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

Susan E. SHARTZER, Plaintiff and Appellant, v. Philip D. ISRAELS, et. al., Defendants and Respondents.

No. B089932.

Decided: December 11, 1996

Nicholas G. Demma, Westlake Village, for Plaintiff and Appellant. Timothy C. Donahoe and Stacy N. Schnaid, Beverly Hills, for Defendants and Respondents.

Plaintiff alleges during the course of a criminal trial in which she was the prosecuting witness, defense counsel unlawfully read and disseminated her confidential mental health records and used those records in cross-examining her.   She seeks damages from defense counsel and his client for abuse of process, infliction of emotional distress and invasion of privacy.   The trial court sustained defendants' demurrer to the complaint and plaintiff appeals from the subsequent judgment of dismissal.   We conclude the complaint states a cause of action against defendants for violation of plaintiff's constitutional right of privacy (Cal. Const. art. I, § 1).   In all other respects we affirm the judgment.


The complaint alleges defendant Israels represented defendant Keables in a criminal action charging Keables with the sexual battery of plaintiff Shartzer.   In the course of defending Keables, Israels served a subpoena duces tecum for Shartzer's mental health records on The Harbour, a mental health treatment facility.   Harbour mistakenly sent Shartzer'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 Shartzer.   Israels read, transmitted and used plaintiff's mental health records in order to intimidate, embarrass and humiliate her.   It is further alleged Israels' acts were done with the knowledge, consent and ratification of Keables.1  As the result of defendants' conduct, plaintiff suffered extreme emotional distress which exacerbated her mental condition.   She seeks damages from defendants 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.   Plaintiff elected not to amend her complaint and the complaint was subsequently dismissed on defendants' motion.   Plaintiff appeals from the judgment of dismissal.



The elements of a cause of action for abuse of process are an ulterior motive in using the process and the use of the process in a wrongful manner.   (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 826, 266 Cal.Rptr. 360.)   Neither of these elements are pled in plaintiff's complaint.

Contrary to the allegations of the complaint, the mental health records of a prosecuting witness in a criminal case are subject to subpoena.   In People v. Reber (1986) 177 Cal.App.3d 523, 531–532, 223 Cal.Rptr. 139, the defendants, charged with various sex offenses, obtained a subpoena duces tecum to secure medical records relating to psychotherapeutic treatment of the two complaining witnesses.   In the relevant part of the opinion the court held “adherence to a statutory privilege of confidentiality must give way to pretrial access when it would deprive a defendant of the constitutional right of confrontation and cross-examination.  [¶] In the instant case, defendants established good cause for the discovery of the complaining witnesses' psychotherapy records, insofar as those records contained evidence of psychotic or hallucinatory behavior relevant to credibility.”  (See also People v. Dancer (1996) 45 Cal.App.4th 1677, 1691, 53 Cal.Rptr.2d 282;  People v. Pack (1988) 201 Cal.App.3d 679, 685, 248 Cal.Rptr. 240.)

In an apparent attempt to get around Reber the complaint alleges that at the time defendants subpoenaed plaintiff's records “they knew ․ neither the records nor the contents of any of the records were admissible in evidence in the defense of the criminal prosecution.”   Although as a general rule we must accept the facts pled in the complaint as true, we do not accept conclusions of fact or law.   The complaint does not allege defendants had seen plaintiff's records before they subpoenaed them.   Therefore, defendants could not have known whether the records contained admissible evidence or how a court would rule on the admissibility of the records.   The complaint does allege at the time defendants subpoenaed plaintiff's records they knew she was suffering from a mental disability and undergoing psychiatric treatment.   A competent defense attorney would certainly investigate whether plaintiff's mental condition might affect her competency and believability as a witness.   Thus, there was nothing improper about subpoenaing plaintiff's mental health records.

The Reber court went on to hold where good cause for discovery of mental health records is shown the person subject to the subpoena should furnish those records to the trial court which should review the records in camera, weigh the defendant's constitutional rights of confrontation and cross-examination against the statutory privilege, determine which privileged matters, if any, are essential to vindicate the defendant's constitutional rights and create a record adequate to review its ruling.  (177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139.)   It appears from the allegations of the complaint in the present case this procedure was not followed.   Instead, plaintiff's mental health records were furnished directly to Israels who proceeded to use them in defense of the criminal action without prior review by the trial court and without informing plaintiff her records were in defendants' possession.   However, failure to follow the procedure set forth in Reber does not by itself give rise to an action for abuse of process.   The complaint does not allege Israels directed Harbour to send the records to him instead of to the court.   On the contrary, the complaint alleges Harbour sent the records to defendants by mistake.   Thus, the complaint fails to allege defendants used the subpoena process in a wrongful manner.

Furthermore, the complaint does not allege facts showing defendants acted with an ulterior motive in serving the subpoena for plaintiff's mental health records.   The complaint alleges “the purpose and motivation ․ in subpoenaing the ․ records of plaintiff ․ was to intimidate, embarrass and humiliate plaintiff.”   As we held in Abraham, supra, mere vexation or harassment are not objectives sufficient to give rise to the tort of abuse of process.   “Moreover, there is no tort where process is used properly albeit with a bad motive.”  (217 Cal.App.3d at p. 826, 266 Cal.Rptr. 360.)

