Filed 12/10/18
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION ONE


RADWA MOHAMED MOUSTAFA,
        Plaintiff and Respondent,                  A150266

v.                                                 (San Francisco City and County
BOARD OF REGISTERED NURSING,                       Super. Ct. No. CPF-16-515166)
        Defendant and Appellant.


        Radwa Mohamed Moustafa applied for a license to be a registered nurse and, in
the course of doing so, disclosed she had been convicted of four misdemeanors that were
subsequently dismissed under Penal Code section 1203.4. The Board of Registered
Nursing (Board) granted her a probationary license as a result of three of those
convictions—two for petty theft and one for vandalism—and the conduct that gave rise to
them. Moustafa opposed this restriction and filed a petition for a writ of administrative
mandate in the trial court. The court granted the petition, relying on Business and
Professions Code 1 section 480, subdivision (c) (section 480(c)), which bars a licensing
board from denying a license “solely on the basis of a conviction that has been dismissed
pursuant to Section 1203.4 . . . of the Penal Code.”
        On appeal, the Board contends that its decision must be upheld and the trial court
erred by granting Moustafa’s petition because (1) section 480(c) applies only when an
applicant has a single dismissed conviction; and (2) even if section 480(c) did apply,
Moustafa’s license restriction was lawful because of the conduct underlying the

        1
        All further statutory references are to the Business and Professions Code unless
otherwise noted.


                                             1
convictions. Although we reject many of the Board’s arguments, we agree that until July
1, 2020, when recent legislation amending section 480 takes effect, the Board may deny
or restrict a license based on the conduct underlying a dismissed conviction. 2 It may do
so, however, only when the conduct independently qualifies as a basis for denying a
license. Contrary to the Board’s position, conduct does not necessarily so qualify merely
because it involves some act—no matter how minor—of theft, dishonesty, fraud, or
deceit. Instead, conduct so qualifies only if it substantially relates to the applicant’s
fitness to practice nursing. Applying this standard, we conclude that the Board could
restrict Moustafa’s license based on the conduct underlying the petty thefts, but not on
the conduct underlying the vandalism. The trial court therefore erred in granting the
petition, and we reverse.
                                          I.
                                FACTUAL AND PROCEDURAL
                                     BACKGROUND
       This case comes to us with an unusually sparse record. Although it is an appeal
from an order granting a petition for a writ of administrative mandate, most of the
administrative record was not filed in the trial court and is not a part of our appellate
record. We therefore lack a full understanding of the procedural and factual history of
the case. Nevertheless, we review the court’s ruling on the merits because the Board
does not contend that the record’s inadequacy compels reversal and the appeal raises only
questions of law.
       From our limited record, we know that in September 2015 Moustafa applied for a
license to be a registered nurse. In her application and an accompanying letter, she
disclosed that she had been convicted of four misdemeanors: in 2006, she was convicted
of petty theft under Penal Code section 484; in 2009, she was convicted of another count
of petty theft and a count of vandalism under Penal Code section 594, subdivision (a);
       2
        As of July 1, 2020, section 480 will be amended to provide that an applicant
cannot be denied a license “on the basis of any conviction, or on the basis of the acts
underlying the conviction,” if the conviction has been dismissed. (Assem. Bill No. 2138
(2017-2018 Reg. Sess.) § 4 (Assem. Bill No. 2138), italics added.)


                                               2
and in 2010, she was convicted of driving without a license under Vehicle Code
section 12500, subdivision (a). All four convictions were dismissed in 2013 under Penal
Code section 1203.4.
       In December 2015, the Board denied Moustafa’s application. Moustafa appealed,
and the Board initiated an administrative proceeding by filing a statement of issues in
accordance with Government Code section 11504. The statement of issues identified
four separate causes to deny the application, with each cause identifying one of the four
convictions and the conduct underlying that conviction.
       A hearing was held in April 2016 before an administrative law judge (ALJ).
Moustafa presented a letter in which she reported being “embarrassed and ashamed for
what [she had] done” and accepted “complete accountability.” She also presented
evidence that in the years since her last conviction, she had graduated from the University
of California, Santa Cruz, been employed at a lab at the University of California, San
Francisco, graduated with honors from the City College of San Francisco with an
associate science degree in registered nursing, and volunteered as a driver for a nonprofit
organization that delivers food to the needy. She also submitted professional reference
letters and evidence that she had been offered a nursing job.
       The ALJ first considered the convictions themselves and found that the 2006 and
2009 convictions for petty theft and the 2009 conviction for vandalism were substantially
related to the practice of nursing but that the 2010 conviction for driving without a
license was not. The ALJ concluded that the petty theft and vandalism convictions
justified a restricted license, despite section 480(c)’s prohibition of reliance on a
dismissed conviction to deny a license, because this prohibition applies only when an
applicant has a single dismissed conviction.
       The ALJ then considered the conduct underlying the convictions and determined
that it constituted unprofessional conduct, independently justifying a restricted license.
Both petty-theft convictions were for shoplifting from Macy’s. The first time, Moustafa
“attempted to switch the price tags on two items and was detained by store security while
attempting to pay.” The second time, “she ‘stole a BCBG dress . . ., hid it in [her]


