Fish v. Super. Ct.

Filed 11/27/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MASON ROBERT FISH, D076060
Petitioner, (San Diego County
Super. Ct. No. CN396324)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDING in prohibition after the superior court denied
petitioner's motion to quash. Harry M. Elias, Judge. Petition granted.
Law Offices of Mark W. Fredrick, Mark W. Fredrick; and Courtney L. Cumming
for Petitioner.
No appearance for Respondent.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, David Uyar and
Samantha Begovich, Deputy District Attorneys, for Real Party in Interest.
Petitioner Mason Fish was involved in a fatal motor vehicle collision and
thereafter charged with (among other offenses) three counts of gross vehicular
manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a)). Based on Fish's
statements to law enforcement officers after the collision that he was under the care of a
psychotherapist who had prescribed him certain antidepressant and antipsychotic
medications, the prosecution subpoenaed the psychotherapist's (and his medical group's)
treatment records. Fish moved to quash the subpoenas on the basis they sought
information protected by the psychotherapist-patient privilege. (Evid. Code, §1014.)1
The prosecution countered that Fish had, through his disclosures to law enforcement
officers, waived this privilege. Respondent superior court (the trial court) agreed with the
prosecution. Accordingly, the court denied Fish's motion and indicated it would review
the psychotherapist's treatment records in camera to determine if Fish and his therapist
discussed whether the medications might affect Fish's driving.
Contending the trial court erred in finding he waived the psychotherapist-patient
privilege, Fish petitions for a writ preventing the trial court from reviewing his
psychotherapy treatment records, and requiring the trial court to grant his motion to quash
the subpoenas. For reasons we will explain, we will issue the requested writs.
FACTUAL AND PROCEDURAL BACKGROUND
Fish was driving a vehicle involved in a tragic collision in Oceanside on February
5, 2019. Three occupants of the other vehicle were killed, and three were hospitalized
with severe injuries. Fish told responding law enforcement officers that he was under the
1 Further undesignated statutory references are to the Evidence Code.
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care of a psychotherapist who had prescribed him antidepressant and antipsychotic
medications. Fish told the officers he had last taken the antidepressant that morning, and
the antipsychotic two weeks ago. Fish also stated he had begun, or was about to begin, a
ketamine infusion treatment.2
A few days after the accident, the District Attorney filed a seven-count criminal
complaint against Fish.3 Fish was arraigned and pled not guilty.
About one month later, the District Attorney served subpoenas on the
psychotherapist and his medical group seeking "[a]ny and all medical records for" Fish
from April 24, 2017, through the date of the subpoenas (March 6, 2019).4
Fish moved to quash the subpoenas, arguing they sought information protected by
the psychotherapist-patient privilege. Fish maintained that his disclosure to the law
2 Real party in interest the People, represented by the San Diego County District
Attorney (the District Attorney), include in their return to Fish's petition numerous
additional statements he allegedly made to the officers during their interview. The return
cites to the District Attorney's opposition to Fish's motion to quash, but does not cite to
any evidence in the record. We therefore do not include these additional alleged facts,
which, in any event, are not necessary to our disposition of Fish's petition.
3 The complaint alleged the following offenses: gross vehicular manslaughter while
intoxicated (Pen. Code, § 191.5, subd. (a); counts 1-3); driving under the influence of
drugs causing injury (Veh. Code, § 23153, subd. (f); count 4); possession of a controlled
substance (Health & Saf. Code, § 11350, subd. (a); count 5); driving with a suspended or
revoked license (Veh. Code, § 14601.1; count 6); and driving without a valid driver's
license (Veh. Code, § 12500, subd. (a); count 7). The complaint also alleged various
sentence enhancements.
4 Specifically, the subpoenas sought the following evidence: "Any and all medical
records for the following patient: MASON FISH DOB: [redacted], for the timeframe:
April 24, 2017 to the present. Including, but not limited to: History and physical, all
medical reports, doctor's notes, nurse's notes, trauma notes, diagnos[is] reports, surgery
reports, medication records, charts, progress notes, discharge summary and any other
reports related to medical treatment."
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enforcement officers of the existence of his psychotherapist-patient relationship,
diagnoses, and prescriptions did not waive the privilege.
