1 Joel R Douglas

2 3
4

Bar No .. 056908

'KEEFE & NICHOLS

S,at;.1' amento

Superior Court Of CaI!ifOtr!l1ti;

FILED

I,

07/10/2012
all1!1at.~a~
B;..)I_~ ,

Oeput_

5
6 A /.l()rn~y8 lor Petitioner A rnald Klein, M. D.

Case Num'br!tJ':

7 8 9 10
,II

, OR COURT O'F THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO

12
13 14 !\E

LEIN,M.D.,

Case No.

15 16
17

OF ADMINISTRA TIVE MANDAM US, OR ALTERNATIVELY, 'WRIT OF MANDATE, PROIUB.ITION AND/OR R£V1E\V

PETITfON FOR WRIT

[Cal. Civ. ·Proc. Code §§ 1067 et seq., 1084 et seq., 1094.5 et seq., 1102 et seq.]
. ( l ...

18 19

Respondents.

ornpanied by Exhibits and Verifications)

20
21 COMES NOW Peti onei Arnold Klein, 1\.

DE

TMENT

33
r"

., and peti .ons this court far issuance

22

of an administrative

writ of rnand to sections

Int.,

or altemat vely, writs
cl seq.
0

view, mandate or

23 prohibirion-c-pursuant
24 25 26

u67

"1 e r;al ifor

I

Code of Civil Procedure-»
1;1" the

directed to Respondent Medical Board of Cali fornia "., l/or General of the State of California, the Board's legal represen other relief and further relief as the court deems just

espo
11 'C ,

AI 'or iey

Petitioner seeks such

27 28
oeM or;·07U7nS7'2J3J

1.

P'In'ITION 'FOR WIUT OF AIJMINTSTRATTVE MA'IlDAMUS, 01{ ALTERNATlVELY, WRIT OF MANl)ATI~, 'PROHllHl'ION AND/On uevrew

1

At issue is an order issued by Respondent Board directing Petitioner Dr. Klein to

2 submit to a psychiatric evaluation and a physical examination pursuant to section 820 of 3 the California Business and Professions Code. The order threatens that Dr. Klein's failure 4
to

comply with the order "s IIall constitute

grounds

for disciplinary

action suspending or

5 revoking his Physician's and Surgeon's Certificate pursuant to Business and Professions 6· Code sections 82,1,2220, aud 2134." Since an order under section 820 7 issued on all evrdentiary fact petition demonstrating 8 copy oftbe.l1edtlC'1l 9 refuse
0 IS

valid only if

good cause, Dr. Klein requested a

lipan

which the order was based .. Respondent Attorney General No explanation was

a'lIow Dr. Klin or his lawyer to see a copy of the petition,
tG~.

10 stv n or the

al,

"T 'I

j.

r than policy .. It was not going to be turned over him. When Dr. Medical Board to either quash the order or directIts attorney to

11

lein

tlh'!J

petitionee

12 .provide)

, Klel! wrth a copy, the BORrd ostensibly ignored tbe application. Without
0' 1 f)'

l3

receivii J; ~ 'iY decis

ru

1i

by the Board on Dr. Klein's objection and motion, the

14 Attorne
15

(ieneral rold counsel f rDr. Klein that he was not going to see any petition upon ordered->-

whica the order was based, an" it .)r. Klein did not submit to the examinations

e icroacbing on nJ.1Her-sof l1le.:1 -:al pnvaey-v-then the Board would immediately proceed 16 I 7 aga ins t Jim to suspe d cr r- vok I 15 II een se, t p rae ti ce r, le:d icine, no twiths Enndi ng Dr.
18· Klein's leg umate
j,9

equest for tr .. and sensibru'

II

'parency amid d
I !I;.

d

irect assault implicating his

constitutionalugh

In that Dr L lein is being ignored by the agency, and
.0

20

bullied by its attorney. end he docs

ot wan

lose- ~lS lice se, nor does he wish to
5

21 unnecessarily 22
23 24

cornprormse hs constitutional
t:.IS

and

auitorily-prorected

rights and privileges,

.. he is compelled to petition

cour for perempio y relief. busive
dnd
\.1

Th conduct of the
lIhitutes a prejudicial
1

administrative

body and its attomey IS arbitrary all ~

abuse

of their authority and discretion, and an unauthorized

idoe violauo
1{

r Pe .tioner's

25 26
27

rights. As a result, Petitioner is in imminent threat of having the i profession terminated
by

to practice his in the manner

Respondents.

The Respondents

are-nut proceeding

required by law. Hence, prerogative

writ relief is respectful Iy requested from this court.

28

DCMDG..o7.()717S72B.I

2

PETITION FOR WRIT OF ADM1NISTRATIVEMANDAMUS, OR ALTERNATIVELY, WRIT OF MANDATE, PROI-HBLT10N OR REVIEW

By this verified petition, Petitioner represents:

2.
3
4 1. The Parties.

5
6

t.

Petitioner is, and at all times herein mentioned

was, a physician and surgeon,
A 1971 graduate of the is a

duly licensed to practice medicine by the State of California.
of'Pennsylvania School of'Medicine,

7 Universitj

this Board Certified Dermatologist

8 Professor o,r ~ t;(h .:ne/Dermatology 9 Univcisr of Califo ,--Los

at the David Geffen School of Medicine at the

Angeles, with an endowed chair named after him. A pioneer

loin

.he

~·Idot den rat ' g ,he founded the Elizabeth Taylor Hl V Clinic at UCLA, and has soipient of n 1CroUS awards and accolades, bas taught and lectured extensively

J

2

in his fi

' l.sper"

ty, served on editorial boards for numerous professional publications, and advisor: concerning evolving medical care and and related fields.

13 4 15

and he has cted both as-an uwestigator

kno I geinthc~

f dermatology

16

I,)

At 1 " nes here .• mentioned Respondent of Consu»
PI

Medical Board of Cal iforrua,

17 Department

air

-f

H~Stat

f Califon '. (sornerimes hereinafter referred
1 tstrative

18 to as Resperrden )

edical Boa (' ( Board), is the dn

agency of the State of

19 California charged with admini
20 California Busines

-rng the pro rs.ons of sections 2220 et seq. of the
a II Medical Practice Act.

a id PI' fession

21

22
23

3.

