Goodwin v. Pagano CA2/3 ( 2015 )

Filed 12/29/15 Goodwin v. Pagano CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
FRANK GOODWIN, B254135
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC515952)
v.
JAMES PAGANO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Brian M.
Hoffstadt, Judge. Appeal dismissed as to defendant Khalife. The judgments are affirmed
as to all other defendants.
Frank Goodwin, in pro. per., for Plaintiff and Appellant.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Carmen Vigil, David J. O’Keefe
and Mitzie L. Dobson for Defendants and Respondents James Pagano, M.D., and
Mohammed Khalife, M.D.
Reback, McAndrews, Kjar, Warford, Stockalper & Moore, Robert C. Reback and
David J. Rubaum for Defendant and Respondent Zouhair Hakak, M.D.
Davis, Grass, Goldstein & Finlay, Campbell H. Finlay and Richard V. Zavala for
Defendant and Respondent Prime Healthcare Services-San Dimas, LLC. dba San Dimas
Community Hospital.
La Follette, Johnson, De Haas, Fesler & Ames, Marissa A. Warren and David J.
Ozeran for Defendants and Respondents Anthony Oh, M.D., and Christopher Cannon.
_________________________
In this medical malpractice action, plaintiff Frank Goodwin appeals the trial
court’s judgments sustaining the demurrers of defendants Prime Healthcare Services-San
Dimas, LLC, dba San Dimas Community Hospital (hereinafter, the Hospital), doctors
Anthony Oh, James Pagano, Zouhair Hakak, and Mohammed Khalife, and attorney
Christopher Cannon, and granting Oh’s and Cannon’s special motions to strike (anti-
SLAPP motions). We dismiss the appeal as to defendant Khalife, and affirm the
judgments as to the other defendants.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
Because this matter comes to us following a judgment sustaining demurrers
without leave to amend, we set forth the facts as alleged in Goodwin’s operative
complaint, filed July 22, 2013. (Stine v. Dell’Osso (2014) 230 Cal. App. 4th 834, 838;
Nasrawi v. Buck Consultants LLC (2014) 231 Cal. App. 4th 328, 333, fn.1.)
On October 3, 2010, Goodwin sought treatment at the Hospital after a foreign
body became lodged in his colon. Prior to seeking treatment, Goodwin conducted
research and believed that the object could be successfully removed by means of a
colonoscopy. At the Hospital, Goodwin told Doctors Pagano and Hakak that he wanted
the object removed via a colonoscopy. Both doctors promised to find a gastroenterologist
who could perform that procedure. However, Hakak and Pagano instead contacted Dr.
Oh, a surgeon, who did not perform colonoscopies. Oh decided to perform abdominal
surgery on Goodwin because this would make more money for him and the Hospital.
On October 4, 2010, Goodwin consented to a colonoscopy, but did not consent to
general anesthesia, rigid proctosigmoidoscopy, exploratory laparotomy, or a colostomy.
Nonetheless, instead of performing the promised colonoscopy procedure, doctors Oh,
Pagano, Hakak, and Khalife “planned and performed” these procedures to remove the
2
object. When Goodwin awoke after the surgery and realized his “abdomen was cut,” he
became “very angry about it.” He was discharged from the Hospital on October 9, 2010.
On December 1, 2010, Goodwin was hospitalized at Los Angeles County USC
Medical Center due to extreme abdominal pain. Doctors “opened his abdomen” and
discovered extensive scar tissue inside his “small bowel,” causing a blockage. The USC
doctors removed the scar tissue in a “repair surgery.” Thereafter, Goodwin experienced
“colon pains” on multiple occasions, causing him to seek treatment at various hospital
emergency departments. He has experienced ongoing stress, pain, and suffering, and has
incurred additional medical expenses, as a result of the October 4 surgery.
Goodwin was unsuccessful in serving a deposition subpoena on Khalife using a
licensed process server. On August 14, 2012, Goodwin himself attempted to serve
Khalife. Khalife “outrageously hit, pushed, and grabbed” Goodwin.
2. Procedural background
a. Goodwin’s first action
Prior to filing the instant action, Goodwin filed suit against the Hospital and Oh,
based on the same surgery. (Goodwin v. San Dimas Community Hospital (Super. Ct.
L.A. County, 2014, No. KC062033).) That complaint was filed on September 6, 2011,
while Goodwin was represented by counsel. The complaint in KC062033 asserted two
causes of action: (1) professional negligence, and (2) medical battery. Goodwin alleged
that the Hospital and Oh were negligent in regard to treatment rendered to him for “a
foreign body in colon, resulting in various injuries and damages,” and committed medical
battery by performing an exploratory laparotomy to which Goodwin had not consented.
During the pendency of the KC062033 action, a dispute arose between Oh and
Goodwin regarding the conduct of Oh’s deposition.1
After the second cause of action for medical battery was dismissed as against Oh,
Oh moved for summary judgment on the remaining cause of action for professional
negligence. His motion was supported by the declarations of two medical experts, who
1 This issue will be discussed more fully where relevant post.
3
opined that Oh had complied with the standard of care. On September 5, 2012, the trial
court granted the summary judgment motion on the ground that Oh had established there
had been no violation of the standard of care. The court entered judgment in Oh’s favor
on January 16, 2013, and awarded costs of suit to Oh.
On September 25, 2012, Goodwin, represented by a new attorney, dismissed the
Hospital from the suit without prejudice. On October 11, 2012, Goodwin’s attorney filed
a form dismissing the Hospital with prejudice. Thereafter, Goodwin moved to set aside
the dismissal; his motion was denied.2
Goodwin appealed. We dismissed the appeal on January 30, 2014. (Goodwin v.
Oh (Jan. 30, 2014, B250043.) On March 3, 2014, we denied Goodwin’s petition for
reconsideration and rehearing. The California Supreme Court denied Goodwin’s petition
for review on April 16, 2014. (Goodwin v. Oh (Apr. 16, 2014, S217024.)
b. The operative complaint and the trial court’s rulings in the instant matter
On July 22, 2013, Goodwin filed the complaint in the instant matter, Los Angeles
County Superior Court case No. BC515952. It alleged 12 causes of action arising out of
the October 4, 2010 surgery: false promise, intentional misrepresentation, negligent
misrepresentation, and concealment against the Hospital and doctors Pagano, Hakak, and
Oh; conspiracy, medical battery, failure to obtain informed consent, “violation of 42 CFR
482.13(b)(2),” “violation of 42 CFR 482.51(b)(2),” and negligence against the Hospital
and doctors Pagano, Hakak, Khalife, and Oh; battery, against Khalife only; and “violation
of Los Angeles Superior Court Rule 3.26 Appendix 3.A(e)(8)” against Oh and Oh’s
attorney, Cannon.
