r?tr?Lt?tr?it?tr?tt?AHr?xt?L 00 OJ XAVIER BECERRA Attorney General of California MARY CAIN- SIMON Supervising Deputy Attorney General CAROLYNE EVANS - Deputy Attorney General State Bar NO. 289206 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-3448 Fax: (415) 703- 5480 E-mail: Carolyne. Evans@doj. ca. gov Attorneys for Petitioner and Real Party' tn Interest SUPERIOR COURT OF THE STATE OF CALIFORNIA "j COUNTY OF SAN FRANCISCO - .. STATE OF CALIFORNIA, DEAN R. GRAFILO, DIRECTOR OF THE Car-.1 9 -.-5 1_ ?6 DEPARTMENT OF CONSUMER Case NO. 7 PETITION FOR ORDER TO SHOW Plaintiff, CAUSE AND ORDER COMPELLING - COMPLIANCE WITH v27"- . INVESTIGATIONAL Date: KAISER FOUNDATION Time. PERMANENTE Dept. 302 MEDICAL GROUP, Judge: Hon. Ethan P. Schulman . . Trial Date: 5? Respondent, Action Filed: June 12, 2019 KIMBERLY KIRCHMEYER, EXECUTIVE DIRECTOR, MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. Petitioner Dean R. Grafilo, Director of the Department Of Consumer Affairs, State of California (DCA), by his attorneys Xavier Becerra, Attorney General Of the State of California, and Carolyne Evans, Deputy Attorney General, alleges as follows: 1 PETITION FOR OSC AND ORDER COMPELLINGCOMPLIAN CE WITH SUBPOENA NHHi?tr?ki?xr?AHi?xr?xr?x r?x . 0.00 x] 43 U) 1. Petitioner Dean R._Grafilo (Petitioner) is thejduly appointed Director of the Departmenti'of Consumer Affairs. He brings this action 301er in? his official capacity as Director. 2. . The Department of Consumer Affairs of the State of California is a department within the meaning of Government Code 11180 et seq. Under Government Code 11181 and? 11182, the Director of the DCA is the head of the Department and has the authority to conduct investigations, issue subpoenas, and take testimony in connection with matters within the jurisdiction of the Department. The Director also has the power to delegate such authority. 3. Real Party in Interest Kimberly Kirchmeyer is the Executive Director of the Medical Board of California (Medical Board or Board) which is a duly constituted government agency within the DCA. The Medical Board is charged with the enforcement of the Medical Practice Act (Business and Professions Code 2000 et seq.) and with inveStigating complaints from consumers, from other 1icensees,~from healthcare facilities, or from the Board itself, that a .physician may be guilty of unprofessional conduct. (Business and Professions Code This proceeding directly affects the interests of the Medical Board because the petition seeks to . enfOrce compliance with an investigatiOnal subpoenaissued during an ongoing Medical Board inveStigation of possible violations of the Medical Practice Act by its licensee Mary Kelly Sutton, M.D. (Respondent) . i 4. The Director of the DCA has delegated to officers of the Medical Board, which is an agency within the DCA, the authority to issue subpoenas under Government Code 11182. 5. Michael Fielding Allen, M. D. holds a Physician?s and Surgeon? 3 Certi?cate issued by the Medical Board, which permits him to engage in the practice of medicine and to issue exemptions from mandatory vaccinations to qualifying patients. 6. By way of this petition, the Medical Board requests an order compelling Kaiser . Foundation Hospitals (KFH) to comply with an investigational subpoena for unrcdacted vacCination exemptions and related information in their possession. As set forth in the . Declaration of Investigator Monica Peretto, filed herewith, KHF was duly served with the investigational subpoena, but has advised that it will only comply with the subpoena pursuant to a court order. As set forth 1n Ms. Peretto? declaration and the Declaration of James NroO, M.D., . 2 . . . PETITION FOR OSC AND ORDER COMPELLING COMPLIANCE WITH SUBPOENA I 1 the records sought are relevant and necessary to the investigation of vaccination exemptions issued by Mary Kelly Sutton, M. D. 7. On February 23, 2017, the Board received a complaint from the Assistant Chief of Pediatrics at Kaiser, Roseville, stating that a Kaiser patient had been given an inappropriate vaccine eXemption letter by Dr. Sutton. On March 28, 2017, the complainant sent a copy of an exemption letter issued by Dr. Sutton. The exemption stated that the (name redacted) child was a patient under her care and that the child?s physical condition and medical circumstances were such that the childiwas ?to have a lifelong medical exemption from all vaccines.? Subsequently, the complainant provided nearly identical additional vaccine exemptions issued by Dr. Sutton to other school- aged children, including letters dated April 5, 2017, August 14, 2018, and October 12,2018. . 8. On February 15, 2019, an investigator for the Medical Board served a subpoena for unreda?cted vaccination exemptions and related information in the poSsession of Kaiser Foundation Hospitals. 9. On April 4, 2019, counsel for The Permanente Medical Group (TPMG) responded that the requested d0cuments and informatiOn would be provided if ordered to do so by a court ?and our client is willing to stipulate to the issuance of such an order.? On May 16, 2019, counsel advised that the exemptions are in the possession of TPMG and any order for production should be directed to TPMG. 10. . In support of this Petition for Order to Show Cause and Order Compelling Compliancewith Investigational Subpoena, Petitioner offers the Declaration of James Nuovo, M.D. He is a board-certified physician in the field of Family Medicine. Dr. Nuovo has reviewed the information obtained by the Board?s investigation and has opined that the exemptions appear to have been issued without a history and evaluation and that the exemptions do not demonstrate a valid medical indication. 