The opinion
Filed 2/27/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
HOOMAN MELAMED, B263095
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC551415)
v.
CEDARS-SINAI MEDICAL
CENTER et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael M. Johnson, Judge. Affirmed.
Greene, Broillet & Wheeler, Mark T. Quigley,
Christian T.F. Nickerson; Esner, Chang & Boyer and
Stuart B. Esner for Plaintiff and Appellant.
Glaser Weil Fink Howard Avchen & Shapiro,
Patricia L. Glaser, Joel N. Klevens; Nossman, Mitchell J.
Green; Greines, Martin, Stein & Richland, Robin Meadow
and Jeffrey W. Raskin for Defendants and Respondents.
___________________
Dr. Hoomad Melamed (Plaintiff), a physician at
Cedars-Sinai Medical Center, operated on a 12-year-old
patient, causing complications requiring corrective surgery.
The hospital suspended Plaintiff, who requested a peer
review hearing challenging the suspension. Every level of
administrative review upheld the suspension. Plaintiff did
not seek mandamus review of these decisions. Plaintiff then
filed suit against Cedars-Sinai Medical Center (Cedars), its
medical staff, and the specific doctors involved in the
summary suspension decision. The hospital filed an anti-
SLAPP motion, contending that Plaintiff‘s claims arose out
of a protected activity—the medical staff‘s peer review
process—and that Plaintiff could not show a probability of
success on the merits. The trial court granted the motion.
We affirm.
STANDARD OF REVIEW
Known as the anti-SLAPP1 statute, section 425.16 of
the Code of Civil Procedure2 provides that a ―cause of action
against a person arising from any act of that person in
furtherance of the person‘s right of petition or free speech
1 SLAPP is the acronym for strategic lawsuit against
public participation.
2 All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.
2
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 plaintiff will prevail on the claim.‖
(§ 425.16, subd. (b)(1).)
Resolving an anti-SLAPP motion is a two-step process.
First, the trial court must determine whether the defendant
has made a prima facie showing that the challenged cause of
action arises from protected activity. (People ex rel. Fire Ins.
Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822.) If the
defendant makes that showing, the trial court proceeds to
the second step, determining whether the plaintiff has
shown a probability of prevailing on the claim.3 (Ibid.)
Subdivision (e) of section 425.16 delineates the type of
speech or petitioning activity protected. Such acts include:
―(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
3 An appellate court reviews a trial court‘s ruling on an
anti-SLAPP motion de novo, using the same two-step
process. (Coretronic Corp. v. Cozen O'Connor (2011) 192
Cal.App.4th 1381, 1387.)
3
issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in
connection with a public issue or an issue of public
interest.‖4 (§ 425.16, subd. (e).)
Courts have not precisely defined the boundaries of a
cause of action ―arising from‖ such protected activity.
(§ 425.16, subd. (b).) ―[T]he statutory phrase ‗cause of
action . . . arising from‘ means simply that the defendant‘s
act underlying the plaintiff‘s cause of action must itself have
been an act in furtherance of the right of petition or free
speech. [Citation.] In the anti-SLAPP context, the critical
point is whether the plaintiff‘s cause of action itself was
based on an act in furtherance of the defendant‘s right of
petition or free speech.‖ (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78.)
Whether the statute applies is determined from the
―principal thrust or gravamen‖ of the plaintiff‘s claim.
(Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th
181, 188.) In making these determinations, the trial court
―considers ‗the pleadings, and supporting and opposing
affidavits.‘ ‖ (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) We review the trial court‘s ruling
4 A defendant who invokes subparagraph (1) or (2)
need not ―separately demonstrate that the statement
concerned an issue of public significance.‖ (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1123.)
4
on the motion to strike independently under a de novo
standard. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We
do not weigh credibility, but accept as true the evidence
favorable to plaintiff. We evaluate the defendant‘s evidence
only to determine whether it defeats the plaintiff‘s evidence
as a matter of law. (Id. at p. 326.)
FACTUAL BACKGROUND
A. The Surgery
On July 11, 2011, Plaintiff performed elective surgery
on a 12-year-old patient for scoliosis. Plaintiff selected the
operating table and also positioned the patient on the table.
Due to the patient‘s small size, however, Plaintiff ran into
trouble during the surgery. The patient‘s back was unstable
and her pelvis dipped, which exacerbated her spinal
curvature and made the surgery extremely difficult.
Plaintiff then realized he had chosen both the wrong sized
table as well as hip and thigh pads for this patient.5
During the surgery, Plaintiff asked the nurses if he
could get much bigger pads than what he had chosen but
was told those pads were not available. He then asked a
nurse to go under the operating table to stabilize the patient.
Plaintiff also asked for a different kind of operating table but
5 Plaintiff later confirmed that he was responsible for
positioning the patient and that he had chosen the wrong
table for this sized patient. He admitted that he should have
stopped and moved her to another table before attempting to
complete the surgery. By not doing so, Plaintiff admitted he
had worsened the patient‘s condition.
5
was told the specific kind of table he had requested mid-
surgery was not available.
Although he was unable to physically stabilize his
patient, Plaintiff continued, and even expanded, the surgery.
As a result, the operation lasted eight to eleven hours, rather
than the normal three to five hours.
