Filed 1/6/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LINDA K. WHITNEY, as Executive 

Director, etc.,

Plaintiff and Respondent,

v.

WALTON MONTEGUT,

Defendant and Appellant.

 B241755

 (Los Angeles County Super. Ct.

 No. BS132656)

APPEAL from a judgment of the Superior Court of Los Angeles County, Diedre 

H. Hill, Judge. Affirmed.

Iungerich & Spackman and Russell Iungerich for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Gloria L. Castro, Senior Assistant Attorney General, Robert McKim Bell, 

Supervising Deputy Attorney General, Cindy M. Lopez, Deputy Attorney General, for 

Plaintiff and Respondent.

___________________________
2

Linda K. Whitney, Executive Director of the Medical Board of California (the 

Board), filed a petition to compel Walter Montegut, M.D., to comply with investigational 

subpoenas (the subpoenas) issued in connection with an investigation of a complaint that 

Dr. Montegut “may be abusing drugs, prescribing to himself and over prescribing to 

patients.” Over various objections, the trial court granted the petition.

Dr. Montegut contends the trial court erred in granting the petition because: (1) it 

was not timely filed within 60 days of his noncompliance with the subpoenas; (2) the 

Los Angeles County Superior Court did not have jurisdiction to hear the petition under 

Government Code section 11186;

1

(3) the subpoenas were illegal because they were not 

supported by written patient releases; and (4) the subpoenas did not set forth legally 

adequate cause for enforcement. We affirm.

Allegations of the Petition and Supporting Documents

The petition was filed in Los Angeles County Superior Court on June 27, 2011, 

seeking medical records of ten patients treated by Dr. Montegut, pursuant to the Board‟s 

disciplinary and investigative authority over licensed physicians. The petition was 

supported by a declaration of Dr. Rick Chavez, a physician with board certification in 

addiction medicine and pain medicine, who reviewed prescriptions issued by 

Dr. Montegut that revealed possible drug use and over prescribing to patients. 

Dr. Chavez opined that he needs to review the patients‟ medical records to determine 

why the medications were prescribed. The petition alleged the Board‟s investigation was 

being conducted in Los Angeles County and the designated place of compliance with the 

subpoenas was in Los Angeles County (although the subpoena attached to the petition 

required production of patient records in Tustin, which is in Orange County). Counsel 

for Dr. Montegut notified the Board‟s investigator, Erika George, on January 26, 2011, of 

objections to the subpoenas and the doctor‟s refusal to comply.

 

1 Statutory references are to the Government Code unless otherwise indicated.
3

The Board filed a memorandum of points and authorities concurrently with the 

petition. The memorandum detailed the nature of the investigation, the authority of the 

Board to investigate, and the necessity to enforce the subpoenas.

Proceedings on the Petition

Dr. Montegut filed objections to the petition on substantive, procedural, and 

jurisdictional grounds, as discussed below. The trial court issued an order to show cause, 

rejected each of Dr. Montegut‟s objections, and on May 10, 2012, the court signed an 

order compelling Dr. Montegut to comply with the subpoenas. Dr. Montegut filed a 

timely notice of appeal from the order. 

DISCUSSION

I

Dr. Montegut‟s first contention is that the petition to compel compliance with the

subpoenas is subject to the same 60-day time limit applicable to a petition for writ of 

mandate. Because he refused to comply by January 27, 2011,

2 Dr. Montegut reasons the 

Board had to file the petition no later than March 28, 2011, and the June 27, 2011 filing 

was beyond the applicable limitations period.

Dr. Montegut cites no authority for the proposition that a petition to compel 

compliance with an investigational subpoena is the equivalent of a petition for writ of 

mandate which must be filed within 60 days of the party‟s failure to comply, nor does he 

engage in any analysis to support that conclusion. “We need not address arguments for 

 

2

 Dr. Montegut‟s letter, refusing to comply with the subpoenas, was dated

January 26, 2011. 
4

which a party provides no supporting authority. (People v. Williams (1997) 16 Cal.4th 

153, 226, fn. 6.)” (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1042.)

In any event, the trial court correctly ruled that a petition to compel compliance 

with a subpoena “is not a petition for writ of mandate; therefore the 60-day statute does 

not apply.” The Board is empowered to issue investigative subpoenas for the purpose of 

investigating physician conduct. (Bus. & Prof. Code, § 2220; § 11181, subd. (e).) The 

power to enforce compliance with investigational subpoenas is found in section 11187,3

 

3 Section 11187 provides as follows: “(a) Except as provided in subdivision (c), 

if any witness refuses to answer any interrogatory or to attend or testify or produce or 

permit the inspection or copying of any papers or other items described in subdivision (e) 

of Section 11181 required by subpoena, the head of the department may petition the 

superior court in the county in which the hearing or investigation is pending or the county 

in which testimony is designated in the subpoena to be given or documents or other items 

are designated in the subpoena to be produced, for an order compelling the person to 

answer the interrogatories or to attend and testify or produce and permit the inspection 

and copying of the papers or other items required by the subpoena before the officer 

named in the subpoena.

