Newsletter 2019-01-03T13:11:44+00:00

Newsletter – January 2019

 Nursing Board Can Issue Probationary Licenses Due to Dismissed Theft Convictions

When the Board of Registered Nursing issues licenses, it can restrict them if the applicants have committed conduct that calls into question their fitness to practice nursing. In a recent case, an applicant challenged a restriction on her license because of her dismissed misdemeanor convictions. (Moustafa v. Board of Registered Nursing, No. A150266 (Ct. App. Dec. 10, 2018).)

Facts of the Case

A woman named Radwa Mohamed Moustafa applied for a registered nurse (R.N.) license from the California Board of Registered Nursing. In her application, she disclosed that she had been convicted of four different misdemeanors, including two for petty theft and one for vandalism. The convictions were later dismissed. As a result, the Board granted her a probationary license because of those convictions and the conduct underlying them.

Ms. Moustafa filed a court case challenging the grant of only a probationary license, not a restricted one. The court said that the Board could not restrict a license because of dismissed convictions based on California Business & Professions Code § 480, subd. (c). This law says that professional boards cannot rely on a dismissed “conviction” (singular) to deny a license. The Board appealed the decision, and the California Court of Appeal heard the case.

Why Did the Court of Appeal’s Decision Disagree?

The Court of Appeal’s decision says that not only the trial court but also the Board erred in several ways. First, the Board should not have relied on dismissed convictions as a reason for making Ms. Moustafa’s license probationary. On its face, Business & Professions Code § 480 prohibits boards from denying any applications based on multiple dismissed misdemeanor convictions. However, a board can consider the conduct underlying dismissed convictions (at least until the law changes on July 1, 2020).

Here, the Board did rely on the conduct underlying Ms. Moustafa’s convictions. It improperly considered the vandalism, however, because “no rational basis existed for the board’s determination that plaintiff’s act of vandalism bore on her fitness to practice nursing”. Her act of removing a vehicle boot was not unprofessional conduct substantially related to nursing. The Board only should have considered the shoplifting activities. But unlike what the trial court said, the Board could restrict her license based on that conduct.

The Takeaway

Professional boards have some discretion to grant probationary licenses rather than unrestricted ones. They cannot, however, deny licenses based only on dismissed convictions. Instead, they can consider the conduct underlying the convictions as long as it actually relates to the applicant’s fitness to practice the profession.

Verdict

“Gratitude makes sense of our past, brings peace for today, and creates a vision for tomorrow.” (Melody Battle)

On December 14, 2018, a Sacramento jury returned a verdict for our client Jason Trobaugh against his former lawyers, Jennifer Schaller and Molsby & Bordner for $513,369.84. The jury found in favor of our client on all 3 causes of action: breach of contract, legal malpractice and breach of fiduciary duty. In spite of a relatively lengthy trial (10 days), the jury was out for less than 6 hours after working their way through a 15 page jury verdict.  The case concerned the Defendant lawyers mishandling of a marital settlement agreement (MSA), which allowed the ex-wife to leave the marriage without assuming responsibility for the community debts. When the ex-wife started enforcing the MSA drafted by the Defendant lawyers, the lawyers blamed their client and then abandoned him when the court ordered the house to be sold. Due to numerous large tax liens (accrued during the marriage), Jason has been unable to refinance the existing loans jointly held with his ex-wife. Even after he “settled” with his ex-wife in 2014, Jason has been in constant post-judgment litigation in the family law court. Jason is on the verge of losing the house he has lived in for over 15 years.

The reception from the jury was heartwarming and affirming.  In spite of all of the Defense attempts to portray our client as a “bad guy,” the jury ignored the noise and stayed focused on why Jason was losing the house. When I left the courtroom Friday afternoon, I was surprised to see all 12 jurors plus the 2 alternates waiting for us. They were so eager to talk about the case and clearly felt empowered to reach a just decision. I have long been an advocate of the jury process and have consistently spoken out against arbitrations; particularly in disputes between consumers and “big business.”

My extended thanks to all who worked tirelessly to make this early Christmas present possible: Jared Walker who ably assisted me as co-counsel even though his wife gave birth to their third child on the second day of trial. My own legal team: Sonia Louie, Tanikqua Clayton, Tim Keaton, Suren Hakobyan and Jonathan Sanders. Court reporter Cynthia Zeller stepped in to report with no notice when the court staff called a sudden strike on the 8th day of trial. Our fabulous experts, Steve Wagner, David Boyd, Kevin McDermott and Ted Israel, who prepared and performed as if this case mattered. And finally, our percipient witnesses, Michelle Lumia, Karin Sable, Lisa Fraas and Ulises Pisano-Diaz, who were able to convey to the jury how important this case has been to Jason.