Marsh v. Anesthesia Services Medical Group CA4/1 ( 2014 )


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  • Filed 6/3/14 Marsh v. Anesthesia Services Medical Group CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    M. LOU MARSH,                                                       D064024
    Plaintiff and Appellant,
    v.                                                         (Super. Ct. No. 37-2007-00082724-
    CU-BT-CTL)
    ANESTHESIA SERVICES MEDICAL
    GROUP, INC.,
    Defendant and Respondent.
    APPEAL from judgment of the Superior Court of San Diego County, William S.
    Dato, Judge. Affirmed in part, reversed in part.
    Rosenberg, Shpall & Associates, David Rosenberg and Amy Lea for Plaintiff and
    Appellant.
    Paul, Plevin, Sullivan & Connaughton, Matthew J. Schenck and Douglas R.
    Clifford for Defendant and Respondent.
    After demurrer proceedings, the trial court dismissed all remaining causes of
    action alleged by plaintiff and appellant M. Lou Marsh (Appellant), in this dispute among
    professionals in the business of health care. Appellant is a board certified
    anesthesiologist licensed to practice medicine in California, who seeks damages against a
    professional medical corporation with which she was formerly associated, defendant and
    respondent Anesthesia Service Medical Group, Inc. (ASMG). In her fifth amended
    complaint (FAC), she claims ASMG, which provides physician services to hospitals and
    other medical centers in San Diego County, intentionally acted to interfere with her
    economic interests, by making defamatory statements about her medical practice and
    character that resulted in loss of her business opportunities.
    This court previously resolved a prior appeal in this action, Marsh v. Anesthesia
    Services Medical Group (2011) 
    200 Cal.App.4th 480
     (Marsh or our prior opinion). In
    that published opinion dealing with the third amended complaint (TAC), we upheld
    rulings that sustained demurrers to various of her tort and statutory causes of action,
    without leave to amend. However, we reversed the judgment of dismissal as to ASMG,
    regarding the trial court's erroneous ruling sustaining the demurrer without leave to
    amend on her cause of action for intentional interference with prospective economic
    advantage (IIPEA). (Korea Supply Co. v. Lockheed Martin Corp. (2003) 
    29 Cal.4th 1134
    , 1158 (Korea Supply).) We directed the trial court to allow her to file an amended
    pleading against ASMG solely on the IIPEA claim. (Marsh, supra, at pp. 505-506.) She
    was also allowed to reassert a related breach of contract cause of action, which she had
    dismissed without prejudice in connection with the taking of the prior appeal. That claim
    was based on ASMG's alleged violations of a nondisparagement clause in her 2004
    separation agreement from its employment. (Ibid.)
    2
    Following two more efforts at amendment by Appellant, ASMG again demurred
    to the FAC's cause of action for IIPEA, primarily contending that she had failed to set
    forth sufficient facts regarding proximate causation of harm. It also moved to strike her
    related cause of action for breach of contract, on the grounds that pursuant to a previous
    settlement agreement, if she could not state a viable accompanying claim, the contract
    action would be deemed to lack adequate support in the pleading.
    In response, Appellant argued her IIPEA claim was well supported, because she
    alleged that two plastic surgeons who had previously retained her to work with them on
    cases, Dr. Stewart Kincaid and Dr. Steven Cohen ("the two surgeons," who are not
    parties to this action), had heard and reacted to ASMG's defamatory statements about her,
    by making professional decisions that were adverse to her opportunities for any continued
    employment at a Scripps Hospital outpatient facility, Ximed. According to the FAC, one
    of the two surgeons stopped using Appellant at Ximed "due to" the defamatory
    statements he heard from ASMG about her character and practice, which caused him not
    to want to "rock the boat" and thus damage his own hospital career. Similarly, the other
    named surgeon stopped using Ximed at all, because the ASMG statements that he heard
    led him to believe that it presented a hostile environment to Appellant.
    The trial court sustained the demurrer without leave to amend, reasoning that
    Appellant had not pled that the two surgeons actually believed the defamatory statements
    that ASMG made, and therefore she had not adequately linked the alleged wrongful
    conduct by ASMG with her inability to work for the two surgeons at Ximed. The trial
    court also struck the related cause of action for breach of contract for lack of adequate,
    3
    remaining support in the pleading. Appellant again appeals, addressing her arguments
    only to the demurrer ruling.
    In the controlling authority, Korea Supply, 
    supra,
     29 Cal.4th at page 1163, the
    court observed, "[w]e find no sound reason for requiring that a defendant's wrongful
    actions must be directed towards the plaintiff seeking to recover for this tort." Relying on
    Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 
    11 Cal.4th 376
    , 409 (conc. opn.
    of Mosk, J.) (Della Penna), the court stated that the interfering party is liable to the
    interfered-with party "when the independently tortious means the interfering party uses
    are independently tortious only as to a third party. Even under these circumstances, the
    interfered-with party remains an intended (or at least known) victim of the interfering
    party--albeit one that is indirect rather than direct." (Italics in original.) "In fact, '[t]he
    most numerous of the tortious interference cases are those in which the disruption is
    caused by an act directed not at the plaintiff, but at a third person.' " (Korea Supply,
    supra, at p. 1163.)
