Bonni v. St. Joseph Health System CA4/3 ( 2022 )

Filed 8/23/22 Bonni v. St. Joseph Health System CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ARAM BONNI,
Plaintiff and Appellant, G052367
v. (Super. Ct. No. 30-2014-00758655)
ST. JOSEPH HEALTH SYSTEM et al., OPI NION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Andrew P.
Banks, Judge. Reversed and remanded as directed.
Greene, Broillet &Wheeler, Mark T. Quigley, Scott H. Carr, Christian T.F.
Nickerson; Esner, Change & Boyer, Stuart B. Esner and Joseph Persoff for Plaintiff and
Appellant.
ArentFox Schiff, Lowell Brown, Debra J. Albin-Riley and Diane Roldan
for Defendants and Respondents.
* * *
Plaintiff Aram Bonni is a surgeon. He sued his employers, defendants
Mission Hospital Regional Medical Center and St. Joseph Hospital of Orange, as well
several other related entities and physicians (collectively, the Hospitals) for retaliation
under Health and Safety Code section 1278.5. Bonni alleged he made whistleblower
complaints, which caused the Hospitals to retaliate against him by, among other things,
suspending his medical staff privileges and initiating peer review proceedings to evaluate
his privileges.
In response, the Hospitals filed an anti-SLAPP motion under Code of Civil
1
Procedure section 425.16. They argued Bonni’s retaliation cause of action arose from
the peer review proceedings, which were protected activity, and that his claims had no
merit. The trial court agreed and granted the motion in its entirety. Bonni appealed.
This court reversed, finding Bonni’s retaliation claim did not arise from protected
activity. Our Supreme Court then granted review. It determined Bonni’s retaliation
cause of action was composed of 19 distinct retaliation claims. Of these claims, it found
eight arose from protected activity while the remainder did not. It remanded the matter
back to this court to determine whether Bonni has shown a probability of prevailing on
these eight claims.
On remand, we conclude Bonni has not met the requisite burden because
the eight claims at issue are all precluded by the litigation privilege. Based on this
finding and our Supreme Court’s ruling, we reverse the trial court’s order granting the
Hospitals’ anti-SLAPP motion in its entirety. We direct the court on remand to enter an
order granting the motion as to the eight claims at issue and denying it as to the
remaining retaliation claims.
1
“SLAPP” is short for “strategic lawsuit against public participation.” (Equilon
Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 57.) All further undesignated
statutory references are to the Code of Civil Procedure.
2
I
FACTS AND PROCEDURAL HISTORY
A. Factual Background
We start with our Supreme Court’s recitation of the facts set forth in Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995 (Bonni).
“Aram Bonni, M.D., is a surgeon specializing in obstetrics and gynecology
who began practicing in 1998. He received staff privileges at defendant Mission Hospital
Regional Medical Center (Mission) in 2002 and at an affiliated hospital, defendant St.
Joseph Hospital of Orange (St. Joseph), in 2010. Bonni would face peer review
proceedings at both hospitals, which would ultimately lead to a settlement with St.
Joseph’s [(the St. Joseph settlement)] wherein Bonni agreed to resign and to a decision
terminating Bonni’s staff privileges at Mission.
“The proceedings at St. Joseph’s began not long after Bonni received staff
privileges in 2010. That same year, Bonni performed a surgery proctored and assisted by
the hospital’s chief of obstetrics and gynecology, one of the named defendants. Like
several of Bonni’s surgeries, the surgery involved use of a robotic assistant to supply
three-dimensional imaging and cut and cauterize tissue. On this occasion, the robot’s
camera provided only two-dimensional imaging instead of three, and Bonni complained
to the assisting doctor about the malfunction. The surgery resulted in patient
complications. Over the next few weeks, Bonni performed two more surgeries in which
similar problems occurred. Again the patients suffered complications; again Bonni raised
concerns about the performance of the robotic assistant.
“After the third surgery, Bonni was advised that St. Joseph was summarily
suspending his staff privileges. The subsequent written notice from St. Joseph’s chief of
staff — one of the defendants here — asserted that in light of ‘serious and avoidable
injuries to patients’ in the three cases, suspension was necessary to avoid ‘imminent
danger’ to St. Joseph’s patients. (See Bus. & Prof. Code, § 809.5, subd. (a).)
