McNair v. City & County of San Francisco

Opinion

This action arises out of a letter written by Dr. Ann Kim disclosing her patient Michael McNair’s confidential medical history and health conditions. Dr. Kim sent the letter to the Department of Motor Vehicles (DMV) against McNair’s wishes due to public safety concerns. As a result, McNair’s commercial driver’s license was temporarily revoked, and he lost his job as a bus driver. After McNair filed suit alleging injury due to breach of his medical privacy rights, the trial court granted summary adjudication on his intentional tort cause of action and nonsuit on his breach of contract claim. Specifically, the trial court determined that McNair’s intentional tort

The medical examination report submitted to the DMV required McNair to certify under penalty of perjury that he had provided true and correct information concerning his health. It stated that any false information could invalidate his medical examiner’s certificate. However, in the medical examination report McNair provided to the DMV in 2004, McNair did not disclose that Dr. Pope had diagnosed him with reading, personality, and cognitive disorders. McNair claimed that he talked to his doctor about it and didn’t think that he needed to disclose the information.

In 2005, the Homeless Advocacy Project arranged for McNair to see Dr. Joanne Keaney, Ph.D., in order for the doctor to determine if McNair would qualify for SSI benefits. Later that year, Dr. Kim asked to see Dr. Keaney’s report because she was also trying to help McNair qualify for SSI benefits and believed her report would help him. On June 1, 2005, Dr. Kim wrote a letter to support McNair’s application for SSI disability benefits and stated, in her opinion, that he was not able to hold down any type of full-time employment. Dr. Kim understood that the Social Security Administration wanted to know a doctor’s opinion regarding whether the patient could work. If the patient could work, no benefits would be awarded. Dr. Kim believed that McNair’s SSI application was eventually granted.

Thereafter, on April 20, 2006, Alameda-Contra Costa County Transit District (AC Transit) hired McNair as a bus operator. McNair began a 10-week training program on April 25, 2006, and began driving regular bus routes on July 31, 2006. He told Dr. Kim about his new full-time job driving for AC Transit on August 29, 2006.

On October 18, 2006, Dr. Kim learned from a nurse that McNair needed a doctor’s note sent to the DMV explaining his absence from a DMV hearing. The hearing dealt with McNair’s application for a School Pupils Activity Bus (SPAB) certificate to drive school buses. Dr. Kim did not write a letter of absence for him because, according to her records, McNair was not at the doctor’s office on the day of the hearing. She did, however, call McNair on

Nevertheless, later that day, Dr. Kim wrote a letter to the DMV concerning McNair’s diagnosis of Cognitive Disorder NOS. As stated above, McNair did not give permission to Dr. Kim to send this letter. The letter stated:

“I am Mr. Michael McNair’s primary care physician at Maxine Hall Health Center. It has recently come to my attention that Mr. McNair has been approved for a commercial driver’s license. I did not sign off on his medical evaluation forms.

“While I do not know of an occasion in which Mr. McNair suffered a lapse of consciousness, I believe it is in the interest of public safety that the DMV is aware that he has been diagnosed with Cognitive Disorder NOS. A neuropsychiatric assessment from May, 2005 performed by Joanne Keaney, PhD was done as a follow-up from a prior neuropsychiatric evaluation. Her assessment was that Mr. McNair is functionally illiterate, lacks the capacity to set limits on himself and fails to understand the consequences of his behavior. She thought his primary difficulty remaining employed appears not [y/c] be the result of mild congenital or developmental brain damage that has not only affected his cognitive skills but more importantly has impaired his judgment, impulse control, insight, forethought and ability to introspect.

“Dr. Pope’s initial neuropsychiatric evaluation from 2002 states that he would advise serious caution in recommending that his professional driving license be renewed. He found Mr. McNair to also suffer from a personality disorder with limited insight, impulsiveness, and poor judgment.”

Dr. Kim wrote the letter out of concern for McNair’s safety and the safety of the public. She based her statements in the letter to the DMV on her own observations made while treating McNair at the MHHC and on the specialists’ reports written by Drs. Pope and Keaney. Dr. Kim learned from Dr. Pope’s report that McNair had been fired in the past for his unwillingness to assist passengers. Dr. Pope’s report also detailed the incident where McNair drove a bus over the Mexican border with children on board. Dr. Kim thought these past events were relevant to his ability to drive a school bus. In his report, Dr. Pope made a recommendation that McNair should not have a license to drive commercial vehicles. Dr. Keaney’s report echoed Dr. Pope’s opinions regarding McNair’s vocational history and his ability to drive. Dr. Kim did not think, however, that either Dr. Pope or Dr. Keaney made any report to the DMV concerning McNair.

In November 2011, the City moved for summary judgment or, in the alternative, summary adjudication. After hearing, by order dated May 8, 2012, the trial court denied the City’s motion for summary judgment and its motion for summary adjudication as to McNair’s breach of contract cause of action. However, the trial court granted the City’s motion for summary adjudication of McNair’s intentional tort cause of action. Specifically, the order stated: “The intentional tort cause of action fails based on the litigation privilege. [Citations.] HIPAA does not preempt the litigation privilege. The purpose of HIPAA is to protect medical confidences, not provide a cause of action.”

