The opinion
Filed 3/10/22 Ni v. Board of Registered Nursing CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION THREE
WENSHI NI,
Plaintiff and Appellant,
v. A163171
BOARD OF REGISTERED (Alameda County
NURSING, Super. Ct. No. RG20063543)
Defendant and Respondent.
As a result of proceedings before the Board of Registered Nursing
(the Board), Wenshi Ni’s (Ni) license as a registered nurse was revoked,
the revocation was stayed, and Ni’s license was placed on probation for
five years subject to certain terms and conditions. Ni challenged the
Board’s decision by way of petition for writ of administrative mandate,
which was denied. Ni now appeals that denial, and we affirm.
FACTS
A. Background
On August 23, 2006, the Board issued a registered nurse license
to Ni. She worked at a hospital from March 2007 until March 2015,
when her license was temporarily suspended pending the investigation
and prosecution of alleged criminal conduct associated with her
ownership and management of five massage parlors.
Between October 2013 and April 2014, the Alameda County
Sheriff’s Office conducted an undercover operation targeting suspected
prostitution activity at Ni’s massage parlors. As a result of the police
operation, Ni was arrested and the Alameda County District Attorney
filed an information charging her with 32 counts, including the several
felony offenses for pimping and pandering (Pen. Code, §§ 266j, 266i),
and several tax-related offenses including failing to file a return or
report with the intent to evade unemployment insurance taxes for
massage therapists working in her establishments with the intent to
evade taxes (Unemp. Ins. Code, § 2117.51).
On June 9, 2015, pursuant to a plea agreement, Ni pleaded no
contest to violating Unemployment Insurance Code section 2117.5, as a
felony offense; in exchange, the remaining charges were dismissed.
The trial court suspended imposition of sentence and placed Ni on
formal criminal probation for five years under specified terms and
conditions, including that she was not to own or manage any
establishment that provided massage services.
According to Ni, in August 2015, she submitted to the Board
documentation regarding her felony conviction. Thereafter, the Board
ended the temporary suspension and reinstated Ni’s nursing license.
Eighteen months later, on January 6, 2017, Ni was arrested for
violating her criminal probation based on an allegation that she was
1 Unemployment Insurance Code section 2117.5 reads: “Any
person who, within the time required by this code, willfully fails to file
any return or report, or to supply any information with intent to evade
any tax imposed by this code, or who, willfully and with like intent,
makes, renders, signs, or verifies any false or fraudulent return, report,
or statement or supplies any false or fraudulent information, is
punishable by imprisonment in the county jail not to exceed one year,
or in the state prison, or by a fine of not more than twenty thousand
dollars ($20,000), or both the fine and imprisonment, at the discretion
of the court.” The section defines a wobbler offense.
2
providing massage therapy services at a location that previously
housed one of her massage parlors. On March 1, the trial court found
Ni had violated her criminal probation, and she was sentenced to 112
days in county jail with credit for time served of 112 days. Her
criminal probation was reinstated with additional conditions, including
that she not obtain a massage license and not provide “any sort of
massage”.2
1. June 1, 2017 Accusation and April 2018 Board
Decision to Revoke License
On June 1, 2017, the Board served and filed an accusation, later
amended, seeking revocation of Ni’s license. The accusation was based
on allegations that Ni “is subject to disciplinary action under sections
2761, subdivision (f) and 490” of the Business and Professions Code3,
“in that she was convicted of a felony substantially related to the
qualifications, functions, and duties of a registered nurse” (first cause
for discipline), and she “is subject to disciplinary action under section
2761, subdivision (a), in that she engaged in unprofessional conduct”
based on her ownership and operation of massage parlors where she
and her employees were engaged in prostitution-related activity
(second cause for discipline) (§ 2761, subd. (a)). Ni filed a notice of
defense and requested a hearing before an administrative law judge
(ALJ).
2 After reinstatement of criminal probation, as of April 2017 Ni
was working at a skilled nursing facility providing care for elderly
clients. Her license was set to expire on October 31, 2019, unless
renewed.
3 All undesignated statutory references are to the Business &
Professions Code.
3
At the December 6, 2017 hearing, the ALJ considered various
documents submitted by the Board, as well as the testimony of Ni and
the Board’s expert witness on the qualification, functions, and duties of
a nurse.
On April 19, 2018, the Board, having adopted the ALJ’s proposed
decision and recommendation, revoked Ni’s license based on her felony
conviction and violation of criminal probation, and for unprofessional
conduct. The revocation was made effective as of May 18, 2018.
The ALJ’s proposed decision recites the following factual findings
and legal conclusions based on the first cause for discipline – Ni’s
criminal conviction and violation of criminal probation.
