Bonni v. St. Joseph Health System

IN THE SUPREME COURT OF
CALIFORNIA
ARAM BONNI,
Plaintiff and Appellant,
v.
ST. JOSEPH HEALTH SYSTEM et al.,
Defendants and Respondents.
S244148
Fourth Appellate District, Division Three
G052367
Orange County Superior Court
30-2014-00758655
July 29, 2021
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Jenkins concurred.
Justice Groban filed a concurring opinion.
BONNI v. ST. JOSEPH HEALTH SYSTEM
S244148
Opinion of the Court by Kruger, J.
Under California law, hospitals must use a process of
professional peer review to evaluate physicians’ qualifications
for medical staff privileges. (See Bus. & Prof. Code, §§ 805, 809–
809.9.) Because the loss of privileges can significantly limit a
physician’s ability to practice medicine, peer review proceedings
are a frequent subject of litigation in California courts. And as
the number of lawsuits challenging peer review determinations
has grown, so too has the number of motions to strike under
Code of Civil Procedure section 425.16. Familiarly known as the
anti-SLAPP statute, this provision allows defendants to seek
early dismissal of unmeritorious claims arising from protected
speech and petitioning activities. (Code Civ. Proc., § 425.16,
subd. (b).)
We have previously held that the anti-SLAPP statute’s
protections extend to speech and petitioning in connection with
hospital peer review. (See Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192.) This case requires us to
consider the scope and limits of those protections. Plaintiff, a
physician, alleges the defendant hospitals and members of its
medical staff unlawfully retaliated against him for raising
concerns about patient care. He says this retaliation began with
the suspension of his staff privileges and culminated in the
termination of those privileges after peer review. The hospitals
seek to strike the retaliation claims under the anti-SLAPP
statute. They contend that any claim arising from the peer
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Opinion of the Court by Kruger, J.
review process necessarily targets protected speech or
petitioning activity and therefore must be afforded anti-SLAPP
protection. We hold otherwise. While some of the forms of
retaliation alleged in the complaint — including statements
made during and in connection with peer review proceedings
and disciplinary reports filed with official bodies — do qualify as
protected activity, the discipline imposed through the peer
review process does not. Thus, while the hospitals may seek to
strike some of the physician’s retaliation claims, they are not
entitled to wholesale dismissal of these claims under the anti-
SLAPP law.
I.
A.
Aram Bonni, M.D., is a surgeon specializing in obstetrics
and gynecology who began practicing in 1998. He received staff
privileges at defendant Mission Hospital Regional Medical
Center (Mission) in 2002 and at an affiliated hospital, defendant
St. Joseph Hospital of Orange (St. Joseph), in 2010. Bonni
would face peer review proceedings at both hospitals, which
would ultimately lead to a settlement with St. Joseph’s wherein
Bonni agreed to resign and to a decision terminating Bonni’s
staff privileges at Mission.
The proceedings at St. Joseph’s began not long after Bonni
received staff privileges in 2010. That same year, Bonni
performed a surgery proctored and assisted by the hospital’s
chief of obstetrics and gynecology, one of the named defendants.
Like several of Bonni’s surgeries, the surgery involved use of a
robotic assistant to supply three-dimensional imaging and cut
and cauterize tissue. On this occasion, the robot’s camera
provided only two-dimensional imaging instead of three, and
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
Bonni complained to the assisting doctor about the malfunction.
The surgery resulted in patient complications. Over the next
few weeks, Bonni performed two more surgeries in which
similar problems occurred. Again the patients suffered
complications; again Bonni raised concerns about the
performance of the robotic assistant.
After the third surgery, Bonni was advised that St. Joseph
was summarily suspending his staff privileges. The subsequent
written notice from St. Joseph’s chief of staff — one of the
defendants here — asserted that in light of “serious and
avoidable injuries to patients” in the three cases, suspension
was necessary to avoid “imminent danger” to St. Joseph’s
patients. (See Bus. & Prof. Code, § 809.5, subd. (a).)
As permitted by the hospital staff bylaws, Bonni sought an
informal interview with the hospital’s medical executive
committee. After the interview, the medical executive
committee elected to continue the suspension and recommended
termination of Bonni’s privileges. Based on the length of the
suspension, St. Joseph was required to, and did, report its
disciplinary action to the Medical Board of California and the
National Practitioner Data Bank. (See Bus. & Prof. Code, § 805,
subd. (e); 42 U.S.C. § 11133(a)(1).)
Bonni challenged the suspension and termination
recommendation and requested a formal hearing before a
hospital hearing committee composed of members of the
hospital staff. After a lengthy series of evidentiary hearings, the
hearing committee determined that the medical executive
committee had sustained its burden on three of 18 charges
against Bonni but had not shown by a preponderance of the
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
evidence that either the summary suspension or the termination
recommendation was warranted.
The medical executive committee requested an
administrative appeal, whereupon the parties settled. The
committee dropped its appeal, Bonni agreed to resign and
release the hospital and its staff from any claims, and the
parties agreed on the language to be used in the required further
reports to the Medical Board of California and National
Practitioner Data Bank concerning the disciplinary measures
taken against Bonni. (See Bus. & Prof. Code, § 805, subd. (e);
42 U.S.C. § 11133(a)(1).)
In the meantime, a similar story was unfolding at Mission.
In October 2009, Bonni began to voice concerns about robot-
assisted surgeries at Mission. In December, Bonni performed
one such surgery. According to Bonni, the robot’s camera,
tissue-cutting scissors, and cauterizing tool all malfunctioned.
The patient experienced complications.
In the wake of that surgery, Mission initiated review of
Bonni’s performance over the preceding five years. After an
investigation, a peer review committee recommended that
Bonni’s privileges be suspended pending further training in
robotic procedures, and Mission’s chief of staff, a defendant here,
imposed a summary suspension.
While the suspension was under review, Bonni provided
Mission’s medical executive committee previous
communications about robotic-surgery issues. Apparently
unmoved, the committee voted to continue the suspension until
Bonni completed additional training. As with the St. Joseph
suspension, the length of the suspension triggered a duty to file
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
reports with the Medical Board of California and the National
Practitioner Data Bank.
At the same time, Bonni’s privileges were set to lapse, and
he submitted an application for reappointment. (See Cal. Code
Regs., tit. 22, § 70701, subd. (a)(7) [physicians must seek
reappointment at least once every two years].) Mission’s
medical executive committee recommended denial of the
application.
Bonni invoked his right to a hearing before Mission’s
judicial review committee, a panel of five doctors. The judicial
review committee considered the reasonableness of Bonni’s
suspension but did not directly address his reappointment. In
support of suspension, Mission’s medical executive committee
submitted approximately 125 charges arising from 19 cases at
Mission and, on the ground that they likewise demonstrated
lapses in skill or judgment, the three problematic 2010 surgeries
at its affiliated hospital, St. Joseph. After considering extensive
testimony, the committee unanimously concluded that the
original summary suspension was justified, but by a divided
vote concluded continuation of the suspension was no longer
warranted. The committee found eight of the 125 charges
substantiated. The eight sustained charges related principally
to documentation and surgery scheduling issues; according to
the final report, “none resulted in poor patient outcomes related
to issues raised in these charges.”
Both sides appealed to Mission’s appellate committee.
The appellate committee concluded that the initial suspension
was warranted at the time; that whether continuation of the
suspension was still warranted was a matter outside the
jurisdiction of the judicial review committee and appellate
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
committee (see Sadeghi v. Sharp Memorial Medical Center
Chula Vista (2013) 221 Cal.App.4th 598, 615); and, finally, that
the denial of Bonni’s reappointment application was reasonable.
The appellate committee recommended that Mission’s board of
trustees find the summary suspension warranted and deny the
pending application for reappointment. The board of trustees
adopted the committee’s recommendations and denied Bonni
renewal of his staff privileges.
B.
Bonni sued St. Joseph, Mission, various affiliated entities,
and eight individual doctors involved in the disciplinary process
(collectively the Hospitals). Bonni’s first cause of action alleged
that the Hospitals unlawfully retaliated against him for raising
patient safety concerns by summarily suspending him,
reporting his suspensions to the state medical board, subjecting
him to lengthy and humiliating peer review proceedings,
defaming him, and ultimately terminating his hospital
privileges. (See Health & Saf. Code, § 1278.5; Bus. & Prof. Code,
§§ 510, 2056.) Bonni also alleged that St. Joseph had retaliated
against him by fraudulently inducing him to enter into their
settlement agreement and then breaching that agreement.
