The opinion
Filed 7/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
FRANK VILCHES,
Plaintiff and Appellant,
A163638
v.
MICHELLE LEAO, (San Francisco City &
County Super. Ct. No.
Defendant and
CGC20582074)
Respondent.
Under Health and Safety Code1 section 123110, the
personal representative of a minor is entitled to access the
minor’s patient records with certain statutory exceptions.
(§ 123110, subds. (a)–(b).) Pursuant to the exception at issue in
this appeal, the patient records are inaccessible where “[t]he
health care provider determines that access to the patient records
requested by the representative would have a detrimental effect
on the provider’s professional relationship with the minor patient
or the minor's physical safety or psychological well-being. The
decision of the health care provider as to whether or not a minor’s
records are available for inspection or copying under this section
1 All further statutory references are to the Health and
Safety Code unless otherwise stated.
1
shall not attach any liability to the provider, unless the decision
is found to be in bad faith.” (§ 123115, subd. (a)(2).)
Plaintiff Frank Vilches filed suit against defendant
Michelle Leao to compel the release of his minor daughter’s
therapy records after defendant denied his request for the
records. (§§ 123100, 123120.) The trial court granted defendant’s
motion for summary judgment, finding that there were no triable
issues of fact as to whether defendant made the detriment
determination under section 123115, subdivision (a)(2) or
whether she did so in good faith. We affirm.
BACKGROUND
Plaintiff is the father and sole guardian of Jane Doe, his
minor daughter (also referred to as “minor patient”). Defendant
is a licensed marriage and family therapist. When his daughter
was seven years old, plaintiff was concerned for her well-being
and brought her to defendant for treatment. Defendant provided
therapy for the minor patient, which plaintiff paid for.
On April 24, 2018, plaintiff emailed defendant, stating, “I
would like all records that you have of my daughter from the first
session to present.” He requested that defendant mail copies of
the records to him or make them available for pick up.
Defendant initially responded to plaintiff’s request and agreed to
release the records. Later that day, however, defendant
responded again, this time stating that she was denying
plaintiff’s request for his daughter’s treatment records because
she had determined that it would have a detrimental impact on
the minor patient’s well-being. Defendant’s decision to deny
2
plaintiff’s request was based on her clinical judgment that it
would have a detrimental effect on the minor patient’s ability to
trust in general, and would negatively impact the patient-
counselor relationship. Defendant was also concerned that
plaintiff would use the records to coach his daughter to respond
favorably during the court evaluation in an upcoming custody
proceeding.
Plaintiff filed suit against defendant on January 7, 2020,
alleging a single cause of action for violation of section 123110.
Plaintiff sought injunctive relief directing defendant to release
the requested records and attorney’s fees under section 123120.
Defendant filed a motion for judgment on the pleadings,
asserting that under section 123115, subdivision (a)(2), she could
not be liable for her denial of plaintiff’s request unless her
decision was made in bad faith. The trial court denied
defendant’s motion, finding that it was not essential to plead
facts demonstrating bad faith to pursue a cause of action under
section 123110.
Defendant filed an answer and subsequently moved for
summary judgment on the grounds that she made the statutory
determination required to prevent disclosure of the minor
patient’s records and her decision was not made in bad faith,
which plaintiff was required to establish under section 123115,
subdivision (a)(2). Plaintiff opposed defendant’s motion,
asserting that the absence of bad faith does not immunize a
therapist’s determination from judicial review. He argued that
section 123110 creates a presumption of entitlement to disclosure
3
of his daughter’s records, and that defendant’s determination to
withhold the records does not overcome that presumption unless
the therapist makes a finding of parental abuse. He further
asserted that defendant made her decision to withhold the
records without finding detriment, and that she failed to
categorize the records and make an independent determination of
detriment as to each type of record. If he was required to
establish bad faith, he contended that he had raised a triable
issue of fact as to whether defendant’s decision to withhold the
records was in bad faith.
In reply, defendant argued that the statute does not require
her to make separate determinations for each type of patient
record and that her decision to withhold the minor patient’s
records in their entirety was based on her clinical judgment
concerning her minor patient’s best interests. Defendant also
contended that there was no triable issue of fact as to the good-
faith basis for her determination because there was no evidence
to contradict her testimony.
