Filed 10/6/20; Certified for publication 11/3/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MOHAMMADREZA YAZDI,

Plaintiff and Appellant,

v.

DENTAL BOARD OF 

CALIFORNIA,

Defendant and Respondent.

 B298130

 (Los Angeles County

 Super. Ct. No. BS172030)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mary H. Strobel, Judge. Affirmed.

Neufeld Marks and Paul S. Marks for Plaintiff and 

Appellant.

Xavier Becerra, Attorney General, Carl W. Sonne, 

Assistant Attorney General, David E. Brice and Morgan Malek, 

Deputy Attorneys General, for Defendant and Respondent.

_______________________
2

Appellant Mohammadreza Yazdi, an orthodontist, appeals 

from a judgment of the trial court denying his petition for writ of 

administrative mandate under Code of Civil Procedure section 

1094.5. The trial court denied the writ and affirmed a 

November 6, 2017 decision of the Dental Board of California, 

following a 10-day evidentiary hearing, revoking Yazdi’s dental 

license but staying the revocation and placing him on probation 

for five years. We have jurisdiction pursuant to Code of Civil 

Procedure section 904.1, subdivision (a). Finding that the trial 

court’s decision was supported by substantial evidence and 

proper exercise of discretion, we affirm.

BACKGROUND

Yazdi was first licensed in California as a dentist in 

October 1987. After further special training, he began private 

practice in orthodontics in 1994.

Between June and early November 2009, in response to 

patient complaints, the Dental Board directed Yazdi to produce 

the complete dental records of 12 patients. Yazdi failed to 

produce those records. The Dental Board then served on Yazdi 

12 subpoenas for those records on November 12, 2009. Yazdi 

failed to comply with the subpoenas. Based on the failure to 

produce complete records, the Dental Board then issued 12

citations, one on February 24, 2010, and the other 11 on April 14, 

2010. Eleven of the citations imposed a $250 per day fine, for 

each day the records were not produced, up to a maximum of 

$5,000. The February 24, 2010 citation imposed a $550 fine. 

Each citation required that the fine be paid within 30 days of 

issuance, and that the citation be abated by production of the 

requested records within 30 days.
3

Yazdi did not appeal the citations. He did not request an 

extension of time. He did not pay the fines. All 12 citations 

became final and non-appealable as of May 15, 2010. 

Nonetheless, Yazdi maintained communication with the Dental 

Board and mailed some of the requested records to the Dental 

Board. However, the Dental Board never received the complete 

dental records of any of the 12 patients it had requested of Yazdi.

The Dental Board filed its original accusation against Yazdi 

concerning the above events on October 21, 2010. A first 

amended accusation was filed on November 8, 2011. A hearing 

on these charges before a state administrative law judge was held 

in Los Angeles on March 5, 6, and 7, 2012. Finding that Yazdi 

had failed to pay the fines assessed by the Dental Board citations, 

and failed to produce the complete dental records in abatement of 

those citations, on May 4, 2012 the administrative law judge 

issued a decision recommending that Yazdi’s dental license be 

revoked, but that the revocation be stayed pending probation for 

a period of three years. The Dental Board adopted the 

administrative law judge’s decision on June 11, 2012, with an 

effective date of July 11, 2012.

While the above matter was pending, the Dental Board 

received four additional patient complaints against Yazdi that 

are the subject of the instant appeal. All four patients were 

minor children, and the complaints were made by one or both 

parents. On May 13, 2009, Connor O.’s parents registered a 

complaint seeking investigation of Yazdi’s dental license, a 

refund of “appropriate portions of monies paid up front,” and the 

release of the patient’s medical records. On July 25, 2009, the 

parents of Stephanie M. and her brother Christopher M. 

registered complaints alleging Yazdi’s failure to produce copies of 
4

their service contracts and medical records, excessive charging of 

fees, and dissatisfaction with the results of Yazdi’s orthodontic 

services. On February 4, 2010, the parents of Irina S. registered 

a complaint alleging that Yazdi refused to remove Irina’s braces 

until a fee balance was paid, and that he charged excessive fees.

The Dental Board assigned these complaints to an 

investigator who examined available medical records, 

interviewed the parents of each child patient, and sought the 

opinion of Dental Board expert Allan Sheridan, D.D.S. Dr. 

Sheridan issued reports in each case, concluding that respondent 

committed acts of gross negligence, repeated acts of negligence, 

unprofessional conduct, fraud, and incompetence. These 

conclusions led to the filing of the Dental Board’s third amended 

accusation against Yazdi on March 24, 2017.

Administrate Law Judge Matthew Goldsby, with the state 

Office of Administrative Hearings, heard this matter in Los 

Angeles, California on June 19 to 22, 2017, June 26 to 30, 2017, 

and July 21, 2017, for a total of 10 hearing days. Eighteen 

witnesses testified. The record was held open until August 28, 

2017, to allow both sides to file concurrent closing briefs, which 

both sides did. The matter was taken under submission on 

August 28, 2017. The administrative record is comprised of 

nearly 3,700 pages, including numerous exhibits and nearly 2,700 

pages of hearing transcripts. Both the Dental Board’s expert, Dr. 

Sheridan, and Yazdi’s expert, Jeffrey Cohen, D.M.D., testified 

concerning the relevant standards of care applicable to the 

disciplinary charges.

