Rand v. Bd. of Psychology

206 Cal.App.4th 565

142 Cal.Rptr.3d 288

Randy RAND, Plaintiff and Appellant,

v.BOARD OF PSYCHOLOGY, Defendant and Respondent.

No. C064475.

Court of Appeal, Third District, California.

May 10, 2012.

As Modified on Denial of Rehearing June 11, 2012.

Review Denied Aug. 15, 2012.

David Carico, El Segundo, and Law Offices of David Carico for Plaintiff and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Jose R. Guerrero, Kerry Weisel and David Carr, Deputy Attorneys General, for Defendant and Respondent.

Leslie Ellen Shear, Encino, and Stephen Temko, San Diego, for Association of Certified Family Law Specialists as Amicus Curiae.

MAURO, J.

Psychologist Randy Rand filed a petition for writ of administrative mandamus challenging the authority of the Board of Psychology (Board) to discipline him for unprofessional conduct, gross negligence, violation of laws governing the practice of psychology, and dishonesty. (bus. & prof.code, § 2960, subds. (i), (j), (k), (n).) ¹ the trial court entered judgment denying his writ petition.

Rand contends on appeal that (1) the Board lacked jurisdiction to discipline him for his conduct as a special master because (a) he was acting in a judicial capacity, and (b) he was not acting as a psychologist; (2) he was denied due process of law because (a) he was not given fair notice of prohibited conduct, and (b) there was no logical nexus between the Board's findings and unfitness to practice the profession; and (3) the Board's factual findings do not support a determination that he was dishonest.

We conclude that (1) the Board had jurisdiction to discipline Rand for his conduct as a special master because Rand was acting as a psychologist in his special master role; (2) Rand's due process contentions fail because (a) the rules, standards and guidelines for psychology practice gave him fair notice of prohibited conduct, and (b) Rand failed to meet his burden of showing that there is no logical nexus between his unprofessional conduct and his fitness to practice the profession; and (3) substantial evidence supports the trial court's findings that Rand was dishonest.

We will affirm the judgment.

BACKGROUND

The Board disciplined Rand based on his unprofessional conduct in two different court proceedings. In the first, Rand was a special master in a family law matter in California, and in the second, he telephonically testified under oath in a family law proceeding in Florida.

Rand was appointed as a special master in a high-conflict divorce proceeding between Loyal Davis and Jennifer Ives in Sonoma County, California. Davis and Ives had “ongoing issues” concerning visitation, and according to the special master agreement between the parties, Rand was appointed to assist them “ ‘based upon [his] expertise ... as a court-appointed expert and license [d] mental health professional.’ ” Rand was to make decisions regarding matters such as dates, times, and methods of delivery of the children; sharing of vacations and holidays; participation by relatives in visitation; health care management; and communication with the children during non-custodial times. He was prohibited from making any orders affecting the court's exclusive jurisdiction to determine fundamental issues of custody and visitation, and could not make any orders altering or awarding physical or legal custody.

As the Board stated, and the trial court reiterated: “Special masters are generally used in high-conflict family law cases. One or more of the parties is likely to be combative, adversarial and difficult to deal with. The special master must remain neutral and impartial. The special master must avoid the appearance of favoring one side or the other or appear to align himself with one side or the other.” Rand failed to do so.

Early in his tenure as special master, Rand became frustrated with Ives, accused her of trying “ ‘to pull one over on [him],’ ” and essentially called her a liar. He told her he no longer trusted her and informed her she would have to corroborate everything to him. Rand emailed Ives that he could not work with dishonesty and incorrectly accused her of perjury.

Ives wrote Rand a letter outlining her grievances against him and asked him to resign as special master. Rand felt he “did not need the aggravation that comes with defending the grievance” and agreed to enter into confidential negotiations with Ives's attorney, Alan Silverman, concerning withdrawing as a special master. Rand was willing to resign but conditioned his resignation on Ives withdrawing her grievance against him. Rand asserted that if Ives pursued her grievance he would vigorously defend himself, his defense would not portray Ives in a favorable light, and she should think twice before making him defend himself. If Ives withdrew her grievance, however, then Rand would resign and state that he was doing so for the best interest of the children. If questioned by Davis, Rand would tell him he was not at liberty to disclose the reason for his withdrawal but that he should trust Rand's decision.

