Opposition Respondent Board of Psychologys To Petitioners Motion For Relief

Motion

Cal. Super. - 2nd Dist.February 2, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 02/08/2019 03:16 PM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Coleman,Deputyi Clerk \ O o o ~ ] MN w h E N Ww Nd - N N [| ] nN n o nN N D N o nN - - - - p- - - - - FY 0 ~1 NN wn ES N Ww t o - o \ O o o ~] aN wh E N wa No -_ T O XAVIER BECERRA Attorney General of California ALEXANDRA M. ALVAREZ } Supervising Deputy Attorney General MICHAEL J. YUN Deputy Attorney General State Bar No. 292587 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9453 Facsimile: (619) 645-2061 Attorneys for Respondent Board of Psychology SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL DISTRICT MARIA MAGDALENA SPITZ, Case No. BS172326 RESPONDENT BOARD OF Petitioner, | PSYCHOLOGY’S OPPOSITION TO . PETITIONER’S MOTION FOR RELIEF V. . Hearing Date: March 21, 2019 Time: 9:30 a.m. BOARD OF PSYCHOLOGY, Dept.: 85 DEPARTMENT OF CONSUMER Judge: Hon. James C. Chalfant AFFAIRS OF THE STATE OF CALIFORNIA, Respondent. Respondent Board of Psychology of the State of California (Board) -- petitioner’s motion for relief brought under Code of Civil Procedure 473, subdivision (b), for the failure of her attorneys to appear at the hearing on January 3, 2019, at 9:30 a.m., scheduled since May 17, 2018, in this matter, because the mistake by petitioner’s counsel is inexcusable under the! circumstances described below. In compliance with Code of Civil Procedure 1005, subdivision (b), respondent files her opposition at least nine (9) court days before the current hearing set for March 21, 2019. Co 1 A RESPONDENT’S OPPOSITION TO PETITIONER’S MOTION FOR RELIEF (BS172326) O e o a on 10 1 12 13 14 15 16 17 18 19 20 21 2 23 24 - 25 26 27 28 STATEMENT OF FACTS oo On February 2, 2018, petitioner’s counsel filed Petition for a Writ of Administative Mandamus with the Los Angeles County Superior Court after serving a due copy to respondent Board of Psychology of the State of California (Board). On February 9, 2018, petitioner’ s counsel filed a Peremptory Challenge against the Honorable Amy D. Hogue of Department 86. | On March 1, 2018, respondent’s counsel filed Return to Verified Petition for Writ of Administrative Mandate by Way of Answer (“Return by Way of Answer”) with the Los Angeles County Superior Court after serving a due copy to petitioner's counsel, thereby notifying the petitioner’s counsel that the California Attorney General’s Office is the legal counsel for the Board in this matter. o Also, on March 1, 2018, the Los Angeles County Superior Court granted petitioner’s peremptory challenge against the Honorable Amy D. Hogue of Department 86. (Exhibit 1: Minute Order dated March 1, 2018, received from Petitioner’s Counsel via Email.) Respondent’s counsel received a copy of this order for the first time from petitioner’s counsel via email on April 2,2018. (1d; Exhibit 2: Declaration of Deputy Attorney General Michael Yun.) On March 2, 2018, the Los Angeles County Superior Court served a Notice of Trial Setting Conference (“Notice”) to petitioner’s counsel, in which it notified the petitioner that this case has been set for Trial Setting Conference (TSC) on May 17, 2018, at 9:30 a.m. The Court’s Notice further stated, “YOU ARE ORDERED TO GIVE NOTICE OF THIS HEARING AND SERVE A COPY OF THIS NOTICE TO ALL PARTIES TO THE ACTION WITHIN 10 DAYS OF SERVICE OF THIS NOTICE.” (Exhibit 3: Notice of Trial Setting Conference dated March 2, 2018, received from Petitioner’s Counsel via Email.) Respondent’ s counsel was not served a copy of the Notice by pefifione’ s counsel dni April 20, 2019,.49 days after the Court’s service to petitioner’s counsel, after the old date and time of TSC were mentioned by respondent’s counsel over the phone and were then corrected by petitioner’s counsel. (/d.; Exhibit 2.) yi 5 |: RESPONDENT'S OPPOSITION TO PETITIONER’S MOTION FOR RELIEF (BS172326) ~~ S Y n n B A W w W N 10 11 12 13 14 15 16 17 18 19 20 21 : 2d 23 24 25 26 27 28 On May 17, 2018, at the TSC in this case at the Los Angeles County Superior Court in Dept. 85, both parties were present through petitioner’s counsel, Derek O’Reilly-Jones, Esq. and respondent’s counsel, Deputy Attorney General Michael Yun. (Exhibit 2.) The Honorable J ames C. Chalfant (Judge Chalfant), presiding, set the time and date of the writ hearing as J iia 3, 2019, at 9:30 am. (Id) Judge Chalfant asked both parties if notice will be waived, and both petitioner’s counsel and respondent’s counsel chose to waive notice. (1d) On November 6, 2018, respondent’s counsel filed Respondent’s Opposition to Petition for Writ of Administrative Mandamus with the Los Angeles County Superior Court after serving a due copy to petitioner’s.counsel via regular U.S. mail sent to their address at 355 South Grand Ave, Ste. 1750, Los Angeles, CA 90071-1562. (Exhibit 4: Respondent’s Opposition to Petition for Writ of Administrative Mandamus and Declaration of Service.) On the first page of this opposition paper, respondent’s counsel clearly marked the time of hearing as “9:30 am” right below the hearing date of January 3, 2019. (Jd.) At no time between the service of this document on November 6, 2018, and the hearing date of January 3, 2019, did petitioner’s counsel ask respondent’s counsel why the time of the hearing is marked as 9:30 a.m. on respondent’s opposition paper. (Exhibit 2.) On January 3, 2019, respondent’s counsel arrived in court in Dept. 85 and checked in with the court clerk at or around 9:00 a.m. (/d.) The Court had read all the pleadings on file in the above-entitled action and issued a Tentative Decision to deny the petition for writ of mandate. (Exhibit 5: Tentative Ruling.) After an additional 55 minutes for the petitioner’s counsel to arrive; at or around 10:25 am., this matter was called on the record by Judge Chalfant and respondent’s counsel appeared on the record for the Board. (Exhibit 2.) Having not heard from petitioner’s counsel on any delay in appearance, J udge Chalfant asked respondent’s counsel if he ; . wo le has heard from petitioner’s counsel. (/d.) After hearing that respondent’s counsel has ‘hot heard oo . from petitioner’s counsel, Judge Chalfant adopted the tentative ruling in the respondent favor. (1d.) a 1 gi . | ’ | 111 nN | 3 } ro RESPONDENT'S OPPOSITION TO PETITIONER'S MOTION FOR RELIEF (BS172326) © o e NN a N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | | “a Po LEGAL ARGUMENT California Code of Civil Procedure, section 473, states, in pertinent part, that “[t]he court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect...” (Code Civ. Proc. § 473, subdivision (b).) However, “[t]he inexcusable neglect of an attorney is usually not a proper basis for granting the client’s motion under section 473.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (4lderman v. Jacobs (1954) 128 Cal.App.2d 273; see Zamora v. Clayborn Contracting Group, Inc, (2002) 28 Cal.4th 249, 258.) The factors to be considered in assessing whether circumstances are appropriate are “(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423. | Here, the error at issue was inexcusable because petitioner's counsel had plenty of time and opportunities to check the case information with the Los Angeles County Superior Court and was also put on reminder notice by respondent’s counsel through respondent’s opposition paper that - clearly indicated the time of the hearing to be 9:30 a.m., on its first page. Respondent’s opposition to the writ was served upon petitioner’s counsel on November 6, 2018. Petitioner’s counsel had 53 days, assuming four (4) days taken by the U.S. Postal Service to deliver from San. Diego to Los Angeles, since receiving the respondent’s opposition paper to “investigate” why the time of the hearing was written as 9:30 a.m. He has not done so. The additional circumstance to be considered, surrounding petitioner’s counsel’s current neglect, lies in petitioner's counsel’s previous neglect-his failure to follow the - order from March 2, 2018. On March 2, 2018, the Los Angeles County Superior Court served the Notice of TSC (“Notice”) solely to petitioners counsel, in which it notified the petitions: that this case had been set for TSC on May 17, 2018, at 9:30 a.m. The Court’s Notice further stated, “YOU ARE ORDERED TO GIVE NOTICE OF THIS HEARING AND SERVE A COPY OF i 4 Po RESPONDENT'S OPPOSITION TO PETITIONER’S MOTION FOR RELIEF (BS172326) BH L N Oo 0 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 39 23 24 25 26 27 28 THIS NOTICE TO ALL PARTIES TO THE ACTION WITHIN 10 DAYS OF SERVICE OF THIS NOTICE.” (Exhibit 3.) Petitioners counsel failed to pay close attention to the court order and respondent’s counsel was not served a copy of the Notice by petitioner’s counsel until April 20, 2019, 49 days after the | Court’s service only to petitioner’s counsel, only after the time and date of the TSC-old ones prior to change-were brought up by respondent’s counsel during a telephone call on April 20, 2019. Even petitioner’s counsel's own memorandum, dated May 17, 2018, confirms his office has no record of forwarding the Notice issued by the Court on March 2, 2018, to respondent’s counsel. (Exhibit B, Petitioner’s Motion to Set Aside This Court’s January 3, 2019 Order, p-2, Ins. 7-8.) After this initial failure and subsequently becoming aware of such clerical failure on April 20, 2018, petitioner’s counsel was placed on a heightened notice as to the clerical, error he and his law office had incurred in this case and that they should pay closer attention to details to prevent errors in the future. _ Despite this earlier experience and heightened knowledge of potential clerical error and/or failure to pay attention to the details of court documents, petitioner’s counsel again failed to take note of the time of the hearing in this case-clearly indicated on respondent’s opposition paper that was served upon him 57 days before the hearing. Because of the heightened awareness of a previous clerical error, this subsequent mistake was not one anyone could have made, and