City of San Diego

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D071888 (Cal. Ct. App. Oct. 19, 2017)



TONI YUN BERG, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

Law Office of A. P. Zmurkiewicz and A. P. Zmurkiewicz for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Michael J. McGowan, Deputy City Attorney, for Defendant and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00034850-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed. Law Office of A. P. Zmurkiewicz and A. P. Zmurkiewicz for Plaintiff and Appellant. Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Michael J. McGowan, Deputy City Attorney, for Defendant and Respondent.

The City of San Diego (City) denied Toni Berg's application to renew her massage-therapist license. Berg then unsuccessfully challenged the denial in the superior court. Berg appeals. We affirm. Substantial evidence supports the court's findings that Berg materially misrepresented her criminal background in the renewal application and thus the City properly denied the application.



The San Diego Municipal Code extensively regulates the massage-therapist business, and requires a police permit before a person may act as a therapist. (San Diego Mun. Code, § 33.3501 et seq.) Under these regulations, the police chief "shall" issue a permit unless certain enumerated circumstances apply. (§§ 33.0301, 33.0305, 33.3510.) The two circumstances relevant here are: (1) section 33.0305(a): "the applicant has knowingly made a false or misleading statement of a material fact or omission of a material fact in the application"; and (2) section 33.3510(b): the applicant has been convicted of Penal Code section 415 (disturbing the peace) "in satisfaction of, or as a substitute for, an original charge of" certain specified offenses, including Penal Code sections 647, subdivision (b) (disorderly conduct by soliciting or engaging in prostitution).

All further unspecified section references are to the San Diego Municipal Code (Municipal Code).

For readability, we shall omit the term subdivision when citing to Penal Code sections 647 and 415.

In 2010, Berg received a police permit to practice massage therapy in San Diego. Three years later, in October 2013, she was arrested and charged with a Penal Code section 647(b) prostitution offense. In July 2014, pursuant to a plea bargain, Berg pled guilty to Penal Code section 415(3), which prohibits a person from disturbing the peace by using "offensive words in a public place which are inherently likely to provoke an immediate violent reaction."

Less than one year later, in March 2015, Berg applied to renew her massage therapy permit. The printed application asked Berg to "List any criminal conviction(s) within the last year, [including] [e]xpunged convictions." (Italics added.) On the space below this question, Berg falsely stated "NONE." On the bottom of the application, Berg signed her name under the statement: "I declare under penalty of perjury that the statements made on this application are true and correct to the best of my knowledge and belief. I understand that any false statements or information are grounds for denial of this application and that I am subject to prosecution [for false statements] . . . ." (Italics added.)

One week later, the City denied Berg's renewal application based on her Penal Code section 415(3) conviction. (See § 33.3510.) Berg challenged the denial in an administrative proceeding, and was represented by counsel at the administrative hearing. At the conclusion of the hearing, the hearing officer denied Berg's appeal on two grounds.

First, the hearing officer found Berg "knowingly omitted a material fact" from her application, and thus the denial was proper under section 33.0305(a). The officer reasoned: "[T]he application specifically requested that [Berg] list any criminal convictions . . . within the past year on her application. [Berg] had pled guilty to Penal Code section 415(3) on or about July 21, 2014, but failed to list the conviction on her application. [Berg] had previously applied for a m[a]ssage therapist permit on more than one occasion and should have been familiar with the application process. [Berg] did not offer any testimony or other evidence regarding her failure to list the conviction on her application. . . . [¶] The omission [of the criminal conviction] is significant and poses a threat to the public in that permitees are not directly monitored by the Police Department. Licensees are expected to be truthful in their applications and dealings with the public and regulatory agencies. In this instance, [Berg] was not truthful when she filled out her application and is not trustworthy for purposes of this permit."

Second, the hearing officer found the City had properly denied the petition under section 33.3501 because Berg had pled guilty to violating Penal Code section 415(3) "in satisfaction of, or as a substitute for, an original charge" of section 647(b). The officer explained: "There is a nexus, as well as a substantial relationship, between [Berg's] criminal history and [Berg's] fitness to practice, as well as the qualifications, functions, and duties of a [massage therapist] permitee. The massage therapy industry has historically been plagued with instances of prostitution and solicitation of illegal acts. The [police department's] concerns given [Berg's] criminal history [are] neither arbitrary nor unreasonable."