    Moreover, the Supreme Court has viewed the IIPEA tort as " 'considerably more
    inclusive than actions based on contract or interference with contract, and [it] is thus not
    dependent on the existence of a valid contract.' " (Korea Supply, 
    supra,
     
    29 Cal.4th 1134
    ,
    1157-1158, relying on Buckaloo v. Johnson (1975) 
    14 Cal.3d 815
    , 823, fn. 6, 826-827.)
    It is not appropriate to read the FAC too narrowly under that logical and doctrinal
    approach.
    The current dismissal ruling fails to recognize that the cause of action pled in the
    FAC for IIPEA adequately sets forth the elements of independently tortious wrongful,
    4
    defamatory conduct that supports a cognizable claim, and this includes the element of
    proximate causation of identifiable economic injury to the plaintiff that is directly or
    indirectly attributable to the effect of the defendant's conduct upon third parties. We
    reverse the judgment of dismissal as to that cause of action only, but affirm the judgment
    of dismissal on the breach of contract claim, due to the lack of any arguments about it in
    this appeal.
    I
    BACKGROUND OF PLEADINGS ISSUES
    A. Prior Appeal
    Appellant alleges essentially the same transactional facts as in her prior appeal,
    and we need not set them forth here. We follow the same rule that in analyzing the
    demurrer and motion rulings, "we take the facts properly pleaded to assess whether they
    may state their causes of action, as matters of law." (Marsh, supra, 200 Cal.App.4th at
    p. 488.)
    In our prior opinion, we noted that some elements of this tort were present in the
    TAC, but others had not been adequately set forth: "As to ASMG, we conclude
    Appellant has sufficiently alleged the first of the required elements, existence of a
    previous economic relationship with the two surgeons, with probability of future
    economic benefit to her. Next, Appellant adequately alleged that ASMG had knowledge
    of this ongoing economic relationship with the two surgeons, and that the relationship
    would have probable future economic benefit to her, but ASMG nevertheless engaged in
    5
    certain 'intentional wrongful acts' designed to disrupt her professional relationships."
    (Marsh, supra, 200 Cal.App.4th at pp. 505-506.)
    At the time our prior opinion was issued, the TAC did not adequately incorporate
    any defamation allegations, which only concerned an alleged breach of the
    nondisparagement clause in the separation agreement, in the cause of action that had been
    dismissed without prejudice. We allowed that contract claim to be reasserted, and leave
    to amend was required to allow Appellant to present additional allegations about the
    " ' " . . . (3) intentional acts on the part of the defendant designed to disrupt the
    relationship; (4) actual disruption of the relationship; and (5) economic harm to the
    plaintiff proximately caused by the acts of the defendant." ' [Citations.]" (Korea Supply,
    supra, 
    29 Cal.4th 1134
    , 1153.)
    The analysis in our prior opinion added that the alleged acts of defamation or
    disparagement by ASMG, about Appellant, "could legitimately be considered to meet, for
    pleadings purposes, the standards for establishing 'independent wrongfulness' of
    interference, as enunciated in Korea Supply, 
    supra,
     
    29 Cal.4th 1134
    , 1159, if properly
    incorporated into the TAC cause of action. Common law defamation claims are subject
    to 'determinable legal standard[s]' for resolution, as required for such a tort claim."
    (Marsh, supra, 200 Cal.App.4th at p. 505.)
    In our prior opinion, we declined to discuss any policy issues concerning whether
    Appellant had some kind of right to pursue a particular business model of a solo
    practitioner, compared to a group practice such as ASMG. Another unresolved issue on
    the status of the pleading was whether the parties would further pursue any privilege
    6
    issues under Civil Code section 47, which had not been fully briefed or litigated. We
    expressed no opinion on them. (Marsh, supra, 200 Cal.App.4th at p. 506.)
    We accordingly noted in the prior opinion that we were unable to determine at that
    time whether "Appellant will be unable to adequately allege proximate causation of
    economic harm to her from wrongful acts of ASMG. The disruption in her practice that
    she attributes to their acts may well have been caused by other factors, but it is not yet
    before the courts whether there is a causal relationship between ASMG's allegedly
    wrongful acts and Appellant's harm." (Marsh, supra, 200 Cal.App.4th at p. 506.) We
    concluded, "[T]he trial court should have allowed Appellant an opportunity to file an
    amended pleading to state her best case on this [IIPEA] theory." (Ibid.)
    B. Content of FAC
    As before, Appellant's FAC alleges that she previously provided anesthesia
    services to the two surgeons when they performed procedures at outpatient surgery
    centers affiliated with various hospitals in the area. In 2006, she decided to resume
    practicing at Scripps hospital facilities, including Ximed, by taking cases there with the
    two surgeons.
