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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Villa v. Modica CA2/7

California Court of Appeal

• Citations: None known
• Docket Number: B346412

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (24.4K)

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Combined Opinion

Filed 2/26/26 Villa v. Modica CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SALVADOR VILLA, B346412

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 23LBCP00459)

THOMAS MODICA et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael P. Vicencia, Judge. Reversed and
remanded with directions.
Law Office of James E. Trott and James E. Trott for
Plaintiff and Appellant.
Dawn McIntosh, City Attorney, and Gary J. Anderson,
Assistant Deputy City Attorney, for Defendants and
Respondents.

---

The City of Long Beach (City) discharged Detective
Salvador Villa from the Long Beach Police Department (LBPD or
Department) based on four charges arising from his operation
while on duty of a private e-commerce business selling “challenge
coins,” plastic badges, and other products using the name and
images of the LBPD, and two charges alleging he was untruthful
during internal affairs (IA) interviews about his business. The
Long Beach Civil Service Commission (Commission) sustained the
four charges relating to Villa’s operation of the business and one
of the two charges for untruthfulness, and it affirmed Villa’s
discharge. The trial court issued a writ of mandate reversing the
sustained untruthfulness charge but upholding the discharge.
On appeal, Villa contends the trial court erred in failing to
order the Commission to reconsider the penalty in light of
reversal of the untruthfulness charge. In the alternative, Villa
argues the court should have reversed the Commission’s order
discharging Villa because the remaining charges for conducting
business were minor. We agree with Villa’s first contention and
reverse the judgment. We direct the trial court to issue a
peremptory writ of mandate requiring the Commission to
reconsider the appropriate penalty based on the four remaining
charges.

FACTUAL AND PROCEDURAL BACKGROUND

A. Villa’s Employment, E-commerce Business, the First IA
Investigation, and the Letter of Reprimand
Villa worked for the Department as a detective in the
juvenile investigations and financial crimes units from 2016 until
his discharge in November 2021. He previously worked for the

2
Department from 2004 through 2007 but had resigned to work for
two other police departments.
In June 2019 Villa started a private e-commerce business
named Clear Hot Gear. The business coordinated with vendors
to create and sell products on Villa’s business website, including
challenge coins,1 patches, and plastic badges, some of which
displayed text or insignia referencing the Department. For
example, the business sold a plastic version of the LBPD badge.
Villa’s then-19-year-old stepson, Christian Martinez, worked for
the business, assisting with packaging and shipping orders.
In late 2019 the Department opened an IA investigation
into Villa’s business after one of the business’s vendors filed a
payment-related complaint with the Department. On May 27,
2020 Sergeant Robert Ryan conducted an IA interview of Villa in
which Sergeant Ryan inquired about the business’s finances and
the products it sold.
In June or July 2020, Commander Steve Lauricella called
Villa into his office and stated he had received pictures of items
sold on the business’s website containing the name or images of
the LBPD. Commander Lauricella ordered Villa to stop selling
the products because they were trademarked. Villa did not tell
Commander Lauricella (despite his later claim) that he no longer
owned the business.

1 At the Commission hearing, LBPD Commander Bryan
LeBaron described challenge coins as collectible coins produced
by Department units and sold (typically for about $10) or given to
officers, for example, at trainings. The officers would then
display the coins, trade them, or give them as gifts. Villa’s
business sold some challenge coins created by Department units
and others created by private vendors.

3
On September 2, 2020 the Department sent Villa a letter of
reprimand based on the charge that “between June 2019 and
May 2020, . . . Villa . . . engaged in collateral employment without
City or Departmental approval.” The letter stated Villa’s conduct
violated the Civil Service Rules and Regulations, the LBPD
Manual, and the City’s Personnel Policies and Procedures.
Further, the letter warned that if Villa did not correct his
“deficient performance,” the Department “will impose more
severe discipline for future violations of Department Rules and
Regulations.”

B. The Second IA Investigation and Notice of Proposed
Discipline
At some point following the first IA investigation, the
Department tasked Lieutenant Rico Fernandez with writing a
letter of transmittal summarizing the investigation. Lieutenant
Fernandez disclosed that he had purchased a challenge coin from
Clear Hot Gear’s website approximately one month after Villa’s
meeting with Commander Lauricella, prompting the Department
to open a second IA investigation into Villa’s business.
On January 14, 2021 Villa was interviewed by the IA unit.
During the interview, Villa twice responded “No” when asked
whether he ever conducted business related to Clear Hot Gear
while on duty with the Department. He stated he sold the
business to Martinez by a letter Villa drafted a week or two after
his May 27, 2020 interview with Sergeant Ryan. When asked
whether he had a copy of the letter, Villa stated he did not bring
a copy to the interview but he could “track down the original
one.”

