The opinion
Filed 7/8/24 Purdom v. Xu CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
KENNETH PURDOM, B327564
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 22STCV25633)
v.
YING XU et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Morris & Stone, Aaron P. Morris for Defendants and
Appellants.
Law Offices of Thomas E. Rocket, III and Thomas E.
Rocket, III for Plaintiff and Respondent.
INTRODUCTION
This case involves a malicious prosecution lawsuit arising
out of a medical malpractice action. In the underlying medical
malpractice lawsuit, appellants Ying Xu, Law Offices of Eric K.
Chen, Eric Chen, Samantha Larsen, and Kaleigh Ragon
(collectively, the Attorneys) represented patient Ying Hong
Zhang against respondent Kenneth Purdom, M.D. At the close of
Zhang’s evidence during the bench trial of the malpractice action,
the trial court granted Purdom’s motion for judgment.
Purdom then filed a malicious prosecution action against
the Attorneys and Zhang,1 arguing that their failure to retain an
expert to support the medical malpractice claims demonstrated
that the lawsuit was filed and pursued without probable cause
and with malice. The Attorneys filed a special motion to strike
the complaint under the anti-SLAPP statute, Code of Civil
Procedure section 425.16.2 The trial court denied the motion.
The parties do not dispute that the Attorneys met step one
of the anti-SLAPP statute, as Purdom’s malicious prosecution
claim arises out of protected activity under section 425.16. But
the Attorneys challenge the trial court’s finding that, as to step
two, Purdom had established a probability of prevailing on his
malicious prosecution claims. The trial court found that because
the Attorneys did not retain an expert to provide necessary
testimony at trial as to several elements of Zhang’s claims,
Purdom met his burden to establish a prima facie case that the
1 Zhang is not a party to this appeal.
2 All further undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” stands for “strategic lawsuits
against public participation.” (FilmOn.com Inc. v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 139.)
2
Attorneys brought or maintained the medical malpractice action
without probable cause and with malice. We agree that Purdom
has met his step two burden on the merits of his claim. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Litigation
1. Medical malpractice complaint
Zhang filed the underlying complaint in November 2018,
alleging two causes of action for professional negligence and
medical battery. She alleged that on April 6, 2018, she was
experiencing fever, chills, and pain in her abdomen. Zhang went
to the emergency department at Whittier Hospital Medical
Center. The hospital performed a pelvic ultrasound and a CT
scan of her abdomen and pelvis. Zhang attached a copy of both
reports to her complaint. The ultrasound report, completed by
Dr. Floyd Gardner at 2:55 p.m., stated that a “right ovarian mass
is suspected.” The CT scan report, completed by Dr. Bay Ngo at
5:55 p.m., noted a gallstone in Zhang’s gallbladder and “several
low density lesions” in her liver. It did not make any findings as
to her ovaries. Zhang alleged that the CT scan “revealed no
ovarian cyst or any other abnormality in the right ovary.” Zhang
further alleged, based on information and belief, that “diagnostic
imaging studies for the same body parts that show inconsistent
results require further analysis by medical professionals.”
Zhang was admitted to the hospital around 7:44 p.m. on
April 6, 2018. Purdom was called in to consult, telling Zhang
around midnight that she had an ovarian cyst and needed
surgery to remove the cyst along with her right ovary. When
Zhang asked if she could have a less intrusive surgery to remove
only the cyst, Purdom replied, “we cannot save your ovary.”
3
Zhang signed an informed consent form for the surgery, an “open
laparotomy right salpingo oophorectomy.” However, she alleged
that she did not consent to an “exploratory surgery to find out
whether she actually had an ovarian cyst.” Zhang alleged that
Purdom never discussed the CT findings with her, did not
perform a “manual or visual examination” of her, and did not
discuss “the possibility of a false positive result of [Zhang’s]
ultrasound examination,” before obtaining her consent.
The following day, Purdom performed Zhang’s surgery,
which revealed “a normal looking right ovary and no sign of a
cyst.” In support of her first cause of action for professional
negligence, Zhang alleged that Purdom failed to “review or
consider” her negative CT scan or her medical history and failed
to examine her before diagnosing her with an ovarian cyst, and
therefore breached his duty of care to Zhang. Purdom therefore
“performed a needless surgery that was not medically indicated,”
causing harm to Zhang.
In her second cause of action for medical battery, Zhang
alleged that Purdom “performed an exploratory laparotomy” on
her that was “intended to find out whether she actually has [sic]
any lesion in the ovary.” Because she “only consented to an open
laparotomy to remove an existent ovarian cyst,” Zhang alleged
that Purdom “performed a procedure that is substantially
different” than the procedure to which she had consented.
2. Pretrial proceedings
In April 2020, Purdom served his designation of expert
witnesses, identifying two retained expert witnesses to testify to
the standard of care in the fields of gynecology and diagnostic
radiology, causation, and damages. Zhang identified as non-
retained expert witnesses 29 treating healthcare providers,
4
including Purdom and Dr. Elsie Wu, who was Zhang’s
gynecologist in 2018; she did not designate any retained expert
witnesses.