diligence in -- the details would have prevented petitioner’s counsel’s failure to appear at the scheduled hearing at 9:30 a.m. Based on the above, the current mistake by selitiGner's counsel in failing to appear in court for the scheduled hearing was inexcusable. | Furthermore, contrary to petitioner’s assertion in petitioner’s Motion for Relief, the prejudice suffered and will be suffered by respondent is not only the time and expense of returning on an additional day to present thie oral argument, for which petitioner’s counsel has tentatively agreed to pay, but also the time and expense of researching the laws, preparing, and serving and filing respondent’s opposition to petitioner's motion for relief, as well as relevant communications with client for which petitioner’s counsel have expressly stated they will not pay. 5 "ol RESPONDENT'S OPPOSITION TO PETITIONER’S MOTION FOR RELIEF (BS172326) Oo 00 9 O N Un A W N B E DN B O O N O N O K O N O N O R s s E E p e e ee k pe l pe a ee a y em s ed 0 N N A WV A W O N = O WW O e N Y t h l s W N O S CONCLUSION For the foregoing reasons, respondent Board submits that petitioner's motion for relief must be denied. Dated: February 8, 2019 Respectfully Submitted, SD2016702421 71737243.doc XAVIER BECERRA Attorney General of California ALEXANDRA M. ALVAREZ Supervising Deputy Attorney General MICHAEL J. YUN Deputy Attorney General Attorneys for Respondent Board of Psychology 6 RESPONDENT'S OPPOSITION TO PETITIONER'S MOTION FOR RELIEF (BS172326) Exhibit 1 Respondent’s Opposition to Petitioner’s Motion for Relief Maria Magdalena Spitz v. Board of Psychology Case No. BS172326 ¢ SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES ’ i i DATE: 03/01/18 DEPT. de’ HONORABLE AMY D. HOGUE jupce|| M. RIVERA DEPUTY CLERK ! C. DEL RIO, C/A | HONORABLE N JUDGE PRO TEM : ELECTRONIC RECORDING MONITOR Deputy Sheriff|| NONE } Reporter 8:30 am|{BS172326 : Plaintiff : Counsel MARTA MAGDALENA SPITZ © NO APPEARANCES vs so ) ' Defendant | BOARD OF PSYCHOLOGY ET AL Counsel 170.6-PET-JUDGE HOGUE NATURE OF PROCEEDINGS: PETITIONER'S PEREMPTORY CHALLENGE AGAINST THE HONORABLE AMY D. HOGUE DEPARTMENT 86. The Court reviews PETITIONER'S Peremptory Challenge filed with the Court on 02-09-2018 . pursuant to Section 170.6 of the Code of Civil Procedure and finds that the document was filed timely. : All future dates in this department are advanced and vacated.. \ Upon direction from Department 1, the above matter is reassigned from JUDGE AMY HOGUE Department 86 to JUDGE JAMES C. CHALFANT, Department 85. ° If any appearing party has not yet exercised a peremptory challenge under Section 170.6 CCP, peremptory challenges by them to the newly assigned judge must be timely filed within the 15 day period specified in Section 170.6 CCP, with extensions of |time pursuant to Section 1013 CCP if service is by" mail. Previously non-appearing parties, if any, have a 15 day statutory period from first appearance to } file a peremptory challenge (68616(1) Govt. Code). Co Moving party to give notice. co MINUTES ENTERED Page 1 of 2 DEPT. 86 03/01/18" COUNTY CLERK \ DATE: 03/01/18 Ser ww ome a ag SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES _ HONORABLE AMY D. HOGUE JUDGE|| M. RIVERA : C. DEL RIO, C/A "' - JUDGE PRO TEM DEPT. 86 DEPUTY CLERK HONORABLE ELECTRONIC RECORDING MONITOR Deputy Sheriff] NONE Reporter 8:30 am|BS172326 Plaintiff ’ ’ Counsel T- MARIA MAGDALENA SPITZ . NO APPEARANCES vs . Defendant BOARD OF PSYCHOLOGY ET AL Counsel 170.6-PET-JUDGE HOGUE NATURE OF PROCEEDINGS: CERTIFICATE OF SERVICE/ NOTICE OF ENTRY OF ORDER I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that on this date I served the Notice of Entry of the above minute order upon each party or counsel named below by placing the document for collection and mailing so as. to cause it to be deposited in ther United States mail at the courthouse in Los Angeles, California, one copy of the original filed/entered herein in a separate sealed envelope to each address as shown below with the postage thereon fully prepaid, in accordance with standard court practices. Date: 03-01-18 Sherri R. Carter, Executive Officer/Clerk By: M. RIVERA, DEPUTY Osinoff, Peter R. Bonnie, bridges, Mueller, O'keefe & 355 South Grand Avenue, Suite 1750 Los Angeles, CA 90071 Page 2 of 2 - DEPT. 86 MINUTES ENTERED 03/01/18 | - | COUNTY CLERK [ Michael Yun A A- From: Mary L. Kern Sent: “ "- Monday, April 02, 2018 3:35 PM To: . Michael Yun | Cc: . Derek F, O'Reilly-Jones ; Subject: Spitz v. Board of Psychology, et al. Attachments: S-MINUTE ORDER GRANTING PEREMPTORY CHALLENGE.pdf Please see the attached Minute Order, sent on behalf of Mr. O’Reilly-Jones. If replying, please “Reply All. ” Thank you. Mary L. Kern Legal Secretary Phone: (213) 480-1900 | Fax: (213) 607- 5588 355 S. Grand Avenue, Suite 1750 Los Angeles, CA 90071-1562 mkern@bonnebridges.com http:/ /www.bonnebridges.com Bonne Bridges Mueller O'Keefe & Nichols . Exhibit 2 Respondent’s Opposition to Petitioner’s Motion for Relief Maria Magdalena Spitz v. Board of Psychology Case No. BS172326 DO 00 N N h p - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26. 27 28 XAVIER BECERRA bo Attorney General of California . Co ALEXANDRA M. ALVAREZ : : : Supervising Deputy Attorney General MICHAEL J. YUN Deputy Attorney General State Bar No. 292587 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 ; Telephone: (619) 738-9453 Facsimile: (619) 645-2061 Attorneys for Respondent Board of Psychology SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL DISTRICT MARIA MAGDALENA SPITZ, Case No. BS172326 : DECLARATION OF DEPUTY Petitioner, | ATTORNEY GENERAL MICHAEL J. YUN BOARD OF PSYCHOLOGY, DEPARTMENT OF CONSUMER AFFAIRS OF THE STATE OF CALIFORNIA, ? Respondent. I, Michael J. Yun declare: 1. Ihave personal knowledge, or information and belief, with respect to the facts set forth below and make this declaration in my official capacity as an office of the court arid asa public employee pursuant to Evidence Code section 664. Except where based on information and belief, I have personal knowledge of the information shared herein. If called to testify, I could and would competently testify thereto. 111 C1 : | DECLARATION OF DEPUTY ATTORNEY GENERAL MICHAEL J. YUN N S N Ww ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Iam a Deputy Attorney General employed by the California Department of J ustice (DOJ), Office of the Attorney General. I am assigned to the Health Quality Enforcement Section in the Civil Division of the Office. I am currently the Deputy Attorney General with primary responsibility for the prosecution of the above-entitled case, adjudicated before the Board of Psychology of the State of California and pending before the Los Angeles County Superior Court asa writ matter petitioned by the petitioner. 3. Sometime in February 2018, I looked up the case information for this matterion the Los Angeles County Superior Court’s (Court) website and learned that the Trial Setting Conference (TSC) in this matter had been set for May 16, 2018. | | 4, On February 28, 2018, I had my legal secretary serve a copy of respondent’ s Return to Verified Petition for Writ of Administrative Mandate by Way of Answer (“Return by Way of Answer”) upon petitioner’ counsel, Peter R. Osinoff, Esq. and Derek O’Reilly-Jones, Esq. via email and via regular U.S. mail sent to their address at 355 South Grand Ave, Ste. 1750, Los Angeles, CA 90071-1562, and also file it with the Court. Attached to this declaration as Attachment A is a true and correct copy of the first page of the Return by Way of Answer, indicating the California jr - as the attorney of record for respondent Board of Psychology, and Declaration of Service. | 5. I is the custom and practice in the San Diego branch of the Office of the Attorney General, Health Quality Enforcement Section that all incoming mail is first given to the Supervising Deputy Attorney General for her initial review. 6. Thereafter, the mail for each case is distributed to the assigned Deputy Attorneys General by the Supervising Deputy Attorney General. 7. tis the custom and practice that all incoming facsimile tmansmizsions are directed to He Office of the Attorney General’s receptionist. The receptionist scans incoming facsirple transmission, and emails them to the assigned deputy, to that deputy’ s supervisor and 10 his or her secretary. I receive all incoming facsimile transmission at my desktop computer, which i 1s password protected. 1117 2 5 | DECLARATION OF DEPUTY ATTORNEY GENERAL MICHAEL J. YUN OO 0 3 O&O vn A W N BN N D RN N N N N N e m ra s e m e a e d b d p d e m p a © N N N B R A W N = O O N Y W Y R W Rm, |] EK | § 8. On April 2, 2018, I received via email from petitioner’s counsel’s law office, an electronic copy of a minute order dated March 1, 2018, in which the Court granted petitioner’ s peremptory challenge against the Honorablé Amy D. Hogue of Department 86. | 9. On April 20, 2018, I spoke with petitioner’s counsel, Derek O° Rely doo over the phone to discuss the logistics behind preparation of the administrative record in this matter. During the telephone conversation, I mentioned to Mr. O’Reilly-Jones that I will see him at the TSC on May 16, 2018. At that time, Mr. O’Reilly-Jones corrected me and told me that the TSC had been moved to May 17, 2018. I told him that I was not aware of such change, and M. Oo’ Reilly-Jones stated he will have his secretary forward me the Notice of TSC (tie) dated March 2, 2018, the Court had served him. On the same day, I received an electronic copy of the Notice. Prior to this email on April 20, 2018, I had not received any copy of this Notice, dated | March 2, 201 8, from petitioner’s counsel either through the U.S. Postal Office, by fax, or email, or by any other method of delivery. 