4
After the January 2021 interview, the IA unit conducted a
forensic search of Villa’s work computer and email account. The
search revealed six instances before the May 2020 IA interview in
which Villa either accessed documents related to his business
stored on his work computer or sent business-related documents
between his City and personal email addresses. The search also
revealed that on August 20, 2020 (after his meeting with
Commander Lauricella), Villa downloaded and accessed on his
work computer a vendor inventory form that listed products
Clear Hot Gear purchased from the vendor and then sold on its
website (the vendor product list).
On July 13, 2021 Villa had a second IA interview. Villa
admitted to using his City email address to send business-related
emails but explained he did this on his breaks or after his shift.
Villa was unable to explain why he accessed the vendor product
list on his work computer over two months after he sold the
business, although he speculated that he could have been
transferring the file to a thumb drive. Villa still did not provide
the letter transferring his business. During the final IA
interview on August 4, 2021, the IA investigator again requested
a copy of the letter transferring Clear Hot Gear, but Villa did not
provide it.
On August 18, 2021 Villa received a notice of proposed
discipline from the Department stating the following charges:
(1) using the LBPD name to sell a “Long Beach 2020 Riots
Challenge Coin” in 2020 in a way that was inconsistent with
Department values and brought discredit to the Department;
(2) using the Department badge, name, or prestige for personal
gain in 2019 and 2020 by selling souvenirs using the Department
name or insignias on the Clear Hot Gear website without prior

5
approval; (3) using Department facilities and equipment for
personal gain when in June 2019 he used a photo taken inside a
Department vehicle to market his business without prior
approval; (4) using city computers, equipment, email, and the
Internet between June 21, 2019 and April 29, 2020 while on duty
to conduct personal business activities; (5) being untruthful
during his January 14, 2021 IA interview when he said he never
conducted business for Clear Hot Gear while on duty; and
(6) being untruthful during his January 14 and July 13, 2021 IA
interviews by stating he had relinquished ownership of Clear Hot
Gear approximately two weeks after his May 2020 IA interview.
The notice cited violations of the Civil Service Rules and
Regulations and LBPD Manual, and it recommended dismissal.

C. Villa’s Skelly Hearing, Discharge, and Appeal to the
Commission
On October 20, 2021 Villa attended a Skelly2 hearing with
his counsel overseen by LBPD Commander Bryan LeBaron. Villa
presented a letter admitting to charges 1 through 4. He
explained as to charge 5 that he answered “No” in the first IA
interview to the question whether he had conducted business for
Clear Hot Gear while on duty because he thought the question
concerned processing, picking up, and delivering orders. Villa

2 In Skelly v. State Personnel Board (1975) 15 Cal.3d 194,
215, the Supreme Court held a permanent civil service employee
has a due process right to certain pre-removal safeguards,
including “notice of the proposed action, the reasons therefor, a
copy of the charges and materials upon which the action is based,
and the right to respond, either orally or in writing, to the
authority initially imposing discipline.”

6
asserted that when he was later asked more specific questions,
including whether he had used the City’s electronic property,
such as a “scanner/printer,” he admitted to it. With respect to
charge 6, Villa provided a June 6, 2020 bill of sale signed by him
and Martinez that transferred Clear Hot Gear’s ownership rights
and assets to Martinez.
Following the Skelly hearing, then-Chief Robert Luna met
with then-Assistant Chief Wally Hebeish and Commander
LeBaron, and Chief Luna decided to sustain all six charges
against Villa and to discharge him. On November 24, 2021 the
Department served Villa with a dismissal letter, which cited the
six charges in the notice of proposed discipline. Villa appealed
his discharge to the Commission, and the Commission held a
hearing on October 26, 2022.

D. The Commission Hearing
1. Villa’s Testimony
At the beginning of the hearing, Villa stipulated to
charges 1 through 4.3 Villa testified that while he was operating
Clear Hot Gear, he sold coins and patches provided by the
Department’s homicide and robbery units with approval from a
superior officer.
With respect to charge 5, Villa confirmed that during his
January 2021 IA interview, he responded “No” to questions
regarding conducting business while on duty. Villa explained

3 With respect to charge 1, Villa admitted to selling the
challenge coin but not that the coin was inconsistent with the
integrity or values of the Department. Despite this limited
admission, the Commission sustained the charge, and Villa did
not challenge that finding in his petition in the trial court.

