Nabizadeh v. Physical Therapy Board of CA CA4/1 (2016) · DecisionDepot
Nabizadeh v. Physical Therapy Board of CA CA4/1
California Court of Appeal Jan 14, 2016 No. D067005Unpublished
Filed 1/14/16 Nabizadeh v. Physical Therapy Board of CA CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALI REZA NABIZADEH, D067005
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00080242-CU-WM-CTL) PHYSICAL THERAPY BOARD OF CALIFORNIA, DEPARTMENT OF CONSUMER AFFAIRS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald S.
Prager, Judge. Affirmed.
Khouri Law Firm, Michael J. Khouri and Yelena Bakman for Plaintiff and
Appellant.
Kamala D. Harris, Attorney General, Gloria L. Castro, Assistant Attorney General,
Alexandra M. Alvarez and Lori Jean Forcucci, Deputy Attorneys General, for Defendant
and Respondent.
Ali Reza Nabizadeh appeals a judgment denying his petition for writ of
administrative mandamus under Code of Civil Procedure section 1094.5 challenging a
decision of the Physical Therapy Board of California (Board) revoking his physical
therapy license. On appeal, he contends the trial court erred because (1) the evidence is
insufficient to support the court's findings, and (2) Board abused its discretion by
disciplining him by revoking his license. We affirm the judgment.
On June 25, 2010, Nabizadeh was arrested by Immigration and Customs
Enforcement (ICE) agents and Orange County narcotics officers in connection with a
controlled delivery of a postal package shipped from Canada containing about 1,900
MDMA, or Ecstasy, pills with a street value of about $60,000. He consented to a search
of his residence, forewarning officers they would find gamma-hydroxybutyric acid
(GHB) in his freezer. Officers found GHB in his freezer and also found amphetamines,
steroids, and other liquids and tablets in his residence for which he did not have current,
valid prescriptions.
On August 27, 2010, Nabizadeh signed an application for a physical therapy
license, stating, in part, he had never pleaded guilty or nolo contendere to any offense.
On November 29, Board issued a physical therapy license to him.
On December 9, a felony complaint was issued against Nabizadeh, charging him
with two felonies (i.e., possession for sale of MDMA/Ecstasy and possession for sale of
GHB). On October 4, 2011, after the complaint had been amended to add a charge of
2
misdemeanor accessory after the fact of possession of MDMA (Pen. Code, § 32),
Nabizadeh entered into a plea agreement pursuant to which he pleaded guilty to that
misdemeanor count; the two felony counts were dismissed. He was granted probation
and ordered to serve 90 days in local custody.
On October 5, 2012, Board filed an accusation against Nabizadeh, alleging six
causes for discipline: (1) conviction of a crime substantially related to the qualifications,
functions, or duties of a physical therapist; (2) violation of state statutes regulating
dangerous drugs or controlled substances; (3) falsely representing oneself as a doctor; (4)
commission of fraudulent, dishonest, or corrupt act or acts; (5) violation of a provision or
provisions of the Physical Therapy Practice Act; and (6) violation of a provision or
provisions of the Medical Practice Act. In October 2013, a two-day administrative
hearing was held before administrative law judge (ALJ) Roy Hewitt. The ALJ heard the
testimony of Scott Irwin, who in 2010 was a narcotics detective with the La Habra Police
Department, Nabizadeh, and three character witnesses for Nabizadeh.
Irwin testified he was contacted by ICE agents regarding their interception of a
postal package containing about 1,900 Ecstasy pills addressed to "Chad Julian," at a store
located in the City of Orange.1 He posed undercover as a customer at that store while an
undercover postal inspector delivered the package to Gabriel Rudd, the store's counter
clerk. Rudd said, "[T]hat must be for Chad," and signed for the package. La Habra
1 Irwin testified it is common for alias names to appear on contraband packages. Mark Kaelin, one of Nabizadeh's character witnesses, testified Nabizadeh told him the name Chad Julian was "made up."