10. On May 17, 2018, at the TSC in Dept. 85 of the Court, I was present as he counsel for respondent and Mr. O’Reilly-Jones was present as.the counsel for petitioner. The Honorable James C. Chalfant (Judge Chalfant), presiding, set the time and date of the writ hearing as January 3,2019, at 9:30 a.m. Judge Chalfant asked both parties if notice will be waived, and both petitioner’s counsel and I, as respondent’s counsel, chose to waive notice. | i 11. On November 6, 2018, I had my legal secretary serve a copy of Respondent’s Opposition to Petition for Writ of Administrative Mandamus (“Opposition”) upon petitioner’s counsel via regular U.S. mail sent to their address at 355 South Grand Ave., Ste. 1750, Los Angeles, CA 90071-1562. On the first page of the Opposition were the date and time of the writ hearing. The time of the hearing was written as 9:30 a.m. Co 12. At no time between the service of the Opposition on November 6, 2018, and’ he hearing date of January 3, 2019, did petitioner’s counsel ask me why the time of the hearing is ‘marked as 9:30 a.m. on the first page of respondent’s Opposition. | 13. Between December 27, 2018, and December 28, 2018, I exchanged five (5) emails with both petitioner’s counsel, Mr. O’Reilly-Jones and Mr. Osinoff, in which I pointed out two 3 Cot ‘DECLARATION OF DEPUTY ATTORNEY GENERAL MICHAEL J. YUN EN S S NO 0 N N O N Wn 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 (2) previous unintentional clerical errors by petitioner’s counsel's law office in this same matter. regarding service of documents including the one referenced under Paragraph 9 of this declaration, and respectfully requested petitioner's counsel to address them and prevent any future error. Both of them replied to me, separately and in a timely manner, and ensured me that the issues have been addressed. 14. On January 3, 2019, at or around 9:00 a.m., I arrived in Court in Dept. 85 and checked in with the court clerk. After waiting about 55 minutes past the scheduled time of the hearing, at or around 10:25 a.m., this matter was called on the record. I stated my appearance as respondent’s counsel. Judge Chalfant asked where petitioner’s counsel was, and the court clerk stated he had still not checked in. Judge Chalfant asked the court clerk if she had heard from petitioner’s counsel, to which she answered no. Judge Chalfant asked me if I had heard from petitioner’s counsel, to which I stated no. Judge Chalfant adopted the tentative ruling which was in respondent’s favor, and the matter went off the record. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge or information and belief, and was executed in the City and County of San Diego, California on February Sia 2019. Pac MICHAEL J. YUN Deputy Attorney General Declarant SD2017704248 71739009.docx 4 DECLARATION OF DEPUTY ATTORNEY GENERAL MICHAEL J. YUN Attachment A . i 2 J OO N Y wm A W N W R = © C8 ® N o U A WwW N = Oo N O N T N R oo xq o y , Ww XAVIER BECERRA Attorney General of California © - -- ALEXANDRA M., ALVAREZ - : So 5 Supervising Deputy: Attorney General Co . CONFORM MICHAEL J. YUN : ONFORNED COPY : ‘Deputy Attorney General. oo : aman So Stato Bar No.292587 . °° oe Meow : 600 West Broadway, Suite 1800 . = "MAR 01 2018 = Js |... San Diego, CA-92101. ‘ <7 + Sheri R. Caner, executve Ufficer/Clark - Lo . P.O. Box 85266 Co "By. CARMENDEL SETS San Diego, CA 92186-5266 ~~ + By-CARMEN-DELRIO, Deputy; | Telephone: (619) 738-9453 ‘ yo? ’ Fax; P(619) 645-2061. ol : - E-mail: ‘Michael. Yun@doj.ca. gov ‘Attorneys: for Respondent I Board of SEE ; SUPERIOR COURT OF. THE STATE OF CALIFORNIA : Loa COUNTY OF LOS ANGELES - ‘CENTRAL DISTRICT. ! MARIAMAGDALENASPITZ, ~~ |CaseNo. BSi72326 | Pétitionet,.| RETURN TO VERIFIED PETITION FOR | os = Le WRIT OF ADMINISTRATIVE ' . ‘v, : EE MANDATE BY WAY: OF ANSWER Dept. 86." ‘ Judge: Hon. Amy D. Hag e’ | BOARD OF PSYCHOLOGY, Action Filed: February 22 2018 DEPARTMENT OF CONSUMER AFFAIRS : : Fo. n " OF THE STATE OF CALIFORNIA, on om : " Respondent. | bo A “Respondent the Board of Psychology, Department of Consumer Affairs of the State of , California (“Board” or “respanident’) hereby responds to the Verified Petition for Writ of Administrative Mandate as follows: a Bae Denies, generally and specifically, for Jacke of information or belief, the allegations that petitioner received “very little supervision” while working at the United States Burka of | Prisons’ Metropolitan) Detention Center (“USBOP"),t that petitioner “voluntarily left her ppp” | . i q \ Jl! . CL / wm yg 1 RETURN TO VERIFIED. PETITION FOR WRIT OF ADMINISTRATIVE MANDATE BY WAY OF: ANSWER (83172326) ; ob DECLARATION OF SERVICE BY E- MAIL and U. s. Mail - . Case Name; Maria. Magdalena Spitz v. Board of Psychology - Case No.: * BS172326 ar Lv I declare: wr E “Tam employed i n the Office of the Attorney Généal, which is the office of a member of the “California State Bar, at which member's direction this service is made. I am 18 years of age or, older and not a party to this matter: T am familiar with the business practice at the Office of the - Attorney General for collection and processing of correspondence for mailing with the United. ‘States. Postal Service. - In accordance with that practice, correspondence placed in the internal "mail collection system at the Office of the Attormiey General is deposited with the United States Postal Service with postage thereon fully prepaid that same c day i n the ordinary course of } business. . - : On Rebuy 28,2018,.1 served the dttached RETURN TO VERIFIED. PETITION FOR: i WRIT OF ADMINISTRATIVE MANDATE BY WAY OF ANSWER by transmitting a true "copy via ‘electronic mail. In addition, I placed a true copy thereof enclosed in a sealed envelope; in the internal mail system of the Office of the Attorney General, a ddressed as follows: Peter R. Osinoff, Esq. co Derek O'Reilly-Tones, Lng. - Bonné Bridges Mueller O'Keefe & Nichols Le Bonne Bridges Mueller O'Kéefe & Nichols .. 355 South Grand Ave, Suite 1750 Co 355 South’ Grand Ave., Ste. 1750 © © Los ‘Angeles, CA 90071 -- Los Angeles; CA 90071-1562 Attorney for Respondent . a “Attorney Jor Respondent E-mail Address: - ) Co : E-mail Address: od posinoff@bonnebridges.com Co . doreillyjones@bonnebridges. com. I declare under penalty. of. perjury under the laws of the State of California the foregoing is true’... and correct arid that this declaration was executed on February 28, 2018, at San Diego, Calitomma: : () : a $D2018800373 ] 81966372.docx ’ - . ; ; . | | | ‘ "Ileana Chavarin. Co A NN oo a + Declarant TT . = Signature .. . CL Bh . , . } . - Fa ’ , \ a " ’ | Exhibit 3 Respondent’s Opposition to Petitioner’s Motion for Relief Maria Magdalena Spitz v. Board of Psychology Case No. BS172326 : N ¥ : © CONFORMED COPY ORIGINAL FILED | i f Californiz NOTICE SENT TO: FILR STATS ari COR ory os Osinoff, Peter R. ‘ ‘ MAR G2 18 Bonnie, bridges, Mueller, 0O'keefe & " : : 55 South Grand Avenue ; Suite 17590 Sherri R. Carter, Executive Officer/Clerk os Angeles . CA 90071 By: Jennifer De Luna, Deputy SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES ® CASE NUMBER MARIA MAGDALENA SPITZ Plaintiff(s), ; BS172326 Vs. : Defendant(s). CONFERENCE & ATTACHED ORDERS THEREON BOARD OF PSYCHOLOGY, ET AL ~ NOTICE OF TRIAL SETTING , | | | YOU ARE HEREBY NOTIFIED THAT THE ABOVE MATTER HAS BEEN SET FOR TRIAL SETTING CONFERENCE ON May 17, 2018 AT _9:30 am , IN DEPARTMENT _85 OF I THE CENTRAL DISTRICT, 111 N. HILL STREET, LOS ANGELES, CALIFORNIA 90012. ~~, YOU ARE ORDERED TO GIVE NOTICE OF THIS HEARING AND SERVE A COPY OF THIS NOTICE TO ALL PARTIES TO THE ACTION WITHIN 10 DAYS OF SERVICE OF THIS NOTICE. CERTIFICATE OF SERVICE . . 1, the below named Executive Officer/Clerk of the above-entitled court, do hereby certify that [ am not a party to the cause herein, and that on this date I served the Notice of Trial Setting Conference upon each party or counsel named above by placing the document for collection and mailing so as to cause it to be deposited in the United States mail at the courthouse in Los Angeles, California, one copy of the original filed/entered herein in a'separate sealed envelope to each address as shown above with the postage thereon fully prepaid, in accordance with standard court practices. Cd i | Date: March 2. 2018 Sherri R. Carter, EXECUTIVE OFFICER/CLERK | ] J. DeLUNA : | By ,Deputy Clerk J | Michael Yun | -- | ma | ; - From: Kris Koeckenberg Sent: Friday, April 20, 2018 2:57 PM Co To: Michael Yun Cc: Derek F. O'Reilly-Jones ; " Subject: Spitz v. Board of Psychology ‘ Attachments: © s-NTC of Trial Setting Conference (TSC)_l.pdf Dear Mr. Yun: | Please see the attached Notice of Trial Setting Conference. Best regards, : Kris Koeckenberg Legal Assistant . Phone: (213) 480-1900 | Fax: (213) 607-5588 ‘ i 355 South Grand Avenue, Suite 1750 : Los Angeles, CA 90071-1562 ’ © kkoeckenberg@bonnebridges.com | http:/ /www.bonnebridges.com . ' | | Bonne Bridges | 1 Mueller O'Keefe & Nichols } | CONFIDENTIALITY NOTICE- PRIVILEGED AND CONFIDENTIAL This communication and any accompanying documents are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying) distribution, or the taking of any action in reliance. upon this communication is strictly prohibited. Moreover, any such disclosure shall not compromise or waive the attorney- client or other privileges as to this communication or otherwise. If you have received this communication in error, please contact us by replying to this message and deleting it from your computer. Thank you. . Exhibit 4 Respondent’s Opposition to Petitioner’s Motion for Relief Maria Magdalena Spitz v. Board of Psychology Case No. BS172326 Po 3 1 | XAVIER BECERRA [ Attorney General of California 2 || ALEXANDRA M. ALVAREZ Supervising Deputy Attorney General 3 | MICHAELJ. YUN : Deputy Attorney General - -4 | State Bar No. 292587 600 West Broadway, Suite 1800 . 5 San Diego, CA 92101 P.O. Box 85266 6 San Diego, CA 92186-5266 : | Telephone: (619) 738-9453 7 Fax: (619) 645-2061 E-mail: Michael. Yun@doj.ca.gov 8 Attorneys for Respondent 9 | Board of Psychology 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF LOS ANGELES - CENTRAL DISTRICT 12 a | 13 | MARIA MAGDALENA SPITZ, Case No. BS172326 14 Petitioner, | RESPONDENT BOARD OF . PSYCHOLOGY’S OPPOSITION. TO 15 V. + | PETITION FOR WRIT OF . ADMINISTRATIVE MANDAMUS 16 . i : Hearing Date: January 3, 2019 17 | BOARD OF PSYCHOLOGY, - Time: 9:30 a.m. DEPARTMENT OF CONSUMER Dept.: 85 18 | AFFAIRS OF THE STATE OF Judge: Hon. James C. Chalfant CALIFORNIA, Action Filed: February 2, 2018 19 20 Respondent. 