Petitioner_thomas_quachs_opposition_to_respondent_medical_board_of_californias_demurrer_to_petition_for_writ_of_mandateOppositionCal. Super. - 4th Dist.January 22, 201810 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA MANATT, PHELPS & PHILLIPS, LLP KENNETH B. JULIAN (CA Bar No. 149840) LILLIAN CHU (CA Bar No. 279095) ALLEN L. HUANG (CA Bar No. 309123) 695 Town Center Drive, 14th Floor Costa Mesa, CA 92626-1924 E-Mail: KJulian @manatt.com E-Mail: LChu@manatt.com E-Mail: AHuang @manatt.com Telephone: (714) 371-2500 Facsimile: (714) 371-2550 Attorneys for Petitioner and Plaintiff THOMAS T. QUACH, M.D. ELECTRONICALLY FILED Superior Court of California, County of Orange 0313/2018 at 06:14:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE THOMAS T. QUACH, M.D. an individual, Petitioner and Plaintiff, VS. THE MEDICAL BOARD OF CALIFORNIA, an agency of the State of California; and DOES 1 through 10, inclusive, Respondents and Defendants. No. 30-2018-00968688-CU-WM-CIJC Assigned for All Purposes to the Honorable Geoffrey Glass, Department C31 PETITIONER THOMAS T. QUACH, M.D.’S OPPOSITION TO RESPONDENT MEDICAL BOARD OF CALIFORNIA’S DEMURRER TO PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF Date: March 26, 2018 Time: 1:30 p.m. Dept.: 31 Petition and Complaint Filed: January 22, 2018 OPPOSITION TO DEMURRER OO 0 9 O N Wn o b 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA L INTRODUCTION Petitioner and Plaintiff Thomas T. Quach, M.D. (“Dr. Quach”) has been called to an interview with Respondent and Defendant Medical Board of California (“Medical Board” or “Board”) regarding an investigation concerning himself. In response to Dr. Quach’s request, pursuant to California Business and Professions Code Section 800(c) (“Section 800(c)”), to obtain the complete file pertaining to the investigation, or a comprehensive summary thereof, the Medical Board has provided only a single, one-sentence statement regarding the investigation, namely that a complaint was filed alleging that he “engaged in an inappropriate relationship with patient [H.V.].” See Declaration of Kenneth B. Julian (“Julian Decl.”), { 2, Ex. A. This is not enough. There is urgency to Dr. Quach’s request in this case because the Board recently obtained an order for Dr. Quach to appear for an interview." In his order, Judge Robert Moss stated: “[Dr. Quach] may well have a point that [the Board] is required to comply with B&P 800(c) and has not done so.” See id., | 3, Ex. B. Judge Moss further stated: “If [Dr. Quach] wants a court order requiring petitioner to comply with his B&P 800(c) demand, respondent’s remedy is to file a writ petition seeking such compliance.” Id. This is that writ. The Board’s Demurrer conclusorily argues that its one-sentence statement was a comprehensive summary, and therefore the Petition fails to state a cause of action. However, under the principles outlined in McMahon v. City of Los Angeles, 172 Cal. App. 4th 1324 (2009) and other similar cases, the one-sentence statement is not a comprehensive summary regarding the investigation. Thus, the Court should overrule the Demurrer and issue a writ ordering the Board to comply with its mandatory duties under section 800(c) by providing a copy of Dr. Quach’s “complete file” with the Board, including “full disclosure” of any information that could be used to make a determination that could affect his rights, benefits, privileges, or qualifications, and with only those deletions necessary to protect the identity of the source. Cal. Bus. & Prof. Code § 800(c). In the alternative, Dr. Quach requests that the Court conduct an in ' See Orange County Superior Court Case No. 30-2017-00946730-CU-PT-CJC, Order dated January 26, 2018, Julian Decl., § 3, Ex. B. 1 OPPOSITION TO DEMURRER 10 11 12 13 14 15 16 17 18 19 20 21 23 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA camera review of Dr. Quach’s file to ascertain whether the Board’s one-sentence statement is a comprehensive summary of the substance of the material therein under Section 800(c), or appoint an independent referee to do so. If the court fails to grant the present writ, Dr. Quach will be put in the untenable position of either: (1) attending an interview without a complete copy of his file or the equivalent, as is his “right” under Section 800(c); or (2) being forced to assert his Fifth Amendment rights and, thereby, provide the Board with a basis to argue that an adverse inference applies, which position the Board has already asserted.” IL. FACTS On or about March 7, 2016, the Board received a complaint regarding an alleged relationship between Dr. Quach and patient H.V. See Julian Decl., | 5, Ex. D. On May 16, 2017, a Health Quality Investigation Unit investigator invited Dr. Quach to appear for an investigatory interview. See id., | 6, Ex. E. On May 23, 2017, Dr. Quach’s counsel served a request upon the Board for compliance with Section 800(c). See id., { 7, Ex. F. Section 800(c) provides, in pertinent part: The contents of any central file that are not public records under any other provision of law shall be confidential except that the licensee involved, or his or her counsel or representative, shall have the right to inspect and have copies made of his or her complete file except for the provision that may disclose the identity of an information source. For the purposes of this section, a board may protect an information source by providing a copy of the material with only those deletions necessary to protect the identity of the source or by providing a comprehensive summary of the substance of the material. Whichever method is used, the board shall ensure that full disclosure is made to the subject of any personal information that could reasonably in any way reflect or convey anything detrimental, disparaging, or threatening to a licensee’s reputation, rights, benefits, privileges, or qualifications, or be used by a board to make a determination that would affect a licensee’s rights, benefits, privileges, or qualifications. nn i ‘Ina September 1, 2017 letter, the Board’s counsel stated, “If your client appears at the Medical Board Offices in Tustin, California, either voluntarily or pursuant to a validly issued subpoena, for an investigational interview and invokes his Fifth Amendment privilege, the Medical Board, as the finder of fact, may make adverse inferences based on that invocation if and when the case proceeds to an administrative hearing.” See Julian Decl., q 4, Ex. C. 2 OPPOSITION TO DEMURRER © 00 9 NN nn R W N = N N N N N N N N e m e m e m e m em e m p m e m N O N A W N = O NN i A A W NY Y = o 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA Cal. Bus. & Prof. Code § 800(c) (emphases added). Such information includes “[a]ny public complaints” and “disciplinary information” about the licensee under Section 800(a)(3)-(4). See id. On June 2, 2017, the Board provided Dr. Quach with a one-sentence statement of the complaint under investigation: “Dr. Quach engaged in an inappropriate relationship with patient [H.V.].” See Julian Decl., { 2, Ex. A. On June 28, 2017, Dr. Quach’s counsel notified the Board's investigator that the June 2, 2017 statement did not comply with Section 800(c), and that Dr. Quach would not attend an interview until the Medical Board complied with its disclosure obligations. See id., | 8, Ex. G. On or about July 19, 2017, Dr. Quach was served with a subpoena to appear for an interview with the Board’s investigator. See id., { 9, Ex. H. On October 2, 2017, the Board, as a Real Party in Interest, filed a petition in the Court seeking an order compelling Dr. Quach to attend an investigatory interview, and Dr. Quach opposed the petition. See Case No. 30-2017-00946730-CU-PT-CJC. On January 8, 2018, Dr. Quach attempted to resolve the dispute with the Board by promising that he would appear for the requested investigatory interview within thirty days of the receipt of Dr. Quach’s “complete