'Respondent Ks

L.

ala O. Harris, Auo: ley General of "he Slate of California, is Board of Calirorni.!? as well as its

the lawyer for the State of California, and the Medics

24

subdivisions,

including the field enforcement operauor

for rheMed ~::\IBoa °d

eputy

25 Attorney General Trina L Saunders, and Supervising Deputy
26

u rney General Gloria

Castro, are the deputies lawyers working under Ms. Harris in the California Department of

27
28

Justice, representing
OCM OG-O 70717S 7233 _!

the enforcement arm of Respondent Medical Board. Petitioner is
OJ

informed and believes that Ms. Saunders and Ms. Castro are not the lawyers assigned LO

3
PROJ-lIBITlON OR R~VIEW

PETJ'l'ION Fok WRIT OF ADM1NISTRATIVE MA.NDAMUS, OR ALTERNATIVELY, WRlT GF MANDATE,

in fact or legally representing the members of or the Medical Board itself. It was 2 Respondent Board which, Petitioner is informed and believes, issued the May 2,2012 3 Business and Professions Code § 820 order in question, at the instance of the Board's 4 enforcement operation, which, Petitioner is informed and believes, was and is represented 5 by Ms. Saunders and 'Ms. Castro. Petitioner lacks information sufficient to state whether 6 the Board issued this order based on a evidentiary fact petition, or merely pro forma
7 request

8
9 10
,ll
I"

U.

.Jurisdictiounl

Statement.

has jurisdiction over his controversy, and authority to grant the ,1070, .1071 & 1074 (writ of certiorari I mandamus),

12 3

relief re .ues

, . yreason of sections 1067,1068,

review),

084, 108'::, (~~
I

',B7

(writ of mandate), 1094.5 (administrative

4 a id 110 , I L03
15
16

1104 (writ of p ohibition) of the California Code of Civil Procedure.

Till rativ writ

.) - ution :·eek<
0,

ISS 1(1

ul' a writ of certiorari/review,
j

mandate and/or

17 admini

,11I'!,OUl

'lifor a w

If pron'b

tit;

n, inquiring into the validity of

18 the May 2, _61? or li:;r Respon em Board, and the prop iety of Respondents refusing to 19 disclose to Petu« nor Dr. Klein->20 21 22
23
24
',0 tS

the

p.1
Q

l'j(

11 affected

thereby-v-the petition and its

contents constituting,

f at a I, the b su '

ISSUe,"C!!.
T

I

at

e itionpresumably

would

show whether there was go

ca se demonstra ed r
J

the orde Or Klein submit to a erernptory relief--Business and

psychiatric evaluation and physrca

arninatio -

r. Klein seek: R s ondent cards

either reviewing and declaring void or i .effectiv

Professions Code: § 820 order, quashing it; prohibiti ng f.' e p ndents rom proceeding based thereon or any
[11 i

25
26

Jure by Dr. K lei n to cornpl y with it, and prcl»

I, I

19 Respondents

from

proceeding against him and his license based on his failure to comply with the order under these circumstances;

27 28

and/or commanding

Respondents

to produce a copy of said petition to

Dr. Klein and accord him a reasonable time to review its contents to permit an informed
oeM 00-07071151233, J PETITION fOR WRIT OF ADMINISTRATIVE

4
MANDAMUS, OR ALTERNAT1VELY, WltIT

PROHIBITION OR REVl,EW

or MANDATE,

decision whether it is valid and whether to comply; and/or to grant such other and further

2 relief and orders as may be j ust. 3
4

TIl. Venne Statement.

5 6 6. Venue for this action and proceed: ng against an agency of the State of Respondenrs, is proper in the Superior Court in ,1I1d for the County of

7 C ali forn u, s rthe
8 Sacramento. •
r

tt

ority of section 2019 of the California Business and Professions Code f ''''e California Code of Civil Procedure,

9 and sec.

401(1).

Sacramento is the location

10 of ie 0 Ice .renera 12
I as

espondent Board, and Sacramento is where the California Attorney an office

13 IV. Fuc ual Conte

t

1.1

n rI

r cednral History Giving Rise to These Writ. Proceedtugs,

4

l5

7.

I'

out providing I'etitioner Dr, Klein any specific reason, on May 2, 2012
It" 11

16 R: spon ent Medicai Board

ed Of. K eiri a letter, accompanied by a May 2,20 l2 order igned by Shelton Duruisseau,

18 Ph.D., Chair of <, 61 A of the M -dical Board 19 Affairs, purported to be prornul 20 21 22
I

or Calit

.mia, Department

of Consumer

,"1'd

pursuan

',. section 820 of the Business and hysical examination by a

Professions Code,l It irected him

I This provision reads.

23
24

25

26
27

Whenever i~appears that an per o~ h?ldlfl/ .I licens .i.: tificate or permit under this division or under nnv iruuatrve <J[", erred r,· In this 0"'11.;·[(11 may be unable to practice his or her profession safel: because tbe liccnriare's ability to practice is impaired due to mental illne : r pi ·Ir I illness affecting competency, the licensing agency may order the r .entiate to be examined by one or more physicians and surgeons or P~/ hologists designated by the agency. The report of the examiners Shall be made available to the licentiate and may be received as direct evidence in proceedings conducted pursuant to Section 822. (footnote continued)
oeM DG·070717572J3.1

28

5
WR!T OF ADMINfSTRAT1VEMANDAMUS. OR ALTERNATIVELY,

PETfTIONFOR

PROHlJ3ITION OR R.EVIEW

WH.. r OF MANDATE, r

1 physici,an of the Board's choosing, which would include biological testing to determine the