Based on the same conduct, Bonni also brought causes of action
against St. Joseph for breach of contract and rescission of the
agreement.
The Hospitals filed an anti-SLAPP motion seeking to
strike the retaliation cause of action. (See Code Civ. Proc.,
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Opinion of the Court by Kruger, J.
§ 425.16 (section 425.16).) 1 They argued that this cause of
action arose from medical peer review proceedings; that medical
peer review proceedings are protected activity under this court’s
decision in Kibler v Northern Inyo County Local Hospital Dist.,
supra, 39 Cal.4th at pages 198–199 (Kibler); and thus that
Bonni must demonstrate some merit to his claim in order to
proceed (see § 425.16, subd. (b)(1)). They further argued that
Bonni could not establish any merit because the disciplinary
actions were taken for nonretaliatory reasons related to Bonni’s
medical competence and because Bonni had signed a release as
part of the settlement agreement relinquishing any right to sue
St. Joseph and its committees and staff.
The trial court granted the Hospitals’ motion. As a
threshold matter, the trial court agreed with the Hospitals that
“[t]he gravamen of the claim is based on defendants’ protected
peer review activities,” so the anti-SLAPP statute applied to the
retaliation cause of action under Kibler, supra, 39 Cal.4th 192.
The trial court then concluded the cause of action lacked the
requisite merit to proceed. It found, as to St. Joseph and related
defendants, that Bonni could not show any specific complaints
he made about patient care, and as to Mission and related
defendants, that Bonni had raised safety concerns, but had
failed to overcome Mission’s evidence that his performance, not
these complaints, was the true reason for any adverse actions.
1
A “SLAPP” is a “ ‘strategic lawsuit against public
participation’ ” (Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 732, fn. 1), and special motions to strike under
section 425.16 are commonly referred to as “[a]nti-SLAPP
motions” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park)).
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Opinion of the Court by Kruger, J.
The Court of Appeal reversed. (Bonni v. St. Joseph Health
System (2017) 13 Cal.App.5th 851 (Bonni).) It concluded that
the Hospitals’ “alleged retaliatory motive in suspending
plaintiff’s staff privileges and subjecting him to a lengthy and
allegedly abusive peer review proceeding is the basis on which
liability is asserted.” (Id. at p. 864.) The court reasoned that
the anti-SLAPP statute does not protect actions taken with a
retaliatory motive, and so the trial court erred in granting the
Hospitals’ special motion to strike. (Ibid.)
We granted review and held this case pending resolution
of Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871(Wilson), which addressed the role that an allegation of illicit
motive plays in determining whether retaliation and
discrimination claims arise from protected activity for anti-
SLAPP purposes. We explained in Wilson that allegations of
retaliatory or discriminatory motive do not categorically remove
retaliation and discrimination claims from the ambit of an anti-
SLAPP motion. Such claims, we said, are “necessarily also
based on the [defendant’s] alleged acts — that is, the various
outward ‘manifestations’ of the [defendant’s] alleged wrongful
intent.” (Id. at pp. 886–887.) Notwithstanding assertions of an
illicit motive, “[i]f the acts alleged in support of the plaintiff’s
claim are of the sort protected by the anti-SLAPP statute, then
anti-SLAPP protections apply.” (Id. at p. 887.) We disapproved
the Bonni court’s contrary conclusion. (Id. at p. 892.)
But Wilson only partially resolved the issues in this case.
It did not answer the question whether, setting aside Bonni’s
allegations that the Hospitals’ various disciplinary actions were
all motivated by a desire to retaliate against Bonni for his
whistleblowing activities, those underlying actions were “of the
sort protected by the anti-SLAPP statute.” (Wilson, supra, 7
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
Cal.5th at p. 887.) Because the application of the anti-SLAPP
statute to similar claims has generated confusion in California’s
courts, we retained the case for review and directed the parties
to brief the question.
II.
The anti-SLAPP statute is “designed to protect defendants
from meritless lawsuits that might chill the exercise of their
rights to speak and petition on matters of public concern.
[Citations.] To that end, the statute authorizes a special motion
to strike a claim ‘arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue.’ (§ 425.16, subd. (b)(1).)”
(Wilson, supra, 7 Cal.5th at pp. 883–884.)
Litigation of an anti-SLAPP motion involves a two-step
process. First, “the moving defendant bears the burden of
establishing that the challenged allegations or claims ‘aris[e]
from’ protected activity in which the defendant has engaged.”
(Park, supra, 2 Cal.5th at p. 1061.) Second, for each claim that
does arise from protected activity, the plaintiff must show the
claim has “at least ‘minimal merit.’ ” (Ibid.) If the plaintiff
cannot make this showing, the court will strike the claim.
The issue before us concerns the first step of this process,
determining whether the plaintiff’s claims arise from protected
activity. At this first step, courts are to “consider the elements
of the challenged claim and what actions by the defendant
supply those elements and consequently form the basis for
liability.” (Park, supra, 2 Cal.5th at p. 1063.) 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
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Opinion of the Court by Kruger, J.
defined category of protected activity. (Wilson, supra, 7 Cal.5th
at p. 884.)
The anti-SLAPP statute identifies four categories of
protected activity. (§ 425.16, subd. (e)(1)–(4).) The Hospitals
invoke two of them. Section 425.16, subdivision (e)(2) protects
“any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law.” Subdivision (e)(4) covers “any other conduct
in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” We determine
de novo whether any of the acts from which challenged claims
arise are protected under these provisions. (Wilson, supra, 7
Cal.5th at p. 884.)
Although the parties agree on these settled principles,
they disagree on one critical threshold question about the
mechanics of anti-SLAPP review. The Hospitals’ anti-SLAPP
motion seeks to strike Bonni’s retaliation cause of action in its
entirety. But that singular cause of action alleges multiple
factual bases; the operative complaint contains a nonexhaustive
list of at least 19 distinct acts or courses of conduct allegedly
undertaken in retaliation for Bonni’s complaints of unsafe
conditions. Bonni urges that when, as here, a motion has been
filed to strike an entire cause of action, a court should not
examine the underlying acts individually, but instead should
identify the “gravamen” or “principal thrust” of the cause of
action and consider only whether that gravamen arises from
protected activity. The Hospitals disagree; they insist Bonni’s
argument is contradicted by our decision in Baral v. Schnitt
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Opinion of the Court by Kruger, J.
(2016) 1 Cal.5th 376 (Baral). The Hospitals have the better of
this debate.
In Baral, we addressed how a court should proceed when
a plaintiff has pleaded what is sometimes loosely referred to as
a “ ‘mixed cause of action’ ” — that is, a cause of action that rests
on allegations of multiple acts, some of which constitute
protected activity and some of which do not. (Baral, supra, 1
Cal.5th at p. 382.) We considered and disapproved a line of
cases that had held an anti-SLAPP “motion lies only to strike an
entire count as pleaded in the complaint.” (Ibid.) Such a rule
would allow a plaintiff, through artful pleading, to shield
particular allegations of protected activity, themselves
sufficient to give rise to a claim for relief, from a motion to strike
by intermingling them with unprotected acts. (Id. at pp. 387–
388, 392–393.) Analysis of an anti-SLAPP motion is not
confined to evaluating whether an entire cause of action, as
pleaded by the plaintiff, arises from protected activity or has
merit. Instead, courts should analyze each claim for relief —
each act or set of acts supplying a basis for relief, of which there
may be several in a single pleaded cause of action — to
determine whether the acts are protected and, if so, whether the
claim they give rise to has the requisite degree of merit to
survive the motion. (Id. at pp. 393–395.)
Baral was a second-step anti-SLAPP case, but our
instructions for how to handle so-called mixed causes of action
began with the first step. At that stage, we said, the moving
defendant must identify the acts alleged in the complaint that it
asserts are protected and what claims for relief are predicated
on them. In turn, a court should examine whether those acts
are protected and supply the basis for any claims. It does not
matter that other unprotected acts may also have been alleged
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Opinion of the Court by Kruger, J.
within what has been labeled a single cause of action; these are
“disregarded at this stage.” (Baral, supra, 1 Cal.5th at p. 396.)
So long as a “court determines that relief is sought based on
allegations arising from activity protected by the statute, the
second step is reached” with respect to these claims. (Ibid.)