7
that investigators had been asking numerous questions about
transactions, and he thought the questions were about “hand-to-
hand transactions—drop offs, pick ups,” as opposed to copying or
scanning.
Regarding charge 6, Villa testified he was not concerned
about complying with Commander Lauricella’s order to stop
selling products on his website because he had already sold the
business to Martinez by the time of the meeting. Villa
acknowledged he accessed the vendor product list on his work
computer in August of 2020, but he stated he did so because he
was looking for items he might be interested in purchasing, not
because he was conducting business for Clear Hot Gear.

1. Martinez’s Testimony Martinez testified he worked for Clear Hot Gear until he purchased the business from Villa on June 6, 2020. Villa told Martinez he no longer had time for the business, and Martinez offered to take it over after noticing Villa was stressed and dealing with the Long Beach riots and the impacts of COVID-19 at work. The two men met on June 6, Martinez offered Villa $500 to purchase the business, and Villa accepted. Villa then presented the bill of sale, and they both signed it. Thereafter, Martinez took full control of Clear Hot Gear’s day-to-day operations, and Villa had no further involvement or interest in the business.

8
3. Commander LeBaron’s Testimony
Commander LeBaron testified on behalf of Chiefs of Police
Luna and Hebeish.4 Because Villa stipulated to
charges 1 through 4, Commander LeBaron’s testimony was
mostly limited to charges 5 and 6 and the Department’s decision
to discharge Villa. However, Commander LeBaron briefly
discussed the Department’s policy for personal use of Department
equipment (charge 4).
Commander LeBaron testified that Department personnel
were required to sign a policy addressing personal use of work
devices, but sergeants did not routinely audit or follow up on the
policy. Rather, they were “more strict about being untruthful
about [personal use].” Employees were allowed to briefly
purchase personal goods online while at work and take personal
calls, as long as they were reasonable and the personal conduct
did not interfere with their work. Department policy did not
categorize personal profit-seeking conduct any differently,
although Commander LeBaron believed supervisors would
perceive that conduct as more serious.
Commander LeBaron explained as to charge 5 that the
search of Villa’s work computer and email account showed Villa
had been untruthful because the results of the search
contradicted his claim he had not conducted business for Clear

4 Chief Luna was the chief of police at the time the
Department made the decision in 2021 to discharge Villa, and his
name appears on the dismissal letter. However, by the time of
the October 2022 Commission hearing, Chief Hebeish had
become chief of police. Commander LeBaron testified that Chief
Hebeish stated he would have discharged Villa had he been chief
at the time of the dismissal.

9
Hot Gear while on duty. Commander LeBaron did not find
credible Villa’s explanation that he understood the question to
refer to his picking up and delivering orders on duty because his
business involved reselling products to be shipped by someone
else, not Villa making personal deliveries. Villa’s other
explanation that he only conducted business during breaks or
after his shift was also not credible because there was no such
thing as an off-duty or unpaid break for Department officers
given that they were paid and expected to work during their
breaks.
Regarding charge 6, Villa had been untruthful regarding
selling his business because he did not provide the bill of sale
until his Skelly hearing, and the bill of sale inconsistently
referred to the transfer of the business in the present tense but
the signing of the agreement in the past tense (“This agreement
was signed on June 6”). Further, in August 2020 Villa accessed
the vendor product list despite claiming he had sold the business.
Commander LeBaron testified that Chief Luna found
dismissal was “the appropriate discipline for Detective Villa”
based on the Department sustaining all six charges. He
elaborated on the two principal bases for Chief Luna’s discharge
decision. First, Chief Luna believed Villa’s business damaged the
Department’s image and reputation because the products Clear
Hot Gear sold were “celebrating a long period of civil unrest
against police brutality” at a time when the Department “was
under extreme scrutiny” in the wake of George Floyd’s murder.
On May 30, 2020, following the murder of Floyd, the City had
experienced a night of civil unrest that turned violent and
involved looting and arson. The “trust between . . . the public and
the Department was under a lot of strain,” and the images on

