Kennedy v. Super. Ct.

Filed 6/14/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

RON KENNEDY, M.D., A157089 Petitioner, City & County of San Francisco v. Super. Ct. No. CPF19516531 SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, ORDER DENYING PETITION Respondent; FOR WRIT OF SUPERSEDEAS DEAN GRAFILO, et al., Real Parties in Interest.

THE COURT*: Ron Kennedy, M.D., petitions for a writ of supersedeas to stay the superior court’s order compelling him to produce patient records to the Medical Board of California (the Board), pending his appeal of the same order. We will deny his petition. This matter stems from a series of investigative subpoenas served by the Board on Dr. Kennedy pursuant to Government Code section 11181. The Board sought the medical records of three minors for whom Dr. Kennedy provided vaccination exemptions. After Dr. Kennedy refused to produce the records, the Director of the Department of Consumer Affairs filed a petition in the superior court pursuant to Government Code section 11187 to compel Dr. Kennedy to comply with the subpoenas. The superior court granted the petition and ordered Dr. Kennedy to produce records shortly thereafter.

* Tucher, Acting P.J., Streeter, J., and Brown, J. 1

The superior court denied Dr. Kennedy’s request to stay the order while he pursued appellate review. Dr. Kennedy then filed the instant petition for a writ of supersedeas to stay the order pending appeal. We granted a temporary stay and requested further briefing from the parties. Our Supreme Court has held that an order compelling production of records in response to a subpoena is appealable as a final judgment, but the Supreme Court left undecided “whether an appealing party is entitled to a stay of enforcement of the subpoena pending appeal.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 11, 13, fn. 9 (Dana Point).) As we explain, we conclude Dr. Kennedy is not entitled to an automatic stay of the superior court’s order. We will also decline to grant a discretionary stay of the order. Dr. Kennedy argues the superior court’s order is stayed under Code of Civil Procedure section 917.2, which operates automatically to stay an order directing “the assignment or delivery of personal property, including documents,” if the appellant posts an undertaking “in a sum and upon conditions fixed by the trial court.” (Code Civ. Proc., § 917.2.) Neither section 917.2, nor any of the other automatic stay provisions contained in the same chapter of the Code of Civil Procedure (see Code Civ. Proc., §§ 916–917.9), is applicable in this matter. The automatic stay provisions of sections 916 et seq. apply to “civil ‘actions,’ ” but do not apply to a “ ‘special proceeding’ ” unless “ ‘the statutes establishing a ‘special proceeding’ expressly incorporate the appellate-stay provisions.’ ” (Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 154–155.) The underlying superior court action in this matter—a petition under Government Code section 11187 to enforce an administrative subpoena—is a special proceeding because it is “established by statute” and “ ‘commenced independently of a pending action by petition.’ ” (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 725; see also Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485 [order requiring compliance with investigative subpoena is a final judgment in special proceeding]; City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 285 [statutory action to compel production of records in response to public records act request is a special