Judge: Stephen I. Goorvitch, Case: 23STCP03093, Date: 2024-04-24 Tentative Ruling


Case Number: 23STCP03093    Hearing Date: April 24, 2024    Dept: 82

John Edward Humiston, M.D. v. Medical Board of California

Case No. 23STCP03093

Motion Requesting Leave to Conduct Discovery

 

INTRODUCTION

 

            John Edward Humiston, M.D. (“Petitioner”) filed this petition for writ of administrative and/or traditional mandamus against the Medical Board of California (“Respondent” or the “Board”) seeking to set aside the Board’s revocation of his medical license.  Now, Petitioner seeks leave to conduct discovery, which Respondent opposes.  The motion is granted in part and denied in part. 

 

FACTUAL BACKGROUND

 

            Petitioner was licensed to practice medicine in California in 2003.  (Petition for Writ of Administrative Mandate (“Pet.”) ¶ 1.)  On December 16, 2020, Respondent filed an accusation against Petitioner alleging negligence and failure to maintain accurate medical records.  (Id. ¶ 9.)  According to the petition, “this case involved the treatment of one patient's addiction to benzodiazepines with Neurorecover and informed consent issues regarding a second patient receiving antigen receptor injections.”  (Ibid.)  Petitioner filed a timely notice of defense to the accusation.  (Ibid.) Respondent subsequently filed second and third amended accusations expanding the allegations to include vaccine exemptions issued to two minors.  (Id. ¶¶ 10-11.) 

 

            On July 14, 2022, Petitioner’s initial attorney withdrew as counsel of record in the administrative proceedings.  (Id. ¶ 12)   According to the petition, attorney John Richardson or “J.R.”, who was licensed in the state of Illinois but not California, substituted in as attorney of record in the administrative proceedings.  (Id. ¶ 12)  

 

            Petitioner alleges that the administrative law judge (“ALJ”) subsequently granted the Deputy Attorney General’s oral objection, with prejudice, that Richardson could not represent Petitioner in the administrative proceeding because he was not licensed to practice law in California.  (Id. ¶¶ 13-16.)  According to the petition, the ALJ’s ruling on this objection and prohibition on Richardson representing Petitioner was “highly prejudicial.”  (Id. ¶ 17.)  Petitioner contends that he was denied a fair trial when the ALJ ruled on the objection without giving Richardson the opportunity to argue for pro hac vice admission.  (Id. ¶¶ 27, 30.)  Petitioner also alleges other prejudicial abuses of discretion by the ALJ, which are not directly relevant to the instant motion for discovery.  (Id. ¶¶ 18-25.)

 

            Respondent adopted the ALJ’s decision to revoke Petitioner’s medical license.  (Id. ¶ 20.)  Effective March 8, 2023, Respondent issued its order revoking Petitioner’s medical license.  (See Pet. ¶ 39.)  This petition follows. 

 

LEGAL STANDARD 

 

“As a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.”  (Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702.)  However, relevant evidence may be admitted if, in the exercise of reasonable diligence, it could not have been produced or was improperly excluded at the hearing.  (Code Civ. Proc. § 1094.5(e).) 

 

“An administrative mandamus action … reviews the administrative record which should contain all evidence the parties consider necessary to the resolution of contested issues. Consequently posthearing discovery may reasonably be limited to inquiries calculated to yield evidence which through no fault of the offeror does not appear in the administrative record.”  (Pomona Valley Hospital Medical Center v. Sup. Ct. (1997) 55 Cal.App.4th 93, 102.)

 

“In other words, discovery under section 1094.5, unlike general civil discovery, cannot be used to go on a fishing expedition looking for unknown facts to support speculative theories. The stringent requirements set forth in section 1094.5, subdivision (e) require the moving party to identify what evidence is sought to be discovered for purposes of adding it to the record; to establish the relevancy of the evidence; and to show that either (a) any such relevant, additional evidence was improperly excluded at the administrative hearing, or (b) it could not have been produced at the hearing with the exercise of reasonable diligence. (Code Civ. Proc. § 1094.5, subd. (e).) If the moving party fails to make the required showing, it is an abuse of the court’s discretion to allow posthearing discovery.”  (Pomona Valley, supra, 55 Cal.App.4th at 102.)

 

DISCUSSION

 

            Petitioner seeks leave to serve a request for production of documents from Respondent seeking the following:

 

·       Request for Production No. 1: “Any and all COMMUNICATIONS, including attempted or failed e-filings or electronic correspondence, between RESPONDENT and the Office of Administrative Hearings (OAH), General Jurisdiction Division in San Diego California regarding the ADMINISTRATIVE PROCEEDING.”

