The opinion
Filed 8/27/18; pub. order 9/21/18 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JAMES C. SHENOUDA, B284738
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS160546)
v.
VETERINARY MEDICAL
BOARD,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Mary H. Strobel, Judge. Affirmed.
Wallace, Brown & Schwartz and George M. Wallace for Plaintiff
and Appellant.
Xavier Becerra, Attorney General, Shawn Paul Cook, Supervising
Deputy Attorney General, and Stephen D. Svetich, Deputy Attorney
General, for Defendant and Respondent.
Dr. James Shenouda, D.V.M., appeals from a judgment of the trial
court denying his petition for writ of administrative mandate. The
court found that the weight of the evidence presented at the
administrative hearing supported the decision of the Veterinary
Medical Board (the Board) imposing disciplinary restrictions on Dr.
Shenouda’s veterinary practice after finding he committed certain
negligent and/or incompetent acts while treating four animal patients.
Dr. Shenouda contends that the trial court erred because the expert
witness complainant Annemarie Del Mugnaio1 (Complainant) presented
at the administrative hearing failed to establish that Dr. Shenouda
breached the applicable standard of care in the practice of veterinary
medicine.2 Dr. Shenouda’s brief on appeal, however, does not provide a
summary of evidence the trial court relied upon in reaching its
determination, let alone a summary of the evidence presented at the
administrative hearing (or even a summary of the findings made by the
administrative law judge, which were adopted by the Board), nor does
he provide any analysis, with citations to the record, to support many of
his specific assertions regarding the state of the evidence. Therefore, he
has forfeited his contentions on appeal and we need not consider them.
Nevertheless, we have reviewed the evidence cited by the trial court
1 Complainant brought the administrative action against Dr. Shenouda
in her official capacity as “the Executive Officer of the Veterinary Medical
Board, Department of Consumer Affairs.”
2 Dr. Shenouda did not challenge in the trial court, and does not
challenge here, the Board’s findings that he failed to comply with California
recordkeeping requirements.
2
(and, to the extent Dr. Shenouda has provided specific citations, we also
have reviewed that evidence), and we conclude that substantial
evidence supports the trial court’s findings. Accordingly, we affirm the
judgment.
BACKGROUND
Dr. Shenouda was issued a veterinarian license by the Board in
2010. In May 2014, Complainant brought an accusation against Dr.
Shenouda alleging 11 causes for discipline related to his treatment of
four animal patients.
A. The Accusation
1. Austin
The first three causes for discipline related to Dr. Shenouda’s
treatment of Austin, an eight-year-old Golden Retriever, in 2011.
Austin’s owner brought him to Colima Animal Hospital (Colima) on
April 27, 2011, due to Austin’s lethargy, loss of appetite, and vomiting.
Dr. Shenouda conducted a physical exam and found that Austin was
dehydrated, and had pale gums and a yellowish tinge to his eyes. He
performed diagnostic tests, including a complete blood count, chemistry
panel, urinalysis, and abdominal X-rays, and made a presumptive
diagnosis of anemia. Austin was admitted to Colima for overnight
treatment and care, although Colima was closed and had no staff in
attendance between the hours of 7:00 p.m. and 7:00 a.m. Laboratory
tests on the morning of April 28 showed that Austin was severely
anemic. Austin died sometime during the evening of April 28. When
3
Austin’s owner came to visit Austin at Colima at 7:15 a.m. on April 29,
he was told by staff that Austin was “found dead.”
a. First Cause for Discipline
The first cause for discipline alleged that Dr. Shenouda was
incompetent in his treatment of Austin in four ways.
First, he failed to properly care for Austin during hospitalization.
Austin was severely ill and needed close monitoring, which Dr.
Shenouda failed to provide (it appeared that Dr. Shenouda did not
examine Austin during the hospitalization), and he did not
communicate to the owner the limits of care available at Colima.
