McGovern v. BHC Fremont Hospital, Inc. ( 2023 )

Filed 12/21/22; Certified for Publication 1/4/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SHANNON McGOVERN,
Plaintiff and Appellant,
A161051
v. A161052
BHC FREMONT HOSPITAL, INC.,
(Alameda County Super. Ct.
Defendant and Respondent.
No. RG-17846273)
On November 7, 2015—while hospitalized at BHC Fremont Hospital,
Inc. (variously, Fremont Hospital or the hospital)—appellant Shannon
McGovern was assaulted by another patient and sustained injuries. On
March 9, 2016, counsel for McGovern sent a letter to Fremont Hospital (the
March 9 letter) which described the incident and included a request that the
hospital preserve evidence. The letter concluded by stating that counsel
would be “gathering more necessary information” and would present it to the
hospital’s insurance carrier with a pre-litigation demand. It requested that
the hospital place its carrier on notice. Thereafter, on October 27, 2016,
1
McGovern’s counsel sent Fremont Hospital a “Notice of Intent to Commence
Action For Medical Negligence Pursuant to Code of Civil Procedure §364.”1
McGovern filed suit on January 20, 2017. The trial court subsequently
granted Fremont Hospital’s motion for summary adjudication on three of
McGovern’s four causes of action against the hospital, finding that the March
9 letter constituted a section 364 notice and therefore the complaint was not
timely filed with respect to these professional negligence claims. Later, the
trial court also granted a motion for summary judgment on McGovern’s
remaining cause of action for elder abuse. The court held that McGovern
failed to produce evidence to create a triable issue of fact as to whether the
hospital engaged in neglect as defined in Welfare & Institutions Code section
15610.57 with recklessness, oppression, fraud, or malice, or that any officer,
director, or managing agent of the hospital authorized or ratified the neglect
sufficient to give rise to enhanced remedies under Welfare & Institutions
Code section 15657.
In these consolidated appeals, McGovern makes four claims of error.
Specifically, McGovern contends that the trial court erred in granting
summary adjudication; in granting summary judgment; in granting a motion
to quash a subpoena for mental health records of the assailant; and in
denying her request to continue the motion for summary judgment so that
1 All statutory references are to the Code of Civil Procedure unless
otherwise specified. Section 364 requires that a plaintiff give a health care
provider 90 days’ prior notice before commencing an action for professional
negligence. (§ 364, subd. (a).); see Jones v. Catholic Healthcare West (2007)
147 Cal.App.4th 300, 305 (Jones).) “Section 364, subdivision (d) tolls the
statute of limitations for 90 days if the notice of intent to sue is served on the
health care provider within the last 90 days of the applicable statute of
limitations.” (Kumari v. The Hospital Committee for the Livermore-
Pleasanton Areas (2017) 13 Cal.App.5th 306, 312 (Kumari), citing Woods v.
Young (1991) 53 Cal.3d 315, 325 (Woods).)
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she could conduct the further discovery necessary to oppose the motion. We
agree with McGovern that the trial courts’ orders granting summary
adjudication and granting Fremont Hospital’s motion to quash must be
reversed. Accordingly, we also reverse the trial court’s grant of summary
judgment. Under the circumstances, we do not reach the issue of whether
the denial of her motion to continue the summary judgment motion was
error.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Fremont Hospital is an acute psychiatric hospital licensed by the
California Department of Public Health. On November 4, 2015, McGovern
was admitted to Fremont Hospital under section 5150 of the Welfare and
Institutions Code, as a danger to others and gravely disabled. On November
7, 2015, McGovern and other residents of the facility were engaged in a
session of basketball when she was suddenly slammed down to the floor by
another resident, J.W. Before the attack, J.W. had paced and stared at her.
As a result of the attack, McGovern suffered injury to her head and shoulder.
McGovern was subsequently transported to Washington Hospital for medical
treatment. She returned to Fremont Hospital the same evening. McGovern
was discharged from Fremont Hospital on November 13, 2015.
The March 9 letter, which McGovern’s counsel sent to Fremont
Hospital, described the assault of McGovern by another resident and the
injuries McGovern sustained as a result of the incident. It requested that the
hospital preserve all videotapes and/or photographs, retain all incident
reports and witness statements, and forward a copy of the incident report to
McGovern’s attorney. The March 9 letter also discussed the legal
consequences of failing to preserve evidence at length. It concluded with the
3
statement that counsel would “be gathering more necessary information and
[would] present your insurance carrier with a pre-litigation demand.” It
continued: “In attempting to resolve this matter short of litigation, we
request that you put your carrier on notice and have them contact us.” The
letter attached a “Designation of Attorney” which stated that McGovern had
hired the law firm to represent her in her claim arising out of the November 7
incident. On October 27, 2016, McGovern’s counsel sent Fremont Hospital a
letter labelled “Notice of Intent to Commence Action for Medical Negligence
Pursuant to Code of Civil Procedure §364” (the October 27 letter). (Some
capitalization omitted.) The October 27 letter set forth with specificity
McGovern’s injuries, including a “clavicle fracture, two (2) broken ribs, skull
laceration (requiring seven (7) stitches), and traumatic brain injury.”
McGovern subsequently filed suit on January 20, 2017.
After suit was filed, McGovern sought to obtain records from Fremont
Hospital regarding J.W. and another patient. The hospital filed a motion to
quash, which the trial court granted. But, at the hearing on the matter, the
court also granted McGovern’s oral motion for an in camera review of the
records. The hospital then filed a motion for reconsideration, which the trial
court denied. However, on its own motion, the court vacated the pending in
camera review hearing, reconsidered the issue, denied the motion for in
camera review, and granted the motion to quash.
