Mansell v. Otto
| Decision Date | 29 April 2003 |
| Docket Number | No. B155418.,B155418. |
| Citation | 108 Cal.App.4th 265,133 Cal.Rptr.2d 276 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Katherine MANSELL, Plaintiff and Appellant, v. Douglas W. OTTO et al., Defendants and Respondents. |
Greines, Martin, Stein & Richland and Kent L. Richland, Los Angeles, for Defendant and Respondent, Douglas W. Otto.
Waxier Carner Weinreb Brodsky, Barry Z. Brodsky, Jeffery E. Stockley and Scott J. Quan for Defendant and Respondent, Armand Arabian.
Law Offices of Edward P. George, Jr., Edward P. George, Jr. and Timothy L. O'Reilly, Long Beach, for Defendant and Respondent, Edward P. George, Jr.
Quinlivan & Kaniewski, Patrick C. Quinlivan and Martin S. McMahan, South Coast Metro, for Defendant and Respondent, Jeffrey Carlton.
A crime victim sued the alleged perpetrator and his criminal defense counsel for invasion of her constitutional right of privacy, based on the unauthorized reading of her mental health records by the defendants and other members of the defense team. The trial court sustained the defendants' demurrer to the plaintiffs complaint without leave to amend and dismissed the action. The court found the plaintiffs claim for invasion of her constitutional right of privacy was barred as a matter of law by the litigation privilege. We find the litigation privilege inapplicable to the noncommunicative acts alleged in the complaint. We nevertheless find plaintiff cannot state a claim for liability against defendants because they obtained her medical and psychiatric records through the court's normal processes, including a court order. Accordingly, we affirm the judgment of dismissal.
The following facts are taken from the complaint and the transcript of the hearing on the prosecution's motion for a protective order in the underlying criminal case.1
Respondent Jeffrey Manning Carlton was charged in two criminal proceedings alleging narcotics violations as well as assault and battery charges against appellant Katherine Mansell.2 Carlton retained respondents Douglas W. Otto, Edward P. George, Jr. and Armand Arabian, to represent him in the criminal proceedings.3
In preparing a defense to the criminal assault and battery charge respondents sought appellant's records from the hospital where she sought treatment. The complaint alleges respondents The subpoena requested "[a]ny and all medical and psychiatric records of doctors or nurses or other medical professionals; records of all hospitalizations, results of any laboratory tests, x-rays, CAT scans, MRI screenings, or other diagnostic procedures; records of any medications prescribed and/or administered; records of diagnosis and treatment of any type performed and/or recommended; and records of all visits made to the emergency room and treatment received there for KATHERINE MIDTBO [aka Mansell] for the period of 1976 to the present."
The complaint states the subpoena directed the custodian of records for the Veterans Administration Hospital to "deliver [the requested records] to Department 6 of the Long Beach Municipal Court...."
The hospital informed respondents records responsive to the subpoena could only be produced by court order.
Thereafter respondents applied ex parte for a court order directing release of the records sought in the subpoena. The ex parte application, and counsel's declaration in requesting the court order, mentioned only medical records. However, counsel's ex parte motion and declaration were apparently submitted with the original application for the subpoena duces tecum requesting both medical and psychiatric records. Judge Richard Lyman signed the order directing release of appellant's records. The order states in part: "GOOD CAUSE APPEARING THEREOF, IT IS HEREBY ORDERED that the Custodian of Records for the Veterans Administration Hospital in Long Beach, California, produce the medical records of Katherine Mansell (DOB 2/12/58) aka Katherine Midtbo as described in the attached subpoena duces tecum served herewith
On receipt of the court order and subpoena the hospital sent appellant's records under seal to the court as directed.
From the allegations in appellant's complaint, it appears the court released the records to the prosecution, and that the prosecution in turn made copies of the records and gave them to the defense. Appellant's complaint alleges:
Respondents read appellant's medical and psychiatric records and disseminated them to other members of the defense team.
A few weeks later the prosecution sought a protective order directing all appellant's records be returned to the court. Judge William T. Garner presided at the hearing. After extensive argument, the court treated the motion as a belated motion to quash, granted the motion, and ordered all records and derivative materials be returned. Specifically, the court ordered
Over the prosecutor's objection the court also expressly found respondents returned all documents in a timely fashion and further stated it was granting the motion to quash, but not because it believed respondents had "duped" Judge Lyman into issuing the court order for the records.
Appellant filed suit against respondents. Her complaint alleges a claim for invasion of the constitutional right of privacy under the California Constitution, article I, section 1, based on respondents and other members of the defense team reading her confidential mental health records.4 Respondents demurred to the complaint, arguing they were immune from liability under the litigation privilege of Civil Code section 47, subdivision (b).
The trial court found the litigation privilege applied and sustained respondents' demurrer without leave to amend. Thereafter, the court entered judgment dismissing appellant's complaint. This appeal followed.
I. STANDARD OF REVIEW.
In reviewing an order sustaining a demurrer without leave to amend, we independently review the complaint to determine whether the facts alleged state a cause of action under any possible legal theory.5 In doing so, we give the complaint a reasonable interpretation, "treat[ing] the demurrer as admitting all material facts properly pleaded."6
II. THE FACTS RESPONDENTS RECEIVED APPELLANT'S COFIDENTIAL MENTAL HEALTH RECORDS AS A RESULT OF A COURT ORDER, AND ONLY AFTER RELEASE BY THE COURT, COMBINE TO PRECLUDE POTENTIAL LIABILITY FOR READING AND DISSEMINAING THOSE RECORDS.
"[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy."7
In this case, respondents do not contest appellant's complaint states a claim for violation of her constitutional right of privacy. Evidence Code section 1014 provides a statutory privilege of privacy which provides a patient the "privilege to refuse to disclose, and to prevent another from disclosing a confidential communication" between herself and her psychotherapist. This psychotherapist/patient privilege is also an aspect of the constitutional right to privacy.8 Respondents claim the litigation privilege nevertheless immunizes them from liability for the alleged violation of her constitutional right of privacy.
The so-called litigation privilege found in Civil Code section 47, subdivision (b)(2) makes privileged a "publication or broadcast" made in any "judicial proceeding." As the Supreme Court explained, the litigation privilege of Civil Code section 47 "is now held applicable to any communication, whether or not it amounts to a publication, and all torts except malicious prosecution."9 The privilege applies to any publication "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action."10
Respondents' act of reading appellant's confidential psychiatric records satisfies these elements in only the most general sense: The act of reading her confidential records was related to a judicial proceeding, taken by the defense team of a litigant to achieve the object of preparing a defense to the charge in the pending criminal prosecution. However, we note nowhere in the complaint does appellant allege any of the information contained in those reports was testified to, or otherwise used in any judicial proceeding. Instead, the allegations of the complaint and judicially noticed facts reveal appellant instead complains several members of the defense team read her confidential psychiatric records. Because these acts describe noncommunicative conduct, it would appear the litigation privilege is not technically applicable. Indeed, in Susan S....
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