BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: ) ) C. Julian Ornidi, M.D. ) ) Physician's & Surgeon's ) Certificate No. A 71181 ) ) ) Petitioner ) MBC No. 17-2004-162146 ORDER DENYING PETITION FOR RECONSIDERATION BY OPERATION OF LAW The Petition for Reconsideration filed by C. Julian Omidi, M.D., in the decision in the above- entitled matter, is hereby denied by Operation of Law. This Decision remains effective at 5:00 p.m. on June 19, 2009. IT IS SO ORDERED: July 6, 2009 A. Renee Threhdgill Chief of Enforcement Medical Board of California
Transcript
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
In the Matter of the Accusation Against: ) )
C. Julian Ornidi, M.D. ) )
Physician's & Surgeon's ) Certificate No. A 71181 )
) )
Petitioner )
MBC No. 17-2004-162146
ORDER DENYING PETITION FOR RECONSIDERATION BY OPERATION OF LAW
The Petition for Reconsideration filed by C. Julian Omidi, M.D., in the decision in the aboveentitled matter, is hereby denied by Operation of Law.
This Decision remains effective at 5:00 p.m. on June 19, 2009.
IT IS SO ORDERED: July 6, 2009
a,4~-a~~tt1 A. Renee Threhdgill Chief of Enforcement Medical Board of California
MEDICAL BOARD OF CALIFORNIA DEPARTMENT oir coNstiMER AF'FAms ·.
S'i'ATE'OF CALIFORNIA
In the Matter of the Accusation Against:
c. JULIAN ()MIDI, M;D. __ aka Kambiz.Beiiialllia Olllidi
Physidan & silrgeon · · CertificateNo. A71181
Respondent.
Case No. 17-2004-162146
OAH No. L2006970409
DECISION AFTER REMAND FROM SUPERIOR COURT
REDACTED
··· .. ·;;
- ·· 1----------- -- -~-~--- -- ·-· ~-This-mafter.cawe o!frornoti~CIJ1eariil~9eforebav1a·s:Rosenman;--xaministrafiv{rLav.r·-"- _,~· ; -. ~--- --Judge, Office of Adritl:riistrative Hearings, pn July 9,-l_O, :11, 12 and 24, 2007, afLos A:Ilgeles, .California. Edward K. Kiin, DePuty Attorqey GenerliJ, and Paul C. Ament, Supervis~ng Deputy
i i i j
!· ! l
Attorney General, represented Complauiant David T. Thornton. Respondent C .. Jli_lian Omidi, M.D., was present-and was represented by Henry R. Fenton and.Robert L. Shapiro, Attorneys at Law.
Evidence was received, the matter was ru::giled, and the matter was 8ubriiitted for decision 00~~~-... . . .. .
The Administrative J.,aw Judge's Proposed Decision, S'\lbrnitted on September 4, 2007, was adopted by the Boar~ and became effective on October 26, 2007.
· Thereafter, Respondent filed a Petition for Writ of Mandate in Sacramento County Superior Court, GaseNo, .07CS01401, which was heard and ther~after granted by the court on Au~st 20, 2008. The Superior Court oftb,e State of California, puisi.iant to its Judgment Granting Petition for Peremptory Writ of Mandamus dated August 20, 2008, remanding the proceedings to the Board, commanded this Board to set aside its decision in the above-matter· dated September 26, '2007, and to reconsidef its action in light of the' colirt' s final ruling. The Board ther.eafter issued-its Decision After Reµiand dated September 18, ·2008, and again revoked Respondent's certifici;tte. Respondent.challenged th_e)3e>ard's compliance with the court's ruling. By Order dated February 4, 2009, the Supedot Court o~<:lered the Boaro to remove from its decision anY ref~rence to Respondenr s Missouri license .applications, to provide Respondent -with an opportunity to .submit orai. or written l:U'gµtnent regarding the appropriate pen.atty; and to allow additional e~dence to the extent it consi<!ers issues not addr.e~sed at the original hearing.
1:
•.I
· In ·compliance. with the court's <?rd.er, the Bciflid has. stricken all reference$ to . Respondent's Missouri license applications~ That iirl'orinatioli was·not considered in reaching this decision. · ·· ·
In _compliance. with the cpurt.~~ -orde~, both p~es w.ere pe~tted to file written argun;ient with the Board r~garilirtg. the issue: of penalty .. Bo~ Parties n1ed written arguin.¢nt and the 13ofµ"d has fully considered thos_e 'Written argUments iri reac;hing its decision. . . .
The Board did riot consider an~ issues nqt ad.dre~sed at the original hearin~.
Having i:econsfderecl the matt~r in .light of the court's ruling, the J3oard hereby sets aside . its de.cisi<;)n1idhis riiaiter·aµa niakes thefollo'\vingf)e'Cision. o1i-Refu:ana m compliance With the
. . court's 9rd~r. A copy or'th.e cofut's Ordef and Tentative Ruling and the Perefliptocy Writ are · attached as Exhibit "N'. · · · · · ·
Rulings Affecting the Accusation and the Issues . . ,- .. - - . .
. During the hearing,Coinplaina~t flied ·a Second Amended Accusation (Exhibits. 51.and 5~5).that .c~ntained new charges .. Respond.eµt obje_t;ted to, and m.ade a D?-Otjon to strike, some of the n~w allegatioiis· ?il the grounds t1j~t the riew chai'~~s theteir,i ·were b~ed by the statute of .
______ . __ ~- ··--- _ -··· . 1i~i!ations found ir.l Business 'and Prq~e8si9n~ Qode s_ection 2230.s. · After ·argU!nent by both . · ··~ ·- · - · ·· · ·• -· pames;,-ali"trrortlie~reasons'.ffioiii:spe¢inca11y-:s~fl'offii~ifctne·rec0r1l;~tife"oojeqlioxrwas.sustmnea --··· -. · ~,
I
I,
and the following portions 6fthe Second Atti~ded Accusation were stricken: .
a. . P~agraph 19 (page 7,: lines 1_5 -:-22);
b. Paragraph 20 (page 7, line 23 to page 8, line 3);
c. Patagr·ap_h 22· (b) (page 8, lines 19 and 20);
d. Later references_.to prior ,p~ra~aphs that are incorporated by reference (page 8, lines 2-1 and 22; page 9, lines 17 :and 18; ih1d_page 9, lines 23 and 24).. ·
FACTUAL'FINDINGS . ,.
1. . The Accusation, First Amended Acc~a:tion, and Second Amend~d Accusation were filed by Complainant in his official capacify as the Executiye Directqr of the Medical ·Board of California (Board). "
. . . . 2. On March 24, 2QOO,-the Board issued Ph.ysician and Surgeon CertificEite numbyr
A71181 to Respondent. The Certificate was in :fqll_for9e and effect from th~t time to the hearing in this matter, and was to expire on July 31, 2007, unless renew.ed. If not renewed, the Board maintairisjurisdfction.ov~r the matter.ptirsuant to.Business arid Professions Code section 118, sub di Vision (b ). · ·
2.
.,,
·~ ~·-' .
3. At different times, Respondent has alsb been laiciwrt.as Combiz Oinidi, Kainbiz Omidi, Kambiz Beriiamia Omidi, Combi:z; Julian pml.di, arid Juifari. C. Oµiidi. He changed his name to Julian because he believed it would be easier for his patients and his:practice. .
4. . In suinmary, the.Second J\men4~dA~~usatfon aUe,ges that'Respohdent'slicense is.subject to discipline l,lrider various secticnis of tlufBusiness and Prc).fessions Code for. the following acts: (a) Respondent attended tp.e Uriivetsity'of California, irv~e (UC-Irvine) bµt
. failed to include UC.,Jrvilie .wheQ.. ansWeri.ng a qu¢stiorl on bis liC,ense application that !~quested infonnation. on all undeigri;iduate schools ·:he attended;. (bJ Respondent cheated. on: exams while at · UC-Irvine; ( c) Re8pondent wa~ coriVicted of thte~}elated crirhes in j 991; and ( d) Resp.op.dent failed to disclose these convi,6tioriS'when answeririg'qU:estioris on his: license applicati9ti that reqµest~d hifot1!1~tio~ .~n conVictions. ' ' . . ' . . . • .· . ' .
. . 5. . . Respondent was b_OJ:ll in lrfill in ..... When he wasteri years ~ld, he and his family moveg foJlie Uniteq.~~ates, wh~~e h~,a1;t~11de.d scllool frotri '~ade 5. aric1 afte~ard .. · Respondent attehged Uniyetsity '.f!igh_Sphool in'~.e, and _siiccess:fully comple~ed several advanced placement C()Urses. After graduatinghigb sch~ql, Respondent ent,ered U(!-Iniine in 1986.· He. lived at ~otne,: aboµt 011emile from .. campus, with_ his mother, •fatP.er, a1_14 yoUfig!i brother. Respondent was extremely deyoted to pmsllit1g his ¢ducation, anddid not have ariy job or participate in f\ny e~tractftrlculaf ~9tivities while atteficimg uc~rrvme. I;Ie _didnot_dat~ or .· develop many soCial,rehitiotispJps, Brief hfi<i JeW. f,t:iellds.· ,He d_esqri_bed his u8ual day.~~ illTiving at . school about 7 :30 ·~~ni .. and ~~~yill.g µlltl11 Q:3,0 p;ril.; comil}g home, Jakhig a nap;; and stµdying
----~--------~~~~~rid~~~~a~-~o~~~~y
age, was to attend.riiedicaJ school fil!,dhecome a physiCiari .. '.fhere'Eir(;, seven generations of
· 6.. Respondent b¢gan .attending tip.Jrvinein fl].~ fall quart~r of 198.6 and was dismissed from the ulliversity, with caµse, effectiVeM~y 5, 199.0 .. He was a triple.111ajor, in . eco~omics, psychology, anc:l biolo8icru 'scienqes .. : fl.is n-an~cript r~veais an tinusiial number of quarters in which he registere9 for inanY more c9urse~ thati average: The. average nuni.ber of' units per quartet is '16, and stud_t;:rits rat~ly,take more tlian20 units f()r anY' exiertded p~riod of . time., In total, Respondent ci,apied cr(ldit for 31 (units at UC~Irvfue, with.a grade point' average of 3.4. His transcript (Exhibit 18) is SUIIlD:larizedas follows:
.Quarter
Fall 1.986 Winterl987 Spring.1987 Fall 1987 Winter 1988 Sprin·g 1988 Fall 1988
Withdrew :ltom 11 units :OHL OHL DHL ·Failed 6 units
· .Failed 9 -µcits; 'incomplete for 23 units
. Incomplete for 4 units
. -- -- --,--.~-.
!
I I I l
f. " I
--------·-·-------·--.... --·-·-····--• •.fl
7. The circumstances under which ResPo:iident registered for and complet~d many of his classes were suspicious. Respondent wairable to.·add or change col.lrses without always getting all of the required apptovfils fromteachers. · Pennissjon from a Dean wasrequiredto register f9r mo~e than 20 uajts pet quarter, and it was not clear that Respondent had .obtained those approvals. The cutrent_registrai: at UC~Ir\ririe.testifi~dthf.it, iri her 2iyears of experience; she. had never .seen numbers of units. ~s high ,takel].· over t1tls ri'u]llber ofqtiarters. the registrar ·at UC,.Jrvine when ReSiJondent atterid~d '\VaS ·awar.e of Re8porid.ent 1>eC.au8~ of the number o.f · units for which he was registered begtnningin the Winter quarter of 1988 and.thereafter. When she advised the senior academic cou~selors fu ·R~orident's:inajors of this situ:ation, she was ins~cted to ~repar~ a. report each qu~e~, which she duqb~d '~the Om~di rep0.rt," ·of all sru~ents regist,ered for'24. 7 ·Units or more •. 'Other than Respondent, the few students listed in ~he report . were µsually invo~ved in the perfon:ning arts, where individual instructi.on and performance · · groups often resiiltecf'iii" a hi@i .numb.erof' ciedfrs~ theriwasno eVioence 8r what pccUried after Respondent'!!! n~e appeared 01f the reports for vaiio:us quarters. . . . . . . . . . . ..
8.. Alt,houg4 the registrars believed the circumstances of the high number of Respondent's units, and the tnanrier. in which he reglst.ered for these units, in~Y have been .. suspicious, it was not established, by clear and convincing evidence2 that Respondent cheated in any courses while at UC-ii-vine. ·. . .
· · 9. On Febniaty.2, l99Q, Rctspon4~rttw~~Jµvolyed_wi~ ptµer students in a burglary .}~f e~fl!Il P.~£er~.Jr.~!!!~l!!!~~f!i~~.~tJ1-Q-Jrvine~_ It was.not establisheq;· as alleged,:fhat R:espondent . obt.ained, by illeg8.l ·means~·masfoi1Ceys t9 facu~tjf-Qfficesfil'.orderlcrsteaTexarpJnation~ -:-,-· --~. ···- --· However~ ~in a search of a C.ar-used byR,espoii~eht, ~ -k~y 'Yas 'fo:rilld fat ·an oftice ill the Chemistry Department at UC-h-vme. llespqndent did riot .establish that he was authorize~ to have th~t key.
10. One ofthe·oth\;lrstudents involvedJnthe burglary, ArashBenh~, had been a · frl,erid of Respondent. Respondent had tu~ored :\3enliam in the past. l3enham told Respondent he was under extreme pressure .from his family to perfomi well in school. Respondent believed that Benham was depre~sed and likely_to·harµi or kiJI hiirise1fifh_e did not,p~o~ well in school. Respondent helped Benham stUdy by using an ex~ B.enham brought, t.elling Respond~nt it·was an advanced copy of a test to pe given. Respoildei:it did not admit"to any other complicity or
.. knowledge of any burglary or any other.:crime~
. 11. Respop_dent, Be:iilia.m and .at l~ast one oth~ student, Amir Bagherzadeh, were caught and arrested. in eo:rinection with the bµrglary. A short tiJ:Ile later, Benham committed .. ~~ . .
. 12. In February and March 1990, Respondent spoke several ti.mes with UC-Irvine ombudsman Robert Wilson concemi11g tlie events lei:tding to his .arrest and the suicide of bis friend. Complainant offered the testim,ony of}Vilson giv~n at the preliminary hearing o"fthe criminal charge$ brought against Respondent and J?aght;irzadeh, which occurred in D~cember 1990.1 Wilson testified that, on March 2.0, I 990, Respondent admitt~d that he used ·stol~n exams forthree courses that he marked on a copy o~his tqmscript, and that he was.a loo"kout for tlie
1 Respondent's objection to the use of this transcrlpt was ovenul~d, for reasons specifi~ally set forth in the . record.
burglary of an exam op February 2, 1990. Wilson a.Sked Respondent to prepare a written statement. The statement written by Respondent did· not include thyse admissions. Neither the marked copy of the transcript nor Respondent's written statement was offered in evidence at ·the present hearlllg~.
13. Respondent denied that he cheated or used stolen exams, or that he highlighted anything on his transcript for Wilson. He also denied he told. Wilson that he was a lookout for the burglary of any exani'. · · · · · · · · · ·
14. The preliminary hearing testimony ofWilsori. also .inciudes Respondetit;s . stateme.ntto Wilson that.Re8pondent was not involved in the burgiary. The lack of both the m.arked t;rm:is<zjpt and tqe Wri!t~ stat~nent is troubling, and, combined with the contrary statements that Wilson :attributes to .'.Respondeiit afii:l 'ilespondent' s d~ri~als at h.eanng~ makes it· difficult to give sub~tantial weight to Wilson's testimony .. Wilson testified that he brought in another administrator, Michael .Butlet, as a witness to Respondent's .statements, but Butler did
. not testify. Under the· eritire ·circumstances, while. the preponderanc~ of the eVidence JTiight have substantiated the .allegation, it was not "established; by clear ail,d convincing evidence, that ~espondent cheated on any exams while he was at UC-Irvine. ·
15; ·On December 28, 1990, a feiOny Jnfonnation was filed against Respondeut. (People v. Amir.Bagherzadeh and. I(ai11,bi~ iJ~n,iqmiCJ :Qmidt, Orange_ Cc>Urity-Supenor Court, c!ise
___ ,"_ AYmh,~rJ:;:..a~QQg}~.B~fillQµ_c!~t~~~--~g~jg~QjTitli:vi9lfi!igg! p~~ Qod·e s.ectio~ 182, subdivision· ( 1 ); . conspiracy.to comiq:it a crinie, ·a .felony, roi-conspfrfugto commHlJui-gtarjr~mv!Ofanon~ar·--~------ ·- --· ~ -~ -· · Penal Cod~ section 459; Pemi~ Code s·ections 459/460.2/461 .. 2, gefiet~ bmglary, a feJoriy; and · . · Penal Code sectfo:ii 496.1, to Willfully and unlawfully .buy, receive, conceal, sell and withhold property, and to aid in bµying, receiving, concealing, selling and withholding property, to wita key, a felony. ·
16. (A) On December 3, ·1991, pursuant ·to a plea negqtiatiori, Respondent withdrew his not guilty pleas apd pl.eaded guiity to the tl:rre~. 9ounis of the :fuforination. · On the motion of the prosecutor, the three counts w.ere reducetj. to misdemt}anofs UI1der·Pen,al Code ,section: 17,. supdivision (b ): The .Court's Minut() Order stateµ 1hat the hearing w,as for ''moti~ns/change of plea/sentencing,", and included that a factuaI basis :for the plea was found, and tqe guilty pleas ·were acc~pted. It was order® that Respond:e11t.perl'onn '200 hours of eommunity service with CalTrans; and tli~t, at jhe .end of six months, Respondent could withdri;iw his guilty plea and a plea of no lo contendere was to be entered. A hearing on: .the balance of Respondent's sentence was ~et for June 26, 19~2.
(B) A written waiver of constitutional rights was prepared as part of Respondent's.plea negotiation,. (Exhibit'54.) On page .on~~.Re8pondent indicated that he . intended to plead guilty to the three cqunts ·against hitn. Jn item 2, the form states: "I understand I have violated this s.~ctioq by(factual basi~)." Respond.ent'~ attorney filled in the following: '.'Jn O.C. [Orange County], between Sept. 1989 & Feb. 1990 I conspired & agreed to. commit 2° [second degree] burglary & on 02/2/90 did commit that o°ffense in violation of P.C. § 459/460.2 I also on 02/l0/90, I possessed stolen property, knowing it to be·stole11.· Stipulated factual basis exists." Respondent initialed thi_s section, indicating that he un~erstbod it and agreed with it. Respondent signed the waiver form.· on December 3, 1. 991. · ·
(C) In item· 11 of the wai~er forrri, Re8p6ndent aclmowledge.d th~t he _understood and agreed that the proposed sentence was that imposition of sentence would be suspended and he would be placed on three years jnfonnal probati.on; with· a handwritten asterisk (*)inserted on the waiver· form. Probation. wouid include payroent of$ lOO restitution and 200 hours. of community service. There is a handwritten asterisk at the bottom of the page next to the folloWing handwritten statement:2
. ~'NcijU:dgmentinip·osed for six mo:riths:"if. ·[defendant] completef! comrirnnity sen{ice, judgment (nJNINTEt.LIGIBLE] reprobation) to b.e imposed+ P.C. 1203.4 relief grantedon same elate." · · ·
(D) Respondent had made it known. to his attorneys at the time that he planned on becoming~ licensed physician and that lie wtinted a disposition of the Crimmiil case that wouid not pr~ve!ft fuis from happell!ng .. ·Respondent riientloned tbJs ·to hif! attom~y Friink Ospina, who . handled the preliminary hearing .. Respondent .then-hfre4 attorney R.otia1d"Macdregor, who had . more trial experi,ence, wheri itap.peared his case vi;rould go to trial. Ori the day the plea was negotiated, fyiichael Garey was· Respqndent's. attoriiey of record. Respondent received advice from his attorneys that the case could be re8olved ip a way that the charges would he eventually dismissed. · . . .
. . . -
. 17.. In an inforinal conference on December 3, 1991, the Superior.Courtjudge indicated thathe would impose this indicated sentence. E. Thomas Dunn, the bepufy District Attorney :who prosecuted the criminal case, wrot~ on. t~e wa.iver fon.ri that his office was not.in
·-- _______ ,, ... -. -·--!lBt~ein~!!tlYiJJJJh~ proEos_~~--~~_1:e~~~._J)unnt~nfied that; afthat _time in Orange County courts, it was not unusual for .fuls fype: of plea to be-~artgedinmi~oemefillor-Cas.es~in MumCip·ru. Couff ·.. . -- --- -· - .. ·.concerning pett)r offenses or drug-diversion. }Ipwevci", for'. the type of charges against Respondent, Dunn characterized.the arrangelllertt as }li~y unusui:il;
18, ·on June26,1992, at the hearing on th~~alance of Respondent's sentence, hew~ : again represented by Garey.· The Court entered an order that Respondent had pled guilty. to the three counts as felonies; the offens~s were reduced to misc:lemeanors Utlder Penal Code section 17, subdivision (b ); imposition of s.entence wa8. sli~pe~d(;ld and RespoD:derit was placed on probation for three years on terms including that )le p~rfonn 20.0 h9urs ·of COiUJnunity .service, with a note that the .qommunity service.:had_qeeri' completed; a11d tJlat the minute .order . . constituted "the (amended) probation order:"There was no jndica:ttonthat ·any reliefU:nder Penal Code section 1203.4 was considered or granted at that time, as was contemplated in the waiver fonn. (See Finding 16 (C)). · · ·
. .
· 19. · FolloWing Respondent's arrest after the events in February 1990, he was . discharged for cause from UC-Irvine, with the condition that he coulP. appiyfor re-entry only · . with the specific approval oftl:~e Chancellor.· There was no evide.mce that Respondent contested
. the dis~~arge. Respondent considered himself as hayifig been expelled from UC-Irvine. . . .
20. Respondent did not use. any of the 311. quarter '?!edits he received at UC-Irvine to qualify for medical schooL Instead, he began over, ·attending numerous communicy colleges and other colleges, including Golden West College, Coastlin~ College, and California State University, Los Ange~es. · ·
2 Although the handwriting and copy are not cqmpletvly legi~le, testimony of a witness fa"miliar with both the defense attorney who wrote it and his writing has assisted the Court in detennining the content
6.
i
I I r
. I I ! i i
---'---'""-··---·-··-
21. Respondent entered medical sqhool afSt. Louis_ University in Missouri in August 1 ?92, ~d gra~uated with a distinction in research.m May 1996. He. perfortned his internship in· internal medicine at Loma Lmda University Medical Center from July 1996 to JuneJ997 .. He .· had returned to southern California because.of problems that arose in his father's business and a desire to be closer to his family and assist dut1ng that time. · ·· · ·
22. While doing his internship, :Respondent c9nsiderea obtaining a physician's license in California and reviewed the application. In i 997, he sought legal advfoe .concerning the _questions on the application relating to his time at UC~Jrvine.and his eonvictions. He first sought advice from Garey, .his. crimin~l def ens~ attorney. Garey irifomieci him that. the criminal charges had_not,l1eend1sl11.issed; and theh,prepared_a petition for relief under Perial Code section 1203.4. that was s!~ed. by·R.espon~enforiliebruary:S; 1997; :_ . . ·. . · · .. ···. : ' . - ..
23. (A) This :Petition and :Order are .~igajficatit in several respects. In it, Resporident declares, under penalty ofperjury, thaihe isthe·defendant "who was co~victed. of the misdemeanor offense of violation of' various Penal Code sectlons "on or about 7/23/92."3 The Petition reflects that Respondent fulfilled theterms ~fhis prob~tlmi-and that he had been . A~scharged from probation pursl:iantto Penal Code.section 1203.3 .. These tWo representations are contradictory, .and there is_ no other evidertcethatRespondent had been discharged from. probation pursuant to Peiial Code sectionl203;3, The Petition requests that he be petniitted to
· (B) _The Petjtion theii .~ti,tte~:-"Th,e gi:ahpngof thi~ order does riofrelieve the defendant of the obl1gatioh to disclos<? this conviction in response· to. any direct question . contained in any _questionnaire or _application for.public office or for Hcensure by any state or · lo~al agency." · · · · · ·
(C) The Order granting the petitjon wa:s sign~d on April 8, 1997, and filed on April 9, 1997. PursU;antto tb.e Order, the plea of gi.iilty was set aside and vacated, a plea ofp.ot guilty was entered, and the complaint was dismissed.