“(b) The petition shall set forth all of the following:

“(1) That due notice of the time and place for answering the interrogatories or testifying 

or the attendance of the person or the production of the papers or other items described in 

subdivision (e) of Section 11181 was given.

“(2) That the person was subpoenaed or required to answer interrogatories in the manner 

prescribed in this article.

“(3) That the person failed and refused to answer the interrogatories or to attend or 

testify or produce or permit the inspection or copying of the papers or other items 

required by subpoena before the officer in the cause or proceeding named in the 

subpoena, or has refused to answer questions propounded to him or her in the course of 

the investigation or hearing.

“(c) If the witness named in the subpoena does not reside or conduct business in this 

state, the department head may seek to compel the witness‟ testimony and production, 

inspection, and copying of documents or other items described in subdivision (e) of 

Section 11181 in the manner provided for the enforcement of a deposition notice to a 
5

which expressly sets forth the requirements of the petition. Section 11187 does not 

contain a 60-day period of limitations, nor does it suggest in any fashion that a petition to 

compel compliance with a subpoena is the equivalent of a petition for writ of mandate. 

The petition in this case was not untimely.

II

Dr. Montegut next argues the Los Angeles County Superior Court did not have 

jurisdiction to hear the petition. He contends jurisdiction in this case is in the Orange 

County Superior Court under the provisions of section 11186, because the subpoenas

called for compliance in Orange County and there is no evidence that any investigation of 

Dr. Montegut was taking place in Los Angeles County. This contention involves issues 

of statutory interpretation and application of the substantial evidence rule to the trial 

court‟s findings on jurisdiction.

A. Standards of Review

“Appellate courts review statutory interpretations de novo. (Be v. Western Truck 

Exchange (1997) 55 Cal.App.4th 1139, 1143.)” (California Teachers’ Assn. v. 

Governing Bd. of Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 190.) “Our 

fundamental task in construing a statute is to ascertain the intent of the lawmakers so as 

to effectuate the purpose of the statute. (Torres v. Automobile Club of So. California

 

nonparty as described in Section 2026.010 or 2027.010 of the Code of Civil Procedure or 

in any other manner authorized by any law.

“(d) If any witness objects and based on that objection refuses to answer any 

interrogatory or to attend or testify or produce or permit the inspection or copying of any 

papers or other items described in subdivision (e) of Section 11181 as required by a 

subpoena, the witness shall state the objection and the validity of the objection shall be 

determined exclusively in a proceeding brought by the head of the department to compel 

compliance as provided in this section.”
6

(1997) 15 Cal.4th 771, 777.) We begin by examining the statutory language, giving the 

words their usual and ordinary meaning. (People v. Lawrence (2000) 24 Cal.4th 219, 

230.) If there is no ambiguity, then we presume the lawmakers meant what they said, and 

the plain meaning of the language governs. (Id. at pp. 230-231; People v. Coronado

(1995) 12 Cal.4th 145, 151.)” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)

“„When a trial court‟s factual determination is attacked on the ground that there is 

no substantial evidence to sustain it, the power of an appellate court begins and ends with 

the determination as to whether, on the entire record, there is substantial evidence, 

contradicted or uncontradicted, which will support the determination, and when two or 

more inferences can reasonably be deduced from the facts, a reviewing court is without 

power to substitute its deductions for those of the trial court. If such substantial evidence 

be found, it is of no consequence that the trial court believing other evidence, or drawing 

other reasonable inferences, might have reached a contrary conclusion.‟ (Bowers v. 

Bernards (1984) 150 Cal.App.3d 870, 873-874.) The substantial evidence standard of 

review is applicable to appeals from both jury and nonjury trials. (Alderson v. Alderson

(1986) 180 Cal.App.3d 450, 465.)” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 

Cal.App.4th 138, 143.)

B. Interpretation of Section 11186

The statute assigning jurisdiction to hear petitions to compel compliance with 

investigational subpoenas is section 11186, which provides as follows: “The superior 

court in the county in which any hearing is held or any investigation is conducted under 

the direction of the head of a department or the county in which testimony is designated 

to be given or documents or other items are designated to be produced, has jurisdiction to 

compel the attendance of witnesses, the giving of testimony, the answering without 

objection of interrogatories, and the production, inspection, and copying of papers, books, 

accounts, documents, and other items described in subdivision (e) of Section 11181 as 

required by any subpoena issued by the department head.” 
7

Section 11186 unambiguously defines the trial court‟s jurisdiction to hear a 

petition to compel compliance with an investigational subpoena in three distinct ways. 

