Nowzari v. Torrance Memorial Medical Center CA2/2 ( 2024 )

Filed 5/21/24 Nowzari v. Torrance Memorial Medical Center CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FARHAD NOWZARI, B321862, consolidated with
B324119
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. 21STCP02300)
TORRANCE MEMORIAL ORDER MODIFYING
MEDICAL CENTER et al., OPINION AND DENYING
REHEARING
Defendants and
Respondents. NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on May 2, 2024, be
modified as follows:
1. On page 13, footnote 7, after the sentence ending “pursuant
to that contract,” add the following paragraph:
Along similar lines, Nowzari asserts in his
petition for rehearing that the Medical Executive
Committee’s failure to object to his decision to pursue
arbitration under section 809.2 somehow formed a
“written agreement to submit to arbitration,”
triggering the CAA’s protections (Code Civ. Proc., §
1281). We reject this argument, in part because it
would expand the contract-contingent CAA to apply
to noncontractual arbitrations and thereby negate
statutory limits on its applicability.
2. On page 13, immediately following the parenthetical
citation “(Hongsathavij v. Queen of Angels/Hollywood
Presbyterian Medical Center (1998) 62 Cal.App.4th 1123,
1142.),” add as footnote 8 the following footnote, which will
require renumbering of all subsequent footnotes:
8 Nowzari argues in his petition for rehearing
that “‘even the appearance of bias’” is enough, but
the case he relies on for this principle—FCM
Investments, LLC v. Grove Pham, LLC (2023) 96
Cal.App.5th 545, 555—was applying the CAA and is
therefore inapt.
* * *
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 5/2/24 Nowzari v. Torrance Memorial Medical Center CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FARHAD NOWZARI, B321862, consolidated with
B324119
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
21STCP02300)
TORRANCE MEMORIAL
MEDICAL CENTER et al.,
Defendants and
Respondents.
APPEAL from a judgment and postjudgment order of the
Superior Court of Los Angeles County, James C. Chalfant, Judge.
Affirmed.
Bonne, Bridges, Mueller, O’Keefe & Nichols, Joel Bruce
Douglas and Edward Idell for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Cassidy C.
Davenport for Defendants and Respondents.
******
The peer review body of a hospital restricted a urology
physician’s privileges after three of his patients died in a
relatively short period of time. That decision was upheld by an
arbitrator after a hearing, and then by the review board of the
hospital’s board of trustees. The physician then petitioned for a
writ of mandate to overturn the review board’s decision, but his
petition was denied. We conclude that this denial as well as the
attorney fees awarded as a sanction for the physician’s
unfounded and unreasonable claims were appropriate. We
accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The parties
Farhad Nowzari, M.D. (Nowzari), obtained his medical
degree in 1994 and is a board-certified urologist. Since 2002,
Nowzari has been a member of the Medical Staff at Torrance
Memorial Medical Center (the Hospital) and, until 2018, enjoyed
unrestricted urological and surgical privileges at the Hospital.
B. The three patient deaths
Three patients under Nowzari’s care at the Hospital died
within a five-month period between June and November 2017:
● The first patient was an 86-year-old man. Nowzari
performed a cystoscopy to evaluate a bladder mass on June 15,
2017. Two days later, the patient suffered from renal failure and
died.
2
● The second patient was a 75-year-old woman.
Nowzari performed a cystoscopy to remove a kidney stone and to
install a catheter to treat the patient’s sepsis on July 5, 2017. A
week later, the patient suffered from respiratory failure and
septic shock and died.
● The third patient was an 82-year-old man. Nowzari
performed a cystoscopy, ureteroscopy, and replaced a stent on
November 6, 2017. The patient’s blood pressure dropped
following the procedures. The day after the surgery, he died.