21 | 22 23 24 25 go | 1 ,26 Po I i 27 28 hi [ 1 . a OPPOSITION TO PETITION FOR ADMINISTRATIVE WRIT OF MANDATE (BS 172326) . DECLARATION OF SERVICE BY U.S. MAIL Case Name: Maria Magdalena Spitz v. Board of Psychology Case No.: ~~ BS172326 i | declare; I am employed in the Office of the Attorney General. which is the office of a member of the California State Bar, at which member's direction this service is made. | am 18 years of age or older and not a party to this matter. [ am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States. Postal Service with postage thereon fully prepaid that same day in the ordinary course of + business. i On November 6, 2018, I served the attached RESPONDENT BOARD OF PSYCHOLOGY'S OPPOSITION TO PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Derek F. O'Reilly-Jones Attorney at Law Bonne Bridges Mueller O'Keefe & Nichols - Los Angeles 355 South Grand Ave., Ste. 1750 Los Angeles, CA 90071-1562 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November 6, 2018, at San Diego, California. ’ (Lt V. Cruz WZ aN rill Declarant Si gnature”) SD2018800373 . : 71654762.doex 1 Exhibit 5 Respondent’s Opposition to Petitioner’s Motion for Relief Maria Magdalena Spitz v. Board of Psychology Case No. BS172326 Maria Magdalena Spitz v. The Board of Tentative decision on petition for writ of Psychology, Department of Consumer mandate: denied Affairs of the State of California, BS172326 Petitioner Maria Magdalena Spitz (“Spitz”) seeks a writ of mandate directing Respondent Board of Psychology, Department of Consumer Affairs of the State of California (“Board”) to set aside its decision imposing probationary conditions on its issuance of a psychologist license to her. The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision. A. Statement of the Case : } 1. Petition | Petitioner Spitz commenced this proceeding on February 2, 2018. The verified Petition alleges in pertinent part as follows. In March 2005, after earning her Masters and Ph.D. in psychology, Spitz received a license to practice psychology from the New York State Education Department (“NYSED”). In October 2005, she began working at the United States Bureau of Prisons’ Metropolitan Detention Center (“USBOP”) in Brooklyn. After a few months, Spitz quit her position at USBOP because of fear and discomfort towards an inmate-patient who made advances on her. A: few months after leaving USBOP, Spitz received phone calls from this inmate-patient requesting phone . sex. Spitz eventually acceded to his requests. In April 2006, Spitz was approached by federal agents investigating corruption at the USBOP facility. She untruthfully told.the investigators that she had not had a sexual relationship with the inmate-patient. She was subsequéntly charged and plead guilty to making a false statement to federal investigators. Based on this misconduct, NYSED suspended Spitz’s psychology license for one year and placed her on probation for two years. Spitz completed both her suspension and probation, and NYSED restored her license in 2013. In 2015, Spitz moved to California because of her young daughter’s asthma problems. On July 2, 2015, Spitz submitted to the Board an application for a license to practice psychology in California. On August 29, 2016, the Board denied Spitz’s application. In a Statement of Issues filed by the Board, the Board explained that it premised denial of her application on three grounds: (1) her prior federal conviction, (2) NYSED’s disciplinary action, and (3) the fact that Spitz’s federal conviction would have been ground for discipline in California. A hearing on Spitz’s matter was held on March 20, 2017. On. April 12, 2017, an administrative law judge (“ALJ”) issued a proposed decision finding that Spitz had established that she was fit to practice and that she was sufficiently rehabilitated such that no license restrictions were warranted. On June 16, 2017, the Board rejected the ALJ’s proposed decision. On October 24, 2017, the Board issued its own decision staying revocation of her license on the condition that! she complete four additional years of probation. - . - i Spitz alleges one cause of action for an administrative writ of mandate. Spitz alleges that 1 the Board committed a prejudicial abuse of discretion by (1) concluding that her rehabilitation was insufficient, (2) concluding that her acceptance of responsibility was incomplete, (3) concluding that she insufficiently understood her motivation for visiting the inmate-patient and accepting his calls, (4) i imposing probation restrictions on her because doing so does not protect the public. B. Standard of Review CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15. The pertinent issues under section 1094.5 are (1) whether the respondent has proceed without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supparted by the findings, or the findings are not supported by the evidence. CCP §1094.5(c). CCP section 1094.5 does not in its face specify which cases are subject to independent review of evidentiary findings. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. Instead, that issue was left to the courts. Both parties indicate that the court independently reviews the facts concerning the Board's imposition 6f a probationary license for Spitz. Pet. Op. Br. at 10, n.12; Opp. at 10. Both parties are wrong. Petitioner Spitz had no psychology license in California, and no property interest in-one. Where the agency initially decides whether to grant a license to practice a trade or profession, its decision will be upheld unless it lacks substantial evidence to support it. Bixby v. Pierno, (1971) 4 Cal.3d 130, 146 (citation omitted). “Substantial evidence” is relevant evidence that a ‘reasonable mind might accept as adequate to support a conclusion (California ‘Youth Authority v. State Personnel Board, (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is Er in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585. An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner seeking administrative mandamus therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137; Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691 (“[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion). The agency’s decision at the hearing must be based .on the evidence. Board of Medical Quality Assurarice v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is.only required to issue findings that give enough explanation so that parties may determine whether, and "upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. C. Governing Law 1, Denial of License Application The Board may deny a license on the ground that the applicant 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 application is made. Business & Professions! Code §480(a)(1); see Donley v..Davi, (2009) 180 Cal.App.4th 447, 463. When considering whether to deny a license, the Board must evaluate the rehabilitation of the applicant and her present eligibility for a license by considering the following criteria: (1) the nature and severity of the acts or crimes under consideration as grounds for denial; (2) evidence of any acts committed subsequent to the acts or crimes under consideration as grounds for denial which also could be considered as grounds for denial under section 480; (3) the time elapsed since commission of the acts or crimes referred to in subdivision (1) or (2); (4)-the extent to which the applicant has complied with any terms of parole, probation, restitution, or any other sanctions . lawfully imposed against the applicant; and (5) evidence, if any, of rehabilitation submitted by the applicant. 16 CCR §1395. The Board must also take all competent evidence of rehabilitation furnished by the applicant into account. §482. 2. Issuance of License with Terms and Conditions The Board may refuse to issue any license, issue a license with terms and conditions, or suspend a license if the applicant has been guilty of unprofessional conduct. §2960. Unprofessional conduct shall include: (1) conviction of a crime substantially related to the qualifications, functions or duties of a psychologist or psychological assistant; (2) the suspension or imposition of probationary conditions by another state of a license to practice psychology if the act for which the disciplinary action was taken constitutes a violation of this section; and (3) the commission of any dishonest, corrupt, or fraudulent act. Ibid. D. Statement of Facts? 1. Educational Background Spitz is a psychologist licensed to practice in the State of New York since 2005. AR 322. After earning her Bachelor of Arts degree in 1994 in child development at California State University, Chico, she served in the Peace Corps i in Guatemala for two years. AR 126-27. In 1999, she earned a Masters’ degree in psychology from the New School for Social Research in New York. AR 135. She received a Ph.D. in psychology from the same school in 2003, completing a dissertation entitled “Latinas’ Experience of Depression.” AR 323. : Spitz’s doctoral and post-doctoral work included psychiatric interviews, individual therapy, and psychological testing of patients at NYU/Bellevue Hospital Center. AR 324. She also performed fitness for duty evaluations and psychological testing for the New York City Police Department. AR 324. In March 2005, Spitz received her license to practice psychology from All further statutory references are to the Busingss & Professions Code unless otherwise stated. - 2 Spitz requests judicial notice of a New York Correction Law section 753. Spitz’s equal is granted. Evid. Code 3452() ; NYSED. 