2 On October 3, 2012, Goodwin, in pro. per., filed a new complaint against Oh in
San Bernardino Superior Court. That action was dismissed for lack of prosecution on
March 8, 2013, and is not at issue here.
4
All defendants demurred to the complaint on various grounds. Oh and Cannon
additionally filed special motions to strike the 12th cause of action for purported violation
of the court rule (the anti-SLAPP motions). (Code Civ. Proc., § 425.16.)3
The trial court ruled as follows. As to Hakak, Oh, Pagano, and the Hospital, it
sustained the demurrers without leave to amend. The court reasoned that the first through
10th causes of action were time barred under section 340.5, which sets forth the statute of
limitations for medical malpractice actions. Goodwin was aware on October 4, 2010 that
Dr. Oh had performed a different procedure than that which Goodwin had authorized,
and he knew as of December 1, 2010, that the surgery had caused injury. Therefore, the
complaint was filed well after the one-year limitations period had run. Goodwin’s
discovery of additional damages in September 2013 did not toll or extend the limitations
period. Although the first through ninth causes of action were pled under different labels,
the gravamen of all the claims was medical negligence. To the extent the sixth and
seventh causes of action alleged battery, they were nonetheless barred by the two-year
statute of limitations in section 335.1. The federal regulations cited as the basis for the
eighth and ninth claims (42 C.F.R. §§ 482.13, 482.51) were likewise based on
negligence, and in any event did not give rise to a private right of action.
The trial court further concluded that as to the Hospital, the complaint was barred
by the doctrines of res judicata and collateral estoppel. It found Oh’s motion to strike the
complaint as barred by these doctrines was moot in light of the court’s ruling on the
demurrer.
The court sustained both Oh’s and Cannon’s demurrers without leave to amend on
the 12th cause of action, on the grounds (1) it was barred by the litigation privilege;
(2) violation of a local court rule does not give rise to a private right of action; and (3) the
court rule at issue was advisory rather than mandatory. It granted Oh’s and Cannon’s
anti-SLAPP motions on the ground an attorney’s advice to a client during a deposition
falls within the ambit of section 425.16, subdivision (e)(1), and Goodwin could not
3 All further undesignated statutory references are to the Code of Civil Procedure.
5
establish a probability of prevailing on his claim. The court granted Oh’s and Cannon’s
motions for attorney fees.
The trial court sustained Khalife’s demurrer without leave to amend on six of the
seven causes of action alleged against him on statute of limitations grounds. It sustained
the demurrer as to the 11th cause of action for battery with leave to amend. It
subsequently overruled Khalife’s demurrer to Goodwin’s first amended complaint as to
the 11th cause of action for battery.
Judgment of dismissal was subsequently entered for all defendants except Khalife.
Goodwin appeals.
DISCUSSION
1. Oh’s and Cannon’s request to dismiss the appeal
Goodwin’s notice of appeal states he is appealing from a judgment or order
entered on “12/13/2013, others pending.” The notice further states he is appealing
“multiple sustained demurrers, anti-slapp, quash services, etc.” Appended to the notice
of appeal is a document captioned “Intention to Appeal.” That document states Goodwin
intends to “appeal all judgments, orders, rulings in favor of all defendants, James Pagano,
Zouhair Hakak, Mohammed Khalife, Anthony Oh, San Dimas Community Hospital,
Christopher Cannon, Does 1-50.” “These judgments, orders, and rulings include but [are]
not limited to judgments of dismissal after sustained demurrers, anti-slapp, quash service,
etc. Some of them have been signed and entered by trial court, some are not. For all that
have not be[en] signed and entered by trial court, I will supplement them at a later time.”
Oh and Cannon argue that their demurrers and anti-SLAPP motions were heard
and granted on December 2 and December 12, 2013, and orders of dismissal were entered
on January 13, 2014; therefore, the notice of appeal does not pertain to the judgments
entered in their favor. Furthermore, they urge that the notice of appeal fails to adequately
specify the orders and/or judgments at issue, but instead “lumps them all together.” The
notice is therefore so nonspecific that it is invalid, and the appeal should be dismissed as
to them.
6
“ ‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably clear what [the] appellant
was trying to appeal from, and where the respondent could not possibly have been misled
or prejudiced.’ [Citations.] A notice of appeal ‘is sufficient if it identifies the particular
judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007)
41 Cal. 4th 261, 272; Walker v. Los Angeles County Metropolitan Transportation
Authority (2005) 35 Cal. 4th 15, 18.) Insofar as it pertains to respondents’ demurrers and
the anti-SLAPP motions brought by Oh and Cannon, Goodwin’s notice of appeal is
reasonably clear.4 Respondents do not appear to have been misled, as demonstrated by
the ease with which they have identified the pertinent issues in their briefing. The notice
lists the wrong date, but this apparent typographical error is not fatal. (See generally Ellis
Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal. App. 4th
244, 250-251 [notice of appeal sufficient although the wrong box was checked on the
notice of appeal form, misidentifying the statutory basis for the appeal].)
2. Consideration of rulings made in the first action
Goodwin argues that a variety of rulings made in his first action, No. KC062033,
were erroneous. Among other things, he purports to challenge the trial court’s orders
dismissing the second cause of action for medical battery; granting Cannon’s and Oh’s
motions for a protective order; denying his motion for sanctions against Cannon; denying
his motion for leave to file a first amended complaint; denying his motion to set aside the
dismissal of the Hospital with prejudice; granting Oh’s motion for summary judgment;
and denying his motion to set aside the summary judgment. He requests that this court
order that the judgment in favor of Oh in No. KC062033 be vacated “because [the] trial
court made so many errors,” and because he has allegedly discovered that Oh “conducted
4 However, we agree with respondents that, to the extent the notice of appeal
purports to encompass “quash services” or other unspecified orders, it is too nonspecific
and vague to alert the parties to the particular order or judgment at issue. Goodwin’s
briefing does not appear to specifically challenge other orders made in case No.