In July 2018, Fremont Hospital filed a motion for summary
adjudication of McGovern’s three professional liability causes of action
against the hospital as contained in her then-operative second amended
complaint. The challenged causes of action alleged general negligence,
negligent supervision, and medical malpractice. Specifically, the hospital
asserted that the March 9 letter constituted a section 364 notice and thus the
4
October 27 letter did not extend the statute of limitations to file the action,
which was therefore untimely.2 The trial court agreed and granted the
motion in September 2018. In February 2020, the hospital moved for
summary judgment of the remaining cause of action against it for dependent
elder abuse. The motion was granted in July 2020, and McGovern timely
appealed from both the order granting summary adjudication (A161052) and
the order granting summary judgment (A161051). On May 24, 2021, we
granted McGovern’s unopposed motion to consolidate the two appeals for
purposes of briefing, argument, and decision.
II.
DISCUSSION
A. The Motion for Summary Adjudication
McGovern contends the trial court erred when it found that, as a
matter of law, the March 9 letter was a notice of intent to sue under section
364. We agree, concluding as a matter of law that the March 9 letter did not
constitute a section 364 notice. Thus, the trial court erroneously granted
2 McGovern’s challenge to the admission of the March 9 letter in these
proceedings based on lack of authentication is not well taken. McGovern
attached the March 9 letter to her opposition papers via her attorney’s
declaration stating it is a “true and correct copy” of the correspondence at
issue. As the trial court pointed out in rejecting the same argument,
McGovern cannot both object to the letter’s use and then attach it as evidence
in support of her opposition. (See Evid. Code, § 1414 [a writing may be
authenticated by evidence that “[t]he party against whom it is offered has at
any time admitted its authenticity”]; see also Jazayeri v. Mao (2009) 174
Cal.App.4th 301, 326.) The trial court thus did not err in admitting the
March 9 letter. We decline to reach McGovern’s evidentiary objections with
respect to certain other documents—correspondence between McGovern’s
attorney and the hospital’s insurance carrier in response to the March 9
letter—as they are irrelevant to the resolution of this appeal.
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summary adjudication of McGovern’s professional negligence causes of action
against Fremont Hospital on this basis.
1. Legal Framework
An order granting a motion for summary adjudication, like a summary
judgment order, is reviewed de novo. (Certain Underwriters at Lloyd’s of
London v. Superior Court (2001) 24 Cal.4th 945, 972; Monticello Ins. Co. v.
Essex Ins. Co. (2008) 162 Cal.App.4th 1376, 1385; see also 437c, subd. (f)(2)
[“A motion for summary adjudication . . . shall proceed in all procedural
respects as a motion for summary judgment.”].) Thus, “ ‘after examining the
facts before the trial judge on a summary [adjudication] motion, we
independently determine their effect as a matter of law.’ ” (Monticello Ins.
Co., at p. 1385.) Moreover, on review, we strictly construe the moving papers
and liberally construe the opposing papers. The moving papers are viewed in
the light most favorable to appellant and all doubts about the propriety of
granting the motion are resolved in favor of its denial. (Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 717; Garrett v. Howmedica Osteonics
Corp. (2013) 214 Cal.App.4th 173, 181.) Pursuant to the great weight of
authority, evidentiary rulings made in connection with a summary
adjudication motion are reviewed for abuse of discretion, except for
evidentiary rulings that turn on questions of law, which are reviewed de
novo. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23
Cal.App.5th 206, 226; but see In re Automobile Antitrust Cases (2016) 1
Cal.App.5th 127, 141 [describing the issue as unsettled].)
Section 340.5 requires medical negligence actions be brought within the
earlier of three years from the date of injury or “one year after the plaintiff
discovers . . . the injury, whichever occurs first.” Here, there is no dispute the
statute of limitations is one year from the date of McGovern’s November 7,
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2015 injury. There is also no dispute that McGovern’s causes of action for
general negligence, negligent supervision, and medical malpractice are
governed by section 340.5.
Section 364 precludes a plaintiff from filing a professional negligence
action against a health care provider unless the plaintiff has given the health
care provider 90 days’ notice “of the intention to commence the action.”
(§ 364, subd. (a); Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th
208, 211.) “No particular form of notice is required, but it shall notify the
defendant of the legal basis of the claim and the type of loss sustained,
including with specificity the nature of the injuries suffered.” (§ 364, subd.
(b).) Section 364, subdivision (d) tolls the statute of limitations for 90 days if
the notice of intent to sue is served on the health care provider within the last
90 days of the applicable statute of limitations. (Woods, supra, 53 Cal.3d at
p. 320; see also Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1204
(Anson).) “The purpose of section 364 and the 90-day waiting period ‘is to
decrease the number of medical malpractice actions filed by establishing a
procedure that encourages the parties to negotiate “outside the structure and
atmosphere of the formal litigation process’ ” (Kumari, supra, 13 Cal.App.5th
at p. 312.)
2. The March 9 Letter Is Not a Section 364 Notice
The hospital asserts, and the trial court agreed, that McGovern’s
March 9 letter constituted a section 364 notice. McGovern contends the
March 9 letter was an investigatory letter and request to preserve evidence
and that she gave notice of intent to commence an action against the hospital
in the October 27 letter. Thus, as the trial court correctly observed, “[w]hat is
at issue is whether [p]laintiff provided notice under Code of Civil Procedure
7
section 364 on March 9, 2016 or on October 27, 2016.” On this point, we find
McGovern’s position the more persuasive.
First, and crucially, the March 9 letter does not state, nor even imply,
that McGovern was giving “notice of the intention to commence [an] action.”
(§ 364.) The first paragraph of the letter states that the law firm had been
retained by McGovern in connection with injuries sustained on November 7,
2015 at Fremont Hospital when she was assaulted by another resident,
causing “injuries to her head, and back, including a broken clavicle.” The
next paragraph states that, “[i]n anticipation of potential litigation,”
McGovern requests the hospital preserve evidence, and that “we are informed
and believe” that McGovern was assaulted due to the negligence of employees
of Fremont Hospital including the failure to follow its own policies and
procedures. The letter goes on to request that the hospital retain all incident
reports and witness statements. Three additional paragraphs elaborate upon
the hospital’s obligation to preserve evidence.