24. Respondent was unhappy that 9~ey-~ad.not obtained an orqer of dismissal in 1992, and he soµght :further legal advice. Respondent was referred to attorney Robert Croissant m 1997. Croissant advised Respondent that hi~ conviction need not be reported on the license application, and th.at Respondent did not need to,reveal his undergraduate attendance at UC~ Irvine on t~e license applicatim;1. (See Exhibits.ZO and H.) · ·
25. Crqissant advised.Respondent that t}:ie dismissal processed by Garey "was also . . still not co~plete." (See Respondent's df;lclaration·in Exhibit C.) Croissantpreparecl an Amended· Petition under Penal Code section 1203.4, signed by Respondentunderpenalty of perjury on May-20, 1997. ·The Amended Petition was on the same form, and contained the same recitals, a,s that noted in Findings 22 and 23 above, with the change that, irist((ad ofrequesting th.at Resppndent be permitted t9 withdraw aplea of:guilt}r, it requestedto withdraw a plea of "nolo contendre [sic]." The Order granting the petitio~ WEJ,S s~gned on-May 23, 1997, and it was filed
3 There is no record fa evidence of any court acti.on take.n on this date.
7.
on August 18, 1.997. (Exhibit 25, p. 13.) Croissant setit a copy of this Order to Respondent, and . returned other papers to him, by letter dated October 27, 1997. (E~hibitR.) ·
26. For reasons n6t explai~ed in the record, Croissant prepared another Amended . Petition under Penal Code section J203.4, also signedbyResponde~t under penalty of perjury on Ma,y 20, 1997 .. The Petition was the same as notec1inFinding25, except that the request to withdraw the plea of "nolp contendre tsic]" was wntten ~lightly differfa1.tly, a,rid there is handwriting at the top stating "Dupliciate ,QriginaL'~ Th~ Order granting the petition· was signed arid filed on July 10, 1997. (Exhibit25, p~ 14.r ·· . · . ·.
. .
27. . In 1"997,'Penal Code section 120.3.4 incfodedthe following prqvision: "The order sha11 state, and the probationer shall ·be informed, th~Uhe order does not relieve him or lier of the obligatfonto disCiose tlie convictioiilliiesporise fo "any direcfqilestion coritfili:ied in any .. . questionnaire or application for public O'ffice, [or] for licensure byany state or local agency .... . " This language has not changed tO: the present. . . . .
. 28. There was no direct evidence of the specific lahguage contained in the Medical Board application for)icensureJhat Respondenthad obtained and had asked Croissant to review. However, fi:oni the.totality of:tl.ie:evidence, it is inferred that the questions· on undergr~duate .·· schools attended and coirvfotions are. ~imilar; if not identical, io question.s 11 and 22 in the.
· application R~sPondent eyeptually ~ubmitted in 2000 .. (Exhibit 4.) Question 22 asks whether the applicant was eyer convicted ofor pled'nolo conte)ldere to ai:lyviolatiQn oflaw. It adds the . .
· 29. Pursuant to Business and Professions Code sections .480 and 490, li9ensing lJOards can deny· an· applicatiOn for a license OJ'. suspend or .revoke .an eJt_isting license based on a qualifying.conviction "irrespective of a sµbsequent ordei: under section 1203.4 of the Perial Code." ·
. .. . . .
30. When the plea negotiation was enteredhitoon,Deceniber 3, 1991,the a,dvice received. by Respondeµt from Garey, to the effect that Respondent wotiW not need to reveal the
·.conviction on an application for aHcense to b.e a·physician, was legally incorrect. The waiver . · · . · fonn clearly indicated that-Garey intended to return.to court six months.later to request .reli.~ffor
Respondent unqer Penal Code section 1203A .. Equally clearly, that code, section .and "the. standard form for the.petition and order for :such relief advi~e a defendant that :P,e is not reliev~d of the obligation to disclose the .<::onviction in response to any direct" question·contained in any application for licensure by.I:). state agency. Advice given in December l991 that Respondent would not need to reveal the cop.viction was incorrect fqr ,at le~s~ two' reasons: fust, the
. a.µticipated sentence did not allow for reliefund~r Penal Code section 1203A for another six months; and second, even with such relief, the .conviction must be disclosed on ap. application for licensure to the Board, a state agency, a req-µirement under both the P~n~l Code and the Bu~iness
4 Although.the words "expunge;, and "expungement" are no.where contained in Penal Code section 1203.4, the process for relief under-that section iS commonly, if incorrectly, referred to as an expungement 9fthe conviction. (People v. Frawley (2000) 82 Cal.App.4th 784,.791-2) · ·
8.
i . :
--··-- -.. ·--
and Professions Code. When Garey repeated the E1;dv1ce tq Respondent when· the first Petition for r~lief was filed in 1997' that advice was Still legally incorrect. . . .
. 3 i. ·The advice rec~ived. by Responoe!lt frotli Croissant ~ater in 1997, when the two later petition~ for relief were subillitted.·filld tI:ie cirdersis.sued, to.the effect that Respondent would not need to reveal the c.onviction oti an application for a license to be·a physicia.J,1, was le.gaily incQrr.ect for the sai:n~ re~_ons a.s. setfoftl! bJ. ~inili11,gs 27, 48, W and.·~ Q; FMh~r, Croissant had rev1ewed the EiP:Plication aiid should hf!.v~ been .familiar \Vith the spepi:fic. instruction to rewaLconvictioris everi after they"wei"e set aside and dismissed, or expunged; . . . . . . ' .. - . ·- ' . ' . .
32.' · After coiµpleting 4i~.111teniship irt_ 1997, Resi)ond~t. was ac~epied into a highly competitive residency in dermatology atSt. Louis Universit)r .. th~s re~idency lastaj frqm .July rn91fofune2000. Respori~erif r~ceived a lic~nse;fo practic¢ medieille)ii The st~te·Of MissoUri in July 1997. Respondent's perfor.til_ance iri fue residency program'\vas ~·exceptional," according to the associate dean.ofthe.Illedic~l.schciol, l)r. N"eal P¢Ill'lys,\.yho wa~ also the~hain:nan of.the · DermatoJogy Department. . ]lespop.dent had. the h~ghest ·$cores on yearly academic exams, and ·. received .horior8 in .his third year of residency, .based largely on observ~tions of his patient interaction~ and practices~
.33. Qn.Jap.u?I'Y 11, 200(), the Board receiVed Respondent's application for physician '.and surgeon'sJicerisuteh The applicat~on i:µ¢lqd~d;Re.~oriderit's deciaration, under oath, that the
. ,.~~--·~-·~ inf.~~~~g~ .~9:nta~ed ther~!~ij.a~ ~e- ari.d c(,rr~ct. Q\lestion 11A of the app~icati9n 'required Respondent to Jist "the.names· and~addresse8. 9f rurcollegers of furivetsitfos :Wfietepre~·:-:·~ .. ~- ~. ~- ."" professional, postsecop.dary:1nstructjcui wa~ rec~i;ve9t (EW.pha~isiP, o;riginal.) The ·ques~ion also. required applic~ts to ''sul?mit .of:ficialtnµ1sctjpts : .. for each s'cli.ooI attended.'' Respondent did not list, or.submit a transcript frQm, UC-Irviµe. . . .
34. · Respondent.explain~d tha~ i~hls view;: he Jla.d:been exp.elled from. UC-Irvine and . did not receive any vaH~ creditsJor the ciasses he ha(l completed. R~pondent i;elied upon the advice lie received from cfoissarit to the effect that his attendance at UC-IrVine did no,t need to be disclosed in the application. Respondent testifi.ed that he had no .intent to deceive the Board by not dis~fosing that he had atten~ed UC-Irvine. . . .
. I . , . • . . . . .
35. Croissant recalled reviewing.the .applipation.and a letter from UC-Irvine dated. April 2, 1990, concerning Respop.d,ent'~·suspe11sionJJ:om UC-.Jrvine. Tbis letter is not in . . evidence, however it is mentioned in Croissant''s l~tter:dated December 28, 2006. (Exhibit R.) Croissant relied upon R~pondent's incorrect beli.ef that he·had not received valid, completed credits from UC: Irvine. Croissant did not review transcripts or seek any infolination from UC., Irvine before rendering his advice to Respondent. ·Croissant believed the question on the application required Respondent to list only ,schools where he had successfully completed credits. · ·
36. Croissant's understanding oftJ:ie nature of Respondent's credits ea~ed at UC-IrviJ?.e, based almost exclusively on infonnation provided by Respondent, was incorrect. ·
. Croissanes and Respondent's interpretation of th~ guesti9non the.application was also incorrect. The plain lang1u~.ge of the question asks for a.list of.universities attended! As R~spondent ·attended UC-Irvine, he should hav~ listecf it in h,is reply. Under all of the circumstances, ·· Re8pondent's relianc~ on.'Croiss~t's advice on this subject .was p,otreasona~le. ·
37. - Th~ application also asked for inforin:ationabout convictions. See Finding 28 for the specific language of the que~tion. Respondent answered "no" to th~t question. .
.38. R~pondentexplained/that'heJ1ad told· Garey~ his attorney, tnat he w()uld agre,e only to an outcome in the crimjµal ca_se that Y.,oul~ re5uit in no record, and had been told the;plea negotiation· would dq so. · Resp.orident als.u relied upon the advic~ he. r¢c~ivi;;~ fr9m Crqjssant t9 the effect that.his criminal case had. been: dismissed and. d.id not"need:to be disclOsed ni the · application. Respondent testified that hehad no intentto deceive the J3oatdbynot disclpsirtg his. convictions in 1991. · · ·
. ' ' .
39. . The :Soardiss~ed Respondent's license on.March 24, 2000; According to Cindy oseto, an: .Associate .Analyst :for tlielfofilcr who-has reY:lewed rtUinerous applications an.a made -recominendatio.ns as to wbether they :s:ho:u14 be 11pproved, denied, of investigated further, if an · application contained information that an .appHcaiit had 1Jeert convieted of a theft_ crime, further investigation would be pursued~. The Bo.ar4 often considers dis¢losure of a 60.:nVicticm as an element of rehabilit~tion .and inay cm.;isid.erissning a pfobatipnary"lic~nse .. f!owever, ~ceording
- to Oseto; the failure to disclose a theft crime raises. i~sues ofho.ne8ty and integrity~ and she -would reCOlll111end either denial of that applica,tion.orperhaps a conditioriallicense ... F\nther, . . . she: would recommend denial of an application where the appl~cant~had_ not.disclos~d attendance · . at .a college from which he had b~en. dismissed for cause due tO cheating or for helping another .
. 40. From July2000 to Januazy~2001,·Respcmdentpracticedwith the Facey Medical Group in Mission Hills, California .. Respondent opelied:a soio.practice:-mFebruary 2001 in Beve~ly Hills. Although th.ere was little testiII1ony fi;om:Respondentabout the nature of his . practice,-this description is· from a,n intt)~ew he ~~d :with a Board investigatOr on April 26, . 2005._ (Exhibit"22.) Atthattime, R,esporident haclsix office locati9ns: Bakersfield, Lancaster, · Apple Valley, Beverly Hills, We~t ~ills and_Vale~cia. "Bakers:fiel_d.is a solo practice. In the . other offices he shared _space with other physicians. He employed another physician who worked at the.West Hills and Lancaster locations, ·;:uid two nurse practitioners arid tW_o physician assistants who . . . . . . , .· rotated among some of his offices. ·Respondent wor~ed. at each office one dayper week, except Beverly Hills, one-half day every two w~eks. He had privileges at Ant<;:lope Valley and Northridge Hospitals. Respondent's practice ·cm?siste~ of general derrnatology, as well as skin cancer treatment and cosrp.etic dermatology. Respondent saw about 30 _,. 40 patieilts per day. Responderit te8tified th~t he goes out of his way to coriununicate with his patients, fillQ often gives patients his business card ~ontaining his personal cell phone number, and answers patients' calls at night and on weekends.· ·
. . . .
41. A colleagµe, Pr. Faiiborz Satey, is a pediatrician and the ·medical director of Heritage Health Care group in the Antelope Valley. [)J;". Satey has referred patients to Respondent for six or seven year~, and' gets feedback from those patients that they received excellent care from Respondent. Dr. Satey receives no compensation for the&e referrals. When ~e mentioned to Respondent that it would be :Q.elpful to have a dennatolC?gist in the Lancaster · area for the convenience of patients, Respondent opened his office in Lancaster.
42; Other incidents establishep by the eyidcin~~ are ~ot alleged in the Second Amended Accusation but; iu~vertheless, proVide useful foforrt1ation in the nature of circumstances that are aggravating, mitigating, bear on Respondent's credibility and rehabilitation, or otherwise augmerit.the record. ' ·. : .. ' , ' ' ' . . '. .
. . 43. On February 18, 1993, Responden,t sigtJ.e_d ~ Appli'cation for.:N aturalization from -the_ Immigration and NatJ.p:aliz'Ation S.~ief~ (J;N$.). mr~lia!l.ce on the.prior advice h~ had -received fro111 attorneys Garey and MacGreg9r, confirmed by another consultation with MacGrego:r, Re.sJ?o11dentanswered ''ilb'; to a question thEl,i ask.:ed,wh~ther.he had ever b.een-. arrest~d, "cha~ged; indicted or. corivfoted for breaking ot Viola.ting any law. The application was receiv~d on_ fylarchl:q~ 1995, ~d ReSpon~ent wasinteniiewed by a:n INS_''a,9judicator' on March 24; _1995. During the mtetyiew,Respondent BAs.wer~{l "no.'; to questions ofw}l~therhehad.any . arre8ts; expungeinenhi o!'conVictions~ .. 1lesporident Was granted Citizen~hip 1rt 1995 .- •
· 44. .. On March 4, 2005," a±l-I11dil;}tment w~s :filed agaiD:st Respondent in the_ United States DistrictCoUrt._for the -Central .District of Ca,liforrii~ ·alleging that:Respo.ndent .unl.awfully .. procµred Citizenship l~y falsely repr~eniiilg on -his, _app1i6ation.th~t h,e h~d n~ver h.ad an art~st, . , conviction ot·exp~gemeiit. .. Respoµderit lµred attorney Ro~ert Shapiro :to.represent him.- After Respondent and Shapiro's assqciate met' With theAssistant-U.$. Attorney arid proi/ided do.cuments arid other inforn;.iatioii conc~ming the conviqtio~s and the)egal -~dvice that Res,pondentb.ad.received, the government moved to_distnjss all ch8:1'ges._ Themotion was
. 45: (A) Respondep.t ~ul,Jmitt¢~ sevet~l ~pplications for_ licens_ute to !Jie D~partment of Motor Vehicles. (DMV), some of which con~ain:p9Ssible inconsistencies;._ Respondent testified. that he received his driver~s license while he was in high sc:\lool, which would have been in ·l 9_86 ' orbefore. · . · · . ·· · . · ·,;· ..
(B) -In :e~dence are do~riieD.ts ip.dic~$g that Respc,mdent was issued ·a driver's license, number C5120518, onAugusf:3;)993,Urider tb,en~e Con:i,biz Omidi. It was not· · established whether this was inconsisteD:t with his staten.lent of earlier licensme, or a license renewal. · , .
(C)" On Januai:y 23, 1997, Respondent signed, under ~erialty of perjury, an. application for a driver's license. The appllcation.indkates it is for an original license, not a renewal or mµne·change, ·The application is in the name 6fJulifil\ C. Omidi.._ It:indiCates that the applicant has_ a_ license in Missc:mri, although -RespoI).derit testjfiecl that .this part of the· application is not in his han9wrlting. · Respondent answered ''n_o'' to a question asldng whether_ he applied' under a different name wfrhin the last seven years. This application was assigned DMV number· B7990414. Respondent testified that he called the DMV and cancelled ~his application. There was no evidence that anY driver's license was issued 'based on this application._
(D) Respondent's· current driver's license, nurti!Jer C5120518; was issued on May 14, 2004, in the name of Combiz_Omidi,_and will expi!e.in 2008. .
11.
1·-----·--·-. -···-·-----·-:· -- ........... .. l .
.,
46. (A) In ·about September 2006, .Respondent consulted With attorney C. David
. j._
Haigh. Haigh was very familiar .With Garey, ~ they had both been deputy public defenders together and ha~ practiced together.in thepasf On .. Re8pondent~s behalf; H~igh.filed a motion · for the criminal cas.e to be dismfs.s.ea Ur;i.d~r penal: C9.d~ S.~Pt.iOJl. l ~· a.s'. ~d for th~. d.i~mi~sE!] to be made mine pro tm:ic as of June 46, 1992. Themotion was supported by a declaration of Respondent (Exhibit C, ·pages 6 - 8), in-which he explained some of the events and the legal advice.he had received: · · · · · ·
· . . (B) The motion was gr~ted oil Nove:tnber 30, 2006;. by Orange County Superlor Coiµt Judge Ronald bweri, the samejudge'wliopresided over the proceedings' agailist. -Respondent on December 3; 1991, and Jilne26, 1992 .. AnOrderwas·filed that s_ame d_ate. whereb.y Respondent withdrew his :pl~a of.guilty/no1o .Gontendere, the matter was 'dismissed ·
. pursuant to penal Code sectiqn 1385, and the order was to be effectivertunc_pro turic as oJ June 26, 1992,'. . .. . . . . .·. .
47. Complainant c;ontended that the disinissal order under Penal Code section 1385 entered in November 2006is void, forsevera1technical,proced'uial and sl.ibstantive reasons. This Administrative Court does not have the authority 9rjunsdiction to re,ach such a conclusion.
~ _" ___ _ _:_ _____ : ... -~-(12~Bczs_f!Zqy: Sm~~h (1971) 15 Cal.App.3d 60L) The Superior Coµrt rul~ in this case that, since · i. . the convlctions\Yete~dlsrtffsseCfunder Pei:iaFCoae~fr3-83;~nunc-pronm:c~~Ifeetive·Jillie26;-1992~
1 "this -order is effective anci :it trieall.s: Wat .it can. ri.p}o11ger ~e :said th0rt petitj.oner was .convicted of the wimes re.ferred:to a1Jov.e." ·The Superior.Cotiri ~lsq ·conclqded.that the.Board improperly consip~red the convictions as a factor for pu!poses ofdet~ining penalty. ·.The Board has left .. intact all of the Administrative J;,awJµdge's fac(rial findings regardingthe criminal convicti9n (t(xcept former Finding 49, which is contradicted, py, the· ~uperior Comt's ruling) solely for purposes qfhis.tprical context-: that.is, to accurately.reflect what occurred during the hearing. However, the Board has complied with thec.0Urt's·91deiaJ.1.dhas disregarded those findings in · reaching its decision after rem~d and in det~ining 'thi;: appropriatepenalty in this matter.
LEGAL CONCLUSIONS AND DISCUSSION ..
1. . . The standard of proof which must pe :met to establish the charging allegat!ons herein·is '~clear and convincing" evidence. (Ettinger v. Board of Medical Qualitj Assurance (1982) ·135 CaLApp;3d 853,) This means the burden 1'.ests with Corriplait).ant to offer proof that is · clear, explicit and unequiv0cal; ".so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.'' (In re Marriage of W~aver · (1990) 224 Cal.App.3d 478.) ._ .
I. . .
2. "On the cold record a witness maybe Clear,· concise, direct, unimpeached, i uncontradicted - but on a face to face evaluation, so exude fosincerity as to render hjs credibility factor nil. Another witness may fuiµ~le, burrible, be unsure, uncertain., contradict himself, and on the basis of a written transcript be hardly worthy of belief. Butane who sees, hears and observes him may be convinced ofhis honesty, bis integrity, his reliability.'' (Mein.er v. Ford Motor Co. · (1971) 17 Cal.App.3d 127, 140.) .
12.
i '
I
I .·I
'
. f
The trier of.fact may "accept part ofthetesthnohy o:f a witness arid reject another part .. even though the latter contradicts the part accepted;" ·(Stevens v. Parke Davis & Co. (1973) 9
Cal.3 d 51, 67.), The trier of fact may.also "reject part of the tef;ltimony of a witness, though not directly contradicted, and combine the a¥cepted portions with bits of testimony or infel'.ences from the testimony orother.vvitnesses thus weaving a cfoth of truth out ofselected maferial." (Id., at 67-68, quotin;g from Nevetov v. Caldwell (l9S8) 161 Cal.A,pp.2d}()2, 767.) Futtller, the· fact finde.r may reject the testl¢p1J.y o.f a witn.e.~s, ~Ye:tt. ® -~xp~, aj.fuo1Jgh nQt cQµtradii;:te(i. (Foreman & Clark Corp. v .. Fallon(1971) 3 QaPd 875, 890.) · · ·
• • • ,' I • ',·• • '
Th~ testimony of"one crediple witriess 1llay p~µstitute substantial evidence'' including a . single expert witness. (Kearl v. Board of Mec#cal Quality Assurance (1986) 189 Cal.App.3d 104Q,1Q52.) ...... -· .... ~. ·.. . .·. ·.. . · .. _ ... ·_
·"[T]he weight·to be given to,the'opinion';of art .ex.pert depends' on the rea~ohshe as.signs . to support that opiriion."{Cifatioii);-its.value '"~e.Sts'upoµ.th~_niaterjal from which his opinion is fashioned and the .reasoning by wh~ch he progresses' from his riiatepal t9 his .conclusion .... r "' •
(Citation.) Such an opinion is no better thaµ the reasons given for it (Citation), :and if it is "not based upon ·factS otherW'ise proveq~ 'or assumes fact~ contrary t9 the only proof, ~t cannot rise to th¢ dignityofsubst8f1tial eVidence. (Citations.Y.' ('Wli1te v. State of California (1971) 21
· Cal.App.3d 738, 759-760.) . .
~-" i ·- ... .• . ________ , .. ·.· _.· "[T]he rejection of testimony does .not ·cr~ate evidence contr~y to that which is deemed· · ·· ~-· ~~~~~~~~Tu~~~~~~r--~---
i
i !
I
I
ciiscaraea; ·~Th¢ fact that the.jury may disbelieve the testimo.ny of a: witness whq testifies to the negative of an i$sue, does not Of itself futni$l1 ~Y ·evidence ill. sqpport of the affirmative 'of that. issue and does not warrant a finding in th<3, affimiatj:ve ~hereof uri1¢ss there .is other ,eW,<fence in: . ' . the case to support such aft.irmative'/'; (Hutcbfnson v: Contractors 'State.License Bd. (1956) 143 '.:ft·
Ca:l.App.2d 628, 632, citing Marovich v. Central Cqlifqrnia Traction Co. (1923) 191. Cal. 295, 304.) .. . . '
. ' .
. 3. . · Cause-exists ~o suspel1d or r~voke ReSpondenf's licertse pursuant to Business and Professions .Code5 section 2235, authorizing disciplinary actioil whete a license is obtained by · fraud or misrepresentatfon, for Resp.ondent' s mfarepresentationjn his license application . regardi:ng educational irtstitutio11s he attended. See F~ctual Fm(lings 2, 6, 9, 16, 11,_ 19,·33 thro\lgh ~6, and42 through 45. ·· ' · ' · · · · ·
. ' . . . .
4. (A) Respondent's intent i~ fuelevant to the determi~ation that Respondent . obtained his license by misrepreseritations in'hls _application. The danger isinfalsely certifying facts which are not true, as opposed to any intent to do evil. This is "regardless of the intent of the doctor signing the certificate." (Brown V;. State Department of Heaith (1978) 86 Cal.,App.3d 548, 556.)
(B) The duty to make a full discl~sure in an application for a professional license is an absolute duty. Justification f01: a failure ·to perform that duty is not found in the excuse that the applicant Wf\S advised by some person, no.matter how high in official position that.person · might stand, that disclosure is not !lec~ssary. Whether a failure to disclos,e is caused by
5 All further statutory refere~ces are to the. Busin~s and Professions Code, except where indicated.
13.
I ,
---~1---. -- ·------. i
fu.tentional concealme,nt, reckless. disregard for.th~ trhili or an unreasonablerefusai to perceiv~ .. the need.for disclosure, such an omission is itselfstrong e~dence that the applicant lacks ... integrity .anO/or intellectual dis,'ferriPient requited o-f a professioriil. (See, In ·re Gehring (1943) 22 Cal.2d 708.} . . . .
(C) R~ondent'.s reliance upon.legal.advice concerning discloStire of his attendance at UC-Irvine was not reasonable. The la.4guage .of the application was clear and unequivocal. He was required to list all colleges attended and to attacJl transcripts. . Respondent's belief that he. did not.have valid ctedit~Jroiti VC~Iniine_is an unsupported conclusion and without ri;:aso:Q, and it does riot appear hi the evidence that Respondent or Croiss~nt did anything to verify thiSunreasortable coriclusfon. Respondent's claim that he did not int~p.d to d~ceive·the Board by not disclosing }lis attendance at UC-IrVine is .not credible and is rejected. It is determined that ·ResJiondent _intended such deceit and, therefore~ p.erpetrated a fraud on the Board. · · ·
.· -(D Complainant establish,ed that R.esporident's tnisr~pre~entations an9 fraud were material,' in. that his iicense applfoation may have bt::en treated d1ff$rently had he macle full
\. disclosme. (See, DeRasmo v. Smith, supra,· 15 Cal.Ap:p.:3ci 601.)
