DAVID v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 5, California.

Richard DAVID et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 69138.

Decided: October 29, 1985

 Ira Reiner and James K. Hahn, City Attys., John T. Neville, Sr. Asst. City Atty., and Richard M. Helgeson, Asst. City Atty., for defendants and appellants. Hugh R. Manes, Los Angeles, for plaintiffs and respondents.

Two basic questions are presented in this appeal.   In a civil action against a police officer for false imprisonment and battery, (1) does the psychotherapist-patient privilege attach to preclude testimony of  his revelations to various doctors, and (2) are other specific acts of past and prior conduct admissible into evidence?

FACTS

On November 17, 1976, at or about 1:30 a.m., Richard David, accompanied by his twin brother, Robert, was driving a vehicle south on Robertson Boulevard in West Los Angeles.   Defendants Redman and Lamb, police officers for the defendant City of Los Angeles (City), were patrolling the area at that time and focused their attention on the David vehicle, and another southbound auto, because of three or four horn blasts coming from the two vehicles.

Witnesses for the defendants testified that the David vehicle proceeded southbound on Robertson at about 55 miles per hour and then turned westbound onto National Avenue at a high rate of speed.   Richard David testified that he did not remember his speed but he may have been exceeding the speed limit slightly.   In any event, the siren on the police vehicle was activated, the red lights were turned on, and the David vehicle ultimately came to a stop on National.

There is sharp disagreement as to what happened thereafter.   The David brothers testified that Richard exited his vehicle and was called to the rear thereof and asked about identification.   Officer Redman questioned him in an obscene way about the honking.   Richard answered that it was a friendly gesture to another driver he knew and then asked Redman if he was going to receive a ticket.   One of the officers told Richard he was going to get a ticket for honking his horn.   About 15 minutes passed and Richard again asked whether he was going to get a ticket.   Approximately 10 minutes later Richard protested that his rights were being violated by being detained so long without being given a ticket and allowed to go home.   Officer Lamb jumped at Richard, grabbed him around the shirt collar, and held his fist in Richard's face.   He told Richard, in obscene language, to keep his mouth shut or he was going to close it for him permanently.   When Richard asked if he was going to be hit, Lamb applied a bar arm control hold causing Richard to fall to the ground and lapse into unconsciousness.   During this entire process, Lamb was shouting obscenities and was in a rage.   Officer Redman applied a similar hold on Robert even though Robert had made no motions toward Richard and Lamb.

As Richard lay prone and unconscious on the cement driveway, Lamb seized him by the hair and pounded his face against the pavement several times, uttering obscenities.

 The officers' testimony was substantially to the effect that Redman instructed Richard to exit his vehicle.   Richard then became very loud and boisterous, using obscenities towards the officers, and complained of the fact that he and his brother had been stopped.   Richard stated he did not have to stay, and he was going to leave.   As he said this he prepared to walk away.   Lamb told Richard that he had to stay until the investigation was completed.   Richard continued to be boisterous, antagonistic and angry during the entire period of detention.   Richard turned away a second time and said he was not going to stay.   Lamb then reached out and grabbed Richard by the arm.   Richard had both hands clenched in a fist and his right hand in a cocked position as if he were going to strike Lamb.   Lamb struck Richard in the shoulder or chest area with an open palm and a pushing motion, spun him around, facing away from Lamb, and placed a bar arm control hold on Richard, as the result of which he went to the ground and was rendered unconscious.   Lamb did not pound Richard's face into the pavement.   Seeing his brother, Richard, struggling with Lamb, Robert quickly moved towards their direction.   At this point, Redman placed a control hold on Robert, but Robert was not rendered unconscious.   Both brothers were arrested, taken to the police station, but later released without charges being pressed.1

As a result of this incident, a five-count complaint was filed against Officers Redman and Lamb and the City.   Richard charged Redman and Lamb with false imprisonment and battery while Robert accused both officers of false imprisonment.   In these counts it was alleged that the City was liable on the theory that both officers were acting in the course and scope of their employment.   The brothers also lodged a separate count against the City alleging vicarious liability for the conduct of Redman and Lamb on the theory of negligent retention/supervision of the two officers in that the City knew or should have known that Redman and Lamb “had a propensity for abusing their authority, harassing and imprisoning persons without a warrant or lawful authority.”

