Mao v. Superior Court (Full Text)

Filed 11/25/08 Mao v. Superior Court CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
—-

C058547

(Super. Ct. No.
03CS000736)

YVONNE MAO,

Petitioner,

THE SUPERIOR COURT OF SACRAMENTO
COUNTY,

Respondent;

MEDICAL BOARD OF CALIFORNIA,

Real Party in Interest.

By this petition, a medical doctor challenges the state’s
decision to discipline her license due to her third criminal
conviction for shoplifting. She asserts the discipline was
wrong because her conviction does not demonstrate a character
flaw detrimental to her ability to practice medicine. She also
claims the state acted outside its jurisdiction, and it imposed
certain conditions in abuse of the state’s lawful discretion.
Except to conclude that one of the imposed conditions that

automatically cancels the doctor’s license without notice and
hearing violates constitutional due process protections, we deny
the requested relief.
FACTS AND PROCEDURAL HISTORY

Facts

The facts are not in dispute. Petitioner Yvonne Mao, M.D.,
is board-certified in internal medicine and nephrology. A
nephrologist treats people who have kidney disease. Nephrology
also encompasses hypertension, diabetes, and infections.
According to Mao, people with kidney disease, especially those
who are on dialysis, are “extremely ill,” and thus require
internal medicine services as well.

In September 2005, Mao stole four body lotion products, one
set of salt and pepper shakers, and four pairs of black socks
from a Marshalls department store. The merchandise was valued
at $54.91. At that time, Mao was earning $160,000 a year.

In October 2005, Mao pleaded no contest to one count of
petty theft after previously having been convicted of theft.
(Pen. Code, §§ 666/484, subd. (a).) The prior convictions were
two separate thefts, of which she was convicted in 1996. (Pen.
Code, § 484, subd. (a).)

The trial court suspended sentence and placed Mao on
summary probation for two years. It ordered her, among other
conditions, to serve one day in the county jail with credit for
time served, pay restitution fines and fees totaling $130, and
perform 20 days of community service. The court also ordered
Mao to stay away from Marshalls stores.

Proceedings before the Medical Board

In September 2006, the executive director of the Medical

Board of California (Board), the real party in interest, filed
an accusation against Mao seeking to revoke or suspend her
license due to the October 2005 conviction. The accusation
alleged Mao’s act of theft was an “offense substantially related
to the qualifications, functions, or duties of a physician” and
thus qualified as “unprofessional conduct” subject to discipline
by the Board. (Bus. & Prof. Code, §§ 2234, 2236.)1

This was not the first time Mao had been before the Board
for disciplinary reasons. The 2006 accusation alleged facts
concerning a prior disciplinary matter for the Board’s
consideration in reaching a decision on the current offense.
Mao initially applied for a license to practice medicine in
1999. The Board denied her application. Shortly thereafter,
the Board issued a statement of issues that accused Mao of
having been convicted twice of shoplifting and of falsely
denying on her 1999 application that she had ever been convicted
of a misdemeanor. Pursuant to a stipulated settlement reached
in 2000, Mao admitted the allegations, including the
convictions, and the Board issued her a probationary license and
placed her on probation for four years. As conditions, the
Board required Mao to perform 120 hours of community service,
complete an ethics course, and undergo psychiatric treatment.

1
Further undesignated statutory references are to the
Business and Professions Code.

In compliance with the terms of her probation, Mao met with
Dr. Jason Graber, a psychiatrist, for nine months in 2002 for
psychotherapy sessions. At the end of nine months, Graber
recommended the Board release Mao from any further mandated
psychotherapy. He had found no indication of “psychopathology
or subclinical issues that could pose any threat to patients
under her care.” The Board granted this request, and ultimately
lifted Mao’s probationary status in 2003.

At the administrative hearing on the 2006 accusation,
Officer Marc Pooler of the Los Angeles Police Department
testified for the Board. He arrested Mao at the Marshalls
department store and transported her to the police station.
After reviewing Mao’s criminal history, Pooler told her he had
discovered her past arrests. He read her her Miranda2 rights,
and she waived them. He asked her how many times she shoplifts.
She told him she does it once or twice a month.