2
3 4 If notimplicit from the terms of the statute itself, then case law makes it very dear that the order nla~ only issue on a showing of good cause---,a component of due process, mindful that the rights and prrvacy of the person, eyell If a licensee, are being directly Implicated ..See Alexander D. v, Stale Board a/Dental Exam'rs, 231 CaJ. App. 3d 92,96, 98-99 (1991'). Withou! demonstrable good cause affirming all the elements and conditions o,f the statute for issuance> of th.e I?I'd.er.. and ou.tweighmg on balance the competing privacy rights of the licentiate, the order IS VQLd and unenforceable. See Kees v. Board of Med. Qual. ASSLlr.. Cal. AVp. 4 til 180 l" 1814~15 (1992);tVJiLler v. Board o/N[ ed. Qual. Assur., f93 Cal. App, Jc1 1311, 1379 (1987). This IS Just as would be the case With any other .investig.ative subpoena Is.sue.d by the agency. See, e,g., Wood v. Superior Court, 166Cal. App, 3 d I 13 ~ { 985). I. ndeed, in eae h repo rted dec ision- --K ees a nd A lexander D. -,~the court had hef .e t lflC petition, allowing an objective vetting of the sufficiency of the pu.rporler. S iowmg u~t'fying the, i!':suauce. D.f ~ e orde.,r. In fa.CtJ)t.l Alexander D.. the .court's .h . fact sta'cnrent reflecte that the licensee dentist "was served With an order and pennon issuer t ythe B:o:",rdcom eUing him to undergo a psychiatric examination" where "[tjhe "1'11'101' .,Ueg~d (t factu I basis for the ordered examination." Alexander D'I supra at 94,98.

5

, 6 . 7
8 '9
1'0
I.: 1

!

1..

A '1 Wood, Ihe order in question-s-which plainlyencroaches upon constitutionally. 'protect rrgu ~... IS subject to a transparent evaluation. That constitutionally-mandated 12 evaluatlo-: calls i 0' wei ghing of tbe licentiate's rights agai nst the proffered governmental interests 'hat balanc ng. ar ". ysisalso entails the question whether the proposed order in L3 fact rep .sents the least rntt ,... v.:-means of accomplishing any legitimate governmental 4 interest. '~efOH) ;-tl'\ acy rights eel be invaded, the constitution mandates the performance of this careful ca'cul us. See Kees 7 Cal ..A Pj). 4111 at. 18 t 2-1 3. citing Long Beach City 15 IJml2lQyees Ass u v City ofLong Butch, 41 CaL 3d 937. 943~44 (1986) and White v, Davis, 1.3Cal. 3et 757,774-75 (1975) oocord, Wood, 166 Cal, App. 3d at 1147-49.
16

17

18

19 appear that the licensee may be. l -mble to pracric liS or her profession safely due to mental or physical illness affecting l ompete \;.;)'. (hem (leeds to be good caese..a factual 20" evidentiary basis, to s~lpoll thatcor .c US!I1J 1'1 urde e, I .1 v.: h:l. ol"dcl: to issue. See Kees. supra at 1813,1814; CaL. Bus. & Pro). C.... de-§ 820 <;e' not~ _ & 6 !rIP·CI. 21
22 23
The Board is not the excl usive arbiter of w I.at constitute. o{'od cause. To prevent abuse, both the doctor affeoli'"d, and he court, 111\(1) weigh in on It ... question when good cause is challenged. And) as the t'Jurl rn Wood ~bserved, there i TJO good reason to keep the person whose right is affected "in the dark." e.. Wood, ] (,6 Cil1 ApI', 3d at 1149.

True. d1B Boa has a QmpeUng' ee.l roprotect the public against the risk of harm by iOl atred I)hysici.a!"ls See Kee , ~U,}I U fl, I \; 1, But that need does not give the agency plenary autho tty to breach medic .... <fndothei liri~llcy I;g IS of the licensee simply based on curiosity, whim or power. By :l$ terms, secho-. . 2U oes not authorize all order compelling exal IS j i all cases. The order may o111~ IS,'tl[C if evidence sufficient makes it

24

27

25 opportunity to be beard; the adjuc.llcative process must b separate ro.m the investigative, prosecutorial and advocacy function within the agency; and th decision must be 111 26 wri.tillg, based on tb~ record.und include a s~atemen( of the l'3ClWll and legal basis for the ruling. See CaL GOY l Code §§ 1142S.10(a)(!L}, (4) & (6); ,11425.50 (decision must be In writing reflecting the factual basis for thedecisiou based on the evidence).

.. TI~ls concel?t is consistent with the principle r1.1t' nil when {ll age: cv u(,dertakes an adjud I cati ve function, u must give the person to which lie .ICtl01~IS ~ ,I ected nO(ILe and an

28
PETITION

FOR WRIT OF ADMINISTRATIVE MANDAMUS, OR ALTERNATIVELY, WRIT OF MANDATE. PROHIBITION OR [{I~VIEW

6

presence of scheduled and/or illicit drugs. It further directed him

[0

submit to a psychiatric

2 examination,
3 4

including psychological

testing, by a psychologist

or psychiatrist of the

Board's choosing.

The order concludes with the warning that "The failure of Respondent

to comply with this Order shall constitute grounds for disciplinary action suspending or

5 revoking his PhySician's and Surgeon's Certificate pursuant to Business and Professions 6 Code section
82 l , 2220, and 2234.,,1 A true and
COITCCt

copy of that letter and order is

7 attached as Eh::hlbll A
8

9
10 I!

Upon

. Klein's receipt of Respondent Board's order of May 2~20J 2, Dr.
•• ")y I

contacted Medical Board Senior lnves ti gator Kim Wilson,

a co v o

te petition, b) contact information for the doctors with whom Dr.

12 Klein needec to-make arrangements, 13 . week
0

and c) a request that this occur during the second

'l'ne giver' fhe uef)r r scbedule conflicts, Ms. Wilson provided the names of the wanted to exa d be acco
.'11
1

4 doctors the Boar 15 dif~ 'ent ti mes

H1.C

Dr. Klein, but she avoided answering whether she had unilateral ly set,

ated beyond the appointments

l6 and w"tle initial)
17

K
0::1 .s
,II

f",

a copy of the petition, later she altered be r
ny of the Order and not he
WRS

position, now declaring. I~!. K r

only enti ..hdl to .

18 Petition (of am p-at of the petition
19 20 2[ 22 23 24 idea of the depu y attorney genet, J

ILwas reveale

rhat this position

actua lly the

,i

signed to nvestigate/prosecute
I e os
tll)1

the case against Dr.