The District Attorney filed an opposition, arguing Fish had waived the privilege.
The prosecution also asserted that because it had to prove Fish "acted in a grossly
negligent manner," it had a "compelling" need for evidence showing Fish and his
therapist had discussed the medications' side effects, interactions, or impacts on his
driving.
At the hearing on Fish's motion to quash, the trial court stated it had received, but
not yet opened, a manila envelope labeled "defendant's psychiatric records." After
hearing argument, the court denied Fish's motion, finding—at least for purposes of
conducting an in camera inspection—that Fish had waived the psychotherapist-patient
privilege "as relates to what medications [he] was taking and what advice as it relates
specifically to those medications, if any, was given." Other than that, the court found
Fish's communications with his therapist were privileged.
Fish asked the trial court not to review the materials until he had the opportunity to
pursue a writ. The trial court agreed.
After Fish filed the instant petition and the District Attorney filed an informal
response, we issued an order to show cause why we should not grant the requested relief.
The District Attorney filed a formal return, and Fish filed a reply.
DISCUSSION
Fish contends the trial court erred by finding he waived his psychotherapist-patient
privilege by disclosing to law enforcement officers that he was seeing a psychotherapist
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who had prescribed him antidepressant and antipsychotic medications. The District
Attorney disagrees, and further contends it has a compelling prosecutorial need for the
information that outweighs Fish's privacy interests. We conclude Fish's disclosures to
law enforcement officers did not waive his privilege, and there is no legal basis on which
the District Attorney's claimed compelling prosecutorial need warrants an invasion of
Fish's statutory privilege.
I. Relevant Legal Principles
Confidential communications between a psychotherapist and patient are
privileged. (§ 1014; Story v. Superior Court (2003) 109 Cal. App. 4th 1007, 1014 (Story);
§ 917 [communications "in the course of the . . . psychotherapist-patient . . . relationship"
are "presumed to have been made in confidence"].) Section 1014 provides in part that a
"patient, whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between patient and
psychotherapist." "The psychotherapist-patient privilege has been recognized as an
aspect of the patient's constitutional right to privacy." (People v. Stritzinger (1983) 34
Cal. 3d 505, 511 (Stritzinger).)
The psychotherapist-patient privilege rests on the premise " 'that an environment
of confidentiality of treatment is vitally important to the successful operation of
psychotherapy.' " (Story, supra, 109 Cal.App.4th at p. 1014.) The California Supreme
Court has "recognized 'the public interest in supporting effective treatment of mental
illness and . . . the consequent public importance of safeguarding the confidential
character of psychotherapeutic communication.' [Citations.] 'Psychoanalysis and
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psychotherapy are dependent upon the fullest revelation of the most intimate and
embarrassing details of the patient's life . . . . Unless a patient . . . is assured that such
information can and will be held in utmost confidence, he will be reluctant to make the
full disclosure upon which diagnosis and treatment . . . depends.' " (People v. Wharton
(1991) 53 Cal. 3d 522, 555 (Wharton), quoting Sen. Judiciary Com. com., 29B West's
Ann. Evid. Code (1966 ed.) § 1014, p. 621.)
The psychotherapist-patient privilege is "broader than other privileges. Unlike the
physician-patient privilege, for example, the psychotherapist-patient privilege can be
invoked in a criminal proceeding.' " (Nielsen v. Superior Court (1997) 55 Cal. App. 4th
1150, 1154 (Nielsen); San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal. App. 4th
1083, 1091 (San Diego Trolley) ["unlike the physician-patient privilege, the
psychotherapist-patient privilege is not subject to a good cause exception in personal
injury actions"]; Wharton, supra, 53 Cal.3d at pp. 551-552.) "The privilege is also
considered 'paramount to prosecution,' generally outweighing the People's interest in
successful prosecutions . . . ." (Story, at p. 1014; Menendez v. Superior Court (1992) 3
Cal. 4th 435, 456-457, fn. 18 (Menendez).)
"Thus, for policy reasons the psychotherapist-patient privilege is broadly
construed in favor of the patient, while exceptions to the privilege are narrowly
construed." (Story, supra, 109 Cal.App.4th at p. 1014.)
