ANGELUS A. ALLEGRETTI, Appellant, v. THE BOARD OF OSTEOPATHIC EXAMINERS OF THE STATE OF CALIFORNIA et al., Respondents
Civ. No. 21493
Court of Appeal of California, Second Appellate District, Division Three
145 Cal. App. 2d 435; 302 P.2d 694; 1956 Cal. App. LEXIS 1357
October 25, 1956
PROCEDURAL POSTURE: Appellant sought review by a writ of mandamus of the judgment of the Superior Court of Los Angeles County (California), which denied the writ of mandate annulling the action of respondent Board of Osteopathic Examiners of the State of California adjudging appellant guilty of violations of certain sections of the Business and Professions Code, suspending his license, and placing him on probation.
OVERVIEW: In the final hearing before the board, appellant was found guilty of the improper listing of his name as an "M.D." in the telephone directories in violations of Cal. Bus. & Prof. Code ? 2396. Appellant filed a petition for a writ of mandate, seeking to set aside and vacate the order of suspension after his petition for reconsideration was denied by the board. The trial court concluded that appellant was guilty of "a technical violation" of using "M.D.," and that appellant had been negligent in not verifying and learning what directory advertising he had been billed. On appeal, the court reversed the judgment denying the writ. The court found that the final order of the trial court was deemed to be the final judgment. The court held that it was beyond question that the members of the board found that appellant's conduct was tainted with bad faith and that he was not merely careless. The court reasoned that whether appellant had acted innocently or with ulterior motives was an issue that could only be determined from the evidence adduced upon a retrial and it was the sole question for decision.
OPINION: _We have for consideration an appeal of Angelus A. Allegretti from a judgment denying a writ of mandate annulling the action of The Board of Osteopathic Examiners of the State of California adjudging appellant guilty of violations of certain sections of the Business and Professions Code and suspending his license for the period of one year, also, suspending execution of said order for all but 60 days of said one-year period and placing him on probation for a period of two years upon certain specified conditions.
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In the course of the proceedings before the board and the court there was a failure to substantiate any of the charges except the first one which related to the improper listing of petitioner's name in the 1952 and 1953 directories. The other charges were dismissed. In the final hearing before the board petitioner was found guilty of the improper listing of his name as an "M.D." in the Los Angeles telephone directories in violations of section 2396 of the Business and Professions Code, n1 and the charge of failing to register his certificate with the county clerk (? 2340) was disregarded, in accordance with findings the court had made in ordering a reconsideration by the board.
The only relevant conclusion of law was the following:
"1. That Petitioner was negligent in not verifying and learning what directory advertising he was billed for in any of the 17 monthly billings mentioned in paragraph 5 of the Findings of Fact, and for which advertising he paid, and the union of the original mistake of the telephone company and the continuing negligence of Petitioner caused him to be guilty of at least a technical violation of the law as charged in Subdivision 1 of Paragraph III of the Accusation."
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CA(2)(2) Before entering upon a discussion of the findings and the evidence we should state what we believe to be the determinative factual issue. There is no doubt that petitioner was improperly listed in the telephone director as an "M.D." as found by the court. There was ample evidence to support the finding that the erroneous listing was the result of a mistake on the part of the telephone company. There was also evidence which the court could properly have believed that petitioner caused a cancellation of the listing on August 25, 1953 "about the time when petitioner learned of the listing of his name as an M.D. physician and surgeon." Petitioner paid an extra charge of 50 cents per month for directory advertising for a period of _[**698]_ 17 months. The court found that he was negligent in not finding out what the charges were for or how his name was listed. This finding, as we shall see, was inconclusive. Petitioner could have been negligent in these respects and yet innocent of any wrongful intention. Upon the other hand the finding that he was negligent does not_[***10]_ acquit him of having acted in bad faith and with ulterior motives.
The question is not merely whether petitioner had actual knowledge of the erroneous listing. It is rather the question whether he had reasonable cause to believe that his name was or might be incorrectly listed and refrained from making inquiry with the intention of taking advantage of the telephone company's mistake, if a mistake were being made. If his omission to make inquiry was wilful rather than innocent his lack of knowledge would be no defense to a charge that he made use of the suffix "M.D." The basic question, therefore, was whether his professed ignorance was the result of carelessness or culpability.
