Unpublished Disposition, 845 F.2d 329 (9th Cir. 1987)

MEMORANDUM^* 

David C. Young appeals the district court's grant of summary judgment on his tort action against the United States arising out of the testimony of Dr. Ecks, a V.A. psychotherapist. The district court ruled that Dr. Ecks' statements were privileged and therefore could not form the basis for a civil action. We AFFIRM.

FACTS AND PROCEEDINGS BELOW

Dr. John A. Ecks, a psychotherapist, treated David Young through the Veterans Administration from 1982 through 1984. In his capacity as a private physician, Dr. Ecks treated Mary Young, David's ex-wife, from 1980 through 1984.

Dr. Ecks was subpoenaed by Mary Young to appear at a child custody hearing in San Diego Superior Court on September 28, 1984. The issue at the hearing was the suitability of David and Mary Young to provide temporary custodial care for their son, David, Jr. After Dr. Ecks testified as to Mary's suitability as a parent, Mary's attorney tried to question him about David. Dr. Ecks responded: "I would need some clarification from the two parties or from the Judge as to whether I can go any further into discussion along that line." Mr. Young's attorney objected on the grounds of privilege. Dr. Ecks then pointed out that he had contact with Mr. Young outside the therapeutic relationship. The court ruled: "I think from the standpoint of the parties' abilities to care for the child that privilege has been waived and I will permit testimony that deals with those or in those areas."

Following this ruling, Dr. Ecks answered questions by counsel for both parties about his treatment of Mr. Young, the medicine prescribed, and his ability to care for his child. Mr. Young's attorney did not make any further objections. The court awarded temporary custody to Mrs. Young.

On December 9, 1985, David Young filed suit in state court against Dr. Ecks for damages resulting from Dr. Ecks' disclosure of privileged physician-patient information. On February 24, 1986, the case was removed to federal court. Pursuant to a stipulation and order, David Young filed an amended complaint, substituting the United States as defendant. The amended complaint stated the following causes of action: breach of physician-patient confidential relationship, invasion of privacy, violation of statute, infliction of emotional distress, and medical malpractice.

The district court granted the United States' motion for summary judgment on February 17, 1987, and entered an order dismissing the action on March 5, 1987. The district court found that Dr. Ecks' testimony was privileged under Cal.Civ.Code Sec. 47(2) and could not form the basis for an action against the United States. Mr. Young timely appealed.

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

ANALYSIS

The parties do not dispute that Dr. Ecks' disclosures regarding his treatment of Mr. Young fell within the constitutional "zone of privacy," and were protected by the physician-patient privilege. See Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545, 548-49 (1986); Division of Med. Quality, Bd. of Med. Quality Assurance v. Gherardini, 93 Cal. App. 3d 669, 678-79 156 Cal. Rptr. 55, 61 (1979), Cal.Evid.Code Sec. 1014 (West 1966). Regardless, the relevant issue here is not whether the information Dr. Ecks disclosed was protected, but whether Dr. Ecks' testimony was privileged.

Under Cal.Civ.Code Sec. 47(2), "A privileged publication or broadcast is one made-- ... 2. [i]n any (1) legislative or (2) judicial proceeding...." This privilege provides absolute immunity from civil liability. Bradley v. Hartford Accident & Indem. Co., 30 Cal. App. 3d 818, 823, 106 Cal. Rptr. 718, 721 (1973). Although the privilege section appears in the Code chapter on defamation, it applies to virtually all other causes of action. Ribas v. Clark, 38 Cal. 3d 355, 364, 696 P.2d 637, 643, 212 Cal. Rptr. 143, 149 (1985); see also Kilgore v. Younger, 30 Cal. 3d 770, 782, 180 Cal. Rptr. 657, 664 (1982) (invasion of privacy); Lerette v. Dean Witter Org., Inc., 60 Cal. App. 3d 573, 579, 131 Cal. Rptr. 592, 595-96 (1976) (intentional infliction of emotional distress). The privilege applies to witnesses as well as to litigants. Kachig v. Boothe, 22 Cal. App. 3d 626, 641, 99 Cal. Rptr. 393, 403 (1971). The absolute privilege attaches if the publication: 1) was made in a judicial proceeding, 2) had some connection or logical relation to the action, 3) was made to achieve the objects of the litigation, and 4) involved litigants or other participants authorized by law. Bradley, 30 Cal. App. 3d at 825, 106 Cal. Rptr. at 722.

Mr. Young does not contend that any of the above requirements were not met in this case. He relies instead on the judicially-created exception to the privilege in Cutter v. Brownbridge, 183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (1986). In Cutter, a psychotherapist voluntarily executed a written declaration discussing Cutter's treatment. Cutter's ex-wife attached the declaration to her request for suspension of his right to visit his children. Cutter then filed suit against the therapist, claiming a violation of his constitutional right to privacy. Id. at 840, 228 Cal. Rptr. at 547. The court found that Cutter's constitutional rights must be balanced against the need for truth in judicial proceedings. Id. at 843, 228 Cal. Rptr. at 550. The court then noted that by enacting the psychotherapist-patient privilege statutes, Cal.Evid.Code Secs. 1010-1027, the legislature had provided a comprehensive scheme for this balancing. Id. at 551. Therefore:

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.

Id. at 846-47, 228 Cal. Rptr. at 552.

Young claims that Dr. Ecks did not follow Cutter and comply with the requirements of the Evidence Code and therefore he (and the United States) are not entitled to immunity under section 47(2). Specifically, Young asserts that Dr. Ecks did not affirmatively claim the privilege, did not submit the question to the court, and testified beyond the scope of the court's authorization.

These arguments are not supported by the record. First, Dr. Ecks asked for a clarification from the court as soon as he was asked " [w]hat is your association with Mr. Young?" Although Dr. Ecks did not use the word "privilege," it is clear that he was acting to protect his patient's privacy rights. Second, Dr. Ecks did submit the question for judicial determination by explicitly asking the parties or the judge whether he could discuss his contacts with Mr. Young. Appellant argues that Dr. Ecks only asked the judge whether he could discuss his contacts with Mr. Young outside the therapeutic relationship. Dr. Ecks' question was not this narrow. He mentioned contacts with Mr. Young through his wife's treatment as well as "other contacts" and asked for a general clarification "as to whether I can go any further into discussion along that line." Dr. Ecks then did not disclose any information about his treatment of Mr. Young until the judge ruled that the psychotherapist-patient privilege had been waived.

Finally, Dr. Ecks' testimony did not go beyond the court's authorization. Appellant claims the court only ruled that Dr. Ecks could testify about contacts with Mr. Young outside the doctor-patient relationship. This is a misreading of the record. The judge found that "from the standpoint of the parties' abilities to care for the child that the privilege has been waived" and permitted testimony "that deals with those or in those areas." This ruling allowed testimony relevant to the parties' abilities to care for the child. Clearly Mr. Young's psychiatric history and his medication were relevant.

CONCLUSION

Dr. Ecks' testimony was absolutely privileged and cannot serve as the basis for a civil action against the United States. As required by Cutter, Dr. Ecks complied with the California Evidence Code sections on the psychotherapist-patient privilege. Therefore, WE AFFIRM the district court's grant of summary judgment in favor of the United States.