Klein. When Ms. Wil on was asked f r I e basis f allowed to see any petition rupp )rting the order. administrative law judge's decisi n the case
0,

that Dr. Klein was not

I she could

.nvide was an

111 the Mauer

',he Accusation Against
!. ~

25
26

to comply with an order issued under Section 820 shall . stitut ...g suspension or revocation of the licentiate's certificate or iccnsr.'

2

f Section 82 \ of the Business and Professior

··c states:

'0

Ii. 'r .J ue's fa ilure mds for 1\:;

27
28

Section 2220 authorizes the Board to take action asainst persons guilty of violating the chapter. It may conduct investigations. Section 2234 (Ieciares that "The board shall take disciplinary action against any licensee who is charged with unprofessional conduct. II

DCMDG·Q707nmJJ.1

7
MANDAMUS, OR ALTERNATTVELY, WRIT Of MANDATE,

PETlTlON

FOR WRrT or ADrvUNISTRATlVE

PROHIBITION OH REVIEW

Edward L. Spencer, lvf.D.---a non-precedential 2 administrative

decision, and one of dubious analysis by (10 A copy

law judge who is not authorized to pass on constitutional questions.

3 of the email thread documenting this exchange with Ms. Wilson is attached as Exhibit B. 4 A copy of the Spencer decision, with which she provided counsel for Dr. Klein, is 5 appended herewith as Exhibit C. Thereafter another round of email exchange concerning 6 the issue ensued. Ms. Wilson indicated she had to bold pat in the decision that Dr. Klein 7 would not he getting or allowed to review the petition, if any, which gave rise to the § 820
8 order. A.t ue ar d correct copy of those ernails appears as Exhibit D.

9 10

9.
bjection
and a
I na
< •

2012" Dr. Klein filed with Respondent Medical Board his
SIS

concerning the May 2 order. He moved to have the Board quash

12 it, "or

rut.

rve

to direct that a copy of the petition supporting that order be provided to

13·· him cou led with a 'easanabte opportunity to thereafter comply with order," or such other
J4 rc ief as may b 'JLlS't. A copy ot mat motion is attached as Exhibit B.3

15
16

o.

Penn

er is i fl ned.'
).

rl

I e ieves and thereupon states that Respondent
0 lJI

17 Medical Board took n . .uen 0

Klein's May 23

\..don and motion. Dr. KLein

18 received no respcns from Respondent Board at all 19

20
21 22 23

1 I.

On June 7,20.12, Deputy .
II

t

mey Gel eral 'rin:
1\,; \ol

aunders mailed counsel

for Dr. Klein a letter declanng,

he Board wi]

be withdra ring this final Order" and arded to
01111
J

"The petition supporting the Orde w It not be n explanation for why, or how Ms. Sunders

YOU'

l

your client." No

knew tlus

Board. She was not the
U

24 Board's attorney; she was part of the investigativc/prosec

oria)

I. J

ewev .r, I e next

2S
26
J/

27 28

herewith.

Affixed to Exhibit E as attachments were the foregoing Exhibits A-D

DCMDG·07(nnsrm,

I

R
OF ADMTNISTRATIVE MANDAMUS, OR ALTERNATIVELY, PROl;ilT31T10N OR REVIEW WRlT OF MANDATE,

PETITION

FORWR1T

ominously declared: "Should Dr. Klein fail to comply with the terms of the Order, the
2 3 4 5 Board will move to suspend and/or revoke Dr. Klein's license pursuant to Business and Professions Code section 820 et seq." While assunng that the Board acted appropriately and within its power to issue the Order Compelling Arnold Klein, M.D. as part of its investigation

Physical and Mental Examination of

into his ability to practice medicine safely,

6 the deputy attorney general made clear. The ground for that investigation or the support for
7 her assured assuran 8 9 10 attached a'l ~xl il ,"Til wielde . would n01 be forthcoming. A. copy of Ms. Saunder's June 7 letter is

Dr. Klein responded to the letter, concerned over the authority being

v the deputy : rorney general who supposedly does not speak for the Board, only

em n .djudica« r_ body
'v'1 il

tviSIOI' and should not' be having unilateral communications
r
.1

with the

II

inbers of the Board.4 Dr. Klein again reiterated his willingness t.o he first have an opportunity to assure that it was in fact

12 comply
i

order-s-provided

3

lawfully i. sued anc f Jr gooo reason, as provided by the enabling legislation, For that, there
needs to De

14

trans iarency. He needed to see the petition and any support upon which it
1 opportunity

15

elied, Why wa- he being denio
II .
I

to review the petition?

What are the.

16 respon ents hidina-. I Wily 17 petition, or no evident 18 trying to cause
19 policy. But whos
L

ecrec
~I

t-are they afraid of? Was this issued without a

'II'}'

asis

II?

J8

tbe 's:; sorn -currilous, disreputable source) for their refusal. Only that it's their

Klein trouble' policy? The Ii

Ibey give no re: s

,I: d's?
tIl)

The
.

It

irney genera! we are dealing with? And
l

20 21 22 23
24

where's that policy wn.tten? Is it wn constitutional rights. Why i· Dr.

rso

~'ffects Dr. Klein's
SI

lein being pu i 1 Jeopardy of ecz use he ruaxcs a reasona
\V~S

rmarily losing his

medical license and career simpl

e and understandable ccurring? Is it fair that he

request as to why this intrusive ord r

issued

all

,t

thi

ii

loses his license to practice because he has a legal question and spe~1 Ilg"1IP t"O[ b s rights ---and because the other side is being infuriatingly,

25 26
27

and unrem

111,

bly obdurate?

Dr.

See Cal. Gov't Code § 1 1425.10(a)(4); see note I supra.
9

28
DCMDG-010mS72J3.J

PETITION

FOR WRIT OF ADM IN TSTRI\T l.VE MANDAMUS, OR ALTERNAT1VELY, WRIT OF MANDATEI Pll..OHIBITJON OR REViEW

Klein's legitimate redress to the Respondent Board was totally ignored. Now the 2 enforcement people-s-its police and prosecutors-c-are making decisions as if they have

3 become the judge. He is being told, in essence, he has no rights. If he asserts his rights, he
4 will lose his license. He cannot question the police's authority without facing the capital

5 punishment equivalent in a Medical Board matter. There is no one to appeal to since the
6 7

agency who should be judging has improperly delegated that role to its cops. A copy or Dr.
Klein's June 15 response to Ms. Saunder's letter 1S marked as Exhibit G.

