Williams v. Doctors Medical Center of Modesto ( 2024 )

Filed 4/25/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
R. MICHAEL WILLIAMS, F084700/F085710
(Consolidated)
Plaintiff and Appellant,
(Stanislaus Super. Ct.
v. No. CV-20-004732)
DOCTORS MEDICAL CENTER OF ORDER MODIFYING OPINION
MODESTO, INC. et al., [No Change in Judgment]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on March 27, 2024, be modified as
follows:
1. On page 1, the second paragraph beginning “Arnold & Porter” is deleted
and replaced with:
Arnold & Porter Kaye Scholer, Sean M. SeLegue, Samuel E. Sokolsky;
Law Offices of James M. Braden and James M. Braden for Plaintiff and
Appellant.
2. All references to “MCE” are replaced with “MEC.”
There is no change in the judgment.
POOCHIGIAN, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
Filed 3/27/24 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
R. MICHAEL WILLIAMS,
F084700/F085710
Plaintiff and Appellant, (Consolidated)
v. (Stanislaus Super. Ct.
No. CV-20-004732)
DOCTORS MEDICAL CENTER OF
MODESTO, INC., et al.,
OPINION
Defendants and Respondents.
APPEAL from orders of the Superior Court of Stanislaus County. Sonny S.
Sandhu, Judge.
Arnold & Porter Kaye Scholer, Sean M. Selegue, Samuel E. Sokolsky; Law
Offices of James M. Braden and James M. Braden for Plaintiff and Appellant.
Davis Wright Tremaine, Thomas R. Burke, Terri D. Keville, Anna R. Buono, and
Miriam R. Swedlow for Defendants and Respondents Doctors Medical Center of
Modesto, Inc., Tenet Healthcare Corporation, Warren Kirk, Mark Fahlen, Marny Fern,
and Cheryl Harless.
Pollara Law Group, Dominique Pollara, and Frances Bruce for Defendants and
Respondents Hospitalists of Modesto Medical Group, Inc., Arun Manoharan, and Li
Huang.
-ooOoo-
This case involves appellant Dr. R. Michael Williams’s ability to practice
medicine, have access to his admitted patients, and have privileges at respondent
Doctor’s Medical Center of Modesto (DMCM). The trial court granted two separate anti-
SLAPP motions,1 one by DMCM, Tenet Healthcare Corporation, Warren Kirk, Dr. Mark
Fahlen, Marny Fern, and Cheryl Harless (“DMC Respondents”) and the other by
respondents Hospitalists of Modesto Medical Group, Dr. Arun Manoharan, and Dr. Li
Huang (“Hospitalist Respondents”) (collectively “Respondents”). The court also
awarded Respondents’ their attorney fees.
Through this appeal, Williams challenges the granting of the anti-SLAPP motions
and the awards of attorney fees.2 With respect to the SLAPP orders, Williams contends
that the trial court erred by: (1) finding Respondents met their burden of showing that his
claims arose from protected activity; (2) estopping him from arguing that his claims did
not arise from protected activity by Respondents; and (3) finding that he failed to
establish a probability of prevailing on his claims. With respect to attorney fees,
Williams contends because he has established that the court erred in granting the anti-
SLAPP motions, the derivative award of attorney fees must be reversed. Respondents
counter that Williams’s challenge to attorney fees is redundant or moot, and the
Hospitalist Respondents have filed a combined motion to dismiss and request for an
award of costs as sanctions. We reverse both the granting of the anti-SLAPP motions and
the award of attorney fees, deny the motion to dismiss, and deny the request for
sanctions.
1 “SLAPP” refers to a “ ‘strategic lawsuit against public participation,’ ” and an
“anti-SLAPP motion” refers to the special motion to strike provided by Code of Civil
Procedure section 425.16. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1007, fn. 1 (Bonni).)
2 Williams filed two separate appeals, the first challenging the SLAPP ruling and
the second challenging the award of attorney fees. For administrative purposes, the two
appeals have been consolidated under appeal number F084700.
2.
FACTUAL BACKGROUND
Williams is a board certified oncologist who practices medicine and treats patients
in the Modesto area. Williams primarily practices in an independent clinic, but since
2003 has had privileges at DMCM, which is an acute-care hospital. Patients who are
admitted to DMCM are assigned a hospitalist. A hospitalist is a physician who
specializes in caring for patients in a hospital setting. The hospitalist acts as the patient’s
attending physician and decides what other physicians and specialists may care for the
patient while the patient is admitted at DMCM. Hospitalists are not required to enlist the
help of any particular specialists, even if one is requested by the patient or the patient’s
family. Once the hospitalist enlists other specialists, the specialists may speak with the
patient’s family about treatment and care and may enter treatment orders for the patient.
For a number of years, Williams and Respondents enjoyed a cordial professional
relationship. However, around 2018, the relationship markedly changed for the worse.
The parties disagree as to why the relationship changed, who is at fault for the change,
and the repercussions of the change. Williams contends that he advocates for the best
possible care for his patients and that the Respondents improperly treat cancer patients by
prematurely urging only palliative care with an eye towards cost-savings. Williams made
a number of complaints regarding DMCM hospitalists and their treatment of himself and
his patients. Respondents did not formally address Williams’s complaints, but instead
allegedly treated Williams with hostility, disrespect, and unprofessionalism and began
investigating him. For their part, Respondents contend that interactions with Williams
became challenging, antagonistic, and strained. Williams would not accept the necessary
limits of a consulting physician and would criticize (sometimes in front of patients and
their families) the medical decisions made at DMCM by the Hospitalist Respondents.
Respondents contend that the actions of Williams and his staff involved significant
disagreements over patient care and unprofessional communication, both of which led to
barriers for effectively treating patients, particularly when palliative care was at issue or
3.
when Williams had given a patient or family false hope. As a result, complaints were
made against Williams for unprofessional, bizarre, or erratic behavior.
The strained relationship came to a head in January 2020. On January 8, 2020,
DMCM’s Medical Executive Committee (MCE) informed Williams in writing that
interviews with medical staff and DMCM employees revealed serious concerns over
Williams’s behavior, “which directly impact the clinical care of patients treated at
[DMCM].” The MCE required Williams to attend a peer review meeting on January 31,
2020, to address nine areas of alleged misconduct, including misconduct occurring in
specific patient cases.
On January 31, 2020, Williams and the MCE met to address the concerns
identified in the January 8 letter. The meeting was cut short because Williams had to
leave early for a medical emergency. It does not appear that the meeting ever resumed,
nor does it appear that the DMC Respondents formally revoked Williams’s privileges or
formally disciplined Williams for his conduct at DMCM. Nevertheless, Williams
responded in writing to the issues raised by the January 8 letter. Williams provided
supportive declarations, identified inaccurate dates in the January 8 letter, and denied that
his conduct adversely affected patient care. Following the January 31, 2020 meeting,
Williams maintains that Respondents have limited, abridged, and interfered with his
medical practice, including engaging in conduct that amounts to a de facto restriction on
his privileges at DMCM without due process.
Beginning in 2020, Williams filed two lawsuits against Respondents based on
their treatment of him. The second lawsuit is the subject of this appeal.
