Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV064372
Premo, J.
Introduction
Defendant Lucile Packard Children’s Hospital terminated the employment of plaintiff Cynthia Bentley, R.N., charging her with having improperly disclosed confidential patient information. Plaintiff filed this lawsuit for invasion of privacy and defamation, denying the allegation that she had disclosed a patient confidence and maintaining that the real reason she was discharged was her off-the-job relationship with the family of a patient, which, she said, was an invasion of privacy under our state constitution. (Cal. Const. art. I, § 1.)
This case lay dormant while plaintiff’s union prosecuted a wrongful discharge grievance on her behalf. The grievance was arbitrated and the arbitrator found in plaintiff’s favor, concluding that defendant had discharged her for disclosing confidential information but that defendant had not adequately investigated the alleged disclosure. The arbitrator ordered plaintiff reinstated. After the arbitration was concluded, the trial court granted defendant’s motion for summary judgment in this case. This appeal ensued. For reasons we shall explain, we affirm.
[ ] We take our recitation of the undisputed facts from the moving and responding papers filed in connection with the summary judgment proceedings.
Plaintiff was employed by defendant as a registered nurse and assigned to care for newborn infants in the Intermediate Intensive Care Nursery (IICN). In or about February 2005, she assumed the care of an infant who had been born prematurely. Plaintiff learned, in a nurse-to-nurse report, that the child’s mother (Mother), who was 18 or 19 years old and unmarried, had concealed her pregnancy from her parents, had given birth without their knowledge, and planned to give the baby up for adoption.
During the baby’s hospital stay, plaintiff met Mother two or three times and became concerned for her well being because Mother claimed that her father (baby’s grandfather) would kill her if he found out about her out-of-wedlock pregnancy. Plaintiff gave Mother her home address and her telephone number to use if she feared for her safety. Plaintiff spoke with social worker Emily Perez about her concerns and told Perez that she had given Mother her home telephone number. Perez indicated that giving out her home number to Mother was improper and that plaintiff “could get fired for that.” Perez reported the incident to a nursing supervisor and assistant nurse manager for the IICN, Kathy Garduce, contacted plaintiff and asked her to jot down what led to her giving out her personal information. Although plaintiff thought she had done the right thing, she stated in her written note that she would not do so again and would give only a “good ear and a hug.”
About a week later, on March 7, 2005, plaintiff again contacted Perez and offered to serve as a temporary foster parent for the baby. Perez thought this request was inappropriate and informed Debra Zwahlen, a nursing director, about it. Zwahlen obtained additional information from Garduce and met with plaintiff on March 10, 2005, to discuss her interactions with Mother.
The baby was discharged, presumably to a foster home, at the end of March 2005. Several weeks later, Mother called plaintiff at her home, screaming that she needed help. Plaintiff advised her to call the police or go to a shelter but, instead, Mother showed up at plaintiff’s home the following day. Plaintiff allowed Mother to stay for three or four days. On the last day, plaintiff received a call from Mother’s boyfriend, who told plaintiff that Mother had run away from home. Plaintiff called the family and told them Mother was with her and tried to determine if Mother would be safe if she returned. Mother’s sister explained that Mother had dropped out of school and that the family had been looking for her. She said that the family knew about the baby. Plaintiff responded, “How’s that?” or “How do you know that?” Mother’s father and sister came to plaintiff’s home to get Mother, whereupon Mother’s behavior changed. She started swearing and became “your typical rebellious teenager,” lashing out about the baby and how it had ruined her life. She left willingly with her family.
On or about May 4, 2005, a dependency investigator with Child Protective Services (CPS) reported to Perez that plaintiff had improperly disclosed confidential health information. The CPS worker alleged that plaintiff had contacted Mother’s family and told them that Mother had given birth. Plaintiff was suspended from her job pending an investigation of the allegation. After an in-house review of the matter, but without contacting the CPS worker who made the report or speaking with Mother, Zwahlen decided to terminate plaintiff’s employment. Zwahlen’s letter informing plaintiff of the decision stated, in pertinent part: “You inappropriately shared protected health information that you obtained through your employment about a patient with the patient’s extended family. This is a violation of the LPCH Confidentiality Policy and the HIPAA policy. You failed to provide any reasonable explanation for your behavior. [¶]... [¶] Your behavior, as an employee of LPCH, has negatively affected a patient of LPCH, the reputation and integrity of the Lucile Packard Children’s Hospital and has placed the hospital at risk. I have therefore decided to terminate your employment effective immediately.”
[ ] HIPAA is the Health Insurance Portability and Accountability Act. (P.L. 104-191 (HR 3103) Aug. 21, 1996; see also 45 CFR Parts 160 and 164.) In particular, subtitle F, part C, section 1177, codified in title 42 United States Code section 1320d-6, imposes criminal liability on any health care provider who knowingly discloses private health information to a third party. Defendant’s confidentiality policy mirrors the HIPAA requirements.