Second, he committed several incompetent acts related to the
treatment given to Austin. He failed to recognize that Austin’s anemia
was life-threatening and failed to promptly address that condition with
steroid medication. He failed to recognize the effect on Austin’s red
blood cell count of giving Austin large amounts of intravenous fluids
and/or failed to re-check Austin’s red blood cell count. He
inappropriately used Atropine (a pre-anesthetic used to treat slow heart
rate) on Austin. Finally, the medical records for Austin failed to show
how often Austin received treatment, from whom, and what occurred
during the time periods when Colima was closed.
Third, Dr. Shenouda committed several incompetent acts related
to diagnostic testing. Although he collected samples from Austin the
morning of April 27, he unreasonably delayed getting the results
because he chose not to perform any laboratory tests in-house and he
did not submit the samples to an outside laboratory until April 28.
4
Although the X-rays taken on April 27 showed that Austin’s liver and
spleen were enlarged, he failed to recommend that an abdominal
ultrasound be performed. It also was unclear from the medical records
that he actually looked at the X-rays; he sent them to a radiologist for
evaluation on April 29, after Austin died. The medical records did not
show that the laboratory results or X-rays were ever discussed with
Austin’s owner. Finally, he failed to perform additional diagnostic tests
that should have been performed.
Fourth, Dr. Shenouda failed to fully explain to Austin’s owner the
seriousness of Austin’s condition, or to discuss with the owner the
options for treatment, including hospitalizing Austin at a facility with
24-hour care.
b. Second Cause for Discipline
The second cause for discipline alleged that Dr. Shenouda was
negligent in his treatment of Austin for the reasons set forth in the first
cause for discipline, and because he failed to competently document his
treatment of the patient. Those failures to document included his
failure to sign or initial entries, perform or document a complete history
of the patient, perform or document a complete physical examination of
the patient, document the treatment plan, and include a
comprehensible assessment of the patient’s condition or prognosis, all of
which are required under California regulations governing veterinary
practice.
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c. Third Cause for Discipline
The third cause for discipline alleged that Dr. Shenouda failed to
comply with statutory recordkeeping requirements.
2. Brick
The next three causes for discipline were based upon Dr.
Shenouda’s treatment of Brick, a seven-year-old Old English Bulldog, in
June 2010. Brick’s owner brought him to Colima for evaluation of a
limp in his right hind leg and skin problems. Brick became aggressive
during the initial examination. Although there was no indication in the
medical records that Dr. Shenouda asked the owner whether Brick had
eaten before he was brought in for treatment, Dr. Shenouda
recommended that Brick be sedated for the examination and treatment;
the owner agreed. Brick was given a sedative and was intubated.
During the examination, Dr. Shenouda noticed that Brick had harsh
lung sounds, so he took a chest X-ray to assess the lungs; the X-ray
showed changes to the lungs. Dr. Shenouda treated Brick’s skin issues
and Brick was allowed to recover from sedation. Brick’s owner
subsequently reported in a written complaint to the Board that Brick
had trouble walking and his health deteriorated after the treatment at
Colima.
a. Fourth Cause for Discipline
The fourth cause for discipline alleged that Dr. Shenouda acted
incompetently in his treatment of Brick in four ways.
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First, Dr. Shenouda acted incompetently with regard to his
sedation of Brick. He failed to inform Brick’s owner of the general risks
of sedation, especially the unique problems and risks associated with
sedation of an Old English Bulldog, which is a respiratory compromised
breed of dog known to be extremely prone to airway compromise and
respiratory distress, especially when sedated or anesthetized. He did
not intubate Brick until 30 minutes after the sedative was
administered, and there was no indication in the medical record that
Brick was placed on oxygen while intubated. Although there was a risk
that Brick would vomit and aspirate stomach content into his lungs if
he had eaten before being sedated, there was no indication in the
medical records that Dr. Shenouda ascertained when Brick had last
eaten before the sedative was administered. Dr Shenouda also failed to
consider alternative strategies for managing Brick’s temperament
problems (such as muzzling him or using oral sedation), given the
unique problems with sedating Old English Bulldogs.