Before trial on the breach of contract cause of action, the trial court resolved numerous motions in limine filed by both the City and McNair. Thereafter, upon the close of McNair’s evidence, the City moved for nonsuit. The court ultimately granted nonsuit on a myriad of grounds, including (1) that the litigation privilege applied to a contract cause of action premised on Dr. Kim’s letter; (2) that McNair failed to present evidence that the City intended to enter into a contract with him; (3) that McNair did not present evidence that the contract was approved as to form by the City Attorney’s office; (4) that McNair did not present evidence of breach of contract because Dr. Kim was permitted to report someone to the DMV who she believed was a danger to the public; (5) that McNair did not present evidence that any damages were foreseeable at the time of contract formation because he was not employed by AC Transit at that time; and (6) that McNair did not present any evidence of consideration for the contract.

The trial court entered judgment in favor of the City on April 12, 2013, with notice of entry on April 18. McNair’s timely notice of appeal now brings the matter before this court.

1. Standard of Review

The trial court granted the City’s motion for summary adjudication of McNair’s intentional tort cause of action. “A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action.” (Garcia v. W&W Community Development, Inc. (2010) 186 Cal.App.4th 1038 , 1041 [ 112 Cal.Rptr.3d 394 ].) On appeal, we review an order granting summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 860 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ]; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127 , 150-151 [ 204 Cal.Rptr.3d 330 ].) Moreover, “we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433 , 1438 [ 111 Cal.Rptr.2d 534 ].)

2. The Litigation Privilege

‘“The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 , 1241 [ 63 Cal.Rptr.3d 398 , 163 P.3d 89 ] (Action Apartment).) ‘“The usual formulation is that the privilege applies 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 have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205 , 212 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ] (Silberg).) The litigation privilege is ‘“not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048 , 1057 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ].) It is applied broadly, and doubts are resolved in favor of the privilege. (Wang v. Heck (2012) 203 Cal.App.4th 677 , 684 [ 137 Cal.Rptr.3d 332 ] (Wang); Ramalingam v. Thompson (2007) 151 Cal.App.4th 491 , 500 [ 60 Cal.Rptr.3d 11 ].)

The purpose of the litigation privilege is to afford litigants and witnesses freedom of access to the courts without the fear of harassment by subsequent

Additionally, in Wang, supra, 203 Cal.App.4th 677 , two individuals were critically injured after being struck by a car driven by an individual who suffered an epileptic seizure. The victims subsequently sued the driver’s neurologist based on the doctor’s prior report to the DMV that the driver’s epilepsy did not affect his ability to drive safely. (Id. at p. 679.) The appellate court held that none of the appellants’ causes of action could stand because they all relied on the doctor’s report to the DMV, which was clearly covered by the litigation privilege as a communication authorized by law submitted to the DMV to aid in determining driver safety. Appellant attempts to distinguish Wang because that case “concerned a report to the DMV that was required to get a license reinstated and that the patient requested the doctor to complete.” (See id. at pp. 680-681.) McNair also points out that there was no issue of a CMIA violation in Wang. We do not find either of these distinctions meaningful. Rather, as in Wang, Dr. Kim’s letter was an authorized communication to the DMV to aid that quasi-judicial agency in determining McNair’s driving capabilities. As such, it was covered by the privilege.

Indeed, McNair does not even argue on appeal that Dr. Kim’s letter, as a general matter, fails to meet the criteria for application of the litigation privilege. Rather, he cites authority for an exception to the litigation privilege, under which courts have refused to apply the privilege when its general provisions conflict with a specific statute. Under this line of cases, application of the litigation privilege has been deemed inappropriate where the specific statute “would be significantly or wholly inoperable if its enforcement were barred when in conflict with the privilege.” (Action Apartment, supra, 41 Cal.4th at pp. 1237, 1246 [City of Santa Monica tenant harassment ordinance]; see also Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324 , 337-340 [ 95 Cal.Rptr.3d 880 ] [Rosenthal Fair Debt

With respect to the potential violation of the CMIA, the Shaddox court emphasized that ‘“California has a policy of encouraging reports concerning suspected misconduct or unfitness by law enforcement officers.” (Shaddox, supra, 110 Cal.App.4th at p. 1412.) Specifically, the court pointed to a local ordinance encouraging citizens to report claims of misconduct and a state statute requiring each law enforcement agency to establish a procedure for investigating such complaints. (Id. at pp. 1412-1413.) Although none of the referenced statutes expressly authorized the disclosure of confidential information, the court concluded that this did not exclude them from the reach of subdivision (c)(14) because they involved a particular type of communication authorized by law. (Shaddox, at pp. 1413-1414, 1418.) The Shaddox court also highlighted the important public safety concerns implicated by the dentist’s report and noted that ‘“issues of public safety may be paramount to personal privacy.” (Id. at p. 1418.) In this regard, the court quoted the seminal case of Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [ 131 Cal.Rptr. 14 , 551 P.2d 334 ], in which our Supreme Court concluded: “ ‘[T]he public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins: ” (Shaddox, supra, 110 Cal.App.4th at p. 1418.) And, the dentist’s report was one the importance of which was recognized and immunized by the litigation privilege. (See ibid.) Under all of these circumstances, the Shaddox court determined that the dentist’s disclosure in that case was authorized under subdivision (c)(14) and therefore not violative of the CMIA. (Shaddox, at p. 1418.)