The final paragraph of the March 9 letter again cites to possible
consequences for failing to preserve evidence, stating that such a failure “will
lead to sanctions and/or an adverse inference jury instruction.” The
paragraph concludes: “This office will be gathering more necessary
information and will present your insurance carrier with a pre-litigation
demand. In attempting to resolve this matter short of litigation, we request
that you put your carrier on notice and have them contact us.”
A plain reading of the March 9 letter reveals that the bulk of it was
directed towards McGovern’s request to preserve evidence. Five of the six
paragraphs of the letter refer to preservation of evidence and potential
consequences to the hospital for failure to do so. The clear import of the
remainder of the final paragraph is that McGovern was still in the process of
8
gathering facts and intended to present a pre-litigation demand in hopes of
avoiding litigation. Nothing in that statement constitutes a notice of
intention to commence an action. (Compare Kumari, supra, 13 Cal.App.5th
at p. 314 [letter evinces specific intent to sue where it demanded $240,000
within 20 days, and stated: “ ‘I personally do not wish to go through the legal
route, but if this doesn't work I will move to the court after 20 days,’ ” italics
added by Kumari; Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 175
(Edwards) [section 364 notice “informed [the] defendant that [the] plaintiff
‘intends to file suit against you for damages resulting from medical
negligence which resulted when [plaintiff] consulted you for plastic surgery
and contracted e coli in her breast as a result’ ”].)3
Moreover, the March 9 letter also fails to comport with section 364’s
requirement that the notice set forth “the type of loss sustained, including
with specificity the nature of the injuries suffered.” (§ 364, subd. (b).) The
letter contains only a vague statement that McGovern “sustained injuries to
her head, and back, including a broken clavicle,” and that her injuries were
3 Fremont Hospital’s suggestion to the contrary notwithstanding,
reference to the one-sentence designation of attorney attached to the March 9
letter does not change our analysis. The designation states in full: “I,
Shannon McGovern, hire The Dolan Law Firm (‘Dolan’) to represent me in
my claim for damages in the Courts of the State of California against the
parties responsible for the injuries arising out of an incident that occurred on
or about November 7th, 2015, in California (‘my case’).” Given the lack of any
evidence of an intention to commence an action in the body of the letter, we
view this as a simple notification that Dolan was authorized to act on
McGovern’s behalf with respect to the November 2015 incident, including in
any possible litigation. Even the hospital describes the designation merely as
evidence “of the serious threat of imminent suit.” (Italics added.) But a
threat of potential litigation is not sufficient to give notice of an intention to
actually commence an action.
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“serious.” 4 While a broken clavicle goes so far, it does not inform on the
treatment, sequelae, or residual injury. The reference to “injuries to her
head, and back” is a generalized indication of the area of the body injured
which could range in seriousness. Further, McGovern’s letter says nothing
about whether the type of losses sustained were economic, non-economic or
otherwise. And it does not monetize her losses in any way. Such generalized
wording simply does not suffice to meet the “specificity” required by section
364. (Compare Kumari, supra, 13 Cal.App.5th at p. 309 [section 364 letter
described the “ ‘elaborate sequence of events’ ” leading to her right shoulder
fracture and “explained that the pain caused by the accident prevented her
from working, bonding with her baby, and caring for herself”; letter also
“described the medical treatment she was receiving from an orthopedist and
physiotherapist”; and it stated that “she sought ‘compensation of 140,000
dollars + non-economic damages of $100,000 + the medical expenses’ ”];
Edwards, supra, 93 Cal.App.4th at p. 175 [section 364 notice provided that
she “contracted e coli in her breast as a result of [the] surgery [the plastic
surgeon] performed” and that, due to the doctor’s failure to diagnose and
treat the e coli, she “experienced infection in her breast resulting in the need
for additional surgery”]; Bennett v. Shahhal (1999) 75 Cal.App.4th 384, 391
(Bennett) [operative section 364 notice stated a specific doctor’s “negligence
4McGovern contrasts the March 9 letter with her October 27 letter,
pointing out a more robust description of her injuries including a “clavicle
fracture, two [] broken ribs, skull laceration (requiring seven [] stitches), and
traumatic brain injury” as a result of the incident. We reject the suggestion
that we should engage in a comparison of the two letters in order to ascertain
whether the March 9 letter constitutes a 364 notice. The determination must
be based upon the content of the March 9 letter and not by a comparison to
subsequent correspondence.
10
‘caused the following injuries: surgery to remove a cyst in [the plaintiff’s]
abdomen as a result of the unsecured shunt” (capitalization omitted)].)
The hospital relies heavily on Kumari, supra, 13 Cal.App.5th 306, as
did the trial court. However, that case is distinguishable as we have noted
above. There, Kumari, representing herself, sent a detailed letter to
ValleyCare Health System (ValleyCare) regarding her injury when she fell
after giving birth, stating the “accident was a result of medical negligence” by
a nurse assigned to her. (Id. at p. 309.) The letter gave a detailed description
of how she was injured, detailed the medical treatment she was receiving,
and stated she sought “ ‘compensation of 140,000 dollars + non-economic
damages of $100,000 + the medical expenses’ and payment for physical
therapy.” (Ibid.) The letter concluded: “ ‘I would therefore request you to
send me a check of 240,000 dollars within 20 days of receipt of this letter. I
personally do not wish to go through the legal route, but if this doesn’t work I
will move to the court after 20 days.” (Ibid.) Kumari later retained an
attorney who, unaware his client had sent such a letter, sent another letter
“ ‘pursuant to . . . section 364,’ ” stating that the nurse’s “ ‘negligent actions’
caused Kumari’s injuries and that Kumari’s husband had a loss of consortium
claim.” (Id. at pp. 309-310.) After suit was filed, ValleyCare filed a motion
for summary judgment on the basis that Kumari’s first letter was a section
364 notice, the attorney’s second letter did not extend the statute of
limitations, and therefore the action was time-barred. Kumari testified in
deposition that when she wrote the first letter, her “state of mind was that
she would ‘go through the legal route’ if ValleyCare did not send her a check.”
(Id. at p. 310.)