Since Baral, most Courts of Appeal have taken a claim-by-
claim approach to the anti-SLAPP analysis, rather than
attempting to evaluate a cause of action as a whole. (See, e.g.,
Laker v. Board of Trustees of California State University (2019)
32 Cal.App.5th 745, 772 & fn. 19; Sheley v. Harrop (2017) 9
Cal.App.5th 1147, 1168–1170; see also, e.g., Okorie v. Los
Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 601–602
(conc. & dis. opn. of Rothschild, P. J.).) Bonni, however, relies
on post-Baral case law suggesting that courts need not employ
the Baral analysis when a defendant has moved to strike an
entire cause of action rather than individual claims within a
pleaded count. (Okorie, at pp. 588–590). Here, in a motion filed
before Baral was issued, the Hospitals moved to strike the entire
retaliation cause of action. Bonni contends that because the
motion aimed at the entire cause of action, we should consider
whether the gravamen of the entire cause of action was based
on protected or unprotected activity.
We reject the contention: Our holding in Baral applies
even though the Hospitals sought to strike the entire cause of
action, rather than merely parts of it. If we were instead to
adopt Bonni’s proposed gravamen approach, we would again
risk saddling courts with an obligation to settle intractable,
almost metaphysical problems about the “essence” of a cause of
action that encompasses multiple claims. (Okorie v. Los Angeles
Unified School Dist., supra, 14 Cal.App.5th at p. 587.) The
attempt to reduce a multifaceted cause of action into a singular
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Opinion of the Court by Kruger, J.
“essence” would predictably yield overinclusive and
underinclusive results that would impair significant legislative
policies. Striking a cause of action that rests in part on
unprotected activity constrains a plaintiff’s ability to seek relief
without advancing the anti-SLAPP’s goals of shielding protected
activity, which would have been fully served by striking from
the complaint only the allegations of protected activity.
Conversely, refusing to strike any part of a cause of action that
rests in part on protected activity defeats the legislative goal of
protecting defendants from meritless claims based on such
conduct. Plaintiffs do, of course, have considerable discretion in
how to shape their pleadings, and as Okorie observed, there is
nothing to stop them from “deliberately or innocently” pleading
causes of action that “allege both protected and unprotected
activity.” (Id. at p. 590.) But at the end of the day, we do not
believe the Legislature in enacting the anti-SLAPP statute
intended to make the protections of the anti-SLAPP law turn on
a plaintiff’s pleading choices. (Baral, supra, 1 Cal.5th at p. 393.)
Bonni suggests his gravamen approach is justified by
waiver principles: if a moving party has not specified which
subparts of a cause of action it seeks to strike, the nonmovant
should not be put to the burden of parsing the cause of action in
the moving party’s stead. But this problem already has a
solution under well-established anti-SLAPP law — namely,
attention to the allocation of the applicable burden of proof. If a
cause of action contains multiple claims and a moving party fails
to identify how the speech or conduct underlying some of those
claims is protected activity, it will not carry its first-step burden
as to those claims. (See, e.g., post, at p. 34.) The nonmovant is
not faced with the burden of having to make the moving party’s
case for it.
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Opinion of the Court by Kruger, J.
To be clear, we do not suggest that every court that has
continued to label its approach a gravamen test even after Baral
has erred. Some courts have invoked the term not in the way
Bonni suggests — to determine the essence or gist of a so-called
mixed cause of action — but instead to determine whether
particular acts alleged within the cause of action supply the
elements of a claim (see Park, supra, 2 Cal.5th at p. 1063) or
instead are incidental background (see Optional Capital, Inc. v.
Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th
95, 111 [“The ‘gravamen is defined by the acts on which liability
is based, not some philosophical thrust or legal essence of the
cause of action’ ”]; accord, Area 51 Productions, Inc. v. City of
Alameda (2018) 20 Cal.App.5th 581, 594–601; Gaynor v. Bulen
(2018) 19 Cal.App.5th 864, 885–886). This approach is
consistent with Baral, which reaffirmed that “[a]ssertions that
are ‘merely incidental’ or ‘collateral’ are not subject to section
425.16. [Citations.] Allegations of protected activity that
merely provide context, without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.” (Baral,
supra, 1 Cal.5th at p. 394.)
Here, too, we may consider whether Bonni’s various
allegations supply the elements of a retaliation claim or merely
provide context. But to the extent Bonni has alleged various
acts as a basis for relief and not merely as background, each act
or set of acts must be analyzed separately under the usual two-
step anti-SLAPP framework. The Hospitals bear the burden of
showing that each allegation supporting Bonni’s claim of
recovery is one that rests on protected activity. If the Hospitals
carry that burden, Bonni will then need to demonstrate some
merit to his claim that those protected acts were taken for
impermissible retaliatory reasons; if he cannot, those particular
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allegations will be stricken. Conversely, to the extent any acts
are unprotected, the claims based on those acts will survive.2
III.
We first addressed the application of the anti-SLAPP
statute to claims arising from peer review in Kibler, supra, 39
Cal.4th 192. The question in Kibler was whether medical peer
review proceedings fall within the compass of section 425.16,
subdivision (e)(2), which protects “any written or oral statement
or writing made in connection with an issue under consideration
or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law.” (Italics added.) We
concluded they do.
As we explained in Kibler, medical peer review is the
process by which a hospital’s medical staff evaluates fellow
physicians’ professional competence. Hospital peer review
committees, principally composed of physicians selected from
the hospital’s staff, are charged with maintaining standards for
patient care by evaluating the qualifications of those seeking
staff privileges and monitoring the performance of those already
on staff. (Kibler, supra, 39 Cal.4th at p. 199; Arnett v. Dal Cielo
(1996) 14 Cal.4th 4, 10–12; see Bus. & Prof. Code, § 805, subd.
(a)(1)(A)(i).) Though originally adopted by the profession as a
purely private process, peer review is now mandated by statute
(Bus. & Prof. Code, §§ 2282, subd. (c), 2282.5; Mileikowsky v.
West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259,
1267) and supplies the foundation for public oversight of the
medical profession (see Bus. & Prof. Code, §§ 805, 809–809.9;
2
We disapprove Okorie v. Los Angeles Unified School Dist.,
supra, 14 Cal.App.5th 574 to the extent it is inconsistent with
this decision.
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Opinion of the Court by Kruger, J.
Cal. Code Regs., tit. 22, §§ 70701, 70703; Kibler, at p. 199
[describing the “comprehensive scheme that incorporates the
peer review process into the overall process for the licensure of
California physicians”]).
Peer review is primarily designed to ensure the
maintenance of high professional standards and the protection
of patient welfare. (Bus. & Prof. Code, § 809, subd. (a)(3), (6);
Mileikowsky v. West Hills Hospital & Medical Center, supra, 45
Cal.4th at p. 1267; Kibler, supra, 39 Cal.4th at p. 199.) But peer
review is also designed to ensure that determinations affecting
medical staff privileges are made fairly. Without fair
procedures, peer review can be an instrument for arbitrarily or
discriminatorily excluding competent practitioners to their
detriment and to the detriment of patients who may lose access
to health care. (Bus. & Prof. Code, § 809, subd. (a)(4);
Mileikowsky, at pp. 1267–1268; see Starr, The Social
Transformation of American Medicine (2017) pp. 167–168
[noting that in its early days, medical staff control over
privileges was used to exclude African-American and Jewish
doctors].) The rules governing peer review are designed to guard
against arbitrariness and unfairness in decisions about whether
a practitioner will be permitted to remain on a hospital staff.
In Kibler, we relied on these features of peer review in
concluding that peer review proceedings are “official
proceeding[s]” within the meaning of section 425.16, subdivision
(e)(2). We explained that the governing statutes granted to
“individual hospitals, acting on the recommendations of their
peer review committees, the primary responsibility for
monitoring the professional conduct of physicians licensed in
California.” (Kibler, supra, 39 Cal.4th at p. 201.) Peer review
decisions affecting a physician’s privileges must be reported to
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the Medical Board of California, and peer review committees
evaluating an application for privileges must obtain from that
agency a report of past discipline. (Bus. & Prof. Code, §§ 805,
subd. (b), 805.5, subd. (a); Kibler, at p. 200.) “Because a
hospital’s disciplinary action may lead to restrictions on the
disciplined physician’s license to practice or to the loss of that
license, its peer review procedure plays a significant role in
protecting the public against incompetent, impaired, or
negligent physicians.” (Kibler, at p. 200.) In addition, peer
review decisions are subject to review by administrative
mandamus, and in that regard, peer review committees take on
the character of quasi-judicial public agencies. (Ibid.)