a. Factual Findings
Ni testified that the massage therapists were independent
contractors (not employees) that leased space in her establishments to
provide massage services. Based on advice from her tax
preparer/accountant that the massage therapists were not her
employees, she did not collect and/or pay unemployment insurance
taxes. She pleaded no contest to a violation of Unemployment
Insurance Code section 2117.5 because prosecutors agreed to dismiss
all other charges against her and to dismiss the case against her
parents, who were owners of some of the buildings where the five
massage parlors were located. Ni also offered the December 11, 2017
decision by the California Employment Development Department
(EDD) of the Unemployment Insurance Appeals Board (“EDD decision”)
to establish she did not violate the law or for mitigation purposes. As
set forth in that decision, the EDD determined Ni was not an employer
of the massage therapists who worked in her massage parlors; rather,
4
the massage therapists were independent contractors for whom Ni was
not responsible for paying unemployment insurance taxes.4
The ALJ found that, despite the EDD’s decision, Ni’s contention
that she did not employ the massage therapists working at her
massage parlors “is simply not credible and not supported by the
evidence. Although [Ni] asserted the therapists were independent
contractors leasing space at her massage parlors, she admitted she filed
4 On June 27, 2016, Ni filed a petition for reassessment of an EDD
assessment issued under Unemployment Insurance Code section 1126
for the period January 2006 through March 2014, raising the issues of
whether “workers were employees of [Ni] and if so, whether [she] is
liable for unemployment, employment training, and disability
contributions, personal income tax withholdings, penalties, and
interest.” In its 2017 ruling in Ni’s favor, the Unemployment Insurance
Appeals Bureau explained: “In the present case [Ni] was credible in her
testimony which was corroborated by documentation in the file that
[she] had no employees and that she had no intent not to pay employer
payroll taxes. The therapists were not [her] employees and [she]
invested in real estate with the help of family, and collected rent as a
landlord. [She] is a licensed certified massage therapist and subleased
space to other licensed massage therapists, who set their own working
time, price, and brought their own equipment and materials to the
space leased to them by [Ni]. [Ni] did not train or supervise the
therapists, did not control their hours or rates or any aspect of their
work, and received a fixed amount of rent. [She] maintained her own
practice and leased space to other therapists. She was not and has
never been an employer of other massage therapists.” The “notice of
assessment for the period beginning January 1, 2006 and ending March
31, 2014” was cancelled, and it was ordered that Ni “is not liable” for
any payment pursuant to Insurance Code section 1126.
The disciplinary matter was originally submitted for the ALJ’s
decision on December 6, 2017. Thereafter, Ni filed a motion to reopen
the record to admit the EDD decision. Over the Board’s objection, the
ALJ admitted the EDD decision into evidence and the case was again
submitted for the ALJ’s decision on January 5, 2018. By our order
dated October 27, 2021, we granted Ni’s unopposed motion to augment
the record on appeal to include the EDD decision.
5
Internal Revenue Service (IRS) Form 1099 reports for the massage
therapists reporting income she paid to the therapists. [Ni] would not
report income paid to therapists in a Form 1099 if she was only leasing
space to these therapists; to the contrary they would be paying [Ni] for
the leased space. [Ni’s] payments to the therapists that worked in her
establishments minimally established an agency relationship between
[Ni] and the therapist. . . .”
The ALJ did not find credible Ni’s explanation regarding her
criminal probation. Ni “testified that she did not intentionally violate
the terms and conditions of her probation on January 6, 2017. [She]
claimed that she resided [at a specified building address] . . . she only
performed individual massages . . . and was not operating a business
after her June 2015 conviction. She asserted she thought she was
allowed to perform personal massages as long [as] she did not operate a
massage parlor or employ massage therapists. [She] testified that the
signage in front of the building was never removed after [her] massage
parlor was closed in June 2015, and that she was not operating a
massage parlor . . . on January 6, 2017. [Her] testimony, however, is
not credible in light of the deputies’ observations that a full service
massage business was still operating at that location.”
b. Legal Conclusions
The ALJ determined that Ni incurred a felony conviction on June
9, 2015, for failing to pay and/or withhold unemployment insurance
taxes with the intent to evade payment of taxes for the massage
therapists working in her five massage parlors. “Pursuant to section
2761, subdivision (f), . . . [t]he felony conviction itself provides a basis
for . . . disciplinary action. However, the conduct underlying this
6
conviction, intentionally evading the payment of unemployment
insurance taxes, evidences dishonesty which also renders the conviction
substantially related to the practice of nursing. (See Windham v.
Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461
(holding a tax evasion conviction was substantially related to the
qualifications, functions, or duties of a physician).)”
The ALJ also determined that “the Unemployment Insurance
Appeals Board decision is not binding in this proceeding,” commenting
that Ni “failed to offer any evidence, other than her own conflicting
testimony, to support her contention that she did not employ the
massage therapist[s] working in her establishments,” and that Ni had
knowingly pleaded no contest to the felony conviction in her criminal
case. In any event, the ALJ concluded that Ni could not use the
underlying facts and circumstances surrounding the crime to impeach
or collaterally attack the conviction during the license discipline
proceeding as the record of the conviction constituted “conclusive
evidence that [she] violated Unemployment Insurance Code section
2117.5, which necessarily establishes that [she] was an employer for
purposes of the Unemployment Insurance Code and that she employed
the massage therapists providing massages in her establishments.”
The ALJ acknowledged that “[a]t best [Ni] may present the
Unemployment Insurance Appeals Bureau [decision] for purposes of
mitigation for any discipline imposed.”
Following the Board’s revocation of her license, Ni filed for relief
from her felony conviction. On June 15, 2018, the trial court granted
Ni’s application to reduce her felony conviction to a misdemeanor (Pen.
Code, § 17, subd. (b)) and for early termination of her criminal
7
probation (Pen. Code, § 1203.3). On August 18, 2018, the trial court
granted Ni’s request for dismissal of the conviction (Pen. Code, §
1203.4).5
2. March 11, 2019 Trial Court Order and Issuance
of Writ Directing Board to Vacate Revocation and
Conduct Further Proceedings
Following the dismissal of her felony conviction, Ni sought
judicial review of the Board’s order revoking her license. On March 11,
2019, the trial court granted Ni’s petition for a writ of administrative
mandate and remanded the matter to the Board for further
proceedings.
