Smith v. Superior Court

• Decision Date: 17 April 1981
• Citation: 118 Cal.App.3d 136,173 Cal.Rptr. 145
• Court: California Court of Appeals Court of Appeals
• Parties: Gerald Walker SMITH, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA, IN AND FOR the COUNTY OF SAN MATEO, Respondent, Linda R. SMITH, Real Party in Interest. Civ. 50983.

Page 145

173 Cal.Rptr. 145

118 Cal.App.3d 136

Gerald Walker SMITH, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA, IN AND FOR the COUNTY OF SAN MATEO, Respondent, Linda R. SMITH, Real Party in Interest.

Civ. 50983.

Court of Appeal, First District, Division 2, California.

April 17, 1981.

Hearing Denied June 10, 1981.

Charles A. Pinkham, Jr., Burlingame, for petitioner.

Jack K. Berman and Robert I. Kligman, Attorneys at Law, San Francisco, for real party in interest.

SMITH, Associate Justice.

Gerald Smith, the petitioner in a marital dissolution action and a licensed psychologist, seeks a writ of mandate or prohibition to restrain respondent court from enforcing a discovery order requiring him to produce the names, addresses and telephone numbers of certain patients and former patients. This court issued an alternative writ at the direction of the Supreme Court. ¹

The sole issue presented is whether the discovery order violates the psychotherapist-patient privilege (Evid.Code, § 1010 et seq.).

In the dissolution action, real party in interest, petitioner's wife, served the following interrogatory upon petitioner: "With reference to each person whom you have seen professionally since January 1, 1978, list the following: (a) Name of patient; (b) Address of patient; (c) Telephone number of patient; (d) How much money have you received from that patient since January 1, 1978, through May 31, 1979?"

When petitioner objected to this interrogatory on the basis of the psychotherapist-patient privilege, real party in interest filed a motion to compel an answer. In his declaration in opposition to real party in interest's motion, petitioner stated: "Much of my practice concerns consultations about family and marital matters, sexual matters including extramarital affairs and incest and other similar topics. The very fact that a person consults me constitutes a privileged communication. People would not consult me if they knew that the fact of their consulting with me might be disclosed to anyone. Many of my patients consult me without the knowledge of their spouse or mate, the problems with whom (often very intimate and confidential problems) are the subject of the consultation.... I have already submitted income tax returns indeed, joint income tax returns in which Respondent (real party in interest) has participated ... she can if she wishes review bank deposit records which accurately reflect the money I received from my practice. I keep no billing records other than bank deposit records which are reflected in bank statements. I have no objection to disclosing this information."

At the hearing on the motion, counsel for real party in interest stated that the information sought was relevant to the issue of spousal support. Counsel alleged that, while petitioner's bank deposit slips showed yearly deposits of approximately $16,000, appointment books in real party in interest's possession revealed an income of approximately $60,000 per year and that "monies were deposited in safety deposit boxes during the whole course of the marriage."

The trial court urged the parties to work between themselves and find a compromise that would both preserve the patients' anonymity and secure for the wife more detailed information regarding petitioner's income. After the parties failed to reach an agreement, respondent court, in its memorandum of decision, ruled: "Respondent's motion to compel answers to interrogatory # 173 is granted. The Court specifically finds no psychotherapist-patient privilege exists insofar as patient's name, address, telephone number and amount of money received from each such patient. The Court notes that the offer to furnish copies of bank deposits and tax returns is a totally inadequate response where petitioner husband acknowledges he does not bill and has no other financial records."

Evidence Code section 1014 ² in pertinent part provides: "Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the psychotherapist at the time of the confidential communication, ..." Section 1015 provides: "The psychotherapist who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 1014." Thus, under the conditions set out in section 1015, petitioner must assert the privilege of his clients to prevent disclosure of privileged communications.

In its 1965 comment to section 1014, the Legislature recognized that the unique nature of the psychotherapist-patient relationship requires a greater degree of protection than that afforded the physician-patient relationship. The Legislative Committee Comment states: "A broad privilege should apply to both psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient's life. Research on mental or emotional problems requires similar disclosure. Unless a patient or research subject is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends."

The Legislative Committee Comment continues: "The Law Revision Commission has received several reliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured under existing law. Many of these persons are seriously disturbed and constitute threats to other persons in the community. Accordingly, this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Although it is recognized that the granting of the privilege may operate in particular cases to withhold relevant information, the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected." (See also In re Lifschutz (1970) 2 Cal.3d 415, 431, 434-435, fn. 20, 85 Cal.Rptr. 829, 467 P.2d 557.)

This statutory privilege is to be construed in favor of the patient (id. at p. 437, 85 Cal.Rptr. 829, 467 P.2d 557), and, indeed, is in part based upon the constitutional right to privacy (id. at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557).

Since, as the parties properly concede, information sought by the discovery order does not fall within any of the exceptions to the privilege (see §§ 912, 1016-1028), the sole issue in this case is whether it may be defined as a confidential communication protected by the privilege.

A confidential communication is...