    Appellant continues to allege that ASMG participated in the enactment of new
    hospital staffing rules that imposed unfair burdens upon her in particular. Such rules
    required all staff to participate in regular night and weekend hospital call duty, which she
    felt would jeopardize her health. Other new utilization and staff rules required
    anesthesiologists practicing at Scripps to attend a minimum number of monthly meetings,
    7
    and to participate in at least 20 surgical cases over a two-year period, which she found
    unduly onerous.
    In response to her efforts to manage her own practice, ASMG allegedly took
    actions to limit her practice at Ximed in several wrongful and defamatory ways. In the
    FAC, the cause of action for damages for IIPEA now asserts that ASMG's underlying
    wrongful acts consisted of publicizing its defamatory statements about Appellant and her
    ability to practice, to colleagues in the surgery and hospital fields, with wrongful intent to
    interfere with her business opportunities. The FAC gives 13 specific examples of
    statements ASMG made to other surgeons, hospital staff (nurses), hospital personnel and
    administrators, as well as Appellant's patients and the general public. Such statements
    included knowingly false misrepresentations to interested parties that her employment
    status was "retired," that she did not carry her fair share of call, that this adversely
    affected hospital morale, and that she was disruptive, adversarial, and should be avoided.
    The FAC differs from previous versions of Appellant's pleadings primarily with
    regard to the causation allegations. In the TAC and the fourth amended complaint (for
    which leave to amend was allowed), she generally alleged that she suffered harm as a
    result of the statements made by ASMG, which intimidated other doctors and resulted in
    her inability to perform any anesthesia services at the request of surgeons, and this was a
    substantial factor in causing her harm. Appellant now more specifically pleads that when
    ASMG made those defamatory and disparaging comments about her to the two surgeons
    that she wished to work with, and to others, this was intimidating conduct which caused
    these two surgeons to react by deciding not to hire her at Ximed (Dr. Kincaid), or not to
    8
    use Ximed at all (Dr. Cohen). Thus, "Defendant's conduct of making defamatory
    statements and creating a hostile work environment effectively caused Dr. Marsh to
    suffer damages by not being able to practice with [the two surgeons] at Ximed."
    C. Subject Ruling
    In its order, the trial court acknowledged that Appellant had adequately alleged,
    through the defamation claims, the independently wrongful acts necessary to support an
    IIPEA claim. Other preliminary IIPEA elements were also sufficient. However, the trial
    court concluded that Appellant had failed to sufficiently allege damage to her existing
    relationships with the two surgeons, that was caused by the independently wrongful
    conduct. The trial court found lacking any facts sufficiently linking the alleged wrongful
    conduct (independently false statements) with Appellant's inability to work for the two
    surgeons at that facility, because Appellant did not and could not allege that those two
    surgeons believed the defamatory statements. The court noted that to the contrary, the
    pleading alleged the two surgeons continued to believe Appellant was competent and
    they wanted to continue using her services.
    The trial court concluded, "[i]t is thus not the falsity of ASMG's statements that
    has damaged Marsh, and she cannot rely on the abstract existence of defamatory
    statements in the workplace" to allege economic harm in the form of lost work from Dr.
    Kincaid. Likewise, the trial court ruled that Dr. Cohen's decision to stop using the Ximed
    facility at all, as he found it to be a hostile environment with respect to Appellant, could
    not be attributed to his belief in any defamatory statements about Appellant. The mere
    existence of such a "hostile attitude and environment" arguably did not qualify as an
    9
    independently wrongful act for purposes of stating this cause of action (citing Korea
    Supply, 
    supra,
     29 Cal.4th at p. 1159).
    Next, the trial court ruled that although Appellant had permissibly reasserted her
    cause of action for breach of contract in the FAC (nondisparagement clause in separation
    agreement), the motion to strike this claim would be granted. The court reasoned that it
    had been determined in earlier motion proceedings that the parties' partial settlement and
    release agreement anticipated that such a contract claim could not survive without an
    accompanying, meritorious tort theory (here, IIPEA). Without such survival of the
    IIPEA cause of action, the motion to strike was granted. This appeal followed.
    II
    SCOPE OF ISSUES PROPERLY PRESERVED ON APPEAL
    On appeal, the parties have not discussed the portion of the ruling striking
    Appellant's contract claim, based in part on the trial court's interpretation of the previous
    settlement agreement. We cannot determine from the briefs whether they believe the
    contract claim stands or falls with the tort claim, or whether Appellant does not choose to
    pursue it.
    " 'When an appellant fails to raise a point, or asserts it but fails to support it with
    reasoned argument and citations to authority, we treat the point as waived. [Citations.]' "
    (Nelson v. Avondale Homeowners Assn. (2009) 
    172 Cal.App.4th 857
    , 862.) "We are not
    bound to develop appellants' argument for them. [Citation.] The absence of cogent legal
    argument or citation to authority allows this court to treat the contention as waived." (In
    re Marriage of Falcone & Fyke (2008) 
    164 Cal.App.4th 814
    , 830; see also Associated
    10
    Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 
    21 Cal.4th 352
    , 366,
    fn. 2.)
