John B. v. Superior Court

• Decision Date: 03 July 2006
• Docket Number: No. S128248.,S128248.
• Citation: 38 Cal.4th 1177,137 P.3d 153,45 Cal.Rptr.3d 316
• Court: California Supreme Court
• Parties: JOHN B., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Bridget B., Real Party in Interest.

45 Cal.Rptr.3d 316

38 Cal.4th 1177

137 P.3d 153

JOHN B., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Bridget B., Real Party in Interest.

No. S128248.

Supreme Court of California.

July 3, 2006.

Garrard & Davis, Donald A. Garrard, Santa Monica; and Eric S. Multhaup for Petitioner.

No appearance for Respondent.

Grassini & Wrinkle, Maryann P. Gallagher, Los Angeles, and Roland Wrinkle, Woodland Hills, for Real Party in Interest.

BAXTER, J.

[137 P.3d 1181]

This is a sad case. Bridget B., the plaintiff in the underlying action and real party in interest herein, is infected with the human immunodeficiency virus (HIV), the probable causative agent of acquired immune deficiency syndrome (AIDS). So is her husband, petitioner herein and defendant in the underlying action, John B.

Bridget alleges that John became infected with HIV first, as a result of engaging in unprotected sex with multiple men before and during their marriage, and that he then knowingly or negligently transmitted the virus to her. John, who now has full-blown AIDS, alleges in his answer that Bridget infected him and offers as proof a negative HIV test conducted in connection with his application for life insurance on August 17, 2000, six weeks before Bridget discovered she was infected with HIV.

This factual scenario raises a number of interesting questions: What duty does an HIV-positive individual have to avoid transmitting the virus? What level of awareness should be required before a court imposes a duty of care on an HIV-positive individual to avoid transmission of the virus? What responsibility does the victim have to protect himself or herself against possible infection with the virus? And who infected whom with HIV here? However, this case comes to us at an early stage, before any discovery has been conducted. The issue here is simply the extent to which Bridget may inquire into John's medical records and sexual conduct in order to confirm or refute her allegations that John knowingly or negligently infected her with HIV.

The proposed discovery treads on important statutory and constitutional privacy rights. To decide what discovery should be permitted, we must

[137 P.3d 1182]

balance Bridget's right to discover relevant evidence against John's right to privacy. After balancing these interests, the superior court overruled John's objections and authorized broad discovery into John's medical records as well as his sexual history over the past 10 years. The Court of Appeal granted John's petition for writ of mandate to the extent the discovery sought the identities of John's previous sexual partners and admissions concerning his "lifestyle," but otherwise denied relief.

We conclude that discovery should be further limited in light of John's negative HIV test on August 17, 2000, which restricts the window period of possible infection to the six months preceding the negative test. However, Bridget, on remand, may overcome this temporal limitation on discovery by offering some basis to question the accuracy or reliability of John's negative HIV test. We therefore affirm in part and reverse in part the judgment of the Court of Appeal and remand the matter for further proceedings.

I. THE PLEADINGS

Bridget's complaint for damages alleges the following:

Plaintiff Bridget B. and defendant John B. met in September 1998 and began dating shortly thereafter. The couple became engaged in late 1999 and were married in July 2000. During this period, John represented to Bridget that he was healthy, disease-free, and monogamous. Indeed, it was John who insisted that the couple stop using condoms during intercourse. Based on John's representations, Bridget complied with his demand to engage in unprotected sex. In September 2000, however, Bridget began to suffer from exhaustion and high fevers.

On October 1, 2000, Bridget learned that she had tested positive for HIV. She was advised to undergo a second test and to have her husband tested as well. The second test confirmed that Bridget was HIV positive. John, too, was determined to be HIV positive. John's doctor told Bridget that she had "brought the HIV into the marriage." The doctor prescribed medications for John that made his viral load virtually undetectable. Bridget, on the other hand, was not offered treatment; she was informed that she had "had the illness for a long time." Bridget became depressed that she had infected her husband with this deadly disease.