11. Pursuant to Government Code 11186, venue lies in the County of San Francisco, where the investigation was directed by the Office of the Attorney General, and pursuant to 3 PETITION FOR OSC AND ORDER COMPELLING COMPLIANCE WITH SUBPOENA \booqoxma-mlo ?11188 this Court has the authority to issuean Order to Show Cause why TPMG should not be I ordered to comply with the investigational subpoenas served upon them. 1 1.2 On June 10, 2019, at 3: 02 p. counsel for TPMG was given notice of the ex parte application for an Order to Show Cause. WHEREFORE, pursuant to Government Code ??911186-88, Petitioner respectfully requests that this Court issue an order requiring TPMG to appear before this Court and to show cause why it has failed to comply with the investigational subpoena served on it and, upon failure to show cause, to enter an order: 1. . Requiring TPMG to produce the records sought by the investigational subpoena t0 Investigator Monica Peretto within 15 days of the hearing on this petition; and, 2. Taking such further action as the Court deems appropriate in the interests of justice. Datedz' June 11, 2019 Respectfully Submitted, XAVIER BECERRA AttOmey General of California MARY SIMON supervising Deputy Attorney General CAROLYNE EVANS Deputy Attorney General Attorneys for Petitioner and Real Party in Interest 4 PETITION FOR OSC AN DIORDER COMPELLING COMPLIANCE WITH SUBPOENA - CM-010 .0 he RNEY on PARTY WITHOUT ATT EY Nam late Barnumber and address: Cgrolyne Evan?s, Deputy AltitNortiey agneral (SBN #289200) . 92:) @31- SE ONLY Of?ce of the Attorney General 9?00 455 Golden Gate Avenue Suite 11000 0-00 San Francisco, CA 94102 - . TELEPHONE nos: 415) 510?3488 FAX No.: (415) 703-5480 6? monuev FOR (Name): etitloner and Real Party in Interest SUPERIOR COURT OF CALIFORNIA, COUNTY OF . STREET ADDRESS: 400 MC Allister MAILING ADDRESS: CITYAND ZIP CODE: San Francisco, CA 94102 - CASE NAME: Dean R. Gra?lo,petitioner vs. Kasier Permanente, et al, Respondents CIVIL CASE COVER SHEET Complex Case Designation Unlimited I: lelted 1: Counter :1 Joinder (Amount (Amount . . . . use: Ethan Schulman demanded demanded IS Flled ?rst appearance by defent?hp . exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) 0:53:13 - . Items 1?6 below must be completed (see instructions on page 2). . . 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation . Auto (22) Breach of contract/warranty (06) (Cal. Rules of Court, rules 3.400-3.403) Uninsured motorist (46) Other (Personal Injury/Property Damage/Wrongful Death) Tort Asbestos (04) Product liability (24) Medical malpractice (45) Rule 3.740 collections (09) Other collections (09) Insurance coverage (18) Other contract (37) Real Property Eminent domain/Inverse Antitrust/Trade regulation (03) Construction defect (10) Mass tort (40) Securities litigation (28) Environmental/'1' oxic tort (30) DDUDD Insurance coverage claims arising from the .Other (23) condemnatlon above listed provisionally complex case Wr ful 33 types (41) (Other) Tort one we Ion Business tort/unfair business practice (07) El Other real property (26) Enforcement ofhdudgment :1 Civil rights (08) Unlawful Detainer Enforcement ofjudgment (20) El Defamation (13) Commercial (31) Miscellaneous Civil Complaint Fraud (15) I: Residential (32) RICO (27) 1: Intellectual property (19) 1:1 Drugs (33) - Other complaint (not specified above) (42) Professional negligence (25) Judicial Review Miscellaneous Civil Petition '3 Other non-Pl/ tort (35). El Asset forfeiture (05) Partnership and corporate governance (21) Employment Petition re: arbitration award (11) Other petition (not specified above) (43) Wrongful termination (36) El Writ of mandate (02) Other employment (15) Other judicial review (39) Thiscase :1 IS is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: - a. Large number of separately represented parties d. :1 Large number of witnesses b. Extensive'motlon practice raising difficult or novel e. :1 Coordination with related actions pending in one or more courts' issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court 0. Substantial amount of documentary evidence f. Substantial postjudgmelntjudlcial supervision Remedies sought (check all that apply): a.i:l monetary nonmonetary; declaratory or injunctive relief :Ipunitive 4. Number of causes of action (specify): 5. This caSe Cl is is not a class action suit. .1 6. If there are any known related cases, file and serve a notice- of related case. (You may use form Date: June 11, 2019 Carolyne Evans, Deputy Attorney General - (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE . Plaintiff must file this cover Sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result" in sanctions. File this cover sheet in addition to any cover sheet required by local courtrule. 0 If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. 0 Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onI . we Form Adopted tor Mandatory Use . Cal. Rules of Court, rules 2.30, 3.220, 3.400?3.403, 3.740; Judicial Council of California CIVIL CASE COVER SH EET Cal. Standards of Judicial Administration, std. 3.10 CM-010 [Rev. July 1. 2007]