HELLER v. NORCAL MUTUAL INSURANCE COMPANY

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Court of Appeal, Fifth District, California.

Doris HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents.

Doris HELLER, Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent; NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest.

Nos. F015875, F016047.

Decided: July 13, 1993

Roger K. Vehrs,Tritt & Tritt and James F. Tritt, Fresno, for plaintiff, appellant and petitioner. Diehl, Steinheimer, Riggio, Haydel & Mordaunt, M. Max Steinheimer, Bryan D. Smith, Joseph H. Fagundes, Stockton, Anderson, Galloway & Lucchese, G. Patrick Galloway, Karen A. Sparks, Walnut Creek, Diepenbrock, Wulff, Plant & Hannigan, Dennis M. Campos, Sean O. Sheridan and John R. Haluck, Sacramento, for defendants, respondents and real parties in interest. No appearance, for respondent Superior Court of Fresno County.

OPINION

Part I

INTRODUCTION

While the parties have raised various procedural issues, we need not reach them in light of our resolution of the substantive issues concerning the sufficiency of the allegations of the second through twelfth causes of action of the fourth amended complaint.   Plaintiff Doris Heller names as defendants in her fourth amended complaint Norcal Mutual Insurance Company (Norcal), Kent Yamaguchi, M.D. (Yamaguchi), Herbert W. Boro, M.D. (Boro), Valley Plastic Surgeons Medical Group, Inc. (VPSMG), and Central California Faculty Medical Group, Inc. (CCFMG).

Plaintiff filed a complaint, a first amended complaint, a second amended complaint, and a third amended complaint, all of which were the subject of various demurrers, motions for judgment on the pleadings, and other procedural maneuvers.   She filed her fourth amended complaint following the court's order allowing her to amend.   All defendants demurred to various allegations of the fourth amended complaint, moved to strike portions of that complaint, and sought judgment on the pleadings on certain causes of action.   Ultimately, the court sustained without leave to amend the demurrers of all defendants to all causes of action except the first cause of action against Yamaguchi for negligence, which Yamaguchi did not attack by demurrer.   One basis for sustaining the demurrers was the privilege provided by Civil Code 1 section 47, subdivision 2.2  Following the orders sustaining the demurrers, the court entered judgments of dismissal in favor of defendants Norcal, Boro, VPSMG and CCFMG, from which plaintiff appeals.   In addition, plaintiff seeks a writ of mandate compelling the trial court to set aside its order sustaining the demurrers of Yamaguchi without leave to amend.   We ordered the actions consolidated.

Part II

THE ALLEGATIONS

The fourth amended complaint sets out general allegations which we recite at some length, with emphasis on certain portions important to our discussion:

“․ On or about June 9, 1987, MS. HELLER, a left handed bookkeeper, was admitted to Sierra Hospital for the removal of a bone spur from her left hand.   Shortly thereafter, MS. HELLER developed a postoperative staphylococcal infection, which was diagnosed and negligently treated by DR. GEIS, M.D.

“․ On or about July 4, 1987, MS. HELLER was admitted to Sierra Hospital and on July 7, 1987, the left third digit was amputated at the mid-proximal phalanx.   Said amputation was performed by DR. YAMAGUCHI and DR. GEIS, and it was on or about that time that DR. YAMAGUCHI began to provide medical care and treatment for MS. HELLER.

“․ On or about September 4, 1987, MS. HELLER was again admitted to Sierra Hospital and the entire left third digit was amputated.   Said amputation was performed by DR. YAMAGUCHI and DR. GEIS.

“․ At a time unknown to MS. HELLER but shortly after the second amputation, she developed reflex sympathetic dystrophy.   On or about September 21, 1987, DR. YAMAGUCHI started to treat MS. HELLER for said dystrophy․

“․ On or about March 15, 1988, ․ DR. YAMAGUCHI excised neuromas from the radial and ulmar digital nerves of the third digit.

“․ Throughout the entire post-operative care and treatment of MS. HELLER, representations were made to her by DR. YAMAGUCHI that there was nothing further that could be done for her and that she would have to live with the pain, keep her hand elevated and use a pressurized glove the rest of her life.   MS. HELLER placed great trust and reliance on his representations, as he held himself out to be a specialist.