Pooler recalled that during the interview, Mao was very
concerned that the matter be processed quickly. She was
traveling to China, and her plane was scheduled to leave within
two or three hours.

Mao testified in her defense. She initiated therapy after
her arrest to understand why she engaged in shoplifting. She
realized she had been raised in a very strict, oppressive
household. Her parents set unreasonably high expectations for

2
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

her, and although she performed extremely well in school, music,
and other activities, she never did well enough for them,
earning only their criticism. In her adulthood, her parents
pushed themselves into her private affairs, asserting their
opinions and pressuring Mao. At the time of her crime, she was
having problems with her boyfriend, and her parents were
pressuring her to get married.

Her shoplifting at Marshalls was not so much a conscious
effort to disobey a law and get back at her parents as it was,
in her opinion, a subconscious “cry for help, saying that I’m
not perfect.” Through therapy, she was encouraged to speak with
her parents, and now they have better and open communication.

She was having difficulty finding a job since her
conviction. At the time of her arrest, she had applied for a
position with Kaiser Permanente where she had previously worked.
Kaiser denied her application because of her conviction and the
pending accusation. She was currently unemployed and had no
prospects of employment.

She testified she has never done anything dishonest in her
professional life. In her opinion, the shoplifting was an
isolated, aberrant incident related to her personal life. It
had no effect on how she cared for her patients or handled her
administrative duties. She stated she would not shoplift again
because now she understands why the behavior occurred and has
learned how to communicate with her parents and express her
emotions in healthy ways.

Regarding the events on the night of her arrest, Mao stated
she did not waive her Miranda rights. She also denied telling
the officer she shoplifted once or twice a month, and she again
denied it in this hearing. She claimed she had shoplifted only
three times since graduating from college in 1994, and she was
arrested each time.

Mao’s therapist, Dr. Dortee Farrar, a marriage and family
psychotherapist, also testified, but she was not allowed to
provide expert testimony because counsel failed to comply with
the expert witness exchange requirements of section 2334.
Farrar stated Mao met with her for nine sessions. Her last
session with Mao was about two weeks before the administrative
hearing. Mao was no longer her patient. Farrar believed there
was more work for Mao to accomplish with her, but it was Mao’s
decision whether to continue.

Adopting the administrative law judge’s decision, the Board
on March 1, 2007, determined that cause existed to discipline
Mao. It found her misconduct was substantially related to the
practice of medicine. The Board revoked Mao’s license, stayed
revocation, and placed her on probation for five years.

As conditions of probation, the Board required Mao to
undergo a complete psychiatric evaluation, and to undergo
psychotherapy treatment until the Board deemed it no longer
necessary. (Conditions 2 and 3.) If, prior to completing
probation, Mao was found to be mentally unfit to resume the
practice of medicine without restrictions, the Board would
retain continuing jurisdiction over her license, and the period

of probation would be extended until the Board determined she
was mentally fit to resume practicing without restrictions.

The Board also imposed a condition that would automatically
cancel her license. (Condition 9.) Under this condition, if
Mao did not practice medicine for a total of two years during
the pendency of her probation, her license “shall be
automatically cancelled.” This apparently would occur without
notice or hearing.
Proceedings before the trial court

Mao petitioned the superior court for a writ of
administrative mandamus to vacate the Board’s decision. She
contended the Board erred in determining her conviction was
substantially related to the practice of medicine. She claimed
the discipline imposed was excessive and impermissible,
particularly because it was more severe than her criminal
probation. She asserted the Board erred by admitting into
evidence, and relying upon, the 2000 stipulated settlement. She
also challenged the legality of conditions 2, 3, and 9.

The trial court denied Mao’s petition. It concluded Mao’s
crime was substantially related to the practice of medicine.
Paraphrasing language from Windham v. Board of Medical Quality
Assurance (1980) 104 Cal.App.3d 461, 470 (Windham), the court
wrote: “It is difficult to compartmentalize dishonesty in such
a way that a person who is willing to steal from a retail store
may yet be considered honest in her dealings with her patients.”

The court also concluded Mao had not established the Board
abused its discretion by placing her on probation for five

years. The court was not concerned that the medical probation
was longer than Mao’s criminal probation. License discipline
serves a different purpose than do criminal penalties.
Moreover, Mao’s recidivism called into question her judgment and
showed “‘an inability or unwillingness to follow the law.’
(Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 771-772
[Griffiths].)”