Second, Dr. Shenouda inaccurately read the chest X-ray, missing
the indications of aspirational pneumonia, and failed to inform Brick’s
owner of the X-ray findings.
Third, although Brick was brought to Colima for, in part, a limp in
his right hind leg, there was no indication in the medical record that Dr.
Shenouda examined Brick’s leg or tried to determine why Brick was
limping.
Fourth, Dr. Shenouda prescribed two powerful steroids to treat
Brick’s skin problems that were contraindicated by other exam findings.
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He also failed to record Brick’s weight, which would be required to
ascertain accurate dosages.
b. Fifth Cause for Discipline
The fifth cause for discipline alleged that Dr. Shenouda was
negligent in his treatment of Brick for the reasons set forth in the
fourth cause for discipline and for his failure to comply with certain
regulations governing the practice of veterinary medicine. Those
failures were alleged to be Dr. Shenouda’s failure to: (1) obtain Brick’s
owner’s informed written consent for Brick to be sedated; (2) obtain and
record Brick’s weight on Brick’s medical chart, which would be required
to competently calculate the correct dosage of the sedative used; and (3)
competently document his treatment of Brick.
c. Sixth Cause for Discipline
The sixth cause for discipline alleged that Dr. Shenouda failed to
comply with statutory recordkeeping requirements.
3. Roxy
The seventh, eighth, and ninth causes for discipline were related
to Dr. Shenouda’s treatment of Roxy, a five-year-old Boston Terrier, in
August 2011. Roxy’s owner took Roxy to Colima on August 18, 2011
because of a broken toenail. Dr. Shenouda performed a physical
examination, then placed Roxy under general anesthesia and removed
the nail. Roxy’s limb was bandaged and her owner was given after-care
instructions. The owner brought Roxy back to Colima on August 24,
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complaining about the appearance of Roxy’s toe and that Roxy was in
pain. Dr. Shenouda put Roxy under local anesthesia and placed two
sutures in the nail bed to facilitate better healing; the toe healed
without further complications. Upon review of the case records, there
appeared to be numerous inconsistencies between what appeared in the
handwritten medical records for Roxy and what appeared in the
typewritten records, and between what Dr. Shenouda told the owner
about his treatment of Roxy and the treatment he actually rendered.
a. Seventh Cause for Discipline
The seventh cause for discipline alleged that Dr. Shenouda was
negligent in his treatment of Roxy because he failed to competently
document the care given to Roxy. It alleged that his hand-written and
the typed versions of Roxy’s records differed in multiple significant
instances, and it was unclear which version was accurate. It also
alleged that Dr. Shenouda failed to include the names or initials of the
veterinarian responsible for the medical entries, and that the identity of
the animal being treated was missing from several of the medical record
sheets. Finally it alleged that the anesthesia record (which was
undated) did not indicate who administered the medications, how Roxy
was induced, and whether she was monitored throughout the anesthetic
procedures; it also failed to note that the blood work performed before
the anesthesia was normal.
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b. Eighth Cause for Discipline
The eighth cause for discipline alleged that Dr. Shenouda was
incompetent in his treatment of Roxy for the reasons stated in the
seventh cause for discipline, and for two other reasons. First, Dr.
Shenouda failed to produce an accurate and consistent surgical report
detailing what occurred during the initial surgery on August 18.
Second, Dr. Shenouda failed to clearly and accurately document the
medications he dispensed to Roxy, resulting in records that were
inconclusive as to what drugs, in what quantities, were dispensed.
c. Ninth Cause for Discipline
The ninth cause for discipline alleged that Dr. Shenouda failed to
comply with statutory recordkeeping requirements.
4. Shannon
The tenth and eleventh causes for discipline related to Dr.
Shenouda’s treatment of Shannon, an 11 week old kitten, in July 2010.