The surgery left the patient in far worse condition, and
she now had an exaggerated inward curvature of the lower
spine as well as abrasions on her face and body. Indeed,
Plaintiff described the deformity as ―clearly obvious‖ and
needing correction within a few days.
B. Plaintiff’s Summary Suspension
On July 13, 2011, the hospital‘s operating room
manager (Kyung Jun) visited the patient to check on the
abrasions caused by her prolonged surgery. The patient‘s
parents were present at the time. According to the parents,
Plaintiff had told them that the patient was too small for the
table he had used during the surgery, and that he needed a
special table, which the hospital did not have. Jun
reassured the parents that the hospital had the necessary
equipment for the patient‘s corrective surgery. Jun then
spoke with Plaintiff to discuss what he needed for the
upcoming surgery. Plaintiff confirmed that the hospital did
in fact have the equipment he needed for the surgery. Jun
6
emailed this information to Dr. William Brien that same
day.6
On or about July 14, 2011, Dr. Brien initiated a peer
review investigation into the surgery.7 The hospital
expedited its investigation because the patient was still
hospitalized and awaiting additional corrective surgery.
Dr. Brien called Plaintiff about the case that day. Plaintiff
confirmed he was responsible for choosing the wrong
surgical table and for positioning the patient. He also denied
complaining to anyone, including the patient‘s parents, that
the hospital did not have the appropriate surgical table
available. Plaintiff also admitted he had not yet completed
his required postoperation report.
According to Plaintiff‘s description of the call, however,
Dr. Brien began by immediately asking, ―Are you going
around the hospital and telling everyone that Cedars doesn‘t
have the capability to do this case?‖ Plaintiff says he told
Dr. Brien that it had been difficult to stabilize the patient
due to the inadequate table and pads, and that if the correct
equipment had been available, the patient would have had a
successful surgical outcome.
Dr. Brien consulted with the chairman of Department
of Surgery, who concurred that Plaintiff posed an immediate
6Dr. Brien was the director of Cedars-Sinai‘s
Orthopedics Center and executive vice chairman for the
department of surgery at that time.
7 An operating room nurse also filed an incident report
online.
7
and imminent risk to hospital patients, especially since
Plaintiff had chosen to continue surgery on his 12-year-old
patient even though he could not stabilize her body, and
would have to perform corrective surgery on her within the
next few days.
On July 15, 2011, Cedars summarily suspended
Plaintiff‘s medical staff privileges. As required, the hospital
provided Plaintiff with a notice of action, advising Plaintiff of
the charges and his hearing rights. The hospital based the
summary suspension on the surgery, which raised ―concerns
regarding [Plaintiff‘s] judgment, technical skill, and
competency in managing scoliosis cases.‖ These concerns
were based on his choice of the wrong table for the patient‘s
size and procedure, his failure to adequately stabilize the
patient, and his continued attempts to manipulate the
patient‘s spine despite his inability to stabilize her. In
addition, the notice stated, ―the surgery lasted in excess of
11 hours, which apparently contributed to the pressure
areas that the patient sustained.‖
That same day, Plaintiff belatedly dictated his
operative report.8 The report noted the difficulty Plaintiff
had during the surgery. It also noted that Plaintiff had
asked for a different table and pads during the surgery but
was told they were not immediately available.
8 Operative reports are routine reports that become
part of the patient‘s medical record. Surgeons must file
these reports within 24 hours of all procedures.
8
On July 21, 2011, Plaintiff‘s attorney wrote the
hospital, challenging the summary suspension. The letter
did not criticize the hospital for failing to provide a different
table and pads once Plaintiff realized he had chosen the
wrong equipment. Instead, it stated that the table chosen by
Plaintiff was in fact medically appropriate for this type of
surgical procedure, noting that the surgeon who
subsequently operated on the 12-year-old patient had used
the same table. Notably, the letter did not contend that the
hospital had suspended Plaintiff in retaliation for any
complaints.
On July 27, 2011, Plaintiff filed a petition for
mandamus and a TRO to set aside the summary suspension.
As with the letter from Plaintiff‘s counsel, these filings did
not suggest Plaintiff was concerned with equipment safety or
believed he had been suspended in retaliation for any
complaints.9 Instead, Plaintiff‘s primary challenge focused
upon his suspension by a hospital administrator rather than
a peer review committee.10 On August 1, 2011, the hospital
9 Indeed, Plaintiff repeated his prior claim that the
operating table he had used was medically appropriate for
the type of surgery he had conducted, and was used during
the patient‘s corrective surgery. Plaintiff also maintained
that the patient was stabilized when the operation began
and remained stabilized for a significant period of time
during the procedure.
Plaintiff voluntarily dismissed the petition on
10
November 4, 2011.
9
reported Plaintiff‘s summary suspension to the state medical
board and the National Practitioner Data Bank as required
by law.
C. The Peer Review Hearing
On August 29, 2011, Plaintiff requested a peer review
hearing to challenge his summary suspension. The hospital
issued an amended notice of action, lifting the suspension as
to adult patients. It maintained the suspension with respect
to pediatric patients. The evidentiary portion of the peer
review hearing lasted from September 2012 to November
2013. The hearing committee heard from 17 witnesses and
had 60 exhibits at its disposal. As before, Plaintiff did not
contend he had complained to the hospital about available
equipment or patient safety. Nor did he contend that his
summary suspension or his peer review hearing were
retaliation for making that complaint.