C. Investigation of the patient deaths
In March 2018, the urology subcommittee of the Medical
Staff reviewed these three patient deaths and preliminarily
determined that Nowzari’s treatment of the patients fell below
the standard of care. Before proceeding further, the
subcommittee invited Nowzari to a meeting, at which he
disclaimed all “culpability” for the deaths. The subcommittee
also referred the matter to an outside, independent reviewer, who
recommended that the Medical Staff “initiate formal corrective
action” in light of the “poor quality [of] care” tendered by
Nowzari.
D. Peer review
The Medical Staff is responsible, among other things, for
overseeing the “quality of medical care” at the Hospital. To
discharge that responsibility, the Medical Staff has a standing
peer review body called the Medical Executive Committee.
1. Summary suspension
On August 13, 2018, and based on the recommendation of
the urology subcommittee, the Medical Executive Committee
summarily suspended Nowzari’s membership in the Medical Staff
and all of his privileges with the Hospital.
3
2. Restriction of privileges and order for further
evaluation
On August 22, 2018, the Medical Executive Committee held
a meeting to further consider its initial remedy. Nowzari
attended the meeting, but the committee was “concerned” by his
“self-serving” explanation of the patients’ deaths; more to the
point, the committee questioned whether Nowzari is the type of
physician “who does many procedures even on high risk patients
without concern whether the risks outweigh the benefits to
patients.” The Medical Executive Committee ultimately lifted its
prior suspension, and instead summarily imposed restrictions on
Nowzari’s membership and privileges—namely, the committee (1)
restricted Nowzari’s privileges except for assisting in surgery and
providing inpatient consultations (which would have to be
overseen by another urologist), and (2) removed him from
emergency call coverage for urology. To “understand the steps
that will need to be taken in order for [him] to potentially regain
[his] full surgical privileges,” the committee also required
Nowzari to undergo a competency assessment from the Physician
Assessment and Clinical Education (PACE) Program at UC San
Diego.
3. Results of evaluation and further
recommendations
In its February 2019 report assessing Nowzari’s
competence, PACE rated Nowzari a “3”—on a scale of “1” to “4,”
with “4” being worst—which constituted a “pass with
recommendations” in light of “[s]ignificant deficiencies” that
precluded Nowzari from “reaching his[] full potential.” Before
allowing Nowzari to regain full privileges, PACE recommended
that he (1) be proctored for all surgeries for at least three months,
4
and for at least five major surgeries; (2) undergo a
“comprehensive fitness for duty neuropsychological evaluation,”
which PACE offered to provide; (3) participate in “a random,
unannounced toxicology screening”; and (4) complete a records-
keeping course.
The Medical Executive Committee adopted PACE’s
recommendations with two pertinent modifications—namely, (1)
rather than having Nowzari’s surgeries proctored for a fixed
number of months, the committee ordered Nowzari to be
proctored for a fixed number of surgeries; and (2) rather than
Nowzari completing any neuropsychological evaluation, the
committee ordered Nowzari to be evaluated by PACE. What is
more, the committee specified that Nowzari had to first complete
the neuropsychological evaluation before he could begin the
proctored surgeries.
4. Revised evaluation
After Nowzari contacted PACE to contest his score and its
recommendation of a neuropsychological evaluation, PACE
issued an updated assessment that rated him a “2” on its four-
point scale, but this change did not alter its recommendations.
PACE expressly found that Nowzari’s challenge to its
recommendation that he undergo a neuropsychological evaluation
“did not have merit.”
E. Nowzari’s noncompliance
In December 2019, Nowzari informed the Medical
Executive Committee that he had completed the records-keeping
course. He also inaccurately claimed that his resumption of
proctored surgeries was “not conditioned on a neuro-psychological
evaluation” in light of PACE’s updated assessment, but
nevertheless submitted the results of a fitness-for-duty
5
evaluation conducted by a neuropsychologist he had selected
(rather than by PACE); that psychologist opined that Nowzari
was “neuropsychologically fit for duty as a practicing urologist.”