The trial court granted defendant’s motion for summary
judgment, finding that defendant had established that she made
the statutorily-required detriment determination and plaintiff
failed to show a triable issue of fact on bad faith. Plaintiff timely
appealed.2
2 We grant judicial notice of the three exhibits attached to
plaintiff’s unopposed request for judicial notice.
4
DISCUSSION
Plaintiff argues the trial court erred in finding that: (1) he
did not present a triable issue of fact regarding whether
defendant made the statutory determination required under
section 123115, subdivision (a)(2) (section 123115(a)(2)); and
(2) he had to establish that defendant’s determination was in bad
faith to compel disclosure of the records. To resolve these
contentions, we employ the well-established standards governing
review of summary judgment orders (Code of Civ. Proc., § 437c;
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826), as well as
de novo review of questions of statutory interpretation. (Andrews
v. Metropolitan Transit System (2022) 74 Cal.App.5th 597, 603–
604; Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
A. The Statutory Scheme
Section 123110 generally provides that any patient and
“any patient’s personal representative shall be entitled to inspect
patient records upon presenting to the health care provider a
request for those records and upon payment of reasonable costs.”3
(§ 123110, subd. (a).) “Additionally, any patient or patient’s
personal representative shall be entitled to a paper or electronic
3 As her father, plaintiff is the minor patient’s personal
representative. (§ 123105, subd. (e)(1).) “ ‘Patient records’ means
records in any form or medium maintained by, or in the custody
or control of, a health care provider relating to the health history,
diagnosis, or condition of a patient, or relating to treatment
provided or proposed to be provided to the patient. ‘Patient
records’ includes only records pertaining to the patient requesting
the records or whose representative requests the records.”
(§ 123105, subd. (d).)
5
copy of all or any portion of the patient records that they have a
right to inspect, upon presenting a request to the health care
provider specifying the records to be copied, together with a fee to
defray the costs of producing the copy or summary . . . .”
(§ 123110, subd. (b)(1).)
The access granted under section 123110, however, is
expressly subject to sections 123115 and 123120. (§§ 123110,
subd. (a), 123115, subd. (a).) Section 123115(a)(2) states that
“[t]he representative of a minor shall not be entitled to inspect or
obtain copies of the minor’s patient records, including clinical
notes, in any of the following circumstances: . . . [¶] [ ] When the
health care provider determines that access to the patient records
requested by the representative would have a detrimental effect
on the provider’s professional relationship with the minor patient
or the minor’s physical safety or psychological well-being. The
decision of the health care provider as to whether or not a minor’s
records are available for inspection or copying under this section
shall not attach any liability to the provider, unless the decision
is found to be in bad faith.”
The Legislature provided for a private right of action to
enforce section 123110. “Any patient or representative aggrieved
by a violation of section 123110 may, in addition to any other
remedy provided by law, bring an action against the health care
provider to enforce the obligations prescribed by section 123110.”
(§ 123120.) Section 123120 further states that “[a]ny judgment
rendered in the action, may, in the discretion of the court, include
6
an award of costs and reasonable attorney’s fees to the prevailing
party.”
B. When the Health Care Provider Makes the Section
123115(a)(2) Detriment Determination, Plaintiff
Must Show Bad Faith to Compel Disclosure
We start by recognizing that section 123115(a)(2) is
abundantly clear in stating that, “[T]he representative of a minor
shall not be entitled to inspect or obtain copies of the minor’s
patient records . . . . [¶] . . . [¶] When the health care provider
determines that access to the patient records requested by a
personal representative would have a detrimental effect on the
provider’s professional relationship with the minor patient or the
minor’s physical safety or psychological well-being.” (Italics
added.) Thus, when faced with the question of whether to compel
disclosure of minor’s patient records to a personal representative
(§§ 123110, 123120), as defendant conceded below, the threshold
inquiry for the court must be whether the health care provider
made the section 123115(a)(2) detriment determination.
As is apparent from the interplay of the relevant statutes,
if the health care provider made the section 123115(a)(2)
detriment determination, the next question—which appears to be
one of first impression—is whether a personal representative
seeking to compel disclosure of a minor’s records under section
123120 must establish that the provider made his or her section
123115 (a)(2) determination of detriment in bad faith. As set
forth below, we conclude such a showing is required.