3
“As permitted by the hospital staff bylaws, Bonni sought an informal
interview with the hospital’s medical executive committee. After the interview, the
medical executive committee elected to continue the suspension and recommended
termination of Bonni’s privileges. Based on the length of the suspension, St. Joseph was
required to, and did, report its disciplinary action to the Medical Board of California and
the National Practitioner Data Bank. (See Bus. & Prof. Code, § 805, subd. (e); 42 U.S.C.
§ 11133(a)(1).)
“Bonni challenged the suspension and termination recommendation and
requested a formal hearing before a hospital hearing committee composed of members of
the hospital staff. After a lengthy series of evidentiary hearings, the hearing committee
determined that the medical executive committee had sustained its burden on three of 18
charges against Bonni but had not shown by a preponderance of the evidence that either
the summary suspension or the termination recommendation was warranted.
“The medical executive committee requested an administrative appeal,
whereupon the parties settled. The committee dropped its appeal, Bonni agreed to resign
and release the hospital and its staff from any claims, and the parties agreed on the
language to be used in the required further reports to the Medical Board of California and
National Practitioner Data Bank concerning the disciplinary measures taken against
Bonni. (See Bus. & Prof. Code, § 805, subd. (e); 42 U.S.C. § 11133(a)(1).)
“In the meantime, a similar story was unfolding at Mission. In October
2009, Bonni began to voice concerns about robot-assisted surgeries at Mission. In
December, Bonni performed one such surgery. According to Bonni, the robot’s camera,
tissue-cutting scissors, and cauterizing tool all malfunctioned. The patient experienced
complications.
“In the wake of that surgery, Mission initiated review of Bonni’s
performance over the preceding five years. After an investigation, a peer review
committee recommended that Bonni’s privileges be suspended pending further training in
4
robotic procedures, and Mission’s chief of staff, a defendant here, imposed a summary
suspension.
“While the suspension was under review, Bonni provided Mission’s
medical executive committee previous communications about robotic-surgery issues.
Apparently unmoved, the committee voted to continue the suspension until Bonni
completed additional training. As with the St. Joseph suspension, the length of the
suspension triggered a duty to file reports with the Medical Board of California and the
National Practitioner Data Bank.
“At the same time, Bonni’s privileges were set to lapse, and he submitted
an application for reappointment. (See Cal. Code Regs., tit. 22, § 70701, subd. (a)(7)
[physicians must seek reappointment at least once every two years].) Mission’s medical
executive committee recommended denial of the application.
“Bonni invoked his right to a hearing before Mission’s judicial review
committee, a panel of five doctors. The judicial review committee considered the
reasonableness of Bonni’s suspension but did not directly address his reappointment. In
support of suspension, Mission’s medical executive committee submitted approximately
125 charges arising from 19 cases at Mission and, on the ground that they likewise
demonstrated lapses in skill or judgment, the three problematic 2010 surgeries at its
affiliated hospital, St. Joseph. After considering extensive testimony, the committee
unanimously concluded that the original summary suspension was justified, but by a
divided vote concluded continuation of the suspension was no longer warranted. The
committee found eight of the 125 charges substantiated. The eight sustained charges
related principally to documentation and surgery scheduling issues; according to the final
report, ‘none resulted in poor patient outcomes related to issues raised in these charges.’
“Both sides appealed to Mission’s appellate committee. The appellate
committee concluded that the initial suspension was warranted at the time; that whether
continuation of the suspension was still warranted was a matter outside the jurisdiction of
5
the judicial review committee and appellate committee [citation]; and, finally, that the
denial of Bonni’s reappointment application was reasonable. The appellate committee
recommended that Mission’s board of trustees find the summary suspension warranted
and deny the pending application for reappointment. The board of trustees adopted the
committee’s recommendations and denied Bonni renewal of his staff privileges.” (Bonni,
supra, 11 Cal.5th at pp. 1004–1007.)
B. Procedural History
“Bonni sued St. Joseph, Mission, various affiliated entities, and eight
individual doctors involved in the disciplinary process [(defined above as the Hospitals)].
Bonni’s first cause of action alleged that the Hospitals unlawfully retaliated against him
for raising patient safety concerns by summarily suspending him, reporting his
suspensions to the state medical board, subjecting him to lengthy and humiliating peer
review proceedings, defaming him, and ultimately terminating his hospital privileges.
