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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.

Order Filed Date: January 21, 2014

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.

It is ordered that the opinion filed herein on January 6, 2014, and, be modified as follows:

On the title page, the last paragraph listing counsel for Plaintiff and Respondent, please add Kathleen A. Kenealy, Chief Assistant Attorney General, in place of Dane R. Gillette, Chief Assistant Attorney General, so the paragraph reads:

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant Attorney General, Gloria L. Castro, Senior Assistant Attorney General, and Cindy M. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

There is no change in the judgment.

TURNER, P. J. 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 ...


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