Brown v. Mortensen, 010319 CAAPP2, B281704

Docket Nº:B281704
Opinion Judge:CURREY, J.
Party Name:ROBERT A. BROWN et al., Plaintiffs and Appellants, v. STEWART MORTENSEN, Defendant and Respondent.
Attorney:Law Offices of Lyle F. Middleton, Lyle F. Middleton; Law Office of Robert A. Brown, and Robert A. Brown for Plaintiffs and Appellants. Carlson & Messer, Charles R. Messer, David J. Kaminski and Stephen A. Watkins for Defendant and Respondent.
Judge Panel:We concur: ROTHSCHILD, P. J., CHANEY, J.
Case Date:January 03, 2019
Court:California Court of Appeals

ROBERT A. BROWN et al., Plaintiffs and Appellants,


STEWART MORTENSEN, Defendant and Respondent.


California Court of Appeals, Second District, First Division

January 3, 2019

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC289546, John Shepard Wiley, Jr., Judge. Reversed.

Law Offices of Lyle F. Middleton, Lyle F. Middleton; Law Office of Robert A. Brown, and Robert A. Brown for Plaintiffs and Appellants.

Carlson & Messer, Charles R. Messer, David J. Kaminski and Stephen A. Watkins for Defendant and Respondent.

CURREY, J. [*]

This case resolves two obscure and previously unaddressed state constitutional issues: Does article I, section 16 of the California Constitution guarantee the right to a jury trial for (1) nominal statutory damages claims, and/or (2) claims for attorneys' fees, under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.1)?

With little useful guidance from the parties, no controlling precedent, and the three-year postremittitur deadline for bringing the case to trial about to expire, [2] the experienced and highly regarded trial judge concluded it does neither. With more time to reflect, further development of case law, and some modest additional input from the parties, however, we reach a different conclusion. We hold that jury trial is guaranteed for CMIA's nominal statutory damages claims brought before 2013 under section 56.36, subdivision (b)(1), but not for attorneys' fees claims under section 56.35. We therefore reverse the trial court's judgment (which was entered after a bench trial) and remand for jury trial on both the nominal statutory damages claims and a remaining compensatory damages claim. The attorneys' fee claim should be addressed, if at all, by the court via posttrial motion.


Plaintiffs and appellants, Robert A. Brown (“Brown”), and his two then-minor daughters, Kirsten Brown and Kayla Brown (collectively, “the Browns”), were patients of a dentist named Dr. Rolf Reinholds. In July 2000, Dr. Reinholds billed Brown $600 in connection with a dental crown. After Brown paid only a portion of the bill, Reinholds referred the debt to a collection agency called Credit Bureau Services, owned by defendant and respondent Stewart Mortensen.

The Browns brought suit in 2003, contending an employee of Mortensen transmitted confidential medical (i.e., dental) information received from Dr. Reinholds to the three major national consumer credit reporting agencies, Experian, Equifax, and Trans Union, in violation of the CMIA.3

After significant delays, including delays resulting from interlocutory appellate review, 4 the Browns finally brought their case to trial in late 2016.5 The Browns had requested a jury and the parties prepared jury instructions. At some point, however, a question arose concerning whether the Browns had a right to a jury trial on all of their claims. At a pretrial conference, the trial judge expressed a preliminary view that the Browns' nominal statutory damages claims are equitable and that at least part of the case should be tried to the court rather than the jury. He proposed that he reserve decision on the jury trial issue, and the parties try the case (which was expected to take only about a day) to the court without waiver of the Browns' position that all the issues should be tried to a jury. Brown, who is an attorney, and who was representing himself and his daughters, agreed, as did Mortenson's counsel. The parties then tried their case to the court.

The CMIA “ ‘is intended to protect the confidentiality of individually identifiable medical information obtained from a patient by a health care provider, while at the same time setting forth limited circumstances in which the release of such information to specified entities or individuals is permissible.' [Citations.] [¶]... ‘The basic scheme of the [CMIA]... is that a provider of health care must not disclose medical information without a written authorization from a patient.' [Citation.]” (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1070.)

Section 56.10, subdivision (a) states that “a provider of health care... shall not disclose medical information regarding a patient... without first obtaining” a written authorization required by the statute. And a “recipient of medical information pursuant to an authorization... may not further disclose that medical information except in accordance with a new authorization” that meets the statutory requirements, or as otherwise specifically required or permitted by law. (§56.13.)

At trial, the Browns' theory was that Dr. Reinholds disclosed their confidential medical information to Mortensen without the written authorization required by statute, in violation of section 56.10, subdivision (a), and that Mortensen disclosed this information to the credit bureaus, also without their authorization, in violation of section 56.13.6

After a brief bench trial, the trial judge issued final rulings, and entered judgment in favor of Mortensen. The trial court ruled “there is no right to a jury trial on the equitable issues in the case, ” and identified the equitable issues as the Browns' claim for nominal statutory damages of $1, 000 per person (i.e., $1, 000 each for Robert, Kayla, and Kristen Brown) under section 56.36, subdivision (b)(2), and their claim for statutory attorneys' fees of up to $1, 000 per person under section 56.35. The trial court ruled that the remaining claim, i.e., Brown's claim for compensatory damages for emotional distress under section 56.36, subdivision (b)(2), was not equitable.

The trial court further ruled it had held a bench trial on the equitable issues. It characterized the “central factual dispute at trial” as whether Mortensen's company had sent an “itemized statement” to Equifax, Experian, and Trans Union containing the Browns' confidential medical information. Resolution of that issue, the trial court noted, boiled down to a credibility determination. Mortensen's employee testified the itemized statement had never been sent. Brown testified it had. The trial court found the employee's denial credible, and Brown's testimony not credible, for a number of reasons detailed in the ruling. Ultimately, the trial court rejected all of Brown's testimony as unreliable. It concluded, therefore, that the Browns' claim that Mortensen transmitted their confidential medical information to the credit bureaus “fails for want of proof.” The trial court concluded: “the sole...

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