“․ On or about June 9, 1988, MS. HELLER commenced suit against DR. GEIS.   On or about January 12, 1989, during the deposition of DR. YAMAGUCHI, it was revealed to MS. HELLER'S attorney that, NORCAL MUTUAL INSURANCE COMPANY (DR. GEIS' insurer), by and through its managerial employees, secretly interviewed DR. YAMAGUCHI on several occasions in late 1988 and early 1989.  [Heller] ․ believes that there were other contacts and that on all such occasions, Defendants, NORCAL MUTUAL INSURANCE COMPANY and DR. YAMAGUCHI, conspired and agreed to obtain and release private intimate, personal, financial, and confidential medical information and records without the consent or knowledge of MS. HELLER or her attorney.   Said records and information was [sic] obtained and provided to NORCAL in order to obtain an economic advantage over MS. HELLER in her suit against DR. GEIS;  and, further, to benefit all of the other Defendants in their insurance premiums and to, additionally, benefit them financially.

“․ Plaintiff is informed and believes and thereon alleges that from June 15, 1988 and continuing through January 12, 1989, DR. YAMAGUCHI and DR. BORRO [sic] conspired with NORCAL MUTUAL INSURANCE COMPANY in order to benefit DR. GEIS and NORCAL MUTUAL INSURANCE COMPANY in lowering the damage award of their patient, DORIS HELLER.   Initially, DR. YAMAGUCHI and DR. BORRO [sic ] agreed to meet secretly with NORCAL MUTUAL INSURANCE COMPANY employees and provide them with information regarding the Plaintiff's current physical condition and their prognosis for her future medical course and treatment.   After said information was provided, NORCAL MUTUAL INSURANCE COMPANY contacted DR. YAMAGUCHI by and through their authorized agent and requested that he testify falsely that the treatment by DR. GEIS was within the standard of care and, as such, the Plaintiff would then not have a lawful claim for damages.   DR. YAMAGUCHI and NORCAL MUTUAL INSURANCE COMPANY then and there conspired and agreed amongst themselves to use a tailored set of medical records, from which the doctor could conclude that the treatment plan of DR. GEIS was within the standard of care.   In truth and fact, DR. YAMAGUCHI and NORCAL were aware of the fact that the medical records contained false, fraudulent and misleading information and that that information would be used to support his false testimony that DR. GEIS' treatment was within the standard of care in this community.   Further, DR. YAMAGUCHI agreed to use his position as Plaintiff's treating physician to testify as an expert witness for DR. GEIS against the Plaintiff at deposition and trial, with the intent of causing her to drop or reduce her claim.   All of said actions were done against the medical interest of MS. HELLER and were done to gain a wrongful advantage for NORCAL MUTUAL INSURANCE COMPANY, DR. GEIS, DR. YAMAGUCHI, DR. BORRO [sic ], CCFMG and VALLEY PLASTIC SURGEONS MEDICAL GROUP, INC.

“․

“․ Throughout the course of Plaintiff's treatment, DR. YAMAGUCHI attempted to coerce her into a settlement of her claim ․ and, further attempted to persuade and coerce MS. HELLER to compromise her claim against DR. GEIS for approximately one-half of what she finally received․

“․ DR. YAMAGUCHI met with NORCAL MUTUAL INSURANCE COMPANY employees and agents and formulated a treatment plan and a psychological program to effectuate a settlement of Plaintiff's claim for her medical injury occasioned by DR. GEIS[.]”  (Emphasis added.)

Based upon these general allegations plaintiff set out 12 causes of actions.   We summarize the second through twelfth causes of action in this manner:

The Second Cause of Action for Negligent Infliction of Emotional Distress Against Yamaguchi and VPSMG:

Yamaguchi (1) agreed to testify falsely against plaintiff to the benefit of Dr. Geis and Norcal;  (2) released confidential medical information to unauthorized persons;  and (3) acted outside his capacity as treating physician in order to control the lawsuit against Dr. Geis.