2. USBOP Employment - In October 2005, Spitz began her first job as a licensed psychologist at USBOP io Brooklyn. AR 144. Spitz had never worked with prison populations. AR 143. Her therapy patients were almost exclusively children and women. AR 143. She previously had a handful of male patients, but no experience with a male prison population. AR 143. . When she began working at the USBOP, Spitz received no training unique to psychologists. AR 144. She was in a two-week training course with maintenance staff and human resources employees for emergency preparedness training that was focused on the chain of command, fire and lockdown drills, and general first aid. Ibid. There were five psychologists for the 1500-1700 inmates at USBOP, but only three of them did inmate work. AR 145. Spitz was only minimally supervised in her new position. AR 145-46. The prison had two buildings approximately a half-mile apart through an underground tunnel. AR 146-47. Spitz was assigned to one building, and the other four psychologists were assigned 0 the other. Ibid. Her superior, the chief psychologist, was supposed to hold weekly group supervision meetings, but these were typically cancelled. AR 146. Spitz’s job at USBOP was to talk to and to write notes about inmates on suicide watch. AR 147-48. She was required “to write a note every 24 hours along with the 10 minute note the assigned inmate had to write down to see whether he continued to be suicidal and make what is called a mental status evaluation where [she] ask[ed] their mood, [...] document[ed] their affect, [and] their observed moves.” AR 150. Co Early in Spitz’s tenure, a destructive career-criminal characterized as a “management problem” by prison staff, was transferred to one of the isolation cells next to Spitz’s office. 1 AR 146-47. This inmate had been in and out of the system so often that he had friends on' the «correctional staff, which was unique because the prison was intended as a temporary holding facility for prisoners in trial or transitioning from one permanent placement to another (i.e, a federal jail). AR 144, 147. He had multiple lawsuits and grievances against prison staff.-AR 147. To get himself removed from the general population, the inmate declared that he was suicidal. AR 147-49, Inmates on suicide watch have their own-cell. AR 147. However; the inmate was immediately removed from the suicide watch ward for taunting other inmates'and encouraging them to commit suicide. Ibid. He was placed in a segregated cell near Spitz’s office. AR 149. Because Spitz was the only psychologist in her building, her supervisor instructed her to perform the required’ daily suicide assessments of the inmate-patient. AR 149-50. Despite Spitz’s . appraisals that the inmate was not suicidal, he was never transferred back to the general population. AR 152, a. The -_ Relationship - For the first few weeks, Spitz was afraid of the inmate and her assessments were limitéd to the necessary questions and observations. AR 150. The inmate complained that Spitz was not being thorough and not spending enough time with him.- [bid. Spitz’; § supervisor capitulated Ar instructed Spitz to stay with the inmate and let him talk. Ibid. During their subsequent sessions, Spitz found the inmate to be interesting and well read. 4 " | | J AR 226. The inmate explained to Spitz that the MDC was corrupt, and that he had connections within the prison, some with high ranking correctional officers. AR 151-53, 156. He was able to eat McDonald’s hamburgers, make cell phone calls, and watch a Halle Barry movie. AR 151, 153; He also stated that certain correctional officers hated and mistreated him. AR 153. At first, Spitz gave the inmate’s complaints and boasts little credence. AR 151. However, she eventually saw evidence that some of the guards did mistreat him. AR 154-55. For example, he was not issued a regular gown, underwear, or socks when placed in isolation, and was forced to wear a blanket for several days; he was denied toilet paper; and his meals were delayed, sometimes for hours. bid. Spitz began to feel sorry for the inmate, and became his advocate by, inter alia, asking a correctional officer to provide the inmate with a gown, toilet paper, 'and underwear. AR 154-55, Eventually, the inmate demonstrated that his accounts of influence and power were fe AR 153. His complaints to her supervisor lead to her being forced to spend more time with him. A high-ranking correctional officer, Lt. Marion, spent an inordinate amount of time visiting him. AR 154. The inmate proved that he regularly acquired contraband, which he claimed included razors, sexually explicit DVDs, fast food, and cellular phones. AR 153-54, 160. Spitz did not report these breaches to her supervisor. AR 156. She was afraid, because he was friends with Lt. Marion. AR 156. She thought that if she continued to listen to him and get him amenities, he would leave her alone. AR 156. On several occasions, the inmate told Spitz that he could have people hurt, he could get razors, he could get cell phones. AR 160, 168. "In the last few weeks before Spitz quit her job, the inmate became more aggressive with his demands. AR 157. Spitz felt that she was under his control. AR 214. During one or two therapy sessions, he asked her to take off her shoes. AR 157, 168. She knew that the inmate had a foot fetish and it “turned him on” and he was sexually aroused when she did so. AR 157, 212- 13. She complied, even though she felt uncomfortable. AR 157. That lasted for a few minutes each time. AR 213. He did not ask her to expose her body parts, but she would have if he had asked. AR 213-14. Insome of these sessions, he masturbated in her presence. AR 227, She never saw his penis, but she heard groaning and believed that he was masturbating while they spoke. AR 227. Spitz became even more uncomfortable, but she continued to play along. AR 155- 57. ; In early January 2006, Spitz was called to her office in the middle of the night by Marion, AR 82, 157-60. She was informed that the inmate’s mother had died and that he required immediate psychological assistance. Ibid. Marion allowed the inmate out of his cell, placed, him in Spitz’s office, and left them alone together, though he remained in chains. Ibid. As soon as Marion departed, the inmate began laughing. Ibid. He informed Spitz that his mother had not died, but that he had wanted to meet with Spitz alone at night, to prove to her that he was in control. Ibid. She terminated the session within twenty minutes and asked that the inmate be returned to his cell. Ibid. She did not write in her notes that the inmate lied about his mother’s death because she did not want Lt. Marion to get in trouble. AR 160. The next morning, she quit her position at USBOP. AR 160. Spitz was scared about what had happened and could not believe she had been involved in something like that. AR 160- 61. ‘On the other hand, Spitz always viewed USBORP as a steppingstone and intended to leave. | AR 221. | She did not immediately return to the practice of peyeliology; but instead volunteered for a. 5s A | EE rl Fo Co { the suicide hotline at Mount Sinai Hospital. AR 161, 354. She also entered into psychotherapy with Dr. Clarence Chen (“Chen”). AR 162, ro | b. Inmate Contact After Spitz’s Prison Employment A couple of months later, in March or early April 2006, Spitz received a phone call on her cellphone from a stranger. AR 164. The male caller informed her that the inmate was being - _ transferred to a new prison (Nassau), he would be calling her soon, and she should accept his call. Ibid. .. A day or two later, the inmate called. AR 164. Spitz accepted his call and continued to accept a total of between four and ten calls from the inmate over the course of the next few weeks. AR 164, 209. The inmate made a point of including at least one threat in every conversation: “I could really mess with your life.” AR 168. At some point, the inmate began requesting phone sex. AR 168. Spitz refused initially, but the inmate was very persuasive, and she succumbed. AR 165. She intended to arouse the - inmate in the calls'and Spitz acknowledged that she also was somewhat aroused by their phone sex. AR 209-10. Spitz also visited the inmate at the Nassau facility on two occasions and brought him socks. AR 166. At the end one visit, Spitz allowed the inmate to hug her for no more than ten seconds. AR 212. This was the only physical contact Spitz ever had with the inmate. AR 166. Shortly’ thereafter, he was transferred, he stopped calling, and she stopped accepting his calls. AR 167. She did not fall in love with the inmate, but she did feel sorry for him. AR 168. While she had initially been afraid of the inmate, she subsequently felt sorry for him. AR 212. She admitted that she was not afraid of the inmate the entire time of their interaction. AR 212.3 | ' ' . R | 3. The Federal Conviction In April 2006, two federal agents came to Spitz’s home and questioned her about prison corruption at USBOP. AR 169. They asked Spitz if she had a sexual relationship with the inmate, Ibid. Spitz said “no” and asked them to leave her alone. AR 169-70. She was not truthful and lied about not having sexual relations with the inmate. AR 203. She was scared, caught off guard, and wanted to put the events behind her. AR 170. oC In February 2007, federal charges were brought against Spitz. She cooperated “fully, and completely” with Assistant United States Attorney Sara Coin and the federal investigators. | AR 170, 174, 338. She wore a wire to a meeting with Lt, Marion. AR 170-71. She did all this before she reached any plea arrangement, out of remorse and a desire to atone and cooperate. AR 333- 38. : Co On March 7, 2008, Spitz pled guilty to a felony violation of 18 USC section 1001(a)(2) (false statement to a federal investigator). AR 80, 173, 305-09. The federal court placed her on a two-year probation, a period of mandatory psychotherapy, and a $100 fine. AR 340-41. On August 5, 2009, the same court ended her probation after one year. AR 176, 347. Subsequently, the State of New York issued Spitz a Certificate of Relief from Disabilities. AR 177, 349. |] 3 She also admitted that Rand’s reports do not reflect any fear of the inmate. AR 214 does Chen’s letter to the district judge. AR 220. | 4. NYSED License Discipline In May 2010, Spitz entered into a consent order with NYSED wherein she admitted that she had made a false statement to a federal agent. AR 179, 310-17. According to the