Galvin v. Veterinary Medical Bd

Galvin v. Veterinary Medical Bd

Filed 5/23/06 Galvin v. Veterinary Medical Bd. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHARLES E. GALVIN, DVM, Plaintiff and Respondent, v. VETERINARY MEDICAL BOARD STATE OF CALIFORNIA, Defendant and Appellant.

A110545 (Marin County Super. Ct. No. CV 032261)

I. INTRODUCTION

This is an appeal by the California Veterinary Medical Board (appellant or Board) from a superior court judgment granting a petition for a writ of administrative mandamus to set aside the Board’s decision to revoke the veterinary license and veterinary premises permit of Charles E. Galvin, DVM (respondent or Galvin). In a prior appeal (Charles E. Galvin, DVM v. Veterinary Medical Board State of California (Dec. 9, 2004, A104742) [nonpub. opn.]), this court reversed and remanded the judgment to permit the trial court to issue a statement of decision. In so doing, the trial court affirmed its earlier rulings in their entirety. In this appeal, the Board contends (1) the trial court failed to properly exercise its independent judgment; (2) the judgment is not supported by substantial evidence; (3) the trial court erred in reversing the administrative law judge’s credibility determinations; and (4) the trial court erred in awarding attorney’s fees on remand. We will reverse the judgment and remand to the trial court for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND[1]

A. The Administrative Proceedings

Kerry Barlogio, Nicole Wallace, Collette Bennett, Nichole Hoeppner, and Jennifer Bell worked in Galvin’s veterinary clinic at various times between July 1993 and June 1999, principally as veterinary assistants. None had significant veterinary training or experience prior to being hired.

In 1999, after all of these employees had discontinued working at the clinic, they gathered together to discuss the difficulties they had experienced in working for Galvin. They decided to sue Galvin for work-related matters. They also lodged complaints against him with various regulatory agencies, including the Marin Humane Society. These complaints alleged a number of instances of animal abuse and cruelty, as well as violation of laws and regulations related to the practice of veterinary medicine and the maintenance of a veterinary clinic.

In December 2002, a six-day administrative hearing was held before an administrative law judge (ALJ). A number of witnesses testified for the Board and for Galvin.

The evidence demonstrated that Galvin has been a licensed, practicing veterinarian for 33 years. He has operated the Veterinary Hospital of Ignacio in Novato for the past 24 years. He has hundreds of loyal clients who have been bringing their animals to his clinic for years, and is well regarded by pet owners and breeders, as evidenced by a multitude of letters submitted by clients. He has the reputation of being particularly skilled at diagnosing illness in birds.

There was testimony regarding the restraint of animals and birds in order for a veterinarian to examine them and administer treatment. The appropriate restraining techniques vary depending on the level of resistance of the animal. When an animal is cooperative, it may only need to be held gently. With a resistant or struggling animal, the restraint must be more forceful to accomplish the purpose for the visit as well as to prevent injury to the animal, the veterinarian, and the staff. Veterinarians often have staff called holders who hold the animal while the veterinarian examines and treats the animal.

Ann Lesch-Hollis, DVM, testified as an expert witness for the Board on the standard of care in the practice of veterinary medicine in California and whether certain conduct amounts to cruelty to animals or unprofessional conduct. She stated that it is never appropriate to punish, threaten or frighten an animal because such conduct is not designed to restrain. She stated that a veterinarian must use the least force necessary to achieve the required restraint. It is never appropriate to choke an animal, she testified, because there are always less violent and less forceful techniques that can be used, and because choking an animal threatens and frightens the animal. In addition to petting, giving cookies to divert the animal’s attention, and having one person divert the animal while another examines or provides treatment, Dr. Lesch-Hollis stated that owners of aggressive animals can be advised to give the animal a sedative before the appointment and to use a muzzle. With a very dangerous dog, one can put a slip-leash around its neck, thread the leash through the crack between a door and the door frame on the hinged side, and pull the dog’s nose up to the crack, thereby immobilizing the dog’s head and preventing it from being able to bite. With any use of a slip leash, the leash must be made of nylon or a smooth material so that the dog can relieve the pressure by discontinuing its resistance. It is never appropriate to use a leash made of rough material that will tighten around a dog’s neck but will not immediately loosen when the dog stops pulling. She stated that it is not appropriate to hit an animal with either an open hand or a closed fist unless it is necessary in defending oneself from an attack. Hitting causes animals to be fearful, and there are almost always less forceful and violent means of restraint. To restrain a cat, one can hold it by the scruff of its neck with one hand and the scruff of skin at the base of its tail with the other hand. Another technique is to wrap the cat in a towel. Both of these techniques require one person to hold the cat while the other person examines and administers treatment. As with dogs, the cat’s owner can administer a sedative prior to the appointment.