The trial court initially rejected Ni’s challenges to the Board’s
decision to impose discipline based on Ni’s felony conviction. In so
concluding, the court stated:
“The Board acted properly in imposing discipline based on [Ni’s]
no contest plea to the felony of failing to pay or withhold[ing]
unemployment insurance taxes. The question of whether a conviction
is ‘substantially related’ to professional qualifications is a question of
law. (Krain v. Medical Board [(1999)] 71 Cal.App.4th 1416, 1424
[whether a conviction is ‘substantially related’ to professional
qualifications is question of law].) The crime for which [Ni] was
convicted involves ‘[t]heft, dishonesty, fraud, or deceit’ and therefore
was a proper basis for discipline. [6] [¶] Windham v. [Board of Medical]
5 On October 27, 2021, we granted Ni’s unopposed motion to
augment the record on appeal to include the trial court’s June 15, 2018
and August 30, 2018 orders regarding Ni’s felony conviction, which
documents were attached to Ni’s first writ petition and are part of the
administrative record filed in this case.
6 The court noted in its decision that the ALJ found “the criminal
conviction for failing to pay or withhold unemployment insurances
taxes ‘evidences dishonesty which . . . renders the conviction
substantially related to the practice of nursing.’ ” The court further
stated, “A felony conviction based on a no contest plea, standing alone,
8
Quality Assurance [(1980)] 104 Cal.App.3d 461, relied upon by the ALJ,
is persuasive if not strictly controlling. . . . [¶] In this respect, the court
notes, but does not rely upon, the growing trend to rely on nurses for
primary care. [Citations.] . . .
“[T]he ALJ did consider the [decision of the Unemployment
Insurance Appeals Board (EDD)], and correctly held that the decision
was not binding; could not be used to collaterally attack [the] felony
conviction; but was relevant – though not necessarily dispositive – on
the issue of the appropriateness of revocation in light of any mitigating
factors. [Citation.]
“Considering the EDD decision solely as it relates to mitigation
was correct. A person who pleads no contest to a crime may not, in an
administrative proceeding, seek to re-litigate his or her guilt or
innocence. (Arneson v. Fox (1980) 28 Cal.3d 440, 449.) Rather, he or
she may offer evidence of extenuating circumstances as relevant to
mitigating the level of the penalty, which will be considered with other
relevant factors. (Id.) . . .
“Relatedly, [Ni] also asks this court to consider the dismissal of
her conviction on August 30, 2018 pursuant to her application for relief
under Penal Code section 1203.4. While the post-hearing dismissal
potentially may be raised in this court in the first instance . . . , it too is
relevant solely to mitigation. A felony conviction that is later reduced
or dismissed remains a proper basis for disciplinary action, including
revocation. (Bus. & Prof. Code, § 490 (c) . . . [defining ‘conviction’ and
providing that [the] Board may take action ‘irrespective of a subsequent
order under Section 1203.4 of the Penal Code’]; cf. Danser v. Public
Employees’ Retirement System [(2015)] [ ] [240] Cal.App.4th 885, 892
[affirming disciplinary action (forfeiture of retirement benefits) based
on felony conviction that was later reduced by trial court to a
misdemeanor and expunged pursuant to Penal Code [section] 1203.4].)”
may not be a basis for revocation unless it bears a substantial
relationship to the profession at issue. (See Arneson v. Fox (1980) 28
Cal.3[d] 440, 448–449 [‘So long as there exists the requisite substantial
relationship mandated by section 490, due process principles are
satisfied.’].) Here there was no error because a substantial relationship
existed.”
9
The trial court went on to find, however, that the Board had
failed to establish, by clear and convincing evidence, a second and
independent basis for discipline on the unprofessional conduct charge.
In so concluding, the court stated: “The evidence of unprofessional
conduct consisted exclusively of unsworn police reports. That a few
reports contained party admissions – in the form of alleged damaging
admissions by [Ni] – does not satisfy the clear and convincing standard
applicable here given that (1) none of the deputies testified; (2) none of
the physical evidence (recordings, receipts) was offered; and (3) [Ni]
disputed the contents of the reports in her own live, sworn testimony
before [the ALJ]. Particularly in the face of [Ni’s] denials, the
statements in the unsworn police reports are not sufficient to satisfy
the high burden of proof that governs in a proceeding to impose
discipline on a licensee.” The court went on to note that the ALJ,
having determined the police reports had the necessary indicia of
trustworthiness, properly admitted them under Evidence Code section
1280 and Lake v. Reed (1997) 16 Cal.4th 448, and “consider[ed] any
party admissions therein, with the remainder of the reports coming in
to supplement as administrative hearsay.” However, unlike the DMV
proceeding in Lake v. Reed, the standard of proof at this disciplinary
proceeding was higher; “where no officer testified at the hearing, and
where no physical evidence was introduced; where [Ni’s] sworn
testimony disputed the contents of the police reports; and where the
ALJ’s credibility determinations were generally directed to other parts
of [Ni’s] testimony, the standard was not met.”
As to the appropriateness of revocation, the trial court remanded
the matter to the Board to reconsider the level of discipline based on
10
Ni’s felony conviction, directing the use of the criteria outlined in the
Board’s “ ‘Recommended Guidelines for Disciplinary Orders and
Conditions of Probation,’ (10/02).”
The trial court issued an administrative writ commanding the
Board: (1) to set aside and vacate its June 25, 2018 decision, revoking
Ni’s license; and (2) to hold further proceedings consistent with the
court’s March 11, 2019 order. The superior court clerk served a file-
stamped copy of the March 11, 2019 order on both parties, and neither
party filed a notice of appeal.