                                               3
purse[,] and was detained as [she] attempted to walk out with the merchandise.’ ”
Finally, she was convicted of vandalism after her “forcible removal” of a boot placed on
her car for unpaid parking tickets. After the police contacted her, she returned the boot,
which she was required to pay for because it was so damaged that it “appeared unusable.”
       After finding that a “registered nurse must be trustworthy and honest” and that
Moustafa failed to provide “an understandable explanation for her criminal activity,” the
ALJ recommended that Moustafa be granted a license, subject to an immediate
revocation and corresponding stay of that revocation while she was placed on probation
for three years. The Board adopted the recommendation.
       In July 2016, Moustafa challenged the Board’s decision by filing a petition for a
writ of administrative mandate under Code of Civil Procedure section 1094.5. The Board
opposed the petition and asked the trial court to take judicial notice of the statement of
issues, the recommended decision, the final decision, and documents purportedly
reflecting the legislative history of section 480(c).
       The trial court issued a tentative decision in which it proposed denying Moustafa’s
petition without prejudice because of the absence of an administrative record. But it later
changed course and decided to rule on merits of the petition because the Board had
provided a copy of the administrative decision and only questions of law were at issue.
The court then granted the Board’s request for judicial notice and granted the petition. It
concluded that section 480(c) “prevents the Board from relying on any conviction that
has been dismissed pursuant to Penal Code section 1203.4, even, as in this case, where
there have been multiple convictions so dismissed.” In addition, it concluded that
section 480(c) also “precludes the Board from separately relying on the conduct
underlying any or all of the criminal convictions, as it would otherwise have been
permitted to do,” reasoning that “permitting the Board to deny or restrict licensure based
on conduct underlying a conviction that has been dismissed . . . is inconsistent with and
would render section 480[(c)] essentially meaningless.” Judgment was entered in
Moustafa’s favor in October 2016, and the Board appealed.



                                               4
                                              II.
                                         DISCUSSION
       A.     General Legal Standards.
       Section 480 identifies four grounds on which a board may deny a license regulated
by the Business and Professions Code. 3 First, a license may be denied if the applicant
has “[b]een convicted of a crime.” (§ 480, subd. (a)(1).) Second, a license may be
denied if the applicant has “[d]one any act involving dishonesty, fraud, or deceit with the
intent to substantially benefit himself or herself or another, or substantially injure
another.” (§ 480, subd. (a)(2).) Third, a license may be denied if the applicant has
“[d]one any act that if done by a licentiate of the business or profession in question,
would be grounds for suspension or revocation of license” and “the crime or act is
substantially related to the qualifications, functions, or duties of the business or
profession for which application is made.” (§ 480, subd. (a)(3)(A) & (B).) And fourth, a
license may be denied if “the applicant knowingly made a false statement of fact that is
required to be revealed in the application for the license.” (§ 480, subd. (d).) The
Board’s determination of what level of discipline is appropriate if one of these grounds is
satisfied “is a matter resting in [its] sound discretion.” (Hughes v. Board of Architectural
Examiners (1998) 68 Cal.App.4th 685, 692.)
       Although section 480, subdivision (a)(1) (section 480(a)(1)) broadly authorizes a
board to deny a license based on any criminal conviction, subdivisions (b) and (c) of the
statute, which govern “[n]otwithstanding any other provisions of [the Business and
Professions Code],” limit a board’s ability to do so in certain circumstances. Under
subdivision (b), if the conviction is for a felony and the applicant obtains a certificate of
rehabilitation from the criminal court, or if the conviction is for a misdemeanor and the

       3
        As we have mentioned, the Board actually granted Moustafa a license but then
revoked it and stayed the revocation. The parties assume that section 480 applies not
only when a board denies a license outright but also when it grants a restricted license.
(See Donley v. Davi (2009) 180 Cal.App.4th 447, 451, 463-464.) Because the Board
granted a restricted license, we need not decide whether it could deny a license outright
under similar factual circumstances.