(See Health & Saf. Code, § 1278.5; Bus. & Prof. Code, §§ 510, 2056.) Bonni also
alleged that St. Joseph had retaliated against him by fraudulently inducing him to enter
into [the St. Joseph settlement] and then breaching that agreement. Based on the same
conduct, Bonni also brought causes of action against St. Joseph for breach of contract and
rescission of the [St. Joseph settlement].
“The Hospitals filed an anti-SLAPP motion seeking to strike the retaliation
cause of action. [Citation.] They argued that this cause of action arose from medical
peer review proceedings; that medical peer review proceedings are protected activity . . .
[citation]; and thus that Bonni must demonstrate some merit to his claim in order to
proceed [citation]. They further argued that Bonni could not establish any merit because
the disciplinary actions were taken for nonretaliatory reasons related to Bonni’s medical
competence and because Bonni had signed a release as part of the [St. Joseph settlement]
relinquishing any right to sue St. Joseph and its committees and staff.
6
“The trial court granted the Hospitals’ motion. As a threshold matter, the
trial court agreed with the Hospitals that ‘[t]he gravamen of the claim is based on
defendants’ protected peer review activities,’ so the anti-SLAPP statute applied to the
retaliation cause of action . . . . The trial court then concluded the cause of action lacked
the requisite merit to proceed. It found, as to St. Joseph and related defendants, that
Bonni could not show any specific complaints he made about patient care, and as to
Mission and related defendants, that Bonni had raised safety concerns, but had failed to
overcome Mission’s evidence that his performance, not these complaints, was the true
reason for any adverse actions.” (Bonni, supra, 11 Cal.5th at pp. 1007-1008, fn. omitted.)
Bonni appealed. A panel of this court reversed on grounds the anti-SLAPP
statute did not apply. Specifically, the panel “conclude[d] plaintiff’s retaliation claim
. . . arose from defendants’ alleged acts of retaliation against plaintiff because he
complained about the robotic surgery facilities at the hospitals, and not from any written
or oral statements made during the peer review process or otherwise. . . . Accordingly,
defendants’ motion to strike [fell] on prong one of the anti-SLAPP test . . . .” (Bonni v.
St. Joseph Health System (2017) 13 Cal.App.5th 851, 855, affd. in part & revd. in part
(2021) 11 Cal.5th 995.)
Our Supreme Court then granted review and reversed the panel’s decision.
Based on Baral v. Schnitt (2016) 1 Cal.5th 376, it found Bonni’s retaliation cause of
action was based on 19 adverse actions, each of which comprised a distinct retaliation
claim for anti-SLAPP purposes. (Bonni, supra, 11 Cal.5th at pp. 1009-1011, 1015.) The
Court then examined each of the 19 claims individually and found the following arose
from protected activity: “reporting Dr. Bonni’s summary suspension and advocating in
peer review proceedings that it be upheld (First Amended Complaint for Damages, ¶ 16,
subparas. (3)–(5)); criticizing Dr. Bonni’s professional abilities in the course of peer
review proceedings (id., ¶ 16, subparas. (11), (16)); and inducing Dr. Bonni to settle his
dispute with St. Joseph and then allegedly breaching [the St. Joseph settlement] by filing
7
a nonconforming report with the Medical Board of California (id., ¶ 16, additional.
subparas. (1)–(3)).” (Bonni, supra, 11 Cal.5th at p. 1026.) The remaining retaliation
claims did not arise from protected activity and were not subject to the anti-SLAPP
statute. (Ibid.) The Court directed us on remand “to consider in the first instance
whether Bonni has met his second-step burden for [the] discrete claims arising from
protected activity.” (Id. at pp. 1026-1027.)
II
DISCUSSION
A. Legal Background
Commonly known as the anti-SLAPP statute, “[t]he Legislature enacted
section 425.16 to prevent and deter ‘lawsuits . . . brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the redress of
grievances.’ [Citation.] Because these meritless lawsuits seek to deplete ‘the defendant’s
energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘“to prevent
SLAPPs by ending them early and without great cost to the SLAPP target”’ [citation].
Section 425.16 therefore establishes a procedure where the trial court evaluates the merits
of the lawsuit using a summary-judgment-like procedure at an early stage of the
litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 187, 192.)