7
The plain language of section 123115 mandates that a
personal representative seeking to compel disclosure of a minor’s
records must establish that the health care provider made his or
her section 123115(a)(2) detriment determination in bad faith.
As noted post, section 123115(a)(2) specifies that a personal
representative shall not be entitled to inspect or obtain copies of
the minor’s patient records whenever a provider determines that
disclosure “would have a detrimental effect on the provider’s
professional relationship with the minor patient or the minor’s
physical safety or psychological well-being.” (§ 123115(a)(2).) In
the very next sentence, the statute expressly states that the
provider’s decision whether to disclose “shall not attach any
liability to the provider, unless the decision is found to be in bad
faith.” (Ibid., italics added.) Given that unambiguous and broad
immunity from “any liability,” we conclude that defendant may
not be compelled to disclose the minor patient’s records unless
plaintiff can demonstrate that defendant made her determination
of detriment in bad faith.
Seeking to avoid the clear language of section 123115(a)(2),
plaintiff incorrectly asserts that the phrase “any liability” means
immunity from financial consequences only, and not from
injunctive relief. Under his view, a personal representative must
show bad faith only to recover monetary damages or attorney’s
fees. However, the plain meaning of “liability” is “[t]he quality,
state, or condition of being legally obligated or accountable; legal
responsibility to another or to society, enforceable by civil remedy
or criminal punishment.” (Black’s Law Dictionary (11th ed.
8
2019).) Section 123110 creates a legal obligation on the part of
the health care provider enforceable under section 123120.
(§ 123120 [providing a means “to enforce the obligations
prescribed by Section 123110”].) The statutory scheme “contains
no express language authorizing an award of consequential
damages,” and instead “contemplates a proceeding to secure
access to one’s medical records, and a discretionary award of
attorney fees and costs to the prevailing party.” (Maher v.
County of Alameda (2014) 223 Cal.App.4th 1340, 1354.) In effect,
plaintiff asks us to insert the words “from monetary
consequences” after the words “any liability” in the statute. We
decline to do so. (Riverside County Sheriff’s Dept. v. Stiglitz
(2014) 60 Cal.4th 624, 630 [“ ‘ “When interpreting statutes, we
begin with the plain, commonsense meaning of the language used
by the Legislature. [Citation.] If the language is unambiguous,
the plain meaning controls” ’ ”]; Shiheiber v. J.P. Morgan Chase
Bank, N.A. (2022) 81 Cal.App.5th 688, 702 [“ ‘[A] cardinal rule of
statutory construction[ ] [is] that it is not a judicial function to
read into statutes language the Legislature might have used or
might have intended. [Citations.] In other words, courts do not
rewrite statutes’ ”].) Accordingly, to compel disclosure of a minor
patient’s records under section 123120 after the health care
provider has determined that disclosure would be detrimental
under section 123115(a)(2), the minor patient’s representative
must demonstrate that the provider’s determination of detriment
was made in bad faith.
9
The cases cited by plaintiff—People v. Superior Court
(Humberto S.) (2008) 43 Cal.4th 737, and In re Daniel C.H. (1990)
220 Cal.App.3d 814 (Daniel C.H.)—do not persuade us otherwise,
as neither case considered the issue before us. Humberto S.
addressed whether a prosecutor who tried to prevent disclosure of
a minor patient’s records to her uncle for use in the uncle’s child
sexual abuse trial had a disqualifying conflict of interest.
(Humberto S., at p. 742.) In Daniel C.H., a dependency case
where the father challenged a visitation order, the court held that
the trial court properly excluded testimony from the minor
patient’s psychotherapist based on the psychotherapist-patient
privilege, rejecting the father’s arguments that he had a right to
compel this testimony pursuant to both former Civil Code section
4600.54 (added by Stats. 1979, ch. 915, §2, repealed by Stats.
1992, ch. 162, §3) and “the fundamental nature of the parent-
child relationship.” (Daniel C.H., at pp. 825–828.)