PROCEDURAL BACKGROUND
First Lawsuit
On January 29, 2020, Williams filed suit against Respondents, as well as
numerous other hospitalists, medical staff, and DMCM employees (First Lawsuit). The
last operative complaint in the First Lawsuit was the Second Amended Complaint (SAC),
4.
filed on February 26, 2020. The SAC identified the following 12 causes of action:
(1) retaliation under Business & Professions Code section 2056; (2) retaliation in
violation of Health & Safety Code section 1278.5; (3) violation of Business &
Professions Code section 809; (4) interference with right to provide medical care;
(5) intentional infliction of emotional distress; (6) declaratory relief; (7) temporary
restraining order and preliminary and permanent injunctive relief; (8) defamation;
(9) breach of contract; (10) breach of implied covenant of good faith and fair dealing;
(11) antitrust/unfair business practices; and (12) wrongful effective termination of
hospital privileges. Among other things, the SAC sought injunctive relief against
Respondents and included allegations of a number of allegedly defamatory statements
against Williams. References to the defamatory statements appear in most of the causes
of action either through incorporation by reference, identification of specific statements,
or a general reference to false statements.
In June 2020, Respondents filed anti-SLAPP motions under Code of Civil
Procedure section 424.16, subdivision (b).3 Respondents argued that the trial court
“should strike all claims in the [SAC] that arise from protected conduct.”4 In relevant
part, Respondents argued that “many of the actionable statements” were either made at
or in connection with a peer review proceeding, or dealt with Williams’s competence,
and thus, were protected by section 425.16, subdivision (e). No other type of protected
activity was identified by Respondents.
3 All further undesignated statutory references are to the Code of Civil Procedure
unless otherwise noted.
4 The Hospitalist Respondents joined the DMC Respondents’ anti-SLAPP motion
and requested the same relief on the same grounds as the DMC Respondents and
incorporated by reference the DMC Respondents’ motion and supporting memorandum.
5.
On September 3, 2020, Williams filed a declaration along with supporting exhibits
in opposition to the anti-SLAPP motions. However, the next day, Williams filed a
dismissal without prejudice under section 581, subdivision (b)(1).
In October 2020, Respondents filed motions for attorney fees under
section 425.16, subdivision (c)(1). The DMC Respondents’ fee motion explained that the
SAC “attacked [their] attempts to engage with [Williams] through peer review,” and that
their anti-SLAPP motion attempted “to strike many of [Williams’s] claims .…” The
DMC Respondents’ fee motion identified the only protected activity as activity involving
peer review and comments about Williams’s competency. The Hospitalist Respondents
joined and incorporated by reference the DMC Respondents’ fee motion. The Hospitalist
Respondents’ joinder explained that the anti-SLAPP motion sought “to bar [Williams’s]
claims that arose from peer review activities as well as statements concerning a
physician’s competence and qualifications .…” The Hospitalist Respondents’ joinder
also identified only statements made in connection with peer review and statements
concerning Williams’s competence and qualifications as protected activity.
On November 9, 2020, Williams filed an opposition to the motion for attorney
fees. In part, Williams argued the SAC’s references to peer review processes were
incidental or collateral to the main point of the lawsuit. However, Williams did not
challenge the amount of fees requested by Respondents.
On September 30, 2021, the trial court issued an order granting Respondents’
separate motions for attorney fees (“the Fee Order”). The court granted the entire amount
of Respondents’ fees without deduction and noted that Williams failed to challenge the
amount of the requested fees. In granting attorney fees, the Fee Order stated in part:
“The allegations contained in [the SAC] were based almost entirely
upon activity that is protected pursuant to Section 425.16. The protected
activity relied upon was not “incidental” as Plaintiff argues – it was
fundamental. Indeed, the fact that [Williams] dismissed his SAC rather
than oppose the special motions to strike is an admission of this fact.
6.
Whether broadly construed as part of the peer review process, or as
statements and comments made as a matter of public interest – i.e.[,] related
to physician’s “qualifications and competence” – the SAC’s causes of
action were problematic.”
Second Lawsuit
On October 23, 2020, Williams filed a second lawsuit against Respondents (the
Second Lawsuit). After the trial court granted a demurrer, which included permission for
Respondents to file anti-SLAPP motions, Williams filed a First Amended Complaint
(FAC) on November 15, 2021. The FAC identified the following eight causes of action:
(1) violation of Business & Professions Code section 809; (2) interference with right to
provide medical care; (3) wrongful de facto interference with hospital privileges;
(4) antitrust violations; (5) unfair business practices violations; (6) intentional
interference with prospective economic advantage; (7) negligent interference with
prospective economic advantage; and (8) battery. These claims are a subset of the claims
previously alleged in the First Lawsuit’s SAC.
The FAC in relevant part alleged that Respondents engaged in the following acts
with the intent to limit, interfere with, and abridge Williams’s medical practice:
(a) eliminating the expense of having to care for cancer patients by removing them from
hospital care and preventing Williams from effectively caring for them; (b) implementing
a bonus structure that facilitates eliminating the expense of cancer patients, all to the
benefit of the Hospitalist Respondents and the detriment of Williams; (c) acting to shift
patient care aware from Williams and his clinic and to the Hospitalist Respondents and
DMCM medical staff; (d) prematurely moving patients away from Williams’s care to
hospice where they were expected to die with relative efficiency; and (e) interfering with
Williams to practically function in caring for his patients by limiting his ability to access
patient files and records.
The FAC also contained allegations that addressed the first lawsuit. The FAC
alleged that the First Lawsuit focused on the Respondents’ campaign to destroy his
7.
medical practice through the MCE’s “peer review” process of January 2020 and also
focused on a large number of false, malicious, and defamatory statements. The FAC
alleged that the focus on peer review and speech was flawed because the SLAPP statute
protects such conduct. The FAC explained that once the Respondents filed their anti-
SLAPP motions, Williams decided to voluntarily dismiss the First Lawsuit because he
believed that the suit’s focus on peer review and speech activities would not survive the
anti-SLAPP motion. The FAC further explained that the Second Lawsuit is based on
actions by Respondents other than false speech and peer review, such as restricting
Williams’s privileges at DMCM without following due process and limiting his access
both to his patients who were admitted to DMCM and to his patients’ records. The FAC
expressly alleges that it “does not allege wrongs or facts arising from any protected peer
review activities or constitutionally protected petition or speech about a public issue or an
issue of public interest,” and that “[a]ny reading of this [FAC] which would implicate
such activities is disavowed as excluded from this lawsuit.”
After the FAC was filed, the DMC Respondents and the Hospitalist Respondents
filed separate anti-SLAPP motions. In relevant part, Respondents relied on the First
Lawsuit’s Fee Order to argue that all of the FAC’s causes of action were based on
SLAPP protected activity and that issue preclusion prevented Williams from contending
otherwise.