In the wake of Kibler, some courts — including the trial
court in this case — understood the decision to mean that the
anti-SLAPP statute applies to any claim arising from hospital
peer review proceedings. But our holding in Kibler was
significantly more limited, as we later explained in Park, supra,
2 Cal.5th 1057. The question in Park was whether the anti-
SLAPP statute protects decisions made in the course of an
official proceeding — there, review of the tenure of a professor
at a public university. We answered no. We explained that the
anti-SLAPP statute protects speech and petitioning activity
taken in connection with an official proceeding, but not
necessarily the decisions made or actions taken as a result of
those proceedings. Under the statute, “a claim is not subject to
a motion to strike simply because it contests an action or
decision that was arrived at following speech or petitioning
activity, or that was thereafter communicated by means of
speech or petitioning activity. Rather, a claim may be struck
only if the speech or petitioning activity itself is the wrong
complained of, and not just evidence of liability or a step leading
17
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
to some different act for which liability is asserted.” (Id. at
p. 1060.) We rejected the university’s argument based on Kibler,
explaining that while Kibler had established that peer review
proceedings are official proceedings within the meaning of
subdivision (e)(2), it had not resolved whether decisions made in
the course of those proceedings, in addition to the discussions
leading up to those decisions, are protected. (See Park, at
p. 1069.) We went on to disapprove several Court of Appeal
decisions that had interpreted Kibler as establishing that any
peer review-based decision to impose discipline, including an
allegedly retaliatory termination of hospital privileges, is
necessarily protected activity. (Id. at pp. 1069–1070,
disapproving Nesson v. Northern Inyo County Local Hospital
Dist. (2012) 204 Cal.App.4th 65 and DeCambre v. Rady
Children’s Hospital-San Diego (2015) 235 Cal.App.4th 1.)
In short, Kibler established no more than that the anti-
SLAPP statute is potentially applicable in cases arising from
hospital peer review; it did not address the scope of the statute’s
protections in such cases. We now turn to that question as it is
presented here, taking care to differentiate between claims
based on protected speech and petitioning activity in connection
with peer review proceedings and the disciplinary actions that
result. (See Park, supra, 2 Cal.5th at p. 1060.)
IV.
A.
Again, a claim is subject to an anti-SLAPP motion to strike
if its elements arise from protected activity. (Park, supra, 2
Cal.5th at p. 1063.) Courts deciding an anti-SLAPP motion thus
must consider the claim’s elements, the actions alleged to
18
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
establish those elements, and whether those actions are
protected. (Ibid.)
Bonni’s retaliation claims rest primarily on Health and
Safety Code section 1278.5, which forbids health facilities from
discriminating or retaliating against certain individuals,
including medical staff members, for presenting complaints
concerning the quality of patient care to other members of the
medical staff, the facility, or other responsible entities. (Health
& Saf. Code, § 1278.5, subd. (b)(1).) A claim under this statute
requires proof of discriminatory treatment, which may be shown
by “any unfavorable changes in” a medical staff member’s
“contract, employment, or privileges . . . or the threat of” such
changes. (Id., subd. (d)(2).) 3 The operative complaint alleges
that the Hospitals retaliated against Bonni for raising patient
care concerns by engaging in 16 principal adverse actions or
categories of conduct. 4 Additionally, the complaint asserts that
3
Bonni’s complaint identifies two other statutory bases for
his retaliation claims — Business and Professions Code sections
510 et seq. and 2056 et seq. Section 510 prohibits retaliation
against health care practitioners who advocate for appropriate
health care for their patients. (Bus. & Prof. Code, § 510,
subds. (a), (b).) Section 2056 similarly prohibits penalizing a
physician or surgeon for advocating for patients’ health care.
(Bus. & Prof. Code, § 2056, subd. (c).) The operative complaint
does not differentiate between Health and Safety Code section
1278.5 and these two additional antiretaliation provisions and
so, for present purposes, we need not do so either.
4
According to the complaint, the retaliation “include[d], but
[was] not limited to:
“(1) Summarily suspending Plaintiff’s medical staff
membership and clinical privileges at St. Joseph Health
19
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
System, St. Joseph Hospital of Orange and Mission Hospital
Regional Medical Center;
“(2) Unilaterally taking retaliatory action against Plaintiff
without affording him due process, a hearing, an investigation,
or any other meaningful opportunity or procedural protection for
Plaintiff to address the summary suspensions before they were
issued;
“(3) Reporting Plaintiff’s summary suspensions to the
Medical Board of California and National [Practitioner] Data
Bank, as well as other persons/entities;
“(4) Abusing the powers of the peer review process and
subjecting Plaintiff to a lengthy and humiliating peer review
process for over two years, and by refusing to lift Plaintiff’s
summary suspension despite recommendations by several
separate boards/committees to do so, challenging the favorable
findings of the Judicial Review Committee (JRC) at a hearing
which occurred in or around October 2014;
“(5) On December 5, 2014, by having an Appellate
Committee recommend to the Board that it reverse the findings
of the JRC that had been favorable to Plaintiff;
“(6) On December 18, 2014 by the Board of Trustees
adopting the recommendations of the Appellate Committee
without any consideration of the favorable findings of the JRC;
“(7) Ongoing hostility in the work environment;
“(8) Obstructing other economic and career opportunities
for Plaintiff;
“(9) Failing to protect Plaintiff from retaliation for
whistleblowers and adverse actions;
“(10) Intolerable working conditions;
“(11) Engaging in a campaign of character assassination
which caused irreparable damage to Plaintiff’s reputation;
“(12) Depriving Plaintiff of his property right and interest
to use certain hospital facilities and privileges;
20
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
the conduct underlying two additional causes of action brought
against St. Joseph alone — fraudulently inducing Bonni to enter
the settlement agreement, exercising undue influence to force
him to sign it, and then breaching that agreement — was also
retaliatory. These alleged actions supply a necessary element of
the retaliation claims under Health and Safety Code section
1278.5 — the prohibited discriminatory treatment — and so the
claims arise from these acts. (See § 425.16, subd. (b); Park,
supra, 2 Cal.5th at p. 1063.) The next step in the analysis is to
determine whether each of these actions constitutes protected
activity under the anti-SLAPP statute. (Wilson, supra, 7
Cal.5th at p. 884.)
B.
Two of the alleged retaliatory actions underlying Bonni’s
complaint — defamation and “character assassination” —
describe quintessential speech activities and thus are protected
under section 425.16, subdivision (e)(2) to the extent the speech
was made in connection with peer review. (See Kibler, supra, 39Cal.4th at p. 200.) Because peer review proceedings are official
proceedings, any statements in connection with issues
considered in such proceedings — such as criticism of a doctor’s
competence supplied to a body reviewing his or her hospital
privileges — are protected activity under the anti-SLAPP law.
“(13) Interfering with Plaintiff’s right to practice his
occupation;
“(14) Wrongfully terminating Plaintiff’s hospital,
membership, and clinical privileges;
“(15) Improperly using Plaintiff’s confidential and private
health information; and
“(16) Making defamatory statements about Plaintiff.”
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
As we explained in Kibler, this result reflects a core function of
the anti-SLAPP statute in hospital peer review cases. To
adequately protect patient welfare, the system depends on the
ability of those with expertise to speak frankly about the
competence of medical professionals without fear of retribution.
To withhold anti-SLAPP protection against harassing lawsuits
would chill physicians’ willingness to fulfill the essential public
functions discharged by peer review committees. (Id. at p. 201.)
Bonni asserts that the alleged defamation and character
assassination were unconnected to peer review and therefore
were not protected by the anti-SLAPP statute. In the
alternative, he argues that this speech activity is immaterial to
his retaliation claims. Both assertions are belied by Bonni’s own
filings. On the first point, although Bonni never identifies any
specific defamatory statements in the complaint itself, his
opposition to the anti-SLAPP motion describes in more detail
the alleged course of retaliation against him. 5 The only
statements discussed in Bonni’s account that would support
5
Some cases have suggested that ambiguous pleading can
in some instances make a suit not a SLAPP. (See Central Valley
Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, 218–
219; Martin v. Inland Empire Utilities Agency (2011) 198
Cal.App.4th 611, 627–628.) Whether or not this is so, here we
have considerably more. Even if Bonni’s complaint omits
specific detail, Bonni’s opposition to the anti-SLAPP motion
makes clear that the alleged defamation and character
assassination include statements protected on account of their
nexus to the peer review proceedings. The statute instructs us
to take account of those additional allegations in our analysis.