The Third Cause of Action for Negligent Infliction of Emotional Distress Against CCFMG:

CCFMG failed to supervise its employee, Yamaguchi, and wrongfully authorized Yamaguchi to release information to Norcal for the benefit of CCFMG, Norcal, and Dr. Geis.

The Fourth Cause of Action for Negligent Infliction of Emotional Distress Against Norcal:

Norcal obtained private and confidential information from plaintiff's treating physician and retained that physician to testify as an expert.

The Fifth Cause of Action for Intentional Infliction of Emotional Distress Against Yamaguchi and Norcal:

The acts set out in the fourth cause of action were intentional.

The Sixth Cause of Action for Interference With Physician–Patient Contractual Relationship Against Norcal:

After plaintiff and Yamaguchi established a physician-patient relationship, Norcal interposed a financial relationship with Yamaguchi.   Norcal engaged the services of the physician to act as its agent to control plaintiff's decisions regarding her treatment and to accomplish a settlement with Dr. Geis.

The Seventh Cause of Action for Wrongful Disclosure of Confidential Medical Information Against Yamaguchi and VPSMG:

Yamaguchi, as agent of VPSMG, obtained confidential medical and other related information from plaintiff regarding her current and past medical condition and disclosed it to Norcal without plaintiff's authorization, in violation of the Confidentiality of Medical Information Act.   Plaintiff specifically pleads portions of that Act, Sections 56.10, 56.20, and 56.26, subdivision (a). 3

The Eighth Cause of Action for Wrongful Disclosure of Confidential Medical Information Against Yamaguchi and VPSMG:

This cause of action repeats the allegations of the seventh cause of action, but adds that Yamaguchi disclosed information to Attorney Weiss, again in violation of the Confidentiality of Medical Information Act.

The Ninth Cause of Action for Wrongful Disclosure of Confidential Medical Information Against Boro:

Boro was also a treating physician who released medical information to Norcal, its agents, Attorney Weiss, and other unknown persons without plaintiff's authorization.   Here, too, plaintiff pleads the Confidentiality of Medical Information Act.

The Tenth Cause of Action for Unfair Business Practices Against Yamaguchi, VPSMG and Norcal:

In violation of Business and Professions Code section 17200, Norcal entered into an agreement with Yamaguchi to use the physician-patient relationship to help Dr. Geis.

The Eleventh Cause of Action for Concealment Against Yamaguchi, VPSMG and Norcal:

Upon entering into the agreement to treat plaintiff, Yamaguchi conspired and agreed with Norcal to conceal and suppress material facts during the course of medical treatment concerning his efforts to assist Dr. Geis.

The Twelfth Cause of Action for Violation of Constitutional Right of Privacy Against Yamaguchi and Norcal:

Yamaguchi violated plaintiff's constitutional right to privacy by secretly disclosing confidential and private information to Norcal and its agents and employees.

DISCUSSION

Part IIISTANDARD OF REVIEW

 Our role when reviewing a trial court's order sustaining a general demurrer is clear:  We consider all properly pleaded allegations to be true and give the pleading a reasonable interpretation, construing it as a whole and its parts in context.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Part IV

DEFENDANTS' PRIVILEGE

The issue we shall consider first is whether defendants' conduct falls within the privilege afforded by section 47.4  The purpose underlying the immunity afforded by the section has been expressed by the Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365:

“The principal purpose of section 47(2) is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.  [Citations.]

“Section 47(2) promotes the effectiveness of judicial proceedings by encouraging ‘open channels of communication and the presentation of evidence’ in judicial proceedings.  [Citation.]  A further purpose of the privilege ‘is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’  [Citations.]  Such open communication is ‘a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings.’   [Citation.]  Since the ‘external threat of liability is destructive of this fundamental right and inconsistent with the effective administration of justice’ [citation], courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings:  judicial, quasi-judicial, legislative and other official proceedings.

“․

“Section 47(2) further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests.  ‘[I]t is desirable to create an absolute privilege ․ not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions․  [Citation.]

“Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.   [Citations.]”  (Silberg v. Anderson, supra, 50 Cal.3d 205, 213–214, 266 Cal.Rptr. 638, 786 P.2d 365.)