On July 12, 2021, Purdom filed motions in limine numbers
one and two to exclude Zhang from introducing expert witness
testimony on her claims for professional negligence and medical
battery, respectively. He argued that Zhang had failed to
designate any retained experts and none of the non-retained
experts on Zhang’s expert list were qualified to opine on the
relevant standard of care. Purdom’s motions also cited case law
supporting his contention that an expert witness was required to
establish the elements of a professional negligence cause of action
and related claims.
In opposition, Zhang argued that she had properly
participated in the expert exchange and had designated multiple
treating physicians who could “testify in the form of any opinion
or otherwise.” She also “reserved her right to call and examine
Defendant’s designated expert trial witnesses.” She argued that
non-retained experts could offer opinions based on
“independently acquired” facts and stated that she had
designated treating physicians and nurses who were qualified to
“offer opinion testimonies regarding standard of care and
causation of Plaintiff’s injuries.”
At a hearing on August 6, 2021, the court heard argument
on the motions in limine.3 Zhang again argued that she had non-
3
The parties waived the use of a court reporter for trial.
Details from court proceedings on August 6, 9, and 10, 2021 are
taken from the court’s minute orders and summaries of the
5
retained experts who were qualified to offer opinions on the
standard of care and causation of her injuries. The court stated
that a treating physician could testify as an expert, without an
expert declaration, as to “opinions formed on the basis of facts
independently acquired and informed by his training, skill and
experience,” quoting Schreiber v. Estate of Kiser (1999) 22 Cal.4th
31, 39. However, to the extent a physician formed an opinion in
anticipation of litigation or preparation for trial, “he or she acts
as a retained expert.” The court denied the motions in limine
without prejudice to raising an objection during trial,4 but added
that, “[g]iven the facts thus far provided, it would not appear that
the Plaintiff is qualified to opine on the standard of care.”
3. Trial
The parties agreed to proceed by bench trial. Trial began
August 9, 2021, with Xu appearing as counsel for Zhang. At the
conclusion of Zhang’s opening statement, Purdom orally moved
for nonsuit on the grounds that Zhang failed to present sufficient
evidence to support her two causes of action. Zhang argued that
she would present witnesses during her case-in-chief showing
that Purdom breached the applicable standard of care and
thereby caused Zhang harm. The court denied the motion.
proceedings submitted by Purdom. We granted the Attorneys’
request for judicial notice of these documents, as well as their
oppositions to the relevant motions in limine.
4 The court’s minute order indicates that motion in limine
number one, relating to expert testimony on the first cause of
action for medical malpractice, was denied without prejudice.
The record does not indicate whether motion in limine number
two, regarding the second cause of action for medical battery, was
denied with or without prejudice.
6
Zhang presented six witnesses in her case-in-chief on
August 9 and 10, 2021. Testifying through a Mandarin
interpreter, Zhang stated that after the ultrasound on April 6, a
female doctor told her she had a “fist-size tumor” and needed a
CT scan. Zhang had a CT scan but was not informed of the
results. After she was admitted to the hospital, Purdom came to
her bedside and asked her to sign a consent to surgery. He told
Zhang that “we cannot save your ovary” and that the surgery
would remove the ovary and fallopian tube, along with the tumor.
He communicated with Zhang in English. According to Zhang,
Purdom did not physically examine her or ask about her medical
history. After Purdom left, a nurse came to Zhang with an
electronic consent form, which Zhang signed.
Zhang testified that after the surgery, a nurse told her that
“there was no tumor.” She was relieved, but then became
anxious and frustrated. She also had intense pain from the
surgical wound. She continued to have pain and needed help
performing daily activities for over a month. She also
experienced emotional distress as a result of the incident.
Zhang’s husband, Simon Yang, also testified about Zhang’s
recovery and emotional distress.
Purdom testified that he performed a surgical consult of
Zhang around 11:00 p.m. on April 6, 2018. He recommended the
surgery—an open laparotomy right salpingo oophorectomy—to
remove Zhang’s right ovary and fallopian tube. Purdom testified
that he recommended surgery based on his review of Zhang’s lab
results, the ultrasound report, prior provider notes, and a
physical assessment of Zhang. He could not recall whether he
reviewed the CT scan prior to his consultation with Zhang, but
testified that the CT scan report was not critical to his clinical
7
decision to recommend surgery and would not have altered his
decision. Purdom also testified that he requested a nurse who
spoke Chinese to be present when obtaining Zhang’s consent to
the surgery, but did not recall if that nurse was present when
Zhang signed the consent form. There were no complications
from the surgery.
Dr. Ngo, the radiologist who read Zhang’s CT scan, testified
that he did not review any prior imaging studies before
interpreting the CT scan. He also stated that according to the
hospital’s electronic records system, Purdom did not access
Zhang’s CT scan prior to her surgery. Carole Higbee, nurse
practitioner, testified that she reviewed Zhang’s ultrasound,
recommended admitting her to the hospital, and discussed the
results of the CT scan with Zhang in English. Specifically,
Higbee testified that she discussed with Zhang that the report
stated that Zhang had a gallstone and several low-density lesions
in her liver.