(See § 425.16, subd. (b)(2) [courts ruling on anti-SLAPP motions
“shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based”].)
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
assertions of defamation or character assassination are
statements concerning Bonni’s professional competence, made
in connection with the peer review consideration of Bonni’s
standing at the Hospitals. These statements are protected
under Kibler. (Kibler, supra, 39 Cal.4th at p. 198; see Park,
supra, 2 Cal.5th at pp. 1069–1070.) As for Bonni’s second point,
we agree that if Bonni truly meant only to raise these claims as
window dressing, there would be no reason to strike them. (See
Baral, supra, 1 Cal.5th at p. 394.) But the complaint makes
clear that Bonni intended them to have operative effect: The
complaint in no uncertain terms lists the alleged defamation
and character assassination as conduct taken in retaliation for
his expression of patient care concerns, thus satisfying essential
elements of his retaliation claims. If Bonni wishes to abandon
the retaliation claims based on defamation and character
assassination, he may seek to do so in an appropriate forum.
But for present purposes, we will assume his complaint means
what it says.
Bonni’s complaint raises other instances of protected
activity. For one, Bonni alleges the Hospitals retaliated against
him by reporting his summary suspensions to the Medical Board
of California and National Practitioner Data Bank. These
reports qualify as “statement[s] or writing[s] made in connection
with an issue under consideration” in an “official proceeding.”
(§ 425.16, subd. (e)(2).) The reports, which were required by law
(see Bus. & Prof. Code, § 805, subd. (e); 42 U.S.C. § 11133(a)(1)),
are written statements to the state’s licensing agency
concerning restrictions imposed on Bonni by a peer review body
for allegedly providing substandard care. (See Kibler, supra, 9Cal.4th at p. 200 [emphasizing the role peer review plays in
23
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
state licensure].) 6 The same is true of Mission’s medical
executive committee’s arguments before the peer review panel
that the suspension should be upheld, as well as Mission’s
appellate committee’s recommendation that some of the
preliminary findings reached by that peer review panel should
be reversed. 7 These statements of defendants’ views on a
pending peer review matter fall within the scope of protected
activity as defined in section 425.16, subdivision (e)(2). And the
same necessarily follows for Bonni’s allegation that defendants
injured him by subjecting him to a “lengthy and humiliating
peer review process,” a general allegation that rests in part on
6
Although the summary suspensions were each initially
imposed by the respective individual hospital chiefs of staff, they
were immediately reviewed and preliminarily upheld by the
respective medical executive committees, which are peer review
bodies under state law. (See Bus. & Prof. Code, § 805,
subd. (a)(1)(B).) The legally required reporting of those peer-
imposed suspensions falls within the express language of Code
of Civil Procedure section 425.16, subdivision (e)(2).
7
In determining whether a physician should be subject to
discipline, Mission’s bylaws give no special weight to the
arguments of the medical executive committee, which are
treated like the arguments of any advocate. The peer review
body, the judicial review committee, is to decide the matter
based on an independent assessment of the evidence presented.
(Mission Bylaws, art. X, § 9(A); see generally id., art. X, §§ 1–9.)
Likewise, the decision of the appellate committee in reviewing
the judicial review committee’s decision is entitled to no weight;
although that decision is forwarded to the governing board of
trustees, the board is required to exercise its “independent
judgment” in determining whether the judicial review
committee’s decision should be upheld. (See Mission Bylaws,
art. X, § 10(G).) The communications Bonni challenges are thus
just that — statements on a matter under consideration — and
not akin to final decisions.
24
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
these statements and more — essentially everything any
defendant said in the course of the peer review process in
support of limiting Bonni’s privileges.
Bonni does not appear to dispute that the reports and
recommendations are protected activity but argues instead that
his claims do not arise from them. The Hospitals’ reports of his
suspensions, he now says, were simply the “natural
consequence” of the acts that actually harmed him, the
underlying suspensions and ultimate losses of staff privileges.
But the fact remains that the complaint alleges these reports as
separate acts of retaliation. What is more, Bonni’s declaration
submitted in opposition to the anti-SLAPP motion separately
describes the harm he suffered as a result of the allegedly
retaliatory reports, when another hospital rescinded a job offer
after it obtained the public report of his discipline. Again, we
take Bonni’s pleadings at face value.
Bonni similarly argues that the Mission medical executive
committee’s recommendations led to the acts that harmed
him — the loss of privileges — but were not themselves a source
of harm. At most, he says, the recommendations supply
evidence of retaliatory animus. But Bonni’s complaint expressly
alleges that committee’s challenge to peer review findings
favoring Bonni was an act of retaliation. Bonni’s claim arises
from that act because it supplies an element of the claim: The
retaliation statute defines actionable “discriminatory
treatment” to include both an actual “suspension” or
“unfavorable change[] in . . . [the] privileges of the . . . member
of the medical staff” and “the threat of any of these actions.”
(Health & Saf. Code, § 1278.5, subd. (d)(2).) Bonni’s claim, in
effect, is that defendants threatened the loss of his privileges by
recommending as much in the peer review process. This
25
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
framing makes out a cognizable retaliation claim, but it also
makes that claim susceptible to anti-SLAPP review.
Because each of his claims of retaliation based on
statements in connection with peer review proceedings arises
from protected activity, on remand Bonni will need to
demonstrate at least some “minimal merit” to the claims.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) If he cannot, these
allegations will be stricken from his pleadings. (Wilson, supra,
7 Cal.5th at p. 884.) That does not mean the underlying factual
allegations may not be mentioned in the course of any ensuing
proceedings; to the extent Bonni does consider these allegations
to be probative of defendants’ motives or relevant to any other
claims that survive, statements made in the course of peer
review proceedings remain as admissible as any others. As our
discussion in Park of the relevant precedent illustrates,
communicative activities often may supply evidence of illicit
animus even if they do not in themselves supply a basis for
liability. (See Park, supra, 2 Cal.5th at pp. 1064–1067.) But if
the claims are stricken from the pleadings for lack of merit,
Bonni may no longer seek to impose liability on defendants for
having engaged in these protected acts.
C.
The allegations just identified as protected activity under
section 425.16, subdivision (e)(2) all involve statements made in
connection with an official proceeding. But the operative
complaint also alleges retaliation through various adverse
actions — most prominently, the suspension and eventual
26
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
termination of Bonni’s hospital privileges.8 While Kibler
established that communications in connection with peer review
proceedings are protected under subdivision (e)(2) (Kibler,
supra, 39 Cal.4th at p. 198), it did not address whether decisions
made in the course of peer review proceedings were likewise
entitled to protection (see Park, supra, 2 Cal.5th at pp. 1069–
1070; ante, at pp. 17–18). To make their first-step showing with
respect to the suspension and termination of Bonni’s staff
privileges, the hospitals must show that those actions
themselves constituted “act[s] . . . in furtherance of [their] right
of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).)
The Hospitals acknowledge the limits of Kibler and the
significance of the distinction drawn in Park between adverse
decisions and the communications giving rise to those decisions.
They offer no argument that Bonni’s retaliation claims based on
adverse actions aim at activity that is protected under section
425.16, subdivision (e)(2). These disciplinary actions are not
“any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding
authorized by law.” (Ibid.) But the Hospitals contend that these
disciplinary actions are nonetheless protected under section
425.16, subdivision (e)(4), which covers “any other conduct in
furtherance of the exercise of the constitutional right of petition
8
The complaint alleges that the Hospitals retaliated
against Bonni by (1) suspending his privileges unilaterally and
(2) ultimately terminating his privileges, thereby (3) interfering
with his ability to practice.
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
or the constitutional right of free speech in connection with a
public issue or an issue of public interest.”
By its terms, section 425.16, subdivision (e)(4) extends
protection not just to speech and petitioning but to certain
conduct “in furtherance of” speech and petitioning. It does not,
however, “define precisely how, or to what extent, conduct must
further the exercise of speech or petition rights to merit
protection.” (Wilson, supra, 7 Cal.5th at p. 893.) We are not
presented here with allegations of expressive conduct — “the
burning of flags, the wearing of armbands, and the like” (ibid.),
acts that themselves serve to communicate views on a matter of
public significance — but rather with ancillary acts alleged to
facilitate a defendant’s speech or petitioning rights. Applying
the same analysis we developed in Wilson for such ancillary
acts, the question is whether Bonni’s suspension and the later
nonrenewal of his privileges furthered the Hospitals’ speech or
petitioning rights because they bore some “substantial
relationship” to the Hospitals’ “ability to [petition or] speak on
matters of public concern.” (Id. at p. 897.) 9
9
We recently articulated a general two-step analysis for
determining whether speech is protected under the anti-SLAPP
statute’s catchall provision: “First, we ask what ‘public issue or
. . . issue of public interest’ the speech in question implicates —
a question we answer by looking to the content of the speech.