Galvin testified that he pets animals and gives them treats to obtain their cooperation. He said that on rare occasions it is necessary to use force to restrain a dangerous or unruly pet. Among the techniques Galvin said he uses are a muzzle, stretching a cat out on its side, taping a pet’s front and rear feet together, forcing a pet into a corner to restrict movement, and swatting a pet with an open hand to startle the animal and get its attention. On rare occasions, when a cat becomes extremely violent, Galvin grabs it quickly, throws it into a cage, and deals with it later. On extremely rare occasions, when a large and powerful dog is being difficult, Galvin stated that he will hit the dog with a closed fist. Another technique Galvin uses on extremely rare occasions, when a dog is attacking him or when a fearful or unruly puppy is trying to bite him, is a choke hold to gain control and dominance over the dog. It is Galvin’s opinion that it is appropriate to choke a dog to reduce its air supply until the dog becomes weakened. He estimated using a choke hold no more than three times out of every 10,000 examinations. Choking a dog often causes it to urinate and/or defecate and to become submissive. Galvin then pets the dog to reinforce the submissive behavior. When a dog is particularly resistant, Galvin may have to choke it a second time. Galvin opined that choking is a widely recognized veterinary technique, but stated that he did not learn the technique in veterinary school and has never read any textbook or journal article in which it was recommended. Galvin stated that he never uses more force than that necessary to restrain an animal.

Two of Galvin’s former assistants, Collette Bennett and Nichole Hoeppner, testified regarding an incident involving a 150-pound Malamute dog in approximately January of 1999. They were holding the dog so Galvin could administer an injection. Nichole Hoeppner testified that she and Collette had trouble holding the squirming dog still. Galvin “started getting really mad” at them and the dog, and said, “‘I don’t have time for this shit.’” She said he “pulled his hand back and hit[] the dog twice on the forehead,” and that the dog fell limp into her arms. Collette Bennett testified that Galvin “punched the dog with a closed fist, like a hammer.” The dog cowered, and Galvin administered the injection. Jennifer Bell testified that she had seen Galvin forcefully hit dogs in the head with a closed fist. Dr. Lesch-Hollis testified that hitting a dog in the head with a closed fist would be practicing below the standard of care, cruel to the animal, and unprofessional conduct.

Galvin acknowledged having struck a dog with his fist because “some dogs need correction.” In a hand-written statement, Galvin described using “a closed fist” on large and difficult dogs on “extremely rare occasions.” Captain Cindy Machado, Animal Service System Director with the Marin County Humane Society, went to Galvin’s office to discuss the former employees’ allegations against him. She testified that Galvin admitted to “methods such as hitting dogs with his fist,” hitting them with an open hand, “throwing cats in the cages, choke-holding large dogs to the point where they were unconscious, [and] slamming animals into the cages . . . .” She was very concerned by his description of these handling methods as “standard practice,” and his attitude that it was “okay to treat animals that way.”

In approximately June of 1999, Galvin provided treatment to a Rottweiler dog named Max who suffered from lethargy, vomiting and diarrhea. Jan Peterson,[2] who was one of Galvin’s veterinary assistants, was present in the room to assist Galvin. The dog bit Galvin on the hand. Galvin began swearing at the dog, saying “he was going to show the dog that the dog would never bite anybody again.” Galvin put a rope noose around the dog’s neck and dragged the dog outside. Peterson testified that one of the noose ropes was tied to a cage and that Galvin held the other rope in his hand. She could tell that Galvin was choking the dog “[b]ecause he was pulling the rope and yanking the rope. And it was tied to one end and he had the noose-rope at the other end.” The dog passed out and stopped breathing. Peterson testified that, at that point, Galvin started kicking the dog and said, “You better not die on me, you mother fucker.” He carried the dog to the surgery room and resuscitated it. The dog survived.

