Slone v. El Centro Regional Medical Center CA4/1 ( 2024 )

Filed 10/28/24 Slone v. El Centro Regional Medical Center CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHNATHAN SLONE, M.D., D082341
Plaintiff and Appellant,
v. (Super. Ct. No. ECU000797)
EL CENTRO REGIONAL MEDICAL
CENTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Affirmed.
Law Offices of David A. Kaufman and David A. Kaufman for Plaintiff
and Appellant.
Buchalter, Carol A. Salmacia and David M. Balfour for Defendant and
Respondent.
Plaintiff Johnathan Slone, M.D., appeals a judgment after a court trial
finding in favor of defendant El Centro Regional Medical Center (Center) in
his action against it for unlawful retaliation in violation of Health and Safety
Code1 section 1278.5. Slone contends that: (1) the doctrine of implied
findings does not apply to support the judgment; and (2) substantial evidence
does not support the judgment and the trial court’s underlying findings. As
explained below, we conclude that Slone has not carried his burden on appeal
on either contention and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Slone began working as a general surgeon at Center, a
hospital located in El Centro, on a locum tenens basis.2 Although Slone was
not a board-certified surgeon, Center allowed him to work there as a
surgeon.3 In January 2015, Center granted Slone full staff privileges to work
as a general surgeon “in accordance with the medical staff bylaws, rules and
regulations.”
In April 2016, Slone became an employee of the Imperial Valley Multi-
Specialty Medical Group (IVMSMG), which Dr. Theodore Affue, Center’s
former chief of surgery, had formed, receiving a salary of $260,000 per year
for 40 hours of work per week. In May, Slone entered into a contract on
behalf of IVMSMG with Community Care IPA (IPA) to provide healthcare
administrative services as its medical director. His IPA compensation was
paid directly to IVMSMG. Slone had a residence in San Diego and provided
administrative services to IPA from there on Fridays and Mondays. He also
1 All statutory references are to the Health and Safety Code unless
otherwise specified.
2 “Locum tenens” is a term describing the status of physicians who work
at hospitals for a temporary period of time.
3 When Slone applied for hospital privileges, he informed Center that he
was eligible to take his board examination until August 2014. Thereafter,
Slone took the board examination and did not pass.
2
had a residence in El Centro and from there he provided surgical and clinical
services to IVMSMG and administrative services to IPA on Tuesdays,
Wednesdays, and Thursdays.
In September 2016, Slone applied to renew his privileges to work at
Center and it renewed his privileges in December.4
In April 2017, Slone entered into another contract to provide healthcare
administrative services to IPA as its medical director, but did so on behalf of
his own corporation, University Surgical Group, Inc. (USGI), rather than on
behalf of IVMSMG. By the summer of 2017, IVMSMG (Affue’s group) had
not paid Slone his last 12 paychecks.
On July 17, Center mailed a letter to Slone, notifying him of the
department of surgery’s rule 3.2, which requires members to become board-
certified within five years or, alternatively, to have had privileges at an
accredited hospital for at least 10 years. The letter granted Slone until July
2020 to become board-certified.
On July 19, Slone told IPA to send its checks directly to him
(presumably to USGI), rather than to IVMSMG. On the morning of July 20,
Slone cancelled his surgeries that had been rescheduled to that afternoon
because he would instead be tying up a full-time position as IPA’s medical
director then. That afternoon, Slone sent Affue his letter of resignation from
IVMSMG, citing “many reasons, primarily financial and recent proceedings
taking place at [Center] that will inevitably cause me to lose my privileges
[i.e., its requirement for his future board certification].” In late July or early
4 In its December 2016 letter, Center stated that Slone’s renewed
privileges were subject to “other requirements established in the medical
staff bylaws and general rules and regulations, applicable department rules
and regulations, and results from ongoing performance evaluations.”
3
August, Slone began working for IPA as its full-time medical director.
Thereafter, he did not perform any surgeries.
On about September 7, Center sent Slone a letter suspending his
privileges for his failure to sign off on certain patients’ medical records and
apparently stating that he had 90 days to sign the records or his suspension
would become a voluntary resignation of his privileges. On December 18,
Center sent Slone a letter stating that his suspension would continue and his
failure to complete medical records within 90 days after his suspension would
be deemed to be a voluntary resignation of his staff privileges. Slone did not
sign off on the medical records in question. In March 2018, Center sent Slone
a letter stating that his suspension had become a voluntary resignation of his
privileges.