The hearing committee issued its report on January 13,
2014. The committee found that the Department of Surgery
had ―acted reasonably in conducting an investigation of the
case‖ due to the ―unsatisfactory correction of the patient‘s
spinal curvature and the harm to the patient of a worsened
post-surgical spinal curvature, pressure sores, an extended
fusion, a prolonged hospitalization and a second surgery.‖
Based on this evidence, the hearing committee found
that Plaintiff‘s summary suspension had been reasonable
and warranted. However, the committee concluded that
terminating Plaintiff‘s clinical privileges to treat pediatric,
10
adolescent and adult scoliosis was not reasonable or
warranted.11
Plaintiff appealed the hearing committee‘s decision to
uphold the summary suspension.12 Plaintiff‘s appeal did not
claim that the hospital had suspended Plaintiff for any
retaliatory reasons. Each level of review upheld the hearing
committee‘s finding Plaintiff‘s summary suspension
reasonable and warranted. Plaintiff did not seek mandamus
review of this decision.
D. Plaintiff’s Subsequent Lawsuit
Plaintiff filed suit on July 11, 2014—exactly three
years after the surgery. On July 21, 2014, Plaintiff filed a
first amended complaint (FAC), the operative complaint in
this case, against Cedars-Sinai Medical Center, its medical
staff, and the specific doctors involved in the summary
suspension decision.13 For the first time, Plaintiff alleged
11Nevertheless, the committee found it would be
reasonable and warranted for the medical executive
committee to authorize a prospective review of the clinical
management of Plaintiff‘s pediatric and adolescent scoliosis
cases.
12 Plaintiff had three levels of review available to him
after the hearing committee issued its ruling: the medical
executive committee (first level), the appeal committee
(second level), and the board of directors (final level).
13 Defendants are collectively referred to as ―the
hospital‖ or ―Defendants.‖
11
that the hospital‘s actions were taken in retaliation after
Plaintiff had complained about patient safety at the facility.
Centered on this allegation, the FAC presented seven
causes of action: (1) violation of Health and Safety Code
section 1278.5, (2) tortious interference with prospective
economic relations, (3) tortious interference with contractual
relations, (4) unfair competition in violation of Business and
Professions Code section 17200 et seq., (5) violation of
Business and Professions Code section 16700 et seq.,
(6) violation of Business and Professions Code sections 510
and 2056, and (7) wrongful termination of hospital
privileges.
The hospital filed an anti-SLAPP motion, contending
that Plaintiff‘s claims arose out of a protected activity—the
medical staff‘s peer review process—and that Plaintiff could
not show a probability of success on the merits. According to
the hospital, Plaintiff‘ could not prevail on his claims
because they were barred by the statute of limitations.
Moreover, Plaintiff had failed to exhaust his judicial
remedies and could not establish a prima facie case of
retaliation.
THE TRIAL COURT’S RULING
As correctly noted by the trial court, an anti-SLAPP
motion involves a two-step process: ―(1) the defendant must
establish that the challenged causes of action arise from
protected activity; and (2) if the defendant makes this
showing, the burden shifts to the plaintiff to establish a
probability of success on the merits.‖
12
With respect to the first step, the court found that ―[a]ll
of Plaintiff‘s causes of action are based on the allegations
that he made reports of unsafe and substandard hospital
conditions and services that posed a threat to patients.‖
Plaintiff also contended that ―Defendants responded to this
action by summarily suspending his medical staff privileges,
reporting the summary suspension to state authorities, and
subjecting Plaintiff to a protracted and unfair peer review
process.‖
Citing Kibler v. Northern Inyo County Local Hosp. Dist.
(2006) 39 Cal.4th 192, 198 (Kibler), and Nesson v. Northern
Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65,
78 (Nesson), the court found that Plaintiff‘s allegations all
related and arose from the hospital‘s peer review
proceedings, which qualified as an ―official proceeding
authorized by law‖ and thus constituted protected activity
under section 425.16, subdivision (e)(2).14 Because Plaintiff‘s
claim arose from Defendants‘ protected activity, the burden
shifted to Plaintiff to submit admissible evidence supporting
a prima facie case in his favor. However, Plaintiff could not
14 Plaintiff argued that his claims did not arise from
Defendants‘ protected activity because the hospital‘s peer
review process proceedings were not the exclusive basis for
his claims. The court rejected this argument, finding that
the gravamen or principal thrust of Plaintiff‘s claims focused
on the peer review process, including the hospital‘s decision
to suspend his staff privileges, report the suspension to state
authorities, and subject Plaintiff to a protracted and unfair
peer review process.
13
establish a probability of success on the merits on any of his
seven claims.
A. Plaintiff’s First Claim
Health and Safety Code section 1278.5 provides, in
relevant part, that ―[n]o health facility shall discriminate or
retaliate, in any manner, against any . . . member of the
medical staff‖ because that person has ―[p]resented a
grievance, complaint, or report to the facility . . . or the
medical staff of the facility‖ or ―[h]as initiated, participated,
or cooperated in an investigation or administrative
proceeding related to, the quality of care, services, or
conditions at the facility that is carried out by an entity or
agency responsible for accrediting or evaluating the facility.‖
(Health & Saf. Code, § 1278.5, subd. (b)(1)(A)-(B).)