file” pertaining to the investigation. See Julian Decl., J 10, Ex. I. On January 11, 2018, the Board, through its counsel, acknowledged Dr. Quach’s proposal for resolution; however, she stated that “[o]ur position remains that the Medical Board has complied with your request pursuant to B&P 800(c).” See id., | 11, Ex. J. On January 26, 2018, the Court issued an order on the Board’s petition, stating, in part, “[Dr. Quach] may well have a point that [the Board] is required to comply with B&P 800(c) and has not done so” and that, “[i}f [Dr. Quach] wants a court order requiring petitioner to comply with his B&P 800(c) demand, respondent’s remedy is to file a writ petition seeking such compliance.” See id., | 3, Ex. B. In nn 1" nn 3 OPPOSITION TO DEMURRER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAw COSTA MESA III. LEGAL STANDARD A demurrer tests the sufficiency of a complaint by raising questions of law. See Buford v. State of Cal., 104 Cal. App. 3d 811, 818 (1980). On demurrer, the court must accept as true the material facts pled in the complaint, and construe the allegations of the complaint liberally. ABF Capital Corp. v. Berglass, 130 Cal. App. 4th 825, 833 (2005); Quelimane Co. v. Stewart Title 12 Guar. Co., 19 Cal. 4th 26, 41 (1998). If the complaint states a cause of action under any theory, it survives demurrer. Quelimane, 19 Cal. 4th at 38; Guardian North Bay, Inc. v. Super. Ct. (Myers), 94 Cal. App. 4th 963, 971-72 (2001) (holding that a demurrer can only succeed where some defect on “the face of the complaint” reveals a defense that would bar recovery). “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” Ramsden v. Western Union, 71 Cal. App. 3d 873, 879 (1977). As discussed below, the Board’s Demurrer should be overruled because Dr. Quach alleged facts sufficient to state his causes of action. IV. ARGUMENT A. Dr. Quach Sufficiently Pled A Cause Of Action For Violation Of Business And Professions Code Section 800(C) Because The Board Has Not Produced His Complete File, Nor Is The Board’s One-Sentence Statement A Comprehensive Summary Thereof Here, the Board alleges that it received a complaint that “Dr. Quach engaged in an inappropriate relationship with patient [H.V.].” See Julian Decl., 2, Ex. A. “Engaging in sexual relations with a patient constitutes unprofessional conduct and is grounds for disciplinary action against a physician. Cal. Bus. & Prof. Code § 726.” Kirchmeyer v. Phillips, 245 Cal. App. 4th 1394, 1401 (2016). Further, it is a criminal offense. Cal. Bus. & Prof. Code § 729; Kirchmeyer, 245 Cal. App. 4th at 1401. Thus, the file regarding the complaint contains “information that could reasonably in any way reflect or convey anything detrimental, disparaging, or threatening to a licensee’s reputation, rights, benefits, privileges, or qualifications, or be used by a board to make a determination that would affect a licensee’s rights, benefits, privileges, or qualifications”—information that Dr. Quach has a right to inspect. See Cal. Bus. & Prof. Code § 800(c). 4 OPPOSITION TO DEMURRER no © 00 N N N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 oL 24 2 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTOKNEYS AT LAW COSTA MESA The demurrer claims that a writ may only mandate a government agency to act as the law requires, but not in a particular manner where the agency has discretion. See Demurrer at 5-8. The Board’s argument suggests that Dr. Quach was simply dissatisfied with the brevity of the summary, and so wishes to have the sun, the moon, and the stars. See id. Not so. The Board's one-sentence statement was not a “comprehensive summary.” See Cal. Bus. & Prof. Code § 800(c). The Board’s arguments otherwise are conclusory. See Demurrer at 5. “[C]ourts must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous.” Klein v. United States of America, 50 Cal. 4th 68, 80 (2010). Accordingly, a “comprehensive summary” must be “comprehensive.” California case law in administrative proceedings, such as in this case, are illustrative. In McMahon v. City of Los Angeles, 172 Cal. App. 4th 1324 (2009), a Los Angeles Police Department officer filed a writ of mandate to compel the Department to permit him to inspect all “documents and materials compiled in the course of investigating the personnel complaints against him.” Id. at 1330. However, the Department previously provided him with “an eight- page, single-spaced document entitled ‘Fact Sheet.”” Id. at 1329. The court affirmed denial of the writ petition. Id. at 1338. It found that “the Fact Sheet provided to Officer McMahon gave a comprehensive summary of the complaints.” Id. at 1330 (italics added). The court further noted that “[a]s the officer had been provided with detailed descriptions of the complainants’ accusations, he had been given adequate opportunity to respond to the accusations consistent with POBRA [Public Safety Officers Procedural Bill of Rights Act].” Id. Likewise, in King v. Regents of Univ. of Cal., 138 Cal. App. 3d 812 (1982), a University of California professor who was denied tenure requested a copy of his personnel file. Id. at 815. Instead, he was given a “comprehensive summary” of the substance of the comments of those who evaluated him. Id. at 819. “The only material remaining for appellant to discover is the identity of the sources of the evaluations,” which the court denied. Id. (emphasis added). Thus, a “comprehensive summary” is more than bare-bones and must allow “discovery of the substance of the material.” Id. " 5 OPPOSITION TO DEMURRER CC ®® N N nn Bk W N N N N N N O N N D N mm Em m E m e m e m p a a N N Lh RA W N = O N Y R W ND = O 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA 9% 4c “[A]n eight-page, single-spaced document” “with detailed descriptions of the complainants’ accusations” hews to the statutory meaning of “comprehensive summary.” See McMahon, 172 Cal. App. 4th at 1329. The approximately ten-word statement that the Board provided to Dr. Quach does not. See id.; King, 138 Cal. App. 3d at 819; see also Sons v. Superior Court, 125 Cal. App. 4th 110, 113 (2004) (noting “[n]o purpose would be served by an attempt here to provide a comprehensive summary of the underlying facts and the issues on appeal,” and providing instead an “extremely brief summary” of seven paragraphs) (emphasis added). Finally, the Board argues that its one-sentence statement protects its identity source. See Demurrer at 7-8. However, even if the Board provided Dr. Quach’s complete file, it was required to provide “a copy of the material with only those deletions necessary to protect the identity of the source.” Cal. Bus. & Prof. Code § 800(c) (emphasis added). Thus, a comprehensive summary would disclose much more than the Board’s statement did here. The question before the court is an important one because the allegation of an inappropriate relationship with a patient may affect Dr. Quach’s license, and even expose him to criminal liability. It should also be noted that the Board has already released the patient’s name to Dr. Quach. If she is the complainant, no purpose is served by protecting her identity. See Julian Decl, | 2, Ex. A. If the information source is another individual, the Board must, at a minimum, provide a complete file with his or her name redacted, or a comprehensive summary. See Cal. Bus. & Prof. Code § 800(c). I" I" " I" n n I" I" " 6 OPPOSITION TO DEMURRER 1] Vv. CONCLUSION 2 For the foregoing reasons, Dr. Quach respectfully requests that the Court overrule the 3 | Board’s Demurrer to his Writ of Mandate and Complaint for Declaratory Relief, and issue a writ 4 | of mandate directing the Board to permit Dr. Quach to inspect and have copies made of his 5 | “complete file” with the Board, including “full disclosure” of any information that could be used 6 | to make a determination that could affect his rights, benefits, privileges, or qualifications, and 7 || with only those deletions necessary to protect the identity of the source. In the alternative, 8 || Dr. Quach requests that the Court conduct an in camera review of Dr. Quach’s file to ascertain 9 | whether the Board’s one-sentence statement is a comprehensive summary of the substance of the 10 || material therein under Section 800(c), or appoint an independent referee to conduct the review. 