Cutter v. Brownbridge

• Court: California Court of Appeals
• Writing for the Court: HOLMDAHL; RACANELLI, P.J., and NEWSOM
• Citation: Cutter v. Brownbridge, 183 Cal.App.3d 836, 228 Cal.Rptr. 545 (Cal. App. 1986)
• Decision Date: 24 July 1986
• Parties: Newell I. CUTTER II, Plaintiff and Appellant, v. Robert BROWNBRIDGE and Renata Brownbridge-Robert Brownbridge, a Professional Corporation, Defendants and Respondents. AO24456.

Page 545

228 Cal.Rptr. 545

183 Cal.App.3d 836

Newell I. CUTTER II, Plaintiff and Appellant, v. Robert BROWNBRIDGE and Renata Brownbridge-Robert Brownbridge, a Professional Corporation, Defendants and Respondents.

AO24456.

Court of Appeal, First District, Division 1, California.

July 24, 1986.

Marvin Stender, Garry, Dreyfus & McTernan, Inc., San Francisco, for plaintiff and appellant.

Martin F. McCarthy, Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc., Oakland, for defendants and respondents.

HOLMDAHL, Associate Justice.

This case presents the issue of whether a party's psychotherapist is immune from liability for a disclosure of privileged information voluntarily made in a judicial proceeding, when that disclosure violates the patient's constitutional right of privacy.

The judgment dismissing the complaint with prejudice is reversed.

Statement of Facts

According to allegations of the first amended complaint, respondent Robert Brownbridge, a licensed clinical social worker, was psychotherapist for appellant Newell I. Cutter II between 1976 and 1982. At the beginning of the psychotherapist-patient relationship, Brownbridge agreed to maintain all communications and diagnoses in confidence. In August, 1982, he "voluntarily, and not as a result of subp[o]ena or other legal compulsion" executed a written declaration describing his diagnosis of Cutter, as well as damaging personal details learned as a result of his being Cutter's therapist. The declaration was attached to a request by Cutter's former wife for suspension of his right to visit his children, and filed by her attorney in her pending legal action. ¹ As a result of the exposure of this information, Cutter "suffered humiliation, mortification, shame and severe emotional injury and distress and ... loss of visitation with his children...."

Procedural History

In March, 1983, Cutter filed a complaint for damages against Brownbridge, alleging that Brownbridge's disclosure of the details of Cutter's therapy violated his constitutional right of privacy and his common law right of privacy, was a breach of an implied covenant of confidentiality, and constituted intentional infliction of emotional distress. Brownbridge demurred on the ground that his declaration was immune from civil liability pursuant to the judicial proceedings immunity of Civil Code section 47, subdivision 2. ²

The demurrer was sustained with leave to amend and Cutter filed a first amended complaint, which added an allegation that Brownbridge was not under any legal compulsion to file the declaration. Brownbridge's second demurrer was sustained without leave to amend, and judgment dismissing the complaint with prejudice was entered on July 26, 1983.

Standard of Review

On appeal, after a demurrer is sustained without leave to amend, all allegations in the complaint are presumed true. (Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354, 83 Cal.Rptr. 347.) ³ Recognizing that Civil Code section 47, subdivision 2, ⁴ immunizes many otherwise actionable statements, Cutter nevertheless argues that his constitutional right of privacy should prevail over the need for truth in judicial proceedings. He refrains from arguing that section 47, subdivision 2, does not apply at all, but instead asks this court to find a constitutionally-mandated exception to its applicability when a psychotherapist makes disclosures before having fulfilled his or her duty to claim the privilege and to seek a hearing to determine whether disclosure is appropriate. We agree with the basic thrust of Cutter's argument.

For purposes of this opinion, we assume that the allegations of the complaint state causes of action and that relief would be foreclosed by application of section 47, subdivision 2, unless an alleged violation of a constitutional right requires an exception from that statute. ⁵ We now consider that constitutional question. (Cf. Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 823, 106 Cal.Rptr. 718.)

Constitutional Right of Privacy

Article I, section 1, of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." The reference to privacy was added in 1972 and amended in 1974 to read as stated.