The City denied the allegations of the complaint and asserted various affirmative defenses.   However, it was admitted by the City and the two officers in their answers that at all times material Redman and Lamb “were engaged in the performance of their regularly assigned duties as police officers” for the City and that they acted in the scope of those duties as police officers.

At the close of plaintiffs' case, Redman and Lamb moved for a nonsuit on the negligent retention/supervision charge.   The court granted the motion as to Redman but denied it as to Lamb.

 As compensatory damages the jury awarded Richard David the sum of $2,700 for battery and Robert David the sum of $1,000 for false imprisonment against the City.   Richard David recovered punitive damages in the sum of $7,800 against Lamb.   There was no personal judgment rendered against Redman.2  The City and Lamb (appellants) appeal.   We reverse.

DISCUSSION

IPSYCHOTHERAPIST–PATIENT PRIVILEGE

Officer Lamb did not testify on his own behalf as a defense witness.   The only testimony from him was adduced when he was called as an adverse witness pursuant to Evidence Code section 776 during plaintiffs' case-in-chief.

His testimony revealed that in January 1979, he filed a claim with the Workers' Compensation Appeals Board (WCAB) for compensation and for medical treatment for life and for emotional stress caused by his police duties.   In pursuing his claim, WCAB rules required that Lamb be examined by several medical doctors, including Dr. Singer, a psychiatrist and an agreed-upon medical examiner.   Each doctor wrote a report based on his interview with Lamb and each of the reports was made a part of Lamb's WCAB file.   Copies of each report were obtained from the WCAB under a certificate signed by the presiding workers' compensation judge who duly authenticated the documents as part of Lamb's file.   These reports were received in evidence, and later excised copies thereof were submitted to the jury for its review in the jury room.3  Dr. Singer also testified concerning statements made to him by Lamb during an interview.

Appellants first contend that the evidence concerning Lamb's statements to the various examiners and Dr. Singer who were employed for the purpose of reporting his physical and mental condition to the WCAB were privileged under the psychotherapist-patient privilege.   We disagree.

 A patient has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication between him and a psychotherapist if the privilege is claimed by the patient.  (Evid.Code, § 1014.)   However, as discussed in City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 231, 231 P.2d 26 (a case involving the existence of a physician-patient privilege under then existing subdivision 4 of section 1881 of the Code of Civil Procedure), “That privilege cannot be invoked when no treatment is contemplated or given.  ‘The confidence that is protected is only that which is given to a professional physician during a consultation with a view to curative treatment;  for it is that relation only which the law desires to facilitate.’  [Citations.]”  The physician-patient privilege (Evid.Code, § 994) and the psychotherapist-patient privilege are analogous.  (In re Lifschutz (1970) 2 Cal.3d 415, 434, 85 Cal.Rptr. 829, 467 P.2d 557.)

Lamb does not argue and the record does not reveal that he was ever treated nor was any treatment contemplated by any of the examiners whom he consulted in connection with his workers' compensation claim.

Also, Evidence Code section 1017 provides, “There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, ․” 4  The Comment of the Law Revision Commission explains this exception:   “[W]hen the psychotherapist is appointed by the court, it is most often for the purpose of having the psychotherapist testify concerning his conclusions as to the patient's condition.   It would be inappropriate to have the privilege apply in this situation.”   The WCAB acts as a judicial body, exercising judicial functions, and is in legal effect a court.  (Carstens v. Pillsbury (1916) 172 Cal. 572, 577, 158 P. 218;  Bankers Indem. Ins. Co. v. Indus. Acc. Com. (1935) 4 Cal.2d 89, 97, 47 P.2d 719;  Fidelity & Cas. Co. of New York v. Workers' Comp. Appeals Bd. (1980) 103 Cal.App.3d 1001, 1015, 163 Cal.Rptr. 339.)   Any physician who conducts an examination or who is present during an examination conducted as part of the workers' compensation process may be required to report or testify.   (Lab.Code, § 4055.)   The rationale expressed in the Comment to Evidence Code section 1017 is directly applicable in proceedings of the WCAB.   Reports of the five examiners were intrinsic parts of the WCAB file, as was Dr. Singer's report, to which he referred as he refreshed his memory in testifying.   For the reasons expressed, we conclude that the psychotherapist-patient privilege never attached to the various examinations of Lamb and to the statements he made to the examiners.