Even if plaintiff's complaint alleged the necessary elements of abuse of process, her cause of action would be barred by the litigation privilege of Civil Code section 47, subdivision (b).   In our decision in Abraham, supra, Justice Woods undertook a thorough analysis of the litigation privilege in the context of abuse of process actions and there is no need to repeat his analysis here.  (See 217 Cal.App.3d at pp. 809–825, 266 Cal.Rptr. 360.)   It is sufficient to restate the conclusion:  “[E]xcept for an action for malicious prosecution ․ the privilege ․ is absolute and unaffected by malice;  the publication need only have a reasonable relation to the judicial proceeding in which it is made.”  (Id. at p. 815, 266 Cal.Rptr. 360.)   Here, delivering plaintiff's mental health records to the defense psychiatrist and using them to cross-examine plaintiff in the criminal action had a reasonable relation to the defense in the criminal action.   Therefore, the litigation privilege bars plaintiff's abuse of process claim in the present case.

B. The Complaint Fails to State a Cause of Action for Infliction of Emotional distress.

The complaint alleges defendants' “purpose and motivation” in subpoenaing, communicating and cross-examining her with her mental health records was to, and did, “intimidate, embarrass and humiliate plaintiff.”   Even assuming the complaint alleges the elements of intentional and/or negligent infliction of emotional distress, the complaint also alleges these communications took place in the course of the underlying criminal trial in which plaintiff was the complaining witness.   Therefore, the claims are barred.  (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 45, 32 Cal.Rptr.2d 200, 876 P.2d 999.)


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 independent from the common law tort of invasion of privacy.2  “[A] plaintiff alleging an invasion of privacy in violation of the state constitution 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 indisputable plaintiff 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.)

Plaintiff did not lose her right to privacy in her mental health records because she charged Keables with sexual battery.  (Pack, supra, 201 Cal.App.3d at p. 686, 248 Cal.Rptr. 240.)   Rather, defendants' entitlement to inspect plaintiff's records required a balancing of Keables' Sixth Amendment right of cross-examination and plaintiff's right of privacy.  (Reber, supra, 177 Cal.App.3d at pp. 530–532, 223 Cal.Rptr. 139;  Pack, supra, 201 Cal.App.3d at pp. 685–686, 248 Cal.Rptr. 240.)   As previously noted, the Reber court held that where good cause is shown by the moving party, 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 of the records are essential to the defendant's right of confrontation;  and (4) create an adequate record for review.  (Reber, supra, 177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139.)   None of this happened in the present case.   Instead, Israels received plaintiff's records directly from the mental health facility, opened them, and with Keables' approval and consent, read them and passed them on to the defense psychiatrist.   No court ever balanced Keables need for the information contained in the records with plaintiff's right to privacy.

Apart from the procedure set out in Reber, the subpoena duces tecum procedure itself implicitly recognizes the privacy interest 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.) 3

In light of the procedures described above, we conclude plaintiff had a reasonable expectation of privacy in her medical records subject to a court determination whether any of those records should be disclosed to Keables and his attorney.   The complaint alleges defendants unreasonably interfered with this expectation by assuming the role of the court in reading and revealing to others the contents of plaintiff's records.  (Cf. Blair, supra, 25 Cal.3d at p. 651, 159 Cal.Rptr. 818, 602 P.2d 738.)   Thus, the complaint adequately alleges the second element of the tort.

C. Defendants' Conduct Constituted a Serious Invasion of Privacy.

Clearly, the unauthorized reading and dissemination of plaintiff's mental health records constituted a serious invasion of her privacy.   As our Supreme Court recognized in In re Lifschutz (1970) 2 Cal.3d 415, 431, 85 Cal.Rptr. 829, 467 P.2d 557, “The psychiatric patient confides more utterly than anyone else in the world.   He exposes to the therapist not only what his words directly express;  he lays bare his entire self, his dreams, his fantasies, his sins, and his shame.”  (Internal quotation marks omitted.)   In Hill, the Court acknowledged the importance to the individual of maintaining “ ‘the right to define one's circle of intimacy’ ” and recognized the psychological damage which can result from the unexpected disclosure of highly personal information.  (7 Cal.4th at p. 25, 26 Cal.Rptr.2d 834, 865 P.2d 633;  citation omitted.)   Similarly, in Pettus the Court of Appeal held disclosure of the plaintiff's psychiatric reports by his doctors to his employer “was sufficiently serious as to establish the third element for a violation of article I, section 1 of the California Constitution.”  (49 Cal.App.4th at p. 445, 57 Cal.Rptr.2d 46.)

Here, the complaint alleges Israels read and disseminated plaintiff's mental health records knowing the information contained in them could be highly sensitive and embarrassing to plaintiff.   Plaintiff alleges she was in fact intimidated, embarrassed, and humiliated and suffered extreme emotional distress as a result of this conduct and her mental condition was exacerbated.   We conclude plaintiff has pled conduct constituting a serious invasion of her privacy.

