10 11' 12 13 14 2'XAVIER BECERRA Attorney General of California ANE ZACK SIMON Supervising Deputy Attorney General LAWRENCE MERCER Deputy Attorney General State Bar No. 111898 455 Golden Gate Avenue, Suite 11000 .San Francisco, CA 94102-7004 Telephone: (415) 510-3488 Fax: (415) 703?5480 E-mail: Larry.mercer@doj.ca.gov Attorneys for Petitioner and Real Party in Interest FIRED San Francisco County Superior Court JUN 12 21113 32911111619111 SUPERIOR COURT OF THE STATE OF CALIFORNIA . COUNTY OF SAN FRANCISCO . MEDICAL GROUP, DEAN R. GRAFILO, DIRECTOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, Plaintiff, KAISER FOUNDATION A PERMANENTE Respondent, KIMBERLY KIRCHMEYER, EXECUTIVE DIRECTOR, MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. CaseNo! PETITION FOR ORDER TO SHOW CAUSE AND ORDER COMPELLING COMPLIANCE WITH - INVESTIGATIONAL SUBPOENA Date: Time: Dept: 302 Judge: Hon. Ethan P. Schulman Trial Date: Action Filed: June 12, 2019 28- Petitioner Dean R. Gra?lo, Director of the Department of Consumer Affairs, State of California (DCA), by his attorneys Xavier Becerra, Attorney General of the State of California, and Lawrence Mercer, Deputy Attorney General, alleges as follows: 1 PETITION FOR OSC AND ORDER COMPELLIN COMPLIANCE WITH SUBPOENA Petitioner Dean R. Gra?lo (Petitioner) is the duly appointed Director of the Department of consumer Affairs. He brings this action sclely in his of?cial 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, i'ssue 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 licensees, 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 subpoena issued during an ongoing Medical Board investigation of poSsible violations of the Medical Practice Act by its licensee Michael Fielding Allen, M.D. (Respondent) 4. The Director of the DCA has delegated to of?cers 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?s 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 unredacted vaccination exemptions and related information in their possession. As set forth in the Declaration of Supervising Special Investigator Rashya Henderson, ?led 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 in Ms. Henderson?s declaration and the . 2 PETITION FOR OSC AND ORDER COMPELLIN COMPLIANCE WITH SUBPOENA 10 ll 12 13 14 .15Declaration of ames. Nuovo, M.D., the records sought are relevant and necessary to the investigation of vaccination exemptions issued by Michael Fielding Allen, MD. 7. On May 17, 2018, 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. Allen. On May 21,- 2018, the complainant sent a copy of a. redacted exemption letter issued by Dr. Allen. The exemption stated that the (name redacted) child was a patient under his care and that the child?s physical condition and medical circumstances were such that the child was permanently exempted from any vaccination deemed necessary ?now and/or in the future.? 8. On March 13, 2019, an investigator for the Medical Board served a subpoena for unredacted vaccination exemptions and related information in the possession Kaiser Foundation Hospitals. . 9. . On March 28, 2019, counsel for The Permanente Medical Group (TPMG) responded that the requested documents 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 Compliance with Investigational Subpoena, Petitioner offers the Declaration of James Nuovo, M.D. He is a board?certi?ed physician in the ?eld of Family Medicine. Dr. Nuovo has reviewed 1 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 Of?ce of the Attorney General, and pursuant to ?11188 this Court has the authority to issue an Order to Show Cause why TPMG should not be ordered to comply with the investigational subpoenas served upon them. 3 PETITION FOR OSC AND ORDER COMPELLING COMPLIANCE WITH SUBPOENA .,f/h . ikj? 12. On June 2019, at counsel for TPMG was given notice of the ex parte application for an Order to Show Cause. WHEREFORE, pursuant to Government Code 11186-88, 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 to Supervising Special Investigator Rashya Henderson Within-'15 days of the hearing on this petition; and, 2. Taking such further action as the Court deems appropriate in the interests of ustice. Dated: June?