Procedural Background
Plaintiff’s wrongful discharge claim was arbitrated pursuant to a collective bargaining agreement. Following a two-day hearing, the arbitrator found that the basis for plaintiff’s discharge was “breach of the confidentiality policy and HIPAA” but that the evidence of this breach was “uncorroborated hearsay” that defendant had not investigated and that Zwahlen, the administrative fact finder, had failed to determine whether plaintiff’s sworn statement denying the charge was true or false. Accordingly, the arbitrator concluded that plaintiff had been treated unfairly and defendant did not have just cause for the discharge.
In the course of the arbitration, defendant had argued that an alternative ground for the discharge was plaintiff’s conduct with Mother, which was a violation of its “Therapeutic Relationships Policy.” The arbitrator agreed that plaintiff “may have” violated that policy. Plaintiff “did a number of things of concern to [defendant]. She offered the mother and the baby a place to stay. She asked to be considered as a foster parent. She was warned off these activities and agreed to stop when warned.... [¶] But this was not the ground for her discipline. She was found guilty of breach of the confidentiality policy and HIPAA.” The arbitrator conceded, “Of course her disregard of warnings that she was not to engage in inappropriate relationships with patients or their families may affect this remedy for wrongful discharge.”
Following a separate hearing on the remedy, and after weighing defendant’s “concern over the appropriateness of [plaintiff’s] behavior against a substantial record of public and quasi public service,” the arbitrator concluded that plaintiff should be reinstated with back pay. Because of concerns about plaintiff’s violation of hospital policies, the arbitrator ordered that she be placed on probation for a year, to be monitored by the director of patient care services.
Plaintiff then proceeded with this case. Her first cause of action for invasion of privacy alleged that she had been discharged for violation of defendant’s confidentiality policy but that the “alleged incidents that gave rise to the employment termination were not job related in any manner and did not involve communication by Plaintiff of any patient protected health information.” The discharge allegedly violated plaintiff’s right to privacy under the California Constitution, article I, section 1, “which protects an individual in his or her home, family, thoughts, emotions, expressions, and personal affairs.” The invasion of privacy allegedly “involved off-the-job conduct, and thus, among other things, Plaintiff lost her rights to conduct her personal life, as she saw fit....” Plaintiff further alleged that “[a]s a direct result of the wrongful conduct as set forth above” she suffered, “[l]oss of employment, wages and benefits and earning capacity... pain, suffering, emotional distress, and other general damages, past and future....”
The second cause of action for defamation alleged that defendant had published the false statement that plaintiff had “violated patient confidentiality” and that this misstatement had been communicated to defendant’s other employees and repeated by those employees to other individuals.
The trial court granted defendant’s motion for summary judgment on the ground that defendant had proved a complete defense to the first cause of action, namely, that it had a legitimate, countervailing interest in controlling employee relations with patients and their families, and, as to the second cause of action, that there was no evidence of any actionable defamatory statements. This timely appeal followed.
Discussion
A. Summary Judgment Standard of Review
In order to prevail on a motion for summary judgment, a defendant must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant makes that showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Ibid.)
Because a motion for summary judgment raises only questions of law, we independently review the parties’ supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582.) “ ‘We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) Regardless of the considerations that may have moved the trial court, if the ruling is right on any theory of the law, it must be affirmed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
B. Invasion of Privacy
“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).) “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant’s assertion of countervailing interests by showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests.” (Id. at p. 40.) “Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court.” (Ibid.) “The existence of a sufficient countervailing interest or an alternative course of conduct [also] present threshold questions of law for the court.” (Ibid.)
Plaintiff’s theory of liability was that she had a legally protected privacy right in her off-the-job relationship with Mother and that termination of her employment because of that relationship was a serious invasion of that right. In its motion for summary judgment, defendant argued that plaintiff had no reasonable expectation of privacy in her relationship with a patient’s family and that defendant had a countervailing interest in controlling such relationships in order to foster appropriate professional relationships and to prevent improper disclosure of patient information. The trial court concluded that discharging plaintiff in response to her conduct with Mother furthered defendant’s “legitimate, countervailing interest ‘to establish relationships with patients and families that are therapeutic, professional, and which have well-defined boundaries’ ” and that plaintiff had not demonstrated any feasible, effective alternatives.