11 12 | Dated: March 13,2018 MANATT, PHELPS & PHILLIPS, LLP 13 14 By: s/Kenneth B. Julian 15 Kenneth B. Julian Attorneys for Petitioner and Plaintiff 16 THOMAS T. QUACH, M.D. 17 18 19 20 21 24 23 24 25 26 24 28 MANATT, PHELPS & 7 PHILLIPS, LLP ATTORNEYS AT Law OPPOSITION TO DEMURRER COSTA MESA © 0 NN A Wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 io 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA DECLARATION OF KENNETH B. JULIAN I, Kenneth B. Julian, declare: 1. I am an attorney duly admitted to practice in the State of California. I am partner with the law firm Manatt, Phelps, and Phillips, LLP, counsel of record for Dr. Thomas Tri Quach, M.D. (“Dr. Quach”) in this action. I make this declaration in support of Dr. Quach’s Opposition to the Medical Board of California’s (“Board”) Demurrer to the Petition for Writ of Mandate and Complaint for Declaratory Relief. The facts herein are true of my own personal knowledge, and if called as a witness, I could and would testify competently to such facts. 2. Attached as Exhibit A to this declaration is a true and correct copy of the Board's June 2, 2017 letter to Dr. Quach’s counsel containing the one-sentence statement regarding the investigation. 3. Attached as Exhibit B to this declaration is a true and correct copy of the Court’s January 26, 2018 order granting the Board's petition to compel Dr. Quach’s appearance and testimony at the interview. 4. Attached as Exhibit C to this declaration is a true and correct copy of the September 1, 2017 letter from the Board’s counsel stating that the Board may make adverse inferences based on Dr. Quach’s invocation of his Fifth Amendment rights. oe Attached as Exhibit D to this declaration is a true and correct copy of the Declaration of Investigator Amber Driscoll (“Driscoll”) in Support of Petition For Order To Show Cause and For Order Compelling Compliance with Investigational Subpoena, wherein Driscoll states that the Board received a complaint on or around March 7, 2016 that Dr. Quach had previously engaged in an inappropriate relationship with a patient. 6. Attached as Exhibit E to this declaration is a true and correct copy of the May 16, 2017 letter from Driscoll to Dr. Quach inviting him to appear for an investigatory interview. 7. Attached as Exhibit F to this declaration is a true and correct copy of Dr. Quach’s counsel’s May 23, 2017 letter to the Board requesting Dr. Quach’s file pursuant to Section 800(c). 8 OPPOSITION TO DEMURRER 10 11 12 13 14 15 16 17 18 19 20 21 24 23 24 25 26 27 28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT Law COSTA MESA 8. Attached as Exhibit G to this declaration is a true and correct copy of Dr. Quach’s counsel’s June 28, 2017 email to Driscoll notifying her that the one-sentence statement did not comply with Section 800(c) and that Dr. Quach would not attend an investigatory interview until the Board complied with Section 800(c). 9. Attached as Exhibit H to this declaration is a true and correct copy of the September 19, 2017 Investigational Subpoena To Appear and Testify. 10. Attached as Exhibit I to this declaration is a true and correct copy of my January 8, 2018 letter to the Board’s counsel (“Ms. Shields”) promising that Dr. Quach would appear for the requested investigatory interview within thirty days of the receipt of Dr. Quach’s “complete file” pertaining to the investigation. 11. Attached as Exhibit J to this declaration is a true and correct copy of Ms. Shields’ January 11, 2018 e-mail stating that the Board’s position remained that the Board complied with Section 800(c). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 13, 2018, at Costa Mesa, California. s/Kenneth B. Julian Kenneth B. Julian 319948376.2 9 OPPOSITION TO DEMURRER EXHIBIT A BUSINESS, CONSUMER SERVICES DUSING AGENCY - Depariment of Constivser Affairs EDMUND G. BROWN JR., Gavemor MEDICAL BOARD OF CALIFORNIA Central Complaint Unit PERSONAL AND CONFIDENTIAL June 2, 2017 GARY WITTENBERG BARANOV & WITTENBERG, LLP 1901 AVENUE OF THE STARS, #1750 LOS ANGELES, CA 90067-6056 Re: 800(c) Business and Professions Code ~ Request for Complaint Information Thomas Quach, M.D. Control #: 8002016021229 Dear Mr, Wittenberg: Under the provisions of Section 800(c) of the Business and Professions Code, the following Is a comprehensive summary of the complaint filed against Dr. Quach. The complaint alleges the following: Dr. Quach engaged in an Inappropriate relationship with patient |R Please let me know if I can be of further assistance. incerely, J ILA Staff Services Analyst 2005 Evergreen Street, Suite 1200, Sacramento, CA 95815-3831 (916) 263-2528 PAX: (916) 263-2435 www.mbe.ca.gov EXHIBIT B SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER MINUTE ORDER DATE: 01/26/2018 TIME: 09:00:00 AM DEPT: C14 JUDICIAL OFFICER PRESIDING: Supervising Judge Robert J. Moss CLERK: Stacie Turner REPORTER/ERM: None BAILIFF/COURT ATTENDANT: Angelina Bernal CASE NO: 30-2017-00946730-CU-PT-CJC CASE INIT.DATE: 09/27/2017 oes TITLE: Dean R. Grafilo, Director, Department of Consumer Affairs, State of California vs. uach CASE CATEGORY: Civil - Unlimited CASE TYPE: Petitions - Other EVENT ID/DOCUMENT ID: 72677389 EVENT TYPE: Motion - Other MOVING PARTY: Dean R. Grafilo, Director, Department of Consumer Affairs, State of California CAUSAL DOCUMENT/DATE FILED: Petition - New Case Initiation, 09/27/2017 EVENT ID/DOCUMENT ID: 72734902 EVENT TYPE: Ex Parte MOVING PARTY: Thomas Tri Quach CAUSAL DOCUMENT/DATE FILED: Ex Parte Application - Other, 01/16/2018 APPEARANCES LeAnna E. Shields, counsel, present for Petitioner(s). Kenneth B. Julian, from Manatt, Phelps & Phillips, LLP, present for Respondent(s). Gary Wittenberg, from BARANOV & WITTENBERG LLP, present for Respondent(s). Tentative Ruling posted on the Internet . The Court hears oral argument and confirms the tentative ruling as follows: Petition for order compelling compliance with investigational subpoena. Petition granted. Respondent may well have a point that petitioner is required to comply with B&P 800(c) and has not done so. The problem here is that this action is not a writ petition by respondent to compel petitioner to comply with B&P 800(c), but is instead a petition to obtain a court order to compel respondent to comply with an investigational subpoena, pursuant to completely different authority, i.e, Gov't Code 11187 and 711188. Respondent provides no authority that compliance with B&P 800(c) is a condition precedent to petitioner's ability to seek a court order pursuant to the applicable Gov't Code sections, or to the court's ability to issue such order. If respondent wants a court order requiring petitioner to comply with his B&P 800(c) demand, respondent's remedy is to file a writ petition seeking such compliance. Respondent is ordered to appear, within forty-five (45) days, and provide testimony in connection with the investigation conducted by the Health Quality Investigation Unit on behalf of the Medical Board of California. Compliance shall take place at the Tustin District Office of the Medical Board of California, DATE: 01/26/2018 MINUTE ORDER Page 1 DEPT: C14 Calendar No. CASE TITLE: Dean R. Grafilo, Director, Department of CASE NO: 30-2017-00946730-CU-PT-CJC Consumer Affairs, State of California vs. Quach located at 15641 Redhill Avenue, Suite 215, Tustin, California, at a reasonable date and time to be determined by petitioner, Nothing in this order precludes respondent from asserting his 5th Amendment privilege in response to any question. Respondent's Ex Parte Application for an Order