1

Filed 11/22/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MICHAEL McNAIR,

Plaintiff and Appellant,

v.

CITY AND COUNTY OF SAN 

FRANCISCO et al.,

Defendants and Respondents.

 A138952

 (City & County of San Francisco

 Super. Ct. No. CGC-09-489734)

This action arises out of a letter written by Dr. Ann Kim disclosing her patient 

Michael McNair‟s confidential medical history and health conditions. Dr. Kim sent the 

letter to the California Department of Motor Vehicles (“DMV”) against McNair‟s wishes 

due to public safety concerns. As a result, McNair‟s commercial driver‟s license was 

temporarily revoked, and he lost his job as a bus driver. After McNair filed suit alleging 

injury due to breach of his medical privacy rights, the trial court granted summary 

adjudication on his intentional tort cause of action and nonsuit on his breach of contract 

claim. Specifically, the trial court determined that McNair‟s intentional tort claim was 

barred by the litigation privilege, Civil Code section 47, subdivision (b) (section 47(b)).

1

 

Thereafter, the court granted nonsuit on McNair‟s breach of contract cause of action on a 

host of different grounds, including the litigation privilege. On appeal, McNair asks us to 

determine whether the trial court erred: (1) in concluding that the litigation privilege 

barred his intentional tort claim; (2) in granting nonsuit; and (3) in granting certain pretrial motions prior to the jury trial on his breach of contract claim. Because we conclude 

that both of McNair‟s claims were barred by the litigation privilege, we affirm.

 

1 All statutory references are to the Civil Code unless otherwise indicated.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Michael McNair obtained a commercial driver‟s license in 2000 and began driving 

approximately 25 to 30 weeks per year. McNair has a history of diabetes and cognitive 

deficits. Dr. Ann Kim, a staff physician and primary care internist employed by the San 

Francisco Department of Public Health (DPH), treated McNair from 2004 to 2006 at the 

Maxine Hall Health Center (MHHC). In 1996, 1997, and 2003—while under the care of 

other DPH physicians—McNair signed three documents generated by the DPH entitled

“Consent General Health Care” (Consents). The Consents all stated that his medical 

records would not be released without his written authorization, absent an articulated 

exception to this general rule. One such exception was situations in which the DPH was 

“permitted or required by law” to release the information. 

In 2002, McNair saw Dr. Pope for an examination to determine whether he 

qualified for Social Security Insurance (SSI). McNair told Dr. Pope about his prior 

employment and driving history. Specifically, he reported that, in the past, he had 

followed his own bus routes rather than those designated by his employer and was 

unwilling to assist passengers and follow procedures. McNair also stated that he did not 

like to babysit people. Further, McNair told Dr. Pope that, during one particular instance, 

he improperly drove a group of children from San Diego, California to Tijuana, Mexico. 

McNair stated he made a mistake and “just didn‟t think.” After his examination of 

McNair, Dr. Pope concluded: “Frankly, given the problems described above, I would 

advise serious caution in recommending that the patient‟s professional driving license be 

renewed. At present, because of his cognitive deficits, impulsivity, and poor judgment 

and insight, I found Mr. McNair to be unable to seek or maintain even basic 

employment.” 

In December 2004, McNair asked Dr. Kim to determine his medical eligibility for

a commercial driver‟s license with the DMV. Dr. Kim refused to certify him due to his 

cognitive disorder and uncontrolled diabetes. McNair then requested that other doctors at 

the MHHC certify him for his commercial driver‟s license, but the MHHC medical 
3

director at the time stated that none of the other physicians would agree to certify him. 

Prior to this, from 2000 to 2004, McNair had had other doctors at the MHHC sign off on 

his medical certification for his commercial driver‟s license. He also had doctors at other 

hospitals such as Bay Medical, Concentra, and Potrero Hill City health clinic approve his 

medical certification. 

The medical examination report submitted to the DMV required McNair to certify 

under penalty of perjury that he had provided true and correct information concerning his 

health. It stated that any false information could invalidate his medical examiner‟s 

certificate. However, in the medical examination report McNair provided to the DMV in 

2004, McNair did not disclose that Dr. Pope had diagnosed him with reading, personality, 

and cognitive disorders. McNair claimed that he talked to his doctor about it and didn‟t 

think that he needed to disclose the information. 

In 2005, the Homeless Advocacy Project arranged for McNair to see Dr. Joanne 

Keaney, Ph.D. in order for the doctor to determine if McNair would qualify for SSI

benefits. Later that year, Dr. Kim asked to see Dr. Keaney‟s report because she was also 

trying to help McNair qualify for SSI benefits and believed her report would help him. 

On June 1, 2005, Dr. Kim wrote a letter to support McNair‟s application for SSI

disability benefits and stated, in her opinion, that he was not able to hold down any type 

of full-time employment. Dr. Kim understood that the Social Security Administration 

wanted to know a doctor‟s opinion regarding whether the patient could work. If the 

patient could work, no benefits would be awarded. Dr. Kim believed that McNair‟s SSI 

application was eventually granted. 

Thereafter, on April 20, 2006, Alameda County Transit (“AC Transit”) hired 

McNair as a bus operator. McNair began a ten-week training program on April 25, 2006,

and began driving regular bus routes on July 31, 2006. He told Dr. Kim about his new

full-time job driving for AC Transit on August 29, 2006. 