In September 2001, John began telling others that Bridget had infected him with HIV. The next month, after defendant refused to continue his treatment, he became much sicker and developed sores on his face and scalp. Although he was diagnosed with AIDS, he refused all treatments and medications except those that treated the visible signs of the disease.

[137 P.3d 1183]

In November 2001, Bridget began to doubt that she had been the cause of defendant's infection. John responded by asking whether she was "accusing" him of bringing HIV into their lives and advised "it would not be healthy for their marriage to blame him." The following month, however, John admitted to Bridget that he had had sexual relations with men before their marriage. The complaint further alleges that John also engaged in sexual relations with men during their marriage and used the Internet to solicit these relationships.

The first cause of action (intentional infliction of emotional distress) alleges in material part that John knew he was HIV positive before he married Bridget and before he engaged in unprotected sexual relations with her, that he infected her with HIV knowingly and intentionally, and that he then falsely accused her of infecting him. It further alleges that Bridget was unaware that John had been unfaithful prior to and during their marriage, which put her at great risk for HIV, AIDS, syphilis, and other sexually transmitted diseases, and that she would not have engaged in unprotected sexual relations with him had she known of his infidelity.

The second cause of action (negligent infliction of emotional distress) alleges that John knew or had a reasonable belief that he had HIV, that he nonetheless engaged in unprotected sex with Bridget, and that his negligence caused her to become infected with HIV.

The third cause of action (fraud) alleges that John falsely represented that he did not have any communicable diseases, including HIV, AIDS, or syphilis; that Bridget engaged in unprotected sexual relations with John in reliance on those representations; and that John thereby infected her with HIV.

The fourth cause of action (negligence) incorporates the foregoing allegations and alleges that John owed Bridget a duty of care to disclose the fact that he was HIV positive, that he breached this duty, and that he thereby infected her with HIV.

John's answer denied every allegation in the complaint and alleged instead that "[i]f either party transmitted the HIV virus to the other, it was Plaintiff who transmitted the virus to the Defendant." The answer also asserted Bridget's comparative fault as a defense in that she had "intimate sexual relations with Defendant without using condoms or any other form of protection against the HIV virus or other sexually transmitted diseases." In a declaration attached to his motion for summary judgment, John stated that he had been tested for HIV in connection with a life insurance application on August 17, 2000, and was found to be negative. John further alleged that he did not discover he was HIV positive until October 13, 2000.

[137 P.3d 1184]

II. DISCOVERY PROCEEDINGS

As relevant here, Bridget's pretrial discovery included the service of special interrogatories and requests for admission concerning John's sexual history and his awareness of his HIV infection. Bridget also subpoenaed John's medical and employment records. John objected to each and every special interrogatory and request for admission and also filed motions to quash the subpoenas duces tecum. After plaintiff filed motions to compel responses to the interrogatories and requests for admission, the parties stipulated to the appointment of a discovery referee to hear the pending discovery motions and to make nonbinding recommendations. The referee recommended that John's objections be overruled and his motions to quash be denied. The superior court adopted the referee's recommendations.

John filed the instant petition for writ of mandate. The Court of Appeal issued an order to show cause and granted the petition as to four interrogatories and two requests for admission, but otherwise denied relief in a published opinion. Because the issue before us concerns the permissible scope of discovery propounded by Bridget, we describe with particularity the discovery requests in controversy and John's objections to them below.

A. The Special Interrogatories

Bridget served special interrogatories that required John to state (1) the name, address, and telephone number of every man with whom he has had sexual relations in the last 10 years; (2) the date of his first sexual encounter with a man; (3) the date of his last sexual encounter with a man; (4) the name, address, and telephone number of every man with whom he has had unprotected sex in the last 10 years; (5) the date on which he first became aware he was HIV positive; (6) the date on which he first became aware he had AIDS; (7) the date on which he first told Bridget that he had engaged in unprotected sex with men; (8) the name, address, and telephone number of every HIV-positive man with whom he has had unprotected sex; (9) the name, address, and telephone number of every man who has AIDS and with whom he has had unprotected sex; (10) the number of sexual encounters with men he has had in the five years prior to his relationship with Bridget; (11) the date of his last sexual encounter with a man prior to the date of his engagement to Bridget; (12) the date of every...