Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC318676, Michael L. Stern, Judge.
Grodsky & Olecki, Allen B. Grodsky, Zachary Rothenberg for Plaintiffs and Appellants.
Sullivan, Struck & Ballog, Daniel R. Sullivan, Brian L. Williams, Dustin E. Woods, for Defendant and Respondent.
BOREN, P.J.
Karen and Ted Aliado sued the Archdiocese of Los Angeles Education and Welfare Corporation (the Archdiocese) for negligence and for violation of their constitutional right to privacy, as a result of the Archdiocese’s disclosure of confidential information in response to a subpoena. The complaint was dismissed after demurrers were sustained without leave to amend.
We conclude that the Aliados’ privacy claim is barred by the litigation privilege (Civ. Code, § 47) because the information that the Archdiocese divulged was in a communication connected to a judicial proceeding. The Aliados have abandoned their negligence claim with respect to the release of confidential information. Finally, the Aliados’ new claim relating to schoolyard bullying is not cognizable because they failed to obtain leave from the trial court to assert it. Accordingly, we affirm the judgment in favor of the Archdiocese.
The factual allegations derive from the second amended complaint. Demurrers were previously sustained to the Aliados’ first amended complaint, with leave to amend.
The Aliados’ children attended St. Paul the Apostle (St. Paul), a parochial school operated by the Archdiocese. The children had confidential communications with various St. Paul employees, including the school psychologist. The Aliados submitted applications, intake information sheets, health and developmental information, and financial information to St. Paul. They were assured that their confidential information would remain private, and not divulged to third parties.
The Aliados were sued by the parents of a St. Paul student (the underlying lawsuit). During the underlying lawsuit, the Aliados’ adversaries served St. Paul with a subpoena, seeking the production of personal records regarding the Aliado family. The Aliados’ attorney was not served with the subpoena, nor was the subpoena accompanied by a “notice to consumer” pursuant to the Code of Civil Procedure. The Aliados had no idea that the subpoena was served on St. Paul.
In response to the subpoena, St. Paul furnished the Aliados’ adversaries in the underlying lawsuit with information about the Aliados. This included applications; intake information forms; health and developmental information; educational records; a “suspected child abuse report” involving one of the Aliado children; written communications between the Aliados and the school principal regarding the child abuse report; internal memoranda documenting the substance of confidential communications between St. Paul and Mrs. Aliado; and financial information concerning the Aliados’ tuition payments. In addition, St. Paul’s principal and school psychologist “voluntarily provided declarations” to opposing counsel in the underlying lawsuit, revealing private information. As a result of St. Paul’s disclosure of the Aliado family’s confidential and private documents and information, the Aliados suffered personal damages and their children suffered psychological injury.
The first cause of action is based on the Aliados’ interest in the records at St. Paul’s: they claim that the school’s disclosure of these records in the underlying lawsuit violated their constitutional right to privacy. The second cause of action for negligence is based on St. Paul’s duty to maintain the confidentiality of the Aliados’ private information. They claim that the school breached its duty by releasing information about the Aliados in response to a subpoena.
The Aliados allege that the subpoena was “facially invalid, ” which is a legal conclusion. We disregard conclusions of law contained in pleadings. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)
The trial court sustained the Archdiocese’s demurrers without leave to amend. It found that any impropriety in issuing the subpoena was committed by the issuing attorney, and there was no wrongdoing on the part of St. Paul. The court also found that the Aliados’ claims are barred by the litigation privilege.
DISCUSSION
1. Appeal And Review
The notice of appeal recites the trial court’s order sustaining demurrers without leave to amend. This is not an appealable order. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) Although the minute order states that the action is dismissed, the law requires a signed order dismissing the action. (Code Civ. Proc., § 581d.)
The Aliados have now filed with this court a certified copy of the trial court’s signed order of dismissal, which operates as a final, appealable judgment. (Desai v. Farmers Ins. Exchange, supra, 47 Cal.App.4th at p. 1115.) We shall treat the premature notice of appeal as incorporating the order of dismissal. (Ibid.; Cal. Rules of Court, rule 8.104(e)(2).) We review de novo the ruling on the demurrer, exercising our independent judgment to determine whether a cause of action has been stated as a matter of law. All properly pleaded facts are deemed admitted. (Desai v. Farmers Ins. Exchange, supra, 47 Cal.App.4th at p. 1115.)
