Vigil v. Muir Medical Group IPA CA1/2

Filed 9/26/22 Vigil v. Muir Medical Group IPA CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

MARIA VIGIL,
Plaintiff and Appellant,
A160897
v.
MUIR MEDICAL GROUP IPA, (Contra Costa County
INC., Super. Ct. No. C1801331)
Defendant and Respondent.

Maria Vigil filed a class action against Muir Medical Group IPA, Inc.
(Muir), claiming that it failed to secure patients’ personal information,
thereby allowing a former employee to download private medical information
belonging to over 5,000 patients and take it with her when she left her
employment with Muir. Among other causes of action, the class complaint
alleges that Muir violated Civil Code 1 sections 56.101 and 56.36,
subdivision (b), of the Confidentiality of Medical Information Act (CMIA)
(§ 56 et seq.) by negligently releasing class members’ confidential medical
information.
Several months after initiating the action, Vigil filed a motion for class
certification. The trial court denied the motion, finding as to the CMIA claim

1 Unless otherwise indicated, all statutory references are to the Civil
Code.

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that each class member would have to show that the confidential nature of
his or her medical information had been breached by an unauthorized party,
as required by Sutter Health v. Superior Court (2014) 227 Cal.App.4th 1546
(Sutter Health), and therefore that common issues would not predominate.
Vigil appeals, asserting that the trial court relied on an erroneous
reading of the CMIA and that a breach of confidentiality can be shown on a
class wide basis. We reject those arguments, and we affirm, concluding that
the trial court properly applied the CMIA and exercised its discretion in
denying class certification.
BACKGROUND
I.
The Data Breach and Vigil’s Complaint
Muir is an independent practice association that consists of primary
care and specialty care providers that provide medical services to patients
through the John Muir Health system.
In May 2018, Ute Burness, Chief Executive Officer of Muir, notified
certain patients that their personal information may have been involved in a
data breach that occurred in December 2017. According to Burness, Muir
discovered in March 2018 that a former employee took with her certain
information in the possession of Muir before her employment ended with
Muir (the data breach). The letter stated that Muir conducted an
investigation, and “there is no evidence to date that your personal
information has been misused in any way.”2 Vigil was one of the patients

2 The trial court granted Muir’s motion to file under seal some portions
of the class certification papers and the supporting evidence. Accordingly, we
will not divulge the content of the sealed portions of the record (Cal. Rules of
Court, rule 8.46(b)(1)), which largely concern Muir’s internal investigation of

2
who received this notice. Muir later admitted that the former employee,
Myrissa Centeno, had downloaded copies of information for over 5,400
patients that included insurance and clinical information.
In July 2018, Vigil filed a class action complaint asserting causes of
action for violation of the Customer Records Act (CRA) (§ 1798.80 et seq.),
violation of the CMIA (§ 56 et seq.), unlawful and unfair business practices
under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et
seq.), and negligence. The UCL claim was predicated on the statutory and
negligence claims. The complaint alleged that under the Health Insurance
Portability and Accountability Act’s (HIPAA) Security Management Process
standard (45 C.F.R. § 164.308), Muir’s employees should not have had access
to records concerning approximately 5,500 patients without a “compelling”
reason, nor should they have been able to take sensitive patient information
with them. The complaint sought compensatory and punitive damages for
Muir’s alleged negligence in failing to secure plaintiffs’ personal information.
The complaint also alleged that this negligence violated the CRA.
The complaint further alleged that Muir violated sections 56.101,
subdivision (a), and 56.36, subdivision (b), of the CMIA by negligently
releasing patients’ medical information without those patients’ authorization.
Accordingly, the complaint sought statutory damages under the CMIA for
each class member.
II.
Motion for Class Certification
In September 2019, Vigil moved for class certification, appointment of
her counsel as class counsel and appointment of herself as class

the data breach and the issue of whether Muir failed to take adequate
measures to secure patients’ confidential information.

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representative. As pertinent here, Vigil contended that the complaint
presented questions common to the class regarding whether Muir was
negligent in handling class members’ private medical information by failing
to comply with its own HIPAA security policies, whether this negligence
caused the data breach, and whether Centeno accessed and retained the
private medical information without authorization. Vigil supported her
motion with her declaration, citations to the depositions of two of Muir’s
HIPAA security officers and some of the deposition exhibits, including Muir’s
HIPAA policies, and Muir’s discovery responses.
In opposition, Muir argued, among other things, that a CMIA claim
requires a showing that the confidential nature of the plaintiff’s medical
information was breached, and that Sutter Health, supra, 227 Cal.App.4th
1546 held that there is no breach of confidentiality under the CMIA unless an
unauthorized party has “actually viewed” the information. (Id. at p. 1550.)
Thus, according to Muir, individualized issues of fact and law would
predominate over the common questions because each putative class member
would have to show that an unauthorized person viewed his or her
confidential medical information.
In her reply, Vigil asserted that the case could be decided on a class-
wide basis because there was evidence that Centeno downloaded, retained,
and viewed a patient spreadsheet, and the CMIA does not require a showing
that an unauthorized person read each line of medical data. In support, Vigil
presented excerpts of the deposition of Janet Kesterson, Centeno’s colleague
at her current employer, that Vigil contended shows Centeno disclosed to
Kesterson patient information she obtained from Muir. Kesterson testified
that in March 2018, their employer tasked her and Centeno with traveling to
offices to get phone numbers for Medicare members. Centeno told Kesterson