The court rejected Mao’s challenge to the Board’s
consideration of the 2000 stipulated settlement. The stipulated
settlement provided that the admissions it contained were for
use only in Medical Board proceedings, which this was.

The court also rejected Mao’s challenge to conditions 2 and
3. Mao had brought the issue of her psychological condition
into this matter as a defense by presenting evidence of her
reasons for shoplifting and her history of therapy. The Board
did not abuse its discretion by imposing these conditions.

The court did not address Mao’s challenge to condition 9.
This writ petition

Mao filed this petition for writ relief in our court.3 She

contends for the first time in this matter that the Board lacked
jurisdiction to discipline her because its action was based on a
charge that was not made in its accusation.

She also contends the trial court erred by:

3
A petition for extraordinary writ is the exclusive means of
reviewing a trial court’s decision on the propriety of the
Medical Board’s revoking, suspending, or restricting a license.
(§ 2337.)

1. Determining her shoplifting was substantially related
to the practice of medicine so as to justify discipline; and

2. Determining the discipline imposed by the Board,
including conditions 2, 3, and 9, did not constitute an abuse of
discretion.

We ordered issuance of an alternative writ, and we now turn
to the merits of her arguments.
DISCUSSION
I
Jurisdiction to Discipline

Mao claims the Board lacked jurisdiction to discipline her
because the charge on which she was actually disciplined was not
alleged in the Board’s accusation against her. She asserts the
only basis for discipline alleged in the accusation was her
conviction pursuant to section 2236, subdivision (a). That
statute reads in pertinent part: “A conviction of any offense
substantially related to the qualifications, functions, or
duties of a physician or surgeon constitutes unprofessional
conduct within the meaning of this chapter. . . .” (§ 2236,
subd. (a).)

The Board’s decision, however, states she is being
disciplined pursuant to section 2234, subdivision (e), as well
as section 2236, subdivision (a). Section 2234 authorizes the
Board to take action against a licensee charged with
unprofessional conduct. Subdivision (e) of section 2234 defines
“unprofessional conduct” to include “[t]he commission of any act
involving dishonesty or corruption which is substantially

related to the qualifications, functions, or duties of a
physician and surgeon.”

Mao asserts the Board relied upon the unpleaded statute,
section 2234, as the basis of its decision instead of the
statute pleaded in the accusation, section 2236. This was
demonstrated, she claims, by the Board’s reliance on the
arresting officer’s testimony as opposed to the bare fact of
conviction to reach its decision.

We disagree with Mao’s assertion of lack of jurisdiction.

A challenge to the Board’s jurisdiction is a question of
law we may consider even though Mao did not raise it before the
Board or the trial court. (Gilliland v. Medical Bd. (2001) 89
Cal.App.4th 208, 219.) We decide the issue de novo. (Id. at
pp. 211-212.)

An accusation is a written statement of charges that
initiates a hearing to determine whether a license should be
revoked. (Gov. Code, § 11503.)4 To be valid, the accusation
“shall set forth in ordinary and concise language the acts or
omissions with which the [licensee] is charged, to the end that
the [licensee] will be able to prepare his defense. It shall
specify the statutes and rules which the [licensee] is alleged
to have violated, but shall not consist merely of charges

4
Proceedings against a licensee by the Medical Board are
conducted in accordance with the Administrative Procedure Act,
Government Code section 11500 et seq. (APA). (§ 2230, subd.
(a).) That act sets forth an accusation’s purpose and the
requirements for its validity.

phrased in the language of such statutes and rules.” (Gov.
Code, § 11503.)

The requirement to set forth the acts, omissions, and
statutory violations alleged against the licensee “is a
statutory predicate for disciplinary action. It follows that
the finding must be based upon the accusation. . . .
Disciplinary action cannot be founded upon a charge not made.”
(Wheeler v. State Bd. of Forestry (1983) 144 Cal.App.3d 522,
527.)

