Siegel v. Cal. Bd. Of Psychology

Filed 4/4/07 Siegel v. Cal. Bd. Of Psychology CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

David P. Yaffe, Judge. Affirmed.

Daniel Koller for Plaintiff and Appellant.

Bill Lockyer, Attorney General of the State of California, Carlos Ramirez, Senior Assistant Attorney General, Robert McKim Bell, Supervising Deputy Attorney General, and John E. DeCure, Deputy Attorney General, for Defendants and Respondents.

_______________

The California Board of Psychology revoked appellant Joel Siegel's license to practice psychology. Appellant petitioned the Superior Court for a writ of mandate, seeking an order requiring the Board to reverse its ruling. The petition was denied. This appeal followed. We affirm.

Factual[1] and Procedural Summary

The events which formed the basis of the revocation took place between 1993 and 1998 and involved appellant's treatment of and involvement with the O family, consisting of Mother, Father, Daughter, and Son. The matter came to the Board's attention in November of 1999, after Mother and Father's lawsuit against appellant settled for $200,000. Mother, Father, Daughter, and appellant testified at the hearing, as did expert and other witnesses.

In brief, the evidence was that appellant began treating Daughter in November of 1993. Approximately six months later, at appellant's suggestion, Mother also became a patient. As a child, Mother had been sexually abused by a priest. She suffered from depression and other problems.

During his sessions with Mother, appellant asked her numerous questions about her sexual relationship with her husband and her sexual preferences. He sat next to her, put his arm around her, and touched her hand and knees. He complimented her attractiveness and made numerous other comments which she considered sexual.

Between 1993 and 1996, in addition to treating Daughter and Mother individually, appellant saw the entire family in joint sessions, saw Mother, Father, and Daughter in joint sessions, and occasionally saw Father for individual treatment.

Mother terminated therapy with appellant in August of 1996, after Daughter ran away. Daughter returned to therapy in April of 1997. During her first visit, appellant asked her to speak with Mother about participating in Daughter's therapy. The first time appellant saw Mother outside Daughter's presence in 1997, he told Mother how good she looked, kissed her on the mouth, told her they could be friends and have lunch together, and asked to see her newly augmented breasts.

In late 1997 or early 1998, Mother again began seeing appellant independent of Daughter's sessions. The meetings were in appellant's office, but were not scheduled as appointments normally were, and were not billed. The experts differed on whether the meetings constituted therapy.

In 1998, Son began seeing appellant for therapy. On April 7, 1998, Mother brought Son for an appointment. While Mother was alone with appellant and Son was in the waiting room, Mother and appellant kissed passionately. Appellant grabbed Mother's breast, and, looking at his erection, said, "look what you're doing to me."

After that time, Mother and appellant's private meetings in his office consisted of conversation regarding Mother's problems with Father and other family members, followed by sexual activity. By October, appellant and Mother were engaging in reciprocal oral sex. In November, they had sexual intercourse. Appellant did not believe that the conversations constituted therapy, but Mother did.

During his sexual relationship with Mother, appellant continued to see other family members in therapy. Son last saw appellant in the spring of 1998. Daughter last saw appellant in August 1998. Appellant also saw Father during this period. One of appellant's appointments with Father took place in June of 1998, after appellant's sexual relationship with Mother began. In the session, appellant and Father discussed issues between Father and Mother.

At no time before or during his sexual relationship with Mother did appellant seek professional consultation concerning his attraction to her and the possible effect the sexual relationship could have on her or the other family members.

In November of 1998, Father became suspicious. He followed Mother to appellant's office and from the parking structure, observed Mother and appellant in sexual activity. Mother and Father divorced in 2002.

In September of 1999, after Mother and Father's lawsuit against him was filed, appellant realized that he needed counseling and began seeing Dr. Thomas McGee, who testified at the hearing. Dr. McGee opined favorably on appellant's ability to practice, but the ALJ found that appellant was not honest with Dr. McGee, telling him only that there was a one-time incident of touching and hugging, and no sexual intercourse.

For the Board, Dr. Veronica Thomas testified that appellant's acts were an extreme departure from the standard of care in many ways. For instance, she opined that:

-- In 1993, given that appellant was already treating Daughter, he should not have treated Mother, but should have referred her to another therapist.