The Medical Executive Committee retained an independent
reviewer to examine the evaluation Nowzari proffered, and the
reviewer expressed “a number of concerns.” The committee
accordingly advised Nowzari that he had not satisfied the
neuropsychological evaluation requirement and that he would
thus not be permitted to conduct proctored surgeries or move
toward regaining his full privileges.1
F. Nowzari’s challenge to the peer review decision
1. Hearing before an arbitrator
Nowzari exercised his right to a hearing to contest the peer
review body’s—that is, the Medical Executive Committee’s—
initial and subsequent recommendations before they became
final. Nowzari had this right under the Business and Professions
Code as well as under the Hospital’s Bylaws (the Bylaws). (Bus.
& Prof. Code, §§ 805, subd. (a)(1)(B)(i), 809, subd. (b), 809.1.)2
Although the Bylaws only guaranteed him a hearing before a
1 In his brief and at oral argument, Nowzari asserts that
counsel for the Medical Executive Committee later “conceded”
that it was ethically “improper” to require Nowzari to have his
neuropsychological evaluation conducted by PACE. This is a
complete misrepresentation of the record. What the record
actually contains is the independent reviewer’s testimony that
the Medical Executive Committee’s counsel shared with her his
view that it would be “unethical” for the independent reviewer to
offer an opinion on Nowzari’s neuropsychology based on the
report prepared by Nowzari’s neuropsychologist.
2 All further statutory references are to the Business and
Professions Code unless otherwise indicated.
6
three-member panel drawn from the Medical Staff (which the
Bylaws labeled a “Judicial Review Committee”) and overseen by a
hearing officer, section 809.2, subdivision (a), guarantees the
option of a hearing before a panel of physicians or an arbitrator,
and Nowzari exercised his statutory right to have his hearing
before an arbitrator. After many back-and-forth proposals,
Nowzari and the Medical Executive Committee mutually agreed
on a specific arbitrator, despite Nowzari’s awareness that the
selected arbitrator’s prior experience had been “principally on the
side of representing medical staff.”
The evidentiary hearing before the arbitrator spanned 12
evening sessions in November and December 2020. Consistent
with statutory law, the Medical Executive Committee bore the
burden of establishing that its recommendations were
“reasonable and warranted.” (§ 809.3, subds. (b)(1), (b)(3).)
Toward that end, the parties called “numerous witnesses” and
admitted “thousands of pages of exhibits” into evidence.
On March 3, 2021, the arbitrator issued a 28-page decision.
Procedurally, the arbitrator rejected Nowzari’s contentions that
the arbitrator had engaged in impermissible ex parte
communications and that the attorney for the Medical Executive
Committee (opposing counsel) had “a vendetta against him”; the
arbitrator found these contentions “baseless,” “unsupported” and
“false.” On the merits, the arbitrator upheld the Medical
Executive Committee’s initial and revised recommendations,
finding (1) the “initial suspension . . . reasonable and warranted”
“[i]n light of the justified patient safety concerns . . . at the time”
and in light of the independent review of the three patient deaths
expressing the same concerns; and (2) “the lesser restrictive
summary restrictions . . . reasonable and warranted, including
7
the requirement that Dr. Nowzari undergo a neuropsychological
evaluation,” which was independently recommended by PACE,
thereby confirming the “sensib[ility]” of that requirement. The
arbitrator noted Nowzari had failed to sufficiently rebut the
Medical Executive Committee’s evidence.
2. Appeal of hearing
Nowzari next exercised his right under the Bylaws and
under the Business and Professions Code (§ 809, subd. (b)) to
appeal the arbitrator’s decision to the appeal board of the
Hospital’s board of trustees (the Appeal Board). There, Nowzari
argued that (1) the arbitrator failed to disclose his “long, close,
one-hand-washing-the-other relationship going back years” with
opposing counsel; (2) the arbitrator was “secretly conspiring [with
opposing counsel] against” Nowzari, based on Nowzari’s counsel’s
declaration accusing the arbitrator and opposing counsel of
speaking with one another secretly on a “separate Zoom
conference” on video during the hearing; and (3) the arbitrator’s
findings were “not supported by substantial evidence.”