After a hearing, the trial court granted both motions and dismissed the FAC on
May 27, 2022 (“the SLAPP Order”). In relevant part, the court ruled:
“[T]he Court finds that the current case is a [SLAPP]. It addresses
the same primary right (or rights) addressed in Stanislaus County Superior
Court Case No. CV-20-000630 – Williams v. Doctors Medical Center, Inc.
et al – and the Court in Case No. CV-20-000630 concluded that the earlier
case was a SLAPP which reached protected activity on the part of the
defendants therein – the same defendants named in this matter.
[Williams’s] “disavowal” of the basis for the current complaint and his
(alleged) “removal” of all references to the peer review process from the
current complaint simply does not change this fact. The Court applies issue
8.
preclusion to establish that the first prong of [section 425.16] is met in this
matter. See e.g. [South Sutter LLC v. LJ Sutter Partners, L.P. (2011)
193 Cal.App.4th 634].”
On July 21, 2022, Williams filed a notice of appeal challenging the dismissal of
the FAC through the SLAPP order.
On July 26 and 27, 2022, Respondents filed motions for attorney fees.
On December 20, 2022, the trial court granted the Respondents’ motions and
awarded fees against Williams.
On February 8, 2023, Williams filed a notice of appeal challenging the award of
attorney fees.
DISCUSSION
I. Respondents’ Anti-SLAPP Motions
A. Parties’ Arguments
Williams argues that the trial court erroneously granted the Respondents’ anti-
SLAPP motions. In part, Williams avers that the SLAPP Order must be reversed because
Respondents failed to meet their burden of demonstrating that their protected conduct
formed the basis of any of the FAC’s causes of action. Williams contends that none of
the actions that form the basis of his claims involved protected activity. Williams avers
that the court erroneously relied on issue preclusion and the case of South Sutter LLC v.
LJ Sutter Partners, L.P., supra, 193 Cal.App.4th 634 (South Sutter) to find that the
causes of action involved protected activity. Williams argues that issue preclusion does
not apply because the Fee Order and the SLAPP Order involve different issues, and it
cannot adequately be determined what issues were actually decided in the Fee Order.
Williams also argues that South Sutter’s discussion of issue preclusion is unsound and
incompatible with recent California Supreme Court authority.
Respondents argue in relevant part that the trial court correctly followed South
Sutter and that all elements of issue preclusion apply in this case. Respondents argue that
the Fee Order actually and necessarily decided that all of the causes of action in the SAC
9.
were based on protected activity. Because each cause of action alleged in the FAC was
also alleged in the SAC, Respondents contend that Williams is estopped from arguing
that the FAC’s claims are not based on protected activity. Respondents also argue that it
would be improper and contrary to the SLAPP statute and established authority to permit
Williams, who acknowledged that he dismissed the SAC because it would not have
survived the anti-SLAPP motion, to evade the rulings of the First Lawsuit by filing and
pursuing the Second Lawsuit.
Williams has the stronger argument.
B. Legal Standards
1. Anti-SLAPP Motions
Under California law, a cause of action arising from a person’s act in furtherance
of the “right of petition or free speech under the [federal or state constitution] in
connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1); see Bonni,
supra, 11 Cal.5th at p. 1009.) Courts evaluate a special motion to strike/an anti-SLAPP
motion through a two-step process. (Bonni, at p. 1009; Baral v. Schnitt (2016) 1 Cal.5th
376, 384 (Baral).) Under the first step, the defendant bears the burden of establishing
that a challenged cause of action or claim arises from activity protected by section
425.16, subdivision (e). (See Bonni, at p. 1009; Navellier v. Sletten (2002) 29 Cal.4th 82,
89 (Navellier).) Under the second step, for each claim that arises from protected activity,
the plaintiff bears the burden of demonstrating minimal merit of those claims by
establishing a probability of success. (See Bonni, at p. 1009; Baral, 1 Cal.5th at p. 384.)
Only a claim or cause of action that “satisfies both prongs of the anti-SLAPP statute –
i.e., that arises from protected speech or petitioning and lacks even minimal merit,” will
be stricken. (Navellier, at p. 89.)
10.
With respect to the first step, a claim or cause of action arises from protected
activity when it is based on or rests on protected activity. (See Bonni, supra, 11 Cal.5th
at p. 1010; Navellier, supra, 29 Cal.4th at p. 89.) That is, a claim or cause of action may
be stricken “ ‘only if the [protected activity] itself is the wrong complained of, and not
just evidence of liability or a step leading to some different act for which liability is
asserted.’ ” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson),
quoting Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057,
1060 (Park).) “The defendant’s burden is to identify what acts each challenged claim
rests on and to show how those acts are protected under a statutorily defined category of
protected activity.” (Bonni, at p. 1009; see also Wilson, at p. 884; Laker v. Board of
Trustees of California State University (2019) 32 Cal.App.5th 745, 760.)
“Section 425.16 is not concerned with how a complaint is framed, or how the primary
right theory might define a cause of action.” (Baral, supra, 1 Cal.5th at p. 382.) Instead,
courts are to consider the elements of a challenged claim and what actions by the
defendant supply those elements, and consequently form the basis for liability. (Bonni, at
p. 1009; Park, at p. 1063.) In other words, after demonstrating that its conduct
constitutes protected activity, a defendant must then demonstrate that its protected
conduct supplies one or more elements of a plaintiff’s claim. (Wilson, at p. 887.)
Allegations that are “ ‘merely incidental,’ ” or “ ‘collateral,’ ” or that merely provide
context without actually supporting a claim for recovery are not subject to being stricken
through the anti-SLAPP statute. (Baral, at p. 394.) For causes of action that are based on
multiple acts, some of which constitute protected activity and some of which do not, i.e.,
a “ ‘ “mixed cause of action,” ’ ” courts disregard acts that do not constitute protected
activity. (Bonni, at p. 1010; Baral, at p. 396; Pech v. Doniger (2022) 75 Cal.App.5th
443, 459 (Pech).) Further, “[i]f a cause of action has multiple claims and a moving party
fails to identify how the speech or conduct underlying some of those claims is protected
activity, [the moving party] will not carry its first-step burden as to those claims.”
11.
(Bonni, at p. 1011; Pech, at p. 459.) In deciding whether a defendant has satisfied the
first step, courts consider the “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability … is based.” (§ 425.16, subd. (b); Navellier, at
p. 89.) The determination that a defendant has met the first step is reviewed de novo.
(See Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1250; Park, at p. 1067.)
2. Issue Preclusion/Collateral Estoppel
The doctrine of collateral estoppel or issue preclusion “ ‘precludes relitigation of issues
argued and decided in prior proceedings.’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28
Cal.4th 888, 896; see Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320,
348.) In order for issue preclusion to apply, the following elements must be met: (1) the
issue sought to be precluded from relitigation must be identical to that decided in a
former proceeding; (2) the issue must have been actually litigated in the former
proceeding; (3) the issue must have been necessarily decided in the former proceeding;
(4) the decision in the former proceeding must be final and on the merits; and (5) the
party against whom preclusion is sought must be the same as, or in privity with, the party
to the former proceeding. (People v. Strong (2022) 13 Cal.5th 698, 716; Kaur, at
pp. 348–349; see also Samara v. Matar (2018) 5 Cal.5th 322, 327.) “ ‘The “identical
issue” requirement addresses whether “identical factual allegations” are at stake in the
two proceedings, not whether the ultimate issues or dispositions are the same.’ ”
Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 (Hernandez); In re Marriage of
Brubaker & Strum (2021) 73 Cal.App.5th 525, 538.) An issue is “actually litigated” if it
was “properly raised, submitted for determination, and determined in [a] proceeding.”
