Mansell v. Otto

108 Cal. App. 4th 265, 133 Cal. Rptr. 2d 276, 2003 Cal. App. LEXIS 631

• Court: California Court of Appeal
• Decided: April 29, 2003
• Docket: No. B155418
• Status: Published

Opinions

Opinion

JOHNSON, J.

A crime victim sued the alleged perpetrator and his criminal defense counsel for invasion of her constitutional right of privacy, based on the unauthorized reading of her mental health records by defendants and other members of the defense team. The trial court sustained defendants’ demurrer to plaintiff’s complaint without leave to amend and dismissed the action. The court found plaintiff’s claim for invasion of her constitutional right of privacy was barred as a matter of law by the litigation privilege. We find the litigation privilege inapplicable to the noncommunicative acts alleged in the complaint. We nevertheless find plaintiff cannot state a claim for liability against defendants because they obtained her medical and psychiatric records through the court’s normal processes, including a court order. Accordingly, we affirm the judgment of dismissal.

Facts and Proceedings Below

The following facts are taken from the complaint and the transcript of the hearing on the prosecution’s motion for a protective order in the underlying criminal case.¹

Respondent Jeffrey Manning Carlton was charged in two criminal proceedings alleging narcotics violations as well as assault and battery charges against appellant Katherine Mansell.² Carlton retained respondents Douglas W. Otto, Edward P. George, Jr., and Armand Arabian, to represent him in the criminal proceedings.³

In preparing a defense to the criminal assault and battery charge respondents sought appellant’s records from the hospital where she sought treatment. The complaint alleges respondents “caused a subpoena duces tecum to be served on the Veterans Administration Hospital in connection with the defense of defendant Carlton. Said Subpoena sought the medical and psychiatric records of Katherine Mansell aka Katherine Midtbo for the period from 1976 to the present.” The subpoena requested “[a]ny and all medical and psychiatric records of doctors or nurses or other medical professionals; records of all hospitalizations, results of any laboratory tests, x-rays, CAT scans, MRI screenings, or other diagnostic procedures; records of any medications prescribed and/or administered; records of diagnosis and treatment of any type performed and/or recommended; and records of all visits made to the emergency room and treatment received there for KATHERINE MIDTBO [aka Mansell] for the period of 1976 to the present.”

The complaint states the subpoena directed the custodian of records for the Veterans Administration Hospital to “deliver [the requested records] to Department 6 of the Long Beach Municipal Court . . . .”

The hospital informed respondents records responsive to the subpoena could only be produced by court order.

Thereafter respondents applied ex parte for a court order directing release of the records sought in the subpoena. The ex parte application, and counsel’s declaration in requesting the court order, mentioned only medical records. However, counsel’s ex parte motion and declaration were apparently submitted with the original application for the subpoena duces tecum requesting both medical and psychiatric records. Judge Richard Lyman signed the order directing release of appellant’s records. The order states in part: “GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED that the Custodian of Records for the Veterans Administration Hospital in Long Beach, California, produce the medical records of Katherine Mansell (DOB 2/12/58) aka Katherine Midtbo as described in the attached subpoena duces tecum served herewith . . . .”

On receipt of the court order and subpoena the hospital sent appellant’s records under seal to the court as directed.

From the allegations in appellant’s complaint, it appears the court released the records to the prosecution, and that the prosecution in turn made copies of the records and gave them to the defense. Appellant’s complaint alleges: “Plaintiff is informed and believes that on November 4, 1999, Defendant OTTO requested of the Prosecution to make copies of the documents contained in the sealed envelope sent to the court. Said documents included medical and psychiatric records of plaintiff from 1976 and on. . . .”

Respondents read appellant’s medical and psychiatric records and disseminated them to other members of the defense team.

A few weeks later the prosecution sought a protective order directing all appellant’s records be returned to the court. Judge William T. Gamer presided at the hearing. After extensive argument, the court treated the motion as a belated motion to quash, granted the motion, and ordered all records and derivative materials be returned. Specifically, the court ordered “the records be returned to the victim. And I’m going to treat this motion as a motion to quash the subpoena duces tecum, and I’m going to grant the motion to quash, [f] Now, I realize that it puts defense counsel at [Vc] a lot more work. They have to go through this process again. But next time maybe they will want to narrow the request down somewhat.”

