The opinion
Filed 1/9/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CENTRAL VALLEY HOSPITALISTS,
Plaintiff and Respondent,
v. A148742
DIGNITY HEALTH, (San Francisco County
Defendant and Appellant. Super. Ct. No. CGC15549691)
The anti-SLAPP dismissal process has been described as manifesting the
“ ‘Legislature’s objective of providing a quick and inexpensive method for unmasking
and dismissing’ ” unmeritorious cases. (Sylmar Air Conditioning v. Pueblo Contracting
Services, Inc. (2004) 122 Cal.App.4th 1049, 1055–1056.) And it has accomplished that
salutary objective, allowing the early dismissal of cases coming within anti-SLAPP on
which plaintiff cannot prevail.
At the same time, the anti-SLAPP process has been criticized in some respects,
including by this court in Grewal v. Jammu (2011) 191 Cal.App.4th 977 (Grewal), where
we discussed for several pages particular “ways in which the anti-SLAPP procedure is
being misused—and abused.” (Id. at pp. 998–999.) We ended our opinion with a section
entitled “A Losing Defendant’s Right to Appeal Is the Aspect of the Anti-SLAPP Statute
Most Subject to Abuse,” describing how an unmeritorious—if not frivolous—appeal will
result in an inordinate delay of the plaintiff’s case and unnecessary legal fees. We noted
we were not the first court to recognize possible misuse of anti-SLAPP. (See Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th. 180, 195.) And we were certainly not
the last. (See, e.g., Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174,
1184–1187.)
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Here, we consider an appeal that once again warrants criticism about such abuse,
in a setting where defendant seeks to extend SLAPP where it has never gone before.
Plaintiff, a group of doctors, sued defendant hospital, alleging five causes of action
essentially for unfair business practices and interference, a complaint that expressly
alleged it was not based on any “wrongs or facts arising from any peer review activities.”
The complaint was conclusory in nature, with little factual support alleged, a complaint, it
developed, that would not withstand demurrer. Disregarding the express pleading,
defendant filed an anti-SLAPP motion, contending that while plaintiff did not state a
claim, to the extent it could it had to be based on peer review—and thus on protected
activity. Defendant also filed a demurrer, which was ultimately stipulated to while the
SLAPP motion was under submission.
The trial court denied the SLAPP motion, in a thoughtful, comprehensive—and
manifestly correct—order, that concluded with this: “Since the stipulated . . . order
[sustaining the demurrer] provides for [plaintiff] to file a first amended complaint now
that [defendant’s] anti-SLAPP motion has been denied and case law permits the filing of
an anti-SLAPP motion directed to an amended complaint, it is possible that a true first
prong determination based on actually alleged acts committed by defendants may be
needed in this case.”
That was not sufficient for defendant, which appealed the denial of its anti-SLAPP
motion. So here we are, 22 months—and untold attorney fees—later, addressing
defendant’s appeal. We affirm.
BACKGROUND
The Parties and the Relationship
Dignity Health is a California nonprofit public benefit corporation that operates 40
hospitals in California, Arizona, and Nevada, providing health care, education, and other
benefits to the communities in which it operates. One of the hospitals is an acute care
hospital in Stockton, operating under the name St. Joseph’s Medical Center (Hospital or
SJMC).
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Central Valley Hospitalists (CVH) is a medical corporation that provided
hospitalist services at the Hospital. A “hospitalist” is a physician who works exclusively
in a hospital, as opposed to having an office practice. They are typically used by primary
care physicians who cannot be available at all hours to respond to hospital emergency
rooms or to attend to their patients in the hospital. CVH was founded by Sundar
Natarajan, M.D., who before forming CVH had worked for Dignity Health as its first
hospitalist at SJMC.
The Complaint
On December 31, 2015, represented by a small law firm in Sacramento, CVH filed
a complaint against Dignity Health alleging five causes of action, styled as follows:
(1) unfair business practices in violation of Business and Professions Code section 17200;
(2) intentional interference with contractual relations; (3) intentional interference with
prospective economic relations; (4) negligent interference with prospective economic
relations; and (5) inducing breach of contract. The complaint began with a three-page
“definitions of special terms in the complaint,” which included “ ‘Hospitalist,’ ”
“ ‘Primary care physicians,’ ” and “ ‘Privileges.’ ” These four definitions followed:
“g. ‘Peer review’ refers to the process of organized professional review of
medical practitioners within a medical group, hospital, or similar entity which fits within
the definition of a ‘peer review body’ referenced in California Business and Professions
Code § 805.
“h. ‘Section 805 Report’ refers to a report to the California Medical Board by a
peer review body indicating certain negative peer review activity such as denial or
revocation of privileges, or resignation of privileges or withdrawal of an application for
privileges after receiving notice of a pending peer review investigation. (Cal. B&P Code
§805(b), (c).) In practice, a Section 805 Report is a negative mark on a physician’s
record of practice and may negatively affect future practice options.