consent order’s Specification of Professional Misconduct, her conviction was for falsely representing to a Special Agent of the United States Department of Justice that “she had not had a sexual relationship with an inmate at the Metropolitan Detention Center (MDC), when, in fact, she had been involved in a sexual relationship with an MDC inmate.” AR 317. In the consent order, Spitz agreed (1) to be suspended from practice for one year, (2) not to return to practice until evaluated and certified as fit for duty by a psychologist approved by the State, and (3) to complete an intensive two-year probation. AR 318-20. Spitz served her suspension and completed her disciplinary probation, and her New York license was fully resfored in full in 2013, AR 185. Spitz has learned from this terrible experience and her mistakes. AR 192. Now, she is a mom who must be a positive role model, she understands what is necessary, and these events were a complete misrepresentation of who she is. AR 192, 3, Psychiatric Treatment and Practice Monitoring Spitz began her psychotherapy with Chen in September 2006. AR 162-63, 326-27. They addressed her lapses in judgment, why she would allow someone to manipulate her, what she could do in the future to prevent this, her weaknesses as a clinical therapist, what environments she should avoid, and red flags that could indicate she might need to curtail therapy with a client. AR 231-32. Through her therapy with Chen, she learned to establish and enforce boundaries with patients and how to remain in control of therapy sessions. AR 233, 303. In a 2008 letter submitted to the federal judge for Spitz’s sentencing, Chen stated that Spitz had expressed significant remorse, that she had gained insight into her aberrant behavior, and that she had taken full responsibility for her misconduct. .AR 326-27. He also stated that he did not believe that she was at risk for repeating her misconduct. Ibid. As a condition of her New York license discipline, Spitz also met with Mark Rand (“Rand”), Ph.D., eight times between 2011 and 2013. AR 180-81, 250, 318. She acknowledged to Rand that she. had a tendency to over-empathize, she felt easily manipulated by the inmate, and this personality weakness affected her as a psychologist. AR 224-27. As a probation condition, Thomas Caffrey (“Caffrey”), Ph.D., served as Spitz’s Practice - Monitor between 2011 and 2013. AR 181-83, 186. . Caffrey met regularly with Spitz to review her patient charts and discuss her care and treatment of randomly selected clients. AR 318-19. Spitz successfully completed her two. years of practice monitoring, resulting in the full restoration of her New York license in 2013. AR 185. 6. Work Experience after USBOP In 2007, after approximately a year of unemployment and volunteering, Spitz began working as a Clinical Research Associate at the New York State Psychiatric Institute at Columbia University in the anxiety disorders clinic, and as a staff psychologist at the Epilepsy Institute in New York. AR 187, 324, 353. Between 2008 and 2012, she worked at the Neurocognitive 7 | | Evaluation & Treatment Clinic in Manhattan, where she screened, tested, and assessed patients for traumatic and post-traumatic injuries; rand conducted individual, couple, family, and group psychotherapy. AR 323. She eventually rose to the position of Senior Psychologist and was put in'charge of all aspects of the clinic. Ibid. | From 2012 to 2015, Spitz worked as a clinical psychologist at Go Medical Services in Queens, conducting cognitive and psychological evaluations for New York City’s Metropolitan Transit Authority, specifically their paratransit program. AR 185-86, 323. She evaluated between 15 and 25 physically and psychologically impaired Access-A-Ride applicants a day. Ibid. | In November 2015, at the recommendation of her child’s physician, she left New York:and moved to San Clemente, California, where she began work as the Director of the Clinical Neuroscience Department at Dual Diagnosis, Inc. AR 189-90, 323. 7. Application for a California License ve) On August 1, 2016, the Board received Spitz’s application for pepchologiat licensure. AR 4,293-303. On August 29, 2016, the Board denied her application. AR 304. Spitz requested an administrative hearing. AR 26. 8. Administrative Hearing and Decision On December 8, 2016, the Board's Executive Officer, as Complainant, filed a Statement of Issues against Spitz alleging three causes for denying her application: (1) Spitz had been convicted of a crime substantially related to the qualifications, functions, or duties of a psychologist, (2) Spitz committed an act that would have been grounds for discipline if committed by a licensee, and (3) her license to practice psychology was disciplined by the State of New York. . AR 4-13. a. The ALJI’s Proposed Decision On March 20, 2017, the ALJ heard Spitz’s case. On April 12,2017, the ALJ smite his Proposed Decision to the Board, wherein he ordered that Spitz be issued a license to practice psychology in California without restriction. AR 26-36. The ALJ found that the Complainant had met her burden of proof for all three causes for denial of Spitz’s application. AR 34. Spitz’s false statement to the federal investigator also was substantially related to the qualifications, functions, or duties of a psychologist. AR 34. However, the ALJ noted that the Complainant had not charged, Spitz with unprofessioral conduct based on her sexual contact with the inmate at the USBOP and concluded that this fact should not be given undue weight in determining her discipline. AR 35. He noted that the significance of any applicant’s misconduct diminishes greatly over time and Spitz had committed no further misconduct occurred in the more than 11 years since the events at issue. Ibid. Sspiat _ had had extensive therapy and successfully practiced under a probationary license for two years without incident. AR 35. The ALJ concluded that Spitz’s expressions of extreme remorse for both the lie and the inmate relationship 1 were credible and noted that her acknowledgement of the wrongfulness of her past actions was an important step in her rehabilitation. Tbid. He also noted that she had already ‘ completed her penal and New York disciplinary probations. Ibid. The ALJ ultimately concluded 8 - | Fo that Spitz had established that she is fit to practice and that she is rehabilitated to such an extent that license restrictions were not warranted. AR 35-36. °° b. The Board’s Decision On June 16, 2017, the Board voted to reject the ALJ’s Proposed Decision. AR 38. The Board requested written argument, particularly “as to whether respondent has shown sufficient rehabilitation to allow her to practice in California with an unrestricted license.” AR 50. The parties submitted written argument. AR 51-77. On October 24, 2017, the Board issued a Decision After Rejection. AR 79- 95. The Decision accepted the ALJ’s proposed findings that cause exists to deny Spitz a license on the three causes charged. AR 34. The Decision also accepted the ALJ’s conclusion that the lied to a federal agent was serious, sexual contact with an inmate is even more concerning, but that this conduct was not charged and must not be given undue weight. AR 35. The Decision further accepted that Spitz’s testimony was credible, she expressed great remorse, and the events occurred 11 years ago, before Spitz’s extensive therapy and successful practice under a probationary license for two years. AR 35. - However, the Board added findings in two areas." First, Spitz failed to see the inmate as a client to whom she owed a duty. - Spitz stated that she had learned from the event, and would not place anyone in harm’s way, including the public and her family. She did not, however, Epes what impact her conduct had on the inmate. AR 89. Second, while she professed to take responsibility for her actions, Spitz still lay Blaine on others: (a) the inmate was manipulative; (b) she was not properly trained; and (c) she was ordered to spend more time with the inmate. AR 89. Moreover, while she explained why she committed "misconduct at MDC, she ‘provided little evidence of understanding her own motivation in continuing to visit the inmate and the same misconduct while he was at Nassau jail. AR 89. The Board concluded that it would be remiss in its mission to protect the public if it did not place terms and conditions on Spitz’s license in order to ensure that she is safe to practice while furthering respondent’s rehabilitation. AR 89. The Board granted Spitz a license subject to an additional four years of probation with terms and conditions that substantially replicated those contained in her NYSED probation. AR 89. _E. Analysis Petitioner Spitz argues that she is entitled to a writ of mandate on the grounds that the Board’s (1) finding on rehabilitation is not supported by the weight of the evidence and (2) imposition of probation is a manifest abuse of discretion. 1. Rehabilitation The Board’s decision to subject Spitz’s license to a four-year probationary term was premised on a finding that the showing of Spitz’s rehabilitation is inadequate. See AR 88-89. The Board concluded that Spitz (1) “failed to see the inmate as a client to whom owed a duty” and did not understand what impact her conduct had on “her client, the inmate,” (2) “still lay blame at the feet of others,” and (3) provided little evidence concerning her understanding why she telephoned and visited the inmate after she left USBOP. AR 89. 