On October 18, 2006, Dr. Kim learned from a nurse that McNair needed a doctor‟s 

note sent to the DMV explaining his absence from a DMV hearing. The hearing dealt 

with McNair‟s application for a School Pupils Activity Bus (SPAB) certificate to drive 
4

school busses. Dr. Kim did not write a letter of absence for him because, according to 

her records, McNair was not at the doctor‟s office on the day of the hearing. She did, 

however, call McNair on October 18 and tell him that he should not be driving children 

on a bus due to his poor health. Dr. Kim also told McNair that if she were to write 

anything to the DMV, then she would have to write about McNair‟s health conditions. 

McNair stated that he did not want Dr. Kim to communicate with the DMV. 

Nevertheless, later that day, Dr. Kim wrote a letter to the DMV concerning 

McNair‟s diagnosis of Cognitive Disorder NOS. As stated above, McNair did not give 

permission to Dr. Kim to send this letter. The letter stated:

“I am Mr. Michael McNair‟s primary care physician at Maxine Hall 

Health Center. It has recently come to my attention that Mr. McNair has 

been approved for a commercial driver‟s license. I did not sign off on his 

medical evaluation forms.

“While I do not know of an occasion in which Mr. McNair suffered 

a lapse of consciousness, I believe it is in the interest of public safety that 

the DMV is aware that he has been diagnosed with Cognitive Disorder 

NOS. A neuropsychiatric assessment from May, 2005 performed by 

Joanne Keaney, PhD was done as a follow-up from a prior neuropsychiatric 

evaluation. Her assessment was that Mr. McNair is functionally illiterate, 

lacks the capacity to set limits on himself and fails to understand the 

consequences of his behavior. She thought his primary difficulty remaining 

employed appears not [sic] be the result of mild congenital or 

developmental brain damage that has not only affected his cognitive skills 

but more importantly has impaired his judgment, impulse control, insight, 

forethought and ability to introspect.

“Dr. Pope‟s initial neuropsychiatric evaluation from 2002 states that 

he would advise serious caution in recommending that his professional 

driving license be renewed. He found Mr. McNair to also suffer from a

personality disorder with limited insight, impulsiveness, and poor 

judgment.”

Dr. Kim wrote the letter out of concern for McNair‟s safety and the safety of the 

public. She based her statements in the letter to the DMV on her own observations made 

while treating McNair at the MHHC and on the specialists‟ reports written by Drs. Pope 
5

and Keaney. Dr. Kim learned from Dr. Pope‟s report that McNair had been fired in the 

past for his unwillingness to assist passengers. Dr. Pope‟s report also detailed the

incident where McNair drove a bus over the Mexican border with children on board. Dr. 

Kim thought these past events were relevant to his ability to drive a school bus. In his 

report, Dr. Pope made a recommendation that McNair should not have a license to drive 

commercial vehicles. Dr. Keaney‟s report echoed Dr. Pope‟s opinions regarding 

McNair‟s vocational history and his ability to drive. Dr. Kim did not think, however, that

either Dr. Pope or Dr. Keaney made any report to the DMV concerning McNair. 

As stated above, Dr. Kim first became aware that McNair was working for AC 

Transit in August 2006. She did not send the letter to the DMV until October 2006 

because she was wrestling with the decision whether to protect her patient‟s 

confidentiality or to disclose McNair‟s information for the safety of the public. But, once 

it came down to driving a school bus, that “just kind of pushed the balance.” Even 

though McNair did not want Dr. Kim to send the letter disclosing his mental condition, 

she “felt obligated to let the DMV know that there was more information that they didn‟t 

have.” Dr. Kim wanted the DMV “to have the medical information so that they could do 

their own assessment” in regard to McNair‟s ability to drive. Dr. Kim visited the DMV 

website before she sent the letter to review her reporting obligations.2

The DMV revoked McNair‟s driver‟s license on October 23, 2006, but McNair did 

not learn of the revocation until December 6, 2006, when his supervisor at AC Transit 

told him. Consequently, McNair stopped driving for AC Transit that day. It was also on 

that same date that McNair first saw Dr. Kim‟s letter. McNair‟s continued employment 

at AC Transit was contingent on getting his commercial driver‟s license reinstated by 

 

2

The record contains an excerpt from the DMV website which states, among other 

things, that the agency finds out about persons who may be unsafe to drive “from many 

sources, including law enforcement, physicians and surgeons, judges, family members 

and acquaintances.” The website also contains the following directive: “Physicians are 

required by law (Health & Safety Code Section 103900) to report disorders characterized

by lapses of consciousness, as well as Alzheimer‟s disease and related disorders. 

Additionally, they may report any other condition if they believe it would affect the 

driver‟s ability to drive safely.” 
6

January 17, 2007. McNair had two hearings at the DMV on December 15, 2006, and 

January 22, 2007, regarding the restoration of his license. After the first hearing, McNair 

had his regular driver‟s license restored. After the second hearing on January 22, he had 

his commercial driver‟s license reinstated. However, this was five days after the deadline 

that had been imposed by AC Transit, and McNair therefore lost his job. McNair tried to 

get his job back through the union, but lost in arbitration in January 2009. 