Following further briefing and a hearing, the Appeal Board
on June 16, 2021, issued a 25-page ruling affirming the
arbitrator’s decision. The Appeal Board rejected Nowzari’s claim
that the arbitrator erred in not making disclosures required by
California’s arbitration statutes, concluding those statutes were
inapplicable. The Appeal Board rejected Nowzari’s claim that the
peer review hearing was unfair due to ex parte communications
and other bias because “no cognizable evidence in the record”
supported his “sweeping contention” and “hyperbolic assertions”
“that virtually everyone involved in the peer review process, from
beginning to end, was biased and conspired against him.” And
the Appeal Board ruled that “substantial evidence supports the
8
[a]rbitrator’s decision that, based on the information available . . .
at the time,” both the summary suspension and the subsequent,
summary restrictions on Nowzari’s privileges were “reasonable
and warranted.”
II. Procedural Background
A. Petition for writ of administrative mandamus
On July 16, 2021, Nowzari petitioned the trial court for a
writ of administrative mandamus against the Hospital and the
Medical Staff to set aside all the decisions affecting his physician
privileges, relying chiefly on the same three grounds he asserted
before the Appeal Board.3
Following a full round of briefing and a hearing, the trial
court issued a 28-page decision denying Nowzari’s petition. The
court rejected Nowzari’s claim of arbitrator bias, reasoning that
(1) California’s disclosure statutes governing contractual
arbitration did not apply to Nowzari’s peer review hearing; and
(2) Nowzari failed to meet the default, due process-based
standard for disqualification. The court next found Nowzari’s
claim of ex parte communications between the arbitrator and
opposing counsel to be a “scurrilous and unsupported accusation”
“based on conjecture and speculation without supporting
evidence”; the court went so far as to chastise Nowzari and his
attorney that the accusation of “serious misconduct” “without a
3 Nowzari erroneously named the Medical Executive
Committee of the Medical Staff instead of simply the Medical
Staff. He also erroneously named the board of trustees of the
Hospital instead of simply the Hospital. The judgment reflects
the correct party names.
Nowzari also named as defendants the Hospital’s
fundraising foundation and an affordable care company, but later
dismissed them.
9
good faith basis” had “no business in a brief” and undermined the
“integrity of our adversary legal process.” Finally, the court
found that the peer review decision was supported by substantial
evidence, and that Nowzari’s two-sentence challenge to that
evidence in his brief failed to prove otherwise.
Following entry of judgment for the Hospital and the
Medical Staff, Nowzari timely appealed.
B. Postjudgment award of attorney fees
While Nowzari’s appeal was pending, the Hospital and the
Medical Staff moved for statutory attorney fees as a sanction
against Nowzari for pursuing claims in his writ petition that
lacked legal or factual foundation or were unreasonable.4 On
October 4, 2022, the trial court awarded the Hospital and the
Medical Staff two-thirds of their requested fees—or, $47,513.67.
Nowzari timely appealed that postjudgment order, and this
court consolidated the two appeals.
DISCUSSION
In this consolidated appeal, Nowzari attacks both the
Appeal Board’s final peer review decision and the trial court’s
award of attorney fees.
I. Peer Review Decision
Nowzari argues that the peer review determination must
be set aside because (1) the arbitrator was required to disclose
certain conflicts of interest, (2) the arbitrator engaged in
impermissible ex parte communications, and (3) the arbitrator’s
decision is not supported by substantial evidence. Because
Nowzari’s petition for a writ of administrative mandamus is
4 They also filed a memorandum of costs, but there is no
indication in the record that Nowzari challenged any award of
costs.