In February 2021, Slone filed his operative fourth amended complaint
against Center, alleging four causes of action. His first cause of action
alleged that Center violated section 1278.5 by retaliating against him after
he reported his concerns about patient care. The action ultimately proceeded
to a bench trial solely on his section 1278.5 cause of action. Following a four-
day trial, the court issued its tentative ruling in favor of Center. Slone
requested a statement of decision, Center’s counsel prepared a proposed
statement of decision (PSOD) per the court’s direction, and Slone objected to
portions of the PSOD. On April 12, 2023, the trial court issued its final
statement of decision (FSOD) making findings on ultimate facts and material
issues and finding in favor of Center on Slone’s section 1278.5 cause of action.
On April 25, the court entered a judgment for Center. Slone filed a notice of
appeal challenging the judgment.
4
DISCUSSION
I
Section 1278.5 Generally
In 1999, the Legislature enacted section 1278.5, which provides
remedies for those health care workers (i.e., “whistleblowers”) who suffer
retaliation for reporting suspected unsafe patient care and conditions at a
health care facility. (§ 1278.5, subds. (a), (b), (g); Fahlen v. Sutter Central
Valley Hospitals (2014) 58 Cal.4th 655, 667; Alborzi v. University of Southern
California (2020) 55 Cal.App.5th 155, 162, 178-179 (Alborzi).) Section
1278.5, subdivision (b)(1) provides: “A health care facility shall not
discriminate or retaliate, in any manner against a patient, employee, member
of the medical staff, or other health care worker of the health facility because
that person has done either of the following: [¶] (A) [p]resented a grievance,
complaint, or report to the facility, to an entity or agency responsible for
accrediting or evaluating the facility, or the medical staff of the facility, or to
any other governmental entity. . . .”
Section 1278.5, subdivision (d) provides: “(1) There shall be a
rebuttable presumption that discriminatory action was taken by the health
facility . . . in retaliation against an employee, member of the medical staff, or
any other health care worker of the facility, if responsible staff at the
facility . . . had knowledge of the actions, participation, or cooperation of the
person responsible for any acts described in paragraph (1) of subdivision (b),
and the discriminatory action occurs within 120 days of the filing of the
grievance or complaint by the employee, member of the medical staff or any
other health care worker of the facility. [¶] (2) For purposes of this section,
discriminatory treatment of an employee, member of the medical staff, or any
other health care worker includes, but is not limited to, discharge, demotion,
5
suspension, or any unfavorable changes in, or breach of, the terms or
conditions of a contract, employment, or privileges of the employee, member
of the medical staff, or any other health care worker of the health care
facility, or the threat of any of these actions.”
Section 1278.5, subdivision (g) provides in relevant part: “A member of
the medical staff who has been discriminated against pursuant to this section
shall be entitled to reinstatement, reimbursement for lost income resulting
from any change in the terms or conditions of the member’s privileges caused
by the acts of the facility . . . , and the legal costs associated with pursuing
the case, or to any remedy deemed warranted by the court pursuant to this
chapter or any other applicable provision of statutory or common law.”
“[T]o establish a prima facie case under section 1278.5, a plaintiff must
show that he or she (1) presented a grievance, complaint, or report to the
hospital or medical staff (2) regarding the quality of patient care and (3) the
hospital retaliated against him or her for doing so. (§ 1278.5, subd. (b)(1).)”
(Alborzi, supra, 55 Cal.App.5th at p. 179.) Alternatively stated, to make a
prima facie case of retaliation, a plaintiff “must show (1) she [or he] engaged
in a protected activity, (2) her [or his] employer [or other defendant] subjected
her [or him] to an adverse employment action, and (3) a causal link between
the two.” (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) In
enacting section 1278.5, “the Legislature intended section 1278.5 to
encompass a broad array of discriminatory actions.” (Alborzi, at p. 180.)
Nevertheless, to show an action was retaliatory, or an adverse employment
action, a plaintiff must show that action was material and had a detrimental
and substantial effect on the plaintiff’s employment or privileges. (St. Myers,
at p. 318; cf. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054
[regarding FEHA retaliation cause of action, minor or relatively trivial
6
actions cannot constitute adverse employment actions]; Akers v. County of
San Diego (2002) 95 Cal.App.4th 1441, 1455 [same regarding FEHA
retaliation cause of action].) For example, “[a]n isolated incident, such as a
delay in the delivery of a single paycheck, a failure to receive an overtime
check or an early job change, does not constitute an adverse employment
action.” (Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1381 [regarding FEHA cause of action].) “[I]n the end,
the determination of whether there was an adverse employment action is
made on a case-by-case basis, in light of the objective evidence.” (Ibid.)