The trial court granted summary judgment finding her action was not
timely filed. Our colleagues in Division Five of this First District affirmed,
11
stressing that “[w]hat the statute requires is that the notice include ‘the legal
basis of the claim and the type of loss sustained, including with specificity the
nature of the injuries suffered.’ ” (Kumari, supra, 13 Cal.App.5th at p. 313.)
The appellate court concluded that Kumari’s letter included that necessary
information. It listed the date of her injury and described the events giving
rise to her “medical negligence” claim. It described the injury, the medical
treatment she was receiving, and the damages she sustained. It included a
demand for $240,000 and stated Kumari would “move to the court after 20
days” if she did not receive payment. (Ibid.)
In contrast and as discussed above, McGovern’s March 9 letter is
largely devoted to preservation of evidence; includes only a generalized
reference to injuries; and contains no description of her treatment, the
damages sustained, nor any attempt to quantify those damages. It makes no
settlement demand and does not state that suit will be filed in a specified
period of time if the demand is not met. Instead, the letter states “this office
will be gathering more necessary information.” Under these circumstances,
we conclude as a matter of law that the March 9 letter lacked the requisite
elements to establish compliance with section 364 and therefore cannot be
deemed a notice of intent pursuant to that statute.
In making this determination, we are cognizant that the well-
established purpose of section 364 and the 90-day waiting period “is to
decrease the number of medical malpractice actions filed by establishing a
procedure that encourages the parties to negotiate ‘outside the structure and
atmosphere of the formal litigation process.’ ” (Woods, supra, 53 Cal.3d at p.
320; Bennett, supra, 75 Cal.App.4th at p. 391; Anson, supra, 202 Cal.App.3d
at p. 1203.) Given the wording of the statute, it is likely impossible to fashion
a bright line rule in these cases, which is perhaps unsatisfactory for
12
practitioners and trial courts. We are, however, sympathetic to McGovern’s
concern that lack of clarity could “discourage plaintiffs and their lawyers
from making any contact or settlement overtures to the healthcare provider
unless and until their investigation of the claim is completed, lest their suit
be later barred once they finally decide to proceed with a lawsuit.” It should
be emphasized that only in those instances when a writing clearly fulfills all
of the statutory requirements of section 364 should correspondence be
deemed to constitute a notice of intention to commence an action. The March
9 letter fails to meet this standard. Moreover, Fremont Hospital does not
argue that the October 27 letter is not a valid section 364 notice which tolled
the statute of limitations, nor could it on these facts. Thus, McGovern’s three
professional negligence causes of action are not time-barred, and the trial
court’s order granting summary adjudication must be reversed.
B. The Motion to Quash
As mentioned above, prior to the motion for summary adjudication in
this case, Fremont Hospital moved to quash McGovern’s subpoena for
production of business records related to J.W. and another patient. The trial
court initially ordered an in camera review of J.W.’s mental health records
pursuant to Welfare and Institutions Code section 5328, subdivision (a)(6),
but subsequently reversed itself (after reconsidering the matter on its own
motion), concluding that in camera review was not warranted. On appeal,
McGovern asserts that the trial court abused its discretion in reversing its
prior order and granting the motion to quash because its decision on
reconsideration was based on an erroneous understanding of the law. We
hold that the ruling on the motion to quash must be reversed to allow for
further proceedings.
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1. Additional Background
In April 2018, the trial court granted Fremont Hospital’s motion to
quash McGovern’s deposition subpoena for the production of business records
related to J.W. and another patient, A.P. McGovern requested “all
documents related to [J.W.’s] violent or aggressive behavior towards others.”
The court cited two reasons for its decision. First—with respect to the mental
health records of A.P.—McGovern had failed to provide the necessary
consumer notice as mandated by section 1985.3. (See generally Inabnit v.
Berkson (1988) 199 Cal.App.3d 1230 (Inabnit).) Second, noting that the
“records sought are subject to strong confidentiality protections and are
sensitive, private information, some of which is further protected by
privilege,” the court concluded that McGovern’s request for documents was
“too broad” and that she had failed to establish a need for the information
which trumped the privacy rights of J.W., A.P., or potential other patients
referenced in the documents. Nevertheless, the court went on to grant
McGovern’s oral motion made at the hearing for an in camera review of
J.W.’s medical records pursuant to Welfare and Institutions Code section
5238, subdivision (a)(6).
Fremont Hospital moved for reconsideration, which the trial court
denied on grounds that the hospital had offered no new facts and there had
been no change in the law to support its request. However, noting that the
court had the authority to reconsider its rulings on its own motion, the court
stated it would reconsider that portion of its prior ruling related to the in
camera review of J.W.’s medical records. The court ordered McGovern to
provide notice to J.W. under section 1985.3 and set a briefing schedule.
After argument in July 2018, the court granted its own motion to
reconsider and reversed its decision to order J.W.’s medical records produced
14
for in camera review. The court concluded that McGovern had not presented
sufficient grounds that disclosure was “necessary to the administration of
justice.” (Welf. & Inst. Code, § 5328, subd. (a)(6).) Citing County of Riverside
v. Superior Court (1974) 42 Cal.App.3d 478 (County of Riverside) and
Evidence Code section 1014, the court further opined: “Even if the Court
were to review the records, it would not be able to release the records to
[McGovern], nor could they be used as evidence at trial.” And the court
stated that McGovern had not provided “adequate procedural grounds” for
the court to “make a determination of whether, on a motion to quash, . . . the
court may order an in camera review to determine whether the records fall
under Evidence Code section 1024.” The trial court went on to note that it
had previously granted the motion to quash on other grounds—the lack of
notice to A.P. and the broad nature of the requests—and it affirmed those
portions of its prior order.
2. Legal Framework
Welfare and Institutions Code section 5328, subdivision (a) provides, in
relevant part, “[a]ll information and records obtained in the course of
providing services under . . . Division 5 (commencing with section 5000), . . .
to either voluntary or involuntary recipients of services are confidential.”
The statute, however, goes on to delineate numerous exceptions pursuant to
which otherwise confidential information “shall be disclosed.” (Id., § 5328,
subd. (a)(1)–(27).) Pursuant to one such exception, confidential information is
disclosable “[t]o the courts, as necessary to the administration of justice.”