Plaintiff’s contention that our interpretation of the
statutory scheme runs contrary to the legislative intent to grant
parents access to their children’s medical records is similarly
unpersuasive.5 While Daniel C.H. does not convince us that a
4 Former Civil Code section 4600.5, subdivision (1) provided
that “ ‘[n]otwithstanding any other provision of law, access to
records and information pertaining to a minor child, including,
but not limited to, medical, dental, and school records, shall not
be denied to a parent because that parent is not the child’s
custodial parent.’ ” (Daniel C.H., supra, 220 Cal.App.3d at
p. 827.)
5 Section 123100 codifies the legislative intent behind the
statutory scheme. It provides, “The Legislature finds and
declares that every person having ultimate responsibility for
10
health care provider who makes a section 123115(a)(2) detriment
determination must disclose a minor’s patient records absent a
showing of bad faith, we find the opinion persuasive in refuting
plaintiff’s assertions regarding legislative intent. In particular,
when rejecting the father’s contention that he had a fundamental
right to compel testimony from his son’s psychotherapist, the
Daniel C.H. court reviewed the legislative statement of intent set
forth by section 123100’s predecessor, former section 17956,
which, like section 123100, stated in part that “ ‘persons having
responsibility for decisions respecting the health care of others
should, in general, have access to information on the patient’s
condition and care . . . .’ ” (Daniel C.H., supra, 220 Cal.App.3d at
p. 828.) The court reasoned that “the use of the words ‘in general’
[in former section 1795] suggests to us that the Legislature did
not intend a parent to have a right to such information in all
cases.” (Ibid.) The court further explained that “apart from the
decisions respecting his or her own health care also possesses a
concomitant right of access to complete information respecting
his or her condition and care provided. Similarly, persons having
responsibility for decisions respecting the health care of others
should, in general, have access to information on the patient’s
condition and care. It is, therefore, the intent of the Legislature
in enacting this chapter to establish procedures for providing
access to health care records or summaries of those records by
patients and by those persons having responsibility for decisions
respecting the health care of others.” (§ 123100.)
6 In the general reorganization of the Health and Safety
Code in 1995, sections 1795 through 1795.26 were repealed and
reenacted without substantive change as sections 123100 through
123145. (Stats. 1995, ch. 415.)
11
statutory language, policy considerations dictate that a parent
should not always be entitled to full information from a minor
child’s treating psychotherapist.” (Ibid.) Daniel C.H.’s
observations and the Legislature’s consistent use of the phrase
“in general” in the statutory scheme thus support our conclusion
that parents do not have a right to access their children’s mental
health records in all cases, and, upon a health care provider’s
determination of detriment, may do so only upon the statutorily-
prescribed showing of bad faith. (§ 123115, subd. (a)(2).)
Plaintiff further contends that defendant failed to comply
with her statutory obligations by making a “conclusory claim of
detriment to Jane Doe.” Plaintiff acknowledges a health care
provider’s ability to object to the production of patient records if
he or she makes a detriment finding. To the extent plaintiff
suggests that this court should review the correctness of the
health care provider’s determination, nothing in the statutory
scheme suggests that a provider must convince a court that the
determination of detriment was reasonable and correct. This
statutory choice makes logical sense, as the Legislature could
reasonably decide that untrained members of the judiciary
should not be second-guessing the clinical judgment of therapists
concerning their minor patients’ well-being and the patient-
counselor relationship. (Cf. Youngberg v. Romeo (1982) 457 U.S.
307, 322–323 [in the context of a due process challenge to
involuntary institutional commitment, commenting that “there
certainly is no reason to think judges or juries are better qualified
than appropriate professionals in making such decisions”];
12
Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223, 247 [concluding
that the Department of Health and Human Services was the
proper decisionmaker as to what vaccines and associated injuries
are placed on the Vaccine Injury Table, commenting that “[t]o
allow a jury in effect to second-guess those determinations is to
substitute less expert for more expert judgment, thereby
threatening manufacturers with liability”].) We therefore need
not address any claim that there is a triable issue of fact as to
whether defendant’s determination to withhold her patient’s
records was “correct.”
In sum, to compel disclosure of a minor’s patient records
under sections 123110, 123115(a)(2), and 123120 after the health
care provider makes a section 123115(a)(2) detriment
determination, the plaintiff must show that the defendant denied
the request for the pertinent records in bad faith.
