Melamed v. Cedars-Sinai Medical Center CA2/1

Filed 4/21/22 Melamed v. Cedars-Sinai Medical Center CA2/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
HOOMAN MELAMED, B263095
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC551455)
v.
CEDARS-SINAI MEDICAL
CENTER et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael M. Johnson, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Greene Broillet & Wheeler, Mark T. Quigley, Scott H. Carr,
Christian T.F. Nickerson; Esner, Chang & Boyer and Stuart B.
Esner for Plaintiff and Appellant.
Glaser Weil Fink Howard Avchen & Shapiro, Patricia L.
Glaser, Joel N. Klevens; Greines, Martin, Stein & Richland,
Robin Meadow, and Jeffrey E. Raskin for Defendants and
Respondents.
On July 15, 2011, the medical staff of Cedars-Sinai Medical
Center (Cedars) summarily suspended Hooman Melamed, M.D.’s
privileges to perform back surgeries in scoliosis and kyphosis
cases, after Dr. Melamed’s operation on a 12-year-old scoliosis
patient resulted in complications and necessitated a second,
corrective surgery. In a year-long peer review hearing that began
in September 2012 and concluded in November 2013, Dr.
Melamed challenged the summary suspension of his privileges
(and other recommendations of Cedars’s medical staff). The
Hearing Committee concluded, among other things, the summary
suspension was reasonable and warranted when it was imposed
on July 15, 2011 but, at the time of the Hearing Committee’s
decision in January 2014, the portion of the initial suspension
that remained in effect should be terminated and Dr. Melamed’s
privileges reinstated, with prospective review of his clinical
management in pediatric and adolescent scoliosis cases. Dr.
Melamed pursued administrative appeals of the
recommendations not in his favor, and the Hearing Committee’s
findings, conclusions, and recommendations were upheld.
In July 2014, Dr. Melamed filed this action against Cedars
and four of its physicians who were involved in the summary
suspension decision, William Brien, M.D., Rick Delamarter, M.D.,
Michael Langberg, M.D., and Neil Romanoff, M.D. (collectively,
defendants). In a first amended complaint, Dr. Melamed alleged
defendants’ conduct in connection with the summary suspension
and its aftermath was wrongful and damaged his career.
Specifically, he alleged all actions defendants took against him—
2
including the summary suspension—were retaliatory because he
reported conditions and services at Cedars that threatened
patient care and safety. Defendants filed an anti-SLAPP1 motion
under Code of Civil Procedure section 425.16,2 arguing all Dr.
Melamed’s claims arose out of protected activity—the peer review
process—and Dr. Melamed could not show a probability of
success on the merits on any of his causes of action. The trial
court granted the anti-SLAPP motion, dismissed Dr. Melamed’s
first amended complaint with prejudice, and found defendants
were entitled to recover attorney fees.
Dr. Melamed appealed. On February 27, 2017, we issued
an opinion affirming the trial court’s order of dismissal. The
Supreme Court granted Dr. Melamed’s petition for review and
transferred the matter to this court for reconsideration in light of
a Supreme Court decision in an anti-SLAPP case issued after our
opinion. Upon reconsideration, on October 6, 2017, we issued an
opinion reversing the trial court’s order of dismissal. The
Supreme Court granted defendants’ petition for review and
deferred further action pending disposition in two other anti-
SLAPP cases before the Court. On September 15, 2021, the
Supreme Court transferred the matter to this court for
reconsideration in light of Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871 (Wilson) and Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995 (Bonni). For the reasons explained
below, upon reconsideration, we affirm in part and reverse in
part the trial court’s order of dismissal.
1 SLAPP is the acronym for strategic lawsuit against public
participation.
Undesignated statutory references are to the Code of Civil
2
Procedure unless otherwise noted.
3
BACKGROUND
Dr. Melamed is a board-certified orthopedic spine surgeon,
licensed to practice medicine in California, who has had
privileges to practice at Cedars since 2004.
I. The Surgery
On July 11, 2011, Dr. Melamed performed the elective
scoliosis-correction surgery that led to the summary suspension
of his privileges by Cedars’s medical staff. Dr. Melamed
approved the equipment to be used during the surgery, including
the operating table (“the Jackson table”) and the hip and thigh
pads to stabilize his 12-year-old patient, D.W. He positioned
D.W. on the Jackson table and was satisfied with her positioning
and stability at the outset of the surgery.
During surgery, however, Dr. Melamed noticed D.W.’s
pelvis was slipping through an opening in the Jackson table,
altering the alignment of her spine. He asked the nursing staff
for larger hip and thigh pads to help him stabilize her position,
but he was told such pads were not available. He asked nurses to
go under the table, push up her pelvis, and hold it still. Dr.
Melamed did not close D.W.; he continued to operate. He
extended the incision up her spine and fused her higher
vertebrae. Her position on the table continued to shift, and she
continued to slip through the bolsters that were placed in
attempts to stabilize her position. Dr. Melamed asked the
nursing staff to see if there was a four-poster operating table
available, so he could transfer D.W. to that table and complete
the surgery. He was told such a table was not available.
Realizing he would not be able to complete the surgery
because of the continuing problems with D.W.’s position on the
table, Dr. Melamed placed a temporary rod in her spine and
4
decided he would perform another corrective surgery on her in a
few days. What Dr. Melamed originally believed would be a
simple surgery lasted more than eight hours. D.W.’s lordosis
(inward curvature of the lumbar spine) was worse after the
surgery, and she had abrasions on her face and body due to the
number of hours she spent on the operating table.
Dr. Melamed told D.W.’s parents there were some
mechanical problems with the table and pads during surgery. He
explained to them that he would request the appropriate table
and pads and bring D.W. back into the operating room soon for a
corrective surgery. He also offered to help them obtain a second
opinion.