5. ca-bse exis~ to s~sp~nd or revok~ Respondent's Hcense prirsuant to section .2234,· subd.ivisi?n ( e ), for disbon,esty for Respondei?,t's:llri~representations regarding edu9ational .
6. (A) Neither party submitted any stah,1tes, case law or ~gument to assist the court· . · in determinip.g to what ext~rit, if ~y, Respondent's intentbears upon detemtjnin,g whether ht'.: . · committed '~dishonesty" in fa.ilhig to disclo~e his fittendance at UC-Irvine. Dishonesty is· a basis on which public employees maybe qischarge_d ~ndet Oovernmex:it Code section 19572, · ·
. subdivision (f), and 9ases interpr~ting and applyi!lg that section are a useful reference ....
. . . (B) As set forthjn Gee v. Califorriia State-Personnel Bd. (i970) 5 Cal.App.3d 713, 718-19: '"Dishonesty' connot_es adjSpositlonto de9eive . .(Cifonon.) It 'denot~s an absence ofintegrity;,.a dispi;>sitionto;cbeat, deceive ord~fraud;. :.·.'·(Hogg v. Real EstateComr., 54 Cal.App.2d 712, 717-.[129 P.2d 709].Y' Although the ~lenient of intent is discuss.ed in the case of Cvrcek v. State Personnel Bd. (1967) 247 Cal.App.2d. 827, it is in the nature of confirming that the trial court has discretion in niakirig:the dt:,}tennination of whether diShonesty P,as occmred, and the trial court is empowered to evaluate the eVidence of la_ck of intent.
(C) The definitions of"dishonest" and."dishonesty" (Webster'.s Seventh New Collegiate Diet. (1969) p._239), include refer.ences to willfulness, intent and fraud such that it may be reasonably concluded that there can be no ciishone8fy where there is no_ intent to deceive. As noted above, it is determined that Respondent intended to deceive the Board by failing to
·.disclose his attendance.at UC-Iivine. Such deceit ~onstitutes dishonesty; .
7. Cause exists to suspend or revoke Respon~ent's' license pursuantto section 2234, for unprofessional conduct, ~d section 2261, wJ:rlch define8 unprofessional conduct as including "lmowingly" si~ng' a document which falsely represents the existence or nonexistence of a
14.
I I i.
.,
. state of facts, in this cas.e, the misrepresentations regatding th..e edticati011al institutions that he attended. See Factual Findi.rigs 2, 6, 9, 10, 11,· 19,.33 through 36, and 42 thrpugh 45,. ·
. ,,- .. '·- . - - . . -,
8. . As notedabove, R.esp'ondent's.failuretodisclosehis attendanceatUC-Jrvine was·· intentional and fratidulent. . int131ltis not required fot:.discipline to be i111posea und.er this code section. As stated in Brown v. StiiteDepariine~t of Health, supra, 86 Cal.App3d at 555-556:
"[WJe ho lg that 'mowirigly'J~ l11~e or sign.a certificate wbi9h .'fa,l.sel)' represents' a stat~ .of facts, a per$.cm need tiitly have la1q\vledge ()(the faisizy ofthe facts c.ertified when ·. . making or signing the.certificate.· Otu:.foterpretat~dnis n~t only in.·~¢cord.with statutcfry and.· decisfonal definitions, hl+t wiUbest ptotectth.e ~~bitq: Faqµl~ cex;tific~tions)y medical doctors are ~se~ ~xtensiv91,y #ouiJipl.ltsociet)! fW:ni~Y and Y~e~ putp.C>ses. ..ft,. fal.se tl1e~ical .. ·. . ... ·. .. . ·
-certificatl9n~ ·regar<lles.~ of,tiie cfo~tpr's ii£t~~t::tii~:Y be put to·gr~atiiiis"~hief. · Tlie .eYit therefor~ is fiot in the intent to do harm, but irtJalsely_certi~g· ~aqts which are not true ... ' . . .
''Nor do we n11d appell#t's at;gunlerit t6bep¢r.!3U~S~Ye t}>:at the us~ ()fthe WO?:ds 'falsely represents' requires a' finding of intentto deceive. Irdlw absence of express language, interit must he gathered from the tenns,·of·the.statute co~struedas awhoie, *()in the nature arid · .· clu~.racter of the act·to be .done, .and from the 0omiequel1des.w4i~h.would f.oll,ow the doin.g or failure to do the parti~ul~act at the.:r~quit~d time .. tqt~tion)The.revocation or su~pens~on of a Jice~se, i~ µotpeni:il, the Legi~la~re ha~ prpyideg .for$1J_Spensi0nto protect the life, health a}1d _ _}!'elfar~'·of the people at large and to s~t up a plan whereby those who practice med.icirie will have -the quaff:licationswhlch wilrpreveD.fas-~:faFas possible,-tlie eVilswnicffcouI<rfesfiltftotrr 0 ~ -- .--- -. - .,,,._,
ignoran:ce or mcotiip¢te.ticy or _a Jack Of ho~esty QrJ~i(;lg!ity, .·.· (GitEitioljs.) 'thepot¢~thu of harm from the·existence ofa false' medical9enificate, l'eganU¢ss ofth.e.i,D.t~niofthe d<>ctor signing the · certificate, requires that doctors r¢£rafo from &~gning.false certificates.'' . · · · /'
. denia,1 ofhi_s application for licensin:~ for,J,te~ponde!lt's t?isrepres.ep:tatjons r.egarding ed~cational . institutions he attended. See Factual Fi11d~ngs 2, 6, 9, 10, l l, 19,33 through 36, and 42 through 45. . . ' . . .
10. . Cause does not e~ist tp susp~rtd or revoke Respondent's license pur8u~t to section 2236, for eonviction bf a ciime substantially related to the qualifications, functions or duties of a licensee, pursuant to the determinat.ion ofthe Superior Court .. See· Factual Finding No.:50. . .
11. The Board publishes gwdelines for the.use of Admiriistrative. Law Judges in _ determining the appropriate range .of outcomes for statutory violations; referred 'to in California·
, Code of Regulations~ title 16, section 13 61, and ep.tjtled "Manu~l of Disciplinary Orders and Disciplinary Guidelines"(9th Eaition, 2003) .. Th~se Gu1deline.s ackrtowledgethatthey are not
. binding standards and that mitigating or other appropriate circumstances may establish a basis to . vary from them. · ·
. . .· . - . . .
For the violations of sections 2Z34 and 2261 found herein, the Guidelines recommend a maximum penalty oflicense reyocation, and minimum penalties 'ofstayed revocation and five or
· seven years probation on various terms including suspension, coursework, evaluation~ · monitoring and therapy. ·
· 12. On tbe one hand, Respqnderit presented.convincing evidence.that.some:ofthe acts that cqnstitute violations.of law resulted from his·reasonable reliance on legai advict:1. That the advice was incori~ct was nQt khown'to R~sportdent. · · · · ·
13. On the other hand, Respondent intentionally deceii/ed the Board in failing to disclose his· attendance at u~:Hrvine, mosl likely in an att~mpt to ptevtm.t the )3oard from · learning that he had beendi~chafged for caus~ a1J,d the reasons therefore. The :e~tirety of the record reyeals that Respondent hf\s ·a penqhant for 4i~h6nesty, to bend.his· position and shade his statements to stiithis n~eds; vyithptit:Con.sistentregardfor.the truth.·.· The Superior Court found. that ~espondeiit~if ~'faihifo:to dis'ClOse·hi~ attendarice]tt UClwas knoWing·and intentional." and that Respoildeµt "~ew 'the answer Jie gave .wa11 false .. " As a physician,· Resporicient is . continually placed in'positi~ns wh~e honesty 1s ciitic~, including fqr exairiple physic;ian-patient interactions, biiling, third-party payors~ etc; Hon:esty is, i core .requirem~i.itforp~ysicians. . . Respondenthas shown neither r~cQgnitiort of the importance honesty plays i1J: the qualifications tp be a physician, n,or any re1ll01··~e for".his nusi:eptesentation and lack ofhop.esty to the Board. . Respondeiitis not entitled to any benefit ofth.e:doubt~thereis no doubt. His misrqJresentation · and ,d1shonesty, occurrlrig as they did it;l the process of obtaiping hislicense, go to the core of his a'J;>ility to pra~tice, his p~bfession. ·. · · •· · · ·
~·.·~-·. • ·:
7
'ijiidef a1fofflie ~c1rc~S:fancesliefeifi:ln~rneruth~-safecy"atittwe~fare-~fthei>-eop1e·of the··-- .. ~ ...... ··· State of Califonu~ qan b~ protected only by a qiscipliilaryorder tha~ revokes ReSpondent's .. · · 1.icense. Responcie11t's ar~c.mt to tlje co_l1trary was:noi persuasive.. ·. . .
WHEREFORE,. THE FOLLOWING .ORDER is hereby maqe: . ' , .
Having reco:tisidered,its deciston in light.of~oth the Per~ptory Writand the court's· Order d~ted February 4, 2009, the J3oard. revq~es ;E>py~foian .arid Surgeon Certificate number A71181 issued to R~pondent.C .. Jl:dian()µtlqi, M.p., put~uaht to Legal .Conclusions 1through9, and 13, separately and for an· of th~lli, .effe.ctive: b~ck to October 26, -ioo7, the effective dat.e of its first decision which Wf\S not s~ayed py the court. · · . · · · · · ·
This decision shall become effective·at 5:00 p.m~ cm Jiine 19~ 2009 '·
IT IS SO ORDERED this~· ---:.20_t_h_ day of May ·, 2009.
Petitioner suggests that.in light of the Court's· ruljng in the "Pue Piocess · and APA'' issue, .that the Court need not opine. with regard to ·the "Conviction Related Findings". The Court disagrees. The issue of the "Conviction Related Findings" was ·specifically raised by petitipner. The opportunify for argument on remand under Ventimiglia is not an opportunity to reargue the entire caSe, but ~rily the issu~ of pen~ty."
A .true and correct copy of the Court's December 19, 2008, tentative ruling is attached.
6 · as Exhibit A..
7
8 .. IT IS SO ORDERED, DEcREED, AND ADJUDGED . . . . . . .
·9 ,,·/,/
10 Dated~ 11
12
20
21
22
23
24
25
26
27
28
APPROVED AS TO FORM
SAC 441,359,988v11-12;.()9
2 ORDER
. "
1E>XilillBlrf" A 1. --- --
Date: 12/19/2008
~Ut't:KIUK~UUKI u .. \;ALl .. UKNIA. ::ouNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
' MiNUTE ORDER
. Time: 09:00:00 AM Dept: 31
Judicial Officer Presiding: Judge Michael Kenny Clerk: Susan Lee · ·
Edward K .Kim, Deputy-Attorney General is presentforthe.Medical Board of California, :-ReSpor;1delit. ~- · · · · · · · · · · -· · · · · · -NATURE ·OF PROCEEDINGS: Petitioner's ·Motion. to Set Aside Medical Board Decision Following Remand 1 • • :.
TENTATIVE RULING
The following . shall constitute. the· Court's tentative . ruling on the Motion to · Set Aside 'Medical Board , Decis_ion Folfowing Remand filed by Petitioner c. Juli~n 011'.lidi, ·M,.D., set for. hearing in pepartment 31 on Friday, Decerpb!E'r 19, 2008 !i't 9:00 a.fl). The·tent~bve rol~ng shall become the ~nal :ruling .of the Court unless a party w1i;hmg .to be ~eard so ;advises th~ clerk of this Department no la~er th~n 4:01> p.m. on ~he CO\Jrt .day P,recedmg the heanng, and further .advises the derk that such party has notified the other side of its intention.to appear.
In. the event that a· hearing is requested,. <;>rai argument shall be limited to m;> more thar:i 20. minutes per side. . . · . . . ·. .· .· · · · ·· ·
.Tt1e. Court gmnts Dr .. Omidi's re~uest for judicial notice of page 506 of Webster'.s II New Riverside D1ct1onaiy (Office ed. 1996), defining 11pencliant.". . ·. . . . .
·The Court grants the Board's requests for judicial notice of: (1) page 1432 of Random House Webster's Unab.rldged DictionarY (2d ed.J, defining "penchant"j. (2) P.age 623 of Webster's Seventh New .Collegiate Dictionary, defining "penchant ; and (3l page 513 or the American Heritage Dictionary (3d ed;), denning 11penchant." · · . . · - .
' '
Background. Dr. Omidi attended the University of California at Irvine (11UCl11) as an ·undergraduate from
1986 to 1990. In 1990, he was discharged from UCI for cause in connection with another student's use of an exam that had been stolen from a facultv office. Dr. Omidi was arrested and charged With various ~rimes. stell}mi~g from -the theft of .the exam •. Tpe crimin~l. case. took a long and procedurally-complex .. Journey, which included, at one point, a conv1ct1on on misdemeanor counts resulting from a plea deal, .
Date: 12/19/2008 Dept: 31
MINUTE ORDER .. Page: 1 Calendar No.:
Case Title: C JULIAN OMIDI. M.D. VS MEDICAL Case No: 07~501401 ·ao~RD Oi= CALIFORNIA.
and which eventually e.nded in 2006, ·when_.Dr. Omidi obtained an order dismissing the charges, to be effe~ive nunc. pro func as of .June 1992. ·At the adm,ini~trative h~aring, · Dr. _· Om1di admitted only to helping the other student fill out the stolen exam and maintained he did not participate m the burglary. ·
Dr .. Omidi comQleted his -education at other institutions and obtain~. e;t license to practice medicine in California in 2000 •. In his license application, he did hot disclose his atte.ndahce at UCI and stated that-he had not been convicte~ of any Violation of law. . · · . . . · , · . .
The J3oard initiateq t~e. purren' disciRlioaty proceedings against .Or.' Omidi in connection with those nondisclosures. In its. m1t1al decision, the Board found cause to revoke or.s.uspend Dr. Orilidi's license pursuant to the fqllowmg: · · ·· ·
. (1) .Business arid Pr.o_fessions .Cod_ e § ~.?~5. (liqens~ obtained by fraud or misrepresentation). bas~ on·. fhe.Board'~~conclµ~1ons th~t.Or. Qm1a1 m1sre~resented that he-had not been convicted and cammitted
· fraud -bY. fa1l,ing to disclose pis attendance at:UCI.. , . · •. .· ·_ . · · .· . . . · _· · _C2lJ3.µ~m~~~. ~11q pr_Qf~~~1on.~.J~C?d.e. -~·2~~ "(d.1shonesty), .based. on the Boarci's; con.clusions that. Dr. Omt~I CC>.m!Jlitt~d fraud by f?thng tQ 1;.h.S<?IOS~ n1s'~~endance~attJCI and made:certam m1srepresentat1ons on .his appl1cat1on .for a medical . license m M1ssour1.. -· · ·. · . . . · . . . . ... · . · · · (3) Busint=ss and Professions ~Code §§ .22~,:a,nd 2261 (un~rof~~si9pal C:On~uct of knowin·g1y _sigriing a false.QOCUf!1~nt); ~ase~ on ·the Bo.ar~~·oonc~us1ons that. O,r. Om1g1 misrepresented that he Flad nQt be~n cqnv1cted, "corpm1tte.d Jraud .:by . .failing, to· glscl9se ht~ . a!tendapce at UCI, and made certain m1srepr~Sf3Jltat1ons on hts ~pphcatton for a medt~l ,hcense m Mts~~un'. . · . . • · . · • . .. ·. (4) ~~s.11;1es~. 'E!nd Prof~~!Ons .Coqe §§ · 4~.0(a) ~rtd . 2234(f) · (con9~ct _warrantmg demal of license
· apphcat1on ~onginally), b~sed. on the: Boa~:s conclu~1ons .that Dr. 'Om1d1 .. misrepresented th~t he had n?t . b~n qorw~c;:te~1 comm,jtted J~au~ ~Y. fa.1hng: !o d!~clg~e; h_1s.atten~ance at ·u.c1, and made certe1in m1srepr~sE?ntat1ons on h1s.appbcat1on fora med1~I h,cense m Missouri. · · . ~ · · . · .. . (5) Bµ~mess apd Prqfess19n$ :Code §. 2236 (con,v1ct1on), based on the Board's conclusion ·that Dr. Om1d1 ·had been .convicted of a cnme stemming. from the bu~gfary. . · . . · .
.Dr~ .9~idi ~ought relief in. ~hi~ Cour,t via pe~itio,n for .w~it ·o~ mandate~ Th~ Court, _Juqge Ohane~ian .· pres1din_ g_· , granted Jhe .pet1tro ___ n aft_ er concluding ·that the weight . of ·the -evidence did not :support the_ Board's conclusion that Dr. Oinidi had been .convicted ofa crime. The Court further .found that the Board imprpperly c~msid~red>eviqepce)elating tQ :pr~ :On:iidi's Mi,ss~uri li?ens~ ~pplf~tion1 ~c.c:1use it; h~(flfr:lOt .Qrov1ded. -notice to Or: .Qm1d1 .that SU(fh •. ~v1de11ce WO,Uld be :use~ m the ~~m.1111strative procee.dmg.-The co.urt rejec~ed Dr. Om1d1's other content19ns as mentle~,-_,s_pec1fi~lly con,clOdmg .that. the yve1ght of the · ev1de __ nee dtd s~pport the·. Board's conclus10n t~at Dr/ Om1d_ 1 rraud'1le11tly .f~lled to ·(i1~clQse ~1s af!end~nce at UCI: The Court remanded the matter to the 'Board "for further proceedings consistent with this ruling." The 'Board was dire.cted not tQ consider the eonviction on .charges that were later .dismissed or the evidence concerning Dr. pmidi's Missouri license application in determining the ·penalty.
Dr. p~idi now challeng!=ls the B.oard's complianqe \\'ithth~ writ on ~emand, pursu~ntto CCP § 1097~ Dr .. Om1~1 arg. ue. s tha. t t~_e:s,o~rd_fatled ~q _comply w .. ith t_h_ e wnt b_ y: ·(1_) 1mpr9_ pe. rly re_~'l'.'19_ on factu. al fitidmgs relating. to ~he conv1~t1on m its de91~1on on. r~Q1and (th~ "reman~ de~1~1on':J\ (f improperly .r~Iymg .on factuaffindmgs rel~ting to Dr. Om191'~ apphcat1ons fQr hcemi;ure m Missouri m ~ ~remand dec1~100; (3) 1mprpp~rly concluding _th~t Dr. Qm1d1 has ~a ~ench~nt .for dishonesty; a')d (4) fa1l!n9 to reconsider the revocation qf Dr. 01111a1's license· m Q.ood faith following 1s~uance ·!'~the yvrr:1t. Or. Om1d1 further argues that. the Board violated tus due process nghts and the California Adm1mstrat1ve Procedure Act ("APA") by not providing him with a hearing on remand. · _ · . · ·
Conviction-Related Factual Findings. Dr. Omidi objects to ·the Board's inclusion of factual findings iri its remand decision stating that he was "involved m the burglary" (~ 9-10), "caught and arrested in connection with the burgla~" (,-f. · 11 L and detailing the criminal proceeaings (not specifically indicated· by petitioner, t;>ut ·presumably ~5-10 1 22-311 38, 1,13:44)- A~c9raing to Dr. OQ1idi, the inclysion of thes~ factual. findings shows that e Board considered his conv1ct1on on remand m contravention of the wnt ruling issued by Judge Ohanesian. The Court disagrees. . ·
The factual findings contained in the paragraphs 9-11, 15-181 22-31 and 38 essentially find that Dr. Omidi was involvea in, arrested for, and criminally prosecuted in connection with the theft of the exam.
Date: 12/19/2008. · Dept: 31
MINUTE ORDER Page:2 Calendar No.:·
Caae. Title:. c JULIAN OMIDI. "~.o. vs MEDICAL Case No: Q7'""~01401 BOARD ciF·CALIFORNIA ·
P.afagrap~s 43 and 44. discuss. Dr. Omidi1s U .~. pitlzenship appUpation and an. indictment filed against him alleging that he failed to d1sclosethe con~1c_tion on th~t aP.phcation, which was dismissed.in ·2005. Those paragraphs do not CC?nclude t~at Or. Om1d1 vvas conv1~ted of any of the charged crimes, but" rather dei:1I V!lth th~ eve!1ts Jead!ng to . hrs arrest t~e. procedural joyrney of the -cnminal case, and the alleg~tion[1J m the .1mm1gration case that Dr. br,md1 liad. been convicted of a crime and had not disclosed th,e ·C9nviqtion. Wf1e1her th9se.f!11dings weresup~of'.\ed by the weight of the e,vidence was a question to b~ raised m ,the orig_ rrial wnt P_ etlt1on an_ d _the Court .w1llno_t cons1ctt.3f yt1heth_ er sµch ~npingsw~re proper in. · thls ,CCP § 1097 J'r)qt1on. {Ttie sole paragraph find mg that Dr. Om1d1 suffe~ed ·a ,c:nmmarconvrction in the original Bo~rd dec1s1on was dele~etf on rel'11!=fnd and replaced b~ 1f 50, which quotes Judge Ohanesian's ruhng that "it can no longer be said that. peti~1oner was con~icted .. ) . ·
. .
Moreover, many of t~e factu~I findings rega~ding .the burgla_ry underlie the. Board~s legal conclusions with · re~pect to Dr. Om1d1's nondisclosure of ti1s attendance at UCI. The fact that Dr.· Omidi. was discharg_ed
. for _ca us~. fron) th~\ institution for.his_· i11volveni~nt in the. s_ tolen.· ~xam e_ vent~. pr. ovi~es a poss_ib. le 'motiv. e. for ')gt d1sclosmg his UCI ~ttendance - the.p~s1r~ to.pr~vent t~e 'Bpard from rearmng 9f t~ose ,e'fents~ Jn
· . ad'1it1qn1 Jhe _,prqc;e,d_4r~l .b1story ofJ?r: Qm}i:t•'s_ crJ_rrim~I :9~~~-.1~ :~S.~~r:at1al ~c::> •. Y_ri~e.r~!~ndmg. w.hy. Judge . Ohanes.ian conclu(lea · that Dr . ., Om1~1 chd . not hav~. a conv1ct1on ana the . resuJt1n_g Jlfctua1·. ·and legal .. conc!u~1ons .by the Board, which reiterate .that ruhng and find no cause for, d1sc1pllne based. on the · conviction. . ·. · · · · · . .
. Becausethe chaUeruied par~graphs ;do n9t conta_iqafinding that Or. pmidi suffered a criminal.conviction ·and because. _Judge Ohanesran's ruling did ·no_ tdirect the Board to disregard the burglary-related events thetns.elves or·tQe proCedur~I hif?t9rY .o1Jhe,cas.e but 9nly the fi~ding thal Dr.J~inidi liad b~en .convicted ihe .Court concludes that the Board chd oot act rmproperfy on remanCI by ret~unmg the findings contained m paragraphs 9-11, 15-18, 22.;.31;38, and 43-44~ ·
· Missouri Lio~f1se Applica.fion Finding~. Dr. Omidi Qbjects; t<;> th~ .Boar~'s in9lusior) ·of factu~I findin.g~ in its remand deetsron regard mg hrs apphcat1.ons for :a .medical license .in Missouri .. (Remand ~oec1s1on W
---·.· ··· -·---1~ciij~_>ai~~e~Y~~-~mir~C-1W~t:1W~~~o~r8t~rWµ~gg~~~s;c%i~r~~r0s1~~ra!ic~~iwt~e~-~P~1:g~rdAg'~fn:{Ri·-·--ao. m_ J_ntstra. t1ve proc~edrrag w_ ithout prov1d1~ f!9lrce to Dr~ Orn1d1: While th. e;~oa.r_d,asserts,th·Ei.1_the findings· are :incl~ded for."h1stoncal .~on,text," . .th.e fihdmgs do not support any: legitimate. fa9U1at tind.1_ng_~~-or leg_al conclu~1ons as they ar~ :ba.sed on evidence that :should .not-have been cons1d~red 111 the first place. Acco_rdmgly, the B?a_ rd 1s drrect~d on rem_an<;f to delete tho_· se paragra_phs_ .fr_.om its deCJSJon ~Bd not to consider tliose findings or the _evidence on which they were pased 10 ae~errnmirig Dr. Om1d1's p~~·~lty. ·· . :~
. .