Shannon was brought to Colima for spay surgery. Dr. Shenouda
performed the surgery under general anesthesia and discharged
Shannon later that day. When the owner picked Shannon up from
Colima, she noticed that Shannon was having difficulty breathing and
that her “stomach” area was swollen. Two days later, the owner took
Shannon to a different veterinarian, who diagnosed Shannon as having
air in her stomach and intestines and a large hernia at the surgery site.
That veterinarian treated Shannon with antibiotics and performed
10
surgery the following day to correct the hernia. Shannon died of cardiac
and pulmonary arrest shortly after that surgery was completed.
a. Tenth Cause for Discipline
The tenth cause for discipline alleged that Dr. Shenouda was
negligent in his treatment of Shannon in two ways. First, his physical
examination of Shannon before the surgical procedure was inadequate
because he failed to perform a systems-wide evaluation. Second, Dr.
Shenouda’s documentation of the anesthetic procedure was inadequate
in that he failed to note who administered the induction agent, whether
Shannon was monitored throughout the procedure, and how much of
each anesthetizing drug she received.
b. Eleventh Cause for Discipline
The eleventh cause for discipline alleges that Dr. Shenouda failed
to comply with statutory recordkeeping requirements.
B. The Administrative Hearing and Decision
A hearing on the accusation was held before an administrative
law judge (the ALJ) over two days. Before the hearing, Dr. Shenouda
and Complainant entered into a written stipulation regarding some of
the allegations of the accusation and the exhibits. Among other things,
Dr. Shenouda stipulated that he did not dispute or contest the
allegations set forth in the recordkeeping violation causes for discipline
(the third, sixth, ninth, and eleventh causes for discipline). With regard
to the negligence and incompetence causes for discipline (the first,
11
second, fourth, fifth, seventh, eighth, and tenth causes for discipline), he
stipulated that he did not dispute or contest the background factual
allegations regarding what happened to each of the animals at issue.
He and Complainant also stipulated to the relevance of and foundation
for several exhibits. Those exhibits included the consumer complaints
filed by each of the owners of the animals at issue, the Board’s
“complaint review worksheet” for each animal (each of which included
an evaluation and findings by consultant Beth M. Parvin, D.V.M.), the
patient records for each of the animals, and the report of Complainant’s
expert witness, Dr. David Robbins, for each of the animals.
The only testimony presented at the administrative hearing was
from Complainant’s expert witness, Dr. David Robbins, a licensed
veterinarian who testified as to the acts alleged in the accusation and
opined that they demonstrated negligence and/or incompetence, and
from Dr. Shenouda. Following the presentation of the testimony, the
parties submitted written closing arguments.
The ALJ issued a lengthy proposed decision that included detailed
factual findings and concluded that cause existed to discipline Dr.
Shenouda’s veterinarian license under each of the causes for discipline
alleged in the accusation.3 The ALJ concluded that Complainant met
her burden of proof to prove her case by clear and convincing evidence
to a reasonable certainty, finding that her expert witness “reviewed the
evidence in each case thoroughly and testified credibly in support of his
3 For each cause for discipline, the ALJ set forth which factual findings
supported that cause.
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analyses and conclusions.”4 The ALJ also noted that “[a]t the hearing,
[Dr. Shenouda] did little to counter the ‘truth’ of the evidence
Complainant presented. In two cases, [Dr. Shenouda] attributed
responsibility for the poor outcomes on the pets’ owners. In two other
cases, [Dr. Shenouda] presented no evidence. [Dr. Shenouda] did not
provide expert witness testimony regarding the applicable standards
[of] practice, and whether [he] met, or departed from, those standards,
in any of the four cases.” The ALJ ordered that Dr. Shenouda’s
veterinarian license be revoked, that the revocation be stayed, and that
Dr. Shenouda be placed on probation for five years under certain terms
and conditions, including a 90-day suspension from the practice of
veterinary medicine.
The Board accepted and adopted the ALJ’s proposed decision as
the decision of the Director of the Department of Consumer Affairs,
Veterinary Medical Board.