II. Nursing/Operating Room Staff Report the Surgery
for Potential Review, and the Peer-Review
Investigation Commences
Early in the morning on July 12, 2011, immediately after
the surgery, a nurse who came in to assist in transferring D.W.
from the Jackson table to a hospital bed expressed concern about
the appearance of D.W.’s spine. After hearing from staff who
were present in the operating room that the curvature of D.W.’s
spine was worse after the surgery, the nurse decided to file a
formal electronic incident report through the MIDAS event
reporting system.3
3 Pursuant to Cedars’s policy, any individual, including a
medical staff member, who witnesses or discovers an “event”
must document that event in MIDAS by the end of his or her
work shift. The written policy defines “event” as “any occurrence
that could be inconsistent with the provision of high-quality
patient care, or any event that could adversely affect the health
or safety of patients ....... ”
5
In the early evening on July 13, 2011, a Cedars operating
room manager, who had observed D.W. earlier that day and had
spoken with her parents, emailed Dr. William Brien, Executive
Vice Chairman for the Department of Surgery at Cedars. In his
capacity as Executive Vice Chairman, Dr. Brien was required to
and regularly participated in physician peer review matters. In
the email, the manager informed Dr. Brien that D.W. had dermal
abrasions on her face due to the length of the surgery. D.W.’s
father told the manager that D.W. was now “ ‘barrel chested’
compared to [her] previous state” before surgery. According to
the manager’s email, D.W.’s parents said Dr. Melamed told them:
D.W. was too small for the Jackson table, and she “slipped” when
he was trying to place a rod in her spine. The rod also “slipped,”
so he needed to perform a corrective surgery. To do so, he needed
an operating table that Cedars did not have. As stated in the
email, the manager reassured D.W.’s parents that Cedars had
the necessary equipment for the corrective surgery. The parents
requested referrals for a second opinion, and the manager
provided them. After speaking with D.W.’s parents, the manager
asked Dr. Melamed what equipment he needed for the corrective
surgery, and he stated he could “use the slider with gel bolsters.”
As stated in the manager’s email, the manager assured Dr.
Melamed that Cedars would accommodate this equipment
request.
By morning on July 14, 2011, Dr. Brien had decided to
expedite the peer review investigation regarding D.W.’s surgery
because D.W. remained at Cedars awaiting a corrective surgery.
The same day, Dr. Brien interviewed Dr. Melamed. According to
Dr. Melamed’s declaration in opposition to defendants’ anti-
SLAPP motion, Dr. Brien began the interview by asking him:
6
“ ‘Are you going around the hospital and telling everyone that
Cedars doesn’t have the capability to do this case?’ ” In the same
declaration, Dr. Melamed stated: “In response [to the above
question], I told him [Dr. Brien] what happened during the
surgery, and explained that it had been difficult to stabilize the
patient due to the inadequate table/pads. I told him that the
nursing personnel had told me that the correct table/pads were
not available. I further told him that I had done other cases like
this at Cedars before, and had never had any problems. I also
told him that this case was supposed to be simple and
straightforward, and that if I would have had the correct
table/pads, the patient would have had a successful surgical
outcome similar to my other cases.” Dr. Melamed’s declaration
does not state what he told Dr. Brien regarding conversations
with others about equipment issues during the surgery.
According to Dr. Brien’s account of his July 14, 2011
interview with Dr. Melamed, as memorialized in Dr. Brien’s
notes, Dr. Melamed denied telling anyone, including D.W.’s
parents, that Cedars did not have available the appropriate
surgical table.4 Dr. Brien’s notes from the interview also state:
4 Dr. Brien’s notes from his July 14, 2011 interview with
Dr. Melamed are attached to his supplemental declaration, filed
with defendants’ reply brief in support of their anti-SLAPP
motion. In his original declaration in support of the anti-SLAPP
motion, Dr. Brien also discussed his July 14, 2011 interview with
Dr. Melamed. In the trial court, Dr. Melamed filed written
objections to all supplemental declarations defendants filed,
arguing it was impermissible for defendants to submit new
evidence with their reply brief. In response, defendants argued
the trial court had discretion to allow the evidence because the
evidence was responsive to matters Dr. Melamed raised for the
7
Dr. Melamed explained that he chose the Jackson table for the
surgery, as it was the table he had always used for this type of
surgery. He positioned D.W. on the Jackson table before he
operated. With hindsight, Dr. Melamed believed he should have
closed D.W. earlier and moved her to another table with bolsters
to complete the surgery. He also stated he chose the wrong table
for the surgery because he did not realize how small D.W. was in
comparison to the other patients for whom he had used a Jackson
table. Dr. Melamed also explained to Dr. Brien that after the
surgery, he asked if Cedars had available a four-poster table or a
table with gel rolls and was told Cedars had the latter. He
planned to do the corrective surgery on D.W. at Cedars in a few
days. Dr. Brien inquired about Dr. Melamed’s operating report,
which was supposed to be prepared within 24 hours of the
surgery. Dr. Melamed told Dr. Brien he would dictate the report
that evening (three days after the surgery).
Notations on Dr. Melamed’s operating report show that it
was dictated on July 14, 2011 (after his interview with Dr. Brien)
and transcribed the following day on July 15, 2011, at a time not
specified. In the operating report, Dr. Melamed described what
first time in his opposition to the anti-SLAPP motion. The trial
court agreed with defendants and overruled Dr. Melamed’s
evidentiary objections. We have no cause to review this ruling
because Dr. Melamed has presented no legal argument on the
matter to this court, only a statement in a footnote in his
supplemental opening brief upon remand, indicating he
“maintains that the Supplemental Declaration [of Dr. Brien]
should not be considered in evaluating [d]efendants’ evidence in
support of the anti-SLAPP motion.” With this statement, Dr.