However, Government Code section 11503 does not require
technical perfection. “Under the liberal rules of
administrative pleading it is required only that the licensee be
informed of the substance of the charge and afforded the basic,
appropriate elements of procedural due process.” (Shea v. Board
of Medical Examiners (1978) 81 Cal.App.3d 564, 576.) “Section
11503 of the Government Code requires that the charges be set
forth in ordinary and concise language so that the acts with
which the licensee is charged will be sufficiently clear so that
the person charged will be able to prepare his defense. In
these administrative proceedings the courts are more interested
with fair notice to the accused than they are to adherence to
the technical rules of pleading.” (Wright v. Munro (1956) 144
Cal.App.2d 843, 848.)

“The first consideration under that statute should be
whether or not the [licensee] was in fact able to prepare his
defense after reading the accusation.” (Rolfe v. Munro (1958)
165 Cal.App.2d 726, 730.) There is no doubt Mao was able to

prepare her defense upon reading the accusation. Indeed,
because she admitted her conviction, the only defense available
to her under either section 2234, subdivision (e), or section
2236, subdivision (a), was that her act was not substantially
related to the qualifications, functions, or duties of a
physician. And this was in fact the defense she presented.

Most of Mao’s testimony concerned her attempts to
understand why she had shoplifted and her assurances that the
behavior was not related to her practice of medicine. Asked if
she had ever done anything dishonest in connection with her
professional life, Mao replied, “Never.” Asked how she
“compartmentalizes” that, she replied, “Well, I think it’s an
issue related to my personal life, that I am and have dealt
with, but it has no effect; it has never had any effect on my
professional life.”

Asked how she could “draw the line” between her practice of
medicine and what had happened, Mao said, “Well, what I did in
my personal life was something that was aberrant. It was not
something that carried over to my professional life whatsoever.
In every other way I’m professional. I care about my patients,
and I would never do anything to harm them. I’ve never been
guilty of fraud in billing. It was just something that was
isolated.” Mao’s defense did not go to the fact she was
convicted; it attempted to show her actions were not related to
her practice of medicine.

During closing argument, Mao’s attorney made the same
points. He argued that “essentially where this case comes, the

nexus between this offense and the practice of medicine needed
to be demonstrated, and it wasn’t.” Relying on Grannis v. Board
of Medical Examiners (1971) 19 Cal.App.3d 551, 561, counsel
quoted: “‘Likewise here, the private conduct of a man who is
also a physician, is the proper concern to those who license him
only to the extent that it marks him as a physician. Where his
professional achievement is unaffected, where the patient
community is not placed in jeopardy, his private acts are his
own business and are not the basis for discipline.’” It is
obvious Mao’s defense went to the accusation that her conduct,
besides resulting in a criminal conviction, was substantially
related to her practice of medicine, the essence of what she was
charged by the Board.

Most significantly for our purposes, it was the Board’s
accusation that put Mao on notice of this defense. Although the
accusation stated the cause for discipline arose under section
2236 for her criminal conviction, it also stated the Board’s
jurisdiction to discipline her was derived from both section
2236, subdivision (a), and section 2234, subdivision (e). The
accusation recited both of those statutes verbatim. For Mao to
claim now for the first time that she was disciplined based on a
statutory claim not contained in the accusation approaches the
frivolous. We reject her assertion.
II
Relationship of Conviction to Practice of Medicine

Mao claims the trial court and the Board erred by
determining her conviction was substantially related to the

qualifications, functions, or duties of a physician, a finding
required for imposing discipline in this case. She argues the
finding of a nexus between her shoplifting conviction and her
practice of medicine is based solely on speculation. She
asserts there is no evidence showing her behavior will adversely
affect the patient community. We disagree.

Whether Mao’s crime was substantially related to her
practice of medicine is a question of law for this court’s
independent determination. (Gromis v. Medical Board (1992) 8
Cal.App.4th 589, 598.) We look to determine whether a “logical
connection or nexus exists” between the conviction and Mao’s
fitness to practice medicine. (Griffiths, supra, 96 Cal.App.4th
at p. 762.) We conclude such a connection exists.

It has long been settled that dishonesty by a physician is
substantially related to the practice of medicine and is grounds
for discipline. (Krain v. Medical Board (1999) 71 Cal.App.4th
1416, 1424-1425 (Krain) [upheld discipline based on doctor’s
guilty plea to soliciting the subornation of perjury]; Windham,
supra, 104 Cal.App.3d at pp. 469-470 [upheld discipline based on
doctor’s federal conviction of income tax evasion]; Matanky v.
Board of Medical Examiners (1978) 79 Cal.App.3d 293, 305-306
(Matanky) [upheld discipline based on doctor’s federal
conviction of 39 counts of submitting false Medicare claims].)