4
there was no need to go to those offices because she had the phone numbers,
and she “lifted her phone and just scrolled real fast.” Kesterson testified that
she could not “decipher what information [Centeno] was scrolling through.”
She “could just tell it was an Excel spreadsheet.”
Following a hearing on the motion, the trial court issued an order
denying class certification. The court found that Vigil had conceded that the
CRA does not apply to Muir, and thus the “crux” of Vigil’s case “rest[ed] on
her claim for breach of the Confidentiality of Medical Information Act.” 3 It
further found that the predominance of common questions requirement was
not met because under the CMIA, “individualized inquiries would be required
to prove Defendant’s liability and damages to each of the nearly 5,500
proposed class members.” Specifically, it concluded that “[l]iability for each
class member is predicated on whether his or her information was actually
viewed, which on these facts is not capable of resolution in the aggregate.”
Vigil appeals from the order denying class certification.
DISCUSSION
Vigil argues we should reverse the trial court’s order because it relied
on an erroneous reading of the CMIA in finding a predominance of individual
issues. We conclude the trial court did not err in its application of the CMIA,
and the class complaint’s allegations raise questions regarding breach of
confidentiality and causation that necessarily require individualized
inquiries regarding many, if not all, of the putative class members. Those
individualized issues predominate over common questions of law and fact,
and thus we uphold the order denying class certification. (See Linder v.

3 On appeal, Vigil does not dispute this finding, and thus for purposes
of this appeal, we presume the trial court was correct in finding that the CRA
does not apply here and that this matter turns on the CMIA claim. (See
Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 563.)

5
Thrifty Oil Co. (2000) 23 Cal.4th 429, 436 (Linder) [“ ‘Any valid pertinent
reason stated will be sufficient to uphold the order’ ”].)
I.
Legal Standards
A. The Governing Statutes
The CMIA protects the confidentiality of patients’ medical information.
(Loder v. City of Glendale (1997) 14 Cal.4th 846, 859.) It does so by
prohibiting health care providers from disclosing a patient’s medical
information without authorization (§ 56.10) and imposing a duty on health
care providers who create, maintain, or dispose of medical information to do
so in a manner that preserves the confidentiality of that information
(§ 56.101, subd. (a)). Subdivision (b) of section 56.36 provides remedies to
patients for a health care provider’s “release” of confidential medical
information in violation of the CMIA. (§ 56.36, subd. (b).)
Here, Vigil alleges Muir violated section 56.101, subdivision (a),
thereby invoking the remedy in section 56.36, subdivision (b). Subdivision (a)
of section 56.101 provides in full, “Every provider of health care, health care
service plan, pharmaceutical company, or contractor who creates, maintains,
preserves, stores, abandons, destroys, or disposes of medical information
shall do so in a manner that preserves the confidentiality of the information
contained therein. Any provider of health care, health care service plan,
pharmaceutical company, or contractor who negligently creates, maintains,
preserves, stores, abandons, destroys, or disposes of medical information
shall be subject to the remedies and penalties provided under subdivisions (b)
and (c) of Section 56.36.” (§ 56.101, subd. (a).)
Section 56.36, subdivision (b), provides, in turn, “In addition to any
other remedies available at law, any individual may bring an action against

6
any person or entity who has negligently released confidential information or
records concerning him or her in violation of this part, for either or both of
the following: [¶] (1) Except as provided in subdivision (e), nominal damages
of one thousand dollars ($1,000). In order to recover under this paragraph, it
is not necessary that the plaintiff suffered or was threatened with actual
damages. [¶] (2) The amount of actual damages, if any, sustained by the
patient.”
B. The Case Law Interpreting Sections 56.36 and 56.101 of the
CMIA
Sutter Health, supra, 227 Cal.App.4th 1546 and its predecessor,
Regents of University of California v. Superior Court (2013) 220 Cal.App.4th
549 (Regents), are central to the parties’ arguments in this appeal. Those
cases address some of the requirements of a CMIA claim under
sections 56.101, subdivision (a), and 56.36, subdivision (b), and hold that one
such requirement is a breach of the confidentiality of the plaintiff’s medical
information.

In Regents, a thief stole an external hard drive and a card containing
the hard drive’s encryption password from the home of a physician working
within the Regents health care system. (Regents, supra, 220 Cal.App.4th at
p. 554.) The plaintiff, whose medical information was on the hard drive along
with the medical information of more than 16,000 other patients, filed a
complaint asserting a violation of the CMIA and seeking nominal damages
for herself and for each of the more than 16,000 patients. (Regents, at
pp. 554–555.) The complaint alleged that Regents failed to exercise due care
to prevent the release or disclosure of the medical information, “ ‘and as a
result it negligently lost possession of the hard drive and encryption
passwords.’ ” (Id. at p. 555.) Regents demurred to the complaint, and the
trial court overruled the demurrer. (Id. at pp. 555–556.) Regents sought a

7
writ of mandate requiring the trial court to sustain the demurrer, and the
appellate court granted review of the trial court’s ruling. (Id. at pp. 557, 571.)

On review, the court first noted that the parties did not dispute that
the plaintiff had adequately alleged a violation of the duty imposed on
Regents by section 56.101, subdivision (a), “to maintain and store medical
information in a manner that preserves the confidentiality of that
information.” (Regents, supra, 220 Cal.App.4th at p. 560.) The court thus
framed the issue before it as “the nature of [the remedy in section 56.36,
subdivision (b)] as applied to the negligent maintenance or storage of medical
information.” (Ibid.) That section and the elements of the cause of action it
creates, the court held, are incorporated by reference into section 56.101 and
require a “release” of confidential information. (Regents, at pp. 561–562,
564.) Regents argued that the term “release” in section 56.36 was
synonymous with “disclose” in section 56.10, subdivision (a), which requires a
showing of an “affirmative communicative act” by the healthcare provider.
(Regents, at p. 564.) The court disagreed, finding that under the common or
ordinary dictionary meanings of those terms, “disclose” is an active verb,
while “release” is broader and can include passive conduct. (Ibid.) It
concluded, “a health care provider who has negligently maintained
confidential medical information and thereby allowed it to be accessed by an
unauthorized third person—that is, permitted it to escape or spread from its
normal place of storage—may have negligently released the information
within the meaning of CMIA.” (Id. at p. 565.)