B. Procedural Background

On June 23, 2009, McNair filed a complaint in San Francisco County Superior 

Court (Complaint), alleging causes of action for intentional tort and breach of contract 

against the City and County of San Francisco and Dr. Kim (collectively, City), based on 

Dr. Kim‟s disclosure of McNair‟s confidential information to the DMV. The intentional 

tort cause of action expressly stated that the disclosure of McNair‟s medical information 

violated the California Confidentiality of Medical Information Act (CMIA), Civil Code, 

section 52 et seq. With respect to the breach of contract claim, the Complaint stated that

the contract at issue was “[p]artly written, partly oral and partly implied” as further

described in the pleading. Attached to the Complaint were copies of several privacy 

notices that were routinely provided to patients by DPH: A DPH Notice of HIPPA 

Privacy Practices (HIPPA Privacy Notice) issued pursuant to the Health Insurance 

Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. (HIPPA); and a 

related Summary DPH Notice of HIPPA Privacy Practices (DPH Summary Notice). 

Pursuant to the HIPPA Privacy Notice and the DPH Summary Notice, a patient‟s 

confidential health information was generally kept private, but could be shared when 

required by federal, state, or local law. In addition, the notices also provided: “Health 

information about you may be used and shared to law enforcement officials, mobile crisis 

team, or to an intended victim when necessary to prevent a serious threat to your health 

and safety or the health and safety of the public or another person. Any disclosure, 

however, would only be to someone able to help prevent the threat.” 

In November 2011, the City moved for summary judgment or, in the alternative, 

summary adjudication. After hearing, by order dated May 8, 2012, the trial court denied 
7

the City‟s motion for summary judgment and its motion for summary adjudication as to 

McNair‟s breach of contract cause of action. However, the trial court granted the City‟s 

motion for summary adjudication of McNair‟s intentional tort cause of action. 

Specifically, the order stated: “The intentional tort cause of action fails based on the 

litigation privilege. [Citations.] HIPAA does not preempt the litigation privilege. The 

purpose of HIPAA is to protect medical confidences, not provide a cause of action.” 

Before trial on the breach of contract cause of action, the trial court resolved 

numerous motions in limine filed by both the City and McNair. Thereafter, upon the 

close of McNair‟s evidence, the City moved for nonsuit. The court ultimately granted 

nonsuit on a myriad of grounds, including: (1) that the litigation privilege applied to a 

contract cause of action premised on Dr. Kim‟s letter; (2) that McNair failed to present 

evidence that the City intended to enter into a contract with him; (3) that McNair did not 

present evidence that the contract was approved as to form by the City Attorney‟s office;

(4) that McNair did not present evidence of breach of contract because Dr. Kim was 

permitted to report someone to the DMV who she believed was a danger to the public; 

(5) that McNair did not present evidence that any damages were foreseeable at the time 

of contract formation because he was not employed by AC Transit at that time; and (6) 

that McNair did not present any evidence of consideration for the contract.

The trial court entered judgment in favor of the City on April 12, 2013, with notice 

of entry on April 18. McNair‟s timely notice of appeal now brings the matter before this 

court. 
8

II. DISCUSSION

A. Summary Adjudication on the Intentional Tort Cause of Action

1. Standard of Review

The trial court granted the City‟s motion for summary adjudication of McNair‟s 

intentional tort cause of action. “A defendant moving for summary judgment has the 

burden of producing evidence showing 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.” (Garcia v. W & W Community Development, Inc. (2010) 186 Cal.App.4th 1038, 

1041.) On appeal, we review an order granting summary judgment de novo, viewing the 

evidence in the light most favorable to the nonmoving party. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 860; In re Automobile Antitrust Cases I & II (2016) 

1 Cal.App.5th 127, 150-151.) Moreover, “we apply the same three-step analysis as the 

trial court. First, we identify the issues framed by the pleadings. Next, we determine 

whether the moving party has established facts justifying judgment in its favor. Finally, 

if the moving party has carried its initial burden, we decide whether the opposing party 

has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter

(2001) 91 Cal.App.4th 1433, 1438.)

2. The Litigation Privilege

“The litigation privilege, codified at Civil Code section 47, subdivision (b), 

provides that a „publication or broadcast‟ made as part of a „judicial proceeding‟ is 

privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 

1232, 1241 (Action Apartment).) “The usual formulation is that the privilege applies to 

any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or 

other participants authorized by law; (3) to achieve the objects of the litigation; and (4) 

that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 

50 Cal.3d 205, 212 (Silberg).) The litigation privilege is “not limited to statements made 

during a trial or other proceedings, but may extend to steps taken prior thereto, or 

afterwards.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) It is applied broadly,
9

and doubts are resolved in favor of the privilege. (Wang v. Heck (2012) 203 Cal.App.4th 

677, 684 (Wang); Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 500.)

The purpose of the litigation privilege is to afford litigants and witnesses freedom 

of access to the courts without the fear of harassment by subsequent derivative tort 

actions. (Silberg, supra, 50 Cal.3d at 213.) The privilege also “ „exists to protect citizens 

from the threat of litigation for communications to government agencies whose function 

it is to investigate and remedy wrongdoing.‟ ” (People ex rel. Gallegos v. Pacific Lumber 

Co. (2008) 158 Cal.App.4th 950, 958.) Thus, the phrase, “ „judicial or quasi-judicial 

proceedings,‟ ” has been “ „defined broadly to include “ „all kinds of truth-seeking 

proceedings,‟ ” including administrative, legislative and other official proceedings.‟ ”

(Wang, supra, 203 Cal.App.4th at 684.) As is relevant here, the DMV, as an 

administrative body of the state, has been recognized as engaging in quasi-judicial 

proceedings for purposes of the privilege. (Wise v. Thrifty Payless, Inc. (2000) 83

Cal.App.4th 1296, 1303 (Wise).)