In Kimmel v. Goland (1990) 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524, a group of mobile home owners, in anticipation of a lawsuit against the management of their mobile home park, tape recorded telephone conversations with management representatives in order to preserve representations which the mobile home owners suspected management would later deny.   The acts of recording were themselves violations of Penal Code section 632, a part of California's Invasion of Privacy Act.   The mobile home owners did file suit, and upon learning of the telephone conversation recordings, the management cross-complained specifically alleging a violation of Penal Code section 632 and seeking damages pursuant to Penal Code section 637.2, subdivision (a).5  In reviewing an order granting summary judgment the Supreme Court held:

“The central issue we address is whether the litigation privilege of section 47(2) applies to plaintiffs' conduct.   Our analysis starts from the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.  [Citations.]  In determining intent, we look first to the language of the statute, giving effect to its ‘plain meaning.’  [Citation.]

“On its face, section 47(2) applies to all ‘publication[s] or broadcast[s]’ made in the course of a ‘judicial proceeding.’   Although the litigation privilege was originally limited to shielding litigants, attorneys and witnesses from liability for defamation [citation], it has been interpreted to apply to virtually all torts except malicious prosecution.   [Citations.]  This includes the tort of invasion of privacy.  [Citations.]

“We recently held in Silberg v. Anderson, supra, 50 Cal.3d at page 212, [266 Cal.Rptr. 638, 786 P.2d 365], that the privilege of section 47(2) extends to any communication:  ‘(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 [has] some connection or logical relation to the action.’  [Citations.]”  (Kimmel v. Goland, supra, 51 Cal.3d at pp. 208–209, 271 Cal.Rptr. 191, 793 P.2d 524.)

The court noted the parties asserting immunity did not cite “a single case in which section 47(2) has been held to bar suit for personal injuries arising from noncommunicative conduct that occurred during a judicial proceeding.   On the contrary, a review of the myriad cases that have applied section 47(2) to shield defendants from liability demonstrates that, without exception, the privilege has applied only to torts arising from statements or publications.   [Citations.]”  (Kimmel v. Goland, supra, 51 Cal.3d at p. 211, 271 Cal.Rptr. 191, 793 P.2d 524.)

Finding that immunity did not apply, the court again reiterated the tortious act alleged by the mobile home park management was the recording of the conversations, not their broadcast, publication or subsequent use in a lawsuit.  (Kimmel v. Goland, supra, 51 Cal.3d at p. 212, 271 Cal.Rptr. 191, 793 P.2d 524.)   The court continued:

“[S]ince [the] right to a statutory remedy accrued at the moment of the violation [the] contention that the telephone conversations were made in anticipation of litigation is simply irrelevant.  Penal Code section 637.2 was intended ‘to provide those who suffer an infringement of this aspect of their personal liberty a means of vindicating their right.’  [Citation.]

“Finally, we note that the result urged by [the party making the recordings], an extension of section 47(2) to unlawful conduct undertaken to obtain evidence in anticipation of litigation, would lead to unacceptable consequences.   Suppose, a prospective defendant kept important documents at home.   If a prospective plaintiff, in anticipation of litigation, burglarized defendant's premises in order to obtain evidence, plaintiffs here would apparently apply the privilege to protect the criminal conduct.   Such an extension of section 47(2) is untenable.   The instant case and the example are comparable in that both involve violation of a penal statute, and in both cases the offending party seeks immunity from civil liability.   In both, the claim must fail.”  (Kimmel v. Goland, supra, 51 Cal.3d at p. 212, 271 Cal.Rptr. 191, 793 P.2d 524.)