                                               5
applicant meets the board’s own rehabilitation criteria, the board cannot deny a license
“solely on the basis” of the conviction. (§ 480, subd. (b).) And under subdivision (c),
which became effective on January 1, 2015, the board cannot deny a license “solely on
the basis” of any conviction that has been dismissed under Penal Code sections 1203.4
(section 1203.4), 1203.4a, or 1203.41. 4 (§ 480(c).) Section 1203.4, the statute that
applies here, allows defendants who were convicted of a crime and then successfully
completed probation to obtain a court order dismissing the conviction. (People v. Lewis
(2006) 146 Cal.App.4th 294, 297.) With certain exceptions, such a dismissal releases a
defendant “from all penalties and disabilities resulting from the offense of which he or
she has been convicted.” 5 (§ 1203.4.)
       Here, the relevant facts involving the dismissals under section 1203.4 of the three
convictions at issue and the underlying conduct that gave rise to those convictions are
undisputed. Thus, the only issues before us are questions of law. (See Sulla v. Board of
Registered Nursing (2012) 205 Cal.App.4th 1195, 1200 (Sulla); Stermer v. Board of
Dental Examiners (2002) 95 Cal.App.4th 128, 132-133.)
       “ ‘On questions of law arising in mandate proceedings, we exercise independent
judgment.’ ” (Santa Clara Valley Transportation Authority v. Rea (2006)
140 Cal.App.4th 1303, 1313.) Because “the trial and appellate courts perform the same
function” in addressing such questions, “we apply our independent review without
reference to the trial court’s actions.” (Ibid.) Thus, “it is a settled appellate principle that
if a judgment is correct on any theory, [we] will affirm it regardless of the trial court’s
reasoning.” (Young v. Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1192-1193.)

       4
        Throughout the opinion, we will refer to convictions dismissed under these
provisions as “dismissed convictions.”
       5
         We agree with the Board that Moustafa’s characterization of her convictions as
having been “expunged” is misleading. “ ‘[A] dismissal under section 1203.4 . . . is in no
way equivalent to a finding of factual innocence . . . [and] “does not purport to render the
conviction a legal nullity.” ’ ” (Skulason v. California Bureau of Real Estate (2017)
14 Cal.App.5th 562, 568.) Rather, the statute “ ‘simply authorizes a court to grant relief
to individuals who successfully complete the terms of probation by mitigating some of
the consequences of conviction.’ ” (Ibid.)

                                               6
       B.     The Board Improperly Relied on Moustafa’s Dismissed Convictions as a
              Basis for License Restriction.
       The Board claims that it properly relied on the dismissed convictions to restrict
Moustafa’s license because section 480(c)’s prohibition applies only when an applicant
has a single dismissed conviction. We disagree.
       “ ‘ “The rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to ascertain and
effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to
the words of the statute, giving them their usual and ordinary meaning. [Citations.]
When the language of a statute is clear, we need go no further. However, when the
language is susceptible of more than one reasonable interpretation, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part.” ’ ” (Monterossa v. Superior Court
(2015) 237 Cal.App.4th 747, 751.)
       The Board argues that the “plain text” of section 480(c) “is limited to only one
dismissed conviction.” We believe, to the contrary, that the plain and more natural
reading of the provision is that the phrase “a conviction that has been dismissed” applies
to each dismissed conviction an applicant may have, regardless of whether the applicant
has one individual dismissed conviction or a collection of such individual dismissed
convictions. It makes sense for the phrase to be formulated in the singular, because every
dismissal relates to a single conviction. (See Pen. Code, §§ 1203.4, subd. (a), 1203.4a,
subd. (a), 1203.41, subd. (a)(1).) Since section 480(c) prevents the Board from denying a
license solely on the basis of a singular dismissed conviction, it logically follows that the
provision also prohibits the denial of a license based solely on a collection of such
singular dismissed convictions. Nor are we swayed by the Board’s argument that the
“combination of [the phrase] ‘a conviction’ with the limiting word ‘solely’ confirms that
the use of singular was intentional.” The word “solely” is sensibly understood as
reinforcing the principle that the Board retains authority, notwithstanding


                                              7
section 480(c)’s restrictions regarding dismissed convictions, to deny applicants licenses
based on other grounds, including non-dismissed convictions.
       Moreover, the Board does not explain why, if the singular article in section 480(c)
should be interpreted to expand its licensing authority, singular articles in other licensing
provisions should not be similarly interpreted to restrict that authority. Would the Board
seriously contend that it cannot deny a license because an applicant was convicted of
several crimes instead of “a crime” (§ 480, subd. (a)(1), italics added) or take disciplinary
action against a licensee because the licensee is guilty of several offenses rather than “a
felony or any offense substantially related” to the profession (§ 2761, subd. (f), italics
added), aided several criminal abortions rather than “a criminal abortion” (§ 2761,
subd. (c), italics added), or made several false statements rather than a “false statement”
in connection with an application (§ 2761, subd. (e))? We think it is clear that in all of
these instances, the Board has the authority to take action against an applicant or licensee
who has engaged in a number of these acts, just as it has the ability to take action against
such a person who has engaged in one of these acts. And just as these statutory
provisions plainly authorize the Board to deny an application or discipline a licensee for
multiple acts, section 480(c) plainly prohibits it from denying an application based solely
on multiple dismissed convictions.
       The Board also insists that section 480(c) applies only to applicants who have a
single dismissed conviction in light of another statutory provision: section 480(a)(1).
That provision, which was left unchanged when section 480(c) was enacted, confers
express authority on boards to deny licenses based on applicants’ convictions, and it
explains that “[a]ny action that a board is permitted to take following the establishment of
a conviction may be taken . . . irrespective of a subsequent order” dismissing the
conviction. (§ 480(a)(1), italics added).) The Board argues that this italicized phrase
would have no meaning if section 480(c) is interpreted to include more than one
dismissed conviction. Again, we disagree.
       By its plain terms, section 480(a)(1) does nothing more than clarify that a board
can deny a license, or take any other “action that a board is permitted to take,” based on a