10
necessarily directed at final administrative action (§ 809.8; Code
Civ. Proc., § 1094.5; Smith v. Selma Community Hospital (2008)
164 Cal.App.4th 1478, 1499 (Smith I)), we must construe
Nowzari’s attacks as assailing the ruling of the Appeal Board
(rather than of the arbitrator). We stand in the shoes of the trial
court and review any factual findings by the Appeal Board for
substantial evidence, and review any legal questions, including
those regarding the fairness of the proceedings and statutory
interpretation, de novo. (Code Civ. Proc., § 1094.5, subd. (d);
Bode v. Los Angeles Metropolitan Medical Center (2009) 174
Cal.App.4th 1224, 1236; Ellison v. Sequoia Health Services (2010)
183 Cal.App.4th 1486, 1495-1496; Sitrick Group, LLC v. Vivera
Pharmaceuticals, Inc. (2023) 89 Cal.App.5th 1059, 1065 (Sitrick).)
A. Arbitrator’s failure to disclose publicly
available information prior to the peer review hearing
Nowzari argues that the arbitrator erred in failing to
disclose two prior peer review proceedings in which the arbitrator
and opposing counsel had been involved—namely, (1) a 2002
proceeding in which the arbitrator served as counsel for a medical
staff and opposing counsel served as a hearing officer, and (2) a
2014 proceeding in which the arbitrator served as a hearing
officer and opposing counsel served as counsel for a medical
staff.5 Both proceedings were publicly discoverable. Nowzari
argues that this nondisclosure (1) entitles him to an order
5 At oral argument, Nowzari claimed that the arbitrator and
opposing counsel have been involved together in 15 to 20 cases.
This, too, is a complete misrepresentation of the record, which
contains opposing counsel’s statement that he “bumped into” and
had “been in cases together 15 or 20 times” with the Appeal
Board’s legal advisor—not the arbitrator.
11
vacating the Appeal Board’s ruling pursuant to the California
Arbitration Act (the CAA) (Code Civ. Proc., § 1280 et seq.), and
(2) otherwise constitutes evidence of bias against him under
general due process principles.
We reject each of Nowzari’s arguments.
First, Nowzari cannot rely upon the CAA provisions that
mandate vacating an arbitral award on the basis of an
arbitrator’s failure to make disclosures mandated by the CAA.
(See Code Civ. Proc., §§ 1281.9, subds. (a)(3), (a)(4), (a)(6), (d)
[disclosure requirements], 1281.91, subd. (a) [mandatory
disqualification of arbitrator for failure to disclose], 1286.2, subd.
(a)(6)(A) [mandatory vacation of arbitration award for failure to
disclose]; see also Haworth v. Superior Court (2010) 50 Cal.4th
372, 381 (Haworth); Sitrick, supra, 89 Cal.App.5th at p. 1065.)
That is because the CAA, by its terms, only applies to
“contractual arbitration.” (Code Civ. Proc., § 1281; Mercury Ins.
Group v. Superior Court (1998) 19 Cal.4th 332, 342, italics added;
Rockefeller Technology Investments (Asia) VII v. Changzhou
SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 146.) The
use of an arbitrator in this case was not the result of any contract
between Nowzari and anyone else; indeed, because the Bylaws
only provided for a hearing before the judicial review committee
for the types of charges against Nowzari,6 the use of an arbitrator
in this case was solely a function of Nowzari’s entitlement to do so
6 For less severe restrictions against a physician not
applicable here, the Bylaws require arbitration and the Medical
Executive Committee unilaterally designates the arbitrator.
12
under section 809.2.7 Although the CAA applies when a statute
mandates that the parties agree to contractual arbitration (see
Mercury, at pp. 341-342, 347; Pilimai v. Farmers Ins. Exchange
Co. (2006) 39 Cal.4th 133, 141, 144), the CAA does not apply
where, as here, the statute does not require contractual
arbitration. This is why our Supreme Court in Natarajan v.