Penchant. fo.r Dishonestv. Dr .. · Omld,i. argu_es: th~t, ·~hen the factu.~I findilJQS r~gard_ing the burglary: and related cnr,n~nal pr9ceedings; t~~ fy11ssourr apphc~t1ons, a!l(I the c1t1zens,h1p appllcatlon are excludect .• the only ;rem~1nmg .ev1derice.of ~1s ~1shon~sf.Y. 1s_h1s .pon~d1scl9~1Jre of .h!~ .attend.ance at-UC.I. and .spme Q9ss1bl~ mconsistenc1~s m .his driver's license apphca.t1ons (discussed 1r:i 1f 45 o{ the ~rriand dec1s_ ion). Those instances 9f .dishonesty .do not amount to' a. "penchant," ·according to, Pr· Orn1d1, so the .Boaid erred -by concluding that "the ent1refy. ·of. the record· reveals that ror. Om1d1] has ·a penchant. for dishone~tv." (Re111apd Decisiofl, LegaJ ponclusions 1I 13.) i;oweyer, file Court lias conc:luded 'that.the Board did not act improperly m retaining the factual findings regarding the .exam theft, ·the related criminal .J?.r<?ce~gings, C!nd tfi.e dismissea .. immigration c.ase.,. a!3. Cf.iscussed _ab~ve •. T~e d~finitions of 11pench.ar)t" JUd1c1alfy .noticed by the Court define that tenn ~S md1ca.t1ng a "strong ll)Chnat1on" or a "strong and c~ptmuous lea111ng." The Court ~nnot'say that the Board has mcorrectly apP,hed that te~~ based on. the weight of the evidence presented m the case. (The B.oard's conch,Js1on. regarorng Dr. Om1d1's honesty is problematic under due process and the APA, however, for the reasons d_iscussedbelow.)
· Bad Faith. Dr. Omidi contends that the Board's reconsideration of his case on remand was not done in good faith. Such bad faith is shown, says Dr. Omidi, by the Board's refusal to delete factual findings regarding the burglary, criminal case, and Missouri license applications, and its imposition· of the same · genalty on remand. As discussed above, th~ Board did not act improperly by retaining the factual findings regarding the burglary and criminal case. While the Court con.eludes that the Board should have omitted mention of the Missouri license applications from the remand . decision the Court is not convinced· that the inclusion of those findings <!lemonstrates that the Board did not intend to comply with the writ, particularly given its representation that it disregarded those findings in determining the penalty on remand. (Remana Decision, 1I 48.} Nor does the Board1s· decision to reimpose license revocation on remand indicate bad faith. Judge Ohanesian concluded that discipline was proper pursuant to four of the
Date: 1211912008 Dept: 31
MINUTE ORDER Page:3 Calendar No.:
Case Title: c JULIAN OMIDI. ~.D. VS MEDICAL Case No: 071"'~01401 BOARD Oi= CALIFORNIA
five. ~harged ~grounds becalt~e the vyeight of. the evidence supported Jh~ Board's conclusion that· Dr. 9m1d1 cqll)mitted fraud by fallirJQ to q1~cfose his .attendance .at OCI on h1~ J1cense application. The Court !S i:iot willing. to. assume that 1mpos1t10.n of a Pll!nalty that .1s nqt reversible as an abuse of discretion md1cates.baq faith by_the.B_oard ab$entpther e~1dence ofb~dJa1th. (See :LE11ndau v. Mf3,d. 6d~ (1~9fl) 81 . qal.App.4th .191, 217-18 [where reasonable ·minds may differ as to propriety of penalty, no abuse of d1scret1on has been .showni.) . · . · . . - . · . · ·.. . . ·
DueProcess and the APA. Lcistly, Dr. Omidi·argues that.the Board violated his due process rights and th.e. APA by not holding a heanng following rerr.u~nd giviqg him . the oppqrtunity to fib~ present with cqunsel, and t9 pre~.epf oral or written a~gurr,ient :and/0,r. ey1aence." Dr .. Om1di has ;presented the Court wath no authonfy. h()ldmg that, on remanp for,,redetern:11nat1on of pen~lfy following 1s~1,Jance of a writ of manda .. te, an .agency. . must ho.Id. afull .ev1depttarv. J1e. ~rmg~(or any other fyP,eJ>f. hear1pg) to cornP!Y with 9ue .. pr9cess. lnsteaCl,.·Dr. Qm1d1·has an~log1z~d.h1~.s1tuat1cm to.th.at of.a criminal defen(;fant whosf;l·~se 1s remand~d for·rese.nt~ncmg. andJh~t of a c1.v1l litrg.:a. nt on. rer,nand. for.a~r~detetm. mat1on of .da. ma.ges. (See PeoP.le V; 1~odnguez.{:J99S) 17 Cal.4th 253, :25(); .Cunn!nham·v. Simpson (1969) 1.Cal .. 3d ~01 3tO.)_The'.foreg91n~ .authont1es.~~e mappos1t~, however . .;,. ~odnguez ·Vl(as ba.~ed on tbe :defendant's rrght
.t.o beJ?.r.es. ent with coupsel :~t-~rit1ca1 ·st~ge. s~m-tpe·proceeding. ~-:upder·.th~· .. ~'.~h. ·Amendf1lent. 0ra.ther than prpc~aural due P.ro.cess principles, and. ,punmngh~m ·was s1m1laJIY: dec:1ded on. non~prq~dural due.
. process . grounds. (the Court merely. determined that it could not dec1d.e th~ :appropnate. rem1ttitur amount and that a new .tnal would be the "safest and most complete" means 9f doing so) ..
While the law ls. !ess t~i:ln cl~ar. on this pqint, the Court.·has IQC~ted one case 'Suggesting .tha~.due pro~ss may reguire notrce and an opportunity to pr~~ri~ ar~ument 'On a.rem~nd f9r re(jeterrmnat101) of penalty, ·at Jeast wher~the :penal!Y im]hcates the ,petitioners ab1flty::to .. practice his or,,her·profeS~lOI) .. {Cole v. LA. CpmmunrtY, College Dist. {.1~77) sa~cat.,t\pp.3d 785; 793.) l,n t~at case, a d1scharg~d .public emplqyee ·obtained a wnt of mandate findmg tbat some of the bases ofh1s discharge .were not ·supported . · l::>y.the evidence and .. remanding t9 ;the:agency for redetermi!1.atipn of;the penalty. ·(Id; at 789-90:tOn · · rem~nd, the agency. referrec;I the -:natter of p~f1alty to ;the .heanng. officer who had conducted the or1QLnal heanng for a recommendation withoUt prov1dmg ·notice to the c:hscharged employee .. Jld. at 7~3.)--rbe age.r•cY.~ttfen proviaea·~tfie :empto:v-ee-:::-with···brief'notic~n:lf~the~meetiog.~t-vlhicti-'itvoted.-tq7•reimpos~~tts~-.-~- · ongmal; (;hsqharge .penalfy .. (Id.) The Court .·of Appeals upheld, .. the trial ~oo.urt's cpncll,lston that_,!Such proc~c;iure did n~t v10.Jate au~ process, because the employee had b~en pr9v1decl with ·ttie opp9rtu~1~ to provide.'both wra~~n and pral argurnent and because the matter w~s decided on the record, obviating any need for add1t1onal evidence. (Id.) . . . · · . . : . ·
With .regard to the APA, the law has recently been clarifie~ in Ventimiglia v. Board of Behavioral· Scie·n .. ces (2008). 168 C. al.AppAth. 292 .. Jn ·t~at Hcense revo. cation case, th~. C9urt o. f J\ppeals .. :he.ld that Government Code § 11517(c)(2)(E)(U). apph~s. on a .remand f9r .redetermma~1on. of penalty wher~ !he agency on re,mand makes cflanges. to .. its decrs1on beyqnd "cl~~mfymg charige[s] <?.r.changers]of a similar
. nature .that do[] not affect the· factual or. legal ·.basis of the P.roP.o.sea CJec1s1ont (Id. at 396-07.) Cor;i~equently, where the. ~gency O!l remand goes b~yond such .c.larrfymg change. s.i-1t. must provide the
. petitioner with the opportunity for written or orar argument pursuant to § 1 f517( c)t2)(c)(aQ. (Id.} . . . . . . . .
Here, the Court concll!des that, as in Ventimiglia, the Board has niade ·additional factual findings to support its relmpC?s!tion of ~evo~t!on on re:rl)ancf that__go beyond cl~rifying char:iges and ·affect t~~ factual basis of the d~c1s1on. In its .original dec1s1on, .the Board based its conclus1on that Dr. Om1d1 has a "penchant- for dishonestv" on tne IYlissouri -licertse applications and ~he faqt that h.e -"was willi11g .to acknowledge the factual bases for h1~ plea negotiation m 1Q91 but, at this .hearmg, demed any .comp"crtv In illegal acts." In its r~mand decision, .the Bq~rd charyged ·lts factua1·l,?ases .for eonC?luding that Dr. Omidi h~s a. "penchant f~r. cf1shonesty'' to hrs knowing a.nd mter;it1onal nonp1scl?sure of :his attenp?'nce at U~l, his lacK of "recognition. of .the importance honesty plars m the quahficat1ons to be a physrc1an," and hrs lack of 11remorse for his misrepresentation and lacR o honesty to the Board." (Remand Decision, Legal Conclusions, 1f 15.) ·
Accordiflgly,· pursuant to Ventimiglia and Cole, the Court concludes th.at the ,Bpar~ erred by nqt allowing Dr. Om1di an opportunity for ar9ument on remand. To the extent that its dec1.s1on 1s base.d on issues no1 addressed at the original hearing (Or. Omidi contends that he had no OP.portunitv to express remorse), the Board must also allow additional evidence to be presented on those issues. ff, instead, the decision is based entirely on the record, the Board need not receive additional evidence. ·
Date: 12/19/2008 Dept: 31
MINUTE ORDER Page:4 Calengar No.:
. .. Case Title: C JULIAN OMIDI. M.D. VS MEDICAL Case No: 07,..S01401 BO~RD O·f= CALIFORNIA
. .
D,isposition. The mot!on is granted. T~e matt~r is remands~ to ~~e Board. On reman~. the .~oard is dffect'ed to compjy ~!h J4dge q~anes1an's rµhng on the wn~ pet1t1on, tp .rer,nove from_ 1ts ~ec1s1on any ref~renc~. to Dr. Om1d11s M1sso4n J1c~nse 'apph9ations, to provide .Dr. Om1d1 ~.1th an .opportµmty to subrmt oral ·or wntten argument :regard mg the appropriate .penalty, andJo _alloW additional evidence .to the .extent "it considers Issues not addres_sea at the original hearing. On or before March 1, 2009, the Board shall file.with ttiis Court a return indicating the steps ithas'taken to comply with this ruling •.
. . . " ' ' ' .
Dr. 01J1i<;li. is directed ,tQ prepare a formal o~d~r, incorP,orating th~ Court's. ruling herein ·v~rbatim or . attachm~ 1t as an Exh1b1t and thereafter submit 1t to the Court for signature in accordance with Rule of Court.3 .. 312. . . . . . . _ .
. . . . . . • . .. • • ·"1 . • • • • • -
1] The. Boa~d. noted. that the governrn~nt. dismissed_ the immigratioq . case_ after- Dr ... Oniidi -provided bacl<ground information .regard.mg the-cnmmat~~e and the -l~g~I advice he .~ad received .. P;aragr!ilphs 43 and 44.thus do not state or-imply that Or. Om1d1 had a conv1cl1on but only-that the government 1mt1ally alleged that he did. ·· · - - - - · -. - ·· · - - · _ · · · . - · · · . · . _ -. ·· . ·
COURT :RULING
The matter is argued and submitted. The Court takes the matter under submission.
. 2 . -~-······----~------pfil"(TI:MJ.1TORY WRIT OF MANDAMUS
I C'-'1"" .I•./ t'l">''I n/'IJ u-1
AUG-22-2008 12:21 9164481?09 95Y.
r, u;:i
l
pJ09 J
BEFORE THE MEDICAL BOARD OF CALIFORNIA
DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA
REDACTED
__ _. __________________ _
In the Matter of the Accusation Against:
C. JULIAN OMIDI, M.D. aka Kambiz Beniamia Omidi
Physician's & Surgeon's Certificate No. A71181
Respondent.
Case No. 17-2004-162146
OAH No. L2006070409
DECISION AFTER REMAND FROM SUPERIOR COURT
This matter came on for noticed hearing before David B. Rosenman, Administrative Law Judge, Office of Administrative Hearings, on July 9, 10, 11, 12 and 24, 2007, at Los Angeles, California. Edward K. Kim, Deputy Attorney General, and Paul C. Ament, Supervising Deputy Attorney General, represented Complainant David T. Thornton. Respondent C. Julian Omidi, M.D. was present and was represented by Henry R. Fenton and Robert L. Shapiro, Attorneys at Law.
. Evidence was received, the matter was argued, and the matter was submitted for decision on July 24, 2007.
The Administrative Law Judge's Proposed Decision, submitted on September 4, 2007, was adopted by the Board and became effective on October 26, 2007.
Thereafter, Respondent filed a Petition for Writ of Mandate in Sacramento County Superior Court, Case No. 07CS0140i, which was heard and thereafter granted by the court on August 20, 2008. The Superior Court of the State of California, pursuant to its Judgment Granting Petition for Peremptory Writ of Mandamus dated August 20, 2008, remanding the proceedings to the Board, commanded this Board to set.aside its decision in the above matter dated September 26, 2007, and to reconsider its action in light of the court's final ruling.
Having reconsidered the matter in light of the court's ruling, the Board hereby sets aside its decision in this matter and makes the following Decision on Remand in compliance with the Peremptory Writ. A copy of the Peremptory Writ and Tentative Ruling is attached as Exhibit "A".
Rulings Affecting the Accusation and the Issues
During the hearing, Complainant filed a Second Amended Accusation (Exhibits 51 and 55) that contained new charges. Respondent objected to, and made a motion to strike, some of the new allegations on the grounds that the new charges therein were barred by the statute of limitations found in Business and Professions Code section 2230.5. After argument by both parties, and for the reasons more specifically set forth in the record, the objection was sustained and the following portions of the Second Amended Accusation were stricken:
a. Paragraph 19 (page 7, lines 15 - 22);
b. Paragraph 20 (page 7, line 23 to page 8, line 3);
c. Paragraph 22 (b) (page 8, lines 19 and 20);
d. Later references to prior paragraphs that are incorporated by reference (page 8, lines 21 and 22; page 9, lines 17 and 18; and page 9, lines 23 and 24).
FACTUAL FINDINGS
I. The Accusation, First Amended Accusation and Second Amended Accusation were filed by Complainant in his official capacity as the Executive Director of the Medical Board of California (Board).
2. On March 24, 2000, the Board issued Physician and Surgeon Certificate number A 71181 to Respondent. The Certificate was in full force and effect from that time to the hearing in this matter, and was to expire on July 31, 2007, unless renewed. If not renewed, the Board maintains jurisdiction over the matter pursuant to Business and Professions Code section 118, subdivision (b ).
3. At different times, Respondent has also been known as Combiz Omidi, Kambiz Omidi, Kambiz Beniamia Omidi, Combiz Julian Omidi and Julian C. Omidi. He changed his name to Julian-because-he believed it would be easier for his-patients and his practice.
4. In summary, the Second ArriendedAccl1sation alleges that Respondent's license is subject to discipline under various sections of the Business and Professions Code for the following acts: (a) Respondent attended the University of California, Irvine (UC.,. Irvine) but failed to include UC-Irvine when answering a question on his license application that requested information on all undergraduate schools he attended; (b) Respondent cheated on exams while at UC-Irvine; (c) Respondent was convicted of three related crimes in 1991; and (d) Respondent failed to disclose these convictions when answering questions on his license application that requested information on convictions.
2
'•
5. Respondent was born in Iran in - When he was ten years old, he and his family moved to the United States, where he attended school from grade 5 and afterward. Respondent attended University High School in Irvine, and successfully completed several advanced placement courses. After graduating high school, Respondent entered UC-Irvine in 1986. He lived at home, about one mile from campus, with his mother, father and younger brother. Respondent was extremely devoted to pursuing his education, and did not have any job or participate in any extracurricular activities while attending UC-Irvine. He did not date or develop many social relationships, and had few friends. He described his usual day as arriving at school about 7:30 a.m. and staying until 10:30 p.m., coming home, taking a nap, and studying until 3:00 a.m. Respondent stated that he liked this schedule. Respondent's goal, from an early age, was to attend medical school and become a physician. There are seven generations of doctors in Respondent's family.
6. Respondent began attending UC-Irvine in the fall quarter of 1986 and was dismissed from the university, with cause, effective May 5, 1990. He was a triple major, in economics, psychology and biological sciences. His transcript reveals an unusual number of quarters in which he registered for many more courses than average. The average number of units per quarter is 16, and students rarely take more than 20 units for any extended period of time. In total, Respondent earned credit for 311 units at UC-Irvine, with a grade point average of 3.4. His transcript (Exhibit 18) is summarized as follows:
Units taken/ Quarter Completed Other information
Fall 1986 13113 Deans Honor List (DBL) Winter 1987 20/20 DHL Spring 1987 19/8 Withdrew from 11 units Fall 1987 27/27 DHL Winter 1988 38/38 DHL Spring 1988 43/43 DHL Fall 1988 56150 Failed 6 units Winter 1989 58/26 Failed 9 units; incomplete for 23 units Spring 1989 23/23
- Fall 1989 - 35/Jl Incomplete for 4 units
7. The circumstances under which Respondent registered for and completed many of his classes were suspicious. Respondent was able to add or change courses without always getting all of the required approvals from teachers. Permission from a Dean was required to register for more than 20 units per quarter, and it was not clear that Respondent had obtained those approvals. The current registrar at UC-Irvine testified that, in her 27 years of experience, she had never seen numbers of units this high taken over this number of quarters. The registrar at UCIrvine when Respondent attended was aware·of Respondent because of the number of units for which he was registered beginning iri the winter quarter of 1988 and thereafter. When ~he advised the senior academic counselors in Respondent's majors of this situation, she was instructed to prepare a report each quarter, which she dubbed "the Omidi report," of all students
3
registered for 24.7 units or more. Other than Respondent, the few students listed in-the report were usually involved in the performing arts, where individual instruction and performance groups often resulted in a high number of credits. There was no evidence of what occurred after Respondent's name appeared on the reports for various quarters.
8. Although the registrars believed the circumstances of the high number of Respondent's units, and the manner in which he registered for these units, may have been suspicious, it was not established, by clear and convincing evidence, that Respondent cheated in any courses while at UC-Irvine.
9. On February 2, 1990, Respondent was involved with other students in a burglary of exam papers from an office at UC-Irvine. It was not established, as alleged, that Respondent obtained, by illegal means, master keys to faculty offices in order to steal examinations. However, in a search of a car used by Respondent, a key was found for an office in the Chemistry Department at UC-Irvine. Respondent did not establish that he was authorized to have that key.
10. One of the other students involved in the burglary, Arash Benham, had been a friend of Respondent. Respondent had tutored Benham in the past. Benham told Respondent he was under extreme pressure from his family to perform well in school. Respondent believed that Benham was depressed and likely to harm or kill himself ifhe did not perform well in school. Respondent helped Benham study by using an exam Benham brought, telling Respondent it was an advanced copy of a test to be given. Respondent did not admit to any other complicity or knowledge of any burglary or any other crime.
11. Respondent, Benham and at least one other student, Amir Bagherzadeh, were caught and arrested in connection with the burglary. A short time later, Benham committed suicide.
12. In February and March 1990, Respondent spoke several times with UC-Irvine ombudsman Robert Wilson concerning the events leading to his arrest and the sui~ide of his friend. Complainant offered the testimony of Wilson given at the preliminary hearing of the criminal charges brought against Respondent and Bagherzadeh, which occurred in December 1990. 1 Wilson testified that, on March 20, 1990, Respondent admitted that he used stolen exam_s for three courses that he-marked on a-copy of his transcript, -and that he was a lookout-for the burglary of an exam on February 2, 1990. Wilson asked Respondent to prepare a written statement The statement written by Respondent did not inciude these admissions. Neither the marked copy of the transcript nor Respondent's written statement was offered in evidence at the present hearing.
13. Respondent denied that he cheated or used stolen exams, or that he highlighted anything on his transcript for Wilson. He also denied he told Wilson that he was a lookout for the burglary of any exam.
1 Respondent's objection to the use of this transcript was overruled, for reasons specifically set forth in the record.
4
_,
14. The preliminary hearing testimony of Wilson also includes Respondent's statement to Wilson that Respondent was not involved in the burglary. The lack of both the marked transcript and the written statement is troubling, and, combined with the contrary statements that Wilson attributes to Respondent and Respondent's denials at hearing, makes it difficult to give substantial weight to Wilson's testimony. Wilson testified that he brought in another administrator, Michael Butler, as a witness to Respondent's statements, but Butler did not testify. Under the entire circumstances, while the preponderance of the evidence might have substantiated the allegation, it was not established, by clear and convincing evidence, that Respondent cheated on any exams while he was at UC-Irvine.
15. On December 28, 1990, a felony Information was filed against Respondent (People v. Amir Bagherzadeh and Kambiz Beniamia Omidi, Orange County Superior Court, case number C-83006). Respondent was charged with violating: Penal Code section 182, subdivision (1 ), conspiracy to commit a crime, a felony, for conspiring to commit burglary in violation of Penal Code section 459; Penal Code sections 459/460.2/461.2, general burglary, a felony; and Penal Code section 496.1, to willfully and unlawfully buy, receive, conceal, sell and withhold property, and to aid in buying, receiving, concealing, selling and withholding property, to wit: a key, a felony.
16. (A) On December 3, 1991, pursuant to a plea negotiation, Respondent withdrew his not guilty pleas and pleaded guilty to the three counts of the Information. On the motion of the prosecutor, the three counts were reduced to misdemeanors under Penal Code section 17, subdivision (b). The Court's Minute Order stated that the hearing was for "motions/change of plea/sentencing," and included that a factual basis for the plea was found and the guilty pleas were accepted. It was ordered that Respondent perform 200 hours of community service with CalTrans, and that, at the end of six months, Respondent could withdraw his guilty plea and a plea of no lo contendere was to be entered.. A hearing on the balance of Respondent's sentence was set for June 26, 1992.
(B) A written waiver of constitutional rights was prepared as part of Respondent's plea negotiation. (Exhibit 54.) On page one, Respondent indicated that he intended to plead guilty to the three counts against him. In item 2, the form states: "I understand I have violated this section by-(factualbasis).'-' Respondent'-S attorney fil-led-in the following: "In O.C. - -[Orange County], between Sept. 1989 & Feb. 1990 I conspired & agreed to commit 2° [second degree] burglary & ori 02/2/90 did commit that offense in violation of P.C. § 459/460.2 I also on 02/10/90, I possessed stolen property, knowing it to be stolen. Stipulated factual basis exists." Respondent initialed this section, indicating that he understood it and agreed with it. Respondent signed the waiver form on December 3, 1991.
(C) In item 11 of the waiver form, Respondent acknowledged that he understood and agreed that the proposed sentence was that imposition of sentence would be suspended and he would be placed on three years informal probation, with a handwritten asterisk(*) inserted on the waiver form. Probation would include payment of $100 restitution and 200 hours of community service. There is a handwritten asterisk at the bottom of the page next to the
5
following handwritten statement:2 "No judgment imposed for six months: if. [defendant] completes community service, judgment ([UNINTELLIGIBLE] re probation) to be imposed+ P. C. 1203 .4 relief granted on same date."
(D) Respondent had made it known to his attorneys at the time that he planned on becoming a licensed physician and that he wanted a disposition of the criminal case that would not prevent this from happening. Respondent mentioned this to his attorney Frank Ospina, who handled the preliminary hearing. Respondent then hired attorney Ronald MacGregor, who had more trial experience, when it appeared his case would go to trial. On the day the plea was negotiated, Michael Garey was Respondent's attorney ofrecord. Respondent received advice from his attorneys that the case could be resolved in a way that the charges would be eventually dismissed.
17. In an informal conference on December 3, 1991, the Superior Court judge indicated that he would impose this indicated sentence. E. Thomas Dunn, the Deputy District Attorney who prosecuted the criminal case, wrote on the waiver form that his office was not in agreement with the proposed sentence. Dunn testified that, at that time in Orange County courts, it was not unusual for this type of plea to be arranged in misdemeanor cases in Municipal Court concerning petty offenses or drug diversion. However, for the type of charges against Respondent, Dunn characterized the arrangement as highly unusual.
18. On June 26, 1992, at the hearing on the balance of Respondent's sentence, he was again represented by Garey. The Court entered an order that: Respondent had pled guilty to the three counts as felonies; the offenses were reduced to misdemeanors under Penal Code section 17, subdivision (b ); imposition of sentence was suspended and Respondent was placed on probation for three years on terms including that he perform 200 hours of community service, with a note that the community service had been completed; and that the minute order constituted "the (amended) probation order." There was no indication that any relief under Penal Code section 1203.4 was considered or granted at that time, as was contemplated in the waiver form. (See Finding 16 (C)}.
19. Following Respondent's arrest after the events in February 1990, he was discharged for cause from UC-Irvine, with the condition that he could apply for re-entry only with the
_specific approval of the-Chancellor. There was no evidence thatRespondent contested the discharge. Respondent considered himself as having been expelled from UC-Irvine.