8 9 10 rfy
ICc :: rty

. On

JUl

'7

Ms. Saunder's replied. She was laconic. She stuck with the It was her department's way, or the highway.

1 e- -givi ,,;no Information. the ord
0
i

~lle deotnre 12 Klein "will
13 describe 4 'objecuoi

was properly issued, the Board met its statutory obligations, and Dr. any further correspondence from the Board regarding your self-

... ive e 11

objecti

ana mot on' Specifically,

there will be no order or ruling on your

cuments from the Board will be ill response. to your '. mply with
lr

15 client's failure

card's Order." A copy of this pronouncement
I

from the

16 At or

y General s f ce a pears as Ex

I H.
'(\1

Dr. Klein tried again to reason. and
tl e B
'U .•

17 questioned how Ms. SCI u 18 was stressed tLl

rs cann

talking

'he did not represent. Again it

Or. Klein had. .o intentions of bl,j·., c,isobedient, but' he has a reasonable
Il :

19 a nd law fuI requ .st, and importa 20 21

hts that nee, to be respected. He was at a loss over
C

how shabbily he was being reated. 1.

22 23
24

13.

In a final effort to ge a d . erminati

0

1

of this
U

In

r from a

SCl

rce allier tha 11

the partisans to this dispute before rhe Medical Board,

.sel for DJ Klein p~1t' phone
Z"

25

call to Ms. Saunders on the morning of July 6, 2012. The cal

not returned.

26 27
28
14.

Petitioner does not deny that Respondent

Board bas legitimate interests, but and mental or psychiatric

its right to order a licensee to submit to a physical examination DCMDO.(l70717S7l33.! 10
PROHII3ITlON OH. RBVI6W

PETITION FOR \VRIT OF ADMINISTRATIVE MANDAMUS, Oft ALTERNATIVELY, WRIT OFMANDAT8,

1 evaluation is not plenary. It is only upon a showing of good cause and in the least intrusive 2 manner needed, given the licensee's constitutional 3 privacy.
4 5 6 7
. 6

due process rights5 and his right to

V. Peremptory Relief.

15.

Petitioner

has

exhausted his available administrative

remedies with

S Responde
9 discipl

s. Rep

ndents have made it clear that they now plan to take extreme

a y action abal st him in the form of suspending or revoking his license to

-~-hlt'

ofessionat career,

12 13
4 See note 1 supra, "For go\, n onent to disn« c:; id Justice Stanley Mosk:

15
16

17

18 19
20
21

of a person's significant interests without fering lu chance :o I e heard is to risk treating him as a nonperson, an obi -~ rather l' n a _ pect ~ a. icrpa ing citizen." ... Thus, even in cases in wltlch te decrs on nakin: I" IS U - wil notal (;l the outcome of goven mental a n, du pr cess may neve 1:hl"'k<' require that certain procedur I protecnons be' ranted the indi- dual in order to protect important dignitary values, or, in ou.er words, "toensure bat the method of interaction itself is l:air i 1 terms ofw lril are perceived ft, minimum standards of po titical accountability-v-of modes 0" teractien vhich ex-press a collectrve j l1dpl1lcl1t that human bel. gs are I mp I 10 'J I. OW:1 rahi. J"l that they must De
treated with understanding,
11_

re psc

I

and ev el CU ljJll

I"

..

0

See People

Ramirez, 25 ~a1. 3d 260,267-68

_979) (citation.

mitred).

22 6/ The right to privacy, in hiding medl .al privacy, i . right recognized and 23 protected under both the federal an stare constt l vns. See C, l~ wold \I. Connecticut, 381 U.S. 479, 484-85, 85 S. Ct. 1678, 1681--82 (1965; i ~t of ~rj I Barbara \ 4dam.sof1.,27 CaL 3d 123, 130 n.3 (1980) (Califorma's right to pn fl-cy b oader thai, fe leral ...... 24 constitutional right); In re Lifschutz, 2 Cal. 3d 415, 435tl970 'Jf.'ntz II, SUjH_ ior Court, 28 CaL App. 41h J 839, ~84~-55 (1994) ("w~ tre~t.compr I isclosure as a product 25 of state action subject to constitutional constrarnts ), cuing Br. I,' }/, Superior Court. 20 Cal. 26 3d 844,856 n.3 (1.978); Board a/ivied. Qual. Assur. v, Gherarc ini, 93 Cal. AI?P. 3d 669, 678-79 (1979)~ Wood, 166 CaL App. 3d at 1147; CaL Const, art. J, §§ 1, [3; Cal. Evid. 27 Code §§ 990~ 1027.
I

28
DCMDG-(}70mS72JJI

1. T

118T1TION FOR WRIT OF ADMINISTRATIVE MANDAMUS, OR ALTERNATIVELY, WRlT OF MANDATE, PROHIBlTION OR REVIEW

1

'16,

Respondents

have acted arbitrarily, capriciously, and. contumaciously,

frivolously and in bad faith.

2, They have acted unreasonably

and they have prejudicially abused

3 their discretion, infringing on Petitioner's rights in violation of the law.'
4

5

l7,

Respondents,

and each of them, proceeded without according Petitioner due

6 legal notice, an opportunity to be heard, a fair hearing, or due process of law. Respondents. 7 and each of them, committed a prejudicial abuse of discretion in that they, and each of 8 them, did 9
to It
'lot pr..lCtH.:d

in the manner required by law. On this record, as disclosed by relevant herein, Respondents' decisions, orders and actions are not Respondents

Res

0

dents at

an

t

n I!S

sop one by "ir fngs
iolate ,.r' ciple

and any findings are not supported by the evidence."

rf

ndamental fairness, common law rights of notice, fair hearing and

12 due pro .ess,
13

. tney have abused and unduly impaired, threatened and jeopardized
constiu
'Oflllj

Periuoners

ng

It

and his

ability and right to practice his profession,

H aVI ng do. e so I espondents have declared they wi 11now proceed to suspend or revoke

1is license as a I' sician and surgeon, taking advantage of Respondents' boorish behavior
l6 17
J 8, If rt. spondent B rd's order of May"'. '~il2 is allowed to remain in effect as 18 19 a valid and enfo co ble order, aHJ Respondents (jr thereby allowed to proceed against

to undue the pro

~ ( a1 cr ree of D'

.