BC515952.
7
fraud.” Goodwin also argues that this court erred by dismissing his appeal in the first
action.
None of these claims are cognizable at this juncture. “A judgment is the final
determination of the rights of the parties.” (Griset v. Fair Political Practices Com.
(2001) 25 Cal. 4th 688, 697 (Griset); § 577.) The final judgments in KC062033 as to both
Oh and the Hospital were appealed to this court in case No. B250043. We dismissed the
appeal, the California Supreme Court denied review, and the remittitur issued on April
24, 2014. Once it became final, our disposition terminated the litigation in KC062033 as
to Oh and the Hospital. (See Griset, supra, at p. 702.) Consideration of rulings made in
the first case would amount to allowing a second appeal of that case, which we lack
authority to entertain. (See generally Griset, supra, at p. 702.) Accordingly, we do not
consider Goodwin’s arguments regarding rulings made in the first action.
3. Because this court lacks jurisdiction over Goodwin’s appeal as to defendant
Khalife, the appeal must be dismissed as to him.
Khalife argues, correctly, that this court lacks jurisdiction to entertain Goodwin’s
appeal as to him because there is no final judgment disposing of all causes of action
alleged against him. As noted, the trial court sustained Khalife’s demurrer to the fifth
through 10th causes of action without leave to amend, but overruled his demurrer as to
the 11th cause of action for battery, which allegedly arose not from the October 2010
surgery, but from a separate incident in which Khalife allegedly battered Goodwin when
Goodwin attempted to serve him with a subpoena.
The right to appeal is statutory, and a reviewing court has jurisdiction over a direct
appeal only when there is (1) an appealable order, or (2) an appealable judgment.
(Griset, supra, 25 Cal.4th at p. 696; Art Movers, Inc. v. Ni West, Inc. (1992)
3 Cal. App. 4th 640, 645.) Where such jurisdiction is lacking, a reviewing court has “ ‘the
duty to dismiss such an appeal upon its own motion.’ ” (In re Mario C. (2004)
124 Cal. App. 4th 1303, 1307.)
It is a “fundamental principle of appellate practice” that review of intermediate
rulings by appeal is prohibited until there is a final resolution of the case. (Griset, supra,
8
25 Cal.4th at p. 697.) An order sustaining a demurrer is interlocutory and not appealable;
instead, it is reviewable on appeal from the judgment. (Walker v. Los Angeles County
Metropolitan Transportation Authority, supra, 35 Cal.4th at p. 20; Lopez v. Brown (2013)
217 Cal. App. 4th 1114, 1132; McAllister v. County of Monterey (2007) 147 Cal. App. 4th
253, 278.) Here, the trial court sustained Khalife’s demurrer to less than all of
Goodwin’s claims; its rulings did not dispose of all causes of action between the parties.
An appeal “ ‘cannot be taken from a judgment that fails to complete the disposition of all
causes of action between the parties . . . .’ ” (Griset, supra, at p. 697.) Accordingly, we
dismiss Goodwin’s appeal insofar as it pertains to Khalife. (See Griset, supra, at p. 697.)
4. The demurrers to the first through 10th causes of action
a. Standard of review
We independently review the trial court’s rulings on a demurrer and determine de
novo whether the complaint alleges facts sufficient to state a cause of action. (Regents of
University of California v. Superior Court (2013) 220 Cal. App. 4th 549, 558.) “ ‘We treat
the demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law.’ ” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318;
Kumaraperu v. Feldsted (2015) 237 Cal. App. 4th 60, 65.) When a demurrer is sustained
without leave to amend, we determine whether there is a reasonable possibility the defect
can be cured by amendment. If not, there has been no abuse of discretion and we affirm.
The plaintiff has the burden of proving such a reasonable possibility. (Blank v. Kirwan,
supra, at p. 318; Kumaraperu v. Feldsted, supra, at pp. 65-66; Reynolds v. City of
Calistoga (2014) 223 Cal. App. 4th 865, 871.) We must affirm if any one of the grounds
supporting the demurrer is well taken. (Guerrero v. Pacific Gas & Electric Co. (2014)
230 Cal. App. 4th 567, 571.) “ ‘In order for the bar of the statute of limitations to be raised
by demurrer, the defect must clearly and affirmatively appear on the face of the
complaint.’ ” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App. 4th 336, 342
(Larson).)
9
b. Goodwin’s first through 10th causes of action are time-barred.
Pursuant to section 340.5, a medical malpractice action must be commenced
within one year after the patient discovers, or reasonably should have discovered, his
injury. (Gutierrez v. Mofid (1985) 39 Cal. 3d 892, 895; Davis v. Marin (2000)
80 Cal. App. 4th 380, 385.) Section 340.5 provides in pertinent part: “In an action for
injury or death against a health care provider based upon such person’s alleged
professional negligence, the time for the commencement of action shall be three years
after the date of injury or one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury, whichever occurs first.” The
limitations period begins to run when the plaintiff suspects, or should reasonably suspect,
that his injury was caused by wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d
1103, 1110; Norgart v. Upjohn Co. (1999) 21 Cal. 4th 383, 397-398; Kitzig v. Nordquist
(2000) 81 Cal. App. 4th 1384, 1391.) The term “injury,” as used in section 340.5, means
both a person’s physical condition and its negligent cause. (Gutierrez, supra, at p. 896;
Knowles v. Superior Court (2004) 118 Cal. App. 4th 1290, 1295; Davis v. Marin, supra, at
p. 385.)
Section 335.1 sets forth the applicable statute of limitations for battery. It
provides in pertinent part that an “action for assault, battery, or injury to . . . an individual
caused by the wrongful act or neglect of another” is two years. (§ 335.1.)