Anti-SLAPP motions are reviewed through a two-step process. “First, the
court must determine ‘whether the defendant has made a threshold showing that the
challenged cause of action’ arises from an act in furtherance of the right of petition or
free speech in connection with a public issue. [Citation.] Second, the court must
‘determine whether the plaintiff has demonstrated a probability of prevailing on the
claim.’ [Citation.] If the defendant makes a threshold showing that the cause of action
arises from an act in furtherance of the right of petition or free speech in connection with
a public issue and the plaintiff fails to demonstrate a probability of prevailing, then the
8
court must strike the cause of action (§ 425.16, subd. (b)(1)) and award the defendant
‘attorney’s fees and costs’ [citation].” (Varian Medical Systems, Inc. v. Delfino, supra,35 Cal.4th at p. 192.)
As set forth above, all issues relating to the first step of analysis have been
resolved. Our Supreme Court has determined which of Bonni’s retaliation claims arise
from protected activity. The narrow issue before us is whether Bonni has demonstrated a
probability of prevailing on these claims. We review this issue de novo. (Monster
Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
To establish a probability of prevailing on the second step, a “plaintiff
‘must demonstrate that the [claim] is both 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.’ [Citations.] In deciding the question of potential merit, the trial
court considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant [citation]; though the court does not weigh the credibility or comparative
probative strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to
establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821.)
Following our Supreme Court’s ruling, eight of Bonni’s 19 distinct
retaliation claims arise from protected activity and are subject to analysis under the
second step of the anti-SLAPP test. Five of these claims are alleged against the Hospitals
on grounds they retaliated against Bonni through the following activities:
9
i. “Reporting Plaintiffs summary suspensions to the Medical Board of
California and National Practioner [sic] Data Bank, as well as other
persons/entities.”
ii. “Abusing the powers of the peer review process and subjecting
Plaintiff to a lengthy and humiliating peer review process for over
two years, and by refusing to lift Plaintiffs’ summary suspension
despite recommendations by several separate boards/committees to
do so, challenging the favorable findings of the Judicial Review
Committee (JRC) at a hearing which occurred in or around October
2014.”
iii. “On December 5, 2014, by having an Appellate Committee
recommend to the Board that it reverse the findings of the JRC that
had been favorable to Plaintiff.”
iv. “Engaging in a campaign of character assassination which caused
irreparable damage to Plaintiff’s reputation.”
v. “Making defamatory statements about Plaintiff.”
The three remaining retaliation claims at issue relate to the St. Joseph
settlement. Thus, they are only asserted against St. Joseph and certain affiliated groups
2
and entities (the St. Joseph defendants). Bonni alleges St. Joseph defendants engaged in
the following retaliatory activities:
vi. “Fraudulently inducing and/or coercing Plaintiff to enter into [the St.
Joseph settlement].”
vii. “Exercising undue influence over Plaintiff to force him to enter into
[the St. Joseph settlement].”
2
The specific affiliates are identified as “St. Joseph Health System, St. Joseph Hospital
of Orange, St. Joseph Hospital of Orange Medical Executive Committee and Medical
Staff, St. Joseph Hoag Health, and Covenant Health Network.” (Capitalization omitted.)
10
viii. “Breaching [the St. Joseph settlement] by failing to use the specific
language as agreed upon by the parties in reporting to the Medical
Board of California and National Practioner [sic] Data Bank.”
As instructed by our Supreme Court, we will determine whether Bonni has
shown a probability of prevailing on each of these eight claims.
B. The Litigation Privilege
Before reviewing any of Bonni’s evidence, we first address the Hospitals’
argument that the eight retaliation claims at issue are barred as a matter of law by the
litigation privilege. We agree.
“‘The principal purpose of the Civil Code section 47 litigation privilege “‘is
to afford litigants and witnesses [citation] the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort actions.’”’” (Optional
Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 115-
116.) To fulfill this purpose, “Civil Code section 47, subdivision (b), ‘confers an
absolute privilege to communications made as part of a “‘judicial or quasi-judicial
proceeding,’” defined to include any sort of “‘truth-seeking’” or other official
proceeding.’” (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 613.) This includes
medical peer review proceedings. (Kibler v. Northern Inyo County Local Hospital Dist.