-- In 1997, when appellant asked Daughter to speak with Mother about participating in Daughter's therapy, his conduct was grossly negligent because Daughter's psychological needs became secondary to the interaction between appellant and Mother.

-- In 1997 and 1998, treatment of family members individually and the family in family therapy made it impossible for appellant to define his role and maintain his objectivity as a therapist. The family members needed informed consent to determine the identity of the patient whom appellant viewed as the primary patient. Appellant's failures in this regard constituted an extreme departure from the standard of care in that every one of the family members was being professionally neglected.

-- Appellant should not have treated family members while he was having a personal relationship with Mother. Appellant put his interests ahead of the interests of his patients, an extreme departure from the standard of care.

-- In 1998, appellant should not have treated Father, because he was in a sexual relationship with Mother. The manner in which appellant dealt with Father in June 1998 constituted an extreme departure from the standard of care.

Dr. Thomas also opined that Mother was appellant's patient in 1997 and 1998, while they were sexually involved, that the standard of care prohibited any kind of personal relationship between a therapist and patient for two years after formal termination of therapy, and that in any event, a sexual relationship between Mother and appellant would never have been appropriate because of Mother's psychological issues and appellant's relationship with other members of the family. She opined that a psychologist has a duty to a former patient to do no harm, that appellant's sexual relationship with Mother damaged her, and that appellant's conduct toward Mother from the outset constituted the dishonest and corrupt behavior of a sexual predator.

For appellant, Dr. Paul Berg testified that Mother terminated therapy in August 1996, and was not a patient during the period of sexual activity. He agreed that the standard of care required a two year cooling off period before a psychologist could have a personal relationship with a former patient. Thus, any sexual activity between Mother and appellant before March 1998 would be outside the standard of care. Dr. Berg also testified that there would be nothing wrong with a therapist forming a relationship with a former patient as soon as the therapeutic relationship ended, although most practitioners would frown on it.

As to the allegation that appellant kissed Mother on the mouth in June of 1997, Dr. Berg opined that there was no violation of the standard of practice, since Mother was not then a patient, but also testified that the conduct would be frowned on within the community of professional psychologists. Similarly, Dr. Berg testified that if appellant saw Mother in his office after November 1997 for purposes of friendship, there was no violation of the standard of care, but that most practitioners would frown on the practice. The allegation concerning appellant's sexual advances to Mother in April 1997, if true, raised questions about appellant's judgment and would be frowned on by the community, which Dr. Berg "guessed" meant a violation of the standard of practice.

With regard to appellant's treatment of other family members, Dr. Berg opined that appellant did not commit any extreme departures from the standard of care.

The ALJ found that Dr. Thomas's testimony was substantially more credible than Dr. Berg's, finding that Dr. Berg could not accurately define the standard of care and failed to explain how conduct which would be frowned on by the community could fall within the standard of care. The ALJ also noted that Dr. Berg had testified that he had in the past written reports for the Board, testimony which was rebutted by Board Enforcement Coordinator Kathi Burns, who searched the records and determined that Dr. Berg had never worked for the Board. The ALJ determined that Dr. Berg was willfully false in his testimony regarding his experience as an expert for the Board.

The ALJ found that appellant was not entirely credible in his testimony, that his answers to many questions were evasive or non-responsive, and that he denied a great many facts clearly established by the testimony of other witnesses. The ALJ also noted that appellant was not candid with Dr. McGee. In contrast, the ALJ found that Mother and the other family members were forthright, candid, and credible, noting that they had nothing to gain from dishonest testimony.

Legal Conclusions

The ALJ found that during appellant's sexual relationship with Mother, she was not a patient, and found no cause to revoke appellant's license under Business and Professions Code[2] section 726, which provides that "commission of any act of sexual abuse, misconduct, or relations with a patient, client, or customer constitutes unprofessional conduct and grounds for disciplinary action," or section 2960, subdivision (o), which then defined unprofessional conduct to include "Any act of sexual abuse, or sexual relations with a patient, or sexual misconduct which is substantially related to the qualifications, functions or duties of a psychologist or psychological assistant."