“i. ‘Peer review discovery privilege’ refers to the discovery and admissibility
privilege concerning certain records an [sic] activities of a peer review process, as
granted by California Evidence Code § 1157.
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“j. ‘Peer review liability privilege’ refers to the limited immunity to suit granted
with respect to certain communications (when made without malice) related to evaluation
of medical personnel, as granted by California Civil Code § 43.8. (See, Hassan v. Mercy
American River Hospital (2003) 31 Cal.4th 709.)”
Then, following a two-page statement of parties, there were these “general factual
allegations,”
“10. St. Joseph’s Medical Center (hereafter SJMC) in Stockton California is a
Hospital operated by DIGNITY HEALTH.
“11. CVH is a Medical Group operating at SJMC, and provides Hospitalist
services to inpatients at that Hospital.
“12. CVH has agreements and active economic relationships with certain Primary
Care Physicians in the greater Stockton area in which CVH agrees to provide care to
patients of those Primary Care Physicians and they agree to designate CVH as the default
Hospitalists to care for those of their patients who are hospitalized at SJMC.
“13. CVH competes for business with Medical Groups that are closely affiliated
with DIGNITY HEALTH, including but not limited to DOE 1. When patients are
admitted to SJMC as inpatients, if they are not seen by CVH, and they are insured, then
they are typically seen by one of the Medical Groups closely affiliated with DIGNITY
HEALTH.
“14. CVH’s business model is essentially to provide high quality care to patients,
placing patient outcome as the first priority. CVH’s focus on positive patient outcome
results in CVH physicians being readily willing to provide appropriate care, without
being unduly controlled by concerns about SJMC’s profitability.
“15. CVH’s practices at times create costs for SJMC. For instance, if an inpatient
would benefit from a medical procedure, and a CVH physician orders the procedure, this
creates a cost of care for SJMC. SJMC pays for the cost of that procedure using the
money paid by the patient’s insurer. Reducing the number of such procedures increases
SJMC’s profitability.
“16. SJMC, as a Hospital owned by DIGNITY HEALTH, ostensibly is a
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non-profit. However, it places a great internal emphasis on profitability. SJMC has
complained to CVS on multiple occasions about profitability issues . . . .
“17. Because CVH refuses to change its practices regarding patient care,
DIGNITY HEALTH has taken inappropriate action as alleged herein, including:
(1) inducing certain CVH physicians to leave CVH; (2) harassing CVH physicians while
they are at SJMC; (3) discouraging physicians from working with CVH; (4) referring
CVH patients to DIGNITY HEALTH-related home health care providers without the
appropriate CVH physician’s orders.”
The final general allegation alleged this:
“18. This Complaint does not allege wrongs or facts arising from any privileged
peer review activities. Any reading of this Complaint which would implicate such
activities is disavowed as excluded from this specific litigation.”
There followed the five causes of action, all of which incorporated the earlier
allegations, which alleged that among other things that Dignity Health: induced
particular CVH physicians to leave; harassed CVH physicians; discouraged physicians
from working with CVH; referred CVH patients to other health care providers without
appropriate orders; intimidated CVH staff; interfered with CVH physicians’ care of their
patients; poisoned and/or disrupted the relationship between CVH and its physicians;
induced the physicians to breach agreements and understandings with CVH; and made
SJMC such an unpleasant and unprofessional environment that CVH-affiliated physicians
quit and went elsewhere to practice, including to work directly for Dignity Health or its
business partners.
Following service of the complaint, on March 1, 2016, Craig Rutenberg, an
attorney at Manatt, Phelps & Phillips, LLP (Manatt), sent an e-mail to CVH’s attorney
Joshua Watson advising that Dignity Health intended to demur to the complaint, and
requested to meet and confer pursuant to Code of Civil Procedure section 430.41. Later
that day, Mr. Watson conferred by telephone with Mr. Rutenberg. Mr. Watson reiterated,
as specifically alleged in the complaint, that CVH was not putting peer review at issue
and offered to “explore amending the Complaint if there was confusion.” Mr. Watson
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provided Dignity Health with an extension of time to respond to the complaint. Mr.
Rutenberg made no mention of filing an anti-SLAPP motion.
The Anti-SLAPP Motion
A week later, represented by Manatt, Dignity Health filed a special motion to
strike pursuant to Code of Civil Procedure, section 425.16 (anti-SLAPP motion), set for
hearing on April 11. The anti-SLAPP motion was accompanied by a 23-page
memorandum, and a two-volume, 210-page appendix of evidence. The appendix had 16
exhibits, among which were the declaration of Donald Wiley, president and CEO of
Dignity Health, the bylaws and rules and regulations of the Hospital, various
correspondence between doctors at Dignity Health and CVH, and six articles pertaining
to hospitals and hospital care.
