Munden v. Sup. Ct.
Filed 2/15/07 Munden v. Sup. Ct. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| DENNIS MUNDEN et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; | D050169 (San Diego County Super. Ct. No. GIC849081) |
| COLLEEN JANE STUETZER et al., Real Parties in Interest. |
Proceedings in mandate after trial court ordered production of treatment and counseling records. Linda B. Quinn, Judge. Petition granted.
FACTUAL AND PROCEDURAL BACKGROUND
Colleen Jane Stuetzer (Stuetzer) filed an action against La Mesa-Spring Valley School District (District) and La Mesa Middle School principal Dennis Munden (Munden) for retaliation for whistleblowing, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress and constructive discharge.1 In her complaint, Munden's former secretary Stuetzer alleges that Munden was regularly drunk on the job, Stuetzer reported Munden's alcohol abuse to the District superintendent, the District placed Munden on a leave of absence from August through October 2004 immediately following Stuetzer's report, Munden retaliated against Stuetzer by creating a hostile work environment once he returned to work, and the District failed to respond to or address Stuetzer's complaints.
Stuetzer propounded requests for production of documents. Munden raised privilege and privacy objections to the requests for documents related to (1) an alcohol abuse program he attended during his leave of absence from August through October 2004, and (2) prescriptions for "antabuse" from 1996 to present.2 Stuetzer moved to compel production of the documents. The court granted the motion and announced it would conduct an in camera review of the documents "to assess the value of what is in the documents to . . . Stuetzer v. the harm disclosure might cause . . . Munden" and would limit production to counsel in this matter and only for purposes of this lawsuit.
Munden and the District (together defendants) produced under seal the requested treatment records from the alcohol abuse program Munden attended during his leave of absence from August through October 2004, and stated there were no documents responsive to the request for prescriptions for "antabuse" from 1996 to present. After reviewing the documents, the court issued an ex parte minute order requiring the production of eight redacted pages of documents.
Defendants followed with this petition, complaining that the records the court has ordered produced consist of documents relating to communications between Munden and the treatment center, including information Munden provided intake to assist the psychotherapist and documents that pertain to the purpose of Munden's visit and treatment sought. They argue the psychotherapist-patient privilege protects these treatment and counseling records, and there is no evidence that Munden ever tendered his mental state as an issue in the case or otherwise disclosed or waived his privilege. Defendants also contend, even if the psychotherapist-patient privilege does not apply, Munden's constitutional right to privacy protects the documents: because a whistleblower employee may prove retaliation by showing he or she had a reasonable belief that the defendant violated a statute, Stuetzer may simply testify that she reasonably believed Munden was drunk on campus based on his slurred speech, bloodshot eyes, and other behavior, say defendants, and Munden's actual intoxication or receipt of treatment is irrelevant.
We stayed the document production and requested a response. In response, Stuetzer maintains that when Munden filed a general denial in the case, he put his drunkenness at issue and opened the door to discovery of his treatment records. Citing San Diego Trolley v. Superior Court (2001) 87 Cal.App.4th 1083, 1091, she asserts the psychotherapist-patient privilege may be outweighed by other societal interests, including the public interest against a principal being drunk at school. She also claims that, by being intoxicated at work, Munden waived any legitimate concern in the purpose of the privilege to prevent patient humiliation, which would result from disclosure.
Finally, Stuetzer argues the relevance of the documents outweighs any privacy concerns because Munden's intoxication is a central element of all four of her causes of action, and she needs the treatment records to rebut his general denial and prove his drunken conduct.
DISCUSSION
The psychotherapist-patient privilege encourages effective treatment of mental illness by creating a steadfast safeguard for psychotherapeutic confidentiality. (San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at p. 1091.) By its terms, the privilege protects "confidential communication between patient and psychotherapist." (Evid. Code, §§ 1012, 1014.3) The privilege "can cover a communication that was never, in fact, confidential so long as it was made in confidence . . . [and] a communication that has lost its confidential status." (San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at. p. 1091, citing Menendez v. Superior Court (1992) 3 Cal.4th 435, 447-448.) Even when a patient may be said to have waived the privilege, the law construes any waiver narrowly, provides a variety of protections that remain available to preserve the privacy of the patient and prohibits use of any disclosure in unrelated proceedings. (San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at pp. 1092-1094.)