The Regents court went on to hold, however, that even under this broad
interpretation of “release,” pleading loss of possession was insufficient to
state a cause of action under sections 56.101, subdivision (a), and 56.36,
subdivision (b), for negligent maintenance or storage of confidential medical

8
information. (Regents, supra, 220 Cal.App.4th at pp. 569–570.) “What is
required is pleading, and ultimately proving, that the confidential nature of
the plaintiff’s medical information was breached as a result of the health care
provider’s negligence.” (Id. at p. 570.) The court noted in a footnote that
section 56.101 allows a health care provider to dispose of, and therefore lose
possession of, confidential medical records so long as the confidentiality of the
records is preserved. (Regents, at p. 570, fn. 14.) In the case before it, no one
knew what happened to the hard drive other than the thief that stole it, and
thus the court concluded the plaintiff could not allege that her medical
records “were, in fact, viewed by an unauthorized individual.” (Id. at p. 570.)
All she alleged was that Regents negligently lost possession of the medical
information. (Ibid.) Accordingly, the court issued a writ of mandate directing
the trial court to vacate its order overruling Regents’ demurrer and to enter a
new order sustaining the demurrer without leave to amend. (Id. at p. 571.)

The Third District decided Sutter Health the following year. Sutter
Health involved a stolen desktop computer. (Sutter Health, supra,
227 Cal.App.4th at p. 1552.) Stored on the computer’s hard drive were the
medical records of more than four million patients in password-protected but
unencrypted format. (Ibid.) The plaintiffs filed a complaint asserting
violations of the CMIA. (Sutter Health, at p. 1552.) The defendant health
care provider demurred, arguing the complaint did not state a claim under
the CMIA because it did not allege that any unauthorized person had viewed
the stolen medical information. (Sutter Health, at p. 1552.) The trial court
overruled the demurrer, concluding the complaint sufficiently alleged a cause
of action for breach of the CMIA. (Sutter Health, at p. 1552.) On a petition
for writ of mandate challenging the order overruling the defendant’s
demurrer, the Court of Appeal agreed with Regents that the plaintiffs must

9
plead and prove a breach of confidentiality, and it clarified that “[n]o breach
of confidentiality takes place until an unauthorized person views the medical
information.” (Sutter Health, at pp. 1553, 1555, 1557.)

The Third District arrived at this conclusion differently from the
Second District, however. (Sutter Health, supra, 227 Cal.App.4th at p. 1555.)
Unlike the Regents court, the Sutter Health court found that the duty of
confidentiality imposed on health care providers by section 56.101 was not
violated without an actual confidentiality breach, and that there was no need
to consider the remedy provided in section 56.36 until such a violation
occurred. (Sutter Health, at p. 1555.) The Third District relied on the first
sentence of subdivision (a) of section 56.101—“ ‘Every provider of health
care . . . who creates, maintains, preserves, stores, abandons, destroys, or
disposes of medical information shall do so in a manner that preserves the
confidentiality of the information contained therein.’ ” (Sutter Health, at
p. 1556.) This language, the court opined, “makes it clear that preserving the
confidentiality of the medical information, not necessarily preventing others
from gaining possession of the paper-based or electronic information itself, is
the focus of the legislation. Therefore, if the confidentiality is not breached,
the statute is not violated.” (Ibid.) The first sentence of that subdivision
“allows for change of possession as long as confidentiality is preserved.”
(Ibid.) The court further reasoned that “[n]o breach of confidentiality takes
place until an unauthorized person views the medical information,” because
“[i]t is the medical information, not the physical record (whether in electronic,
paper, or other form), that is the focus of the Confidentiality Act.” (Id. at
p. 1557.)

The court noted that the second sentence of section 56.101,
subdivision (a), does not repeat the language in the first sentence imposing a

10
duty of confidentiality on the health care provider but this did not change its
analysis because the second sentence makes the health care provider liable
for negligence. (Sutter Health, supra, 227 Cal.App.4th at pp. 1557–1558.)
Applying general negligence principles, the court found that “[t]he duty is to
preserve confidentiality, and a breach of confidentiality is the injury
protected against.” (Id. at p. 1558.) “Without an actual confidentiality
breach there is no injury and therefore no negligence under section 56.101.”
(Ibid.)

The court concluded the defendant did not violate section 56.101
because the plaintiffs had not alleged that their information was viewed.
(Sutter Health, supra, 227 Cal.App.4th at p. 1559.) Accordingly, the court
found that there was no reason to look to section 56.36 since it provides
remedies only when a health care provider “ ‘has negligently released
confidential information or records concerning [the plaintiff] in violation of
this part . . . .’ ” (Sutter Health, at p. 1558.)

Although Regents and Sutter Health were decided at the pleading
stage, both hold that a breach of confidentiality under sections 56.101,
subdivision (a) and 56.36, subdivision (b) requires more than a showing that
the health care provider negligently maintained or stored confidential
information and lost possession of the information because of its negligence.

The interpretation of the CMIA in this case arises not on writ review of
a demurrer ruling but on appeal from a ruling denying class certification. We
turn, therefore, to the standards for class certification.

C. Class Certification Standards and Standards of Review
To properly allege a class, Vigil must “demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of

11
interest, and substantial benefits from certification that render proceeding as
a class superior to the alternatives.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1021 (Brinker).) Community of interest, or
commonality, encompasses three factors, including “ ‘predominant common
questions of law or fact.’ ” (Linder, supra, 23 Cal.4th at p. 435.) “To establish
the requisite community of interest, the proponent of certification must show,
inter alia, that questions of law or fact common to the class predominate over
the questions affecting the individual members . . . .” (Washington Mutual
Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 913.)
The denial of class certification to an entire class is an appealable
order. (Linder, supra, 23 Cal.4th at p. 435.) We review a ruling on class
certification for abuse of discretion. (Brinker, supra, 53 Cal.4th at pp. 1017,
1022.) A trial court ruling supported by substantial evidence will not be
disturbed unless it rests on improper criteria or erroneous legal assumptions.
(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326–327.)
We review de novo issues of statutory construction. (Regents, supra,
220 Cal.App.4th at p. 558.)
II.
Analysis
A. The Trial Court Did Not Err in Its Interpretation of the
CMIA.
This class action is predicated on Muir’s alleged negligence in
maintaining and releasing confidential information in violation of
sections 56.101, subdivision (a), and 56.36, subdivision (b), and thus Vigil and
the putative class members must plead and prove that “the confidential
nature of the plaintiff’s medical information was breached as a result of the
health care provider’s negligence.” (Regents, supra, 220 Cal.App.4th at
p. 570.) Vigil appears to agree that Muir has not violated sections 56.101,

12
subdivision (a), and 56.36, subdivision (b), unless there is a breach of
confidentiality. The parties dispute, however, what this showing entails and
whether it is an individualized showing.

1. The Court Correctly Determined That a Breach of
Confidentiality Requires an Unauthorized Person to Have
“Actually Viewed” the Confidential Medical Information.
Vigil first argues that under Regents, confidential information that is
“viewed, published, accessed, downloaded, copied, or otherwise ‘permitted[] to
escape from its normal place of storage’ ” is “released” within the meaning of
section 56.36, subdivision (b), and that a plaintiff need only show that the
health care provider negligently “released” the confidential medical
information to establish a claim under sections 56.36, subdivision (b), and
56.101, subdivision (a). She asserts that Sutter Health wrongly narrowed the
Regents standard for a negligent release claim by requiring a showing that an
unauthorized party “actually viewed” the confidential medical information to
prove a breach of confidentiality.

Based on the statute’s plain language, we agree with Sutter Health that
a breach of confidentiality under the CMIA requires a showing that an
unauthorized party viewed the confidential information. The CMIA does not
define the term “confidential,” but the ordinary meaning of the word supports
Sutter Health’s “viewed” requirement. (Angelucci v. Century Supper Club
(2007) 41 Cal.4th 160, 168 [“In interpreting a statute, we first consider its
words, giving them their ordinary meaning and construing them in a manner
consistent with their context and the apparent purpose of the legislation”].)
The common or ordinary dictionary definition of “confidential” is “private” or
“secret.” (See, e.g., Black’s Law Dict. (11th ed. 2019) p. 373, col. 1 [“meant to
be kept secret]; Webster’s Third New International Dict. (1961) p. 158, col. 1
[“private, secret”].) Thus, under the ordinary meaning of “confidential,” the

13
confidential nature of information is not breached unless the information is
reviewed by unauthorized parties. This construction is consistent with the
purpose of the CMIA to protect patients’ privacy. (See Brown v. Mortensen
(2011) 51 Cal.4th 1052, 1071 [“[T]he interest protected by [the CMIA] is an
interest in informational privacy”].)

Moreover, we also agree with Sutter Health’s reasoning that
section 56.101, subdivision (a), which allows a health care provider to
“dispose” of or “abandon” medical information so long as the confidentiality of
that information is preserved, indicates the Legislature did not intend to
“impose[] liability if the health care provider simply loses possession of the
medical records.” (Sutter Health, supra, 227 Cal.App.4th at p. 1556.) A
breach of confidentiality thus entails more than mere loss of possession and
does not “take[] place until an unauthorized person views the medical
information.” (Id. at p. 1557.)4

Vigil presents no basis for departing from Sutter Health. We disagree
that Sutter Health “narrow[ed]” Regents by requiring more than mere loss of
possession of medical records to establish a breach of confidentiality. After
noting that the plaintiff could not “allege her medical records were, in fact,
viewed by an unauthorized individual,” the Second District held her pleading
was “deficient” because it amounted to no “more than an allegation of loss of
possession by the health care provider.” (Regents, supra, 220 Cal.App.4th at
p. 570.)

4 Indeed, as the court in Regents stated, loss of possession is not
necessarily required. “[A] breach of confidentiality, of course, can occur
whether or not the information remains in the actual possession of the health
care provider.” (Regents, supra, 220 Cal.App.4th at p. 570, fn. 14.) It is an
unauthorized person’s viewing and/or use of another’s medical records that
violates the latter’s interest in privacy of the information they contain.

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 Vigil relies on Regents’ plain meaning construction of the term
“release”—“permit[ting] [the confidential information] to escape or spread
from its normal place of storage” and “allow[ing] it to be accessed” by an
unauthorized party—as support for her argument. However, Regents does
not stand for the proposition that mere loss of possession is sufficient on its
own to prove a breach of confidentiality under sections 56.101,
subdivision (a), and 56.36, subdivision (b). The Regents court opined that
providing an unauthorized party access to confidential information “may”
support a negligent release claim under the CMIA. (Regents, supra,
220 Cal.App.4th at p. 565.) But Regents expressly held that mere loss of
possession was insufficient to establish a “release,” even under a “broad
interpretation” of that term. (Id. at p. 570.) By “release” in section 56.36,
subdivision (b) “as incorporated into section 56.101,” the Legislature intended
“more than an allegation of loss of possession by the health care provider is
necessary to state a cause of action for negligent maintenance or storage of
confidential medical information.” (Regents, at p. 570.)

Vigil points to other sections of the CMIA that use the term “release” as
support for her argument that the Legislature intended section 56.36,
subdivision (b), to refer to the actions of the custodian in “surrendering” or
“mak[ing] available” private medical information to third parties. But those
sections set forth the circumstances in which a health care provider may
release medical information to the patient or to third parties; they do not
impose liability on the health care provider for its “negligence.” (Compare
§ 56.101, subd. (a) with §§ 56.11, 56.104, 56.07.) Muir, on the other hand,
contends that the Legislature’s use of the word “negligently” in
sections 56.101 and 56.36 supports the conclusion in Regents and Sutter

15
Health that a breach of confidentiality under the CMIA requires more than a
release of confidential information. We agree.

“ ‘The fundamental purpose of statutory construction is to ascertain the
intent of the lawmakers so as to effectuate the purpose of the law.’ ”
(Realmuto v. Gagnard (2003) 110 Cal.App.4th 193, 199.) As Sutter Health
appears to have recognized in its application of general negligence principles
(Sutter Health, supra, 227 Cal.App.4th at pp. 1557–1558), when the
Legislature couches its enactment in common law language, we presume that
it intended to carry over such rules as were part of the common law into
statutory form. (Presbyterian Camp & Conference Centers, Inc. v. Superior
Court (2021) 12 Cal.5th 493, 503 (Presbyterian Camp).) The essential
elements of common law negligence are “the existence of a duty to use due
care toward an interest of another that enjoys legal protection against
unintentional invasion” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370,
397), breach of that duty, injury, and causation (Dixon v. City of Livermore
(2005) 127 Cal.App.4th 32, 42).

Vigil’s interpretation of sections 56.36 and 56.101 conflicts with the
presumption that the Legislature intended to incorporate those common law
negligence principles. Imposing liability on a health care provider for the
release of confidential information without a showing that an unauthorized
party viewed the information would eliminate the injury and causation
elements of negligence. “[T]he interest protected by [the CMIA] is an interest
in informational privacy.” (Brown v. Mortensen, supra, 51 Cal.4th at p. 1071;
see also Sutter Health, supra, 227 Cal.App.4th at p. 1558 [“a breach of
confidentiality is the injury protected against” by the CMIA].) Although
sections 56.101 and 56.36 do not expressly state that a health care provider is
liable only if its negligence caused a breach of confidentiality, it would be

16
inappropriate to read the causation and injury elements out of those sections,
absent a clear expression by the Legislature of the intent to abrogate this
common law. (See Presbyterian Camp, supra, 12 Cal.5th at p. 503.) No such
intent appears here.

Vigil contends Sutter’s reliance on the “duty of confidential[ity] that
pervades CMIA” is misplaced because some courts have recognized that a
breach of confidentiality can occur when the information is merely “disclosed”
or “disseminated,” regardless of whether unauthorized parties viewed the
information. But the cases Vigil cites as support for this argument do not
address the CMIA and are inapposite. None stand for the proposition that
confidentiality is automatically breached whenever the confidential
information is disseminated to unauthorized parties.
In U.S. Dept. of Justice v. Landano (1993) 508 U.S. 165, cited by Vigil,
the court addressed the meaning of “confidential source” as used in an
exemption from disclosure under the federal Freedom of Information Act
(FOIA) for records compiled by criminal law enforcement authorities in the
course of a criminal investigation. (Landano, at p. 167.) The exemption
applies if the release of criminal investigation records “ ‘could reasonably be
expected to disclose’ the identity of, or information provided by, a
‘confidential source.’ ” (Ibid.) In rejecting the defendant’s argument “that a
source is ‘confidential’ for purposes of [the exemption] only if the source can
be assured, explicitly or implicitly, that the source’s cooperation with the
Bureau will be disclosed to no one,” the court concluded “this cannot have
been Congress’ intent.” (Id. at p. 171.) To read “confidential source” as
meaning one given “[a] promise of complete secrecy” would mean “the FBI
agent receiving the source’s information could not share it even with other
FBI personnel” and the information “would be of little use to the Bureau.”

17
(Id. at p. 173.) The court’s practical construction of the phrase “confidential
source” in the context of the exemption from FOIA sheds no light on the
nature of the CMIA’s breach of confidentiality element.
Similarly inapposite is Berkeley Police Assn. v. City of Berkeley (2008)
167 Cal.App.4th 385 (Berkeley Police Assn.), in which the court held that
interpreting a local ordinance to permit public hearings on citizen complaints
against a police officer would conflict with provisions of the Police Officers
Bill of Rights (POBRA) because it would result in disclosure of police
personnel records those provisions required to be kept confidential. (Berkeley
Police Assn., at pp. 404–405.) The court’s discussion of which records were
confidential within the meaning of POBRA, which focused on earlier
California Supreme Court authority interpreting the scope of POBRA’s
confidentiality provision and on the specific text of the relevant POBRA
provisions (Berkeley Police Assn., at pp. 395–402), likewise has no bearing on
the meaning of the CMIA’s language regarding health care providers’ liability
for breach of confidentiality.

The third case cited by Vigil, Culinary Foods, Inc. v. Raychem Corp.
(N.D.Ill. 1993) 151 F.R.D. 297, addressed the request of plaintiff, Culinary,
for a protective order for certain materials it sought to discover from
Raychem and Raychem’s request for a more restrictive order. The parties
disputed whether Culinary could disseminate materials determined to be
confidential to litigants and attorneys involved in similar actions against
Raychem. (Id. at p. 306.) The court declined to allow such dissemination
because it “would unduly raise the risk that Raychem’s competitors will
obtain access to this confidential information” and “make enforcement of this
protective order overly burdensome to Raychem,” as “evidenced by the fact
that third parties have in fact received information in violation of protective

18
orders issued by other courts.” (Id. at p. 307.) Insofar as Vigil’s point in
citing Culinary Foods is that allowing unauthorized access to confidential
information can increase the risk that someone will view and/or make use
that information, that is no doubt true. However, it does not answer the
question of whether the Legislature, in adopting sections 56.36 and 56.101,
intended to impose liability in situations where no actual invasion of the
plaintiff’s privacy occurs. Moreover, the Sutter Health court recognized that
the change of possession of confidential information increases the risk of a
confidentiality breach, but nonetheless held that the CMIA “does not provide
for liability for increasing the risk of a confidentiality breach.” (Sutter
Health, supra, 227 Cal.App.4th at p. 1557.)

Vigil also asserts that a plaintiff would only have to show that an
unauthorized party “downloaded” or “copied” confidential medical
information to establish a claim under sections 56.36, subdivision (b), and
56.101, subdivision (a). However, she fails to present any cogent argument or
legal authority in support of this conclusion in her opening brief. 5 In any

5 In her reply, Vigil cites for the first time a federal case in support of
her argument that a breach of confidentiality occurred when Centeno
downloaded the patient spreadsheet and saved it to her personal phone or
email account. Even assuming Vigil has not forfeited this argument (see
Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685), that case is
distinguishable because the plaintiff’s claims arose from defendants’ breach
of contractual, not statutory, duties. (Allergan, Inc. v. Merz Pharmaceuticals,
LLC (C.D.Cal., March 9, 2012, No. SACV 11-446 AG (Ex)) 2012 WL 781705,
at p. *11.)
In her reply, Vigil also attempts to factually distinguish this case from
Sutter Health based on evidence indicating that Centeno was aware of the
contents of the patient spreadsheet and of its value to her new employer, that
she downloaded it and retained it after her termination from Muir, and that
she offered to provide the spreadsheet to her new employer. She fails to
explain, however, why those facts show Sutter Health was wrongly decided.

19
event, a party that downloads or copies electronic files, as Centeno allegedly
did in this case, does not necessarily breach confidentiality if the party has
not actually viewed the confidential information included in the file. “It is
the medical information, not the physical record (whether in electronic,
paper, or other form), that is the focus of the Confidentiality Act).” (Sutter
Health, supra, 227 Cal.App.4th at p. 1557.)

Finally, Vigil argues that the rule of Sutter Health will lead to
unintended or absurd results. But interpreting sections 56.101 and 56.36 to
impose liability on health care providers for the “release” of confidential
information would expose health care providers to liability whenever an
unauthorized party gains possession of the information, regardless of
whether confidentiality was breached. On this issue, the Sutter Health court
presented the example of a thief grabbing a computer containing medical
information on four million patients and then wiping the hard drive without
viewing the information. (Sutter Health, supra, 227 Cal.App.4th at p. 1558.)
In that situation, the health care provider would be liable for at least $4
billion if we were to interpret section 56.101 as providing nominal damages to
every person whose medical information came into the possession of an
unauthorized person. (Ibid.) We do not believe the Legislature intended
such an extreme result. By contrast, the CMIA’s purpose of protecting the
confidentiality of private medical information is preserved by interpreting
those sections as requiring a showing that the confidentiality of the
information was breached because of the health care provider’s negligence.

Vigil cites Stasi v. Inmediata Health Grp. Corp. (S.D.Cal. 2020)
501 F.Supp.3d 898 (Stasi) as support for her argument. There, the defendant
posted confidential medical information on the internet, “making it
searchable, findable, viewable, printable, copiable, and downloadable by

20
anyone in the world with an internet connection.” (Id. at p. 924.) Vigil
argues that under “any conceivable standard,” the confidentiality of the
information at issue in that case was destroyed once it was published online,
while that would not be the case under Sutter Health if the plaintiffs could
not prove that an unauthorized party viewed their information. What she
ignores is that the court in Stasi upheld Sutter Health’s “viewed”
requirement. (Stasi, at p. 923.) There, on appeal from a motion to dismiss
for failure to state a claim, the court found that the complaint’s allegations
gave rise to a reasonable inference that “someone” viewed the confidential
information since it was accessible “by anyone in the world with an internet
connection.” (Id. at p. 924.) Thus, Stasi does not support Vigil’s argument.

We therefore conclude the trial court correctly determined that a
breach of confidentiality under sections 56.36, subdivision (b), and 56.101,
subdivision (a), requires a showing that an unauthorized party viewed the
confidential information at issue.

2. Vigil Has Not Shown That a Breach of Confidentiality Can
Be Established on a Class-Wide Basis.
Vigil next challenges the trial court’s finding that each class member
would have to prove that his or her medical information was viewed by an
unauthorized party. She argues that such a requirement cannot be found in
section 56.36, Sutter Health or Regents. Instead, she claims, Regents shows
that Vigil would not have to prove that Centeno read any of the information
contained within the patient spreadsheet; her ability to access the
information is sufficient under the CMIA. But, as previously discussed, the
mere ability of an unauthorized party to access information cannot support a
claim under sections 56.101, subdivision (a), and 56.36, subdivision (b). Vigil
further contends that under Sutter Health, she need only show that Centeno

21
viewed the confidential records and not individual data entries. Muir
disagrees, arguing that whether a breach of confidentiality under the CMIA
occurred is an inherently individualized inquiry.

We agree that a breach of confidentiality under the CMIA is an
individualized issue. Regents recognized that sections 56.36, subdivision (b),
and 56.101, subdivision (a), provide a private cause of action for individual
patients. This private cause of action, like the right of privacy, “ ‘ “is purely a
personal one.” ’ ” (Regents, supra, 220 Cal.App.4th at p. 563 & fn. 6.) “The
remedy provided in subdivision (b) [of section 56.36] is the right of an
individual whose confidential information has been released in violation of
CMIA to bring a private cause of action for nominal and/or actual damages.”
(Id. at p. 561.) For a negligent maintenance claim under section 56.101,
subdivision(a), there is no “release[] . . . in violation of [the CMIA]” if there is
no breach of confidentiality. (§§ 56.36, subd. (b), 56.101, subd. (a).)
Accordingly, the individual bringing a private cause of action under those
sections must establish that the confidential nature of his or her information
was breached because of the health care provider’s negligence. (See Regents,
at p. 570.)

Contrary to Vigil’s assertion in her opening brief, Sutter Health does
not stand for the proposition that under the CMIA, a plaintiff need only show
that an unauthorized party viewed some of the confidential information
included in a medical record, regardless of whether the information viewed
concerned the plaintiff. Sutter Health did not address this precise issue,
which Vigil concedes in her reply.

Vigil contends that because a negligent release claim leads to lesser
penalties under subdivision (b) of section 56.36 than an intentional release

22
claim under subdivision (c) of that section,6 a negligent release claim requires
a correspondingly less stringent evidentiary standard. But the legislative
history she cites as support for this argument suggests that the purpose of
the penalties under that section is deterrence, which in turn indicates that
the increased penalties were intended to correspond with the increased
culpability of the person or entity that discloses or uses medical information
in violation of the CMIA. (See Assem. Com. on Judiciary, Analysis of Sen.
Bill No. 19 (1999-2000 Reg. Sess.) July 13, 1999, p. 9 [“While the new civil
penalties in the bill appropriately apply to ‘knowing and willful’ violations,
the author believes that lesser penalties for negligent conduct that leads to
an unauthorized disclosure should also be included in order to deter those
releases as well”].) There is nothing in this history that suggests a negligent
release claim does not require an individualized showing for the breach of
confidentiality element.

Vigil argues for the first time in her reply that based on the plain
language of section 56.36, subdivision (b), each class member would only have
to prove that the medical records negligently released by the health care
provider concerned them. Even assuming she has not forfeited this argument
(Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at p. 685), it lacks
merit. Section 56.36, subdivision (b), provides that the medical records or
information must have been “negligently released . . . in violation of this
part.” (§ 56.36, subd. (b).) As mentioned, there is no “release[] . . . in

6 Subdivision (c) of section 56.36 sets forth administrative fines and
penalties to be imposed on a person or entity that uses or discloses medical
information in violation of the CMIA. The amount of the fines and penalties
increase when the use or disclosure is knowing and willful instead of
negligent. (§ 56.36, subd. (c).)

23
violation of” section 56.101, subdivision (a), if the confidential nature of the
information was not breached. (§§ 56.36, subd. (b), 56.101, subd. (a).)

Accordingly, we conclude that each class member would have to show
that his or her medical information was viewed by an unauthorized party to
recover under the CMIA.

B. The Trial Court Did Not Abuse Its Discretion in Finding a
Predominance of Individual Issues.
Since Vigil has not shown that a breach of confidentiality can be
established on a class wide basis, the question then is whether the common
questions predominate over those individualized questions.

The key inquiry in determining whether the predominance
requirement has been met is whether “the issues which may be jointly tried,
when compared with those requiring separate adjudication, must be
sufficiently numerous and substantial to make the class action advantageous
to the judicial process and to the litigants.” (City of San Jose v. Superior
Court (1974) 12 Cal.3d 447, 460.) “Presented with a class certification
motion, a trial court must examine the plaintiff’s theory of recovery, assess
the nature of the legal and factual disputes likely to be presented, and decide
whether individual or common issues predominate.” (Brinker, supra,
53 Cal.4th at p. 1025; see also Ayala v. Antelope Valley Newspapers, Inc.
(2014) 59 Cal.4th 522, 530 [the question at the class certification stage is
“whether the operative legal principles, as applied to the facts of the case,
render the claims susceptible to resolution on a common basis”].)

“ ‘As a general rule if the defendant’s liability can be determined by
facts common to all members of the class, a class will be certified even if the
members must individually prove their damages.’ ” (Brinker, supra,
53 Cal.4th at p. 1022.) However, “class treatment is not appropriate ‘if every

24
member of the alleged class would be required to litigate numerous and
substantial questions determining his individual right to recover following
the “class judgment” ’ on common issues.” (Duran v. U.S. Bank National
Assn. (2014) 59 Cal.4th 1, 28.) “ ‘Only in an extraordinary situation would a
class action be justified where, subsequent to the class judgment, the
members would be required to individually prove not only damages but also
liability.’ ” (Id. at p. 30.) Here, based in part on Sutter Health’s “viewed”
requirement, the trial court found that class treatment was not warranted
because individualized inquiries would be required to prove Muir’s liability
and damages for each of the nearly 5,500 putative class members.