Dr. Wu testified that she was Zhang’s gynecologist in 2018
and was aware of the incident involving Purdom. She stated that
when seeking a patient’s informed consent for surgery, she would
evaluate all relevant medical evidence including diagnostic tests
and disclose such information to the patient. Wu also testified
that she was not retained to express an opinion on Purdom’s
diagnosis and treatment of Zhang, or opinions on the standard of
care, causation, and damages.
After Zhang rested on August 10, Purdom orally moved for
judgment pursuant to section 631.8. He argued that Zhang failed
to present sufficient evidence at trial to support her causes of
action. Specifically, he asserted that Zhang failed to present any
expert opinion that Purdom breached the applicable standard of
8
care or that any such breach was a substantial factor in causing
harm to Zhang.
Following oral argument from Zhang and the opportunity
to present additional evidence,5 the court granted the motion for
judgment. With respect to the first cause of action for
professional negligence, the court “acknowledged that Plaintiff
did not designate any retained experts in this matter to opine on
the issues of standard of care, causation, and damages. In
viewing the light [sic] most favorable to the Plaintiff, had Dr.
Purdom breached the applicable standard of care relative to his
care and treatment of Plaintiff, Plaintiff did not provide any
evidence to support a finding that the breach caused and/or
contributed to Plaintiff’s claimed injuries.” The court also cited
Purdom’s testimony that the CT report would not have altered
his clinical decision. Turning to Zhang’s second cause of action,
the court treated it as two separate claims for lack of informed
consent and medical battery. With respect to Zhang’s lack of
informed consent claim, the court found that Zhang “gave
informed consent to undergo the open laparotomy right side
salpingo oophorectomy with Dr. Purdom. . . . Further Plaintiff
did not set forth any qualified expert opinion to state that Dr.
Purdom failed to obtain Plaintiff’s informed consent for surgery
and how the surgery [Purdom] performed exceeded the scope of
the consent Plaintiff gave.” The court also found that Zhang
“failed to provide sufficient and qualified evidence to support a
finding that her alleged injury was a complication that had she
5 There is no indication in the record that Zhang presented
any additional evidence. Neither the summary of proceedings
nor the judgment contains the details of Zhang’s argument in
opposition to the motion for judgment.
9
known about prior to surgery, she would not have given informed
consent for the surgery.” The court similarly concluded that
Zhang failed to meet her burden as to medical battery, finding
that Zhang gave informed consent to the surgery and Purdom did
not exceed the scope of that consent. The court therefore granted
the motion as to the entire action and ordered Purdom to prepare
a proposed order and judgment.
The court entered judgment in favor of Purdom on August
30, 2021.
B. Malicious Prosecution Action
1. Complaint
In 2022, Purdom filed a complaint alleging malicious
prosecution against Zhang and the Attorneys.6 He alleged that
the Attorneys filed the malpractice action without probable cause
because they knew or should have known that the case required
an expert witness to establish the applicable standard of care,
breach, and damages. Thus, they acted maliciously in proceeding
to trial on the case despite knowing they could not establish the
elements of the claims.
2. Anti-SLAPP motion
a. Motion
The Attorneys filed a special motion to strike Purdom’s
complaint under section 425.16, the anti-SLAPP statute.
“Resolution of an anti-SLAPP motion involves two steps. First,
the defendant must establish that the challenged claim arises
6 The court ultimately sustained a demurrer by Zhang to
Purdom’s complaint without leave to amend. Zhang was not a
party to the anti-SLAPP proceedings and we discuss her
involvement in the malicious prosecution action only to the
extent relevant to this appeal.
10
from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral).) When “claims are stricken from the pleadings for
lack of merit, [the plaintiff] may no longer seek to impose liability
on defendants for having engaged in these protected acts.”
(Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1019
(Bonni).)
Purdom did not dispute that his claim arose out of
protected activity and therefore that the Attorneys met the first
step of the anti-SLAPP analysis. (See Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 735 [“It is settled that a claim
for malicious prosecution is subject to a special motion to strike”
under section 425.16].) Regarding the second step, the Attorneys
argued that Purdom could not meet his burden of demonstrating
a probability of success on the merits. Specifically, they argued
that Purdom could not show that they lacked probable cause or
acted with malice in filing the malpractice action against him.
They acknowledged that “[a] medical malpractice plaintiff
normally must offer expert testimony to establish the applicable
standard of care, whether the standard was met or breached, and
whether the negligence caused plaintiff’s injuries,” citing Scott v.
Rayhrer (2010) 185 Cal.App.4th 1535, 1546 (Scott). But they
argued that the case fell under an exception where “the
negligence is a matter of common knowledge.” Here, the
Attorneys argued that Purdom’s alleged failure to consider
critical information, including a CT scan, resulted in
misdiagnoses and unnecessary surgery, and that expert opinion
was not necessary for the factfinder to determine that this
11
conduct breached the standard of care. The Attorneys also
argued that the trial court’s denial of Purdom’s motion for
nonsuit at the start of the malpractice trial was evidence that
they had probable cause to bring and maintain the malpractice
action.