    Under those standards, we conclude that any claims about the viability of these
    contract claims have been waived. In any case, Appellant has amended the FAC to
    incorporate those defamation allegations that had been previously omitted from the TAC,
    to cure the pleading problem noted in our prior opinion. Thus, the two causes of action
    are no longer integrally related, and we are now required to consider only the validity of
    the ruling on demurrer to the FAC, regarding the IIPEA allegations. In doing so, we are
    not required to consider only the specific reasoning of the trial court, but examine
    whether the allegations state a cause of action under any legal theory. (See Grinzi v. San
    Diego Hospice Corporation (2004) 
    120 Cal.App.4th 72
    , 85.)
    The trial court did not reach the privilege issues argued by ASMG as an alternative
    ground of demurrer, i.e., that the allegedly defamatory communications it made were
    qualifiedly privileged, as made between interested parties. (Civ. Code, § 47, subd. (c).)
    The parties have briefed that issue on appeal. We need not discuss it, because the
    authorities on proximate cause in this tort context are sufficient to resolve the case at the
    pleadings stage.
    III
    PRELIMINARY ELEMENTS OF IIPEA: ADEQUATELY PLED
    A. Elements of Probability of Future Economic Benefit; Interference
    We apply the same authorities as discussed in our prior opinion, spelling out the
    elements of a cause of action for IIPEA. The first three of five elements are usually
    11
    stated as follows, and they seem to include some causation considerations in terms of a
    probability requirement: " ' "(1) an economic relationship between the plaintiff and some
    third party, with the probability of future economic benefit to the plaintiff; (2) the
    defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant
    designed to disrupt the relationship." ' " (Korea Supply, 
    supra,
     
    29 Cal.4th 1134
    , 1153;
    italics added.)
    In Marsh, we relied on statements in Korea Supply, 
    supra,
     29 Cal.4th at page
    1159, as clarifying that "the third element of the tort of interference with prospective
    economic advantage 'also requires a plaintiff to plead intentional wrongful acts on the
    part of the defendant designed to disrupt the relationship.' [Citation.] Whether an act is
    independently wrongful depends on its unlawfulness (if it is 'proscribed by some
    constitutional, statutory, regulatory, common law, or other determinable legal standard')."
    (Marsh, supra, 200 Cal.App.4th at p. 504.)
    In Korea Supply, 
    supra,
     
    29 Cal.4th 1134
    , 1153-1157, the court concluded an
    IIPEA plaintiff must plead not only that the defendant intentionally committed an act that
    is independently wrongful (i.e., unlawful under determinable legal standards), but also
    that the defendant knew that the interference was "certain or substantially certain" to
    occur as a result of its action. The Supreme Court upheld a previous ruling that Korea
    Supply's complaint adequately stated the element of direct causation of economic loss by
    the tortious acts of the defendant, because the defendant allegedly knew that its
    interference with the plaintiff's reasonably anticipated commission was certain or
    substantially certain to occur. (Id. at pp. 1164-1165.)
    12
    B. Element of Proximate Causation and Definitions
    The last two of five elements require an IIPEA plaintiff to state sufficient facts of
    " ' "(4) actual disruption of the relationship; and (5) economic harm to the plaintiff
    proximately caused by the acts of the defendant." ' [Citations.]" (Korea Supply, supra,
    29 Cal.4th at p. 1153.) In that case, the majority stated that the proximate cause
    requirement in a cause of action for IIPEA will prevent a plaintiff from recovering for
    harm that is too remotely connected to a defendant's wrongful conduct. (Id. at pp. 1165-
    1166.)
    Even so, a defendant's wrongful actions need not be directed towards the plaintiff
    who is claiming IIPEA. Rather, "[t]he interfering party is liable to the interfered-with
    party 'when the independently tortious means the interfering party uses are independently
    tortious only as to a third party . . . the interfered-with party remains an intended (or at
    least known) victim of the interfering party-albeit one that is indirect rather than direct.' "
    (Korea Supply, supra, 29 Cal.4th at p. 1163; italics omitted.)
    Proximate causation issues are not discussed in detail by the Korea Supply
    majority opinion, as the dissenting opinion points out. (Korea Supply, 
    supra,
     29 Cal.4th
    at pp. 1175-1176 (conc. & dis. opn. of Chin, J.).) This dissenting opinion outlines basic
    principles of proximate cause, as being " ' "ordinarily concerned, not with the fact of
    causation, but with the various considerations of policy that limit an actor's responsibility
    for the consequences of his conduct." ' [Citation.]" (Ibid., citing PPG Industries, Inc. v.
    Transamerica Ins. Co. (1999) 
    20 Cal.4th 310
    , 315-316 (PPG Industries).) The dissent
    would thus have declined to recognize an IIPEA cause of action for plaintiffs who "allege
    13
    only remote, indirect, and derivative injury." (Korea Supply, 
    supra, at p. 1186
     (conc. &
    dis. opn. of Chin, J.).)