To explain the distinction between a defendant's conduct which causes an injury to a plaintiff at the moment that conduct occurs and a defendant's conduct which causes injury to a plaintiff only by use in a judicial or legislative proceeding, the Kimmel court drew upon the reasoning in its earlier case, Ribas v. Clark (1985) 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637.   In Ribas an attorney for a wife in a dissolution proceeding eavesdropped on a telephone conversation between husband and wife.   The attorney used the information he had obtained during the conversation in a subsequent arbitration hearing.   Thereafter, husband sought damages against the attorney pursuant to Penal Code sections 631, subdivision (a) and 637.2.   The court held the conduct upon which plaintiff based his cause of action pursuant to the Privacy Act and the statutory civil award it provided was not subject to a section 47(2) privilege.   The court continued, “but [ ] his action was barred insofar as it was based on ‘his common law right to privacy, because his alleged injury stems solely from defendant's testimony at the arbitration proceeding.  [Citations.]’  (38 Cal.3d at p. 364, 212 Cal.Rptr. 143, 696 P.2d 637, italics added.)”  (Kimmel v. Goland, supra, 51 Cal.3d at p. at p. 210, 271 Cal.Rptr. 191, 793 P.2d 524.)

The Kimmel court explained further:

“Implicit in the Ribas decision was the distinction between injury allegedly arising from communicative acts, i.e., the attorney's testimony, and injury resulting from noncommunicative conduct, i.e., the invasion of privacy resulting from the attorney's eavesdropping.   This distinction has traditionally served as a threshold issue in determining the applicability of section 47(2).   For example, in Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], we were required to determine whether a hospital was immune under section 47(2) from liability for the termination of a physician's staff privileges.   We noted that the doctor's ‘claim [was] not that her injury ha[d] been occasioned simply by [the hospital's] malicious statements at the proceedings, but rather that she ha[d] been injured by the malicious actions of the hospital ․ in revoking her staff privileges․' ”  (Kimmel v. Goland, supra, 51 Cal.3d at p. 211, 271 Cal.Rptr. 191, 793 P.2d 524.)

The cases from the Courts of Appeal are legion on the subject.   We use one from our own district to illustrate our point—Pettitt v. Levy (1972) 28 Cal.App.3d 484, 104 Cal.Rptr. 650.   Plaintiff alleged defendant altered a copy of a document and presented that altered copy to a city planning commission in order to defeat plaintiff's request for a zoning variance.   In his suit alleging several causes of action based upon this conduct, the court held that although altering the document in order to obtain a desired result at the planning commission hearing is heinous conduct, it was nonetheless privileged by section 47(2) because plaintiff's injury occurred only from the use of that altered document in a quasi-judicial proceeding.   Altering the document, by itself, caused plaintiff no injury.

We now turn to the allegations of plaintiff's fourth amended complaint.

A. The Second Through Eleventh Causes of Action.

 The second, third, fourth, fifth, sixth and eleventh causes of action are all grounded in common law torts—negligent and intentional infliction of emotional distress, interference with the physician-patient relationship, and concealment.   Plaintiff claims she suffered injury because in her litigation against Dr. Geis the defendants used information they had wrongfully obtained.   Under the rationale of Kimmel and Ribas, the trial court correctly ruled section 47(2) prevents recovery on these causes of action.

 We skip now to the tenth cause of action for unfair business practices in violation of Business and Professions Code section 17200 et seq.   Regarding such allegations the California Supreme Court has recently spoken in Rubin v. Green (1993) 4 Cal.4th 1187, 17 Cal.Rptr.2d 828, 847 P.2d 1044—the privilege afforded by section 47(2) applies whether the plaintiff seeks damages or injunctive relief based upon unfair business practices.  (Rubin v. Green, supra, 4 Cal.4th at pp. 1200–1204, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)

 The seventh, eighth and ninth causes of action of the fourth amended complaint present another story.   As we have noted, they plead violations of the Confidentiality of Medical Information Act, and specifically refer to sections 56.10, 56.20 and 56.26.

Sections 56.35 and 56.36 provide remedies for violations of the act—the former authorizing civil recovery of compensatory damages, punitive damages not to exceed $3,000, attorneys' fees not to exceed $1,000, and cost of suit.   Section 56.36 makes a violation a misdemeanor in the event the patient suffers economic loss or personal injury.   Thus, the allegations of the seventh, eighth and ninth causes of action of the fourth amended complaint place this case squarely within the holdings of Kimmel and Ribas, and plaintiff has stated viable causes of action to that extent.   Just as the plaintiffs in Kimmel and Ribas stated independent causes of action created by Penal Code sections 631, 632 and 637.2, so here plaintiff bases her claims upon the Confidentiality of Medical Information Act and the remedies that act provides, independent of any injury she may have suffered by use of information in the Geis litigation.

