Leslie v. Board of Medical Quality Assurance

• Decision Date: 22 August 1991
• Citation: 285 Cal.Rptr. 501,234 Cal.App.3d 117
• Court: California Court of Appeals Court of Appeals
• Parties: Robert A. LESLIE, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent. Civ. B052355.

Page 501

285 Cal.Rptr. 501

234 Cal.App.3d 117

Robert A. LESLIE, Plaintiff and Appellant, v. BOARD OF MEDICAL QUALITY ASSURANCE, Defendant and Respondent.

Civ. B052355.

Court of Appeal, Second District, Division 5, California.

Aug. 22, 1991.

[234 Cal.App.3d 118] Robert A. Leslie, in pro. per.

Daniel E. Lungren, Atty. Gen., Mark Roohk, Deputy Atty. Gen., for defendant and respondent.

ASHBY, Associate Justice.

Appellant Robert A. Leslie, M.D., appeals from a judgment of the superior court denying his petition for writ of mandate. In his petition, appellant challenged the decision of the Board of Medical Quality Assurance (the Board) ¹ to discipline appellant, placing him on probation from the practice of medicine for five years, including a 90-day actual suspension and a mandatory examination following a training program. The Board's decision increased the degree of discipline proposed by the administrative law judge. The Board's decision, however, adopted the administrative law judge's factual findings that appellant had been convicted on one count of prescribing to persons not under his treatment (Health & Saf.Code, § 11154), five counts of prescribing to habitual users (Health & Saf.Code, § 11156) and two counts of excessive prescribing (Bus. & Prof.Code, § 725), constituting unprofessional conduct which related to the qualifications, functions and duties of a physician.

In denying the petition for mandate the trial court's minute order (of which we have taken judicial notice) states in part: "Petitioner was disciplined based solely upon his criminal convictions for prescribing durgs [sic] to persons not his patients, to habitual users, and in excessive amounts. This petition is nothing but an attempt to collaterlly [sic] attack the conviction, and as such is an abuse of the mandamus procedure. The criminal conviction was a sufficient basis for the disciplinary action taken by Respondent against Petitioner."

On appeal, as below, appellant presents arguments which challenge his convictions. ² Thus, his arguments have no merit and reversal is not warranted.

Upon review from a superior court's decision based upon an administrative writ of mandate, we only have the power to determine if there are errors of law. "Our review of the facts is limited to determining if the evidence supports the trial court's findings...." (Collins v. Board of Medical Examiners (1972) 29 Cal.App.3d 439, 444, 105 Cal.Rptr. 634; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 69, 64 Cal.Rptr. 785, 435 P.2d 553.)

Here, acting on the authority given to it (In re Gross (1083) 33 Cal.3d 561, 567, 189 Cal.Rptr. 848, 659 P.2d 1137; Arneson v. Fox (1980) 28 Cal.3d 440, 446-450, 170 Cal.Rptr. 778, 621 P.2d 817), the Legislature has given conclusive effect to appellant's convictions in the administrative hearing.

Business and Professions Code section 2234 authorizes the Board to "take action against any licensee who is charged with unprofessional conduct." A conviction of any state laws regulating drugs "constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct. A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this section." (Bus. & Prof.Code, § 2237, subd. (a).) While a physician may not challenge the underlying conviction, the physician may request an examination of the facts and "circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if such conviction is of an offense substantially related to the qualifications, functions, or duties of a physician and surgeon." (Bus. & Prof.Code, § 2236, subd. (b).)

At the administrative hearing, appellant did not submit evidence of mitigation, which could have included the facts surrounding his convictions. Rather, as he does on appeal, appellant simply argued he was not guilty. ³ The discipline imposed was based upon appellant's unprofessional conduct arising from his criminal narcotic convictions. Since the "statute provides that a conviction constitutes a sufficient basis for administrative disciplinary action [appellant] may not impeach the judgment of conviction." (LAX v. Board of Medical Quality Assurance (1981) 116 Cal.App.3d 669, 675, 172 Cal.Rptr. 258.) The record of conviction conclusively established his culpability ⁴ and supports the discipline imposed.

Since we find no abuse of discretion in imposing the discipline (Collins v. Board of Medical Examiners, supra, 29 Cal.App.3d at p. 446, 105 Cal.Rptr. 634; Fick v. Board of Medical Examiners (1973) 31 Cal.App.3d 247, 252, 107 Cal.Rptr. 260), the denial of the writ of mandate and the judgment entered thereon must be affirmed.

Respondent Board has requested we sanction appellant for a frivolous appeal. We gave notice to the parties prior to oral argument the court would consider the question of sanctions and both parties have submitted additional briefs on this issue. As respondent noted, appellant's appeal has absolutely no merit because it is a collateral attack on his convictions. Appellant has made numerous appearances in the superior court which have no relationship to the issues, and appellant's attempt here is just one more step in his abuse of the system. Even though appellant is in . propria persona, he is held to the same "restrictive procedural rules as an attorney" (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193, 234 Cal.Rptr. 377) and we may impose sanctions upon him. (See, e.g., id. at pp. 192-193, 234 Cal.Rptr. 377; Muller v. Muller (1959) 174 Cal.App.2d 517, 519, 345 P.2d 29).

Appellant's claim is frivolous, having no basis. The law is clear. The administrative law judge informed appellant he could not challenge the underlying convictions at that hearing. The trial court, in denying the writ explicitly stated that to collaterally attack his conviction was an abuse of the mandamus procedures. Respondent's brief clearly explained the nature of the disciplinary hearing and the conclusive nature of appellant's convictions in that hearing. He was previously informed his arguments were groundless. (Weber v. Willard (1989) 207 Cal.App.3d 1006, 1010, 255 Cal.Rptr. 165; Bank of America v. Henkin (1986) 185 Cal.App.3d 919, 921-922, 230 Cal.Rptr. 113.) Thus, he cannot claim he is ignorant of the law. This is not the proper forum to challenge the basis for his convictions. By continuing to pursue this matter, he ignores a clear line of authority....