The motion included a declaration from attorney Xu,
detailing his discussions with Zhang prior to filing the
malpractice action. According to Xu, Zhang told him that she
believed Purdom did not review the CT scan prior to
recommending surgery. Zhang also reported that she tried to tell
Purdom she had recently had a normal examination by her
gynecologist, Dr. Wu, but Purdom brushed her off. As a result,
Xu stated that he was “of the firm opinion” that Purdom
diagnosed Zhang and recommended surgery “on substantially
less than a fully informed basis.” Xu also relayed a conversation
between Zhang and Wu, after Zhang told her about the surgery.
According to Xu, Wu told Zhang that if Purdom had failed to
review the CT scan prior to diagnosis and surgery, that would be
reckless. Xu concluded that he “did not and do not think that an
expert is needed to testify in order to establish that [Purdom] fell
beneath the applicable standard of care, performed a
substantially different procedure than what was consented to,
and caused substantial harm thereby.”
The Attorneys attached Zhang’s consent to surgery as an
exhibit to the motion. They also filed a request for judicial notice
of the malpractice complaint, Purdom’s answer, the summary of
trial proceedings filed by Purdom, and the order granting the
motion for judgment.
12
b. Opposition
In his opposition to the special motion to strike, Purdom
argued that he had a probability of prevailing on his malicious
prosecution claim. He asserted that the Attorneys lacked
probable cause to bring the malpractice lawsuit against Purdom
because no reasonable attorney would have thought the claim
was tenable without an expert on the standard of care or
causation. Purdom objected to the statements attributed to Dr.
Wu in Xu’s declaration as hearsay and noted that Dr. Wu did not
testify to this information at trial. He also argued that the
Attorneys acted with malice, as they knew or should have known
that expert witness testimony was necessary, but maintained the
lawsuit through trial without such evidence.
c. Reply
The Attorneys’ reply asserted that their failure to present
expert testimony did not establish a lack of probable cause. They
also argued that they presented Wu as a non-retained expert “on
the subjects of duty, breach and causation, as well as whether
Plaintiff performed a substantially different surgery than
consented to.” In a supporting declaration, Xu stated that he
spoke with Wu on the first day of trial, August 9, 2021 “regarding
testifying in support of [Zhang’s] case.” Xu reiterated that he did
not believe expert testimony was necessary, and the Attorneys
had not retained an expert for trial “because it was cost
prohibitive to do so.” Nevertheless, “out of an abundance of
caution,” the Attorneys designated Wu as a non-retained expert
and intended to call her to testify at trial regarding “duty, breach,
causation, and the difference between the two procedures.”
However, when Xu began to examine Wu on these issues,
Purdom’s counsel objected that Wu was “not properly designated
13
as a retained or non-retained expert to testify” as to these issues.
Xu stated that “[d]espite my offer of proof, the Trial Court
sustained [Purdom’s] objections, and Dr. Wu was not permitted to
testify.”
The Attorneys also filed objections to the evidence
submitted in support of Purdom’s opposition to the motion to
strike. They objected to portions of the declaration of Purdom’s
attorney as improper expert opinion.
d. Hearing and ruling
The court denied the Attorneys’ motion in a written ruling
on February 10, 2023. As an initial matter, the court granted the
Attorneys’ request for judicial notice and sustained their
evidentiary objections.7 The court agreed with the parties that
the Attorneys had satisfied the first step of the anti-SLAPP
analysis, demonstrating that Purdom’s claim for malicious
prosecution arose out of protected activity.
Proceeding to the second step, the court agreed with
Purdom that “medical negligence and medical battery usually
require retained expert witnesses,” citing Scott, supra, 185
Cal.App.4th at p. 1546. The court further found that the failure
to retain expert witnesses showed that the Attorneys lacked
probable cause to bring the medical malpractice action to trial.
The court cited the admission in Xu’s declaration that he never
retained an expert for the case. The court explained that Xu’s
declaration “sets forth facts surrounding patient Ying Zhang’s
treatment, but attorney Xu went to trial without any evidence
that [Purdom] breached any standard of care in providing
treatment to patient Zhang. The court finds that no reasonable
7 It does not appear that the court ruled on Purdom’s
hearsay objection to statements in Xu’s declaration.
14
attorney would have thought the action tenable without a
medical expert to testify concerning the standard of care and
causation.” The court rejected the Attorneys’ argument that this
case fell within the exception to the expert requirement, stating,
“Clearly, the underlying case was not a case where negligence
would be obvious to a lay person.”
The court also rejected the argument that the Attorneys
intended to use Wu to testify as to “duty, breach, causation, and
the difference between the two procedures.” The court noted that
in moving to strike, the Attorneys had “not provided any
information as to what Dr. Wu’s testimony would be. [The
Attorneys] fail to provide any declaration from Dr. Wu, nor any
offer of proof that Dr. Wu would testify that [Purdom’s] actions
fell below the standard of care.” The court also found that the
trial court in the medical malpractice case had granted judgment
based on the finding that the Attorneys “did not have a factual or
legal basis to assert a claim for battery or medical negligence,”
and therefore the court concluded that the “claims in the
underlying action were untenable.”
