Judge Eddie C. Sturgeon, Case 37-2023-00022059-CU-PT-CTL 2023-09-15 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2023-00022059-CU-PT-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 02:00:00 PM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited Petitions - Other Hearing on Petition 37-2023-00022059-CU-PT-CTL PETITION OF KIMBERLY KIRCHMEYER DIRECTOR, DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Petition - Other, 05/11/2023

Petitioner Kimberly Kirchmeyer, in her capacity as the Director of the Department of Consumer Affairs seeks an order compelling compliance with its investigational subpoenas for the medical records of three patients: Patient A (January 1, 2018 through December 13, 2018), Patient B (January 1, 2020 through December 31, 2020), and Patient C (January 1, 2020 through December 31, 2021).

To overcome Patients A, B, and C's constitutional rights to privacy in their medical records, the court must determine that Petitioner has 'good cause' for the investigational subpoena. (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1035.) Petitioner 'must demonstrate through competent evidence that the particular records it seeks are relevant and material to its inquiry sufficient for a trial court to independently make a finding of good cause to order the materials disclosed.' (Ibid. [quoting Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1402].) 'Good cause 'calls for a factual exposition of a reasonable ground for the sought order.'' (Grafilo v. Cohanshohet (2019) 32 Cal.Ap.5th 428, 437 [quoting Bd. Of Medical Quality Assurance v. Gheradini (1979) 93 Cal.App.3d 669, 681].) Here, Petitioner has submitted the Declarations of Dr. Brian Murray and Investigator Robert Chisuano. The court requests argument on whether these declarations contain competent evidence that would support a finding of good cause. In addition to any argument the parties wish to make, the court requests the parties answer the following questions: 1. Aren't the interview summaries and any direct interviewee testimony hearsay? Doesn't some of the interviewee testimony include double hearsay? Particularly given the contrary evidence provided by Respondent's declarants (e.g., ROA 33, Ex. B [contesting that Patient B stated she was '100% committed to treatment']; id., Declaration of Lonny Shavelson, ¶ 20 [stating that Dr. Uslander's treatment was within the standard of care]), what weight, if any, should the court give the interviewee testimony? 2. Is there any non-speculative irregularity, violation of law, or breach of standard of care that Dr. Murray can opine on based solely on the CURES reports? 3. What weight, if any, should the court give the complaint in this case given that the complaint does not appear to be introduced as evidence? (Cf. Wolfsohn, supra, 33 Cal.App.5th at 1037 [stating that complaints that are anonymous or where 'no information was provided regarding the nature of the complaint or the basis upon which the officer made the complaint' are insufficient to support a good cause determination].) 4. What weight, if any, should the court give to the prior disciplinary proceedings? (See ROA 36, Ex. B.) Calendar No.: Event ID: TENTATIVE RULINGS

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