Melamed has not demonstrated an abuse of discretion by the trial
court.
8
occurred during the surgery (including the unavailability of the
equipment he requested mid-surgery) and what he told D.W.’s
parents thereafter regarding “mechanical problems” with the
table and pads during surgery and his plan to request the
appropriate equipment for the corrective surgery.5 There is no
evidence in the record indicating Dr. Melamed’s operating report
was available for review before the decision to summarily
suspend his privileges was finalized.
Dr. Melamed did not document any equipment issues in the
MIDAS event reporting system or the MD Feedback Program,
two systems for reporting patient care and safety concerns, per
Cedars’s written policies.
III. The Summary Suspension and Notice of Charges
After discussing D.W.’s case with multiple physicians, Dr.
Brien formed the opinion that Dr. Melamed posed an immediate
and imminent risk to hospital patients, including D.W. whom Dr.
Melamed planned to bring back into surgery in a few days. Dr.
Brien consulted with the Chair of the Department of Surgery,
who concurred with Dr. Brien’s recommendation that Cedars’s
medical staff impose a summary suspension of Dr. Melamed’s
privileges. Both were concerned about Dr. Melamed’s judgment
in continuing the surgery although he was unable to stabilize
D.W. on the operating table. After receiving their
recommendation, defendant Dr. Neil Romanoff, the Vice
President for Medical Affairs, consulted with the Chief of Staff,
and then decided to impose the summary suspension.
5 The portions of Dr. Melamed’s operating report that are
germane to this appeal are summarized above in the section of
this opinion describing the surgery.
9
On July 15, 2011, Cedars’s medical staff sent Dr. Melamed
a Notice of Action (signed by Dr. Romanoff), informing him that,
effective immediately, his privileges to treat scoliosis and
kyphosis in adult, pediatric and adolescent patients were
summarily suspended after determination that failure to suspend
such privileges might result in imminent danger to Cedars’s
patients. The notice stated the summary suspension was based
on D.W.’s surgery, explaining: “This case raises concerns
regarding your judgment, technical skill, and competency in
managing scoliosis cases. These concerns are based on your
choice of the wrong table for the patient’s size and procedure,
your failure to adequately stabilize the patient, and your
continued attempts to manipulate the patient’s spine despite
your inability to stabilize her.[6] In addition, the surgery lasted in
excess of 11 hours, which apparently contributed to the pressure
areas [abrasions] that the patient sustained.”[7] The notice
invited Dr. Melamed to provide a written response to the charges
by July 21, 2011.
The July 15, 2011 Notice of Action also stated the medical
staff anticipated contacting Dr. Melamed within 14 days “to
provide a final determination on this action.” The notice further
informed him that if the suspension remained in effect for more
6Although Dr. Melamed had indicated to Dr. Brien on July
14, 2011 that the Jackson table he chose for D.W.’s surgery was
not the appropriate operating table given D.W.’s size, the doctor
who performed the corrective surgery on D.W. on July 18, 2011, a
couple days after Dr. Melamed’s summary suspension, used the
Jackson table.
7According to Dr. Melamed, the surgery lasted between
eight and nine hours.
10
than 14 days, Cedars would report it to the Medical Board of
California and the National Practitioner Data Bank pursuant to
Business and Professions Code section 805, and Dr. Melamed
would be entitled to request a peer review hearing.
On July 21, 2011, through his attorney, Dr. Melamed
responded to the July 15, 2011 Notice of Action in a letter to Dr.
Romanoff. Therein, Dr. Melamed denied he posed an imminent
threat to patient safety and asserted he was not afforded a
meaningful opportunity to respond to the concerns of the
Department of Surgery. He did not assert in the letter that there
were mechanical problems or equipment issues during D.W.’s
surgery. Rather, he asserted the Jackson table was “medically
appropriate for this type of surgical procedure,” and he pointed
out that the doctor who performed the subsequent corrective
surgery on D.W. also used the Jackson table. Dr. Melamed also
stated D.W. “was stabilized when the procedure commenced, and
remained stabilized for a significant period of time thereafter.”
The medical staff’s investigation continued. The medical
staff reviewed some of Dr. Melamed’s other scoliosis and kyphosis
cases and found concerns with a few of them. The medical staff
sent Dr. Melamed requests for information regarding the cases
under investigation, including D.W.’s case.
On July 27, 2011, Dr. Melamed filed a petition for a writ of
mandate (§§ 1085, 1094.5) against Cedars in the superior court
(case No. BS133178), seeking to set aside the summary
suspension and prevent Cedars from reporting the summary
suspension to the Medical Board of California or the National
Practitioners Data Bank, among other relief. He asserted the
summary suspension was improper because (1) it was imposed by
a hospital administrator and not a peer review body, and (2) he
11
was deprived of a fair procedure to challenge it. He did not assert
in the petition that there were mechanical problems or
equipment issues during D.W.’s surgery. Rather, like he did in
his July 21, 2011 letter to Dr. Romanoff (discussed above), he
asserted in the petition that the Jackson table was “medically
appropriate for this type of surgical procedure, and in fact, was
used by the surgeon who later did a revision surgery on the
patient.” He also repeated in the petition his statements that
D.W. “was stabilized when the procedure commenced” and “for a
significant . . . period of time during the procedure.”8
On July 27, 2011, the same day Dr. Melamed filed the
above-described petition for writ of mandate, Dr. Brien met with
five other physicians to review information regarding Dr.
Melamed’s patient care. Based on the information before them,
the group unanimously recommended that Dr. Melamed’s
summary suspension remain in effect due to patient safety
concerns, according to Dr. Brien’s declaration in support of
defendants’ anti-SLAPP motion. The following day, on July 28,
2011, Dr. Brien sent Dr. Melamed a letter, confirming a meeting
for the next day, and asking Dr. Melamed to provide information
Dr. Brien had previously requested regarding some of Dr.