The allegations of Goodwin’s complaint establish that he was well aware of the
wrongdoing by defendants at least by December 1, 2010. Goodwin alleges he became
aware of the fact Oh had performed abdominal surgery, rather than the colonoscopy
Goodwin expected, when he awoke and discovered the abdominal incision. The
complaint further avers that on December 1, 2010, Goodwin learned from doctors at
another facility that his bowel had “extensive scar tissues” which had caused an intestinal
blockage. Thus, Goodwin admittedly knew defendants had “ ‘done something wrong’ ”
in regard to his treatment by December 1, 2010 at the latest. (See Gutierrez v. Mofid,
supra, 39 Cal.3d at p. 897; Knowles v. Superior Court, supra, 118 Cal.App.4th at
p. 1296.) Goodwin’s causes of action thus accrued no later than December 1, 2010.
10
When determining the applicable statute of limitations, we must look to the
gravamen of the claims, not the labels affixed thereto. (Larson, supra, 230 Cal.App.4th
at pp. 340, 347; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal. App. 4th 396, 412 [the “nature of the cause of action and the primary right involved,
not the form or label of the cause of action . . . determine which statute of limitations
applies”].) Section 340.5 defines “professional negligence” as “a negligent act or
omission to act by a health care provider in the rendering of professional services, which
act or omission is the proximate cause of a personal injury or wrongful death, provided
that such services are within the scope of services for which the provider is licensed and
which are not within any restriction imposed by the licensing agency or licensed
hospital.” “[W]hen a plaintiff asserts a claim against a health care provider on a legal
theory other than professional negligence, courts must determine whether the claim is
nonetheless based on the health care provider’s professional negligence, which would
require application” of section 340.5. (Larson, supra, at p. 347; see also Carter, supra, at
pp. 412-413; Smith v. Ben Bennett, Inc. (2005) 133 Cal. App. 4th 1507, 1514.)
A healthcare provider’s failure to obtain informed consent is negligence, as is the
failure to disclose pertinent information regarding treatment. (Cobbs v. Grant (1972)
8 Cal. 3d 229, 240-241.) A “medical act performed without a patient’s informed
consent . . . is medical negligence . . . .” (Massey v. Mercy Medical Center Redding
(2009) 180 Cal. App. 4th 690, 698.) “Where a doctor obtains consent of the patient to
perform one type of treatment and subsequently performs a substantially different
treatment for which consent was not obtained, there is a clear case of battery.” (Cobbs v.
Grant, supra, at p. 239; Perry v. Shaw (2001) 88 Cal. App. 4th 658, 664 [doctor who
performed breast enlargement to which patient had not consented “committed a battery”];
but see Gutierrez v. Mofid, supra, 39 Cal.3d at pp. 895-896, 902 [applying § 340.5’s one-
year limitations period for negligence where the plaintiff consented to an exploratory
operation to remove her appendix or a tumor, but doctors did a complete hysterectomy].)
11
Applying these principles, it is clear the gravamen of Goodwin’s first through
fifth, and eighth through 10th, causes of action is professional negligence, while the
gravamen of his sixth and seventh causes of action is either negligence or battery.
Goodwin’s 10th cause of action is expressly pled as negligence. He alleges
defendants failed to: use reasonable care in treating and diagnosing him; obtain informed
consent or ascertain his wishes; assure staff competence; maintain accurate and complete
medical records; and “guard against employee medical incompetence, negligence and
misconduct.” His third cause of action is expressly pled as “negligent
misrepresentation.” It is premised on the claim that defendants negligently stated they
would refer a gastroenterologist to perform a colonoscopy, but instead referred Oh to
perform a laparotomy.
The eighth and ninth causes of action, purportedly based on violations of 42 Code
of Federal Regulations sections 482.13(b)(2) and 482.51(b)(2),5 allege that defendants
deprived Goodwin of his right to make informed decisions regarding his care by failing to
provide or disclose information about the procedures that were eventually performed, and
by failing to obtain informed consent and properly file such consent in his chart prior to
surgery. Indeed, Goodwin appears to recognize that these claims are for negligence, as
he refers to the seventh through 10th causes of action as “medical negligence causes of
action.”
The first and second causes of action, for false promise and intentional
misrepresentation respectively, allege that defendants promised to refer a
gastroenterologist to perform a colonoscopy, but did not intend to keep their word and
instead referred surgeon Oh, who performed the laparotomy and related procedures. The
fourth cause of action for concealment alleges that defendants concealed or failed to
5 These sections of the Code of Federal Regulations pertain to a hospital’s
protection and promotion of patient rights, including, among other things, a patient’s
right to participate in the development and implementation of his or her plan of care, and
the requirement that a properly executed informed consent form must be in the patient’s
chart prior to non-emergency surgery.
12
disclose the plan to perform surgery rather than the colonoscopy. The fifth cause of
action alleges defendants conspired to perpetrate a fraud on Goodwin by falsely telling
him a colonoscopy would be performed, whereas abdominal surgery was planned and
performed.
All these causes of action were premised on the allegation that the defendants led
Goodwin to believe he would undergo a colonoscopy rather than a laparotomy. The
nucleus of each of these claims is that defendants negligently failed to provide Goodwin
with relevant information and obtain his informed consent. Each cause of action
therefore sounds in negligence, and is subject to the one-year limitations period contained
in section 340.5. (Cobbs v. Grant, supra, 8 Cal.3d at p. 240; see also Larson, supra, 230
Cal.App.4th at p. 342.) Because Goodwin’s complaint in the instant action was not filed
until July 22, 2013, well past the date the one-year limitations period had run, these
causes of action are time-barred.
The sixth and seventh causes of action for medical battery and failure to obtain
informed consent allege that defendants performed medical procedures, including a
laparotomy and colostomy, without Goodwin’s consent. Assuming these causes of action
plead battery, rather than negligence (see Cobbs v. Grant, supra, 8 Cal.3d at p. 239;
Perry v. Shaw, supra, 88 Cal.App.4th at p. 664), they are subject to the two-year statute
of limitations set forth by section 335.1. Because the claims accrued no later than
December 1, 2010, and the complaint was not filed until July 22, 2013, they are time-
barred.