The administrative law judge’s decision, dated 

September 26, 2017, found that the Dental Board had not proved 

the accusations of gross negligence (1st, 6th, 11th, and 18th 
5

causes for discipline), incompetence (5th, 10th, and 15th causes 

for discipline), and two of the accusations of excessive treatment 

(7th and 14th causes for discipline). The decision found that the 

Dental Board had proved by clear and convincing evidence the 

accusations of repeated acts of negligence (2d cause for 

discipline), obtaining fees by fraud or misrepresentation (3d, 8th, 

12th, 14th, and 17th causes for discipline), failure to comply with 

record requests and excessive charges for records (4th, 9th, and 

13th causes for discipline), excessive treatment (16th cause for 

discipline), and unprofessional conduct by refusing to remove a 

patient’s braces until an outstanding fee was paid (19th cause for 

discipline). After reviewing the factors enumerated in the Dental 

Board’s published guidelines, the administrative law judge 

recommended discipline for Yazdi consisting of revocation of his 

dental license, stayed and placed him on probation on specified 

terms for a period of five years, with Yazdi’s license to be fully 

restored upon successful completion of probation. The decision 

also required Yazdi to reimburse $51,081.03 in costs incurred for 

investigation and prosecution of the charges.

The Dental Board adopted the administrative law judge’s 

decision and recommendation by order dated November 6, 2017.

On January 5, 2018, Yazdi filed in superior court a petition 

for writ of mandate challenging this decision under Code of Civil 

Procedure sections 1085 and 1094.5. The Dental Board answered 

the petition on February 1, 2018. Yazdi filed his opening brief in 

support of the petition on December 24, 2018. The Dental Board 
6

filed its opposition memorandum on February 26, 2019. Yazdi 

filed his reply brief in support of the petition on March 4, 2019.1

The trial court held a hearing as scheduled on March 19, 

2019. Oral argument consumed roughly 90 minutes, after which 

the trial court took the matter under submission. Later that day, 

the trial court issued a 12-page written decision affirming the 

majority of the findings of the Dental Board and affirming the 

discipline imposed by the Dental Board. Judgment denying the 

petition for writ of mandate was entered on April 2, 2019.

Yazdi filed his notice of appeal on May 31, 2019. The 

record on appeal includes an opening brief from Yazdi, a 

respondent’s brief from the Dental Board, appendices submitted 

by both Yazdi and the Dental Board, and the administrative 

record from the Dental Board proceedings (the same record 

considered by the trial court). No reply brief was filed by Yazdi.

DISCUSSION

A. Standard of Review

As revealed by its written decision, the trial court applied 

the “independent judgment” standard of review to the Dental 

Board’s decision ordering stayed, probational revocation of 

Yazdi’s license to practice. (Code Civ. Proc., § 1094.5; see Fukuda 

v. City of Angels (1999) 20 Cal.4th 805, 817.) This accorded with 

a long line of California precedent.

1 Neither the petition and answer nor any of the briefs filed 

in the trial court have been made part of the record on this 

appeal. The above information is derived from the trial court 

civil register.
7

“ ‘ “Under the independent judgment rule, the trial court 

must weigh the evidence and make its own determination as to 

whether the administrative findings should be sustained. When 

an appeal is taken from the trial court’s determination, it is given 

the same effect as any other judgment after trial rendered by the 

court: the only question is whether the trial court’s (not the 

administrative agency’s) findings are supported by substantial 

evidence. [Citation.] Conflicts in the evidence must be resolved 

in favor of the judgment and where two or more inferences can be 

reasonably drawn from the facts, the reviewing court must accept 

the inferences deduced by the trial court.” [Citation.] However, 

“. . . the trial court’s legal conclusions are open to our 

examination to determine if errors of law were committed.”

[Citation.] [¶] “Evidence is substantial if any reasonable trier of 

fact could have considered it reasonable, credible and of solid 

value.” [Citation.] Additionally, a reviewing court “may look to 

the findings in [the administrative agency’s] decision for guidance 

in determining whether the trial court’s judgment is supported by 

substantial evidence.” [Citation.]’ (Lam v. Bureau of Security & 

Investigative Services [(1995)] 34 Cal.App.4th [29,] 35-36.)” 

(Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786, 

796.)

“On appeal from a decision of a trial court applying its 

independent judgment, we review the trial court’s findings rather 

than those of the administrative agency. [Citation.] Specifically, 

we review the trial court’s factual findings for substantial 

evidence. In doing so, we must resolve all conflicts in favor of 

[the respondent], the party prevailing below. Further, we cannot 

reweigh the evidence. Thus, we do not determine whether 

substantial evidence would have supported a contrary judgment, 
8

but only whether substantial evidence supports the judgment 

actually made by the trial court. [Citations.] In sum, ‘[t]he 

question on appeal is whether the evidence reveals substantial 

support—contradicted or uncontradicted—for the trial court’s 

conclusion that the weight of the evidence supports the [agency’s]

findings of fact. [Citation.] We uphold the trial court’s findings 

unless they so lack evidentiary support that they are 

unreasonable.’ [Citation.]” (Norasingh v. Lightbourne (2014) 229 

Cal.App.4th 740, 753.)

At oral argument, counsel for Yazdi asserted for the first 

time that a different standard of review should have applied in 

the trial court, based on the California Supreme Court decision in 

Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.), which had 

been handed down two months before. We gave leave to the 

parties to submit further briefing on this question.

After reviewing this decision in light of the further briefing 

submitted by the parties, we have concluded that the O.B.

decision is not apposite to the administrative mandate setting we 

address here. O.B. addressed the situation where the trial court 

was the original finder of fact in a contested proceeding, and the 

“clear and convincing” standard of proof applied to particular 

findings made by the trial court. O.B. held that “an appellate 

court evaluating the sufficiency of the evidence in support of a 

finding must make an appropriate adjustment to its analysis 

when the clear and convincing standard of proof applied before 

the trial court. In general, when presented with a challenge to 

the sufficiency of the evidence associated with a finding requiring 

clear and convincing evidence, the court must determine whether 

the record, viewed as a whole, contains substantial evidence from 

which a reasonable trier of fact could have made the finding of 
9

high probability demanded by this standard of proof.” (O.B., 

supra, 9 Cal.5th at p. 1005.) The court further emphasized, “an 

appellate court reviewing a finding made pursuant to the clear 

and convincing standard does not reweigh the evidence itself. In 

assessing how the evidence reasonably could have been evaluated 

by the trier of fact, an appellate court reviewing such a finding is 

to view the record in the light most favorable to the judgment 

below; it must indulge reasonable inferences that the trier of fact 

might have drawn from the evidence; it must accept the 

factfinder’s resolution of conflicting evidence; and it may not 

insert its own views regarding the credibility of witnesses in 

place of the assessments conveyed by the judgment.” (Id. at 

p. 1008, italics added.)