Melamed’s scoliosis and kyphosis cases, including D.W.’s case.
On July 29, 2011, Dr. Brien and Dr. Delamarter met with
Dr. Melamed to discuss Dr. Melamed’s patient care in several
cases. According to Dr. Melamed’s declaration in opposition to
the anti-SLAPP motion, he told Drs. Brien and Delamarter
during the meeting that “it had been difficult to stabilize [D.W.]
8 In November 2011, Dr. Melamed voluntary dismissed the
action in which he filed the July 27, 2011 petition for writ of
mandate against Cedars.
12
due to the inadequate table/pads,” and “none of this would have
happened had the correct pads/table been available.” After the
meeting, Drs. Brien and Delamarter recommended the summary
suspension remain in effect.
On August 1, 2011, Cedars’s medical staff sent Dr.
Melamed an Amended Notice of Action, informing him the
summary suspension of his privileges to treat scoliosis and
kyphosis in adult, pediatric and adolescent patients remained in
effect, based on D.W.’s case as well as the other enumerated cases
the medical staff identified during its review of his other
surgeries. The amended notice also explained that Dr.
Melamed’s statements during the July 29, 2011 meeting did not
assuage the medical staff’s concerns about these cases, and the
medical staff believed failure to maintain the summary
suspension might result in imminent danger to Cedars’s patients
and employees.
The August 1, 2011 Amended Notice of Action also
informed Dr. Melamed that the summary suspension would be
reported to the Medical Board of California and the National
Practitioner Data Bank (and it was), as required by law, because
the summary suspension had been in effect for more than 14
days.9 The amended notice also apprised Dr. Melamed of his
hearing rights. Finally, the amended notice advised Dr.
Melamed to provide the information that had been requested in
earlier correspondence regarding the enumerated patient cases.
The amended notice explained that if he did not provide the
information, or the information he provided did not resolve the
medical staff’s concerns, the medical staff would recommend that
9 These reports are included in the record on appeal.
13
his privileges to treat scoliosis and kyphosis in adult, pediatric
and adolescent patients be terminated.
On August 11, 2011, Dr. Melamed sent patient medical
records to Dr. Brien with a letter explaining, “the Department
should now have all or substantially all of the salient
documentation necessary to complete a thorough review of my
performance in each case.”
IV. Peer Review Hearing and Administrative Appeal
On August 29, 2011, Dr. Melamed requested a peer review
hearing to challenge the summary suspension.
On September 21, 2011, Cedars’s medical staff sent Dr.
Melamed a Second Amended Notice of Action, informing him that
after meeting with him again and reviewing materials he
provided, the medical staff recommended his privileges to treat
scoliosis and kyphosis in pediatric patients be terminated. The
second amended notice also informed him the medical staff was
lifting the summary suspension of his privileges to treat scoliosis
and kyphosis in adult cases and imposing a proctoring
requirement with respect to such cases.10 The second amended
notice stated Cedars would construe Dr. Melamed’s August 29,
2011 request for a peer review hearing on the summary
suspension to include the recommendation for termination of
privileges and the proctoring requirement.
10 Cedars made a supplemental report to the Medical Board
of California, noting these changes to the recommendations.
14
The peer review hearing was held over multiple sessions
between September 2012 and November 2013. The Hearing
Committee heard testimony from 17 witnesses and received into
evidence around 60 exhibits.
On January 13, 2014, the Hearing Committee issued its
report. The Hearing Committee’s findings and conclusions
regarding the summary suspension state in full:
“a. Dr. Melamed admitted and performed surgery with
instrumentation and occipital fusion on adolescent scoliosis
patient [D.W.] on July 11, 2011. Before surgery, Dr. Melamed
treated [D.W.] as an outpatient in his office for several years. Dr.
Melamed’s office record satisfactorily recorded the progression of
her condition, his treatment of her and the indications for
surgery. Although clinical judgment may differ whether [D.W.]
was an appropriate candidate for surgery with her degree of
spinal curvature, the preponderance of evidence was that Dr.
Melamed’s rationale for operating on the patient was reasonable.
“b. The Department of Surgery acted reasonably in
conducting an investigation of the case because of the routine
nature of the case, unsatisfactory correction of the patient’s
spinal curvature and the harm to the patient of a worsened post-
surgical spinal curvature, pressure sores, an extended fusion, a
prolonged hospitalization and a second surgery.
“c. The ad hoc committee of the Department of Surgery
that investigated the case reasonably concluded that, based on
the information available to it at the time, (i) Dr. Melamed[]
failed initially to realize that the patient was losing position on
the operating table, (ii) Dr. Melamed extended the fusion
inappropriately and (iii) the failure to suspend Dr. Melamed’s
clinical privileges to treat patients with scoliosis or kyphosis with
15
instrumentation and with or without occipital fusion may result
in imminent danger to prospective patients.
“Based upon the foregoing findings, the [Hearing
Committee] concludes that (i) the Staff sustained its burden to
prove by a preponderance of the evidence that, based on the
information reasonably available in July of 2011, the failure to
take action may have resulted in imminent danger to the health
of a patient and it was necessary to act immediately and (ii) the
summary suspension of Dr. Melamed’s clinical privileges to treat
scoliosis and kyphosis with instrumentation with or without
occipital fusion in adult, adolescent and pediatric patients was
reasonable and warranted.” The Hearing Committee further
recommended the summary suspension now be terminated and
Dr. Melamed’s privileges be reinstated.
As stated in the January 13, 2014 report, the Hearing
Committee also made findings and conclusions regarding
Cedars’s medical staff’s recommendations in the September 21,
2011 Second Amended Notice of Action: (1) that Dr. Melamed’s
privileges to treat scoliosis and kyphosis in adolescent and
pediatric patients be terminated and (2) that Level III proctoring
be imposed with respect to Dr. Melamed’s privileges to treat
scoliosis and kyphosis in adult patients. The Hearing Committee
concluded the above-described recommendation regarding
termination of privileges “was not reasonable and warranted.