Goodwin argues that the first through fifth causes of action should be subject to
the three-year limitations period for fraud. (§ 338, subd. (d).) He argues that the trial
court overlooked a “key fraud allegation” in the factual portion of the complaint, i.e., that
defendants “defrauded” him by using a more expensive “surgery method” in order to
make substantially more money. That portion of the complaint states: “Despite . . . the
promise to find a gastroenterologist, [D]octor Pagano and [D]octor Hakak contacted a
surgeon doctor Anthony Oh, who has never practiced colonoscopy to remove foreign
body. Doctor Anthony Oh wanted to take this job and use surgery method to remove the
13
foreign body, which could generate[] about $10,000 alone for himself. The Hospital
could also make more than $60,000 from surgery. By comparison, the colonoscopy
method could only bring in $500 to $2000 overall income for doctors and hospital.”
Defendants point to Tell v. Taylor (1961) 191 Cal. App. 2d 266, in support of their
contention that the gravamen of these causes of action is negligence, not fraud. In Tell, a
plaintiff asserted causes of action for malpractice and deceit against a doctor who assured
her, incorrectly, that she would sustain no permanent injury from a fall. In holding both
causes of action barred by the one-year statute of limitations, rather than the three-year
limit for fraud, the court explained: “appellant has cited no authority in this state or
elsewhere to indicate that it is possible to extend the statute of limitations in a personal
injury action by bringing it on a theory of fraud. Rather, even though the plaintiff alleges
false representations on the part of the physician or fraudulent concealment, our courts
have always treated the action as one for malpractice.” (Id. at p. 271.)
In Weinstock v. Eissler (1964) 224 Cal. App. 2d 212, the plaintiff alleged he had
consented to a cerebral angiogram but not to a spinal tap; nonetheless, the doctors
performed both procedures, causing injury. The doctors allegedly failed to disclose the
spinal tap or note it in the medical records in order to conceal their negligence. (Id. at
pp. 217-220.) The plaintiff asserted causes of action for, inter alia, deceit. In considering
whether the action was time-barred, the court stated: “The one-year statute of limitations
is applicable even where, as here, the plaintiff-patient alleges a cause of action for deceit
based on the physician’s false representations or fraudulent concealment of the nature and
extent of the injury. Such a cause of action has always been treated as one for
malpractice.” (Id. at p. 227.)
Goodwin cites Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, in support of his
argument. In Nelson, the plaintiff sought elective breast augmentation surgery from the
defendant doctor. She alleged that he committed intentional fraud by injecting her with
silicone without telling her that he was doing so, and without mentioning that the
procedure was illegal. He had been arrested a few months earlier for the same practice.
(Id. at p. 629.) Nelson recognized that generally, in pleading a cause of action for injuries
14
resulting from a procedure that was performed without sufficient information for
knowledgeable consent, either a negligence or battery theory applied. (Id. at p. 634.)
However, in the “more egregious situation” in Nelson, a “fraud theory [was] apposite.”
(Id. at p. 635.) “[W]here, as here, a physician knowingly and intentionally represents that
he can administer safely a substance that, in fact, can be administered only under
restrictions and controls of state or federal authority, and he administers that substance
without the requisite permit and without informing the patient of the restrictions and
dangers, the patient can maintain an action for fraud as well as malpractice. Under these
circumstances, a physician, like any other fiduciary, is liable for his fraudulent conduct.”
(Id. at p. 636.)
Nelson v. Gaunt is distinguishable here. Nelson did not disagree with Tell v.
Taylor, but found it inapplicable where the doctor’s actions were “more egregious” than
the typical case. (Nelson v. Gaunt, supra, 125 Cal.App.3d at p. 635.) Unlike in Nelson,
there is no allegation the defendants engaged in unlicensed conduct or used illegal
substances; Dr. Oh performed surgery, a legal medical procedure, to effectuate the result
that Goodwin sought, removal of the foreign object from his colon. Recasting the claim
as fraud does not change the gravamen of the claim.
Goodwin also argues that his causes of action are not time barred because he
discovered a “new second distinct injury” on September 5, 2013. Goodwin stated in his
briefing below that an X-ray taken on September 5, 2013 revealed that segments of his
sigmoid colon “had stuck and overlapped,” and adhesions had formed around the colon,
requiring further surgery. He argued below that if the demurrer was sustained, he should
be allowed to amend, presumably to allege these facts. Goodwin urges that this new
injury was neither suspected nor discovered until September 5, 2013, and involved
different organs and different diseases. Therefore his complaint, at least insofar as it
pertains to this injury, is not time barred, in that there are “[t]wo distinct injuries, two
primary rights, and two statute of limitation periods.”
Again, we disagree. “A malpractice action may not be pursued piecemeal. ‘ “As a
general rule, where an injury, although slight, is sustained in consequence of the wrongful
15
act of another, . . . the statute of limitations attaches at once. It is not material that all the
damages [resulting] from the act shall have been sustained at that time, and the running of
the statute is not postponed by the fact that the actual or substantial damages do not occur
until a later date. . . .” ’ [Citation.] ‘The long-standing rule in California is that a single
tort can be the foundation for but one claim for damages. [Citation.] Accordingly, if the
statute of limitations bars an action based upon harm immediately caused by defendant’s
wrongdoing, a separate cause of action based on a subsequent harm arising from that
wrongdoing would normally amount to splitting a cause of action.’ [Citation.]”
(Bennett v. Shahhal (1999) 75 Cal. App. 4th 384, 391-392; Miller v. Lakeside Village
Condominium Assn. (1991) 1 Cal. App. 4th 1611, 1622; Sonbergh v. MacQuarrie (1952)
112 Cal. App. 2d 771, 773.)
Goodwin’s citations to Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal. 4th
623, and Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal. 4th 788, are unavailing. In
Pooshs, the plaintiff, a cigarette smoker, was diagnosed, at different times, with
periodontal disease, COPD, and lung cancer. The issue before our Supreme Court was
the following: “ ‘When multiple distinct personal injuries allegedly arise from smoking
tobacco, does the earliest injury trigger the statute of limitations for all claims, including
those based on the later injury?’ ” (Pooshs, at p. 792.) Resolving the question, the court
reasoned: “We hold that two physical injuries—both caused by the same tobacco use
over the same period of time—can, in some circumstances, be considered ‘qualitatively
different’ for purposes of determining when the applicable statute of limitations period
begins to run. [Citation.] Specifically, when a later-discovered disease is separate and
distinct from an earlier-discovered disease, the earlier disease does not trigger the statute
of limitations for a lawsuit based on the later disease. . . . We limit our holding to latent
disease cases, without deciding whether the same rule should apply in other contexts.”