                                              8
criminal conviction, and that this denial or other action is valid even if, at a “subsequent”
time, the conviction is dismissed. In other words, section 480(a)(1) refers to a board’s
power to deny licenses based on convictions that have not been dismissed at the time of
the license consideration, while section 480(c) refers to a board’s power to deny licenses
based on convictions that have already been dismissed at the time of the license
consideration. Nothing in section 480(a)(1) affects, much less trumps, section 480(c)’s
directive prohibiting boards from denying “a license solely on the basis of a conviction
that has been dismissed.”
       Our interpretation of section 480(c) to apply to applicants who have more than one
dismissed conviction also comports with section 16. This statute declares that throughout
the Business and Professions Code “[t]he singular number includes the plural, and the
plural the singular.” The “a” in section 480(c)’s phrase “a conviction that has been
dismissed” is a grammatical article, and section 16 applies in construing the phrase
because the phrase refers to a single number—one dismissed conviction. (See Minish v.
Hanuman Fellowship (2013) 214 Cal.App.4th 437, 464-465 [assuming that a statute
directing that “ ‘[t]he singular number includes the plural’ ” applies to grammatical
articles].) And even if grammatical articles fell outside the meaning of section 16’s
reference to a “singular number,” section 16 at the very least reflects a legislative intent
to discourage rigid interpretations of singular usages.
       The Board cites two decisions that it claims demonstrate “these ‘singular includes
the plural’ provisions,” which are also found in other codes, “must be applied only
carefully.” In People v. Navarro (2007) 40 Cal.4th 668, the Supreme Court addressed
whether Penal Code sections 1260 and 1181, subdivision 6 permitted an appellate court
to modify a judgment to reflect more than one lesser included offense if the court
reversed a single conviction for insufficient evidence. (Navarro, at p. 671.) The
Supreme Court concluded that the singular usage of “crime” and “offense” in the statutes
at issue should not be interpreted to include the plural, because doing so would
“overthrow long-established principles of law” and “run[] counter to . . . the legislative
purpose of the statutory scheme.” (Id. at p. 680.)


                                              9
       Similarly, in People v. Kunitz (2004) 122 Cal.App.4th 652, the Third District
Court of Appeal, after acknowledging the “general rule[] that ‘the singular number
includes the plural,’ ” concluded that the rule was inapplicable to the statute at issue
because there were compelling indications that the Legislature did not intend for the
singular usage to include the plural. (Id. at pp. 655-656.) Not only did the provision at
issue purposely differentiate between singular and plural usages, other parts of the statute
reflected a legislative intent for the singular to exclude the plural. (Ibid.)
       Here, in contrast, there are no such indications that the Legislature intended
section 480(c) to apply only to applicants who have no more than a single dismissed
conviction. Although we need not resort to the legislative history of the provision
because its language is clear, the legislative materials in the record disclose nothing
suggesting an intent to limit section 480(c) as the Board proposes. 6 The Board points to
legislative comments that the adoption of section 480(c) “will not affect a board’s ability
to deny a license based on other convictions or arrests that are part of the person’s
criminal record, or other acts that a person has committed. This bill will only prevent
boards from presuming that an applicant has not been rehabilitated based only on a
conviction that has been dismissed by a court, and using that as the sole reason for
denying a license.” These comments reflect the uncontroversial points that
section 480(c) does not affect a licensing authority’s ability to deny licenses based on
“other convictions”—i.e., non-dismissed ones—or based on acts that provide separate
grounds for the denial of the license, such as those section 2761 identifies. If anything,
the one thing clear in the legislative materials is that section 480(c) was “designed to
reduce employment barriers for people with criminal records who have been




       6
       In reaching this conclusion, we do not rely on a December 2016 letter from
Assemblymember Rob Bonta addressing the legislative intent behind section 480(c),
which Moustafa attached to her brief.


                                              10
rehabilitated,” a goal that is advanced by interpreting the provision to apply to applicants
who have more than one dismissed conviction. 7
       Finally, we are not persuaded by the Board’s argument that we should give
significant weight to its interpretation of section 480(c). This provision concerns a
subject area—the effect of dismissed convictions on applicants—in which the Board has
no particular expertise. (See Styrene Information & Research Center v. Office of
Environmental Health Hazard Assessment (2012) 210 Cal.App.4th 1082, 1100 [no
deference where agency in question has no particular interpretive advantage over the
courts].) And even if the Board did have such expertise, an “agency’s interpretation is
[but] ‘ “one of several interpretive tools that may be helpful. In the end, . . . ‘[the court]
must . . . independently judge the text of the statute.’ ” ’ ” (Azusa Land Partners v.
Department of Industrial Relations (2010) 191 Cal.App.4th 1, 14.) Ultimately, we
cannot accept the Board’s interpretation of section 480(c) because it is contrary to the
provision’s plain language and purpose.
       C.     Section 480(c) Does Not Currently Prohibit the Board from Relying on
              Conduct Underlying a Dismissed Conviction to Restrict or Deny a License.
       The Board also claims that even if section 480(c) prevents it from relying on
multiple past dismissed convictions to restrict or deny a license, the trial court incorrectly
concluded that the statute also prevents it from relying on the conduct underlying those
convictions. We agree that until July 1, 2020, when Assem. Bill No. 2138 goes into
effect, the Board may rely on conduct underlying dismissed convictions so long as that
conduct independently qualifies as a basis for denying a license.
       We begin by accepting, somewhat reluctantly, that the statement of issues
provided Moustafa with sufficient notice that the Board sought to deny her a license

