Francies was diagnosed as HIV positive shortly after Kapla became his primary care physician in 1993. Kapla testified that although he continued to treat Francies for two months after the disclosure and knew that Francies was upset that his employer had learned of his HIV status, Kapla did not know that the report had been faxed to the restaurant until after Francies filed this lawsuit. Kapla contends Francies is precluded from asserting a cause of action based on the first report because the report is a privileged communication under Civil Code section 47, subdivision (b). Kapla contends Francies did not meet his burden of proof because "(1) neither Dr. Kapla nor Janet Blair intentionally disclosed that Francies was HIV-positive; (2) there was no egregious breach of social norms; (3) there was no public disclosure of private facts; (4) Francies consented to the disclosure; and (5) Francies did not have a reasonable expectation of privacy. "*fn10 Kapla points out correctly that Francies did not raise his other arguments concerning the calculation of recoverable damages in the trial court.

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