    Further, this dissent says, and the majority opinion does not disagree, that
    proximate cause determinations involve public policy limitations to be imposed upon
    liability, and those limitations are decided as questions of law. (Korea Supply, 
    supra,
    29 Cal.4th at p. 1186 (conc. & dis. opn. of Chin, J.).)
    The proximate causation doctrine has mainly been developed in the field of
    negligence. By way of summary, the commentators in 6 Witkin, Summary of California
    Law (10th ed. 2005) Torts, sections 1184 and 1185, pages 551 to 553, explain that in
    negligence cases, proximate cause is generally held to be a question of fact, regarding
    cause in fact and legal cause. However, where the facts are undisputed, the courts may
    decide the legal cause issue as a matter of law, based on important policy concerns about
    limitations on the scope of liability. (PPG Industries, supra, 
    20 Cal.4th 310
    , 315-316.)
    The proximate cause element of the IIPEA tort should be interpreted by
    incorporating the probability-related concerns of the other established elements, including
    whether the plaintiff pleaded "probable" future economic benefit, and that the defendant
    committed intentionally wrongful acts that were "substantially certain" to disrupt the
    relationship. Such intentional disruptions by the defendant must be alleged to have
    resulted in economic harm to the plaintiff, both as causes in fact and legal causes.
    14
    IV
    DEFAMATION AS UNDERLYING WRONGFUL ACT
    Appellant has alleged the defamatory statements by ASMG, communicated
    throughout the relevant medical community, amounted to actionable underlying wrongful
    acts that support her cause of action for IIPEA. She does not allege a separate
    defamation claim, and was not required to do so. ASMG continues to dispute whether its
    statements were merely nonactionable opinion or speculation.
    We are required to consider whether Appellant has sufficiently pled that ASMG's
    statements had a causative effect upon the third party surgeons, Doctors Kincaid and
    Cohen, at the time they chose not to afford Appellant her desired employment
    opportunities at Ximed, leading to her economic injury. We next set forth legal standards
    about the potential effect of alleged defamatory statements, including any reliance on the
    truth of the statements.
    A. Predicate Intentional Act of Defamation
    We have previously concluded that as a matter of law, defamation may amount to
    the independently wrongful act element of the IIPEA cause of action, if it is adequately
    pled. (Marsh, supra, 200 Cal.App.4th at pp. 504-506.) Statutorily, "Slander is a false
    and unprivileged publication, orally uttered . . . , which: [¶] (3.) Tends directly to injure
    [one] in respect to [one's] office, profession, trade or business, either by imputing . . .
    general disqualification in those respects which the office or other occupation peculiarly
    requires, or by imputing something with reference to [the] office, profession, trade, or
    business that has a natural tendency to lessen its profits [¶] . . . [¶] or (5.) Which, by
    15
    natural consequence, causes actual damage." (Civ. Code, §§ 46, italics added; 44
    [defines defamation as occurring by libel or slander].)
    "Defamation is an invasion of the interest in reputation. The tort involves the
    intentional publication of a statement of fact that is false, unprivileged, and has a natural
    tendency to injure or which causes special damage. [Citations.] Publication means
    communication to some third person who understands the defamatory meaning of the
    statement and its application to the person to whom reference is made. Publication need
    not be to the 'public' at large; communication to a single individual is sufficient." (Smith
    v. Maldonado (1999) 
    72 Cal.App.4th 637
    , 645.)
    " 'The code definition of libel [or slander] is very broad and has been held to
    include almost any language which, upon its face, has a natural tendency to injure a
    person's reputation, either generally, or with respect to his occupation.' " (Maidman v.
    Jewish Publications, Inc. (1960) 
    54 Cal.2d 643
    , 649.) " '[I]t makes no difference what
    the nature of the employment is, provided it is lawful, or whether the conduct imputed is
    such as in itself the law will blame or not, provided it is inconsistent with the due
    fulfillment of what the party, in virtue of his employment or office, has undertaken.' "
    (Maidman, supra, at pp. 650-651; italics in original.)
    In Maidman, the defendant publication included some true and factual statements
    about the plaintiff's professional conduct, but it then added editorial comments, opinions
    and criticisms that were defamatory and unprivileged. (Maidman, supra, 54 Cal.2d at
    p. 649.) That was enough to state a cause of action for libel per se. (Ibid.)
    16
    B. Innuendo Issues
    In its respondent's brief, ASMG goes through 13 allegedly defamatory statements
    and points out the ones that it thinks are opinion, or speculation, or simple fact. ASMG's
    arguments in this respect are answered by well-established concepts in defamation law,
    inducement and innuendo. A defamation cause of action must set forth, in addition to the
    publication, any extrinsic circumstances showing that it was understood in its defamatory
    sense (to support the innuendo), where the publications could be viewed as ambiguous in
    nature. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleadings, § 735, pp. 156-157.) The
    plaintiff must then allege the statements had a defamatory meaning. (Ibid.)