'J

20
21

Petitioner to suspend Respondents

t

re

ke his

I'e ..e- .

VI'

Dr
t

>1'

r, ilure
J.

to comply with It after
ed him a reasonable

improperlyif

uor 1 legaJJy ignored
!;I_;

otherwise r'
factual bas

22 23
24

opportunity to review any petition

t~ngforth

31'

r evidence upon which

25 26 27

of the Government Code, Petitioner brings this petition for ]e~, 31 d equitable relief from the plight in which he bas been placed by reason of Responde ,. conduct-v-not to recover fees or penalties.
I

1I Although the conduct ofthe responden wouk give rrse tv ees : '11';1 penal ties under sections 128 and 128.5 of the Code of i\ Proce .llll e, if not section 800

See notes I & 4 supra and accompanying

text.

28
LlCMDG-010")nsnn I

I2
AOMIN1STRATTVE MANDAMUS, OR ALT£RNATIVELY, PROHIBITION OR REVTEW WRrr'OP MANDATE,

PETITION

FOR WRIT,OF

1 the order was, or was not based=-Peutioner 2

will be irreparably and unjustly harmed inhis

ability to continue to practice his profession, earn a livelihood in the career in which he is and licensed ..9 and ill his reputation.

3 trained, experienced 4

5

19.

Petitioner has no plain, speedy and adequate remedy at law. Respondent

6

Board's order and avowed decision to now take draconian action on Petitioner's license to nder these circumstances, cannot be effectively or pragmatically

7 practice his profession

8 remedied. v. uh

11

.ausing significant' irreparable and immediate harm to Petitioner and his writ of
3S

9 vested ·'6) ts, unless -I ~ court grants a writ of review, writ of mandate, lOad. .II 12
III

trative

andarm

or writ of prohibition, or other extraordinary relief,

prayed or

idicat d

13
14
15

16
17 18 19

20
21

22
23

24
25 26
9( The right of a licensed physician and surgeon . ractice his or her profession is considered a "fundamental vested right," for which the law exacts stringent safeguards to prevent unwarranted interference by the licensing agency .. See, e.g., Bixby v. Pierno, 4 Cal. 3d 130, 146-47 (1971); Yafwv v. Board ofMed. Exm 'rs, 68 Cal. 2d 67, 71-

27

72 (1968).

28
DCMOG-OI071757233.1

13

PETlTlON rOR I;VRIT OF ADMIN1STR.'\TIVE MANDAMUS, ou ALTERNATIVELY, WRIT OF MANDATE. PRQHTBITtO lOR REvrEW .

1 2

WHEREFORE) Petitioner prays that:

3

1.

An alternative writ of review, mandamus and/or prohibition issue ex parte commanding Respondent Medical Board of California to set aside and

4 and forthwith,

5 vacate its order of May 2,2012, directing Respondent Board and Respondent Attorney 6 General to forthwith deliver to Petitioner a copy of any petition or factual or evidentiary 1
8

basis UI on winch the M y 2, 2012 Business and Professions Code § 820 meier may have issued) and/or proll'biting Respondents from laking any action against Petitioner and/or his actice ~1
.j

9 licens 10 ta
II
1,

ine until he has been accorded a reasonable opportunity in which

s : n in I;' r.l ed de ision whether to voluntarily comply with the order or challenge it.
1\

A erna

(".Iy, it is r auested the court issue a Notice of Hearing on the within petition."

12 13 l5 2. A peremntory \~I it 0 f certiorari or review, mandate, administrative sst e, commanding Respondent Medical Board of
S

writ of

14 iiandaruu

and' r robibitioi

Qali (urnia to se . side and vacate.
ll')

order of May 2, 2012, directing Respondent

Board

16 a d Re. pendent

ney G. nwT:t1 to forthwith deliver to Petitioner a copy of any petition,
1,.lP~1

17 or factua or evidentiary b: ~IS
I

w. lien

Ie. ay 2, 20 L Business and Professions Code

§ 820 orde may 1 vc issued, a) lor prohibiting R [." I ents from taking any action IS 19 against Petitio er 111 lor his liccus to practice ned.cine until he bas been accorded a 20 21 22 23
24 25
10 I Petitioner reserves the right to seek an immediate stay of any action of the 26 Respondents in the event Respondents seek an immediate revocation or suspension of 27 Petitioner's license pending an opportunity for this court to decide the matter.

reasonable opportu

it in which t
1

I

:'1

'fJrme

'10

whether to voluntarily

comply with the order o cb.!

ge it.

3. Petitioner recover his

COF

0

suit in lj~

.I

..
__ -_

It

_

~

_'",

.,.

-...--~

...

io

28
DCMDG-0707l7S7233,I

14

PETITION rOI" WRIT or ADMINISTRATIVE MANDAMUS, OR ALTERNATIVELY, PROHIBITION OR R8VlEW

wnrr

or MANDATE,

4. And Petitioner be granted such other and further relief as this COurt may deem 2 just and proper.
3

4
5 6

Respectfully submitted,

O'KEEFE & NlCUOLS Professional Corporation

BONNE, BRIDGES, MUELLER,

7 8 9 10 . I1
12

13
4

15

16

17
l8 19 20 21 22

23 24 25

26
27 28
DCMDG·0707175nJJ.i

I5
PROf/mITtON
MANDAl\l[US, OR ALTERNATIVELY, OR REVIEW

PETITION

FOR WRIT OF ADMINISTRATIVE

warr

OF' MANDAT6,

DECLARATION

1

VERl F[CATION

2

3
4
5

I, Arnold Kleili., M.D, declare:

I am the petitioner

herein.