       7
        For the same reason, we reject the argument that applying section 480(c) to
applicants with multiple dismissed convictions impairs the Board’s ability to protect the
public. This concern was addressed by the Legislature in limiting the statute’s reach to
offenders who are sufficiently rehabilitated to obtain dismissal of their convictions. Also,
as we explain further below, under current law the Board is not categorically precluded
from relying on the conduct underlying dismissed convictions to deny a license.


                                              11
based not only on her dismissed convictions but also on the conduct underlying them.
The reason for our reticence is that the heading of each cause was “Conviction of
Substantially Related Crime,” and each cause alleged that Moustafa’s application was
“subject to denial . . . in that [she] was convicted of a crime substantially related to the
duties, functions, or qualifications of a registered nurse.” Although the causes also
briefly described the conduct underlying the offenses, nothing in the text of the
allegations stated that the conduct itself justified a license denial or restriction. A
reasonable recipient of the statement of issues would not have easily understood that the
Board sought to deny the license on the basis of the conduct underlying the dismissed
convictions.
       Nevertheless, each cause identified as authority not only section 480(a)(1), which
provides for denial based on a conviction itself, but also section 480, subdivision (a)(3)
(section 480(a)(3)), which provides for denial based on acts substantially related to a
profession that would be grounds for discipline if the applicant already had a license. In
turn, each cause specified that section 480(a)(3) constituted authority by reference to
section 2761, subdivision (a) (section 2761(a)), which authorizes the Board to impose
discipline for “[u]nprofessional conduct.” 8 The identification of this authority provided
technical notice that the Board sought to deny a license on the basis of the conduct
underlying the convictions. And there is no dispute that the ALJ relied on some of this
conduct to conclude that Moustafa should receive a restricted license.
       Turning to the merits, we agree with the Board that, contrary to the trial court’s
determination otherwise, section 480(c) does not currently prohibit it from considering
       8
         Each cause also specified that section 480(a)(3) constituted authority for license
denial by reference to section 2761, subdivision (f), under which the Board can impose
discipline for “[c]onviction of a felony or of any offense substantially related to the
qualifications, functions, and duties of a registered nurse, in which event the record of
conviction shall be conclusive evidence thereof.” The Board does not suggest that its
reliance on this statutory ground to deny a license should be analyzed any differently than
the broader ground under section 480(a)(1) for conviction of “any crime,” and we
therefore confine our discussion to whether the license restriction was justified because
her underlying conduct constituted “unprofessional conduct.”


                                              12
the conduct underlying a dismissed conviction. The provision’s plain language prohibits
reliance on only a dismissed “conviction” to deny a license (italics added), and the
applicable laws make clear that a license may be denied based on acts as well. Consistent
with this distinction, courts have treated convictions and the conduct underlying them as
separate bases for denying an application or imposing discipline.
       Sulla is illustrative. In that case, our colleagues in Division Five of this court
addressed whether the Board could take disciplinary action against a licensed nurse based
on his conduct of driving drunk and his resulting criminal conviction. (Sulla, supra,
205 Cal.App.4th at p. 1201.) In holding that section 2762 authorized discipline for
alcohol-abuse-related convictions and conduct without the need for “a separate
determination of a nexus or relationship to the licensee’s professional fitness,” the court
rejected the contention that section 490, subdivision (b)—which prohibits a board from
disciplining a licensee “for conviction of a crime” unless the crime is “substantially
related” to the relevant profession—required such a separate determination. (Sulla, at
pp. 1201-1202, 1204-1205.) But even if section 490, subdivision (b) had barred the
Board from relying on the licensee’s conviction to discipline him, the licensee had also
been disciplined based on his conduct. And because that provision “applies only to
disciplinary actions that are based on a criminal conviction” and “does not on its face
apply” to unprofessional conduct, the Board’s decision could be affirmed based on the
conduct ground alone. (Sulla, at p. 1206.) Sulla supports our conclusion that
section 480(c), which likewise applies on its face only to convictions, does not prohibit
the Board from relying on the conduct underlying convictions to deny a license.
       The trial court found that section 480(c) would be “essentially meaningless” if
interpreted to permit the Board to restrict licenses based on conduct underlying dismissed
convictions. We cannot agree. Under section 480(a)(1), a board can deny a license to an
applicant who has “[b]een convicted of a crime” based on no more proof than the
conviction itself. (See § 493 [in licensing proceedings “the record of conviction of [a]
crime shall be conclusive evidence of the fact that the conviction occurred, but only of
that fact”].) In contrast, a board cannot deny a license to an applicant for other reasons,