Sealing Respondent's Opposition to Petition for OSC is granted, pursuant to stipulation. The Court finds that there is an overriding interest that overcomes the right of public access to the record to allow the document to be sealed. Therefore, the Court orders that the Opposition to Petition for OSC filed on 01/11/2018 at ROA 27 and identified by Transaction No. 2629318, shall be sealed in its entirety. Said document shall remain sealed and shall be viewed only by a Judicial Officer, except upon further order of the Court, Said document, having previously been imaged, shall not be available for public view via the imaging system. The formal order was signed this date. Petitioner to give notice. DATE: 01/26/2018 MINUTE ORDER Page 2 DEPT. C14 Calendar No. EXHIBIT C XAVIER BECERRA State of California Attorney General DEPARTMENT OF JUSTICE 600 WEST BROADWAY, SUITE 1800 SAN DIEGO, CA 92101 P.O. BOX 85266 SAN DIEGO, CA 92186-5266 Public: (619) 738-9000 Telephone: (619) 738-9401 Facsimile: (619) 645-200] E-Mail: LeAnna.Shields@doj.ca.gov September 1, 2017 Gary Wittenberg, Esq. Baranov & Wittenberg, LLP 1901 Avenue of the Stars, Suite 1750 Los Angeles, CA 90067-6056 Re: In the Matter of the Investigation Against: THOMAS TRI QUACH, M.D. Medical Board of California Case No. 800-2016-021229 Dear Mr. Wittenberg: [ am in receipt of your letter, dated August 24, 2017, (o Investigator Amber Driscoll with the Health Quality Investigation Unit, wherein you indicate you and your client will not be attending the subject interview scheduled for September 7, 2017, despite service of an Investigational Subpoena to Appear and Testify. Before we proceed with a subpoena enforcement action, please consider the following. Statutory Authority for (he Medical Board’s Jurisdiction to Investigate Violations of the Medical Practice Act The Medical Board of California is an entity within the Department of Consumer Affairs. (Bus. & Prof. Code § 2000, el seq.) It has the responsibility for enforcing both the disciplinary and criminal provisions of the Medical Practice Act. (Bus. & Prof, Code § 2004.) tis authorized to investigate and commence disciplinary actions against licensed physicians and surgeons guilty of violating the Medical Practice Act and possesses all the powers granted [or that purpose, including investigating information that a physician may be guilty of unprofessional conduct. (Bus. & Prof. Code § 2220.5.) The Board may delegate its authority lo conduct investigations to the executive director of the Board and investigators employed by the exccutive director. (Bus. & Prof. Code §§ 2224 dnd Gov. Code § 11182.) As the California Supreme Court has stated: “A primary power exercised by the Board in carrying out its enforcement responsibilities is the power lo investigate. The statute broadly vests the Board with the power of ‘investigating complaints from the public, from other licensees, from other health care facilities, or from a division of the Board that a physician and surgeon may be guilty of unprofessional conduct.” (Arnett v. Dal Cielo (1996) 14 Cal.dlh 4, at 8) Gary Wittenberg, Esq. September 1, 2017 Page 2 “[TThe Board’s investigators are authorized to exercise delegated powers (Gov. Code, § 11182) to ‘[iJnspect books and records’ and to ‘{i]ssue subpoenas for the atiendance of witnesses and the production of papers, books, accoun(s, documents and testimony in any inquiry [or] investigation . . . in any part of the state” (citations).” (Arnett v. Dal Cielo supra, 14 Cal 4th al p. 8.) Invocation of your Client’s Iifth Amendment Privilege To the Medical Board’s knowledge there is no pending criminal proceeding against your client. Even if there were a criminal proceeding pending against your client, it is permissible (o conduct a civil proceeding at the same time as a related criminal proceeding. This is true even if that civil proceeding necessitates invocation of the Fifth Amendment privilege. It is also permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding. (Keating v. Office of Thrift Supervision (1995) 45 F.3d 322, 326 citing Baxter v. Palmigiano (1976) 425 U.S. 308, 318.) If your client appears at the Medical Board Offices in Tustin, California, either voluntarily or pursuant (0 a validly issued subpoena, for an investigational interview and invokes his Fifth Amendment privilege, the Medical Board, as the finder of fact, may make adverse inferences based on thal invocation if and when the case proceeds to an administrative hearing. Failure to Attend and Participate in an Interview is Unprofessional Conduct Business and Professions Code section 2234 states, in pertinent part: “The board shall take action against any licensee who is charged with "unprofessional conduct. In addition to other provisions of this article, unprofessional conduct includes, but is not limited to, the following; ... (h) The repeated failure by a certificate holder, in the absence of good cause, to attend and participate in an interview by the board...”. (Bus. & Prof. Code § 2234.) Should your client continue to refuse to attend and participate in the subject interview scheduled for September 7, 2017, he may be found in violation of this provision of the Medical Practice Act. Your assertion that the Board has not provided an adequate response to your client’s request for the contents of the Board’s central file, pursuant to Business and Professions Code section 800, subdivision (c), is not good cause to ignore his subpoena. The Board's response pursuant to Business and Professions Code section 800, subdivision (c), is not a prerequisite to your client’s obligation to comply with a properly served subpoena to appear and testify. The subject interview is still scheduled for September 7, 2017, at 10:00 A.M., at the Health Quality Investigation Unit located at 15641 Redhill Avenue, Suite 215, Tustin, California 92780. If your client refuses to attend and participate, the Medical Board will take all appropriate action to enforce the subpoena to facilitate a subject interview and complete its Gary Wittenberg, Esq. September 1, 2017 Page 3 investigation. If you have any questions or would like to discuss this matter further, please do not hesitate to contact me. Sincerely, kc SY J LEANNA E. SHIELIRS “Drop y Attorney General— For XAVIER BECERRA Attorney General - ce: Amber Driscoll, HQIU Investigator EXHIBIT D Ow 0 N a y th B W ND N O N N D RN F R p t p p p d p a p a 5 3 B B R R B I V B R 8 & 0 x» 89 a b r © p o . ~- o XAVIER BECERRA Attorney General of California MATTHEW M., DAVIS ; Supervising Deputy Attorney. REE - LEANNA E. SHIELDS Deputy Attorney General State Bar No. 239872 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 738-9401 Facsimile: (619) 645-2061 Attorneys for Petitioner SUPERIOR COURT OF THE STATE OF CALIFORNIA ORANGE COUNTY SUPERIOR COURT DEAN R. GRAFILO, - DIRECTOR, DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, Petitioner, CV THOMAS TRI QUACH, M.D. | Respondent, KIMBERLY KIRCHMEYER, EXECUTIVE DIRECTOR OF THE MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. 1, Aniber Driscoll, declare as follows: 1. Iam currently employed as an investigator with the Division of Investigation, Health Quality Investigation Unit, Department of Consumer Affairs, State of California. I have been a Case No. 30-2017-00946730-CU-PT-CIC DECLARATION OF INVESTIGATOR AMBER DRISCOLL IN SUPPORT OF PETITION FOR ORDER TO SHOW CAUSE AND FOR ORDER COMPELLING COMPLIANCE WITH INVESTIGATIONAL SUBPOENA Date: October 5, 2017 Time: 8:30 A.M. Dept: C14 Judge: Hon. Robeit J. Moss peace officer since April 21, 1989. Ihave been employed as an investigator for the Medical Board of California since October 15, 2009 and, as of July 1, 2014, the Health Quality DECLARATION OF INVESTIGATOR AMBER DRISCOLL NY g " 1 be C h o m B E a p e e s Y R R X R R E B B R Y B L E E L & L R E E R E E S OO WW I OO Ln A W N Investigation Unit (HQIU) currently assigned to the Cerritos Field Office. Iam the investigator assigned to the investigation of Thomas Tri Quach, M.D. If called.upon, I could and would testify to the following facts which are of my own personal knowledge, information, and/or belief. 