McNair v. City and County of San Francisco
5 Cal. App. 5th 1154
| Cal. Ct. App. | 2016Background
- McNair, a commercial bus driver with diabetes and cognitive deficits, had medical records at San Francisco DPH that included consent forms stating records would not be released except when "permitted or required by law."
- Dr. Ann Kim, McNair’s DPH primary care physician, learned McNair was driving school routes and, despite his objection, sent a letter to the DMV describing his Cognitive Disorder NOS and quoting prior neuropsychiatric reports expressing safety concerns.
- The DMV revoked McNair’s commercial license after receiving Dr. Kim’s letter; his license was later reinstated but after AC Transit’s deadline, causing him to lose his job.
- McNair sued the City and Dr. Kim for intentional tort (including CMIA violations) and breach of contract (alleging implied/written privacy agreements).
- The trial court granted summary adjudication on the intentional tort claim and later granted nonsuit on the breach of contract claim, principally on the ground that the litigation privilege (Civ. Code § 47(b)) barred recovery.
- The Court of Appeal affirmed, holding Dr. Kim’s DMV communication was privileged and that the CMIA’s permissive disclosure provisions (esp. § 56.10(c)(14)) and public-safety policies justified the privilege’s application here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation privilege bars McNair's intentional tort/CMIA-based claim arising from Dr. Kim's letter to the DMV | McNair: privilege shouldn't shield disclosure that violated CMIA and privacy; CMIA protections would be gutted if privilege applied | City: letter was an authorized communication to a quasi-judicial body (DMV) about public safety and thus absolutely privileged under § 47(b) | Court: Privilege applies; communication meets Silberg factors and is within CMIA's permissive disclosure framework, so the intentional tort claim is barred |
| Whether the litigation privilege bars a breach of contract claim based on the same disclosure | McNair: privilege traditionally bars torts, not contract claims; breach claim should survive | City: same communicative conduct is protected; applying privilege furthers its policies (encouraging reporting to public authorities) | Court: Privilege applies to the contract claim too—gravamen is the communication; Vivian/Feldman/Wang line supports barring the breach claim here |
| Whether CMIA or other statutes create a statutory exception that renders the privilege inapplicable | McNair: applying privilege would make CMIA inoperative where it protects medical confidentiality | City: CMIA itself (§ 56.10(c)(14)) contemplates permissive disclosures "specifically authorized by law," and public‑safety reporting is encouraged by statute/policy | Court: CMIA allows permissive disclosures in contexts like this; applying the privilege does not render CMIA inoperable; public-safety policy supports disclosure |
| Whether technical noncompliance with specific reporting procedures (e.g., sending to DMV instead of local health officer) defeats the privilege | McNair: Dr. Kim did not strictly follow Health & Safety Code reporting procedures, undermining claimed authorization | City: practice/policy and public-safety rationale support the report; whether strictly compliant raises factual issues but does not defeat privilege at summary adjudication | Court: did not need to resolve technical compliance; even if not strictly required, subdivision (c)(14) and public-safety policies bring the disclosure within privilege's scope |
Key Cases Cited
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (privilege protects communications in judicial and quasi-judicial proceedings)
- Silberg v. Anderson, 50 Cal.3d 205 (formulation of litigation privilege: judicial/quasi-judicial, authorized speakers, purpose, and logical relation)
- Rusheen v. Cohen, 37 Cal.4th 1048 (privilege covers communications made before or after formal proceedings)
- Wise v. Thrifty Payless, Inc., 83 Cal.App.4th 1296 (DMV communications fall within § 47(b) privilege)
- Wang v. Heck, 203 Cal.App.4th 677 (privilege encourages reporting to agencies like the DMV; protects physician communications about driver safety)
- Jacob B. v. County of Shasta, 40 Cal.4th 948 (privilege bars statutory and common-law invasion of privacy claims when gravamen is privileged communication)
- Shaddox v. Bertani, 110 Cal.App.4th 1406 (permissive CMIA disclosure under § 56.10(c)(14) when public policy encourages reporting to public authorities)
- Wentland v. Wass, 126 Cal.App.4th 1484 (privilege may not apply where contract terms clearly prohibit the conduct; inquiry focuses on whether applying the privilege furthers its policies)
- Feldman v. 1100 Park Lane Associates, 160 Cal.App.4th 1467 (privilege can bar breach of contract claims when communicative conduct is the gravamen and privileged)
- Vivian v. Labrucherie, 214 Cal.App.4th 267 (privilege applied to bar breach of contract where statements to public agency implicated significant public interest)