In its supplemental return to the administrative writ, the Board
informed the trial court that, at a closed session meeting on April 10,
2019, the Board elected not to appeal the court’s judgment granting
Ni’s writ petition. Five days later, on April 15, the Board vacated the
license revocation, and Ni’s license status was restored to active status.
The next day, on April 16, the Board issued a “Briefing Order and
Stay,” directing both parties to submit written arguments limited to the
facts presented at the administrative hearing for the Board’s
consideration before rendering its new decision on the appropriate level
of discipline.
B. April 15, 2020 Board Decision on Reconsideration
On April 15, 2020, the Board issued its “decision after
reconsideration,” again revoking Ni’s license, but staying the revocation
and placing the license on probation for five years subject to certain
terms and conditions.
The Board began its decision by setting forth the underlying facts
of the accusation as previously set forth in the ALJ’s proposed decision,
which included a recitation of the information in the police incident
11
reports that lead to Ni’s arrest. The Board noted that the “incident
reports were part of the . . . evidence in support of the Unprofessional
Conduct cause for discipline. Because the trial court found that the
unsworn police reports were properly admitted at the administrative
hearing, those facts are restated here. When the trial court determined
that the Unprofessional Conduct cause for discipline was unfounded, it
concluded only that the unsworn statements – without more – were
insufficient to meet [the Board’s] burden of proof.”
The Board then restated its earlier decision explaining why it
had found Ni’s felony conviction established a cause for discipline,
specifically noting the felony conviction constituted “conclusive
evidence” that Ni violated Unemployment Insurance Code section
2117.5, which established that she “was an employer for purposes of
the Unemployment Insurance Code and that she employed the massage
therapists providing massages in her establishments.”
The Board went on to explain its reasons for deciding that an
appropriate level of discipline was a stay of revocation and probation
for five years. It began by quoting its then-applicable regulations (Cal.
Code Regs., tit. 16, § 1445, subd. (b), as amended Sep. 27, 1985) setting
forth the criteria for evaluating the rehabilitation of a registered nurse
who had been convicted of a crime, which included the following
factors: (1) nature and severity of the acts or offenses; (2) total criminal
record; (3) the time that has elapsed since commission of the acts or
offenses; (4) whether the licensee has complied with any terms of
parole, probation, restitution or any other sanctions lawfully imposed
against the licensee; (5) if applicable, evidence of “expungement”
proceedings pursuant to Section 1203.4 of the Penal Code; and (6)
12
evidence, if any, of rehabilitation submitted by the licensee. The Board
then stated:
“The above criteria [has] been considered in this case. The
nature and severity of [Ni’s] conduct was extremely serious. [She]
engaged in an extensive business enterprise of providing unlawful
prostitution services in massage parlors she owned and operated. [She]
enlisted the services of numerous females to accomplish this unlawful
enterprise, negotiated payment for their prostitution services, and
evaded paying unemployment insurance taxes for her employees.
Although [her] conduct did not involve patients, the evidence
established that the communities in which [she] operated the massage
parlors were concerned and impacted by her conduct. In determining
the appropriate level of discipline, ‘protection of the public shall be the
highest priority for the Board of Registered Nursing in exercising its
licensing, regulatory, and disciplinary functions.’ (Bus. & Prof. Code,
§ 2708.1.)
“There has been a relatively short period of time, approximately
six years, since [she] committed the conduct, and she remains on
probation until June 2020. [She] also has failed to comply with the
terms and conditions of her criminal probation. She violated probation
in January 2017, when a probation search revealed that [she] was
continuing to provide massage therapy services, even though she was
prohibited to do so under the terms of her probation. The sheriff
deputies’ probation search revealed that [she] continued to operate a
full massage therapy service at her [specified] location. [Her]
explanation for her probation violation simply was not credible.
“Finally, [she] denied in every respect the unlawful conduct
alleged in the Accusation. She has not accepted any responsibility for
her actions and did not present as a forthright and honest witness at
hearing. [She] showed no contrition, offered no character references on
her behalf, and essentially provided no evidence of rehabilitation from
her criminal conduct. [She] offered the December 11, 2017
Unemployment Appeals Board decision for purpose of mitigation.
However, this decision is not binding in this proceeding, and in light of
the sparsity of rehabilitation evidence offered by [Ni] in this
proceeding, the decision is afforded little weight.
13
“Based on the totality of the evidence, [she] failed to establish
that she has been sufficiently rehabilitated, such that her continued
licensure as a registered nurse should be restricted by probation terms
and conditions for a period of five years. Such restrictions would
protect the public’s health, safety, and welfare from significant risk of
harm. Accordingly, [her] registered nursing license must be revoked,
the revocation stayed, and her license subject to probationary terms
and conditions for five years.”
The Board’s decision became effective on May 15, 2020.
C. Trial Court Proceeding
On May 11, 2020, Ni again petitioned for judicial review of the
Board’s decision after reconsideration, seeking a writ of administrative
mandamus requiring the Board to vacate its decision to impose
discipline for her felony conviction. Following briefing and oral
argument, the trial court denied the petition, stating as follows:
“The petitioner was charged with some 32 felonies arising from
her operation of several massage parlors. Petitioner entered into a plea
bargain with the district attorney where she plead no contest and was
then found guilty of the felony of [violating] Unemployment Insurance
Code, [section] 2117.5, the willful failure ‘to file any return or report, or
to supply any information with intent to evade any tax. . . . [Record
Citation]. [¶] In exchange for the plea to the single felony, petitioner
received the dismissal of the 31 other felony charges. [¶] The sentence
imposed by the court included an Order stating, ‘do not own or manage
any establishment that provides massages’ during the term of her five
years of probation. [Record Citation.]