20. Respondent did not use any of the 311 quarter credits he received at UC-Irvine to qualify for medical school. Instead, he began over, attending numerous community colleges and other colleges, including Golden West College, Coastline College, and California State University, Los Angeles.
2 Although the handwriting and copy are not completely legible, testimony of a witness familiar with both the defense attorney who wrote it and his writing has assisted the Court in determining the content.
6
' ..
21. Respondent entered medical school at St. Louis University in Missouri in August 1992, and graduated with a distinction in research in May 1996. He performed his internship in internal medicine at Loma Linda University Medical Center from July 1996 to June 1997. He had returned to southern California because of problems that arose in his father's business and a desire to be closer to his family and assist during that time.
22. While doing his internship, Respondent considered obtaining a physician's license in California and reviewed the application. In 1997, he sought legal advice concerning the questions on the application relating to his time at UC-Irvine and his convictions. He first sought advice from Garey, his criminal defense attorney. Garey informed him that the criminal charges had not been dismissed, and then prepared a petition for relief under Penal Code section 1203.4 that was signed by Respondent on February 5, 1997.
23. (A) This Petition and Order are significant in several respects. In it, Respondent declares, under penalty of perjury, that he is the defendant "who was convicted of the misdemeanor offense of violation of' various Penal Code sections "on or about 7/23/92."3 The Petition reflects that Respondent fulfilled the terms of his probation and that he had been discharged from probation pursuant to Penal Code section 1203.3. These two representations are contradictory, and there is no other evidence that Respondent had been discharged from probation pursuant to Penal Code section 1203.3. The Petition requests that he be permitted to withdraw his plea of guilty.
(B) The Petition then states: "The granting of this order does not relieve the defendant of the obligation to disclose this conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any state or local agency."
(C) The Order granting the petition was.signed on April 8, 1997, and filed on April 9, 1997. Pursuant to the Order, the plea of guilty was set aside and vacated, a plea of not guilty was entered, and the complaint was dismissed.
24. Respondent was unhappy that Garey had not obtained an order of dismissal in 1992, and he sought further legal advice .. Respondent was referred to attorney Robert Croissant in 1997. Croissant advised Respondent-that-his conviction need-not ~e reported-en the lieense application, and that Respondent did not need to reveal his undergraduate attendance at UC-Irvine on the license application. (See Exhibits 20 and H.) -
25. Croissant advised Respondent that the dismissal processed by Garey "was also still not com11lete." .(See Respo11de!lt' s. declaration in E~hibit C.) .Croissant prepared an Amended Petition under Penal Code section 1203.4, signed by Respondent under penalty of perjury on May 20, 1997. The Amended Petition was on the same form, and contained the same recitals, as that noted in Findings 22 and 23 above, with the change that, instead of requesting that Respondent be permitted to withdraw a plea of guilty, it requested to withdraw a plea of "nolo
3 There is no record in evidence of any court action taken on this date. 7
contendre [sic]." The Order granting the petition was signed on May 23, 1997, and it was filed on August 18, 1997. (Exhibit 25, p. 13.) Croissant sent a copy of this Order to Respondent, and returned other papers to him, by letter dated October 27, 1997. (Exhibit R.) ·
26. For reasons not explained in the record, Croissant prepared another Amended Petition under Penal Code section 1203.4, also signed by Respondent under penalty of perjury on May 20, 1997. The Petition was the same as noted in Finding 25, except that the request to withdraw the plea of "nolo contendre [sic]" was written slightly differently, and there is handwriting at the top stating "Duplicate Original." The Order granting the petition was signed and filed on July 10, 1997. (Exhibit 25, p. 14.)
27. In 1997, Penal Code section 1203 .4 included the following provision: "The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, [or] for licensure by any state or local agency ... . " This language has not changed to the present.
28. There was no direct evidence of the specific language contained in the Medical Board application for licensure that Respondent had obtained and had asked Croissant to review. However, from the totality of the evidence, it is inferred tliat the questions on undergraduate schools attended and convictions are similar, if not identical, to questions 11 and 22 in the application Respondent eventually submitted in 2000. (Exhibit 4.) Question 22 asks whether the applicant was ever convicted of or pled nolo contendere to any violation oflaw. It adds the following instruction: "YOU ARE REQUIRED TO LIST ANY CONVICTION THAT HAS BEEN SET ASIDE AND DISMISSED OR EXPUNGED, OR WHERE A STAY OF EXECUTION HAS BEEN ISSUED." (Emphasis in original.)4
29. Pursuant to Business and Professions Code sections 480 and 490, licensing boards can deny an application for a license or suspend or revoke an existing license based on a qualifying conviction "irrespective of a subsequent order under section 1203.4 of the Penal Code."
30. When the plea negotiation was entered into on December 3, 1991, the advice .. received by Respondent. from-Garey, to the. effect that Respondent would-not need to-reveal the
conviction on an application for a license to be a physician, was legally incorrect. The waiver form clearly indicated that Garey intended to return to court six months later to request relief for Respondent under Penal Code section 1203.4. Equally clearly, that code section and the standard form for the petition and order for such relief advise a defendant that he is not relieved of the
4 Although the words "expunge" and "expungement" are nowhere contained in Penal Code section 1203 .4, the process for relief under that section is commonly, if incorrectly, referred to as an expungement of the conviction. (People v. Frawley (2000) 82 Cal.App.4th 784, 791-2.) .
8
' . '
obligation to disclose the conviction in response to any direct question contained in any application for licensure by a state agency. Advice given in December 1991 that Respondent would not need to reveal the conviction was incorrect for at least two reasons: first, the anticipated sentence did not allow for relief under Penal Code section 1203.4 for another six months; and second, even with such relief, the conviction must be disclosed on an application for licensure to the Board, a state agency, a requirement under both the Penal Code and the Business and Professions Code. When Garey repeated the advice to Respondent when the first Petition for relief was filed in 1997, that advice was still legally incorrect.
31. The advice received by Respondent from Croissant later in 1997, when the two later petitions for relief were submitted and the orders issued, to the effect that Respondent would not need to reveal the conviction on an application for a license to be a physician, was legally incorrect for the same reasons as set forth in Findings 27, 28, 29 and 30. Further, Croissant had reviewed the application and should have been familiar with the specific instruction to reveal convictions even after they were set aside and dismissed, or expunged.
32. After completing his internship in 1997, Respondent was accepted into a highly competitive residency in dermatology at St. Louis University. This residency lasted from July 1997 to June 2000. Respondent received .a license to practice medicine in the state of Missouri in July 1997. Respondent's performance in the residency program was "exceptional," according to the associate dean of the medical school, Dr. Neal Pennys, who was also the chairman of the Dermatology.Department. Respondent had the highest scores on yearly academic exams, and received honors in his third year of residency, based largely on observations of his patient interactions and practices.
33. On January 11, 2000, the Board received Respondent's application for physician and surgeon's licensure. The application included Respondent's declaration, under oath, that_ the information contained therein was true and correct. Question 1 lAof the application required Respondent to list "the names and addresses of all colleges or universities where preprofessional, postsecondary instruction was received." (Emphasis in original.) The question also required applicants to "submit official transcripts ... for each school attended." Respondent did not list, or submit a transcript from, UC-Irvine.
34. Respondent-explained that, -in his view, he had been expelled from BG-Irvine and did not receive any valid credits for the classes he had completed. Respondent relied upon the advice he received from Croissant to the effect that his attendance at UC-Irvine did not need to be disclosed in the application. Respondent testified that he had no intent to deceive the Board by not disclosing that he had attended UC-Irvine.
35. Croissant recalled reviewing the application and a letter from UC-Irvine dated April 2, 1990, concerning Respondent's suspension from UC-Irvine. This letter is not in evidence, however it is mentioned in Croissant's letter dated December 28, 2006. (Exhibit R.) Croissant relied upon Respondent's incorrect belief that he had not received valid, completed credits from UC-Irvine. Croissant did not review transcripts or seek any information from UC-Irvine before
.9
rendering his advice to Respondent. Croissant believed the question on the application required Respondent to list only schools where he had successfully completed credits.
36; Croissant's understanding of the nature of Respondent's credits earned at UC-Irvine, based almost exclusively on information provided by Respondent, was incorrect. Croissant's and Respondent's interpretation of the question on the application was also incorrect. The plain language of the question asks for a list of universities attended. As Respondent attended UCIrvine, he should have listed it in his reply. Under all of the circumstances, Respondent's reliance on Croissant's advice on this' subject was not reasonable.
37. The application also asked for information about convictions. See Finding 28 for the specific language of the question. Respondent answered "no" to that question.
38. Respondent explained that he had told Garey, his attorney, that he would agree only to an outcome in .the criminal case that would result in no record, and had been told the plea negotiation would do so. Respondent also relied upon the advice he received from Croissant to the effect that his criminal case had been dismissed and did not need to be disclosed in the application. Respondent testified that he had no intent to deceive the Board by not disclosing his convictions in 1991. ·
39. The Board issued Respondent's license on March 24, 2000. According to Cindy Oseto, an Associate Analyst for the Board who has reviewed numerous applications and made recommendations as to whether they should be approved, denied, or investigated further, if an application contained information that an applicant had been convicted of a theft crime, further investigation would be pursued. The Board often considers disclosure of a conviction as an element of rehabilitation and may consider issuing a probationary license. However, according to Oseto, the failure to disclose a theft crime raises issues of honesty and integrity, and she would recommend either denial of that application or perhaps a conditional license. Further, she would recommend denial of an application where the applicant had not disclosed attendance at a college from which he had been dismissed for cause due to cheating or for helping another student cheat.
40. From July 2000 to January 2001, Respondent practiced with the Facey Medical Group in -Mission Hills; California-.-Respondent opened- a solo practice in February 2001-in -Beverly Hills. Although there was little testimony from Respondent about the nature of his practice, this description is from an interview he had with a Board investigator on Aprii 26, 2005. (Exhibit 22.) At that time, Respondent had six office locations: Bakersfield, Lancaster, Apple Valley, Beverly Hills, West Hills and Valencia. Bakersfield is a solo practice. In the other offices he shared .space with other physicians. He employed another physician who worked at the West Hills and Lancaster locations, and two nurse practitioners and two physician assistants who rotated among some of his offices. Respondent worked at each office one day per week, except Beverly Hills, one-half day every two weeks. He had privileges at Antelope Valley ;md Northridge Hospitals. Respondent's practice consisted of general dermatology, as well as skin cancer treatment and cosmetic dermatology. Respondent saw about 30 - 40 patients per day. Respondent testified that he goes out of his way to communicate with his patients, and often
10
gives patients his business card containing his personal cell phone number, and answers patients' calls at night and on weekends.
41. A colleague, Dr. Fariborz Satey, is a pediatrician and the medical director of Heritage Health Care group in the Antelope Valley. Dr. Satey has referred patients to Respondent for six or seven years, and gets feedback from those patients that they received excellent care :from Respondent. Dr. Satey receives no compensation for these referrals. When he mentioned to Respondent that it would be helpful to have a dermatologist in the Lancaster area
· for the convenience of patients, Respondent opened his office in Lancaster.
42. Other incidents established by the evidence are not alleged in the Second Amended Accusation but, nevertheless, provide useful information in the nature of circumstances that are aggravating, mitigating, bear on Respondent's credibility and rehabilitation, or otherwise augment the record.
43. On February 18, 1993, Respondent signed an Application for Naturalization from the Immigration and Naturalization Service (INS). In reliance on the prior advice he had received :from attorneys Garey and MacGregor, confirmed by another consultation with MacGregor, Respondent answered "no" to a question that asked whether he had ever been arrested, charged, indicted or convicted for breaking or violating any law. The application was received on March 16, 1995, and Respondent was interviewed by an INS "adjudicator" on March 24, 1995. During the interview, Respondent answered "no" to questions .of whether he had any arrests, expungements or convictions. Respondent was granted citizenship in 1995.
44. On March 4, 2005, an Indictment was filed against Respondent in the United States District Court for the Central District of California alleging that Respondent unlawfully procured citizenship by falsely representing on his application that he had never had an arrest, conviction or expungement. Respondent hired attorney Robert Shapiro to represent him. After Respondent and Shapiro's associate met with the Assistant U.S. Attorney and provided documents and other information concerning the convictions and the legal advice that Respondent had received, the government moved to dismiss all charges. The motion was granted by Order dated April 29, 2005.
45. (A) Respondent-submitted several-applications-for licensure to the Department of Motor Vehicles {DMV), some of which contain possible inconsistencies. Respondent testified that he received his driver's license while he was in high school, which would have been in 1986 or before.
. (B) In evidence are documents indicating that Respondent was issued a driver's license, number C5120518, on August 3, 1993, under the name Com biz Omidi. It was not established whether this was inconsistent with his statement of earlier licensure, or a license renewal.
(C) On January 23, 1997, Respondent signed, under penalty of perjury, an application for a driver's license. The application indicates it is for an original license, not a
11
' ' .
renewal or name change. The application is in the name of Julian C. Omidi. It indicates that the applicant has a license in Missouri, although Respondent testified that this part of the application is not in his handwriting .. Respondent answered "no" to a question asking whether he applied under a different name within the last seven years. This application was assigned DMV number 87990414. Respondent testified that he called the DMV and cancelled this application. There was no evid.ence that any driver's license was issued based on this application.
(D) Respondent's current driver's license, number C5120518, was issued on May 14, 2004, in the name of Combiz,Omidi, and will expire in 2008.
46. (A) In May 1997, Respondent submitted his application for licensure as a physician in Missouri. (Exhibit 42.) He certified that all statements therein were true. He answered "no" to the question if he had ever been arrested, charged, found guilty or entered a plea of nolo contendere in a criminal prosecution, whether or not sentence was imposed, including suspended imposition of sentence or suspended execution of sentence.
(B) In answer to an instruction to list all universities and colleges attended, Respondent did not include UC-Irvine. Respondent testified that he had discussed this application with Croissant in 1997, and answered these two questions based upon legal advice he received.
(C) The application asked for Respondent to list his activities since graduation from high school, and to account for all dates to the present. For the period 7 /86 through 5/90, Respondent wrote that he was vice president of his father's building and engineering corporation, with duties as building and engineering manager and construction site supervisor. He added that the company closed as of his father's death in August 1986. Respondent wrote that, for the period 10/86 through 8/87, he was a part~time night medical transcriptionist [sic], and from 2/88 to "the present," that is, May 1997, he was a part-time free lance computer database programmer and networking consultant.
(D) Respondent did not include UC-Irvine in this list of activities since high school graduation .
. -(E) -Respondent's testimony-about his lackof other aetivities during his attendance at UC-Irvine (Finding 5) is in direct contrast, and incompatible, with his list of activities in lhis appliCatiori.
47. In February 2002, Respondent submitted an application for renewal of his medical license i11 Mis&quri. Be certified that all statements therein were true. He answered "no" to the question if he had ever been arrested, charged, found guilty or entered a plea of no lo contendere in a criminal prosecution, whether or not sentence was imposed, including suspended imposition of sentence or suspended execution of sentence. Respondent testified that, as there had been no change in circumstance since the events and advice he received in 1997, he was relying on legal _ advice in making this answer.
12
48. The Superior Court concluded that the Board improperly .considered the evidence concerning Respondent's application for medical licensure in Missouri as a factor for purposes of determining penalty. The Board has left intact Findings 46 and 47 concerning the Missouri
. application only for purposes of historical context- that is, to accurately reflect what occurred during the hearing. However, the Board has complied with the court's order and has disregarded those findings in reaching its decision after remand and in determining the appropriate penalty in this matter.
49. (A) In about September 2006, Respondent consulted with attorney C. David Haigh. Haigh was very familiar with Garey, as they had both been deputy public defenders together and had practiced together in the past. On Respondent's behalf, Haigh filed a motion for the criminal case to be dismissed under Penal Code section 1385, and for the dismissal to be · made nunc pro tune as of June 26, 1992. The motion was supported by a declaration of Respondent (Exhibit C, pages 6- 8), in which he explained some of the events and the legal advice he had received. · ·
(B) The motion was granted on November 30, 2006, by Orange County Superior Court Judge Ronald Owen, the same judge who presided over the proceedings against Respondent on December 3, 1991, and June 26, 1992. An Order was filed that same date whereby Respondent withdrew his plea of guilty/nolo contendere, the matter was dismissed pursuant to penal Code section 1385, and the order was to be effective nunc pro tune as of June 26, 1992.
. 50. Complainant contended that the dismissal order under Penal Code section 1385 entered in November 2006 is void, for several technical, procedural and substantive reasons. This Administrative Court does not have the authority or jurisdiction to reach such a conclusion. (DeRasmo v. Smith (1971) 15 Cal.App.3d 601.) The Superior Court ruled in this case that, since the convictions were dismissed under Penal Code§ 1385, nunc pro tune, effective June 26, 1992, "this order is effective and it means that it can no longer be said that petitioner was convicted of the crimes referred to above." The Superior Court also concluded that the Board improperly considered the convictions as a factor for purposes of determining penalty. The Board has left intact all of-the Administrative Law-Judge's factual findings-regarding the criminal conviction (except former Finding49, which is contradicted by the Superior Court's ruling) solely for purposes of historical context-that is, to accurately reflect what occurred during the hearing. However, the Board has complied with the court's order and has disregarded those findings in reaching its decision after remand and in determining the appropriate penalty in this matter.
LEGAL CONCLUSIONS AND DISCUSSION
1. The standard of proof which must be met to establish the charging allegations herein is "clear and convincing" evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853.) This means the burden rests with Complainant to offer proof that is clear, explicit and unequivocal; "so clear as to leave no substantial doubt and sufficiently strong to
13
command the unhesitating assent of every reasonable mind." (In re Marriage of Weaver (1990) 224 Cal.App.3d 478.)
2. "On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted - but on a face to face evaluation, so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability." (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140.)
The trier of fact may "accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted." (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51, 67.) The trier of fact may also "reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected material." (Id., at 67-68, quoting from Neverov v. Caldwell (1958) 161 Cal.App.2d 762, 767.) Further, the fact finder may reject the testimony of a witness, even an expert, although not contradicted. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.)
The testimony of "one credible witness niay constitute substantial evidence" including a single expert witness. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.) .
"[T]he weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion." (Citation); its value '"rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion .... '"(Citation.) Such an opinion is no better than the reasons given for it (Citation), and if it is "not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence. (Citations.)" (White v. State of California (1971) 21 Cal.App.3d 738, 759-760.)
"[T]he rejection of testimony does not create evidence contrary to that which is deemed untrustworthy. 'Disbelief does not create affirmative evidence to the contrary of that -which is-discarded. 'The fact that the jury may disbelieve the-testimony of a witness-who testifies to the negative of an issue, does not of itself furnish any evidence in support of the affirmative of that issue and does not warrant a finding in the affirmative thereof unless there is other evidence in the case to support such affirmative'.'" (Hutchinson v. Contractors' State License Bd. (1956) 143 Cal.App.2d 628, 632, citing Marovich v. Central California Traction Co. (1923) 191 Cal. 295, 304.)
3. Cause exists to suspend or revoke Respondent's license pursuant to Business and Professions Code5 section 2235, authorizing disciplinary action where a license is obtained by
· 5 All further statutory references are to the Business and Professions Code, except where
indicated. 14
' '·
fraud or misrepresentation, for Respondent's misrepresentation in his license application regarding educational institutions he attended. See Factual Findings 2, 6, 9, 10, 11, 19, 33 through 36, and 42 through 45.
4. (A) Respondent's intent is irrelevant to the determination that Respondent obtained his license by misrepresentations in his application. The danger is in falsely certifying facts which are not true, as opposed to any intent to do evil. This is "regardless of the intent of the doctor signing the certificate." (Brown v. State Department of Health (1978) 86 Cal.App.3d 548, 556.)
(B) The duty to make a full disclosure in an application for a professional license is an absolute duty. Justification for a failure to perform that duty is not found in the excuse that the applicant was advised by some person, no matter how high in official position that person might stand, that disclosure is not necessary. Whether a failure to disclose is caused by intentional concealment, reckless disregard for the truth or an unreasonable refusal to perceive the need for disclosure, such an omission is itself strong evidence that the applicant lacks integrity and/or intellectual discernment required of a professional. (See, In re Gehring (1943) 22 Cal.2d 708.)
(C) Respondent's reliance upon legal advice concerning disclosure of his attendance at UC-Irvine was not reasonable. The language of the application was clear and unequivocal. He was required to list all colleges attended and to attach transcripts. Respondent's belief that he did not have valid, credits from UC-Irvine is an unsupported conclusion and without reason, and it does not appear in the evidence that Respondent or Croissant did anything to verify this unreasonable conclusion. Respondent's claim that he did not intend to deceive the Board by not disclosing his attendance at UC-Irvine is not credible and is rejected. It is determined that Respondent intended such deceit and, therefore, perpetrated a fraud on the Board.
(D Complainant established that Respondent's misrepresentations and fraud were material, in that his license application may have been treated differently had he made full disclosure. (See, DeRasmo v. Smith, supra, 15 Cal.App.3d 601.)
5. Cause exists-to suspend or revoke Respondent's license pursuant-to section 2234, subdivision (e), for dishonesty for Respondent's misrepresentations regarding educational institutions that he attended. See Factual Findings 2; 6; 9, 10, 11, 19, 33 through 36, and 42 through 45.
6. (A) Neither party submitted any statutes, case law or argument to assist the court in determining to what extent, if any, Respondent's intent bears upon determining whether he committed "dishonesty" in failing to disclose his attendance at UC-Irvine. Dishonesty is a basis on which public employees may be discharged under Government Code section 19572, subdivision (f), and cases interpreting; and applying that section are a useful reference.
15
(B) As set forth in Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718-19: '"Dishonesty' connotes a disposition to deceive. (Citation.) It 'denotes an absence of integrity; a disposition to cheat, deceive or defraud; ... ' (Hogg v. Real Estate Comr., 54 Cal.App.2d 712, 717 [129 P.2d 709].)" Although the element of intent is discussed in the case of Cvrcek v. State Personnel Bd. (1967) 24 7 Cal.App.2d 827, it is in the nature of confirming that the trial court has discretion in making the determination of whether dishonesty has occurred, and the trial court is empowered to evaluate the evidence of lack of intent.
(C) The definitions of "dishonest" and "dishonesty" (Webster's Seventh New Collegiate Diet. (1969) p. 239), include references to willfulness, intent and fraud such that it may be reasonably concluded that there can be no dishonesty where there is no intent to deceive. As noted above, it is determined that Respondent intended to deceive the Board by failing to disclose his attendance at UC-Irvine. Such deceit constitutes dishonesty.
7. Cause exists to suspend or revoke Respondent's license pursuant to section 2234, for unprofessional conduct, and section 2261, which defines unprofessional conduct as including "knowingly" signing a document which falsely represents the existence or nonexistence of a state of facts, in this case, the misrepresentations regarding the educational institutions that he attended. See Factual Findings 2, 6, 9, 10, 11, 19, 33 through 36, and 42 through 45.
8. As noted above, Respondent's failure to disclose his attendance at UC-Irvine was intentional and fraudulent. Intent is not required for discipline to be imposed under this code section. As stated in Brown v. State Department of Health, supra, 86 Cal.App.3d at 555-556:
"[W]e hold that 'knowingly' to make or sign a certificate which 'falsely represents' a state of facts, a person need only have knowledge of the falsity of the facts certified when making or signing the certificate. Our interpretation is not only in accord with statutory and decisional definitions, but will best protect the public. Factual certifications by medical doctors are used extensively throughout society for many and varied purposes. A false medical certification, regardless of the doctor's intent, may be put to great mischief. The evil therefore is not in the intent to do harm, but in falsely certifying facts which are not true ....
''Nor do we find appellant's argument to be persuasive that the use of the words 'falsely represents' requires a finding of intent to deceive. -In the absence of express- language, intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the conseqµences which would follow the doing or failure to do the particular act at the required time. (Citation.) The revocation or suspension of a license is not penal, 'the Legislature has provided for suspension to protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result from ignorance or incompetency or a lack of honesty or integrity. (Citations.) The potential of harm from the existence of a false medical certificate, regardless of the intent of the doctor signing the certificate, requires that doctors refrain from signing false certificates."
16
9. Cause exists to suspend or revoke Respondent's license pursuant to sections 480, subdivision (a) and 2234, subdivision(±), for actions or conduct that would have warranted denial of his application for licensure for Respondent's misrepresentations regarding educational institutions he attended. See Factual Findings 2, 6, 9, 10, 11, 19, 33 through 36, and 42 through 45.
10. Cause does not exist to suspend or revoke Respondent's license pursuant to section 2236, for conviction of a crime substantially related to the qualifications, functions or duties of a licensee, pursuant to the determination of thy Superior Court. See Factual Finding No. 50 ..