 

·       Request for Production No. 2: “Any and all COMMUNICATIONS, including attempted or failed e-filings or electronic correspondence, between RESPONDENT and PETITIONER’s prior counsel, John Richardson, regarding the ADMINISTRATIVE PROCEEDING.”  (Motion Requesting Leave of Court to Conduct Discovery (“Mot”) Exh. A.) 

 

Petitioner also seeks leave to serve a subpoena duces tecum (“Subpoena”) on Respondent seeking the following: “Electronic filing logs related to the Medical Board of California case no. 800-2018-048053, OAH case no. 2021030917, entitled In the Matter of the Third Amended Accusation Against John Edward Humiston, M.D.; copies of any and all filings by any party, including rejected filings; and any and all correspondence between any party or their counsel and OAH related to the above referenced Medical Board case.”  (Mot. Exh. B.)

 

Petitioner contends that “[t]he correspondence and filing/rejection logs sought are relevant because they could tend to prove or disprove … whether Respondent ever communicated, filed or attempted to file a written objection to J.R.’s service pro hac vice, whether the denial of J.R.’s request by the ALJ was based in whole or in part on improper ex parte communication and/or rejected filings that were not shared with or served on Dr. Humiston, and whether any written communication by Dr. Humiston or his counsel on such matters was ever erroneously rejected by OAH.”  (Mot. 5.)

 

            In his motion, Petitioner contends that Richardson made a “request” to be admitted pro hac vice in California for the administrative proceeding.  (Mot. 5-6.)  However, Petitioner does not submit any evidence that a formal request for pro hac vice admission was made, such as excerpts from the administrative record, written proof of such request, or a declaration of Richardson.  In opposition, Respondent’s attorney, Christine Rhee, who represented Respondent in the administrative proceeding, declares that Petitioner and Richardson never filed a motion or application for Richardson to appear as pro hac vice counsel in the proceeding.  (Rhee Decl. ¶ 4.)  In reply, Petitioner submits excerpts from the administrative record, but not any motion or application for Richardson to appear pro hac vice.  (See Reply Archibald Decl.)

 

            Petitioner contends that the “the ALJ issued no written decision on this pivotal issue and the records certified by the agency included no written objections to J.R.’s service as Dr. Humiston's attorney.”  (Mot. 6.)  The parties have not lodged the certified administrative record, but have submitted certain excerpts which show the following.  The ALJ issued an order on or about July 19, 2022, which stated: “Mr. Richardson is not licensed to practice law in the State of California. Ms. Rhee objected and stated she would be filing a motion objecting to his appearance as respondent’s attorney.  As such, Mr. Richardson stated he would take steps to resolve this issue.”  (Reply Archibald Decl. ¶ 4, Exh. D.)  The Prehearing Conference Order, dated July 26, 2022, indicated that Petitioner was representing himself.  (Id., Exh. E.)  At a hearing on September 13, 2022, the ALJ asked Petitioner if he was representing himself, and Petitioner responded: “I am representing myself today with the assistance of John Richardson, my attorney.”  The ALJ then stated: “Yes, but he’s not making an appearance for you because he is not licensed in the State of California as I understand it, correct?”  Petitioner then responded, “Correct.”  (Id. Exh. F.) 

 

Petitioner does not submit excerpts from the administrative record showing any formal request made by Petitioner or Richardson for Richardson to appear pro hac vice.  Thus, Petitioner contends that he seeks discovery because his “fight to remain represented by his retained counsel, J.R., apparently took place primarily outside the official written record, potentially only in oral motions or arguments that were not transcribed by a court reporter and/or by way of informal communications back and forth between Respondent’s counsel, OAH, and Dr. Humiston’s prior counsel.”  (Mot. 6.)

 

            A.        Request for Production Number One – DENIED

 

Request for Production Number Two seeks all communications, without limitation, between Respondent and the Office of Administrative Proceedings regarding the administrative proceeding.  The request is not narrowly tailored to any communications pertaining to whether or not Richardson made a pro hac vice request informally, or whether Respondent objected to Richardson’s representation of Petitioner in the proceeding.  As worded, this request is overbroad and not reasonably calculated to lead to the discovery of evidence that could be admissible pursuant to Code of Civil Procedure section 1094.5(e).  “[D]iscovery under section 1094.5, unlike general civil discovery, cannot be used to go on a fishing expedition looking for unknown facts to support speculative theories.”  (Pomona Valley, supra, 55 Cal.App.4th at 102.) 

 

As drafted, this request would encompass ex parte communications between the Board and the OAH relating to the mandatory settlement conference.  This runs afoul of Evidence Code section 1119, which states: “No evidence of anything said . . . in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled in any . . . civil action . . . .”  (Evid. Code § 1119(a).)  Similarly, “[a]ll communications, negotiations, or settlement discussions by and between the participants in the course of a mediation . . . shall remain confidential.”  (Evid. Code § 1119(c).)  A “mediation” includes a settlement conference.  (See Evid. Code § 1115(a).)

