Jeffrey H. v. Imai, Tadlock & Keeney

• Court: California Court of Appeals
• Writing for the Court: Swager
• Citation: Jeffrey H. v. Imai, Tadlock & Keeney, 101 Cal.Rptr.2d 916, 85 Cal. App.4th 345 (Cal. App. 2000)
• Decision Date: 08 December 2000
• Docket Number: No. A087167.,A087167.
• Parties: JEFFREY H., Plaintiff and Appellant, v. IMAI, TADLOCK & KEENEY et al., Defendants and Respondents.

101 Cal.Rptr.2d 916

85 Cal.App.4th 345

JEFFREY H., Plaintiff and Appellant, v. IMAI, TADLOCK & KEENEY et al., Defendants and Respondents.

No. A087167.

Court of Appeal, First District, Division 1.

December 8, 2000.

As Modified January 3, 2001.

Jeffrey H., in pro. per., for Plaintiff and Appellant.

Murphy, Pearson, Bradley & Feeney, Timothy J. Halloran, San Francisco, Aaron K. McClellan, for Defendants and Respondents.

SWAGER, J.

In this pro per appeal, Jeffrey H.¹ appeals a judgment dismissing his complaint against the law firm, Imai, Tadlock & Keeney, two attorneys in the firm, Robert Keeney and Mark Misaghi, and a secretary in the firm, Heather Hutchison (hereafter collectively the respondent law firm), which was entered on an order sustaining the respondent law firm's demurrer to the first amended complaint. We reverse the judgment dismissing the cause of action for invasion of privacy and affirm the judgment as to all remaining causes of action.

PROCEDURAL BACKGROUND

The first amended complaint alleges a detailed statement of facts followed by a statement of legal grounds for claims against the respondent law firm, a legal services firm, and three related health care providers, Kaiser Foundation Hospitals, Inc., The Permanente Medical Group, Inc. and Kaiser Foundation Health Plan, Inc. (hereafter collectively Kaiser Foundation Hospital). Insofar as it relates to the respondent law firm, we read the first amended complaint as attempting to state a cause of action for invasion of privacy under California Constitution, article I, section 1, a statutory cause of action under Health and Safety Code section 120980, and causes of action for negligent and intentional infliction of emotional distress.

The first amended complaint alleges that appellant was injured on August 23, 1995, when his vehicle was struck in the rear by a leased vehicle. He filed a suit for personal injuries in San Francisco Superior Court against the driver of the other vehicle and the company that leased it. The defendants in that case were represented by the respondent law firm.

On November 25, 1996, the respondent law firm issued a subpoena for medical records from Kaiser Foundation Hospital and hired a copying service, Major Legal Services, to obtain copies of the medical records. Appellant's hospital records were subsequently copied and delivered to the respondent law firm. Among the records delivered to the firm were several documents, marked at the bottom "CONFIDENTIAL: Do Not Copy Without Specific Authorized Consent," which disclosed the results of appellant's HIV tests. Appellant alleges on information and belief that the contents of the records were disclosed to the employees and members of the respondent law firm and their clients in the personal injury suit.

The personal injury action was referred to arbitration under circumstances not revealed by the record. On May 1, 1997, appellant received a "Supplemental Notice of Intention to Introduce Evidence at Arbitration Hearing Pursuant to California Rules of Court—Rule 1613" (hereafter Supplemental Notice) to which was attached those medical records from Kaiser Foundation Hospital that the respondent law firm proposed to offer into evidence in the arbitration. Upon inspection of these medical records, appellant discovered confidential documents disclosing the results of HIV tests that he had taken at Kaiser Foundation Hospital.

On November 10, 1997, appellant wrote a letter to a member of the respondent law firm informing him that these medical records relating to his HIV tests had been improperly disclosed and demanding that "[a]ll copies of any such documents, or references thereto, ... be returned to [him]." In reply, the attorney returned certain documents to appellant with a letter, in which he stated, "I do not believe I have any other documents concerning the results of these tests. If I subsequently locate any such documents, I will forward them to you."