Dignity Health (2021) 11 Cal.5th 1095 (Natarajan) recently held
that the CAA’s disclosure requirements do not apply to hearing
officers used in lieu of arbitrators under the very same peer
review statutes at issue in this case. (Id. at pp. 1104-1106.)
Second, Nowzari has failed to meet the residual due process
standard for disqualification. Due process guarantees an
“impartial decision maker,” which is violated where there is
“‘actual bias’” or where there is a “‘situation [in] which human
experience teaches that the probability of actual bias is too high
to be constitutionally tolerable.’” (Natarajan, supra, 11 Cal.5th
at pp. 1106-1107.) The “mere suggestion” of actual bias “is not
sufficient” for disqualification. (Hongsathavij v. Queen of
Angels/Hollywood Presbyterian Medical Center (1998) 62
Cal.App.4th 1123, 1142.) Nowzari’s showing falls short of this
standard. All he has established is that the arbitrator and
opposing counsel had two prior professional interactions roughly
17 years and five years prior to the current proceeding; given that
“‘arbitrators are selected for their familiarity with the type of . . .
dispute involved’” and thus are not “‘expected to be entirely
7 Nowzari is accordingly incorrect when, as he did at oral
argument, he characterized the parties’ selection of an arbitrator
as constituting contractual arbitration because the parties “opted
out” of the Bylaws. Arbitration outside of a contract’s terms is
not arbitration pursuant to that contract.
13
without business contacts in [a] particular field’” (Guseinov v.
Burns (2006) 145 Cal.App.4th 944, 959, overruled on other
grounds in Haworth, supra, 50 Cal.4th at p. 382, fn. 6; Merit Ins.
Co. v. Leatherby Ins. Co. (7th Cir. 1983) 714 F.2d 673, 679
[acknowledging “tradeoff between impartiality and expertise”]),
this showing is neither proof of actual bias nor a situation in
which the probability of actual bias is exceedingly high. Nowzari
seeks to buttress his inadequate showing by boldly asserting in
his appellate briefs that these two interactions are “only the tip of
the iceberg,” that the arbitrator and opposing counsel have a
“long hand-in-glove working relationship,” have a “long, ongoing
and incestuous history,” and are “‘budd[ies] in crime’”—and that
the arbitrator otherwise engaged in “shenanigans” evincing a
“predispos[ition] to rule for” the Medical Executive Committee—
but these assertions are nothing more than hyperbolic
speculation lacking any evidentiary foundation whatsoever.
Nowzari resists our conclusion with two further arguments.
First, he argues that Natarajan is not identical to this case
because it held that the CAA did not apply to a hearing officer
under the peer review statutes; thus, Nowzari continues, it did
not speak to whether the CAA applies to an arbitrator under
those statutes. This is true, but irrelevant. In either instance,
the applicability of the CAA turns on the same question: Is the
arbitration pursuant to a contract? Where, as in Natarajan and
as in this case, the answer is no, the CAA does not apply.
Second, Nowzari argues that he “would never have agreed”
to the arbitrator had the arbitrator disclosed his prior two
interactions with opposing counsel. Not only is this argument
irrelevant to the applicability of the CAA or the constitutional
test for bias, it is also belied by Nowzari’s contemporaneous
14
consent to the use of the arbitrator despite being aware of the
arbitrator’s prior work “principally on the side of representing
medical staff.”
