Savelli v. Board of Medical Examiners

• Citation: 40 Cal.Rptr. 171,229 Cal.App.2d 124
• Court: California Court of Appeals
• Decision Date: 13 August 1964
• Parties: Richard F. SAVELLI, Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent. Civ. 21492.

Page 171

40 Cal.Rptr. 171

229 Cal.App.2d 124

Richard F. SAVELLI, Plaintiff and Appellant, v. BOARD OF MEDICAL EXAMINERS of the State of California, Defendant and Respondent.

Civ. 21492.

District Court of Appeal, First District, Division 1, California.

Aug. 13, 1964.

Rehearing Denied Sept. 4, 1964.

Hearing Denied Oct. 7, 1964.

Hutchinson & Quattrin, J. Albert Hutchinson, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Gerald F. Carreras, Deputy Atty. Gen., San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal from a judgment denying a writ of mandate to compel respondent to permit appellant to take the written examination for license as a physician and surgeon.

Appellant filed an application with respondent for a written examination for a physician's and surgeon's certificate. The application was denied on the ground that appellant was not a graduate of a medical school approved by respondent. Appellant thereupon requested a hearing before respondent, and a hearing was had before a hearing officer on a statement of issues filed pursuant to the Administrative Procedure Act ¹ (Gov.Code, §§ 11370 to 11528, incl.). Appellant was the sole witness at this hearing, and testified as follows: that he was then a licensed drugless practitioner; that he was licensed as a pharmacist in 1928 and practiced as such until 1935 when he enrolled at a college for drugless practitioners; that he was trained in an approved course of instruction totalling Falls, New York, from October 19, 1959 to in 1939 as a drugless practitioner; that he then entered the practice of the profession of drugless practitioner; that in 1951, pursuant to a legislative enactment in 1949 which allowed a drugless practitioner who had 5 years or more of experience to go back to school and complete the necessary courses required for a physician's and surgeon's certificate in a recognized school, he enrolled at Western College of Medicine ² (hereinafter called Western), where he took the courses specified in section 2290 of the Business and Professions Code; ³ that these courses were given by this school only once; that the teachers who taught these courses were licensed doctors of medicine and qualified to teach the subjects; that he completed the course and received from said school the degree of Doctor of Medicine; that prior to the time he entered Western he had made application to both the University of California Medical School and Stanford Medical School, but was not accepted as a student; that he served an internship from July 1, 1959 to October 16, 1959 at Our Lady of Lourdes Memorial Hospital in Binghamton, New York, and at Mount St. Mary's Hospital in Niagara Falls, New York, from October 198 1959 to October 18, 1960; and that the latter hospital was approved by the 'Board of the Medical Association.'

Respondent elected not to cross-examine appellant. It did, however, offer in evidence 9 exhibits which were admitted in evidence without objection. Aside from the pleadings incident to the hearing these consisted of appellant's application and respondent's aforementioned letter of rejection, a previous application filed in 1952; the letter rejecting said application, and the decision of respondent board in the proceeding entitled 'In the Matter of the Statement of Issues against Western College of Medicine, Respondent, No. A-44,' (hereinafter referred to as exhibit 9.) Respondent thereafter made and filed its decision denying appellant's application on the ground that he was not able to present satisfactory evidence that he had complied with the requirements of section 2290 of the Business and Professions Code ⁴ of the State of California. ⁵

Appellant sought a judicial review of the administrative proceedings by filing a petition for writ of mandate in the superior court. By said petition appellant sought a review of respondent's order denying his application to take the subject written examination and prayed for an order directing respondent to recognize or approve Western. As an alternative, in the event the court determined that he was not entitled to the writ of mandate, appellant sought a declaratory judgment determining and declaring certain sections of the Business and Professions Code unconstitutional and void as applied to himself and persons similarly situated. ⁶ The basis of the claim of unconstitutionality is that said statutory provisions are capable of being applied, and have applied with respect to appellant and persons similarly situated, in a 'discriminatory, uncontrolled, capricious, unfair and prejudicial manner * * *.' An alternative writ of mandate issued out of the court below to which respondent made a return by way of motion to strike, demurrer and answer. ⁷ The trial court denied the peremptroy writ, discharged the alternative writ, and determined, in view of such denial, that a declaratory judgment was unnecessary.