Over the prosecutor’s objection the court also expressly found respondents returned all documents in a timely fashion and further stated it was granting the motion to quash, but not because it believed respondents had “duped” Judge Lyman into issuing the court order for the records.

Appellant filed suit against respondents. Her complaint alleges a claim for invasion of the constitutional right of privacy under the California Constitution, article I, section 1, based on respondents and other members of the defense team reading her confidential mental health records.⁴ Respondents demurred to the complaint, arguing they were immune from liability under the litigation privilege of Civil Code section 47, subdivision (b).

The trial court found the litigation privilege applied and sustained respondents’ demurrer without leave to amend. Thereafter, the court entered judgment dismissing appellant’s complaint. This appeal followed.

Discussion

I. Standard of Review

In reviewing an order sustaining a demurrer without leave to amend, we independently review the complaint to determine whether the facts alleged state a cause of action under any possible legal theory.⁵ In doing so, we give the complaint a reasonable interpretation, “treating] the demurrer as admitting all material facts properly pleaded.”⁶

II. The Facts Respondents Received Appellant’s Confidential Mental Health Records as a Result of a Court Order, and Only After Release by the Court, Combine to Preclude Potential Liability for Reading and Disseminating Those Records

“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy 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 defendant constituting a serious invasion of privacy.”⁷

In this case, respondents do not contest appellant’s complaint states a claim for violation of her constitutional right of privacy. Evidence Code section 1014 provides a statutory privilege of privacy which provides a patient the “privilege to refuse to disclose, and to prevent another from disclosing a confidential communication” between herself and her psychotherapist. This psychotherapist/patient privilege is also an aspect of the constitutional right to privacy.⁸ Respondents claim the litigation privilege nevertheless immunizes them from liability for the alleged violation of her constitutional right of privacy.

The so-called litigation privilege found in Civil Code section 47, subdivision (b)(2) makes privileged a “publication or broadcast” made in any “judicial proceeding.” As the Supreme Court explained, the litigation privilege of Civil Code section 47 “is now held applicable to any communication, whether or not it amounts to a publication . . . , and all torts except malicious prosecution.”⁹ The privilege applies to any publication “(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.”¹⁰

Respondents’ act of reading appellant’s confidential psychiatric records satisfies these elements in only the most general sense: The act of reading her confidential records was related to a judicial proceeding, taken by the defense team of a litigant to achieve the object of preparing a defense to the charge in the pending criminal prosecution. However, we note nowhere in the complaint does appellant allege any of the information contained in those reports was testified to, or otherwise used in any judicial proceeding. Instead, the allegations of the complaint and judicially noticed facts reveal appellant instead complains several members of the defense team read her confidential psychiatric records. Because these acts describe noncommunicative conduct, it would appear the litigation privilege is not technically applicable. Indeed, in Susan S. v. Israels we expressly held the litigation privilege inapplicable to the unauthorized reading of confidential mental health records.¹¹

Our state’s highest court has drawn a distinction between injury arising from communicative acts, which are privileged, and injury arising from noncommunicative conduct, which is not. In Ribas v. Clark¹² the attorney for the plaintiffs wife eavesdropped on a telephone conversation between the wife and the plaintiff. The attorney then testified to the conversation in an arbitration proceeding. The plaintiff sued the attorney alleging, among other things, violation of California’s Invasion of Privacy Act¹³ and common law invasion of privacy. The trial court found the litigation privilege applied and sustained the attorney’s demurrer to the complaint without leave to amend. On appeal, the Supreme Court reversed as to the privacy 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.”¹⁴ In upholding the cause of action based on the act of eavesdropping, and rejecting the cause of action based on testimony which resulted from the eavesdropping, the court made a distinction between the injury arising from noncommunicative conduct—the attorney’s eavesdropping—and a communicative act—the attorney’s testimony.

