Metropolitan News-Enterprise


Monday, August 13, 2007


Page 1


School’s Disclosure of Student Data Held Privileged


By a MetNews Staff Writer


A parochial school’s disclosure of private student information in response to a subpoena was protected by the litigation privilege, the Court of Appeal for this district ruled Friday.

Div. Two affirmed the dismissal of Karen and Ted Aliado’s suit against the Archdiocese of Los Angeles Education and Welfare Corporation for negligence and invasion of privacy. The suit resulted from the archdiocese’s alleged disclosure of information provided by the Aliados to St. Paul the Apostle, a school their children attended.

The Aliados were defendants in a suit brought by the parents of another St. Paul student. In their complaint against the archdiocese, they claimed the school provided private information, including a “suspected child abuse report” involving one of the Aliado children and written communications between the Aliados and the school principal regarding the child abuse report, to opposing counsel.

That information, they contended, was supplied in response to a “facially invalid” subpoena served by their adversaries’ lawyer, who did not notify them or their counsel of the subpoena’s issuance, and they were not notified of the subpoena until after the school complied.

They further contended that the school violated their privacy by disclosing confidential information in declarations that they voluntarily provided to opposing counsel.

Los Angeles Superior Court Judge Michael Stern, in sustaining a demurrer, ruled that the school was not responsible for any impropriety by opposing counsel in issuing a subpoena for private records without notice. He also ruled that the litigation privilege barred the plaintiffs’ claims.

Presiding Justice Roger Boren, in an unpublished opinion for the Court of Appeal, said the trial judge was correct. The school’s actions were privileged, he said, because they amounted to “communications” in connection with the underlying litigation.

He rejected the Aliados’ argument that the complained-of conduct was “noncommunicative.” The gist of the complaint, he explained, was that the plaintiffs were injured by the dissemination of the information as part of the lawsuit, not by the gathering of the data or its being sent to the lawyer.

Boren elaborated:

“In short, the injury arose from the communication of private information in response to a subpoena in a judicial action, and from the submission of declarations. The act of collecting the information from files, or mailing it to the Aliados’ adversaries, is secondary—the harm actually suffered arose from the publication of the private information, not the amassing of it. The publication of the information to only one third party (as opposed to the world at large) does not make the disclosure any less public. This point is underscored by the Aliados’ claim that their children suffered psychological injury as a result of the disclosure of their private information to opposing counsel. No psychological injury was incurred merely because St. Paul pulled the information from a file and mailed it to a litigant’s attorney. The harm was in the reading of it.”

The jurist went on to say that the plaintiffs cannot maintain an unrelated cause of action resulting from the school’s alleged negligence in allowing another student to harass their children.

Boren noted that those allegations were raised for the first time in a second amended complaint, after the judge sustained a demurrer to the previous pleading with leave to amend.

When a demurrer is sustained with leave to amend, Boren explained, the allegations of the amended pleading must be factually related to those previously raised unless leave to present new claims is granted under Code of Civil Procedure Sec. 473.

Attorneys on appeal were Allen B. Grodsky and Zachary Rothenberg of Grodsky & Olecki for the plaintiffs and Daniel R. Sullivan, Brian L. Williams, and Dustin E. Woods of Sullivan, Struck & Ballog for the archdiocese.

The case is Aliado v. Archdiocese of Los Angeles Education and Welfare Corporation, B182806.


Copyright 2007, Metropolitan News Company