9 po I | Spitz contends that the Board's rehabilitation finding is unsupported by the wei ght of the evidence. Pet. Op. Br. at 10-14. As noted ante, Spitz applies the wrong standard of review. The court reviews the Board’s licensure decisions, for which an applicant has no property interest, for substantial evidence. The court must uphold the Board’s decision if there is evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value, that Spitz is not fully rehabilitated. See Mohilef v. Janovici, supra, 51 Cal. App.4th at 305, n.28. When considering whether to deny a license, the Board must evaluate the rehabilitation of the applicant and her present eligibility for a license by considering the following criteria: (1) the nature and severity of the acts or crimes under consideration as grounds for denial; (2) evidence of any acts committed subsequent to the acts or crimes under consideration as grounds for denial which also could be considered as grounds for denial under section 480; (3) the time elapsed since commission of the acts or crimes referred to in subdivision (1) or (2); (4) the extent to which the applicant has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the applicant; and (5) evidence; if any, of rehabilitation submitted by the applicant.- 16 CCR §1395. a. Undue Weight to Spitz’s Sexual Relations With the Inmate Spitz claims that the Board reached its conclusion on rehabilitation by giving undue weight to the evidence concerning her sexual relations with the inmate. She notes that the Complainants Statement of Issues alleged only that she made a false statement to federal investigators and that she subsequently suffered a criminal conviction; the Statement of Issues did not did not allege her _ treatment of the inmate as a basis for denial. Therefore, Spitz argues that her rehabilitation must be gauged from her false statement, not her interactions with the inmate. Pet. Op. Br. at 10-11. | The Board’s decision noted as much: “[Spitz] falsely denied to a federal agent that she had certain sexual contact with an inmate. The misrepresentation in itself was serious. Having sexual contact with an inmate is even more concerning. However, this conduct was not charged as a basis for license denial; and consequently, must not be given undue weight in determining the appropriate discipline.” AR 88. Spitz argues that, despite this lip service, the Board’s conclusions regarding her lack of rehabilitation are based exclusively on her misconduct with the inmate. Pet. Op. Br. at 11. Spitz’s fundamental point is that she was charged with making a false statement to a federal agent, not engaging in sexual misconduct with an inmate. Of course, Spitz is correct about the scope of the charge. But her false statement to federal investigators was a denial that she had sexual relationship with the inmate; the sexual misconduct cannot be separated from the false statement. Therefore, Spitz’s rehabilitation from lying to a federal agent about her sexual relationship with the inmate cannot be separated from her rehabilitation from the underlying sexual misconduct. The severity of the false statement is an important rehabilitation criterion under 16 CCR section 1395. Spitz’s lie to investigators about her sexual relations with the inmate was significant, both because of her professional duties as a psychologist and because of its importance to the federal investigation of corruption in the prison. As Spitz implicitly acknowledges, the Board had the discretion to rely on Spitz’s conduct with the inmate in evaluating her rehabilitation.” | _ 4 In reply, Spitz describes the Board’s permissible evaluation of the false statement’s 10 The question then is whether the Board gave “undue weight” to Spitz’s relations with the inmate in evaluating rehabilitation from the false statement and conviction. By using this term, the Board expressly acknowledged that Spitz’s inmate relations cannot be the sole basis for its’ decision to deny or impose probationary conditions on Spitz’s licensure. Spitz points to nothing in the Board’s decision that shows otherwise. She argues that the Board’s decision changes only seven sentences from the ALJ’s proposed decision, and all seven concerned her relations with the inmate. Pet. Op. Br. at 11." The mere fact that the Board based its decision to condition licensure on probationary conditions because of the consequences of Spitz’s sexual relationship with the inmate does not mean that it gave undue weight to that evidence; it simply means that the sighificance of her relationship with the inmate was the turning point where the Board departed from the ALJ’s recommendation. Spitz’s argument that the Board gave undue weight to the underlying evidence of her sexual relations with the inmate is unsupported. "Ol b. Whether Spitz Perceived the Inmate as a Client Spitz argues that no evidence supports the Board’s finding that she “still failed to see the inmate as a client to whom she owed a duty.” AR 89. Spitz notes that (1) her testimony twice referred to the inmate as her patient (AR 152, 154), (2) she testified to daily suicide assessment and mental status examinations of the inmate consistent with her psychologist duties (AR 150), and (3) she testified extensively about learning to maintain better boundaries and control of her patients in therapy sessions. AR 83, 184, 233. All of this supported her position that she had addressed and corrected the clinical deficiencies in her treatment of the inmate, Pet, Op. Br. at 11. The Board does not directly defend its finding that Spitz failed to see the inmate as a client, Instead, the Board contends that Spitz showed that she misunderstands her professional duties by flouting the inmate’s privacy rights during her testimony. Spitz testified that the inmate “would tell me all about how he’d been there, how terrible the MDC was, how corrupt it was.” AR 151. He told her all about the things he would do on weekends, making cell phone calls, eating McDonalds.” AR 151. He also told her he had a contraband DVD with sexual content, which was prohibited. AR 153. She also testified about his complaints of correctional staff abuse. AR 154. The Board contends that this nonchalant disclosure of the inmate’s communications shows a lack of the necessary “state of mind” for rehabilitation. Opp. 12-13. Spitz is correct that her understanding that the inmate was her client, and the impact of her " conduct on the inmate, was never at issue. No question was raised on, that subject in the administrative hearing, and no notice was given to her that the matter was material. Therefore, she had no reason to testify about her understanding of the (mostly hypothetical) impact of her misconduct on the manipulative inmate. See Reply at 5. Moreover, Spitz’s sexual relations with the inmate are germane only insofar as they show the severity of her false statement to federal investigators. Her false statement was severe because her sexual relations were unprofessional and harmed the public. While the impact of the sexual relationship on the inmate may be relevant significance for rehabilitation as the degree of falsity, the legitimacy of her motives in making it, and the impact on the public. Reply at 4. These factors are consistent with the Board's consideration of the severity of Spitz’s false statement. 11 to severity, it is too far afield to merit consideration. ‘ ~The Board’s argument about the inmate’s patient privacy is a makeweight. The Complainant never objected to Spitz’s testimony on this ground, and neither the ALJ nor the Board ever mentioned the issue. It is not at all clear that Spitz violated the psychotherapist-patient privilege (Evid. Code §1014), or that the privilege was not waived, either as a result of a crime- fraud exception to a privilege or as a result of other criminal or administrative proceedings. See Evid. Code §912. As for general privacy, the inmate’s name and identifying information was never disclosed: See Reply at 7-8. The Board’s finding that Spitz “still failed to see the inmate as a client to whom she owed a duty” is unsupported as outside the scope of the issues for which she was given notice.’ ¢. Whether Spitz Blamed Others for Her Misconduct The Board found: “[W1hile respondent professed to take responsibility for her actions, she still lay blame at the feet of others: the inmate was manipulative, she was not properly trained, she was directed to spend more time with the inmate. Moreover, while those reasons, and her wanting to appease him, were provided to explain her conduct while working at MDC, she provides little evidence of understanding her motivation for visiting the inmate and continuing her same conduct once she left MDC and he was in Nassau County jail.” AR 89. Spitz challenges the Board's finding that she still “lay blame at the feet of others” for her misconduct. Spitz argues that she merely testified to facts providing necessary context for mitigation. According to Spitz, the inmate was manipulative. He was a career criminal ‘who manipulated Spitz and other prison officials. Spitz argues that her training and supervision at the prison were inadequate. She received almost no supervision and only two weeks of emergency preparedness training. She also necessarily had to testify that she was instructed to spend more time with the inmate by her supervisor. Had she omitted this testimony, the ALJ and Board could have wrongly concluded that she was spending significant additional time with the inmate by her choice. Pet. Op. Br. at 12-13. : . While Spitz did have to provide a factual context, substantial evidence supports the Board's finding that she continued to blame others for her failure. The court accepts that the inmate was manipulative, and that Spitz necessarily had to ‘describe how he drew her in to the séxual relationship. Yet, Spitz blamed other persons besides the inmate for her sexual relations and lie to federal investigators. As the Board notes, Spitz implicitly blamed her sexual relations with the inmate on improper training, the USBOP’s larger per capita inmate population than the norm, her supervisor’s direction to spend more time with the inmate, and the prison’s failure to transfer the inmate to general population despite her appraisals that he was not suicidal. She blamed her lie to ~ federal investigators on the fact that they “caught [her] off guard.” AR 170.5 This evidence does not excuse Spitz, a licensed psychologist, from engaging in a blatantly 5 Spitz may fairly argue that the Board’s consideration of her failure to see the inmate as a client is giving undue weight to the evidence concerning their sexual relationship. The court prefers to see it-as outside the scope of the issues properly presented on the severity of her false * statement. 