Hurvitz v. Hoefflin

• Decision Date: 20 November 2000
• Docket Number: No. B130805.,B130805.
• Citation: 101 Cal.Rptr.2d 558,84 Cal.App.4th 1232
• Court: California Court of Appeals Court of Appeals
• Parties: James S. HURVITZ, Plaintiff, Cross-Defendant and Appellant, v. Steven M. HOEFFLIN et al., Defendants, Cross-Complainants and Respondents; Jackie Hurvitz, Cross-Defendant and Appellant. Steven M. Hoefflin, Plaintiff and Respondent, v. James S. Hurvitz et al., Defendants and Appellants. James S. Hurvitz et al., Plaintiffs and Appellants, v. Steven M. Hoefflin, Defendant and Respondent.

101 Cal.Rptr.2d 558

84 Cal.App.4th 1232

James S. HURVITZ, Plaintiff, Cross-Defendant and Appellant, v. Steven M. HOEFFLIN et al., Defendants, Cross-Complainants and Respondents; Jackie Hurvitz, Cross-Defendant and Appellant.

Steven M. Hoefflin, Plaintiff and Respondent, v. James S. Hurvitz et al., Defendants and Appellants.

James S. Hurvitz et al., Plaintiffs and Appellants, v. Steven M. Hoefflin, Defendant and Respondent.

No. B130805.

Court of Appeal, Second District, Division 7.

November 20, 2000.

Review Denied March 21, 2001.^*

Horvitz & Levy, Lisa Perrochet, Mary-Christine Sungaila, Encino, Robert Wright; King & Ferlauto and Thomas M. Ferlauto, for Appellants.

Keller, Price & Moorhead and Leslie M. Price, Jr., Redondo Beach, for Respondents.

JOHNSON, Acting P.J.

In this case we hold an order by the trial court sealing certain court documents and barring disclosure of certain information, whether obtained through discovery or otherwise, is an unconstitutional prior restraint on speech.

FACTUAL AND PROCEDURAL BACKGROUND¹

This appeal arises from a daisy chain of litigation among Dr. Steven Hoefflin, a cosmetic surgeon whose patients included many celebrities, and several of his former employees and associates. Appellant Dr. James S. Hurvitz is also a cosmetic surgeon, and had a business relationship with Hoefflin until the two reached a parting of the ways in 1996. Hurvitz filed suit against Hoefflin and his medical corporation, alleging causes of action for breach of contract and various torts, including misrepresentation, breach of fiduciary duty, and slander per se. Hoefflin denied the allegations and filed a cross-complaint against Hurvitz and his wife, appellant Jackie Hurvitz, alleging various business torts on the part of the Hurvitzes.

Also in 1996, four members of Hoefflin's administrative and medical staff, Barbara Maywood, Kim Moore-Mestas, Lydia Benjamin and Donna Burton (the "former employees"), filed a lawsuit against him alleging sexual harassment (the "harassment action"). The case settled shortly after it was filed, with each of the former employees receiving $42,500 in exchange for their agreement to: (1) waive all claims against Hoefflin; (2) seal the Los Angeles Superior Court case file in the matter; (3) keep the subject matter of their claims and the terms of the settlement confidential; (4) not disclose the names of Hoefflin's patients or try to solicit them for two years following the settlement; and (5) not "criticize, defame or disparage" Hoefflin or any persons or entities related to him and his medical corporation.

As part of the settlement of the harassment action, the former employees' attorneys executed a letter addressed "to whom it may concern," stating as follows: "In connection with our initial representation of [the former employees] a working draft of a proposed complaint was prepared before our investigation was completed. Regrettably, the complaint was inadvertently filed through an internal secretarial misunderstanding and immediately dismissed the same day when we learned of the mistaken filing, [¶] Upon further investigation, we have concluded that the allegations contained in the mistakenly filed complaint were without sufficient factual or legal basis. [¶] We regret any inconvenience or embarrassment the filing of the complaint has caused to Steven M. Hoefflin, M.D." Under the terms of the settlement Hoefflin was permitted to "use and disclose" the letter "if anyone inquires regarding the complaint or the subject matter of the complaint." The former employees, on the other hand, under the terms of the settlement could "only state that the matter has been resolved" and "say nothing further." Finally, Hoefflin agreed not to "criticize, defame or disparage" the former employees to third parties.