“The plea of no contest by the petitioner to a violation of
Unemployment Insurance Code [section] 2117.5 is unquestionably an
admission of a felony crime involving moral turpitude. [¶] The
admission and conviction of a felony crime involving dishonesty such as
the crime of which petitioner admitted in exchange for the dismissal of
31 other felony charges, many related to prostitution, is substantially
related to the qualifications and functions and duties of a nursing
license holder, and evidences to [a] substantial degree the petitioner’s
14
present and potential unfitness to hold a nursing license. [(Cal. Code
Regs., tit. 16, § 1444.)]
“The argument that an administrative hearing officer from a
different administrative agency (the EDD) can trump the admission of
commission of a felony in a plea bargain arrangement in the criminal
court is an argument that is without merit. As stated by the Supreme
Court in Arneson v. Fox (1980) 28 Cal.3d 440 at [page] 449[:]
‘Regardless of the various motives which may have impelled the plea,
the conviction which was based thereon stands as conclusive evidence
of appellant’s guilt of the offense charge.’
“The Board’s decision for the determination of culpability and for
the sentence imposed are all supported in the record with substantial
evidence and after application of the independent judgment test by the
court, are determined to be supported by the weight of the evidence.”
On July 13, 2021, the trial court entered a judgment denying the
petition from which Ni timely appeals.
DISCUSSION
I. Applicable Law
The Nursing Practice Act (§ 2700 et seq.) is the chapter within
the Business and Professions Code concerning the practice of nursing.
The Legislature has vested the Board with the discretion to take
disciplinary action against a licensed nurse and to determine the
suitable penalty to be imposed where a cause for discipline exists based
on a “[c]onviction of a felony or for any offense substantially related to
the qualifications, functions, and duties of a registered nurse, in which
event the record of the conviction shall be conclusive evidence thereof.”
(§§ 2715, subd. (a), 2761, subd. (f).) The Legislature has also provided
that “[a] plea or verdict of guilty or a conviction following a plea of nolo
contendere made to a charge substantially related to the qualifications,
functions and duties of a registered nurse is deemed to be a conviction
15
within the meaning of this article. The board may order the license or
certificate suspended or revoked . . . when the time for appeal has
elapsed, or the judgment of conviction has been affirmed on appeal or
when an order granting probation is made suspending the imposition of
sentence, irrespective of a subsequent order under the provisions of
Section 1203.4 of the Penal Code allowing such person to withdraw his
or her plea of guilty and to enter a plea of not guilty, or setting aside
the verdict of guilty, or dismissing the accusation, information or
indictment.” (§ 2765.)
Once the Board has found a basis to impose discipline, the
Legislature has directed that the Board “shall discipline the holder of
any license, whose default has been entered or who has been heard by
the board and found guilty, by any of the following methods: [¶] (a)
Suspending judgment. [¶] (b) Placing [the licensee] upon probation. [¶]
(c) Suspending [the licensee’s] right to practice nursing for a period not
exceeding one year. [¶] (d) Revoking [the] license. [¶] (e) Taking other
action in relation to discipling [the licensee] as the board in its
discretion may deem proper.” (§ 2759.)
The Board’s regulations (at the time of its April 2020 decision
(and currently) require that when deciding the level of discipline it
shall consider its “ ‘Recommended Guidelines for Disciplinary Orders
and Conditions of Probation’ (10/02) [(“the Guidelines”)], which are
hereby incorporated by reference. Deviation from these guidelines and
orders, including the standard terms of probation, is appropriate where
the board in its sole discretion, determines that the facts of the
particular case warrant such a deviation – for example: the presence of
mitigating factors; the age of the case; evidentiary problems.” (Cal.
16
Code Regs., tit. 16, § 1444.5, amended Jul. 23, 20147.) The Guidelines
state the recommended discipline for conviction for a felony or any
offense substantially related to the qualifications, functions, and duties
of a registered nurse is “Revocation,” and “[o]ffenses that the Board
deems to be substantially related include, but are not limited to . . .
theft crimes . . . .” (Italics in original.)
The Guidelines also provide that in determining the appropriate
level of discipline, the Board should consider such factors as: the nature
and severity of the acts, offenses, or crimes under consideration;
mitigation and rehabilitation evidence; compliance with conditions of
court-ordered criminal probation; the licensee’s overall criminal record;
the time passed since the acts or offenses occurred; and evidence of the
dismissal of criminal proceedings under Penal Code section 1203.4.
Similarly, the Board’s regulations (at the time of the April 2020
decision) required it to consider the following criteria when evaluating
whether a registered nurse, who was convicted of crime, has been
rehabilitated: (1) “Nature and severity of the act(s) or offense(s)”; (2)
“Total criminal record”; (3) “The time that has elapsed since
commission of the act(s) or offense”; (4) “Whether the licensee has
complied with any terms of parole, probation, restitution or any other
sanctions lawfully imposed against the licensee”; (5) “If applicable,
evidence of expungement proceedings pursuant to Section 1203.4 of the
Penal Code”; and (6) “Evidence, if any, of rehabilitation submitted by
7 On May 20, 2021, California Code of Regulations, title 16, section
1444.5 was amended to make a nonsubstantive change.