The essence of the anti-SLAPP motion argued that: “Specifically, this lawsuit
challenges protected activity because it arises out of the physician peer review
process—which the California Supreme Court has confirmed is an ‘official proceeding
authorized by law’—and thus it falls within the scope of subdivision (e)(2) of Section
425.16. Kibler v. Northern Inyo County Local Hosp. Dist., 39 Cal.4th 192 (2006). This
lawsuit also challenges activity protected under subdivision (e)(4) of Section 425.16
because physician peer review is a public issue and an issue of public interest, as is the
delivery of healthcare generally. Further, CVH cannot show a probability of prevailing
on the merits of its causes of action, which all fail for one or more reasons.”
On March 10, Mr. Watson sent a facsimile letter to Mr. Rutenberg, once again
confirming that the lawsuit was not about any peer review matter regarding Dr. Natarajan
or other physicians. Mr. Watson’s letter ended with this: “I respectfully ask that you
withdraw your Special Motion to Strike at this time. If your client wishes, we will agree
to amend the Complaint to a mutually satisfactory degree to clarify that no peer review is
at issue, and will enter into a stipulation that peer review information will not be offered
as evidence in this matter. (This would be a bilateral agreement.) Although I believe the
Complaint already makes the scope of the pleadings clear, I offer this as an olive branch
and a place to start discussions with your client. I am open to other options if they are
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promptly presented by your client. [¶] Alternatively, if CVH is forced to engage in the
expense and effort to oppose this Anti-SLAPP motion, we will regretfully seek attorneys
fees as contemplated by CCP §§ 128.5, 425.16.”
Mr. Rutenberg responded by letter of March 14, stating that CVH’s allegations
“do nothing to refute the showing that CVH’s claims arise from protected activity.” His
letter further said that, “[a]s we discussed during our March 1 . . . meet and confer,
CVH’s Complaint does not allege any facts to support its claims,” and “the Complaint
merely pleads a series of legal conclusions.” Finally, the letter declined the offer to
stipulate to exclude peer review material from the case.
CVH filed opposition to the anti-SLAPP motion, arguing that the complaint was
not based on peer review, and thus not protected activity. The opposition was
accompanied by four declarations, from three doctors and attorney Watson. Dignity
Health filed a reply.
We momentarily digress from the anti-SLAPP chronology to note a development
below that is not even mentioned in Dignity Health’s opening brief—its March 22 filing
of a demurrer, set for hearing on May 9.
The anti-SLAPP motion came on as scheduled on April 11, before the Honorable
Harold Kahn, a most experienced jurist, not least in the anti-SLAPP area, as he had heard
“dozens, if not hundreds” of anti-SLAPP motions. Judge Kahn had entered a tentative
ruling denying the motion, which Dignity Health contested. Following the appearances
of counsel, Judge Kahn began the hearing with this statement to the attorneys for Dignity
Health:
“THE COURT: So, Mr. Rutenberg and Ms. Shenfeld, I would call your motion an
aggressive one. Let me give you my thoughts a little bit more. You’ve probably seen the
way I do business around here. I spend a lot of time with every case, and I try to make
sure that I understand it.
“In my view, while the cases do refer to looking at evidence to determine prong
one, it can’t possibly be right that evidence can trump the language in a complaint as to
the facts, not the labels. Clearly, labels are to be disregarded.
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“But as to facts that are pled in the complaint, I can’t understand how prong one
analysis makes sense to look at facts that are different than the facts alleged in the
complaint, and say that the real facts are what’s in the declarations and that the false facts
are what’s pled. Because I think prong one is essentially a pleading analysis, but we do
have the cases that say you need to look at evidence.
“Well, why do you need to look at evidence?
“And the only explanation that I can have that is consistent with the language of
the cases and the results is, you need to look at the evidence to determine whether the
labels assigned are the correct labels, not whether the facts themselves are.
“Certainly, neither side cited to any decision as we have here, where there’s an
explicit disclaimer. You think the disclaimer is a bunch of garbage and a clear way to
avoid an obvious Anti-SLAPP motion, and that in that respect, the disclaimer is nothing
more than the impermissible labels that was used in the—you didn’t put it this way, but I
certainly could glean from your papers—nothing more than the impermissible labels that
have been disregarded in other cases. I don’t think so.
“I think that the controlling rule is a simple one. The drafter of the complaint is
the master of the complaint, and gets to choose what his claim, or in this case its claim, is
all about, and what it’s based on, what it arises from, to use the language of the
Anti-SLAPP statute.
“Do I have 100 percent confidence? Of course not.
“Have you written an impressive motion? Absolutely.
“Do I think if I confirm my tentative that this might result in a published decision?
I do. But I still think my tentative is right.
“All that said, now it’s your time to tell me what I’ve gotten wrong.”
They tried, at some length, at the conclusion of which Judge Kahn took the motion
under submission, with this closing colloquy:
“MR. WATSON: Even if that is true, that would be an issue for a demurrer to
clarify.
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“Now, I would say you can resolve any question about what the case is about with
a simple set of form rogs. But I understand if they need a more exact complaint, that
could be done through an amended complaint.
“There is a difference between them saying we’re not quite clear on the complaint
and saying that this is an Anti-SLAPP. Right? You can have a defective complaint,
which is not Anti-SLAPP, and by excluding peer review.