_?, 2019 Respectfully Submitted, XAVIER BECERRA Attorney General of California JANE ZACK SIMON Supervising Deputy Attorney General WRENC MERCER Atto for Petitioner and Real Party in Interest SF2019200636 21458562.docx 4 PETITIONFOR OSC AND ORDER COMPELLING COMPLIANCE WITH SUBPOENA rs CM-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State "Iber, and address): FOR COURT USE ONLY ?Xavier Becerra, Attorney General Ce Lawrence Mercer, Deputy Attorney General (SBN 111898) Of?ce of the Attorney General 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102 TELEPHONE no; 415) 510- 3488 FAX NO.: (415) 703- 5480 E1 ATTORNEY FOR (Name): etittoner and Real Party 1n Interest SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco San Francisco County Superior Court STREET ADDRESS: 400 McAllister Street . MAILING ADDRESS: JUN 12 2019 CITYAND ZIP CODE: San Francisco, California 94102 . BRANCH NAME: CASE NAME: Dean Gra?lo V. Kaiser Foundation Hospitals/The Permanente Med. Group CASE COVER SHEET Com iex CaseDesi nation CASE NUMBER, Unlimited Limited CPF-19-51 6 6 9 '9 . (Amount (Amount Counter i:i Jomder demanded demanded is Filed with ?rst appearance by defendant JUDGE Sd" exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) QEPT: 307? 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: Death) Tort Auto Tort Contract Provisionally Complex Civil Litigation Auto (22) I: Breach of contract/warranty (06) (Cal. Rules of Court, rules 3.400?3.403) Uninsured motorist (46) i:i Rule 3.740 collections (09) regulation (03) Other (Personal lnjuryiProperty Other collections (09) Construction defect (10) i:i insurance coverage (18) i:i Mass tort (40) (04) Other contract (37) i:i Securities litigation (28) liability (24) Real Property 1: Environmental/Toxic tort (30) Medical malpractice (45) Eminent domainl inverse i:i Insurance coverage claims arising from the i:i Other (23) condemnation (14) above listed provisionally complex case (Other) Tort El Wrongful eviction (33) types (41) . i:i Business tort/unfair business practice (07) Other real property (26) Enforcement Of Judgment Civil rights (08) Un awfu Detainer i:i Enforcement ofjudgment (20) i:i Defamation (13) Commercial (31) Miscellaneous Civil Complaints Fraud (16) El Residential (32) Ci Rico (27) i:i intellectual property (19) El Drugs (33) i:i Other complaint (not speci?ed above) (42) El Professional negligence'(25) JUdiCial Review Miscellaneous Civil Petition Other non-PliPD/W tort (35) El Asset forfeiture (05) Partnership and corporate governance (21) Employment i:i Petition re: arbitration award (11) -- Other petition (not speCIf'e above) (43) Wrongful termination (36) Writ of mandate (02) :1 Other employment (15) 1: Other judicial review (39) 2. This case i:i 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. :1 Large number of separately represented parties, d. i:i Large number of witnesses b. Extensive motion practice raising dif?cult '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. i:i Substantial amount of documentary evidence f. i:i Substantial postjudgmentjudicial supervision Remedies sought-{check all that apply): monetary nonmonetary; declaratory 0r injunctive relief C. i:ipunitive Number of causes of action (specify): One This case Ci is - is not a class action suit. 6. if there are any known related cases,er and serve a notice of related case. (Y Date: Zu/q . Lawrence ercer, Deputy Attorney General -. (TYPE 0R PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE Plaintiff must ?le this cot/er sheet with the ?rst paperl led in the action or proce??di ept small claims cases or cases ?led under the Probate Code, Family Code or Welfare and institutions Code). (Cal. Rules of Court, rule 3. 220.) Failure to ?le may result in sanctions. . 0 File this cover sheet in addition to any cover sheet required by local court rule. 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 39 form CM-015.) :31on Form Adopted for Mandatory'Use CIVIL CASE COVER SHEET Cal Rules of Court, rules 2. so. 3 220 3400?3. 403, 3. 740; JUdiClai Council of Califomla Cal. Standards of JUdiClai Administration, std. 3.10 CM-010 [Rev. July 1, 20071 -