Susan S. v. Israels

• Decision Date: 18 June 1997
• Docket Number: No. B089932,B089932
• Citation: 55 Cal.App.4th 1290,67 Cal.Rptr.2d 42
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 4682, 97 Daily Journal D.A.R. 7621 SUSAN S., Plaintiff and Appellant, v. Philip D. ISRAELS et al., Defendants and Respondents.

Page 42

67 Cal.Rptr.2d 42

55 Cal.App.4th 1290, 97 Cal. Daily Op. Serv. 4682,

97 Daily Journal D.A.R. 7621

SUSAN S., Plaintiff and Appellant, v. Philip D. ISRAELS et al., Defendants and Respondents.

No. B089932.

Court of Appeal, Second District, Division 7, California.

June 18, 1997.

Review Denied Sept. 24, 1997. ^*

Nicholas G. Demma, Westlake Village, Jolene Larimore, Carpinteria, for Plaintiff and Appellant.

Timothy C. Donahoe, Encino, Schneider, Goldberg, Rohatiner & Yuen, Stacy N. Schnaid, Beverly Hills, for Defendants and Respondents.

Albert J. Menaster, Public Defender (Los Angeles) and John T. Philipsborn, San Francisco, as Amici Curiae on behalf of Defendants and Respondents.

JOHNSON, Associate Justice.

In this case we hold a crime victim has a cause of action for invasion of her constitutional right to privacy against a defense attorney who, without authorization, reads and disseminates the victim's confidential mental health records.

FACTS AND PROCEEDINGS BELOW

The following facts are taken from the complaint and the transcript of defendant Kevin Keables' parole revocation hearing of which we have taken judicial notice. (Code Civ. Proc., § 430.30.) ¹ We assume the truth of the facts alleged in the complaint for purposes of this appeal.

Defendant Philip Israels represented defendant Keables in a criminal proceeding in which Keables was charged with the sexual battery of plaintiff Susan S. In the course of defending Keables, Israels served a subpoena duces tecum for Susan S.'s mental health records on the Harbour, a mental health treatment facility. Harbour mistakenly sent Susan S.'s mental health records directly to Israels who, knowing the private and confidential nature of the documents, read them, transmitted them to the defense psychiatrist and used them in cross-examining Susan S. Israels read, transmitted and used Susan S.'s mental health records in order to intimidate, embarrass and humiliate her. Israels' acts were done with Keables' knowledge and consent. ² As a result of Israels' conduct, Susan S. suffered extreme emotional distress which exacerbated her mental condition. Susan S. seeks damages from Israels and Keables on theories of abuse of process, infliction of emotional distress and invasion of privacy.

The trial court sustained defendants' demurrers to the complaint with leave to amend. Susan S. elected not to amend her complaint and her action was subsequently dismissed on defendants' motion. This appeal is from the judgment of dismissal.

We conclude the complaint, viewed in conjunction with the transcript of the underlying criminal proceeding, states a cause of action for violation of Susan S.'s constitutional right of privacy. (Cal. Const. art. I, § 1.) In all other respects we affirm the judgment of dismissal.

DISCUSSION

I. A DEFENSE ATTORNEY'S UNAUTHORIZED READING AND DISSEMINATION OF A CRIME VICTIM'S CONFIDENTIAL MENTAL HEALTH RECORDS VIOLATES THE VICTIM'S CONSTITUTIONAL RIGHT OF PRIVACY.

In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 20, 26 Cal.Rptr.2d 834, 865 P.2d 633, our Supreme Court held a cause of action exists for violation of the right of privacy under article I, section 1 of the California Constitution. ³ "[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 the defendant constituting a serious invasion of privacy." (Id. at pp. 39-40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

A. Plaintiff Had a Legally Protected Privacy Interest in Her Mental Health Records.

It is undisputed Susan S. had a legally protected privacy interest in her mental health records. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440, 57 Cal.Rptr.2d 46; Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 842, 228 Cal.Rptr. 545 and cases cited therein.)

B. Plaintiff Had a Reasonable Expectation of Privacy in the Circumstances.

"A reasonable expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms." (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) "Various factors such as advance notice, customs, practices, justification, physical settings and the presence of an opportunity to consent may inhibit or diminish reasonable expectations of privacy." (Pettus, supra, 49 Cal.App.4th at p. 441, 57 Cal.Rptr.2d 46.)

