Kennedy v. Superior Court
Docket: A157089
Court: California Court of Appeal, 5th District; June 14, 2019; California; State Appellate Court
The petition for a writ of supersedeas submitted by Ron Kennedy, M.D. to stay a superior court order requiring him to produce patient records for three minors to the Medical Board of California has been denied. The Board had issued investigative subpoenas under Government Code section 11181, which Dr. Kennedy refused to comply with, leading to a petition by the Director of the Department of Consumer Affairs to compel compliance under Government Code section 11187. The superior court granted this petition and denied Dr. Kennedy's request for a stay while he appealed. Dr. Kennedy argued that Code of Civil Procedure section 917.2 automatically stayed the superior court's order, which applies to personal property delivery orders if an appellant posts a bond. However, it was determined that the automatic stay provisions do not apply to this case, as the underlying action is a special proceeding established by statute and does not incorporate the appellate stay provisions. This conclusion aligns with the federal court practice, which does not grant an automatic stay for subpoena compliance orders pending appeal. Thus, both an automatic and discretionary stay of the superior court's order was denied. Federal litigants are required to seek a discretionary stay of compliance orders, such as subpoenas, rather than relying on an automatic stay. This was illustrated in EEOC v. Quad/Graphics, Inc., where a discretionary stay was granted due to a showing of irreparable harm. The Supreme Court of California has recognized that compliance orders related to subpoenas are appealable, aligning state rules with federal guidelines. An automatic stay could hinder the Board's duty to protect the public from incompetent physicians, as the Board has broad authority to investigate physician complaints. A physician's ability to force the Board to seek court action and then secure an automatic stay would significantly obstruct this investigative power. In this context, Dr. Kennedy has the opportunity to request a discretionary stay by demonstrating that his appeal presents substantial questions and that record disclosure would cause irreparable harm. However, he failed to establish that such a discretionary stay is justified in this instance. The superior court likely acted within its discretion by determining that the Board's need for vaccination exemption records outweighed patient privacy concerns, as those records remain confidential during investigations. The petition for a writ of supersedeas has been denied, and a temporary stay previously issued will expire on June 21, 2019. Notably, recent amendments to federal civil procedure rules have not altered the principles regarding automatic stays.