(§ 425.16, subd. (e)(4).) Second, we ask what functional
relationship exists between the speech and the public
conversation about some matter of public interest,” a question
we answer by examining the speech’s context. (FilmOn.com Inc.
v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149–150 (FilmOn); see
Wilson, supra, 7 Cal.5th at pp. 884–885.) In FilmOn, we
resolved a dispute over whether the private dissemination of
28
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
The Hospitals argue that physician disciplinary decisions
further their speech and petitioning on “an identifiable matter
of public interest: patient safety.” They point to a Court of
Appeal case that held speech concerning the competence of a
single licensed physician could qualify as speech on a public
issue within the meaning of section 425.16, subdivision (e)(4).
(See Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939,
947–949 [applying FilmOn, supra, 7 Cal.5th 133].) We need not
decide whether Yang was correct, for even assuming it was, it
does not help the Hospitals here. All alleged statements by the
Hospitals and individual doctor defendants concerning Bonni’s
commercial reports was “in connection with a public issue or an
issue of public interest.” (§ 425.16, subd. (e)(4).) The parties’
dispute did not hinge on whether the dissemination of the
reports constituted “conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free
speech.” (Ibid.)
The two-part FilmOn inquiry will often be dispositive in
cases concerning the reach of the catchall provision. But in
instances where it is unclear whether apparently
noncommunicative acts qualify as “conduct in furtherance of the
exercise of the constitutional right of petition or the
constitutional right of free speech” (§ 425.16, subd. (e)(4)), a
court may need to also examine that question, as we did in
Wilson, supra, 7 Cal.5th 871 and as we must do here. In doing
so, a court should attend to contextual factors such as the
purpose of the conduct at issue, as courts do under FilmOn when
they examine whether any speech or petitioning is “in
connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(4); see Wilson, at p. 898 [news organization’s
ability to broadcast and publish on public issues, and
meaningfully participate in public discourse on these issues,
depended on its credibility, so a staffing decision based on a key
credibility harm such as plagiarism “qualifies as ‘conduct in
furtherance’ of CNN’s ‘speech in connection with’ [a] public
matter. (§ 425.16, subd. (e)(4).)”].)
29
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
competence are, as addressed in the previous section, protected
under subdivision (e)(2). The remaining issue is whether the
adverse actions the Hospitals took, based on their view that
Bonni’s competence was suspect, are likewise shielded. We
conclude the anti-SLAPP statute does not extend so far. Our
conclusion turns on the fact that the Hospitals have not drawn
any connection between their disciplinary actions and their
petitioning or speech abilities — irrespective of whether those
actions might relate to a matter of public interest.
At bottom, disciplining a doctor based on the view that the
doctor’s skills are deficient is not the same thing as making a
public statement to that effect. The latter is, or may be, speech
on a matter of public concern. The former is not speech at all.
(See Smith v. Adventist Health System/West (2010) 190
Cal.App.4th 40, 60 [summary suspension of physician’s staff
privileges is “a noncommunicative act”].) Treating disciplinary
acts indistinguishably from speech — such that if stating a
given viewpoint would warrant constitutional and anti-SLAPP
protection as an exercise of free speech rights, the same
protection should extend equally to any actions motivated by
that viewpoint — assumes, at root, that conduct generally is
tantamount to speech. But expression and nonexpressive acts
do not have equal stature in First Amendment law. An
employer has the constitutional right to express opposition to
antiretaliation laws, for example, but the employer has no
equivalent right to fire an employee in retaliation for
whistleblowing activity. (Cf. Hishon v. King & Spalding (1984)
467 U.S. 69, 78 [prohibition on sex discrimination in private
employment does not infringe constitutional right of
expression].) The scope of the protection afforded by the anti-
SLAPP statute may not precisely track the lines drawn under
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
the First Amendment and state Constitution (City of Montebello
v. Vasquez (2016) 1 Cal.5th 409, 421), but we see no evidence the
Legislature intended to discard this well-established distinction
when it enacted section 425.16, subdivision (e)(4). (See Wilson,
supra, 7 Cal.5th at p. 893 & fn. 9 [discussing legislative history
of § 425.16, subd. (e)(4)].) On the contrary, as we have elsewhere
made clear, even if the statute shields statements about an
individual’s qualifications, the Legislature did not necessarily
also intend to shield all actions motivated by those views. (See,
e.g., Park, supra, 2 Cal.5th at pp. 1068–1073 [whether or not
statements about professor’s qualifications might have been
protected, the decision based on those communications was
not].)
Of course, the Hospitals need not prove their disciplinary
actions represented “expressive” conduct — tantamount to a
report on their commitment to patient safety — to successfully
meet their burden under section 425.16, subdivision (e)(4). By
covering “any other conduct in furtherance of” protected speech
and petitioning (ibid.), the subdivision extends to
communicative and noncommunicative acts (see Sen. Com. on
Judiciary, Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.)
as amended May 12, 1997, pp. 3–4; Wilson, supra, 7 Cal.5th at
p. 893 & fn. 9). Our inquiry here turns instead on whether the
Hospitals’ conduct advances the Hospitals’ “ability to speak [or
petition] on matters of public concern.” (Wilson, at p. 897, italics
added; see id. at p. 896 [the “ability to speak on public issues . . .
is the anti-SLAPP statute’s concern”].) No connection between
the Hospitals’ choice of which doctors should receive staff
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BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
privileges and its ability to speak or petition on public issues is
apparent. 10
The Hospitals emphasize that disciplining Bonni triggered
a peer review hearing, an official proceeding during which the
Hospitals’ medical executive committee petitioned in support of
its action, and the suspensions supplied the occasion for reports
to the Medical Board of California and National Practitioner
Data Bank. Those reports are, as we have discussed, the sort of
petitioning activity the anti-SLAPP statute protects. And it is
true that the suspensions of Bonni were a “but for” cause of those
protected acts — no suspension, no proceedings or reports. But
that sort of causal link does not mean the suspensions advanced
the Hospitals’ ability to speak or to petition on matters of public
concern in any substantial way. Suspension or no, the Hospitals
were perfectly free to express views about Bonni’s competence.
Likewise, nothing in the Hospitals’ bylaws would have
prevented them from initiating a peer review evaluation of his
competence even without a suspension. Indeed, the record here
indicates Mission did initiate such an evaluation months before
it suspended and eventually declined to renew Bonni’s staff
10
In Wilson, supra, 7 Cal.5th 871, we acknowledged that
some staffing decisions by a news organization in the business
of speaking on matters of public importance to the public,
specifically those tied to selecting individuals with control over
the organization’s message, might qualify as conduct in
furtherance of the organization’s speech on matters of public
importance. (Id. at p. 896.) But, like the university defendant
in Park, supra, 2 Cal.5th at page 1072, which failed to develop
an argument that its choice of faculty had any similar impact,
the Hospitals have not shown how their selection of doctors
furthers the Hospitals’ own speech or petitioning.
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Opinion of the Court by Kruger, J.
privileges. 11 Section 425.16, subdivision (e)(4) does not extend
protection to every bit of conduct factually related to actual
speech or petitioning.
Finally, the Hospitals argue anti-SLAPP protection for
physician disciplinary decisions is necessary lest the risk of
frivolous suits chill such decisions and jeopardize patient safety.
Enhanced patient safety is surely a worthy policy goal, but it is
not the concern of the anti-SLAPP statute, which is aimed
instead at protecting the exercise of speech and petitioning
rights on matters of public significance. (§ 425.16, subd. (a);
FilmOn, supra, 7 Cal.5th at p. 143; Barry v. State Bar of
California (2017) 2 Cal.5th 318, 321.) 12 Nor have the Hospitals
presented any specific evidence to support the contention that
denying anti-SLAPP protection to the ultimate peer review
decisions would chill hospitals from making appropriate
disciplinary decisions based on the information received in the
peer review process — the communication of which is subject to
anti-SLAPP protection. (Cf. Park, supra, 2 Cal.5th at p. 1071
[“deny[ing] protection to individuals weighing in on a public
entity’s decision might chill participation from a range of voices
11
The Hospitals’ briefing suggests that the primary impact
a summary suspension has on peer review is that it triggers
certain hearing rights for the disciplined physician, which the
physician can choose to exercise or waive. But the Hospitals
provide no explanation why conduct that empowered Bonni to
exercise hearing rights furthered their own right to petition.