Hernandez, at p. 511; In re Marriage of Brubaker & Strum, at p. 538.) An issue will be
considered “ ‘ “necessarily decided” ’ ” so long as the issue was not “ ‘ “entirely
unnecessary” ’ ” to the judgment in the prior proceeding. (Samara v. Matar, at p. 327;
In re Marriage of Brubaker & Strum, at p. 538.) The party asserting issue preclusion has
the burden of establishing the above elements. (People v. Strong, at p. 716; Kaur v.
12.
Foster Poultry Farms LLC, at p. 348.) “Where there is doubt about the application of
issue preclusion, it should not apply.” (Union Pacific Railroad Co. v. Santa Fe Pacific
Pipelines, Inc. (2014) 231 Cal.App.4th 134, 186; Flynn v. Gorton (1989) 207 Cal.App.3d
1550, 1554; cf. Little v. United States (9th Cir. 1986) 794 F.2d 484, 487 [applying federal
law and noting that “if there is doubt, collateral estoppel will not be applied …”].) Stated
differently, “[i]f ‘anything is left to conjecture as to what was necessarily involved and
decided’ there can be no collateral estoppel.” (Eichler Homes, Inc. v. Anderson (1970)
9 Cal.App.3d 224, 234; see also Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th
1489, 1520; Silver v. Los Angeles County Metropolitan Transportation Authority (2000)
79 Cal.App.4th 338, 357.) A lower court’s application of issue preclusion is reviewed de
novo. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684; Union
Pacific Railroad, at p. 156.)
C. Analysis
1. Trial Court’s Rationale
The trial court’s finding regarding “primary rights” and citation to South Sutter
show the court was aligning itself with South Sutter.
a. Primary Rights Theory in General
In California, the “primary right theory … provides that a ‘cause of action’ is
comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the
defendant, and a wrongful act by the defendant constituting a breach of that duty. The
most salient characteristic of a primary right is that it is indivisible: the violation of a
primary right gives rise to but a single cause of action. A pleading that states the
violation of one primary right in two causes of action contravenes the rule against
‘splitting’ a cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681; see also
Baral, supra, 1 Cal.5th at p. 393.)
13.
b. South Sutter Decision
In South Sutter, the plaintiff dismissed a complaint without prejudice a week after
the defendant filed an anti-SLAPP motion. (South Sutter, supra, 193 Cal.App.4th at
p. 647.) The plaintiff then filed a new lawsuit against the defendant. (Ibid.) The new
lawsuit omitted a number of allegations made in the first lawsuit but contained no new
facts. (Id. at p. 648.) After the new lawsuit was filed, the defendant moved in the first
lawsuit for attorney fees pursuant to section 425.16, subdivision (c). (South Sutter, at
p. 647.) The motion for attorney fees was granted, and the trial court found among other
things that the causes of action arose from protected activity. (Ibid.) The defendant then
filed an anti-SLAPP motion in the new lawsuit, and the trial court granted the motion.
(Id. at pp. 649, 651.) With respect to the first part of the SLAPP analysis, the court found
that defendant had met its burden of establishing protected activity because the two
lawsuits involved the same primary right and the attorney fee order in the first lawsuit
had determined that the primary right was a SLAPP. (Id. at p. 651.)
The Court of Appeal agreed with the trial court. (South Sutter, supra, 193
Cal.App.4th at p. 659.) South Sutter explained that it reviewed the “primary rights theory
as it relates to defining a cause of action for purposes of the SLAPP statute” and
concluded that the primary rights theory operated “to bar relitigation of the first prong of
the anti-SLAPP motion under the principle of direct estoppel.” (Ibid.) South Sutter
began its analysis by holding, “[f]or purposes of an anti-SLAPP motion, ‘ “[a] ‘cause of
action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’
of the defendant, and a wrongful act by the defendant constituting a breach of that
duty.” ’ ” (Ibid.) South Sutter then discussed the primary right theory in general and its
application in res judicata, including both claim and issue preclusion.5 (Id. at pp. 659–
5 In the past, the term “ ‘res judicata’ has been used to encompass both claim
preclusion and issue preclusion .…” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th
at p. 896, fn. 7.)
14.
661.) South Sutter concluded from these general principles that “if a second lawsuit
arises from the same cause of action on which the first lawsuit was based, i.e., the same
wrongful act by the defendant that breached the plaintiff’s primary right, direct estoppel
will bar relitigating issues in the second action that were litigated and determined in the
first action.” (Id. at p. 661.) Although the Court of Appeal was unaware of a reported
opinion in which direct estoppel was applied in an anti-SLAPP context, “if the second
action attacked by an anti-SLAPP motion is based on the same ‘cause of action’ or
primary right as the first action which was successfully attacked by an anti-SLAPP
motion,” there was no reason why direct estoppel should not apply. (Ibid.) South Sutter
then identified the five elements of direct estoppel6 and, considering the primary right
theory’s definition of a cause of action, concluded that the trial court’s attorney fees order
in the first lawsuit met these elements. (Id. at p. 662.)
c. Applicability of South Sutter to this Case
Admittedly, the procedural posture of South Sutter is quite similar to this case.
Nevertheless, we cannot follow South Sutter because its analysis is inconsistent with later
binding Supreme Court authority. Five years after South Sutter was published, our
Supreme Court in Baral found the primary right theory to be “ill-suited to the anti-
SLAPP context.” (Baral, 1 Cal.5th at p. 395.) Baral determined that applying the
primary right theory’s understanding of an indivisible cause of action in the SLAPP
context would be contrary to the legislative intent behind the “ ‘special motion to
strike,’ ” which was meant to challenge particular allegations or claims and would not
adequately answer the question of how to deal with a complaint that contained mixed
6 In current practice, both direct and collateral estoppel are referred to as “ ‘issue
preclusion.’ ” (Samara v. Matar, supra, 5 Cal.5th at p. 326.) Thus, the five elements of
direct estoppel identified by South Sutter are unsurprisingly the same elements of
collateral estoppel. (Cf. Hernandez, supra, 46 Cal.4th at p. 511 [elements of collateral
estoppel] with South Sutter, supra, 193 Cal.App.4th at pp. 661–662 [elements of direct
estoppel].)
15.
causes of action. (Id. at p. 394; see Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1170.)
Because the primary right theory was inconsistent with legislative intent, and is
“notoriously uncertain in application,” the Supreme Court rejected application of the
primary right theory’s understanding of a “ ‘cause of action’ ” to section 425.16,
subdivision (b)(1)’s use of the term “ ‘cause of action.’ ” (Baral, at pp. 394–395; Area 51
Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 595, fn. 6; Gaynor v.