Contrary to Yazdi’s assertion, we do not read the O.B.

decision as overturning the standard to be applied by the trial 

court in reviewing an administrative proceeding pursuant to a 

petition for writ of administrative mandate under Code of Civil 

Procedure section 1094.5. The O.B. case involved an appeal from 

a probate proceeding, not an administrative mandate proceeding. 

The O.B. decision made no mention of the decades of case law 

(including the cases cited earlier) concerning the review to be 

made initially in the trial court and subsequently by this court in 

the administrative mandate setting. Perhaps most significantly, 

the established standards for trial court review of an 

administrative proceeding involving a “fundamental vested right” 

explicitly call for the trial court to reweigh the evidence in its 

independent judgment. (E.g., Green v. Board of Dental 

Examiners, supra, 47 Cal.App.4th at p. 796.) This runs contrary 

to the language in the O.B. decision that we emphasized above, 

stating that the trial court should not reweigh the evidence. In 
10

sum, we are not persuaded that the O.B. decision intended to 

abolish the independent judgment standard in administrative 

mandate proceedings, and decline to do so here.

As for the discipline selected by the Dental Board and 

affirmed by the trial court, “[i]n a mandamus proceeding brought

to review an administrative order, the determination of penalty 

by the administrative body will not be disturbed absent a 

showing of an abuse of discretion. (Skelly v. State Personnel Bd.

(1975) 15 Cal.3d 194, 217 . . . ; Magit v. Board of Medical 

Examiners (1961) 57 Cal.2d 74, 87 . . . .) The discretion exercised 

by the administrative body must be an impartial one taking into 

account all relevant facts, together with legal principles essential 

to an informed and just decision. (Skelly v. State Personnel Bd., 

supra, . . . at pp. 217-218 . . . ; Catricala v. State Personnel Bd. 

(1974) 43 Cal.App.3d 642, 646 . . . .) However, even were the 

penalty to appear harsh to us, still we would not be free to 

substitute our discretion for that of the administrative body.

(Code Civ. Proc., § 1094.5, subd. (e); Cooper v. Board of Medical 

Examiners [(1975)] 49 Cal.App.3d [931,] 950 . . . .) The fact that 

reasonable minds might differ as to the propriety of the penalty 

imposed fortifies the conclusion that the administrative body 

acted within its discretion. (Ibid.; see also Lake v. Civil Service 

Commission (1975) 47 Cal.App.3d 224, 288 . . . .)” (Shea v. Board 

of Medical Examiners (1978) 81 Cal.App.3d 564, 579.) And, 

contrary to Yazdi’s assertion, the severity of the discipline which 

may be imposed does not depend on whether patients have been

medically injured by the challenged practices. (Bryce v. Board of 

Medical Quality Assurance (1986) 184 Cal.App.3d 1471, 1475.)

Yazdi has not followed the above principles in pursuing this 

appeal. Yazdi writes in his brief, “We prove below . . . that the 
11

grounds for discipline found by the [h]earing [o]fficer did not meet 

the ‘clear and convincing’ standard of evidence.” This misses the 

point; we are no longer concerned with the quality of evidence at 

the administrative hearing. We are addressing whether the trial 

court’s decision reviewing the administrative hearing, based on 

the trial court’s own independent judgment, was supported by

substantial evidence.

B. Statutory Framework

The disciplinary proceedings against Yazdi proceeded 

against the backdrop of three principal statutes.

Business and Professions Code section 1670 provides, in 

pertinent part: “Any licentiate may have his license revoked or 

suspended or be reprimanded or be placed on probation by the 

board for unprofessional conduct, or incompetence, or gross 

negligence, or repeated acts of negligence in his or her 

profession . . . .”

Business and Professions Code section 1680 provides, in 

pertinent part: “Unprofessional conduct by a person licensed 

under this chapter is defined as, but is not limited to, any one of 

the following: [¶] (a) The obtaining of any fee by fraud or 

misrepresentation. [¶] . . . [¶] (n) The violation of any of the 

provisions of this division.”

Business and Professions Code section 1685 provides: “In 

addition to other acts constituting unprofessional conduct under 

this chapter, it is unprofessional conduct for a person licensed 

under this chapter to require, either directly or through an office 

policy, or knowingly permit the delivery of dental care that 

discourages necessary treatment or permits clearly excessive 

treatment, incompetent treatment, grossly negligent treatment, 
12

repeated negligent acts, or unnecessary treatment, as determined 

by the standard of practice in the community.”

