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Jeffrey H. v. IMAI12/8/2000
ly held that a balancing of interest analysis governs application of the litigation privilege to a cause of action for invasion of privacy under California Constitution, article I, section 1. Cutter makes clear that 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. The pleadings here allege an intentional disclosure of HIV test results that the defendants knew were improperly released by the hospital. We recognize the importance that these records may have had to the ascertainment of the truth of appellant's claims, but standing alone the allegations of the amended complaint do not disclose the relevance of the test results to the physical injuries put at issue by appellant's personal injury suit. Accepting the allegations as true, as we must on appeal from an order sustaining a demurrer, the amended complaint alleges a willful and unnecessary disclosure of constitutionally protected information, similar to the disclosure in Urbaniak. Based solely upon these allegations we conclude that the constitutional right to privacy outweighs the policies underlying the litigation privilege and that the trial court erred in sustaining the demurrer as to the cause of action for invasion of privacy.
B. Intentional Infliction of Emotional Distress
A balancing of interests analysis, however, is not applicable to the remaining tort causes of action. As noted in Silberg, a line of decisions holds that Civil Code section 47, subdivision (b)(2), immunizes defendants from tort liability based on theories of intentional infliction of emotional distress. (E.g., Silberg v. Anderson, supra, 50 Cal.3d at p. 215; Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 128; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 492; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 641.) These precedents clearly also apply to theories of negligent infliction of emotional distress and operate to bar the claims of intentional and negligent infliction of emotional distress in the present case.
Appellant claims that the use of documents disclosing his HIV status formed part of a pattern of aggressive litigation by the respondent law firm that subjected him to needless emotional stress. But the alleged conduct involved communications by the firm in the course of the litigation to achieve the firm's object of defending the interests of its clients. The communications thus come squarely within the bar of the litigation privilege.
C. Health and Safety Code section 120980
Lastly, we turn to appellant's claim for damages under Health and Safety Code section 120980, subdivision (d), which provides: "Any person who commits any act described in subdivision (a) or (b) shall be liable to the subject for all actual damages, including damages for economic, bodily, or psychological harm that is a proximate result of the act." The "act described in subdivision (a) or (b)" is the negligent or willful disclosure of "the results of an HIV test . . . to any third party, in a manner that identifies or provides identifying characteristics of the person to whom the test results apply, except pursuant to a written authorization . . . ." (Id. at subd. (b).)
In Urbaniak v. Newton, supra, 226 Cal.App.3d at pp. 1142-1143, we concluded that a close examination of the statute as a whole reveals that it applies "only to disclosures by persons having access to the record of the results of a blood test," (id. at p. 1143) that is, to the health care providers responsible for receiving and keeping custody of the test results in the cou
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