The petition may be filed in: (1) “the county in which any hearing is held”; (2) “the 

county in which . . . any investigation is conducted under the direction of the head of a 

department”; and (3) “the county in which testimony is designated to be given or 

documents or other items are designated to be produced.” Jurisdiction is therefore not 

limited to Orange County, even though that county was the location for compliance with 

the subpoenas.

C. Substantial Evidence

The trial court found that the Los Angeles County Superior Court has jurisdiction 

over the petition because (1) the hearing on Dr. Montegut‟s interim suspension was held 

in Los Angeles, (2) if an accusation is filed, it will be in Los Angeles, and (3) 

investigation was conducted in both Orange and Los Angeles Counties. Under the 

appropriate standard of review, the issue is not close, as the court‟s jurisdictional findings 

are amply supported by substantial evidence. 

First, the deputy attorney general acting as counsel for the Board declared that a 

hearing had been held in October 2010 in the Los Angeles Office of Administrative 

Hearings regarding interim suspension of Dr. Montegut‟s medical license. This sworn 

statement is uncontroverted. Thus, in direct relation to the investigation of Dr. Montegut, 

Los Angeles was “the county in which any hearing is held.” (§ 11186, italics added.) 

The broad jurisdictional language used by the Legislature, including the phrase “any 

hearing,” does not support the interpretation urged by Dr. Montegut, that “any hearing” 

means a hearing that is currently pending. Had the Legislature intended the meaning of 

section 11186 suggested by Dr. Montegut, it would have provided for jurisdiction in the 

county “in which any hearing is pending.” The Legislature did not use those words, and 

we decline to add them to section 11186 and thereby limit the broad jurisdictional 
8

language chosen by the Legislature. The hearing on interim suspension, alone, is an 

adequate basis for jurisdiction in the Los Angeles County Superior Court.

The trial court also ruled that jurisdiction was proper under section 11186 because 

if an accusation is filed, any hearing will also be heard in Los Angeles County at the 

Office of Administrative Hearings. We leave for another day the issue of whether a 

future hearing satisfies the jurisdictional requirement of the statute. It is sufficient for 

purposes of this case to hold, as we have above, that the prior hearing on interim 

suspension of Dr. Montegut vests the Los Angeles County Superior Court with 

jurisdiction to hear the petition to compel compliance with the subpoenas. 

Second, the record contains substantial evidence to support the trial court‟s finding 

that “the investigation has been conducted in both Orange County and Los Angeles

County.” Because the court did not specify the evidence upon which it relied, we 

examine the entire record and draw all inferences in favor of the court‟s express or 

implied findings under the substantial evidence rule. We begin by noting that the 

petition, which is deemed verified under the terms of Code of Civil Procedure 

section 446 (see Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 

Cal.App.3d 1212, 1222-1223), specifically alleged that “the Board‟s investigation is 

being conducted in Los Angeles County.”

The Board‟s counsel explained in a declaration that she was “assigned to 

investigate allegations of misconduct” (italics added) against Dr. Montegut in June 2010, 

and that she “direct[ed] the investigation of this case from [her] office in Los Angeles.” 

Pursuant to section 12529.6,4counsel worked in conjunction with Investigator George, 

 

4 Section 12529.6 provides in part as follows: “(a) The Legislature finds and 

declares that the Medical Board of California, by ensuring the quality and safety of 

medical care, performs one of the most critical functions of state government. Because of 

the critical importance of the board‟s public health and safety function, the complexity of 

cases involving alleged misconduct by physicians and surgeons, and the evidentiary 

burden in the board‟s disciplinary cases, the Legislature finds and declares that using a 

vertical enforcement and prosecution model for those investigations is in the best 

interests of the people of California.
9

who was located in Orange County, using a vertical enforcement and prosecution model. 

Part of counsel‟s responsibilities include interviewing witnesses, researching applicable 

case law, making phone calls, filing the petition for interim suspension, and enforcement 

of investigational subpoenas. Counsel‟s declaration constitutes substantial evidence that 

investigation was conducted in Los Angeles County.