Galvin admitted to choking the dog three times, until it passed out and stopped breathing. Galvin then clarified that he did not choke the dog; rather, the dog, “by pulling against the rope, choked himself.” Galvin denied using profanity and kicking the dog. Galvin stated that he was angry during this incident, but that his anger had nothing to do with the dog. Galvin described his conduct as, “Not only appropriate, but extremely skilled.”

In the hand-written statement Galvin provided to Captain Machado, Galvin stated that “the leash was held in the air resulting in a choking of the pet. The pet became weakened by this long enough to place a muzzle on it.” Captain Machado testified that she observed “rope twine leashes” while at Galvin’s facility, and stated that it would be inappropriate to use such leashes for handling animals.

In his deposition, Galvin stated that Max “[b]ecame unconscious by pulling against [Galvin] choking himself.” Galvin acknowledged having pulled the Rottweiler’s leash against the door of the cage “quite [] roughly.”

Dr. Lesch-Hollis testified that choking a dog into unconsciousness falls below the standard of care because it is an inappropriate form of restraint and harms the animal. She further testified that putting a rope-noose leash on a dog and pulling the leash until the dog loses consciousness constitutes “extreme cruelty to [the] animal[].

In approximately April of 1994, Galvin was vaccinating a chocolate Labrador mix puppy. Galvin stated the puppy “had suddenly become berserk and was being very nasty,” and that he held the puppy with his hands around its neck and applied firm pressure to “reduce the oxygenation slightly.” The puppy urinated and defecated while Galvin held it in the sink. Galvin stated that this was “an appropriate technique for calming a puppy of this nature.”

In the hand-written statement he provided to Captain Machado, Galvin stated: “On extremely rare occasions, the use of a choke hold is used to gain control of an attacking pet (dogs only) or to gain a dominant control of a fear-biting or particularly aggressive puppy. This often results in a struggle and also urination and defecation for brief period of time and then usually results in submissive behavior. The force is then stopped and the pet is praised and petted for proper behavior. Sometimes it has to be repeated in a particularly nasty pet. Safety is a big issue in the veterinary workplace. Again, this technique is rarely used (1-3 x/year - I see 10,000 patients per year). It isn’t pretty. It does not result in physical damage to the pet. A non-understanding employee or client is sometimes offended. Usually an explanation leads to understanding.”

Dan Marrin, who was called as a witness for Galvin, was assisting Galvin with the puppy. He observed Galvin grab the puppy under the jaw and hold the puppy over the sink for about 20-30 seconds. The puppy began urinating and defecating after Galvin grabbed it around the neck. He stated that he was concerned about this incident and asked Galvin about it afterwards. He was satisfied with Galvin’s explanation.

Nikki Wallace testified that she saw Galvin holding the puppy “in the air with two hands around the neck choking,” and that “[i]ts legs were flapping all around and it was going to the bathroom all over itself and all over the sink.”

Dr. Lesch-Hollis testified that choking a puppy violates the standard of practice, and it conditions the dog to fear the animal hospital or the clinician. She also testified that choking a frightened puppy is “extremely cruel.”

Nikki Wallace testified that, in approximately December of 1997, Galvin trimmed the nails of a very sick Blue Fronted Amazon parrot before treating it. The trimming caused the nails to bleed. Galvin was rushing and the bird’s nails continued to bleed despite his hasty attempt to stop the bleeding with Quick Stop powder. The bird died later that day. Galvin acknowledged a policy of trimming the nails of sick birds prior to treating them to reduce the risk that a bird might scratch him. Dr. Lesch-Hollis testified that trimming the nails of a sick bird violates the standard of care because it causes bleeding and exacerbates stress.

Natalie Apple testified that she has been the owner of A Country Inn for Pets, a dog-boarding business, for 23 years. She contacted counsel for the Board after reading an article about the charges against Galvin in a local paper. She had never worked for Galvin, did not know anyone who had ever worked for him, and had had no further contact with him since the incident that was the subject of her testimony.