I am u physician

and surgeon, duly licensed to practice

6 medicine in t ie State of Calif 0111 ia.
7
8

J h.! c rend 1,1 foregoing e

petition

for wri t of administrari

ve IIU111dallHls, or

9 alter l~'
10
I:

ely, writ 0, 11,Jlldalc, prohibition or review, the exhibits identified and referred to
and"
t 1 '"

. ic

\;11,.

the sonten ts thereof.

I certify that the same is true of my knowledge,

when'
those

thcrwisc ,U"lPOltcd by citations to the record, exhibits or other documents, A~ to
ve tl~em 1.0be true and COITcct. As to those matters stated ill the
1:.1)1

1.2

'1$, L .

13 Iorcgor-rg pctirioi upor u

nation and belief, 1 believe them to be true. t am informed

14 and b i.cve thHI J e exhibits

I ._" 1 .1

ed to and appended
ers

\'0

this petition arc true and correct,
to the

1r and constitute
16 cited ase and

vidence of the
~\.l ,,!

they purport to contain. The same applies

ry hl\

·1.:· ....

renced therein.

l7 L8 I declare under penaltyot V rjury of the I, ~\\ a

he State of California that the

19 foregoing is t. le-' tid correct,

20 21 Executed this
11dav

f uly 2012, at
-,
1.... ..-'

~ula

lkac

1

California.

22 23
24 25

r

.

26 27
28
DCMDG·Oi07t751233.I

J5
WRIT OF}"lANDATE,

PETITION FOR WRIT OF ADMfN[STRAT1VE MANDAMUS. oft Ar;rERNAHVELY, P1WHT81TION OR lUlYIEW

DECLARATI

VERIFfCATION 2
3 I, Joel Bruce Douglas, declare:

4
5 I am an attorney at law, duly licensed to practice law in the State of California.

6 am a member
7

f the law firm of Bonne, Bridges, Mueller, O'Keefe & Nichols,
attorneys of record for the petitioner herein, Arnold Klein, M.D.

Professional Corporanou,

8
_9 J 0 itl' rn II have read tl e o 'egoing petition for writ of administrative /ely, \' . of
1

mandamus, or

11...1

Gate, prohibition or review, the exhibits identified and referred to
1 certify that the same is true of my knowledge,

U erein, a I know'
11

ontents thereof

12 when

th rw se supported by citations to the record, exhibits 'or other documents. As to
true and correct.
1

13 those items, I believe them H.'

As to those matters stated in the

14
15

etitron pon inform.

n and belief, [ believe them to be true. I am informed

nd elieve tha: I t'> exhibits ret>
derce of tJ e r

sd to and appended to this petition are true and correct, ttersthey pqrport to contain. The same applies to the

16

17 cited case ant! statutory

a .refe el r.e I the ~ II

18 19
20 2.1 22 Executed this [declar

under penalty

0

perjury of the

I~WS

of the State .of California that the

foregoing is true anti correct.

r: day

fJ

a.

23
24 Joel Bruce Douglas

25 26
27

28

OCMDO.Q70iJ1S7233.1

PETITION FOR WRn or ADMJN~STRATIVE

MANDAMUS, OR A LT ERJ'\JATIV ELY, WRIT OF MANDATE,

17

PRQH I B lTION OR REVIEW

EXHIBIT A

l\11~l)lCAL BOAJill OF CAL1FOHNIA
f)iseiplin~ Cocrdinauon
1jni 1

May 2,2012

Dr. Klein:
Enclosed is granted b,
f\ COllY
J "~

ofthe (.) ,IC' f"_~ompdhng a Physical and Mental Examination whic11 was Medic. • [lome (H Cali f~mlla. P lease note (he date of the Order is May Il, 2012., !
ays aflJr service of w.hetl rccerve fau

The- Clm
·(IIIS rder.

S\_~t.~,

~o~.

the examin: LIe . sh~!i b.e COrl.,d.ucted 11(: ,.Ia.ler..t~. Y • s nuld eml ("l tile Cerritos D15tnOt Office at_

:
I

If I car) be Qfan;

!
I I

i !

I

Sincerely.

t

Attachment

CERTIFIED MAIL
cc: Trina L. Saunders, Deputy Ar .}fi1 ...y General, Los Angf'lo;:'s Mar ianne Eck hoff, Su pervi si n g Invest iga tor, eel' I'i.t'·~D istri ct 0 ffice Kimberly Wilson> Senior lnves !ga~~r. Cerritos Di$u·j ~( Office
r

._.rA

II
;1
KAMALA

D.

Hi\R.R1S 0f

I]
3

Attorney
GLORIA

L. CASTRO

General

Ca Ii Iornia
All()mcy General

2 I'' Supervising Deputy TRINA L SAUNDERS

I

Depuly.1I. ttorncy General

4
-J

1/

Stare Bar No. 207764

6

7

A {wrneys for Pel isioner .

81
9 10

I

11

'I~'
3.J

'I

BEVORE THE NlE-DICAL ROAHD OF CAUFOl~NIA I)El?A RTM('~NT OF CO:-"SUMER AFFAIHS 51'/\'1'£ 0 F CALl.fOR;'\rA

hysicn

arter ( f [he-Pet ion to COl\lpt:i 'he Mental
.amin ('" of:,

Ca!-;cNo,06-2010-2051~2

'

OH.I)ER COMPELLfNG I>fJYSICAL AND MI~NTAL EXA!\'lINATlON
;
j

1 Bus. & Prof. Code, § 87,0.)
1

15

Physiclr(s

a ~ -'U(geon's

Cert -.. te No. A247J Y

16
17

Respondent.

!
r,'J , ruie
S

.
pcriticned

I
t

18
19

The E ecutive Ow.: tor 01 (, Board pursuant
iO • usiness

Medical Boa I d

(,"BOaJd''J)'Ving
,

me I

20
2'1

and F ] ~essiof1s Code
who
'101

n 8.20 for an Order to!Comp-e! Arnold
and Surgeon's Certificate
l

Klein, M.D., ("Respond undergo a physical submit

N")

Ie ~hvsi

"No, A24719, to
0'

22 23 24 25
26 27

e: mi nation, a mcnl<l! c.

am i l1a('
t:A"ld

., ,'holooicallesrin'" r: J

and to

to testing to detect ine pr ence of schcdu ...j
all of

illicit dn.lU·
<:.

