Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08C0168 Thomas DeSantos, Judge.
Lawrence Di Benedetto, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Rochelle C. East, Assistant Attorney General, Vickie P. Whitney and April H. Gatling, Deputy Attorneys General, for Defendants and Respondents.
OPINION
Franson, J.
Appellant Lawrence Di Benedetto is an inmate who has sued two prison officials, respondents J. Lais and L. Smart. After demurrers to the original and first amended complaints were sustained with leave to amend, the superior court sustained respondents’ demurrer to appellant’s second amended complaint, denied leave to amend, and entered judgment in favor of the two respondents. Appellant contends this ruling was erroneous. As we shall explain, we find no error in the sustaining of the demurrer, but conclude that appellant must be granted leave to amend his pleading. We therefore reverse the judgment and direct the trial court to modify its order so as to grant appellant leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s second amended complaint alleges that he is incarcerated at the California Substance Abuse Treatment Facility and State Prison (the prison), that respondent L. Smart was employed at all relevant times by the California Department of Corrections and Rehabilitation (CDCR) as a “correctional counselor II” at the prison, and that respondent J. Lais was employed at all relevant times by CDCR as a “correctional captain” at the prison. It alleges that the respondents “at all times mentioned herein... were acting within the course and scope of their employment ….” Appellant’s allegations as to what these two respondents did are not a model of clarity. Rather than attempt to paraphrase these allegations, and risk mischaracterizing them, we will quote them. Under the heading “Factual Allegation[s] Common To All Causes Of Actions” appellant alleges:
“14. On March 2, 2007, plaintiff was sent to the Correctional Treatment Center (CTC) by the facility medical staff because it was discovered plaintiff was diagnosed with chicken pox.
“15. A memorandum with the abovementioned date was placed on a bulletin board in the Prison Industry Authority (PIA) work area, where many of the facility’s inmate’s [sic] work.
“16. Plaintiff received the copy of the memo from an inmate who is employed in PIA.
“17. Plaintiff appealed the action of [California Substance Abuse Treatment Facility and State Prison (CSATF/SP)] staff, throughout the course of the appeal, staff seem [sic] apologetic as to how the memo was placed in an inmate area. At the same time, they have admitted that plaintiff’s medical privacy was violated.
“18. CSATF/SP staff was ordered to ‘provide that Director’s Level of appeals with documention [sic] reflecting a review of how the memorandum may have been released outside of staff control, who may have posted the memorandum on the PIA bulletin board if any training has been provided to staff regarding the need for confidentiality related to the identity and their medical issues.’”
Under the heading “FIRST CAUSE OF ACTION” and “Failure To Protect” appellant alleges:
“19. Plaintiff contends that defendants Lais and Smart were charged with the implementation of administrative protections for the inmate population, including plaintiff. The abovementioned defendants are responsible for ensuring plaintiff’s rights were not violated. Once they were aware of the violation that may have occurred against plaintiff.
“20. Plaintiff contends that his constitutional violations resulted from prison staff that could have been corrected by the aforementioned defendants. Defendants Smart and Lais knew of the violations, but failed to act properly in resolving the situation.
“21. As a proximate result of defendants [Lias] and Smart’s conduct, plaintiff has suffered damages in the form of emotional distress. Plaintiff is informed and believes and thereon alleges, that he will continue to suffer damages in the future if defendants named above conduct is allowed to continue.
“22. As a further proximate result of defendant[s] [Lais] and Smart’s conduct, plaintiff is informed and believes and thereon alleges, that he will suffer other damages in the future if defendants named above inactions are allowed to continue.
“23. In acting as described herein above defendants Lais and Smart acted despicably, knowingly, willfully and maliciously, or with reckless or callous disregard for plaintiff’s constitutionally protected rights, entitling plaintiff to an award of exemplary and punitive damages.”
Under the heading “SECOND CAUSE OF ACTION” and “Breach of Medical Privacy” appellant alleges:
“24. Plaintiff contends that defendant Lais is charged with implementation of administrative protections for the inmate population, including plaintiff. The aforementioned defendant is responsible for ensuring plaintiff’s rights were not violated. Once he was aware of the violation, he is charged with correcting any constitutional violations that may have occurred against plaintiff.