Apple testified that while she was caring for Lunky, a Labrador-mix dog, he appeared to have a stroke. It was her policy to take dogs to their owner’s veterinarian, so she brought Lunky to Galvin’s clinic. Apple and her assistant carried the dog in and placed him on the examining table. Galvin came into the room and took hold of the dog’s leg to pull the dog toward the lower part of the table. The dog turned his head in Galvin’s direction, “maybe as if to bite,” and Galvin “took his fist and came down very hard on the dog’s head. [The dog] cried out and he had a bowel movement.” Apple said she objected to what Galvin had done, and testified that he said, “the son of a bitch did this on purpose, meaning the bowel movement,” and told her to “get the f-u-c-k out.” She told Galvin she would not leave without the dog, and that if he did not let her have the dog, she would make a complaint. She stated that Galvin told her “to take the dog and get out and I did.”

Apple stated that she was “horrified,” and had “never seen anything like that in all [her] years of taking dogs to veterinarians, [her] own as well as others.” She did not report it to anyone because Galvin had let her take the dog. She said she also hoped it was just an isolated incident. Galvin denied the incident occurred.

The Board also alleged a number of violations related to sanitation, record-keeping, medications, and other aspects of running the clinic. The ALJ found that Galvin: (1) “did not always wash intubation tubes;” (2) “reuse[d] syringes and needles on multiple patients without sterilizing them;” and (3) “reuse[d] surgical gloves on multiple patients.”

The Board conducted an inspection of Galvin’s clinic on October 9, 2000. The inspection revealed Galvin failed to (1) maintain a room with floor, table top, and counter top surfaces suitable for regular disinfecting; (2) clean and disinfect floors, table tops, and counter tops regularly; (3) maintain appropriate drugs and equipment to treat animals in an emergency; (4) have resuscitation bags available; (5) post a sign at the entrance of the clinic with information on another source of veterinary care when Galvin was unavailable; (6) maintain adequate records; and (7) include sterilization indicator tabs in gown and drape packages. The ALJ’s proposed decision noted that these defects were all corrected by March 14, 2002.

The inspection also revealed that Galvin kept in the clinic numerous drugs for which the expiration date had passed. The inspector filled five grocery bags with containers of those drugs and removed them. The inspection also revealed that Galvin kept human food in the same refrigerator used to store animal drugs and vaccines, and that Galvin failed to follow certain radiological procedures. By March 14, 2002, Galvin had also changed these practices.

In his proposed decision, the ALJ found that some of the allegations against Galvin had been proven and that others had not. The ALJ concluded that, “for many years and in many ways, [Galvin] has been a wonderful veterinarian. He, however, is short tempered with employees who do not perform as he thinks they should, and his anger with employees can spill over and affect the way he deals with pets.” The ALJ stated that if the regulatory and premises violations were the only misconduct, probation would be appropriate. However, because of the proven allegations regarding mistreatment of animals, the appropriate sanction was revocation of Galvin’s license and premises permit.

On April 17, 2003, the Board adopted the ALJ’s proposed decision in which Galvin was found to have engaged in 14 instances of negligence in the practice of veterinary medicine, 13 instances of cruelty to animals, 14 instances of general unprofessional conduct, including providing prescription drugs to two employees, 13 violations of regulations adopted by the Board, and three instances of failure to keep premises and equipment in a clean and sanitary manner. The Board revoked Galvin’s license to practice veterinary medicine and his premises permit to operate the clinic. The Board also ordered Galvin to pay investigation and enforcement costs in the sum of $15,000.

B. Court Proceedings

On May 14, 2003, Galvin filed a verified petition for a writ of administrative mandate, pursuant to Code of Civil Procedure section 1094.5, challenging the April 17, 2003, decision adopted by the Board. Galvin filed his brief in support of the petition on August 19, 2003. Galvin argued that (1) the ALJ erroneously applied the preponderance of the evidence standard, rather than the proper clear and convincing proof to a reasonable certainty standard; (2) the ALJ failed to comply with Government Code section 11425.50, subdivision (b) in support of his credibility findings; (3) contrary to Government Code section 11425.50, subdivision (c), the ALJ “had no experience, technical competence or specialized knowledge to contribute to the proceedings,” and had no factual basis in the record for certain findings; the findings of animal cruelty were not supported by the evidence; the Board employed a standard of care that was not supported by the evidence; license revocation was an unwarranted penalty; and that he did not receive a fair trial.