12
The same point addresses the Hospitals’ observation that
summary suspensions may make peer review proceedings safer,
ensuring that allowing physicians a fair process does not come
at the expense of patient welfare. Even assuming this is so, it
does not demonstrate that summary suspensions enhance the
Hospitals’ ability to speak or petition.
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Opinion of the Court by Kruger, J.
desirous of offering input on a matter of public importance. But
no similar concerns attach to denying protection for the ultimate
decision itself”].)
In sum, the Hospitals have not shown physician
disciplinary decisions, such as the summary suspension and
eventual termination of privileges underlying many of Bonni’s
retaliation claims, are entitled to protection under the anti-
SLAPP statute.
D.
The complaint also identifies a handful of miscellaneous
retaliatory conduct not explicitly tied to any specific event or
action: that the Hospitals created a hostile work environment,
blocked Bonni from career opportunities, failed to protect him
from retaliation, subjected him to intolerable work conditions,
and misused his private, confidential health information. The
burden is on the Hospitals to demonstrate that each of these
allegations entails protected activity. (Wilson, supra, 7 Cal.5th
at p. 884.) In the trial court, the Hospitals did not address
Bonni’s allegations individually. In this court, they offer no
argument directed at these allegations and do not explain how
they arise from peer review proceedings or any other protected
activity. Accordingly, they have not carried their burden.
E.
In addition to the undifferentiated retaliation allegations
pleaded against all defendants, the complaint alleges St. Joseph
and its related entities retaliated by first using undue influence
or fraud to persuade Bonni to settle his dispute with them and
then breaching that settlement agreement by reporting Bonni’s
resignation to the Medical Board of California and National
34
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
Practitioner Data Bank using language that deviated from that
agreed to by the parties.
The filing of a lawsuit is an exercise of the First
Amendment right to petition the government. (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291; Jarrow
Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 736, fn. 5;
Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1115.) Consequently, claims that arise out of the
filing of a suit arise from protected activity for purposes of the
anti-SLAPP statute. (Jarrow Formulas, at pp. 734–735.) The
same is true of discussions that precede the filing of a suit:
“ ‘[J]ust as communications preparatory to or in anticipation of
the bringing of an action or other official proceeding are within
the protection of the litigation privilege of Civil Code section 47,
subdivision (b) [citation], . . . such statements are equally
entitled to the benefits of section 425.16.’ ” (Briggs, at p. 1115.)
Settlement negotiations while a suit is pending are
likewise protected; they involve communications in connection
with a matter pending before or under consideration by an
official body, and so fall within the scope of section 425.16,
subdivision (e)(2). (Navellier v. Sletten, supra, 29 Cal.4th at
p. 90; O&C Creditors Group, LLC v. Stephens & Stephens XII,
LLC (2019) 42 Cal.App.5th 546, 566–568; Seltzer v. Barnes
(2010) 182 Cal.App.4th 953, 962–964; GeneThera, Inc. v. Troy &
Gould Professional Corp. (2009) 171 Cal.App.4th 901, 907–908.)
We deal here with a claim arising out of settlement
negotiations preceding the filing of any suit. But we
nevertheless conclude such negotiations, no less than postfiling
settlement negotiations or communications in anticipation of
filing, are protected activity for anti-SLAPP purposes. In
35
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
determining what constitutes protected petitioning activity, “we
must give adequate ‘breathing space’ to the right of petition.”
(Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 932,
quoting BE&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.)
“The right to petition means more than simply the right to
communicate directly with the government. It necessarily
includes those activities reasonably and normally attendant to
effective petitioning.” (In re IBP Confidential Business
Documents Lit. (8th Cir. 1985) 755 F.2d 1300, 1310.) Recognized
petitioning activities thus include not only the conduct of
litigation but also acts and communications reasonably incident
to litigation, including prelitigation settlement negotiations.
(See Coastal States Marketing, Inc. v. Hunt (5th Cir. 1983) 694
F.2d 1358, 1367 [protection for petitioning activity should
extend to a prelitigation “effort to compromise the dispute”];
Globetrotter Software v. Elan Computer Group, Inc. (Fed.Cir.
2004) 362 F.3d 1367, 1376 [agreeing with Coastal States];
McGuire Oil Co. v. Mapco, Inc. (11th Cir. 1992) 958 F.2d 1552,
1560 [agreeing with Coastal States]; Long Canyon v. Cashion
(Tex.Ct.App. 2017) 517 S.W.3d 212, 220–222 [presuit demand
letters are constitutionally protected petitioning activity for
purposes of Texas’s equivalent to the anti-SLAPP statute].)
Consistent with this view, those Courts of Appeal to consider the
question have concluded the anti-SLAPP statute protects
prelawsuit settlement negotiations, whether emanating from
the would-be plaintiff or the would-be defendant. (Takhar v.
People ex rel. Feather River Air Quality Management Dist. (2018)
27 Cal.App.5th 15, 28–29; Karnazes v. Ares (2016) 244
Cal.App.4th 344, 353.)
Here, the retaliation claim rests in part on St. Joseph’s
settlement negotiations with Bonni. Although Bonni alleges
36
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
fraud in the course of those negotiations, that allegation does
not remove them from the definition of protected activity. (See
Navellier v. Sletten, supra, 29 Cal.4th at pp. 87, 90; Navarro v.
IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 841–842;
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418–
1420.)
The last pleaded retaliatory act is St. Joseph’s alleged
breach of the parties’ settlement agreement by communicating
with the Medical Board of California using unauthorized
language. A breach of contract claim can arise from protected
activity if the action allegedly breaching the contract is itself
protected. (Compare Navellier v. Sletten, supra, 29 Cal.4th at
pp. 90–91 [breach of settlement claim arose from protected
petitioning activity, filing claims in court in alleged violation of
a prior release] and Mundy v. Lenc (2012) 203 Cal.App.4th 1401,
1408–1409 [same] with Applied Business Software, Inc. v.
Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108,
1118 [breach of settlement claim did not arise from protected
activity where acts constituting breach not exercise of speech or
petitioning rights].) As discussed above, St. Joseph’s
communication to the Medical Board was protected activity, and
so Bonni’s claim that St. Joseph retaliated by breaching the
parties’ settlement agreement likewise arises from protected
activity.
V.
In sum, the Hospitals have demonstrated that some but
not all of the claims collected together as unlawful acts of
retaliation in Bonni’s first cause of action arise from protected
speech or petitioning activity: reporting Dr. Bonni’s summary
suspension and advocating in peer review proceedings that it be
37
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
upheld (First Amended Complaint for Damages, ¶ 16, subparas.
(3)–(5)); criticizing Dr. Bonni’s professional abilities in the
course of peer review proceedings (id., ¶ 16, subparas. (11), (16));
and inducing Dr. Bonni to settle his dispute with St. Joseph and
then allegedly breaching that settlement by filing a
nonconforming report with the Medical Board of California (id.,
¶ 16, addtl. subparas. (1)–(3)). The remaining allegations do not
arise from protected activity.
Echoing other courts, the Court of Appeal here expressed
concern that discrimination and retaliation claims should
“rarely, if ever” be seen as appropriate targets of an anti-SLAPP
motion. (Bonni, supra, 13 Cal.App.5th at p. 864.) We agree that
the anti-SLAPP statute has a limited role to play in such suits.
As we said in Wilson, “[w]e see no realistic possibility that anti-
SLAPP motions will become a routine feature of the litigation of
discrimination or retaliation claims.” (Wilson, supra, 7 Cal.5th
at p. 890.) This case is no exception to the rule; as we have
explained, the disciplinary actions central to Bonni’s retaliation
cause of action do not constitute protected activity and thus are
not subject to a special motion to strike under the anti-SLAPP
statute. To the extent Bonni’s cause of action seeks to impose
liability not for disciplinary actions but for statements made in
the course of hospital peer review proceedings, the statute
entitles the Hospitals to seek early review of the merits of
Bonni’s claims, just as they would be permitted to seek early
review of any other claim arising from protected activity. We
reiterate, however, that while this is the conclusion that follows
from the statute as written, the Legislature remains free to
adjust the statutory scheme’s application to discrimination and
retaliation claims if it so chooses. (See id. at p. 892.)