The court reinforced the distinction between communicative and noncommunicative acts in Kimmel v. Goland.15 In Kimmel, the court held the litigation privilege did not shield mobilehome park management representatives from liability for their acts of unlawfully tape recording confidential conversations between the parties. The court emphasized, “the litigation privilege is plainly not applicable” to the acts of tape recording.¹⁶ The court distinguished this unprivileged activity from any publication or broadcast of the information contained in those conversations. The Kimmel court noted, “a review of the myriad cases that have applied section 47(2) to shield defendants from liability demonstrates that, without exception, the privilege has applied only to torts arising from statements or publications.”¹⁷

In the present case appellant argues the litigation privilege was equally inapplicable because her complaint alleged only noncommunicative conduct, i.e., reading her confidential mental health records. Moreover, she points out, this court in Susan S. plainly held unauthorized reading of confidential mental health records are noncommunicative acts for which the litigation privilege presents no bar to suit for personal injuries arising from this conduct.¹⁸

However, the mere act of reading confidential and privileged materials, or reading and disseminating such materials, cannot alone be sufficient to be an actionable invasion of a plaintiff’s right of privacy. In other words, these acts cannot alone be the test for potential liability. There are likely several thousands, if not tens of thousands, of privileged and confidential records being read and disseminated at this very moment as litigants all over the state prepare for trial. Likely only a tiny fraction of these cases will ever result in claims of tortious invasions of privacy. There must be a reason for this. As the cases make clear, valid statutory or constitutional claims for invasion of privacy based on noncommunicative acts require something more to establish liability than simply the acts of reading and/or dissemination standing alone. We note the salient fact in each of the cases finding potential liability, the offending party did not even make an attempt at either prior judicial review or approval prior to reading and disseminating the confidential records. It was these facts of a total lack of judicial oversight and the voluntary disclosure of confidential materials which in combination gave rise to actionable claims for invasion of privacy.

For example, in Cutter v. Brownbridge19 a patient sued his psychotherapist for invasion of privacy. The patient’s complaint alleged the psychotherapist “ ‘voluntarily, and not as a result of [subpoena] or other legal compulsion’ executed a written declaration describing his diagnosis of Cutter, as well as damaging personal details learned as a result of his being Cutter’s therapist.”²⁰ The patient’s wife submitted the psychotherapist’s declaration with her request to suspend the patient’s visitation with their children. The doctor demurred on the ground the litigation privilege applied to immunize him from civil liability. Ultimately the trial court sustained the doctor’s demurrer without leave to amend and dismissed the action.²¹

The appellate court reversed, finding the litigation privilege did not provide blanket immunity for invasions of the constitutional right of privacy.²² “We conclude that, when disclosure of constitutionally protected material is contemplated, compliance with the Evidence Code requirements for claiming the privilege when that disclosure is sought and resort to the protective procedures provided are necessary prerequisites to protection of section 47, subdivision 2, immunity. Thus, a psychotherapist who volunteers information concerning a patient obtained in connection with their relationship, does so at his or her peril.”²³

In Urbaniak v. Newton²⁴ the plaintiff underwent medical procedures in connection with a workers’ compensation claim. The plaintiff disclosed his HIV status to a nurse following a neurological test so hospital technicians would know to properly sterilize the equipment. The physician unnecessarily included information in his report regarding the plaintiffs HIV status. The physician then sent a copy of the report to the plaintiffs counsel, his employer’s insurance carrier and to the carrier’s counsel, who in turn sent a copy to the Workers’ Compensation Appeals Board.²⁵ The plaintiff brought suit, claiming the gratuitous disclosure of his HIV status was an unconstitutional invasion of his right of privacy. The trial court granted the defendants’ motion for summary judgment, finding dissemination of the report was privileged under Civil Code section 47 as a publication in a judicial proceeding.²⁶

The appellate court agreed the litigation privilege provided a valid defense for the insurance company, its counsel and the employer’s counsel but only because they had no actual notice of facts suggesting an invasion of privacy, and because they received the doctor’s report in discovery proceedings which did not indicate it was a confidential communication.²⁷ However, the court reversed the judgment in favor of the doctor. “The allegations of the complaint support the inference that Dr. Newton knew of and ratified the use of the information confided to his nurse. The offending information had limited relevance to the medical examination. It would have been possible to mention the patient’s concern over his health as a source of stress without specifically mentioning his HIV positive status. Under these circumstances, as in Cutter v. Brownbridge, supra, [183 Cal.App.3d] at page 848, ‘[w]e have determined that the constitutional right to privacy outweighs the policies underlying the judicial proceedings immunity when private material is voluntarily published, without resort to a prior judicial determination.’ ”²⁸