After reviewing the record on appeal, we questioned whether it was necessary to consider plaintiff’s off-the-job interactions with Mother in light of the arbitrator’s findings that defendant had terminated her employment based upon the charge that she had disclosed protected health information and not on account of her off-the-job personal relationships. We solicited supplemental briefing on the question. In her supplementary brief, plaintiff concedes that the arbitrator’s findings that fall within the scope of the issues submitted to him are binding in this case. The concession is appropriate. Collateral estoppel, the issue preclusion aspect of the res judicata doctrine, precludes a party to one action from relitigating in a second action matters litigated and determined in the prior proceeding. (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1335.) The rule can apply to a labor arbitration so long as the arbitration has the elements of an adjudicatory procedure. (Id. at p. 1336.)
In her supplemental brief, plaintiff argues that the arbitrator’s finding that there was no just cause for her discharge supports her invasion of privacy claim. But the arbitrator’s factual findings included more than just his ultimate conclusion. The arbitrator expressly found that the basis for plaintiff’s discharge was the charge that she had disclosed protected patient information in violation of federal law, but that the charge did not amount to good cause because defendant had not adequately investigated it. The arbitrator affirmatively rejected defendant’s argument that plaintiff’s inappropriate personal relationship with Mother was good cause since that was not the basis for its action. These findings were central to the issue the arbitrator had been called upon to decide--defendant’s cause for terminating plaintiff’s employment. Since the arbitrator found that plaintiff’s employment was not terminated because of her involvement with Mother, plaintiff is estopped from arguing otherwise.
Even if the arbitrator’s determination of the cause for discharge does not bar plaintiff from pursuing her current theory, her appeal still fails. Indeed, plaintiff makes no cognizable legal argument on appeal. She makes the conclusory statements that defendant “engaged in conduct that invaded her privacy interests,” that plaintiff carried out the actions for which she was discharged “in her own home and on her own (non-work) time,” and that, by attempting to terminate her, defendant “invaded her privacy interests.” Plaintiff includes no citation to the record or any discussion of the elements of her claim. Plaintiff then asserts, in three short paragraphs, that there are triable issues of fact pertaining to whether defendant ever informed her of the existence or the scope of the Therapeutic Relationships Policy, but she fails to describe how this dispute bears upon her privacy claim. Where a party’s briefs are devoid of any analysis or discussion, they fail to disclose to us the course of logical or legal reasoning by which the party came to the conclusion she wants us to adopt. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)
In its brief on appeal, defendant argues that plaintiff had no legally protected privacy interest in the conduct for which she claims to have been discharged, which was: (1) disclosing her home telephone number to Mother, (2) offering to serve as a foster parent to the baby, (3) having telephone conversations with Mother, and (4) giving Mother refuge in her home. Plaintiff does not respond to the argument. Indeed, nowhere in her briefs on appeal or in the record below, has plaintiff identified any constitutional, statutory, or common law basis for her claim that this conduct is legally protected. (See Hill, supra, 7 Cal.4th at p. 36 [state constitutional does not protect “unbridled right of personal freedom.” Protection for specific personal decisions “is to be determined from the usual sources of positive law governing the right to privacy.”].) That plaintiff may not have been aware of the existence of the Therapeutic Relationships Policy would, arguably, be relevant to the question whether plaintiff had a reasonable expectation of privacy in her interactions with Mother--part of the proof necessary to show that plaintiff had a protectable privacy interest in those interactions. But it is undisputed that plaintiff knew her conduct could be sanctioned since she admitted that Perez told her she could be fired for sharing her personal information with Mother. Furthermore, the arbitrator found that she had been “warned off” her inappropriate conduct but persisted in spite of the warnings. This finding was central to the arbitrator’s determination of the remedy and, therefore, plaintiff is bound by it. Accordingly, whether plaintiff knew about the policy itself is immaterial.
Finally, defendant’s primary argument, and the one upon which the trial court relied, is that defendant had legitimate reasons for limiting employees’ personal involvement with patients and their families. We agree that defendant’s countervailing interests, particularly its interest in preventing disclosure of protected patient information, are a sufficient defense. Indeed, federal law requires that defendant ensure the confidentiality of patient information. (See fn. 2, ante.) Plaintiff offers no argument in rebuttal. Plaintiff’s failure to rebut this affirmative defense defeats her first cause of action.
C. Defamation
Plaintiff’s defamation cause of action related to her allegation that defendant had published the untrue statement that she had been discharged for violating a patient confidence. In its motion for summary judgment, defendant submitted declarations from the nurses involved, in which they denied having made or heard the allegedly false statements. The only evidence plaintiff submitted in opposition was her statement that two nurses told her that management personnel told them that plaintiff had been discharged for violating HIPAA. The trial court excluded plaintiff’s evidence on hearsay grounds (Evid. Code, § 1200) and found that any other such statements had been made in the course of the arbitration proceedings and were privileged (Civ. Code, § 47, subd. (b)). Plaintiff does not challenge either of these rulings on appeal. Accordingly, there is no evidence of any actionable defamatory statement and this cause of action must also fail.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.