C. The Petition for Writ of Administrative Mandate and
Trial Court Decision
Dr. Shenouda filed a petition for writ of mandate in the trial court,
contending that the Board’s decision was invalid, in whole or in part,
because (1) there was no cause shown for imposition of any discipline as
to some or all of the violations charged; (2) the Board’s findings were not
4 In contrast, the ALJ found that Dr. Shenouda’s testimony regarding
what he did in treating Austin and how he kept Austin’s owner informed
“was not credible.”
13
supported by the weight of the evidence or by any substantial evidence;
and (3) the penalties imposed by the Board were excessive as a matter
of law.
In his brief filed in support of his petition, Dr. Shenouda
challenged on two grounds Dr. Robbins’ expert testimony as a whole.
First, he contended that Dr. Robbins applied an incorrect standard in
his opinions regarding Dr. Shenouda’s alleged negligence, asserting
that Dr. Robbins based his opinions upon what he (Dr. Robbins) would
do in his own practice rather than basing them upon whether Dr.
Shenouda’s conduct was within the standard of practice in the
community. Second, he contended that Dr. Robbins applied an incorrect
definition of incompetence and failed to distinguish between negligence
and incompetence.
Dr. Shenouda also asserted that incompetence was not established
because Dr. Robbins’ conclusions regarding which acts constituted
incompetence were not identical to the acts identified by Dr. Parvin (the
Board’s internal reviewer) as constituting incompetence, and therefore
the evidence of incompetence necessarily was not clear and convincing.
Finally, Dr. Shenouda purported to challenge the Board’s conclusions
regarding each of the negligence causes for discipline. He did not,
however, identify any particular factual finding he was challenging.
Indeed, he did not even set forth any of the factual findings. In fact,
throughout his brief he provided very little description of the evidence
14
produced at the hearing, and few citations to the specific evidence he
was contesting.5
Despite Dr. Shenouda’s failure to provide more than a few
citations to the record in support of his arguments, the trial court
carefully reviewed the record under the independent judgment test
(citing Bixby v. Pierno (1971) 4 Cal.3d 130 (Bixby); Morrison v. Housing
Authority of the City of Los Angeles Bd. of Comrs. (2003) 107
Cal.App.4th 860; and Fukuda v. City of Angels (1999) 20 Cal.4th 805
(Fukuda)), and addressed all of his arguments.
First, the court rejected Dr. Shenouda’s argument that Dr.
Robbins applied an incorrect standard of care with regard to his
negligence opinions. The court cited to specific evidence and testimony
demonstrating that Dr. Robbins was well aware that negligence
requires “‘a departure from the standard of practice in the community,’”
and that he applied that definition in opining that Dr. Shenouda was
negligent.
Second, the court found that the definition of incompetence that
Dr. Robbins relied upon was consistent with California law. With
regard to Dr. Shenouda’s contention that Dr. Robbins did not
distinguish between negligence and incompetence, the court first noted
that Dr. Shenouda did not cite any evidence to challenge the specific
fact findings on which the incompetence counts were based. The court
5 Dr. Shenouda conceded in his brief that the Board’s findings related to
the four recordkeeping counts for discipline were supported by the record, but
argued that the discipline imposed was based primarily on the other counts.
15
also noted that Dr. Shenouda had raised the same issue in the
administrative proceedings, and the Board rejected Dr. Shenouda’s
argument, finding that Dr. Robbins “ably described each instance of
alleged negligence or incompetence in the context of the care and
treatment required, and explained the medical purposes relevant to
each act or omission alleged. He also credibly explained that he could
have determined some of [Dr. Shenouda’s] alleged acts or omissions to
amount to either negligence or incompetence. This was not because he
did not know the difference between negligence and incompetence, but
because for an expert, such determinations sometimes require a close
‘judgment call.’” The court found persuasive the Board’s reasoning on
this issue.