On September 3, 2003, the Board filed its answer to the petition and its memorandum of points and authorities in opposition to the petition. In the answer, the Board requested a statement of decision of all controverted issues. Galvin filed his reply memorandum on September 5, 2003.

On September 23, 2003, Galvin’s petition came before the superior court for hearing. Prior to the hearing, the court provided a detailed tentative ruling to the parties. The tentative ruling concluded, inter alia, that, based on an independent review of the evidence, the ALJ’s decision constituted a prejudicial abuse of discretion because the findings were not supported by the weight of the evidence. At the conclusion of the hearing, the trial court adopted its tentative ruling as the “final order of the Court.” The court directed counsel to prepare an “order . . . consistent with the Tentative Ruling.”

Counsel for Galvin submitted a proposed judgment. On September 30, 2003, the trial court filed the judgment granting a peremptory writ of mandamus ordering the Board to set aside its decision revoking Galvin’s veterinary license and premises permit, and granting Galvin attorney fees. The judgment recited that the court had “orally made a statement of decision.”

Also on September 30, 2003, the Board filed objections to the proposed judgment. These objections noted that the court had failed to provide a statement of decision and that it had heard no argument and made no finding regarding attorney fees. The court filed its order regarding the objections to the proposed judgment on October 2, 2003. The court’s order overruled the Board’s objection regarding a statement of decision and sustained the objection regarding entitlement to attorney fees, reserving that issue for post-trial hearings on costs and motions to tax costs.

Notice of entry of the judgment was served on October 7, 2003, and filed on October 9, 2003. The Board timely filed its notice of appeal on November 18, 2003.

On December 9, 2004, this court issued an opinion reversing the judgment and remanding the matter to permit the trial court to issue a statement of decision.

At a hearing on March 10, 2005, the trial court directed Galvin’s counsel to prepare a statement of decision. A proposed statement of decision was lodged with the trial court on or about March 23, 2005.

On April 6, 2005, the Board filed objections to the proposed statement of decision. On April 25, 2005, in a statement of decision that closely tracked its tentative ruling, the court ruled that the administrative decision was based on an incorrect standard of proof; that due to the failure of the ALJ to identify specific evidence in support of his witness credibility determinations pursuant to Government Code section 11425.50,subdivision (b), the trial court was not required to give those credibility findings “special weight;” and that the decision constituted a prejudicial abuse of discretion because the findings were not supported by the weight of the evidence. The court found no abuse of discretion by the ALJ in relying on the testimony of the Board’s expert witness regarding the applicable standard of care. The court rejected the testimony of the complaining witnesses as “extremely suspect,” and rejected the ALJ’s conclusion that certain techniques Galvin admitted to using were “inappropriate and cruel,” finding instead that they reflected “occasional poor judgment.”

On May 9, 2005, the trial court filed a Judgment Granting Peremptory Writ of Mandamus (Following 12/9/04 Appellate Court Remand) with hand-written additions including a provision to allow Galvin to recover reasonable attorney fees.

On May 17, 2005, the Board filed a notice of entry of judgment granting a peremptory writ of mandamus.

On May 25, 2005, the Board filed its notice of appeal.

III. DISCUSSION

A. Standard of Review

The petition for writ of administrative mandamus was brought pursuant to Code of Civil Procedure section 1094.5. Because the case involves Galvin’s fundamental right to practice his profession, the trial court was required to exercise its independent judgment on the evidence presented in the administrative hearing and determine whether the weight of the evidence supports the Board’s decision. (Code Civ. Proc., § 1094.5, subd. (c); Anserv Ins. Services, Inc. v. Kelso (2000) 83 Cal.App.4th 197, 204.)