C. Summary Judgment Was Proper
Having established that the statutory scheme requires a
personal representative seeking to compel disclosure of a minor’s
patient records to establish that the health care provider made
his or her section 123115(a)(2) detriment determination in bad
faith, and given that plaintiff does not here argue that he raised a
triable issue of fact as to whether defendant made that
determination in bad faith, we turn to the remaining relevant
question in this appeal: Did plaintiff establish a triable issue of
13
fact as to whether defendant made the threshold section
123115(a)(2) detriment determination in the first place?7
The answer is no. Defendant informed plaintiff she was
denying his request because she had determined that releasing
the minor patient’s records would have a detrimental impact on
the minor patient’s well-being. In her declaration, defendant
further explained that her decision was based on her clinical
judgment that disclosure would have a detrimental effect on the
minor patient’s ability to trust in general, and would negatively
impact the patient-counselor relationship. In addition, defendant
was concerned that plaintiff would use the records to coach his
daughter in connection with ongoing custody proceedings, which
she believed would be harmful because the minor patient did not
respond well to high-conflict parenting.
Plaintiff attempts to raise a triable issue as to defendant’s
section 123115(a)(2) detriment determination by arguing that
defendant’s deposition testimony contradicted her declaration,
contending that her testimony indicated that she in fact had “not
thought about” whether to release the minor patient’s drawings
or treatment plan, and that she “misunderstood” the parameters
of her legal obligation to disclose the minor patient’s records.
Plaintiff misapprehends the deposition testimony.
Defendant’s statement at her deposition, “I’ve not thought
about it,” was a response to plaintiff’s question, “[H]ave you ever
7 Plaintiff does not argue that defendant failed to satisfy
her initial burden of production on summary judgment on this
issue.
14
thought about whether or not you should give [plaintiff] the
drawings and the treatment plan, even if you’re withholding the
notes?” Read in context, defendant’s testimony was not that she
had failed to make a finding of detriment, as plaintiff asserts.
Her testimony was instead an indication that she had not
previously thought separately about each category of
documents—the minor patient’s drawings, the treatment plan,
and her own therapist’s notes—and made three independent
determinations as to whether any one of them could be disclosed
without detriment. Moreover, defendant’s single determination
of detriment makes sense given plaintiff’s blanket request that
she send him copies of “all records” of the minor patient’s
treatment.
Plaintiff likewise misconstrues defendant’s deposition
testimony when he asserts that it shows defendant was “unaware
of her legal obligations under section 123110, subdivision (a).”
Defendant testified that as a general proposition, a therapist’s
notes typically are not shared with a parent because of the
possibility that the notes may be misunderstood, and further
stated that in some instances, it may not be beneficial for a child
to have the therapist to disclose to a parent what the child has
shared in therapy sessions. This testimony—which was in
response to plaintiff’s questions regarding the “general position”
that therapists “usually” do not share treatment notes with
parents “because it could hurt the children”—does not
demonstrate plaintiff’s failure to comprehend her legal
obligations under the statutory scheme. Indeed, within hours of
15
plaintiff’s request that defendant provide him all of the minor
patient’s records, defendant stated in an email that she was
concerned about defendant’s “alarming” actions relating to one of
the minor patient’s recent therapy sessions, explaining that his
behavior was “detrimental to mine [sic] and her therapeutic
relationship” because if the minor patient “feels that [defendant
is] relaying specific details of what she says to me to [plaintiff]—I
no longer become someone she can trust.” Because of her
concerns, defendant therefore stated she would not disclose “per
the Health and Safety Code Section 123115, as I think it would
be detrimental to [the minor patient’s] well-being.” The
deposition testimony cited by plaintiff does not raise a triable
issue of fact as to defendant’s determination of detriment.
The trial court properly granted summary judgment.
DISPOSITION
The judgment is affirmed. Defendant shall recover her
costs on appeal.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
FINEMAN, J.
Vilches v. Leao (A163638)
Judge of the Superior Court of California, County of San
Mateo, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
16
17
Trial Court: San Francisco City & County Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel: Evans & Page, Corey Page for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Ciara C. Dineen,
Jennifer E. Elgie, Jeffry A. Miller, Suzanne L. Schmidt for
Defendant and Respondent.