(2006) 39 Cal.4th 192, 202-203 (Kibler).)
The litigation privilege is not limited to statements made during the
proceedings, “‘“but may extend to steps taken prior thereto, or afterwards.”’ [Citation.]
[T]he absolute privilege is ‘broadly applied and doubts are resolved in its favor.’” (Klem
v. Access Ins. Co., supra, 17 Cal.App.5th at p. 613.) For purposes of applying the
privilege, it is irrelevant whether the communications at issue were “made with malice or
the intent to harm. [Citation.] Put another way, application of the privilege does not
11
depend on the publisher’s ‘motives, morals, ethics or intent.’” (Kashian v. Harriman
(2002) 98 Cal.App.4th 892, 913.)
There is some overlap between the litigation privilege and the anti-SLAPP
statute. They are both “construed broadly, to protect the right of litigants to ‘“the utmost
freedom of access to the courts without [the] fear of being harassed subsequently by
derivative tort actions.”’” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006)
137 Cal.App.4th 1, 5.) Still, “[t]he scope of the protections afforded to litigation-related
communications under the anti-SLAPP statute and that afforded by the litigation
privilege [citation] are not identical. The two statutes ‘are substantively different statutes
that serve quite different purposes. . . .’” (Feldman v. 1100 Park Lane Associates (2008)
160 Cal.App.4th 1467, 1479.) Though our Supreme Court’s has determined the eight
claims at issue are protected speech under anti-SLAPP statute, we must independently
analyze whether they are barred by the litigation privilege.
1. Reports
We start with Bonni’s claim that the Hospitals retaliated against him by
reporting his summary suspensions to the Medical Board of California and the National
Practitioner Data Bank (claim i). To be clear, this claim is based on the reports
themselves, not on Bonni’s suspension or termination. Bonni alleges separate retaliation
claims based on these latter acts, which are not subject to the anti-SLAPP statute. (Bonni,
supra, 11 Cal.5th at pp. 1022-1023.)
The reports at issue involved “written statements to the state’s licensing
agency concerning restrictions imposed on Bonni by a peer review body for allegedly
providing substandard care.” (Bonni, supra, 11 Cal.5th at pp. 1017-1018.) The Hospitals
were legally required to provide them. (Ibid.) As other courts have found, such reports
are absolutely privileged under Civil Code section 47, even if they were “improperly
motivated.” (See, e.g., Joel v. Valley Surgical Center (1998) 68 Cal.App.4th 360, 372.)
12
Consequently, Bonni cannot allege any tort claims based on these reports. (Id. at pp.
371-372; see Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686
[characterizing a retaliation claim under Health & Saf. Code, § 1278.5 as a tort].)
Allowing such claims to proceed “would substantially defeat the purpose of the privilege
and create an unnecessary chilling effect upon physicians and others who are desirous of
upholding professional qualifications and protecting the public.” (Long v. Pinto (1981)
126 Cal.App.3d 946, 950-951.)
In response, Bonni contends this claim is based on the noncommunicative
act of making the report rather than the contents of the report. It is true that the litigation
privilege generally does not protect noncommunicative acts. (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1058.) As such, “a ‘threshold issue in determining the applicability’ of
the privilege is whether the defendant’s conduct was communicative or
noncommunicative. [Citation.] The distinction between communicative and
noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is,
the key in determining whether the privilege applies is whether the injury allegedly
resulted from an act that was communicative in its essential nature.” (Ibid.) Such is the
case here. The claim at issue alleges the Hospitals retaliated against Bonni by
“[r]eporting [Bonni’s] summary suspensions to the Medical Board of California and
National Practioner [sic] Data Bank, as well as other persons/entities.” In other words,
Bonni’s first claim is based on the Hospital’s communication of his suspension to the
relevant authorities, which is an inherently communicative act. Further, the claim is
based on the contents of the communication, specifically, the reporting of Bonni’s
suspension.
2. Peer review process
We next turn to Bonni’s claims relating to the peer review process (claims
ii, iii, iv, and v above). One claim (claim ii) alleges defendants retaliated by subjecting
13
Bonni “to a lengthy and humiliating peer review process for over two years.” Another
(claim iii) is based on the recommendation by Mission’s appellate committee to its board
of trustees that Bonni’s summary suspension was warranted and that his pending
application for reappointment should be denied. The final two claims (claims iv and v)
are based on allegations the Hospitals defamed Bonni and assassinated his character
during the peer review process.