Three of the defendants—Yamaguchi, CCFMG and VPSMG—argue section 56.10, subdivision (c)(4) renders the general prohibition of disclosure in 56.10 inapplicable.   In their responsive brief they quote the subdivision in part:

“(c) a provider of health care may disclose medical information as follows:

“(4) the information may be disclosed to ․ persons or organizations insuring, responsible for, or defending professional liability which a provider may incur․”

They then argue that “a provider” referred to in subsection (4) need not be the same “provider” referred to in subdivision (c), and because both Dr. Yamaguchi and Dr. Geis were providers, their disclosure of medical information was authorized.

What these defendants fail to note is the rest of subsection (4):

“[i]f the ․ organizations, or persons are engaged in reviewing the competence or qualifications of health care professionals or in reviewing health care services with respect to medical necessity, level of care, quality of care, or justification of charges.”

Clearly, section 56.10, subdivision (c)(4), the exception which Yamaguchi, VPSMG and CCFMG cite, has no relevance to this case.

The privilege afforded by section 47(2) does not extend to the seventh, eighth and ninth causes of action of the fourth amended complaint.

B. The Twelfth Cause of Action.

 The twelfth cause of action names as defendants only Yamaguchi and Norcal, and alleges the conduct described in the general allegations violates plaintiff's constitutional right of privacy.  Article I, section 1, of the California Constitution creates a right of privacy.  (Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1136, 277 Cal.Rptr. 354.)   The provision is self-executing, conferring a judicial right of action for its breach.   (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839.)   The crucial question is whether a statutory privilege (section 47, subdivision 2) renders a defendant immune from liability for conduct prohibited by a constitutional provision.   We will conclude, based upon settled law, that a statute cannot immunize from liability conduct made actionable by the California Constitution.

 That an unauthorized disclosure of medical information gives rise to an action for a violation of the right of privacy is settled in Urbaniak v. Newton, supra, 226 Cal.App.3d 1128, 277 Cal.Rptr. 354.   Urbaniak filed a worker's compensation claim and, after giving consent, was examined by Dr. Newton, who was employed for this purpose by the worker's compensation insurance carrier.  (Id. at p. 1134, 277 Cal.Rptr. 354.)   According to Urbaniak, after the examination he mentioned to Newton's nurse he had tested HIV positive and advised her to sterilize the probes used by Dr. Newton during the examination.  (Ibid.)  Dr. Newton's nurse passed this information on to the doctor.   Dr. Newton mentioned in his report to counsel for the workers' compensation carrier that Urbaniak was an AIDS victim.   The carrier eventually received the report from its counsel.   In the report Dr. Newton discounted the work injury as the cause of Urbaniak's symptoms, and suggested instead stress from AIDS-related health problems may have caused them.   (Ibid.)

The trial court granted summary judgment in defendants' favor, and Urbaniak appealed.   On appeal, the court drew from Porten v. University of San Francisco, supra, 64 Cal.App.3d 825, 134 Cal.Rptr. 839:

“In the Porten case, the complaint alleged that the defendant had without permission disclosed a portion of the plaintiff's academic record to a state scholarship commission.   Reviewing a judgment of dismissal on demurrer, the court agreed that the complaint failed to state a tort cause of action for ‘public disclosure of private facts' since the disclosure to the state commission ‘was not a communication to the public.’  (Porten v. University of San Francisco, supra, 64 Cal.App.3d at p. 828, [134 Cal.Rptr. 839].)   It held, however, that the complaint stated a ‘prima facie violation of the state constitutional right of privacy’ based on ‘the improper use of information properly obtained for a specific purpose.’  (Id. at p. 832, [134 Cal.Rptr. 839].)”  (Urbaniak v. Newton, supra, 226 Cal.App.3d at p. 1138, 277 Cal.Rptr. 354.)

The Urbaniak court determined the use of the disclosure that Urbaniak had tested positive for the HIV virus for a purpose other than for which Urbaniak had intended created a violation of his right of privacy pursuant to article I, section 1, of the California Constitution.

