Kirchmeyer v. Pardo CA4/1 ( 2024 )

Filed 9/17/24 Kirchmeyer v. Pardo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KIMBERLY KIRCHMEYER, as D082185
Director, etc.
Plaintiff and Respondent,
(Super. Ct. No. 37-2022-
v.
00046932-CU-PT-CTL)
FRANCISCO PARDO,
Defendant and Appellant;
WILLIAM PRASIFKA, as Executive
Director, etc.
Real Party in Interest.
APPEAL from an order of the Superior Court of San Diego County,
Keri Katz, Judge. Affirmed.
Joseph Charles La Costa for Defendant and Appellant.
Rob Bonta, Attorney General, Gloria L. Castro, Senior Assistant
Attorney General, Alexandra M. Alvarez and Keith C. Shaw, Deputy
Attorneys General, for Plaintiff, Respondents and Real Party in Interest.
In an investigation into psychiatrist Francisco Pardo’s prescriptions of
controlled substances, the Department of Consumer Affairs (DCA) served Dr.
Pardo with subpoenas commanding him to produce medical records of six of
his patients. When Dr. Pardo did not comply with the subpoenas, the DCA
petitioned the superior court to enforce them. The court granted the petition,
whereupon four of the patients filed a motion requesting reconsideration of
the order granting the petition and seeking to intervene in the enforcement
action. The court denied the motion. Dr. Pardo appeals the order denying
the motion. We dismiss the appeal of the denial of the patients’
reconsideration motion because such an order is not appealable; and we
affirm the court’s denial of the intervention motion because Dr. Pardo
forfeited that issue on appeal.
I.
Background
A. Investigation of Dr. Pardo
In April of 2020, the U.S. Drug Enforcement Agency (DEA) contacted
the Medical Board of California (Medical Board) about a DEA investigation
into potential excessive and/or unnecessary prescribing of controlled
substances by Dr. Pardo. Prompted by the DEA’s referral to the Board, the
DCA (acting on behalf of the Board) initiated an investigation of its own.
As part of this investigation, a medical consultant reviewed reports
from the DEA and from a statewide database that tracks prescribing and
dispensing activity for controlled substances. In the course of his review, the
medical consultant identified concerns relating to Dr. Pardo’s prescribing
practices.
Prompted by these concerns, the DCA reached out repeatedly to six of
Dr. Pardo’s patients, requesting their authorization for Dr. Pardo to release
their medical records to it. Thus, for example, in June of 2021, the DCA
mailed each of the six patients a letter requesting such authorization; in May
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of 2022, it mailed four of the six patients a second round of such letters; and,
in July of 2022, it mailed all six patients a third round of such letters.
Accompanying each letter in all three rounds was a release-of-patient-
medical-records authorization form for the patient to sign. Each letter sent
in the third round also included: (1) a DCA subpoena (which the DCA
contemporaneously served on Dr. Pardo) directing Dr. Pardo to produce the
patient’s medical records for a specific timeframe;1 (2) a form for the patient
to sign if they objected to the subpoena; and (3) a pair of one-page forms (one
titled Notice to Consumer, and the other titled Consumer Information About
Release of Medical Information) that advised the patient of their right to
withhold consent, recommended the patient consult with an attorney “to
advise you of your rights of privacy,” and invited the patient or their attorney
to contact the DCA investigator “to determine whether an agreement can be
reached in writing to cancel or limit the scope of the subpoena.”
None of the six patients authorized the release of their records.
Instead, five of them objected.2 In keeping with the objections, Dr. Pardo
produced no records. Having thus failed to obtain the subpoenaed medical
records, the DCA initiated an enforcement action in superior court to enforce
the six subpoenas.
B. Proceedings Below
The enforcement action commenced with the DCA’s filing of a petition
for an order directing Dr. Pardo to produce the subpoenaed medical records.
1 Dr. Pardo asserts without citation to the record that the Department of
Consumer Affairs did not give contemporaneous notice to the patients when
it issued the investigative subpoenas. But the record contradicts this
unsubstantiated assertion.
2 The sixth patient did not respond to any of the DCA’s communications.
According to Dr. Pardo, this patient was deceased.
3
The petition was accompanied by a declaration from a DCA investigator
attesting to the matters set forth ante and a declaration from the medical
consultant. The DCA served the petition and the declarations on Dr. Pardo.
It did not serve these items on any of the patients; nor did it furnish any of
the patients with notice of the petition.
Dr. Pardo responded to the petition by filing an opposition in which he
argued the petition should be denied because: the DCA medical consultant’s
declaration did not establish good cause to enforce the subpoenas; he had
been denied discovery; and the patients had reasonable expectations of
privacy and confidentiality in their medical records, and had objected to the
records being produced.