"Where the psychotherapist-patient privilege is claimed as a bar to disclosure, the
claimant has the initial burden of proving the preliminary facts to show the privilege
applies." (Story, supra, 109 Cal.App.4th at p. 1014.) " 'Preliminary facts' means the
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existence of a psychotherapist-patient relationship, 'that is, that the person [the claimant]
consulted was a " 'psychotherapist' " within the meaning of . . . section 1010, and [the
claimant] was a " 'patient' " within the meaning of . . . section 1011.' " (Story, at p. 1014;
§§ 1010 [" 'psychotherapist' " includes a licensed psychologist, or a medical doctor "who
devotes, or is reasonably believed by the patient to devote, a substantial portion of his or
her time to the practice of psychiatry"], 1011 [" 'patient' means a person who consults a
psychotherapist . . . for the purpose of securing a diagnosis or preventive, palliative, or
curative treatment of his mental or emotional condition"].)
"Despite its broad and protective nature, the psychotherapist-patient privilege is
not absolute." (Story, supra, 109 Cal.App.4th at p. 1014.) "Once the claimant establishes
the preliminary facts of a psychotherapist-patient relationship, the burden of proof shifts
to the opponent of the privilege" to either (1) "rebut the statutory presumption of
confidentiality" that attaches to psychotherapist-patient communications, (2) "show that
the privilege has been waived under section 912," or (3) show "that the material sought
falls within one of the exceptions to the psychotherapist-patient privilege codified at
sections 1016 through 1027." (Story, at p. 1015; see, e.g., §§ 1016 [patient-litigant
exception applies when "an issue concerning the mental or emotional condition of the
patient . . . has been tendered by [¶] . . . the patient"]), 1024 [dangerous-patient exception
applies "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"].)
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Regarding waiver, section 912 provides that "the right of any person to claim
[the] . . . psychotherapist-patient privilege . . . is waived with respect to a communication
protected by the privilege if any holder of the privilege, without coercion, has disclosed a
significant part of the communication or has consented to disclosure made by anyone."
(Italics added.) "What constitutes a significant part of the communication is a matter of
judicial interpretation; however, the scope of the waiver should be determined primarily
by reference to the purpose of the privilege." (Transamerica Title Ins. Co. v. Superior
Court (1987) 188 Cal. App. 3d 1047, 1052.)
"The waiver of an important right must be a voluntary and knowing act done with
sufficient awareness of the relevant circumstances and likely consequences." (Roberts v.
Superior Court (1973) 9 Cal. 3d 330, 343 (Roberts).) "Thus, any waiver must be
narrowly construed and limited to matters 'as to which, based upon [the patient's]
disclosures, it can reasonably be said [the patient] no longer retains a privacy interest.' "
(San Diego Trolley, supra, 87 Cal.App.4th at p. 1092.)
Even when there has been a "waiver of a statutory privilege, a patient retains the
more general right to privacy protected by the state and federal Constitutions." (San
Diego Trolley, supra, 87 Cal.App.4th at p. 1092.)
"A trial court's discovery rulings are reviewed for abuse of discretion." (People v.
Mora and Rangel (2018) 5 Cal.5th 442, 466.)
II. Analysis
The undisputed facts show the psychotherapist-patient privilege applies at the
outset because the District Attorney is seeking to discover presumptively confidential
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communications between Fish and his psychotherapist. (Story, supra, 109 Cal.App.4th at
p. 1014; §§ 917, 1010, 1011.) Thus, Fish has met his initial burden of proof, and the
burden shifts to the District Attorney to show the requested materials fall outside the
presumption of confidentiality, fall within a statutory exception to the privilege, or that
Fish waived the privilege by disclosing a significant part of his communications with his
psychotherapist. (Story, at p. 1015.)
The District Attorney does not contend that the requested materials fall outside the
presumption of confidentially or within any statutory exception to the privilege (such as
the dangerous-patient exception). Instead, the District Attorney argues the trial court
correctly concluded Fish waived the privilege by disclosing to responding law
enforcement officers that his psychotherapist prescribed him certain medications for
certain conditions. Alternatively, the District Attorney maintains its compelling
prosecutorial need for the requested materials outweighs Fish's countervailing privacy
interest in the material. We disagree in both respects.