 

Any communications between Petitioner and OAH on which Richardson was copied would be responsive to Request for Production Number Two.  Petitioner does not explain why there would be any discoverable ex parte communications between Respondent and the Office of Administrative Proceedings concerning Richardson’s request to appear pro hac vice.  In sum, Petitioner’s request is hopelessly overbroad, and is not reasonably calculated to lead to relevant evidence under Code of Civil Procedure section 1094.5(e).  Therefore, the motion is denied with respect to Request for Production Number One. 

 

            B.        Request for Production Number Two – GRANTED

 

            Request for Production Number Two seeks all communications, including attempted or failed e-filing or electronic correspondence, between Respondent and Richardson regarding the administrative proceeding.  Since Respondent objected to Richardson’s representation of Petitioner, it appears that any communications between Respondent and Richardson would likely have concerned Richardson’s representation of Petitioner or pro hac vice admission.  Respondent has not argued, or shown with evidence, that communications between Respondent and Richardson likely concerned other topics. 

 

The petition alleges that Petitioner was denied a fair trial when Richardson was not permitted to represent Petitioner, and that the administrative record does not reflect Richardson’s attempts to be admitted pro hac vice.  (Pet. ¶¶ 16-17, 27, 30.)  Respondent contends that “Petitioner failed to file a motion or application for pro hac vice counsel,” so “[t]he out-of-court communications between Complainant’s counsel and J.R.” are not relevant to whether Petitioner received a fair trial, and the request is an impermissible fishing expedition.  (Oppo. 4-5.)  However, if Respondent and Richardson communicated about his representation or pro hac vice admission, that could provide relevant evidence concerning the procedural context in which the ALJ ruled that Richardson could not represent Petitioner.  Thus, Request for Production Number Two is relevant within the meaning of section 1094.5(e). 

 

            Respondent does not submit any evidence suggesting that communications between Respondent and Richardson concerned matters other than Richardson’s representation of Petitioner or pro hac vice admission.  Nor does Respondent establish that it would be burdensome to produce these communications (which presumably are limited in number).  Thus, the request appears narrowly tailored to the legal theory pleaded in the petition.  (See Pet. ¶¶ 16-17, 27, 30.)  Petitioner is not required to prove his underlying claim to pursue discovery.  Regardless, Respondent may respond to the request with appropriate objections if it contends certain responsive records are not relevant or otherwise privileged.  (See Oppo. 6-7.)  There are no confidentiality concerns because Petitioner is seeking only communications between Respondent and himself, by and through counsel.  Based upon the foregoing, the motion is granted with respect to Request for Production Number Two.    

 

            C.        Subpoena Duces Tecum – GRANTED IN PART; DENIED IN PART  

 

The proposed subpoena duces tecum seeks “[e]lectronic filing logs related to the Medical Board of California case no. 800-2018-048053, OAH case no. 2021030917, entitled In the Matter of the Third Amended Accusation Against John Edward Humiston, M.D.; copies of any and all filings by any party, including rejected filings; and any and all correspondence between any party or their counsel and OAH related to the above referenced Medical Board case.”  (Mot. Exh. B.)  As phrased, the subpoena is not narrowly tailored to any communications pertaining to whether or not Richardson made a pro hac vice request informally, or whether Respondent objected to Richardson’s representation of Petitioner in the proceeding.

 

The court grants the motion in one narrow respect: Respondent shall produce copies of the following documents: (1) Any motion for pro hac vice admission served on Respondent by John Richardson; (2) Any motion to disqualify John Richardson served by Respondent; and (3) Any entry in the electronic docket demonstrating that John Richardson filed, or attempted to file, a motion for pro hac vice admission.  These requests are narrowly-tailored to address the dispositive issue, viz., whether Petitioner received due process during his administrative hearing.  As discussed, Petitioner is not required to provide his underlying claim at this stage, and Respondent may object on the basis of relevance.  Finally, the court finds that this would not pose an undue burden on Respondent given the limited scope (assuming such documents exist in the first place).    

 

CONCLUSION AND ORDER

 

            Based upon the foregoing, the court orders as follows:

 

            1.         Petitioner’s motion for leave to conduct discovery is granted in part and denied in part.

 

            2.         Respondent shall produce the following documents within thirty (30) days: (a) All communications between Respondent’s counsel and John Richardson concerning this case; (b) Any motion for pro hac vice admission served on Respondent by John Richardson; (c) Any motion to disqualify John Richardson served by Respondent; and (d) Any entry in the electronic docket demonstrating that John Richardson filed, or attempted to file, a motion for pro hac vice admission. 

 

            3.         The motion is denied in all other respects.

 

            4.         Petitioner’s counsel shall provide notice and file proof of service with the court.