The statute expressly provides a rebuttable
presumption that discriminatory action was taken by the
health facility in retaliation against a member of the medical
staff if responsible staff at the facility knew about the
medical staff member‘s actions and the discriminatory
treatment occurred within 120 days of the medical staff
member filing a grievance or complaint.15 (Health & Saf.
Code, § 1278.5, subd. (d)(1).)
15 Discriminatory treatment includes ―demotion,
suspension, or any unfavorable changes in, or breach of, the
terms or conditions of a contract, employment, or privileges
of the . . . medical staff member, . . . or the threat of any of
these actions.‖ (Health & Saf. Code, § 1278.5, subd. (d)(2).)
14
With respect to Plaintiff‘s first claim, the court found
that Plaintiff had failed to submit a sufficiently explicit
complaint regarding improper or inadequate procedures at
the hospital. Thus, Plaintiff could not show, as required by
Health and Safety Code section 1278.5, subd. (b)(1)(A)-(B),
that he had filed ―a grievance, complaint, or report‖
regarding ―the quality of care, services, or conditions at the
facility.‖
Although the hospital had two channels for reporting
safety and quality concerns, Plaintiff did not use either one.
Instead, he ―merely reported his surgical procedures and
complications to the parents of his patient and in his post-
operation surgical report.‖ While protected activity does not
require a formal procedure, the court observed, ―it at least
requires a clear communication that puts the employer on
notice as to what wrongful conduct it should investigate or
correct.‖ Plaintiff‘s routine postsurgical reports did not meet
this standard.
Even if Plaintiff‘s postsurgical reports did meet the
statutory notice requirements, the court found he could not
show a causal connection between this protected activity and
the hospital‘s allegedly retaliatory conduct. Although
Plaintiff contended that the hospital initiated the peer
review process based on his complaints, the court found this
was not the case. Instead, the hospital began the process
because of a complaint that a surgical manager made
against Plaintiff. Indeed, Plaintiff‘s postsurgical report was
not transcribed, let alone received by the hospital until after
15
Defendants had initiated the peer review process.16 Thus, in
addition to failing to present a sufficiently detailed grievance
regarding conditions at the hospital. Plaintiff could not
establish a presumption of retaliation under Health and
Safety Code section 1278.5, subdivision (d)(1).
B. Plaintiff’s Remaining Claims
The trial court also held that Plaintiff did not show a
reasonable probability that he could succeed on his
remaining causes of action. Citing Westlake Community
Hosp. v. Superior Court (1976) 17 Cal.3d 465,469 (Westlake),
the court found that although the claims were expressly
based on Plaintiff‘s summary suspension and the hospital‘s
peer review process, Plaintiff had not attempted to overturn
any aspect of the peer review determinations in a mandamus
action.17 Consequently, these claims were barred for failure
to exhaust judicial remedies.
16 The hospital began its peer review process on
July 14, 2011. Plaintiff dictated his postsurgical report that
same day. Plaintiff‘s report was not transcribed until
July 15, 2011. Until it was transcribed, the report was not
available to anyone at the hospital.
17 Plaintiff argued that judicial exhaustion was not
required because many of the peer review determinations
were in his favor, but the court found that this argument
greatly misstated his case. Furthermore, although Plaintiff
repeatedly asserted that the peer review process had been
protracted and unfair, he never petitioned for mandamus on
the ground that he did not receive a fair hearing.
16
DISCUSSION
We review the trial court‘s ruling on the motion to
strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299,
325.) Thus, we must determine whether Defendants have
made a prima facie showing that the challenged cause of
action arises from the hospital‘s protected activity. (People
ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th
809, 822.) If Defendants have made that showing, we then
proceed to the second step, determining whether Plaintiff
has shown a probability of prevailing on his claims. (Ibid.)
I. The Hospital Engaged in Protected Activity
In Kibler, supra, 39 Cal.4th at page 198, our Supreme
Court held that an anti-SLAPP motion was available to a
hospital and its medical staff regarding their actions in a
peer review proceeding where the disciplined physician later
sued for interference with his practice of medicine. There,
the hospital summarily suspended the physician‘s staff
privileges for two weeks, but reinstated them after he agreed
to refrain from certain behaviors. (Id. at p. 196.) Kibler
reasoned that a lawsuit arising from a peer review
proceeding is subject to a special motion to strike because it
qualifies as ― ‗any other official proceeding authorized by
law‘ ‖ pursuant to section 425.16, subdivision (e)(2). (Id. at
p. 198; DeCambre v. Rady Children’s Hospital-San Diego
(2015) 235 Cal.App.4th 1, 14 [applying Kibler to anti-SLAPP
motion filed by hospital in lawsuit arising from peer review
proceedings].)
17
In so holding, the court relied on three considerations.
