Mahoney v. Superior Court

Opinion

BARRY-DEAL, J.

We are asked to rule on the application of the psychotherapist-patient privilege to communications made during what petitioner characterizes as a marriage-counseling session attended by both litigants in a marital dissolution proceeding. Application of the privilege presents mixed questions of law and fact. Yet we are asked to make the decision in a factual vacuum, without any indication that the trial court misunderstood the law. Petitioner makes various assertions of fact, but provides us with no record of the proceedings below, and concedes that he made no factual presentation below. We affirm the trial court’s order.

[939]

Petitioner Joseph Patrick Mahoney and real party in interest Zelda Kelly Mahoney, also known as Zelda O’Brien Kelly, are the litigants in a marriage dissolution action. At issue is the validity of a property settlement agreement entered some five years ago. During petitioner’s deposition he asserted the psychotherapist-patient privilege (Evid. Code, § 1014.) According to petitioner, real party brought a motion to compel answers, which was granted by Commissioner Robert Beale. This petition followed. Petitioner has provided us with neither the moving papers presented below nor a transcript of the hearing on the motion to compel answers. Although he has presented a document entitled findings of fact and conclusions of law re motion to compel, that document was never signed by the commissioner.

“[I]t is the burden of the petitioner seeking relief by way of prerogative writ to plead facts supporting the relief he seeks and to incorporate documentation filed in the trial court ‘to the extent necessary to understand the proceedings and justify relief . . . .’ (5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, §§ 139, 140, pp. 3913-3914.)”

(Krueger

v.

Superior Court

(1979) 89 Cal.App.3d 934, 938 [152 Cal.Rptr. 870].) To be adequate, the record provided by petitioner “. . . should ordinarily include any written motion and opposition thereto together with their respective points and authorities, any relevant pleadings or reporter’s transcripts, and any written dispositive order.”