2. Tama sworn peace officer employed to investigate issues that involve individuals licensed by the Medical Board of California (Medical Board). My job responsibilities include investigating the basis of consumer cialis and other mandatory reports. that are received by the Central Complaint Unit. Among other things, I gather evidence, interview witnesses, participate in Medical Board interviews of physicians, organize the scheduling of fitness-for-duty medical examinations, review and assess the resulting evidence, and prepare investigative reports. 3. On or about March 1% 2016, the Medical Board of California, Central Complaint Unit (CCU), received a complaint regarding Thomas Tri Quach, M.D. (Dr. Quach). The complaint alleges Dr. Quach entered into a sexual relationship with a patient, H.V., from on or about March | 2012 through on or about J anuary 2016. 4, *‘On or about April 11, 2016, the CCU forwarded the complaint to the Tustin District "|. Office for further investigation, 5. Onor about April 13, 2016, I was assigned to investigate the complaint, 6. On or about May 10, 2016, I interviewed H.V. at the Tustin District Office. 7. On or about May 17, 2016, I submitted a request to Dr. Quach’s office, requesting certified medical records of patient H.V. 8. Onor about June 2, 2016, I received the certified medical records for patient H.V. fro Dr. Quach’s office. 9.- On or about May 16, 2017, I sent a letter to Dr. Gua at his address of record requesting he contact me to schedule an interview. | 10. Onorabout May 22,2017, I received an email from Gary Wittenberg, Esq., with an ailadbed letter of representation signed by Dr. Quach. . i in | I : > DECLARATION OF INVESTIGATOR AMBER DRISCOLL © O m d o BA W N s J pt ed R E T A BR Ri RE 3 BE E Ba 2 X B R R B R I N R R B L E S 5 5 8 9 68 a . 6 8B 8 5 11. On or about J une 28, 2017, I received an email from Gary Wittenberg, Esq., stating the Medical Board's letter issued pursuant to Business and Professions Code section 800, subdivision (c), was insufficient and they are declining the invitation for the interview. _ 12. On or about July 19, 2017, I prepared an Investigational Subpoena to Appeat and Testify for Dr. Quach. The Investigational Subpoena to Appear and Testify required Dr. Quach to Appear and Testify at 15641 Redhill Avenue, Suite 215, in Tustin, Celiforals 92780, on September 7,2017, at 10:00 A.M. (A true and correct copy of the Investigational Subpoena to Appear and Testify and Declaration of Servic is attached hereto as Attachment A. ) 13. On or about July 19, 2017, I contacted Dr. Quach outside his residerice located at 20081 Silent Bay Circle, Huntington Beach, California, Iidentified myself as an n investigator for HQIU, handed him a copy of the Investigational Subpoena to Appear and Testify and informed Dr. Quach that he had been served. (A true and correct copy of the Investigational Subpoena to Appear and Testify and Declaration of Service is attached hereto as Attachment A.) 14.. On or byt August 25, 2017, I received an email from Mr. Wittenberg with an attached letter, dated August 24, 2017, stating he and Dr. Gitah would not be attending the interview scheduled for September 7, 2017. (A true and correct copy of the letter is attached - hereto as Attachment B.) 15. On or about September 1,2017, I received an — from Deputy Altgmey General . LeAnna E. Shields with an attached letter, dated September 1; 2017, addressed to Mr. Wiieriherg: regarding Dr. Quach’s obligation to comply with the investigational subpoena served upon him. (A true and correct copy of the letter is attached hereto as Attachment C.) | 16. On or about September 6, 2017, I received an email from Mr. Wittenberg with an ||. attached letter; dated September 6, 2017, again stating he and Dr. Quach would not be attending the interview scheduled for September 7, 2017. (A true and correct copy of the letter is attached hereto as Attachment D.) mm wn i" 1 be 3 DECLARATION OF INVESTIGATOR AMBER DRISCOLL . ou, Oo c o ~ 3 AN Ww E o w No — NN ND O N DN = em = a b a em p a p e p a p m 17. On or about September 7, 2017, Dr. Quach did not attend the scheduled interview at 15641 Redhill Avenue, Suite 215, in Tustin, California 92780. I declare under penalty of perjury under the laws of the State of California that the above statements ate true and correct to the best of my knowledge, or information and belief, This declaration was executed in C err itos , California on eptember 27 ,2017. befoucr SOC BER DRISCOLL 4 DECLARATION OF INVESTIGATOR AMBER DRISCOLL ATTACHMENT A 10 1d » 12 13 14 15 16 ¥ uy 18 1.9 20 21 22 23 24 25 26 28 BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA |] the Matter of the Investigation of: : VESTIGATIONAL Thomas Quach, M.D. ) Res CE 1) SUBPOENA TO APPEAR Case Number 800-2016-021229 ) oo AND TESTIFY To: Thomas Quach, MD. 9186 Bolsa Avenue ) : Westminster, CA 92683 = ’ ) ) , Pursuant to the federal Health Insurance Portability and ‘Accountability Act (HIPAA) and the powers conf srred upon the Dix ector of the Depar tment of Consumer Affairs (DCA) of the State of California as head of the DCA by Sections 11180 through 11191 of the Government Code of California, which powers have been delegated by the said Director under Section 7 of the | Government Code to Supervising Investigator Ji Robert Pulido of the Digi of Investigation, | Health Quality Investigation Unit. YOU ARE HEREBY COMMANDED to appear before Investigator Amber Diflacoll, and/or any other duly authorized representative(s) of the Division of Investi ai Health Quality Investigation Unit staff, at 15641 Redhill Avenue, Suite 215, Tustin, California 92780, telephone | number (562) 860-4598 on the 7™ day of September , 2017 ; at the hour of 10:00 a.m then and there to testify and answer questions propounded to you in connection with the above tifled investigation. This interview will be recorded. If you bave any questions, contact the above named, investigator, ~ + Given imder my hand this | i day of J A! \r Y i aN Z, Robert Pulido \ Supervising Investigator\[T Department of Consumer Affairs Division of Investigation Health Quality Investigation Unit ENF-86 (Kev. 08/14) DIVISION OF INVESTIGATION HEALTH QUALITY INVESTIGATION DECLARATION OF SERVICE Case Name: Thomas Quach, M.D. ) Case No: 800-2016-021229 1 declare that I am employed by the Division of Investigation in the County of _Los Angeles California. 1am over the age of eighteen years, and my business address is: 12750 Center Court Drive South. Suite 750, Cerritos . California, 90703 On 7/19/17 at 1620 hours : ) , I served the attached (indicate all that apply): Letter to Patient with Notice to Medical Consumers: (ENF-20A) Letter to Patient with Notice to Medical Consumers (ENF-20B) Letter to Patient with Notice to Medical Consumers (ENF-20C) Authorization for Release of Medical Information (ENF-27A) ‘Authorization for Release of Alcohol and Drug Abuse Information (ENF-27B) Authorization for Release of Psychiatric Information (ENF27C) 0 cov oe oe Anitimiziio for Release of HIV/AIDS Medical Information (ENF-27D) [] Letter advising patient of service of SDT for medical records along with the copy of Investi gational Subpoena Duces Tecum (ENF-34) ~ Letter advising patient that MBC has received their medical records : H Medical Records Request Compliance Advisory (ENF-31) | Declaration Ee of Records (ENF-22) Investigational Subpoena Duces Tecum . Investigational Subpoena to Appear and Testify Administrative Hearing Subpoena Other it: | By persona] delivery en service of a true copy thereof to at the fellows address: 20081 Silent Bay Circle, Huntington Beach, CA [] By placing a true copy thereof, aloe with a cover — a copy of which i also attached, Enclosed