However, it would be reasonable and warranted for the Medical
Executive Committee to authorize a prospective review of the
clinical management of Dr. Melamed’s pediatric and adolescent
scoliosis cases by a method to be determined by the Department
of Orthopedic Surgery.” The Hearing Committee concluded the
16
above-described recommendation regarding Level III proctoring
“should not be imposed.”
Cedars’s Medical Executive Committee “endorsed” the
findings, conclusions, and recommendations in the Hearing
Committee’s report.
Through the administrative process, Dr. Melamed appealed
the Hearing Committee’s findings and conclusions regarding the
summary suspension and the recommendation for prospective
review of the clinical management of his pediatric and adolescent
scoliosis cases. Both Cedars’s Appeal Committee and later its
Board of Directors upheld the Hearing Committee’s findings,
conclusions, and recommendations.
V. The Present Action
On July 11, 2014, Dr. Melamed filed this action. In his first
amended complaint, filed on July 21, 2014, he asserted causes of
action against defendants for: (1) retaliation against a
whistleblower in violation of Health and Safety Code section
1278.5; (2) tortious interference with prospective economic
relations; (3) tortious interference with contractual relations; (4)
unfair competition in violation of Business and Professions Code
section 17200 et seq.; (5) violation of the Cartwright Act (Bus. &
Prof. Code, § 16700 et seq.; (6) retaliation against a health care
practitioner who advocates for appropriate health care for a
patient in violation of Business and Professions Code sections 510
et seq. and 2056 et seq.; and (7) wrongful termination of hospital
privileges.
Dr. Melamed alleged he “identified, reported and disclosed
certain suspected unsafe and substandard conditions and
services at [Cedars] that were a threat to patient care and
safety.” He did not describe these alleged conditions and services
17
in the first amended complaint. He asserted defendants engaged
in the following wrongful conduct to harass, exclude, humiliate,
intimidate, and retaliate against him for identifying, reporting,
and disclosing the unspecified unsafe and substandard conditions
and services at Cedars:
“(1) Suspending [his] medical staff privileges to treat
scoliosis and kyphosis with instrumentation with or without
occipital fusion in adult, pediatric and adolescent patients[;]
“(2) Unilaterally taking retaliatory action against [him]
without affording him due process, a hearing, an investigation, or
any other meaningful opportunity or procedural protection for
[him] to address the summary suspension before it was issued[;]
“(3) Reporting [his] summary suspension 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 [him] to a lengthy and humiliating peer review process
for over two years, and by refusing to lift [his] summary
suspension despite recommendations by several separate
boards/committees to do so[;]
“(5) Ongoing hostility in the work environment;
“(6) Obstructing other economic and career opportunities
for [him];
“(7) Failing to protect [him] from retaliation for
whistleblowers and adverse actions;
“(8) Intolerable working conditions; and [sic]
“(9) Engaging in a campaign of character assassination
which caused irreparable damage to [his] reputation;
“(10) Depriving [him] of his property right and interest to
use certain hospital facilities and privileges[;]
18
“(11) Interfering with [his] right to practice his occupation[;
and]
“(12) Wrongfully terminating [his] hospital privileges[.]”
In this action, filed three years after D.W.’s surgery, was
the first time Dr. Melamed claimed defendants imposed the
summary suspension (and upheld it) in retaliation because he
reported patient safety concerns—i.e., the unavailability of
adequate equipment during D.W.’s surgery.
VI. Defendants Anti-SLAPP Motion
A. Moving papers
Under section 425.16—the anti-SLAPP statute—a “cause of
action against a person 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 shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).)
In September 2014, defendants filed an anti-SLAPP
motion, contending the trial court should strike all causes of
action in Dr. Melamed’s first amended complaint under section
425.16 because they all arose from protected activity—the peer
review process—and Dr. Melamed would not be able to meet his
burden of showing a probability of success on the merits of any
cause of action. Defendants cited Kibler v. Northern Inyo County
Local Hospital Dist. (2006) 39 Cal.4th 192, 198 (Kibler), in which
our Supreme Court held “a lawsuit arising out of a [hospital
disciplinary] peer review proceeding is subject to a special motion
under section 425.16 to strike the SLAPP suit.” In anticipation of
Dr. Melamed’s opposition to the anti-SLAPP motion and his
19
attempt to show a probability of success on the merits,
defendants argued this action is barred as a matter of law by
failure to exhaust judicial remedies and the statute of
limitations.11
B. Dr. Melamed’s opposition
In his opposition, Dr. Melamed argued defendants’ conduct
alleged in the first amended complaint—retaliation against him
for reporting patient safety concerns at Cedars—did not arise
from the peer review process or any other activity protected
under the anti-SLAPP statute. He stated the peer review
“proceedings were simply one of the manifestations of defendants’
retaliatory and tortious conduct directed at [him].” On the
merits, Dr. Melamed asserted he had a probability of prevailing
on his claims because: (1) he was not required to exhaust judicial
remedies because the present action does not challenge his
summary suspension or any of the peer review findings; (2) none
of his causes of action is barred by the statute of limitations;12 (3)
regardless of the applicable statute of limitations, his causes of
action survive under equitable tolling and continuing violation
doctrines; and (4) he presented sufficient evidence supporting
11 In the anti-SLAPP motion, in support of their arguments
as to the merits of Dr. Melamed’s causes of action, defendants
referred the trial court to arguments they made in their demurer,
which was filed before the anti-SLAPP motion and set to be
heard on the same date. Defendants included the demurrer in
their Respondent’s Appendix on appeal.
