Fish v. Superior Court of San Diego Cnty.

• Decision Date: 27 November 2019
• Docket Number: D076060
• Citation: 42 Cal.App.5th 811,255 Cal.Rptr.3d 786
• Parties: Mason Robert FISH, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

42 Cal.App.5th 811

255 Cal.Rptr.3d 786

Mason Robert FISH, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

The People, Real Party in Interest.

D076060

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

Filed November 27, 2019

Law Offices of Mark W. Fredrick, Mark W. Fredrick, Newport Beach; and Courtney L. Cumming, for Petitioner.

No appearance for Respondent.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, David Uyar and Samantha Begovich, Deputy District Attorneys, for Real Party in Interest.

HALLER, J.

Petitioner Mason Fish was involved in a fatal motor vehicle collision and thereafter charged with (among other offenses) three counts of gross vehicular manslaughter while intoxicated. ( Pen. Code, § 191.5, subd. (a) ). Based on Fish's statements to law enforcement officers after the collision that he was under the care of a psychotherapist who had prescribed him certain antidepressant and antipsychotic medications, the prosecution subpoenaed the psychotherapist's (and his medical group's) treatment records. Fish moved to quash the subpoenas on the basis they sought information protected by the psychotherapist-patient privilege. ( Evid. Code, § 1014.)¹ The prosecution countered that Fish had, through his disclosures to law enforcement officers, waived this privilege. Respondent superior court (the trial court) agreed with the prosecution. Accordingly, the court denied Fish's motion and indicated it would review the psychotherapist's treatment records in camera to determine if Fish and his therapist discussed whether the medications might affect Fish's driving.

Contending the trial court erred in finding he waived the psychotherapist-patient privilege, Fish petitions for a writ preventing the trial court from reviewing his psychotherapy treatment records, and requiring the trial court to grant his motion to quash the subpoenas. For reasons we will explain, we will issue the requested writs.

FACTUAL AND PROCEDURAL BACKGROUND

Fish was driving a vehicle involved in a tragic collision in Oceanside on February 5, 2019. Three occupants of the other vehicle were killed, and three were hospitalized with severe injuries. Fish told responding law enforcement officers that he was under the care of a psychotherapist who had prescribed him antidepressant and antipsychotic medications. Fish told the officers he had last taken the antidepressant that morning, and the antipsychotic two weeks ago. Fish also stated he had begun, or was about to begin, a ketamine

infusion treatment.²

A few days after the accident, the District Attorney filed a seven-count criminal complaint against Fish.³ Fish was arraigned and pled not guilty.

About one month later, the District Attorney served subpoenas on the psychotherapist and his medical group seeking "[a]ny and all medical records for" Fish from April 24, 2017, through the date of the subpoenas (March 6, 2019).⁴

Fish moved to quash the subpoenas, arguing they sought information protected by the psychotherapist-patient privilege. Fish maintained that his disclosure to the law enforcement officers of the existence of his psychotherapist-patient relationship, diagnoses, and prescriptions did not waive the privilege.

The District Attorney filed an opposition, arguing Fish had waived the privilege. The prosecution also asserted that because it had to prove Fish "acted in a grossly negligent manner," it had a "compelling" need for evidence showing Fish and his therapist had discussed the medications' side effects, interactions, or impacts on his driving.

At the hearing on Fish's motion to quash, the trial court stated it had received, but not yet opened, a manila envelope labeled "defendant's psychiatric records." After hearing argument, the court denied Fish's motion, finding—at least for purposes of conducting an in camera inspection—that Fish had waived the psychotherapist-patient privilege "as relates to what medications [he] was taking and what advice as it relates specifically to those medications, if any, was given." Other than that, the court found Fish's communications with his therapist were privileged.

Fish asked the trial court not to review the materials until he had the opportunity to pursue a writ. The trial court agreed.

After Fish filed the instant petition and the District Attorney filed an informal response, we issued an order to show cause why we should not grant the requested relief. The District Attorney filed a formal return, and Fish filed a reply.