Superior Court Writ Proceedings

Berg petitioned for a writ of mandate, challenging the administrative decision and seeking an order directing the City to renew her massage therapist permit. She argued: (1) the use of her disturbing-the-peace conviction (Pen. Code, § 415(3)) to deny her renewal application violated her due process rights because the conviction (on its face) was not reasonably related to her massage-therapist qualifications; and (2) her misrepresentation on the application was not material and therefore not a proper legal ground to deny her application.

After considering the parties' papers and conducting a hearing, the superior court denied the writ petition on both grounds. Regarding the misrepresentation ground, the court stated: "[Berg] clearly lied in her permit application when she wrote ['NONE.'] [Berg] contends in her reply brief that this was a mere omission or non-disclosure. The court disagrees. She did not leave this line blank. What she did when she wrote 'NONE' was actually an active misrepresentation because she knew full well she had pled guilty to violation of [Penal Code] section 415(3) . . . [when] she completed under penalty of perjury the renewal application . . . . [T]his was a valid, independent ground for denying the permit application. . . . The court agrees with the Hearing Officer that the City has the right to expect applicants to be truthful and forthcoming in their submissions to the City, and the court agrees this was a material misrepresentation under oath. At a minimum, petitioner should have disclosed the conviction and provided an addendum as to why [she believed] it was not disqualifying."

On the second ground, the court stated the focus should be on the applicant's conduct rather than on whether the conviction was a lesser included offense of prostitution, but also found the hearing officer did not abuse his discretion when the officer found a sufficient nexus between the offense and the massage-therapist license: "To grant a license renewal to a former licensee who was arrested for prostitution (and then lied about it under oath) can validly be interpreted by the City as unfair to law-abiding, legitimate massage therapist licensees who operate within the rules."


I. Review Standard

A. Legal Principles

Code of Civil Procedure section 1094.5, the state's administrative mandamus provision, governs our review of this case. (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 418 (Young).) Under this statute, a court's review of an administrative agency's decision " 'extend[s] to the questions whether the [agency] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.' [(Code Civ. Proc., § 1094.5, subd. (b).)]" (Ibid.)

A trial court's review of an adjudicatory administrative decision is subject to two possible review standards depending on the nature of the right involved. (Code Civ. Proc., § 1094.5, subd. (c).) If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence, and is not bound by the agency's factual findings. (Young, supra, 10 Cal.App.5th at p. 418.) However, if the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence. (Ibid.)

As the City conceded below, the independent review standard applied because the City's denial of Berg's renewal application affected her fundamental right to practice her profession. (See Gillis v. Dental Bd. of California (2012) 206 Cal.App.4th 311, 318; Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 767.) Under this review standard, the trial court must " ' " ' "weigh the evidence and make its own determination as to whether the administrative findings should be sustained." ' " ' " (Gillis, supra, at p. 318.) On appeal, we evaluate the trial court's factual findings under the substantial evidence standard. (Id. at pp. 318-319.) " ' " ' "Conflicts in the evidence must be resolved in favor of the judgment and where two or more inferences can be reasonably drawn from the facts, the reviewing court must accept the inferences deduced by the trial court." ' " ' " (Ibid.) We review the court's legal determinations under the de novo standard. (Id. at p. 319.)

B. Court's Application of Review Standard

The trial court's written explanation of its ruling contains some contradictory statements as to whether it was exercising its independent judgment or applying a substantial evidence review. However, Berg does not challenge the court's review standard on appeal, and thus forfeited any such claim. Moreover, she did not raise the issue in the trial court, and thus cannot raise it for the first time in this court. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28; see Sommer v. Martin (1921) 55 Cal.App. 603, 609-610.)

In any event, on our review of the court's written order, we are satisfied the court did in fact apply the proper review standard. The court stated a trial court must "exercise its independent judgment in reviewing the evidence . . . ." Additionally, in considering the Municipal Code sections in light of the factual record, the court's comments reflect that it evaluated the evidence on its own and independently reached the same conclusions as did the hearing officer, rather than merely reviewing the hearing officer's conclusions.

II. Analysis

Section 33.0305 provides that when an applicant is required to obtain a license or permit from the police department to engage in a business or skill, the police chief "shall issue [the] permit unless" one of six circumstances apply. One of those circumstances is "the applicant has knowingly made a false or misleading statement of a material fact or omission of a material fact in the application." (§ 33.0305(a).) Additionally, section 33.3510 states: "an application for a . . . massage therapist permit shall be denied" if the "applicant within five years immediately preceding the [application date] has been convicted of a charge of violating any lesser included or lesser related offense, including California Penal Code section 415, in satisfaction of, or as a substitute for, an original charge of any of the offenses listed in section 33.3510(a) [which include Penal Code section 647(b)]." (§ 33.3510(a), (b).)