Bulen (2018) 19 Cal.App.5th 864, 875, fn. 5; Crossroads Investors L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757, 775, fn. 8; Sheley v. Harrop, 9
Cal.App.5th at p. 1170; see also Pech, supra, 75 Cal.App.5th at p. 458.) Instead, Baral
held that a “cause of action” for purposes of section 425.16, subdivision (b)(1) refers to
“allegations of protected activity that are asserted as grounds for relief.” (Baral, at
p. 395; Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina LLC
(2021) 67 Cal.App.5th 1149, 1157–1158.)
As a result of Baral’s definition of “cause of action,” courts do not analyze or
consider a “SLAPP-challenged” cause of action or claim in terms of the primary right
involved, rather, as explained above, the analysis is based only on the particular factual
allegations that form the basis of the cause of action or claim. (See Bonni, supra,
11 Cal.5th at pp. 1010–1011; Baral, supra, 1 Cal.5th at p. 395; Medical Marijuana, Inc.
v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886, fn.11; Newport Harbor Offices &
Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43–44;
Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th
399, 423.) That is, the general right possessed or wrong suffered by a plaintiff is not
considered or assessed, rather, only the specific allegations that supply the elements of a
cause of action, and thus form the basis of the cause of action, are assessed. (See Bonni,
at pp. 1009, 1015; Baral, at pp. 382, 395–396; Wilson, supra, 7 Cal.5th at pp. 884, 887;
Park, supra, 2 Cal.5th at p. 1063.) Moreover, the assessment is limited to factual
allegations that constitute protected activity. (Bonni, at pp. 1010, 1012; Baral, at p. 396.)
16.
If a complaint involves a mixed cause of action, the factual allegations that support a
claim within the mixed cause of action, but that do not constitute SLAPP protected
activity, are disregarded and simply not evaluated as part of an anti-SLAPP motion.
(Bonni, at pp. 1010–1012; Baral, at p. 396; Pech, supra, 75 Cal.App.5th at p. 459.) Thus,
no assessments or determinations are made concerning claims within a mixed cause of
action that are not based on SLAPP protected activity. (See Bonni, at pp. 1010–1012;
Baral, at p. 396; Pech, at p. 459.)
With respect to issue preclusion, although the doctrine was not before it, we think
the Baral court’s analysis necessarily shows how issue preclusion should apply to prior
step one SLAPP rulings. Baral means that when the first SLAPP question is
affirmatively answered, the only issue that is resolved is whether the specific allegations
that supply an element of a claim constitute protected activity. The general primary right
of the plaintiff is not analyzed or considered, (Baral, supra, 1 Cal.5th at p. 382), and
issues regarding claims that are not based on protected activity are not resolved, (Bonni,
supra, 11 Cal.5th at pp. 1010–1012; Wilson, supra, 7 Cal.5th at pp. 884, 887; Baral, at
p. 396), even if the claims involve the same primary right as the claims based on
protected activity. (Cf. Gaynor v. Bulen, supra, 19 Cal.App.5th at p. 878 [explaining
that “an anti-SLAPP motion may be used to strike particular claims of protected activity
even without defeating a pleaded ‘cause of action’ or ‘primary right’ ”].) Therefore,
given the nature of the step one SLAPP analysis, the step one findings of a prior anti-
SLAPP motion will have preclusive effect only as to the specific allegations that were
found to be protected activity and to supply an element of a cause of action or claim. (Cf.
Hoang v. Tran (2021) 60 Cal.App.5th 513, 530 [applying issue preclusion to a prior first
question SLAPP ruling in the same case where the claims were based on a defamatory
news article, the issues were identical, and the court “could not have granted [the
defendant’s] anti-SLAPP motion unless it found that appellant’s statements in the article
had been made ‘in connection with an issue of public interest’ ”].) If an element of a
17.
cause of action or claim is not based on a specific allegation that was previously
determined to constitute protected activity, then the prior anti-SLAPP ruling will not have
preclusive effect.
As South Sutter relies on the primary right theory’s understanding of a “cause of
action” in its evaluation of the anti-SLAPP motion and issue preclusion, South Sutter is
contrary to Baral and cannot be applied in this case. Prior to this opinion, we are aware
of no published opinion that had analyzed South Sutter in light of Baral, which makes the
trial court’s reliance on South Sutter understandable. Nevertheless, South Sutter’s
dependency on the primary rights understanding of a cause of action for purposes of anti-
SLAPP motions cannot be squared with Baral. Therefore, the court’s reliance on
primary rights and South Sutter in finding that Respondents had met their burden under
the first SLAPP question was error.7
2. Application of Issue Preclusion
Through our de novo review, we may affirm the trial court’s granting of the anti-
SLAPP motion on any theory that may be applicable to the case. (City of Alhambra v.
D’Ausilio (2011) 193 Cal.App.4th 1301, 1306–1307.) Apart from South Sutter,
Respondents argue the record reflects that the elements of issue preclusion were met.
7 The Hospitalist Respondents argue that Williams forfeited his argument that
South Sutter is incompatible with Baral by not raising the issue before the trial court and
by fully embracing South Sutter in opposition to attorney fees. We will not hold that
there is forfeiture. First, South Sutter’s compatibility with Baral is a pure question of law
that is based on undisputed facts. Under these circumstances, we exercise our discretion
to consider the issue. (Fort Bragg Unified School Dist. v. Colonial American Casualty &
Surety Co. (2011) 194 Cal.App.4th 891, 907.) Second, Williams distinguished South
Sutter, argued how South Sutter may apply to the second SLAPP question assuming it
was not distinguishable, and denied that South Sutter was good authority related to the
first SLAPP question. Thus, Williams did not “fully embrace” South Sutter.
18.
Because we find that three elements of issue preclusion were not met, we disagree with
Respondents.8
a. Elements
1. Identical Issues
The First Lawsuit’s Fee Order did not address the identical issue as the SLAPP
order. True, the general issue of whether the first step of the SLAPP framework was met
was an issue in the Fee Order and the SLAPP order. However, as explained above, that
general issue is resolved by examining the particular factual allegations in the operative
complaint, specifically the allegations that both constitute protected activity and fulfill an
element of a cause of action. (Bonni, supra, 11 Cal.5th at pp. 1009–1012, 1015; Baral,
supra, 1 Cal.5th at p. 396; Pech, supra, 75 Cal.App.5th at p. 459.) Factual allegations
that do not satisfy these criteria are disregarded. (Bonni, at pp. 1010–1012; Baral, at
p. 396; Pech, at p. 459.) Thus, the analysis is specific to the particular allegations made
in a complaint.
Here, there is no dispute that the FAC omitted allegations from the First Lawsuit’s
SAC involving speech during a peer review process and speech concerning Williams’s
competence as a licensed physician. There is also no dispute that these two types of
speech constitute protected activity under section 416.25, subdivision (e), and the SLAPP
motions and fee motions in the First Lawsuit only identified these two types of speech as
the protected activity at issue. Importantly, the only protected activity identified in the
First Lawsuit’s Fee Order involved peer review or comments about Williams’s
competence.
