Key Points

  • A trial court reviewing a licensing board's denial of a petition for early termination of probation under Business and Professions Code section 2962 applies the substantial evidence test, not the independent judgment test.
  • The court reasoned that a probationer seeking to end probation early is more like an applicant for an unrestricted license than a licensee facing discipline, extending Flanzer v. Board of Dental Examiners' reinstatement rule.
  • Independent judgment review remains available for the original disciplinary order placing a licensee on probation, but only if it is challenged within Government Code section 11523's deadline.
  • In unpublished parts, the court held the Board of Psychology did not abuse its discretion, finding acknowledgment of wrongdoing and acceptance of responsibility, not compliance with reporting and cost terms, are the core indicators of rehabilitation.
  • The judgment denying Morella Bombardini's writ petition was affirmed unanimously, with costs on appeal to the board.

A California appeals court ruled on Oct. 6 that judges must defer to a professional licensing board when it refuses to end a licensee's probation early. The ruling went against a psychologist disciplined over a workers' compensation fraud conviction, who had argued she was entitled to have a judge weigh the evidence anew.

A three-justice panel of the Third Appellate District unanimously affirmed a Sacramento County Superior Court judgment upholding the Board of Psychology's 2024 denial of Morella Bombardini's petition to cut short her five-year probation. Presiding Justice Earl wrote the opinion, joined by Justices Boulware Eurie and Feinberg.

The published portion of the decision settles which of two standards a trial court uses when reviewing a board's ruling on an early-termination petition under Business and Professions Code section 2962. Under the independent judgment test, a judge weighs the evidence; under the substantial evidence test, the court asks only whether the record supports the agency's findings. The panel chose the more deferential test, meaning a licensee who wants a judge's independent look at discipline must challenge the original disciplinary order within the Government Code deadline, 30 days after the last day on which reconsideration can be ordered.

The board licensed Bombardini in 2011. In 2018 she was convicted, on a plea of nolo contendere, of a misdemeanor for making a fraudulent workers' compensation claim connected to her work as a psychologist, and was ordered to pay more than $11,000 in restitution to her employer. In a decision effective April 23, 2021, the board revoked her license, stayed the revocation and placed her on probation with conditions including a practice and billing monitor and a law and ethics exam.

Bombardini moved to Maryland and then Oregon, where her license applications were denied, and her probation was tolled while she was away. After returning to California, she petitioned in July 2023 to end probation early. Following a hearing at which she represented herself, the board found she had not shown rehabilitation by clear and convincing evidence and concluded, "It is too soon to allow [her] to practice psychology without Board oversight."

The opinion laid out three settled rules: licensees facing revocation or discipline get independent review because they hold a "fundamental vested right" to keep practicing; license applicants get substantial-evidence review; and people seeking restoration of a revoked license have "no greater rights than a person seeking an original license." The panel said the case "does not fit squarely into any of these three situations."

The court found guidance in Flanzer v. Board of Dental Examiners, a 1990 decision applying substantial-evidence review to a dentist's petition for reinstatement. Section 2962, the court said, is an "analogous statute," and while Bombardini sought to end probation rather than restore a revoked license, "we find that distinction is not dispositive."

"Here, the right Bombardini already possessed when she filed her petition for early termination was the right to practice her profession subject to the terms and conditions of her probation," Earl wrote. "This is more akin to applying for an unrestricted license than to disciplining an existing license." Courts, the opinion added, are "relatively ill-equipped to determine whether an individual can safely resume the unrestricted practice of a profession" before probation ends.

Bombardini argued that the deferential standard "would allow a licensing board to avoid independent review simply by styling a disciplinary order as a stayed revocation with probationary restrictions, even where those restrictions prevent all practice." The court answered, "Not so," explaining that had she timely challenged the 2021 order, the trial court would have applied independent judgment. The deadline to do so was May 24, 2021, and she acknowledged she "did not seek writ review of the 2021 disciplinary order."

In unpublished sections, the panel held the board did not abuse its discretion. Bombardini had pointed to paying the board's costs, filing required reports and committing no new misconduct. The court disagreed that those were the measure, writing that "acknowledging the wrongfulness of the conduct that led to discipline and taking responsibility for it are thus the core indicators of rehabilitation."

The opinion cited her testimony that "I am not a criminal, but I really feel like I'm being treated as one," and that she pleaded no contest because her attorneys "told me to." Character letters she submitted were "entitled to little—if any—weight" because they predated her conviction. Her claim of more than $700,000 in lost income did not help, the court said, because the board's highest priority is public protection, "not the employability or financial well-being of psychologists."

The panel also rejected her argument that a limitations period barred discipline over a 1984 bad-check conviction she failed to disclose on her license application, noting the board had dismissed that charge. "Simply put, there is no need for us to determine whether the Board had jurisdiction to make a decision it did not actually make," Earl wrote. The court further held that her challenges to her probation conditions and to the fairness of the 2020 disciplinary hearing came too late, and noted she had never asked the board to modify any condition.

Bombardini was represented on appeal by Elliott N. Kanter of the Law Office of Elliott N. Kanter. The board was represented by the Office of Attorney General Rob Bonta.

The court affirmed the judgment and awarded the board its costs on appeal. Under the 2021 decision, most of Bombardini's probation conditions are held in abeyance, and the five-year term is extended, for periods in which she is not practicing psychology in California.