II

EVIDENCE OF OTHER SPECIFIC ACTS TO PROVE CONDUCT

Dr. Singer testified that during one interview Lamb told him about the following incidents:

 Shooting Incident—1974–1975

During that time frame Lamb was on patrol duty.   He received a radio call that a fellow police officer, a close friend of his, had been assigned to a stakeout and had been shot at by a suspect.   Lamb gave chase in his patrol car.   The suspect's vehicle spun out and hit a curb.   Lamb jumped out of his car and was very upset.   Instead of apprehending the suspect and giving him a chance to give up, he fired from the front of the patrol car through the rear windshield killing the suspect.   Later he found out that the suspect was a 17-year-old juvenile and that he didn't have to kill him.   Lamb described himself as being “really angry.”   Lamb became depressed and upset after this because he had never killed anyone before in the line of duty.   A police investigation exonerated Lamb.

Breaking the Wrist Incident

“About a year later” Lamb was assigned to a stakeout in an attempt to apprehend a rapist.   Lamb found the suspect and ran after him.   The rapist was ordered to halt but refused.   Lamb caught up with him, lost his temper and broke the rapist's wrist.   Lamb had no reason to act as he did because the rapist did not resist arrest.   This incident disturbed Lamb and he became upset with himself and fearful of the fact that he could not seem to control his temper outbursts.

General Temper Loss

At unspecified times following this second incident Lamb began to lose his temper more and more and he would beat up suspects.   Many of them were sent to the hospital and they didn't really have to be beaten up that badly.   The record is unclear but apparently Lamb at some point received 22 days of suspension for using excessive force.

Automobile Pursuit Incident

In 1979, Lamb engaged in an automobile pursuit and apprehended a suspect.   Lamb became so angry that he began to beat up the suspect and several of his fellow officers had to pull him off the suspect.   There was confusion in Dr. Singer's notes, and he so testified, whether there was a 22-day or a 30-day suspension following this incident, or whether there were two separate suspensions.

Reference to Various Medical Reports as Part of Lamb's History

Dr. Singer was allowed to read excerpted portions of medical reports from five other examiners which, in addition to corroborating his testimony, revealed the following additional specific incidents:

 At an undetermined point in time Lamb shot at but did not hit a fleeing suspect;  Lamb commented that it demanded less and less to set him off;  he had two more “beefs” in 1976 but he was cleared;  in 1978 he beat his wife;  he had just taken a deposition because of violence against civilians (the case at bench);  that beginning in approximately 1975, Lamb had trouble controlling his temper;  that he transferred out of patrol duty at his own request in 1977, toward the end of the year, to a computer center.   On redirect examination Dr. Singer testified from another report that Officer Lamb, in answering a psychological test, stated, at some undetermined point in time, “I cannot stand obnoxious people.   There ought to be a law to allow you to knock a jerk on his rear end.”

Dr. Singer then testified that based upon his own interview, and in part on the history found in the reports of the five examiners, Lamb's stress and emotional difficulties were related to his work as a police officer and he had recommended that Lamb's police service be discontinued.

Richard claims that the evidentiary statements of Dr. Singer and the excised reports of the other examiners were properly admitted into evidence on one or all of three theories:  (1) The negligent employment/supervision theory;  (2) for the purpose of showing intent, bias, motive, common scheme, absence of mistake or accident;  and (3) for impeachment under Evidence Code section 1101, subdivisions (b) and (c).   Appellants argue that this evidence was improperly introduced, over objections, as mere evidence of a person's character or trait of character offered to prove conduct on a specific occasion, which is in violation of Evidence Code section 1101, subdivision (a).

“The proffered evidence must be ․ analyzed to determine whether it proves something material, disputed, and beyond bare disposition.”  (People v. Alcala (1984) 36 Cal.3d 604, 634, 205 Cal.Rptr. 775, 685 P.2d 1126.)