However, the ALJ found cause to revoke appellant's license for corrupt acts, gross negligence, and repeated acts of negligence pursuant to section 2960, subdivisions (j), (n) and (r), which provided that "The board may . . . suspend or revoke the registration or license of any registrant or licensee if the applicant, registrant, or licensee has been guilty of unprofessional conduct. Unprofessional conduct shall include, but not be limited to: . . . (j) Being grossly negligent in the practice of his or her profession. . . . (n) The commission of any dishonest, corrupt, or fraudulent act. . . . (r) Repeated acts of negligence."

With regard to Mother, the ALJ concluded that the standard of care at the relevant time required a two year cooling off period between the end of therapy and the beginning of an intimate relationship between a therapist and former patient, and that appellant failed to comport himself within the standard of care.

Further, the ALJ found that appellant had an on-going responsibility not to harm a former patient, and that his failure to fulfill that responsibility constituted an extreme departure from the standard of care. The ALJ noted that, as appellant knew, Mother was psychologically frail due to her childhood abuse, and found that beginning in 1997, appellant engaged in a course of conduct designed to seduce her.

With regard to appellant's treatment of the rest of the family, the ALJ concluded that the standard of care required appellant to avoid blurred boundaries and dual relationships, and that appellant's conduct was an extreme departure from the standard of care. He had combined joint and individual therapy with family members in unacceptable and harmful ways, was unable to define his role and maintain his objectivity with respect to any one patient, and was unable to keep separate and distinct all of the various consent, boundary, goal and privacy issues raised by the plethora of therapeutic relationships.

The Board adopted the ALJ's proposed decision as its decision.

On appellant's petition for writ of mandate, the Superior Court reviewed the administrative record and the relevant pleadings and exercised its independent judgment while affording a strong presumption of correctness concerning the administrative findings. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 818.)

The court denied the petition, finding that the weight of the evidence at the hearing supported the administrative findings, and that those findings were correct. The court found, inter alia, that by treating Daughter and Father while he was having a sexual relationship with Mother, and by using Daughter to lure Mother back to him, appellant committed corrupt acts within the meaning of section 2960 subdivision (n), gross negligence in the treatment of Daughter under subdivision (j), and repeated acts of negligence under subdivision (r). The court further found that appellant owed a duty of care to Mother while she was his former patient, and that given her history it was grossly negligent of him to engage in a sexual relationship with her.

The court denied appellant's motion to supplement the record with new evidence.

Discussion

1. Poliak v. Board of Psychology (1997) 55 Cal.App.4th 342

Throughout his brief, appellant contends that the trial court misunderstood this case and thus that its ruling was in error. We agree with neither point.

In Poliak, supra, 55 Cal.App.4th 342, a therapist and former patient engaged in a sexual relationship which began seven months after therapy terminated. The Board revoked the therapist's license under sections 726 and 2960, subdivision (o), quoted above, [3] on the ground that those statutes prohibited sexual relations with a former patient. Using standard principles of statutory construction, the Court of Appeal concluded that "patient," as used in the statutes, did not include a former patient. (Id. at p. 363.)

The Court concluded that "Given our reading of the relevant statutes, it follows that the Board erred in determining that cause existed to discipline plaintiff's license because she had sexual relations with a patient. [] There is considerable doubt whether the Board would have revoked plaintiff's license had it not erroneously found that she had engaged in sexual relations with a patient. In this circumstance, a remand to the Board for reconsideration of the penalty is the appropriate procedure." (Poliak, supra, 55 Cal.App.4th 342 at p. 364.)

Appellant argues that Poliak means not only that his sexual relationship with Mother could not be the basis for discipline under section 2960, subdivision (o), but that the sexual relationship could not be the basis for discipline under any subdivision of section 2960. He points out that section 2960, subdivision (j) refers to a therapist's gross negligence "in the practice of his or her profession" and argues that Poliak means that his conduct with Mother, a former patient, was not part of the practice of his profession.

We do not so read Poliak. That case only held that section 2960, subdivision (o) does not define sex with a former patient as unprofessional conduct. No question concerning the duty owed to a former patient was presented in that case, and there is no holding on that question. The case does not hold that sex with a former patient cannot under any circumstance constitute unprofessional conduct, corrupt acts, or negligence under section 2960. Poliak thus has no effect on discipline imposed here, which was based in part on an expert opinion that there is a duty to a former patient, that Mother had particular problems and vulnerabilities, and that appellant's sexual relationship with her, one particular former patient, constituted a serious breach of the standard of care.