Application of this analytical framework to the present case leads us easily to the 

conclusion that the litigation privilege bars McNair‟s cause of action for intentional tort. 

Under Silberg, Dr. Kim‟s letter to the DMV was a communication made in a “quasijudicial proceeding.” (See Wise, supra, 83 Cal.App.4th at p. 1303.) Further, Dr. Kim 

was an individual “authorized by law”3to communicate to the DMV regarding McNair‟s 

 

3 Any argument that Dr. Kim‟s disclosure was not “authorized by law” because it 

violated confidentiality statutes is foreclosed by Jacob B. v. County of Shasta (2007) 40 

Cal.4th 948 (Jacob B.). In that case, the plaintiff argued that “because the letter broke 

confidentiality laws, it was not permitted by law and [writer of the letter] was not 

authorized by law to communicate the information to the court.” (Id. at 958.) In 

clarifying the “ „permitted by law‟ ” and “authorized by law” language, the court wrote: 

“It should be apparent that in Albertson, by using the term „permitted by law,‟ we meant 

to broaden the privilege‟s reach beyond traditional limits by including any category of 

publication permitted by law. We did not suggest that the specific publication must be 

permitted.” (Id. at p. 958-959.) Under Jacob B., “such a communication is privileged 

even if a specific communication might not be permitted by law because, for example, it 

was either perjurious or meant to be kept confidential. Just as the privilege extends to 

communications otherwise within section 47(b)‟s reach that are perjurious, it also extends 
10

ability to drive. In addition, Dr. Kim wrote to the DMV “to achieve the objects of the 

litigation” because she sent the letter so that the DMV could evaluate McNair‟s ability to 

drive based on all relevant information. And, the letter had “some connection or logical 

relation to the action” because it actually prompted the subsequent DMV hearings

regarding McNair‟s driving capabilities. (Silberg, supra, 50 Cal.3d at p. 212.) Thus, all 

four requirements for the litigation privilege laid out in Silberg are satisfied under the 

present facts.

Moreover, our conclusion in this case is buttressed by reference to relevant 

precedent. In Wise, supra, 83 Cal.App.4th 1296, for example, the court held that a 

husband‟s voluntary report to the DMV regarding his wife‟s drug usage and its impact on 

her ability to operate a motor vehicle fell within the litigation privilege. (Wise, supra, 83 

Cal.App.4th at p. 1303.) The court rejected the wife‟s argument that her statutory and 

constitutional right to privacy must prevail over the litigation privilege because “the 

privilege is absolute and precludes recovery on all tort theories, including claims for 

invasion of privacy.” (Id. at p. 1302-1303.) As the Wise court reiterated: “An absolute 

privilege exists to protect citizens from the threat of litigation for communications to 

government agencies whose function it is to investigate and remedy wrongdoing.” (Id. at 

p. 1303.) Thus, the husband‟s statements to the DMV were covered by the privilege for 

quasi-judicial proceedings. (Ibid.) Similarly, here, because Dr. Kim‟s letter to the DMV

questioning McNair‟s driving safety was a “statement [ ] made to initiate official action,” 

the absolute privilege applies. (See ibid.)

Additionally, in Wang, supra, 203 Cal.App.4th 677, two individuals were 

critically injured after being struck by a car driven by an individual who suffered an 

 

to communications otherwise within its reach that might be deemed confidential.” (Id. at 

p. 959.) Here, Dr. Kim disclosed McNair‟s confidential medical information to the 

DMV. As stated above, both the DMV and state law clearly contemplate, encourage, and 

even sometimes require, communications from the public—and physicians in 

particular—regarding others‟ ability to drive. Thus, even if her particular disclosure 

violated confidentiality laws, Dr. Kim‟s letter fell within a category of communication 

permitted by law and was therefore within the purview of the privilege. 
11

epileptic seizure. The victims subsequently sued the driver‟s neurologist based on the 

doctor‟s prior report to the DMV that the driver‟s epilepsy did not affect his ability to 

drive safely. (Id. at p. 679.) The appellate court held that none of the appellants‟ causes 

of action could stand because they all relied on the doctor‟s report to the DMV, which 

was clearly covered by the litigation privilege as a communication authorized by law 

submitted to the DMV to aid in determining driver safety. Appellant attempts to 

distinguish Wang because that case “concerned a report to the DMV that was required to 

get a license reinstated and that the patient requested the doctor to complete.” (Ibid. at 

p. 680-681.) McNair also points out that there was no issue of a CMIA violation in 

Wang. We do not find either of these distinctions meaningful. Rather, as in Wang, 

Dr. Kim‟s letter was an authorized communication to the DMV to aid that quasi-judicial 

agency in determining McNair‟s driving capabilities. As such, it was covered by the 

privilege.