Additional definitive proof that “any investigation” took place in Los Angeles 

County is found in the involvement of Dr. Chavez. It is undisputed that Dr. Chavez was 

utilized by the Board to investigate Dr. Montegut‟s prescribing practices, and after his 

investigation of the prescriptions, the irregularities he observed caused him to conclude it 

was necessary to review the patients‟ medical records that are the subject of the instant 

petition. Dr. Chavez has medical privileges at two Los Angeles County hospitals, and 

most importantly, signed his declaration in Redondo Beach, which is located in Los 

Angeles County. The trial court could reasonably infer from the record that counsel for 

the Board directed and participated in the investigation, Dr. Chavez was an integral part 

of that investigation, and their activity took place in Los Angeles County. The court 

correctly found it had jurisdiction.

 

“(b) Notwithstanding any other provision of law, as of January 1, 2006, each complaint 

that is referred to a district office of the board for investigation shall be simultaneously 

and jointly assigned to an investigator and to the deputy attorney general in the Health 

Quality Enforcement Section responsible for prosecuting the case if the investigation 

results in the filing of an accusation. The joint assignment of the investigator and the 

deputy attorney general shall exist for the duration of the disciplinary matter. During the 

assignment, the investigator so assigned shall, under the direction but not the supervision 

of the deputy attorney general, be responsible for obtaining the evidence required to 

permit the Attorney General to advise the board on legal matters such as whether the 

board should file a formal accusation, dismiss the complaint for a lack of evidence 

required to meet the applicable burden of proof, or take other appropriate legal action.”
10

III

Citing Business and Professions Code section 2225.5, subdivision (a)(1), Dr. 

Montegut contends the subpoena was illegal because it was not accompanied by written 

patient releases. He further argues the letters notifying the ten patients of the subpoena of 

their records from Dr. Montegut were insufficient because they “did not specify a court 

or administrative officer because (sic) whom objections could be made. They merely 

state that the patients should consider consulting an attorney.” Dr. Montegut also relies 

on Code of Civil Procedure section 1985.3, as applied in Sehlmeyer v. Department of 

General Services (1993) 17 Cal.App.4th 1072, 1076, footnote 3 (Sehlmeyer), for the 

proposition that a physician may refuse to comply with a subpoena for patient records if 

the notice to the patient fails to identify where the patient may file objections to 

disclosure of their records.

Business and Professions Code section 2225.5, subdivision (a)(1),5 has no 

application in this case. The statute is a penalty provision that applies to a physician who 

refuses to comply with a subpoena for medical records after the patient has provided 

written consent. Here, the ten patients in question have not provided written consent. Dr. 

Montegut is not being penalized for failing to comply with the subpoenas as to 

consenting patients. This case concerns compliance with the subpoenas after the patients 

have failed to provide consent, not the penalty for noncompliance where there is patient 

consent.

 

5 Business and Professions Code section 2225.5 provides in pertinent part as 

follows: “(a)(1) A licensee who fails or refuses to comply with a request for the certified 

medical records of a patient, that is accompanied by that patient‟s written authorization 

for release of records to the board, within 15 days of receiving the request and 

authorization, shall pay to the board a civil penalty of one thousand dollars ($1,000) per 

day for each day that the documents have not been produced after the 15th day, up to ten 

thousand dollars ($10,000), unless the licensee is unable to provide the documents within 

this time period for good cause.”
11

We next turn to Dr. Montegut‟s contention regarding Code of Civil Procedure 

section 1985.3, subdivision (e),

6 which describes the required written notice to a patient 

that a subpoena has been issued for the patient‟s medical records. First, the patient must 

be given notice that records about the patient are being sought from the witness named on 

the subpoena. The notices to each patient here included a cover letter from Investigator 

George stating that she had made an earlier written request to authorize release of the 

medical records held by Dr. Montegut, but the patient had not responded. The letter 

included the following language: “I am writing to inform you that: THE MEDICAL 

BOARD IS ATTEMPTING TO OBTAIN YOUR MEDICAL RECORDS FROM DR. 

MONTEGUT VIA SERVICE OF A SUBPOENA.” Investigator George‟s letter was 

accompanied by a copy of the subpoena and a “NOTICE TO MEDICAL CONSUMERS” 

that identified the patients‟ rights. Investigator George‟s letter and the supporting 

documents satisfied the first notice requirement of Code of Civil Procedure 

section 1985.3.