17
the licensee.” (Cal. Code Regs., tit. 16, § 1445, subd. (b), amended Sep.
27, 1985.8)
II. The Board Did Not Err In Deciding that Ni’s Felony
Conviction is Cause for Discipline Under Section 490
8 On May 20, 2021, California Code of Regulations, title 16, section
1445, subdivision (b), was amended to read, in pertinent part, as
follows:
“(b) Suspension or revocation of a license or certificate.
“[¶]. . . [¶]
“(2) If the licensee or certificate holder has not completed the
criminal sentence at issue without a violation of probation or parole, . . .
, or the suspension or revocation is based on one or more of the grounds
specified in Sections 2761 or 2762 of the [Business and Professions
Code], the board shall apply the following criteria in evaluating a
licensee or certificate holder’s rehabilitation:
(A) the nature and gravity of the act(s), disciplinary action(s), or
crime(s).
(B) The total criminal record.
(C) The time that has elapsed since commission of the act(s),
disciplinary action(s), or crime(s).
(D) Whether the licensee or certificate holder has complied with any
terms of parole, probation, restitution, or any other sanctions lawfully
imposed against such person.
(E) The criteria in subdivisions (b)(1)(A) through (E), as applicable.
[i.e., “[t]he reason for granting probation and the length(s) of the
applicable parole or probation period(s),” “[t]he extent to which the
applicable parole or probation period was shortened or lengthened, and
the reason(s) the period was modified,” “[t]he terms or conditions of
parole or probation and the extent to which they bear on the licensee or
certificate holder’s rehabilitation,” and “[t]he extent to which the terms
or conditions of parole or probation were modified, and the reason(s) for
the modification”].
(F) If applicable, evidence of dismissal proceedings pursuant to section
1203.4 of the Penal Code.
(G) Evidence, if any, of rehabilitation submitted by the licensee or
certificate holder.”
18
Ni challenges the Board’s decision to impose discipline based on
section 490, which we find unavailing. 9 “When a trial court rules on a
petition for writ of mandate” challenging a Board’s finding of a cause to
impose discipline on a registered nurse, “it must examine the record for
errors of law, and exercise its independent judgment to determine
9 In the trial court, the Board argued that in resolving Ni’s second
writ petition the trial court should not consider her substantive
arguments challenging the use of her felony conviction as a cause for
discipline because her failure to appeal from the March 11, 2019 order
“arguably barred” her from relitigating that issue. The trial court
impliedly rejected that argument as it considered Ni’s substantive
arguments in its order denying the second writ petition. In doing so,
the court may have reasonably decided that Ni’s failure to appeal after
the decision on her first writ petition was justified as she was not
aggrieved until such time as she was “adversely affected by a ‘new’ final
decision by the Board,” imposing some level of discipline for which she
sought judicial review a second time. (Kumar v. National Medical
Enterprises, Inc. (1990) 218 Cal.App.3d 1050, 1054–1057 [appellate
court dismissed appeal from trial court order setting aside agency’s
decision and remanding matter for further proceedings as appellant
had to fully exhaust administrative remedies by again proceeding to a
final administrative decision before seeking redress in the courts by
filing a second petition]; see also Dhillon v. John Muir Health (2017) 2
Cal.5th 1109, 1116 & fn. 2 [the Supreme Court did not undertake to
answer “ ‘the broad question whether remands to administrative
agencies are always immediately appealable’ ”].)
The Board’s reliance on Pollak v. State Personnel Bd. (2001) 88
Cal.App.4th 1394, is misplaced as in that case the appellate court
upheld the trial court’s refusal to consider Pollak’s renewed arguments
challenging certain disciplinary charges that had been rejected in a
previous writ proceeding, on the basis that Pollak had failed to file a
motion for a new trial challenging the court’s earlier ruling. (Id. at p.
1405.) Here, unlike the situation in Pollak, the trial court did not
refuse to consider Ni’s arguments challenging the use of her felony
conviction to impose discipline, but rather addressed those issues on
their merits. Under these circumstances, we deem it appropriate to
address her arguments on the merits as well.
19
whether the weight of the evidence supported the administrative
decision. [Citation.] After the trial court has exercised its independent
judgment upon the weight of the evidence, an appellate court’s function
‘is solely to decide whether credible, competent evidence supports [the
trial] court’s judgment.’ [Citation.] The trial court’s legal conclusions,
however, are open to appellate review for errors of law.” (Robbins v.
Davi (2009) 175 Cal.App.4th 118, 124.)
Section 490, “which applies broadly to professionals licensed
under the Business and Professions Code . . . provides in relevant part:
‘(a) in addition to any other action that a board is permitted to take
against a licensee, a board may suspend or revoke a license on the
ground that the licensee has been convicted 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. [¶] (b)
Notwithstanding any other provision of law, a board may exercise any
authority to discipline a licensee for a conviction of a crime that is
independent of the authority granted in subdivision (a) only if the crime
is substantially related to the qualifications, functions, or duties of the
business or profession for which the licensee’s license was issued.’ ”
(Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195,
1205, italics in original.)