3
Police Detective Torres identified himself to Rudd and told him he was being detained
for further investigation regarding the package. Rudd identified Nabizadeh as the
intended recipient of the package, stating Nabizadeh promised to pay him $200 to accept
delivery of it. At Torres's suggestion, Rudd called Nabizadeh and told him his package
had arrived and was waiting for him to pick it up as they had arranged. Within 15
minutes, Nabizadeh arrived at the store, picked up the package, walked outside, and was
arrested. On his arrest, Nabizadeh spontaneously stated, "Oh no, I screwed up, I'm a
doctor and I made a mistake." He subsequently spontaneously stated, "Sir, I'm a doctor
and I messed up, there are Ecstasy pills inside, I got caught, but I can't go to jail, I'll do
anything, I'm not a drug dealer."
Nabizadeh suggested, and the officers agreed, that he be questioned at his
apartment, a less public place, and he was read his Miranda2 rights there. At his
apartment, Nabizadeh told officers he had arranged with Rudd to have him to accept
delivery of a package (which Nabizadeh knew would contain Ecstasy pills from Canada)
with a fake name on it (i.e., "Chad Julian") at the store and to notify him immediately on
its delivery. In return, he would pay Rudd $200. He told Rudd there would be illegal
pills inside the package, but did not specify what type.
In addition to the 1,900 MDMA pills in the postal package, officers found GHB
and a bag containing about 2,000 pills. Laboratory testing showed those pills included
three methamphetamine tablets (indicated, but not confirmed), 400 oxymetholone tablets,
2 Miranda v. Arizona (1966) 384 U.S. 436.
4
394 methenolone tablets, 797 stanozolol tablets, and 400 placebo tablets. Officers also
found four syringes of liquid steroids, 10 bottles of somatropin, three bottles of
testosterone, a vial of Nandrodex (nandrolone phenpropionate), and six vials of Primodex
(methenoline enanthate and mestererlone), all of which were indicated, but not
confirmed.
Nabizadeh testified he received a call from Rudd, his friend, asking for a ride from
the store. When he arrived at the store, Rudd handed him a package and officers
immediately arrested him. Nabizadeh admitted he knew the package most likely
contained Ecstasy when he picked it up because he knew what Rudd and another friend
had done. Nabizadeh denied ordering the Ecstasy from Canada.
Following the hearing, the ALJ issued a proposed decision finding cause for
discipline of Nabizadeh on all six alleged causes. He found Nabizadeh's testimony was
not credible and he was not a truthful person. He also found: "The only reasonable
explanation that accounts for all of the facts underlying [his] conviction is that [he] was
the individual who arranged for the purchase and shipment of the [E]cstasy pills from
Canada. . . . [H]is overall acts and insistence on misrepresenting the facts lead to the
conclusion that he cannot be trusted, and is not an appropriate candidate for probation."
The ALJ recommended that Board revoke Nabizadeh's physical therapy license.
Effective December 26, 2013, Board adopted the ALJ's proposed decision as its decision
and revoked Nabizadeh's physical therapy license.
5
Nabizadeh filed a petition for writ of administrative mandamus under Code of
Civil Procedure section 1094.5 challenging Board's decision to revoke his physical
therapy license.3 The trial court issued an order denying his petition and finding Board's
decision was supported by the weight of the evidence in the administrative record. On
November 24, 2014, the court entered a judgment denying his petition. Nabizadeh timely
filed a notice of appeal challenging the judgment.
DISCUSSION
I
Standards of Review
Code of Civil Procedure section 1094.5, subdivision (c), provides that in cases in
which the court is authorized by law to exercise its independent judgment on the evidence
(e.g., cases challenging the revocation of a professional license or other decisions
substantially affecting a fundamental vested right), abuse of discretion by the
administrative agency is established if the court determines the agency's findings are not
supported by the weight of the evidence. (Evans v. Department of Motor Vehicles (1994)
21 Cal.App.4th 958, 967, fn. 1; Berlinghieri v. Department of Motor Vehicles (1983) 33
Cal.3d 392, 395-396.) "In reviewing a trial court's ruling on a petition for writ of
mandate following an administrative decision to impose discipline on the holder of a
3 Although the record on appeal does not contain a copy of the petition for writ of administrative mandamus, the parties represent, and the record supports an inference, Nabizadeh filed that petition challenging Board's decision. It would, of course, have been the better practice for Nabizadeh to have included a copy of his petition in the record on appeal.