The act of dishonesty need not arise out of the practice of
medicine to establish the required nexus. “For a nexus to exist
between the misconduct and the fitness or competence to practice
medicine, it is not necessary for the misconduct forming the

basis for discipline to have occurred in the actual practice of
medicine. ‘[The Medical Board] is authorized to discipline
physicians who have been convicted of criminal offenses not
related to the quality of health care.’ [Citation.]”
(Griffiths, supra, 96 Cal.App.4th at p. 771.)

For example, the Windham court rejected the argument that
personal income tax evasion did not reflect upon a doctor’s
professional qualifications: “[W]e 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, supra, 104 Cal.App.3d at p. 470.)

The Krain court reached the same conclusion regarding a
conviction for subornation of perjury: “[T]he 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.” (Krain, supra, 71 Cal.App.4th
at p. 1425.)
Matanky bluntly made the same point: “A physician can be

subject to disciplinary action notwithstanding his technical
competence or skill under circumstances where his moral
character is in dispute. [Citations.] Intentional dishonesty,
especially involving moral turpitude, demonstrates a lack of
moral character and satisfies a finding of unfitness to practice
medicine.” (Matanky, supra, 79 Cal.App.3d at p. 305.)

“A physician who commits income tax fraud, solicits the
subornation of perjury, or files false, fraudulent insurance
claims has not practiced medicine incompetently. Nonetheless
that physician has shown dishonesty, poor character, a lack of
integrity, and an inability or unwillingness to follow the law,
and thereby has demonstrated professional unfitness meriting
license discipline.” (Griffiths, supra, 96 Cal.App.4th at pp.
771-772.)

The same can be said of Mao. Her behavior demonstrated a
lack of moral character so essential for any medical doctor.
She now has three separate arrests and convictions for
shoplifting. Moreover, she informed the arresting officer that
she shoplifts once or twice a month. Such behavior, if it has
not already, will certainly interfere with her ability to care
for her “extremely ill” patients. Indeed, at the time of her
arrest, she was more concerned about making her scheduled flight
to China than she was about the ramifications her actions would
have on her profession. Due to this background, it is not clear
that she can be trusted with exactness in her dealings with
people as she practices medicine.

Mao accuses the Board of concluding her conviction was
substantially related to the practice of medicine based on
speculation and not proof of her future behavior. On the
contrary, the truth of that conclusion “rests four-square on
common sense.” (Windham, supra, 104 Cal.App.3d at p. 469.) The
Board need not wait for her to commit another theft before it

takes action to protect the public. (Griffiths, supra, 96
Cal.App.4th at p. 772.)

Her thefts have demonstrated an unfitness to practice
medicine. The doctor-patient relationship “is based on utmost
trust and confidence in the doctor’s honesty and integrity.”
(Windham, supra, 104 Cal.App.3d at p. 470.) “There is no other
profession in which one passes so completely within the power
and control of another as does the medical patient.” (Shea v.
Board of Medical Examiners (1978) 81 Cal.App.3d 564, 578.)
Mao’s actions demonstrate a lack of character that calls into
question her ability to act with the highest level of integrity
in assuming control over a patient. Given the Board’s charge of
protecting the public from such physicians, there is little
doubt that Mao’s theft conviction is substantially related to
her fitness to practice medicine.5
III
Imposed Discipline as Abuse of Discretion

Mao claims the discipline imposed on her — five years of
supervised probation, continuing psychiatric evaluation and

5
Mao also faults the Board and the trial court for relying
on the 2000 stipulated settlement in which she admitted a
substantial relationship existed between her two prior theft
convictions and the practice of medicine. She claims Evidence
Code section 1152 barred the stipulation’s admission into
evidence. However, the stipulation itself provided that her
admission of a substantial relationship was for the purpose of
any other proceeding in which the Board was involved. Moreover,
we have reached our conclusion of a substantial relationship
without relying on the stipulation. We need not entertain this
argument further.