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda); see also Mason v. Office of Admin. Hearings (2001) 89 Cal.App.4th 1119, 1130.) In so holding, a unanimous Supreme Court, in a decision authored by Chief Justice George, quoted extensively from its earlier decision in Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75 (Drummey), and explained that independent judgment review “‘does not mean that the preliminary work performed by the administrative board in sifting the evidence and in making its findings is wasted effort . . . . [I]n weighing the evidence the courts can and should be assisted by the findings of the board. The findings of the board come before the court with a strong presumption of their correctness, and the burden rests on the complaining party to convince the court that the board’s decision is contrary to the weight of the evidence.’” (Fukuda, supra, 20 Cal.4th at p. 812, italics omitted, quoting Drummey, supra, 13 Cal.2d at p. 85.)

This allocation of the burden of proof and the presumption of correctness serve as “‘sound’ ‘limitations on the rule that the trial court must exercise its independent judgment.’” (Fukuda, supra, 20 Cal.4th at p. 812, quoting Drummey, supra, 13 Cal.2d at p. 86.) The court explained: “‘The findings of a board where formal hearings are held should and do come before the courts with a strong presumption in their favor based primarily on the [rebuttable] presumption contained in section 1963, subsection 15, of the Code of Civil Procedure [currently Evidence Code section 664] “That official duty has been regularly performed.” Obviously, considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing, especially in cases involving technical and scientific evidence.’” (Fukuda, supra, 20 Cal.4th at p. 812, quoting Drummey, supra, 13 Cal.2d at p. 86.)

The Fukuda court also cited Justice Schauer’s concurring opinion in Sipper v. Urban (1943) 22 Cal.2d 138: “‘The procedure as now declared gives the reviewing court the power and duty of exercising an independent judgment as to both facts and law, but contemplates that the record of the administrative board shall come before the court endowed with a strong presumption in favor of its regularity and propriety in every respect and that the burden shall rest upon the petitioner to support his challenge affirmatively, competently, and convincingly. In other words, rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.’ (Id. at p. 144 (conc. opn. of Schauer, J.).)” (Fukuda, supra, 20 Cal.4th at p. 814.)

Although the trial court was required to review the administrative decision under the independent judgment standard, our standard of review on appeal of the trial court’s determination is the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824.)

B. The Trial Court Failed to Accord a Presumption of Correctness

We cannot reach the question of whether substantial evidence supports the trial court’s decision, however, because the lower court’s findings and decision are “infected by fundamental error”: the lower court erred in failing to accord a presumption of correctness to the administrative findings. (See Fukuda, supra, 20 Cal.4th at p. 824.) Although the statement of decision is silent on the matter, it is apparent that the trial court failed to presume the correctness of the administrative findings, as we shall explain.

First, although the administrative decision did not specify what burden of proof was applied, the trial court determined that it was erroneously based on a preponderance of the evidence standard, rather than the clear and convincing proof to a reasonable certainty standard. We find no support in the record for this conclusion.[3] The applicable standard of proof, clear and convincing evidence to a reasonable certainty, is well established for administrative proceedings involving professional licenses. (Ettinger v. Board of Medical Quality Assurance (1982) 135 Cal.App.3d 853.) The trial court’s assumption that a lesser standard of proof was used directly contradicts the “strong presumption” that the administrative decision is correct and that “official duty has been regularly performed.” (Fukuda, supra, 20 Cal.4th at p. 812; see also Evid. Code, § 664.)

Second, the trial court disregarded a number of administrative findings Galvin did not raise in his petition for administrative mandamus. It is also well established that any findings not specifically challenged in a writ petition are deemed to be true. (Black v. State Personnel Bd. (1955) 136 Cal.App.2d 904, 909.) Galvin’s writ petition did not challenge the findings that were based on the Board’s inspection on October 9, 2000, that revealed violations regarding sanitary requirements and sanitation, medications and medication expiration dates, and various other violations related to running a veterinary hospital. At the hearing on September 23, 2003, the Board argued that the ALJ’s factual findings based on the inspection had not been challenged by Galvin in his writ petition and that there was no basis to conclude they were not supported by the weight of the evidence. The trial court refused to address these findings: “Well, in the court’s view, whether or not the containers were clean or not is not the critical issue in this case. And they are not proved, and they are recommended. The critical issue is what was the care that was given to the animals.” Despite a request from the Board that these findings be addressed in the statement of decision, the trial court made no mention of them. Clearly, had the trial court presumed the correctness of the administrative decision, it would have upheld these unchallenged findings as supported by the weight of the evidence.

