Ombudsman Services v. Superior Court

• Decision Date: 05 September 2007
• Docket Number: No. C054737.,C054737.
• Court: California Court of Appeals Court of Appeals
• Parties: OMBUDSMAN SERVICES OF NORTHERN CALIFORNIA, Petitioner, v. The SUPERIOR COURT of Placer County, Respondent; Ann Coleman et al., Real Parties in Interest.

65 Cal.Rptr.3d 456

154 Cal.App.4th 1233

OMBUDSMAN SERVICES OF NORTHERN CALIFORNIA, Petitioner, v. The SUPERIOR COURT of Placer County, Respondent Ann Coleman et al., Real Parties in Interest.

No. C054737.

Court of Appeal, Third District.

September 5, 2007.

Legal Services of Northern California, Brian Patrick Lawlor, Sacramento, and Colin Andrew Bailey, for Petitioner.

No appearance for Respondent.

Law Offices of David J. Bennion and David J. Bennion, San Jose, for Real Parties in Interest.

CANTIL-SAKAUYE, J.

This writ proceeding challenges an order of the trial court requiring Ombudsman Services of Northern California (OSNC), an authorized representative of the Office of the State Long-Term Care Ombudsman and a non-party to the underlying litigation, to provide the litigants with all of its records relating to a specific long-term care facility over a specified period of time. We conclude the trial court erred in requiring the production of such investigatory records, even with the redaction ordered by the court. We will grant OSNC's petition for extraordinary relief and issue a writ of mandate requiring the trial court to vacate the portion of its order requiring OSNC to provide any records beyond those regarding Lavern Staples made by Staples, his representatives, or family.

BACKGROUND

Ann Coleman, as the legal representative of her late father Lavern Kenneth Staples's estate (plaintiff), sued Foothill Oaks Care Center, Horizon West, Inc., and Dr. William R. Nesbitt, III (defendants) for elder abuse, wrongful death, unfair business practices, fraudulent business practices, and for fraud. Upon stipulation of plaintiff and defendants, a court order was issued requiring OSNC to "produce any and all records of complaints and actions taken pertaining to Foothill Oaks Care Center between May 20, 2005 and January 31, 2006." OSNC first received notice of the order when a copy was faxed to it by plaintiff a few days after entry of the order by the trial court. When OSNC could not get all parties to the litigation to stipulate to set aside the order, OSNC filed a motion in the trial court seeking to set aside the stipulated order based on lack of notice and requesting an affirmative protective order prohibiting the parties from conducting any further discovery of OSNC's privileged and confidential information.

OSNC asserted a protective order was necessary as its records were privileged and confidential under Welfare and Institutions Code sections 9715 and 9725, title 42 of the United States Code section 3058d, subdivision (a)(6)(C)(iii), Evidence Code section 1040, subdivision (b), and the California right to privacy contained in article 1, section 1 of the California Constitution. OSNC disputed plaintiff's claim that the records should be disclosed based on plaintiffs authorization under Welfare and Institutions Code section 9725 (hereafter section 9725). According to OSNC, section 9725 only permits limited discovery of the personal information of a living individual patient or resident upon the authorization of that same patient or his/her legal representative. It did not extend to disclosure of any information regarding other people contained in OSNC's files. OSNC also argued there was no compelling necessity that warranted overriding the privilege and confidentiality of its records.

Plaintiff alone filed opposition to OSNC's motion. Plaintiff argued California does not recognize an ombudsman privilege, that the privileges contained in the Evidence Code are exclusive, and that the plain meaning of section 9725 provides for disclosure based on her authorization and upon the court order issued on stipulation of all parties to the underlying action. Plaintiff argued disclosure was consistent with the federal law cited by OSNC. Plaintiff contended the right to privacy under the California Constitution is conditional and could be sufficiently protected by obliteration of the names of confidential sources.

The trial court granted the motion by OSNC to set aside the stipulated order based on due process grounds, but granted only in part OSNC's motion for a protective order regarding the discovery sought by plaintiff. The trial court ordered OSNC to "provide all records about the decedent [Lavern Staples] made by the decedent or his representatives/family. The Ombudsman shall also provide all records pertaining to Foothill Oaks Care Center between May 20, 2005 and January 31, 2006, with the names of all persons involved redacted as well as any other private information that would reveal the identity of the long-term care resident/patient or his/her family or representatives." The trial court found "that redacting such information shall protect the interests in confidentiality."