(Ibid.) Goodwin’s surgery was not a latent disease, and his injuries are not separate and
distinct in the same way Pooshs’s were. His newly discovered injuries are of the same ilk
as the injuries discovered in 2010, that is, adhesions in his intestinal system.
16
In Grisham, the plaintiff alleged two different types of injury arising from her
addiction to cigarettes: physical injuries, in the form of respitory ailments; and economic
injury, in that her addiction compelled her to continue to purchase cigarettes. (Grisham
v. Philip Morris U.S.A., Inc., supra, 40 Cal.4th at pp. 628-629.) Grisham did “not resolve
whether and under what circumstances two different physical injuries arising out of the
same wrongdoing can give rise to two separate lawsuits, or whether the two injuries in
the present case can be conceived of as invading two different primary rights.” (Id. at
p. 643.) But because the plaintiff alleged two different types of injury -- “one serious
physical injury or injuries, the other an economic injury”-- her allegations gave rise to
“two different types of action.” (Ibid.) Unlike in Grisham, Goodwin’s injuries are all
physical.
In sum, the demurrers to the first 10 causes of action were properly sustained
without leave to amend on the ground the statute of limitations had run.6
c. The doctrine of res judicata bars Goodwin’s first through 10th causes of action
against the Hospital and Oh
The trial court sustained the Hospital’s demurrer on the alternative ground that
Goodwin’s causes of action were barred by the doctrine of res judicata. Oh also
demurred on the ground the complaint against him was barred by the doctrines of res
judicata and collateral estoppel, and moved to strike the complaint on the same ground.7
The trial court found the motion to strike was moot in light of its disposition on the
demurrer; it did not reach the issue when sustaining the demurrer. The Hospital argues
6 In light of our conclusion, we do not address the contention that 42 Code of
Federal Regulations sections 482.13(b)(2) and 482.51(b)(2) do not give rise to a private
right of action, or that the complaint failed to state a cause of action for deceit.
7 Oh complains that Goodwin has waived any argument regarding the res judicata
bar because he did not raise it vis-à-vis Oh in his opening brief. However, since the trial
court’s ruling, as to Oh, was not based upon the doctrine of res judicata, Goodwin could
not reasonably be expected to make such an argument. Oh’s contention is therefore not
persuasive.
17
its demurrer was properly sustained on res judicata grounds. Oh argues that, although the
trial court below did not reach the issue, the trial court’s order can and should be affirmed
on res judicata grounds. (See Little v. Los Angeles County Assessment Appeals Bds.
(2007) 155 Cal. App. 4th 915, 925, fn. 6 [“Respondents are free to urge affirmance of the
judgment on grounds other than those cited by the trial court”].) Dr. Oh also points out
that while the judgment was not final as to him when the demurrer was heard, it is now
final, and this ground may properly be considered. (See Sutton v. Golden Gate Bridge,
Highway & Transportation Dist. (1998) 68 Cal. App. 4th 1149, 1154, fn. 1; Palm Springs
Paint Co. v. Arenas (1966) 242 Cal. App. 2d 682, 688; Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 8:187.5, p. 8-153.)
“The doctrine of res judicata prohibits a second suit between the same parties on
the same cause of action. In this context, the term ‘cause of action’ is defined in terms of
a primary right and a breach of the corresponding duty; the primary right and the breach
together constitute the cause of action.” (Boeken v. Philip Morris USA, Inc. (2010)
48 Cal. 4th 788, 792 (Boeken); Pollock v. University of Southern California (2003)
112 Cal. App. 4th 1416, 1427; Zevnik v. Superior Court (2008) 159 Cal. App. 4th 76, 82.)
The doctrine gives conclusive effect to a former judgment in subsequent litigation
involving the same controversy. (Boeken, supra, at p. 797; Griset, supra, 25 Cal.4th at
pp. 701-702.) The doctrine applies when “ ‘(1) [a] claim or issue raised in the present
action is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in privity with a party to the prior proceeding.’ ”
(Boeken, supra, at p. 797.)
To determine whether two proceedings involve identical causes of action,
California courts apply the primary rights theory. (Boeken, supra, 48 Cal.4th at p. 797.)
“Under this theory, ‘[a] cause of action . . . arises out of an antecedent primary right and
corresponding duty and the delict or breach of such primary right and duty by the person
on whom the duty rests. “Of these elements, the primary right and duty and the delict or
wrong combined constitute the cause of action in the legal sense of the term . . . .” ’ ”
18
(Id. at pp. 797-798.) “ ‘In California the phrase “causes of action” is often used
indiscriminately . . . to mean counts which state [according to different legal theories] the
same cause of action . . . .’ [Citation.] But for purposes of applying the doctrine of
res judicata, the phrase ‘cause of action’ has a more precise meaning: The cause of
action is the right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced. [Citation.] . . . ‘Even
where there are multiple legal theories upon which recovery might be predicated, one
injury gives rise to only one claim for relief. “Hence a judgment for the defendant is a
bar to a subsequent action by the plaintiff based on the same injury to the same right,
even though he presents a different legal ground for relief.” [Citations.]’ ” (Id. at p. 798;
Hindin v. Rust (2004) 118 Cal. App. 4th 1247, 1258.) Res judicata “bars the litigation not
only of issues that were actually litigated in the prior proceeding, but also issues that
could have been litigated in that proceeding.” (Zevnik v. Superior Court, supra,
159 Cal.App.4th at p. 82.)
“[F]or purposes of applying the doctrine of res judicata . . . a dismissal with
prejudice is the equivalent of a final judgment on the merits, barring the entire cause of
action.” (Boeken, supra, 48 Cal.4th at p. 793.) The same is true as to judgments had by
way of demurrer and summary judgment. (Pollock v. University of Southern California,
supra, 112 Cal.App.4th at p. 1428; Acuña v. Regents of University of California (1997)
56 Cal. App. 4th 639, 648; Lucas v. County of Los Angeles (1996) 47 Cal. App. 4th 277,
285-287 [summary judgment is on the merits for res judicata purposes unless granted
because of lack of jurisdiction or a procedural defect].)
Applying these principles here, it is clear the demurrer to the first through 10th
causes of action was properly sustained. Both lawsuits are premised on the same
incident: the treatment at the Hospital and the surgery performed by Oh in October 2010.