    MacLeod v. Tribune Publishing Co. (1959) 
    52 Cal.2d 536
    , 546 holds that
    defamation allegations are analyzed as presenting questions of law about whether the
    publication could reasonably have been understood to make charges that injure the
    plaintiff in his or her professional reputation. "The fact that an implied defamatory
    charge or insinuation leaves room for an innocent interpretation as well does not establish
    that the defamatory meaning does not appear from the language itself. The language
    used may give rise to conflicting inferences as to the meaning intended, but when it is
    addressed to the public at large, it is reasonable to assume that at least some of the readers
    will take it in its defamatory sense." (Id. at p. 549.)
    Likewise, where a statement of opinion implies there are additional, undisclosed
    defamatory facts that form the basis for the opinion, this statement may lose any
    protected status. (Okun v. Superior Court (1981) 
    29 Cal.3d 442
    , 451-452.)
    17
    In Smith v. Maldonado, supra, 
    72 Cal.App.4th 637
    , 646-647, the court explained
    that where a defendant's statements are not defamatory on their face but are capable of a
    defamatory meaning, through innuendo, "the defendant must demonstrate the truth of the
    statements in that sense in which the plaintiff's innuendo explains them." (Id. at p. 646.)
    It falls to the defendant to prove true the substance of the charge, or that " 'the imputation
    is substantially true so as to justify the "gist or sting" of the remark.' " (Id. at pp. 646-
    647.)
    In Patton v. Royal Industries, Inc. (1968) 
    263 Cal.App.2d 760
    , 764 (Patton), the
    defendant failed to meet such a burden, to show that its statements about the reasons that
    its former employees were terminated were nondefamatory. The former employees,
    plaintiffs, were highly skilled workmen who left the defendant's employment voluntarily
    and started up a business of their own. Defendant then sent a letter to at least 72 potential
    customers for work that its own and plaintiffs' company would be doing, stating that
    plaintiffs' employment was "terminated," and they were "being replaced with personnel
    having more experience and knowledge" in the field. (Ibid.)
    In Patton, supra, 
    263 Cal.App.2d 760
    , 765-766, the plaintiffs lost at trial on their
    libel per se claim, but the judgment was reversed on that point. The court said the jury
    should not have been given an opportunity to decide the libel issue, because the
    defendant's statements amounted to libel per se on the subject of the plaintiffs' fitness for
    their occupation: "The letter is susceptible of no interpretation other than as a statement
    that plaintiffs were discharged. Moreover, the implication that plaintiffs' services had not
    18
    been first-class or satisfactory was a serious reflection upon their abilities . . . ." (Id. at
    pp. 765-766.)
    Here too, the statements by ASMG that Appellant had retired or was somehow
    unfit for further service must be read in context of the entire pleading, which sets forth
    enough extrinsic circumstances to illustrate a potentially defamatory meaning, and
    alleges that she had made efforts to communicate to the medical establishment that she
    still wanted to work. Even assuming some of the ASMG statements were ambiguous,
    sufficient facts are pled to set forth a defamatory meaning of ASMG's criticisms of
    Appellant's professional conduct, when the entire cause of action is read in context.
    Those statements suffice as the independent wrongful act element of the IIPEA cause of
    action, which alleges that the defamatory statements about her, within the relevant
    community, were known by the speakers to be "substantially certain" to adversely affect
    her economic interests.
    V
    PROXIMATE OR LEGAL CAUSE ELEMENT OF IIPEA CLAIM
    ASMG argues, and the trial court agreed, that its comments and publications could
    not have legally caused the alleged harm to Appellant, for lack of any alleged reliance by
    the two surgeons who heard the comments, in terms of their belief in their truth. ASMG
    says the FAC as a whole is inconsistent, because the two surgeons were apparently still
    willing to retain her for work, possibly elsewhere.
    To support this point, ASMG relies on the rule that "[w]here a conclusion is
    alleged and also the special facts from which the conclusion is drawn, if the special facts
    19
    are inconsistent with and do not support the conclusion, the former control, and the
    sufficiency of the complaint is to be determined from the special facts pleaded."
    (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 
    76 Cal.App.4th 990
    , 995; C & H
    Foods Co. v. Hartford Ins. Co. (1984) 
    163 Cal.App.3d 1055
    , 1063.)
    A. Reliance as Component of Legal Causation
    By way of analogy, it is instructive to turn to the treatment of a plaintiff's reliance
    in comparable cases, such as deceit. Appellant is not claiming that she or the two
    surgeons were deceived by ASMG's representations. If she were claiming a deceit cause
    of action, she would be required to plead and prove the common law element of actual
    reliance. (Mirkin v. Wasserman (1993) 
    5 Cal.4th 1082
    , 1091.) "It may be true, as
    plaintiffs assert, that reliance can be thought of as the mechanism of causation in an
    action for deceit. [Citation.] But to accept that characterization does not excuse
    plaintiffs from the requirement of pleading reliance, since specific pleading is necessary
    to 'establish a complete causal relationship' between the alleged misrepresentations and
    the harm claimed to have resulted therefrom." (Id. at p. 1092.)