With regard to Dr. Shenouda’s contention that the disagreements
between Dr. Robbins and Dr. Parvin regarding which acts constituted
incompetence precluded a finding of incompetence, the court found that
the fact that the two veterinarians disagreed as to the specific acts was
not dispositive. The court also noted that Dr. Shenouda provided no
analysis of the specific alleged disagreements, provided no citations to
the record identifying those alleged disagreements, and did not
persuasively explain why his alleged acts or omissions in the four cases
could not support a finding of incompetence.
Finally, the court addressed Dr. Shenouda’s challenge to the
negligence findings in each of the four cases. With regard to the cases
involving Austin and Brick, the court noted that Dr. Shenouda failed to
identify which of the Board’s specific fact findings or legal conclusions
he was challenging. The court then cited to evidence supporting a
16
negligence finding as to each case, and concluded that Dr. Shenouda
“fail[ed] to show, by citation to the record, that the Board’s findings of
negligence . . . are not supported by the weight of the evidence.” With
regard to Roxy, the court noted that Dr. Shenouda argued that Dr.
Robbins did not find any deviation from the standard of care other than
Dr. Shenouda’s recordkeeping. But the court observed that the Board’s
finding of negligence in Roxy’s case was based upon Dr. Shenouda’s
failure to keep accurate and consistent medical records, and Dr.
Robbins’ testimony (which the court cited) supported the Board’s
finding. Finally, with regard to Shannon’s case, the court found that
Dr. Shenouda failed to show a prejudicial abuse of discretion by arguing
that there was no evidence of negligence “apart from recordkeeping
issues.” The court found that “[i]nadequate recordkeeping was a major
part of the findings as to Shannon,” and Dr. Shenouda’s record citations
did not undermine the Board’s finding that he failed to perform or
document that he conducted a physical examination of Shannon before
proceeding with anesthesia and surgery.
The court entered judgment denying Dr. Shenouda’s petition for
writ of mandate, from which Dr. Shenouda timely filed a notice of
appeal.
DISCUSSION
On appeal, Dr. Shenouda makes the same arguments he made in
the trial court. The Board contends that Dr. Shenouda forfeited his
arguments on appeal because he failed to meet his burden to show, by
setting out the facts adduced below with citations to the record, that no
17
substantial evidence supports the trial court’s finding that the weight of
the evidence supported the Board’s license discipline decision. We
agree. Indeed, in both the trial court and in this court, Dr. Shenouda
has demonstrated a lack of appreciation for the standards of review of
an administrative decision in the trial court and the appellate court.
A. Standards of Review
On review of an administrative determination suspending a
professional license, the trial court exercises its independent judgment
on both the facts and the law in determining whether the weight of the
evidence supports the administrative decision. (Fukuda, supra, 20
Cal.4th at p. 811; Drummey v. State Bd. of Funeral Directors (1939) 13
Cal.2d 75, 85 (Drummey).) However, “‘[t]he findings of a board where
formal hearings are held . . . come before the courts with a strong
presumption in their favor based primarily on the [rebuttable]
presumption contained in . . . [Evidence Code section 664] “[t]hat official
duty has been regularly performed.” Obviously, considerable weight
should be given to the findings of experienced administrative bodies
made after a full and formal hearing, especially in cases involving
technical and scientific evidence.’” (Fukuda, supra, 20 Cal.4th at p. 812,
quoting Drummey, supra, 13 Cal.2d at p. 86.)
“[T]he party challenging the administrative decision [in the trial
court] bears the burden of convincing the court that the administrative
findings are contrary to the weight of the evidence.” (Fukuda, supra, 20
Cal.4th at p. 817; see also Sipper v. Urban (1943) 22 Cal.2d 138, 144
18
[“the burden shall rest upon the petitioner to support his challenge
affirmatively, competently, and convincingly”] (conc. opn. of Schauer,
J.), cited with approval in Fukuda, at p. 814.) Thus, the challenger has
not only the burden of production -- which is satisfied by producing a
complete record of the administrative hearing (Fukuda, supra, 20
Cal.4th at p. 821, fn. 14) -- but also the burden of proof or persuasion.