11. The Board publishes guidelines for the use of Administrative Law Judges in determining the appropriate range of outcomes for statutory violations, referred to in California Code of Regulations, title 16, section 1361, and entitled "Manual of Disciplinary Orders and Disciplinary Guidelines" (9th Edition, 2003). These Guidelines acknowledge that they are not binding standards and that mitigating or other appropriate circumstances may establish a basis to vary from them.
For the violations of sections 2234 and 2261 found herein, the Guidelines recommend a maximum penalty oflicense revocation, and minimum penalties of stayed revocation and five or seven years probation on various terms including suspension, coursework, evaluation, monitoring and therapy.
12. On the one hand, Respondent presented convincing evidence that some of the acts that constitute violations oflaw resulted from his reasonable reliance on legal advice. That the advice was incorrect was not knoWn to Respondent.
13. On the other hand, Respondent intentionally deceived the Board in failing to disclose his attendance at UC-Irvine, most likely in an attempt to prevent the Board from learning that he had been discharged for cause and the reasons therefore. The entirety of the record reveals that Respondent has a penchant for dishonesty, to bend his position and shade his statements to suit
·his needs, without consistent regard for the truth. The Superior _Court found that Respondent's "failure to disclose his attendance at UCI was knowing and intentional" and that Respondent "knew the answer he gave was false." As a physician, Respondent is continually placed in positions where honesty is critical, including for example physician-patient interactions, billing, third-party payors, etc. Honesty is a core requirement for physicians. Respondent has shown neither recognition of the importance honesty plays in the qualifications to be a physician, nor any remorse for his misrepresentation and lack of honesty to the Board. Respondent is not entitled to any benefit of the doubt- there is no doubt. His misrepresentation and dishonesty, occurring as they did in the process of obtaining his license, go to the core 6fhis ability to practice his profession.
17
Under all of the circumstances herein, the health, safety and welfare of the people of the State of California can be protected only by a disciplinary order that revokes Respondent's license.
ORDER
WHEREFORE, THE FOLLOWING ORDER is hereby made:
Having reconsidered its decision in light of the court's final ruling, the Board revokes Physician's and Surgeon's Certificate number A71181 issued to Respondent C. Julian Omidi, M.D., pursuant to Legal Conclusions 1 through 9, and 14, separately and for all of them, effective back to October 26, 2007, the effective date of its prior decision which was not stayed by the Court.
IT IS SO ORDERED this 18th day of September, 2008.
Chairperson, ane B Medical Boar alifornia
18
AUG-22-08 FRI 11:18 Ali GREENBERG TRAURl·G·LLP. '•. rAX NU. 81o448lfU~
1
3
4
s 6
7
-8
9
10
11
12
l3
14
ORIG·INAL ,· :·.
C.~·tKENHEl{G rl'R.AURIG, LLP (IENH UVJNGSTON (SBN 44280) Rl\Y A. SARDO (SBN 245421) l'J.01 K Strt:et, Suit~ I 100 ~:~1cramcntu, Califomia 95814·3938 Tdt:phone: (916) 4-12-1111 Jtn,")simile: (9 I 6) 448_-l 709 . · . Enrnl!: livin.gstong@gtlaw;com; [email protected]
AHomey:; foe Pi;;·i.itioner C. JULIAN 0Ji,,1ll.JT, M.D.
AIJG-22-08 FRI 11: 16 Al1 GHJ:l:Nl:!l:h'.G lh'.AUHIG .lll' r. Ut:
l rffiEo AUG. 2 0 2008
CHKRNmm.G TRAUIDG, LLP OTINg LJVINGSTON (SBN 44230) RAY A. SAl{DO (SBN 245421) run K Street, Suite: 1100 S~crnmento, Califomfo 95&14-3938 Telephone: (916) 442- l I 11 F•tcsimile: (916) 448-1709
Edward .K l<im is present for .Medical Board of California /~rma11d Arabian and Ray A. Sardo are present for_C. Julian Omldi. I-iATURE OF PROCEEDINGS: PETITION FOR WRIT OF MANDATE
TENrAflVE R.UUN13
, .. ·'
Petitir::nar G. Julian Omldi is challenging the decision of Respondent Medical Board of California adopted on Se:otemher 2'5, 2007, which resulted in the revocation of petltioriel's license as a physician and ::alfgf!dn. The indept:mdenl judgm~nt test apP.lies to this courfs review of the administrative decision. Pet1llonar challonges the declslon on several grounds. The Issues In this case tum on the fact that petiticmc.r was. af one tirne, convicted of some misdemeanor crimes and he was expelled from U.C. lrvinti based on his c:o1'idllct underlylng those crimes. When petitioner SP.Plied for his medical license in Ci:dlfomiA, petitioner clid not disclose the· fact of hls prlor-convlctlons and lie did not disclose the fact that hu had ~ti~nd~xl U.C. Irvine. Petitioner, in essence. claims that he wa·s Justified in not disclosing those fae~. Haspond~nt Qontonds that petitioners failure ta disclose these tacts is groun~s lo now rev~ka f:Jel1ht}ner'~; rned1cal l1cemm~ · · - _ - ·- · - · · -.
1. Business and Profession Code section 2236 authorizes respondent to discipline a medical license ba~;ed on a licensee's conviction for an o~ense related to the duties of a physician or surgeon.
Petilloner Omldi was In fact convicted of misdemeanor crimes in December, 1991, In Orange County Superi\1f Court. Defendant pied guilty to the crimes of conspiracy to cheat or defraud, burglary ana ft~t~~~r1,~ 1of _ *!_19113.n P.
cori1p 1:1 e c:ommun1 y service. ursuani o .•• e mmu e or er 1rom 1e proceeumgs m ecem er. • a cbte wa~:. set for further sentencing in June. 1992. That mlnute order states in effect that, on succes~ful complaUon of the tarms of hls praoatlon, petitioner ciluld return to court and charme his pleas from guiflY. to no ·cont'::ist. A no coutest plef:\l ·howov.:::r, would have the same effect as a guilty plea for pUrP.oses of his mlsdcmflanoi co(wictlc1n!';. It s more likely ihat it was contemplated that, on successful completio@ of
AUG-22-08 FR I 11 : 17 Al1 GREENBERG 'i'HAUH l'G· UP
'.· . Cast=i Title: C JULIAN OMiDI. M.D. VS MEDICAL Case No: 07CS01401
BuARD Of CALIFORNIA
r. U!J
ttw 1.e1·n:1s of his probation, petitioner coulcl return to court and petition for relief under Penal Code sectl<m 1203.4. If P .c. sec_ .tion ~20~.4 relief was granteg. i_hat wou_ld allow peti __ tioner _to withdraw his gujlty pleas, entor 1;ila"'1.~ of not .g1ulty msl~ad, tho convictions would be set aside cind the charges d1sm1ssed. eetition~ir did In fact make several att~mpts to obtain relief under P.C. SE'.!ction 1?93.4 over the years. I IK>se ;:ntempts were <•II botched. Relief Ulflder P.C. 1203.4 would not reheve petitioner of the need to discro~;I?: his convictions in any eyent. . ·
lhe crlmef-; lhat potitionc::r was convicted of in 1991 are substantially related to the qualifications of ·a phydcl::"Jn or surgeon. ·
In Novemher, 2006, after petitioner submitted his application for licensure in California but before the admhli5IrBl.ive hearing in this matter, petitioner was successful In obtaining an order from the Orange County Suo~rior Cou1't allowing him to withdraw his guilty pleas fro·m -1991 and dismissing the charges
. i"i!Jclinst him under P.C. $€lcl1on 1385, nunc P.ro tune effective June 26, 1992. Notwithstanding re;1por1i}.::11t1s atlompts lo Challenge the validity of the order of dismissal under P.C. section 1385, tnis c1rder ls offective ancl it means that It can noilonger be said that petitioner was convicted of the crim~s rnf<:::rred to above. Accordingly, the r.ourt finds that discipline based on B & P Code section 2236 is 11'..bt
· suppc.irted the weight of the evidence. · · ~-~
2. B S: P Code sectior1 2235 authorizes discipline of a license for fraud or misrepresentation. Respondent found causo fol' discipiine·under this authority based on petitioner's statements In his license applicatidh. No r.iulhority t1as been provided for the . proposition that misrepresentation must be intentional as oppo?:m·d fo negligent. However, lhe finds that petitioner\; failure to disclose his attendance at UCI was lmowini:1 and lnlenUomtl. The ALJ found that it was reasonable for petitioner to rely on advice of counsel reuon.1ing wh13ther or not petitioner needed to disclose the criminal convictions from 1991. The ALJ · fl!rther found that It was not reasonable for petitioner to rely on advice of counsel regarding his ~1HeridancrJ at UGI. There is nothing confusing about thls question. Petitioner knew the answer he gave was false. H~ intenlioriall)' gave that false answer because he did not want res~ondent to know about tho circumstances regarding his expulsion from UCI. The obvious reason for petitioner's not wanting':to diBclose that Information was his reasonable fear that it might effect the a~proval of his licen6e f:tf1pli~~jon. Tlio 111l~~aprt~i;entation was material. The testimony of Cindy Ostero _Is sufflclent ~o s11p~llrt tfoJ fmamg U1al ~i drfterent fe$Ult would have occurred. The court finds that discipline based on B &JP Codf' sedion 2235 I~ supported by the weight of the eVfden~ and the conclusions on this Issue are ~upp(.lrtod by the findings. · · ·
:3. Another ground for discipline in this matter was B & P Code section 2234(e) for an act involvfhg· di:;honesty substanti;:dl1- relating to the qualifications of a physlclan and surgeon, io the extent that tf.ils Is b<.lsed on petitioners· failure to disclose his attend3nce at UCI, -the court finds that this- findlngJs sup~·c1tr~d by the weight of the evidance for the· same reasons as stated above. And the concluslons:on this lssu.-~ a.re suprorted by the findings. . ·
4. Discipline was also imposed pursuant to B & 'p Code section 2234 for unP.~ofessional conduct 'for exi.~cuting a false document as defined in B & P Code section 2261. 1~o the eXtent that this ground Jor di;'SGiplial: ls b~sc:d on p_elitionar's failure to disclose the criminal convictions from 1991, the court finds that petilioner's r.onduct in ihat regard was not a knowing execution of a false document. Petitioner n;asonabl~' relied on thti advk."0 of counsel ln this regard as found by: the ALJ. Petitioner's conduc[of f ai!il"\iJ 10 oi8close his_ ::=1ttetldanc_e at UCI dQes support discipline under these secttons. The welgl]t of !he evtd&nce does support the find mg-that petitioners condacein this regard was a knowing execution of ·a fo!so doc.ument. Ariel tlie conclusions to that extent are supported by ~fle findings. ··.
. . -- -·. -·. . ... ·-·· .
5. B it. P Code section 2234(i} authorizes discipline for conduct which would have warranted ·Ule denial of \he lh"x:nse application originally,' 0$taro's testimony is somewhat equivocal on this ~Int. HoweV.er, Um cnurt finds that Ost~ra·s testfmony taken as wl1ole is sufficient to support the finaings regarcling discipline on this ground and the conclusions on this issue are supported by tile findings. ;:
·6: · 1;,Gliti•)nei" also contends lhat eviaence concerning- his af>"plication-for a- -mi:faical ucens~nri- Mis-saori wa£ ln'lpro;.icrty considet'ed f1~ a foctor for purposes of respondent's determination of penalty. Further, r;r:stiti<Jner contends that his convicfions ·from ·t 991 that were later dismissed were also improperly cont~idered as a fa<:tor for purJJoses of respondent's determiMtion of penalty. The court conctirs. P(;Uiion;.:r w<is not given fair notice that the evldence concerning his application for·licensure in Misspurl
oat~--:: 0112·512oos····------·-· (i.;;pt: 11
AIJG-22-2008 12:20
-------~
MINUTE ORDER
9164481709 95/.
Pa~e:2 Calendar;No.:
P,-06
AUG-22-08 I-HI I l: 18 AM GH.1:.1:.Nl:ll:.l<lI Tl<AUP.JG•'Llr ... ' rflX NU. 8Jp44131 fU8 i .
(. .. .•· .. Ca!:.~ Titl::·: C JULIAN OMIDI. M.D. VS MEDICAL Case No: 07CS01401 BOARD OF CALIFORNIA
t'.; u (
. i"
as frri ~1s it conce.mad his activities from 1.986-1990 would be used In any way in this proceeding. ~s m1tl:\d, pehtioher no longer tias any sort of record of criminal conviction. Ii
7. Pfatition for Writ of Administrative Mandate ls gra!tled for t~e reasgns stated. above. The matter !js orderE:1 mmanded ki respondent for further proceedings cons1sten~ with thl~ ruhf'!g. The .C?urt can npt clrAenrnne that the same result as to penalty would be reached fn ltght of this rulmg. Pet1troner's other conknfo')ns are without merit. Counsel for ~titioner shall prepare a form of judgment for the court's siq11<1ture and a separate from of writ for issuance by tfie clerk consistent wifh this ruling and ·in c6rr1111iance with Cal. Rul~s 9.f Po!Jrl, rule 3._1312. Each side shall bear his/its own costs. Respondent t;hal filo a return to the wnt wrrhin ·60 days <1f its Issuance. . ·
cornn·s RULJNG
Th~ Courl J'u:iard oral arguments from counsel. The matter being submitted, the Court affirmed ,its tontatlw~ rnl111g. . ·· . · ~-
Dat~: 07f?.l)/2008 f)(~pl.: ·11
AUG-22-2008 12:21
MINUTE ORDER
9164481709 95%
~
=..: . . ·,
;~
Page;3 Calendar No.:
P.07
BEFORE THE DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA
In the Matter of the Accusation Against:
C. JULIAN OMIDI, M.D. Physician and Surgeon's Certificate No. A 71181
Petitioner
) ) ) ) ) ) ) ) ) )
No. 17-2004-162146
ORDER DENYING PETITION FOR RECONSIDERATION
The Petition filed by Henry R. Fenton, attorney for C. Julian Omidi, M.D., for reconsideration of the decision in the above-entitled matter having been read and considered by the Medical Board of California, is hereby denied.
This Decision remains effective at 5:00 p.m. on October 26, 2007.
IT IS SO ORDERED: October 16, 2007 .
Barbara Y aroslavsky, Chair Panel B Medical Board of Califo
Reconsid-Denied.v.pd
BEFORE THE DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA
In the Matter of the Accusation Against:
C. JULIAN OMIDI, M.D.
Physician's and Surgeon's Certificate No. A 71181
Respondent
) ) ) ) ) ) ) ) ) )
File No. 17-2004-162146
~~~~~~~~~~~~~~~)
DECISION
The attached Proposed Decision is hereby adopted as the Decision and Order of the Division of Medical Quality of the Medical Board of California, Department of Consumer Affairs, State of California.
This Decision shall become effective at 5:00 p.m. on October 26, 2007.
IT IS SO ORDERED September 26. 2007 .
MEDICAL BOARD OF CALIFORNIA
Barbara Yaroslav Chair Panel B Division of Medical Quality
BEFORE THE DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS
ST ATE OF CALIFORNIA
In the Matter of the Accusation Against:
C. JULIAN OMIDI, M.D. aka Kam biz Beniamia Omidi
Physician & Surgeon Certificate No. A71181
Respondent.
CaseNo. 17-2004-162146
OAH No. L2006070409
PROPOSED DECISION
This matter came on for noticed hearing before David B. Rosenman, Administrative Law Judge, Office of Administrative Hearings, on July 9, 10, 11, 12 and 24, 2007, at Los Angeles, California. Edward K. Kim, Deputy Attorney General, and Paul C. Ament, Supervising Deputy Attorney General, represented Complainant David T. Thornton. Respondent C. Julian Omidi, M.D. was present and was represented by Henry R. Fenton and Robert L. Shapiro, Attorneys at Law.
Evidence was received, the matter was argued, and the matter was submitted for decision on July 24, 2007.
Rulings Affecting the Accusation and the Issues
During the hearing, Complainant filed a Second Amended Accusation (Exhibits 51 and 55) that contained new charges. Respondent objected to, and made a motion to strike, some of the new allegations on the grounds that the new charges therein were barred by the statute of limitations found in Business and Professions Code section 2230.5. After argument by both parties, and for the reasons more specifically set forth in the record, the objection was sustained and the following portions of the Second Amended Accusation were stricken:
a. Paragraph 19 (page 7, lines 15 -22);
b. Paragraph 20 (page 7. line 23 to page 8, line 3);
c. Paragraph 22 (b) (page 8, lines 19 and 20);
d. Later references to prior paragraphs that are incorporated by reference (page 8, lines 21 and 22; page 9, lines 17 and 18; and page 9, lines 23 and 24).
FACTUAL FINDINGS
The Administrative Law Judge makes the following Factual Findings:
1. The Accusation, First Amended Accusation and Second Amended Accusation were filed by Complainant in his official capacity as the Executive Director of the Medical Board of California (Board).
2. On March 24, 2000, the Board issued Physician and Surgeon Certificate number A 71181 to Respondent. The Certificate was in full force and effect from that time to the hearing in this matter, and was to expire on July 31, 2007, unless renewed. If not renewed, the Board maintains jurisdiction over the matter pursuant to Business and Professions Code section 118, subdivision (b ).
3. At different times, Respondent has also been known as Combiz Omidi, Kambiz Omidi, Kambiz Beniamia Omidi, Combiz Julian Omidi and Julian C. Omidi. He changed his name to Julian because he believed it would be easier for his patients and his practice.
4. In summary, the Second Amended Accusation alleges that Respondent's license is subject to discipline under various sections of the Business and Professions Code for the following acts: (a) Respondent attended the University of California, Irvine (UC-Irvine) but failed to include UC-Irvine when answering a question on his license application that requested information on all undergraduate schools he attended; (b) Respondent cheated on exams while at UC-Irvine; (c) Respondent was convicted of three related crimes in 1991; and ( d) Respondent failed to disclose these convictions when answering questions on his license application that requested information on convictions.
5. Respondent was born in Iran in July 1968. When he was ten years old, he and his family moved to the United States, where he attended school from grade 5 and afterward. Respondent attended University High School in Irvine, and successfully completed several advanced placement courses. After graduating high school, Respondent entered UC-Irvine in 1986. He lived at home, about one mile from campus, with his mother, father and younger brother. Respondent was extremely devoted to pursuing his education, and did not have any job or participate in any extracurricular activities while attending UC-Irvine. He did not date or develop many social relationships, and had few friends. He described his usual day as arriving at school about 7:30 a.m. and staying until 10:30 p.m., coming home, taking a nap, and studying until 3:00 a.m. Respondent stated that he liked this schedule. Respondent's
2
goal, from an early age, was to attend medical school and become a physician. There are seven generations of doctors in Respondent's family.
6. Respondent began attending UC-Irvine in the fall quarter of 1986 and was dismissed from the university, with cause, effective May 5, 1990. He was a triple major, in economics, psychology and biological sciences. His transcript reveals an unusual number of quarters in which he registered for many more courses than average. The average number of units per quarter is 16, and students rarely take more than 20 units for any extended period of time. In total, Respondent earned credit for 311 units at UC-Irvine, with a grade point average of 3.4. His transcript (Exhibit 18) is summarized as follows:
Units taken/ Ouarter Com12leted Other information Fall 1986 13/13 Deans Honor List (DHL) Winter 1987 20/20 DHL Spring 1987 19/8 Withdrew from 11 units Fall 1987 27/27 DHL Winter 1988 38/38 DHL Spring 1988 43/43 DHL Fall 1988 56150 Failed 6 units Winter 1989 58126 Failed 9 units; incomplete for 23 units Spring 1989 23123 Fall 1989 35131 Incomplete for 4 units
7. The circumstances under which Respondent registered for and completed many of his classes were suspicious. Respondent was able to add or change courses without always getting all of the required approvals from teachers. Permission from a Dean was required to register for more than 20 units per quarter, and it was not clear that Respondent had obtained those approvals. The current registrar at UC-Irvine testified that, in her 27 years of experience, she had never seen numbers of units this high taken over this number of quarters. The registrar at UC-Irvine when Respondent attended was aware of Respondent because of the number of units for which he was registered beginning in the winter quarter of 1988 and thereafter. When she advised the senior academic counselors in Respondent's majors of this situation, she was instructed to prepare a report each quarter, which she dubbed "the Omidi report," of all students registered for 24. 7 units or more. Other than Respondent, the few students listed in the report were usually involved in the performing arts, where individual instruction and performance groups often resulted in a high number of credits. There was no evidence of what occurred after Respondent's name appeared on the reports for various quarters.
II
3
8. Although the registrars believed the circumstances of the high number of Respondent's units, and the manner in which he registered for these units, may have been suspicious, it was not established, by clear and convincing evidence, that Respondent cheated in any courses while at UC-Irvine.
9. On February 2, 1990, Respondent was involved with other students in a burglary of exam papers from an office at UC-Irvine. It was not established, as alleged, that Respondent obtained, by illegal means, master keys to faculty offices in order to steal examinations. However, in a search of a car used by Respondent, a key was found for an office in the Chemistry Department at UC-Irvine. Respondent did not establish that he was authorized to have that key.
10. One of the other students involved in the burglary, Arash Benham, had been a friend of Respondent. Respondent had tutored Benham in the past. Benham told Respondent he was under extreme pressure from his family to perform well in school. Respondent believed that Benham was depressed and likely to harm or kill himself if he did not perform well in school. Respondent helped Benham study by using an exam Benham brought, telling Respondent it was an advanced copy of a test to be given. Respondent did not admit to any other complicity or knowledge of any burglary or any other crime.
11. Respondent, Benham and at least one other student, Amir Bagherzadeh, were caught and arrested in connection with the burglary. A short time later, Benham committed suicide.
12. In February and March 1990, Respondent spoke several times with UCIrvine ombudsman Robert Wilson concerning the events leading to his arrest and the suicide of his friend. Complainant offered the testimony of Wilson given at the preliminary hearing of the criminal charges brought against Respondent and Bagherzadeh, which occurred in December 1990. 1 Wilson testified that, on March 20, 1990, Respondent admitted that he used stolen exams for three courses that he marked on a copy of his transcript, and that he was a lookout for the burglary of an exam on February 2, 1990. Wilson asked Respondent to prepare a written statement. The statement written by Respondent did not include these admissions. Neither the marked copy of the transcript nor Respondent's written statement was offered in evidence at the present hearing.
13. Respondent denied that he cheated or used stolen exams, or that he highlighted anything on his transcript for Wilson. He also denied he told Wilson that he was a lookout for the burglary of any exam.
1 Respondent's objection to the use of this transcript was overruled, for reasons specifically set forth in the record.
4
14. The preliminary hearing testimony of Wilson also includes Respondent's statement to Wilson that Respondent was not involved in the burglary. The lack of both the marked transcript and the written statement is troubling, and, combined with the contrary statements that Wilson attributes to Respondent and Respondent's denials at hearing, makes it difficult to give substantial weight to Wilson's testimony. Wilson testified that he brought in another administrator, Michael Butler, as a witness to Respondent's statements, but Butler did not testify. Under the entire circumstances, while the preponderance of the evidence might have substantiated the allegation, it was not established, by clear and convincing evidence, that Respondent cheated on any exams while he was at UC-Irvine.
15. On December 28, 1990, a felony Information was filed against Respondent (People v. Amir Bagherzadeh and Kambiz Beniamia Omidi, Orange County Superior Court, case number C-83006). Respondent was charged with violating: Penal Code section 182, subdivision (1 ), conspiracy to commit a crime, a felony, for conspiring to commit burglary in violation of Penal Code section 459; Penal Code sections 459/460.2/461.2, general burglary, a felony; and Penal Code section 496.1, to willfully and unlawfully buy, receive, conceal, sell and withhold property, and to aid in buying, receiving, concealing, selling and withholding property, to wit: a key, a felony.
16. (A) On December 3, 1991, pursuant to a plea negotiation, Respondent withdrew his not guilty pleas and pleaded guilty to the three counts of the Information. On the motion of the prosecutor, the three counts were reduced to misdemeanors under Penal Code section 17, subdivision (b). The Court's Minute Order stated that the hearing was for "motions/change of plea/sentencing," and included that a factual basis for the plea was found and the guilty pleas were accepted. It was ordered that Respondent perform 200 hours of community service with CalTrans, and that, at the end of six months, Respondent could withdraw his guilty plea and a plea of nolo contendere was to be entered. A hearing on the balance of Respondent's sentence was set for June 26, 1992.
(B) A written waiver of constitutional rights was prepared as part of Respondent's plea negotiation. (Exhibit 54.) On page one, Respondent indicated that he intended to plead guilty to the three counts against him. In item 2, the form states: "I understand I have violated this section by (factual basis)." Respondent's attorney filled in the following: "In O.C. [Orange County], between Sept. 1989 & Feb. 1990 I conspired & agreed to commit 2° [second degree] burglary & on 0212190 did commit that offense in violation of P.C. § 459/460.2 I also on 02110190, I possessed stolen property. knowing it to be stolen. Stipulated factual basis exists." Respondent initialed this section, indicating that he understood it and agreed with it. Respondent signed the waiver form on December 3, 1991.