First, peer review proceedings are required of hospitals and
heavily regulated. (Kibler, supra, 39 Cal.4th at pp. 199–
200.) Second, because hospitals are required to report the
results of peer review proceedings to the state medical board,
peer review proceedings play a ―significant role‖ in aiding
the appropriate state licensing boards in their responsibility
to regulate and discipline errant practitioners. (Id. at
p. 200.) Third, ―[a] hospital‘s decisions resulting from peer
review proceedings are subject to judicial review by
administrative mandate. [Citation.] Thus, the Legislature
has accorded a hospital‘s peer review decisions a status
comparable to that of quasi-judicial public agencies whose
decisions likewise are reviewable by administrative
mandate.‖18 (Ibid.) As such, peer review proceedings
constitute ―official proceedings authorized by law‖ under
section 425.16, subdivision (e)(2). To hold otherwise would
discourage participation in medical peer reviews by allowing
disciplined physicians to sue hospitals and their peer review
committee members rather than seeking administrative
relief. (Ibid.)
The Court of Appeal reached a similar result in Nesson,
supra, 204 Cal.App.4th 65 (revd. in part on other grounds in
18Because peer review decisions are reviewable by
administrative mandate, Plaintiff‘s reliance on Donovan v.
Dan Murphy Foundation (2012) 204 Cal.App.4th 1500, 1508
(conduct was not protected activity under § 425.16 because it
was not subject to judicial review) is misplaced.
18
Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th
655 (Fahlen)). In Nesson, a radiologist sued a hospital for
breach of contract, retaliation, and discrimination after the
medical executive committee summarily suspended his
medical staff privileges and the hospital terminated his
contract to provide radiology services. (Nesson, at p. 72.)
The hospital filed a special motion to strike under the anti-
SLAPP statute, arguing the complaint targeted a protected
activity and that the radiologist could not demonstrate a
probability of success on the merits given that he had not
exhausted his administrative or judicial remedies. (Id. at
p. 75.) The trial court granted the hospital‘s motion, and the
radiologist appealed, contending that his summary
suspension and subsequent termination did not constitute
protected activity. (Id. at pp. 76, 78.)
The Court of Appeal affirmed the dismissal. The court
characterized Kibler, supra, 39 Cal.4th 192 as holding that
hospital peer review proceedings, including the discipline
imposed upon a physician, constitute official proceedings
authorized by law. (Id. at p. 78.) The gravamen of each
cause of action asserted by Nesson was that the hospital
―somehow acted wrongfully when it terminated the
[radiology service agreement] because Nesson‘s privileges
were summarily suspended, as he was deemed by the
[medical executive committee] to be a likely imminent
danger to patient safety.‖ (Id. at p. 83.)
Plaintiff‘s attempt to distinguish Kibler, supra, 39
Cal.4th 192 is unavailing. Plaintiff maintains that his
19
claims, unlike the claims in Kibler, concern retaliation by
defendants in violation of a specific statute that precludes
such conduct. However, ―the first step of the anti-SLAPP
analysis focuses on the acts the plaintiff alleges as the basis
for his or her claims, not the motive or purpose the plaintiff
attributes to the defendant‘s acts; the first step considers
whether those acts constitute acts in furtherance of the
constitutional rights of free speech or petition.‖ (Collier v.
Harris (2015) 240 Cal.App.4th 41, 53–54.)
Indeed, ― ‗[a]ny ―claimed illegitimacy of the defendant‘s
acts is an issue which the plaintiff must raise and support in
the context of the discharge of the plaintiff‘s [secondary]
burden to provide a prima facie showing of the merits of the
plaintiff‘s case.‖ ‘ ‖ (Collier v. Harris, supra, 240 Cal.App.4th
at p. 54, italics added.) Thus, even if Plaintiff‘s case differs
from Kibler, supra, 39 Cal.4th 192 in this respect, it is
immaterial when analyzing the first step, determining
whether Plaintiff‘s cause of action arises from the hospital‘s
protected activity.
Plaintiff‘s attempt to distinguish Nesson, supra, 204
Cal.App.4th 65 is similarly unavailing. Although Fahlen,
supra, 58 Cal.4th 655 did disapprove one portion of Nesson,
this holding does not affect our first step analysis. Fahlen
held that a ―hospital staff physician who claims a hospital
decision to restrict or terminate his or her staff privileges
was an act in retaliation for his or her whistleblowing in
furtherance of patient care and safety need not seek and
obtain a mandamus petition to overturn the decision before
20
filing suit under [Health and Safety Code] section 1278.5.‖19
(Id. at p. 687.) To the extent Nesson was inconsistent with
this particular conclusion, the decision was disapproved.
(Fahlen, at p. 687.) However, this holding is relevant only at
the second step of our review, when we examine whether a
plaintiff‘s failure to exhaust alternative remedies precludes
us from reaching the merits of a claim. (Westlake, supra, 17
Cal.3d 465.)
Nevertheless, Plaintiff maintains ―[t]his is not a
situation where the plaintiff is claiming that a statement
made during the process was defamatory; or that the process
itself was not fair, as in Kibler[, supra, 39 Cal.4th 192.]‖ Nor
is this ―a situation where the claim arises out of the process
itself, as in Nesson[, supra, 204 Cal.App.4th 65.]‖ In short,
Plaintiff, insists, the decision to institute proceedings
against Plaintiff and what occurred during those proceedings
are legally distinct concepts. According to Plaintiff, the
decision to institute proceedings is not a reviewable aspect of
the peer review process.
However, here, as in Kibler, supra, 39 Cal.4th 192,
Plaintiff‘s causes of action arise out of the hospital‘s peer
review process in relation to a summary suspension.