(Id. at p. 820.)
On appeal, the appellate court reviews the trial court’s ruling
under the substantial evidence test, “[e]ven when, as here, the trial
court is required to review an administrative decision under the
independent judgment standard of review.” (Fukuda, supra, 20 Cal.4th
at p. 824.) Our focus is on the trial court’s findings. (Bixby, supra, 4
Cal.3d at pp. 143-144, fn. 10.) “[O]ur function on appellate review is
solely to decide whether credible, competent evidence supports that
court’s judgment.” (Yakov v. Board of Medical Examiners (1968) 68
Cal.2d 67, 69.) If the record contains facts to support that judgment, we
must affirm. (Ibid.)
Because judgments of the trial court are presumed to be correct,
the appellant bears the burden to affirmatively demonstrate error, and
must show that the error was prejudicial. (Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881 (Foreman) [the appellate court “‘starts
with the presumption that the record contains evidence to sustain every
finding of fact’”]; In re Marriage of Behrens (1982) 137 Cal.App.3d 562,
575 [“‘The burden is on the appellant, not alone to show error, but to
show injury from the error’”].)
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B. Dr. Shenouda Failed to Meet His Burden in the Trial Court
It is clear from our discussion of the standard of review in the trial
court that a person challenging in the trial court the orders of a
licensing board in a disciplinary proceeding cannot simply present the
court with the administrative record and assert, without analysis or
specific citations to the record, that the board’s orders were against the
weight of the evidence. Instead, the challenger must identify (with
citations to the record) the factual findings made by the board that he or
she is challenging and demonstrate (with citations to the record) why
those factual findings were against the weight of the evidence. Of
course, when (as in the present case) the challenger has a general
objection, such as that the expert witness used an incorrect standard
when forming opinions regarding negligence or used an incorrect
definition of incompetence, he or she may be excused from identifying
the specific factual findings being challenged (since such objections
would apply to all negligence or incompetence findings). But the
challenger still has the burden to show, through citations to the record,
that the expert did in fact use an incorrect standard or definition. And
in doing so, the challenger cannot simply ignore the evidence in the
record that was relied upon by the board in finding that the correct
standard or definition was applied. Rather, the challenger must
explain why that evidence is insufficient to support that finding.
In the present case, as the trial court noted, Dr. Shenouda failed
to identify the factual findings he was challenging and provided few
citations to the administrative record to support his argument that the
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weight of the evidence did not support the Board’s decision. He also
ignored the evidence in the administrative record that the Board
expressly relied upon in concluding that Dr. Robbins applied the correct
standard in forming his opinions regarding negligence and the correct
definition in forming his opinions regarding incompetence.
Nevertheless, despite Dr. Shenouda’s failure to meet his burden of
proof and persuasion (Fukuda, supra, 20 Cal.4th at p. 820), the trial
court independently examined the administrative record and
determined, in a detailed ruling that included citations to the record,
that the weight of the evidence supported the Board’s decision.
C. Dr. Shenouda Failed to Meet His Burden on Appeal
As noted, on appeal from a judgment denying a petition for writ of
administrative mandate, the focus is on the trial court’s findings and
whether there is substantial evidence to support those findings
(Fukuda, supra, 20 Cal.4th at p. 824; Bixby, supra, 4 Cal.3d at pp. 143-
144, fn. 10), and the trial court’s judgment is presumed correct
(Foreman, supra, 3 Cal.3d at p. 881). As in all appeals, the appellant
has burden to show, through analysis and citation to the record, that no
substantial evidence supports the court’s findings.