in a sealed envelope with postage fully prepaid, by Certified Mail, in the United States mail at , California, to At the last known address. Certified Mail No.: fie 8 [] Courtesy copy to: I declare under penalty of perjury the foregoing is true and correct, and this declaration was executed at Cerritos - : , California, on 7/21/17 = ; Amber Driscoll : a= (Printed Name) Gtgnateg : ENF-23 (REV. 09/16) ATTACHMENT B BARANOV & WITTENBERG, te © ATTORNEYS AT LAW 1901 AVENUE OF THE STARS, SUITE 1250+ LOS ANGELES, CALIFORNIA 90067-6056 EL: 3102293500 FAX: 310239350) August 24, 2017 Amber Driscoll, Investigator Division of Investigation — Health Quality 12750 Center Court Dr. South, Suite 750 Cerritos, CA 90703 ; Re: Tivesfigiional Subpoena to Appear and T estify Date: September 7, 2017. My Client: Thomas Quach, M.D, Control No,: 800-2016-021229 Dear Investigator Driscoll: In June you requested that Dr. Quach voluntarily attend an investigational interview. At - that time I advised you that I would first submit a Business & Professions Code section 800c¢ requést to the Medical Board for a copy of the consumer complaint or comprehensive SURLY of the allegations before committing to the interview. On June 28, 2017, I ernailed to advise you that I Bad received the Board’s 800c response, but that it comprised of just one vague sentence and that in my view this did not comply with the letter or spirit of the Code. Therefore, we respectfully declined your interview invitation staling that we would reconsider if the Board provided an 800c response in compliance with the Code, On July 19, 2017, I received a call from deputy attorney general Leanna Shields inquiring whether we would attend an inteiview and I reiterated what I had shared with you conceming the Boards deficient 800c response. Ms. Shields shared with me that the Board would not be providing any more information in response to our 800c¢ request stating that the ‘inappropriate - relationship’ referenced in the 800c¢ involved an alleged sexual relationship with a patient. I explained to Ms, Shields that this raised additional issues conceming Dr. Quach’s Fite Amendment rights, Later that same day, a Board investigator followed Dr, Quach to his home and served him with an Investigational Subpoena to Appear and Testify on September 7, 2017. In the future, you may ‘wish to contact me directly and we may likely avoid the time and expense involved 1 mn surveillance and personal service, Amber Driscoll Medical Board of California August 24, 2017 Page 2 In view of the Board’s failure to comply with the clear provisions of Business & Professions Code section 800¢; Dr. Quach and T'will not be attending the September 7 interview. 1 wanted to notify you of this in advance so that you and others need not disrupt your schedules unnecessarily. Even if we were to appear at the interview, we would be compelled to assert the doctor’s Fifth Amendment rights given Ms. Shields’ comment that the complaint involves sexual misconduct. Therefore, attending the interview would be a waste of time for all parties. © Thank you for your continued courtesy and professionalism. Feel frée to let me know if you have any questions or wish to discuss the matter further. Very truly yours, GARY WATTENBERG Ce: Leanna Shields, DAG Thomas Quach, M.D. ATTACHMENT C . XA VIER BECERRA : = State eof Gafotaie j ET A Le . : a TS 600 WEST BROADWAY, SUNE. 1800° SAN DIEGO, CA 92101 i P.0: BOX 85266 Fle } = SANDIEGO, CA 92186-5266 ‘Public: (619)738:9000 Telephone: fe Facsimile: (619) 6452061 ‘E-Mail: LeAnna. Shie ds@doj Ca,g0v September, 2017 Gary Wittenberg, Esq. Baranov & Wittenberg, LLP 1901. Avenue of the Stars, Suite 1750 Los: Angeles, CA 90067-6056 Re: Inthe Matter of the Investigation Against: THOMAS TRI QUACH, 5 2 Medical Board of: California Case No. 8002016021229 Toe ES Dear Mr. Wittenberg: Tam in receipt of your leiter, dated August-24,:2017, to. Investigator ‘Amber Driscoll with ‘the Health. Quality Investigation Unit, wherein you indicate you and your client will not be . = ~ attending the:subject interview scheduled for September 7, 2017, despite service of an Investigational Subpoena | to. Appear and Testify. Before’ we proceed with a subpoena enforcement action, please consider the following: Statutory Authori y for the: edical Board! Jurisdicti on to Investigate Violatio Medical Practice Act CY Z Err The Medical: Board of California is aii:entity within the Department of Consumer Affairs. Ew (Bus: & Prof. Code § 2000, et seq.) It has the responsibility for enforcing both the disciplinary y and criminal; provisions of the Medical Practice Act. (Bus. & Prof. Code § 2004) Itis- © authorized to. investigate and commence disciplinary actions against licensed: physicians and: © “surgeons guilty of violating; the: Medical Practice. Act and possesses’ all the powers granted for ‘that purpose; including investigating: information that:a physician may be guilty of 5 ‘unprofessional conduct, (Bus.& Prof. Code:§: 2220.5.) ‘The Board:may delegate-its: authority to conduct investigations to the:executive director of the Board and investigators. employed by the, iexecufive. director. (Bis. .& Prof. Code §§ 2224.and Gov. Code: §11182) As th¢ California Supreme Court has stated: “A primary power exercised by. the. Boud i n carrying out:its.enforcement responsibilities i is the power to investigate. “The statute broadly. vests the Board with’ the power of ‘investigating complaints from the public, from other: : pv licensees, from.other health care facilities; or from a division of the Board: that a physician and Tfgeon may be guilty of unprofessional conduct.” Grater vi:Dal Cielo (1226) 14 Cal.4th % a © Gary Wittenberg, Esq. September1,2017 Page 2 ¥[T]he Board’s investigators are authorized to exercise delegated powers (Gov: Code, § 11182) fo ‘[i]nspect books and records” and to “[i]ssue subpoenas for the attendance of witnesses and. the production of papers, books, accounts, documents and testimony in any inquiry [or] investigation . . . in any part of the state” (citations).” (Aine v. Dal Cielo supra, 14 Cal.4th Ro : 8.) Invocation of your Client's Fifth Amendment Privilege "To the Medical Board's knowledge there is no pending criminal proceeding against your: : client. Even if there were a criminal proceeding pending against your client, it is permissible to -. conduct a civil proceeding at the same time as a related criminal proceeding. This is true even if that civil proceeding necessitates invocation of the Fifth Amendment privilege. [tis also permissible for the trier of fact to draw advetse inferences from the invocation of the Fifth ‘Amendment in a civil proceeding, (Keating v. Office of Thrift Supervision (1995) 45 F.3d-322, 326 citing Baxter v. Palmigiano (1976) 425'U.S. 308, 318.) If your client appears at the: Medical Board Offices in Tustin, California, either voluntarily-or pursuant to a validly issued subpoena, for an investigational interview and invokes his Fifth Amendment privilege, the Medical Board;-as the finder of fact, may make adverse © inferences based on that invocation if and when the case proceeds to an administrative hearing. Failure to Attend and Participate in an Interview is Unprofessional Conduct ‘Business and Professions Code section 2234-states, in pertinent part: “The board shall take action against any licensee who is charged with unprofessional conduct. In addition to other provisions of thiis article, unprofessional conduct includes, but is not limited to, the following: .. (h) The repealed failure by a certificate. holder, in the absence of g good cause, to attend and participate in an interview: by the board...”