(C) In item 11 of the waiver form, Respondent acknowledged that he understood and agreed that the proposed sentence was that imposition of sentence
5
would be suspended and he would be placed on three years informal probation, with a handwritten asterisk(*) inserted on the waiver form. Probation would include payment of $100 restitution and 200 hours of community service. There is a handwritten asterisk at the bottom of the page next to the following handwritten statement:2 "No judgment imposed for six months: if Li [defendant] completes community service, judgment ([UNINTELLIGIBLE] re probation) to be imposed+ P.C. 1203.4 relief granted on same date."
(D) Respondent had made it known to his attorneys at the time that he planned on becoming a licensed physician and that he wanted a disposition of the criminal case that would not prevent this from happening. Respondent mentioned this to his attorney Frank Ospina, who handled the preliminary hearing. Respondent then hired attorney Ronald MacGregor, who had more trial experience, when it appeared his case would go to trial. On the day the plea was negotiated, Michael Garey was Respondent's attorney of record. Respondent received advice from his attorneys that the case could be resolved in a way that the charges would be eventually dismissed.
17. In an informal conference on December 3, 1991, the Superior Court judge indicated that he would impose this indicated sentence. E. Thomas Dunn, the Deputy District Attorney who prosecuted the criminal case, wrote on the waiver form that his office was not in agreement with the proposed sentence. Dunn testified that, at that time in Orange County courts, it was not unusual for this type of plea to be arranged in misdemeanor cases in Municipal Court concerning petty offenses or drug diversion. However, for the type of charges against Respondent, Dunn characterized the arrangement as highly unusual.
18. On June 26, 1992, at the hearing on the balance of Respondent's sentence, he was again represented by Garey. The Court entered an order that: Respondent had pied guilty to the three counts as felonies; the offenses were reduced to misdemeanors under Penal Code section 17, subdivision (b ); imposition of sentence was suspended and Respondent was placed on probation for three years on terms including that he perform 200 hours of community service, with a note that the community service had been completed; and that the minute order constituted "the (amended) probation order." There was no indication that any relief under Penal Code section 1203.4 was considered or granted at that time, as was contemplated in the waiver form. (See Finding 16 (C)).
19. Following Respondent's arrest after the events in February 1990, he was discharged for cause from UC-Irvine, with the condition that he could apply for reentry only with the specific approval of the Chancellor. There was no evidence that
2 Although the handwriting and copy are not completely legible, testimony of a witness familiar with both the defense attorney who wrote it and his writing has assisted the Court in determining the content.
6
Respondent contested the discharge. Respondent considered himself as having been expelled from UC-Irvine.
20. Respondent did not use any of the 311 quarter credits he received at UCIrvine to qualify for medical school. Instead, he began over, attending numerous community colleges and other colleges, including Golden West College, Coastline College, and California State University, Los Angeles.
21. Respondent entered medical school at St. Louis University in Missouri in August 1992, and graduated with a distinction in research in May 1996. He performed his internship in internal medicine at Loma Linda University Medical Center from July 1996 to June 1997. He had returned to southern California because of problems that arose in his father's business and a desire to be closer to his family and assist during that time.
22. While doing his internship, Respondent considered obtaining a physician's license in California and reviewed the application. In 1997, he sought legal advice concerning the questions on the application relating to his time at UCIrvine and his convictions. He first sought advice from Garey, his criminal defense attorney. Garey informed him that the criminal charges had not been dismissed, and then prepared a petition for relief under Penal Code section 1203 .4 that was signed by Respondent on February 5, 1997.
23. (A) This Petition and Order are significant in several respects. In it, Respondent declares, under penalty of perjury, that he is the defendant "who was convicted of the misdemeanor offense of violation of' various Penal Code sections "on or about 7/23/92."3 The Petition reflects that Respondent fulfilled the terms of his probation and that he had been discharged from probation pursuant to Penal Code section 1203.3. These two representations are contradictory, and there is no other evidence that Respondent had been discharged from probation pursuant to Penal Code section 1203 .3. The Petition requests that he be permitted to withdraw his plea of guilty.
(8) The Petition then states: "The granting of this order does not relieve the defendant of the obligation to disclose this conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any state or local agency."
(C) The Order granting the petition was signed on April 8, 1997, and · filed on April 9, 1997. Pursuant to the Order, the plea of guilty was set aside and
vacated, a plea of not guilty was entered, and the complaint was dismissed.
3 There is no record in evidence of any court action taken on this date.
7
24. Respondent was unhappy that Garey had not obtained an order of dismissal in 1992, and he sought further legal advice. Respondent was referred to attorney Robert Croissant in 1997. Croissant advised Respondent that his conviction need not be reported on the license application, and that Respondent did not need to reveal his undergraduate attendance at UC-Irvine on the license application. (See Exhibits 20 and H.)
25. Croissant advised Respondent that the dismissal processed by Garey "was also still not complete." (See Respondent's declaration in Exhibit C.) Croissant prepared an Amended Petition under Penal Code section 1203.4, signed by Respondent under penalty of perjury on May 20, 1997. The Amended Petition was on the same form, and contained the same recitals, as that noted in Findings 22 and 23 above, with the change that, instead of requesting that Respondent be permitted to withdraw a plea of guilty, it requested to withdraw a plea of "no lo contendre [sic]." The Order granting the petition was signed on May 23, 1997, and it was filed on August 18, 1997. (Exhibit 25, p. 13.) Croissant sent a copy of this Order to Respondent, and returned other papers to him, by letter dated October 27, 1997. (Exhibit R.)
26. For reasons not explained in the record, Croissant prepared another Amended Petition under Penal Code section 1203.4, also signed by Respondent under penalty of perjury on May 20, 1997. The Petition was the same as noted in Finding 25, except that the request to withdraw the plea of "nolo contendre [sic]" was written slightly differently, and there is handwriting at the top stating "Duplicate Original." The Order granting the petition was signed and filed on July 10, 1997. (Exhibit 25, p. 14.)
27. In 1997, Penal Code section 1203.4 included the following provision: "The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, [or] for licensure by any state or local agency .... " This language has not changed to the present.
11
11
11
II
8
28. There was no direct evidence of the specific language contained in the Medical Board application for licensure that Respondent had obtained and had asked Croissant to review. However, from the totality of the evidence, it is inferred that the questions on undergraduate schools attended and convictions are similar, if not identical, to questions 11 and 22 in the application Respondent eventually submitted in 2000. (Exhibit 4.) Question 22 asks whether the applicant was ever convicted of or pled no lo contendere to any violation of law. It adds the following instruction: "YOU ARE REQUIRED TO LIST ANY CONVICTION THAT HAS BEEN SET ASIDE AND DISMISSED OR EXPUNGED, OR WHERE A STAY OF EXECUTION HAS BEEN ISSUED." (Emphasis in original.)4
29. Pursuant to Business and Professions Code sections 480 and 490, licensing boards can deny an application for a license or suspend or revoke an existing license based on a qualifying conviction "irrespective of a subsequent order under section 1203.4 of the Penal Code."
30. When the plea negotiation was entered into on December 3, 1991, the advice received by Respondent from Garey, to the effect that Respondent would not need to reveal the conviction on an application for a license to be a physician, was legally incorrect. The waiver form clearly indicated that Garey intended to return to court six months later to request relief for Respondent under Penal Code section 1203.4. Equally clearly, that code section and the standard form for the petition and order for such relief advise a defendant that he is not relieved of the obligation to disclose the conviction in response to any direct question contained in any application for licensure by a state agency. Advice given in December 1991 that Respondent would not need to reveal the conviction was incorrect for at least two reasons: first, the anticipated sentence did not allow for relief under Penal Code section 1203 .4 for another six months; and second, even with such relief, the conviction must be disclosed on an application for licensure to the Board, a state agency, a requirement under both the Penal Code and the Business and Professions Code. When Garey repeated the advice to Respondent when the first Petition for relief was filed in 1997, that advice was still legally incorrect.
31. The advice received by Respondent from Croissant later in 1997, when the two later petitions for relief were submitted and the orders issued, to the effect that Respondent would not need to reveal the conviction on an application for a license to be a physician, was legally incorrect for the same reasons as set forth in Findings 27, 28, 29 and 30. Further, Croissant had reviewed the application and should have been familiar with the specific instruction to reveal convictions even after they were set aside and dismissed, or expunged.
4 Although the words "expunge" and "expungement" are nowhere contained in Penal Code section 1203.4, the process for relief under that section is commonly, if incorrectly, referred to as an expungement of the conviction. (People v. Frawley (2000) 82 Cal.App.4th 784, 791-2.)
9
32. After completing his internship in 1997, Respondent was accepted into a highly competitive residency in dermatology at St. Louis University. This residency lasted from July 1997 to June 2000. Respondent received a license to practice medicine in the state of Missouri in July 1997. Respondent's performance in the residency program was "exceptional," according to the associate dean of the medical school, Dr. Neal Pennys, who was also the chairman of the Dermatology Department. Respondent had the highest scores on yearly academic exams, and received honors in his third year of residency, based largely on observations of his patient interactions and practices.
33. On January 11, 2000, the Board received Respondent's application for physician and surgeon's licensure. The application included Respondent's declaration, under oath, that the information contained therein was true and correct. Question 11 A of the application required Respondent to list "the names and addresses of all colleges or universities where pre-professional, postsecondary instruction was received." (Emphasis in original.) The question also required applicants to "submit official transcripts ... for each school attended." Respondent did not list, or submit a transcript from, UC-Irvine.
34. Respondent explained that, in his view, he had been expelled from UCIrvine and did not receive any valid credits for the classes he had completed. Respondent relied upon the advice he received from Croissant to the effect that his attendance at UC-Irvine did not need to be disclosed in the application. Respondent testified that he had no intent to deceive the Board by not disclosing that he had attended UC-Irvine.
35. Croissant recalled reviewing the application and a letter from UC-Irvine dated April 2, 1990, concerning Respondent's suspension from UC-Irvine. This letter is not in evidence, however it is mentioned in Croissant's letter dated December 28, 2006~ (Exhibit R.) Croissant relied upon Respondent's incorrect belief that he had not received valid, completed credits from UC-Irvine. Croissant did not review transcripts or seek any information from UC-Irvine before rendering his advice to Respondent. Croissant believed the question on the application required Respondent to list only schools where he had successfully completed credits.
36. Croissant's understanding of the nature of Respondent's credits earned at UC-Irvine, based almost exclusively on information provided by Respondent, was incorrect. Croissant's and Respondent's interpretation of the question on the application was also incorrect. The plain language of the question asks for a list of universities attended. As Respondent attended UC-Irvine, he should have listed it in his reply. Under all of the circumstances, Respondent's reliance on Croissant's advice on this subject was not reasonable.
10
37. The application also asked for information about convictions. See Finding 28 for the specific language of the question. Respondent answered "no" to that question.
38. Respondent explained that he had told Garey, his attorney, that he would agree only to an outcome in the criminal case that would result in no record, and had been told the plea negotiation would do so. Respondent also relied upon the advice he received from Croissant to the effect that his criminal case had been dismissed and did not need to be disclosed in the application. Respondent testified that he had no intent to deceive the Board by not disclosing his convictions in 1991.
39. The Board issued Respondent's license on March 24, 2000. According to Cindy Oseto, an Associate Analyst for the Board who has reviewed numerous applications and made recommendations as to whether they should be approved, denied, or investigated further, if an application contained information that an applicant had been convicted of a theft crime, further investigation would be pursued. The Board often considers disclosure of a conviction as an element of rehabilitation and may consider issuing a probationary license. However, according to Oseto, the failure to disclose a theft crime raises issues of honesty and integrity, and she would recommend either denial of that application or perhaps a conditional license. Further, she would recommend denial of an application where the applicant had not disclosed attendance at a college from which he had been dismissed for cause due to cheating or for helping another student cheat.
40. From July 2000 to January 2001, Respondent practiced with the Facey Medical Group in Mission Hills, California. Respondent opened a solo practice in February 2001 in Beverly Hills. Although there was little testimony from Respondent about the nature of his practice, this description is from an interview he had with a Board investigator on April 26, 2005. (Exhibit 22.) At that time, Respondent had six office locations: Bakersfield, Lancaster, Apple Valley, Beverly Hills, West Hills and Valencia. Bakersfield is a solo practice. In the other offices he shared space with other physicians. He employed another physician who worked at the West Hills and Lancaster locations, and two nurse practitioners and two physician assistants who rotated among some of his offices. Respondent worked at each office one day per week, except Beverly Hills, one-half day every two weeks. He had privileges at Antelope Valley and Northridge Hospitals. Respondent's practice consisted of general dermatology, as well as skin cancer treatment and cosmetic dermatology. Respondent saw about 30 - 40 patients per day. Respondent testified that he goes out of his way to communicate with his patients, and often gives patients his business card containing his personal cell phone number, and answers patients' calls at night and on weekends.
11
11
41. A colleague, Dr. Fariborz Satey, is a pediatrician and the medical director of Heritage Health Care group in the Antelope Valley. Dr. Satey has referred patients to Respondent for six or seven years, and gets feedback from those patients that they received excellent care from Respondent. Dr. Satey receives no compensation for these referrals. When he mentioned to Respondent that it would be helpful to have a dermatologist in the Lancaster area for the convenience of patients, Respondent opened his office in Lancaster.
42. Other incidents established by the evidence are not alleged in the Second Amended Accusation but, nevertheless, provide useful information in the nature of circumstances that are aggravating, mitigating, bear on Respondent's credibility and rehabilitation, or otherwise augment the record.
43. On February 18, 1993, Respondent signed an Application for Naturalization from the Immigration and Naturalization Service (INS). In reliance on the prior advice he had received from attorneys Garey and MacGregor, confirmed by another consultation with MacGregor, Respondent answered "no" to a question that asked whether he had ever been arrested, charged, indicted or convicted for breaking or violating any law. The application was received on March 16, 1995, and Respondent was interviewed by an INS "adjudicator" on March 24, 1995. During the interview, Respondent answered "no" to questions of whether he had any arrests, expungements or convictions. Respondent was granted citizenship in 1995.
44. On March 4, 2005, an Indictment was filed against Respondent in the United States District Court for the Central District of California alleging that Respondent unlawfully procured citizenship by falsely representing on his application that he had never had an arrest, conviction or expungement. Respondent hired attorney Robert Shapiro to represent him. After Respondent and Shapiro's associate met with the Assistant U.S. Attorney and provided documents and other information concerning the convictions and the legal advice that Respondent had received, the government moved to dismiss all charges. The motion was granted by Order dated April 29, 2005.
45. (A) Respondent submitted several applications for licensure to the Department of Motor Vehicles (DMV), some of which contain possible inconsistencies. Respondent testified that he received his driver's license while he was in high school, which would have been in 1986 or before.
(B) In evidence are documents indicating that Respondent was issued a driver's license, number C5120518, on August 3, 1993, under the name Combiz Omidi. It was not established whether this was inconsistent with his statement of earlier licensure, or a license renewal.
12
(C) On January 23, 1997, Respondent signed, under penalty of perjury, an application for a driver's license. The application indicates it is for an original license, not a renewal or name change. The application is in the name of Julian C. Omidi. It indicates that the applicant has a license in Missouri, although Respondent testified that this part of the application is not in his handwriting. Respondent answered "no" to a question asking whether he applied under a different name within the last seven years. This application was assigned DMV number B7990414. Respondent testified that he called the DMV and cancelled this application. There was no evidence that any driver's license was issued based on this application.
(D) Respondent's current driver's license, number C5120518, was issued on May 14, 2004, in the name of Combiz Omidi, and will expire in 2008.
46. (A) In May 1997, Respondent submitted his application for licensure as a physician in Missouri. (Exhibit 42.) He certified that all statements therein were true. He answered "no" to the question if he had ever been arrested, charged, found guilty or entered a plea of nolo contendere in a criminal prosecution, whether or not sentence was imposed, including suspended imposition of sentence or suspended execution of sentence.
(B) In answer to an instruction to list all universities and colleges attended, Respondent did not include UC-Irvine. Respondent testified that he had discussed this application with Croissant in 1997, and answered these two questions based upon legal advice he received.
(C) The application asked for Respondent to list his activities since graduation from high school, and to account for all dates to the present. For the period 7/86 through 5190, Respondent wrote that he was vice president of his father'.s building and engineering corporation, with duties as building and engineering manager and construction site supervisor. He added that the company closed as of his father's death in August 1986. Respondent wrote that, for the period 10/86 through 8/87, he was a part-time night medical transcriptionist [sic], and from 2/88 to "the present," that is, May 1997, he was a part-time free lance computer database programmer and networking consultant.
(D) Respondent did not include UC-Irvine in this list of activities since high school graduation.
(E) Respondent's testimony about his lack of other activities during his attendance at UC-Irvine (Finding 5) is in direct contrast, and incompatible, with his list of activities in this application.
47. In February 2002, Respondent submitted an application for renewal of his medical license in Missouri. He certified that all statements therein were true. He answered "no" to the question if he had ever been arrested, charged, found guilty or
13
entered a plea of no lo contendere in a criminal prosecution, whether or not sentence was imposed, including suspended imposition of sentence or suspended execution of sentence. Respondent testified that, as there had been no change in circumstance since the events and advice he received in 1997, he was relying on legal advice in making this answer.
48. (A) In about September 2006, Respondent consulted with attorney C. David Haigh. Haigh was very familiar with Garey, as they had both been deputy public defenders together and had practiced together in the past. On Respondent's behalf, Haigh filed a motion for the criminal case to be dismissed under Penal Code section 1385, and for the dismissal to be made nune pro tune as of June 26, 1992. The motion was supported by a declaration of Respondent (Exhibit C, pages 6 - 8), in which he explained some of the events and the legal advice he had received.
(B) The motion was granted on November 30, 2006, by Orange County Superior Court Judge Ronald Owen, the same judge who presided over the proceedings against Respondent on December 3, 1991, and June 26, 1992. An Order was filed that same date whereby Respondent withdrew his plea of guilty/nolo contendere, the matter was dismissed pursuant to penal Code section 1385, and the order was to be effective nune pro tune as of June 26, 1992.
49. (A) Respondent contends that the acts that occurred in his criminal case amounted to a deferred entry of judgment and that, as of the time he submitted his application, he had not suffered a conviction.
(B) The contention that Respondent had not suffered a conviction at the time of his Board application in 2000 is rejected. "Conviction does not mean the judgment based upon the verdict, but it is the verdict itself. It is the ascertainment of guilt by the trial court . . . . A person has been convicted even though the judgment should be suspended during appeal or while the convict is on probation .... A judgment though not final may be proved for any purpose for which it is effectual." (Citations omitted.) (People v. Clapp (1944) 67 Cal.App.2d 197, 200.) Further, for purposes of imposing discipline against a license issued by a state agency for conviction of a crime, a conviction occurs when there is a determination of guilt upon the defendant entering a plea of guilty to a felony. (Ready v. Grady (1966) 243 Cal.App.2d 113.) Respondent was convicted as of the court proceedings on December 3, 1991, and June 26, 1992. Although Respondent can now state that he was never convicted, that state of affairs only occurred as of the court's dismissal order of November 30, 2006.
(C) The contention that there was a deferred entry of judgment, and that some sort of diversion was ordered, is factually incorrect. On December 3, 1991, as set forth in the Minute Order of the court, Respondent's guilty plea was accepted by the Court and the Court found a factual basis for the plea. The Court imposed sentence, but also ordered that the balance of the sentence would be given in six
14
months. This Minute Order reflects the official action of the Court, and any inconsistency in the waiver form would not control over the Order of the Court.
(D) Further, the waiver form says nothing from which it can be inferred that a diversion was contemplated. Under diversion for drug offenders, as found in Penal Code section 1000 et seq., successful completion of the drug diversion program may result in an order to the effect that the charges are dismissed as if they had never been brought. What occurred here, rather, is that the waiver form specifically mentioned the possibility that, after six months, Respondent might have a judgment of probation imposed and be allowed to receive the benefits of a dismissal order under Penal Code section 1203.4. As noted above (Finding 27), that section never anticipated that a person could deny the existence of the conviction when seeking a license from a state agency, or in other circumstances not relevant here. A dismissal under Penal Code section 1203.4 is, therefore, conditional. (People v. Frawley, supra, 82 Cal.App.4th 784.)
(E) These contentions of Respondent are rejected as being contrary to the law and the facts, as set forth above.
50. Complainant contends that the dismissal order under Penal Code section 1385 entered in November 2006 is void, for several technical, procedural and substantive reasons. This Administrative Court does not have the authority or jurisdiction to reach such a conclusion. (DeRasmo v. Smith ( 1971) 15 Cal.App.3d 601.)
LEGAL CONCLUSIONS AND DISCUSSION
1. The standard of proof which must be met to establish the charging allegations herein is "clear and convincing" evidence. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853.) This means the burden rests with Complainant to offer proof that is clear, explicit and unequivocal; "so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind." (Jn re Marriage of Weaver (1990) 224 Cal.App.3d 478.)
2. "On the cold record a witness may be clear, concise, direct, unimpeached, uncontradicted - but on a face to face evaluation, so exude insincerity as to render his credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict himself, and on the basis of a written transcript be hardly worthy of belief. But one who sees, hears and observes him may be convinced of his honesty, his integrity, his reliability." (Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 140.)
The trier of fact may "accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted." (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51, 67.) The trier of fact may also "reject part of
15
the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected material." (Id., at 67-68, quoting from Neverov v. Caldwell (1958) 161 Cal.App.2d 762, 767.) Further, the fact finder may reject the testimony of a witness, even an expert, although not contradicted. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.)
The testimony of "one credible witness may constitute substantial evidence" including a single expert witness. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.)
"[T]he weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion." (Citation); its value '"rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion .... "'(Citation.) Such an opinion is no better than the reasons given for it (Citation), and if it is ."not based upon facts otherwise proved, or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence. (Citations.)" (White v. State of California (1971) 21 Cal.App.3d 738, 759-760.)
"[T]he rejection of testimony does not create evidence contrary to that which is deemed untrustworthy. 'Disbelief does not create affirmative evidence to the contrary of that which is discarded. 'The fact that the jury may disbelieve the testimony of a witness who testifies to the negative of an issue, does not of itself furnish any evidence in support of the affirmative of that issue and does not warrant a finding in the affirmative thereof unless there is other evidence in the case to support such affirmative'."' (Hutchinson v. Contractors' State License Bd. (1956) 143 Cal.App.2d 628, 632, citing Marovich v. Central California Traction Co. (1923) 191 Cal. 295, 304.)
3. Cause exists to suspend or revoke Respondent's license pursuant to Business and Professions Code5 section 2235, authorizing disciplinary action where a license is obtained by fraud or misrepresentation, for two instances wherein Respondent misrepresented information in his license application, one of which also amounts to an instance of fraud. See Factual Findings 2, 6, 9, 10, 11, 15 through 31, 33 through 39, and 42 through 48.
4. (A) There was insufficient evidence that Respondent intended to deceive the Board by failing to disclose his convictions. The nature of his criminal proceedings and convictions was complicated and beyond the experience of a layperson, and it was reasonable to seek legal advice. Respondent reasonably relied upon the legal advice he received, even though, as set forth in Factual Findings 30
5 All further statutory references are to the Business and Professions Code, except where indicated.
16
and 31, it is determined that such advice was incorrect. Due to this lack of intent, it cannot be concluded that Respondent perpetrated a fraud on the Board concerning failure to disclose the convictions.
(B) However, Respondent's intent is irrelevant to the determination that Respondent obtained his license by misrepresentations in his application. The danger is in falsely certifying facts which are not true, as opposed to any intent to do evil. This is "regardless of the intent of the doctor signing the certificate." (Brown v. State Department of Health (1978) 86 Cal.App.3d 548, 556.)
(C) The duty to make a full disclosure in an application for a professional license is an absolute duty. Justification for a failure to perform that duty is not found in the excuse that the applicant was advised by some person, no matter how high in official position that person might stand, that disclosure is not necessary. Whether a failure to disclose is caused by intentional concealment, reckless disregard for the truth or an unreasonable refusal to perceive the need for disclosure, such an omission is itself strong evidence that the applicant lacks integrity and/or intellectual discernment required of a professional. (See, In re Gehring (1943) 22 Cal.2d 708.)
(D) Respondent's reliance upon legal advice concerning disclosure of his attendance at UC-Irvine was not reasonable. The language of the application was clear and unequivocal. He was required to list all colleges attended and to attach transcripts. Respondent's belief that he did not have valid credits from UC-Irvine is an unsupported conclusion and without reason, and it does not appear in the evidence that Respondent or Croissant did anything to verify this unreasonable conclusion. Respondent's claim that he did not intend to deceive the Board by not disclosing his attendance at UC-Irvine is not credible and is rejected. It is determined that Respondent intended such deceit and, therefore, perpetrated a fraud on the Board.