Ives wanted a clause in the agreement that permitted her to reinstitute her grievance if Rand made any future disclosures about her to Davis or the court. When Silverman told Rand that any waiver of Ives's grievance would have to be conditional, Rand stated she was unreasonable and he declined to resign.

Ives retained Frank Dougherty, who is licensed as a psychologist and attorney and had experience as a special master, to represent her on the limited issue of her grievance and to negotiate Rand's resignation. Dougherty sent Rand a formal association of counsel form, and also obtained approval from Davis's lawyer, Bruce Schwartz, to contact Rand. A conference call was scheduled between Rand and the attorneys to discuss the grievance, but Rand refused to permit Dougherty to participate. Rand stated that regardless of Dougherty's standing in the case, he would only speak with Silverman and Schwartz.

Dougherty wrote Rand a letter stating that based on Dougherty's experience as a forensic psychologist and special master in many family law cases, he found Ives's grievance meritorious, at least in part. Dougherty outlined the ways in which Rand's performance as a psychologist actingas a special master had been deficient, and observed that the focus of the case had shifted from resolving conflicts between the parents to resolving conflicts between Ives and Rand. Dougherty explained that Ives was not interested in ruining Rand's career by pursuing her complaint through the Board and she preferred addressing the matter informally. She requested that he resign immediately, issue no further orders, and agree to disqualify himself from offering any expert opinion related to custody matters in the case.

On June 1 and June 9, 2004, Rand participated in a conference call with Davis and Schwartz concerning Ives's grievance against Rand. On June 9, he sent an email to Silverman stating, “ ‘I have given several warnings and demands, I do not want any communication from or with Dr. Dougherty and I have the authority and discretion to communicate or not with any attorney in this matter, regardless of a standing of ‘association’ to you as attorney representing [Ives]. When I can, I'm asking for a restraining order.' ”

In August 2004, Dougherty substituted in as Ives's attorney for all purposes. However, at a court hearing a few months later, Rand stated under oath that he would not meet with or discuss the case with Dougherty.² He consistently refused to speak with Dougherty but continued to speak with Schwartz. For several years, Rand communicated with Davis and his attorney by telephone, refused to speak with Ives's attorney, and communicated with Ives by email only. He communicated comfortably with Davis at hearings, but refused to speak to Ives.

Later in the Sonoma County proceeding, and while still acting as a special master, Rand pursued a monetary claim against Ives based on her failure to pay her share of his special master fees. To recover on his claim, Rand filed a lien against property Ives owned in New Hampshire, and to assist him in this endeavor, he hired an attorney who had represented Davis against Ives in a custody matter there.

The Board ruled that based on clear and convincing expert testimony, Rand's conduct constituted an extreme departure from the standard of practice for a psychologist acting as a special master. The Board found that it is necessary for a special master to be impartial and to preserve the appearance of impartiality, but Rand treated the parties disparately, and did not make the appropriate effort to appear unbiased or to resolve his differences with Ives. Furthermore, he negotiated with Ives not to file a complaint with the Board. The Board concluded that cause for disciplinary action existed due to Rand's general unprofessional conduct, gross negligence, and violation of laws governing the practice of psychology. (§ 2960, subds. (j), (k).)

The other case that formed the basis for Rand's discipline involved a child custody proceeding in Florida state court. The father had sole custody of the child and the mother sought to change the custody status. A child custody evaluator concluded that the child was alienated from the mother and recommended counseling for the child with Dr. Robert Evans, a licensed school psychologist.

At a custody hearing, Evans testified that he believed the child needed to participate in a parental alienation program designed by Rand, who was an expert in the area of parental alienation syndrome. During the hearing, the judge telephoned Rand, placed him under oath, and questioned him about the intervention protocol proposed by Dr. Evans. Rand discussed the origins of his program, how it worked and the goal of the process. It involved reunifying a non-custodial parent with a child who had become alienated from the non-custodial parent and idolized the custodial parent....