. (Bus, & Prof, Codé: $2234.) ‘Should your client:continué to refuse to attend and participate in the subject. interview scheduled for September 7,:2017, he may be found in violation of this provision of the Medical - Practice Act. Your assertion that the Board has not provided an adequate response fo your - : "= client’s request for the contents of the Board’s central file, pursuant to Business and Professions Code section 800, subdivision (c), is not good cause to.ignore his subpoena. The Board's : response: pursuant to Business and Professions Code section 800, subdivision (c), is not a prerequisite. to your client's obligation to comply with a properly served subpoena to appear and testify. The subject interview is still: scheduled for September 7, 2017, at 10: 00-A.M., at the Health Quality Investigation Unit located at 15641 Redhill Avenue, Suite 215, Tustin, California 92780. If your client refuses to attend and participate, the Medical Board will take all’ appropriate action to enforce the subpoena lo facilitate a subject interview and complete its Gary Wittenberg, Esq. September, 2017 Page, 3 not haste: © contact me. [yaa E. SHIELDS eputy Attorney General” For XAVIER BECERRA Attoriey General cc. Amber Driscoll; HQIU Investigator ATTACHMENT D BARANOV & WITTENBERG, 11r m— 1901 AVENUE OF THE STARS, SUITE 1750 LOS ANGELES, CALIFORNIA 90067-6056 TEL: 310.229.3500 FAX: 310.229.3501 September 6, 2017. Leanna E. Shields, Deputy Attorney General California Department of Justice 600 West Broadway, Suite 1800 San Diego, CA 92101 Re: My Client: ~ Thomas Quach, M.D. Case No.: 800-2016-021229 Dear Ms. Shields: Thank you for your letter dated September 1, 2017. 1 understand and appreciate that the Medical Practice Act empowers the Board ito issues subpoenas and investigate physicians and Dr. Quach and I do wish to cooperate with the Medical Board. However, governmental power is subject to the limitations imposed by law:including Due Process and the provisions of section 800 (c) of the Business & Professions Code. Section 800 (c) unambiguously states that upon request, the Medical Board is required to provide a licensee or his representative with a copy of the consumer complaint with identities of witnesses redacted or a comprehensive summary of the consumer complaint. Dr. Quach wishes to cooperate with the Medical Board but it has failed and refused to comply with the law. As I discussed with you frankly during our call, the Medical Board routinely ignores the requirements of section 800 (c) and they have so done here once again. Should you proceed with an enforcement action, the superior court will be apprised of these facts. Of course, we will comply with any lawful order issued by the superior court. I would hope that the Medical Board would strive to follow the law as stated in section 800 (c) rather than avoid its statutory obligation and then burden the court with a petition to enforce its subpoena. EXHIBIT E apy tebe pat 0am $3 305 Wa wrats OF GALITONNIA k DIVISION OF INVEST IGATION (— | -— oe) Health Quality Investigation Unil DERARYMENT OF GONSUIAER AFFAIRS Corrilos Field Office 12750 Centar Court Di. Soul, Sle. 750 Cerritos, CA 90703 Phong: (562) 402-4668 - Fax: (562) 865.5247 CERTIFIED WITH RETURN RECEIPT May 16, 2017 Thomas Quach, M.D. 9186 Bolsa Avenue Westminster, CA 92683 Personal & Confidential Dear Dr. Quach; <1 am an investigator with the Division of Tie beg ? The Health Quality EXHIBIT F BARANOV & WITTENBERG, rir ATTORNEYS AT LAW. 1901 AVENUE OF THE STARS, SUITE 1750 LOS ANGELES, CALIFORNIA 90067-6056 TEL: 310.229.3500 FAX: 310.229 3501 May 23, 2017 Central Complaint Unit Medical Board of California 2005 Evergreen St., Suite 1200 Sacramento, CA 95815-3831 REQEUST FOR INFORMATION PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 800(c) Re: My Client: Thomas Quach, M.D. Pattent: Case No.: unknown To the Central Complaint Unit of the Medical Board of California: My office represents Dr. Thomas Quach concerning the above matter being investigated by the Medical Board of California. Dr. Quach has been contacted by Medical Board Investigator Amber Driscoll concerning the above-named patient. Request is hereby made for full compliance with Business & Professions Code §800(c). That section mandates the Board to provide a licensee or his attorney with specified information and documents upon request as follows: (c) The contents of any central file that are not public records under any other provision of Inw shall be confidential except that the licensee involved, or his or her counsel or representative, shall have the right to inspect and have copies made of his or her complete file except for the provision that may disclose the identity of an information source. For the purposes of this section, a board may protect an information source by providing a copy of the material with only those deletions necessary to protect the identity of the source or by providing a comprehensive summary of the substance of the material. Whichever method is used, the board shall ensure that full disclosure is made to the subject of any personal information that Medical Board of Causornia May 23, 2017 Page 2 could reasonably in any way reflect or convey anything detrimental, disparaging, or threatening to a licensee's reputation, rights, benefits, privileges, or qualifications, or be used by a board to make « determination that would affect a licensee's rights, benefits, privileges, or qualifications. Accordingly, please provide my office with a complete copy of the contents of the central file pertaining to Dr. Quach with the identitics of information sources redacted or alternatively, a comprehensive summary of the substance of the entire file—as required by law. Please note that the statute requires the Board to ensure full disclosure of any information that could reasonably in any way reflect or convey anything detrimental, disparaging or threatening to the licensee’s reputation or rights. Thank you for your anticipated cooperation and compliance with the law, y yours, GARY WITTE Ce: Thomas Quach, M.D. Investigator Amber Driscoll EXHIBIT G Gary Wittenberg iss Gary Wittenberg —— Wednesday, June 28, 2017 4:45 PM Subject: ‘Driscoll, Amber@MBC' g RE: My Client: Thomas Quach, M.D. Dear Investigator Driscoll, I have received the Business & Professions Code section 800c response from the Medical Board Central Complaint Unit. Unfortunately, it is not in compliance with the requirements mandated by that section. The response from CCU does not provide anything near a “comprehensive summary” as required. In fact, it’s just one short vague sentence. Accordingly, we will therefore have to respectfully decline your invitation for an interview. Should the Board comply with the provisions of 800 (c), | would be happy to revisit this issue. Please do not hesitate to contact me if you have any questions or if you wish to discuss this matter. Thank you. Gary GARY WITTENBERG, ESQ Baranov & Wittenberg, LLP 1901. Avenue of the Stars, Suite 1750 Los Angeles, California 50067 310. 229. 3500 v 310.229.3501 f From: Driscoll, Amber@MBC [mailto:Amber.Driscoll@mbc.ca.gov] Sent: Tuesday, June 27, 2017 2:51 PM To: Gary Wittenberg Subject: RE: My Client: Thomas Quach, M.D. Thank you. Sent from my Verizon Wireless 4G LTE smartphone roe Original message .----.