The hearing on the petition was attended not only by counsel for the
parties (the DCA and Dr. Pardo), but also by an attorney for two of the six
patients, by one of the patients whom that attorney represented, and by a
third patient (who appeared in propria persona). At the conclusion of the
hearing, the superior court granted the petition.
Three weeks after the superior court had granted the petition, four of
the six patients filed an ex parte application in which they requested a stay of
the order granting the petition and an expedited hearing on a motion
requesting reconsideration of the order granting the petition and seeking to
intervene in the enforcement action. The DCA opposed the application.3
Following a hearing, the superior court denied the request for a stay and set
a hearing date for the motion. Thereafter, the four patients filed their motion
3 By this time, Dr. Pardo had produced medical records in response to all
six subpoenas, and the DCA had initiated an administrative proceeding in
which it accused Dr. Pardo of: 26 acts of gross negligence and five causes for
discipline arising therefrom.
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for reconsideration and seeking to intervene. The DCA opposed the patients’
motion. The superior court denied the motion. Dr. Pardo then appealed the
order denying the motion.
C. Proceedings on Appeal
After Dr. Pardo filed his opening brief, this court sua sponte invited the
parties to brief whether Dr. Pardo lacked standing to appeal the order
denying the patients’ motion and whether either or both aspects of that
order—i.e., the aspect denying reconsideration and the aspect denying
intervention—were appealable.
Then, after the parties briefed these issues, the DCA filed a motion to
dismiss the appeal, arguing among other things that the appeal was moot,
that the order denying the patients’ motion was not appealable, and that the
patients’ request for reconsideration was defective because the plaintiffs had
failed to establish new or different circumstances.
This court directed Dr. Pardo to file a brief explaining why the appeal
should not be dismissed in light of the DCA having represented (as one of the
predicates for its mootness argument) that it and Dr. Pardo had entered into
a settlement. Dr. Pardo filed a responsive brief.
In response to the supplemental submissions described above, this
court ordered that the matters as to which it had invited further briefing, and
the matters the parties had argued in connection with the motion to dismiss,
would be deferred to the hearing on the merits for resolution. After this court
so ordered, the DCA filed its respondent’s brief. Dr. Pardo filed no reply.
II.
Discussion
In his opening brief, Dr. Pardo contends the superior court erred in
granting the petition to enforce the subpoenas because: the DCA medical
consultant’s declaration did not establish good cause to enforce the
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subpoenas; he had been denied discovery; and the patients had not been
joined as parties to the enforcement action or afforded adequate notice and an
opportunity to be heard. But in making these contentions, Dr. Pardo
conflates the matters that were placed in issue for the hearing on the DCA’s
petition with the matters that were placed in issue for the hearing on the
patients’ motion.
It is well to remember that the order Dr. Pardo appealed is not the
order granting the petition; it is the order denying the motion. That motion,
as framed by the patients who filed it, sought two distinct things—(1)
reconsideration and (2) intervention—each of which warrants its own distinct
analysis.
A. Reconsideration
Focusing our attention first on the superior court’s denial of the request
for reconsideration, we begin by noting that the provision of the Code of Civil
Procedure that permits reconsideration (and that the patients invoked in
their motion) is section 1008. Subdivision (a) of section 1008 provides that:
“When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, . . . any
party affected by the order may, within 10 days after
service upon the party of written notice of entry of the order
and based upon new or different facts, circumstances, or
law, make application to the same judge or court that made
the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application
shall state by affidavit what application was made before,
when and to what judge, what order or decisions were
made, and what new or different facts, circumstances, or
law are claimed to be shown.”(Italics added.)
In the papers they filed in support of their motion asking the superior court
to reconsider its order granting the petition, the patients did not identify any
“new or different facts, circumstances, or law”—by affidavit or otherwise. On
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this basis alone, the superior court was justified in denying the request for
reconsideration.
So too would the court have been justified in denying the request based
on another subdivision of section 1008—subdivision (g). Subdivision (g)
provides that “[a]n order denying a motion for reconsideration made pursuant
to subdivision (a) is not separately appealable” (italics added). Rather, it can
be reviewed only as part of an appeal from the order as to which
reconsideration is sought. (Code Civ. Proc., § 1008, subd. (g).)
