Business Law

Brown v. Mortensen (Jan. 3, 2019, No. B281704) ___ Cal.App.5th ___ [2019 WL 92023]

Plaintiffs seeking nominal statutory damages under the Confidentiality of Medical Information Act may demand a jury trial.

Patient Robert Brown owed a debt to his dentist. The dentist referred the debt to a collection agency owned by Stewart Mortenson, which allegedly transmitted confidential medical information to several consumer credit reporting agencies. Brown sued Mortenson for violating the 2013 version of the Confidentiality of Medical Information Act (CMIA) (Civ. Code, §§ 56 et seq.). The trial court denied Brown’s request for a jury trial on his CMIA claims for nominal statutory damages and attorney fees.

The Court of Appeal reversed in part, holding that the state Constitution affords a right to a jury trial in actions seeking nominal statutory damages under the CMIA. The court noted that a jury trial right exists for actions arising “at law” and that penalties—the essential function of CMIA statutory damages—were historically recovered through legal, rather than equitable, actions. The court affirmed as to attorney fees because there is no right to trial (let alone a jury trial) on fees under the CMIA. The CMIA permits attorney fees as incidental relief to a prevailing plaintiff (rather than as damages), so plaintiffs must seek them by posttrial motion.

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or

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