Susan S. did not lose her right to privacy in her mental health records because she charged Keables with sexual battery. Rather, Keables' entitlement to inspect Susan S.'s records required a showing of good cause for their discovery and a balancing of Keables' Sixth Amendment right of cross-examination against Susan S.'s right of privacy in her medical records. (People v. Reber (1986) 177 Cal.App.3d 523, 531-532, 223 Cal.Rptr. 139.) As the court explained in Reber, "Notwithstanding the adequacy of defendants' showing of good cause, their entitlement to discovery was not absolute as to those matters in the records which were privileged. The privilege may be overriden [sic] only if and to the extent necessary to ensure defendants' constitutional rights [sic] of confrontation." (177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139.)

In Reber, the court established a procedure to be followed once the defendant shows good cause for discovery of a witness's mental health records. The trial court should (1) obtain the records and review them in camera; (2) weigh the constitutional right of confrontation against the witness's right to privacy; (3) determine which if any records are essential to the defendant's right of confrontation; and (4) create an adequate record for review. (177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139.) None of this happened in the present case. (Id. ) Here, Israels received Susan S.'s records directly from the mental health facility and, with Keables' approval and consent, read them and passed them on to the defense psychiatrist. As we discuss more fully below, no court ever determined Keables had good cause to discover Susan S.'s mental health records and no court ever balanced Keables' need for the information contained in the records with Susan S.'s right to privacy.

Apart from the procedure set out in Reber, the subpoena duces tecum procedure itself implicitly recognizes an expectation of privacy on the part of the person whose records are subpoenaed. (People v. Blair (1979) 25 Cal.3d 640, 651, 159 Cal.Rptr. 818, 602 P.2d 738.) The subpoena duces tecum in a criminal case requires the witness to appear before a judge and to bring the described books, papers or documents. (Pen.Code, § 1327.) The Judicial Council subpoena duces tecum form allows the subpoenaing party to offer the witness the option of not appearing before the judge in person. To exercise this option, the witness must place a copy of the records in a sealed envelope, place that envelope inside another envelope and mail it to the clerk of the court, not to the subpoenaing party. The reason the records are produced to the court instead of to the attorney for the subpoenaing party was explained in Blair: "The issuance of a subpoena duces tecum ... is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them." (25 Cal.3d at p. 651, 159 Cal.Rptr. 818, 602 P.2d 738; citation and fn. omitted.)

Relying on Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43-44, 32 Cal.Rptr.2d 200, 876 P.2d 999, defendants argue Susan S. could not have a reasonable expectation of privacy in her mental health records as a matter of law because those records "would have been inevitably discovered during the course of the ... litigation." The present case, however, is factually and legally distinguishable from Heller. Moreover, experience teaches the discovery of plaintiff's medical records in the course of the underlying litigation was not "inevitable."

In Heller, the plaintiff sued Dr. Yamaguchi, her treating physician, for revealing her medical records and information about her medical condition to Norcal, the insurance carrier which was defending another physician, Geis, who was being sued by Heller for malpractice related to that medical condition. The Supreme Court held Heller failed to state a cause of action against Yamaguchi for violation of her state constitutional right to privacy. The court reasoned:

"By placing her physical condition in issue in the Geis litigation, plaintiff's expectation of privacy regarding that condition was substantially lowered by the very nature of the action.... [T]he information that Norcal discovered in the conversations between Dr. Yamaguchi and Norcal would have been inevitably discovered during the course of the Geis litigation because Dr. Yamaguchi was scheduled as an expert witness for the defense. Any expectation on plaintiff's part that such information would remain confidential was thus unreasonable." (Fn.omitted.)

Unlike the plaintiff in Heller, whose expectation of privacy in her medical records was "substantially lowered" by placing her medical condition in issue, Susan S. did not place her mental health in issue by charging Keables with sexual battery. Furthermore, although a witness's credibility is always in issue, this does not mean the defense is entitled to rummage through the medical records of every witness in a criminal prosecution looking for evidence to impeach the witness's credibility. (People v. Pack (1988) 201 Cal.App.3d 679, 686, 248 Cal.Rptr. 240.)

Moreover, there is nothing "inevitable" about the discovery of a rape victim's mental health records. Such discovery requires a careful balancing of the defendant's Sixth Amendment right to...