Significantly, “[Business and Professions Code s]ection 

1680’s statement that unprofessional conduct ‘is not limited to’ its 

list of examples means unlisted conduct may be ‘unprofessional

conduct’ subject to discipline. (People v. Arias (2008) 45 Cal.4th 

169, 182 . . . [it is a ‘general rule of statutory construction that 

“[u]se of the language ‘including, but not limited to’ in the 

statutory definition is a phrase of enlargement rather than 

limitation” ’]; People v. Williams (2010) 184 Cal.App.4th 142, 147

. . . [the phrase ‘strongly indicates that the categories listed in the 

statute were not intended to be exclusive’]; Sanchez v. State of 

California (2009) 179 Cal.App.4th 467, 484 . . . [the phrase means 

a list is not exclusive].) Moreover, the Legislature’s selection of

the ‘not limited to’ phrase was no accident. The Legislature 

inserted the phrase by amendment in 1979, purposefully 

expanding the statute’s reach. (Stats. 1979, ch. 653, § 7, p. 2011; 

id., ch. 1007, § 5.5, p. 3426 [substituting ‘by a person licensed 

under this chapter is defined as, but is not limited to, the 

violation of’ for ‘is defined to be’ in the introductory clause of 

[Bus. & Prof. Code,] § 1680].)” (Gillis v. Dental Bd. of California

(2012) 206 Cal.App.4th 311, 320, disapproved on other grounds in

Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, fn. 2; 

see Shea v. Board of Medical Examiners, supra, 81 Cal.App.3d at 

p. 575 [in medical doctor context, interpreting phrase “ ‘but is not 

limited to’ ” to allow discipline for unlisted conduct “which 

indicates an unfitness to practice medicine,” and concluding there 

is no unfairness to discipline respondents in so doing].)
13

C. Yazdi’s Contentions on Appeal

In reviewing the trial court’s decision, we start with the 

presumption the judgment is correct. (In re Marriage of 

Arceneaux (1990) 51 Cal.3d 1130, 1133.) An appellant has the 

burden to demonstrate error. (Denham v. Superior Court (1970) 

2 Cal.3d 557, 564.)

California Rules of Court, rule 8.204(a)(1)(B) provides that 

“[e]ach brief must: [¶] . . . [¶] [s]tate each point under a separate 

heading or subheading summarizing the point, and support each 

point by argument and, if possible, by citation of authority . . . .” 

This is important because this court is “not required to make an 

independent, unassisted study of the record in search of error or 

grounds to challenge a trial court's action. We are entitled to the 

assistance of counsel.” (Ellenberger v. Espinosa (1994) 30 

Cal.App.4th 943, 948.) Yazdi has not complied with these 

requirements here.

In a section of his opening brief entitled “Introduction,” 

Yazdi sets out the following grounds of challenge to the trial 

court decision denying his petition for writ of administrative 

mandate:

“1. The record on appeal lacks substantial evidence

demonstrating that [Yazdi] breached the standard of care in his 

treatment of any of the four patients under review.

“2. There was no substantial evidence showing that any of 

the four patients was harmed. Indeed, the evidence 

demonstrated to the contrary, that no patient was harmed.

“3. The evidence demonstrated that none of the four 

patients required any corrective orthodontics after leaving 

[Yazdi’s] practice; this again demonstrates a lack of substantial 

evidence of patient harm.
14

“4. The purported billing irregularities alleged in the 

operative [t]hird [a]mended [a]ccusation were not supported by 

substantial evidence.

“5. [Dental Board] failed to prove, with substantial 

evidence, any violation of the California Dental Practice Act.”

However, the argument section of Yazdi’s brief does not 

follow this outline. Instead, the argument section consists of an 

unbroken, discursive commentary on topics from the Dental 

Board hearing and decision with no subheadings, only one 

citation to authority in 13 pages, and only occasional citations to 

the administrative record. There are no citations to the trial 

court’s written decision denying Yazdi’s petition, despite the fact 

that this appeal is from that trial court decision. There is 

virtually no specific discussion providing reasoning as to why this

court, applying the standard of review applicable to this court, 

should reverse the trial court’s decision. Nonetheless, we 

endeavor below to discern the contentions he seeks to make 

before this court.

1. Study Models2

Yazdi opens the “Argument” section of his brief with the 

following inaccurate statement: “The Administrative Law Judge 

found, and the Superior Court upheld the finding, that [Yazdi]

was subject to discipline for ‘gross negligence,’ because he failed 

to take ‘study models’ . . . .” On the contrary, the Dental Board’s 

decision states as follows: “Cause does not exist to discipline 

2 An orthodontic study model is a three-dimensional model 

of a patient’s teeth and gums, taken at the beginning of 

treatment, to mimic the patient’s mouth at the time before 

treatment begins.
15

respondent’s license under Business and Professions Code 

sections 1670, [1680, subdivision (n), and 1685] on the grounds of 

gross negligence because complainant did not establish by clear 

and convincing evidence that the departure from the standard of 

care was sufficiently extreme.” (Italics added.) Apparently Yazdi 

previously made the same inaccurate contention to the trial 

court, which stated in its ruling, “Contrary to [Yazdi’s] assertion 

. . . , the [Dental] Board did not find [Yazdi’s] failure to take study 

models was ‘gross negligence,’ rather it found the failure 

constituted negligence.”

Addressing this issue, the trial court noted: “The [Dental] 

Board found that the standard of care for orthodontists involves 

taking study models.” The trial court continued its analysis as 

follows:

“Several orthodontists testified as to this issue. Three 

([Dr.] Sheridan, [Peter M.] Roth[, D.D.S.], and [John R.] 

Dandona[, D.M.D.]) stated that models are required; Yazdi, [Dr.] 

Cohen, and Richard Gutierrez[, D.D.S.] stated that they are not.