The second requirement of Code of Civil Procedure section 1985.3 is notice to the 

patient that if he or she objects to disclosure of his or her medical records, the patient 

must file papers with the court or serve a written objection prior to the date specified for 

production. Here, each patient received a document entitled “NOTICE TO MEDICAL 

CONSUMERS,” explaining the Board‟s duties and investigative powers and seeking the 

patients signature on an authorization to release of their medical records. The patients 

 

6 Subdivision (e) of Code of Civil Procedure section 1985.3 provides as follows: 

“(e) Every copy of the subpoena duces tecum and affidavit, if any, served on a consumer 

or his or her attorney in accordance with subdivision (b) shall be accompanied by a 

notice, in a typeface designed to call attention to the notice, indicating that (1) records 

about the consumer are being sought from the witness named on the subpoena; (2) if the 

consumer objects to the witness furnishing the records to the party seeking the records, 

the consumer must file papers with the court or serve a written objection as provided in 

subdivision (g) prior to the date specified for production on the subpoena; and (3) if the 

party who is seeking the records will not agree in writing to cancel or limit the subpoena, 

an attorney should be consulted about the consumer‟s interest in protecting his or her 

rights of privacy. If a notice of taking of deposition is also served, that other notice may 

be set forth in a single document with the notice required by this subdivision.”
12

were advised of their right not to sign the consent form, but that the Board will take the 

necessary steps to subpoena the records. Patients were advised, “YOU HAVE THE 

RIGHT TO OBJECT TO PRODUTION OF YOUR RECORDS TO THE MEDICAL 

BOARD IN RESPONSE TO ITS SUBPOENA.” Investigator George‟s letter to each 

patient included the same admonition. The second notice requirement of Code of Civil 

Procedure section 1985.3 was satisfied.

The third notice requirement is that if the parties do not agree in writing to cancel 

or limit the subpoena, the patient should consult an attorney about protecting the patient‟s 

privacy rights. The “NOTICE TO MEDICAL CONSUMERS” provided to each patient 

in this case included the following admonition: “IF YOU WISH TO MAKE SUCH AN 

OBJECTION, YOU MAY WANT TO CONSULT AN ATTORNEY TO DISCUSS 

YOUR RIGHTS.” Investigator George‟s letter to each patient contained the same 

admonition. The third statutory notice requirement was satisfied.

Dr. Montegut contends there is an additional notice requirement under Code of 

Civil Procedure section 1985.3 that the Board did not satisfy—notice advising the patient 

in which court, or before which tribunal, an objection could be made. Code of Civil 

Procedure section 1985.3 contains no such requirement, and we decline to impose one. 

Sehlmeyer, supra, 17 Cal.App.4th 1072, cited by Dr. Montegut, does not hold that Code 

of Civil Procedure section 1985.3 requires a patient be given notice of where to object. 

The case stands for the unremarkable proposition that a patient must be given advance 

notice of a subpoena of medical records under Code of Civil Procedure section 1985.3. 

(Sehlmeyer, supra, at pp. 1079-1082.) The Board provided the precise notice required by 

the statute in this case.

IV

Dr. Montegut‟s final contention is that the subpoena did not set forth legally 

adequate cause for its enforcement. Relying on Wood v. Superior Court (1985) 166 

Cal.App.3d 1138, 1148-1149 (Wood), Dr. Montegut argues the declaration of Dr. Chavez 
13

fails to support a finding overriding a patient‟s privacy rights because (1) Dr. Chavez is 

not a member of the same medical specialty as Dr. Montegut, and (2) Dr. Chavez‟s 

conclusion that “[i]t is not possible to ascertain with assurance why these medications 

were prescribed” is legally insufficient for enforcement of an investigational subpoena. 

A. Qualifications and Sufficiency of the Opinion of Dr. Chavez 

Dr. Chavez declared he is board certified in Addiction Medicine, Pain Medicine, 

and Family Medicine. He earned his undergraduate degree in psychology at Stanford 

University and his medical degree at the UCLA School of Medicine, where he has been a 

clinical assistant professor since 1992. He was on the faculty at the USC School of 

Medicine from 1987-1992. His current clinical practice is in the treatment of chronic 

pain and addiction medicine. He has clinical and admission privileges at Torrance 

Memorial Medical Center and Little Company of Mary Hospital in Torrance.

In July 2010, Dr. Chavez was asked to review allegations of drug use and over 

prescribing by Dr. Montegut. One of the documents he reviewed was a CURES report,

7

which revealed significant irregularities in Dr. Montegut‟s prescribing practices. Large 

quantities of Phentermine were prescribed to one patient. Patients were receiving the 

same prescription on the same day, in the same quantities, at two different pharmacies. 