“THE COURT: They’re not saying that. They’re saying that what the complaint
says is clearly wrong, and here are the facts why.
“MR. WATSON: But the only way they can do that is to ignore what the
complaint says.
“THE COURT: Correct.
“MR. WATSON: Right. And that doesn’t satisfy the first prong.
“THE COURT: That’s the issue I’m taking under submission.”
Following the hearing, both sides filed what Judge Kahn called “additional
unsolicited briefing on the first prong” of the anti-SLAPP analysis.
Meanwhile—and another fact ignored by Dignity Health’s brief—before the
anti-SLAPP motion was ruled on, the demurrer was sustained, as described in the register
of actions entry for May 9: “Defendant Dignity Health’s demurrer to complaint is
sustained with twenty days leave to amend from the date of filing of an order denying the
pending anti-SLAPP motion in whole or in part. In the event that the pending
anti-SLAPP motion is granted in its entirety, the complaint will be stricken and plaintiff
will not be given leave to amend.”
On June 6, Judge Kahn filed his order denying the anti-SLAPP motion. The order,
prepared by Judge Kahn himself, was comprehensive indeed, beginning with his
exposition of the law governing the anti-SLAPP analysis. Judge Kahn then turned to the
issue at hand: “As discussed at length at the hearing, CVH’s complaint does not allege
any ‘acts’ (i.e., it did not plead any ‘facts’) stating what Dignity Health did or did not do
which form the basis of CVH’s claims. The pertinent allegations in the complaint are
found in paragraphs 17 and 18. Paragraph 17 alleges that Dignity Health ‘has taken
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inappropriate action . . . including: (1) inducing CVH physicians to leave CVH;
(2) harassing CVH physicians while they are at SJMC; (3) discouraging physicians from
working with CVH; (4) referring CVH patients to Dignity Health-related home health
care providers without the appropriate physician’s orders.’ Paragraph 18 alleges that
‘This Complaint does not allege wrongs or facts arising from any privileged peer review
activities.’ The quoted allegations are conclusions which must be disregarded in making
the first prong determination, as counsel for Dignity Health argued at the hearing.
“Once the conclusions of paragraphs 17 and 18 are disregarded, the complaint is
silent as to any factual basis for any of CVH’s claims. Not a single act or fact is alleged
to support any of the five claims asserted in the complaint. Dignity Health attempts to fill
this gap by submitting evidence that it committed no wrongdoing and that all of its
actions with regard to CVH and its physicians arise from peer reviews of CVH
physicians. But Dignity Health cites no authority, nor could I locate any, that permits a
defendant making an anti-SLAPP motion to satisfy its first prong burden by its own
evidence of what it believes the plaintiff’s claims are based on.
“What little authority there is on this point establishes that where, as here, a
plaintiff does not allege any acts committed by the defendant supporting the plaintiff’s
claims, the defendant necessarily is unable to meet its first prong burden of showing that
the defendants’ acts alleged by the plaintiff arise from protected activity. Just to state the
point is to show its truism. If there are no acts alleged, there can be no showing that
alleged acts arise from protected activity. And, if there cannot be such a showing, the
first prong is not satisfied and the anti-SLAPP motion must be denied. The clearest
case illustrating this point is Martin v. Inland Empire Utilities Agency (2011)
198 Cal.[App.]4th 611, 627–28, which was not cited by either side.”
Judge Kahn went on to quote at length from Martin v. Inland Empire Utilities
Agency, supra, 198 Cal.App.4th 611 (Martin), concluding that discussion as follows:
“Just like the court in Martin could not presume that all statements made by the
defendants in that case constitute acts of protected activity, case law teaches that I cannot
presume that all conduct of Dignity Health regarding CVH and its physicians arise from
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protected peer review activities. (See, e.g., DeCambre [v. Rady Children’s Hospital-San
Diego (2015) 235 Cal.App.4th 1] (alleged acts of defendant hospital toward the plaintiff
physician forming the bases for plaintiff’s claims for harassment, intentional infliction of
emotional distress and defamation did not arise from protected peer review activities);
Smith [v. Adventist Health System/West (2010) 190 Cal.App.4th 40] (alleged act of
defendant hospital group of screening out plaintiff physician’s application for hospital
privileges did not arise from protected peer review activities)).”
Finally, after citing another case (Freeman v. Schack (2007) 154 Cal.App.4th 719,
732–733), Judge Kahn concluded as follows: “The sum of all of the above is that any
first prong determination that Dignity Health has made a prima facie showing that acts
allegedly committed by it arise from protected peer review activities must necessarily be
deferred until CVH alleges acts committed by Dignity Health. Since the stipulated May
9, 2016 order provides for CVH to file a first amended complaint now that Dignity
Health’s anti-SLAPP motion has been denied and case law permits the filing of an
anti-SLAPP motion directed to an amended complaint (Country Side Villas Homeowners
Assn. v. lvie (2011) 193 Cal.App.4th 1110, 1116), it is possible that a true first prong
determination based on actually alleged acts committed by defendants may be needed in
this case.”