The primary right at issue is Goodwin’s right to be free from unwanted and injurious
surgery. Although Goodwin has, in his second lawsuit, alleged additional legal theories,
application of the res judicata doctrine does not turn on the particular legal theory
asserted. (Boeken, supra, 48 Cal.4th at p. 798; Pollock v. University of Southern
19
California, supra, 112 Cal.App.4th at p. 1427.) Accordingly, res judicata bars the
maintenance of the second suit against the Hospital and Oh on the first through 10th
causes of action.
Goodwin argues, as he did in his statute of limitations argument, that he has
suffered two distinct injuries that “have two distinct primary rights, even [though] they
were caused by the same surgery.” For the reasons explained ante, these contentions lack
merit. Citing Patapoff v. Reliable Escrow Service Corp. (1962) 201 Cal. App. 2d 484,
Goodwin appears to argue that res judicata principles do not apply to a subsequent suit
for damages based on fraud. Goodwin’s theory is that Dr. Oh purportedly lied at his
deposition by claiming he was referred by Dr. Hakak, so he could make more money,
thereby committing fraud; and a nurse also lied at her deposition. Apart from the issue of
whether the alleged facts constitute “fraud,” Patapoff was not a medical malpractice case,
and we do not read it as authority for the proposition that the res judicata doctrine is
generally inapplicable to fraud claims.
Goodwin further argues that the trial court in the first action erred by denying his
motion to set aside the dismissal of the hospital. He contends that the dismissal with
prejudice was filed by mistake, without his authorization, and his motion to set aside the
dismissal should therefore have been granted. (See Romadka v. Hoge (1991) 232
Cal. App. 3d 1231, 1236 [“An attorney’s unauthorized disposition of clients’ substantive
rights is invalid and a judgment based thereon is therefore void”].) The problem with
Goodwin’s argument is that he may not, at this juncture, appeal the court’s ruling on the
order to this court. As noted, review in the first case was dismissed, and decisions arising
in that case are final.8
8 Citing H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal. App. 4th 1357,
1364, the Hospital argues that a voluntary dismissal of an action is not appealable.
Goodwin disagrees. Here, the order at issue is not a voluntary dismissal, but the denial of
a motion to vacate or set aside a voluntary dismissal. Whether, as a general matter, such
an order is appealable is beside the point, because judgment in KC062033 is final.
20
5. Issues related to the 12th cause of action
a. Additional facts
As noted, during the pendency of the KC062033 action, a dispute arose between
Oh and Goodwin regarding the conduct of Oh’s deposition. After Goodwin averred that
Oh’s counsel, Cannon, was improperly “coaching” Oh during a break in the proceedings,
Cannon terminated the deposition. According to Cannon, when he sought to consult
privately with Oh during a break, Goodwin followed Oh and Cannon around the hotel
where the deposition was taking place, preventing them from conferring in private.
According to Goodwin, Cannon repeatedly asked to go off the record, during which time
he coached Oh to change his testimony. Oh moved for a protective order and sought
sanctions against Goodwin. Goodwin moved for sanctions against Cannon for
misconduct pursuant to section 2023.010. The trial court granted Oh’s motion for a
protective order, prohibiting Goodwin from further deposing him absent court order. The
court denied Goodwin’s motion for sanctions.
Goodwin’s 12th cause of action in the operative complaint, alleged against
attorney Cannon and Dr. Oh, was for “violation of Los Angeles Superior Court Rule 3.26
Appendix 3.A(e)(8).” Goodwin alleged that when he was taking Oh’s deposition in May
and June 2012, “[w]hen questions about surgery consent and other things were asked and
pending, defendant Christopher Cannon recklessly forced to take a break, went out of
conference room with his client Anthony Oh, then coached Anthony Oh. When
depositions continued, Anthony Oh lied.” This conduct “violated said court rule. From
the unlawful coaching, defendant Christopher Cannon explicitly or implicitly coached his
client Anthony Oh to lie. Doctor Anthony Oh lied about doctor referring, surgery
consent, and other things, in the depositions.” As a result, “defendants damaged the
litigation process, and significantly and badly affected the outcome of plaintiff’s case.”
Oh and Cannon demurred to the 12th cause of action on the grounds, inter alia, it
failed to state facts sufficient to constitute a cause of action and was barred by the
litigation privilege; they also brought anti-SLAPP motions on the grounds the challenged
21
communications were privileged under section 425.16. The motions also sought
attorneys’ fees.
The trial court sustained both demurrers without leave to amend. It ruled that the
litigation privilege applied, and the local court rule did not create a cause of action for
damages. It granted Cannon’s and Oh’s motions to strike because Cannon’s advice to his
client, in the midst of a deposition, qualified as a right arising from Oh’s right to petition
or free speech, and Goodwin could not establish a probability of prevailing on his claim.
b. The demurrers to the 12th cause of action were properly sustained without
leave to amend
The trial court properly sustained the demurrers to the 12th cause of action.
Los Angeles County Superior Court, Local Rules, rule 3.26 provides, “The guidelines
adopted by the Los Angeles County Bar Association are adopted as civility in litigation
recommendations to members of the bar, and are contained in Appendix 3.A.” Appendix
3.A(e)(8) provides: “While a question is pending, counsel should not, through objections
or otherwise, coach the deponent or suggest answers.” Goodwin cites no persuasive
authority for the novel proposition that violation of this guideline gives rise to a cause of
action, and we are aware of none. Violations of discovery rules are enforceable via
sanctions. (See §§ 2023.030 [court may impose monetary or other sanctions for misuse
of the discovery process]; 575.2.) The authorities cited by Goodwin (Hall v. Clifton
Precision (E.D.Pa. 1993) 150 F.R.D. 525, and Tucker v. Pacific Bell Mobile Services
(2010) 186 Cal. App. 4th 1548, do not assist him. In Tucker, the appellate court upheld a
portion of a court’s order awarding monetary sanctions for abuse of the discovery process
after an attorney coached a deponent. (Tucker, supra, at pp. 1551, 1562.) In Hall, a
federal district court opined that coaching a witness during a deposition was improper,
and made an “[o]rder containing guidelines for the conduct of the depositions of parties
and other witnesses represented by counsel” in that case. (Hall v. Clifton Precision,
supra, at p. 531.) Neither of these cases in any way suggest that a private right of action
exists for violation of a local court guideline.