The trial court also ignored the ALJ’s conclusion that these violations alone warranted placing Galvin on probation. The administrative decision stated that, even though the violations had been corrected, if those violations were the only misconduct at issue, it would be appropriate to place Galvin on probation with conditions of probation adequate to protect the public. The trial court appears to have decided that the inspection findings were irrelevant, as there is no indication that the trial court even considered the possibility of any form of discipline based on these findings.

Third and finally, the trial court’s failure to accord proper deference to the administrative decision is apparent in the court’s rejection of findings based on expert testimony and conduct Galvin himself admitted and defended.

In response to hypothetical questions posed by counsel for the Board, Dr. Lesch-Hollis testified regarding her opinion of certain conduct. With respect to striking the head of a one-hundred and fifty pound Malamute dog two times with a closed fist, she opined that “striking a dog on the head is never acceptable. Striking an animal is never acceptable in a fearful situation.” Regarding a situation in which a veterinarian dragged a Rottweiler who had just bitten him outside, pulled so tightly on a rope-noose leash that the dog lost consciousness, and then resuscitated the dog, Dr. Lesch-Hollis testified that “choking a dog to unconsciousness” is an inappropriate form of restraint and harms the animal. She also testified that it violated the standard of practice to “place a rope-noose leash around [a] dog’s neck and hold the leash up until the dog’s front legs or back legs are off the ground and the dog is choked into submission,” again, because choking is an inappropriate form of handling or restraint of an animal. With respect to holding a frightened and agitated puppy by the throat over a sink for 10-15 seconds, choking it until the puppy urinated and defecated in the sink, Dr. Lesch-Hollis opined that that was never an appropriate method of restraint, that it was threatening to the dog, and that choking a puppy into submission sets up “a lifetime of fear, aggression for that dog in a clinical situation.” With respect to trimming the nails of a sick bird, Dr. Lesch-Hollis stated that, because birds are delicate and blood loss can quickly become dangerous, unless a blood sample is needed, the nails should not be trimmed because it “further exacerbates the stress of the illness.” In Dr. Lesch-Hollis’s opinion, all of this conduct fell below the standard of care and constituted cruelty to animals.

Testifying in his own behalf, Galvin acknowledged that he had struck dogs with a closed fist because “some dogs need correction.” With regard to choking a Rottweiler that became unconscious and had to be resuscitated, Galvin described his conduct as, “[n]ot only appropriate, but extremely skilled.” Galvin also admitted to holding the leash of a small white dog in the air until the dog became weak and did not “slap.” Galvin recalled holding a puppy with both his hands around its throat, suspending the puppy over a sink for 10-16 seconds, while applying firm pressure to “slightly decrease his deoxygenation.” Finally, Galvin admitted to commonly trimming the nails of sick birds prior to treating them.

The ALJ concluded that the incidents and practices described above constituted negligence, unprofessional conduct, and animal cruelty.

Although the trial court found no abuse of discretion in the ALJ’s determination of the applicable standard of care as testified to by Dr. Lesch-Hollis, the court inexplicably ignored the ALJ’s findings of negligence and unprofessional conduct based on conduct Galvin admitted. With respect to the ALJ’s findings of animal cruelty, the trial court expressly rejected that conclusion, instead characterizing the conduct as “occasional poor judgment,” citing criminal statutes regarding animal cruelty. However, this is not a criminal prosecution and the Penal Code is simply not relevant to a determination as to whether certain conduct warrants discipline by the licensing agency.

It appears the trial court was deeply disturbed by the facts that much of the testimony against Galvin came from former employees who had had trouble working for him and that certain of Galvin’s animal handling techniques were found to be cruel. However, the ALJ’s findings and conclusions were not based exclusively on testimony from disgruntled former employees who had sued Galvin after leaving his employ. Natalie Apple, who ran a dog-boarding business, testified that she took a dog in her care to Galvin when it appeared to have had a stroke. Galvin hit the dog in the head when it turned as if to bite him, and used profanity in telling Apple to get out. Captain Cindy Machado of the Marin County Humane Society went to Galvin’s clinic to discuss the former employees’ complaints with Galvin. She testified that he acknowledged using methods such as “hitting dogs with his fist,” hitting them with an open hand, and choke-holding large dogs until they were unconscious. Dan Marrin, a former employee of Galvin’s, was called as a witness for Galvin. He described the incident in which Galvin held the puppy by the throat over the sink, choking it, until it urinated and defecated. Finally, Jan Peterson, another former employee of Galvin’s, testified regarding the incident in which the Rottweiler bit Galvin and Galvin then choked it until it passed out and stopped breathing. Peterson was not a part of the civil suit against Galvin, and there was no evidence of an ulterior motive to her testimony.