OSNC filed a petition for writ of mandate and/or prohibition with this court seeking a peremptory writ directing the trial court to set aside and vacate the portion of its ruling and order requiring OSNC to provide all of its records pertaining to the Foothill Oaks Care Center for the specified time period. We issued an alternative writ of mandate and stayed all further discovery proceedings involving OSNC pending further order of this court. After this matter was fully briefed and oral argument scheduled, we received notice that the underlying litigation had settled. We requested and received supplemental letter briefs addressing the effect of such settlement. We conclude, due to the conditional nature of the settlement, the case is not moot. Moreover, the issues here involve an important matter of continuing public interest that is likely to recur. In such cases, we have discretion to retain jurisdiction and decide the merits. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8, 31 Cal.Rptr.2d 776, 875 P.2d 1279; Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4, 27 Cal.Rptr.2d 165, 866 P.2d 92; Californians for Fair Representation—No on 77 v. Superior Court (2006) 138 Cal.App.4th 15, 22-23, 41 Cal.Rptr.3d 148; Glenfed Development Corp. v. Superior Court (1997) 53 Cal. App.4th 1113, 1116, fn. 1, 62 Cal.Rptr.2d 195.) We now issue the peremptory writ requested.

DISCUSSION

I. Writ Relief Is Appropriate

"Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to a privilege, because `once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.' [Citation.]" (Union Bank of California v. Superior Court (2005) 130 Cal.App.4th 378, 388, 29 Cal.Rptr.3d 894; accord Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1013-1014, 135 Cal. Rptr.2d 532; see Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330, 87 Cal.Rptr.2d 813.) Writ review is particularly appropriate here to protect the confidential records of third persons who are not parties to the underlying litigation below, who have had no notice of the ordered disclosure, and who, as a result, have had no opportunity to object. OSNC properly asserted the privacy rights of those third persons affected by the discovery order of the trial court. (Doe 2 v. Superior Court (2005) 132 Cal. App.4th 1504, 1520, 34 Cal.Rptr.3d 458; Denari v. Superior Court (1989) 215 Cal. App.3d 1488, 1498-1499, 264 Cal.Rptr. 261; CEB, Cal. Civil Discovery Practice (4th ed.2006) § 3.156, pp. 234-235.)

We review discovery rulings under the abuse of discretion standard. (Union Bank of California v. Superior Court, supra, 130 Cal.App.4th at p. 388, 29 Cal. Rptr.3d 894.) "`Where there is a basis for the trial court's ruling and the evidence supports it, a reviewing court will not substitute its opinion for that of the trial court. [Citation.]' [Citation.] `The trial court's determination will be set aside only when it has been demonstrated that there was "no legal justification" for the order granting or denying the discovery in question.' [Citations.]" (Ibid.)

As we will discuss, we conclude writ relief is appropriate and necessary to correct the trial court's abuse of discretion in ordering disclosure of privileged and confidential OSNC records beyond OSNC's records about Lavern Staples made by Staples, his representatives or family.

II. OSNC's Role As Ombudsman

To place our discussion in context, we begin with a discussion of OSNC's role as an authorized representative of the Office of the State Long-Term Care Ombudsman.

The federal Older Americans Act (42 U.S.C. § 3001 et seq.) (the federal law) provides federal funding for states to carry out vulnerable elder rights protection activities. (42 U.S.C. § 3058.) To receive federal funding for such activities, states must comply with a variety of statutory requirements, including the establishment and operation of an Office of the State Long-Term Care Ombudsman. (42 U.S.C. § 3058g(a)(l).) Under the federal law, such state" ombudsman may designate a local ombudsman entity to provide services to protect the health, safety, welfare and rights of long-term care residents and to ensure residents have regular and timely access to representatives of the ombudsman program and timely responses to complaints and requests for assistance. (42 U.S.C. § 3058g(a)(5)(B)(i) & (ii).) The local ombudsman must "identify, investigate, and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents." (42 U.S.C. § 3058g(a)(5)(B)(iii).) The duties of the local ombudsman also include representing the interests of residents before government agencies, as well as reviewing and commenting on, if necessary, any laws, regulations, government policies and actions pertaining to the rights and well-being of residents. (42 U.S.C. § 3058g(a)(5)(B)(iv) & (v).)

California has established a long-term care ombudsman program to comply with the...