In Susan S. v. Israels,29 defense counsel in a criminal prosecution for sexual battery served a subpoena duces tecum for the crime victim’s records on the mental health facility where she sought treatment. The facility sent her mental health records directly to defense counsel. Defense counsel read the records, transmitted them to the defense psychiatrist, and used the information in cross-examining the crime victim at trial. The crime victim brought suit against defense counsel and his client for invasion of her constitutional right of privacy and other claims. The trial court sustained the defendants’ demurrer without leave to amend and dismissed the action.³⁰

This court affirmed the judgment of dismissal with regard to the other causes of action. However, we found the complaint stated a cause of action for violation of her constitutional right of privacy. We noted the subpoena duces tecum process itself implicitly recognizes an expectation of privacy on the part of the person whose records are subpoenaed. It requires the witness to appear before the judge. In the alternative, the witness must place the records in a sealed envelope, and place the sealed envelope inside another envelope, and mail it to the clerk of the court. We stated confidential records should not be produced to the subpoenaing party “ ‘until a judicial determination has been made that the person is legally entitled to receive them.’ ”³¹

In Susan S. we concluded, “[a] stranger’s unauthorized reading and dissemination of a person’s mental health records is a serious invasion of the person’s privacy.”³² We also found the litigation privilege inapplicable to defense counsel’s noncommunicative act of reading these confidential records. “Susan S.’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 rests on Israels’ conduct in reading those records. In this respect, Israel’s conduct is similar to the defendants’ conduct of eavesdropping on and secretly recording telephone conversations in Ribas v. Clark . . . and Kimmel v. Goland . . . ,”³³

In Wise v. Thrifty Payless, Inc.,34 a customer sued a pharmacy for invasion of privacy for its unauthorized disclosure of prescription drug information to her husband. The customer gave the drugstore express directions not to release her prescription information to anyone because the couple was involved in acrimonious dissolution proceedings. Nevertheless, a pharmacy clerk provided her husband with a list of his wife’s prescriptions when he claimed he needed them to prepare tax returns.³⁵ The husband used the information about his wife’s prescription drug use in their child custody battle to accuse her of being a drug addict and a danger to the couple’s children. Among other things, the husband also wrote to the Department of Motor Vehicles charging his wife with violating the Vehicle Code which prohibits a person addicted to drugs from driving a motor vehicle.³⁶

The appellate court concluded if the wife included her husband as a defendant, “the litigation privilege would bar plaintiff from recovery of damages from him proximately caused by his use of the drug printout in the family court and DMV proceedings.”³⁷ In contrast, the court found Payless’s act of voluntarily disclosing the wife’s private medical information to her husband was “clearly not” covered by the litigation privilege. “Regardless of whether the privilege protected Mr. Wise from liability for his subsequent communications in the litigation forum, Payless cannot avoid the insurmountable fact that its communication outside that forum enjoyed no such protection. We find no persuasive reason to confer section 47(b) immunity to one who wrongfully reveals confidential information simply because the disclosure subsequently becomes a hot potato in the course of court litigation or administrative hearings.”³⁸

In Jeffrey H. v. Imai, Tadlock & Keeney³⁹ the plaintiff brought an action against a law firm and a secretary in the firm for invasion of the constitutional right of privacy and other claims. His complaint alleged the law firm had improperly released his hospital records in the underlying lawsuit, and in arbitration proceedings disclosed the results of his HIV tests to the arbitrator.⁴⁰ The trial court sustained the defendants’ demurrer without leave to amend and dismissed the action.