The court also found that Purdom had established a
probability of prevailing on the malice element of his claim. The
court reasoned that “as the attorneys for the patient, [the
Attorneys] knew the issues raised in the underlying complaint
were of a subject matter not readily understandable to the
common knowledge of lay persons. From the time the lawsuit
was filed on behalf of the patient, [the Attorneys] knew, or should
have known, that expert witness support was necessary. [The
Attorneys’] indifference to this fact continued through the
conclusion of trial.” The court accordingly denied the special
motion to strike.
15
The Attorneys timely appealed the court’s order.
DISCUSSION
This appeal challenges only the trial court’s findings on the
second step of the anti-SLAPP analysis, as the parties agree that
the challenged claim arises from protected activity. As to the
second step, the Attorneys contend the trial court erred in
holding that Purdom had established a probability of prevailing
on his malicious prosecution claim and denying their anti-SLAPP
motion on that basis. They argue that their failure to produce
expert testimony at trial in support of Zhang’s medical
malpractice claims does not equate to a lack of probable cause in
filing or maintaining those claims. Alternatively, they assert
that they planned to have Dr. Wu supply any necessary expert
testimony, but that testimony was excluded upon objection by
Purdom. Upon de novo review, we find no error in the court’s
holding that Purdom met his second-step burden regarding a
probability of success.
A. Legal standards
Under section 425.16, “[a] cause of action arising from a
person’s act in furtherance of the ‘right of petition or free speech
under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability’ that the claim
will prevail.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788 (Monster Energy), citing § 425.16, subd. (b)(1).) As such,
the anti-SLAPP statute “provides a procedure for weeding out, at
an early stage, meritless claims arising from protected activity.”
(Baral, supra, 1 Cal.5th at p. 384.)
16
In the second step of the analysis, “‘the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success. We have described this second step as a
“summary-judgment-like procedure.” [Citation.] The court does
not weigh evidence or resolve conflicting factual claims. Its
inquiry is limited to whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient
to sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.
[Citation.] “[C]laims with the requisite minimal merit may
proceed.”’” (Monster Energy, supra, 7 Cal.5th at p. 788, quoting
Baral, supra, 1 Cal.5th at pp. 384-385, fn. omitted.)
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067 (Park).). For the second step, “a
plaintiff seeking to demonstrate the merit of the claim ‘may not
rely solely on its complaint, even if verified; instead, its proof
must be made upon competent admissible evidence.’” (Monster
Energy, supra, 7 Cal.5th at p. 788, quoting San Diegans for Open
Government v. San Diego State University Research Foundation
(2017) 13 Cal.App.5th 76, 95.)
B. Analysis
The issue on appeal is whether Purdom established a
probability of prevailing on his malicious prosecution claim. That
claim, in turn, requires the plaintiff to prove “‘that the prior
action (1) was commenced by or at the direction of the defendant
and was pursued to a legal termination in his, plaintiff’s, favor;
(2) was brought without probable cause; and (3) was initiated
with malice.’” (Zamos v. Stroud (2004) 32 Cal.4th 958, 965,
17
citations and italics omitted.) An attorney will also be held liable
for malicious prosecution “for continuing to prosecute a lawsuit
discovered to lack probable cause.” (Id. at p. 970.)
The Attorneys contend that Purdom failed to establish the
second and third elements of his malicious prosecution claim, a
lack of probable cause and malice. We examine each in the
context of the two claims alleged in Zhang’s underlying
complaint.
1. Zhang’s medical malpractice claim
a. Probable cause
“[T]he probable cause element calls on the trial court to
make an objective determination of the ‘reasonableness’ of the
defendant’s conduct, i.e., to determine whether, on the basis of
the facts known to the defendant, the institution of the prior
action was legally tenable.” (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 878 (Sheldon Appel).) The test to
determine whether a claim is tenable is an objective one, asking
“whether any reasonable attorney would have thought the claim
tenable.” (Id. at p. 886.)
Purdom alleged that the Attorneys lacked probable cause to
bring and/or maintain Zhang’s claim for medical malpractice, a
type of professional negligence. The plaintiff in a medical
malpractice claim must establish: “(1) the duty of the professional
to use such skill, prudence, and diligence as other members of his
profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent
conduct and the resulting injury; and (4) actual loss or damage
resulting from the professional’s negligence.” (Hanson v. Grode
(1999) 76 Cal.App.4th 601, 606; see also Landeros v. Flood (1976)
17 Cal.3d 399, 408 [“a physician is required to possess and
18
exercise, in both diagnosis and treatment, that reasonable degree
of knowledge and skill which is ordinarily possessed and
exercised by other members of his profession in similar
circumstances”].)