                                              13
including because of the conduct leading to a conviction, without proof of additional
facts. We see no obvious inconsistency in precluding reliance on dismissed convictions
themselves while still permitting reliance on conduct underlying those convictions that a
board can actually prove. Until Assem. Bill No. 2138 becomes operative on July 1, 2020,
boards may rely on conduct underlying dismissed convictions when that conduct
independently qualifies as a basis for denying a license.
       We recognize that Assem. Bill No. 2138 has an anomalous effect in that it will bar
the Board from relying on conduct underlying dismissed convictions to deny or restrict a
license, but it will not bar the Board from relying on identical conduct (so long as it
independently qualifies as a basis for denying a license) that did not result in a criminal
conviction. In a sense, applicants will be worse off when they are not convicted of a
crime than when they are convicted and obtain a dismissal. In light of this anomaly, we
expect that when the Board considers appropriate sanctions based on applicants’ conduct,
it will assess the circumstances of the conduct thoughtfully, reject categorical
assumptions, and take to heart the Legislature’s clear intent in enacting Assem. Bill
No. 2138 to reduce licensing and employment barriers for people who are rehabilitated.




                                             14
       D.     The Board Could Restrict Moustafa’s License on the Basis of the
              Shoplifting Conduct Underlying Two of the Dismissed Convictions.
       Our determination that the Board is not barred from relying on the conduct
underlying dismissed convictions to deny a license does not necessarily mean that it
properly found that Moustafa’s underlying conduct was “unprofessional conduct” under
section 2761(a) that “substantially related” to nursing under section 480,
subdivision (a)(3)(B). 9 This issue also presents legal questions that we review de novo.
(See Sulla, supra, 205 Cal.App.4th at pp. 1204-1205; Krain v. Medical Board (1999)
71 Cal.App.4th 1416, 1424.)
              1.      “Unprofessional conduct.”
       We begin our analysis by reviewing the relevant statutory and regulatory
provisions. Section 2761(a) provides that “[u]nprofessional conduct . . . includes, but is
not limited to, the following”:
       (1)    Incompetence, or gross negligence in carrying out usual certified or
              licensed nursing functions.

       (2)    A conviction of practicing medicine without a license in violation of
              Chapter 5 (commencing with Section 2000) . . . .

       (3)    The use of advertising relating to nursing which violates
              Section 17500.

       (4)    Denial of licensure, revocation, suspension, restriction, or any other
              disciplinary action against a health care professional license or
              certificate by another state or territory of the United States, by any
              other government agency, or by another California health care
              professional licensing board.
       Other specific acts are defined as “unprofessional conduct” in various other
statutes and regulations. Under section 2762, a variety of drug- and alcohol-related
misconduct, including the use of controlled substances or alcoholic beverages in a
sufficiently dangerous manner, is “unprofessional conduct.” Under California Code of

       9
        We gave the parties an opportunity to submit supplemental briefing on this issue,
and only the Board did so.


                                            15
Regulations, title 16, section 1441, various acts related to failing to cooperate with the
Board in providing information are “unprofessional conduct.” And statutes that apply to
other professions in addition to nursing define various misconduct as “unprofessional
conduct,” including sections 726 (sexual misconduct), 733 (interference with patient’s
access to prescribed drug or device), and 810 (insurance fraud in connection with
professional activities). None of the conduct at issue here qualifies as any of the specific
types of unprofessional conduct listed in either section 2761(a) or any of these other
statutes or regulations.
       We agree with the Board that “[a]dditional forms of conduct may be deemed
unprofessional” because section 2761(a) provides that unprofessional conduct “ ‘is not
limited to’ ” the examples given. (See Gillis v. Dental Bd. of California (2012)
206 Cal.App.4th 311, 319-320 [interpreting same phrase in dental statute to mean that
“unlisted conduct may be ‘unprofessional conduct’ subject to discipline”], disapproved
on other grounds by Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, fn. 2.)
But while section 2761(a) reaches beyond the examples of unprofessional conduct it
identifies, its precise scope is left unstated.
       We are not aware of any published decision addressing the generic meaning of
“unprofessional conduct” under section 2761(a), but other decisions have interpreted the
phrase as used in statutes governing other professions. In Morrison v. State Board of
Education (1969) 1 Cal.3d 214 (Morrison), the Supreme Court held that the term
“unprofessional conduct” under former Education Code section 13202 covered only that
conduct “which indicates unfitness to teach.” (Morrison, at p. 225.) The Court
concluded that the term had to “depend upon, and thus relate to, the occupation involved”
since “the Legislature surely did not mean to endow the employing agency with the
power to dismiss any employee whose personal, private conduct incurred its
disapproval.” (Id. at pp. 225, 227.)
       In Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, the Third
District Court of Appeal interpreted former section 2361. As does section 2761(a), that
statute defined “unprofessional conduct” to include but not be limited to certain types of