The trial court made and filed its findings of fact and conclusions of law. It was not, however, required to make findings of fact because it was not acting de novo, but was required to determine whether the findings of respondent board were supported by substantial evidence in the light of the whole record. Where the substantial evidence rule applies the trial judge does not independently weigh the evidence and make his own findings, but determines a question of law, i. e., whether the evidence is legally sufficient and like questions enumerated in Code of Civil Procedure section 1094.5. (Rudolph v. Athletic Commission, 177 Cal.App.2d 1, 6-8, 1 Cal.Rptr. 898.) The instant case is one brought pursuant to the provisions of section 2174, which, insofar as here material, provides as follows: 'If any school is disapproved by the board or any applicant for examination is rejected by it, then the school or the applicant may commence an action in the superior court against the board to compel it to approve the school or to admit the applicant to examination * * *. In such an action the court shall proceed under Section 1094.5 of the Code of Civil Procedure; provided, however, that the court may not exercise an independent judgment on the evidence.' ⁸ (Emphasis added; see Mann v. Board of Medical Examiners, 31 Cal.2d 30, 41-42, 187 P.2d 1; Akopiantz v. Board of Medical Examiners, 146 Cal.App.2d 331, 336, 304 P.2d 52; Lay v. State Bd. of Osteopathic Examiners, 179 Cal.App.2d 356, 359, 3 Cal.Rptr. 727.) In the present case the findings of the trial judge are not only susceptible of the interpretation that he weighed the evidence, thus exceeding his prerogative, but it is so stated in the recitals of the judgment rendered by him. ⁹

Section 2174 does not authorize a trial court to exercise its independent judgment on the evidence but confines the hearing before such court to the record made before the board. (Lay v. State Bd. of Osteopathic Examiners, supra, 179 Cal.App.2d p. 359, 3 Cal.Rptr. 727.) Its function, therefore, is to determine whether there is substantial evidence before the board to support its findings in the light of the whole record. (Le Strange v. City of Berkeley, 210 Cal.App.2d 313, 320-321, 26 Cal.Rptr. 550; Code Civ.Proc. § 1094.5, subd. (c). Accordingly, in the case at bench, the trial court should have reviewed the evidence adduced before respondent board and the findings made by it in the same fashion that an appellate court reviews the findings of trial courts. The function of an appellate court is to determine whether the evidence, viewed in the light most favorable to the respondent, sustains the findings subject to review, resolving any reasonable doubts in favor of those findings. (Le Strange v. City of Berkeley, supra, 210 Cal.App.2d p. 321, 26 Cal.Rptr. 550.) In making this determination the appellate court must resolve all conflicts in the evidence in favor of the judgment or decision of the tribunal below and indulge in all legitimate and reasonable inferences to support it. (Harris v. Alcoholic Bev. Con. Appeals Bd., 212 Cal.App.2d 106, 113, 28 Cal.Rptr. 74; DeMartini v. Department of Alcoholic Beverage Control, 215 Cal.App.2d 787, 799, 30 Cal.Rptr. 668.) Insofar as the appellate court itself is concerned, the substantial evidence rule obtains whether it is reviewing the findings of the trial court where the lattter has exercised independent judgment, or whether the findings involve the decision of an agency or board where the trial court is not authorized by law to exercise its independent judgment. In the former situation, the appellate court is confined to the evidence received by the trial court; in the latter case it is limited to the evidence in the record before such agency or board. (Le Strange v. City of Berkeley, supra, 210 Cal.App.2d p. 321, 26 Cal.Rptr. 550.)

The erroneous exercise of independent judgment by the trial court in the case at bench in no way inhibits our scope of review. (Harris v. Alcoholic Bev.Con. Appeals Bd., supra, 212 Cal.App.2d p. 113, 28 Cal.Rptr. 74; DeMartini v. Department of Alcoholic Beverage Control, supra, 215 Cal.App.2d p. 798, 30 Cal.Rptr. 668.) It should be here noted, however, that no additional evidence was proffered or adduced in the court below. Therefore, the evidence considered by the trial court was the same as that weighed by respondent board. Accordingly, even if we were called upon to review the record before the trial court in the light of the substantial evidence rule we would be considering the same record as that before both respondent and the court below. Moreover, even though the trial court did weigh the evidence no prejudice is suffered by appellant if the result reached was necessarily an affirmance of the sufficiency of the evidence to support respondent's findings. (Rudolph v. Athletic Commission, supra, 177 Cal.App.2d 1, 8, 1 Cal.Rptr. 898.)

Our review being confined to the record of the proceedings before respondent, we must look to its findings and decision. ¹⁰ Respondent board...