D. Defendants Are Not Immune From Liability Under the Litigation Privilege.

Unlike her causes of action for abuse of process and infliction of emotional distress, plaintiff's cause of action for invasion of her constitutional right of privacy does not depend on the “publication” or “broadcast” of her mental health records but can rest on Israels' conduct in reading those records himself.   In this respect, Israels' conduct is similar to the defendants' conduct of eavesdropping on and secretly recording telephone conversations in Ribas v. Clark (1985) 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637 and Kimmel v. Goland (1990) 51 Cal.3d 202, 271 Cal.Rptr. 191, 793 P.2d 524.

In Ribas v. Clark, the attorney for plaintiff's wife eavesdropped on a telephone conversation between plaintiff and his wife and then testified to the conversation in an arbitration proceeding.   Plaintiff brought an action against the attorney alleging, inter alia, violation of California's Invasion of Privacy Act (Pen.Code, §§ 630, et seq.) and common law invasion of privacy.   The trial court sustained the attorney's demurrer to the complaint based on the litigation privilege.   On appeal, our Supreme Court reversed as to the Privacy Act cause of action but affirmed as to the common law tort of invasion of privacy noting the injury under the common law tort “stems solely from defendant's testimony at the arbitration proceeding.”  (38 Cal.3d at p. 364, 212 Cal.Rptr. 143, 696 P.2d 637.)   In upholding the cause of action based on eavesdropping and rejecting the cause of action based on testimony which resulted from the eavesdropping, the Ribas court made an implicit distinction between an injury arising from noncommunicative conduct, the attorney's eavesdropping, and a communicative act, the attorney's testimony.   The Court made this distinction explicit in Kimmel v. Goland.

In Kimmel, the plaintiffs sued the defendants for unlawfully tape recording confidential conversations between the parties in violation of Penal Code section 632.   Defendants claimed they made the recordings in order to gather evidence to be used in litigation between the parties and therefore they were immune from liability under the “litigation privilege.”   The Supreme Court rejected defendants' immunity claim.   The Court held the litigation privilege “precludes recovery for tortiously inflicted injury resulting from publications or broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortious conduct regardless of the purpose for which such conduct is undertaken.”  (51 Cal.3d at p. 205, 271 Cal.Rptr. 191, 793 P.2d 524;  emphasis in original.)  “Here,” the Court explained, the plaintiff “alleges that it suffered injury from the taping of confidential telephone conversations, not from any ‘publication’ or ‘broadcast’ of the information contained in these conversations.   Thus, the litigation privilege is plainly not applicable.”  (Id. at p. 209, 271 Cal.Rptr. 191, 793 P.2d 524;  emphasis in original.)

In the present case, Israels' opening and reading of plaintiff's confidential medical records which he knew had been sent to him by mistake are comparable to the attorney in Ribas eavesdropping on a private telephone conversation.   In other words the injurious act is conduct, not communication.   Therefore the cause of action against defendants for invasion of plaintiff's constitutional right of privacy, at least insofar as it is based on Israel's conduct, is not barred by the litigation privilege of Civil Code section 47.4


The judgment is reversed as to the cause of action against defendants for invasion of privacy.   In all other respects the judgment is affirmed.   Each party to bear its costs on appeal.


1.   We will assume for the purposes of this opinion Keables would be liable for the intentional torts of Israels acting within the scope of his employment.   This issue was not raised in the trial court or on appeal.

2.   Article I, section 1 recognizes the people of California have certain “inalienable rights” including the right of “pursuing and obtaining safety, happiness, and privacy.”

3.   Plaintiff cannot base a cause of action on Code of Civil Procedure section 1985.3 of the Code of Civil Procedure which conditions the issuance of a subpoena duces tecum for medical records on prior notice to the patient and an opportunity to be heard on the issue of the records' release.   This statute by its terms only applies to civil proceedings.   (Sehlmeyer v. Department of General Services (1993) 17 Cal.App.4th 1072, 1076–1077, 21 Cal.Rptr.2d 840.)   Nor does the complaint state a cause of action for release of confidential mental health records under Welfare & Institutions Code section 5330 because it does not allege plaintiff's records fall within any of the categories listed in Welfare & Institutions Code section 5328.  (Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1585, 38 Cal.Rptr.2d 849.)

4.   In light of our conclusion Israels' conduct in reading plaintiff's confidential medical reports is not covered by the litigation privilege we need not decide whether the privilege applies to an invasion of the constitutional right of privacy, a question left open by the Supreme Court in Heller v. Norcal Mutual Ins. Co., supra, 8 Cal.4th at p. 42, 32 Cal.Rptr.2d 200, 876 P.2d 999.  (But see Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1138, 1141, 277 Cal.Rptr. 354;  Cutter v. Brownbridge, supra, 183 Cal.App.3d at p. 847, 228 Cal.Rptr. 545;  and Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 667, 165 Cal.Rptr. 347, holding the statutory litigation privilege does not immunize conduct made actionable by the California Constitution.)

JOHNSON, Associate Justice.

LILLIE, P.J., and WOODS, J., concur.