On October 26, 1997, the Washington Post published an article containing allegations of wrongdoing by.Hoefflin, based on the allegations in a complaint prepared in connection with the former employees' action, but never filed. These allegations included highly inappropriate behavior by Hoefflin with respect to patients who had been anesthetized for surgical procedures. For example, Hoefflin was alleged to have exposed and ridiculed the genitals of unconscious patients. The Post reported Hurvitz had notified its reporters about the allegations against Hoefflin, and quoted Hurvitz as saying "My motive was to do the right thing. I was given this information and what could I do? I came forward, I had a conscience. There needs to be an independent, objective investigation of these charges." According to press reports, the California Medical Board did indeed launch an investigation into "a telephone complaint in 1996 alleging that [Hoefflin] used drugs and fondled and photographed patients—many of them in the entertainment industry while they were under anesthesia."

Hoefflin filed a separate action against appellants, alleging libel and slander per se in connection with the allegations published by the Post This action was consolidated with the original Hurvitz v. Hoefflin action in January, 1998. In his answer in the second action, Hurvitz admitted having provided information and documents to the Post reporter.

In April, 1998, appellants filed another complaint for defamation and interference with economic advantage against Hoefflin, alleging he had defamed them in his public response to the Post article. On October 6, 1998 the Superior Court found the Hoefflin/Hurvitz cases related to three other cases pending between Hoefflin and the former employees and their attorneys.

On May 15, 1998, Hoefflin sued the former employees for various torts relating to the dissemination of the allegations in the Post article, and for breach of the settlement agreement in the harassment action. On October 29, 1998, the former employees sued Hoefflin for defamation and breach of contract. This complaint included the allegations of wrongdoing by Hoefflin with respect to anaesthetized patients, but did not give the patients' names. On February 1, 1999, Hoefflin filed a motion for sanctions against the former employees and their attorney, arguing their defamation suit was filed in bad faith and for the purpose of harassment.

On February 16, 1999, in opposition to the motion for sanctions, the former employees filed a joint declaration in which they repeated the allegations of wrongdoing from the harassment complaint and the Post article, but for the first time gave the names of the patients against whom the alleged wrongdoing was directed. The patients included very well-known celebrities, and the contents of the declaration were widely reported in the media. The trial court sealed the declaration the following day.

Hoefflin immediately moved to shorten time for a protective order to prevent any further disclosure of confidential information concerning patients of any of the physicians involved in the five related cases. A hearing on Hoefflin's motion was held on February 25, 1999. At the conclusion of the hearing, the trial court issued an interim gag order, as follows:

"First, the court's sealing order regarding the declarations of Barbara Maywood, Kim Moore-Mestas, Lydia Benjamin and Donna Burton was done in order to protect the privacy rights of both public and private individuals who were referred to in these declarations as well as to preserve the patient-physician privilege held by those individuals.

"This court is required to recognize, respect and protect the rights of those persons not parties to this action.

"It is this court's goal to allow the parties freedom to fully litigate this matter. This right to litigate does not include the right to share with others, including the press, privileged information about third persons not involved in this lawsuit on the basis that the need to share this information is permitted on the First Amendment right to free speech. This court is also mindful of the right of all parties in this litigation to an unbiased jury.

"Needless dissemination of this privileged information, this court finds, might prejudice potential jurors. Although some of this prejudice might inure against the defendant doctors, other prejudice could run against the plaintiff and plaintiffs' attorneys for what might be viewed as grandstanding or attempting to grab the spotlight at the expense of nonparty patients.

"Consequently, after balancing the rights to free speech of the attorneys and the parties, the right to a fair and impartial jury panel for all parties, the physician-patient privilege of both celebrity and noncelebrity patients and their right to privacy, and finally the right to dignity of all the parties and third persons, this court finds that a protective order is necessary.

"Further, as it pertains to the declarations contained in the opposition papers filed on February 16th, 1999, by parties Maywood, Moore-Mestas, Benjamin and Burton and sealed by this court on February 17, 1999, these declarations have been thoroughly reviewed by myself for two purposes:

"One, to understand these plaintiffs' opposition to the request for sanctions; and secondly to consider the various parties' requests to unseal these declarations.

These declarations contain specific information about both celebrity and noncelebrity patients.

"These declarations set forth not only the names but also the treatment rendered, physical oddities, treatment complications and other personal information.

This court considered redacting the names of the patients but finds that this procedure would be inadequate protection because of their physician-patient privilege and their rights to privacy and dignity.

"Because of the nature of the patient descriptions, including events surrounding the treatment of these individuals and the types of treatment, it would be impossible to guarantee that these rights would remain unsullied.

"The reason for this protective order and sealing...