Alameda County v. Superior Court (Darlene W.)

• Decision Date: 18 June 1987
• Citation: 237 Cal.Rptr. 780,192 Cal.App.3d 1064
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 192 Cal.App.3d 1064 192 Cal.App.3d 1064 The COUNTY OF ALAMEDA, Petitioner, v. SUPERIOR COURT, County of Alameda, Respondent; DARLENE W., etc., Real Parties in Interest. A035526.

Page 780

237 Cal.Rptr. 780

Previously published at 192 Cal.App.3d 1064

192 Cal.App.3d 1064

The COUNTY OF ALAMEDA, Petitioner, v. SUPERIOR COURT, County of Alameda, Respondent DARLENE W., etc., Real Parties in Interest.

A035526.

Court of Appeal, First District, Division 2, California.

June 18, 1987.

Rehearing Granted July 17, 1987. See 239 Cal.Rptr. 400.

Stephen G. Blitch, James C. Martin, Mark E. Barmore, Crosby, Heafey, Roach & May, P.C., Oakland, for petitioner.

J. Frederick Haley, Matthew D. Haley, Law Offices of J. Frederick Haley, Oakland, for real parties in interest.

SMITH, Associate Justice.

This petition presents the question of whether the identity of a mental patient who allegedly raped another in a county facility is privileged. We hold that it is not. We conclude that under the instant facts an exception is impliedly provided by statute. We therefore do not reach the question of whether it is also constitutionally required. (Cf. Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769, 190 Cal.Rptr. 919, 661 P.2d 1073.)

Petitioner, County of Alameda, the defendant in a personal injury action predicated on negligent supervision in its Highland Hospital Emergency Psychiatric Service (Hospital) seeks a writ of mandate to restrain the enforcement of respondent court's discovery order requiring disclosure of the name, address and telephone number of the male patient who allegedly raped another committed patient, plaintiff and real party in interest, Darlene W. ¹ Petitioner contends that the information sought is immune from discovery under the psychotherapist-patient privilege (Evid.Code, §§ 1010-1027) ² and the privacy provision of the state Constitution. (Art. I, § 1.) ³ Real parties maintain that their need for disclosure outweighs the minimal intrusion into the male patient's privacy.

The complaint alleges that while Darlene W. was a patient at the Hospital, a locked facility providing psychiatric evaluation treatment, she was forced into the men's bathroom and raped by a male fellow patient. One of the interrogatories requested "the name, address, and telephone number of the man found in the bathroom with plaintiff at the time of the incident." (Emphasis added.) Petitioner refused to answer the interrogatory claiming the matter privileged.

Petitioner's opposition stated: "Plaintiff was brought to Highland General Hospital by her mother during the early morning hours of July 7, 1984.... [p] At approximately 4:30 p.m. on July 7, 1984, plaintiff was found by a nurse in the bathroom inside the locked service with a male fellow patient. The plaintiff was fully clothed. At that time, plaintiff denied the male patient did anything to her or with her." Petitioner's opposition included the affidavit of a staff mental health specialist revealing that the man found with Darlene W. was also a patient. Real parties maintain that to claim the privilege petitioner intentionally revealed the fact that the alleged assailant was a patient of the Hospital. Arguably, petitioner by revealing this fact waived its privilege. (See Richard L. Marcus, The Perils of Privilege: Waiver and the Litigator, 84 Michigan Law Review 1605 (1986).)

Petitioner relies on our decision Smith v. Superior Court (1981) 118 Cal.App.3d 136, 173 Cal.Rptr. 145, a marital dissolution action in which we held that the names of the husband's psychiatric patients were not discoverable by the wife to ascertain his income. We explained that the psychotherapist-patient privilege was to be construed in favor of the patient, and was based, in part, on the constitutional right to privacy, citing In re Lifschutz (1970) 2 Cal.3d 415, 432, 85 Cal.Rptr. 829, 467 P.2d 557. We relied on well settled law that disclosure of the identity of a patient violates even the less stringent physician-patient privilege "where such disclosure reveals the patient's ailment" (Smith v. Superior Court, supra, 118 Cal.App.3d at pg. 140, 173 Cal.Rptr 145) a necessary corollary of divulging the fact of psychiatric treatment. Rudnick v. Superior Court (1974) 11 Cal.3d 924, 933-934, fn. 13, 114 Cal.Rptr. 603, 523 P.2d 643; City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 518-519, 168 Cal.Rptr. 49.) We therefore concluded that the psychotherapist-patient privilege protected the identity of the husband's patients and noted that the wife had less intrusive means of ascertaining the husband's income.