(Id., § 5328, subd. (a)(6).) This provision “contemplates use of the information
or records ‘as necessary to the administration of justice’ in some pending
judicial action or proceeding.” (County of Riverside, supra, 42 Cal.App.3d at
p. 481.) Therefore, “[t]he clear language of Welfare and Institutions Code
15
section 5328, subdivision [(a)(6)] authorizes the disclosure of the evidence . . .
unless such evidence is otherwise nondisclosable.” (Mavroudis v. Superior
Court (1980) 102 Cal.App.3d 594, 602 (Mavroudis).)
One such barrier to disclosure in this context is the psychotherapist-
patient privilege, “which is ‘an aspect of the patient’s constitutional right to
privacy’ under article I, section 1 of the California Constitution.” (Sorenson v.
Superior Court (2013) 219 Cal.App.4th 409, 445 (Sorenson).) The privilege is
codified in Evidence Code section 1014, which provides that a patient,
“whether or not a party” generally “has a privilege to refuse to disclose, and
to prevent another from disclosing, a confidential communication between
patient and psychotherapist.” “[F]or policy reasons the psychotherapist-
patient privilege is broadly construed in favor of the patient, while exceptions
to the privilege are narrowly construed.” (Story v. Superior Court (2003) 109
Cal.App.4th 1007, 1014 (Story), citing People v. Stritzinger (1983) 34 Cal.3d
505, 511, 513.)
“[T]he confidentiality provisions of section 5328 operate independently
of the psychotherapist-patient privilege. [Citations.] Indeed, section 5328
may afford broader protection than the psychotherapist-patient privilege.
For example, the mere fact of the patient’s entry into a facility for treatment
may be subject to the confidentiality provisions of section 5328, but it may
not be protected under Evidence Code section 1014. [Citation.] Likewise,
communications between the patient and a non-clinician employee of a
hospital that are found in a medical record may be confidential under section
5328 but may not be subject to the psychotherapist-patient privilege.”
(Sorenson, supra, 219 Cal.App.4th at p. 446.)
“ ‘Despite its broad and protective nature, the psychotherapist-patient
privilege is not absolute. [Citation.]’ Upon a proper showing, the records of
16
psychotherapy may be disclosed in litigation.” (Fish v. Superior Court (2019)
42 Cal.App.5th 811, 818 (Fish).) Of relevance here, “Evidence Code section
1024—the dangerous patient exception to the psychotherapist-patient
privilege—provides in full: “ ‘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.’ ” (People v. Gonzales (2013) 56 Cal.4th
353, 378, italics added.) The exception is a statutory recognition that “[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.’ ” (People v. One Ruger .22-Caliber Pistol (2000) 84
Cal.App.4th 310, 315 (22-Caliber Pistol), quoting Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 442 (Tarasoff).)
Moreover, unlike the common law duty to warn articulated in Tarasoff,
the exception to the psychotherapist-patient privilege set forth in Evidence
Code 1024, by its plain terms, does not require danger to a readily
identifiable victim. (In re Kevin F. (1989) 213 Cal.App.3d 178, 183–184
(Kevin F.); see also 22-Caliber Pistol, supra, 84 Cal.App.4th at pp. 312, 314–
315 [in action under Welf. & Inst. Code, § 8102 with respect to forfeiture of
weapons, the dangerous person exception applied to allow disclosure of
doctor’s opinion obtained during treatment pursuant to Welf. & Inst. Code,
§ 5150 that the patient “should be deprived of firearms ‘for his own safety and
also for the safety of the public at large’ ”].) Kevin F. is instructive. In that
case, the patient disclosed to his counselor at a drug and alcohol treatment
program (Our Family) his fascination with fire and previous fire setting. He
17
was suspected of setting a fire in a trash can at the program. (Kevin F., at
pp. 182–183.) The counselor informed his probation officer “of his dangerous
propensities as a necessary consideration in determining his next placement
in a more restrictive institutional setting.” (Id. at p. 183.) The appellate
court concluded the disclosure was permissible under Evidence Code section
1024: “There was substantial evidence before the trial court that [the
counselor] had reasonable cause to believe [the patient’s] mental and
emotional condition rendered him dangerous to the residents and property of
Our Family and that this condition required disclosure of his confession to
avert future threatened danger upon his transfer to a more secure facility.”
(Kevin F., at p. 183.) Accordingly, the trial court did not abuse its discretion
in concluding the patient’s confession to his counselor was not privileged. (Id.
at p. 183–184 [“[t]he residents of Our Family and the institution to which
[the patient] might be transferred were persons within the contemplation of
[Evidence Code] section 1024 potentially threatened by [his] mental and
emotional condition”].)
In addition, although the exception speaks in terms of “threatened
danger,” communications between therapist and patient are no longer
privileged, and therefore disclosable, even if a potential victim is dead or the
threat has passed. In People v. Wharton (1991) 53 Cal.3d 522 (Wharton), the
Supreme Court upheld the use of Evidence Code section 1024 to allow
testimony from two doctors regarding the “confidential communications that
‘triggered’ their decision to warn” an identified victim, even though she was
dead. (Id. at pp. 554–558.) Our high court reasoned: “[B]ecause the
preliminary facts justifying application of [Evidence Code] section 1024
existed prior to the realization of the threatened danger, not only were the
therapists free to communicate such statements to the victim, but
18
defendant’s statements were not privileged and the trial court correctly ruled
that evidence concerning those statements was admissible at trial.”
(Wharton, at p. 558; accord, San Diego Trolley v. Superior Court (2001) 87
Cal.App.4th 1083, 1092 (San Diego Trolley) [“when the factual predicate of
the exception exists, an excepted communication may be used in any further
proceeding, even though the threat identified by the psychotherapist no
longer exists”], disapproved on other grounds in Williams v. Superior Court
(2017) 3 Cal.5th 531, 557 & fn. 8 (Williams); Mavroudis, supra, 102
Cal.App.3d at pp. 603–604 [“The exception is applicable if the court finds
that, prior to the time of the injury complained of, the therapist determined,
or reasonably should have determined, that the therapist’s patient presented
a serious danger of violence . . . and the disclosure of confidential
communications was necessary to prevent the threatened danger.”].)