treatment (conditions 2 and 3), and automatic termination of
license for non-use (condition 9) — is grossly excessive and an
abuse of discretion. We uphold the Board’s imposition of
conditions 2 and 3, but we conclude condition 9 is not
reasonable and violates due process requirements.6

“In reviewing the severity of the discipline imposed, we
look to the correctness of the agency’s decision rather than
that of the trial court. We review the actions of the Medical
Board to determine whether the discipline imposed constituted a
manifest abuse of discretion. [Citations.] ‘The penalty
imposed by an administrative body will not be disturbed in
mandamus proceedings unless an abuse of discretion is
demonstrated. [Citations.] Neither an appellate court nor a
trial court is free to substitute its discretion for that of the
administrative agency concerning the degree of punishment
imposed. [Citation.]’ (Barber v. State Personnel Bd. (1976) 18
Cal.3d 395, 404.)

“‘In reviewing the exercise of this discretion we bear in
mind the principle “courts should let administrative boards and
officers work out their problems with as little judicial
interference as possible. . . . Such boards are vested with a
high discretion and its abuse must appear very clearly before

6
The Board asks us to take judicial notice of its “Manual of
Model Disciplinary Orders and Disciplinary Guidelines,” which
include the conditions imposed here. We grant the request, but
in no way does our grant imply our approval of the conditions in
this case. (Evid. Code, §§ 452, subd. (b), 453.)

the courts will interfere.” [Citations.]’ (Talmo v. Civil
Service Com. [(1991)] 231 Cal.App.3d 210, 230.)

“In medical discipline cases, the ‘highest priority’ is
protection of the public. (Bus. & Prof. Code, § 2229, subds.
(a) & (c)); cf. Talmo v. Civil Service Com., supra, 231
Cal.App.3d 210, 230 [‘the “overriding consideration” in cases of
public employee discipline “is the extent to which the
employee’s conduct resulted in, or if repeated is likely to
result in, ‘harm to the public service.’”’].)” (Landau v.
Superior Court (1998) 81 Cal.App.4th 191, 217-218.)

With this standard in mind, we review each challenged
element of the imposed penalty.

A.
Five-year probation term

Mao claims five years of administrative probation for a
misdemeanor shoplifting conviction is an abuse of discretion,
particularly in light of the fact the criminal court sentenced
her to only two years summary probation notwithstanding her two
prior shoplifting convictions. She asserts the discipline is
designed to punish her, rather than protect the public.

We disagree. Mao omits from her argument the fact that
this is the second time she has been disciplined by the Board
due to a conviction of theft. The first occasion, occurring
when she applied for her license to practice, resulted in a
four-year term of probation, a term to which she agreed as part
of a stipulated settlement. We see no abuse of discretion by
the Board imposing a five-year term of probation for her repeat

offense. This is particularly so in light of evidence before
the Board that she continues to shoplift once or twice a month.
B.

Continuing psychiatric evaluation (conditions 2 and 3)

Conditions 2 and 3 require Mao to undergo a complete
psychiatric evaluation and to undergo continuing psychotherapy
treatment. If, prior to the five-year probation period’s
expiration, Mao is determined to be mentally unfit to practice
medicine, the Board will extend the probation until it
determines Mao is mentally fit to practice.

Mao claims these conditions are unlawful and arbitrary.
She argues they have no rational relationship to the charge
levied against her of unprofessional conduct due to a criminal
conviction. Moreover, she asserts there was no proof of a
mental impairment, allegedly a prerequisite before the Board can
order an examination for mental illness. (§ 820.)

Conditions and terms of probation imposed by the Board as
part of a stay of execution of revocation “shall be just and
reasonable in the light of the findings and decision.” (Gov.
Code, § 11519, subd. (b).) The findings must support the
decision, and substantial evidence must support the findings.
(See Topanga Assn. For A Scenic Community v. County of Los
Angeles (1974) 11 Cal.3d 506, 509-510.)