Along these lines, appellant argues that the Accusation was based on an allegation that Mother was a patient, not a former patient, and that his license was revoked based on allegations which were never charged. The argument ignores the fact that the Accusation included causes of action under subdivisions of section 2960 which are not limited to sexual relationships with patients, and that when appellant engaged in a sexual relationship with Mother, he engaged in a sexual relationship with the wife of a patient, and the mother of two patients, independent grounds for discipline. Moreover, to the extent that appellant's argument concerns due process, he makes no substantive argument, and no showing of a due process violation. We thus do not further consider the issue.

2. Substantial evidence

Appellant's contention is that there is no substantial evidence for the Superior Court's order because that court "summarily dismissed" his testimony and Dr. Berg's, and exclusively relied on Dr. Thomas's testimony and the testimony of the O family. In appellant's view, he and Dr. Berg were entitled to more weight, and Dr. Thomas and members of the O family to less.

The standard of review is clear. On appellant's substantial evidence claims, we focus on the findings of the trial court rather than those of the administrative agency and uphold the judgment if there is any substantial evidence in support of the trial court's essential findings. (Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 358.) "Substantial evidence" is evidence, contradicted or uncontradicted,[4] that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

Dr. Berg's and Dr. Thomas's testimony

Appellant's criticisms of Dr. Thomas are few and unconvincing. One of them is that Poliak means that Dr. Thomas was wrong as a matter of law when she testified that the standard of care required a two year cooling off period between the end of therapy and a sexual relationship between a former patient and the therapist. As we have seen, Poliak did not consider that issue, and thus includes no holding on it.

Appellant also argues that Dr. Thomas's testimony must be discounted because she, unlike Dr. Berg, did not interview appellant. We see nothing in law or fact which would mean that the court was required to discredit Dr. Thomas's testimony on that basis. Instead, the court was entitled to consider each expert's professional experience, the assumptions on which he or she relied, and the articulated basis for his or her opinions. (BAJI 2.40, Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 78; Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 58.) The court did so, and found Dr. Thomas's testimony more credible, and Dr. Berg's, which, as the ALJ noted, was confused, less. The ruling was within the court's province.

We now turn to appellant's argument regarding the finding that Dr. Berg was willfully false in his testimony about his earlier work for the Board. In the trial court, appellant moved to supplement the record with a declaration from Dr. Berg to the effect that after Kathi Burns's testimony he contacted the colleague with whom he had collaborated on Board work, searched his records, and determined that his work was not for the Board of Psychology but for the Medical Board or the Board of Behavioral Examiners. Appellant argues that the evidence established that Dr. Berg erred, but was not willfully false, and that the court erred when it denied his motion.

The court denied the motion under Code of Civil Procedure section 1094.5, subdivision (e), which provides that "Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing . . . the court may admit the evidence at the hearing on the writ without remanding the case." Appellant does not explain why the evidence could not have been produced or was improperly excluded at the hearing, or why it was not included in the supplemental declaration Dr. Berg did submit to the ALJ.

Appellant does suggest that he was "blindsided" by Burns's testimony. Not so. On July 27, Dr. Berg testified that he had previously worked for the Board. Colloquy between the ALJ and counsel on July 29 establishes that in the morning of that day, appellant was told that Burns would be called to rebut that testimony. His only objection was that, because Dr. Berg's testimony was that he had worked with another doctor, the billing might be in the other doctor's name. Burns testified on July 30.

Appellant also argues that any falsehood in regard to Dr. Berg's experience was irrelevant and negligible, and no basis for disregarding Dr. Berg's testimony. We think that the court was entitled to consider a deliberate falsehood in evaluating Dr. Berg's testimony. (See BAJI 2.22 [A witness who is willfully false in one material part of his or her testimony is to be distrusted in others].) Things would not improve much for appellant if, as he argues, the falsehood was merely negligent. At best, the declaration established that Dr. Berg testified with certainty when he had no basis for certainty, still a ground for a trier of fact to discredit testimony.