                                                  16
conduct. (Shea, at p. 575.) Citing Morrison, Shea observed that this language did “not
mean . . . that an overly broad connotation is to be given the term ‘unprofessional
conduct;’ it must relate to conduct which indicates an unfitness to practice medicine.”
(Ibid.) Specifically, the court interpreted the term to mean “that conduct which breaches
the rules or ethical code of a profession, or conduct which is unbecoming a member in
good standing of a profession.” (Ibid.) Subsequently, Division Three of this court
cautioned that Shea’s language about “ ‘conduct which breaches the rules or ethical code
of a profession’ ” was “at best dicta or at least an overstatement of the applicable law,”
explaining that the touchstone was “ ‘unfitness to practice medicine.’ ” (Thorburn v.
Department of Corrections (1998) 66 Cal.App.4th 1284, 1289-1291.)
              2.     “Substantially related.”
       “[T]he Board’s authority to take disciplinary action against a licensed nurse
derives from the state’s inherent power to regulate the use of property to preserve public
health, morals, comfort, order[,] and safety.” (Sulla, supra, 205 Cal.App.4th at p. 1206.)
The substantial-relationship requirement stems from the due process principle that “a
statute constitutionally can prohibit an individual from practicing a lawful profession
only for reasons related to his or her fitness or competence to practice that profession.”
(Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788.) To satisfy
this standard, “ ‘[t]here must be a logical connection of licensees’ [or applicants’]
conduct to their fitness or competence to practice the profession or to the qualifications,
functions, or duties of the profession in question.’ ” (Griffiths v. Superior Court (2002)
96 Cal.App.4th 757, 769.)
       Section 480 itself does not define what it means for conduct to be “substantially
related to the qualifications, functions, or duties of the business or profession for which
application is made.” (§ 480(a)(3)(B).) Instead, section 481 requires boards to “develop
criteria to aid [them], when considering the denial, suspension[,] or revocation of a
license, to determine whether a crime or act is substantially related to the qualifications,
functions, or duties of the business or profession it regulates.” To comply with this
directive, the Board adopted California Code of Regulations, title 16, section 1444


                                             17
(section 1444), which provides that “[a] conviction or act shall be considered to be
substantially related to the qualifications, functions[,] or duties of a registered nurse if to
a substantial degree it evidences the present or potential unfitness of a registered nurse to
practice in a manner consistent with the public health, safety, or welfare.” The regulation
lists examples of such convictions or acts, including “[t]heft, dishonesty, fraud, or
deceit.” (§ 1444, subd. (c).)
              3.      The relationship between unprofessional conduct and conduct
                      substantially related to the practice of nursing.
       In ruling that the conduct underlying three of the convictions here justified issuing
Moustafa a restricted license, the ALJ focused on the requirement that the conduct be
substantially related to the practice of nursing under section 480(a)(3). Without making
additional factual findings beyond those about the convictions themselves, the ALJ
determined that Moustafa’s “two acts of theft” were “substantially related by regulation”
to nursing, citing section 1444, subdivision (c). The ALJ also determined that Moustafa’s
“removal and damage of the boot lawfully placed on her car” were substantially related to
nursing because they “evidence[d] unfitness to practice consistently with the public
health, safety[,] or welfare.” Based on these determinations, the ALJ concluded that
“cause for denial based upon acts of unprofessional conduct as provided in . . .
sections 480[(a)(3)] . . . and 2761[(a)] . . . was established.” In other words, the ALJ
assumed that a finding of a substantial relationship between the conduct and nursing also
established that the conduct was “unprofessional.”
       Likewise, on appeal the Board assumes that conduct qualifies as unprofessional
“so long as [it] meets the constitutional minimum of a logical nexus to [the] practice” of
nursing, i.e., so long as it substantially relates to that practice. Although we need not
determine the precise overlap between unprofessional conduct and conduct that is
substantially related to the practice of a profession, we accept that whether the conduct at
issue in this case qualifies as unprofessional conduct or substantially relates to the
practice of nursing turns on the same issue: whether the conduct sufficiently established
Moustafa’s unfitness to be a nurse. (See § 1444; Griffiths v. Superior Court, supra,