II
Doctrine of Implied Findings
Slone contends that the doctrine of implied findings does not apply to
support the judgment because he filed objections to the PSOD on the grounds
that it did not address certain principal or material controverted issues
and/or was ambiguous in its findings on those issues.
A
As discussed above, after the trial court announced its tentative
decision, Slone requested a statement of decision on certain issues that he
asserted were principal controverted issues. In particular, he requested a
finding on whether Center took any adverse action against him because of his
lodging of complaints, reports, or grievances to Center regarding the quality
of patient care. Per the court’s direction, Center’s counsel prepared a PSOD,
proposing certain findings by the court on principal or material controverted
issues. In particular, the PSOD proposed that the court make a finding that,
assuming Slone had presented a grievance, complaint, or report to Center
within the meaning of section 1278.5, Center did not discriminate or retaliate
against Slone in any manner. In support of that finding, the PSOD proposed
7
underlying factual findings by the court on Slone’s specific allegations of
discrimination or retaliation and included a discussion of the evidence
supporting its rejection of those specific allegations. The PSOD also proposed
findings by the court that, assuming Center was liable to Slone for retaliation
under section 1278.5, Slone did not suffer any economic or noneconomic
damages because of that assumed retaliation.
Slone filed objections to the PSOD, asserting that it failed to make
findings on or resolve principal controverted issues, failed to explain the
factual and legal basis for its findings, and/or was ambiguous in its findings.
In particular, Slone asserted that the PSOD omitted findings on his specific
allegations of retaliation by Center, but, in so doing, he primarily cited
evidence and/or inferences favorable to him that would support findings
contrary to the PSOD’s proposed findings on those allegations. Likewise,
Slone’s objections to the other proposed findings in the PSOD cited evidence
that would support contrary findings and did not specify any omissions in the
PSOD’s findings on principal controverted issues.
In its FSOD, the trial court stated that it had considered all of Slone’s
objections to the PSOD. The FSOD then set forth the court’s findings on the
ultimate facts and material issues in the case. First, the court found that
Slone had presented a grievance, complaint, or report to Center within the
meaning of section 1278.5 (e.g., how patients were handled in the ICU, the
lack of equipment and instruments for surgery, having to work too many
days in a row, etc.). Second, the court found that Center did not discriminate
or retaliate against Slone in any manner because of his grievances,
complaints, or reports to it. In particular, the court found that Center’s
July 17, 2017 letter advising him that he had until July 2020 to become
board-certified, its September 7, 2017 letter suspending Slone’s privileges, its
8
March 2018 letter stating that he had voluntarily resigned his privileges, its
peer reviews of him, and its reductions of his surgery block times were not in
retaliation for his grievances, complaints, or reports to Center.
In the FSOD’s sixth finding, the court found that, assuming Center had
unlawfully retaliated against Slone, he had not suffered any economic
damages. In so finding, the court stated:
“Testimony of [Slone] about [the April 3, 2017 contract with
IPA] and the next few months, including leaving [his]
surgery practice with [Center] was less than credible.
[Slone] abandoned several patients on the day they were
scheduled for surgery (July 20, 2017) without explanation.
He did not return at all to the hospital. . . . [Slone]
intended to leave surgical practice and give up his
privileges with [Center] to pursue a career as a medical
administrator. The timing of the 2017 contract, which was
prior to most of the alleged adverse actions, leads this
Court to the conclusion that [Slone] already intended to
make the career change; and the abandonment of patients
literally waiting to be admitted for surgery and no evidence
of any future patients substantiates this finding and
conclusion.”
The court further found: “[Slone] confirmed an agreement the day before [his
July 20, 2017 resignation from IVMSMG] on July 19, 2017, to go to work for
an IPA. This agreement precluded doing any surgeries. [Slone’s] intent was
to change employment to the IPA instead of continuing to develop his
practice as a surgeon.” The court also found that the opinions of Slone’s
expert on his economic damages were “speculative.”