10
Clear Hot Gear’s products were “not in line with the priorities of
what the chief of police was promoting.”
For example, the business sold a challenge coin (the
2020 Riots coin) that on one side depicted a logo reading “LB”
with a thin blue line surrounded by the script “Long Beach Police
Dept” and “2020 Riots” and on the other side depicted a skull
wearing a gas mask with crossed batons surrounded by text
reading “A Watch,” “B Watch,” “Hats & Bats,” and “Police,
Sheriff, CHP, Fire, National Guard.” (Capitalization omitted.)
The phrase “Hats & Bats” referred to when a police officer works
on riot and crowd control details because the officer would need to
put on a riot helmet and carry a longer riot baton. The skeleton
with a gas mask had a helmet with what looked like a badge with
an LBPD insignia. The agencies named on the coin were the ones
that responded to the civil unrest. The coin’s text and images
thereby appeared to inappropriately glorify the Department’s
response to the riots and civil unrest following George Floyd’s
murder. In addition, challenge coins sold or given out by the
Department are authorized by the Department and sold or given
to officers at trainings, but Villa’s challenge coins were created by
the vendor without authorization from the Department and
displayed images or insignia the Department did not use on its
coins.
Commander LeBaron acknowledged that sergeants and
secretaries of police units would sell Department-authorized
coins to LBPD officers. For instance, the Department’s homicide
and sex crime units had coins they would sell, and vendors that
worked with law enforcement would produce them. Commander
LeBaron recalled receiving a coin from the financial crimes unit
around the same time when the Department was under

11
significant scrutiny. The coin displayed an image inconsistent
with the chief’s priorities, and Commander LeBaron’s deputy
chief said the coin was unauthorized and ordered it to not be
produced.
Commander LeBaron explained the second reason for the
dismissal was that Chief Luna “expect[ed] every officer to be
honest. If an officer isn’t honest, and in this case he found that
Mr. Villa wasn’t, then . . . the consequence of that allegation
would be dismissal like any other truthfulness case.”
Commander LeBaron added that officers were required to be
truthful at all times without exception.

E. The Commission’s Decision
On October 26, 2022 the Commission accepted Villa’s
stipulation to charges 1 through 4 and found by a preponderance
of the evidence that Villa committed the acts alleged in charge 5,
which violated the Department’s Civil Service Rules and
Regulations and the LBPD manual. However, the Commission
did not find that Villa had violated the rules and regulations or
manual as to charge 6. The Commission concurred with the
City’s decision to discharge Villa.

F. The Trial Court’s Decision
On December 4, 2023 Villa filed a verified petition for writ
of mandate under Code of Civil Procedure section 1094.5 in the
trial court, challenging the Commission’s finding as to charge 5
(pertaining to Villa’s alleged untruthfulness in his January 2021
IA interview about conducting business while on duty) and the
decision to discharge Villa. After a hearing, the court issued a
minute order and judgment reversing charge 5 but upholding

12
Villa’s discharge. The court stated that charges 3 and 4 involved
the “de minimis use of office equipment for personal matters,”
and they “do not appear to be grounds for discipline” given
Commander LeBaron’s testimony that Department employees
could briefly use Department computers and landline telephones
for personal matters, and there was no rigorous enforcement of
the Department’s rule against personal use.
However, the trial court found that “[n]othing in the record
indicates that the Commission would not have chosen the same
level of discipline based on the admitted charges. The court
cannot reverse the administrative decision on the basis of the
penalty being too harsh; the court’s review is limited to whether
respondents met their burden of sustaining the charges levied
against petitioner. (See Cassidy v. California Bd. of Accountancy
(2013) 220 Cal.App.4th 620, 627 [(Cassidy)]).”
Villa timely appealed.

DISCUSSION

A. Standard of Review
Generally, “‘[in] a mandamus proceeding to review an
administrative order, the determination of the penalty by the
administrative body will not be disturbed unless there has been
an abuse of its discretion.’” (Skelly v. State Personnel Board
(1975) 15 Cal.3d 194, 217 (Skelly); accord, Pasos v. Los Angeles
County Civil Service Com. (2020) 52 Cal.App.5th 690, 700;
Cassidy, supra, 220 Cal.App.4th at p. 633.) When the penalty is
subsequently appealed after the trial court’s review, “‘an
appellate court vis-a-vis the trial court, conducts a de novo review
concerning possible abuse of discretion by the administrative