The retaliation claims based on defamation and character assassination are
clearly barred. As found by our Supreme Court, “[t]he only statements discussed in
Bonni’s account that would support assertions of defamation or character assassination
are statements concerning Bonni’s professional competence, made in connection with the
peer review consideration of Bonni’s standing at the Hospitals.” (Bonni, supra, 11
Cal.5th at pp. 1016-1017.) Statements made in official proceedings are protected by the
litigation privilege (Laker v. Board of Trustees of California State University (2019) 32
Cal.App.5th 745, 770), as are “communications made to instigate an official investigation
and in connection with the investigation once commenced” (Lemke v. Sutter Roseville
Medical Center (2017) 8 Cal.App.5th 1292, 1299).
Next, we turn to the retaliation claim based on the peer review process itself
(claim i), in which Bonni alleges the Hospitals unfairly subjected him to the “peer review
process for over two years.” To clarify, this claim is not based on Bonni’s suspension,
termination of privileges, or the procedures afforded during the peer review process.
These acts are the focus of separate retaliation claims, which are not subject to the anti-
SLAPP statute. (Bonni, supra, 11 Cal.5th at pp. 1015-1016, fn. 4, 1026.) Rather, this
claim rests on “essentially everything any defendant said in the course of the peer review
process in support of limiting Bonni’s privileges.” (Id. at pp. 1017-1018.) As discussed
directly above, such statements are privileged. (Lemke v. Sutter Roseville Medical
Center, supra, 8 Cal.App.5th at p. 1298; Laker v. Board of Trustees of California State
University, supra, 32 Cal.App.5th at p. 770.)
14
To the extent this claim is based on the Hospitals’ initiation of the peer
review proceedings itself, it is also precluded by the litigation privilege. There is “no
communication that is more clearly protected by the litigation privilege than the filing of
a legal action.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th
1232, 1249.) The same would logically be true for the initiation of a peer review
proceeding, which is also covered by Civil Code section 47, subdivision (b). (Action, at
p. 1241; Kibler, supra, 39 Cal.4th at pp. 202-203.) Moreover, failing to apply the
privilege to this claim “would further discourage participation in peer review by allowing
disciplined physicians to file harassing lawsuits against hospitals and their peer review
committee members rather than seeking judicial review of the committee’s decision by
the available means of a petition for administrative mandate.” (Id. at p. 201.)
We are also unpersuaded by Bonni’s citation to Smith v. Adventist Health
System/West (2010) 190 Cal.App.4th 40. In Smith, the court found a claim based on the
suspension of hospital privileges was not barred by the litigation privilege because it
arose from noncommunicative activity. (Id. at pp. 60-61.) As discussed, however, the
claim at issue does not arise from Bonni’s suspension. Rather, it arises from statements
made during the peer review process or the initiation of the peer review process itself.
Finally, we address Bonni’s claim based on the recommendations by
Mission’s appellate committee to its board of trustees (claim iii). We are not aware of
any case that has addressed a substantially similar issue. So, we analyze this claim under
the general test, which states the privilege covers “‘“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 [has] some connection or
logical relation to the action.”’” (Klem v. Access Ins. Co., supra, 17 Cal.App.5th at p.
613.) All these elements are met. The recommendation is a communication. It is a
written report from Mission’s appellate committee to its board of trustees, recommending
(1) the board find Bonni’s summary suspension was warranted and (2) it deny his
15
pending reappointment application. Further, the report was made as part of Bonni’s peer
review proceeding by participants to determine his qualifications for medical staff
privileges. (See Bonni, supra, 11 Cal.5th at p. 1004 [“hospitals must use a process of
professional peer review to evaluate physicians’ qualifications for medical staff
privileges”].)
3. Negotiations for the St. Joseph settlement
Bonni asserts two claims based on the St. Joseph settlement negotiations.
Specifically, he alleges the St. Joseph defendants retaliated against him by fraudulently
inducing or unduly influencing him into entering the St. Joseph settlement (claims vi and
vii above). “Numerous courts have held that statements relating to settlements also fall
within the [litigation] privilege, including those made during settlement negotiations.”
(Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843-844; Joseph A.
Saunders, P.C. v. Weissburg & Aronson (1999) 74 Cal.App.4th 869, 874-875 [Statements
“made in the course of settlement negotiations” are “absolutely privileged pursuant to
Civil Code section 47, subdivision (b)”].) The privilege applies even if such statements
are fraudulent. (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1141.)
Bonni contends the litigation privilege is inapplicable because it “does not
apply to an equitable action to set aside a settlement agreement for extrinsic fraud.”
(Quoting Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26.) But the claims
3
at issue are retaliation claims, not equitable actions to set aside the St. Joseph settlement.
“[W]here a judgment has been ‘“procured by extrinsic fraud, the normal remedy is to
seek equitable relief from the judgment, not to sue in tort,”’ given that a tort remedy is
precluded by the litigation privilege.” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269,
290.)
3
Bonni asserts a separate cause of action to rescind the St. Joseph settlement, which is
not at issue here.
16
For example, in Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828-829, the
plaintiff filed an action against her former husband on grounds he had misrepresented and
concealed assets in their prior dissolution proceeding. The plaintiff brought claims
against the husband for fraud, conversion, and to set aside the dissolution judgment.
(Id. at p. 828.) The court sustained the husband’s demurrer to the fraud and conversion
claims because such tort claims were barred by the litigation privilege. Instead, the
plaintiff’s “remedy [was] limited to an action or motion to vacate the judgment.” (Id. at
p. 834.) Likewise, Bonni may pursue a claim to rescind the St. Joseph settlement but all
tort claims based on the settlement negotiations are barred.
Bonni also argues the settlement negotiations preceded the filing of any
lawsuit, and, consequently, they are only privileged if the Hospitals were contemplating
filing a future lawsuit in good faith. (See Action Apartment Assn., Inc. v. City of Santa
Monica, supra, 41 Cal.4th at p. 1251). His argument relies on a portion of Bonni, in
which our Supreme Court stated for anti-SLAPP purposes that the claims at issue arose
“out of settlement negotiations preceding the filing of any suit.” (Bonni, supra, 11
Cal.5th at pp. 1024-1025, italics added.) But, as discussed above, the anti-SLAPP statute
and the litigation privilege are not identical. The latter expressly extends to
communications made “in the . . . course of any . . . proceeding authorized by law and
reviewable” by administrative mandate (Civ. Code, § 47, subd. (b)), which includes
medical peer review proceedings (Kibler, supra, 39 Cal.4th at pp. 198-199). Because the
settlement negotiations occurred within the course of a proceeding covered by Civil Code
section 47, subdivision (b), they are privileged. It is immaterial that they preceded the
filing of any lawsuit in a judicial forum.
Besides, even if the litigation privilege did not apply to the settlement-
based retaliation claims, Bonni has not cited any evidence showing St. Joseph defendants
unduly influenced him or defrauded him into signing the St. Joseph settlement. His
declaration, which appears to be the only evidence submitted in opposition to the anti-
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SLAPP motion, does not contain any facts supporting either theory. It only contains
conclusory statements that the Hospitals “[f]raudulently induce[d] and/or coerc[ed]
[Bonni]” or “[e]xercis[ed] undue influence over [Bonni] to force [him] to enter into” the
St. Joseph settlement. These statements are insufficient to show either claim has minimal
merit.
4. Failure to use reporting language from St. Joseph settlement
Bonni’s final claim alleges the St. Joseph defendants retaliated against him
by failing to use the agreed upon reporting language to the Medical Board of California
and the National Practitioner Data Bank in breach of the St. Joseph settlement
(claim viii). As discussed above, these reports are absolutely privileged under Civil Code
section 47, and Bonni cannot bring tort claims based upon them. (See, e.g., Joel v. Valley
Surgical Center, supra, 68 Cal.App.4th at pp. 371-372.)
As with his other report-based claim, Bonni contends this retaliation claim
is based on noncommunicative conduct. Again, this argument is unpersuasive. The
claim at issue asserts the St. Joseph defendants retaliated against Bonni “by failing to use
the specific language as agreed upon by the parties” in the St. Joseph settlement. Put
differently, Bonni asserts the Hospitals’ reports to the relevant agencies should have
contained different language. Thus, the gravamen of this claim expressly focuses on the
contents of the reports at issue, not on noncommunicative conduct.