Negligent Retention

 The argument that the plaintiffs had the right to introduce evidence of acts of specific conduct to show that the City knew or should have known that Lamb had propensities for violence is without merit.   In this case Lamb (and Redman) together with the City were all joined as defendants.   The City and both officers admitted that the officers were acting in the course and scope of their employment, and that, in essence, the City was vicariously liable for the officers' conduct.   As a result of these pleadings, this cause of action added nothing to the plaintiffs' case except  to provide a vehicle for the introduction of specific acts of conduct.5  When Officer Lamb was called to the stand under Evidence Code section 776, he admitted that he used a bar arm hold and wrestled Richard to the pavement.   Thus, the only legitimate issues before the jury were whether the force that Lamb used was reasonable or excessive, and whether Lamb pounded Richard's face into the pavement.

The only logical use of the negligent retention/supervision theory is in a circumstance where the alleged officer tortfeasor is not a party to the action or where the public agency does not admit that the officer was acting in the course and scope of his employment.

The case of Armenta v. Churchill (1954) 42 Cal.2d 448, 267 P.2d 303 is instructive.   There, plaintiffs filed an amended complaint alleging two counts.   The first charged negligence on the part of the driver of a vehicle acting as the agent and employee of his wife.   The second count incorporated all of the allegations of the first count and contained the added allegations that the wife was herself negligent in entrusting the truck to her husband as she had actual knowledge that he was a careless, negligent and reckless driver.   In their answer, both husband and wife admitted the agency and scope of employment, but as to the second count alleging the negligence of the wife in retaining her husband as a driver, the parties entered a denial.   During the trial plaintiffs offered evidence to show that the husband had been found guilty of 37 prior traffic violations, including a conviction of manslaughter, and that the wife knew of these facts.   The trial court sustained an objection.   The Supreme Court reversed the case on other grounds but concluded that the trial court properly sustained defendants' objection.   The court commented:

“[T]he only proper purpose of the allegations of either the first or second count with respect to [wife] was to impose upon her the same legal liability as might be imposed upon [husband] in the event the latter was found to be liable.   Plaintiffs could not have recovered against [wife] upon either count in the absence of a finding of liability upon the part of [husband];  and [wife] had admitted her liability in the event that [husband] was found to be liable․  Since the legal issue of her liability for the alleged tort was thereby removed from the case, there was no material issue remaining to which the offered evidence could be legitimately directed.”  (Armenta v. Churchill, supra, 42 Cal.2d at pp. 457–458, 267 P.2d 303.)

 “Evidence is not relevant in a case unless offered on a contested issue of fact.”  (People v. Reyes (1976) 62 Cal.App.3d 53, 64, 132 Cal.Rptr. 848;  emphasis in original.)   By reason of the plaintiffs' allegation in their complaint and the City's admission in its answer that Redman and Lamb were acting in the course and scope of their employment, there was no contested issue concerning the City's liability if either Redman or Lamb was liable.

Before the introduction of the Singer testimony, appellants' counsel properly objected to its admission and moved to sever the negligent retention/supervision count which the court denied.   In view of the referenced authorities, this was error.6  The Singer testimony was irrelevant to the issue of negligent retention/supervision.

Admissibility of Specific Acts of Conduct to Show Intent, Bias, Motive, Common Scheme, Absence of Mistake or Accident 7

 Richard's arguments on this point are broader here than those he advanced in the trial court to support admissibility of the Singer evidence.   At trial, he argued that the Singer evidence was admissible on the theory of bias, interest, knowledge, motive and “to demonstrate his [Lamb's] anger and the fact that he was given to anger and at the slightest provocation he would lose control of himself;  and, as a result of that condition, he became uncontrollable and used excessive force by his own admissions.”   He did not argue intent, but we address this issue in any event.

The essence of the intentional tort of false imprisonment is deprivation of a person's liberty without lawful justification.  (See Parrott v. Bank of America (1950) 97 Cal.App.2d 14, 22, 217 P.2d 89.)   Even though this count was litigated, the violent conduct of Lamb on other occasions and his admissions testified to by Dr. Singer are irrelevant to this cause of action because they do not bear on deprivation of liberty.