It is a longstanding rule that the testimony of an expert
witness is required in a professional negligence case to establish
the applicable standard of care, whether that standard was met
or breached by the defendant, and whether any negligence by the
defendant caused the plaintiff’s damages. (See Scott, supra, 185
Cal.App.4th at p. 1542, citing Flowers v. Torrance Memorial
Hospital Medical Center (1994) 8 Cal.4th 992, 1001 (Flowers);
accord, Landeros v. Flood, supra, 17 Cal.3d at p. 410 [“[t]he
standard of care against which the acts of a physician are to be
measured is a matter peculiarly within the knowledge of
experts”].) Thus, “expert testimony is required to ‘prove or
disprove that the defendant performed in accordance with the
standard prevailing of care’ unless the negligence is obvious to a
layperson.” (Johnson v. Superior Court (2006) 143 Cal.App.4th
297, 305; see also Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 153 [“‘Whenever
the plaintiff claims negligence in the medical context, the
plaintiff must present evidence from an expert that the defendant
breached his or her duty to the plaintiff and that the breach
caused the injury to the plaintiff.’”]; Dumas v. Cooney (1991) 235
Cal.App.3d 1593, 1603 [“‘[c]ausation must be proven within a
reasonable medical probability based upon competent expert
testimony.’”].)
The Attorneys introduced no expert testimony in Zhang’s
case-in-chief to establish the requisite elements of her
professional negligence claim. Indeed, Xu acknowledged that he
19
intentionally did not retain an expert because it was too
expensive and because he did not think it was necessary.
Without expert testimony on the standard of care, breach, and
causation, Zhang’s claim was not legally tenable. It was
therefore objectively unreasonable for the Attorneys to bring the
medical malpractice claim, and to maintain that claim through
trial, without the necessary expert support.
The Attorneys acknowledge the general rule requiring
expert testimony, but contend that this case falls within an
exception, or at least they had probable cause to believe it could.
That narrow exception exists where “the conduct required by the
particular circumstances is within the common knowledge of the
layman.” (Flowers, supra, 8 Cal.4th at p. 1001.) This exception,
however, is “principally limited to situations in which the
plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a
layperson ‘is able to say as a matter of common knowledge and
observation that the consequences of professional treatment were
not such as ordinarily would have followed if due care had been
exercised.’ The classic example, of course, is the X-ray revealing a
scalpel left in the patient’s body following surgery. Otherwise,
‘“expert evidence is conclusive and cannot be disregarded.”’”
(Ibid.; see also Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6–7
[collecting cases applying the exception where a foreign object is
left in a patient’s body during surgery].)
We are not persuaded by the Attorneys’ contention that
this exception so clearly applied to Zhang’s malpractice action
that it defeats Purdom’s claims as a matter of law. Unlike cases
in which a foreign object is left in a patient after surgery, Zhang
alleged an entirely different manner of negligence—that Purdom
based his diagnosis on a consideration of some, but not all, of her
20
medical records and history. We find no support in the “foreign
object” case law for the Attorneys’ suggestion that it is “common
knowledge” to a layperson which data a surgeon should consider
in a specific medical circumstance. Expanding the exception in
such a manner would go well beyond its current “limited” scope.
(See Flowers, supra, 8 Cal.4th at p. 1001.) Tellingly, the
Attorneys cite no authority under analogous facts. (See Ales v.
Ryan (1936) 8 Cal.2d 82, 95 [sponge left in patient’s body during
operation]; Elcome v. Chin (2003) 110 Cal.App.4th 310, 318
[rejecting the plaintiff’s argument that it was “within common
knowledge that a person should not develop injury to their neck
. . . as a result of an operation focused in the pelvic area” because
“[t]his is not a case where a foreign object was left in plaintiff’s
body following an operation, for which there is no explanation
other than that someone failed to exercise due care”]; see also
Scott, supra, 185 Cal.App.4th at p. 1543 [requiring expert
testimony to establish negligence].) Moreover, because the
probable cause question is objective, Xu’s subjective statements
that he believed no expert was required are irrelevant to this
analysis. ( See Downey Venture v. LMI Ins. Co. (1998) 66
Cal.App.4th 478, 496 [“The subjective beliefs of the defendant
attorney as to legal tenability of the action are not relevant to the
question of probable cause.”].)
We also reject the Attorneys’ contention that no expert was
needed to establish causation because any “unnecessary” surgery
causes harm. That the surgery was unnecessary in hindsight
does not amount to a pre-surgery breach of the standard of care.
Zhang did not present evidence of a breach at trial, and therefore
did not establish that Purdom caused any injury. In fact, the
only evidence at trial regarding causation was Purdom’s
21
testimony that the CT scan would not have changed his diagnosis
or recommendation. We therefore conclude that Purdom has
demonstrated a prima facie case that no reasonable attorney
would believe that Zhang’s claims could proceed without expert
support.
Assuming expert testimony was required, the Attorneys
also assert several alternative arguments. First, they contend
that they were prepared to produce the requisite testimony at
trial through Dr. Wu, but it was barred by Purdom’s objections.
They do not assert that the trial court’s order sustaining these
objections was error. Purdom presented evidence showing that
Wu was not prepared to provide the requisite expert testimony
and in fact testified at trial that she was not retained to form an
opinion as to the standard of care, breach, or damages.