Dignity Health appealed the order.
DISCUSSION
Introduction to the Analysis
Dignity Health has filed a 58-page, 13,926-word opening brief. It cites 63 cases,
17 statutes (or subdivisions of statutes), an opinion of the Attorney General, and CACI.
Its reply brief is 30 pages. It is a prodigious effort to be sure, an effort that undoubtedly
cost many thousands of dollars in attorney fees to prepare—and, of course, tremendous
attorney fees for CVH to respond, witness its 64-page respondent’s brief.
Dignity Health’s opening brief has a 33-page argument. Following brief recitation
of the standard of review and the anti-SLAPP statute, Dignity Health argues that the
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complaint arises out of protected activity, an argument that has two subparts, which we
quote:
“1. The Court Erred in Allowing CVH’s Artful Pleading to Avoid the
Anti-SLAPP Protections Granted by the Legislature. . . .
“a. On Prong One, a Court Must Consider Admissible Evidence. . . .
“b. Allowing a Plaintiff to Plead Around the Anti-SLAPP Statute by Omitting
Key Factual Allegations Conflicts With the Policy of the Anti-SLAPP Statute. . . .
“c. The Court’s Ruling Was Based on Erroneous and Unsupported Premises. . . .
“d. The Court’s Cited Authority Does Not Support Its Ruling. . . .
“2. CVH’s Lawsuit Arises Out of the Peer Review Process. . . .
“a. The Peer Review Process Is Protected Activity Under Subdivision (e)(2) of the
Anti-SLAPP Statute. . . .
“b. Peer Review Is Also Protected Under Subdivision (e)(4) of the Anti-SLAPP
Statute Because It Is ‘in Connection With an Issue of Public Interest.’ . . . .
“c. CVH’s Complaint Arises From Protected Peer Review. . . .”
We reject the argument—Dignity Health is very wrong.1
Anti-SLAPP Law and the Standard of Review
In Hecimovich v. Encinal School Parent Teacher Organization (2012)
203 Cal.App.4th 450, we explained the operation of the anti-SLAPP law in both the trial
and reviewing courts:
“Subdivision (b)(1) of section 425.16 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 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
1
We also reject Dignity Health’s request for judicial notice filed December 6,
2016, which is denied.
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plaintiff will prevail on the claim.’ Subdivision (e) of section 425.16 elaborates the four
types of acts within the ambit of a SLAPP . . . .
“A two-step process is used for determining whether an action is a SLAPP. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity, that is, by demonstrating
that the facts underlying the plaintiff’s complaint fit one of the categories spelled out in
section 425.16, subdivision (e). If the court finds that such a showing has been made, it
must then determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. [Citation.]
“ ‘The Legislature enacted section 425.16 to prevent and deter “lawsuits [referred
to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his
or her resources” [citation], the Legislature sought “ ‘to prevent SLAPPs by ending them
early and without great cost to the SLAPP target’ ” [citation]. Section 425.16 therefore
establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.’ [Citation.]
“Finally, and as subdivision (a) of section 425.16 expressly mandates, the section
‘shall be construed broadly.’
“With these principles in mind, we turn to a review of the issues before us, a
review that is de novo. [Citation.]” (Hecimovich v. Encinal School Parent Teacher
Organization, supra, 203 Cal.App.4th at pp. 463–464.)
The Complaint is Not Based on Protected Activity
As we have put it, “In order for a complaint to be within the anti-SLAPP statute,
the ‘critical consideration is whether the cause of action is based on the defendant’s
protected free speech or petitioning activity.’ (Navellier v. Sletten (2002) 29 Cal.4th 82,
89.) To make that determination, we look to the ‘principal thrust or gravamen of the
plaintiff’s cause of action.’ (Martinez v. Metabolife Internat., Inc. (2003)
113 Cal.App.4th 181, 188, italics omitted; see Dyer v. Childress (2007) 147 Cal.App.4th
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1273, 1279.)” (Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125,
133–134 (Moriarty).)
The Supreme Court has recently put it this way: “A claim arises from protected
activity when that activity underlies or forms the basis for the claim. (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78; Equilon Enterprises v. Consumer Cause, Inc.
[(2002)] 29 Cal.4th [53,] 66; Briggs v. Eden Council for Hope & Opportunity (1999)
19 Cal.4th 1106, 1114.)” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1062–1063 (Park).) As the Supreme Court earlier instructed, at
this first step of the anti-SLAPP analysis, “the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for relief supported by
them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396, italics added.) Or, as we said in
another SLAPP case—there, in affirming an order granting an anti-SLAPP
motion—“[t]he question is what is pled—not what is proven.” (Comstock v. Aber (2012)
212 Cal.App.4th 931, 942.) And we accept as true CVH’s pleaded facts. (Young v.
Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54; Freeman v. Schack, supra,
154 Cal.App.4th at p. 733.)
The complaint was, as noted, factually inadequate in supporting detail. That said,
the essence of CVH’s case can be gleaned from it and the declarations filed in opposition
to the anti-SLAPP motion. That case includes among other things that Dignity Health
interfered with the hiring and/or retention of CVH staff by inducing key physicians to
quit CVH and work for Dignity Health’s partner, Sound Physicians; harassed CVH
physicians to the point they quit; refused to provide privileges application paperwork to
physicians who wanted to join CVH; meddled in patient care in ways that endangered
patient safety and increased malpractice risks; and inappropriately targeted CVH’s
primary care patients. That was the case.
