patient context, where ‘there is a duty to disclose, the
disclosure must be full and complete, and any material
concealment or misrepresentation will amount to fraud sufficient
to entitle the party injured thereby to an action.’ (Bowman v.
McPheeters (1947) 77 Cal.App.2d 795, 801.) [¶] The weight of
the evidence supports a finding of obtaining fees by fraud as to
Connor, Stephanie and Christopher.”
On appeal, Yazdi fails to meaningfully address the points
made by the trial court. He again argues (as he apparently did
before the trial court) that the third amended accusation did not
give him sufficient notice concerning Yazdi’s failure to refund
23
unearned fees paid in advance by the parents of Connor O. We
agree with the trial court’s reasoning that fair notice of this claim
was, in fact, contained in the third amended accusation.
His remaining arguments also lack merit. He contends, for
example, that no fee was obtained by him after Connor O.’s
mother first saw the unsigned financial agreement that
purported to allow Yazdi to keep 50 percent of the total estimated
fee for the full 12 to 18 months of treatment if treatment was
discontinued within the first six months. This, of course, is
beside the point, because Connor’s mother had already paid fully
in advance, and the issue was that she had not agreed to (nor
been aware of) his claim that he was entitled to retain
substantial unearned fees if treatment with him was stopped
early. He also argues that his billing practices should not matter
because some or all of the fees were paid by insurance, rather
than out-of-pocket by these complaining parents. But the Dental
Board’s responsibilities clearly encompass fairness and honesty
in insurance billing as much as amounts billed to parents of the
patients. The fact that an insurance carrier rather than a patient
may have paid Yazdi’s fees does not negate the charge that he
obtained such fees by fraud or misrepresentation.
Particularly troubling is that even after these matters came
to light, Yazdi has apparently continued to withhold the
unearned fees claimed by the parents of Connor O., and has
apparently failed to pay the small-claims judgment they obtained
against him in regard to these fees.
Given that the relationship between Yazdi and his patients
is recognized under California law to be a fiduciary relationship
(Bowman v. McPheeters, supra, 77 Cal.App.2d at p. 800), which
gives rise to a duty to make full and fair disclosure to patients of
24
all facts which materially affect their rights and interests, it is
not unreasonable for the Dental Board to use its disciplinary
process to foster transparency in the financial relationships
between an orthodontist and his patients. The orthodontic
treatment programs involved here ran into thousands of dollars.
The trial court’s rulings concerning Connor O., and
Stephanie and Christopher M. were supported by substantial
evidence, and must be affirmed.
4. Issues with Patient Record Requests
A part of the basis of the original complaints made by the
parents of Connor O. and Stephanie and Christopher M. was
Yazdi’s refusal to make patient records available on request, and
his imposition of extremely high charges for making copies of the
records. Yazdi’s opening brief refers to these matters as
“recordkeeping failures,” but this term does not accurately
describe the problem.
At the time of these events, Health and Safety Code former
section 123110, subdivision (a)3 stated in pertinent part that “any
minor patient authorized by law to consent to medical treatment,
and any patient representative shall be entitled to inspect patient
records upon presenting to the health care provider a written
request for those records and upon payment of reasonable clerical
costs incurred in locating and making the records available.”
Former subdivision (b) also stated that “[a]dditionally, any
patient or patient’s representative shall be entitled to copies of all
or any portion of the patient records that he or she has a right to
3 This statute was amended effective January 1, 2018
(Stats. 2017, ch. 513 (SB 241), § 2; Stats. 2017, ch. 626 (SB 575),
§ 1.5).
25
inspect, upon presenting a written request to the health care
provider specifying the records to be copied, together with a fee to
defray the cost of copying, that shall not exceed twenty-five cents
($0.25) per page or fifty cents ($0.50) per page for records that are
copied from microfilm and any additional reasonable clerical
costs incurred in making the records available.” Former
subdivision (i) stated in pertinent part that “[a]ny health care
provider . . . who willfully violates this chapter is guilty of
unprofessional conduct. . . . The state agency, board, or
commission that issued the health care provider’s professional or
institutional license shall consider a violation as grounds for
disciplinary action with respect to the licensure, including
suspension or revocation of the license or certificate.”
The administrative record contains evidence that Yazdi did
not comply with requests by the parents of Connor O. and
Stephanie and Christopher M. to inspect the records regarding
their children, and that Yazdi imposed a charge of $250 for copies
of Connor O.’s records and $150 per patient for copies of
Stephanie and Christopher M.’s records. Indeed, Yazdi himself
documented the $250 charge for Connor O.’s records, in a letter to
a lawyer assisting Connor O.’s family. These charges are clearly
excessive under Health and Safety Code section 123110, as the
trial court found.