                                               18
96 Cal.App.4th at p. 769; Thorburn v. Department of Corrections, supra, 66 Cal.App.4th
at pp. 1290-1291.) Specifically, we accept the Board’s position that if Moustafa’s
conduct “to a substantial degree . . . evidence[d her] present or potential unfitness . . . to
practice in a manner consistent with the public health, safety, or welfare” under
section 1444, it also constituted unprofessional conduct under section 2761(a).
              4.      Moustafa’s shoplifting conduct was substantially related to her
                      fitness to practice nursing.
       In determining that the conduct underlying three of the convictions justified a
restricted license, the ALJ relied on three factual findings, one per conviction. The only
source for the findings’ brief descriptions of the underlying conduct was a letter from
Moustafa, which is not in our record. As set forth in part I. above, her underlying
conduct was (1) switching a price tag on an item at Macy’s and then trying to buy the
item; (2) shoplifting a dress from Macy’s; and (3) removing and destroying a boot placed
on her car due to unpaid parking tickets. Although we reject the Board’s sweeping view
of what constitutes unprofessional conduct substantially related to nursing, we conclude
that Moustafa’s relatively recent shoplifting sufficiently reflected her present or potential
unfitness to practice nursing in a manner consistent with the public, safety, or welfare.
       Initially, we reject the ALJ’s apparent determination that the conduct underlying
the two petty theft convictions was necessarily “substantially related by regulation”
because of section 1444, subdivision (c). Although that subdivision lists “[t]heft,
dishonesty, fraud, or deceit” as examples, we cannot accept the position taken by the
Board at oral argument that literally any act involving theft, dishonesty, fraud, or deceit is
substantially related to nursing. We can imagine many acts of petty theft or dishonesty
that cannot reasonably be considered to relate to nursing qualifications. The theft of a
candy bar by a third grader, for example, would not provide reasonable justification for
the Board to deny that person a nursing license when he or she reaches adulthood.
Rather, these types of acts must still, “to a substantial degree,” reflect on an applicant’s or
licensee’s “present or potential unfitness . . . to practice in a manner consistent with the
public health, safety, or welfare.” (§ 1444.) Thus, to the extent the ALJ’s determination


                                              19
that a substantial relationship existed “by regulation” included an implicit finding that
Moustafa’s past acts substantially reflected her present or potential unfitness to be a nurse
merely because they involved theft and dishonesty, that finding was incorrect as a matter
of law.
       As the Board points out, other decisions have found conduct evincing serious
dishonesty to reflect unfitness to practice a profession even when the conduct does not
directly involve the profession’s qualifications, functions, or duties. (See, e.g., Pirouzian
v. Superior Court (2016) 1 Cal.App.5th 438, 447-448 (physician made “series of
intentional misrepresentations to his psychiatrist, his employer, his disability insurance
carrier, and the [Employment Development Department]” involving “his employment
status and disability insurance benefits”]); Windham v. Board of Medical Quality
Assurance (1980) 104 Cal.App.3d 461, 470 [physician committed tax fraud amounting to
$65,000, suggesting inability to be honest with patients or in professional financial
dealings with government].) Consistent with these authorities, another statutory ground
for denying a license to a professional applicant is that the applicant has “[d]one any act
involving dishonesty, fraud, or deceit with the intent to substantially benefit himself or
herself or another, or substantially injure another,” which does not require a separate
determination that the act is substantially related to the practice of the profession. (§ 480,
subd. (a)(2).) Here, however, the Board did not rely on this statutory ground to deny an
unrestricted license. And even if it had, we would question whether the shoplifting of
small-value items or the removal of a car boot evinced Moustafa’s intent to “substantially
benefit” herself or “substantially injure” another party.
       Nevertheless, we conclude that Moustafa’s shoplifting activity was, if only barely,
substantially related to her fitness to practice nursing so as to justify a restricted license.
Although we do not believe that Moustafa’s conduct is comparable to the conduct at issue
in the above decisions, we recognize that nurses hold positions of extreme trust and have
access to the property of others, including property of vulnerable patients. Even though
Moustafa shoplifted while still in college, did not take anything of significant value, and



                                               20
did not steal from a patient or an entity she would encounter as a nurse, we cannot say as
a matter of law that the conduct did not justify restricting her license.
       At the same time, we see no rational basis for the Board’s determination that
Moustafa’s act of vandalism bore on her fitness to practice nursing. The ALJ did not
explain why this conduct was substantially related to nursing except for the conclusory
assertion that it “evidence[d] unfitness to practice consistently with the public health,
safety[,] or welfare.” In our view, removing and damaging a vehicle boot cannot
reasonably be considered to constitute unprofessional conduct substantially related to
nursing, and it therefore was not conduct that independently qualified as a basis for the
license restriction.
                                             III.
                                        DISPOSITION

       The judgment is reversed. The parties shall bear their own costs on appeal.




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                                            _________________________
                                            Humes, P.J.



We concur:



_________________________
Margulies, J.



_________________________
Banke, J.




Moustafa v. Board of Registered Nursing A150266




                                       22
Trial Court:

       Superior Court of the City and County of San Francisco



Trial Judge:

       Hon. Harold E. Kahn



Counsel for Plaintiff and Respondent:

       Radwa Mohamed Moustafa, in pro per


Counsel for Defendant and Appellant:

       Xavier Becerra, Attorney General

       Linda K. Schneider, Senior Assistant Attorney General

       Joshua A. Room, Supervising Deputy Attorney General




Moustafa v. Board of Registered Nursing A150266


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