Concerns about the source of some of the evidence or the appropriate characterization of conduct admitted by the respondent do not relieve the court of the obligation to conduct its review of the administrative decision within the framework expressly laid down by Fukuda.

On this record, we can neither affirm the trial court’s judgment nor reverse and reinstate the Board’s decision. As was the case in Fukuda, we “cannot foreclose the possibility that the trial court, after exercising its independent judgment as described above, reasonably could conclude that [the Board’s decision to revoke Galvin’s license to practice and premises permit] was an abuse of discretion. [Citation.]” (20 Cal.4th at p. 825.) We must and do, therefore, remand the case to the trial court for its further consideration in light of the principles and specifics set forth above.

C. Attorney Fees

The trial court’s Judgment Granting Peremptory Writ of Mandamus (Following 12/9/04 Appellate Court Remand) contains a hand-written provision that “Petitioner [Galvin] shall recover reasonable attorney’s fees w/in 60 days after judgment upon noticed motion or, if appealed, 60 days after remittitur.” The Board argues this award of attorney fees was made without briefing or argument and directly contradicted its earlier judgment, modified by its rulings on the Board’s objections. Galvin argues the provision in the judgment is “not an award of attorney’s fees,” but rather is a statement that Galvin may “apply” for fees by noticed motion.

In its original judgment filed on September 30, 2003, the trial court awarded attorney fees to Galvin: “Petitioner shall recover reasonable attorney’s fees in an amount to be determined on noticed motion to be submitted to the Court within sixty (60) days after the judgment, or, if the matter is appealed, then sixty (60) days after the remittitur from the Court of Appeal.” The Board objected, and the court ruled, “[The Board]’s fourth objection, that the court did not determine that [Galvin] had any entitlement to attorney’s fees, is sustained. The issue of attorney’s fees is reserved for post-trial hearings on costs and motions to tax costs.” Thus, to the extent that the judgment before us now purports to award fees to Galvin, or to determine his entitlement to some amount of fees, it is premature. The issue was properly reserved by the court in its September 2003 ruling.

IV. DISPOSITION

The judgment is reversed and remanded for further proceedings consistent with this opinion. Costs on appeal are awarded to appellant.

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Haerle, Acting P.J.

We concur:

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Lambden, J.

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Busch, J.*

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[1] Pursuant to the Board’s request that the record on appeal be augmented, we have taken judicial notice of the Clerk’s Transcript in Marin County Superior Court case No. CV032261 and the administrative record already on file with this court in case No. A104742.

[2] Peterson was not a part of the civil lawsuit against Galvin.

[3] By way of support, the trial court merely cited to a paragraph in the administrative decision which reads, in its entirety: “Most of the evidence against respondent came from disgruntled, former employees. Their testimony, nevertheless, was, generally, very believable. And much of their testimony was consistent with respondent’s own testimony regarding the handling of animals. There were other former employees who testified that, while respondent indeed was difficult to work for and often reprimanded employees, they never saw him mistreat an animal or bird. These employees also were very convincing. Respondent was most likely to lose his temper with those employees who were not adept at restraining pets or with an employee who, although adept, made a mistake. One of the former employees who said that he had never seen respondent mistreat animals or birds, testified that respondent hired incompetent help and that they were a source of frustration to both him and respondent. And it is found that, when respondent became frustrated and lost his temper, he tended to be very hard on both the employee and the patient. He would be harsh with the employee, often demeaning. And he occasionally would be cruel to the animal or bird. He became particularly angry when employees failed to prevent an animal from biting him.”

* Judge of the Superior Court of San Francisco County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.