Accordingly, plaintiff's pleadings allege she submitted to treatment by Yamaguchi on the representation he was to be her treating physician.   Her pleadings further allege that in the course of treating plaintiff, Yamaguchi, in association with Norcal and others, gathered confidential information about plaintiff and disseminated it to unauthorized persons and for an unauthorized purpose.   These allegations state a cause of action under article I, section 1, of the California Constitution.

Even though the purpose of the alleged conduct of Yamaguchi and Norcal was to defend the pending Geis lawsuit, it was not privileged under section 47(2).   In discussing the relationship between the federal constitutional right of privacy and another portion of the section 47 privilege, Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 165 Cal.Rptr. 347 held:

“Plaintiffs as private individuals are entitled to the protection of their right of privacy.   That right is entitled to redress when violated.   Under the mandate of the recent federal Supreme Court rulings, the right of privacy is paramount to the right of free speech when in the exercise of free speech a defendant violates another's privacy by uttering a defamatory lie about him.   The right of free speech guaranteed by the state and federal Constitutions does not permit violation of the right of privacy.   It most surely follows that the privilege created by Civil Code section 47(3), a statute, and thus a law of lesser organic force, cannot be expanded to permit violation of that same right of privacy.   Whatever privilege is accorded defendants under Civil Code section 47(3), it must yield to the plaintiffs' constitutional rights of privacy.”  (Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d at p. 667, 165 Cal.Rptr. 347;  emphasis added.)

Likewise, in Parsons Brinckerhoff Quade & Douglas, Inc. v. Kern County Employees Retirement Assn. (1992) 5 Cal.App.4th 1264, 7 Cal.Rptr.2d 456, we said, “Where a statute operates unambiguously to deprive a person of a constitutional guarantee, it is invalid, and the courts must so declare.”   (Id. at p. 1269, 7 Cal.Rptr.2d 456.)  (See also, Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, 228 Cal.Rptr. 545.)

Similarly, the privilege created by section 47(2) must yield to the right of privacy created by article I, section 1, of the California Constitution.

Part V

WAIVER

 Defendants argue that notwithstanding how we might resolve the privilege issue, plaintiff has waived any claim of wrongdoing by them because in her suit against Dr. Geis she sought a broad spectrum of damages.   Her complaint against Dr. Geis 6 alleges in part:

“The negligent diagnosis and treatment by defendants, and each of them, resulted in the plaintiff's suffering, scarring, disfigurement, mental anguish, and other unknown injuries caused by the treatment, surgery and care provided to plaintiff and as a result she suffered the injuries and damage as herein alleged.”

Defendants emphasize plaintiff's broad general claim against Dr. Geis for damages from “other unknown injuries.”

In support of their assertion of waiver, defendants cite several California cases.   However, a careful reading of those authorities reveals they are inapplicable for this reason:  Plaintiff does not assert the scope of the information Yamaguchi and others obtained and disclosed went beyond the scope of the issues tendered in the Geis litigation;  rather plaintiff asserts the method by which defendants obtained that information was wrongful—in violation of her constitutional right of privacy and her statutory right against unauthorized disclosure of medical information.

Britt v. Superior Court (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695, 574 P.2d 766, upon which all defendants rely, arose out a the trial court's denial of plaintiffs' request for a protective order and defendant's motion to compel answers to its deposition.   In order to determine whether plaintiffs had waived their privilege not to have certain information divulged, the court had to define what subjects plaintiffs had placed in issue in the litigation.   Resolution of that question governed what areas defendant could explore during discovery.   Plaintiffs did not allege defendant wrongfully obtained information.

In the leading case of In re Lifschutz (1970) 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, the issue arose when a psychiatrist refused to testify concerning communications with a former patient.   The former patient was plaintiff in a personal injury action against a third party.   What the Supreme Court resolved was whether plaintiff/patient waived his psychotherapist-patient privilege by raising certain issues in the lawsuit.   The method itself by which defendant sought to obtain the information was not in dispute.   Indeed, the parties were proceeding according to established discovery procedures.