Nevertheless, the Attorneys proceeded through trial without the
necessary support for Zhang’s claims. The Attorneys contend
that “Dr. Wu was prepared to opine on the Issues at trial in
support of the Patient’s case, including that Respondent breached
the duty of care, resulting in an unnecessary surgery.” But they
offer no evidence to support this assertion and to rebut Purdom’s
showing. Indeed, none of the Attorneys’ citations to the record
support their claim that Wu intended to testify as to the standard
of care or that Purdom breached it. Although Xu claimed he
made an offer of proof as to Wu’s testimony, the record does not
establish what that offer contained and the Attorneys have never
provided any declaration from Wu. In any event, we need not
resolve any conflict in the evidence, because the Attorneys’
contentions do not defeat Purdom’s claims as a matter of law.
Purdom’s showing was therefore sufficient to meet his step two
burden.
22
Second, the Attorneys claim that in order to demonstrate a
probability of prevailing, Purdom was required to show that “no
expert would conclude [Purdom] breached the duty of care.” In
other words, they argue that to establish that Zhang’s claim was
without merit, Purdom had to show that no expert in the field
would have been willing to testify that Purdom breached his duty
or caused Zhang’s injury. The Attorneys do not cite any authority
to support this novel standard, nor do they explain how a plaintiff
could possibly meet it. Instead, they rely on Area 55, LLC v.
Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, which
does not stand for this proposition. Instead, that case simply
quotes the rule that “[o]nly those actions that any reasonable
attorney would agree are totally and completely without merit
may form the basis for a malicious prosecution suit.” (Id. at p.
165, quoting Zamos, supra, 32 Cal.4th at p. 970.) Purdom met
his evidentiary burden on the second step of the anti-SLAPP
analysis by producing the evidence discussed herein, including
that the Attorneys failed to retain any experts and failed to
present evidence at trial to support Zhang’s claims.
The Attorneys also argue that focusing on their failure to
retain experts improperly shifts the probable cause inquiry from
the “objective tenability of the prior claim to the adequacy of the
particular defendant’s performance as an attorney.” (Sheldon
Appel, supra, 47 Cal.3d at p. 883.) The discussion in Sheldon
Appel is inapposite. There, the court was discussing the rule that
the extent of an attorney’s research and investigation into a claim
is irrelevant to the objective standard in a probable cause
analysis. (Ibid.) Here, the issue is not whether the Attorneys
made a misjudgment in deciding whether to retain an expert.
Rather, in circumstances where an expert is required to establish
23
elements of a claim, the analysis turns on whether a reasonable
attorney would pursue that claim without that expert evidence.
Finally, the Attorneys contend that the court’s denial of
Purdom’s motion for nonsuit at the start of trial establishes that
they had probable cause to bring these claims. In Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 824, our
Supreme Court held, “[d]enial of a defense summary judgment
motion on grounds that a triable issue exists, or of a nonsuit,
while falling short of a determination of the merits, establishes
that the plaintiff has substantiated, or can substantiate, the
elements of his or her cause of action with evidence that, if
believed, would justify a favorable verdict.” (See also Roberts v.
Sentry Life Insurance (1999) 76 Cal.App.4th 375, 384 [“denial of
defendant’s summary judgment in an earlier case normally
establishes there was probable cause to sue, thus barring a later
malicious prosecution suit”].) This rule does not conclusively
apply, however, as “there may be situations where denial of
summary judgment should not irrefutably establish probable
cause,” such as where denial of summary judgment “was induced
by materially false facts submitted in opposition.” (Roberts v.
Sentry Life Insurance, supra, 76 Cal.App.4th at p. 384.) Here,
reviewing the limited record before us, the court denied nonsuit
based on the Attorneys’ representations that they would be
introducing witnesses in their case-in-chief to testify that Purdom
breached the applicable standard of care and thereby caused
harm to Zhang. Contrary to these representations, the Attorneys
did not introduce any evidence on these issues at trial, nor is
there any evidence in the record that they had such evidence.
Under these circumstances, we do not find that the court’s denial
of nonsuit established probable cause.
24
Thus, Purdom has established a prima facie case that the
Attorneys acted without probable cause in bringing and
maintaining the professional negligence claim against him.
b. Malice
Purdom must also make a prima facie showing that the
Attorneys acted with malice in bringing or maintaining Zhang’s
negligence claim. “The ‘malice’ element of the malicious
prosecution tort relates to the subjective intent or purpose with
which the defendant acted in initiating the prior action”
(Sheldon Appel, supra, 47 Cal.3d at p. 874.) “Malice does not
require that the defendants harbor actual ill will toward the
plaintiff in the malicious prosecution case, and liability attaches
to attitudes that range ‘from open hostility to indifference.’” (Cole
v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th
1095, 1114, quoting Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 292.)
Malice may be inferred from circumstantial evidence, such
as a lack of probable cause, supplemented with proof that the
prior case was instituted largely for an improper purpose.
(Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225.) This
additional proof may consist of evidence that the prior case was
knowingly brought without probable cause or was brought to
force a settlement unrelated to its merits. (Id. at pp. 226, 228;
see also HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 218.)