8 The Hospitalist Respondents state that even though they believe the elements of
claim preclusion have also been met, they choose to focus their arguments on issue
preclusion. Because the Hospitalist Respondents do not actually develop an argument in
support of claim preclusion, the argument is waived. (See In re Tobacco Cases II (2015)
240 Cal.App.4th 779, 808; City of Santa Maria v. Adam, (2012) 211 Cal.App.4th 266,
287; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
19.
The omission of these protected activities from the FAC means that no cause of
action includes or can be based on these protected activities. Respondents do not identify
any allegations in the FAC that constitute protected activity and form the basis of any
claim, and no such allegations are apparent to us. This is consistent with Williams’s
briefing and the FAC which both state that there are none. Therefore, the factual
allegations in the FAC are not identical to the factual allegations in the First Lawsuit’s
SAC, and there has been no showing that a factual allegation that forms the basis of any
of the FAC’s causes of action or claims was determined to constitute protected activity by
the First Lawsuit’s Fee Order. Without specific and materially identical allegations of
protected activity supplying elements of causes of action or claims in both the First
Lawsuit’s SAC and the Second Lawsuit’s FAC, the issues involved in the First Lawsuit’s
Fee Order are not identical to the issues involved in the SLAPP order. (See Hernandez,
supra, 46 Cal.4th at p. 511 [explaining that identical issues element refers to “ ‘identical
factual allegations’ ”].)
2. Actually Litigated
An issue is “actually litigated” if it was “properly raised, submitted for
determination, and determined in [a] proceeding.” Hernandez, supra, 46 Cal.4th at
p. 511. In part, the First Lawsuit’s Fee Order held that, considering SLAPP protected
peer review and comments on competency, “the SAC’s causes of action were
problematic.” We are not satisfied that this language means that the issue of whether all
causes of action or claims in the First Lawsuit’s SAC arose from protected activity was
actually litigated.
In terms of the briefing or issue submitted, the Respondents’ anti-SLAPP motions
in the First Lawsuit sought to dismiss or strike only claims that “arose from protected
activity,” not “all claims.” Similarly, the DMC Respondents’ fee motion, which was
incorporated by reference in the Hospitalist Respondents’ fee motion, explained that their
anti-SLAPP motion attempted “to strike many of [Williams’s] claims .…” (Italics
20.
added.) Of course, “many” does not mean “all.” Further, Respondents’ anti-SLAPP
motions and fee motions in the First Lawsuit identified the protected activity only as
statements made in connection with the peer review process and comments about
Williams’s competence. Therefore, the relevant briefing recognizes that not all claims in
the First Lawsuit’s SAC were subject to being stricken, rather, only claims based on
comments in connection with peer review and statements about Williams’s competence
and qualifications were at issue. That is, the motions indicate that the issue of whether all
causes of action or claims in the SAC arose from protected activity was not submitted
and tried.
In terms of what was actually determined, the First Lawsuit’s Fee Order concluded
that the allegations in the First Lawsuit’s SAC were “based almost entirely upon
[protected activity],” the protected activity was not incidental, and “[w]hether broadly
construed as part of the peer review process, or as statements and comments … related to
a physician’s ‘qualifications and competence – the SAC’s causes of action were
problematic.” We agree with Williams that the use of the phrase “almost entirely” of
necessity means either “not all” of the allegations involved protected activity or “some
allegations” did not involve unprotected activity. Further, and consistent with
Respondents’ briefing, the order indicates that the protected activity at issue is comments
made in connection with peer review or statements about Williams’s competence.
However, the First Lawsuit’s Fee Order does not identify what allegations involve
unprotected activity, which claims are based on unprotected activity, or which claims
were based on protected activity. This is not surprising considering that the litigation had
terminated through Williams’s dismissal (thus negating the need to determine which
claims could proceed), and the court’s first step SLAPP analysis required it to disregard
allegations of, and claims that arise from, unprotected activity. (Bonni, supra, 11 Cal.5th
at pp. 1009–1012; Baral, supra, 1 Cal.5th at p. 396.)
21.
Considering the protected activity identified, the recognition that not all
allegations involved protected activity, the briefing submitted, and the procedural posture
of the case, it is not clear that a finding that “the SAC’s causes of action were
problematic” means that all causes of action in the First Lawsuit’s SAC are based on
protected activity. Therefore, we conclude that there is uncertainty about what was
actually litigated and determined through the First Lawsuit’s Fee Order. That uncertainty
is resolved against application of issue preclusion. (Union Pacific Railroad Co. v. Santa
Fe Pacific Pipelines, Inc., supra, 231 Cal.App.4th at p. 186; Shopoff & Cavallo LLP v.
Hyon, supra, 167 Cal.App.4th at p. 1520; Silver v. Los Angeles County Metropolitan
Transportation Authority, supra, 79 Cal.App.4th at p. 357; Flynn v. Gorton, supra, 207
Cal.App.3d at p. 1554; Eichler Homes, Inc. v. Anderson, supra, 9 Cal.App.3d at p. 234.)
3. “Necessarily Decided”
As indicated in the previous point, prior to and apart from the attorney fees
motion, the First Lawsuit had terminated and was not going forward. This made it
unnecessary for the trial court to determine which specific causes of action or claims
based on protected activity would be stricken and which claims based on unprotected
activity would proceed. For purposes of the attorney fees motion, which did not include
a challenge by Williams as to the amount of fees requested, it was enough to determine
that Respondents had generally shown there were allegations of protected activity that
formed the basis of some causes of action or claims in the First Lawsuit’s SAC.9 Further,
9 If a complaint is dismissed while an anti-SLAPP motion is pending, it is agreed
courts retain jurisdiction to award fees so that the deterrent effect of the SLAPP statute is
not undermined. (Ross v. Seyfarth Shaw LLP (2023) 96 Cal.App.5th 722, 732–733.) The
framework for awarding fees in the context of a voluntary dismissal, however, is
unsettled. (Id. at p. 733.) Some courts require a lower court to determine whether the
defendant is the prevailing party due to achieving its litigation objectives through the
dismissal. (E.g., Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107). Other courts
require the lower court to determine whether the defendant’s anti-SLAPP motion would
have been granted had the plaintiff not dismissed its case; if the motion would have been
granted, the defendant is the prevailing party. (E.g. Tougeman v. Nelson & Kennard
22.
allegations of, and causes of action or claims based on, unprotected activity are
disregarded for purposes of an anti-SLAPP motion. (Bonni, supra, 11 Cal.5th at
pp. 1009–1012; Baral, supra, 1 Cal.5th at p. 396.) Because such allegations and claims
are disregarded, and the First Lawsuit had already terminated, any determinations
regarding which specific causes of action or claims were based on allegations of
protected activity, and which were based on allegations of unprotected activity, would
seem to be “ ‘ “entirely unnecessary” ’ ” to resolution of the fee motions. (Samara v.