Respondent court, in its helpful memorandum decision, distinguished Smith v. Superior Court, supra, 118 Cal.App.3d 136, 173 Cal.Rptr. 145, on the ground that the protected patients in Smith were innocent of any fault while the male patient in the instant case is allegedly Darlene W.'s rapist. Respondent court relied on general statutory provisions that privileges are not available to protect disclosure of criminal conduct (§§ 997, 1018), and the specific provision of section 999, ⁴ to conclude that the physician-patient privilege had no application to this case. Respondent court balanced the psychotherapist-patient privilege against the state's strong interest in deterring rape and protecting rape victims which has been the subject of recent legislative activity. ⁵ Respondent court then weighed the male patient's privilege against the compelling interest in safety from violent assault, and relying on Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 440, 442, 131 Cal.Rptr. 14, 551 P.2d 334, concluded that: "The protective privilege ends where the public peril begins." (Emphasis added.)

We agree with respondent court's conclusion and most of its general analysis. However, the statutorily created psychotherapist-patient privilege does not contain a provision that parallels section 999. ⁶ (City of Alhambra v. Superior Court, supra, 110 Cal.App.3d at p. 519, 168 Cal.Rptr. 49.) Section 1018 ⁷ (which parallels section 997) by its terms, is limited to a factual situation not alleged here, i.e., "if the services of the psychotherapist were sought ... to escape detection or apprehension after the commission of a crime or a tort."

We therefore focus on section 1014. So far as pertinent, section 1014 provides: "Subject to Section 912 ⁸ and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege (b) A person who is authorized to claim the privilege by the holder of the privilege." As will appear, we construe section 1014 to include an implied exception.

We recognize that in section 911 ⁹ "the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. [Citations.] Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal." (Welfare Rights Organization v. Crisan, supra, 33 Cal.3d 766, 769, 190 Cal.Rptr. 919, 661 P.2d 1073.) The same is true of a non-statutory exception to a privilege. (Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 99, 185 Cal.Rptr. 97.)

We agree with petitioner that no existing Evidence Code provision precisely covers the instant situation and that relevance and the public interest in prosecuting crime alone will not suffice to overcome the psychotherapist-patient privilege. ¹⁰ (Luhdorff v. Superior Court, supra, 166 Cal.App.3d 485, 212 Cal.Rptr. 516; Roberts v. Superior Court (1973) 9 Cal.3d 330, 338, 107 Cal.Rptr. 309, 508 P.2d 309.) Intrusion upon constitutionally protected areas of privacy requires a balancing of the juxtaposed rights, and the finding of a compelling state interest. (Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766; Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 657, 125 Cal.Rptr. 553, 542 P.2d 977; White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.) Here the privacy right of petitioner's male patient also must be weighed against the state's compelling interest in protecting persons like Darlene W. committed to its care.

Our Supreme Court recently reiterated: "The psychotherapist-patient privilege has been recognized as an aspect of the patient's constitutional right to privacy. [Citations.] It is also well established, however, that the right to privacy is not absolute, but may yield in the furtherance of compelling state interests." (Emphasis added.) (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 131, 164 Cal.Rptr. 539, 610 P.2d 436.) There must be a careful balancing of the compelling need for discovery against the fundamental right of privacy. (Ibid.) Thus, the psychotherapist-patient privilege may yield to a criminal defendant's right to confrontation and cross-examination (see People v. Reber (1986) 177 Cal.App.3d 523, 530-532, 223 Cal.Rptr. 139 and Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40) and the right of privacy may yield to a civil defendant's legitimate interest in preparing a defense. "The state's interest in facilitating the ascertainment of truth in connection with legal proceedings is substantial enough to compel disclosure of a great variety of confidential material, including even communication between a psychotherapist and his patient." (Emphasis added.) (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 550, 174 Cal.Rptr. 148, citing In re Lifschutz, supra, 2 Cal.3d 415, 432-433, 85 Cal.Rptr. 829, 467 P.2d 557.)

The usual rule of broad construction of the privilege in favor of the patient (Roberts v. Superior Court, supra, 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309; Grosslight v. Superior Court (1977) 72 Cal.App.3d 502, 140 Cal.Rptr. 278), is of little...