Not only that, CVH said it was not suing about peer review; expressly excluded
peer review from the complaint; offered to stipulate that there would be no discovery as
to peer review; and offered to amend the complaint to clarify the bases of the business
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torts at issue. No matter to Dignity Health. Ignore all that. Ignore what was pleaded.
The case was peer review.
Defendant in Moriarty contended that the protected activity there was an unlawful
detainer case it had filed against the plaintiff, an unlawful detainer case that was nowhere
mentioned in plaintiff’s complaint. Defendant nevertheless attempted to construe
plaintiff’s complaint as based on that action, an effort we described as a “selective
reading of Moriarty’s complaint [that] is inappropriate.” (Moriarty, supra,
224 Cal.App.4th at p. 135.) The setting here is a fortiori, as peer review is not only not
referred to in CVH’s complaint, it is expressly not involved.
Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, is
persuasive—if not on point. There, the court affirmed the denial of an anti-SLAPP
motion with this language: “It would be inappropriate for us to insert into a pleading
claims for relief based on allegations of activities that plaintiffs simply have not
identified, even if the parties suggest on appeal how plaintiffs might have intended to
frame those claims or attempt to identify the specific conduct or assertions of statements
alleged to be false on which plaintiffs intended to base such claims for relief. It is not our
role to engage in what would amount to a redrafting of the first amended complaint in
order to read that document as alleging conduct that supports a claim that has not in fact
been specifically alleged, and then assess whether the pleading that we have essentially
drafted could survive the anti-SLAPP motion directed at it.” (Id. at p. 621, fn. omitted.)
Martin, the case discussed at length by Judge Kahn, is also persuasive. Affirming
what the court described as a “functional” denial of the anti-SLAPP motion, it noted as
follows: “[D]efendants failed to make an initial prima facie showing on the first prong of
the anti-SLAPP statute; in other words, defendants did not meet their burden to show that
the allegedly defamatory statements were based on an act in furtherance of defendants’
rights of petition or free speech. Indeed, it is difficult, if not impossible, to see how
defendants could have met this burden with plaintiff’s failure to specifically plead the
allegedly defamatory statements. . . . [S]ection 425.16 has no mechanism for simply
skipping over the first prong—defendants’ burden to show the statements were protected,
15
and go directly to the second prong—plaintiff’s burden to show a probability of
prevailing.” (Martin, supra, 198 Cal.App.4th at pp. 627–628.)
Two sentences of Judge Kahn’s order bear repeating, as they succinctly sum up
the holding here: “If there are no acts alleged, there can be no showing that alleged acts
arise from protected activity.” Or, as he put it earlier, he could not accept evidence based
solely on what Dignity Health “believes [CVH’s] claims are based on.”
As noted, Dignity Health has filed lengthy briefs, citing numerous cases and
authorities. We will not respond in similar fashion, as we view Dignity Health’s position
to be similar, if not identical, to that rejected in Nam v. Regents of University of
California (2016) 1 Cal.App.5th 1176. Nam, a former resident at a state university
hospital, filed a complaint for retaliation, discrimination, sexual harassment, wrongful
termination, and breach of contract. Defendant Regents filed an anti-SLAPP motion,
contending that Nam’s complaint arose from written complaints made in connection with
an official proceeding. The trial court denied the motion. The Court of Appeal easily
affirmed, describing defendant’s argument as “stitching together a number of disparate
legal principles extracted from cases with very different facts, ignoring the fundamental
question whether the lawsuit is indeed a SLAPP, and divorcing the analysis from the
purpose of the anti-SLAPP law, defendant constructs an argument that, in effect, would
subject most harassment and retaliation claims against public entities to an anti-SLAPP
motion to strike.” (Id. at p. 1186.) This aptly describes Dignity Health’s position here.