(E) Complainant established that Respondent's misrepresentations and fraud were material, in that his license application may have been treated differently had he made full disclosure. (See, DeRasmo v. Smith, supra, 15 Cal.App.3d 601.)
5. Cause exists to suspend or revoke Respondent's license pursuant to section 2234, subdivision (e), for dishonesty. See Factual Findings 2, 6, 9, 10, 11, 15 through 31, 33 through 39, and 42 through 48.
6. (A) Neither party submitted any statutes, case law or argument to assist the court in determining to what extent, if any, Respondent's intent bears upon determining whether he committed "dishonesty" in failing to disclose his convictions or attendance at UC-Irvine. Dishonesty is a basis on which public employees may be discharged under Government Code section 19572, subdivision (t), and cases interpreting and applying that section are a useful reference.
17
(B) As set forth in Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 718-19: "'Dishonesty' connotes a disposition to deceive. (Citation.) It 'denotes an absence of integrity; a disposition to cheat, deceive or defraud; ... ' (Hogg v. Real Estate Comr., 54 Cal.App.2d 712, 717 [129 P.2d 709].)" Although the element of intent is discussed in the case of Cvrcek v. State Personnel Bd. ( 1967) 24 7 Cal.App.2d 827, it is in the nature of confirming that the trial court has discretion in making the determination of whether dishonesty has occurred, and the trial court is empowered to evaluate the evidence of lack of intent.
( C) The definitions of "dishonest" and "dishonesty" (Webster's Seventh New Collegiate Diet. (1969) p. 239), include references to willfulness, intent and fraud such that it may be reasonably concluded that there can be no dishonesty where there is no intent to deceive. As noted above, it is determined that Respondent intended to deceive the Board by failing to disclose his attendance at UC-Irvine. Such deceit constitutes dishonesty.
7. Cause exists to suspend or revoke Respondent's license pursuant to section 2234, for unprofessional conduct, and section 2261, which defines unprofessional conduct as including "knowingly" signing a document which falsely represents the existence or nonexistence of a state of facts. See Factual Findings 2, 6, 9, 10, 11, 15 through 31, 33 through 39, and 42 through 48.
8. As noted above, Respondent's failure to disclose his attendance at UCIrvine was intentional and fraudulent. His misrepresentation concerning his convictions, even though not made with intent to deceive, nevertheless is grounds for discipline under this code section. Intent is not required for discipline to be imposed under this code section. As stated in Brown v. State Department of Health, supra, 86 Cal.App.3d at 555-556:
"[W]e hold that 'knowingly' to make or sign a certificate which 'falsely represents' a state of facts, a person need only have knowledge of the falsity of the facts certified when making or signing the certificate. Our interpretation is not only in accord with statutory and decisional definitions, but will best protect the public. Factual certifications by medical doctors are used extensively throughout society for many and varied purposes. A false medical certification, regardless of the doctor's intent, may be put to great mischief. The evil therefore is not in the intent to do harm, but in falsely certifying facts which are not true ....
"Nor do we find appellant's argument to be persuasive that the use of the words 'falsely represents' requires a finding of intent to deceive. In the absence of express language, intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. (Citation.) The revocation or suspension of a license is not penal, the Legislature has
18
provided for suspension to protect the life, health and welfare of the people at large and to set up a plan whereby those who practice medicine will have the qualifications which will prevent, as far as possible, the evils which could result from ignorance or incompetency or a lack of honesty or integrity. (Citations.) The potential of harm from the existence of a false medical certificate, regardless of the intent of the doctor signing the certificate, requires that doctors refrain from signing false certificates."
9. Cause exists to suspend or revoke Respondent's license pursuant to sections 480, subdivision (a) and 2234, subdivision (f), for actions or conduct that would have warranted denial of his application for licensure. See Factual Findings 2, 6, 9, 10, 11, 15 through 31, 33 through 39, and 42 through 48.
10. Cause exists to suspend or revoke Respondent's license pursuant to section 2236, for conviction of a crime substantially related to the qualifications, functions or duties of a licensee. See Factual Findings 2, 9, 10, 11, 15 through 18, 22 through 31, 37 through 39, and 42 through 48.
11. (A) The determination that the crimes are substantially related is based upon the holdings in Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461 and Krain v. Medical Bd. ( 1999) 71 Cal.App.4th 1416. In Windham, the doctor had been convicted of tax fraud. The Court of Appeal rejected his argument that the conviction was not substantially related to the practice of medicine. "First of all, we find it difficult to compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients." Windham v. Board of Medical Quality Assurance, supra at p. 470.
(B) Krain' s conviction for solicitation of subornation of perjury involved dishonesty. "We agree with the reasoning of Windham: the intentional solicitation to commit a crime which has as its hallmark an act of dishonesty cannot be divorced from the obligation of utmost honesty and integrity to the patients whom the physician counsels, as well as numerous third party entities and payors who act on behalf of patients. (Windham, supra, 104 Cal. App. 3d at p. 4 70; see also Matanky v. Board of Medical Examiners (1978) 79 Cal. App. 3d 293, 305-306 [144 Cal. Rptr. 826].) Krain' s plea of guilty to solicitation of subornation of perjury is substantially related to his qualifications as a physician." (Krain v. Medical Bd., supra, 71 Cal.App.4th at pp. 1424-1425.)
12. The Board publishes guidelines for the use of Administrative Law Judges in determining the appropriate range of outcomes for statutory violations, referred to in California Code of Regulations, title 16, section 1361, and entitled "Manual of Disciplinary Orders and Disciplinary Guidelines" (9th Edition, 2003). These Guidelines acknowledge that they are not binding standards and that mitigating or other appropriate circumstances may establish a basis to vary from them.
19
For the violations of sections 2234, 2236 and 2261 found herein, the Guidelines recommend a maximum penalty of license revocation, and minimum penalties of stayed revocation and five or seven years probation on various terms including suspension, coursework, evaluation, monitoring and therapy.
13. On the one hand, Respondent presented convincing evidence that some of the acts that constitute violations of law resulted from his reasonable reliance on legal advice. That the advice was incorrect was not known to Respondent.
14. On the other hand, Respondent intentionally deceived the Board in failing to disclose his attendance at UC-Irvine, most likely in an attempt to prevent the Board from learning that he had been discharged for cause and the reasons therefore - that is, the convictions. The dismissal of the criminal charges in 2006 offers little assistance to Respondent in these proceedings. While he is now able to correctly assert that he was not convicted, that was not the state of affairs when he applied for his license in 2000. The entirety of the record reveals that Respondent has a penchant for dishonesty, to bend his position and shade his statements to suit his needs, without consistent regard for the truth. His application for his physician's license in Missouri is completely at odds with his testimony concerning his activities from 1986 to 1990, in a clear attempt to deceive the licensing authorities in Missouri or to deceive this Administrative Court. Similarly, Respondent was willing to acknowledge the factual bases for his plea negotiation in 1991 but, at this hearing, denied any complicity in illegal acts. Respondent is not entitled to any benefit of the doubt - there is no doubt. His misrepresentations and dishonesty, occurring as they did in the process of obtaining his licenses, go to the core of his ability to practice his profession.
Under all of the circumstances herein, the health, safety and welfare of the people of the State of California can be protected only by a disciplinary order that revokes Respondent's license.
ORDER
WHEREFORE, THE FOLLOWING ORDER is hereby made:
Physician and Surgeon Certificate number A71181 issued to Respondent C. Julian Omidi, M.D., is revoked pursuant to Legal Conclusions 1 through 14, separately and for all of them.
DATED: September 4, 2007.
DA YID B. ROSENMAN Administrative Law Judge Office of Administrative Hearings
20
1 EbMUND G. BROWN JR., Attorney General of the State of California
2 PAUL C. AMENT Supervising Deputy Attorney General
3 EDWARD K. KIM, State Bar No. 195729 Deputy Attorney General
4 California Department of Justice 300 So. Spring Street, Suite 1702
5 Los Angeles, CA 90013 Telephone: (213) 897-7336
6 Facsimile: (213) 897-9395
7 Attorneys for Complainant
FILED STATE OF CALIFORNIA
MEDICAL BOARD OF CALIFORNIA SACfYIMlil,>ITO ~Or;[]_ BY~ ALYST
8
9
10
BEFORE THE DIVISION OF MEDICAL QUALITY
MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA
11 In the Matter of the Accusation Against:
12 C. JULIAN OMIDI, M.D. aka Kambiz Beniamia Omidi
13 P. 0. Box 24947 Los Angeles, CA 90024
14
15 Physician's & Surgeon's Certificate No. A71181
16 Respondent.
17 Complainant alleges:
18 ·PARTIES
Case No. 17-2004-162146
OAH No. L2006070409
SECOND AMENDED ACCUSATION
19 1. David T. Thornton (Complainant) brings this Second Amended
20 Accusation (Accusation) solely in his official capacity as the Executive Director of the Medical
21 Board of California, Department of Consumer Affairs.
22 2. On or about March 24, 2000, the Medical Board of California issued
23 Physician and Surgeon Certificate Number A71181 to C. Julian Omidi, M.D. (Respondent). The
24 Physician and Surgeon Certificate expires on July 31, 2009, unless renewed.
25 JURISDICTION
26 3. This Accusation is brought before the Division of Medical Quality
27 (Division) for the Medical Board of California, Department of Consumer Affairs, under the
28 authority of the following laws. All section references are to the California Business and
2 4.Section 2227 of the Code provides that a licensee who is found guilty
3 under the Medical Practice Act may have his or her license revoked, suspended for a period not
4 to exceed one year, placed on probation and required to pay the costs of probation monitoring, or
5 such other action taken in relation to discipline as the Division deems proper.
6 5.Section 2234 of the Code states:
7 "The Division of Medical Quality shall take action against any licensee who is
8 charged with unprofessional conduct. In addition to other provisions of this article,
9 unprofessional conduct includes, but is not limited to, the following:
10 "(a) Violating or attempting to violate, directly or indirectly, assisting in or
11 abetting the violation of, or conspiring to violate any provision of this chapter [Chapter 5,
12 the Medical Practice Act].
13 "(b) Gross negligence.
14 "(c) Repeated negligent acts. To be repeated, there must be two or more
15 negligent acts or omissions. An initial negligent act or omission followed by a separate
16 and distinct departure from the applicable standard of care shall constitute repeated
1 7 negligent acts.
18 "(1) An initial negligent diagnosis followed by an act or omission medically
19 appropriate for that negligent diagnosis of the patient shall constitute a single negligent
20
21
act.
"(2) When the standard of care requires a change in the diagnosis, act, or
22 omission that constitutes the negligent act described in paragraph (1 ), including, but not
23 limited to, a reevaluation of the diagnosis or a change in treatment, and the licensee's
24 conduct departs from the applicable standard of care, each departure constitutes a separate
25 and distinct breach of the standard of care.
26 "(d) Incompetence.
27 "(e) The commission of any act involving dishonesty or corruption which is
28 substantially related to the qualifications, functions, or duties of a physician and surgeon.
2
"(f) Any action or conduct which would have warranted the denial of a
2 certificate."
3 6. Section 2235 of the Code states:
4 "Upon referral from the division, the Senior Assistant Attorney General of the
5 Health Quality Enforcement Section shall initiate action against any licensee who obtains a
6 certificate by fraud or misrepresentation, including a reciprocity certificate which is based upon a
7 certificate or license obtained by fraud or mistake. The division shall take action against any
8 licensee whose certificate was issued by mistake."
9 7.Section 2236 of the Code states:
10 "(a) The conviction of any offense substantially related to the qualifications,
11 functions, or duties of a physician and surgeon constitutes unprofessional conduct within
12 the meaning of this chapter [Chapter 5, the Medical Practice Act]. The record of
13 conviction shall be conclusive evidence only of the fact that the conviction occurred.
14 "(b) The district attorney, city attorney, or other prosecuting agency shall notify
15 the Division of Medical Quality of the pendency of an action against a licensee charging a
16 felony or misdemeanor immediately upon obtaining information that the defendant is a
1 7 licensee. The notice shall identify the licensee and describe the crimes charged and the
18 facts alleged. The prosecuting agency shall also notify the clerk of the court in which the
19 action is pending that the defendant is a licensee, and the clerk shall record prominently
20 in the file that the defendant holds a license as a physician and surgeon.
21 "( c) The clerk of the court in which a licensee is convicted of a crime shall,
22 within 48 hours after the conviction, transmit a certified copy of the record of conviction
23 to the board. The division may inquire into the circumstances surrounding the
24 commission of a crime in order to fix the degree of discipline or to determine if the
25 conviction is of an offense substantially related to the qualifications, functions, or duties
26 of a physician and surgeon.
27 "(d) A plea or verdict of guilty or a conviction after a plea of nolo contendere is
28 deemed to be a conviction within the meaning of this section and Section 2236.1. The
3
record of conviction shall be conclusive evidence of the fact that the conviction
2 occurred."
3 8.Section 2261 of the Code states:
4 "Knowingly making or signing any certificate or other document directly or
5 indirectly related to the practice of medicine or podiatry which falsely represents the
6 existence or nonexistence of a state of facts, constitutes unprofessional conduct.''
7 9.Section490 of the Code states:
8 "A board may suspend or revoke a license on the ground that the licensee has
9 been convicted of a crime, if the crime is substantially related to the qualifications, functions, or
10 duties of the business or profession for which the license was issued. A conviction within the
11 meaning of this section means a plea or verdict of guilty or a conviction following a plea of no lo
12 contendere. Any action which a board is permitted to take following the establishment of a
13 conviction may be taken when the time for appeal has elapsed, or the judgment of conviction has
14 been affirmed on appeal, or when an order granting probation is made suspending the imposition
15 of sentence, irrespective of a subsequent order under the provisions of Section 1203 .4 of the
16 Penal Code."
17 9A. Subdivision (a) of Section 480 of the Code states:
18 "(a) A board may deny a license regulated by this code on the grounds that the
19 applicant has one of the following:
20 "(1) Been convicted of a crime. A conviction within the meaning of this section
21 means a plea or verdict of guilty or a conviction following a plea of no lo contendere. Any action
22 which a board is permitted to take following the establishment of a conviction may be taken
23 when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal,
24 or when an order granting probation is made suspending the imposition of sentence, irrespective
25 of a subsequent order under the provisions of Section 1203.4 of the Penal Code.
26 "(2) Done any act involving dishonesty, fraud or deceit with the intent to
27 substantially benefit himself or another, or substantially injure another; or
28 "(3) Done any act which if done by a licentiate of the business or profession in
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19.
20
21
22
23
24
25
26
27
28
question, would be grounds for suspension or revocation of license.
"The board may deny a license pursuant to this subdivision only if the crime or act
is substantially related to the qualifications, functions or duties of the business or profession for
which application is made."
IO.California Code of Regulations, title 16, section 1309, states:
"When considering the denial of a license, certificate or permit under Section 480
of the code, the division, in evaluating the rehabilitation of the applicant and his or her
present eligibility for a license, certificate or permit, shall consider the following criteria:
"(a) The nature and severity of the act(s) or crime(s) under consideration as
grounds for denial.
"(b) Evidence of any act( s) or crime( s) committed subsequent to the act( s) or
crime(s) under consideration as grounds for denial which also could be considered as
grounds for denial under Section 480.
"(c) The time that has elapsed since commission of the act(s) or crime(s) referred
to in subsections (a) or (b).
"( d) The extent to which the applicant has complied with any terms of parole,
probation, restitution or any other sanctions lawfully imposed against the applicant.
"( e) Evidence, if any, of rehabilitation submitted by the applicant."
FACTUAL ALLEGATIONS
11. Respondent attended the University of California at Irvine (UCI) as a
student, and while he attended UCI, he cheated on examinations for classes taken there. During
the period between September 1989 and February 1990, Respondent and others conspired to
burglarize various faculty offices at the University of California at Irvine and steal examinations
for the purpose of later taking the examinations without doing the required course work and
thereby receiving academic credit for such courses, and in furtherance thereof, Respondent and
Amir Bagherzadeh obtained, by illegal means, master keys to various faculty offices in order to
obtain entrance to said offices to steal examinations.
12. On February 2, 1990, two burglaries were committed in the Social Science
5
1
2
3
4
5
6
7
8
9
10
11
Tower, Room 225, and in Steinhaus Hall Room 431 at UCL Amir Bagherzadeh and Arash
Behnam were apprehended leaving Steinhaus Hall, Room 431 at 1 :00 a.m. Arash Behnam was
in possession of three examinations taken from Room 225 of the Social Science Tower. A UCI
master key issued to UCI P.D. Community Services unit was found on the floor of Room 431.
Amir Bagherzadeh was a UCI Community Services Unit employee at that time.
13. During the period between January and February 1990, Respondent was
monitoring but not enrolled for "BIO 107 ." A mid-term examination for "BIO 107" was
scheduled for 9:00 a.m. on February 2, 1990. On February 2, 1990 at 1 :00 a.m. when Amir
Bagherzadeh and Arash Behnam were apprehended leaving Room 431 in Steinhaus Hall, the
examinations for "BIO 107" were contained in that room.
14. On February 10, 1990, a Search Warrant executed at the Respondent's
12 residence revealed that Respondent was in possession of a UCI master key of offices in the
13 Physical Sciences buildings which was taken in a burglary during the period of March 1, 1989 to
14 February 10, 1990 from Room 575.
15 15. On or about December 28, 1990, a felony Information was filed against
16 Respondent in People v. Amir Bagherzadeh and Kambiz Beniamia Omidi, in Orange County
17 Superior Court Case No. C-83006. Respondent was charged with conspiracy to commit a crime,
18 to wit: burglary, in violation of Penal Code sections 182(1) and 459 (Count 1, a felony); general
19 burglary in violation of Penal Code section 459/460.2/461.2 (Count 3, a felony); and willfully
20 and unlawfully buying, receiving, concealing, selling, withholding, and aiding in concealing,
21 selling, withholding property, in violation of Penal Code section 496.1 (Count 5, a felony).
22 Respondent thereafter pleaded guilty to Counts 1, 3 and 5 in the felony Information and the
23 offenses therein were reduced to misdemeanors pursuant to Penal Code section 17b (Guilty
24 Plea).
25 16. On June 26, 1992, Respondent was sentenced to probation for a term of
26 three years. Respondent was ordered to perform 200 hours of community service.
27 17. On or about January 12, 2000, Respondent submitt~d his application
28 (Application) for a California Physician and Surgeon's License to the Medical Board of
6
1 California (Board). Question l lA of his Application required Respondent to list "the names and
2 addresses of all colleges or universities attended where pre-professional, postsecondary
3 instruction was received" and to submit with his application official transcripts with the school
4 seal affixed for each school attended. Respondent attended UCI from the Fall Quarter of 1986
5 through the Winter Quarter of 1990, but did not list UCI as a school in his Application and did
6 not submit his UCI transcript with his Application, in response to Question 1 lA.
7 18. Question 22 of his Application required Respondent to provide the details1
8 relating to any conviction or plea of no lo contendere "to any violation (including misdemeanors
9 and felonies) of any federal, state or local law of any state, the United States, or a foreign country
10 or any violation relating to the possession, use, illegal sale, transportation, manufacture,
11 distribution or dispensing of controlled substances." Furthermore, Question 22 also expressly
12 provided that Respondent was required to disclose "any conviction that has been set aside or
13 dismissed or expunged, or where a stay of execution has been issued." Respondent failed to
14 disclose his Guilty Plea, and the details thereof, in response to Question 22 of his Application.
15 19. On or about February 18, 1993, Respondent completed an Application for
16 Naturalization (Form N-400), and submitted this form to the United States Department of Justice,
17 Immigration and Naturalization Service. In this form Respondent falsely answered, in response
18 to Question 15, that he had never been convicted for breaking or violating any law. Respondent
19 knew that this response was false, in that he had been convicted of misdemeanors as set forth in
20 paragraph 15 and 16 above. In this form, Respondent affixed his signature to a certificate that his
21 answers contained in the Form N-400 were all true and correct. This certification was false by
22 virtue of Respondent's false answer to Question 15, and known by Respondent to be false.
23 20. On or about March 24, 1995, Respondent falsely swore before an officer
24 of the United States Immigration and Naturalization Service that the answers in the Form N-400,
25
26
27
28
1. Question 22 included a requirement that stated, "For any positive response to the following question, please provide ALL official documentation regarding the matter in addition to written explanations. If applicable, an applicant should also provide official hearing/court documents and original letters of explanation from appropriate authorities."
7
1 including his answers to Question 15, were true to the best of his knowledge and belief. In fact,
2 the answers to Question 15 were not true to the best of Respondent's knowledge and belief, for
3 the reasons stated in paragraph 19 above.
4 FIRST CAUSE FOR DISCIPLINE
5
6
(Obtaining a Certificate by Fraud or Misrepresentation)
21. Respondent is subject to disciplinary action under section 2235 of the
7 Code in that Respondent obtained his California Physician and Surgeon certificate No. A71181
8 by fraud and misrepresentation by materially omitting the details relating to his Guilty Plea and
9 his attendance at, and transcripts from, UCI, from his Application for a California Physician and
10 Surgeon License. The facts and circumstances, set forth in Paragraphs 11 through 18 of this
11 Accusation are incorporated herein by reference.
12 SECOND CAUSE FOR DISCIPLINE
13 (Dishonest Acts)
14 22. Respondent is subject to disciplinary action under section 2234,
15 subdivision ( e ), of the Code in that:
16 (a) Respondent failed to disclose his Guilty Plea and his attendance at
17 UCI in his Application for a California Physician and Surgeon License; and
18 (b) Respondent made false statements under penalty of perjury as more
19 fully set forth in paragraphs 19 and 20 above.
20 The facts and circumstances, set forth in Paragraphs 11 through 21 of this Accusation are
21 incorporated herein by reference.
22 THIRD CAUSE FOR DISCIPLINE
23 (False Representations)
24 23. Respondent is subject to disciplinary action under section 2261 of the
25 Code in that Respondent knowingly signed his Application which falsely represented that
26 Respondent had only attended the colleges and universities set forth therein and that he had not
27 been convicted, and had not pleaded nolo contendere to any violations oflaw required to be
28 disclosed therein. The facts and circumstances, set forth in Paragraphs 11 through 18 of this
8
1 Accusation are incorporated herein by reference.
2 FOURTH CAUSE FOR DISCIPLINE
3 (Conviction of a Crime)
4 24. Respondent is subject to disciplinary action under section 2236 of the
5 Code in that Respondent was convicted of an offense substantially related to the qualifications,
6 functions, or duties of a physician and surgeon, to wit: conspiracy to commit burglary, burglary,
7 and willfully and unlawfully buying, receiving, concealing, selling, withholding, and aiding in
8 concealing, selling, withholding property, in violation of Penal Code sections 182(1 ), 459, 460.2,
9 461.2, and 496.1, respectively. The facts and circumstances, set forth in Paragraphs 11 through
10 18 of this Accusation are incorporated herein by reference.
11 FIFTH CAUSE FOR DISCIPLINE
12 (Action or Conduct Warranting the Denial of a Certificate)
13 25. Respondent is subject to disciplinary action under sections 480,
14 subdivision (a)(3) and 2234, subdivision (f), of the Code in that Respondent's actions or conduct
15 described above would have warranted a denial of his California Physician and Surgeon's
16 License No. A 71181. The facts and circumstances, set forth in Paragraphs 11 through 24 of this
1 7 Accusation are incorporated herein by reference.
18 SIXTH CAUSE FOR DISCIPLINE
19 (Unprofessional Conduct)
20 26. Respondent is subject to disciplinary action pursuant to Business and
21 Professions Code section 2234, generally, in that Respondent engaged in unprofessional conduct
22 by engaging in the conduct described above. Complainant refers to and, by this reference,
23 incorporates herein paragraphs 11 through 25, inclusive, above, as though fully set forth.
24 LICENSE OBTAINED BY FRAUD OR MISREPRESENTATION
25 27. Respondent obtained his Physician and Surgeon Certificate by fraud or
26 misrepresentation within the meaning of Section 2230.5, subdivision (b ), of the Code. Therefore,
27 the limitation provided in Section 2230.5, subdivision (a), of the Code does not apply.
28 I I I
9
1 PRAYER.
2 WHEREFORE, Complainant requests that a hearing be held on the matters herein
3 alleged, and that following the hearing, the Division of Medical Quality issue a decision:
4 1. Revoking or suspending Physician's and Surgeon's Certificate Number
5 A71181, issued to C. Julian Omidi, M.D.;
6 2. Revoking, suspending or denying approval of C. Julian Omidi, M.D.'s
7 authority to supervise physician assistants, pursuant to section 3527 of the Code;
8 3. If placed on probation, ordering Respondent to pay the Division the costs
9 of probation monitoring; and
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4. Taking such other and further action as deemed necessary and proper.