Multiple family members were receiving the same medication and refilling before the due 

date. Dr. Montegut is a plastic surgeon, and Dr. Chavez opined “it seems unusual for 

someone in his specialty to prescribe these kinds drugs in these high amounts.” Such

behavior “is consistent with medication abuse, misuse or diversion. It is difficult to 

ascertain why these medications were prescribed without seeing the medical records for 

the patients.” In Dr. Chavez‟s professional opinion, “there is good reason for the 

 

7 “CURES” is an acronym for the California Department of Justice Controlled 

Substance Utilization Review and Evaluation System, established by Health and Safety 

Code section 11165 for the purpose of assisting law enforcement and regulatory agencies 

in their efforts to control the diversion and abuse of controlled substances.
14

necessity to review the medical records of the patients in question. In order to accurately 

determine and define these problems, certified medical records are necessary.” 

The trial court‟s determination that a physician is qualified to render testimony as 

“an expert witness must be upheld absent an abuse of discretion, which will be found 

only where the evidence shows that a witness clearly lacks qualification as an expert. 

(People v. Chavez (1985) 39 Cal.3d 823, 828.)” (Jutzi v. County of Los Angeles (1987)

196 Cal.App.3d 637, 653.)

Dr. Montegut argues that Dr. Chavez is unqualified to render the opinion that the 

CURES report showed irregularities in Dr. Montegut‟s prescribing practice, on the 

ground that Dr. Chavez is not a plastic surgeon. We reject the argument. Dr. Chavez did 

not express an opinion on how Dr. Montegut performed plastic surgery. He did express 

an uncontroverted opinion, within his area of expertise of addiction and pain medicine, 

regarding the irregularities shown in Dr. Montegut‟s prescriptions in the CURES report. 

Those irregularities included prescriptions for large quantities of Phentermine to one 

patient, patients receiving the same medication at different pharmacies on the same day, 

and multiple family members receiving the same medication, “refilling before the due 

date.” Given Dr. Chavez‟s training, education, and experience, the trial court did not 

abuse its discretion in relying on his expert opinion that there were significant 

irregularities in Dr. Montegut‟s prescribing practices that necessitated further review of 

patient records.

B. Adequacy of Dr. Chavez’s Opinion to Support the Subpoenas

Dr. Montegut argues that Dr. Chavez‟s declaration is insufficient as a matter of 

law to provide an adequate basis for an investigational subpoena based on his conclusion 

that “[i]t is not possible to ascertain with assurance why these medications were 

prescribed.” Dr. Montegut argues Wood, supra, 166 Cal.App.3d 1138 “is directly on 

point in this case.” The Wood court found insufficient evidence to support an order 

compelling a doctor to comply with investigational subpoenas where the Board‟s expert 
15

expressed the opinion examination of patient records was necessary “„because of the 

definite possibility of excessive prescribing of controlled drug substances . . . .‟” (Id. at 

p. 1142.) 

Wood involved administrative subpoenas directed to two physicians for the 

complete medical records of patients who had been prescribed Schedule II controlled 

substances. When the physicians refused to comply with the subpoenas, the Board 

obtained a trial court order enforcing compliance. The Court of Appeal granted a 

peremptory writ of mandate overturning the order to comply. (Wood, supra, 166 

Cal.App.3d at pp. 1140-1141.) The Wood court based its conclusion that the subpoenas 

should not have been enforced on the following factors: (1) a patient‟s right to privacy 

prohibited inspection of medical records in the absence of a compelling state interest (id.

at p. 1147); (2) the right to privacy could only be protected if the Board takes reasonable 

steps to notify the patient of the subpoena (id. at p. 1149); (3) if the patient does not 

waive the privacy right, the Board must “provide competent evidence that permits the 

trial court to make an independent finding of good cause,” for review of the complete 

medical records of the patient (ibid.); and (4) “If the trial court is to make the decision of 

reasonable cause other than as a rubber stamp the root facts upon which an inference of 

improper prescribing is based must be laid bare” (id. at p. 1150). Based upon 

deficiencies in these four categories, the appellate court held there was “no independent 

judicial assessment of good cause” and the “judicial function of assessing cause [citation]

cannot be abdicated by deferring to the bare conclusion of board personnel.” (Ibid.) 

The problems with the subpoenas before the court in Wood are not present in the 

instant case. Wood‟s conclusion that a compelling state interest is required to overcome 

the right to privacy predated our Supreme Court‟s opinion in Hill v. National Collegiate 

Athletic Assn. (1994) 7 Cal.4th 1 (Hill), which rejected that interpretation of the right to 

privacy in article I, section 1, of the California Constitution.8 “Invasion of a privacy 

 

8 Article I, section 1 of the California Constitution provides as follows: “All 

people are by nature free and independent and have inalienable rights. Among these are 
16

interest is not a violation of the state constitutional right to privacy if the invasion is 

justified by a competing interest. Legitimate interests derive from the legally authorized 

and socially beneficial activities of government and private entities. Their relative 

importance is determined by their proximity to the central functions of a particular public 

or private enterprise. Conduct alleged to be an invasion of privacy is to be evaluated 

based on the extent to which it furthers legitimate and important competing interests. 