 An arresting officer may use such force as is reasonably necessary to effect a lawful arrest.   A police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested as to such excessive force.  (BAJI 6.74;  Fobbs v. City of Los   Angeles (1957) 154 Cal.App.2d 464, 316 P.2d 668;  Towle v. Matheus (1900) 130 Cal. 574, 62 P. 1064.)

 A battery is any intentional, unlawful and harmful contact by one person with the person of another.  (BAJI 6.71;  Rest.2d Torts, § 18.)   The intent necessary to constitute civil battery is not an intent to cause harm but an intent to do the act which causes the harm.  (See Singer v. Marx (1956) 144 Cal.App.2d 637, 642, 301 P.2d 440.)

Lamb admitted the intentional application of the bar arm control hold on Richard.   The Singer testimony thus was irrelevant on this point as there was no contested issue as to intent or as to bias, common scheme, absence of mistake or accident.

However, Richard also claimed his face was beaten into the pavement.   Lamb denied this.   The prior incidents identified in the Singer testimony had no relevance to the specific issue of whether Lamb did or did not pound Richard's face into the pavement because none of that evidence concerned this type of conduct.  (People v. Sam (1969) 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700.)   In Sam, the defendant was charged with murder but convicted of involuntary manslaughter.   The victim died of a “blunt blow or blows to the abdomen.”  (Id., at p. 199, 77 Cal.Rptr. 804, 454 P.2d 700.)   Defendant admitted kicking the decedent once during a fight.   Over objection, the People introduced evidence that on two prior occasions the defendant kicked people he fought with.   On each of these occasions the defendant used only one kick.   The Supreme Court concluded that the “single kick” testimony was not relevant on the issue of multiple kicks.

“[T]he relevancy of other crimes, and therefore its admissibility, must be examined with care.  [Citation.]  The evidence should be received with ‘extreme caution,’ and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused.”  (People v. Sam, supra, 71 Cal.2d at p. 203, 77 Cal.Rptr. 804, 454 P.2d 700.) 8  The court continued that there is a “presumption for exclusion where there is substantial doubt as to relevance.”  (Id., at p. 204, 77 Cal.Rptr. 804, 454 P.2d 700.)

Moreover, if the jury believed that after rendering him unconscious, Lamb beat Richard's face into the pavement several times, there  could be no question respecting Lamb's intent to batter Richard.   Under the Sam rule (evidence of kicking only once on two prior occasions is not relevant on the issue of multiple kicks), evidence of shooting an armed felon, post facto wife beating, generalized assaults and batteries on criminal suspects and admissions of post event remorse is not probative on the specific issue here of whether Lamb did or did not beat Richard's face into the pavement.   Such evidence should not have been admitted.

In its ruling, the trial court concluded there was no issue of bias, interest, knowledge or motive (the statutory bases argued) when it did not articulate any of these rationales as the reason for admitting the evidence insofar as Lamb was “given to anger and at the slightest provocation he would lose control of himself.”

The use of “character to prove conduct” evidence is expressly prohibited by Evidence Code section 1101, subdivision (b).   However, this is the theory incorrectly adopted by the trial court when it stated that the Singer evidence was admissible “to show that he [Lamb] has a tendency to act in a particular way when he is provoked and that he did it before, he did it at this particular situation and he probably did it afterwards, and he did it afterwards.”

 Closely related to the issue of intent is the issue of motive, argued both before the trial court and in this appeal.   Richard sought and was awarded punitive damages after being appropriately instructed by the trial court.   One of the instructions advised the jury that plaintiff was entitled to recover punitive damages if the defendant was guilty of malice.   “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff.”  (BAJI 14.71 (1981 Revision);  Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 113 Cal.Rptr. 711, 521 P.2d 1103.)   The requirement of showing malice in order to recover punitive damages does not, however, automatically permit the use of otherwise inadmissible evidence of specific conduct.9

 The teachings of Gibson are particularly pertinent in the instant case given Richard's primary contention that Lamb was “given to anger and at the slightest provocation would lose control of himself;  and, as a result of that condition, he became uncontrollable and used excessive force.”   This is too nebulous a proposition to support the admissibility of the Singer evidence on the theory of proving motive, particularly when it  is clear from the record that Richard and Lamb had never had any prior contact with each other.   Since this assertion of generalized and ambulatory hostility towards criminal suspects could not be “clearly perceived” as bearing on the issue of Richard's face being pounded into the pavement, the Singer evidence was inadmissible on the theory of malice or motive.  (People v. Sam, supra, 71 Cal.2d 194, 203, 77 Cal.Rptr. 804, 454 P.2d 700.) 10

Impeachment

 As a third alternative for the admissibility of other specific acts, Richard argues that the evidence was offered for impeachment of Lamb.11  We disagree.