We are also unpersuaded by Bonni’s argument that the litigation privilege
does not apply to breaches of contracts relating to speech. The claim at issue is not a
breach of contract claim. It is a retaliation claim, which is allegedly evidenced by a
breach of the St. Joseph settlement. Indeed, Bonni asserts a separate breach of contract
claim based on the same conduct that is not at issue here. While the litigation privilege
does not generally apply to breach of contract claims (Crossroads Investors, L.P. v.
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4
Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 787), the same is untrue
for tort claims. Courts have consistently emphasized the privilege, when applicable, is
absolute and precludes all tort theories of recovery except malicious prosecution.
(People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274; Wise v. Thrifty Payless,
Inc. (2000) 83 Cal.App.4th 1296, 1302-1303.) Though Bonni’s retaliation claim relates
to a breach of contract, it is not a breach of contract claim and is barred by the litigation
privilege.
III
DISPOSITION
The Hospitals filed their anti-SLAPP motion in April 2015. At the time,
they justifiably believed they could only direct their motion to Bonni’s entire retaliation
cause of action as pleaded. (See Baral v. Schnitt, supra, 1 Cal.5th at pp. 381-382.)
However, following Baral, courts now generally disregard pleaded causes of action when
reviewing anti-SLAPP motions. Instead, they analyze individual claims, i.e., “each act or
set of acts supplying a basis for relief.” (Bonni, supra, 11 Cal.5th at p. 1010.) Based on
pre-Baral law, the trial court granted the Hospitals’ anti-SLAPP motion as to Bonni’s
entire cause of action for retaliation. This conclusion is no longer correct, as each of
Bonni’s individual retaliation claims must be scrutinized. Under this analysis, both sides
have prevailed to some extent. Our Supreme Court found the majority of Bonni’s
retaliation claims are not subject to the anti-SLAPP statute because they do not arise from
protected activity. (Bonni, at pp. 1015-1017, 1026.) As to the eight remaining claims
4
Courts have found the litigation privilege can bar breach of contract claims “if the
agreement does not ‘clearly prohibit’ the challenged conduct, and if applying the
privilege furthers the policies underlying the privilege.” (Crossroads Investors, L.P. v.
Federal National Mortgage Assn., supra, 13 Cal.App.5th at p. 787.)
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that do arise from protected activity, we find they are covered by the litigation privilege
and thus barred by the anti-SLAPP statute.
We recognize the Hospitals’ anti-SLAPP motion did not argue the litigation
privilege applied to Bonni’s retaliation cause of action. Therefore, the trial court was
5
never given the opportunity to consider this issue. We also acknowledge Bonni’s
argument that he did not intend for all of the eight claims at issue to be affirmative claims
for relief. Rather, he contends the allegations underlying these claims were included for
context. While these factors do not change our disposition, we believe they warrant
consideration should either side move for attorney fees.
Based on our findings above, the trial court’s order granting the Hospitals’
anti-SLAPP motion is reversed. We direct the trial court on remand to enter a new order
granting the motion as to the eight retaliation claims at issue and denying it as to the
remaining retaliation claims per Bonni, supra, 11 Cal.5th at pages 1026-1027. Though
these claims are to be stricken from Bonni’s pleading, “[t]hat does not mean the
underlying factual allegations may not be mentioned in the course of any ensuing
proceedings; to the extent Bonni does consider these allegations to be probative of
defendants’ motives or relevant to any other claims that survive, statements made in the
course of peer review proceedings remain as admissible as any others. . . . [But] Bonni
may no longer seek to impose liability on defendants for having engaged in these
protected acts.” (Bonni, at p. 1019.)
5
Neither side’s failure to address the litigation privilege in the lower court was
unreasonable, as it had little relevance to Bonni’s entire retaliation cause of action as
pleaded. We exercise our discretion to consider this issue on appeal. (POET, LLC v.
State Air Resources Bd. (2013) 218 Cal.App.4th 681, 750-751 [appellate courts have
discretion to consider issues of law first raised on appeal]; Nguyen v. Proton Technology
Corp. (1999) 69 Cal.App.4th 140, 147 [application of the litigation privilege is an issue
of law].)
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Each party shall bear their own costs on this appeal.
MOORE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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