The appellate court reversed the judgment as to the invasion of privacy cause of action and otherwise affirmed. The court stated, “the litigation privilege applies when the disclosure is made pursuant to a judicial determination, but, in the absence of a judicial ruling, the constitutional right to privacy may sometimes outweigh the policies underlying the privilege.”⁴¹ The complaint alleged an intentional disclosure of the plaintiff’s HIV test results which the defendants knew were improperly released by the hospital. Based on this allegation, the court concluded the constitutional right of privacy outweighed the policies underlying the litigation privilege.⁴²

In the present case, by contrast, respondents sought and received a court order for release of appellant’s records. The court order expressly references the affidavit describing the records sought. We indulge the presumption the court performed its official duties before issuing the order,⁴³ i.e., that the trial court read counsel’s declaration and the affidavit and thereafter found good cause for release of the records before signing the order. Moreover, as noted, Judge Gamer in ordering appellant’s hospital records returned, stated he was granting the motion to quash but not because he believed Judge Lyman had been “duped” into issuing the court order for the blanket release of records not obviously necessary for the criminal trial.

Also, unlike the cases noted above, in the present case appellant’s confidential records were not delivered to counsel, but were delivered to the court under seal. It was the court who then released appellant’s records to the prosecutor who, in turn, provided copies to respondents.⁴⁴ After the Supreme Court’s decision in People v. Hammon ⁴⁵ the trial court in the underlying matter was under no legal compulsion at the pretrial stage of the proceedings to review appellant’s records in camera to determine which, if any, of the records could be released to counsel under the now overruled authority of People v. Reber 46

Despite appellant’s suggestion in her appellate briefs, she does not claim her injury arose from respondents’ overly broad request for her medical and psychiatric records.⁴⁷ Instead, her claimed injury is the result of the court order requiring the hospital to release those records, and from the trial court’s release of those records to the parties, apparently without further review.

These facts establishing a judicial imprimatur distinguish the present case from those finding liability for the unauthorized dissemination of a patient’s privileged records.⁴⁸ These facts similarly preclude a finding of liability based on respondents’ reading of those confidential records which they received through the prescribed judicial process ⁴⁹

Disposition

The judgment is affirmed. Each side to bear its own costs on appeal.

Woods, J., concurred.

1 This court takes judicial notice of those matters properly noticed by the trial court. (Evid. Code, §§ 452, 459.)

2 People v. Carlton (Super. Ct. L.A. County, 1999, Nos. BA189636 and NA014822).

3 For convenience, this opinion will refer to the attorney defendants and their client collectively as respondents.

4 The complaint alleges the attorney respondents read and disseminated her psychiatric records with “Carlton’s knowledge and consent.”

5 Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].

6 Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th 962, 967.

7 Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [26 Cal.Rptr.2d 834, 865 P.2d 633].

8 See, e.g., People v. Stritzinger (1983) 34 Cal.3d 505, 511-512 [194 Cal.Rptr. 431, 668 P.2d 738]; see also In re Lifschutz (1970) 2 Cal.3d 415 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].

9 Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365], citations omitted.

10 Silberg v. Anderson, supra, 50 Cal.3d 205, 212.

11 Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1299 [67 Cal.Rptr.2d 42].

12 Ribas v. Clark (1985) 38 Cal.Sd 355 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417].

13 Penal Code section 630 et seq.

14 Ribas v. Clark, supra, 38 Cal.3d 355, 364.

15 Kimmel v. Goland (1990) 51 Cal.3d 202 [271 Cal.Rptr. 191, 793 P.2d 524].

16 Kimmel v. Goland, supra, 51 Cal.3d 202, 209, italics in original.

17 Kimmel v. Goland, supra, 51 Cal.3d 202, 211.

18 Susan S. v. Israels, supra, 55 Cal.App.4th 1290, 1299.

19 Cutter v. Brownbridge (1986) 183 Cal.App.3d 836 [228 Cal.Rptr. 545].

20 Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, 840.

21 Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, 840-841.

22 Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, 847.

23 Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, 846-847.