Matar, supra, 5 Cal.5th 322 at p. 327.) There is at best uncertainty regarding what was
necessarily decided, and we resolve that uncertainty against application of issue
preclusion. (Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc., supra,
231 Cal.App.4th at p. 186; Shopoff & Cavallo LLP v. Hyon, supra, 167 Cal.App.4th at
p. 1520; Silver v. Los Angeles County Metropolitan Transportation Authority, supra,79 Cal.App.4th at p. 357; Flynn v. Gorton, supra, 207 Cal.App.3d at p. 1554; Eichler
Homes, Inc. v. Anderson, supra, 9 Cal.App.3d at p. 234.)
b. Judicial Admission
The Hospitalist Respondents contend that Williams has judicially admitted
through allegations in the FAC that “each of the claims he alleged in the first lawsuit
‘would not survive’ the anti-SLAPP motions filed by respondents and that this was the
reason he filed a voluntary dismissal.” We disagree that Williams has made a judicial
admission.
“Judicial admissions are admissions of fact that ‘may be made in a pleading, by
stipulation during trial, or by response to request[s] for admission.’ ” (BMC Promise
Way, LLC v. County of San Benito (2021) 72 Cal.App.5th 279, 285–286.) “[I]f a factual
(2014) 222 Cal.App.4th 1447, 1457–1458). The parties cite to and rely on Tougeman in
their briefing and do not discuss Coltrain. Because the result will not change, we need
not formally choose between Coltrain and Tougeman, but will follow the parties’ lead
and accept Tougeman for purposes of this order. (Ross, at p. 733.)
23.
allegation is treated as a judicial admission, then neither party may attempt to contradict
it—the admitted fact is effectively conceded by both sides.” (Barsegian v. Kessler &
Kessler (2013) 215 Cal.App.4th 446, 452.) However, judicial admissions pertain to
factual allegations—they do not involve legal theories, legal conclusions, legal
arguments, or assertions concerning mixed questions of law and fact. (See In re
Marriage of V.S. & V.K. (2023) 97 Cal.App.5th 219, 229; BMC Promise Way, at p. 286;
Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 636–637; Stroud v. Tunzi (2008)
160 Cal.App.4th 377, 384.) Further, a judicial admission is an unequivocal concession of
the truth of a matter. (Perez v. Galt Joint Union Elementary School District (2023)
96 Cal.App.5th 150, 171.) Thus, unclear, equivocal, uncertain, or ambiguous statements
do not create binding judicial admissions. (Howard v. American National Fire Ins. Co.
(2010) 187 Cal.App.4th 498, 515–516; Stroud v. Tunzi, at p. 385; Kirby v. Albert D.
Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066.)
In pertinent part, the FAC alleged that Williams dismissed the First Lawsuit
“because he believed that [the First Lawsuit’s] focus on peer review and speech activities
would not survive the [Respondents’] anti-SLAPP motion[s].” The FAC also alleged that
the First Lawsuit “focused on the huge amount of false information that [Respondents]
disseminated as part of their campaign to destroy Dr. Williams’s medical practice.
However, as described above, a lawsuit that focuses on that type of speech is subject to
successful attack by an anti-SLAPP motion.”
We conclude the above allegations are not judicial admissions for at least two
reasons. First, they do not deal with facts. The allegations deal with Williams’s opinion
about the probable outcome of the Respondents’ anti-SLAPP motions and his belief that
claims based on speech related to medical practitioners are subject to successful SLAPP
attacks. Williams’s subjective beliefs may explain his actions, but they do not speak to
the content or makeup of all the claims, or even a specific claim, in the SAC. Moreover,
even if the allegations can be read as assertions that all claims in the SAC were subject to
24.
dismissal by a SLAPP motion, and thus, all claims are based on SLAPP protected
activity, such a reading involves a legal conclusion because protected activity is
determined by comparing alleged conduct to four statutorily defined categories of
protected activity. (Navellier, supra, 29 Cal.4th at p. 88.) Therefore, the allegations at
issue involve subjective beliefs that relate to legal theories, legal conclusions, or
assertions regarding mixed questions of law and fact, none of which may constitute a
judicial admission. (See In re Marriage of V.S. & V.K., supra, 97 Cal.App.5th at p. 229;
BMC Promise Way, LLC v. County of San Benito, supra, 72 Cal.App.5th at p. 286; Eisen
v. Tavangarian, supra, 36 Cal.App.5th at pp. 636–637; Stroud v. Tunzi, supra,
160 Cal.App.4th at p. 385.)
Second, the allegations are not clear. The allegations do not identify any specific
claim or cause of action, or the basis of any specific claim or cause of action, found in the
SAC. Instead, the allegations merely acknowledge that the “focus” of the SAC generally
would be problematic under the SLAPP statute. Acknowledging a problem about the
“focus” of the lawsuit is not the same as explaining what each claim is actually based on,
nor is it the same as agreeing that all claims in the SAC were based on protected activity.
While it is fair to read the allegations as acknowledging that some claims would be
subject to being stricken, “some” does not mean “all.” Accordingly, the relevant
allegations are not sufficiently clear to constitute judicial admissions. (Stroud v. Tunzi,
supra, 160 Cal.App.4th at p. 385; Kirby v. Albert D. Seeno Construction Co., supra,
11 Cal.App.4th at p. 1066.)
c. Evasion of Prior SLAPP Ruling
Respondents contend that if issue preclusion is not applied in this case and the trial
court’s SLAPP order is reversed, then Williams will have effectively amended the First
Lawsuit’s SAC in contravention of the SLAPP statute’s purposes. We disagree.
First, Williams did not amend the SAC, he voluntarily dismissed the First Lawsuit.
The voluntary dismissal was made prior to any hearing or ruling by the trial court.
25.
Courts recognize that such voluntary dismissals terminate the case and eliminate the
jurisdiction of the lower court to formally rule on the anti-SLAPP motion; the lower court
merely retains limited jurisdiction to rule on a SLAPP motion for attorney fees. (Ross v.
Seyfarth Shaw LLP (2023) 96 Cal.App.5th 722, 732–733; Law Offices of Andrew L. Ellis
v. Yang (2009) 178 Cal.App.4th 869, 881; see also Kyle v. Carmon (1999)
71 Cal.App.4th 901, 909–910.) Therefore, there was nothing improper about Williams’s
voluntary dismissal. Further, because the dismissal was without prejudice, Williams
remained free to file a new lawsuit, which he did. (Wells v. Marina City Properties, Inc.,
29 Cal. 3d 781, 784; Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455;
Nolan v. Workers’ Compensation Appeals Bd. (1977) 70 Cal.App.3d 122, 128; see also
Burke v. Chamberlin & Co. (1942) 51 Cal.App.2d 419, 429.) What Williams could not
avoid through dismissal was the attorney fees motion. (Ross, at pp. 732–733.) However,
while Williams did oppose the motion for attorney fees, Williams did not appeal the
award of attorney fees, and he paid Respondents the full amount ordered. Therefore,
Williams properly exercised his right to dismiss and did not subvert the SLAPP statute by
evading attorney fees as the consequence for pursuing SLAPP causes of action.