Section 481 requires each licensing agency to “develop criteria to
aid it . . . to determine whether a crime or act is substantially related to
the qualifications, functions, or duties of the business or profession it
regulates.” Here, the Board adopted section 1444, subdivision (a) of
Title 16 of the California Code of Regulations, which, as amended in
2001 and in effect at the time of Ni’s 2015 conviction, provided in
20
pertinent part, that: “A conviction or act shall be considered to be
substantially related to the qualifications, functions or duties of a
registered nurse if to a substantial degree it evidences the present or
potential unfitness of a registered nurse to practice in a manner
consistent with the public health, safety, or welfare. Such convictions
or acts shall include but not be limited to the following: [ ] . . . [ ](c)
Theft, dishonesty, fraud, or deceit.” 10 The courts have held that
whether a crime is “substantially related” to the qualifications,
functions, or duties of a profession for which the license is issued “is a
question of law” for the independent determination of this court.
(Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1424; see Gromis
v. Medical Board (1992) 8 Cal.App.4th 589, 598.)
10 After the Board’s April 2020 decision after reconsideration,
California Code of Regulations, title 16, section 1444, subdivision (a)
was amended May 20, 2021 to read in pertinent part:
“(a) For the purposes of . . . suspension, or revocation of a license .
. . pursuant to . . . Section[] 2761 . . . of the [Business and Professions
Code], a crime, . . . or act shall be considered to be substantially related
to the qualifications, functions or duties of a person holding a license . .
. under the Nursing Practice Act (Chapter 6 of Division 2 of the
[Business and Professions Code]), if to a substantial degree it evidences
the present or potential unfitness of a person holding a license or
certificate to perform . . . in a manner consistent with the public health,
safety or welfare.
“(b) In making the substantial relationship determination
required under subdivision (a) for a crime, the board shall consider the
following criteria: [¶](1) The nature and gravity of the offense; [¶] (2)
The number of years elapsed since the date of the offense; and [¶] (3)
The nature and duties of a registered nurse . . . .
“(c) For purposes of subdivision (a), substantially related crimes, .
. . or acts shall include, but are not limited to the following: [¶] . . . [¶]
(2) Theft, dishonesty, fraud, deceit . . . .”
21
Based on our independent review, we conclude that Ni’s felony
conviction for violation of Unemployment Insurance Code section
2117.5 was “substantially related” to her fitness as a registered nurse
under section 490. In so ruling, we agree with the trial court (in
addressing Ni’s first writ petition) that Windham v. Board of Medical
Quality Assurance, supra, 104 Cal.App.3d 461 (Windham), “relied upon
by the ALJ, is persuasive if not strictly controlling. In Windham, the
court held that a physician’s felony conviction for tax evasion was
substantially related to his ability to practice medicine such that it
could support disciplinary action – there, license revocation stayed
during a period of probation.” While Ni posits Windham should not be
followed because it concerns a physician, and not nurse, we agree with
the trial court that such a factual distinction is not significant as “the
most compelling and applicable aspect of Windham’s holding” is that
“[d]octors and nurses . . . share a need to perform their work with
utmost integrity so as to support and not violate the patient trust that
is at the heart of their professional relationships. . . . ‘Above all, [as
explained by the Windham court,]. . . is the relation between doctor and
patient. It is unnecessary to described the extent to which that
particular relationship is based on utmost trust and confidence in the
doctor’s honesty and integrity.’ (Windham, supra, 104 Cal.App.3d at p.
470.) The relation between a nurse and patient similarly depends on
the utmost confidence of the patient in the honesty and integrity of the
nurse.” The trial court resolving Ni’s second writ petition, similarly
found that her “plea of no contest by petitioner to a violation of
Unemployment Insurance Code § 2117.5 is unquestionably an
admission of a felony crime involving moral turpitude. [¶] The
22
admission and conviction of a felony crime involving dishonesty such as
the crime of which petitioner admitted in exchange for the dismissal of
31 other felony charges, many related to prostitution, is substantially
related to the qualifications[,] functions and duties of a nursing license
holder, and evidences to [a] substantial degree the petitioner’s present
and potential unfitness to hold a nursing license.”
To the extent Ni challenges the trial court’s factual finding
upholding the Board’s decision that there was a substantial
relationship between her conviction and the practice of nursing, our
review is limited to whether there is substantial evidence in the
administrative record to support the trial court’s finding. In
challenging the evidence in that record, Ni appears to argue that the
ALJ’s credibility findings adverse to her must be set aside in favor of
those credibility findings made in her favor in the EDD decision.
However, in making our review, our authority “begins and ends with
the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
support the [trial court’s] determination, and when two or more
inferences can reasonably be deduced from the facts, a reviewing court
is without power to substitute its deductions for those of the trial
court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874; italics
in original.) Hence, “[w]hen there is substantial evidence, although
conflicting, that sustains the judgment an appellate court will not
substitute its evaluation of the evidence or its opinion as to the
credibility of the witnesses for that of the trial court. [Citations.] This
rule will obtain even though to some triers of fact the evidence in the
instant case would have seemed so improbable, impossible and
23
unbelievable that a judgment contrary to that now on appeal would
have inevitably followed. [Citations.]” (Romero v. Eustace (1950) 101
Cal.App.2d 253, 254.) Thus, we must reject Ni’s reliance on the EDD
decision vis-á-vis the ALJ’s factual findings. Because there is evidence
in the administrative record supporting the trial court’s ruling
upholding the Board’s decision that Ni’s conviction was substantially
related to the practice of nursing, we must uphold that ruling.
In light of our determination that the Board could impose
discipline based on section 490, we do not need to address Ni’s
argument challenging the imposition of discipline based on section
2671.