24 Urbaniak v. Newton (1991) 226 Cal.App.3d 1128 [277 Cal.Rptr. 354].

25 Urbaniak v. Newton, supra, 226 Cal.App.3d 1128, 1134.

26 Urbaniak v. Newton, supra, 226 Cal.App.3d 1128, 1133.

27 Urbaniak v. Newton, supra, 226 Cal.App.3d 1128, 1141.

²⁸

29 Susan S. v. Israels, supra, 55 Cal.App.4th 1290.

30 Susan S. v. Israels, supra, 55 Cal.App.4th 1290, 1294.

31 Susan S. v. Israels, supra, 55 Cal.App.4th 1290, 1296, quoting People v. Blair (1979) 25 Cal.3d 640, 651 [159 Cal.Rptr. 818, 602 P.2d 738].

32 Susan S. v. Israels, supra, 55 Cal.App.4th 1290, 1298.

³³

34 Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296 [100 Cal.Rptr.2d 437].

35 Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th 1296, 1300.

36 Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th 1296, 1300-1301.

37 Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th 1296, 1301-1302.

38 Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th 1296, 1307, italics in original.

39 Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345 [101 Cal.Rptr.2d 916].

40 Jeffrey H. v. Imai, Tadlock & Keeney, supra, 85 Cal.App.4th 345, 350-351.

41 Jeffrey H. v. Imai, Tadlock & Keeney, supra, 85 Cal.App.4th 345, 360.

42 Jeffrey H. v. Imai, Tadlock & Keeney, supra, 85 Cal.App.4th 345, 360-361.

43 See Evidence Code section 664 (“It is presumed that official duty has been regularly performed.”).

44 The trial court in the present case impliedly found respondents received the mental health records inadvertently. However, this is not strictly accurate from respondents’ perspective. As is perhaps normal during discovery, respondents’ request was extremely broad. They sought as much information regarding appellant’s medical and mental history as they thought might exist. From their perspective, the records they received were exactly what they asked for. There was nothing to indicate respondents thought release of any of the records was inadvertent.

For this reason, the decision in State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal App.4th 644 [82 Cal.Rptr.2d 799] is inapplicable. In State Compensation the court held an attorney could comply with ethical standards, and not be disqualified, if upon receipt of confidential and privileged documents apparently sent inadvertently, the lawyer receiving such materials refrains from examining them beyond ascertaining their privileged nature, and immediately notifies the sender he or she possesses materials that appear to be privileged.

Because respondents received the very documents they requested, it was not reasonably apparent to them appellant’s records were provided through inadvertence. In any event, they did not refrain from examining the records, and certainly did not immediately notify the sender they were in receipt of apparently privileged records received inadvertently.

45 People v. Hammon (1997) 15 Cal.4th 1117 [65 Cal.Rptr.2d 1, 938 P.2d 986].

46 People v. Reber (1986) 177 Cal.App.3d 523 [223 Cal.Rptr. 139], expressly disapproved in People v. Hammon, supra, 15 Cal.4th 1117, 1123.

47 The dissenting justice is of the view appellant could validly state a claim for invasion of privacy if given the chance to amend her complaint to allege respondents deliberately misled the trial court regarding the nature and extent of the records sought which induced the court to sign the court order for their release.

This would be an allegation of intentional misrepresentation, describing communicative conduct, and in a judicial setting. Such an allegation would present the classic scenario for application of the litigation privilege, presenting a bar to any such amended complaint. That this is so is made plain by the Supreme Court’s decision in Silberg v. Anderson, which concluded the litigation privilege presents an absolute bar to even deliberately or recklessly false communications. In Silberg, the court emphasized the litigation privilege “promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients’ interests. ‘[I]t is desirable to create an absolute privilege . . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions. . . .’ [Citation.]” (Silberg v. Anderson, supra, 50 Cal.3d 205, 214.) Based on this rationale, the high court rejected several Court of Appeal decisions which had imposed a requirement the communication promote the interest of justice as a prerequisite to a valid claim of litigation privilege. In so doing the court observed such a rule is “wholly inconsistent with the numerous cases in which fraudulent communications or perjured testimony have nevertheless been held privileged.” (Id. at p. 218.)