We end the discussion with an observation about Kibler v. Northern Inyo County
Hospital Dist., supra, 39 Cal.4th 192 (Kibler), as noted, the primary case on which the
anti-SLAPP motion was based. As Dignity Health first describes it here: “The Supreme
Court has made clear that physician peer review is protected conduct under the
anti-SLAPP statute. See Kibler . . . .” Or, as it later elaborates: “In Kibler, . . . the
Supreme Court ruled definitively that physician peer review is protected under the
anti-SLAPP laws because it is an ‘official proceeding authorized by law.’ Id. at 199
(citing Code Civ. Proc. § 425.16 (e)(2)). The Kibler Court defined ‘peer review’ broadly,
as ‘the process by which a committee comprised of licensed medical personnel at a
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hospital “evaluate[s] physicians applying for staff privileges, establish[es] standards and
procedures for patient care, assess[es] the performance of physicians currently on staff,”
and reviews other matters critical to the hospital’s functioning.’ Id. at 199. Kibler
extends the protections of the anti-SLAPP law to peer review because lawsuits like
CVH’s would discourage peer reviewers from ever stepping to the fore in order to protect
patient health and safety. That is because ‘membership on a hospital’s peer review
committee is voluntary and unpaid, and many physicians are reluctant to join peer review
committees so as to avoid sitting in judgment of their peers.’ ”
Kibler is hardly all that Dignity Health cracks it up to be, as shown by the
Supreme Court’s discussion of it in Park. Park, a professor of Korean origin, was denied
tenure, after which he brought a national origin discrimination claim against the
university. The trial court denied the university’s anti-SLAPP motion, but the Court of
Appeal reversed. The Supreme Court reversed the Court of Appeal, holding that the
tenure decision was not a protected activity. The elements of the claim depended only on
the denial of tenure itself and whether the motive for that action was impermissible.
While the tenure decision might have been communicated orally or in writing, that
communication did not convert the lawsuit to one arising from such speech. (Park,
supra, 2 Cal.5th 1057.) And reaching that holding, this is what the Supreme Court had to
say about one of defendant’s arguments:
“Second, the University urges that its tenure decision and the communications that
lead up to it are intertwined and inseparable. It bases this argument on Kibler . . . and
Kibler’s progeny, which it contends establish that decisions and the deliberations that
underlie them are indistinguishable for anti-SLAPP purposes.
“Kibler lends no support. There, the plaintiff doctor sued a hospital and various
individual defendants for defamation and related torts. The trial court in Kibler found,
and we accepted for purposes of review, that these tort claims arose from statements
made in connection with a hospital peer review proceeding. The only issue before us was
whether, assuming this to be so, the peer review proceeding was an ‘ “official
proceeding” ’ within the meaning of the anti-SLAPP statute. [Citations.] That is, we
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took for granted lower court findings as to what activity the tort claims arose from under
section 425.16, subdivision (b)(1), and then considered whether that activity constituted
protected activity under a particular portion of subdivision (e)’s statutory definition. We
did not consider whether the hospital’s peer review decision and statements leading up to
that decision were inseparable for purposes of the arising from aspect of an anti-SLAPP
motion, because we did not address the arising from issue. (See Young v. Tri-City
Healthcare Dist.[, supra,] 210 Cal.App.4th [at p.] 58 [correctly recognizing Kibler
addressed only whether hospital peer review proceedings can be ‘ “official
proceedings,” ’ and courts resolving anti-SLAPP motions must still separately determine
whether a given claim arises from any protected activity].)
“Applying our decision in Kibler, the Court of Appeal in Nesson v. Northern Inyo
County Local Hospital Dist. (2012) 204 Cal.App.4th 65 concluded an anti-SLAPP
motion against the claims of a doctor who alleged discriminatory and retaliatory
termination of privileges was properly granted. The Nesson court reasoned that under
Kibler, a hospital’s peer review proceedings are official proceedings, and thus every
aspect of those proceedings, including the decision to impose discipline, is protected
activity for anti-SLAPP purposes. (Nesson, at pp. 78–79, 82–84.) Similarly, in
DeCambre[, supra,] 235 Cal.App.4th 1, the Court of Appeal concluded Kibler dictated
finding the allegedly discriminatory decision not to renew a doctor’s contract to be
protected activity. The court correctly considered the elements of the plaintiff’s claims in
order to identify what conduct underlay each cause of action. (E.g., DeCambre, at p. 22.)
However, it also concluded, in reliance on Kibler, that every part of the peer review
process was protected activity. To the extent the plaintiff’s claims included as an
essential element her termination, and that termination was a product of peer review, her
claims arose from protected activity. (DeCambre, at pp. 14–16.)
“The University argues by analogy that all aspects of its tenure process, including
its ultimate decision, are inextricably intertwined protected activity, and the Court of
Appeal here agreed. But both Nesson and DeCambre overread Kibler, which did not
address whether every aspect of a hospital peer review proceeding involves protected
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activity, but only whether statements in connection with but outside the course of such a
proceeding can qualify as ‘statement[s] . . . in connection with an issue under
consideration’ in an ‘official proceeding.’ (§ 425.16, subd. (e)(2).) Kibler does not stand
for the proposition that disciplinary decisions reached in a peer review process, as
opposed to statements in connection with that process, are protected. We disapprove
Nesson v. Northern Inyo County Local Hospital Dist., supra, 204 Cal.App.4th 65, and
DeCambre[, supra,] 235 Cal.App.4th 1, to the extent they indicate otherwise.” (Park,
supra, 2 Cal.5th at pp. 1069–1070.)