The fact that Fish disclosed to law enforcement officers that his psychotherapist
had prescribed certain antidepressant and antipsychotic medications is legally insufficient
to waive the privilege that attaches to Fish's communications with his therapist about
those prescriptions and diagnoses. Our court reached a similar conclusion in San Diego
Trolley, supra, 87 Cal. App. 4th 1083, in which the plaintiff, who sustained severe injuries
when she was struck by a trolley while crossing the track, sought to discover
psychotherapy records pertaining to the allegedly negligent trolley operator. (Id. at pp.
1088-1089.) The plaintiff argued the trolley operator waived her psychotherapist-patient
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privilege by disclosing during a deposition that "she was being treated for . . . anxiety by
a psychiatrist, that at the time of [the plaintiff]'s injury she was taking three prescription
medications (50 mg. Paxil, .5 mg. Risperdal and .5 mg. Klonopin), and that she had
informed her supervisors about her treatment and medication." (Id. at p. 1088.) The
operator explained she sought this treatment and filed a stress-related workers'
compensation claim because "she had begun suffering anxiety attacks . . . following the
murder of a passenger on a trolley she was operating." (Id. at p. 1088.) The trial court
found the operator had waived her privilege, and ordered the operator's psychiatrist to
appear for a deposition. (Id. at p. 1089.) The operator sought a writ of mandate directing
the trial court to vacate its order, and our court issued the requested writ. (Id. at pp. 1089,
1098.)
Our court concluded the trolley operator had not "disclos[ed] any significant part
of her communications with her psychiatrist" for purposes of waiving the privilege
because she had "only disclosed the fact that she was being treated for anxiety by a
psychiatrist and the medications the psychiatrist had prescribed." (San Diego Trolley,
supra, 87 Cal.App.4th at p. 1094, citing Roberts, supra, 9 Cal.3d at p. 340.) We
explained that this conclusion flowed logically from our high court's guidance:
"[T]he Supreme Court has 'made it clear that the mere disclosure of
the existence of the psychotherapist-patient relationship does not
reveal a significant part of the communication and thus does not
constitute a waiver.' [Citation.] Even when a patient has revealed
the purpose of psychiatric treatment, no waiver of the privilege
occurs. [Citation.] 'There is a vast difference between disclosure of
a general description of the object of . . . psychotherapeutic
treatment, and the disclosure of all or a part of the patient's actual
communications during psychotherapy.' " (San Diego Trolley,
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supra, 87 Cal.App.4th at pp. 1092-1093, quoting Roberts, supra, 9
Cal.3d at p. 340.)
We find the reasoning of San Diego Trolley dispositive. Like the trolley operator
in that case, Fish disclosed only that his psychotherapist had prescribed him certain
antidepressant and antipsychotic medications. This was not a "significant part of [his]
communications with" his psychotherapist for purposes of waiving the psychotherapist-
patient privilege. (San Diego Trolley, supra, 87 Cal.App.4th at p. 1094; see Roberts,
supra, 9 Cal.3d at p. 340.)
Despite the fact Fish extensively discussed this court's decision in San Diego
Trolley in his petition, the District Attorney does not address it at all in its return.
Instead, the District Attorney relies almost exclusively on Jones v. Superior Court (1981)
119 Cal. App. 3d 534, in which the plaintiff's mother asserted the physician-patient
privilege in response to third-party discovery arising from the daughter's lawsuit against
pharmaceutical companies for birth defects allegedly caused by the mother's ingestion of
the drug DES while pregnant. (Id. at pp. 540-541.) The Court of Appeal affirmed the
trial court's determination that the plaintiff's mother had waived her physician-patient
privilege during her deposition when she "answered questions about her medical history
before and up to the time of [the] plaintiff's birth" (id. at p. 541); "recount[ed]
conversations with her physician, pharmacist, husband, and others regarding her
pregnancy and the administration of DES" (ibid., italics added); and remained "willing to
respond to questions about her medical history prior to [the] plaintiff's birth" (id. at p.