III. The Board Did Not Err in Deciding the Penalty
“[T]he 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.]” (Cadilla v. Board of Medical Examiners
(1972) 26 Cal.App.3d 961, 966; see Id. at p. 967 [“[t]he choice of
sanctions is a discretion legally vested in the administrative agency
within the meaning of section 1094.5, subdivision (e), of the Code of
Civil Procedure”].) Hence, “in a mandamus proceeding, an appellate
court vis-à-vis the trial court, conducts a de novo review concerning
possible abuse of discretion by the administrative agency. [Citation.]
[¶] Conversely, . . . in a mandamus proceeding an appellate court vis-à-
vis the administrative agency, does not independently or ‘de novo’
determine penalty. ‘[A] court cannot substitute its discretion for that of
the administrative agency on the degree of punishment to be
imposed.’ ” (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th
24
1643, 1652, italics in original, quoting in part Talmo v. Civil Service
Com. (1991) 231 Cal.App.3d 210, 228.)
Section 490 states that “[a]n action that a board is permitted to
take following the establishment of a conviction may be taken when the
time to appeal has elapsed, or the judgment of conviction has been
affirmed on appeal, or when an order granting probation is made
suspending the imposition of sentence, irrespective of a subsequent
order under Section 1203.4 of the Penal Code.” Penal Code section
1203.4 provides, as relevant here: “In any case in which a defendant . . .
has been discharged prior to the termination of the period of probation,
. . . , the defendant shall, at any time after the termination of the period
of probation, . . . , be permitted by the court to withdraw their plea of . .
. nolo contendere and enter a plea of not guilty, . . . and . . . the court
shall thereupon dismiss the . . . information against the defendant and .
. . the defendant shall thereafter be released from all penalties and
disabilities resulting from the offense of which they have been
convicted.” (Italics added.)
Here, Ni posits that the Board had no authority to impose
discipline on the basis of her conviction because, although the
disciplinary action against her was pending for some time, the Board
did not make its disciplinary order until after she had secured the
dismissal of her conviction under Penal Code section 1203.4. While
neither party cites to the case, Meyer v. Board of Medical Examiners
(1949) 34 Cal.2d 62 (Meyer), is dispositive.
In Meyer, supra, 34 Cal.2d 62, the Board of Medical Examiners
imposed an order suspending the appellant’s medical license and placed
him on probation for three years based solely on his conviction for
25
violating a narcotics provision of the Health and Safety Code. (Id. at
pp. 62–63.) The discipline was imposed as of March 15, 1948, even
though the Board of Medical Examiners had received a copy of a court
order dismissing the conviction under Penal Code section 1203.4 at its
March 2, 1948 hearing. (Ibid.) In upholding the discipline, the
Supreme Court specifically rejected the appellant’s argument that
discipline was barred because the “respondent board, though having
had the disciplinary action against appellant pending before it for some
time, did not make its order of suspension against him until after he
had been accorded the statutory relief in question.” (Id. at p. 66, italics
in original.) The court explained as follows: “[The] variant course in
the chronology of the proceedings is an immaterial consideration, for
whether the discharge from [criminal] probation and the accompanying
relief granted by the trial court precede or follow the disciplinary order,
its propriety stems from the adjudication of guilt constituting the basis
of the ‘conviction’ and, as such, it is not a ‘penalty’ or ‘disability’ within
the contemplated release of the probation statute.” (Ibid., italics
added.) After noting the limitations on the effect of a dismissal after
conviction under Penal Code section 1203.4, the Meyer court went on to
state that “it does not appear that [the statute] was . . . intended to
obliterate the record of conviction against a defendant and purge him of
the guilt inherent therein (citation) or to ‘wipe out absolutely’ and for
all purposes the dismissed proceeding as a relevant consideration and
‘to place the defendant in the position where he would have occupied in
all respects as a citizen if no accusation or information had ever been
presented against him’ (citation). From this standpoint, [the]
appellant’s theory that the import of the probation statute and the
26
dismissal proceeding is to expunge the record of the crime (citation)
cannot prevail.” (Meyer, supra, at p. 67.) Accordingly, we conclude Ni’s
reliance on the fact that the Board’s April 2020 discipline was imposed
after she had secured dismissal of her conviction under Penal Code
section 1203.4 in August 2018 “is of no avail.” (Meyer, supra, at p. 66.)
Finally, Ni argues, without citation to authority, that the matter
should be remanded for further proceedings concerning the level of
discipline as the Board relied, in part, on Ni’s denial “in every respect
[of] the unlawful conduct alleged in the Accusation,” along with her
failure to accept “any responsibility for her actions” and lack of
contrition. We are not persuaded. As detailed above, the Board’s
regulations and Guidelines permitted consideration of the nature of the
circumstances that lead to Ni’s arrest, that the felony conviction was
the result of a plea bargain in which prostitution-related felony charges
were dismissed, that Ni pleaded guilty to one felony count for violating
Unemployment Insurance Code section 2117.5, and that she had
violated her criminal probation. Simply put, there was a large body of
evidence properly considered by the Board of which lack of contrition
regarding the tax-related offenses was but one element. 11
11
The case before us is readily distinguishable from Hall v.
Committee of Bar Examiners (1979) 25 Cal.3d 730). In Hall, the
Committee of Bar Examiners "relied heavily" on Hall's failure to
demonstrate adequate remorse. (Id. at p. 732.) The Committee did not
attempt to argue that Hall's prior conduct, by itself, was sufficient to
justify denial of certification, and the Supreme Court found that the
prior conduct, by itself, would not compel denial of certification. (Id. at
p. 742.)
27
DISPOSITION
The judgment is affirmed. Each party is to bear their own costs
on appeal.
28
_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
A163171/Ni v. Board of Registered Nursing
29