2. Appellants’ Constitutionally Based Privacy Claim Is Barred By The Litigation Privilege
The Aliados allege that they have “legally protected and inalienable rights to privacy under the California Constitution, ” rights which apply to the information they entrusted to St. Paul. They assert that their constitutional rights were violated by St. Paul’s release of their confidential information in response to a subpoena in the underlying lawsuit. The trial court concluded that the information released by St. Paul was related to a judicial proceeding, and thus the Aliados’ claim is barred by the litigation privilege.
For purposes of this appeal, the Archdiocese does not dispute that the Aliados have stated the elements of a claim for invasion of privacy.
Publications made in any judicial proceeding are privileged. (Civ. Code, § 47, subd. (b).) The privilege applies to “any communication” made in a judicial proceeding “by litigants or other participants authorized by law, ” if the communication seeks “to achieve the objects of the litigation” and has “some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) It encompasses a “publication [ ] made outside the courtroom [when] no function of the court or its officers is involved” (ibid.), so long as the publication is one that is “permitted by law.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 380-381.)
The purpose of the privilege is “to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.) It “promotes the effectiveness of judicial proceedings by encouraging ‘open channels of communication and the presentation of evidence’ in judicial proceedings.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 213.) There is no “interest of justice” exception to the privilege. (Id. at pp. 212-213, 218.) The privilege is “absolute in nature.” (Id. at p. 215.) “Any doubt about whether the privilege applies is resolved in favor of applying it.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)
Until recently, it was unclear whether the litigation privilege applies to causes of action based on the constitutional right to privacy. That issue has been resolved. In Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 961 (Jacob B.), the Supreme Court decided that “the litigation privilege applies even to a constitutionally based privacy cause of action.” The court reiterated that the privilege “bars all tort causes of action except malicious prosecution.” (Id. at p. 960.)
The disclosure of private information in this case arose from St. Paul’s receipt of a subpoena. The Aliados agree that St. Paul was a “witness” in the underlying lawsuit. A subpoena directed at a nonparty witness may require attendance before a court, or at trial, or the production of business records at a deposition; the subpoena is generally issued by the judge or court clerk. (Code Civ. Proc., §§ 1985, 1986, 2020.010 et seq.) A deponent who disobeys a subpoena may be punished for contempt. (Code Civ. Proc., § 2020.240.)
St. Paul’s response to the deposition subpoena is directly related to a judicial proceeding, regardless of whether the subpoena was accompanied by a “notice to consumer.” St. Paul’s failure to investigate whether the subpoena was properly served does not affect our analysis. Negligent conduct on the part of a witness does not abrogate the privilege, so long as the ultimate injury suffered arose from a communication related to litigation. (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 502-504.) The allegedly improper declarations submitted by two St. Paul employees are also related to a judicial proceeding: a declaration “functions as written testimony” in a judicial proceeding. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1430-1431.)
The Aliados argue that the litigation privilege does not apply in this case because St. Paul’s dissemination of their confidential records and its provision of declarations from the school principal and psychologist constituted “noncommunicative conduct.” The litigation privilege extends to communicative acts, but not to noncommunicative conduct. (Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) The privilege attaches “only to statements or publications made in connection with the applicable proceeding.” (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482.) For example, an attorney who engages in prelitigation eavesdropping is not protected by the litigation privilege from a claim of invasion of privacy. (Ribas v. Clark (1985) 38 Cal.3d 355, 363-365.) Similarly, no protection is afforded to an invasion of privacy that occurs through a prelitigation unlawful recording of a telephone conversation. (Kimmel v. Goland, supra, 51 Cal.3d at pp. 211-212.) By contrast, a letter written in connection with a pending family law proceeding constitutes a “communication” in the eyes of the Supreme Court, because it was made in the context of a judicial proceeding. (Jacob B., supra, 40 Cal.4th at p. 956.) This was true even though the information contained in the letter was obtained through a computerized records search: the act of obtaining the information was noncommunicative conduct, but the invasion of privacy occurred when the information was disclosed in the legal proceeding. (Id. at p. 957.)
The Aliados are mistaken in characterizing St. Paul’s response to the deposition subpoena and the declarations of school officials as “noncommunicative conduct.” Although conduct was involved in collecting the Aliados’ school records, sending them to counsel and writing the declarations, the gravamen of the Aliados’ claim and the ultimate injury they allegedly suffered “‘stems from the publication of the information in a judicial proceeding, thereby exposing it to public view.’” (Jacob B., supra, 40 Cal.4th at p. 957.) A declaration, in particular, “constitutes communication, not conduct. This is exactly the sort of communication the privilege is designed to protect, ” even if the information contained in the declaration is deliberately false. (Pollock v. University of Southern California, supra, 112 Cal.App.4th at pp. 1430-1431.)