38
BONNI v. ST. JOSEPH HEALTH SYSTEM
Opinion of the Court by Kruger, J.
The Court of Appeal reversed the trial court based on a
determination that the Hospitals had not met their first-step
burden. It thus did not have occasion to review the trial court’s
further conclusion that Bonni had failed to satisfy his second-
step burden. We reverse in part the Court of Appeal’s first-step
determination and remand for it to consider in the first instance
whether Bonni has met his second-step burden for those discrete
claims arising from protected activity. (See Navellier v. Sletten,
supra, 29 Cal.4th at p. 95.)
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
39
BONNI v. ST. JOSEPH HEALTH SYSTEM
S244148
Concurring Opinion by Justice Groban
The majority opinion concludes the anti-SLAPP statute
(see Code Civ. Proc., § 425.161) applies when a plaintiff’s
retaliation claim is “based on statements in connection with peer
review proceedings.” (Maj. opn., ante, at p. 25.) I fully concur
with this conclusion. The majority opinion also finds the anti-
SLAPP statute does not apply when a plaintiff alleges that
statements made in connection with a peer review proceeding
demonstrate the disciplinary decisions resulting from those
statements were motivated by retaliatory animus. (See id. at
pp. 25–26.) I agree this conclusion is compelled by our prior
holdings in Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057 (Park) and Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871 (Wilson). (See maj.
opn., ante, at pp. 26, 37–38; Park, at p. 1060 [“a claim is not
subject to a motion to strike simply because it contests an action
or decision that was arrived at following speech or petitioning
activity . . . . Rather, a claim may be struck only if the speech or
petitioning activity itself is the wrong complained of”]; Wilson,
at p. 890 [“the defendant in a discrimination suit must show that
the complained-of adverse action, in and of itself, is an act in
furtherance of its speech or petitioning rights. Cases that fit
that description are the exception, not the rule”].) I write
1
All further statutory citations are to the Code of Civil
Procedure.
1
BONNI v. ST. JOSEPH HEALTH SYSTEM
Groban, J., concurring
separately, however, to express my view that our now-settled
construction of section 425.16 does appear to erode the
protections that statements made in connection with peer
review and other “official proceeding[s]” (§ 425.16, subd. (e)(2))
would otherwise enjoy.
Plaintiff Aram Bonni alleges, inter alia, that the hospital
defendants retaliated against him by making false statements
at the peer review proceedings regarding his competency. (See
maj. opn., ante, at pp. 21–22.) The majority opinion concludes
the anti-SLAPP statute applies to this claim because the
defendants’ protected statements “supply the basis” for the
claim. (Id. at p. 11; see id. at pp. 21–23.) The majority opinion
further finds, however, that Bonni could have avoided
application of the statute by instead alleging that the
defendants’ false statements at the peer review proceedings
prove that subsequent disciplinary acts were retaliatory. (See
id. at pp. 26–27.) In that circumstance, the statements would
receive no protection because they would merely “supply
evidence of illicit animus” (id. at p. 26) rather than “supply the
basis” (id. at p. 11) for the claim. Thus, under our reasoning, it
appears the following allegation would trigger anti-SLAPP
protection: “After I reported safety concerns, the employer
retaliated against me by making false statements at the peer
review proceedings and then terminating my employment based
on those false statements.” But the plaintiff could avoid the
statute by alleging: “After I reported safety concerns, the
employer retaliated against me by terminating my employment.
That retaliatory animus is evidenced by false statements made
at the peer review proceedings.”
While consistent with our prior decisional law (see Park,
supra, 2 Cal.5th at p. 1060; Wilson, supra, 7 Cal.5th at p. 890),
2
BONNI v. ST. JOSEPH HEALTH SYSTEM
Groban, J., concurring
that conclusion has curious consequences where, as here, it
seems clear Bonni cannot prove the hospital defendants’
disciplinary decisions were retaliatory without first persuading
the jury that the statements against him at the peer review
proceedings were themselves false and retaliatory.2 If a plaintiff
cannot prove his or her claim without persuading a jury that
protected statements were false, one might reasonably think the
claim “aris[es] from” (§ 425.16, subd. (b)(1)) those statements.
Park, however, rejected such reasoning, and Wilson reaffirmed
that view.
Although I join the majority opinion’s application of our
prior case law, I am less persuaded that our construction of the
anti-SLAPP statute will have no conceivable chilling effect on
free participation in official proceedings. (See maj. opn., ante, at
p. 33.) We have previously held that the Legislature’s purposes
in enacting the anti-SLAPP statute are “best served . . . by a
construction of section 425.16 that broadly encompasses
participation in official proceedings, generally, whether or not
such participation remains strictly focused on ‘public’ issues.”
(Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1118.) In Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192, we further held that peer
2
In his declaration filed in support of the opposition to the
anti-SLAPP motion, Bonni asserts the allegations defendants
made against him at the peer review proceedings — that his
treatment of patients fell below the standard of care — “were
false and brought . . . in retaliation for [his] reports related to
patient safety.” If the jury rejects those factual assertions and
instead concludes the hospital defendants acted in good faith
during the peer review process, it is difficult to conceive how
Bonni could possibly prevail on any retaliation claim involving
the defendants’ disciplinary actions.
3
BONNI v. ST. JOSEPH HEALTH SYSTEM
Groban, J., concurring
review qualifies as a form of “ ‘official proceeding’ ” that “serves
an important public interest.” (Id. at p. 199.) Denying
protection to statements made in connection with peer review
proceedings, we reasoned, would “discourage participation in
peer review by allowing disciplined physicians to file harassing
lawsuits against hospitals and their peer review committee
members.” (Id. at p. 201; see maj. opn., ante, at p. 21 [“To
withhold anti-SLAPP protection against harassing lawsuits
[based on statements in connection with peer review
proceedings] would chill physicians’ willingness to fulfill the
essential public functions discharged by peer review
committees”].) Arguably, denying protection when “disciplined
physicians . . . file harassing lawsuits” (Kibler, at p. 201) that
claim false statements made during peer review proceedings
show the resulting discipline was retaliatory will have an
identical effect. Indeed, if hospital administrators were to ask
their attorney whether statements at peer review proceedings
would be protected in the event a physician were to later bring
suit, it seems the most reasonable answer under our current
jurisprudence would be, “not really.” That such protection
might apply if the physician were to proceed under a theory of
defamation, but not if the physician utilized the statements as
crucial evidence in proving the discipline was retaliatory, would
seem to provide little comfort to those participating in the peer
review process.
Nonetheless, this is the dividing line that our case law
compels. As the majority opinion notes, if the Legislature
believes our construction is inadequate to protect statements
made in connection with peer review and other “official
proceeding[s]” (§ 425.16, subd. (e)(2)), it “remains free to adjust
the statutory scheme[].” (Maj. opn., ante, at p. 38.)
4
BONNI v. ST. JOSEPH HEALTH SYSTEM
Groban, J., concurring
GROBAN, J.
5
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Bonni v. St. Joseph Health System
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 13 Cal.App.5th 851Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S244148
Date Filed: July 29, 2021
__________________________________________________________________
Court: Superior Court
County: Orange
Judge: Andrew P. Banks
__________________________________________________________________
Counsel:
Greene, Broillet & Wheeler, Mark T. Quigley, Scott H. Carr, Christian
T.F. Nickerson; Esner, Chang & Boyer, Stuart B. Esner and Joseph S.
Persoff for Plaintiff and Appellant.
Arent Fox, Lowell C. Brown, Debra J. Albin-Riley, Karen Van Essen
and Diane Roldán for Defendants and Respondents.
Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen Wener
Shenfeld and Joanna S. McCallum for Dignity Health, Sutter Health,
Adventist Health, MemorialCare and Sharp Healthcare as Amici
Curiae on behalf of Defendants and Respondents.
Horvitz & Levy, Jeremy B. Rosen, Felix Shafir, John F. Querio and
Megan S. Wilson for California Hospital Association as Amicus Curiae
on behalf of Defendants and Respondents.
Francisco J. Silva, Stacey B. Wittorff, Joseph M. Cachuela; Athene
Law and Long X. Do for California Medical Association as Amicus
Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Debra J. Albin-Riley
Arent Fox LLP
555 West Fifth St., 48th Floor
Los Angeles, CA 90013
(213) 443-7545
Stuart B. Esner
Esner, Chang & Boyer
234 East Colorado Blvd., Suite 975
Pasadena, CA 91101
(626) 535-9860