13
agency.’” (Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th
1394, 1404; accord, Pasos, at p. 700; Cassidy, at p. 627 [“we
review de novo whether the agency’s imposition of a particular
penalty on the petitioner constituted an abuse of discretion by the
agency”].)
However, where the trial court reverses some of the
charges sustained by the agency, a different standard applies to
whether the penalty should be upheld. As the Supreme Court
explained in Miller v. Eisenhower Medical Center (1980)
27 Cal.3d 614, 635 (Miller), “It is well settled . . . that in cases
involving the imposition of a penalty or other disciplinary action
by an administrative body, when it appears that some of the
charges are not sustained by the evidence, the matter will be
returned to the administrative body for redetermination in all
cases in which there is a ‘real doubt’ as to whether the same
action would have been taken upon a proper assessment of the
evidence.” (Accord, Franz v. Board of Medical Quality Assurance
(1982) 31 Cal.3d 124, 145 (Franz); Griego v. City of Barstow
(2023) 87 Cal.App.5th 133, 141 (Griego).) Real doubt exists
where a court “cannot say [the findings held improper] had no
influence in setting the discipline” (Franz, at p. 145), or where a
court’s “reading of the record as a whole raises a significant and
real doubt . . . as to whether the deliberative bod[y] involved, had
[it] been faced with only such [appropriate] evidence, would have
reached the result that they did” (Miller, at pp. 635-636).

14
B. The Trial Court Erred by Not Remanding the Case to the
Commission To Reconsider Villa’s Penalty5
Villa contends the trial court misapplied the standard
governing remand after it reversed the untruthfulness charge,
and further, there was a doubt about what discipline the
Commission would have imposed without the untruthfulness
charge because that was the most serious charge. We agree on
both counts.
The trial court cited Cassidy, supra, 220 Cal.App.4th at
page 627, in concluding the court could not reverse the agency’s
decision “on the basis of the penalty being too harsh,” and
instead, “the court’s review is limited to whether respondents met
their burden of sustaining the charges.” The court correctly
stated the general standard for reviewing the agency’s penalty,
that “‘“[t]he penalty imposed by an administrative body will not
be disturbed in mandamus proceedings unless an abuse of
discretion is demonstrated.”’” (Id. at p. 633.) But Cassidy
involved a different situation—there, the trial court found the
agency’s findings were supported by substantial evidence, as did
the Court of Appeal. (Id. at pp. 624, 631-633.) Thus, the question
for the trial court (and the appellate court) was whether the
agency abused its discretion in imposing the discipline on the
sustained charges. (Id. at p. 633.)

5 Because we conclude the case must be remanded for the
Commission to reconsider Villa’s penalty, we do not reach Villa’s
contention that discharge of Villa based on the four remaining
charges would be excessive. This is a determination for the
Commission to make in the first instance.

15
By contrast, because the trial court here found charge 5 for
untruthfulness was not supported by the evidence, the court had
to decide whether there was any doubt the Commission would
have discharged Villa on the remaining four charges, two of
which the court described as “de minimis” and insufficient to
support termination. (See Miller, supra, 27 Cal.3d at p. 635.) We
recognize the court pointed out that “[n]othing in the record
indicates that the Commission would not have chosen the same
level of discipline based on the admitted charges,” but it did not
consider the no-real-doubt standard. Under that standard, the
court would have needed to find the untruthfulness charge “had
no influence in setting the discipline” to support a decision not to
return the matter to the Commission. (Franz, supra, 31 Cal.3d at
p. 145.) And, as discussed, the trial court made clear its view it
had no authority to reverse the discharge penalty for being too
harsh, even if the Commission would have done so.
Moreover, even if we read the trial court’s ruling to apply
the correct standard, the record does not support a finding there
was no real doubt the Commission would have upheld Villa’s
discharge without sustaining the charge that Villa was
untruthful about conducting his business while on duty, because
charge 5 clearly influenced the Commission’s decision to uphold
Villa’s termination. Commander LeBaron testified that Chief
Luna’s decision to discharge Villa was based on all six charges,
that officers were required to be truthful “without exception,” and
that “the consequence of that allegation [in charge 5] would be
dismissal like any other untruthfulness case.” (Italics added.) But
Commander LeBaron never stated Villa had to be dismissed for
his misconduct with respect to operating the business and selling
challenge coins on duty, or that Villa’s conduct would likely