In order to place this argument in context, we recall that Lamb was called on plaintiffs' case-in-chief as an adverse witness pursuant to Evidence Code section 776.   He did not take the stand in his own defense at any time during the case.   Richard's counsel first elicited testimony from Lamb that Richard had referred to both officers as “pigs.”   Lamb was then asked whether this statement caused him to become angry or upset.   He indicated that although these statements did not upset him, he became upset when he concluded that Richard intended to leave the scene, as partially evidenced by Richard's statements.   Lamb indicated that he did not become angry although Richard did seem to be a little bit provocative and insulting.   On this issue, the following colloquy ensued:

“Q. [Counsel] Isn't it true that during the period of time in November of 1976 and for at least two years before that you used to fly off into uncontrollable rages?

“A. No.

“Q. This is not true?

“A. No.

“Q. Did you ever tell anybody that you did?

“A. Not to my recollection.”

 At this point an objection on the grounds of irrelevancy was made.12

Later, Lamb was asked a series of questions concerning his statements to the various doctors whose records constituted part of the WCAB file.   In sum, Lamb testified that he had no recollection of the statements made or that he did not remember seeing some of the examiners.   Under these circumstances, the evidence was inadmissible for purposes of impeachment.

“[E]vidence of a specific instance of a witness' conduct is inadmissible under Evidence Code section 787 to impeach the witness as proof of a trait of his character but may become admissible to impeach the witness pursuant to Evidence Code section 780, subdivision (i), by proving false some portion of his testimony.  [¶] ․ a cross-examiner may not elicit testimony on a collateral matter for the purpose of contradicting that testimony or proving it to be false pursuant to Evidence Code section 780, subdivision (i).  [Citations].”  (People v. Reyes, supra, 62 Cal.App.3d at p. 62, 132 Cal.Rptr. 848;  emphasis in original;  see also Vise v. Rossi (1957) 150 Cal.App.2d 224, 309 P.2d 538.)   A witness' testimony, thus elicited, does not open the door.

Also, “ ‘[t]he right of impeachment does not exist where the witness states he has no recollection of the fact concerning which he is examined.’   [Citation.]  ․ In enacting section 1235 of the Evidence Code, the Legislature has retained the fundamental requirement that the witness' prior statement in fact be ‘inconsistent with his testimony at the hearing’ before it can be admitted.”  (People v. Sam, supra, 71 Cal.2d at p. 210, 77 Cal.Rptr. 804, 454 P.2d 700, emphasis in original;  cf. People v. Parks (1971) 4 Cal.3d 955, 960, 95 Cal.Rptr. 193, 485 P.2d 257.)

Justice Jefferson's comment on Sam in California Evidence Benchbook, Second Edition, page 941 concludes:  “Therefore, until the California Supreme Court makes some clarification of the statement contained in Parks, it must be accepted that the Sam case is still good law, and that a witness whose testimony consists exclusively of ‘I don't remember’ answers to questions has given no testimony, either express or implied, that is subject to impeachment by evidence of prior statements.”  (Emphasis in original.)

The Singer testimony was inadmissible on the issue of impeachment.

Evidence Code Section 352

 Assuming the absence of these described impediments to the admissibility of the Singer evidence, it would properly have been excludable under the discretion allowed by Evidence Code section 352.

“ ‘ “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.   Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition․  It would be too much to expect them to do so if they knew that all they say—and all that the psychiatrist learns from what they say—may be revealed to the whole world from a witness stand.” ’ ”  (In re Lifschutz, supra, 2 Cal.3d at p. 431, 85 Cal.Rptr. 829, 467 P.2d 557, quoting Taylor v. United States (D.C.Cir.1955) 222 F.2d 398, 401 (quoting from Guttmacher, M., et al., Psychiatry and the Law (1952) p. 272).)