12Dr. Melamed argued the three-year statute of limitations
under section 338 applies to his first and sixth causes of action—
the statutory retaliation claims.
20
each element of his claims to show a probability of prevailing on
the merits.13
Dr. Melamed submitted his own declaration, with attached
exhibits, in support of his opposition to the anti-SLAPP motion.14
Therein, he stated his inability to stabilize D.W.’s pelvis during
the surgery, and the worsening of the scoliosis and arch in her
back as a result of the surgery, were “solely caused by the
inadequate table and pads and not due to [his] judgment or
technical skills.” He added: “I believed that the inadequate and
substandard hospital equipment which caused these
intraoperative issues constituted serious patient safety concerns
that were unsafe and posed a significant health risk for current
and future patients utilizing the services and medical facilities at
Cedars.” Therefore, he told the patient’s parents, “[W]e had some
mechanical problems with the table and pads during surgery.”
When Dr. Brien contacted him on July 14, 2011 to interview him
as part of the peer review investigation, he told Dr. Brien “it had
been difficult to stabilize [D.W.] due to the inadequate
table/pads,” and “if [he] would have had the correct table/pads,
[D.W.] would have had a successful surgical outcome similar to
[his] other cases.” In his operating report, dictated after his July
14, 2011 interview with Dr. Brien and transcribed on July 15,
13 In support of his arguments as to the merits of his causes
of action, Dr. Melamed referred the trial court to arguments he
made in his opposition to defendants’ demurer. Defendants
included that opposition in their Respondent’s Appendix on
appeal.
14Some of the statements in Dr. Melamed’s declaration are
quoted above in the background chronology of events and are not
repeated here.
21
2011 (the same day the summary suspension was imposed), Dr.
Melamed discussed the unavailability of the equipment he
requested mid-surgery, as well as his statements to D.W.’s
parents regarding the mechanical problems with the equipment
and his plan to request the appropriate equipment for the
corrective surgery.
Dr. Melamed claims in his declaration that the July 15,
2011 summary suspension of his privileges “was done in
retaliation for [his] reports regarding the inadequate and
substandard hospital equipment at Cedars.” On July 29, 2011,
during an interview with Drs. Brien and Delamarter as part of
the peer review process, Dr. Melamed repeated the comments he
had made to Dr. Brien on July 14, 2011 regarding the equipment
issues during D.W.’s surgery. Dr. Melamed further claims in his
declaration that the medical staff’s decision to “to keep the
summary suspension in effect” for more than 14 days,
necessitating reports to the Medical Board of California and the
National Practitioner Data Bank, “constituted retaliation against
[him] for [his] reports of patient safety concerns at Cedars.” He
also claims the amended notices of charges and lengthy peer
review hearing and appeals were the result of retaliation for the
same reports of patient safety concerns.
Dr. Melamed attached to his declaration an August 23,
2011 letter from Saint John’s Health Center (Saint John’s),
stating that his privileges to perform surgeries at Saint John’s
were summarily suspended based on: (1) his summary
suspension at Cedars; (2) his failure to disclose the Cedars
summary suspension to Saint John’s medical staff as required by
the medical staff bylaws; and (3) “the adverse outcome of [a]
spinal patient” Dr. Melamed treated at Saint John’s. He also
22
attached to his declaration an October 21, 2013 letter from
Coventry Health Care National Network, stating his application
for inclusion in the network was denied “based on a history of
hospital privilege issues.”
Dr. Melamed further stated in his declaration: “I was also
placed on monitoring at Marina Del Rey hospital [sic] and
Olympia Medical Center because of Cedars’[s] retaliatory actions
against me. At Olympia Medical Center, I was told in writing
that I can’t do any spine cases by myself and always must have
another spine surgeon present as an assistant. Every time I
apply for reappointment at any medical facility, I will have to
explain why I was suspended at Cedars. In addition, although
Defendant Cedars reinstated my privileges in May of 2014, I can
no longer practice there because of ongoing hostility in the work
environment and fear of further retaliation against me.”
C. Defendants’ reply
In the reply brief in support of the anti-SLAPP motion,
defendants argued the following, in pertinent part, in response to
Dr. Melamed’s showing as to the merits of his claims: (1) Dr.
Melamed’s second through seventh causes of action are barred by
his failure to exhaust judicial remedies because he did not file a
petition for writ of administrative mandate under section 1094.5
to overturn the peer review decision; (2) his first and sixth causes
of action—the statutory retaliation claims—fail because he did
not make a complaint or report regarding patient safety concerns
within the meaning of the statutes; (3) the first and sixth causes
of action are barred by the two-year statute of limitations under
section 340; and (4) the second and third causes of action for
tortious interference with economic and contractual relations fail
because defendants are immune from liability for making reports
23
to the Medical Board of California and National Practitioner
Data Bank.
D. Trial court’s ruling on the anti-SLAPP motion
On February 23, 2015, the trial court heard oral argument
from the parties on defendants’ demurrer to Dr. Melamed’s first
amended complaint and defendants’ anti-SLAPP motion. On
February 27, 2015, the trial court issued a ruling and a signed
order, granting defendants’ anti-SLAPP motion, dismissing Dr.
Melamed’s first amended complaint with prejudice, and stating
defendants were entitled to recover their attorney fees. The court
overruled defendants’ demurrer as moot.
In granting the anti-SLAPP motion, the trial court found
defendants demonstrated this action “revolves around [Cedars]’s
summary suspension, governmental report [to the Medical Board
of California and the National Practitioner Data Base], and peer
review proceedings, which are all protected activity” under the
anti-SLAPP statute. On the second step of the anti-SLAPP
analysis, the trial court found Dr. Melamed did not show a
probability that he could succeed on any of the causes of action in
his first amended complaint because: (1) the second through
seventh causes of action are barred by his failure to exhaust
judicial remedies because he “did not overturn any aspect of the
peer review process”; and (2) his first cause of action for
retaliation against a whistleblower in violation of Health and
Safety Code section 1278.5 fails because he “has not presented
evidence supporting a prima facie case.”