Indeed, McNair does not even argue on appeal that Dr. Kim‟s letter, as a general 

matter, fails to meet the criteria for application of the litigation privilege. Rather, he cites 

authority for an exception to the litigation privilege, under which courts have refused to 

apply the privilege when its general provisions conflict with a specific statute. Under 

this line of cases, application of the litigation privilege has been deemed inappropriate

where the specific statute “would be significantly or wholly inoperable if its enforcement 

were barred when in conflict with the privilege.” (See Action Apartment, supra, 41 

Cal.4th at pp. 1237, 1246 [City of Santa Monica Tenant Harassment ordinance]; see also

Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 337-340

[Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788)]; Siam v. Kizilbash

(2005) 130 Cal.App.4th 1563, 1577 [Child Abuse and Neglect Reporting Act]; Begier v. 

Strom (1996) 46 Cal.App.4th 877, 884-885 [same].) According to McNair, application 

of the litigation privilege in this case would eliminate safeguards governing disclosures of 

medical information that the Legislature sought to protect in the CMIA and would

therefore render the CMIA “significantly or wholly inoperable.” We are not convinced. 
12

The CMIA “was originally enacted . . . „to provide for the confidentiality of 

individually identifiable medical information, while permitting certain reasonable and 

limited uses of that information.‟ [Citation.]” (Heller v. Norcal Mutual Ins. Co. (1994) 8 

Cal.4th 30, 38.) By its express terms, the CMIA recognizes that its confidentiality 

mandate is not absolute. Rather, section 56.10 enumerates numerous instances where 

disclosure of confidential information is either mandatory or permissive. In particular, 

subdivision (c)(14) of section 56.10 (subdivision (c)(14)) states: “(c) A provider of health 

care or a health care service plan may disclose medical information as follows . . . (14) 

The information may be disclosed when the disclosure is otherwise specifically 

authorized by law . . . .” (§ 56.10 (c)(14).) The City is correct in describing subdivision 

(c)(14) as a “catchall provision” as it “serves as the residuary clause in section 56.10. It 

legitimizes a myriad of situations the Legislature may not have cared to spell out, by 

establishing the principle of permissive disclosure when specifically authorized by law.” 

(Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1414 (Shaddox).)4 

Here, Dr. Kim‟s disclosure was arguably “specifically authorized” under Health 

and Safety Code section 103900, subdivision (a) (section 103900(a)), which provides as 

follows: “Every physician and surgeon shall report immediately to the local health 

officer in writing, the name, date of birth, and address of every patient at least 14 years of 

age or older whom the physician and surgeon has diagnosed as having a case of a 

disorder characterized by lapses of consciousness. However, if a physician and surgeon 

reasonably and in good faith believes that the reporting of a patient will serve the public 

interest, he or she may report a patient’s condition even if it may not be required under 

 

4 We reject McNair‟s argument that, because many of the mandatory disclosure 

provisions found in subdivision (b) of section 56.10 deal with disclosures in judicial or 

quasi-judicial proceedings, all such disclosures must be compelled rather than voluntary. 

To the contrary, several of the permissive disclosures authorized by subdivision (c) of 

section 56.10 involve judicial proceedings. (§ 56.10, subds. (c)(8)(A) [certain 

proceedings in which an employer and an employee are parties] & (c)(12) 

[conservatorship/guardianship proceedings].) As we read the statute, voluntary 

disclosures are permitted in the litigation context where authorized by some provision of 

subdivision (c), including the catchall provision found in subdivision (c)(14). 
13

the department’s definition of disorders characterized by lapses of consciousness 

pursuant to subdivision (d). (Health & Saf. Code, § 103900(a), italics added.) 

Unsurprisingly, McNair and the City argue over the application of section 103900(a) in 

this case. McNair, for instance, stresses that Dr. Kim did not comply with the exact terms 

of section 103900(a) because she forwarded her letter directly to the DMV rather than to 

the “local health officer” as required by the statute. The City, in contrast, claims that it 

was the pattern and practice at the MHHC for physicians to send letters directly to the 

DMV. It further asserts that Dr. Kim sent the letter out of her concern for the safety of 

her patient and the public. Thus, the disclosure was in the public interest as required by 

the statute. Arguably, some or all of these contentions raise triable issues of material fact, 

which would make summary adjudication inappropriate. For purposes of determining 

whether resort to the litigation privilege was proper under the circumstances of this case, 

however, we need not finally determine whether Dr. Kim‟s letter was, in fact, issued in 

compliance with section 103900(a). 

Rather, employing an analysis similar to that used by this Division in Shaddox, 

supra, 110 Cal.App.4th 1406, we conclude that—because California has a policy of 

encouraging reports regarding suspected unsafe drivers—subdivision (c)(14) must be 

construed in a way that will not impede voluntary reports of the type generated by 

Dr. Kim, “reports whose importance is already recognized and immunized by section 47, 

subdivision (b)(3).” (See Id. at p. 1418.) In Shaddox, a police officer (Shaddox) in the 

San Francisco Police Department (SFPD) sued his dentist alleging a violation of the 

CMIA, invasion of privacy, and intentional and negligent infliction of emotional distress 

based on the dentist‟s report to the SFPD that Shaddox might be dependent on 

prescription pain medication. (Id. at p. 1409-1410.) The Court held, on “separate and 

independent grounds,” that the dentist‟s disclosure of Shaddox‟s medical information was 
14

both lawful under subdivision (c)(14) and privileged pursuant to section 47(b)‟s litigation 

privilege.

5

 (Id. at p. 1409, 1418.) 