5 Spitz’s opening brief continues to rely on the same excuses. Pet. Op. Br. at 2-3. 12 | unprofessional sexual relationship with an inmate, both while she worked in the prison and after her prison employment ended. A smaller prison population, more training, and better supervision were not necessary for her to avoid this unprofessional and illegal conduct. Nor is her lie excused by being caught off guard. The Board had substantial evidence to conclude that, while Spitz credibly expressed remorse, she did not accept full responsibility for her misconduct. See AR 172, 178. Seide v. Committee of Bar Examiners, (1989) 49 Cal.3d 933, 940 (“Fully acknowledging the wrongfulness of his actions is an essential step towards rehabilitation.”). . d. Spitz’s Motivation for Post-USBOP Interaction With the Inmate The Board found that Spitz “provide[d] little evidence of understanding her motivation for visiting the inmate and continuing her same conduct once she left MDC and he was in Nassau County jail.” AR 89. Spitz contends that the weight of the evidence does not support this finding.” Spitz argues that her testimony showed “a complex myriad of emotions and motivations” that prompted her misconduct after her prison employment, including an intense eagerness to please, intimidation by the inmate and intermittent fear of his threats, compassion for the inmate’s situation, expectation that appeasement would end the situation, and feelings of flattery and sexual arousal. Pet. Op. Br. at 13-14, Spitz points out that Chen, her treating psychologist, concluded for her federal sentencing in 2008 that she had “made good progress in her therapy in gaining insight into her aberrant behavior and learning from past misconducts.” AR 327. Spitz argues that the Board presented no witnesses to testify that'she lacked an understanding of her motivations or emotions. Finally, Spitz contends that her complete understanding of the complex emotional underpinnings of her conduct in 2006 is “hardly relevant” to the question of her rehabilitation to practice in 2018. Pet, Op: Br. at 13-14, ) Spitz takes the Board’s finding out of context. The Board’s decision was not so concerned with Spitz’s true motivation for her continued sexual relations with the inmate after she left her prison employment as it was with the fact that her reasons for engaging in the sexual relationship in the first place - lack of training and supervision, inmate manipulation, and supervisor direction to spend time with the inmate - did not explain why she continued the sexual relationship with the inmate after her prison employment ended. AR 89 (20). Moreover, the Board correctly argues that Spitz’s testimony at the hearing for the first time ‘inserted fear of the inmate as a motivating factor. Nothing in Chen’s letter to the sentencing judge refers to fear as Spitz’s motivation, and Chen should know since he treated her from September 2006 to September 2008. See AR 326-27. One would certainly have expected him to present the issue in his letter supporting Spitz at her sentencing if it were true. Yet, as the Board’s opposition points out, Spitz consistently described her personality weakness of an eagerness to please as the reason for her misconduct, and never relied on fear of the inmate. See Opp. at 12. " Inreply, Spitz argues that she was not given notice that her motivation for sexual relations with the inmate would be in issue. Reply at 5-6. This argument is spurious. As discussed ante, 7 Again, the Board’s decision need only be supported by substantial evidence, not. the weight of the evidence. 13 1 | \ « i i | | I I Spitz’s motivation for her sexual relationship with the inmate is relevant to the severity of her false statement to federal investigators. The Complainant was not required to give specific notice that Spitz would be asked about her reasons for entering into sexual relations with the inmate in| {the Statement of Issues. In any event, the Board did not elicit this testimony; Spitz testified on direct examination by her lawyer that fear was a motivating factor in her relationship with the inmate. See, e.g., AR 150.8 Substantial evidence supports the Board’s conclusion that Spitz did not adequately - why she continued to have sexual Eelations with the inmate after she left her prison employment. 2. Propriety of Probation “i In imposing a four-year probation term, the Board found: “Considering the factors outlined in the regulations and disciplinary guidelines, denying respondent a license is not required to protect the public. The Board would be remiss in its mission to protect the public, however, if] it did not place terms and conditions ... on respondent’s license in order to ensure the respondent i is safe to practice while furthering respondent’s rehabilitation.” AR 89. - Petitioner Spitz argues that the Board's imposition of a four-year probation term as a condition of licensure is grossly excessive and a manifest abuse of discretion. Pet. Op. Br. at 14-, 15. Spitz argues that the rehabilitation criteria set forth in 16 CCR section 1395 show that she i s fully rehabilitated. Pet. Op. Br. at 14-15. With respect to the nature and severity of her misconduct, Spitz notes that the only act at issue was a single false statement made to federal investigators concerning sexual relations that were limited to removing shoes, phone sex, and a ten second’ hug. _ Pet. Op. Br. at 14. This misconduct was followed by months of cooperation with federal investigators, including wearing a wire, and led to a single felony.conviction with probation ‘and no Jail time. Pet. Op. Br. at 14-15. With respect to the criteria for subsequent acts and time elapsed since the crime, Spitz notes that she has not committed a single impermissible act in the twelve years since her the false statement. Pet. Op. Br. at 15. With respect to the criterion of probation compliance, Spitz notes that she complied with and completed the probations imposed by, the federal district court and the NYSED. Ibid. Finally, with respect tothe criterion of the applicant’s evidence of rehabilitation, Spitz points to her eight years of intensive psychotherapy, continuing education courses, favorable professional evaluations, subsequent psychology practice, decades of work experience, and testimony about her professional insights post-incident. Ibid. The rehabilitation criteria in 16-CCR section 1395 weigh in Spitz’ s favor with the exception of the first criterion for the nature and severity of misconduct. Her crime is over twelve years old, she has not committed subsequent misconduct, she has completed two sets of probationary terms, - and she has submitted substantial rehabilitation evidence from diverse sources. But the first criterion is critical. As the Board notes (Opp. at 15), Spitz’s, felony Sonvietisn for false statement and the underlying sexual relations misconduct were severe. This misconduct directly related to Spitz’s duties as a psychologist and harmed the dignity of the psychology profession. See §§ 2900, 2920.1. While the Board's rehabilitation finding that Spitz still did not 8 Spitz’s purported fear of the inmate is not believable for the sexual relationship able the prison employment. Spitz even admitted that she was not afraid of the inmate during the entire time of their interaction. AR 212. : 14 view the inmate as-a client requiring mental health treatment is not within the scope of issues, its findings that Spitz tended to blame others and did not fully grasp her motivation for the post-prison employment misconduct further this conclusion. Spitz also contends that the Board’ s decision violates Topanga’s requirement of a logical nexus between her misconduct and the Board's decision because she successfully completed a duplicative probationary period in New York. Pet. Op. Br. at 15. The short answer is that the Board must protect the public in this state, and the burdens on Spitz of additional and duplicative probationary terms are irrelevant to thaticoncern. See Sulla v. Board of Registered Nursing, (2012) 205 Cal. App.4™ 1195, 1206. No doubt! iSpitz sees little need for a four-year probation duplicative of the conditions contained in her NYSED probation. Yet, Spitz herself acknowledged that her misconduct was based on character flaws of a tendency to over-empathize and eagerness to please, and these personality weaknesses affected her as a psychologist. AR 224-27. The Board is entitled to receive assurance that Spitz’s character flaws will not result in misconduct when she practices in this state. The probationary term and conditions sufficient satisfy this concern. The Board did not commit a manifest abuse of discretion by imposing probation on Spitz s psychologist license. Although the Board’s finding that Spitz failed to see the inmate as a client is outside the scope of proper issues, there is no need to remand for additional hearing because the Board’s decision to place Spitz on probation is supported by substantial evidence and there is no reason to believe it would reach any other result. : : | F. Conclusion The petition for writ of mandate is denied. The Board’s counsel is ordered to prepdre|a proposed judgment, serve it on Spitz’s counsel for approval as to form, wait ten days.after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objeto; An OSC re: judgment is set for February 21, 2019 at 9:30 a.m. 15 DECLARATION OF SERVICE BY U.S. MAIL Case Name: Maria Magdalena Spitz v. Board of Psychology Case No.: BS172326 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On February 8. 2019, I served the attached RESPONDENT BOARD OF PSYCHOLOGY’S OPPOSITION TO PETITIONER’ S MOTION FOR RELIEF by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Derek F. O'Reilly-Jones Attorney at Law Bonne Bridges Mueller O'Keefe & Nichols - Los Angeles 355 South Grand Ave., Ste. 1750 Los Angeles, CA 90071-1562 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on Noverhber 6, 2018, at iego, California. A. Gilou Declarant Ne Signature SD2018800373 71654762.docx