16
continue if any lesser discipline were imposed. (See Skelly,
supra, 15 Cal.3d at p. 218 [“relevant factors” in assessing
appropriateness of discipline “include the circumstances
surrounding the misconduct and the likelihood of its
recurrence”].) To the contrary, given the Commission’s reversal
of the finding on charge 6, the Commission must have found
there was insufficient evidence that Villa was untruthful when he
stated he sold the business in June 2020.
Although Commander LeBaron cited the Department’s
concerns over the imagery on Clear Hot Gear’s products that
glorified the police response to the post-Floyd riots and displayed
unapproved images, it is a reasonable inference that the four
admitted charges played less of a role in the decision to discharge
Villa. Commander LeBaron cited the 2020 Riots coin as an
example of a Clear Hot Gear product that was inconsistent with
Chief Luna’s priorities, but he acknowledged the Department had
a culture in which challenge coins depicting LBPD images were
ubiquitous and frequently exchanged. Indeed, Villa procured
some of the coins and patches he sold on his website from units
within the Department, with supervisor approval. Commander
LeBaron also described another unsanctioned challenge coin that
circulated in the Department shortly before Villa’s second IA
investigation. Commander LeBaron testified that his deputy
chief ordered the coins no longer be produced because they were
not authorized, but he did not indicate that any employees were
disciplined for circulating them. With respect to personal use of
work equipment, Commander LeBaron acknowledged the
Department did not routinely audit the policy and that it took
untruthfulness regarding the policy more seriously than
enforcement of the policy itself. On these facts, there remains

17
real doubt whether the Commission would have sustained Villa’s
discharge based on his stipulated charges alone.
Griego, supra, 87 Cal.App.5th 133, relied on by the City, is
distinguishable. There, the City of Barstow terminated its fire
captain based on four sustained findings, including his refusing
to follow multiple express directives not to coach children’s sports
teams while on duty, having an inappropriate (but non-sexual)
relationship with a high school student, carrying a concealed
handgun without a permit, and lying under penalty of perjury on
a court form about his possession of firearms. (Id. at pp. 138-
139.) The trial court found there was insufficient evidence to
support the sustained charge for having an inappropriate
relationship and remanded for the city to reconsider the
discipline. (Id. at p. 138.) The Court of Appeal reversed,
explaining “there is no real doubt the City would terminate
Griego” because the sustained conduct included a pattern of
untruthfulness that included perjury; he was “unapologetically
insubordinate” in “flouting direct commands from his superior”;
and he violated the gun laws by carrying a concealed handgun
without a permit, which would “‘would reasonably tend to cause
discredit to fall upon the City, its officers, agents or
departments.’” (Id. at p. 142.)
In contrast to Griego, in this case it was the untruthfulness
charges that were not sustained, leaving the potentially less
serious charges relating to the conduct of Villa’s business. The
facts in this case are more like those in Franz, supra, 31 Cal.3d at
pages 134 to 135 and 145, in which the Supreme Court held the
record did not support two of six findings by the Board of Medical
Quality Assurance that a doctor committed gross negligence,
while upholding two charges for dishonesty and falsifying a

18
medical record. The court remanded for the Board to reconsider
whether suspension of the doctor’s license was the appropriate
discipline based on the remaining charges, explaining, “The
findings held improper in this opinion imply serious dereliction of
a doctor’s duty to his patient. We cannot say they had no
influence in setting the discipline. On the other hand, major
charges have been sustained and some discipline clearly is
warranted.” (Id. at pp. 135, 145; see Bonham v. McConnell
(1955) 45 Cal.2d 304, 306 [trial court should have remanded case
to Insurance Commissioner to exercise his discretion to
determine the appropriate penalty for insurance broker’s
misconduct where trial court reversed three of 15 findings of
misconduct].)
Because the record does not show the Commission would
have imposed the same discipline on Villa had it not sustained
the truthfulness charge, the agency “should not be precluded
from exercising [its] discretion” to reconsider the penalty
imposed. (Bonham v. McConnell, supra, 45 Cal.2d at p. 306; see
Miller, supra, 27 Cal.3d at p. 636.) We therefore reverse the
judgment and remand to the trial court to issue a peremptory
writ of mandate directing the Commission to reconsider the
appropriate penalty to impose on Villa based on the four
remaining charges.

19
DISPOSITION

The judgment of the trial court is reversed. We direct the
trial court to issue a peremptory writ of mandate requiring the
Commission to reconsider the appropriate penalty for Villa’s four
stipulated charges. Villa is to recover his costs on appeal.

FEUER, J.
We concur:

SEGAL, Acting P. J.

GIZA, J.*

• Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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