6
professional license, 'an appellate court's function "is solely to decide whether credible,
Fourth cause for discipline. The fourth cause for discipline alleged Nabizadeh
committed a fraudulent, dishonest, or corrupt act. (§ 2660, subd. (j).) Evidence in the
record supports the reasonable inference by the trial court that Nabizadeh was involved in
the trafficking of about $60,000 in MDMA/Ecstasy into the United States from Canada
12
and that, in so doing, he committed fraudulent, dishonest, or corrupt act or acts. There is
substantial evidence to support the court's finding the weight of the evidence supported
the fourth cause for discipline. (§ 2660, subd. (j); Cal. Code Regs., tit. 16, § 1399.20,
subd. (a).)
E
Fifth cause for discipline. The fifth cause for discipline alleged Nabizadeh
violated a provision of the Physical Therapy Practice Act by committing the acts alleged
in the first four causes for discipline. (§ 2660, subd. (a); Cal. Code Regs., tit. 16,
§ 1399.20, subd. (a).) The trial court found the weight of the evidence supported the
finding Nabizadeh violated the Physical Therapy Practice Act based on his Penal Code
section 32 conviction, violations of statutes concerning controlled substances, and
violations of the Medical Practice Act discussed above. (§§ 2054, 2238, 2620, subd. (a),
2660, subds. (a), (e), (f), (j); Cal. Code Regs., tit. 16, § 1399.20.) Based on our
discussion above, we conclude there is substantial evidence to support the court's finding
the weight of the evidence supported the fifth cause for discipline.
F
Sixth cause for discipline. The sixth cause for discipline alleged Nabizadeh
violated a provision of the Medical Practice Act by committing the acts alleged in the
first four causes for discipline. (§ 2660, subd. (a); Cal. Code Regs., tit. 16, § 1399.20,
subd. (c).) The trial court found the weight of the evidence supported the finding
Nabizadeh violated the Medical Practice Act based on his holding himself out as a doctor
13
to police, as discussed above, in violation of section 2054. Based on our discussion
above, we conclude there is substantial evidence to support the court's finding the weight
of the evidence supported the sixth cause for discipline (§§ 2054, 2660, subd. (a); Cal.
Code Regs., tit. 16, § 1399.20, subd. (c).)
G
To the extent Nabizadeh cites only evidence, and inferences therefrom, favorable
to him, he misconstrues and/or misapplies the substantial evidence standard of review
and does not persuade us there is insufficient evidence to support the trial court's
findings. Furthermore, he did not set forth in his appellant's opening brief all the material
evidence, and not merely evidence favorable to him, relevant to the trial court's findings
on the six causes for discipline alleged against him. (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881.) "In furtherance of its burden, the appellant has the duty to
fairly summarize all of the facts in the light most favorable to the judgment. [Citation.]
Further, the burden to provide a fair summary of the evidence 'grows with the complexity
of the record. [Citation.]' " (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640,
1658.) An appellant must state fully, with transcript citations, the evidence claimed to be
insufficient to support the trial court's findings. (In re Marriage of Fink (1979) 25 Cal.3d
877, 887.) Unless this is done, the asserted error is deemed to be waived. (Foreman &
Clark Corp., at p. 881.) "An appellate court will consider the sufficiency of the evidence
to support a given finding only after a party tenders such an issue together with a fair
summary of the evidence bearing on the challenged finding, particularly including
14
evidence that arguably supports it." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th
400, 409-410.) Furthermore, "[a] party who challenges the sufficiency of the evidence to
support a finding must set forth, discuss, and analyze all the evidence on that point, both
favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly
(2009) 177 Cal.App.4th 209, 218, italics added.) If the appellant does not do so, the
reviewing court may deem the substantial evidence contention waived. (Ibid.; Foreman
& Clark Corp., at p. 881.)
Based on our review of the record on appeal, it is clear that Nabizadeh has not set
forth a sufficient statement of facts stating all of the material evidence, both favorable
and unfavorable, to his position on the disputed issues. Rather, he appears to have cited
only evidence favorable to his position. Because Nabizadeh has not presented us with a
sufficient statement of facts setting forth all the material evidence on the disputed issues,
we could have deemed him to have waived or forfeited his contention that there is
insufficient evidence to support the trial court's findings. (Foreman & Clark Corp. v.