The [administrative law judge] notes that ‘a survey taken by the 

American Association of Orthodontists revealed that one-third of 

all orthodontists do not take study models in the regular course of 

practice.’ . . . The [administrative law judge] articulated several 

reasons why he gave more weight to [Dr.] Sheridan’s opinion 

than [Dr.] Cohen’s. . . . Like the [administrative law judge], the 

court is persuaded to follow [Dr.] Sheridan. . . . [¶] In his brief, 

[Yazdi] cites to [the administrative record] for the evidence that 

“about 33[ percent] of all orthodontist[s] choose not to take study 

models.” . . . The cited pages of the record do not support that

proposition. The evidence cited is the testimony of [Yazdi’s]

expert in which he refers to ‘the most recent survey’ of the 
16

American Association of Orthodontists showing that ‘most don’t 

take study models.’ . . . The [administrative law judge] sustained 

an objection to the survey being received in evidence. . . . [¶] 

[Yazdi] also argues that . . . ‘a large percentage of the remainder 

of survey respondents took study models for only “legal 

reasons,” [’] and that ‘Dr. Sheridan did not disagree with the 

accuracy of the [American Association of Orthodontists] survey 

results.’ . . . [Yazdi] points to the same pages in the record . . . to 

support these contentions. Again, the cited pages do not contain 

this evidence. [¶] [Yazdi] also argues that the textbooks relied 

upon by Dr. Sheridan do not support the conclusion that 

orthodontists are required to use study models. To support this 

assertion, [Yazdi] cites to [the administrative record]. This 

citation is to the opening statement made by [Yazdi’s] counsel in 

which he purported to read from a textbook. The opening 

statement and arguments of counsel are not evidence. [¶] As 

noted by the [administrative law judge], Yazdi does not dispute 

that he did not use study models for these patients. . . . [¶] 

Based on the testimony of the [Dental] Board’s orthodontist 

witnesses, and the lack of specific persuasive evidence from 

[Yazdi’s] expert, the weight of the evidence supports the finding 

that failing to take study models falls below the standard of care. 

Accordingly, the [Dental] Board’s findings that Yazdi engaged in 

negligent acts flows directly from its finding as to the standard of 

care.”

Although Yazdi’s opening brief urges that “the issue of 

‘study models’ permeates this entire case, and is perhaps the 

most salient cause for the implementation of discipline,” Yazdi’s 

argument before this court does not address the trial court’s

analysis and conclusions. Instead, Yazdi appears simply to have 
17

repeated the exact same assertions, citing to the exact same 

portions of the record, that were rejected by the trial court as set 

out above. As noted earlier in the discussion of standard of 

review, it is not our task (nor our prerogative) to reweigh the 

evidence in the manner Yazdi seeks.

We also do not share Yazdi’s assessment that “the issue of 

‘study models’ permeates [the] entire case.” The Dental Board 

found (and the trial court upheld) only a single charge of 

“repeated acts of negligence” relating to Yazdi’s failure to take 

study models at the beginning of treatment. The remainder of 

the charges upheld—obtaining fees by fraud or 

misrepresentation, failure to comply with record requests and 

excessive charges for records, excessive treatment, and refusing 

to remove a patient’s braces until an outstanding fee was paid—

have no obvious connection to whether study models were taken.

From our unaided review of the administrative record, we 

note that the Dental Board’s orthodontic expert, Dr. Sheridan, 

testified for an entire hearing day, June 22, 2017, and for parts of 

three additional days, on June 26, 2017, June 27, 2017, and 

July 21, 2017. Dr. Sheridan’s initial testimony describing study 

models and their importance in orthodontic practice covers more 

than 20 pages of transcript. Dr. Dandona, an orthodontist who 

subsequently treated patient Connor O., testified that he 

considered study models to be “essential” to orthodontic practice.

Both the administrative law judge and the trial court noted 

that there was conflicting evidence on the subject of study 

models, but concluded that the evidence that failure to take study 

models constituted negligence was more persuasive.

Before this court, Yazdi has cited to portions of the 

testimony of his retained expert, Dr. Cohen, and others (including 
18

Yazdi himself) as to why the taking of study models was not 

required if other diagnostic tools were properly used. Yazdi also 

emphasizes the administrative law judge’s finding that “[n]o 

evidence was presented to show that [Yazdi] failed to make a 

correct diagnosis of any of the four patients.” Yazdi argues that 

because the administrative law judge “did not point to any 

patient harm directly caused by the absence of ‘study models’ ” 

this “was, at worst, a ‘no harm, no foul’ situation.”

This argument is unavailing at this stage. First, case law 

makes clear that actual patient harm is not required as a 

condition to the imposition of discipline on a licensed 

professional. “If accepted, this argument would have a serious 

implication for license discipline proceedings. In essence, it 

would prohibit the imposition of discipline on a licensee until 

harm to patients had already occurred. We reject this argument 

because it overlooks the preventative functions of license 

discipline, whose main purpose is protection of the public (Bryce 

v. Board of Medical Quality Assurance, supra, 184 Cal.App.3d at 

p. 1476), but whose purposes also include prevention of future 

harm (In re Kelley (1990) 52 Cal.3d 487, 496 . . .) . . . .” (Griffiths 

v. Superior Court (2002) 96 Cal.App.4th 757, 772, fn. omitted.)

Second, our review of the trial court’s decision is limited to 

assessing whether the decision was supported by substantial 

evidence. “ ‘ “When an appeal is taken from the trial court’s 

determination, it is given the same effect as any other judgment 

after trial rendered by the court: the only question is whether the

trial court’s (not the administrative agency’s) findings are 

supported by substantial evidence. [Citation.] Conflicts in the 

evidence must be resolved in favor of the judgment and where 

two or more inferences can be reasonably drawn from the facts, 
19

the reviewing court must accept the inferences deduced by the 

trial court.” [Citation.]’ ” (Green v. Board of Dental Examiners, 

supra, 47 Cal.App.4th at p. 796.) The trial court ruling here was 

supported by substantial evidence, and the finding concerning 

the failure to use study models must be affirmed.

2. Informed Consent

The administrative law judge made findings that the 

failure of Yazdi to obtain informed written consent prior to 

treatment of the four young patients fell below the standard of 

care. This finding is not expressly referenced in the “Legal 

Conclusions” section of the Dental Board decision, but appears to 

fall under the general rubric of unprofessional conduct on which 

Dental Board’s discipline order was based. In any event, Yazdi 

apparently challenged this finding before the trial court, as the 

trial court discussed it in its written decision.

