The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is a motion to dismiss plaintiff's fifth
and sixth claims for relief pursuant to Federal Rule of Civil
Procedure 12(b)(6), which was filed by defendants Mary Pickett and
Mercury Casualty Company *fn1 ("Mercury").*fn2
Ms. Pickett and Mercury (collectively, the "Mercury
Defendants") contend that plaintiff's complaint fails to state claims
for invasion of privacy under California law.
The court heard this matter on its law and motion calendar on April 7,2011.*fn3
(Minutes, Dkt. No. 24.) Attorney Kristina L. Velarde appeared via telephone on behalf of the Mercury Defendants. Plaintiff, who is proceeding without counsel, failed to appear.*fn4 The undersigned intended to ask plaintiff several questions at the hearing, and plaintiff's unexplained failure to appear deprived the undersigned of the opportunity to do so.
As indicated on the record at the hearing, the undersigned was prepared to rule on the Mercury Defendants' motion to dismiss. The undersigned is presently inclined to recommend that: (1) plaintiff's fifth claim for relief alleging an invasion of privacy be dismissed with prejudice to the extent that it is premised on "public disclosure of private facts" theory of invasion of privacy under California's common law; (2) plaintiff's fifth claim for relief be allowed to proceed to the extent that it is premised on either an "intrusion into private matters" theory of invasion of privacy under California's common law ("Intrusion Claim") or a violation of Article I, section 1 of the California Constitution ("Constitutional Claim"); and (3) plaintiff's sixth claim for relief be dismissed with prejudice as barred by California's absolute litigation privilege, Cal. Civ. Code § 47(b). However, comments by Mercury Defendants' counsel at the hearing have raised additional concerns, which lead the undersigned to order supplemental briefing as follows.
First, the Mercury Defendants argued for the first time in their reply brief that California's absolute litigation privilege, Cal. Civ. Code § 47(b), bars plaintiff's statutory invasion of privacy claim, which plaintiff alleged under California Civil Code § 1798.53.*fn5 A fair reading of the reply brief indicates that it does not assert that the litigation privilege also bars plaintiff's Intrusion Claim and/or Constitutional Claim of invasion of privacy. Yet, at the April 7, 2011 hearing, counsel for the Mercury Defendants argued that the Mercury Defendants intended to assert the privilege as to plaintiff's Intrusion Claim and/or Constitutional Claim. The undersigned orders the Mercury Defendants to address: (1) where in the Mercury Defendants' initial memorandum of points and authorities or reply brief the Mercury Defendants asserted that the litigation privilege bars plaintiff's Intrusion Claim and/or Constitutional Claim of invasion of privacy; and (2) regardless of whether it has been previously asserted, the substantive basis for the application of that privilege to plaintiff's Intrusion Claim and/or Constitutional Claim of invasion of privacy.
Second, counsel for the Mercury Defendants appeared to argue at the April 7, 2011 hearing that Mercury was merely an "unwitting recipient" of plaintiff's health records and that, as a result, the Mercury Defendants did not intrude on plaintiff's privacy rights under California's common law or the California Constitution. The Mercury Defendants rely on the following passage from plaintiff's opposition to the motion to dismiss:
Defendants Mercury Casualty Company and/or Mary Pickett on page 3 at line 6 of defendant's [sic] 12(b)(6) motion defendants allege "Mercury was simply the recipient of the VA's "inadvertent" disclosure of documents. Pursuant to the VA's request (Exhibit G), Mercury/Pickett relayed to it's attorney John Hallisy, the documents that the VA requested to be returned." I accept this statements [sic] as a true statement as to facts and events plaintiff was unaware of until after reading defendant's [sic] 12(b)(6) motion, as well as a factual admission of defendant Mercy/Mery [sic] Pickett [sic] violation of Cal. Civ. Code 1798.53 before the Veterans Administration told defendant's [sic] to Return [sic] plaintiff's Medical Records to the Veterans Administration. (Pl.'s Opp'n at 3:8-13.) The Mercury Defendants appear to argue that this "concession" by plaintiff defeats his alleged Intrusion Claim and Constitutional Claim as a matter of law because Mercury was an unwitting recipient of the health records at issue. The Mercury Defendants are ordered to address why they believe this is the case, especially in light of plaintiff's allegation that on or about August 5, 2009, Mercury and Ms. Pickett contacted Daniel McDonald and requested that Mr. McDonald "provide defendant with plaintiff's personal, confidential and individually identifiable health information without authorization." (Compl. ¶ 78.) The Mercury Defendants should also consider plaintiff's allegations in his opposition brief that suggest, consistent with the allegations in the complaint, that the Mercury Defendants communicated with Mr. McDonald to obtain health records. (See Pl.'s Opp'n ¶ 5.)
For the reasons stated above, IT IS HEREBY ORDERED that: 1. The Mercury Defendants shall file and serve, on or before April 18, 2011, a supplemental brief addressing the issues raised above. The Mercury Defendants' supplemental brief shall not exceed five pages in length.
2. Plaintiff may, if he desires, file a response to the Mercury Defendants' supplemental brief. Plaintiff shall file his optional response within 14 days of being served with the Mercury Defendants' supplemental brief. Plaintiff's response shall not exceed five pages in length.
3. The undersigned will set a hearing only if it deems such a hearing to be necessary or helpful to the disposition of the Mercury Defendants' motion to dismiss.