B. Alleged ex parte communications
Nowzari argues that the Appeal Board erred in rejecting
his claim that the arbitrator had impermissible ex parte
communications with opposing counsel. The sole evidence
Nowzari offered of these impermissible communications was the
declaration of his counsel, in which counsel stated that the
arbitrator and opposing counsel had a “separate Zoom
conference” during the hearing. Counsel’s statement was based
on counsel’s observation of the arbitrator looking at something
off-screen and moving his lips at the same time opposing counsel
was doing the same, along with his perception that the two
seemed to be moving their lips in an alternating fashion rather
than at the same time. Given that there are roughly eight billion
people on earth, counsel’s supposition that the arbitrator and
opposing counsel were talking to each other in the middle of the
hearing—when such communications would be a staggering
ethical breach for each of them—is little more than
“‘“imagination, speculation, supposition, surmise, conjecture, or
guesswork”’”; whatever label we give it, it is not evidence because
the inference that jumps from their mouths moving to them
engaging in impermissible ex parte communications is not a
reasonable one. (People v. Davis (2013) 57 Cal.4th 353, 360;
People v. Hughes (2002) 27 Cal.4th 287, 365 [“‘[a]n inference is
not reasonable if it is based only on speculation’”].) And even if it
were, it was flatly contradicted by the statements of the
arbitrator and opposing counsel, both of whom vehemently
denied talking to one another. The Appeal Board credited their
15
testimony over Nowzari’s counsel’s, and we are not at liberty to
reweigh that credibility finding. (In re Caden C. (2021) 11
Cal.5th 614, 640 (Caden C.).) Nowzari’s final argument is that
the only reason the Appeal Board and the trial court rejected his
counsel’s declaration is because they, too, are part of a massive,
clandestine conspiracy against him; this, too, is nothing but
speculation.8
C. Substantial evidence
Nowzari finally urges that substantial evidence does not
support the arbitrator’s findings that the Medical Executive
Committee’s restrictions on his privileges were reasonable and
warranted. We reject this argument for two reasons. First,
Nowzari aims his challenge at the wrong entity; our task, as
noted above, is to review the ruling of the Appeal Board, not the
arbitrator. Second, and more to the point, his challenge lacks
merit. The Appeal Board upheld the Medical Executive
Committee’s summary suspension and restriction decisions after
necessarily concluding that the opinions of the urology
subcommittee, the Medical Executive Committee, an independent
reviewer, and PACE—all of whom expressed concerns with
Nowzari’s medical judgment—had greater credibility and thus
were entitled to greater weight than the opinion of Nowzari’s
expert, who opined that Nowzari was an exemplary physician
who did nothing wrong. Indeed, Nowzari acknowledges in his
appellate briefs that the decision restricting his privileges “may
have basis in some of the evidence.” This is fatal to his claim.
Rather than demonstrate that every single one of the multiple
8 Nowzari also likens the trial court to a Holocaust denier.
This type of gross and baseless hyperbole is unfounded,
disrespectful, offensive, and unethical.
16
opinions supporting the Appeal Board’s decision is factually or
methodologically invalid (and hence entitled to no weight),
Nowzari merely urges us to credit his expert over the competing
experts. At bottom, he is asking us to reweigh the Appeal Board’s
credibility call and hence reweigh the evidence. This is beyond
our purview when reviewing the ruling for substantial evidence.
(Caden C., supra, 11 Cal.5th at p. 640 [we do not “‘reweigh the
evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts’”].)
II. Attorney Fees Award
Nowzari argues that the trial court erred in awarding the
Hospital and the Medical Staff $47,513.67 in attorney fees.
The Business and Professions Code statutes governing
medical peer review empower a trial court, when litigating a writ
petition challenging a peer review decision, to award costs,
including “reasonable” attorney fees, to the party who
“substantially prevail[s]” on any claim that is “frivolous,
unreasonable, without foundation, or in bad faith.” (§ 809.9.)
This is a sanctions provision. (Mir v. Charter Suburban Hospital
(1994) 27 Cal.App.4th 1471, 1485.) As pertinent here, a claim is
“without foundation” where it is factually or legally “baseless,
groundless, or without support” (Smith v. Selma Community
Hospital (2010) 188 Cal.App.4th 1, 30-31 (Smith II)), and a claim
is “unreasonable” where no reasonable attorney would find it
tenable9 (Smith II, at p. 32). Whether a physician brought or
litigated a claim that was without foundation or was
9 There is some debate over whether the more forgiving
negligence standard applies. (Smith II, supra, 188 Cal.App.4th
at p. 32.) However, we will sidestep that debate by applying the
more stringent standard.