Specifically, the court stated: “The [Dental] Board found 

that the standard of care required the practice of obtaining 

written informed consent. . . . [¶] The weight of the evidence 

supports this finding. Dr. Sheridan testified that written 

informed consent is required by the standard of care. . . . Though 

he testified that written consent is not required by the standard 

of care, Yazdi’s expert, Dr. Cohen, admitted that he uses written 

consent forms in his own practice. . . . Given this discrepancy 

between Dr. Cohen’s expert opinion and his own practice, the 

[administrative law judge] was justified in crediting Dr. 

Sheridan’s opinion on this issue. [¶] In its decision, the [Dental] 

Board found that Yazdi failed to meet this standard by not 

obtaining written consent from the patients. . . . But, in 

opposition, the [Dental] Board admits that there is a consent 

form in Connor’s file. . . . Accordingly, the [Dental] Board’s 
20

finding that Yazdi violated the standard of care by not obtaining 

written informed consent from Connor is not supported by the 

weight of the evidence. [¶] Yazdi has not pointed the court to the 

existence of written informed consent for any of the other

patients. . . . Accordingly, the court concludes that the weight of 

the evidence supports the [Dental] Board’s conclusions that Yazdi 

failed to meet the standard of care by failing to obtain written 

informed consent from Stephanie, Christopher, and Irina.”

In his opening brief, Yazdi argues, in substance, that 

neither the Dental Board nor the trial court should have given 

weight to Dr. Sheridan’s opinion that the standard of care

required informed written consent, and that in any event there 

was no evidence that Yazdi had done anything to any child that 

the parents or the children did not want him to do. Yazdi states 

that “as to all four patients, the evidence showed that they were 

each well-informed by Dr. Yazdi.” However, Yazdi does not cite 

to anything in the record in support of this claim.

We conclude that the trial court’s decision on this issue was 

supported by substantial evidence, and must be affirmed.

3. Issues with Professional Fees

The charges against Yazdi in this category arose because 

the parents complained of being billed unexpected (and

unconsented-to) charges by Yazdi. In the case of Connor O., 

Yazdi refused to refund advance payments for work not 

performed when the parents chose to move to a different 

orthodontist, basing his refusal on a financial agreement that the 

parents had neither seen nor signed. In the case of Stephanie 

and Christopher M., Yazdi began to charge monthly fees that the 

parents did not believe they had ever agreed to, and again no 

such signed agreement could be found in the records.
21

The trial court addressed these issues as follows:

“The [Dental] Board found that Yazdi breached the 

standard of care by charging Connor for work that was not 

performed. . . . Yazdi argues that this finding constitutes a 

reversible error because the [t]hird [a]mended [a]ccusation does 

not include such a charge. . . . The court does not agree. While 

the third cause for discipline charges [Yazdi] with obtaining a fee 

by misrepresentation, the second cause for discipline charges that 

‘[Yazdi] failed to present and obtain agreement for financial 

arrangements prior to starting treatment. The standard of care 

is to charge a person for actual work done but instead [Yazdi]

charged Connor O.’s parents based on a document that claimed 

they had to forfeit advance fees paid if they stopped treatment 

and which the parents were not presented and did not sign.’ 

Thus [Yazdi] was put on notice of the [Dental] Board’s claim of 

charging Connor for work not performed.

“Fees Obtained by Misrepresentation [¶] The Board’s 

decision states the following: [¶] 16. The third, eighth, twelfth, 

and seventeenth causes of discipline alleged unprofessional

conduct by obtaining fees by misrepresentation or fraud. [¶] 

17. Complainant establishes by clear and convincing evidence 

that the parents of Connor O., Stephanie M., and Christopher M. 

never signed a financial agreement for [Yazdi’s] services. Irina S. 

did not sign a financial agreement for Phase I treatment. By 

enforcing contractual terms that [Yazdi] withheld from his 

patients, [Yazdi] obtained fees by misrepresentation, even if 

collected only from insurance carriers. [¶] 18. In the case of

Connor O., [Yazdi] was paid in advance for services anticipated to 

span 12 to 18 months. When those services were terminated in 

six months, [Yazdi] refused and has yet to return the unearned 
22

portion of those fees, notwithstanding a court judgment against

him. [¶] 19. Accordingly, cause exists to discipline [Yazdi’s]

license under Business and Professions Code sections 1670 and 

1680, subdivision (a), because [Yazdi] engaged in unprofessional

conduct by obtaining fees by misrepresentation or fraud. . . .

“Business and Professions Code section 1680[, subdivision 

](a) states that ‘the obtaining of any fee by fraud or

misrepresentation’ constitutes unprofessional conduct. [Yazdi]

argues that to sustain this charge, the [Dental] Board must 

present evidence of a knowingly false representation made to 

defendant with the intent to deceive or induce reliance, coupled 

with reasonable reliance and damages. While this is certainly 

one formulation of fraud, fraud can also be shown by concealment 

or nondisclosure of material facts, especially when there is a 

fiduciary relationship between the parties. [¶] The elements of 

fraud by concealment are ‘(l) That the parties were in a fiduciary 

relationship and defendant intentionally failed to disclose certain 

facts to plaintiff; 2) that plaintiff did not know of the concealed 

facts; 3) that defendant intended to deceive; 4) that had the 

omitted information been disclosed, [p]laintiff reasonably would 

have behaved differently; 5) that plaintiff was harmed; and 

6) that defendant’s concealment was a substantial factor in 

causing plaintiff’s harm. (CACI [No.] 1901; see also, e.g.,

Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 

248.) The wording of the third, eighth, twelfth, fourteenth, and 

seventeenth causes of action make it clear that the [Dental] 

Board’s theory was failure to disclose and obtain consent to fees 

prior to the rendering of services, or withholding copies of the 

contracts. [¶] The weight of the evidence presented supports a

conclusion that Connor’s parents were not provided with a 
23

financial agreement they saw, signed, or agreed to prior to 

treatment that informed them, among other things, that [Yazdi]

would keep 50[ percent] of an unearned fee in the event of 

cancellation. . . . Similarly, the weight of the evidence supports a

conclusion that [Yazdi] did not provide the parents of Stephanie 

[and] Christopher with a contract to agree to and sign that 

informed them of additional charges after two years of 

treatment. . . .