Even before that enactment, however, the California Supreme Court recognized the necessity for confidentiality in the psychotherapist-patient relationship, finding a federal constitutional source for protection from public exposure of a patient's communication to his or her psychotherapist. "[W]e believe that the confidentiality of the psychotherapeutic session falls within one such zone [of constitutionally guaranteed privacy]." (In re Lifschutz (1970) 2 Cal.3d 415, 431-432, 85 Cal.Rptr. 829, 467 P.2d 557.) Quoting from a reference to Guttmacher et al., in Psychiatry and the Law (1952) page 272, the court noted that a psychiatric patient must expose " ' "his entire self, his dreams, his fantasies, his sins, and his shame" ' " to the psychotherapist. Such confidence would be impossible if the patient knew that the psychiatrist would then reveal these communications " ' "to the whole world from a witness stand." ' " (In re Lifschutz, supra, 2 Cal.3d at p. 431, 85 Cal.Rptr. 829, 467 P.2d 557.)

Since enactment of the privacy provision, the California Supreme Court has held that it protects one from the improper use of information which has been properly obtained. (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.) Further, this provision is self-executing, and needs no legislation to create " 'a legal and enforceable right of privacy for every Californian.' " (Ibid.) And, based on the election brochure statements drafted by proponents of this constitutional provision, the court has stated that the right to control circulation of personal information is fundamental. (Id., at p. 774, 120 Cal.Rptr. 94, 533 P.2d 222, see also Robbins v. Superior Court (1985) 38 Cal.3d 199, 212-213, 211 Cal.Rptr. 398, 695 P.2d 695.) This right reaches beyond the interests protected by the common law right of privacy, and may be protected from infringement by either the state or by any individual. (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839.) The "zones of privacy" created by article I, section 1, extend to the details of one's medical history. (Jones v. Superior Court (1981) 119 Cal.App.3d 534, 548-550, 174 Cal.Rptr. 148.) And, an "individual's right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones." (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 679, 156 Cal.Rptr. 55.) Most recently, the California Supreme Court has stated: "[p] If there is a quintessential zone of human privacy it is the mind. Our ability to exclude others from our mental processes is intrinsic to the human personality." (Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 944, 227 Cal.Rptr. 90, 719 P.2d 660, fn. omitted.)

We recognize the close analogy between a physician-patient and a psychotherapist-patient relationship, and conclude that Brownbridge's impressions and diagnosis, and other details of his professional relationship with Cutter fall within the zone of privacy protected by the state Constitution. ⁶

Fundamental though this constitutional right may be, it is not absolute and "does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest." (White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222.) Thus, the interest in ascertaining the truth in judicial proceedings has been held to be sufficiently substantial to justify disclosure of much confidential material, including communications to a psychotherapist. (See, In re Lifschutz, supra, 2 Cal.3d 415, and cases cited therein at p. 433, 85 Cal.Rptr. 829, 467 P.2d 557.) In the context of discovery of confidential information in personnel files, even when such information is directly relevant to litigation, discovery will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525, 174 Cal.Rptr. 160.) And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumscription of the scope of the disclosure. (Id., at p. 526, 174 Cal.Rptr. 160.) Similarly, although a patient has a constitutionally protected interest in information contained in his or her medical file, disclosure may be appropriate in narrowly limited circumstances to serve a compelling interest. (Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d 669, 680-681, 156 Cal.Rptr. 55; Jones v. Superior Court, supra, 119 Cal.App.3d 534, 550, 174 Cal.Rptr. 148.)

Thus, the necessity in judicial proceedings for ascertaining the truth is sufficiently compelling to justify disclosure of constitutionally protected information when narrowly limited to information directly relevant to the issues (In re Lifschutz, supra, 2 Cal.3d at p. 435, 85 Cal.Rptr. 829, 467 P.2d 557) and when good cause and materiality to the action establish that the need for disclosure outweighs the right to privacy. (Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d 669, 679, 156 Cal.Rptr. 55.)

Hence, in the present case, although Cutter's statements to Brownbridge as his psychotherapist are protected by his constitutional right of privacy, an infringement of that right may be constitutionally permitted when the need for disclosure outweighs his interest in privacy. We turn,...