-- From: Gary Wittenberg in pith: TR c EXHIBIT H 10 - 12 13 14 15 16 Yq 22 23 24 25 26 27 28 BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA: In the Matter of the Tnvestigation oft VESTIGATIONAL Thomas Quach, M.D. N ) = SUBPOENA TO APPEAR Cage Number 800-2016-021229 AND TESTIFY To: Thomas Quach, MD. 9186 Bolsa Avenue Westminster, CA 92683 Pursuant to the federal Health Insurance Portability and Accountability Act (HIPAA) and the powers conf? rred upon the Director of the Department of Consumer Affairs (DEA) of the State of California as head of the DCA by Sections 11180. through 11191 of the Government Code of California, which powers have been delegated by the said Director under Section 7 of the Government Code to Supervising Tuvestigator hil Robert Pulido of the Division of Investigation, Health Quality Investigation Unit. YOU ARE HEREBY COMMANDED to appear before Investigator Amber itiscall, and/or any other duly authorized representative(s) of the Division of Investi gation, Health Quality Investigation Unit staff, at 15641 Redhill Avenue, Suite 215, Tustin, California 92780, telephone {number (562) 860-4598 on the 7 day of September , 2017 ; at the hour of 10:00 an, then-and there 10 testify and answer questions propounded to you in connection with the above titled | investigation. This interview will be recorded. If you bave any questions, contact the above named. investigator, ° . . Given imder my hand this J i! Bh day of J U \- Y s 2N/ ) Robert Pulido =. " Supervising Investigator Department of Consumer Affairs Division of Investigation Health Quality Investigation Unit ENE-8G (Rey, 08/14) ; - Medical Records Request Compliance Advisory (ENF-31) DIVISION OF INVESTIGATION HEALTH QUALITY INVESTIGATION DECLARATION OF SERVICE . Case Name: Thomas Quach, M.D. ) Cage No: 800-2016-021229 » 1 declare that] am employed’ by the Division of Investigation in the County of Los Angeles California, Tam over the age of eighteen years, and my business address is: 12750 Center Court Drive South, Suite 750, Cerritos ’ California, 90703 On 7/19/17 at 1620 hours ; : ,1 served the attached (indicate all that apply): Letter to Patient with Notice to Medical Consumers: (ENF-20A) | Letter to Patient with Notice to Medical Consumérs (ENF-20B) Letter to, Patient with Notice to Medical Consumers (ENF-20C) Authorization for Release of Medical Information (ENF-27A) ‘Authorization for Release of Alcohol and Drug Abuse Information (ENF-27B) Authorization for Release of Psychiatric Information (ENF-27C) -. Authorization for Release of HIV/AIDS Medical Information (ENF-27D) [] Letter advising patient of service of SDT for medical regi along with the copy of Investi gational Subpoena Duces Tecum (ENF-34) Letter advising patient that MBC has received their medical records Declaration of Custodian of Records (ENF-22) Investigational Subpoena Duces Tecum Investigational Subpoena to Appear and Testify Administrative Hearing Subpoena Other (ist: X By personal delivery il service of a true copy thereof to at the following address: ‘20081 Silent Bay Circle, Huntington Beach, CA [] By placing a true copy thereof, along with a beat ht a copy of which is also attached, Enclosed in a sealed envelope with postage fully prepaid, by Certified Mail, in the United States mail at: , California, to At the last known address. Certified Mail No.: y [] Courtesy copy to: I declare under penalty of perjury the foregoing is true and correct, and this declaration was executed at Cerritos sad : Co , California, on 7/21/17 Amber Driscoll (Printed Namie) * (Signature) ENF-23 (REV. 09/16) EXHIBIT 1 Kenneth B. Julian I | ana Manatt, Phelps & Phillips, LLP Direct Dial: (714) 338-2745 E-mail: KJulian@manatt.com January 8, 2018 Client-Matter: 64018-060 VIA E-MAIL AND U.S. MAIL LeAnna Shields Deputy Attorney General 600 West Broadway, Suite 1800 P.O. Box 85266 San Diego, CA 92101 Re: Thomas Quach, M.D. Dear Ms. Shields: I represent Thomas Quach, M.D., in connection with the present California Medical Board investigation, along with my co-counsel, Gary Wittenberg. There is a motion set for hearing on January 26, 2018, to compel Dr. Quach’s appearance at an investigatory interview (the “Motion”). From what your office has shared with Mr. Wittenberg, there are Fifth Amendment issues to be considered in connection with an interview. One of my responsibilities in this matter is to advise Dr. Quach concerning assertion of his Fifth Amendment rights in connection with the investigation. Tam unable to advise Dr. Quach without reviewing his “complete file,” or a “comprehensive summary of the substance” of that file as it pertains to any matter under investigation. Cal. Bus. & Prof. Code § 800(c) (“Section 800(c)™). This letter is written to determine if we can obviate the need for the hearing on the Motion and/or the filing of a writ to compel your office to comply with the terms of Section 800(c). We propose that your office agree to provide copies of Dr. Quach’s “complete file” pertaining to the present investigation so that [ can evaluate any Fifth Amendment issues. If you provide such access, we would agree to produce Dr. Quach for an investigatory interview within 30 days of the receipt of such material. 695 Town Center Drive, 14th Floor, Costa Mesa, California 92626-1924 Telephone: 714.371.2500 Fax: 714.371.2550 Albany | Chicago | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington, D.C. manatt LeAnna Shields January 8, 2018 Page 2 If your office does not agree, we will file a writ compelling your office to comply with Section 800(c), and seek any other appropriate remedies. Thank you for your courtesy and cooperation in this matter. If you have any questions, please contact me. Best regards, K Sut — Kenneth B. Julian Manatt, Phelps & Phillips LLP KJ 319673287.1 EXHIBIT J From: LeAnna Shields To: Gary Wittenberg Ce: Julian, Kenneth Subject: Thomas Quach, M.D. Date: Thursday, January 11, 2018 2:17:47 PM Mr. Wittenberg, As you know, investigations conducted by the Medical Board are confidential for several reasons, including the protection of patient identities. I've noticed the attachments to your opposition filed with the Superior Court identify the patient involved in this investigation matter. | strongly encourage you to withdraw the attachments containing confidential patient information or in the alternative provide a copy of the patient's signed authorization permitting the disclosure of confidential patient information. | have also received correspondence dated January 8, 2018, from Mr. Julian. Our position remains that the Medical Board has complied with your request pursuant to B&P 800(c). If you have any questions, please feel free to contact me, Thank you, LeAnna FE. Shields Deputy Attorney General Health Quality Enforcement Section Office of the Attorney General California Department of Justice (619) 738-9401 CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. iN ~N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lees, LLP ATTORNEYS AT LAW CosTA MESA PROOF OF SERVICE I, Regina Simpson, declare: I am employed in Orange County, Costa Mesa, California. I am over the age of eighteen years and not a party to this action. My business address is MANATT, PHELPS & PHILLIPS, LLP, 695 Town Center Drive, 14th Floor, Costa Mesa, California 92626-1924. On the date set forth below, I served the within document, in accordance with California Rules of Court, Rule 2.251% PETITIONER THOMAS T. QUACH, M.D.’S OPPOSITION TO RESPONDENT MEDICAL BOARD OF CALIFORNIA’S DEMURRER TO PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF on the interested parties in this action addressed as follows: LeAnna E. Shields, Deputy Attorney General On behalf of Respondent/Defendant California Department of Justice Medical Board of California 600 West Broadway, Suite 1800 San Diego, CA 92186-5266 Telephone No.: (619) 738-9401 Facsimile No.: Email: LeAnna.Shields@doy.ca.gov (619) 645-2061 M (BY MAIL) By placing such document(s) in a sealed envelope, with postage thereon fully prepaid for first class mail, for collection and mailing at Manatt, Phelps & Phillips, LLP, Costa Mesa, California following ordinary business practice. I am readily familiar with the practice at Manatt, Phelps & Phillips, LLP for collection and processing of correspondence for mailing with the United States Postal Service, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for collection. (BY ELECTRONIC MAIL) By transmitting such document(s) electronically from my e-mail address, rsimpson@manatt.com at Manatt, Phelps & Phillips, LLP, Costa Mesa, California, to the person(s) at the electronic mail addresses listed above. The transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 13,2018, at Costa Mesa, California. 319971917.1 /s/ Regina Simpson Regina Simpson PROOF OF SERVICE