“As to Irina, [the Dental Board] argues there was 

concealment as to the charges for Phase I treatment. [The 

Dental Board] did not provide a record citation to support this 

conclusion in their brief, and could not do so when asked at the 

hearing. [¶] On the issue of reliance, the [Dental] Board 

correctly notes that in the fiduciary context reliance may be

presumed. . . . ‘[A] representation in the context of a trust or 

fiduciary relationship creates a rebuttable presumption of 

reasonable reliance subject to being overcome by substantial

evidence to the contrary.’ (Edmunds v. Valley Circle Estates

(1993) 16 Cal.App.4th 1290[, 1302].) Put differently, in the 

doctor-patient context, where ‘there is a duty to disclose, the 

disclosure must be full and complete, and any material

concealment or misrepresentation will amount to fraud sufficient 

to entitle the party injured thereby to an action.’ (Bowman v. 

McPheeters (1947) 77 Cal.App.2d 795, 801.) [¶] The weight of 

the evidence supports a finding of obtaining fees by fraud as to 

Connor, Stephanie and Christopher.”

On appeal, Yazdi fails to meaningfully address the points 

made by the trial court. He again argues (as he apparently did 

before the trial court) that the third amended accusation did not 

give him sufficient notice concerning Yazdi’s failure to refund 
24

unearned fees paid in advance by the parents of Connor O. We 

agree with the trial court’s reasoning that fair notice of this claim 

was, in fact, contained in the third amended accusation.

His remaining arguments also lack merit. He contends, for

example, that no fee was obtained by him after Connor O.’s 

mother first saw the unsigned financial agreement that 

purported to allow Yazdi to keep 50 percent of the total estimated 

fee for the full 12 to 18 months of treatment if treatment was 

discontinued within the first six months. This, of course, is 

beside the point, because Connor’s mother had already paid fully 

in advance, and the issue was that she had not agreed to (nor 

been aware of) his claim that he was entitled to retain 

substantial unearned fees if treatment with him was stopped 

early. He also argues that his billing practices should not matter 

because some or all of the fees were paid by insurance, rather 

than out-of-pocket by these complaining parents. But the Dental 

Board’s responsibilities clearly encompass fairness and honesty 

in insurance billing as much as amounts billed to parents of the 

patients. The fact that an insurance carrier rather than a patient 

may have paid Yazdi’s fees does not negate the charge that he 

obtained such fees by fraud or misrepresentation.

Particularly troubling is that even after these matters came 

to light, Yazdi has apparently continued to withhold the 

unearned fees claimed by the parents of Connor O., and has 

apparently failed to pay the small-claims judgment they obtained 

against him in regard to these fees.

Given that the relationship between Yazdi and his patients 

is recognized under California law to be a fiduciary relationship 

(Bowman v. McPheeters, supra, 77 Cal.App.2d at p. 800), which 

gives rise to a duty to make full and fair disclosure to patients of 
25

all facts which materially affect their rights and interests, it is 

not unreasonable for the Dental Board to use its disciplinary 

process to foster transparency in the financial relationships 

between an orthodontist and his patients. The orthodontic 

treatment programs involved here ran into thousands of dollars.

The trial court’s rulings concerning Connor O., and 

Stephanie and Christopher M. were supported by substantial 

evidence, and must be affirmed.

4. Issues with Patient Record Requests

A part of the basis of the original complaints made by the 

parents of Connor O. and Stephanie and Christopher M. was 

Yazdi’s refusal to make patient records available on request, and 

his imposition of extremely high charges for making copies of the 

records. Yazdi’s opening brief refers to these matters as 

“recordkeeping failures,” but this term does not accurately 

describe the problem.

At the time of these events, Health and Safety Code former 

section 123110, subdivision (a)3 stated in pertinent part that “any 

minor patient authorized by law to consent to medical treatment, 

and any patient representative shall be entitled to inspect patient 

records upon presenting to the health care provider a written 

request for those records and upon payment of reasonable clerical 

costs incurred in locating and making the records available.”

Former subdivision (b) also stated that “[a]dditionally, any 

patient or patient’s representative shall be entitled to copies of all 

or any portion of the patient records that he or she has a right to 

3 This statute was amended effective January 1, 2018 

(Stats. 2017, ch. 513 (SB 241), § 2; Stats. 2017, ch. 626 (SB 575), 

§ 1.5).
26

inspect, upon presenting a written request to the health care 

provider specifying the records to be copied, together with a fee to 

defray the cost of copying, that shall not exceed twenty-five cents 

($0.25) per page or fifty cents ($0.50) per page for records that are 

copied from microfilm and any additional reasonable clerical 

costs incurred in making the records available.” Former 

subdivision (i) stated in pertinent part that “[a]ny health care 

provider . . . who willfully violates this chapter is guilty of 

unprofessional conduct. . . . The state agency, board, or 

commission that issued the health care provider’s professional or 

institutional license shall consider a violation as grounds for 

disciplinary action with respect to the licensure, including 

suspension or revocation of the license or certificate.”