VII. Our February 27, 2017 Opinion in This Appeal
Dr. Melamed appealed from the trial court’s order on the
anti-SLAPP motion. On February 27, 2017, we issued a
published opinion in this case, affirming the trial court’s order.
24
We concluded all causes of action in Dr. Melamed’s first amended
complaint arise from protected activity within the meaning of the
anti-SLAPP statute because they arise out of the hospital’s peer
review process in relation to a summary suspension, and the act
of summarily suspending Dr. Melamed’s privileges was a part of
the peer review process.
On the second step of the anti-SLAPP analysis, we
concluded Dr. Melamed cannot show a probability of prevailing
on his cause of action for retaliation against a whistleblower in
violation of Health and Safety Code section 1278.5 because he did
not show that he presented a grievance, complaint, or report to
Cedars or the medical staff regarding the quality of patient care,
within the meaning of the statute, or that the hospital retaliated
against him for doing so. We also concluded he cannot show a
probability of prevailing on his remaining causes of action
because he did not exhaust his judicial remedies by seeking
mandamus review of the peer review determinations.
In support of our conclusion Dr. Melamed’s causes of action
arise from protected activity under the anti-SLAPP statute, we
relied on Kibler, supra, 39 Cal.4th at page 198, in which our
Supreme Court held “a lawsuit arising out of a [hospital
disciplinary] peer review proceeding is subject to a special motion
under section 425.16 to strike the SLAPP suit.” We also relied on
Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204
Cal.App.4th 65, 78 (Nesson), in which the Fourth District Court
of Appeal characterized Kibler as holding that hospital peer
review proceedings, including the discipline imposed upon a
physician, constitute official proceedings authorized by law, and
thus constitute protected activity under the anti-SLAPP statute.
On May 4, 2017, a little over a month after we issued our
25
February 27, 2017 opinion in this case, our Supreme Court
clarified the scope of Kibler and disapproved Nesson in Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057 (Park), a case in which a professor filed a discrimination
action against a university that denied his application for tenure.
The Supreme Court explained in Park, supra, 2 Cal.5th
1057 that “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 to some different act for which liability
is asserted.” (Id. at p. 1060.) In concluding the professor alleged
conduct by the university that is not protected under the anti-
SLAPP statute, the Supreme Court explained, “What gives rise to
liability is not that the defendant spoke, but that the defendant
denied the plaintiff a benefit, or subjected the plaintiff to a
burden, on account of a discriminatory or retaliatory
consideration.” (Id. at p. 1066.) The Court also stated, “Kibler
does not stand for the proposition that disciplinary decisions
reached in a peer review process, as opposed to statements in
connection with that process, are protected.” (Id. at p. 1070.)
The Court disapproved Nesson as having “overread” Kibler.
(Kibler, supra, 39 Cal.4th at p. 1070.)
Dr. Melamed filed a petition for review of our February 27,
2017 decision. On June 21, 2017, the Supreme Court issued an
order granting the petition for review and transferring the matter
to this court for reconsideration in light of Park, supra, 2 Cal.5th
1057.
26
VIII. Our October 6, 2017 Opinion in This Appeal
On October 6, 2017, we issued an unpublished opinion in
this case reversing the trial court’s order granting defendants’
anti-SLAPP motion, upon reconsideration in light of Park, supra,
2 Cal.5th 1057. We concluded Dr. Melamed’s claims do not arise
from protected activity under the anti-SLAPP statute because the
basis for Dr. Melamed’s assertion of liability is defendants’
alleged retaliatory motive in suspending Dr. Melamed and
subjecting him to a lengthy and allegedly abusive peer review
proceeding. We relied on Bonni v. St. Joseph Health System
(2017) 13 Cal.App.5th 851, 861, a decision issued by the Fourth
District Court of Appeal a couple months before our October 6,
2017 opinion, which concluded the anti-SLAPP statute does not
apply to a surgeon’s cause of action for retaliation against a
whistleblower in violation of Health and Safety Code section
1278.5 because the claim “arises from defendants’ retaliatory
purpose or motive, and not from how that purpose is carried out,
even if by speech or petitioning activity” in connection with peer
review proceedings. On November 1, 2017, the Supreme Court
granted review in Bonni.
Defendants filed a petition for review of our October 6, 2017
decision. The Supreme Court granted the petition and deferred
further action in the matter pending consideration and
disposition of related issues in Wilson, supra, 7 Cal.5th 871 and
then Bonni, supra, 11 Cal.5th 995. As discussed in more detail
below, the Supreme Court held in Wilson that allegations of
discriminatory or retaliatory motive do not exclude a claim from
the scope of the anti-SLAPP statute if the conduct is otherwise
protected under the statute, expressly disapproving the Fourth
District Court of Appeal’s decision in Bonni v. St. Joseph Health
27
System, supra, 13 Cal.App.5th 851. (Wilson, at pp. 881, 892.) In
Bonni, the Supreme Court discussed “the scope and limits” of the
anti-SLAPP statute’s protections for conduct “in connection with
hospital peer review.” (Bonni, at p. 1004.)
On September 15, 2021, the Supreme Court transferred
this matter back to this court for reconsideration in light of the
Court’s decisions in Wilson and Bonni.