The court found section 33.0305 and section 33.3510 each independently supported the City's denial of Berg's permit-renewal application. Because we find the court's conclusions were correct on the misrepresentation ground (§ 33.0305), we need not reach the second ground (§ 33.3510).

The undisputed evidence shows Berg concealed the fact that she had been convicted of Penal Code 415(3). In response to a direct question about "any criminal conviction(s) within the past year," Berg wrote "NONE." Berg does not challenge that this statement was false and that she made the false statement knowingly and under penalty of perjury.

Berg argues only that her false statement was not grounds for the City's denial of her renewal application because her false statement was not "material" within the meaning of section 33.0305(a). Berg defines "material" as a fact that would specifically influence a decision or affect the outcome, citing to decisions that have defined the term in situations different from this one. (See Kritt v. Athens Hills Development Co. (1952) 109 Cal.App.2d 642, 644 [describing appellate rules for summarizing factual record]; People v. Abel (2012) 53 Cal.4th 891, 931 [setting forth disclosure standards for confidential information in a criminal case]; (Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 728-729 [rules governing new trial motions].)

This outcome-focused definition does not apply in this case. The Municipal Code specifically states: "Failure to disclose any material circumstance, whether or not such circumstance would have been grounds for denial under section 33.0305 is grounds for denying the permittee a renewed permit." (§ 33.0308(g), bold type added.) Under this provision, the definition of "material" as used in section 33.0305(a) is not limited to facts supporting a specific ground for denial of a license, and instead more broadly encompasses information that is relevant or potentially relevant to the City's evaluation of the permit application. (See City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616-617 [court must apply " 'plain and commonsense' " meaning of statute and construe it in context of the statute as a whole and consistent with other parts of the statutory scheme].) Under a common-sense definition, the failure to honestly answer the direct question on the application form was certainly material because it was relevant to the City's evaluation of the permit application.

Additionally, even assuming the correctness of Berg's narrower outcome-focused definition, her misrepresentation was material. As stated on the application form, a false statement is an express ground for denying the application, and thus Berg's misstatement was material to the City's permit determination. A misrepresentation on an application form supports a reasonable inference the applicant will not be trustworthy in other contexts, and trustworthiness is an essential quality for a massage therapist. As the hearing officer pointed out, because "permitees are not directly monitored by the Police Department" and are in close, intimate contact with customers, it is reasonable for the City to conclude a massage therapist applicant who has provided false information on the application form is unqualified and should be denied a permit. The trial court found "the City has the right to expect applicants to be truthful and forthcoming in their submissions to the City" and thus when these rules are violated, the information is material and provides an independent basis for denying the application. Substantial evidence supports this finding.

Additionally, Berg's Penal Code section 415(3) conviction after a section 647(b) arrest was material to the City's renewal determination because the Municipal Code expressly provides this type of conviction is a mandatory basis for denying the petition. (§ 35.3510(a) & (b).) Berg argues the Municipal Code section is unconstitutional as applied to her because the conviction on its face does not relate to a massage therapist's duties. Regardless of the merits of this argument or whether Berg, or her attorney, believe that this provision should not be enforced, the information was clearly material to the City's consideration of the application. It is for the police chief, and ultimately the courts, to decide whether a Penal Code section 415 conviction is a proper ground for denying the permit. It is not for the applicant to unilaterally decide a certain Municipal Code section does not apply and then to conceal information specifically requested. Moreover, Berg did not merely leave the answer blank, she intentionally sought to mislead the City. Such an affirmative misrepresentation is clearly material under the circumstances here.

Based on our conclusion that Berg's application was properly denied because she made a knowing and material misrepresentation (under penalty of perjury) in her application, we need not address the second independent ground (§ 33.3510) for the denial of the petition.

The fact we do not address this issue should not be interpreted as suggesting that there is any merit to Berg's argument. (See People v. Leonard (1983) 34 Cal.3d 183, 187 [" 'we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us' "]; California Teachers Assn. v Board of Trustees (1977) 70 Cal.App.3d 431, 442 ["Generally, courts should not pass on constitutional questions when a judgment can be upheld on alternative, nonconstitutional grounds."].) --------


Judgment affirmed. Appellant to bear respondent's costs on appeal.


NARES, Acting P. J.