The administrative record contains evidence that Yazdi did 

not comply with requests by the parents of Connor O. and 

Stephanie and Christopher M. to inspect the records regarding 

their children, and that Yazdi imposed a charge of $250 for copies 

of Connor O.’s records and $150 per patient for copies of 

Stephanie and Christopher M.’s records. Indeed, Yazdi himself 

documented the $250 charge for Connor O.’s records, in a letter to 

a lawyer assisting Connor O.’s family. These charges are clearly 

excessive under Health and Safety Code section 123110, as the 

trial court found.

Substantial evidence supports the trial court’s findings 

concerning the records requests here, and they must be affirmed.

5. Issues with Treatment of Irina S.

Based on the testimony of Dr. Sheridan (the Dental Board 

expert), the Dental Board found, and the trial court affirmed, a 

charge that Yazdi had excessively treated patient Irina S., for a 

longer period and for a significantly higher cost than should have 
27

been required. On appeal, Yazdi makes a number of contrary 

factual assertions, but cites only to a portion of his own 

testimony, which does not substantiate those assertions. 

Substantial evidence supports the trial court’s finding of 

excessive treatment.

The Dental Board also found, and the trial court also 

affirmed, a charge that at an appointment scheduled for removal 

of Irina S.’s braces, Yazdi refused to do the work until a claimed 

$800 balance was paid. The trial court pointed to evidence from 

testimony of Irina’s mother, and a letter from Yazdi himself to 

the Dental Board that confirms this episode. On appeal, Yazdi 

seeks to recharacterize these events, but cites to no evidence in 

the record except for a letter from Irina’s regular dentist, Edith 

Cuevas-Mendoza, D.M.D. that corroborates the Dental Board

finding. Yazdi has failed to demonstrate any ground to disturb 

the trial court’s finding on this charge, and we find that it is 

supported by substantial evidence.

6. Discipline Imposed

The trial court found that the weight of the evidence 

supported the Dental Board’s factual and legal findings, except 

for the charge of failure to obtain informed consent as to 

Connor O., and obtaining fees by fraud or misrepresentation as to 

Irina S. The trial court further found that, in light of the other 

charges supported by the weight of the evidence, there was no 

reasonable possibility that the Dental Board would have imposed 

different discipline in the absence of those two findings.

We agree. The Dental Board’s published disciplinary 

guidelines (August 30, 2010) set forth the maximum and 

minimum recommended penalties for violations of the statutes 

involved here. For Business and Professions Code section 1670 
28

(gross negligence, incompetence, repeated acts of negligence), the 

maximum penalty is revocation; the minimum penalty is 

revocation, stayed, with two years of probation. For Business 

and Professions Code section 1680, subdivision (a) (obtaining any 

fee by fraud or misrepresentation), the maximum penalty is 

revocation; the minimum penalty is revocation, stayed, with five 

years of probation. For Business and Professions Code section 

1685 (permitting dental care that encourages excessive or 

improper treatment), the maximum penalty is revocation; the 

minimum penalty is revocation, stayed, with five years of 

probation.

In this case, most of the charges that were sustained fall 

under the provisions of the guidelines that call for a minimum of 

five years of probation as part of a stayed revocation. That 

minimum penalty is what the Dental Board imposed and the trial 

court affirmed.

“ ‘The propriety of a penalty imposed by an administrative 

agency is a matter vested in the discretion of the agency, and its 

decision may not be disturbed unless there has been a manifest 

abuse of discretion. [Citations.]’ ” (Williamson v. Board of 

Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347, 

quoting Lake v. Civil Service Commission (1975) 47 Cal.App.3d 

224, 228.) “ ‘[N]either a trial court nor an appellate court is free 

to substitute its own discretion as to the matter; nor can the 

reviewing court interfere with the imposition of a penalty by an 

administrative tribunal because in the court’s own evaluation of 

the circumstances the penalty appears to be too harsh.’ ” 

(Cadilla v. Board of Medical Examiners (1972) 26 Cal.App.3d 

961, 966.)
29

On appeal, Yazdi has devoted no part of his opening brief to 

a discussion of the discipline imposed by the Dental Board, other 

than to lament “the aggressive, inquisitorial nature of the 

[Dental] Board’s case against [Yazdi]” and “the vendetta-like 

nature of the [Dental] Board’s conduct here.” He argues, “Dr. 

Yazdi is now nearing his tenth year of probation for allegations 

and findings that the [administrative law judge] found 

(1) involved no misdiagnosis[,] (2) harmed no patients, and (3) at 

most involved a few thousand dollars in disputed billings, which 

have never been proven to have been obtained by 

misrepresentation or fraud.”

The probation at issue in this case was imposed as of 

December 6, 2017. It was based on findings made by the Dental 

Board in 2017, and affirmed by the trial court on independent 

review of the weight of the evidence in 2019. We here conclude 

that the trial court’s findings are based on substantial evidence. 

The Dental Board acted within its discretion to impose the 

discipline that it imposed, and we will not disturb the agency’s 

decision unless “there is an arbitrary, capricious or patently 

abusive exercise of discretion” by the agency. (Brown v. Gordon

(1966) 240 Cal.App.2d 659, 667.) We find no such abuse of 

discretion here, particularly where in each case the discipline 

imposed reflects the minimum established by the Dental Board 

guidelines.
30

DISPOSITION

The judgment of the trial court is affirmed. Respondent

shall recover its costs on appeal.

NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
Filed 11/3/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

MOHAMMADREZA YAZDI,

Plaintiff and Appellant,

v.

DENTAL BOARD OF 

CALIFORNIA,

Defendant and Respondent.

 B298130

 (Los Angeles County

 Super. Ct. No. BS172030)

 ORDER CERTIFYING

 OPINION FOR

 PUBLICATION

THE COURT:

The opinion in the above-entitled matter filed on October 6, 2020, was 

not certified for publication in the Official Reports. For good cause it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

______________________ ____________________ ___________________

ROTHSCHILD, P. J. CHANEY, J. SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article 

VI, section 6 of the California Constitution.