But Dr. Pardo did not appeal the order as to which reconsideration was
sought (that is to say, he did not appeal the order granting the petition);
instead he appealed only the order denying reconsideration. Hence, for this
further reason, the superior court was justified in denying the request for
reconsideration. (See Association for Los Angeles Deputy Sheriffs v. County of
Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [juxtaposing minority view
“that an order denying a motion for reconsideration is appealable when the
motion raise[s] new facts or law” against “prevailing view . . . that an order
denying a motion for reconsideration is not an appealable order under any
circumstances” (italics added) and concluding appeal should be dismissed
under either view because appellant had introduced no new law or facts].)
Moreover, the decision to deny the patients’ request for reconsideration
is further justified by the fact that the Code of Civil Procedure provision
delineating the types of orders that are appealable includes no mention of
orders denying reconsideration. (See Code Civ. Proc., § 904.1; Powell v.
County of Orange (2011) 197 Cal.App.4th 1573, 1577 [citing multiple opinions
in which courts “have concluded that orders denying reconsideration are not
appealable because ‘Section 904.1 of the Code of Civil Procedure does not
authorize appeals from such orders’ ”].)
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Because the superior court’s denial of the request for reconsideration is
not appealable, we must dismiss the appeal to the extent it seeks review of
the portion of the superior court’s order denying reconsideration. (See In re
Mario C. (2004) 124 Cal.App.4th 1303, 1307 [the “fundamental rule
governing the appealability of orders is that ‘ “a judgment or order is not
appealable unless expressly made so by statute” ’ ”].)
B. Intervention
Insofar as intervention is concerned, the argument the patients made
in support of their motion was rooted exclusively in two items—a provision of
the Code of Civil Procedure (§ 387) and a federal regulation (42 C.F.R. § 2.66,
sub. (b)). The argument, in its entirety, consisted of three sentences invoking
those items, as follows:
“Code Civ. Proc. § 387(b) and (a) authorize Movants to
intervene as they have a real interest in protecting their
private information from disclosure. . . . 42 CFR §2.66(d)
[sic4] requires the patient be afforded an opportunity to
seek revocation or amendment of an order that authorizes
disclosure of their medical records. Therefore, Movants
have a right to intervene in this action.”
As scant as this argument was in the brief the plaintiffs filed in
superior court, it is scanter still in the opening brief Dr. Pardo has filed in
this court. Indeed, despite the fact that section 387 and regulation 2.66,
subdivision (b) were the sum and substance of the argument for intervention
that the patients made to the superior court, neither of these items is
mentioned anywhere in the brief that Dr. Pardo filed in this court. Nor is
4 The part of regulation 2.66 that discusses revocation or amendment of
an order authorizing disclosure of medical records is subdivision (b), not
subdivision (d). We express no view as to the applicability of regulation 2.66
to the circumstances presented in this case.
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intervention mentioned in the brief that Dr. Pardo filed in this court. Instead
that brief dwells on good cause, discovery, joinder, and notice.
The patients “having chosen to file [their] motion in the trial court
under [section 387, subdivision (b), and regulation 2.66, subdivision (b)] and
base all [their] arguments below upon [those] provision[s], appellant should
not at this late date be permitted to change the entire basis of [the] motion
because in hindsight it now seems expedient for [him] to do so.” (In re
Marriage of King (2000) 80 Cal.App.4th 92, 110). “ ‘[A] party is not permitted
to change his position and adopt a new and different theory on appeal. To
permit him to do so would not only be unfair to the trial court, but [also]
manifestly unjust to the opposing litigant’ ” (Cable Connection, Inc. v.
DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12) and in contravention of
the objective of promoting judicial efficiency and economy. Consequently, Dr.
Pardo’s wholesale failure to address in his opening brief the superior court’s
denial of the patients’ request for intervention must be deemed a forfeiture of
that issue on appeal. (Christoff v. Union Pacific Railroad Co. (2005)
134 Cal.App.4th 118, 125 [“an appellant’s failure to discuss an issue in its
opening brief forfeits the issue on appeal”]; see also Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6 [“Issues not raised in an appellant’s brief are
deemed waived or abandoned”]; Jones v. Superior Court (1994) 26
Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not
raised . . . , we consider the issues waived”].)5
5 Our resolution of this appeal on the grounds set forth above renders it
unnecessary for us to address the parties’ other arguments. The motion to
dismiss is granted insofar as it is directed at the portion of the appealed order
that denied reconsideration; in all other respects it is denied as moot.
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III.
Disposition
The appeal is dismissed to the extent it seeks review of the portion of
the superior court’s order denying the patients’ request for reconsideration.
To the extent it seeks review of the portion of the superior court’s order
denying the patients’ request for intervention, the order is affirmed.
Respondent is entitled to costs on appeal.
KELETY, J.
WE CONCUR:
O’ROURKE, Acting P. J.
RUBIN, J.
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