Mansell

A crime victim sued the alleged perpetrator and his criminal defense counsel for invasion of her constitutional right of privacy, based on the unauthorized reading of her mental health records by defendants and other members of the defense team. The trial court sustained defendants’ demurrer to plaintiff’s complaint without leave to amend and dismissed the action. The court found plaintiff’s claim for invasion of her constitutional right of privacy was barred as a matter of law by the litigation privilege. We *268 find the litigation privilege inapplicable to the noncommunicative acts alleged in the complaint. We nevertheless find plaintiff cannot state a claim for liability against defendants because they obtained her medical and psychiatric records through the court’s normal processes, including a court order. Accordingly, we affirm the judgment of dismissal.

Facts and Proceedings Below

The following facts are taken from the complaint and the transcript of the hearing on the prosecution’s motion for a protective order in the underlying criminal case. 1

Respondent Jeffrey Manning Carlton was charged in two criminal proceedings alleging narcotics violations as well as…

I respectfully dissent.

Were it not for our decision in Susan S. v. Israels (1997) 55 Cal.App.4th 1290 [ 67 Cal.Rptr.2d 42 ] (Susan S.) I would agree with the trial court’s finding that the conduct of respondent Jeffrey Manning Carlton and his criminal defense lawyers in obtaining Katherine Mansell’s confidential mental health records is absolutely privileged under Civil Code section 47, subdivision (b), 1 and would therefore concur with the majority’s conclusion that the judgment of dismissal is properly affirmed. In light of the holding and rationale of Susan S., however, I would grant Ms. Mansell an opportunity to amend her complaint to allege respondents deliberately misled the criminal trial court to obtain the initial discovery order and to attempt to prove her claim for invasion of her constitutional right to privacy.

*280 1. Case Law Other Than Susan S. Recognizes That Ancillary Noncommunicative Conduct Does Not Defeat the Litigation Privilege

As originally filed Ms. Mansell’s complaint focused on the respondents’ alleged lack of good cause for discovery of her psychiatric records dating back to 1976, the omission from the ex parte application of any specific reference…