Some Closing Observations
On August 11, 2017 the clerk of our court sent a letter to counsel advising that
“the court, acting on its own motion, is considering the imposition of sanctions on
appellant and/or appellant’s counsel in case No. A148742 for taking an appeal that is
frivolous or filed for purposes of delay.”
On August 14 our clerk’s office received from Dignity Health’s counsel a request
for dismissal. We did not file it.
On August 14 we received from counsel for Dignity Health a 10-page
single-spaced letter, attaching a 13-page letter to the California Supreme Court on behalf
of the California Hospital Association, addressing a portion of the court’s opinion in
Park that discusses Kibler. Counsel’s letter begins that it “opposes the imposition of
sanctions . . . . This appeal has merit, is not frivolous, and was not prosecuted for any
improper purpose such as to harass Respondent or to delay this lawsuit.”
Following a paragraph of boilerplate sanction law, the third paragraph of counsel’s
letter says: “This appeal was brought and at all times prosecuted in utmost good faith,
based on considered analysis of the facts and the case law, and not for purposes of delay.
While we ultimately decided to dismiss this appeal because of our concern of the impact
of a new California Supreme Court decision that substantially altered the way the law on
the subject of anti-SLAPP motions in hospital-physician peer review cases had been
interpreted—and informed the Court immediately by telephone of our intent to dismiss
within hours of receiving client approval to dismiss—prior to that decision we believed
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that the appeal was meritorious and worth pursuing. We pursued the appeal not for
reasons of delay, but because we believed the trial court made legal errors that deprived
Dignity Health of the substantial advantages of obtaining dismissal of a case under the
anti-SLAPP procedure. However, we have now concluded that the trial court’s error is
likely to be deemed harmless in light of the decisions in Park . . . and Bonni v. St. Joseph
Health System [(2017) 13] Cal.App.[5th 851] . . . . As discussed in more detail below,
sanctions are not appropriate.”
The letter then spends three and a half pages explaining “the decision to bring and
prosecute the appeal,” and then another three and a half pages explaining why Dignity
Health decided to request dismissal of the appeal when it did, both explanations, of
course, that presuppose CVH’s case was based on “peer review”—which it expressly was
not.
In the course of its first attempt, counsel’s letter has a passage that says “[n]or is
there any indication of a purpose to harass or delay,” this notwithstanding the 90 days of
extension for the appellate briefing, or the months of delay of oral argument based on
claimed scheduling conflicts. We are not persuaded.
We note that three of the lawyers whose names appeared on the moving papers
below are among the four lawyers listed on the briefs on appeal, two of whom appeared
at the hearing below. Necessarily the analysis on appeal is the same analysis as in the
trial court, the classic case of de novo review. Put otherwise, we do not understand how
90 days of extensions in an anti-SLAPP appeal can be a manifestation of anything but
delay. And as to the continuance of oral argument, while it was based on the schedule of
the attorney who signed the appellate briefs, he did not even participate below—he did
not sign the papers, he did not argue the motion. He did appear at oral argument and
sought to buttress the positions asserted in his letter.
People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315 was an appeal by
Brar, a losing defendant in an anti-SLAPP motion. As the late Presiding Justice Sills
described it in his inimitable fashion: “Brar’s appeal practically has the words ‘brought
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for reasons of delay’ virtually tattooed on its forehead. Consider that under a rule of
automatic stay, . . . the incentive to appeal even the denial of a patently frivolous
anti-SLAPP motion is overwhelming. As we have noted, the defendant gets a very cheap
hiatus in the proceedings . . . .” (Id. at p. 1319.)
Dignity Health has no forehead, and in any event Dignity Health does not appear
to be the responsible party here. What may well be apt are these two sentences from our
opinion in Grewal: “A well-known saying, generally attributable to William Gladstone,
is that ‘Justice delayed is justice denied.’ A lesser known saying, known to be
attributable to prominent defense lawyers from major law firms, is that ‘Justice delayed is
justice.’ ” (Grewal, supra, 191 Cal.App.4th at p. 999.)
Our clerk’s letter advised counsel for CVH that he could reply to the issue of
sanctions. He did not, so apparently he and his clients have no interest in the issue, this
despite his earlier threat to Mr. Rutenberg. We could, of course, order sanctions payable
to the court (see Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1451; Singh v. Lipworth
(2014) 227 Cal.App.4th 813, 830), which would result in a mere $8,000 or so sanction
(ibid.), but also the reporting of counsel to the State Bar. (Bus. & Prof. Code § 6068,
subd. (c).) We are not inclined to do that here, and thus end the opinion with these
observations and nothing more.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. CVH shall recover its
costs on appeal.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A148742; Central Valley Hospitalists v. Dignity Health
22
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Harold E. Kahn
Counsel:
Manatt, Phelps & Phillips, Barry Scott Landsberg, Doreen Wener Shenfeld, Joanna S.
McCallum and Craig Steven Rutenberg for Defendant and Appellant.
Clayeo C. Arnold, Joshua Haakon Watson for Plaintiff and Respondent.
23