Finally, in the FSOD’s seventh finding, the court found that, assuming
Center had unlawfully retaliated against Slone, he had not suffered any
noneconomic damages. In particular, the court found: “There was no
compelling evidence [Slone] suffered any emotional distress as a result of his
claim [Center] retaliated against him. [¶] [Slone] testified he loves his work
9
at the IPA and it is financially beneficial.” Following issuance of its FSOD,
the trial court entered judgment in favor of Center and against Slone.
B
Under Code of Civil Procedure section 632, on a request by a party
after a court trial, the court “shall issue a statement of decision explaining
the factual and legal basis for its decision as to each of the principal
controverted issues at trial.” After a statement of decision is requested, any
party may make proposals as to the content of the statement of decision.
(Ibid.) Code of Civil Procedure section 634 provides:
“When a statement of decision does not resolve a
controverted issue, or if the statement is ambiguous and
the record shows that the omission or ambiguity was
brought to the attention of the trial court either prior to
entry of judgment or in conjunction with a motion under
Section 657 or 663, it shall not be inferred on appeal or
upon a motion under Section 657 or 663 that the trial court
decided in favor of the prevailing party as to those facts or
on that issue.”
“The clear implication of [Code of Civil Procedure section 634], of
course, is that if a party does not bring such deficiencies to the trial court’s
attention, that party waives the right to claim on appeal that the statement
was deficient in these regards, and hence the appellate court will imply
findings to support the judgment.” (In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133-1134.)
“Ordinarily, when the court’s statement of decision is ambiguous or
omits material factual findings, a reviewing court is required to infer any
factual findings necessary to support the judgment. [Citations.] This rule ‘is
a natural and logical corollary to three fundamental principles of appellate
review: (1) a judgment is presumed correct; (2) all intendments and
presumptions are indulged in favor of correctness; and (3) the appellant bears
10
the burden of providing an adequate record affirmatively proving error.’
[Citation.] [¶] In order to avoid the application of this doctrine of implied
findings, an appellant must take two steps. First, the appellant must request
a statement of decision . . . ; second, if the trial court issues a statement of
decision, ‘a party claiming omissions or ambiguities in the factual findings
must bring the omissions or ambiguities to the trial court’s attention’ . . . .
[Citation.]” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494.)
However, a party cannot avoid the application of the doctrine of implied
findings by asserting “objections” which merely disagree with the trial court’s
findings in its statement of decision. (Duarte Nursery, Inc. v. California
Grape Rootstock Improvement Com. (2015) 239 Cal.App.4th 1000, 1012-1013
(Duarte Nursery, Inc.).)
A trial court’s statement of decision “is sufficient if it fairly discloses
the court’s determination as to the ultimate facts and material issues in the
case.” (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th
1372, 1380.) “[A] trial court is not required to make an express finding of fact
on every factual matter controverted at trial, where the statement of decision
sufficiently disposes of all the basic issues in the case.” (Bauer v. Bauer
(1996) 46 Cal.App.4th 1106, 1118; see also, Pannu v. Land Rover North
America, Inc. (2011) 191 Cal.App.4th 1298, 1314, fn. 12 [“ ‘[T]he trial court is
not required to respond point by point to issues posed in a request for a
statement of decision.’ ”].) In this context, “the term ‘ultimate fact’ generally
refers to a core fact, such as an essential element of a claim.” (Central Vally
General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) Accordingly, “[a]
trial court is not required to make findings with regard to detailed
evidentiary facts or to make minute findings as to individual items of
11
evidence.” (Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988)
200 Cal.App.3d 1518, 1525.)
C
In his appellant’s opening brief, Slone argues that the doctrine of
implied findings does not apply to support the judgment because he
sufficiently objected to the PSOD’s proposed findings as omitting
determinations on principal controverted issues and/or making ambiguous
determinations on issues. However, Slone’s argument is conclusory and fails
to cite any specific omissions from, or ambiguities in, the FSOD’s findings.
For example, Slone argues in his appellant’s opening brief that he “identified
omissions or ambiguities in the controverted material factual issues in the
[PSOD], bringing these to the attention of the Court, but to which adequate
responses were never made, as the Court merely adopted the [PSOD] as the
[FSOD] [citation].” However, in so arguing, he does not cite to any portion of
the record on appeal showing that he made any objections to omissions of, or
ambiguities in, findings of any specific principal controverted issue.
