Kennedy v. Ramírez

RON KENNEDY, Plaintiff and Appellant, v. LOURDES CASTRO RAMÍREZ, as Secretary, etc., et al., Defendants and Respondents.

A158770

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

September 10, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County Super. Ct. No. CPF-19-516639)

The Medical Board of California (the Board) began investigating psychiatrist Ron Kennedy, M.D. after receiving reports he wrote medically unjustified vaccine exemptions for school-aged children. During the investigation, the Board issued administrative subpoenas to school districts where exemptions had been reported (Gov. Code, 11180, et seq.)¹ The districts complied, producing 50 vaccine exemptions issued by Kennedy.

Kennedy filed a lawsuit against several defendants, including Board employees. He alleged defendants violated the federal and state Constitutions, and several state statutes, by issuing the subpoenas without giving him—or his patients—prior notice. The trial court sustained defendants' demurrer without leave to amend and dismissed the complaint.

We affirm. We conclude Kennedy failed to state a claim for relief against defendants premised on the Board's issuance of the investigative subpoenas without prior notice to Kennedy or his patients.

FACTUAL AND PROCEDURAL BACKGROUND

As relevant here, Senate Bill No. 277 (2015-2016 Reg. Sess.) "eliminated the personal beliefs exemption from the requirement that children receive vaccines for specified infectious diseases before being admitted to any . . . elementary or secondary school." (Brown v. Smith (2018) 24 Cal.App.5th 1135, 1139 (Brown).) The statute retains a medical exemption. "A student is exempt from the requirement if a licensed physician states in writing that 'the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe.' " (Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, 986, quoting Health & Saf. Code, § 120370, subd. (a).)

The medical exemption provides: " 'If the parent or guardian files with the governing authority a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, familymedical history, for which the physician does not recommend immunization, that child shall be exempt from the [immunization] requirements . . . to the extent indicated by the physician's statement.' " (Brown supra, 24 Cal.App.5th at p. 1139, fn. 2.)

A.The Board Begins an Investigation

Kennedy is a psychiatrist who operates an antiaging clinic in Santa Rosa. In 2017, the Board began receiving complaints—including a complaint from at least one county health department—that Kennedy was issuing vaccine exemptions for school-aged children without medical justification. The Board opened an investigation.

The Board served Kennedy with investigative subpoenas for medical records of three children for whom he provided vaccination exemptions. Kennedy refused to comply with the subpoenas and the Board petitioned to compel his compliance. The trial court granted the petition. It found good cause for the issuance of the subpoenas and concluded the subpoenas were relevant and material to the Board's investigation of whether Kennedy was improperly issuing blanket vaccine exemptions in violation of the standard of care. Kennedy petitioned for a writ of supersedeas to stay the order pending appeal.

A division of this court denied the petition. (Kennedy, supra, 36 Cal.App.5th 306.) Our colleagues observed the Board's power to "investigate complaints against physicians . . . would be hamstrung if a physician could force the Board to bring a court action to enforce a subpoena, then obtain an automatic stay of an adverse order pending a subsequent appeal." (Id. at pp. 309-310.) The court declined to issue a discretionary stay, observing it "would likely conclude that the superior court acted withinits discretion in finding the Board's interest in obtaining records of vaccination exemptions outweighed the patients' privacy rights, given that the Board must keep the records confidential." (Id. at p. 310.) Kennedy appealed the trial court's orders, but later dismissed the appeal.

B.Kennedy Files a Lawsuit

The Board also issued investigative subpoenas to 12 school districts where exemptions had been reported but where the identities of the children were unknown. The districts complied with the subpoenas, producing 50 vaccine exemptions issued by Kennedy. Most exemptions were written on preprinted forms and provided permanent exemptions for all vaccinations.

Kennedy filed a lawsuit against the secretary of the State of California Business, Consumer Services and Housing Agency, two employees of the California Department of Consumer Affairs and several employees of the Board (collectively, defendants) for declaratory and injunctive relief, and for an order quashing the subpoenas. The gist of the operative first amended complaint (complaint) was defendants singled Kennedy out for "selective prosecution" because he is not a pediatrician, and that they issued the subpoenas to harass him "for providing vaccine exemptions."

The complaint alleged defendants violated the Fourth Amendment of the federal Constitution, article I of the state Constitution, and Health and Safety Code section 120440 and Education Code section 49076 by issuing the subpoenas "without notice to [him]" or "to the parents of the children in question." According to the complaint, the federal and state Constitutions required defendants to provide him with "a copy of every subpoena seeking [the] medical records generated by [him]" so he could exercise his Fourth Amendment rights, and to enable him to challenge the subpoenas based onhis patients' privacy rights under the California Constitution and state statutes.

Kennedy sought to enjoin the Board from investigating him—or commencing disciplinary proceedings against him—based on the records obtained in response to the subpoenas.² He also requested a mandatory injunction ordering defendants to return the immunization exemptions to the school districts. Finally, Kennedy alleged a declaratory relief claim seeking an order declaring the subpoenas "illegal and unconstitutional" and any actions taken by the defendants against him "null and void."

C.The Court Sustains Defendants' DemurrerWithout Leave to Amend

Defendants demurred. As relevant here, defendants argued Kennedy could not state a claim for relief because they had no obligation to notify him of the subpoenas. Defendants also contended Kennedy's constitutional rights were not violated, and that his patients' privacy rights were protected by statutes governing the confidentiality of the investigation. In opposition, Kennedy argued he was entitled to "intervene and preserve the [p]rivacy of his clients' medical records."

The court sustained the demurrer without leave to amend, concluding Kennedy failed to state a cause of action against defendants. It noted a physician may have standing to protect his patients' privacy rights, but that Kennedy was not asserting his patients' rights. Instead, Kennedy was seeking to "hamstring or obstruct" the Board's investigation. As the court explained, Kennedy had no "right to notice and an opportunity to intervene inthe Board's investigation before it has completed that investigation and determined that disciplinary proceedings are warranted." The reason Kennedy had no right to notice and an opportunity to object, the court observed, was due to the "fundamental difference between a confidential investigative process, which often does not result in formal charges, and a public adjudicatory proceeding, which can lead to discipline."

According to the court, Kennedy did not have a property interest or license "at stake" during the investigation. The court opined the Board's "fledgling investigation" did not trigger a "full panoply of constitutional protections" because Kennedy would not be penalized based on the subpoenas, which were "merely one step in the investigative process; if the Board files disciplinary proceedings against [Kennedy], he will be entitled to defend those proceedings" pursuant to the Administrative Procedure Act (§ 11340 et seq.).

The court determined Kennedy failed to show "the Fourth Amendment, California Constitution, or any of the cited statutes required notice to [him] of the subpoenas served on the school districts. . . . Notice to [Kennedy] was unnecessary upon weighing the harm to [him] and his patients against the purpose of the Board's conduct," particularly where such notice "would disrupt the investigative process." Finally, the court held the mandatory confidentiality provisions governing the Board's investigation protected the patients' privacy interests.

The court dismissed the operative complaint and entered judgment for defendants.

DISCUSSION

"A demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine whether it alleges facts sufficient to state acause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed. . . . [¶] When a demurrer is sustained without leave to amend, 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial...