What is the test for intentional disclosure of HIV test results in a cause of action for invasion of privacy?

We conclude that Cutter v. Brownbridge, supra, 183 Cal.App.3d 836 properly held that a balancing of interest analysis governs application of the litigation privilege to a cause of action for invasion of privacy under California Constitution, article I, section 1. Cutter makes clear that the litigation privilege applies when the disclosure is made pursuant to a judicial determination, but, in the absence of a judicial ruling, the constitutional right to privacy may sometimes outweigh the policies underlying the privilege. The pleadings here allege an intentional disclosure of HIV test results that the defendants knew were improperly released by the hospital. We recognize the importance that these records may have had to the ascertainment of the truth of appellant's claims, but standing alone the allegations of the amended complaint do not disclose the relevance of the test results to the physical injuries put at issue by appellant's personal injury suit. Accepting the allegations as true, as we must on appeal from an order sustaining a demurrer, the amended complaint alleges a willful and unnecessary disclosure of constitutionally protected information, similar to the disclosure in Urbaniak. Based solely upon these allegations we conclude that the constitutional right to privacy outweighs the policies underlying the litigation privilege and that the trial court erred in sustaining the demurrer as to the cause of action for invasion of privacy.³

B. Intentional Infliction of Emotional Distress