Moreover, the act of summarily suspending Plaintiff is a part
19 The Fourth District has since held that a physician
need not complete the internal peer review process before
filing a Health and Safety Code section 1278.5 action either.
(Armin v. Riverside Community Hospital (2016) 5
Cal.App.5th 810, 814.)
21
of the peer review process, as set forth in the hospital‘s
bylaws, and as analyzed by the Supreme Court in Kibler.20
20 Thus, this case is distinguishable from McConnell v.
Innovative Artists Talent and Literary Agency, Inc. (2009)
175 Cal.App.4th 169. In McConnell, two talent agents sued
their employer, alleging their employment contracts
contained illegal provisions. The next day, the employer had
plaintiffs escorted from the office and sent them letters
― ‗temporarily modifying‘ ‖ their job duties and instructing
them not to come to the office, not to use company e-mail,
not to attend any client or industry functions, and not to
have telephone conversations or communications with
clients or other employees. (Id. at p. 172.) Plaintiffs then
amended their lawsuit to add retaliation and wrongful
termination claims. (Ibid.) The employer filed a special
motion to strike under the anti-SLAPP statute. (Id. at
p. 172.) The trial court denied the motion, finding the two
claims did not arise from protected activity. Division Eight
of our court affirmed, holding that plaintiffs‘ claims did not
arise from the employer‘s letter, but from its action
― ‗temporarily modifying‘ ‖ plaintiffs‘ job duties, effectively
precluding them from engaging in any of the ordinary
activities of a talent agent. (Id. at p. 176.) ―The fact that
these ‗modifications‘ . . . were reduced to writing [did] not
convert them from conduct affecting the conditions of
employment to protected free speech activity.‖ (Ibid.) In
short, the plaintiffs‘ retaliation and wrongful termination
claims did not arise from any protected activity. Here,
however, the complained-of conduct (the summary
suspension) was an integral part of the protected activity
(the peer review process). Thus, in this case, Plaintiff‘s
claims do arise from protected activity.
22
Indeed, Kibler expressly held that the peer review summary
suspension was protected conduct because it is a component
of an official proceeding, subject to judicial review by
administrative mandate, that hospitals have been tasked
with in order to monitor the professional conduct of
physicians licensed in California. (Id. at pp. 198–201.) Like
the plaintiff in Kibler, Plaintiff was suspended through the
hospital‘s peer review process. The hospital‘s suspension of
Plaintiff is likewise protected conduct. Thus, Defendants‘
acts relating to Plaintiff‘s suspension and peer review
process constituted protected activity for purposes of the
anti-SLAPP statute and Plaintiff‘s claims arise from that
protected activity.21
II Plaintiff Cannot Show a Probability of Success
Once a defendant makes a prima facie showing that
the anti-SLAPP statute is applicable to the conduct or
21 Although Plaintiff contends that an anti–SLAPP
motion cannot be granted as to causes of action that contain
allegations of both protected and unprotected activity, as
discussed above, Plaintiff‘s complaint does not contain mixed
causes of action. Moreover, the California Supreme Court
recently rejected this notion. ―The anti-SLAPP procedures
are designed to shield a defendant‘s constitutionally
protected conduct from the undue burden of frivolous
litigation.‖ (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) ―It
follows, then, that courts may rule on plaintiffs‘ specific
claims of protected activity, rather than reward artful
pleading by ignoring such claims if they are mixed with
assertions of unprotected activity.‖ (Ibid.)
23
speech at issue, the burden shifts to the plaintiff to establish
a ―probability‖ that plaintiff will prevail on whatever claims
are asserted against the defendant. (§ 425.16, subd. (b)(1).)
The plaintiff ― ‗ ―must demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima
facie showing of facts to sustain a favorable judgment.‖ ‘ ‖
(Premier Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)
As noted above, ― ‗[w]e consider ―the pleadings, and
supporting and opposing affidavits . . . upon which the
liability or defense is based.‖ . . . However, we neither ―weigh
credibility [nor] compare the weight of the evidence. Rather,
[we] accept as true the evidence favorable to the
plaintiff . . . and evaluate the defendant‘s evidence only to
determine if it has defeated that submitted by the plaintiff
as a matter of law.‖ ‘ ‖ (Nygård, Inc. v. Uusi–Kerttula (2008)
159 Cal.App.4th 1027, 1036.)
With respect to Plaintiff‘s first claim, Defendants
contend that the claim must fail because it was filed past the
applicable two-year statute of limitations. Defendants also
contend that even if a three-year statute of limitations
applies here, which would render the claim timely, Plaintiff
cannot establish a prima face case for this claim and thus
cannot prevail. With respect to Plaintiff‘s remaining claims,
Defendants contend that Plaintiff failed to exhaust his
judicial remedies and thus cannot prevail on his remaining
claims.
24
III. Plaintiff’s First Claim
A. Statute of Limitations
Plaintiff filed his FAC on July 21, 2014. This was
nearly three years after the hospital suspended him and
reported the suspension to the medical board as well as the
National Practitioner‘s Data Bank.
Health and Safety Code section 1278.5 does not specify
a time period in which a claim for a violation of the statute
must be filed.22 Plaintiff contends the three-year statute of
limitations in Code of Civil Procedure section 338,
subdivision (a) applies, while Defendants argue that the two-
year time limit in Code of Civil Procedure section 335.1
should be used here. Under section 338, subdivision (a),
―[a]n action upon a liability created by statute, other than a
penalty or forfeiture‖ must be brought within three years.
