Opinion
B199793
09-26-2011
ROBERT A. BROWN et al., Plaintiffs and Appellants, v. STEWART MORTENSEN, Defendant and Respondent.
Law Offices of Robert A. Brown, Robert A. Brown; Law Offices of Lyle F. Middleton and Lyle F. Middleton for Plaintiffs and Appellants. Carlson & Messer, David J. Kaminski and Stephen A. Watkins for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC289546)
APPEAL from an order of the Superior Court of Los Angeles County. Anthony J. Mohr, Judge. Reversed.
Law Offices of Robert A. Brown, Robert A. Brown; Law Offices of Lyle F. Middleton and Lyle F. Middleton for Plaintiffs and Appellants.
Carlson & Messer, David J. Kaminski and Stephen A. Watkins for Defendant and Respondent.
Appellants Robert A. Brown and Susana Brown, as individuals and as guardians ad litem of their two minor children, sued Stewart Mortensen and others for allegedly disclosing the Browns' and their minor children's' confidential medical information in violation of the Confidentiality of Medical Information Act ("CMIA") (Civ. Code, § 56 et seq.). The operative complaint is the Browns' fourth amended complaint and the only causes of action before us are the third and fourth causes of action against Mortensen. In ruling on Mortensen's demurrer, the trial court found the third and fourth causes of action impermissibly vague and, on that ground, sustained the demurrer with leave to amend. The Browns chose not to amend their complaint further. Accordingly, the trial court dismissed the third and fourth causes of action with prejudice.
The complaint also claims to be on behalf of all others similarly situated. We do not address or otherwise mention any potential class in this opinion, as no class has been certified and no such issues are before us.
In our earlier opinion, we held the Browns' third and fourth causes of action against Mortensen were not impermissibly vague or confusing. We also held, however, that the federal Fair Credit Reporting Act (15 U.S.C., § 1681 et seq.) preempted the third and fourth causes of action. Thus, we affirmed the trial court's order dismissing with prejudice the Browns' third and fourth causes of action against Mortensen. (Brown v. Mortensen (2010) 105 Cal.Rptr.3d 462, 463.)
Our Supreme Court granted review of the preemption issue only and reversed our decision on that issue. (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1057, 1059.) The case is now before us after remand from the Supreme Court.
Background
These facts are based on the allegations in the Browns' fourth amended complaint.
Robert Brown and his two minor children received dental services from the Reinholds defendants, who are not parties to this appeal (the "dentists"). Mortensen had an agreement with the dentists for the collection of an allegedly outstanding debt owed by Mr. Brown to the dentists for dental services. Under their agreement, Mortensen would share the proceeds of the collection of the debt with the dentists.
In March 2001, Mortensen and Mr. Brown spoke by telephone. During their conversation, Mortensen claimed Mr. Brown owed money to the dentists. Mr. Brown asked Mortensen to provide some verification of the alleged debt. In response, Mortensen sent Mr. Brown a copy of not only Mr. Brown's dental chart, but the dental charts for his two minor children as well. In May 2001, Mortensen and Mr. Brown again spoke by telephone. Mortensen claimed the dental charts verified the debt owed by Mr. Brown. Mr. Brown disagreed and complained that the dental charts included confidential medical information about his two minor children and himself. The charts revealed, for example, the children's and Mr. Brown's names, social security numbers, dates of birth, residence addresses, telephone numbers, health care providers, health care treatments and treatment dates.
Soon after their conversation, and continuing for a period of approximately two years, Mortensen used and disclosed the dental charts, including the confidential medical information contained in them, to three consumer credit reporting agencies (specifically, Experian, Equifax and Trans Union). Mortensen made these repeated disclosures for purposes of verifying the claim that Mr. Brown owed money to the dentists. Mortensen made these disclosures despite (i) the fact that Mr. Brown had told Mortensen that the charts included confidential medical information, and (ii) the fact that there was no claim that Mr. Brown's two minor children owed money to the dentists. The Browns never authorized disclosure of the dental charts and confidential medical information. In fact, the Browns repeatedly asked defendants not to make such disclosures, but the disclosures continued.