“‘The appellate court is not required to search the record on its
own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an
argument with the necessary citations to the record, . . . the argument
[will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246.) In addition, when the
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substantial evidence standard of review applies, the appellant is
required “‘to demonstrate that there is no substantial evidence to
support the challenged findings.’ . . . A recitation of only [the
appellant’s] evidence is not the ‘demonstration’ contemplated under the
above rule. [Citation.] Accordingly, [when appellants] contend [that]
‘some particular issue of fact is not sustained, they are required to set
forth in their brief all the material evidence on the point and not merely
their own evidence. Unless this is done the error assigned is deemed to
be waived.’” (Foreman, supra, 3 Cal.3d at p. 881.)
Dr. Shenouda failed to address, let alone meet, his burden in this
appeal. In fact, he filed an appellant’s opening brief in this court that is
an almost verbatim copy of the brief he filed in the trial court. The only
differences between the two briefs are that he added (1) a short (two
paragraph) introduction that explains that the appeal is taken from the
judgment of the trial court, which Dr. Shenouda contends was made in
error; (2) a short (three paragraph) summary of the proceedings in the
trial court; (3) an expanded legal discussion regarding the appropriate
standard of care for an expert veterinarian to apply when forming
opinions regarding negligence; (4) an expanded footnote regarding
whether Dr. Robbins was engaged in “speculation” when he assumed
that Dr. Shenouda treated Austin;6 (5) a three-sentence discussion (with
a citation to the record) of Dr. Robbins’ testimony that he did not know
6 This is a curious addition, given that Dr. Shenouda stipulated that he
did not dispute the factual allegations regarding Austin, which included that
he treated Austin.
22
when or how Austin died;7 (6) a citation to his testimony about what he
advised Austin’s owner to do and the owner’s response;8 (7) a sentence
(with a citation to the record) stating that Dr. Robbins acknowledged
that there was no way to know whether Brick suffered any harm due to
aspiration pneumonia;9 and (8) a citation to the record to support Dr.
Shenouda’s assertion with regard to Shannon that “[a]part from
recordkeeping issues, no actual negligence was identified and no harm
was attributed to any negligence on Dr. Shenouda’s part in terms of
care he did or did not provide.”
Because his appellant’s opening brief is a virtual copy of his brief
in the trial court, it is unsurprising that Dr. Shenouda does not address
the trial court’s findings. Indeed, he makes no mention of the trial
court’s findings other than to note the court adopted a lengthy tentative
ruling as its order and denied his writ of mandate. He does not explain
7 This discussion relates to Dr. Shenouda’s assertion that there was no
showing that his treatment caused Austin’s death, and therefore there could
be no finding of negligence. However, actual harm to the patient and
causation are not required to be shown in a license disciplinary proceeding
because the purpose of such proceedings is to protect the public by imposing
discipline before the licensee causes actual harm. (See, e.g., Griffiths v.
Superior Court (2002) 96 Cal.App.4th 757, 772; Kearl v. Board of Medical
Quality Assurance (1986) 189 Cal.App.3d 1040, 1053; Bryce v. Board of
Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1475.)
8 Dr. Shenouda fails to acknowledge that the Board expressly found the
cited testimony was not credible.
9 But see footnote 7, ante.
23
why the evidence cited by the trial court does not support its findings.10
In short, he failed to sustain his burden on appeal and thus has
forfeited his assignment of error. (Foreman, supra, 3 Cal.3d at p. 881;
Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.)
DISPOSITION
The judgment is affirmed. The Veterinary Medical Board shall
recover its costs on appeal.
WILLHITE, J.
We concur:
MANELLA, P. J.
MICON, J.*
10 In fact, we have examined that evidence and conclude that it does
support the trial court’s findings.
*Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
24
Filed 9/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JAMES C. SHENOUDA, B284738
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS160546)
v.
VETERINARY MEDICAL BOARD, ORDER GRANTING
PUBLICATION
Defendant and Respondent.
THE COURT:*
The opinion in the above-entitled matter filed on August 27, 2018,
was not certified for publication in the Official Reports. Good cause
appearing, it is ordered that the opinion in the above entitled matter be
published in the official reports.
*WILLHITE, Acting P. J. MICON, J.**
**Judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
25