These poignant thoughts are apposite here even though Lamb was not a psychiatric patient, and as we have concluded, the psychotherapist-patient privilege did not attach to his statements and admissions to the various examiners who examined him in connection with the WCAB proceedings.   In this area the careful exercise of the court's discretion is necessary to provide substantial protection to a party's legitimate interests and his right to privacy.   Lamb's legitimate interest here was his statutory right to seek a work-related disability retirement.   His revelations to the various WCAB examiners were not volunteered, but mandatory.13

The litany of specific acts and admissions we have enunciated ran the gamut from a pre-Richard arrest episode of a homicide which resulted in Lamb's complete exoneration, through other, sometimes undated, and generalized episodes of over-aggressive police behavior, and ended with an admission of post facto wife beating.   This evidence could only make Lamb appear to be an anti-social police officer of generally bad character, possessing a violence-prone personality and a hair trigger temper rendering him  generally unworthy of the jury's belief or consideration.   The entire line of Singer's testimony, and the examiner's reports, should have been excluded under Evidence Code section 352.   The probative value of this evidence was substantially outweighed by the probability that its admission would be unduly prejudicial, confuse the issues under consideration, consume undue time and mislead the jury.   Its admission deprived appellants of a fair trial.

In view of our determinations, we do not address the other issues raised by counsel in their briefs.

DISPOSITION

The judgment as to the City and Lamb is reversed.   Each party to bear its own costs.

FOOTNOTES

1.   Other facts, pertinent to the discussion at hand, are referenced infra.

2.   The jury also found for the City on the issue of negligent retention/supervision respecting Lamb.

3.   Lamb was interviewed by 11 or 12 doctors in connection with his compensation claim.   Reports from only six examiners, including that of Dr. Singer, were received into evidence.

4.   There are enumerated exceptions for criminal proceedings not pertinent here.

5.   The conduct here introduced included specific acts performed both before and after November 17, 1976, the date Richard and Robert were allegedly injured.   Post facto conduct, e.g., wife beating, is totally irrelevant on the negligent retention/supervision theory and highly prejudicial.

6.   Indeed, Richard's counsel argued to the jury that they need not adopt the negligent retention theory to hold the City liable.   Also, the compensatory damage verdicts were against the City only.

7.   Evidence Code section 1101, subdivision (b) reads:  “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident) other than his disposition to commit such acts.”

8.   Although the matter before us is civil in nature, the operative facts of the alleged battery as well as the specific acts of assaultive conduct found in the Singer testimony appear to be criminal in nature.Most of the reported cases are criminal matters.   However, Evidence Code section 1101, subdivision (b) by its terms applies to civil actions, and the principles found in the criminal cases are applicable.