    Nor is Appellant claiming that she or the two surgeons were defrauded by ASMG.
    If she were alleging fraud, she would have to plead that the defendant's representations
    amounted to a "substantial factor" in inducing her to act in a particular manner, even if
    she had also relied upon advice from elsewhere. (Wennerholm v. Stanford University
    School of Medicine (1942) 
    20 Cal.2d 713
    , 717.) In the context of ordinary fraud,
    "reliance" on a defendant's fraudulent representations means the plaintiff relied on the
    statement for its truth and accuracy. (Kwikset Corp. v. Superior Court (2011) 
    51 Cal.4th 20
    310, 327, fn. 10 [arising in the Unfair Competition Law context, Bus. & Prof. Code,
    § 17200 et seq.].) Such actual reliance on a statement is " 'the causal mechanism of
    fraud.' " (Kwikset Corp., 
    supra, at p. 326
    .)
    This case requires us to consider whether a different kind of "reliance" on a
    defendant's statements, e.g., by a colleague or employer who is not a defendant, can be
    thought of as the "mechanism of causation" of IIPEA damages. This plaintiff is alleging
    that the effect of such reliance by others on the defamatory statements led directly to her
    lost economic opportunities. (See Mirkin v. Wasserman, 
    supra,
     
    5 Cal.4th 1082
    , 1092.)
    In this IIPEA context, such reliance does not require acceptance of the truth of statements
    by any of the recipients, including third parties, but only a discernible response to the
    statements that causes economic harm to the plaintiff. The question on pleadings thus
    becomes whether any false and unprivileged statements made by ASMG to the two
    surgeons, and to others in the local medical/surgical community, had the "natural
    consequence" of actually harming Appellant's economic opportunities. (Civ. Code, § 46,
    subds. (3), (5).)
    B. Third Party Reliance on Statements: Case Law
    In the context of defamation, the causation questions here are comparable to
    Pulver v. Avco Financial Services (1986) 
    182 Cal.App.3d 622
    , 637-638 (Pulver), in
    which the court examined a demurrer to a cause of action for defamation damages.
    Plaintiff Pulver sued defendant, alleging its alleged report to credit reporting agencies
    regarding plaintiff's failure to pay her sister's debt was defamatory, in light of extrinsic
    facts that showed the report had a defamatory meaning (i.e., omitted facts that plaintiff
    21
    was not legally responsible to pay that debt). The appellate court followed the rule that
    whether a writing or statement is "reasonably susceptible of a defamatory meaning is a
    question for the court." (Pulver, supra, at p. 637, citing MacLeod, supra, 
    52 Cal.2d 536
    ,
    546.)
    In Pulver, the appellate court held that even though the alleged content of the
    [credit] report was "not defamatory on its face, extrinsic facts were pleaded which show
    its defamatory meaning" (the false report by defendant to the credit reporting agencies
    that plaintiff had not made payments on her sister's debt, when defendant knew that
    plaintiff was not responsible for the debt, but made the report falsely and maliciously).
    (Pulver, supra, 
    182 Cal.App.3d 622
    , 638.)
    In the context of defamation and IIPEA, this case is comparable to Overhill
    Farms, Inc. v. Lopez (2010) 
    190 Cal.App.4th 1248
     (Overhill), in which an employer sued
    its former employees and a community activist, for damages for defamation, IIPEA, and
    related tort theories. The defendants had publicly protested and asserted that the plaintiff
    employer was motivated by racism in making termination decisions about certain
    employees, based on their immigration or racial status. On being sued, the defendants
    brought a special motion to strike, claiming the action was a strategic lawsuit against
    public participation, or SLAPP. The trial court denied the motion in part regarding
    defamation, IIPEA and the tort theories.
    On appeal, the court found the order denying the motion to strike was proper. The
    claims the employer pursued were all based on defamation, and the employer had showed
    it would probably prevail in showing that the defendants' factual claims of racially
    22
    motivated employment termination were provably false. Such factual statements by
    defendants did not amount to opinion or other protected commentary. (Overhill, supra,
    190 Cal.App.4th at pp. 1261-1266.) This conclusion supported the defamation, IIPEA
    and related tort causes of action. (Id. at pp. 1266-1268.)
    In Overhill the appellate court applied the "totality of the circumstances" test to
    discuss whether the allegedly defamatory statements included or implied provably false
    assertions of fact that caused injury and were not deserving of constitutional protection.
    (Overhill, supra, 190 Cal.App.4th at p. 1261, citing Franklin v. Dynamic Details, Inc.