Finally, we note that “the ‘dangerous patient’ exception requires only
reasonable cause for belief by the psychotherapist in the dangerousness of the
patient and the necessity of disclosure. Certainly, it does not demand . . .
that the psychotherapist must actually disclose the relevant communication
or even issue a warning.” (Menendez v. Superior Court (1992) 3 Cal.4th 435,
451 (Menendez).) As the Supreme Court held in Wharton: “[O]peration of
[Evidence Code] section 1024 is not keyed to voluntary disclosure and the
concept of waiver as is Evidence Code section 912, which provides for waiver
upon an uncoerced disclosure by the holder of the privilege. The fact that the
two therapists warned the victim is not the reason why some of defendant’s
confidential communications were admissible at trial; rather, it was the
existence of the specified factual predicate that brings this case within the
ambit of [Evidence Code] section 1024.” (Wharton, supra, 53 Cal.3d at pp.
560–561.)
19
However, even if confidential or privileged information is disclosable
pursuant to the statutory exceptions discussed above, a claimant still retains
his or her constitutional privacy rights. (See San Diego Trolley, supra, 87
Cal.App.4th at p. 1092.) Thus, “any disclosure of confidential or private
information must be . . . accomplished in a manner which protects, insofar as
is practical, the patient’s privacy.” (Id. at p. 1093, citing Palay v. Superior
Court (1993) 18 Cal.App.4th 919, 933–934 (Palay), disapproved on other
grounds in Williams, supra, 3 Cal.5th at p. 557 & fn. 8.) For instance,
“[d]iscovery procedures must be utilized that identify and remove documents
irrelevant and immaterial to the issue.” (Palay, at p. 934; see also id., at p.
935 [approving as a “narrowly tailored discovery procedure” the trial court’s
in camera review of the documents at issue].)5
In addition, in a situation where disclosure of otherwise private
information is contemplated, the interests on each side must be balanced to
determine whether such disclosure should occur. (Palay, supra, 18
Cal.App.4th at p. 933 [“[a]n ‘intrusion upon constitutionally protected areas
of privacy requires a “balancing of the juxtaposed rights” ’ ”].) Recently, in
Mathews v. Becerra (2019) 8 Cal.5th 756 (Mathews), our high court
summarized the framework for analyzing constitutional privacy claims: “ ‘[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;
5 With respect to materials claimed to be privileged, however, Evidence
Code section 915, subdivision (a) provides, subject to several exceptions not
applicable here, that “the presiding officer may not require disclosure of
information claimed to be privileged under this division . . . in order to rule
on the claim of privilege.” (See also Costco Wholesale Corp. v. Superior Court
(2009) 47 Cal.4th 725, 737 (Costco).)
20
and (3) conduct by defendant constituting a serious invasion of privacy.[6] [¶]
… [¶] A defendant may prevail in a state constitutional privacy case by
negating any of the three elements just discussed or by pleading and proving,
as an affirmative defense, that the invasion of privacy is justified because it
substantively furthers one or more countervailing interests. The plaintiff, in
turn, may rebut a defendant’s assertion of countervailing interests by
showing there are feasible and effective alternatives to defendant’s conduct
which have a lesser impact on privacy interests.’ [Citation.] The standard
for evaluating the justification for a privacy invasion depends on ‘the specific
kind of privacy interest involved and the nature and seriousness of the
invasion and any countervailing interests.’ [Citation.] ‘Where the case
involves an obvious invasion of an interest fundamental to personal
autonomy, . . . a “compelling interest” must be present to overcome the vital
privacy interest. If, in contrast, the privacy interest is less central, or in bona
fide dispute, general balancing tests are employed.’ ” (Id. at p. 769, quoting
Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill).)
A patient has an obvious interest in shielding his or her private mental
health records from disclosure, although that interest may vary in
seriousness based on the sensitivity and narrowness of the information
sought. (See Menendez, supra, 3 Cal.4th at p. 448 [“For example, if the
communication is insignificant in content or the disclosure is narrow in scope,
the patient’s privacy may be implicated only slightly.”].) A litigant also has
an interest in proving certain facts, but only to the extent material to his or
her litigation claims. And “[t]he state has enough of an interest in
6 “The first threshold element thus examines the basic nature of the
privacy interest at a general level, while the second element asks whether an
expectation of privacy is reasonable in the particular setting or context at
issue.” (Matthews, supra, 8 Cal.5th at p. 770.)
21
discovering the truth in legal proceedings, that it may compel disclosure of
confidential material.” (Palay, supra, 18 Cal.App.4th at p. 933.)
Moreover, as is relevant here, the Legislature found, in enacting
California’s Elder Abuse and Dependent Adult Civil Protection Act (Welf. &
Inst. Code, § 15600, et seq.; the Act), “that infirm elderly persons and
dependent adults are a disadvantaged class, that cases of abuse of these
persons are seldom prosecuted as criminal matters, and few civil cases are
brought in connection with this abuse due to problems of proof, court delays,
and the lack of incentives to prosecute these suits.” (Id., § 15600, subd. (h).)
The Act was amended in 1991 “to enable interested persons to engage
attorneys to take up the cause of abused elderly persons and dependent
adults.” (Welf. & Inst. Code, § 15600, subd. (j); Covenant Care, Inc. v.