Stuetzer's arguments are not sufficient to undermine the privilege. First, although as a general rule, by filing suit, the plaintiff may put his or her mental or emotional condition at issue and may, to a limited extent, waive the privilege under the litigant-patient exception of section 1016 (In re Lifschutz (1970) 2 Cal.3d 415, 431), Stuetzer has directed us to no authority equating a general denial to a tender of Munden's mental state. To the contrary, the law recognizes that, by denying liability, a defendant does not put his or her condition at issue and thereby sacrifice the psychotherapist-patient privilege. (City of Alhambra v. Superior Court (1980) 110 Cal.App.3d 513, 519 [officer-defendant in action for police misconduct did not tender mental condition by denying liability]; see also Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 289-290 [defendant's denial of allegation in complaint that he was intoxicated at time of accident did not amount to tender of issue for purposes of doctor-patient privilege].)
A patient may also waive the privilege by a disclosure of communications related to his or her treatment but, to do so, the patient must, without coercion, voluntarily disclose a significant part of an otherwise confidential communication. (§ 912.) Mere disclosure of the existence of a psychotherapist-patient relationship -- even disclosure of the purpose of the psychiatric treatment -- does not reveal a significant part of the confidential communications and thus does not itself constitute a waiver of the privilege. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 340; San Diego Trolley, Inc. v. Superior Court, supra, 87 Cal.App.4th at p. 1092.)
Munden has not put his condition at issue by simply filing a general denial, and Stuetzer points to no disclosure on Munden's part that would remotely support invasion into his treatment records.
Second, Stuetzer's reliance on San Diego Trolley for the proposition that the psychotherapist-patient privilege should yield to the societal interest of not having an intoxicated principal at school is misplaced. In San Diego Trolley, the court addressed the express exception to the psychotherapist-patient privilege created by the Legislature under section 1024 for dangerous patients4 and construed section 1024 narrowly to limit disclosure only to "those communications which triggered the psychotherapist's conclusion that disclosure of a communication was needed to prevent harm." (San Diego Trolley, supra, 87 Cal.App.4th at p. 1091.) The Legislature has enacted no exception to the privilege for being intoxicated at school. There is, further, no indication in the record that any psychotherapist has ever identified Munden as a dangerous patient.
Finally, even if the psychotherapist-patient privilege were not applicable, privacy considerations prevent the intrusion into Munden's counseling records where, as here, Stuetzer
admittedly has evidence from her own account and the testimony of others that Munden was intoxicated at school.5
Under these circumstances, we conclude defendants' entitlement to relief is clear and a peremptory writ in the first instance is proper. (Code Civ. Proc., § 1088; Alexander v. Superior
Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its order requiring the production of the redacted pages of Munden's counseling records and to issue an order denying the production. The stay issued on January 24, 2007, is vacated. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).) Defendants are entitled to costs, if any, in the writ proceeding.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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1 Stuetzer's husband Thomas is also a named plaintiff. We do not refer to him or his status as coplaintiff in the opinion, however, because the writ proceeding does not involve his loss of consortium claim and we have been advised his claim was dismissed.
2 Munden also raised privilege and privacy objections to Stuetzer's other requests for documents involving alcohol abuse programs Munden attended before or after his leave of absence and his attendance at AA from 1996 to the present. Although these requests were also included in Stuetzer's subsequent motion to compel and the court ordered documents responsive to the requests produced, the writ proceeding focuses solely on the documents that the court ordered produced from the program Munden attended during his leave of absence.
3 Unless otherwise indicated, all statutory references are to the Evidence Code.
4 Section 1024 provides: "There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."
5 Stuetzer asserts in her response to the petition that she documented 16 separate occasions on which Munden was intoxicated and two other people -- the PTA president and a school counselor -- reported Munden's behavior to the superintendent before Stuetzer reported Munden.