Under section 335.1, which addresses the time for
commencing general tort claims, a plaintiff has two years to
file suit. No California appellate case has addressed the
issue. Nor did the trial court in this case.
However, it actually appears that a one-year statute of
limitations may be appropriate here. Section 340 specifies a
limitations period of one year for an action upon a statute for
a penalty, unless the statute imposing the penalty prescribes
22 At least one state whistleblower statute specifies a
statute of limitations. Government Code section 12653,
subdivision (c) provides that an action brought under this
code section is subject to a three-year statute of limitations
running from the date of the alleged retaliation.
25
a different limitation. (§ 340, subd. (a).) A penalty is
mandatory under Health and Safety Code section 1278.5,
subdivision (b)(3), which states that ―a violation of this
section shall be subject to a civil penalty‖ of not more than
$25,000. (Italics added.) The statute‘s legislative history
supports the proposition that Health and Safety Code section
1278.5 is a statute for a penalty. (See Sen. Health & Human
Servs. Com., Analysis of Sen. Bill No. 97 (1999–2000 Reg.
Sess.) March 10, 1999, p. 2 [bill ―requires a health facility
that violates this provision to be subject to a civil penalty‖];
see also Assem. Com. on Health, Analysis of Assem. Bill
No. 632 (2007–2008 Reg. Sess.) April 10, 2007, p. 1 [although
existing law subjects a health facility to civil penalty, this
bill extends penalty provision to health facilities that
retaliate against physicians].)
Thus, even if the FAC does not address whether
Plaintiff seeks to recover the mandatory civil penalty
imposed by Health and Safety Code section 1278.5,
subdivision (b)(3), Plaintiff‘s first cause of action is still an
action upon a statute for a penalty.23 Neither Plaintiff nor
23 See Minor v. FedEx Office & Print Services (N.D.Cal.
Apr. 25, 2016) 182 F.Supp.3d 966, 988–989 (examining a
different state whistleblower protection law and noting that,
under California law, retaliation claims are governed by the
three-year statute of limitations for an action upon a liability
created by statute, other than a penalty; but if the suit seeks
a civil penalty under the whistleblower statute, then the
claim is subject to the one-year limitations period for an
action upon a statute for a penalty).
26
Defendants briefed the applicability of Code of Civil
Procedure section 340 to this case. Furthermore, as
discussed below, Plaintiff cannot establish a prima face case
for this particular claim. Consequently, we need not, and do
not, decide which limitations period is appropriate here.
B. Plaintiff Cannot Establish a Prima Facie
Case
To establish a prima facie case under Health and
Safety Code section 1278.5, Plaintiff must satisfy three
elements and show that he (1) ―[p]resented a grievance,
complaint, or report‖ to the hospital or medical staff
(2) regarding the quality of patient care and; (3) the hospital
retaliated against him for doing so. (Health & Saf. Code,
§ 1278.5; Fahlen, supra, 58 Cal.4th at p. 667, fn. 6 [although
statute does not explicitly state ―grievance, complaint, or
report‖ must involve concerns about quality of patient care,
limitation is implicit in other provisions of statute].)
With respect to the first element, the trial court found
that although the hospital had two channels for reporting
safety and quality concerns, Plaintiff did not use either
one.24 Instead, he ―merely reported his surgical procedures
24 The hospital has two formal systems—the MIDAS
Event Reporting System and MD Feedback—which allow
medical staff members ―to report any event or occurrence
that could be inconsistent with the provision of high quality
patient care, or any event that could adversely affect the
health or safety of patients.‖ It is undisputed that Plaintiff
did not file a report using either system. In fact, other
hospital staff members submitted MIDAS reports (and sent
27
and complications to the parents of his patient and in his
post-operation surgical report.‖ While reporting such
concerns does not require a formal procedure, ―it at least
requires a clear communication that puts the employer on
notice as to what wrongful conduct it should investigate or
correct.‖25 Plaintiff‘s routine postsurgical reports did not
meet this standard.
Plaintiff‘s other purported communications suffer from
the same deficiency. Asking a nurse mid-surgery if larger
pads or a different operating table were available did not
constitute whistleblowing. Plaintiff made his requests after
realizing he had made a mistake in his operating room
choices. Thus, Plaintiff‘s mid-surgery request did not, and
indeed could not, alert the hospital that it needed to
investigate and correct a problem with the facility itself.
Plaintiff‘s postsurgery conversation with the patient‘s
parents also proves inadequate. Statements must be made
to ―the facility, to an entity or agency responsible for
accrediting or evaluating the facility, or the medical staff of
the facility, or to any other governmental entity‖ in order to
emails to management) outlining their concerns with the
surgery, especially the dermal abrasions the patient had
suffered as a result. Thus, Plaintiff was the subject of safety
concerns, not its champion.
25 See, e.g., Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1047 (―vague or conclusory remarks that fail to
put an employer on notice as to what conduct it should
investigate will not suffice to establish protected conduct‖).
28
be protected under the statute. (Health & Saf. Code,
§ 1278.5, subd. (b)(1)(A).) Plaintiff‘s conversation with the
parents clearly does not fall under the statute.