22
The trial court also correctly ruled that the communications between Oh and
Cannon were not actionable because they were shielded by the litigation privilege. The
litigation privilege is codified in Civil Code section 47, which provides, in pertinent part,
that a privileged publication or broadcast is one made in any “judicial proceeding.”
(Civ. Code, § 47, subd. (b).) “ ‘Although originally enacted with reference to defamation
[citation], the privilege is now held applicable to any communication, whether or not it
amounts to a publication [citations], and all torts except malicious prosecution.
[Citations.] Further, it applies to any publication required or permitted by law in the
course of a judicial proceeding to achieve the objects of the litigation, even though the
publication is made outside the courtroom and no function of the court or its officers is
involved. [Citations.] [¶] The usual formulation is that the privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
have some connection or logical relation to the action. [Citations.]’ [Citation.] Thus,
‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune
from tort liability’ by the litigation privilege [citation]. It is not limited to statements
made during a trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057, italics added;
see also Silberg v. Anderson (1990) 50 Cal. 3d 205, 212.) The litigation privilege has
been given “broad application,” and applies to any communication, whether or not it
amounts to a publication. (Silberg, at pp. 211-212.)
Here, the challenged conduct – consultations between lawyer and client – was
clearly communicative. (See generally Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058.)
The communications were between a litigant and his attorney, in a deposition, were
related to judicial proceedings, and made to achieve the objects of the litigation.
Accordingly, the challenged communications were covered by the litigation privilege.
(Silberg v. Anderson, supra, 50 Cal.3d at p. 212; Rusheen v. Cohen, supra, at p. 1052
[concluding that the litigation privilege protected the communicative act of filing
declarations of service in an abuse of process case].)
23
Goodwin’s argument -- that the litigation privilege only covers proceedings held
before judicial officers, and Cannon’s conduct did not qualify because it occurred during
a break in a deposition -- is incorrect. (See Rusheen v. Cohen, supra, 37 Cal.4th at
p. 1057; Silberg v. Anderson, supra, 50 Cal.3d at p. 212 [the litigation privilege “applies
to any publication required or permitted by law in the course of a judicial proceeding to
achieve the objects of the litigation, even though the publication is made outside the
courtroom and no function of the court or its officers is involved”].)
c. The anti-SLAPP motion was properly granted.
Goodwin’s challenge to the trial court’s grant of Oh’s and the Hospital’s special
motion to strike likewise lacks merit.
“Code of Civil Procedure section 425.16 provides a procedure for the early
dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public
participation)—litigation of a harassing nature, brought to challenge the exercise of
protected free speech rights.” (Fahlen v. Sutter Central Valley Hospitals (2014)
58 Cal. 4th 655, 665, fn. 3; Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1055-1056.) We
independently review a trial court’s ruling on a special motion to strike brought pursuant
to section 425.16. (Rusheen v. Cohen, at p. 1055.)
Section 425.16, subdivision (e) provides in pertinent part: “As used in this
section, ‘act in furtherance of a person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue’ includes: (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 . . . .”
“In evaluating an anti-SLAPP motion, the trial court first determines whether the
defendant has made a threshold showing that the challenged cause of action arises from
protected activity. [Citation.] . . . ‘A cause of action “arising from” defendant’s litigation
activity may appropriately be the subject of a section 425.16 motion to strike.’
24
[Citations.] ‘Any act’ includes communicative conduct such as the filing, funding, and
prosecution of a civil action. [Citation.] This includes qualifying acts committed by
attorneys in representing clients in litigation. [Citations.]” (Rusheen v. Cohen, supra,
37 Cal.4th at p. 1056, italics added.) If the court finds the defendant has made the
threshold showing, it determines then whether the plaintiff has demonstrated a probability
of prevailing on the claim. (Ibid.) To establish a probability of prevailing on the claim,
the plaintiff must demonstrate that the complaint is legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited. (Ibid.)
Cannon’s alleged conduct at Oh’s deposition falls within the purview of section
425.16. Conferences between Oh and Cannon during the course of the deposition were
made in connection with an issue under consideration by a judicial body, in that they
were directly related to Goodwin’s pending lawsuit, in which Oh was a defendant and
Cannon was counsel. As we have discussed, Goodwin could not have demonstrated a
probability of prevailing on his 12th cause of action. Accordingly, the motion was
properly granted.
Goodwin contends that because the communications at issue were not made before
a legislative, executive, or judicial body, they fall outside the statute’s rubric. In his
view, the only type of speech that falls within the statute is “speech before public
officers.” He is incorrect. (See, e.g., Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal. 4th 1106, 1115-1116; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman
(1996) 47 Cal. App. 4th 777, 784 [“The fact that the communication was made to other
private citizens rather than to the official agency does not exclude it from the shelter of
the anti-SLAPP suit statute”]; Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 36-37 [voice
mail messages concerning the subject of dispute were in anticipation of contemplated
litigation and were protected activity]; Neville v. Chudacoff (2008) 160 Cal. App. 4th
1255, 1262.)
Goodwin also avers that since improperly coaching a witness is unethical,
recognizing such conduct as free speech is “bizarre and illogical.” However,
25
“ ‘ “[c]onduct that would otherwise come within the scope of the anti-SLAPP statute does
not lose its coverage . . . simply because it is alleged to have been unlawful or unethical.”
[Citations.] An exception to the use of section 425.16 applies only if a “defendant
concedes, or the evidence conclusively establishes, that the assertedly protected speech or
petition activity was illegal as a matter of law.” ’ ” (Cabral v. Martins (2009)
177 Cal. App. 4th 471, 482.) That exception does not apply here, in light of the fact the
trial court granted Oh’s motion for a protective order and denied Goodwin’s request for
sanctions based on the allegedly unethical conduct. (See Cabral, supra, at p. 482; G.R. v.
Intelligator (2010) 185 Cal. App. 4th 606, 612-616.)
26
DISPOSITION
The appeal is dismissed as it pertains to Khalife. The judgments are otherwise
affirmed. Respondents are entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
EDMON, P. J.
JONES, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
27