542).
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Jones is readily distinguishable. It involved the physician-patient privilege, which
is narrower than the psychotherapist-patient privilege at issue here. (Nielsen, supra, 55
Cal.App.4th at p. 1154; San Diego Trolley, supra, 87 Cal.App.4th at p. 1091; Wharton,
supra, 53 Cal.3d at pp. 551-552.) And, more significantly, the Jones plaintiff's mother
disclosed significantly more information about her physician-patient relationship—
including "conversations with her physician [and] pharmacist" (Jones, supra, 119
Cal.App.3d at p. 541)—than Fish disclosed about his psychotherapist-patient
relationship.
Because Fish's disclosures were legally insufficient under our court's precedent to
waive his psychotherapist-patient privilege, the trial court erred in concluding otherwise.
As an alternative to its waiver theory, the District Attorney argues it is entitled to
discover Fish's psychotherapy records because the prosecution has a compelling need for
the information to effectively prosecute Fish for serious driving-under-the-influence
offenses. We are not persuaded.
The California Supreme Court has held that when no exception to the privilege has
been established and there has been no waiver, the state's claimed compelling need for
the information to aid criminal prosecution does not justify invasion of the privilege:
"As a general matter at least, the privilege appears paramount to
prosecution. Certainly, the Legislature is of that view. It has created
a so-called 'criminal proceeding' exception for the physician-patient
privilege. (Evid. Code, § 998 ['There is no [physician-patient]
privilege . . . in a criminal proceeding.'].) It has not done the same
for the psychotherapist-patient privilege. . . .
"Similarly, as a general matter at least, the privilege does not appear
to be 'trumped' by the People's state constitutional right to due
process. By its very terms, the People's 'right to truth-in-evidence'
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under article I, section 28, [former] subdivision (d) [now
subdivision, (f)(2)] of the California Constitution does not 'affect any
existing statutory rule of evidence relating to privilege . . . .' Implicit
therein is a constitutional determination that the privilege does not
undermine the integrity or reliability of the truth-finding function of
legal proceedings."
(Menendez, supra, 3 Cal.4th at pp. 456-457, fn. 18; see Nielsen, supra, 55 Cal.App.4th at
p. 1154 ["The concept of balancing the interest in protecting the psychotherapist-patient
privilege against the needs of the party seeking the information does not ordinarily apply
to the privilege."].)5
The cases the District Attorney cites to support the proposition that its claimed
compelling need to discover privileged information justifies a limited invasion of the
psychotherapist-patient privilege are all distinguishable because they either did not
involve a privilege at all (i.e., they involved a general privacy claim) or because they
involved a statutory exception to a privilege. (See Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal. 4th 1, 8-9 [no privilege involved]; Stritzinger, supra, 34 Cal.3d at pp.
512-514 [statutory child-abuse-reporting exception to the psychotherapist-patient
privilege]; Roe v. Superior Court (1991) 229 Cal. App. 3d 832, 838 [statutory child-abuse-
reporting exception]; Kirchmeyer v. Phillips (2016) 245 Cal. App. 4th 1394, 1401
[statutory exception authorizing medical review board "to issue investigatory subpoenas
to obtain patient and physician records as part of an investigation of physician conduct"];
Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1032-1033 [medical review board
5 Even Jones, on which the District Attorney heavily relies, acknowledges that
"[u]nder the statutory [privilege scheme], a party's need to know certain information will
not overcome a nonparty's privilege under circumstances in which that privilege is
otherwise properly invoked." (Jones, supra, 119 Cal.App.3d at p. 548.)
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investigation]; John B. v. Superior Court (2006) 38 Cal. 4th 1177, 1202 [exception under
§ 999 for " 'communication[s] relevant to an issue concerning the condition of the patient
in a proceeding to recover damages on account of the conduct of the patient if good cause
for disclosure of the communication is shown' "].)
DISPOSITION
Let a writ issue (1) prohibiting the trial court from reviewing Fish's psychotherapy
records, and (2) directing the trial court to vacate its June 5, 2019 order denying Fish's
motion to quash and to enter a new order granting the motion. The stay
issued by this court on July 11, 2019, is vacated.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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