In challenging the trial court’s determination, Vigil contends there are
common questions regarding whether Centeno had unauthorized access to
the patient spreadsheet and whether Muir was negligent in protecting that
document. The evidence she presented on those issues below consists of the
depositions of two of Muir’s HIPAA security officers, a report from the
investigation of the data breach, and Muir’s policies. Based on this evidence,
the question whether Muir failed to use due care in maintaining patients’
private medical information is a significant issue susceptible to common
proof. However, Vigil’s burden “is not merely to show that some common
issues exist, but rather, to place substantial evidence in the record that
common issues predominate.” (Lockheed Martin Corp. v. Superior Court
(2003) 29 Cal.4th 1096, 1108.)

On this record, the trial court did not abuse its discretion in concluding
individual issues would predominate over common issues. The record
demonstrates that Centeno may have viewed some of the information on the
patient spreadsheet, but Vigil presented no evidence indicating whose
information was viewed. There is also no evidence suggesting that other

25
unauthorized parties viewed the information in the patient spreadsheet or
that it was posted or disclosed in a public forum like the information at issue
in Stasi or in Berkeley Police Assn. Therefore, most, if not all, of the almost
5,500 potential class members would be unable to maintain their CMIA
claims against Muir unless they could establish that an unauthorized party
viewed their confidential medical information and that Muir’s negligence
caused this breach of confidentiality.

In our research, we have not found any state cases, and the parties
have not provided any, that concern the predominance requirement in a
CMIA case or in a similar data breach action. The few federal cases that
address CMIA claims, however, suggest that individual questions regarding
whether a breach of confidentiality occurred and whether the health care
provider’s negligence caused the breach can be numerous and varied. In In re
Premera, for example, the defendant was a health care provider that
maintained patients’ confidential information in a centralized database. (In
re Premera Blue Cross Customer Data Security Breach Litigation (D.Or. 2016)
198 F.Supp.3d 1183, 1188.) In January 2015, it discovered that hackers had
breached its computer network beginning in May 2014. (Id. at pp. 1189–
1190.) The plaintiff subsequently filed a complaint for violation of the CMIA,
which the defendant moved to dismiss. (Premera, at pp. 1190–1191.) The
court concluded the plaintiff had adequately alleged a CMIA claim because in
May 2015, she discovered on her credit report an inquiry for a car loan that
she did not recognize, and her checking account had been fraudulently
accessed “around the same time period.” (Premera, at p. 1202.)

Similarly, in Falkenberg, the court determined on a motion to dismiss
that plaintiffs had adequately alleged a claim for violation of the CMIA after
a thief stole a password-protected laptop containing plaintiffs’ and other

26
patients’ confidential information. (Falkenberg v. Alere Home Monitoring,
Inc. (N.D.Cal., Feb. 23, 2015, No. 13-cv-00341-JST) 2015 WL 800378, at
pp. *1, *3.) The court found that the plaintiffs’ CMIA claim was supported by
allegations that their confidential medical information was viewed by an
unauthorized party because they alleged that they gave the defendant that
information, that they suffered identity theft sometime from three weeks to
“weeks-and-months” from when the defendant’s laptop containing the
plaintiffs’ information was stolen, that they had never suffered identity theft
previously, that they took extra precautions to ensure their information was
not disclosed to unknown third parties, and that the thieves opened
fraudulent accounts using the plaintiffs’ social security numbers, information
that the defendant had and which was “not generally as available as date of
birth, full name, and address.” (Falkenberg, at p. *3.) The court noted that
where a plaintiff claims a data breach caused them to be the victim of
identity theft, there must be a “ ‘nexus’ ” between the alleged identity theft
and the data breach “ ‘beyond allegations of time and sequence,’ ” and that
there was such a nexus in that case. (Id. at p. *4.)

Applying the principles of those cases, the case here would require an
assessment of each putative class member’s circumstances to determine
whether his or her information was viewed by an unauthorized party and
whether the data breach caused this breach of confidentiality. This
assessment includes questions regarding whether third parties used
plaintiffs’ information, whether this use was without authorization, the
timing of this misuse, whether plaintiffs took measures to protect against the
misuse of their information, whether the information used was involved in
the data breach, and whether third parties could have obtained this
information through other means.

27
 Federal courts have denied class certification in data breach cases
based on similar inquiries. (See Gardner v. Health Net, Inc. (N.D.Cal.,
Sept. 13, 2010, No. cv-10-2140) 2010 WL 11579028, at pp. *4–*5 [class
treatment not warranted in data breach case where individualized inquiries
would be required to prove the defendant’s liability for negligence and other
claims based on the injury and causation elements: “the theft of a potential
class member’s identity could be the result of any number of causes”];
McGlenn v. Driveline Retail Merchandising, Inc. (C.D.Ill., Jan. 19, 2021,
No. 18-cv-2097) 2021 WL 165121, at pp. *8–*9 [the plaintiff failed to establish
a predominance of common questions in data breach case involving almost
16,000 potential class members where the evidence showed that some
putative class members may have suffered identity theft while others did not,
and there were individualized issues on causation, given that some members
were involved in other data breaches].)

We conclude substantial evidence supports the trial court’s
determination. On the record before us, each class member’s “right to recover
depends on facts peculiar to his case.” (City of San Jose v. Superior Court,
supra, 12 Cal.3d at p. 459; Duran v. U.S. Bank National Assn., supra,
59 Cal.4th at p. 30.) Although it is only a general rule that a class cannot be
maintained where liability turns on the facts of individual cases, the
problems of proof here appear sufficiently pervasive and substantial as to
support the trial court’s denial of class certification based on the
predominance of those questions.

DISPOSITION
The order is affirmed. Muir shall recover its costs on appeal.

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 STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.

Vigil v. Muir Medical Group (A160897)

29