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Whitney v. Montegut

California Court of Appeals, Second District, Fifth Division

January 6, 2014

LINDA K. WHITNEY, as Executive Director, etc., Plaintiff and Respondent,
v.
WALTON MONTEGUT, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS132656, Diedre H. Hill, Judge.

Iungerich & Spackman and Russell Iungerich for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gloria L. Castro, Senior Assistant Attorney General, Robert McKim Bell, Supervising Deputy Attorney General, Cindy M. Lopez, Deputy Attorney General, for Plaintiff and Respondent.

KRIEGLER, J.

Linda K. Whitney, Executive Director of the Medical Board of California (the Board), filed a petition to compel Walter Montegut, M.D., to comply with investigational subpoenas (the subpoenas) issued in connection with an investigation of a complaint that Dr. Montegut “may be abusing drugs, prescribing to himself and over prescribing to patients.” Over various objections, the trial court granted the petition.

Dr. Montegut contends the trial court erred in granting the petition because: (1) it was not timely filed within 60 days of his noncompliance with the subpoenas; (2) the Los Angeles County Superior Court did not have jurisdiction to hear the petition under Government Code section 11186;[1] (3) the subpoenas were illegal because they were not supported by written patient releases; and (4) the subpoenas did not set forth legally adequate cause for enforcement. We affirm.

Allegations of the Petition and Supporting Documents

The petition was filed in Los Angeles County Superior Court on June 27, 2011, seeking medical records of ten patients treated by Dr. Montegut, pursuant to the Board’s disciplinary and investigative authority over licensed physicians. The petition was supported by a declaration of Dr. Rick Chavez, a physician with board certification in addiction medicine and pain medicine, who reviewed prescriptions issued by Dr. Montegut that revealed possible drug use and over prescribing to patients. Dr. Chavez opined that he needs to review the patients’ medical records to determine why the medications were prescribed. The petition alleged the Board’s investigation was being conducted in Los Angeles County and the designated place of compliance with the subpoenas was in Los Angeles County (although the subpoena attached to the petition required production of patient records in Tustin, which is in Orange County). Counsel for Dr. Montegut notified the Board’s investigator, Erika George, on January 26, 2011, of objections to the subpoenas and the doctor’s refusal to comply.

The Board filed a memorandum of points and authorities concurrently with the petition. The memorandum detailed the nature of the investigation, the authority of the Board to investigate, and the necessity to enforce the subpoenas.

Proceedings on the Petition

Dr. Montegut filed objections to the petition on substantive, procedural, and jurisdictional grounds, as discussed below. The trial court issued an order to show cause, rejected each of Dr. Montegut’s objections, and on May 10, 2012, the court signed an order compelling Dr. Montegut to comply with the subpoenas. Dr. Montegut filed a timely notice of appeal from the order.

DISCUSSION

I

Dr. Montegut’s first contention is that the petition to compel compliance with the subpoenas is subject to the same 60-day time limit applicable to a petition for writ of mandate. Because he refused to comply by January 27, 2011, [2] Dr. Montegut reasons the Board had to file the petition no later than March 28, 2011, and the June 27, 2011 filing was beyond the applicable limitations period.

Dr. Montegut cites no authority for the proposition that a petition to compel compliance with an investigational subpoena is the equivalent of a petition for writ of mandate which must be filed within 60 days of the party’s failure to comply, nor does he engage in any analysis to support that conclusion. “We need not address arguments for which a party provides no supporting authority. (People v. Williams (1997) 16 Cal.4th 153, 226, fn. 6.)” (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042.)

In any event, the trial court correctly ruled that a petition to compel compliance with a subpoena “is not a petition for writ of mandate; therefore the 60-day statute does not apply.” The Board is empowered to issue investigative subpoenas for the purpose of investigating physician conduct. (Bus. & Prof. Code, § 2220; § 11181, subd. (e).) The power to enforce compliance with investigational subpoenas is found in section 11187, [3] which expressly sets forth the requirements of the petition. Section 11187 does not contain a 60-day period of limitations, nor does it suggest in any fashion that a petition to compel compliance with a subpoena is the equivalent of a petition for writ of mandate. The petition in this case was not untimely.

II

Dr. Montegut next argues the Los Angeles County Superior Court did not have jurisdiction to hear the petition. He contends jurisdiction in this case is in the Orange County Superior Court under the provisions of section 11186, because the subpoenas called for compliance in Orange County and there is no evidence that any investigation of Dr. Montegut was taking place in Los Angeles County. This contention involves issues of statutory ...


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