J.l

d ha~inl-?, read and
,

considered

the documents

~l
-

fi I~ "rein, the "cr·tion to Com
11..

iJC

Me!llt("dand Physical
I
I

Examination

of Amo14 Klein, MD. and .I! supportin];

me .... declaratiojl1!1n ts
~
H.:

+xhibits, it
I

,I

hereby appears to the Board that Respondent
his ability
\0

mil)' be unsbte

practi e ,·eci.l~lne saf
c. dlncs~;

because

practice

IS

impaired

due ro mental pursuant
(0

illness and/or phy

,

l
i

28

IT IS HEREBY ORDERED,

Business <JndProfessions Co~c secuon 82(), !hac
i"

/
I,

11-----------()-R-D-,;R-COi\lW-;::Lli~.(;

PH Yo) Ie A L A-:\'-O-:Vl-P'-;-';~,-"r-'A-I-:F,XAM L" lIJ)N

1,

lmrnedlarely

upon service

Qr this

l3oard's Order, Res;'londtnt Arno'ip Klein, M.J} chose" I>y the Board.

2
I

shall 5Ui>"U; ,~a physical examination

by " physician

W+h ,hall i»clude
i'

II
I

3
4

II b\.H no\ be 11mited
1

to biolcgical

testing to detenni ne lilt presence o f scheduled ~ltd/or illir.;;il drug!:>;
<J

I
J

I

2,

Respondent

sbaJI further submit lu
Or

psychiatric

examination,

!tlClu~IHlg psychological

5
6 7

testing, by a psychologist

psychiauis: chosen by the Board.
examining Respondent (collectively

The jndivi~itl,lls

"the F-x<lmil1(;:rls"J

i

I
r

shall be

i I

til'reeled 10 de ermine- whether Respondent is impaired

due to a mental or phy\'.i~i\_1 i\\ru.:ss or ,

I

R
C:J

cl'lsabjhty whicb affects 1m competence to practice. medicinesafely.
Il,
II; O:'J

!
i

-hiatric Mel physiea] examinations

shall bt: conducted

at a l~mt! convenient

10

Rcsu

-'I)

i{tflt and rhe at

.ttl ,i ners, but not later than thirty PO) days after service? Ie or more of the Examiners):

,

ro

f this Order

it

r

jest l-i

The Ex " . 1l!rS shall provide derailed written reports JJ 14
of the! ~'1ml..'lll( M of Respondent.
!n.

of the fillding$ and conclusions ~ The reports 0 f the Examiners may be rec~i ved as direct

,

evidence

an y ad ,m-' I;;

1'.1

ve proceed; ngs that may be f led

BS

a resul;

Of

[he Jrenw.ll:ll10

5
16

physical "~ami I. lfI~;

6,

TJ _ .epor: from the ~a'otlratory which provides the chemical analysis of any biological

I

17 18 19,

f.luid samples tai~"r ,Jring drug 1 ~~ (as escribe <ldminis[ra 7,
disciplinary
>l

tn~ te

_ng or e: aruination of Respondent ror scheduled and/or illicit
,
,J' ~recei

- graph f above)

..'ej

J

direct evidenge til any
arid

ve

rl

c'l.~ding_s that '\'~

be filed as a r(j~IJ'.
10 comply
I'

, J fogi cal Lf:S \ ing;

20
21'

n

fa.L rre

()!' Responde it

uh trns Order shall constitute grounds for
:;lci~' -

action suspench g or re ~; ~ II,

d

ggiOrl'S Cert,ijllcf;llc pursuant to

i

22
23

Business and Professiou.s Co c sections 82,1, 2220JO

2~34.

24
?" ~)

I
MEDICAL BOARD OF CAl l DEPARTMENT OF CO;-';Sl'<ER

26
27

~lA i AffAIRS :

I
I !
1
I
\

28 -I

I
I
I

SHELTON

DL'RldS$EA

U, Ph,D'1 CHAilR

PANEL A _2
ORDER CO'Vl/'F.LLlNG PifYSIC/\1.

h II

I

-I

j
AND :Vll':\':rAL EXAMINATION

I

1

DECLARATION

or SEHVICE!lY

q~RTrFrED 017:

AND FI,HST CLASS

iY1All
;

,

IN THE MATTER OF THE ~'Il:TITION TO COlVU'J~LA PHVSICAL

AND l\/fltN1AL

EXAMIN_,\Tl0,r..j

MIJC CASE NO. 06-2010-20SHI2
I, the

undersigned, deGI~HI;'[hal I am over 18

cause; my cusiness address is served a rrne co py 0 r the: anac h . : on.Den COM~eLLrNG A. PHYSICAL AND MJ~NTALEXA)VUNATrbN ,

,

by mail on each of the 1'0110w1I1£;, by placing, same in anenvelope (respectively) cl'i' I \.t

(or envelopes) addr~ssed

CERTIFIED I/.
7010106000020012 q808
and by regular U.S. fv1~il Service

l

U. S .. MAIL S£RVJctE

Each said envelops

,·;O_3

{hen. v

vlay 2, 2(JlZ St'Jled

M<l

deposited in the Uni(eci

States mail at S2!I.-'nml' '110, Calrfornia 1 • county in whlcl' 1 .ll:T! .raployed, either as qertified mail or first class l: S ma t with the postag.e thereon full .. p.teyald and return receipt'rcqaested
for the certified mall Executed on May "',2011, ai Sacr ruent.O. Ccl.Hfornl';

1 declare under penalty foregoing is true and correct,

tper:l ry under the

13\;\"$o!'lhc

State of .'" torrua ttJ<ll the;

•.:4;:...... :_. . "

.r):l\" .

.,~:--..,.

.-::\. \ ._.\- ,"-_

\~\

Richard M Acosta Declarant

EXHIBITB

Joel Douglas
From: Sent: To: Subject: Sarah Navarro Tuesday, May 08, 2012 12:12 PM Joel Douglas Klein

Kim Wilson says the Petition was sent to Dr. Klein so maybe we should try getting it from our ctient...,
Sarah L. Navarro

Assislantte Mit~ie t, Oo'bson and Jalll O. Oouglas
Benne ' Muelle( O·Keefe & tlUchols

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