Superior Court (2004) 32 Cal.4th 771, 779.) At that time, “the Legislature
added Welfare and Institutions Code section 15657 to the Act. That section
makes available, to plaintiffs who prove especially egregious elder abuse to a
high standard, certain remedies ‘in addition to all other remedies otherwise
provided by law’ [citation]. Specifically, a plaintiff who proves ‘by clear and
convincing evidence’ that a defendant is liable for physical abuse, neglect, or
financial abuse (as these terms are defined in the Act), and that the
defendant has been guilty of ‘recklessness, oppression, fraud, or malice’ in the
commission of such abuse, may recover attorney fees and costs.” (Covenant
Care, Inc., at p. 779. ) Punitive damages are also available if a plaintiff
additionally proves that an officer, director, or managing agent ratified the
abuse or neglect. (Welf. & Inst. Code, § 15657, subd. (c); see also Civil Code,
§ 3294.) Thus, it appears that the Legislature identified a significant interest
in allowing reasonable discovery necessary to prove these enhanced damages
22
claims—i.e., recklessness in the commission of specified abuse and/or
ratification by management.
“The standard of review for discovery orders in general is abuse of
discretion.” (Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1402.)
Thus, we review the trial court’s ruling denying in camera review and
granting the hospital’s motion to quash in this case for abuse of discretion.
(See Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1124.) However,
“ ‘[a]ction that transgresses the confines of the applicable principles of law is
outside the scope of discretion and we call such action an “abuse” of
discretion.’ ” (Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773.) And “[a]n order that implicitly or explicitly rests
on an erroneous reading of the law necessarily is an abuse of discretion.”
(Williams, supra, 3 Cal.5th at p. 540.)
3. The Motion to Quash Must Be Reconsidered
As stated above, McGovern contends that the trial court’s order
granting the hospital’s motion to quash on reconsideration must be reversed
for legal error. Fremont Hospital, in contrast, argues at length that
McGovern has not provided a sufficient record for us to review the matter on
appeal. Alternatively, the hospital claims that the trial court correctly
applied applicable legal authorities and thoughtfully balanced the competing
interests in this case. While the record here is sparse, we believe that the
trial court’s written orders are the best evidence of the court’s analysis of the
discovery matters here at issue and disclose a misapplication of the law
which, we determine, requires reversal of the order granting the motion to
quash.
The trial court granted the motion for reconsideration with respect to
only that portion of its order granting McGovern’s oral motion to have J.W.’s
23
records produced for in camera review. The court then reversed its prior
order, concluding that McGovern had failed to present sufficient grounds to
apply the exception to confidentiality which allows disclosure “[t]o the courts,
as necessary to the administration of justice.” (Welf. & Inst. Code, § 5328,
subd. (a)(6).) However, the court went on to state: “Even if the Court were to
review the records, it would not be able to release the records to [McGovern],
nor could they be used as evidence at trial.” But, as we discuss below, the
records may be shown to be both discoverable and admissible at trial.
The very purpose of the exception to general confidentiality under
Welfare and Institutions Code section 5328, subdivision (a)(6) is to allow use
of otherwise confidential information and records “ ‘as necessary to the
administration of justice’ in some pending judicial action or proceeding.”
(County of Riverside, supra, 42 Cal.App.3d at p. 481.) Of course, care must
still be taken to use narrowly tailored discovery procedures to minimize any
intrusion into a patient’s privacy rights with respect to confidential
information—such as in camera review, removal of irrelevant information,
protective orders, and/or the redaction of unnecessary identifying information
related to third parties. (See Palay, supra, 18 Cal.App.4th at pp. 933–934,
935 [approving in camera review of unprivileged but confidential medical
records to limit disclosure to information “specifically related to a
determination of the issues in [the] litigation”].) In addition, a court must
properly balance the seriousness of the prospective invasion of privacy
against the interests of the party seeking disclosure. (Williams, supra, 3
Cal.5th at p. 557.) If disclosure is warranted, a court would then consider the
least intrusive means to disclose the information.
While it remains to be seen whether any confidential records exist that
are disclosable to McGovern under this rubric, there is no blanket prohibition
24
against all disclosure of any confidential information. Moreover, while it is
true that McGovern faces two hurdles here—obtaining the records
appropriately disclosable to her and admitting any such materials at trial (In
re M.L. (2012) 210 Cal.App.4th 1457, 1467)—there is also no absolute bar to
use of properly obtained confidential information at trial.
County of Riverside, supra, 42 Cal.App.3d 478 cited by the trial court is
distinguishable. In that case, the State Board of Chiropractic Examiners
(State Board) instituted administrative proceedings to revoke a chiropractor’s
license due to his chronic alcoholism. (Id. at p. 480.) The State Board
petitioned the superior court for an order directing a crisis center at which
the chiropractor had sought voluntary treatment to submit all of his records
to the court for a determination by it whether the records should be disclosed
to the State Board for use in the pending administrative proceedings. (Ibid.)
The records were confidential under Welfare and Institutions Code section
5328. (Ibid.)
The appellate court held that the trial court order directing delivery of
the records to the State Board was invalid because the case did not fall
within any of the specific exceptions set forth in the statute, stating: “[In]
section 5328 and succeeding sections the Legislature has specifically provided
for disclosure to certain persons or agencies under certain circumstances.
Had the Legislature intended to permit disclosure to administrative agencies
such as State Board it would doubtless have included a specific authorization
for such disclosure.” (Id. at p. 481.) The court further opined that the plain
language of the exception to confidentiality at issue (now subdivision (a)(6))
“says that information and records may be disclosed to the courts, not to an
administrative agency through the courts. In our view, the subdivision
contemplates use of the information or records ‘as necessary to the
25
administration of justice’ in some pending judicial action or proceeding. In
the case at bench there is no judicial action or proceeding pending in which
the use of information or records is ‘necessary to the administration of
justice.’ ” (Ibid.) Here, in contrast, there is a pending judicial action in which
certain otherwise confidential information may be disclosable as “necessary
to the administration of justice.” (Welf. & Inst. Code, § 5328, subd. (a)(6).)
County of Riverside is thus inapposite.
Nor does Evidence Code section 1014 justify the conclusion that J.W.’s
mental health records are neither disclosable to McGovern nor admissible at
trial. While portions of the mental health records sought by McGovern may
constitute “confidential communication between patient and psychotherapist”
subject to the psychotherapist-patient privilege codified in Evidence Code
section 1014, all records “related to [J.W.’s] violent or aggressive behavior
towards others” are not. Confidential but nonprivileged records are
disclosable as set forth above.