The Board’s findings support the imposition of conditions 2
and 3. Mao herself placed her shoplifting within the context of
a psychological problem. She did not steal because she had no
money. She stole, in her opinion, because of deep-seated stress
and conflict in her relationship with her parents. She found

her first round of therapy after her first set of convictions to
be “helpful and introspective in many areas of [her] personal
life.” Almost instinctively, she voluntarily returned to
therapy after committing her last act of theft in order to find
insights into why this had occurred and to learn how to redirect
her behavior in positive ways. Her current counselor testified
they had achieved progress in their counseling sessions, but she
believed more work needed to be done. Mao, however, was no
longer her patient.

Under these circumstances, conditions 2 and 3 were
reasonable and just. The evidence indicated Mao’s behavior was
linked to psychological bases and was correctable with
psychological treatment. The Board did not abuse its discretion
in requiring Mao to undergo continuous therapy until she is
deemed mentally fit to practice medicine without restriction.

Furthermore, section 820 does not bar the conditions.
Under that statute, the Board may order a doctor to undergo
psychological examinations when it appears the doctor may be
unable to practice her profession safely because her ability to
practice is impaired due to mental illness. The examination
section 820 authorizes, however, is investigatory, not
adjudicatory. “In other words, the psychiatric examination
[authorized by section 820] is an investigatory tool, the
results of which may be used by the Board to determine if formal
adjudicatory proceedings will be brought.” (Alexander D. v.
State Bd. of Dental Examiners (1991) 231 Cal.App.3d 92, 97.)
Here, the examination is required as a condition of probation in

lieu of revocation following formal adjudicatory proceedings.
Nothing in the statute limits the Board’s adjudicative
authority. The Board did not abuse its discretion by imposing
conditions 2 and 3.
C.

Automatic cancellation of license (condition 9)

Condition 9 is designed to prevent Mao from avoiding the
conditions of probation simply by not practicing until the
probation period expires. Under this condition, Mao, while
residing in California, must notify the Board if she stops
practicing medicine in California for any reason. She must
provide notice within 30 days before she stops practicing, and
also within 30 days before she returns to practice. Any period
of time in which she does not practice will not count toward
reducing the probation term and will not relieve her of her
responsibility to comply with probation. If she fails to
practice medicine for a total of two years while residing in
California, her license “shall be automatically cancelled.”

Mao challenges the automatic cancellation provision. She
claims the Board has no authority to cancel a license where the
licensee is paying her license fees and complying with
continuing education requirements. In other words, “there is no
requirement that a physician practice under his or her license
to retain it.” Mao also claims the automatic cancellation
provision violates her due process rights to notice and a
hearing before her license may be cancelled.

The Board argues condition 9 prevents a disciplined doctor
from defeating the terms of probation by taking a self-imposed

vacation until sufficient time has passed for her to apply for
termination of probation. If she does not comply with condition
9, the Board argues, “[I]t is elementary that her revocation
should immediately go into effect.”

We conclude the automatic cancellation clause is not a
reasonable condition. If the Board’s purpose is to ensure Mao
does not sit out her probationary term, it accomplished this
purpose by declaring such time would not reduce the term. No
matter how long she chooses not to practice medicine, she will
still be obligated to practice medicine under the terms and
conditions of her probation when she resumes practice.
Automatically canceling the license does not further the Board’s
purpose.

More significantly, the Board cannot revoke Mao’s probation
and cancel her license without notice and a hearing. An
individual must be afforded notice and an opportunity for a
hearing before being deprived of an occupational license.
(Ralph Williams Ford v. New Car Dealers Policy & Appeals Bd.
(1973) 30 Cal.App.3d 494, 500-501.)

Her prior notice leading to the current stayed revocation
does not satisfy due process required for future violations.
That notice was for her past violations. She is entitled to
notice if her license is to be revoked based on new violations,
such as a violation of the terms of probation. Condition 9’s
automatic cancellation clause does not comply with this
requirement. Mao is entitled to a writ striking that clause.

DISPOSITION
Mao’s petition for writ of mandate is granted in part. A

writ of mandate shall issue directing the superior court to
grant Mao’s petition for writ of administrative mandamus limited
solely to striking the automatic cancellation clause in
condition 9 of the Board’s decision of March 1, 2007. In all
other respects, the petition for writ of mandate is denied.

The parties shall bear their own costs on this review by
extraordinary writ proceedings.

NICHOLSON , J.

We concur:

SCOTLAND , P. J.

CANTIL-SAKAUYE , J.