Appellant's testimony and that of the O family

Without citation to authority, appellant argues that his testimony was entitled to more weight than that of members of the O family, because he had more at stake and because the revocation of his license had constitutional significance. That is simply not the law. To the contrary, "[t]he existence or nonexistence of a bias, interest, or other motive" is specified as one of the factors a trier of fact may consider in determining the credibility of a witness. (Evid. Code 780, subd. (f).)

Appellant also argues that the testimony of O family members should have been disregarded because family members testified inconsistently with each other and inconsistently with declarations and statements in other cases. He cites several specific instances:

-- At the hearing, Father testified on the reasons for divorce. He cited Mother's increasing depression and other problems and also testified that her relationship with appellant "was devastating. It was the single reason we're divorced today." During cross-examination, he was asked about Mother's romantic but non-sexual relationship with another man. When asked whether the relationship had "any contribution to your divorce . . ." he answered, "Well, I guess it's all a build. Yeah, I'd have to say to some degree."

-- In the divorce, Father apparently claimed that Mother had stalked appellant. At the hearing, he testified that he did not have any knowledge that Mother had done so, explaining that "stalking is a very strong word. . . . It was more of a drive-by. . . . She drove by his office, you know, things of that nature. From there, it became stalking."[5]

-- Daughter testified that in 1997, she drove herself to sessions with appellant and Mother drove separately. Mother testified that she brought Daughter to some of the appointments. When asked how many, she answered "I don't know. A lot."

It is certainly true that "Contradictions and inconsistencies in the testimony of a witness go to the weight of his evidence and to his credibility." (High v. Pacific Gas & Elec. Co. (1942) 52 Cal.App.2d 701, 710.) However, the disparities cited by appellant are minor, if indeed they are disparities. Nothing in the cited testimony required the court to disregard the testimony of members of the O family.

3. Dr. Campbell's records

After the administrative hearing began, appellant served a subpoena on Dr. Robert Campbell, a psychologist, seeking records concerning his treatment of Mother between July of 1995 and November of 2003. Dr. Campbell refused to produce the records, and the Board sought to quash the subpoena. Appellant sought an order compelling him to do so. The ALJ granted the motion to quash, finding, inter alia, that the discovery attempt was untimely under Government Code section 11507.6, and that appellant had not shown grounds to overcome the psychotherapist-patient privilege or Mother's and Father's right to privacy. (Evid. Code 1014, Cal. Const., art. 1, 1.) The ALJ also denied appellant's motion to certify the record for purposes of contempt proceedings in the Superior Court (Gov. Code, 11455.20), finding that the subpoena was fatally defective in that it did not comply with Code of Civil Procedure section 1985.3, subdivision (b).

In the mandate proceedings, appellant contended that the ALJ abused his discretion with respect to the motion to quash and the motion to certify the record. The Superior Court found no merit in the contention. Appellant contends that the ruling was in error, but in support argues only that the ALJ's ruling was based on a relevance finding, and that Dr. Campbell's records were relevant. Appellant does not address the ALJ's actual findings, which concerned Evidence Code section 1014, the Constitution, and the Code of Civil Procedure. He has not shown error.

Finally, respondent sees in appellant's brief a separate argument under section 2960, subdivision (r.) We do not. To the extent that respondent is correct and the argument is made, we adopt respondent's reasoning and find that any contention has no merit.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] In his reply brief, appellant asks us to strike respondent's statement of facts, on the ground that it cites to the administrative record, not the ALJ's findings. Appellant sees in this an attempt to subvert the standard of review. We do not, and deny the request.

[2] All further statutory references are to that code unless otherwise indicated.

[3] The subdivision was amended after Poliak, and now defines unprofessional conduct to include "Any act of sexual abuse, or sexual relations with a patient or former patient within two years following termination of therapy, or sexual misconduct that is substantially related to the qualifications, functions or duties of a psychologist or psychological assistant or registered psychologist."

[4] Under this rule, we must reject appellant's contention that because the experts disagreed on the standard of care, the court erred in making a finding on that standard, and in finding a breach of the standard.

[5] Appellant contends that Daughter made similar inconsistent statements about stalking, but we do not find any such testimony in the cited pages of the record.