Numerous decisions before and after the court’s Silberg decision recognize the litigation privilege presents a bar to actions, even when based on fraudulent representations, forgery, negligent or intentional omissions, and other types of tortious communications. (See, e.g., Taylor v. Bidwell (1884) 65 Cal. 489 [4 P. 491] [complaint alleged charges of arson were falsely fabricated as was testimony at trial]; Wise v. Thrift Payless, Inc., supra, 83 Cal.App.4th 1296 [husband affirmatively misled pharmacy clerk to get copies of wife’s prescription drugs for his own improper ulterior motives]; Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082 [89 Cal.Rptr.2d 760] [claim failed although bankruptcy pleadings negligently named wrong party]; Steiner v. Eikerling (1986) 181 Cal.App.3d 639 [226 Cal.Rptr. 694] [the act of forging the will and publication of the forged will in probate were privileged]; Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988 [160 Cal.Rptr. 505] [counsel’s negligent representation insurer was financially sound when it was in fact insolvent was a publication protected by the litigation privilege]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489 [104 Cal.Rptr. 650] [litigation privilege protected defendants who prepared and presented false and forged documents to city council and planning commission. “Preparing and presenting false documents is equivalent to the preparation and presentation of false testimony. Since there is no exception to the privilege when the testimony is perjured, by a parity of reasoning no exception should apply to the preparation and presentation of false documentary evidence.”]; Kachig v. Boothe (1971) 22 Cal.App.3d 626 [99 Cal.Rptr. 393] [litigation privilege protected peijury, as well as manufactured evidence].)

Moreover, the presence or absence of malice or good or bad faith is irrelevant to the inquiry whether the litigation privilege is applicable. (Silberg v. Anderson, supra, 50 Cal.3d 205, 216 [“it must be concluded that the ‘without malice’ requirement applies only to those allegations against correspondents published in the pleadings and affidavits filed in dissolution proceedings, and that otherwise the Legislature intended section 47(2) to apply to all publications, irrespective of their maliciousness.” (Italics in original.)]; Albertson v. Raboff (1956) 46 Cal.2d 375 [295 P.2d 405] [allegations defendant maliciously asserted false claims to real property, knowing he had no right to a lien were no bar to application of the litigation privilege]; Pettitt v. Levy, supra, 28 Cal.App.3d 484, 488 [“The privilege is an absolute one because it protects publications made with actual malice or with the intent to do harm.”].) Thus, in this case the result would be the same whether respondents deliberately, intentionally or negligently misrepresented facts to the judge to induce him to sign the court order for appellant’s mental health records. Given this state of the law, it would be futile to allow an amendment to assert a claim for invasion of privacy based on allegations of respondents’ affirmative misrepresentations.

The decisions the dissenting justice relies on for an opposite conclusion do not support a contrary finding. Both Malley v. Briggs (1986) 475 U.S. 335 [106 S.Ct. 1092, 89 L.Ed.2d 271] and Lombardi v. City of El Cajon (9th Cir. 1997) 117 F.3d 1117 concern actions for violations of federal civil rights, and for alleged violations by police officers of their constitutional obligations. They do not purport to construe California’s constitutional right to privacy, nor California’s statutory litigation privilege. Moreover, the police officer defendants in these decisions were acting under state color of authority, and thus are at maximum entitled to only a qualified immunity (Malley v. Briggs, supra, 475 U.S. 335, 340-341 [106 S.Ct. 1092, 1098]), in contrast to the absolute immunity the litigation privilege affords. Accordingly, these decisions are distinguishable. In addition, the fact, as the dissent notes, respondents’ statements may have evidentiary value in some other or future proceeding does not alter the conclusion the litigation privilege would provide respondents immunity from liability in the present action alleging a single cause of action for invasion of privacy. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [232 Cal.Rptr. 567, 728 P.2d 1202] [discussing potential evidentiary value of otherwise privileged statements in a related abuse of process or malicious prosecution action]; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 914-915 [93 Cal.Rptr.2d 364] [in the context of a bad faith action against insurers].)

48 Compare Coverdell v. Department of Social and Health Services (9th Cir. 1987) 834 F.2d 758, 764-765 (social worker was entitled to absolute quasi judicial immunity from liability for actions taken in faithfully executing a valid court order).

49 In light of our conclusion, we need not, and do not, reach respondents’ alternative arguments for affirming the judgment.