Fallon, supra, 3 Cal.3d at p. 881; Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at
pp. 409-410; Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177
Cal.App.4th at p. 218.) However, because, as discussed above, we conclude there is
substantial evidence in the record on appeal to support the trial court's findings, we need
not decide whether Nabizadeh waived or forfeited his substantial evidence contention.
Nabizadeh has not carried his burden on appeal to persuade us there is insufficient
15
evidence to support the court's findings. (Schutte & Koerting, Inc. v. Regional Water
Quality Control Bd., supra, 158 Cal.App.4th at p. 1384.)
III
Revocation of Nabizadeh's Physical Therapy License
Nabizadeh contends Board abused its discretion by revoking his physical therapy
license rather than imposing a lesser form of discipline for his misconduct. He argues
Board imposed the highest form of discipline (i.e., revocation) for the improper purpose
of punishing him rather than for the proper purpose of protecting the public.
A
In adopting the ALJ's proposed decision as its own, Board found Nabizadeh's
testimony was not credible and he was not a truthful person. It also found: "The only
reasonable explanation that accounts for all of the facts underlying [his] conviction is that
[he] was the individual who arranged for the purchase and shipment of the [E]cstasy pills
from Canada. . . . [H]is overall acts and insistence on misrepresenting the facts lead to the
conclusion that he cannot be trusted, and is not an appropriate candidate for probation."
Accordingly, Board adopted the ALJ's recommendation for discipline and revoked
Nabizadeh's physical therapy license.
B
Although Nabizadeh asserts Board revoked his physical therapy license for the
improper purpose of punishment, there is nothing in the record to support his assertion.
Based on his Penal Code section 32 offense, Board could have imposed discipline
16
ranging from three years' probation to revocation under applicable guidelines. (Cal. Code
Regs., tit. 16, § 1361.) Board's decision to impose the maximum discipline based on the
particular circumstances in this case does not show it acted for the improper purpose of
punishment. (Cf. Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 961,
968.) Rather, we presume Board acted with the proper purpose of protecting the public.
(§ 2602.1 [protection of public is Board's highest priority].) Nabizadeh was convicted of
being an accessory after the fact to possession of MDMA, an analog of
methamphetamine (Pen. Code, § 32). The evidence admitted at the administrative
hearing showed that in addition to possession of MDMA/Ecstasy, he also possessed large
quantities of other drugs for which he did not have current, valid prescriptions. Rather
than admitting the full extent of his conduct involving the drugs, he claimed he only
unwittingly held the MDMA package for a friend and that the steroids found in his
residence were solely to "help [him] get bigger." Board properly found he is a
"consummate prevaricator" who cannot be trusted. Therefore, it properly chose to revoke
his physical therapy license based on his misconduct and lack of trustworthiness. It
reasonably concluded he was not an appropriate candidate for probation because of his
lack of trustworthiness.
Contrary to Nabizadeh's assertion, Board's observation that he "was fortunate that
he received such a favorable plea bargain in the criminal matter" does not show it
revoked his physical therapy license for the improper purpose of punishing him rather
than the proper purpose of protecting the public. Contrary to his assertion, the fact that
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he, as a physical therapist, cannot prescribe medications and he did not traffic drugs to his
patients does not disprove Board's implied finding that his involvement in drug
trafficking and lack of trustworthiness could potentially adversely affect his fitness to
perform his functions as a physical therapist. (Cal. Code Regs., tit. 16, § 1399.20;
Watson v. Superior Court, supra, 176 Cal.App.4th at p. 1415 [potential adverse impact
may demonstrate unfitness to practice the profession].) Nabizadeh has not carried his
burden on appeal to show Board abused its discretion by revoking his physical therapy
license. (Landau v. Superior Court, supra, 81 Cal.App.4th at pp. 217-218.)
DISPOSITION
The judgment is affirmed.
McDONALD, J. WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
18
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the revocation of the appellant's physical therapy license, finding that substantial evidence supported the Board's disciplinary findings and that the Board did not abuse its discretion in determining that revocation was necessary to protect the public.
Issues
Whether substantial evidence supports the trial court's findings regarding the six causes for discipline against the appellant.
Whether the Physical Therapy Board of California abused its discretion by revoking the appellant's license rather than imposing a lesser penalty.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“In medical [or other health services provider] discipline cases, the 'highest priority' is protection of the public.”