As we read Shaddox, a voluntary disclosure of confidential medical information falls within the reach of subdivision (c)(14) if a public policy exists encouraging such disclosure; the disclosure involves issues of public safety; and it is a communication which would otherwise be immunized by the litigation privilege. In this case, California clearly has a policy of encouraging, and sometimes even mandating, reports regarding suspected unsafe drivers. As described above, the DMV website indicates that the agency finds out about persons who may be unsafe to drive from many sources, including physicians and members of the public. Health and Safety

2. The Litigation Privilege

The City argues that the trial court properly granted nonsuit on McNair’s breach of contract cause of action because it is barred by the litigation privilege. McNair, in contrast, asserts that the litigation privilege generally applies only to causes of action in tort and not breach of contract. In Navellier v. Sletten (2003) 106 Cal.App.4th 763 [ 131 Cal.Rptr.2d 201 ] (Navellier II), this Division noted that, while certain earlier decisions had applied the litigation privilege to bar breach of contract claims, generally the privilege is “described as one that precludes liability in tort, not liability for breach of contract.” (Id. at p. 773.) Without deciding the issue, we further remarked that these prior cases did not “discuss whether all breach of contract actions involving privileged communication are necessarily precluded.” (Id. at p. 774; see Laborde v. Aronson (2001) 92 Cal.App.4th 459 , 461-463 [ 112 Cal.Rptr.2d 119 ], disapproved on another point in Musaelian v. Adams (2009) 45 Cal.4th 512 , 520 [ 87 Cal.Rptr.3d 475 , 198 P.3d 560 ]; Pollock v. Superior Court (1991) 229 Cal.App.3d 26 , 28-30 [ 279 Cal.Rptr. 634 ].)

Since Navellier II, however, subsequent appellate decisions have clarified when the litigation privilege applies to breach of contract claims. For example, in Wentland v. Wass (2005) 126 Cal.App.4th 1484 [ 25 Cal.Rptr.3d 109 ] (Wentland), the court held that the litigation privilege did not protect voluntary statements made in the course of litigation that breached an express confidentiality agreement. (Id. at pp. 1489-1490.) The court concluded that “whether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege.” (I d. at p. 1492.) According to Wentleinel, those underlying policies are to “ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.” (Ibid.) Ultimately, the court concluded that the litigation privilege did not apply because the breach at issue “was not simply a communication, but also wrongful conduct or performance under the contract.” (Id. at 1494.) As the Wentleinel court saw it: “In reaching settlement . . . , the parties presumably came to an acceptable conclusion about the truth of [one party’s] comments about [the other’s] management of the partnership. Allowing such comments to be made in litigation, shielded by the privilege, invites further litigation as to their accuracy and undermines the settlement reached in the [prior dispute].” (Ibid.)

In contrast, in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 , 1497 [ 74 Cal.Rptr.3d 1 ], the appellate court concluded that

More recently, in Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 [ 153 Cal.Rptr.3d 707 ] (Vivian), the appellate court held that the litigation privilege applied to bar a breach of contract claim where an ex-wife made voluntary statements about her ex-husband to a county sheriffs internal affairs department, in alleged violation of a settlement agreement previously negotiated by the parties in the context of litigation over a temporary restraining order. {Id. at pp. 270-271, 276-277.) In that settlement agreement, each party agreed “ ‘not to disparage the other to any other party.’ ” {Id. at p. 270.) The court concluded that the litigation privilege applied to bar the ex-husband’s breach of contract claim for two reasons. First, the settlement agreement did not “clearly prohibit” the conduct that the ex-husband challenged. {Id. at p. 276.) Specifically, the term “ ‘disparage’ ” was viewed as somewhat ambiguous and thus the language of the agreement did not “expressly prohibit” the ex-wife from making statements to the internal affairs investigators. {Id. at p. 277.) Second, the application of the litigation privilege furthered the policies underlying the privilege. {Id. at p. 277.) In particular, and in contrast to Wentland, the dispute in the case involved “a significant public concern—a governmental investigation into inappropriate conduct by a police officer.” {Ibid.) Application of the privilege in such circumstances promoted “full and candid responses to a public agency, which is very much the purpose of the privilege and in the public interest.” {Ibid.)

Under the analysis adopted in Vivian, application of the litigation privilege to bar McNair’s breach of contract claim is clearly warranted in this case. With respect to the terms of the alleged agreement, for instance, none of the documents even potentially identified by McNair as part of the “[pjartly written, partly oral and partly implied” contract in this matter can be said to “clearly prohibit” Dr. Kim’s conduct in this case. (Vivian, supra, 214 Cal.App.4th at p. 276.) Rather, as discussed above, the Consents all stated that McNair’s medical records could be released by DPH when “permitted or required by law.” And, pursuant to the HIPPA Privacy Notice and the DPH