DISCUSSION

Fish contends the trial court erred by finding he waived his psychotherapist-patient privilege by disclosing to law enforcement officers that he was seeing a psychotherapist who had prescribed him antidepressant and antipsychotic medications. The District Attorney disagrees, and further contends it has a compelling prosecutorial need for the information that outweighs Fish's privacy interests. We conclude Fish's disclosures to law enforcement officers did not waive his privilege, and there is no legal basis on which the District Attorney's claimed compelling prosecutorial need warrants an invasion of Fish's statutory privilege.

I. Relevant Legal Principles

Confidential communications between a psychotherapist and patient are privileged. ( § 1014 ; Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014, 135 Cal.Rptr.2d 532 ( Story ); § 917 [communications "in the course of the ... psychotherapist-patient ... relationship" are "presumed to have been made in confidence"].) Section 1014 provides in part that a "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." "The psychotherapist-patient privilege has been recognized as an aspect of the patient's constitutional right to privacy." ( People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738 ( Stritzinger ).)

The psychotherapist-patient privilege rests on the premise " ‘that an environment of confidentiality of treatment is vitally important to the successful operation of psychotherapy.’ " ( Story , supra , 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.) The California Supreme Court has "recognized ‘the public interest in supporting effective treatment of mental illness and ... the consequent public importance of safeguarding the confidential character of psychotherapeutic communication.’ [Citations.] ‘Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life .... Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment ... depends.’ " ( People v. Wharton (1991) 53 Cal.3d 522, 555, 280 Cal.Rptr. 631, 809 P.2d 290 ( Wharton ), quoting Sen. Judiciary Com. com., 29B West's Ann. Evid. Code (1966 ed.) § 1014, p. 621.)

The psychotherapist-patient privilege is "broader than other privileges. Unlike the physician-patient privilege, for example, the psychotherapist-patient privilege can be invoked in a criminal proceeding.’ " ( Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150, 1154, 64 Cal.Rptr.2d 566 ( Nielsen ); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091, 105 Cal.Rptr.2d 476 ( San Diego Trolley ) ["unlike the physician-patient privilege, the psychotherapist-patient privilege is not subject to a good cause exception in personal injury actions"]; Wharton , supra , 53 Cal.3d at pp. 551-552, 280 Cal.Rptr. 631, 809 P.2d 290.) "The privilege is also considered ‘paramount to prosecution,’ generally outweighing the People's interest in successful prosecutions ...." ( Story , at p. 1014, 135 Cal.Rptr.2d 532 ; Menendez v. Superior Court (1992) 3 Cal.4th 435, 456-457, fn. 18, 11 Cal.Rptr.2d 92, 834 P.2d 786 ( Menendez ).)

"Thus, for policy reasons the psychotherapist-patient privilege is broadly construed in favor of the patient, while exceptions to the privilege are narrowly construed." ( Story , supra , 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.)

"Where the psychotherapist-patient privilege is claimed as a bar to disclosure, the claimant has the initial burden of proving the preliminary facts to show the privilege applies." ( Story , supra , 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.) " ‘Preliminary facts’ means the existence of a psychotherapist-patient relationship, ‘that is, that the person [the claimant] consulted was a " ‘psychotherapist’ " within the meaning of ... section 1010, and [the claimant] was a " ‘patient’ " within the meaning of ... section 1011.’ " ( Story , at p. 1014, 135 Cal.Rptr.2d 532 ; §§ 1010 [" ‘psychotherapist’ " includes a licensed psychologist, or a medical doctor "who devotes, or is reasonably believed by the patient to devote, a substantial portion of his or her time to the practice of psychiatry"], 1011 [" ‘patient’ means a person who consults a psychotherapist ... for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition"].)

"Despite its broad and protective nature, the psychotherapist-patient privilege is not absolute." ( Story , supra , 109 Cal.App.4th at p. 1014, 135 Cal.Rptr.2d 532.) "Once the claimant establishes the preliminary facts of a psychotherapist-patient relationship, the burden of proof shifts to the opponent of the privilege" to either (1) "rebut the statutory presumption of confidentiality" that attaches to psychotherapist-patient communications, (2) "show that the privilege has been waived under section 912," or (3) show "that the material sought falls within one of the exceptions to the psychotherapist-patient privilege codified at sections 1016 through 1027." ( Story , at p. 1015, 135 Cal.Rptr.2d 532 ; see, e.g., §§ 1016 [patient-litigant exception applies when "an issue concerning the mental or emotional condition of the patient ... has...