[Citation.]” (Id. at p. 38.) The trial court here made a thorough analysis of the competing 

interests in this case, and other than challenging the adequacy of Dr. Chavez‟s 

declaration, Dr. Montegut makes no argument the court erred in its analysis of competing 

interests as defined in Hill.

The second issue identified in Wood—the absence of notice to the patients—is not 

a factor in this case. It is uncontested that the patients were given the opportunity to 

consent to disclosure of their records, and when consent was not given, the patients 

received notice of the subpoena and their right to consult with counsel and object to the 

subpoena. As noted by the trial court, the patients are protected by section 11183,9 which 

prohibits disclosure of records seized pursuant to an investigational subpoena.

The third requirement of Wood—the Board‟s obligation to present competent 

evidence which supports the trial court‟s finding of good cause for enforcement of the 

subpoena—is satisfied by Dr. Chavez‟s declaration. We do not agree with Dr. 

 

enjoying and defending life and liberty, acquiring, possessing, and protecting property, 

and pursuing and obtaining safety, happiness, and privacy.”

9 Section 11183 provides as follows: “Except in a report to the head of the 

department or when called upon to testify in any court or proceeding at law or as 

provided in Section 11180.5 or subdivisions (g) and (h) of Section 11181, an officer shall 

not divulge any information or evidence acquired by the officer from the interrogatory 

answers or subpoenaed private books, documents, papers, or other items described in 

subdivision (e) of Section 11181 of any person while acting or claiming to act under any 

authorization pursuant to this article, in respect to the confidential or private transactions, 

property or business of any person. An officer who divulges information or evidence in 

violation of this section is guilty of a misdemeanor and disqualified from acting in any 

official capacity in the department.”
17

Montegut‟s argument that Dr. Chavez‟s declaration is “insufficient because it does not set 

forth information sufficient for this Court independently to assess the likelihood of 

improper prescribing.” Dr. Chavez examined the Department of Justice‟s official 

CURES report and pointed out specific examples of prescribing irregularities. He 

identified large quantities of one controlled substance prescribed to one patient. He 

described patients receiving the same prescription on the same day and obtaining the 

same quantities at two different pharmacies. Multiple family members were receiving 

the same medication and refilling before the due date. Dr. Chavez‟s declaration presents 

competent and specific evidence of identifiable instances “of significant irregularities in 

[Dr. Montegut‟s] prescribing practices” that warranted examination of the patients‟ 

medical records. Omitted from Dr. Montegut‟s description of Dr. Chavez‟s declaration is 

Dr. Chavez‟s further statements of good cause: “In my professional opinion, there is 

good reason for necessity to review the medical records of the patients in question. In 

order to accurately determine and define these problems, certified medical records are 

necessary.” We further observe that here, unlike the situation in Wood, supra, 166 

Cal.App.3d at pages 1142-1143,

10 where both doctors submitted declarations to 

contradict the Board‟s expert, Dr. Montegut offers no explanation for why the

prescriptions identified by Dr. Chavez were medically justifiable.11

 

10 Dr. Montegut also relies on Bearman v. Superior Court (2004) 117 

Cal.App.4th 463, 471, which found an absence of good cause for disclosure of patient 

files based on speculative and conclusory declarations that included no facts suggesting 

the doctor was negligent in his patient‟s treatment, or that he prescribed marijuana for 

improper reasons. As our summary of Dr. Chavez‟s declaration indicates, his declaration 

is neither speculative nor conclusory—it is based on his evaluation of the CURES records 

pertaining to prescriptions written by Dr. Montegut. Dr. Montegut has made no attempt 

to show that the prescriptions identified by Dr. Chavez as irregular were properly issued.

11

 In Wood, supra, 166 Cal.App.3d at pages 1142-1143, one doctor presented 

declarations from six local physicians that the Board‟s evidence did not necessarily 

indicate improper prescribing practices in the community, and the second doctor had 

referred hundreds of patients to a surgeon over the years, and the surgeon declared none 

of the patients had been prescribed excessive amounts of medication.
18

Fourth, and finally, the trial court‟s decision-making process in this case cannot be 

characterized as “a rubber stamp” of the Board‟s actions that abdicated the judicial 

function. The court cautiously proceeded on the petition, assuring that both sides had fair 

opportunity to file written pleadings and objections, with oral argument on all the issues 

presented. Although Dr. Chavez‟s declaration was uncontroverted, the court‟s three-page 

ruling demonstrates the careful judicial analysis of competing interests contemplated by 

Wood. 