Nevertheless, Plaintiff maintains that Dr. Brien later
learned about the conversation, thus transforming it into a
protected complaint. Dr. Brien received an email informing
him that Plaintiff had told the parents that the patient was
too small for the table he had used during the surgery, and
that he needed a special table, which the hospital did not
have. Furthermore, according to the email, Plaintiff later
assured the hospital that it did in fact have the equipment
needed for the patient‘s upcoming surgery. Thus, rather
than put his employer on notice as to what wrongful conduct
it should investigate or correct, Plaintiff informed the
hospital it did not have an equipment problem to remedy.26
This cannot suffice as a protected complaint.
Nor can Plaintiff‘s postoperation report be deemed a
protected complaint. An operative report must be
documented within 24 hours for all patients following any
inpatient or outpatient procedure. They are considered part
of a patient‘s medical record and are not accessed by the
hospital‘s leadership or administration ―unless a specific
question about quality, payment, or other health care
operations has arisen.‖ They are not used to alert the
26 Indeed, when directly questioned by Dr. Brien,
Plaintiff denied telling the parents that the hospital did not
have the appropriate surgical table available.
29
hospital or its leadership about suspected unsafe patient
conditions or quality of care concerns.
Furthermore, neither the content nor the timing of the
report supports Plaintiff‘s contention that it constituted a
―grievance, complaint, or report‖ under Health and Safety
Code section 1278.5. In the report, Plaintiff noted his
unsuccessful mid-surgery request for larger pads and a
different table. Just before filing the report, however,
Plaintiff admitted that he had underestimated the patient‘s
small size and had chosen the wrong table as a result.27
The timing of the report also undercuts Plaintiff‘s
claim. Although the surgery took place on July 11, 2011, the
report was not dictated until July 14, 2011, and was not
transcribed until July 15, 201. Until an operative report is
transcribed, it is not documented and is not available for
viewing by anyone. By the time Plaintiff‘s report was
transcribed, the hospital had already heard from other staff
members concerned about the prolonged surgery. These
concerns, rather than the belated and non-accusatory
operative report, triggered the inquiry that caused Plaintiff‘s
summary suspension. Thus, the report cannot suffice as a
protected complaint and the hospital‘s decision to suspend
Plaintiff cannot be deemed retaliatory.
27 Plaintiff would later reverse course and maintain
that the table he had chosen was in fact medically
appropriate for this type of procedure. Neither course
blamed the hospital for the surgery‘s poor outcome, however.
30
C. Plaintiff’s Remaining Claims
In Westlake, supra, 17 Cal.3d 465, our Supreme Court
held that the exhaustion of administrative remedies doctrine
applies to hospital peer review proceedings. Thus, ―before a
doctor may initiate litigation challenging the propriety of a
hospital‘s denial or withdrawal of privileges, he must
exhaust the available internal remedies afforded by the
hospital.‖ (Id. at p. 469.)
Furthermore, ―whenever a hospital, pursuant to a
quasi-judicial proceeding, reaches a decision to deny staff
privileges, an aggrieved doctor must first succeed in setting
aside the quasi-judicial decision in a mandamus action
before he may institute a tort action for damages.‖28
(Westlake, supra, 17 Cal.3d at p. 469.) Once a court
determines the hospital‘s quasi-judicial decision to be
improper in a mandate action, the ―excluded doctor may
proceed in tort against the hospital, its board or committee
members or any others legally responsible for the denial of
staff privileges.‖ (Ibid.)
In sum, before filing suit, Plaintiff had to exhaust both
his administrative remedies (by undergoing the peer review
process) and his judicial remedies (by seeking mandamus
review of the peer review determinations).
Plaintiff repeatedly claims he emerged the victor in the
peer review process and that judicial exhaustion was not
28 Plaintiff‘s first claim is exempt from the exhaustion
requirement. (Fahlen, supra, 58 Cal.4th 655, 687; Armin v.
Riverside Community Hospital, supra, 5 Cal.App.5th 810.)
31
required because ―there were no rulings he would want set
aside‖ and ―pursuing anything further would have been
moot.‖ However, Plaintiff also agrees, as he must, that the
peer review process yielded at least one adverse finding—
that his initial suspension was reasonable and warranted.
Indeed, each level of review found this to be the case. As
Plaintiff admits, and alleges in his complaint, this holding
had real world consequences. Plaintiff‘s suspension was
reported to the medical board and National Practitioner‘s
Data Bank, which, in turn, damaged his reputation and
career. Although Plaintiff appealed this determination
throughout the peer review process, he did not seek
mandamus review of this holding. Therefore, he may not
challenge it now.
Nevertheless, Plaintiff notes that the parties did not
litigate whether the hospital‘s decision to suspend Plaintiff
was retaliatory. Indeed, they could not since Plaintiff failed
to raise the allegation during the peer review process.
Therefore, Plaintiff contends, judicial exhaustion has no
application here. Westlake, supra, 17 Cal.3d 465 holds
otherwise. (Id. at p.484 [―so long as such a quasi-judicial
decision is not set aside . . . the decision has the effect of
establishing the propriety of the hospital‘s action‖].)
32
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
CHANEY, Acting P. J.
LUI, J.
33