Here, the Aliados allege that St. Paul was not supposed to “divulge the substance of the confidential communications to third parties.” The documents and declarations revealed private information to a third party attorney. As a result of St. Paul’s release of Plaintiffs’ confidential and private documents and information, the Aliados suffered personal damages, and their children suffered psychological injury. As stated in the Aliados’ opening brief, a tort occurred when “St. Paul disclosed to lawyers for parents of another child at St. Paul the personal information that the Aliados had disclosed to St. Paul in confidence.”
In short, the injury arose from the communication of private information in response to a subpoena in a judicial action, and from the submission of declarations. The act of collecting the information from files, or mailing it to the Aliados’ adversaries, is secondary—the harm actually suffered arose from the publication of the private information, not the amassing of it. The publication of the information to only one third party (as opposed to the world at large) does not make the disclosure any less public. This point is underscored by the Aliados’ claim that their children suffered psychological injury as a result of the disclosure of their private information to opposing counsel. No psychological injury was incurred merely because St. Paul pulled the information from a file and mailed it to a litigant’s attorney. The harm was in the reading of it.
Because the Aliados’ cause of action for violation of their privacy right “is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1052.) The privilege would attach to St. Paul’s communications even if they were perjurious, due to the absolute nature of the privilege. (Jacob B., supra, 40 Cal.4th at pp. 958-959; Pollock v. University of Southern California, supra, 112 Cal.App.4th at pp. 1430-1431.) The trial court correctly concluded that the Aliados’ privacy claim is barred by the litigation privilege.
3. Appellants Have Abandoned Their Claim of Negligent Release of Confidential Information
The Aliados allege that St. Paul owed a duty to maintain the confidentiality and privacy of confidential documents, which includes “establishing a proper procedure by which to respond to subpoenas, such that Defendants would not reveal private and confidential documents and information unless required by law . . . .” St. Paul breached this duty, according to the Aliados, by releasing their confidential information in response to an invalid subpoena.
In their brief on appeal, the Aliados make no argument with respect to their claim that St. Paul breached a duty to maintain the confidentiality of documents. Issues not raised in an appellant’s brief are deemed waived or abandoned. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 267.) Because the Aliados have abandoned their claim of negligence based on St. Paul’s release of confidential information, the claim was properly dismissed.
4. Appellants Cannot Allege A New Claim Without Obtaining Leave From The Trial Court
After the trial court sustained demurrers to the Aliados’ first amended complaint with leave to amend, the Aliados added new facts to their second amended complaint that are entirely unrelated to their claims regarding the release of confidential information. Specifically, the Aliados allege that St. Paul violated its duty to protect children by failing to prevent a student at the school from harassing, bullying, and making sexually inappropriate comments to the Aliado children. The trial court did not rule on the Aliados’ new claim regarding the harassment of their children by a schoolyard bully.
Great liberality will ordinarily be allowed in the amendment of a complaint after the sustaining of a demurrer “as long as the plaintiff does not attempt ‘to state facts which give rise to a wholly distinct and different legal obligation against the defendant.’” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) The plaintiff may not allege, after demurrers are sustained with leave to amend, the “violation of an entirely different primary right . . . based upon an entirely different set of facts.” (Warden v. Kahn (1979) 99 Cal.App.3d 805, 809-810.)
Code of Civil Procedure section 473 offers a mechanism by which a party may obtain the trial court’s permission to amend a complaint to state a new claim. The Aliados did not avail themselves of this mechanism. Without prior court authorization, they stated a new claim, based on an entirely different primary right and an entirely different set of facts, i.e., schoolyard bullying versus release of confidential information. Had the Archdiocese moved to strike this new claim, the court would have been justified in granting the motion to strike. (Warden v. Kahn, supra, 99 Cal.App.3d at pp. 809-810.) The court was equally justified in ignoring the unauthorized new claim.
An amendment to allege a new claim must be timely: “[T]he California courts have established the rule that an amended complaint relates back to the filing of the original complaint, and thus avoids the bar of the statute of limitations, so long as recovery is sought in both pleadings on the same general set of facts.” (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, italics added.) The Aliados’ new claim relating to bullying did not relate to the same general set of facts that formed the basis of their original pleading, which solely alleged the improper release of confidential information.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J. CHAVEZ, J.