9.   An extensive discussion of this issue appears in People v. Gibson (1976) 56 Cal.App.3d 119, 128 Cal.Rptr. 302.   In that case defendant was convicted of second degree murder.   Evidence of other crimes was admitted to establish that defendant committed prior criminal offenses against three victims:  A robbery involving injury to a female victim, a battery against a crippled victim lying in bed, and a battery against a third victim and a theft from this same victim.   The trial court ruled that the other crime's evidence was admissible because of its relevance to the defendant's state of mind—his intent and motive—at the time of the charged offense.   The jury was cautioned that such evidence could only be considered by them for the purpose of determining that issue—not as indicative of “criminal propensities” on the defendant's part.   The jury was also instructed at the close of the trial in the same vein.   The court discussed the evidentiary problem in the following terms:“It should be kept in mind that other-crimes evidence, relevant as circumstantial evidence to prove conduct, generally falls into two broad categories.   One category is that of character trait or propensity evidence․  The second broad category for relevancy of such other-crimes evidence is that such evidence tends to establish a state-of-mind or state-of-emotion fact․“Evidence Code section 1101 makes the distinction in admissibility between the two categories.  Section 1101, subdivision (a) makes inadmissible other-crimes evidence when the relevancy theory is that of character trait or propensity use of such evidence to prove that defendant committed the crime charged.   On the other hand, Evidence Code section 1101, subdivision (b) makes admissible the other-crimes evidence when relevancy is predicated on a state-of-mind or state-of-emotion fact which, in turn, leads to an inference of the existence of that same state-of-mind fact at the time of the charged offense, or, that defendant acted in accordance with his state of mind and committed the charged offense.“Under Evidence Code section 1101, subdivision (b), however, other-crimes evidence becomes subject to exclusion in a particular case by application of Evidence Code section 352.   It is obvious that there is a thin line between the employment of other-crimes evidence to establish a defendant's character trait or propensity and its use for some other purpose.   The courts have recognized that, whenever other-crimes evidence is offered under Evidence Code section 1101, subdivision (b), there is always the potential for great prejudice to a defendant because of its possible misuse by the jury as character trait or propensity evidence.”   (People v. Gibson, supra, 56 Cal.App.3d at p. 128, 128 Cal.Rptr. 302;  emphasis in original.)“[T]he probative value of other-crimes evidence as character trait evidence is of slight or weak value when compared with the danger of its prejudicial effect․“The same danger exists when other-crimes evidence is offered under section 1101, subdivision (b) because the jury is very apt to use such evidence to punish a defendant because he is a person of bad character, rather than focusing upon the question of what happened on the occasion of the charged offense․  [Citations.]“We recognize that even when the commission of a criminal act is a disputed issue, evidence of motive may become relevant to that issue.   Motive is itself a state-of-mind or state-of-emotion fact.   Motive is an idea, belief or emotion that impels or incites one to act in accordance with his state of mind or emotion․  Other-crimes evidence, admitted to prove a defendant's motive, is much closer to its use as character trait evidence than when it is offered solely to prove defendant's intent.   In terms of prejudicial consequence, there is very little difference, however, between other-crimes evidence that is introduced to establish a defendant's motive and thence to the inference that the charged offense was committed by defendant in accordance with such motive, and other-crimes evidence as character trait evidence that leads to the same inference—that a defendant acted in accordance with such character trait and committed the charged offense.”  (Id., at pp. 129–130, 128 Cal.Rptr. 302;  emphasis in original.)“Although Evidence Code section 352 gives the trial judge wide discretion, it is a discretion that must be exercised with discerning care in connection with the question of the admissibility of other-crimes evidence offered against a defendant, because of the inherently prejudicial nature of such evidence as constituting character trait and propensity evidence․”  (Id., at p. 131, 128 Cal.Rptr. 302.)The court concluded that the admission of the three prior acts referenced infra constituted an abuse of discretion under Evidence Code section 352.  (Ibid.)In passing, the Gibson court also noted that “It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its limited relevant purpose can have any realistic effect․  We live in a dream world if we believe that jurors are capable of hearing such prejudicial evidence but not applying it in an improper manner.”   (People v. Gibson, supra, 56 Cal.App.3d at p. 130, 128 Cal.Rptr. 302.)

10.   Beating the face of an unconscious suspect into the pavement, if believed, is ipso facto strong evidence of malice.

11.   Evidence Code section 1101, subdivision (c) provides:  “Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”

12.   The court and counsel then went into chambers where appellants' counsel made several objections to the line of testimony sought to be elicited from Lamb and the anticipated testimony from Dr. Singer.   Counsel argued that:  (1) the evidence was inadmissible character evidence under Evidence Code section 1101 and did not come within any exception;  (2) the proffered evidence was an attempt to “bootstrap” an otherwise irrelevant issue into the case and constituted an attempt to impeach on collateral matters;  (3) the receipt of Lamb's purported statements in the medical reports for the purpose of showing the truth of what he said was hearsay;  and (4) the evidence was unduly prejudicial and should be excluded pursuant to Evidence Code section 352.   The court overruled these objections.Richard's counsel argued the 1975 killing episode to the jury in a manner that characterized the incident as a sustained fact rather than as a medical history notation, even though a police investigation had completely exonerated Lamb from culpability.

13.   We opine, based upon the results of the WCAB determinations, that it was in the overall public interest that Lamb's service as a police officer be discontinued.

EAGLESON, Associate Justice.

ASHBY, Acting P.J., and WISOT, J.*, concur.