“25. Plaintiff contends that his constitutional violations resulted from the abovementioned defendant and prison staff, that could have been corrected by defendant Lais. Defendant Lais knew of the violation, but failed to act properly in resolving the situation.
“26. As a proximate result of defendant Lias’[s] conduct, plaintiff has suffered general damages in the form of emotional distress. Plaintiff is informed and believes and thereon alleges, that he will continue to suffer such damages in the future if defendant’s inactions are not corrected.
“27. As a further proximate result of defendant Lais’[s] conduct, plaintiff is informed and believes and thereon alleges, that he will suffer other damages in the future if defendant Lais’[s] inactions are allowed to continue.
“28. In acting as described herein above, defendant Lais acted despicably, knowingly, wilfully [sic] and maliciously or with reckless or callous disregard for plaintiff’s constitutionally protected rights entitling plaintiff to an award of exemplary and punitive damages.”
The second amended complaint’s “Prayer For Relief” states that appellant prays for damages and also for “Injunctive relief.”
The superior court ruled on the demurrer:
“Plaintiff’s allegations that de fendants ‘failed to properly resolve the situation’ do not state a cause of action. The Court takes judicial notice of plaintiff’s tort claim. Causes of action for negligent training, supervision or discipline of subordinates are barred because they were not fairly reflected in plaintiff’s tort claim. (Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.ApP.3d 431.) Moreover, Supervisory personnel, whose personal involvement is not alleged, may not be held responsible for the acts of subordinates under California law. (Gov. Code, § 820.8.) Defendants’ decisions in supervising or training their subordinate employees are protected by the discretionary immunity of Government Code section 820.2, as is defendants’ decision in reviewing plaintiff’s inmate appeal. The demurrer is sustained, without leave to amend.”
All further statutory references are to the Government Code unless stated otherwise.
STANDARD OF REVIEW
Our standard of review of an order sustaining a demurrer on the ground that the complaint fails to state facts sufficient to constitute a cause of action is well settled. We review the sufficiency of the complaint de novo. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) “We also consider matters that may be judicially noticed.” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.)
When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
A. THE PLEADING FAILS TO STATE FACTS SUFFICENT TO CONSTITUTE A CAUSE OF ACTION
Section 820, subdivision (a) of the Government Claims Act (§§ 810 to 996.6) provides: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Appellant has sued two public employees and argues that “not one, but several good causes of action are stated and that it would be error to sustain demurrer in this matter.” He fails, however, to identify the elements of even one such cause of action, or to explain where the elements of any such cause of action appear in his second amended complaint. Like the trial court, we too are left wondering what is meant by appellant’s conclusory allegation that “[d]efendants Smart and Lais knew of the violations, but failed to act properly in resolving the situation.”
The trial court surmised that appellant might be attempting to state a cause of action for negligent training or supervision of subordinates, and ruled that such a cause of action would be barred by sections 820.2 and 820.8. We need not address the propriety of that portion of the court’s ruling because appellant has expressly disavowed any attempt to state a cause of action for negligent supervision. Nor do we deem it necessary to address the trial court’s conclusion that the allegations of appellant’s second amended complaint are not fairly reflected in his Government Code claim. This is because the allegations of appellant’s second amended complaint do not state facts sufficient to constitute a cause of action regardless of whether those allegations are fairly reflected in appellant’s Government Code claim.
Section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
B. LEAVE TO AMEND SHOULD BE GRANTED
The burden of demonstrating a reasonable possibility that appellant may state facts sufficient to constitute a cause of action if leave to amend is granted “is squarely on the plaintiff.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) In recognition of “the requirement of liberality in permitting amendment of pleadings ‘in furtherance of justice’” (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 513, fn. 3 (HFH)), it has been held that this showing may be made on appeal even if it was not made in the trial court, and indeed even if no request for leave to amend was made in the trial court. (Ibid.; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349-350; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1042; see also Code Civ. Proc., § 472c, subd. (a) [“When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such order is open on appeal even though no request to amend such pleading was made”].) A plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; HFH, supra, 15 Cal.3d at p. 513, fn. 3; see also Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 520, fn. 16.)