Mr. Brown also wrote to the credit reporting agencies, explaining that the information they had received was inaccurate and incomplete. In response, the credit reporting agencies contacted Mortensen for verification of the alleged debt. Mortensen then provided to the credit reporting agencies Mr. Brown's dental history and payments to the dentists for the past 10 years. Mr. Brown claimed that detailed history was not only unnecessary to the alleged debt collection, but was also inaccurate. Mr. Brown then requested that the dentists contact the credit reporting agencies to ask them to delete the information Mortensen had provided. The dentists refused to do so and, in fact, made further disclosures to the credit reporting agency Equifax.
Following these events, the Browns sued Mortensen and the dentists. The Browns amended their complaint four times. The fourth amended complaint alleged violations of the CMIA and, in the alternative only, violations of the Fair Debt Collection Practices Act (15 U.S.C., § 1692 et seq.) ("FDCPA"). The Browns named Mortensen in the third and fourth causes of action for violations of the CMIA, as well as in the fifth cause of action for violations of the FDCPA. After considering defendants' demurrers, the trial court dismissed with prejudice the Browns' third and fourth causes of action. The Browns eventually dismissed with prejudice the fifth cause of action, which was the only remaining cause of action against Mortensen.
On appeal, the Browns challenge the trial court's order dismissing the third and fourth causes of action.
Discussion
1. Uncertainty
In our earlier opinion, we reversed the trial court's decision dismissing the third and fourth causes of action on the ground they were impermissibly vague or confusing. Unlike the trial court, we held the Browns' third and fourth causes of action were not impermissibly vague or confusing.
As we stated before, although the Browns' fourth amended complaint may not be a model of clarity, it is not fatally uncertain or confusing. It is clear from the caption of the complaint that the Browns assert claims for violations of the CMIA and, in the alternative, one claim for violations of the FDCPA. The title of the complaint states "Fourth Amended Complaint for Damages and Injunctive Relief for: Violations of Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.); and, in the alternative only Violations of Fair Debt Collection Practices Act (15 U.S.C., § 1692 et seq.)." The third and fourth causes of action allege violations of the CMIA. Those causes of action not only allege that the defendants violated the CMIA, but also allege that Mortensen made unauthorized, unexcused disclosures of privileged medical information. (See Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38; Civ. Code, §§ 56.05, subd. (g), 56.10, 56.13.)
Each cause of action also states which party is bringing the claim and against whom it is directed. The third cause of action states it is by the two minor plaintiffs against Mortensen individually and doing business as Credit Bureau Services and Does 30 through 70. Similarly, the fourth cause of action states it is by Mr. Brown against Mortensen individually and doing business as Credit Bureau Services and Does 30 through 100. (See Cal. Rules of Court, rule 2.112.)
Mortensen claims the complaint is unclear as to which defendants made the alleged CMIA violations. But, in the third and fourth causes of action—for example, paragraphs 66, 67, 96, 97 and 102 of the fourth amended complaint—the Browns repeatedly allege that Mortensen disclosed confidential medical information. Although these causes of action also include general references to "defendants," reading the complaint as a whole and its parts in context, we conclude the complaint is not impermissibly vague or confusing. (Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) Moreover, when a complaint is uncertain in some respects, the parties can clarify ambiguities during discovery. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
2. Preemption under the Fair Credit Reporting Act
In our earlier opinion, we also held the Fair Credit Reporting Act (15 U.S.C., § 1681 et seq.) ("FCRA") preempted the Browns' third and fourth causes of action. Based on that preemption ground, we affirmed the dismissal of the third and fourth causes of action. The Supreme Court reversed our judgment, holding instead that the FCRA did not preempt the Browns' third and fourth causes of action. (Brown v. Mortensen, supra, 51 Cal.4th at pp. 1057, 1072.)
3. Other arguments on appeal
In addition to arguing the third and fourth causes of action were impermissibly uncertain and that, in any event, the FCRA preempted the Browns' claims, Mortensen also argued on appeal that the Browns' third and fourth causes of action were otherwise barred as a matter of law (citing, for example, the FDCPA and the Health Insurance Portability and Accountability Act of 1996). Because the trial court dismissed the third and fourth causes of action based on uncertainty alone, however, we decline to address Mortensen's additional arguments on appeal, which were not decided by the trial court. (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 427.)
Disposition
The trial court's order dismissing the Browns' third and fourth causes of action for uncertainty is reversed. We remand this case for further proceedings consistent with this opinion. Each party is to bear its own costs on appeal.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.