Contrary to the assurances expressed in the letter, the respondent law firm identified two documents disclosing the results of appellant's HIV tests in a collection of arbitration exhibits. At the arbitration hearing on December 3, 1997, the firm delivered these two documents to the arbitrator. Appellant claims that a willful intent to disclose the documents may be inferred from the process of selection of documents for the arbitration. Appellant's file at Kaiser Foundation Hospital contains 400 pages of documents; 12 of these documents were contained in the Supplemental Notice, including four related to appellant's HIV test results; and eight of these documents were introduced in the arbitration hearing, including two related to the HIV tests.

In a cross-complaint, Kaiser Foundation Hospital alleges that the documents disclosing HIV status were improperly copied and delivered to the respondent law firm, but it places the responsibility on the copying service and the respondent law firm: "Prior to copying the records, Kaiser expressly told Major Legal Services not to copy records that were marked 'CONFIDENTIAL'. These records were tabbed with paper clips. In the instruction sheet that was provided to Major Legal Services' employee, Kaiser expressly stated that these records were not to be copied. Unfortunately, Major Legal Services disregarded Kaiser's instructions and copied the medical records marked `CONFIDENTIAL'. These records contained [Jeffrey H.'s] HIV test results. [¶] After copying [Jeffrey H.'s] HIV test results, Major Legal Services delivered the records to ... [the respondent law firm]. Instead of immediately returning [Jeffrey H.'s] confidential medical records which, as attorneys, the law firm knew were not discoverable under Health and Safety Code section 120980 et seq., defendant law firm disseminated the information contained therein to their clients and attempted to use the HIV test result records at arbitration."

DISCUSSION

"In our review of this judgment of dismissal sustaining a demurrer without leave to amend, we are guided by well-settled principles governing the testing of the sufficiency of a complaint. Although a demurrer makes no binding judicial admissions, it provisionally admits all material issuable facts properly pleaded, unless contrary to law or to facts of which a court may take judicial notice.... [Citations.] To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459, 80 Cal.Rptr.2d 329; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal. Rptr. 718, 703 P.2d 58; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)

In accordance with these principles, our analysis will be governed by factual assumptions, derived from the allegations of the complaint, that may or may not be borne out by later evidence. First, we assume that the respondent law firm knew that the documents disclosing appellant's HIV status had been improperly copied from medical records of the Kaiser Foundation Hospital. Subject to certain limited exceptions. Health and Safety Code section 120980 broadly prohibits disclosure of the results of an HIV test "to any third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization...." The first amended complaint contains nothing suggesting the existence of a proper written authorization or the applicability of any exception to the broad prohibition of section 120980 but rather alleges that the documents in question displayed markings identifying their confidential nature.

Secondly, the bare allegation of a rearend automobile collision does not provide a reasonable basis for inferring a connection between the injuries suffered in the collision and appellant's HIV diagnosis. At this stage of the proceedings, we must assume that appellant's HIV test results had no relevance to the factual issues raised by appellant's personal injury action.

Thus, the issues in this appeal revolve around the use in arbitration of improperly released documents containing confidential information that had no relevance to the matters adjudicated in the arbitration. We will examine first the issues presented by appellant's claim of violation of his right to privacy under the California Constitution, article I, section 1.

A Constitutional Right to Privacy

1. Elements of Cause of Action

In 1972, California voters amended article I, section 1, of the state Constitution to include the right of privacy among the "inalienable" rights of "all people." The provision has been repeatedly construed to provide California citizens with privacy protections broader than those recognized by the federal Constitution. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 327-328, 66 Cal.Rptr.2d 210, 940 P.2d 797.) "[T]he amendment is intended to be self-executing, i.e., ... the constitutional provision, in itself, `creates a legal and enforceable right of privacy for every Californian.'" (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222, citations omitted.) Furthermore, "the state privacy right protects against invasions of privacy by private citizens as well as the state." (Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 242, 256 Cal.Rptr. 194; Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1040-1044, 264 Cal.Rptr. 194.)

In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40, 26 Cal. Rptr.2d 834, 865 P.2d 633, our high court established an analytical framework for evaluating a cause of action for invasion of privacy "[A] plaintiff alleging an invasion of privacy in violation of the state...