Similarly, in Roberts v. Superior Court (1973) 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309, the issue arose in a writ proceeding concerning discovery.   The Supreme Court dealt with the breadth of the underlying lawsuit—whether plaintiff had opened the door to defendants' discovery of certain information that would otherwise be privileged.   Again, defendants did not obtain the information in an allegedly wrongful manner, but rather sought to learn of the information in the orderly process of discovery.

We make the same distinction between this case and Torres v. Superior Court (1990) 221 Cal.App.3d 181, 270 Cal.Rptr. 401, cited by Yamaguchi, CCFMG, VPSMG and Norcal.

Therefore, we conclude that although information about plaintiff allegedly gathered by defendants may have been discoverable—even admissible—in the Geis litigation, plaintiff has not waived her causes of action based upon either the alleged wrongful methods defendants used to obtain it or their alleged wrongful disclosure of that information.

Part VI

THE PROPOSED FIFTH AMENDED COMPLAINT

During the course of a motion for reconsideration brought by Yamaguchi, VPSMG and CCFMG in order to clarify certain inconsistencies in the trial court's initial ruling on the demurrers, plaintiff presented a proposed fifth amended complaint.   She did so by appending it to a document entitled “Memorandum of Points and Authorities in Response to Motions for Reconsideration and Demurrers, and in Support of Plaintiff's Request to File Fifth Amended Complaint.”   The court denied her request.   Whether the “request” was a sufficient motion to invoke the court's discretion to allow her to file the amended pleading we need not decide.   We have examined plaintiff's proposed fifth amended complaint and find nothing that, had the court allowed her to file it, would have placed her in any better stead than she will find herself when she returns to the trial court now.

CONCLUSION

The trial court correctly sustained the demurrers without leave to amend to the second, third, fourth, fifth, sixth, tenth and eleventh causes of action of the fourth amended complaint.

The court erroneously sustained the demurrers without leave to amend to the seventh, eighth, ninth and twelfth causes of action of the fourth amended complaint.

DISPOSITION

 The Appeals.

The judgment of dismissal in favor of respondent Central California Faculty Medical Group, Inc. is affirmed.   Costs on appeal are awarded to respondent and against appellant.

The judgments of dismissal in favor of respondents Norcal Mutual Insurance Co., Herbert W. Boro, M.D., and Valley Plastic Surgeons Medical Group, Inc. are reversed.   Costs on appeal are awarded to appellant and against respondents.

 The Petition for Writ of Mandate.

Let a writ of mandate issue directing the Superior Court of Fresno County to vacate its order of January 31, 1991, sustaining the demurrer of respondent Kent Yamaguchi, M.D., to the seventh, eighth, ninth and twelfth causes of action of the fourth amended complaint and to enter a new order overruling that portion of the demurrer.   Insofar as the petition seeks relief not granted above, it is denied.

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise noted..  FN1. All statutory references are to the Civil Code unless otherwise noted.

2.    “A privileged publication or broadcast is one made—“․“2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure;  ․”

3.   Section 56.10 prohibits a health care provider from disclosing medical information regarding a patient of the provider without authorization, with certain exceptions not relevant here.Section 56.20 requires health care providers to establish procedures to ensure the confidentiality of patient medical information.Section 56.26, subdivision (a) prohibits administrators of health plans from disclosing medical information.

4.   Section 47 was amended in 1990 (Stats.1990, ch. 1491, § 1).   For purposes of our discussion the changes made in that amendment are not significant, although the designation of the subdivisions was changed from numerals to letters (i.e., to subdivisions (a) and (b) from (1) and (2).   For purposes of consistency, we will continue to use the numerical subdivision designations in our discussion.

5.   Penal Code section 637.2, subdivision (a) allows damages in the amount of either $3,000 or three times the actual damages suffered, whichever is greater.

6.   Norcal asks that we take judicial notice of plaintiff's complaint against Dr. Geis.   We grant that request, and consider the allegations of that complaint.  (Evid.Code, §§ 452, subd. (d) and 459.)

STONE (WM. A.) Acting Presiding Justice.

DIBIASO, J., and FRANSON, J., Assigned * concur.