Substantial evidence supports the trial court’s findings
concerning the records requests here, and they must be affirmed.
5. Issues with Treatment of Irina S.
Based on the testimony of Dr. Sheridan (the Dental Board
expert), the Dental Board found, and the trial court affirmed, a
charge that Yazdi had excessively treated patient Irina S., for a
longer period and for a significantly higher cost than should have
26
been required. On appeal, Yazdi makes a number of contrary
factual assertions, but cites only to a portion of his own
testimony, which does not substantiate those assertions.
Substantial evidence supports the trial court’s finding of
excessive treatment.
The Dental Board also found, and the trial court also
affirmed, a charge that at an appointment scheduled for removal
of Irina S.’s braces, Yazdi refused to do the work until a claimed
$800 balance was paid. The trial court pointed to evidence from
testimony of Irina’s mother, and a letter from Yazdi himself to
the Dental Board that confirms this episode. On appeal, Yazdi
seeks to recharacterize these events, but cites to no evidence in
the record except for a letter from Irina’s regular dentist, Edith
Cuevas-Mendoza, D.M.D. that corroborates the Dental Board
finding. Yazdi has failed to demonstrate any ground to disturb
the trial court’s finding on this charge, and we find that it is
supported by substantial evidence.
6. Discipline Imposed
The trial court found that the weight of the evidence
supported the Dental Board’s factual and legal findings, except
for the charge of failure to obtain informed consent as to
Connor O., and obtaining fees by fraud or misrepresentation as to
Irina S. The trial court further found that, in light of the other
charges supported by the weight of the evidence, there was no
reasonable possibility that the Dental Board would have imposed
different discipline in the absence of those two findings.
We agree. The Dental Board’s published disciplinary
guidelines (August 30, 2010) set forth the maximum and
minimum recommended penalties for violations of the statutes
involved here. For Business and Professions Code section 1670
27
(gross negligence, incompetence, repeated acts of negligence), the
maximum penalty is revocation; the minimum penalty is
revocation, stayed, with two years of probation. For Business
and Professions Code section 1680, subdivision (a) (obtaining any
fee by fraud or misrepresentation), the maximum penalty is
revocation; the minimum penalty is revocation, stayed, with five
years of probation. For Business and Professions Code section
1685 (permitting dental care that encourages excessive or
improper treatment), the maximum penalty is revocation; the
minimum penalty is revocation, stayed, with five years of
probation.
In this case, most of the charges that were sustained fall
under the provisions of the guidelines that call for a minimum of
five years of probation as part of a stayed revocation. That
minimum penalty is what the Dental Board imposed and the trial
court affirmed.
“ ‘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. [Citations.]’ ” (Williamson v. Board of
Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347,
quoting Lake v. Civil Service Commission (1975) 47 Cal.App.3d
224, 228.) “ ‘[N]either a trial court nor an appellate court is free
to substitute its own discretion as to the matter; nor can the
reviewing court interfere with the imposition of a penalty by an
administrative tribunal because in the court’s own evaluation of
the circumstances the penalty appears to be too harsh.’ ”
(Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d
961, 966.)
28
On appeal, Yazdi has devoted no part of his opening brief to
a discussion of the discipline imposed by the Dental Board, other
than to lament “the aggressive, inquisitorial nature of the
[Dental] Board’s case against [Yazdi]” and “the vendetta-like
nature of the [Dental] Board’s conduct here.” He argues, “Dr.
Yazdi is now nearing his tenth year of probation for allegations
and findings that the [administrative law judge] found
(1) involved no misdiagnosis[,] (2) harmed no patients, and (3) at
most involved a few thousand dollars in disputed billings, which
have never been proven to have been obtained by
misrepresentation or fraud.”
The probation at issue in this case was imposed as of
December 6, 2017. It was based on findings made by the Dental
Board in 2017, and affirmed by the trial court on independent
review of the weight of the evidence in 2019. We here conclude
that the trial court’s findings are based on substantial evidence.
The Dental Board acted within its discretion to impose the
discipline that it imposed, and we will not disturb the agency’s
decision unless “there is an arbitrary, capricious or patently
abusive exercise of discretion” by the agency. (Brown v. Gordon
(1966) 240 Cal.App.2d 659, 667.) We find no such abuse of
discretion here, particularly where in each case the discipline
imposed reflects the minimum established by the Dental Board
guidelines.
29
DISPOSITION
The judgment of the trial court is affirmed. Respondent
shall recover its costs on appeal.
NOT TO BE PUBLISHED
SINANIAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
30