17
unreasonable is determined objectively, and therefore constitutes
a question of law we review independently on appeal. (Id. at pp.
28, 31.)
We independently conclude that the trial court properly
determined that two of Nowzari’s claims in his petition—namely,
his claims that (1) the arbitrator engaged in impermissible ex
parte communications, and (2) substantial evidence did not
support the arbitrator’s findings—were “without foundation” or
“unreasonable.” The Appeal Board had already explicitly found
that Nowzari’s claim regarding ex parte communications lacked
any evidentiary basis; “without direct or circumstantial evidence
to support it,” the claim was “without foundation” (Smith II,
supra, 188 Cal.App.4th at p. 31). Nowzari’s substantial evidence
challenge was also “unreasonable” because, as noted above, it
assailed the wrong administrative body’s determination and did
no more than implore the trial court to impermissibly reweigh
the evidence in his favor. Because the trial court concluded that
two of Nowzari’s three challenges satisfied the standard for the
award of sanctions, the court permissibly awarded the Hospital
and the Medical Staff two-thirds of the fees it requested—
namely, $47,513.67 instead of $71,270.50.
Nowzari responds with four arguments.
First, he argues that the Hospital and the Medical Staff
waived their right to request attorney fees because they did not
pray for them in their answer to his writ petition. Nowzari has
the law wrong. Except in cases of default (which is not
implicated here), attorney fees need not be pleaded. (Carlsbad
Police Officers Assn. v. City of Carlsbad (2020) 49 Cal.App.5th
135, 142, fn. 3; see also Washburn v. City of Berkeley (1987) 195
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Cal.App.3d 578, 583-584 [failure to request fees in writ of
mandate petition did not constitute waiver of right to such fees].)
Second, he argues that the trial court was divested of
jurisdiction to award attorney fees once Nowzari filed his notice
of appeal from the judgment denying his writ petition. This
argument is frivolous. The filing of a notice of appeal does not
divest a trial court of jurisdiction over “collateral matter[s],” and
attorney fees are the quintessential “collateral matter.” (Code
Civ. Proc., § 916; Serrano v. Unruh (1982) 32 Cal.3d 621, 636-637;
Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded
by statute on other grounds as stated in Lee v. Wells Fargo Bank
(2001) 88 Cal.App.4th 1187, 1197; Robertson v. Rodriguez (1995)
36 Cal.App.4th 347, 360.)
Third, he argues that the trial court never found his claims
to be frivolous or in bad faith. Such findings are not required.
The statute lists the four bases for fees in the alternative. (§
809.9; Smith II, supra, 188 Cal.App.4th at pp. 29-30.)
Fourth and lastly, Nowzari argued—for the first time at
oral argument—that a trial court’s award of sanctions under
section 809.9 must be an all-or-nothing decision, and that the
trial court erred in awarding a reduced amount of the requested
sanctions to reflect its finding that only two out of Nowzari’s
three claims “lacked foundation” or were “unreasonable.” This
argument is meritless, for it ignores the basic principle that trial
courts possess the discretion, when awarding fees as a sanction,
to reduce those fees “in order to reach a reasonable award.” (§
809.9 [“reasonable attorney’s fee[s]”]; see, e.g., Cornerstone Realty
Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56
Cal.App.5th 771, 791 [“the principles of reasonableness and
causation” impose a duty on the trial court to, in its discretion,
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“reduce the amount of fees and costs requested” to “fix a
reasonable amount” “incurred as a result of discovery abuse”].)
DISPOSITION
The judgment and postjudgment order are affirmed. The
Hospital and the Medical Staff are entitled to their costs on
appeal.10
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
10 The Hospital and the Medical Staff have requested that we
direct the trial court to further award them attorney fees
incurred on appeal. We defer to the trial court to determine that
issue in the first instance.
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