Second, Williams agrees with the DMC Respondents’ characterization of the FAC
as representing a subset of the First Lawsuit’s SAC’s claims against a subset of the
SAC’s defendants. However, other than reliance on issue preclusion, Respondents do not
contradict Williams’s assertions and arguments that the FAC does not contain causes of
action that arise from protected activity. Given these considerations, permitting the
Second Lawsuit to proceed is consistent with what would happen in all cases involving
mixed causes of action. With mixed causes of action, claims based on unprotected
activity would not be subject to being stricken, while claims based on protected activity
would; the result being that the entire lawsuit would not terminate through the granting of
an anti-SLAPP motion. (See Bonni, supra, 11 Cal.5th at p. 1012, fn. omitted
[“Conversely, to the extent any acts are unprotected [by the SLAPP statute], the claims
26.
based on those acts will survive”].) Therefore, under the circumstances of this case, the
policy behind the SLAPP statute has been fulfilled – all of Williams’s claims arising out
of protected activity are gone, Williams paid attorney fees for pursuing SLAPP claims,
and the only claims remaining are those that arise from unprotected activity that do not
implicate the SLAPP statute.10
3. Conclusion
The SLAPP order and the parties rely on issue preclusion to establish the first step
of the SLAPP framework. We have concluded that issue preclusion does not apply in
this case. Without application of issue preclusion, we conclude that the Respondents did
not meet their burden of showing that any cause of action or claim in the FAC arose from
SLAPP protected activity. Because only causes of action that satisfy both steps of the
SLAPP framework are subject to being stricken, (Navellier, supra, 29 Cal.4th at p. 89),
the SLAPP order must be reversed, and it is unnecessary for us to address whether
Williams met his burden under the second step.11
10 For a similar reason, we reject the Hospitalist Respondents’ argument that the
second lawsuit is based on a sham complaint. Under the principle of truthful pleading, if
a “ ‘plaintiff pleads inconsistently in separate actions, the plaintiff’s complaint is nothing
more than a sham that seeks to avoid the effect of a demurrer.’ ” (Larson v. UHS of
Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) Here, the Second Lawsuit’s
FAC contains the subset of claims that were both alleged in the First Lawsuit’s SAC and
not based on SLAPP protected activity. If Appellant had not voluntarily dismissed the
SAC, the claims alleged in the FAC would still be proceeding in the first lawsuit because
those claims would not have been dismissed through the SLAPP process. (See Bonni,
supra, 11 Cal.5th at pp. 1009–1012; Baral, supra, 1 Cal.5th at p. 396.) Therefore, the
SAC and the FAC are not inconsistent pleadings, and the FAC is not a sham.
11 The Hospitalist Respondents argue that any error in the SLAPP process was
harmless because the Second Lawsuit’s FAC is subject to dismissal through a demurrer.
We are not persuaded for several reasons. First, the argument is based largely on the trial
court’s dismissal through a demurrer of the original complaint. Thus, the demurrer
involved a now inoperative complaint, and did not and could not involve the FAC.
Second, the SLAPP analysis actually at issue in this appeal is materially different from
the analysis of a demurrer. The SLAPP analysis does not concern itself with the
sufficiency of pleadings, and no court has actually assessed whether a second demurrer
27.
II. Second Lawsuit’s Attorney Fees Award
A. Parties’ Arguments
Williams argues that because the SLAPP order must be reversed, the Second
Lawsuit’s dependent award of attorney fees under section 425.16, subdivision (c) must
also be reversed. Additionally, in reply, Williams argues that the second appeal was
properly filed and that neither dismissal nor sanctions for filing the appeal are
appropriate.
Respondents argue that the award of attorney fees is dependent on the outcome of
the first appeal and that a reversal of the SLAPP order necessarily entails a reversal of the
subsequent fee award. As a result, the second appeal was unnecessarily filed and should
be dismissed. Additionally, through a separate motion, the Hospitalist Respondents move
to dismiss and request sanctions against Williams for filing the second appeal.
B. Analysis
1. Propriety of the Second Appeal
Contrary to Respondents’ contentions, case authority is not uniform in its
treatment of dependent fee awards. Some appellate courts hold that, even without a
separate appeal, they have the authority to reverse dependent fee awards when the
underlying judgment is also reversed. (E.g., Ulkarim v. Westfield LLC (2014)
would be sustained. (Cf. Golden Gate Land Holdings LLC v. Direct Action Everywhere
(2022) 81 Cal.App.5th 82, 92 [“… regardless of the potential vulnerability [through a
demurrer] of the claims against [defendant], our review here is limited to the trial court’s
anti-SLAPP ruling …”].) Were we to agree with the Hospitalist Respondents, we would
in effect be issuing an advisory opinion. Finally, it is unclear that the entire FAC would
actually be dismissed without leave to amend through a demurrer. We are not satisfied
that the Hospitalist Respondents’ have made an adequate assessment of each cause of
action, and Appellant replies that some of the facts he raised in this appeal could be
added in support of the FAC. This means that the issue of a final dismissal is not readily
ascertainable from the face of the FAC or the briefing submitted in this appeal. The
Hospitalist Respondents’ argument is more appropriately made to the trial court through a
properly briefed demurrer.
28.
227 Cal.App.4th 1266, 1282; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th
1018, 1027.) Other courts hold that they have authority to reverse a fee award only when
the judgment and fee award are appealed together in a single appeal or appealed
separately in two appeals. (E.g., Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 1007–1008; Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.)
Additionally, some courts have noted that “ ‘ “[w]hen a party wishes to challenge both a
final judgment and a postjudgment costs/attorney fee order, the normal procedure is to
file two separate appeals: one from the final judgment, and a second from the
postjudmgent order.” ’ ” (Doe v. Westmont College (2021) 60 Cal.App.5th 753, 762
[quoting Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222].)
Williams’s course of action aligns with the cases such as Allen and Nellie Gail
Ranch Owners. Considering the conflicting case authority, as well as the normal
appellate practice described by Westmont College and Torres, we cannot conclude that
Williams improperly filed the second appeal, that dismissal of the second appeal is
mandatory or appropriate, or that sanctions for filing a frivolous appeal are appropriate.12
2. Validity of the Second Lawsuit’s Attorney Fees Award
Mandatory attorney fees and costs are to be awarded to a prevailing defendant on a
special motion to strike. (See § 425.16, subd. (c)(1); Ross v. Seyfarth Shaw LLP, supra,
96 Cal.App.5th at p. 744.) Because we have concluded that the SLAPP order must be
reversed, the award of attorney fees under section 425.16, subdivision (c)(1) must also be
reversed because Respondents are no longer prevailing defendants. (See Ulkarim v.
Westfield LLC, supra, 227 Cal.App.4th at p. 1282; Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1123; Allen v. Smith, supra,12 The Hospitalist Respondents through a separate motion request that we dismiss
Williams’s challenge to the fee award in part so that they do not need to expend any
further resources. This argument is surprising since all agree that the trial court’s award
of attorney fees rises or falls with the SLAPP order.
29.
94 Cal.App.4th at p. 1284; Merced County Taxpayers’ Assn. v. Cardella (1990)
218 Cal.App.3d 396, 402.)
DISPOSITION
The order granting Respondents’ anti-SLAPP motions and the order granting
Respondents attorney fees are reversed.
The Hospitalist Respondents’ motion to dismiss and request for sanctions are
denied.
This matter is remanded to the Superior Court of Stanislaus County for further
proceedings consistent with this order.
Appellant is awarded costs on appeal.
POOCHIGIAN, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
30.