DISPOSITION

The order granting the petition is affirmed. Linda K. Whitney, as Executive 

Director of the Medical Board of California, is awarded costs on appeal.

KRIEGLER, J.

I concur:

TURNER, P. J.
Whitney v. Montegut

B241755

MOSK, J., Dissenting

I dissent because I believe that the Los Angeles County Superior Court did not 

have jurisdiction to order compliance with the investigative subpoenas duces tecum. 

Under Government Code section 11186,1jurisdiction to compel compliance with an 

investigative subpoena is vested in the superior court in: (1) “the county in which any 

hearing is held,” (2) the county in which “any investigation is conducted under the 

direction of the head of a department,” or (3) “the county in which testimony is 

designated to be given or documents or other items are designated to be produced.” The 

trial court erred in finding jurisdiction in Los Angeles County Superior Court under the 

first and second bases for jurisdiction in section 11186. There is no substantial evidence 

supporting jurisdiction.

A. The “county in which any hearing is held”

There was no jurisdiction in the Los Angeles County Superior Court under section 

11186‟s hearing basis for jurisdiction because there was no hearing then taking place in 

Los Angeles County. The first basis for jurisdiction has two parts that require 

interpretation: (1) “any hearing” and (2) “is held.” The term “any hearing” refers to the 

type of hearing, and not to the timing of a hearing. The term “is held” refers to the timing 

of “any hearing.” The term “is held” is in the present tense. Thus, “is held” means a 

present hearing, and does not mean “was held”—a past hearing, or “will be held”—a 

future hearing. If the Legislature had intended to grant jurisdiction in connection with 

“any hearing,” regardless of the hearing‟s timing, it would have so provided. 

Accordingly, the trial court‟s hearing-based justifications for finding jurisdiction in Los 

Angeles County Superior Court—(1) the hearing on the petition for defendant and 

appellant Dr. Walton Montegut‟s interim suspension “was held” in Los Angeles, and (2) 

 

1

 All statutory citations are to the Government Code unless otherwise noted.
2

if the Department files an accusation in the future, the hearing “will be held” in Los 

Angeles—were error.

B. The county in which “any investigation is conducted under the direction of

the head of a department”

There was no jurisdiction in the Los Angeles County Superior Court under section 

11186‟s investigation basis for jurisdiction because no investigation was conducted in 

Los Angeles County. The conduct at issue in this case concerns Dr. Montegut‟s 

prescribing practices, which took place in Orange County. Section 11186 establishes 

jurisdiction in the county in which “any investigation is conducted.” That an 

investigator—Deputy Attorney General Cindy Lopez—physically was in Los Angeles 

County when she investigated matters that occurred in Orange County does not mean that 

the investigation was conducted in Los Angeles County for purposes of establishing 

superior court jurisdiction under section 11186.2 Instead, Lopez‟s investigation of 

matters that occurred in Orange County from her Los Angeles County office was not an 

investigation that was conducted in Los Angeles County, but rather was an investigation 

that was conducted in Orange County. Likewise, that Dr. Rick Chavez signed a 

declaration in Los Angeles County that expressed his opinion about Dr. Montegut‟s 

Orange County prescribing practices does not constitute an investigation in Los Angeles 

 

2

 As Linda Whitney, Executive Director of the Medical Board of California 

(Board), does not argue that the statement in her petition that “the Board‟s investigation 

is being conducted in Los Angeles County” was entitled to evidentiary weight because 

the petition to compel compliance with subpoenas pursuant to section 11187 was deemed 

verified by operation of Code of Civil Procedure section 446, that issue is not before this 

court. I note, however, that because section 11187 does not require that petitions to 

compel compliance with subpoenas be verified (see Murrieta Valley Unified School Dist. 

v. County of Riverside (1991) 228 Cal.App.3d 1212, 1222 [“Verification is necessary 

only when called for by a particular statute”]), Code of Civil Procedure section 446 has 

no application here (see Murrieta Valley Unified School Dist. v. County of Riverside, 

supra, 228 Cal.App.3d at pp. 1222-1223 [pursuant to Code of Civil Procedure section 

446, a school district was “exempt from the verification requirement of Code of Civil 

Procedure section 1086 and was not required to verify its petition”] (italics added)).
3

County. Because an investigation was not conducted in Los Angeles County, the 

investigation basis for jurisdiction did not establish jurisdiction in the Los Angeles 

County Superior Court to order Dr. Montegut‟s compliance with the subpoenas.

For the reasons stated above, because the Los Angeles Superior Court did not have 

jurisdiction to compel compliance with the subpoenas, I would reverse the trial court‟s 

order.

MOSK, J.