The Shaddox court‟s analysis of the applicability of the litigation privilege 

focused, as does ours in this case, on the need “ „ “to assure utmost freedom of 

communications between citizens and public authorities whose responsibility is to 

investigate and remedy wrongdoing. . . .” ‟ ” (Shaddox, supra, 110 Cal.App.4th at 

pp. 1415-1416.) Because the dentist in Shaddox was “alerting the SFPD about one of its 

officers possibly having a problem that could impair his ability to perform the vital public 

safety responsibilities entrusted to a metropolitan law enforcement agency,” and because 

his communication led to an authorized investigation, the communication qualified as one 

made “in the course of an „official proceeding authorized by law‟ and was consequently 

privileged.” (Id. at p. 1417.)

With respect to the potential violation of the CMIA, the Shaddox court 

emphasized that “California has a policy of encouraging reports concerning suspected 

misconduct or unfitness by law enforcement officers.” (Shaddox, supra, 110 Cal.App.4th 

at p. 1412.) Specifically, the court pointed to a local ordinance encouraging citizens to 

report claims of misconduct and a state statute requiring each law enforcement agency to 

establish a procedure for investigating such complaints. (Id. at pp. 1412-1413.) 

Although none of the referenced statutes expressly authorized the disclosure of 

confidential information, the court concluded that this did not exclude them from the 

reach of subdivision (c)(14) because they involved a particular type of communication 

authorized by law. (Id. at pp. 1413-1414, 1418.) The Shaddox court also highlighted the 

 

5 McNair‟s contention that Shaddox pre-dated HIPAA and is thus irrelevant lacks merit. 

HIPAA does not provide a private right of action and we agree with the City that “state 

law immunity may bar private suits consistent with federal statutes that afford no private 

right of action.” (Doe v. Bd. of Trs. of the Univ. of Ill., 429 F.Supp.2d 930, 944 (N.D. Ill. 

2006) [“[e]very court to have considered the issue . . . has concluded that HIPAA does 

not authorize a private right of action”]; see Stevenson v. San Francisco Housing 

Authority (1994) 24 Cal.App.4th 269, 282-283.) Moreover, we find the question of 

whether Dr. Kim‟s disclosure violated HIPAA to be analytically distinct from the 

question of whether such disclosure was authorized under the CMIA. 
15

important public safety concerns implicated by the dentist‟s report and noted that “issues 

of public safety may be paramount to personal privacy.” (Id. at p. 1418.) In this regard, 

the court quoted the seminal case of Tarasoff v. Regents of University of California

(1976) 17 Cal.3d 425, in which our Supreme Court concluded: “ „[T]he public policy 

favoring protection of the confidential character of patient-psychotherapist 

communications must yield to the extent to which disclosure is essential to avert danger 

to others. The protective privilege ends where the public peril begins.‟ ” (Shaddox, 

supra, 110 Cal.App.4th at p. 1418.) And, the dentist‟s report was one the importance of 

which was recognized and immunized by the litigation privilege. (See ibid.) Under all of 

these circumstances, the Shaddox court determined that the dentist‟s disclosure in that 

case was authorized under subdivision (c)(14) and therefore not violative of the CMIA. 

(Id. at pp. 1418.)

As we read Shaddox, a voluntary disclosure of confidential medical information 

falls within the reach of subdivision (c)(14) of section 56.10 if a public policy exists 

encouraging such disclosure; the disclosure involves issues of public safety; and it is a 

communication which would otherwise be immunized by the litigation privilege. In this 

case, California clearly has a policy of encouraging, and sometimes even mandating, 

reports regarding suspected unsafe drivers. As described above, the DMV website 

indicates that the agency finds out about persons who may be unsafe to drive from many 

sources, including physicians and members of the public. Section 103900(a) expressly 

contemplates disclosure of even confidential information to the DMV where public safety

is implicated. Moreover, “[t]he DMV is a public agency, authorized to conduct an 

investigation to determine whether the license of any person should be suspended or 

revoked. (Veh. Code, § 13800.) The department‟s proposed decision to revoke or 

suspend a person‟s driver‟s license is subject to an evidentiary hearing and decision by an 

administrative officer or body, as well as review by the courts. (Veh. Code, § 14100 et 

seq.)” (Wise, supra, 83 Cal.App.4th at p. 1303.) In addition, Dr. Kim‟s letter clearly 

implicated issues of public safety, as she was disclosing a problem that could impair 

McNair‟s ability to perform the public safety duties entrusted to him as a bus driver. 
16

Finally, this is a situation where the importance of the report has already been recognized 

and immunized by the litigation privilege. In short, we find this situation essentially 

indistinguishable from that confronted by the Shaddox court, and therefore, conclude that 

Dr. Kim‟s disclosure was authorized under subdivision (c)(14). As a consequence, it was

not violative of the CMIA, regardless of whether it complied with all of the technical 

requirements of section 103900(a). Under such circumstances, it cannot be argued that 

application of the litigation privilege would render the CMIA significantly or wholly 

inoperable. We, therefore, see no error in the trial court‟s application of the litigation 

privilege to foreclose McNair‟s intentional tort cause of action in this case.6

B. Nonsuit on the Breach of Contract Cause of Action

1. Standard of Review

A defendant moves for nonsuit in order to test the sufficiency of the plaintiff‟s 

evidence before presenting his or her evidence to the trier of fact. (Carson v. Facilities 

Development Co. (1984) 36 Cal.3d 830, 838, fn. 4.) “A defendant is entitled to nonsuit if 

the trial court determines as a matter of law that plaintiff's evidence, when viewed most 

favorably to the plaintiff under the substantial evidence test, is insufficient to permit a 

jury to find in his favor.” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 

713.) On appeal, we review a grant of nonsuit de novo. (Saunders v. Taylor (1996) 42 

Cal.App.4th 1538, 1541-1542.) Reversal of a judgment of nonsuit is warranted if there is 

“some substance to plaintiff‟s evidence upon which reasonable minds could differ . . . .” 

(Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105.)

 

6

Pettus v. Cole (1996) 49 Cal.App.4th 402 (Pettus), relied on by McNair as authority for 

the notion that the litigation privilege would render the CMIA‟s permissible disclosure 

provisions significantly or wholly inoperable is clearly distinguishable. In Pettus, the 

court determined that the litigation privilege did not apply because the plaintiff‟s 

disability evaluation was not a quasi-judicial proceeding. (Id. at p. 437.) Because section 

47(b) was inapplicable, the Pettus court examined the plaintiff‟s alternative argument—

that the “more general privilege” in section 47, subdivision (c) applied. Obviously, the 

court‟s discussion of subdivision (c) has no bearing on this case. 
17

2. The Litigation Privilege

The City argues that the trial court properly granted nonsuit on McNair‟s breach of 

contract cause of action because it is barred by the litigation privilege. McNair, in 

contrast, asserts that the litigation privilege generally applies only to causes of action in 

tort and not breach of contract. In Navellier v. Sletten (2003) 106 Cal.App.4th 763 

(Navellier II)), this Division noted that, while certain earlier decisions had applied the 

litigation privilege to bar breach of contract claims, generally the privilege is “described 

as one that precludes liability in tort, not liability for breach of contract.” (Id. at p. 773.) 

Without deciding the issue, we further remarked that these prior cases did not “discuss 

whether all breach of contract actions involving privileged communication are 

necessarily precluded.” (Id. at p. 773-774; see Laborde v. Aronson (2001) 92 

Cal.App.4th 459, 461-463, disapproved on another point in Musaelian v. Adams (2009) 

45 Cal.4th 512, 520; Pollock v. Superior Court (1991) 229 Cal.App.3d 26, 28-30.) 

Since Navellier II, however, subsequent appellate decisions have clarified when 

the litigation privilege applies to breach of contract claims. For example, in Wentland v. 

Wass (2005) 126 Cal.App.4th 1484 (Wentland), the court held that the litigation privilege 

did not protect voluntary statements made in the course of litigation that breached an 

express confidentiality agreement. (Id. at p. 1489-1490.) The court concluded that 

“whether the litigation privilege applies to an action for breach of contract turns on 

whether its application furthers the policies underlying the privilege.” (Id. at p. 1492.) 

According to Wentland, those underlying policies are to “ensure free access to the courts, 

promote complete and truthful testimony, encourage zealous advocacy, give finality to 

judgments, and avoid unending litigation.” (Ibid.) Ultimately, the court concluded that 

the litigation privilege did not apply because the breach at issue “was not simply a 

communication, but also wrongful conduct or performance under the contract.” (Id. at 

1494.) As the Wentland court saw it: “In reaching settlement . . ., the parties presumably 

came to an acceptable conclusion about the truth of [one party‟s] comments about [the 

other‟s] management of the partnership. Allowing such comments to be made in 
18

litigation, shielded by the privilege, invites further litigation as to their accuracy and 

undermines the settlement reached in the [prior dispute].” (Ibid.)

In contrast, in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 

1467, 1497, the appellate court concluded that the litigation privilege barred plaintiff‟s 

breach of contract claim because such a finding furthered the policies underlying the 

litigation privilege. Feldman involved an unlawful detainer action in which the tenants 

cross-complained on numerous grounds, including breach of contract, negligence, and 

wrongful eviction. (Id. at p. 1475.) All of these causes of action were premised on 

certain alleged harassing and threatening conduct by the landlord and its agents, 

including, ultimately, the filing of the unlawful detainer action. (Id. at 1493-1494, 1498.) 

The contract at issue was a basic sublease. (Id. at pp. 1473-1474.) Under such 

circumstances, the appellate court concluded that application of the privilege to bar the 

breach of contract claim furthered “the policy of allowing access to the courts without 

fear of harassing derivative actions.” (Id. at pp. 1497-1498.)

More recently, in Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 (Vivian), the 

appellate court held that the litigation privilege applied to bar a breach of contract claim 

where an ex-wife made voluntary statements about her ex-husband to a county sheriff‟s 

internal affairs department, in alleged violation of a settlement agreement previously 

negotiated by the parties in the context of litigation over a temporary restraining order. 

(Id. at p. 270-271, 276-277.) In that settlement agreement, each party agreed “ „not to 

disparage the other to any other party.‟ ” (Id. at p. 270.) The court concluded that the 

litigation privilege applied to bar the ex-husband‟s breach of contract claim for two 

reasons. First, the settlement agreement did not “clearly prohibit” the conduct that the 

ex-husband challenged. Specifically, the term “ „disparage‟ ” was viewed as somewhat 

ambiguous and thus the language of the agreement did not “expressly prohibit” the exwife from making statements to the internal affairs investigators. (Id. at p. 276-277.) 