“In order to demonstrate error, an appellant must supply the reviewing
court with some cogent argument supported by legal analysis and citation to
the record. Rather than scour the record unguided, we may decide that the
appellant has waived a point urged on appeal when it is not supported by
accurate citations to the record. [Citations.] Similarly, we may disregard
conclusory arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the conclusions
he wants us to adopt. [Citation.]” (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 286-287 (City of Santa Maria); see also, Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Furthermore, an
appellant waives or forfeits contentions that are not supported by citations to
12
relevant portions of the record. (Ojavan Investors, Inc. v. California Coastal
Com. (1997) 54 Cal.App.4th 373, 391.) Because Slone’s argument is
conclusory and he fails to cite to specific portions of the record showing that
there were any specific omissions from, or ambiguities in, the FSOD’s
findings, we conclude Slone has waived or forfeited any contention that the
FSOD was deficient and therefore precludes the application of the doctrine of
implied findings. (Ibid.)
In any event, we further conclude that by not citing to specific portions
of the record and/or citing specific objections that he asserted were omissions
from, or ambiguities in, the PSOD and/or FSOD on specific principal
controverted issues, Slone has not carried his burden on appeal to show the
purported error. On appeal, a judgment is presumed to be correct. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) To demonstrate error, the
appellant must present a cogent argument supported by legal analysis and
relevant citations to the record. (City of Santa Maria, supra, 211 Cal.App.4th
at pp. 286-287.) Slone has not carried his burden to show the trial court’s
FSOD omitted any findings, or made ambiguous findings, on any specific
principal controverted issue, which would preclude the application of the
doctrine of implied findings on that specific issue. Rather, based on our
review of the record, it appears that Slone’s “objections” to the PSOD simply
cited evidence that would have supported contrary findings and, in so doing,
improperly disagreed with its proposed findings. (Duarte Nursery, Inc.,
supra, 239 Cal.App.4th at pp. 1012-1013.) Accordingly, we reject his
contention that the doctrine of implied findings does not apply to support the
judgment.
13
III
Substantial Evidence to Support Judgment
Slone contends that substantial evidence does not support the
judgment and the court’s underlying findings. However, in so arguing, he
primarily, if not exclusively, cites evidence and inferences favorable to him.
A
When an appellant contends there is insufficient evidence to support a
finding of fact, we apply the substantial evidence standard of review.
(Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581.) Under that
standard of review, “the power of an appellate court begins and ends with the
determination as to whether there is any substantial evidence, contradicted
or uncontradicted, which will support the finding of fact.” (Grainger v.
Antoyan (1957) 48 Cal.2d 805, 807 (Grainger), italics omitted.) In so doing,
we accept all evidence that supports the judgment, disregard contrary
evidence, and draw all reasonable inferences to uphold the judgment.
(Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 213
(Harley-Davidson, Inc.).) “It is not our role to reweigh the evidence,
redetermine the credibility of the witnesses, or resolve conflicts in the
testimony, and we will not disturb the judgment if there is evidence to
support it.” (Ibid.)
In every appeal, the appellant has the duty to fairly summarize all of
the facts in the light most favorable to the judgment. (Myers v. Trendwest
Resorts, Inc. (2009) 178 Cal.App.4th 735, 739; Boeken v. Philip Morris, Inc.
(2005) 127 Cal.App.4th 1640, 1658.) “Further, the burden to provide a fair
summary of the evidence ‘grows with the complexity of the record.
[Citation.]’ ” (Boeken, at p. 1658, citing Western Aggregates, Inc. v. County of
Yuba (2002) 101 Cal.App.4th 278, 290.) To meet its burden on appeal to
14
show a finding of fact is not supported by substantial evidence, appellants
cannot recite only evidence in their favor, but must “ ‘set forth in their brief
all the material evidence on the point and not merely their own evidence.
Unless this is done the error is deemed to be waived.’ [Citations.]” (Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark Corp.).)
When an appellant’s opening brief states only the favorable facts,
ignoring evidence favorable to respondent, the appellate court may treat the
substantial evidence issues as waived and presume the record contains
evidence to sustain every finding of fact. (Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1072 (Delta Stewardship); see also Doe v. Roman
Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218
[appellant waived substantial evidence challenge because “his opening brief
sets forth only his version of the evidence, omitting any reference to the
conflicting evidence submitted by [the respondent]”].) “As with all
substantial evidence challenges, an appellant challenging [a finding of fact]
must lay out the evidence favorable to the other side and show why it is
lacking. Failure to do so is fatal. A reviewing court will not independently
review the record to make up for appellant’s failure to carry his burden.”
(Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1266 (Defend
the Bay).)
B
Analysis. Our review of the statement of facts in the appellant’s
opening brief filed by Slone shows that he consistently cited facts and
evidence in his favor and omitted material evidence favorable to Center that
supported the judgment. Importantly, Slone’s statement of facts includes an
extensive, “one-sided” discussion of evidence supporting his theory that
Center took adverse actions in retaliation against him for reporting health
15
care safety issues, which discussion, on its face, is an argument more
appropriately addressed to a trier of fact than to an appellate court. In
particular, he cited evidence that supported his theory that Gwon cancelled
or restricted his operating room block time in retaliation for his complaints,
asserting she arbitrarily restricted and obstructed his block time. His
statement of facts rejected Gwon’s trial testimony that she was not involved
in the actual allocation or reallocation of operating room block time, asserting
her testimony that she only made recommendations based on utilization was
“misleading and inaccurate.” He also asserted that Gwon restricted his use
of the surgical robot to only twice a month “with no plausible reason given.”
His statement of facts also presented a skewed version of the evidence
regarding the cancellation of the surgeries he had scheduled for “July 18”
[sic] (presumably July 20), 2017. He states that his surgeries had been
scheduled for that morning, but were changed to the afternoon in retaliation
against him. He asserts he did not abandon his patients, but he simply could
not perform their surgeries in the afternoon because of his IPA obligations.
He then characterized as “unbelievable” the testimony of Christian
Tomaszewski, Center’s chief medical officer, that he had tried to “chase
down” Slone after the rescheduling but Slone’s office was “shuttered.”
While stating “facts” almost exclusively in his favor, Slone’s statement
of facts in his appellant’s opening brief also omitted material evidence
favorable to Center that supported the judgment in its favor. For purposes of
brevity, we need not cite all the material evidence so omitted. Rather, based
on our review of the record on appeal, we set forth below selected examples
that reflect material evidence that Slone should have, but did not, include in
his statement of facts. Importantly, Slone omitted most of the extensive
evidence, including his own trial testimony, regarding his contractual
16
relationships with IVMSMG and IPA and his decision to leave his surgical
practice to become IPA’s full-time medical director. Also, regarding Slone’s
operating room block time, Slone’s statement of facts omitted Gwon’s
testimony that she never took away any of his block time and had no
authority to do so. His statement of facts also omitted Gwon’s testimony that
she did not, and had no ability to, limit his use of the surgical robot.
Regarding his alleged noneconomic damages, Slone’s statement of facts
omitted the testimony of Angelica Camarena, who had known Slone at
Center since 2013 and was currently working with Slone, that he was always
a happy person, had never appeared depressed, and had never complained
about having anxiety.
In summary, based on our review of the record on appeal, we conclude
that Slone’s statement of facts in his appellant’s opening brief did not fairly
state the material evidence in this case. As shown by the specific examples
discussed above, his statement of facts consistently cited evidence in his favor
and omitted material evidence favorable to Center that supported the
judgment in its favor. Based on his failure to include a proper statement of
facts in his appellant’s opening brief, we conclude Slone has waived or
forfeited all of his insufficiency of the evidence contentions, including his
contentions that substantial evidence does not support the trial court’s
findings that: (1) Center had not retaliated against him in violation of
section 1278.5; (2) Center overcame the rebuttable presumption that its
suspension of his privileges were in retaliation for the complaints he made to
it within 120 days of his suspension; (3) he had not suffered any economic
damages; and (4) he had not suffered any noneconomic damages. (Foreman
& Clark Corp., supra, 3 Cal.3d at p. 881; Delta Stewardship, supra,
48 Cal.App.5th at p. 1072.)
17
Assuming arguendo Slone has not waived or forfeited his substantial
evidence contentions based on his improper statement of facts as concluded
above, we nevertheless conclude he has failed to carry his burden on appeal
to show the evidence, including all reasonable inferences therefrom, favorable
to the trial court’s findings and judgment is insubstantial. Slone simply cites
evidence, and inferences therefrom, in support of his position and, based
thereon, makes arguments more appropriately addressed to a trier of fact
than to an appellate court. Slone cannot carry his burden on appeal by
merely rearguing the “facts” as he would have them and/or reasserting his
position at trial. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507,
1531; Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 687.)
Such a “factual presentation is but an attempt to reargue on appeal those
factual issues decided adversely to [appellants] at the trial level, contrary to
established precepts of appellate review. As such, it is doomed to fail.”