Purdom contends that he has presented sufficient evidence
to make a prima facie showing that the Attorneys maintained the
medical malpractice action through trial knowingly without
probable cause. We agree. As discussed above, the Attorneys
brought and maintained Zhang’s malpractice claim without
25
probable cause. They told the trial court alternately that they
decided not to retain an expert because of the cost, that they did
not believe expert testimony was necessary, and that they had
non-retained experts who would testify as to the elements of
medical malpractice. A month before trial, when Purdom filed
his motions in limine, the Attorneys knew that he would object to
and seek to exclude expert testimony by non-retained experts.
Three days before trial, on August 6, 2021, the Attorneys
reiterated that they had non-retained expert witnesses who
would testify as to the standard of care. The court made clear
that it would allow non-retained experts to testify only as to
opinions based on information acquired independently of the
litigation, citing Schreiber, supra, 22 Cal.4th at p. 39. Despite
this directive and the case law supporting it, the Attorneys
continued to insist that they would present expert witness
testimony. On the first day of trial, August 9, 2021, Xu spoke to
Wu regarding her testimony. There is no evidence that any of the
Attorneys had spoken directly with Wu prior to this time. As
previously discussed, Wu did not testify as to the standard of
care, breach, or causation, nor have the Attorneys presented any
evidence that she intended to do so. Similarly, despite the
Attorneys’ repeated assurances, there is nothing in the record
indicating that Wu had any independently acquired knowledge
that would have allowed her to give the requisite opinions as a
non-retained expert. Indeed, in their opening brief, the Attorneys
state that the court “limited Dr. Wu’s testimony to opinions
formed on facts acquired independently of the litigation.”
The scope of permissible testimony by a non-retained
expert was not a surprise at the time of trial. At that point, the
Attorneys knew they could only present Wu’s opinions if she
26
reached them based on independently acquired facts. However,
they proceeded through the trial without supporting testimony
from Wu and without any other expert.
Taken together and viewed in the light most favorable to
Purdom, we conclude that he has established a prima facie
showing that the Attorneys acted with malice in maintaining the
malpractice claim through trial despite knowing that they did not
have the necessary evidence to prove that claim. (See Swat–
Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 634 [“While
after Sheldon Appel a lack of probable cause, standing alone, does
not support an inference of malice, malice may still be inferred
when a party knowingly brings an action without probable
cause”], overruled on other grounds in Zamos, supra, 32 Cal.4th
at p. 973; see also Daniels v. Robbins, supra, 182 Cal.App.4th at
p. 226 [holding that “malice can be inferred when a party
continues to prosecute an action after becoming aware that the
action lacks probable cause”].) Although Xu contends he believed
otherwise, we do not weigh the evidence at this stage. Thus,
Purdom has sufficiently met his burden on the second step of the
anti-SLAPP motion for Zhang’s claim for professional negligence.
2. Zhang’s medical battery claim
Although Zhang alleged a single cause of action for medical
battery, the trial court treated it as two claims, one alleging a
lack of informed consent and one alleging a battery because the
scope of the procedure performed by Purdom exceeded the scope
of Zhang’s consent. “A claim based on lack of informed consent—
which sounds in negligence—arises when the doctor performs a
procedure without first adequately disclosing the risks and
alternatives. In contrast, a battery is an intentional tort that
occurs when a doctor performs a procedure without obtaining any
27
consent.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324,
citing Conte v. Girard Orthopaedic Surgeons Medical Group, Inc.
(2003) 107 Cal.App.4th 1260, 1266.)
Both of Zhang’s claims turned on the allegation that the
procedure Purdom performed, which the Attorneys called an
“exploratory laparotomy,” was substantially different than the
one he obtained Zhang’s consent to perform, an “open laparotomy
right salpingo oophorectomy.”8 The Attorneys contend that
expert witness testimony was not necessary regarding the
differences between these surgeries, because “in today’s modern
world vast amounts of reliable information is accessible by
anyone from the palm of their hand.” The suggestion that the
factfinder at trial could or should use a smartphone to do
independent research into medical terms is nonsensical and
unprofessional. Such outside research would violate the
factfinder’s obligation to consider only the evidence presented in
court. Moreover, the suggestion that these medical terms
required research discredits the Attorneys’ argument that this
information is common lay knowledge. In the underlying action
the Attorneys did not present any evidence, expert or otherwise,
as to the difference between the procedures and whether it was
substantial. The Attorneys’ showing therefore does not defeat
Purdom’s claim as a matter of law.
We therefore conclude that Purdom has met his burden of
showing his malicious prosecution claim has “minimal merit”
8 The Attorneys repeatedly note that Purdom spoke with
Zhang in English although her preferred language was
Mandarin. However, in the underlying action Zhang neither
alleged nor proved that she did not understand the consent
discussion or form based on a language difficulty.
28
sufficient to defeat an anti-SLAPP motion. (Oasis West (2011) 51
Cal.4th 811, 825.)
DISPOSITION
The ruling denying the special motion to strike is affirmed.
Purdom is entitled to recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J.
ZUKIN, J.
29