Second, the application of the litigation privilege furthered the policies underlying the 

privilege. (Id. at p. 277.) In particular, and in contrast to Wentland, the dispute in the 

case involved “a significant public concern—a governmental investigation into 
19

inappropriate conduct by a police officer.” (Ibid.) Application of the privilege in such 

circumstances promoted “full and candid responses to a public agency, which is very 

much the purpose of the privilege and in the public interest.” (Ibid.) 

Under the analysis adopted in Vivian, application of the litigation privilege to bar 

McNair‟s breach of contract claim is clearly warranted in this case. With respect to the 

terms of the alleged agreement, for instance, none of the documents even potentially 

identified by McNair as part of the “[p]artly written, partly oral and partly implied” 

contract in this matter can be said to “clearly prohibit” Dr. Kim‟s conduct in this case. 

(Vivian, supra, 214 Cal.App.4th at p. 276.) Rather, as discussed above, the Consents all 

stated that McNair‟s medical records could be released by DPH when “permitted or 

required by law.” And, pursuant to the HIPPA Privacy Notice and the DPH Summary 

Notice, McNair‟s confidential health information could be disclosed “when necessary to 

prevent a serious threat to your health and safety or the health and safety of the public or 

another person.” Obviously, whether Dr. Kim‟s conduct in this case was justified under 

the laws detailed in these documents has been the subject of significant debate. Thus, 

regardless of whether her conduct may or may not ultimately be found to violate either 

state or federal law, it cannot be said that her actions were “clearly prohibited.” 

With respect to the second prong of the Vivian analysis, application of the 

litigation privilege in this case unequivocally furthers the policies underlying the 

privilege. In Wang, the court articulated the purpose of the privilege in the context of 

doctors‟ communications to the DMV, stating: “The litigation privilege „ “exists to 

protect citizens from the threat of litigation for communications to government agencies 

whose function it is to investigate and remedy wrongdoing.” ‟ ” (Wang, supra, 203 

Cal.App.4th at p. 684.) Immunizing Dr. Kim from potential liability in this case for 

disclosing her public safety concerns to the DMV clearly advances this policy. Without 

such protection, a doctor might hesitate to report suspected harmful conditions or fail to 

truthfully and completely describe the scope of the potential problem. (See Wentland, 

supra, 126 Cal.App.4th at p. 1492 [general policies underlying the litigation privilege 

include ensuring “free access” to the courts and promoting “complete and truthful”
20

testimony]; see also Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754 [holding 

defendants‟ statements to the police regarding their suspicions of plaintiff‟s criminal 

activity absolutely privileged; there must be “ „an open channel of communication‟ ” 

between citizens and public authorities where citizens can call attention to suspected 

wrongdoing].) As the facts in this case satisfy both of the Vivian criteria, we conclude 

that the litigation privilege not only bars McNair‟s intentional tort claim, but his breach 

of contract claim as well.

7

 

Indeed, our conclusion in this regard is buttressed by the Supreme Court‟s 

determination in Jacob B., supra, 40 Cal.4th at p. 962, that common law, statutory, and 

constitutionally based claims for invasion of privacy are all barred by the litigation

privilege. In short, it is the gravamen of the cause of action rather than its designation 

that is controlling. (Ibid.) Here, both causes of action asserted by McNair are based 

solely on the propriety of Dr. Kim‟s letter to the DMV. Thus, as in Jacob B., McNair has 

found a “conveniently different label for pleading what is in substance an identical 

grievance arising from identical conduct.” (Ibid.; see also Feldman v. 1100 Park Lane 

Associates, supra, 160 Cal.App.4th 1467, 1497 [applying the litigation privilege to a 

breach of contract claim where the “same communicative conduct formed the basis for 

the tort and breach of contract causes of action”].) Under such circumstances, application 

of the litigation privilege to bar both causes of action is appropriate.8 

 

7

The cases cited by McNair in opposition to this conclusion do not change our analysis. 

Rather, we agree with the City that these cases are all readily distinguishable as involving 

various express commercial contracts, with no articulated public safety concern. (See 

Wentland, supra, 126 Cal.App.4th 1484 [breach of settlement agreement in partnership 

litigation]; Paul v. Friedman (2002) 95 Cal.App.4th 853 [confidentiality agreements 

executed as part of a failed mediation in a brokerage case]; ITT Telecom Products Corp. 

v. Dooley (1989) 214 Cal.App.3d 307 [breach of confidentiality agreement in trade secret 

context].)

8 Because we conclude that both of McNair‟s claims are defeated by the litigation 

privilege, we do not consider the viability of the other grounds advanced for nonsuit in 

this case or the many challenges McNair makes to various pre-trial motions resolved by 

the trial court. 
21

III. DISPOSITION

The judgment is affirmed. Each party to bear their own costs.
22

_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P. J.

_________________________

RIVERA, J.

McNair v. CCSF A138952
23

Trial Court: City and County of San Francisco Superior Court

Trial Judge: Hon. Anne-Christine Massullo

Counsel for Plaintiff and Katzenbach Law Offices

Appellant: Christopher W. Katzenbach

Counsel for Respondents: Dennis J. Herrera

City Attorney

Owen Clements

Chief of Complex and Special Litigation

Erin Bernstein

Matthew Goldberg

McNair v. CCSF A138952