(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.)
Furthermore, in his appellant’s opening brief, Slone inappropriately
argues, among other things, that the trial court’s finding of no retaliation by
Center “was [a]gainst the [s]ubstantial [e]vidence,” and that he “has shown
by way of the substantial evidence introduced at trial that [Center] engaged
in a sequence of retaliatory actions.” His argument reflects a fundamental
misunderstanding of the substantial evidence standard of review on appeal.
As discussed above, in applying the substantial evidence standard of review,
we determine whether there is any substantial evidence, contradicted or
uncontradicted, which will support the finding of fact. (Grainger, supra,
48 Cal.2d at p. 807.) We accept all evidence that supports the judgment,
disregard contrary evidence, and draw all reasonable inferences to uphold the
judgment. (Harley-Davidson, Inc., supra, 237 Cal.App.4th at p. 213.)
18
Therefore, Slone does not carry his burden on appeal by merely arguing that
there was substantial evidence that could have supported a finding in his
favor, rather than arguing that there was insufficient evidence to support the
finding in Center’s favor.5
In particular, Slone does not show there is insufficient evidence to
support the trial court’s finding that Center did not retaliate against him
because of his complaints to it regarding health care safety. Rather, as
Center argues, there is substantial evidence to support the court’s findings
that it did not retaliate against Slone and that he voluntarily resigned from
IVMSMG and left his surgical practice to become the full-time medical
director of IPA. In its FSOD, the court first found that Slone had complained
to Center about patient safety issues within the meaning of section 1278.5.
The court then addressed the question of whether Center had discriminated
or retaliated against Slone in violation of section 1278.5 because of those
complaints. In finding that Center had not discriminated or retaliated
against Slone, the court discussed the evidence on each of his specific
allegations of retaliation and rejected each one.
5 We also note that in his appellant’s reply brief, Slone’s counsel
inappropriately argues that Slone was “shocked” when the trial court “turned
a blind eye to the evidence and returned a defense verdict” that Slone “feels
was an unmistakably partisan and selective interpretation of the evidence
that left Dr. Slone with the distasteful feeling that he had been hometowned
for having the audacity to take on the local hospital in a small rural venue.”
Such an ad hominen attack on the trial judge and unsupported allegation of
bias should never be included in briefing by appellate counsel. We therefore
condemn those statements by Slone’s counsel and disregard them. (Bus. &
Prof. Code, § 6068, subd. (b) [counsel has the duty “[t]o maintain the respect
due to the courts of justice and judicial officers”]; Niles Freeman Equipment v.
Joseph (2008) 161 Cal.App.4th 765, 794-795 [ad hominem attack by counsel
is unseemly and unpersuasive]; Fink v. Shemtov (2010) 180 Cal.App.4th
1160, 1176 [personal attacks against trial judge “are inexcusable”].)
19
Regarding Center’s July 17, 2017 letter granting him until July 2020 to
become board-certified, the court found that the letter could not be construed
as an adverse action, because it could be considered merely a “single threat of
an adverse action to be taken in the future and, as such, it is not actionable.”
The court noted that Slone had three years to resolve the board certification
issue and never lost his hospital privileges as a result of the letter.
Furthermore, the letter attached a copy of an excerpt from the rules and
regulations of Center’s department of surgery, which expressly required that
its members become board-certified. Based on that evidence, we conclude
there is substantial evidence to support the court’s finding that the July 17,
2017 letter did not constitute retaliatory action by Center for Slone’s
complaints regarding patient safety.
Regarding the September 7, 2017 suspension of Slone’s privileges, the
court discussed the evidence showing that Slone had not signed off or
otherwise completed certain patient records despite Center’s repeated
requests that he do so. Erica Whannel, a Center managerial employee who
contacted physicians for completion of patients’ medical records, testified that
she had contacted Slone numerous times after July 20, 2017, regarding his
need to sign off on patient records. She further testified that Slone could
have accessed those medical records electronically and signed off on them,
but he did not do so. The court also found that Center’s suspension of Slone’s
privileges could not be retaliation for his complaints because he previously
had voluntarily separated from Center on July 20, 2017, when he left to
become IPA’s full-time medical director. Based on that evidence, we conclude
there is substantial evidence to support the court’s finding that Center’s
suspension of Slone’s privileges on September 7, 2017, did not constitute
retaliatory action by it for Slone’s complaints regarding patient safety.