Appellant’s briefing on appeal suggests that his concerns include the following: (1) the memo in question mentions that he was diagnosed with chicken pox (a purported copy of the memo appears in the record on appeal provided by appellant - it states “medical staff evaluated Inmate DiBenedetto... and discovered he may have chicken pox” and “Facility D will be under a medical quarantine pending further medical evaluation”); (2) one of the respondents (Lais) authored the memo; (3) at least one of the respondents had a duty to take steps to assure that the memo would remain in correctional staff’s hands and would not be seen by other inmates; and (4) at least one inmate other than appellant himself saw the memo (appellant’s second amended complaint alleges that appellant received a copy of the memo from another inmate who was employed in the Prison Industry Authority work area).
Appellant’s briefing argues that “disclosure of the memo is a violation of the confidentiality of the Medical Information Act Civil Code § 56 et seq.” Civil Code section 56.10, subdivision (a), states “[n]o provider of health care, health care service plan, or contractor shall disclose medical information regarding a patient of the provider of health care or enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).” The term “contractor” is defined in the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.) to mean “any person or entity that is a medical group, independent practice association, pharmaceutical benefits manager, or a medical service organization and is not a health care service plan or provider of health care.” (Civ. Code, § 56.05, subd. (c).) Appellant makes no contention, however, that either of the two respondents (defendants Lais and Smart, the only two defendants for whom this judgment was entered) is a provider of health care, a health care service plan, or a contractor. To the contrary, the second amended complaint alleges that the respondents are a “correctional counselor II” and a “correctional captain” at the prison. We thus fail to see how appellant could state a cause of action against either of the two respondents for a violation of the Confidentiality of Medical Information Act.
Appellant also, however, cites the California Constitution’s Article I, section 1 guarantee of a right to privacy and cites Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669 (Gherardini), which states that medical privacy falls within the “protected ambit” of the Article I, section 1 right to privacy. (Gherardini, supra, 93 Cal.App.3d at p. 679.) Case law has recognized a right to sue for unauthorized release of private medical information. (See, e.g., Urbaniak v. Newton (1991) 226 Cal.App.3d 1128 (Urbaniak); Pettus v. Cole (1996) 49 Cal.App.4th 402; Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296; Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345, disapproved on another ground in Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 962; Mansell v. Otto (2003) 108 Cal.App.4th 265; Susan S. v. Israels (1997) 55 Cal.App.4th 1290.) Respondents did not contend in the trial court, and have not contended in this court, that a prison employee has discretion to disclose one inmate’s private medical information to another inmate. (See, Gov. Code, § 820.2, ante, fn. 2.) Respondents did argue that because appellant did not allege that it was one or both of the respondents who posted the subject memo in the Prison Inmate Authority area, appellant was seeking to hold these respondents responsible for an injury caused by an act or omission of another person, and therefore respondents had Government Code section 820.8 immunity. (See, ante, fn. 2.) Appellant appears to contend, however, that one or both of the respondents had some responsibility to ensure that other employees did not divulge the contents of the memo to inmates. “Nothing in [section 820.8] exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” (Gov. Code, § 820.8.)
Although it is unclear whether a violation of the Article I, section 1 right to privacy will by itself support a cause of action for monetary damages (see Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 313, 315, fns. 13 and 16), as opposed to an action for an injunctive relief to prevent such a violation (see Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1; White v. Davis (1975) 13 Cal.3d 757; and Katzburg, supra, 29 Cal.4th at p. 313, fn. 13), the above-mentioned authorities appear to recognize that an unauthorized disclosure of private medical information can constitute a tortious and actionable public disclosure of private facts. (See Hill, supra, 7 Cal.4th at p. 24; Urbaniak, supra, 225 Cal.App.3d at pp. 1137-1138; and Rest.2d Torts, § 652D.)
Given the showing that has been made by appellant on this appeal, we conclude that he must be granted leave to amend his pleading. (HFH, supra, 15 Cal.3d 508.)
DISPOSITION
The judgment is reversed. The matter is remanded to the superior court, and that court shall modify its May 18, 2009, order so as to grant appellant a specified reasonable amount of time within which to amend his pleading.
WE CONCUR: Levy, Acting P.J., Cornell, J.
Section 820.8 states: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.”
Section 820.2 provides a “‘general immunity from liability for acts of public employees in the exercise of discretion vested in them.’” (County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 228.) “Section 820.8 immunizes public employees from liability for injuries caused by another.” (Ibid., fn. omitted.)