Schwartz v. Thiele

• Citation: 242 Cal.App.2d 799,51 Cal.Rptr. 767
• Court: California Court of Appeals
• Decision Date: 14 June 1966
• Parties: Judith SCHWARTZ, Plaintiff and Appellant, v. David A. THIELE, Defendant and Respondent. Civ. 28538.

Page 767

51 Cal.Rptr. 767

242 Cal.App.2d 799

Judith SCHWARTZ, Plaintiff and Appellant, v. David A. THIELE, Defendant and Respondent.

Civ. 28538.

District Court of Appeal, Second District,

Division 3, California.

June 14, 1966.

Judith Schwartz, in pro. per.

Kirtland & Packard and Judith O. Hollinger, Los Angeles, for respondent.

FRAMPTON, Justice pro tem. ^*

The appellant, Judith Schwartz, is the plaintiff in an action filed in the Superior Court of Los Angeles County, wherein she seeks damages against the defendant, David A. Thiele, the respondent here, for damages for the alleged invasion of her privacy.

The third amended complaint sets forth the following factual background as the basis of her right to recovery. It is alleged in substance that Thiele was and still is a physician and surgeon duly licensed to practice his profession in the State of California and that he maintains his office for the practice of his profession in Los Angeles County; that Schwartz was, at all times mentioned in the complaint, a resident of Los Angeles County and that her cause of action arose in that county.

The third amended complaint further alleges that the defendant Thiele was and is a stranger to the plaintiff and that at no time, past or present, has the plaintiff ever engaged the defendant or consulted with him in his capacity as a physician and surgeon or in any other capacity or at all and that the plaintiff has never been mentally ill.

The third amended complaint further alleges that at or about the hour of 9:30 o'clock on the morning of September 7, 1962, while the plaintiff and her sister, after having had breakfast at a restaurant in the City of Los Angeles, were walking to her automobile which was parked in a parking area maintained by the restaurant, the defendant, a total stranger to the plaintiff, without cause whatever on the part of plaintiff, and without her consent, purported to make an examination of plaintiff as to her mental illness. That the time consumed in the incident at the parking area did not exceed three minutes in duration, including the time it took the plaintiff to call her attorney by telephone, after which call she obtained the name of the defendant.

The third amended complaint further alleges that on September 7, 1962, without the consent of the plaintiff, the defendant, acting in his capacity as a licensed physician and surgeon and with the intent to gain a profit thereby, wrote a letter, directed to the Psychiatric Department of the Superior Court, stating in substance that he had examined the plaintiff and that in his opinion she was mentally ill and that because of such mental illness she was likely to injure herself or others if not immediately hospitalized or detained. That on or about September 12, 1962, the defendant caused the letter to be delivered to the office of the Counselor in Mental Health of the Psychiatric Department of the Superior Court of Los Angeles County (see §§ 5025 to 5030, Welfare & Institutions Code), which letter became a part of the records of said office.

It further appears from the allegations of the third amended complaint that no verified petition was ever filed wherein it was alleged that the plaintiff was a mentally ill person (see former §§ 5047 to 5049, Welfare and Institutions Code, now 5551--5553), but notwithstanding this, after the filing of said letter in the office of the Counselor in Mental Health and on or about September 12, 1962, a judge of the superior court signed an order, under the provisions of section 1871 of the Code of Civil Procedure, ¹ appointing a medical doctor to examine the plaintiff as to her mental health, and that thereafter said medical doctor attempted, through plaintiff's attorney, to arrange an appointment for the purpose of examining the plaintiff as to her mental health. That plaintiff was never examined by the court appointed doctor. However immediately upon learning of the attempt of the court appointed doctor to examine her as to her mental health and upon learning that the defendant had caused the letter dated September 7, 1962, to be filed in the records of the office of the Counselor in Mental Health, the plaintiff engaged her own medical doctor to and he did examine her and upon such examination he found that she was not a mentally ill person. That her doctor, on September 19, 1962, submitted his written report of his examination and findings to the Counselor in Mental Health and thereupon all of the proceedings against her were dismissed.

Plaintiff alleges that by reason of the foregoing acts the plaintiff's right of privacy has been invaded by the defendant thereby causing her great mental pain and physical suffering, humiliation, annoyance and mortification, and has tended to expose the plaintiff to public ridicule and disgrace and that by reason thereof she has been damaged in the sum of $100,000.

A demurrer to the third amended complaint on the ground that the complaint fails to state a cause of action was sustained without leave to amend, and thereafter the action was dismissed pursuant to the provisions of subdivision 3 of section 581 of the Code of Civil Procedure. Such order of dismissal constitutes a final judgment (Code Civ.Proc., § 581d). The appeal is from this judgment.

Plaintiff based her case in the trial court, as she does here, solely upon the theory that upon the facts pleaded in her third amended complaint she stated a cause of action for the invasion of her right of privacy.

According to the pleadings, the communication caused to be delivered to the office of the Counselor in Mental Health was a letter signed by the defendant in which he expressed the opinion that the plaintiff was mentally ill and by reason of such illness is likely to injure herself or others if not immediately hospitalized or detained. This letter was not in the form of a verified petition, the defendant was not a relative or a friend of the plaintiff nor was he her attending physician, neither was he a physician attached to a public hospital or institution in which the plaintiff was a patient. (Welfare and Institutions Code, former § 5047 now § 5551.) Any person, however, may file in the superior court a verified petition alleging that there is in the county a person who is mentally ill and in need of supervision, care or treatment, and asking that examination be made of the mental health of the person, and when no relative, friend or other person can be found in the county who is able and willing to make and file such a petition then any peace officer, probation officer, physician attending the patient, physician attached to a public hospital or institution if the person is a patient therein, or public guardian may make and file the petition. (Welfare and Institutions Code, § 5551.) '* * * When a petition is filed by any such person, neither the person making or filing the petition, nor his superiors, nor the department, hospital, or institution to which he is attached nor any of its employees, shall be rendered liable thereby either civilly or criminally if there was probable cause for the making and filing of said petition.' (Welfare and Institutions Code, § 5551.)

Every counselor, assistant counselor, and deputy counselor in mental health is a peace officer and a probation officer within the meaning of those terms as used in section 5551 of the Welfare and Institutions Code. (Welfare and Institutions Code, §§ 5029, 5030.)

According to the allegations of the third amended complaint, after the letter above referred to was received by the Counselor in Mental Health, he took certain proceedings designed to ascertain the condition of plaintiff's mental health and in connection with such proceedings an order was signed by a judge of the superior court, under the provisions of section 1871 of the Code of Civil Procedure, appointing a...