    (2004) 
    116 Cal.App.4th 375
    , 385 (Franklin).) "Whether a challenged statement 'declares
    or implies a provable false assertion of fact is a question of law for the court to
    decide . . . . ' " (Ibid.; Overhill, supra, 
    190 Cal.App.4th 1248
    , 1261.) Next, if a statement
    is susceptible of both an innocent and a libelous meaning, "the jury must decide how the
    statement was understood." (Ibid.)
    On the issue of causation of its economic injury, the plaintiff employer in Overhill
    was able to provide evidence that one of its corporate customers (not a party to the case)
    had reacted to the defendants' public, heated challenges to the employer's decision to
    terminate certain employees. Almost immediately, that customer had called for an ethics
    investigation ("audit") concerning the employer's labor practices. However, for causation
    of harm by defamation, it is not enough to allege that there was a temporal proximity
    between a given statement or event and the reputational harm suffered by the plaintiff.
    Instead, the degree of proximity and the likelihood of a cause and effect relationship must
    also be considered. (Overhill, supra, 
    190 Cal.App.4th 1248
    , 1267.)
    23
    The appellate court then determined that an inference of causation could be drawn
    between the defendants' allegedly defamatory statements about certain employment
    practices and the employer's reputational damage suffered in that respect. Nothing
    similar had happened to the employer before, and "that evidence was sufficient to support
    an inference of causation" of harm, by the defendants' allegedly defamatory statements
    about the employer's civic character and employment practices. (Overhill, supra, 
    190 Cal.App.4th 1248
    , 1267.) More than simple closeness in time was alleged to support
    causation of harm and the employer had shown a probability of prevailing. Thus, the
    defendants were not entitled to prevail on their anti-SLAPP motion to strike regarding
    defamation, IIPEA, etc. (Code Civ. Proc., § 425.16, subd. (b)(2).)
    C. Analysis
    Even assuming an IIPEA plaintiff has sufficiently alleged the defendant acted with
    a specific intent to interfere with his or her business expectancy, the plaintiff must still
    prove any issues of fact about whether the defendant actually had such an intent. (See
    Korea Supply, 
    supra,
     
    29 Cal.4th 1134
    , 1157, fn. 9; Quelimane Co. v. Stewart Title
    Guaranty Co. (1998) 
    19 Cal.4th 26
    , 57.) We do not determine whether Appellant will be
    able to prove the required proximate causation of economic harm to her from wrongful
    acts of ASMG. As we said before, "The disruption in her practice that she attributes to its
    acts may well have been caused by other factors, but it is not yet before the courts
    whether there is a causal relationship between ASMG's allegedly wrongful acts and
    Appellant's harm." (Marsh, supra, 200 Cal.App.4th at p. 506.)
    24
    In reviewing the FAC, we can now determine on these pleadings that the alleged
    ASMG statements were "reasonably susceptible of a defamatory meaning." (Pulver,
    supra, 182 Cal.App.3d at p. 638, citing MacLeod, supra, 
    52 Cal.2d 536
    , 546 [whether a
    writing or statement is "reasonably susceptible of a defamatory meaning" is a question
    for the court].) Also as a matter of law, we can determine that Appellant has pleaded
    enough facts to support her theory that the disruption of her probable economic benefit
    was caused " 'by an act directed not at the plaintiff, but at a third person.' " (Korea
    Supply, supra, 29 Cal.4th at pp. 1162-1163.) "If the defendant's improper conduct
    constitutes independently wrongful behavior, the fact that the plaintiff is an indirect
    victim does not preclude recovery." (Ibid.) Appellant has adequately pleaded that the
    ASMG publications directly caused the two surgeons, who had previously employed her,
    to take action that resulted in adverse consequences to her own economic interests,
    despite her otherwise allegedly adequate professional qualifications. For purposes of
    pleading, she was indirectly harmed by the fact that ASMG's statements were made and
    publicized within the relevant medical community, because the two surgeons allegedly
    avoided Appellant in connection with their work, whether the statements were believed
    or not.
    Moreover, Appellant has successfully alleged that ASMG knew that interference
    with her economic interests was "certain or substantially certain" to occur as a result of its
    harmful statements concerning her prospective employment at the desired facility. (Civ.
    Code, § 46, subds. (3), (5).) More direct causation factors than the existence of a "hostile
    25
    environment" to Appellant are alleged, under all the relevant circumstances. (Overhill,
    supra, 190 Cal.App.4th at p. 1261.)
    Factual issues remain on proof of all allegations. We determine only that, taking
    all Appellant's allegations as true, she has adequately pleaded that the two surgeons, her
    colleagues, were caused by the statements of ASMG to take action, and the statements
    were both a factual and legal cause, direct or indirect, of her claimed economic injury.
    The trial court erred in finding proximate causation of economic injury was inadequately
    alleged in this IIPEA case.
    DISPOSITION
    The judgment of dismissal is reversed in part with directions to overrule the
    demurrer to the cause of action for IIPEA, and affirmed in part as to the dismissal of the
    breach of contract cause of action. Each party shall bear its own costs on appeal.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    McINTYRE, J.
    O'ROURKE, J.
    26