Moreover, even records covered by the psychotherapist-patient
privilege may still be disclosable as discussed above. (See, e.g., Mavroudis,
supra, 102 Cal.App.3d 594, 598, 601–604 [in action for damages by parents
against hospitals who treated their son for mental health issues after son
attacked parents with a hammer, the hospitals objected to the release of the
records under both Welfare and Institutions Code section 5328 and Evidence
Code section 1014; the appellate court held that section 5328 authorized
disclosure of the records unless the evidence was otherwise nondiscloseable
and then went on to analyze the applicability of Evidence Code sections 1014
and 1024].) While Evidence Code section 915 prohibits a trial court from
reviewing allegedly privileged documents in camera in order to rule on the
claim of privilege, there are a number of other options available for dealing
26
with documents alleged to fall under the privilege. For instance, a litigant
can argue that any privilege has been waived or that a statutory exception to
the privilege exists. (See Fish, supra, 42 Cal.App.5th at p. 818; see also Evid.
Code, § 912; Inabnit, supra, 199 Cal.App.3d at p. 1239.) Mental health
records for which the privilege has been waived are treated like all of the
other confidential records for purpose of disclosure. (See Costco, supra, 47
Cal.4th at p. 740 [“section 915 prohibits disclosure of information claimed to
be privileged in order to determine if a communication is privileged. But
after the court has determined the privilege is waived or an exception applies
generally, the court to protect the claimant’s privacy may conduct or order an
in camera review of the communication at issue to determine if some
protection is warranted notwithstanding the waiver or exception.”].)
In addition, a trial court may order production in camera any records
excepted from the psychotherapist-patient privilege under the dangerous
person exception set forth in Evidence 1024. Such records are by definition
not privileged. As stated above, that exception applies where “prior to the
time of the injury complained of, the therapist determined, or reasonably
should have determined, that the therapist’s patient presented a serious
danger of violence” to the “person or property of another.” (Evid. Code,
§ 1024; Mavroudis, supra, 102 Cal.App.3d at p. 603.) And, if there is any
dispute about the application of the exception to a particular communication,
a court can hold an in camera hearing to determine the validity of the claim
of privilege at which some information could be revealed, so long as it did not
require disclosure of the “very communication claimed to be privileged.”
(Costco, supra, 47 Cal.4th at p. 737.)
Although it involved the possibility of an actual warning which is not
always required, San Diego Trolley, supra, 87 Cal.App.4th 1083, is
27
instructive in the context of this case. There, a pedestrian injured by a
trolley sued the trolley company (Trolley). (Id. at p. 1088.) After deposing
Cooper, the operator of the trolley, the injured pedestrian sought Cooper’s
employment, psychiatric, and worker’s compensation records. (Id. at p.
1089.) The appellate court concluded that Cooper could prevent the
“disclosure of confidential communications with her psychiatrist by any
person.” (Id. at p. 1096.) However, it permitted a limited exception under
Evidence Code section 1024, noting that “communications which a
psychotherapist has reason to believe give rise to a need to warn others are
not privileged.” (San Diego Trolley, at p. 1096.) The court reasoned: “With
respect to Trolley’s knowledge about Cooper’s condition, a warning . . . would
be highly probative. If in fact Trolley received a warning from a psychological
professional, it would be persuasive evidence Trolley was fully aware of
Cooper’s impairment and its potential consequences. Thus, in light of
[injured pedestrian’s] need to establish Trolley knew about Cooper’s impaired
condition, and in the absence of any concession by Trolley that it knew
Cooper’s abilities were impaired, [the pedestrian] is entitled to disclosure of
any warning Trolley received about Cooper. Such disclosure is plainly
permissible under Evidence Code section 1024 and is necessary within the
meaning of the Constitution.” (Id. at p. 1097.)
Since the trial court erroneously believed that, even if it reviewed the
records in camera, information material to the litigation could not be
disclosed to McGovern or used at trial, the court’s conclusions that disclosure
was not necessary for the administration of justice and that J.W.’s privacy
concerns trumped McGovern’s litigation interests were inevitably flawed.
Thus, the motion to quash must be remanded for further consideration. We
28
express no opinion as to the proper resolution of the motion to quash on
remand.7
III.
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to
vacate the judgment and enter orders denying the motion for summary
adjudication, denying the motion for summary judgment, and setting a new
hearing to reconsider the motion to quash. McGovern is entitled to her costs
on appeal.
7 Our remand relates only to the records of J.W., as McGovern has not
argued on appeal that the trial court committed error with respect to A.P.’s
records. Given our decision to remand for reconsideration of this discovery
issue, we necessarily must also reverse the trial court’s grant of summary
judgment in this case, as it was based on a lack of evidence regarding the
enhanced damages permissible under the Act, evidence McGovern was
hoping to establish via the records subpoena. Under the circumstances, we
decline to address McGovern’s claim that the court should have continued the
summary judgment hearing to allow for further discovery as moot.
29
WISS, J.
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
A161051, A16105

Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
30
Filed 1/4/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SHANNON McGOVERN,
Plaintiff and Appellant, A161051
A161052
v.
BHC FREMONT HOSPITAL, (Alameda County
INC., Super. Ct. No. RG-
17846273)
Defendant and Respondent.
ORDER CERTIFYING
OPINION FOR
PUBLICATION
[NO CHANGE IN
JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on December 21, 2022,
was not certified for publication in the Official Reports. After the court’s
review of a request under California Rules of Court, rule 8.1120, and good
cause established under rule 8.1105, it is hereby ordered that the opinion
should be published in the Official Reports.
Dated: _______________________________
Humes, P. J.
1
Alameda County Superior Court
Hon. Victoria Kolakowski
Counsel:
Dolan Law Firm, Christopher B. Dolan, Jeremy M. Jessup, Kimberly E. Levy
for Plaintiff and Appellant.
Porter Scott, Jonathan A. Corr, Jihan El Saouda, Thomas L. Riordan for
Defendant and Respondent.
2