20
Regarding Center’s position that Slone had voluntarily resigned his
staff privileges as of March 2018, the court discussed Center’s bylaws, which
stated that 90 days after a physician has been suspended for failure to
complete medical records, the physician is deemed to have voluntarily
resigned his or her staff privileges. Because Center’s suspension of Slone’s
privileges was not retaliatory and the evidence shows he failed to complete
medical records, we conclude there is substantial evidence to support the
court’s finding that pursuant to Center’s bylaws Slone was deemed to have
voluntarily resigned his privileges and therefore that automatic resignation
was not in retaliation for his complaints about patient safety.
Finally, the court discussed Slone’s other allegations of retaliatory
action by Center, including his allegations that it had limited his operating
room block time, limited his use of the surgical robot, and conducted a sham
peer review of one of his past surgeries. The court found that any changes to
Slone’s surgery time was done in due course by Center and not done for
retaliatory reasons. It also found that Slone had not identified anyone at
Center who had the authority to limit his use of the robot. Regarding the
peer review case, the court found Gwon’s testimony “very credible” that in
conducting the peer review she had no motive to retaliate against Slone and
that there was no evidence showing it was a sham review. The court
ultimately found that none of the actions alleged by Slone to be retaliatory
were of such a substantial and detrimental nature as to constitute adverse
actions taken by Center in retaliation against him within the meaning of
section 1278.5.
Based on our review of the record, we conclude that substantial
evidence supports the court’s finding that Center did not discriminate or
retaliate against Slone because of his complaints about health care safety in
21
violation of section 1278.5. In so concluding, we note, as discussed above,
that we must accept all evidence that supports the judgment, disregard
contrary evidence, and draw all reasonable inferences to uphold the
judgment. (Harley-Davidson, Inc., supra, 237 Cal.App.4th at p. 213.) We
cannot reweigh evidence, redetermine the credibility of the witnesses, or
resolve conflicts in the testimony. (Ibid.) To the extent that Slone requests
that we, as an appellate court, conduct an independent review of the evidence
at trial (in his words, take “a fresh look with new eyes at the substantial
evidence”) and make our own determinations on witness credibility and the
weight of the evidence, he misconstrues and/or misapplies the substantial
evidence standard of review and we decline to do so. (Defend the Bay, supra,
119 Cal.App.4th at p. 1266.) Accordingly, we reject the relief that he seeks in
his appellant’s opening brief (i.e., that the evidence “should be weighed anew
by the revieing [sic] court so as to generate findings, a decision, and judgment
that comports with the substantial evidence introduced at trial”).
Given our conclusion that substantial evidence supports the trial
court’s finding that Center did not discriminate or retaliate against Slone
because of his complaints about health care safety, Slone has failed to carry
his burden on appeal to show that substantial evidence does not support the
court’s finding on that essential element of his section 1278.5 cause of action
and thus the judgment in Center’s favor. (Alborzi, supra, 55 Cal.App.5th at
p. 179.) The trial court’s finding of absence of proof on that element
precluded a judgment in Slone’s favor. Accordingly, we need not, and do not,
address the question of whether there was also substantial evidence to
support the court’s additional findings that, assuming Center had so
22
retaliated, Slone had not shown he suffered any economic or noneconomic
damages.6
DISPOSITION
The judgment is affirmed. Respondent to recover its costs on appeal.
HUFFMAN, J.
WE CONCUR:
MCCONNELL, P. J.
KELETY, J.
6 In any event, we note, as discussed above, that the trial court found
Slone’s testimony regarding his April 3, 2017 contract with IPA and the
following few months, including leaving his surgical practice, to be “less than
credible.” The court found that Slone “abandoned” his patients on July 20,
2017, without explanation and never returned to the hospital. In so doing,
the court found that Slone “intended to leave surgical practice and give up his
privileges with [Center] to pursue a career as a medical administrator. The
timing of the 2017 contract, which was prior to most of the alleged adverse
actions, leads this Court to the conclusion that [Slone] already intended to
make the career change; and the abandonment of patients literally waiting to
be admitted for surgery and no evidence of any future patients substantiates
this finding and conclusion.” The court further found that the opinions of
Slone’s expert witness on the amount of his alleged economic losses were
“speculative.” Given those additional findings, we conclude there is more
than substantial evidence to support the court’s finding that Slone had not
carried his burden to prove the elements of his section 1278.5 claim against
Center.
23