IX. Dr. Melamed’s May 2017 Petition for a Writ of
Administrative Mandate
We briefly discuss here another case Dr. Melamed filed
that is germane to our analysis in this appeal. On May 4, 2017,
while the present matter was pending in the Supreme Court the
first time, Dr. Melamed filed in the superior court a petition for a
writ of administrative mandate against Cedars and its Board of
Directors, challenging the summary suspension of his privileges
(case No. BS169534). In his opening brief in support of the
petition, he explained he was not challenging the July 15, 2011
decision to impose the summary suspension; rather, he was
challenging the August 1, 2011 decision to continue the summary
suspension for more than 14 days, necessitating reports to the
Medical Board of California and the National Practitioner Data
Base. The trial court denied the petition on multiple grounds,
including that Dr. Melamed failed to exhaust his administrative
remedies because, during the peer review hearing, he did not
challenge the August 1, 2011 decision to continue the summary
suspension; his only challenge to the summary suspension during
the peer review hearing was to the July 15, 2011 decision to
impose the summary suspension. On March 22, 2021, we issued
an unpublished opinion dismissing Dr. Melamed’s appeal from
the order denying his petition because he failed to exhaust his
28
administrative remedies. (Melamed v. Cedars-Sinai Medical
Center (Mar. 22, 2021, B292794) [nonpub. opn.].)15
DISCUSSION
I. Anti-SLAPP Analysis and Standard of Review
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.”
(Wilson, supra, 7 Cal.5th at pp. 883-884.) Thus, a “cause of action
against a person 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 shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).) With exceptions
not relevant here, “a prevailing defendant on a special motion to
strike shall be entitled to recover his or her attorney’s fees and
costs.” (§ 425.16, subd. (c)(1).)
In evaluating an anti-SLAPP motion, courts conduct a two-
step analysis. First, the court decides whether a defendant has
met its “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, quoting § 425.16,
subd. (b)(1).) For these purposes, protected activity “includes: (1)
any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement
or writing made in connection with an issue under consideration
15On this court’s own motion, we take judicial notice of our
above-referenced opinion in case number B292794.
29
or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest, or (4)
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.” (§ 425.16, subd. (e).)
Second, if a defendant meets its burden on the threshold
showing, the court decides if the plaintiff “has established that
there is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) To satisfy this burden, the plaintiff
“ ‘must demonstrate that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’ ” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291.) At this stage of the proceedings, a
plaintiff “need only establish that his or her claim has ‘minimal
merit.’ ” (Ibid.) Although “ ‘the court does not weigh the
credibility or comparative probative strength of competing
evidence, it should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.’ ” (Ibid.)
“In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).)
“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,
30
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.” (Bonni,
supra, 11 Cal.5th at p. 1010, citing Baral v. Schnitt (2016) 1
Cal.5th 376, 393-395 (Baral).) “[T]o the extent any acts are
unprotected, the claims based on those acts will survive.” (Bonni,
at p. 1012.)
We review the trial court’s order granting the anti-SLAPP
motion de novo, applying the same two-step analysis. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
II. Wilson and Bonni
Both Wilson and Bonni concern only the first step of the
anti-SLAPP analysis—evaluating whether the plaintiff’s claim
arises from any act of the defendant “in furtherance of the
defendant’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).)
In Wilson, our Supreme Court concluded the anti-SLAPP
“statute contains no exception for discrimination or retaliation
claims, and in some cases the actions a plaintiff alleges in
support if his or her claim may qualify as protected speech or
petitioning activity under section 425.16. In such cases, the
plaintiff’s allegations about the defendant’s invidious motives will
not shield the claim from the same preliminary screening for
minimal merit that would apply to any other claim arising from
protected activity.” (Wilson, supra, 7 Cal.5th at p. 881.) “[E]ven
if a plaintiff’s discrimination [or retaliation] claim can be said to
be based in part on the employer’s purported wrongful motives, it
31
is necessarily also based on the employer’s alleged acts—that is,
the various outward ‘manifestations’ of the employer’s alleged
wrongful intent, such as failing to promote, giving unfavorable
assignments, or firing.” (Id. at pp. 886-887.) “If 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.) “The defendant’s first-step burden is to identify the
activity each challenged claim rests on and demonstrate that that
activity is protected by the anti-SLAPP statute.” (Id. at p. 884.)
In Bonni, the Supreme Court reiterated that hospital “peer
review proceedings are ‘official proceeding[s]’ within the meaning
of section 425.16, subdivision (e)(2).” (Bonni, supra, 11 Cal.5th at
p. 1013, citing Kibler, supra, 39 Cal.4th at p. 201.) The Court
explained “the anti-SLAPP statute is potentially applicable in
cases arising from hospital peer review,” but the “scope of the
statute’s protections” depends on whether the plaintiff’s claim is
“based on protected speech and petitioning activity in connection
with peer review proceedings” or “the disciplinary actions that
result.” (Bonni, at p. 1014.) Claims based on resulting
disciplinary action are not protected under the anti-SLAPP
statute. (Id. at p. 1026 [“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”].)
32
Like Dr. Melamed, the plaintiff in Bonni alleged defendant
hospitals retaliated against him for raising patient care concerns
by engaging in a list of “principal adverse actions or categories of
conduct.” (Bonni, supra, 11 Cal.5th at p. 1015.) The Bonni Court
reviewed the list of acts on which the plaintiff based his
retaliation claims and decided on which acts defendant hospitals
met their burden of demonstrating the alleged activity was
protected under the anti-SLAPP statute. The Court explained:
“It does not matter that other unprotected acts may also have
been alleged within what has been labeled a single cause of
action; these are ‘disregarded at this stage.’ [Citation.] So long
as a ‘court determines that relief is sought based on allegations
arising from activity protected by the statute, the second step [of
the anti-SLAPP analysis] is reached’ with respect to these
claims.” (Id. at p. 1010, quoting Baral, supra, 1 Cal.5th at p.
396.)
Below, we apply the Supreme Court’s rationale to Dr.
Melamed’s list of defendants’ alleged retaliatory acts.
III. First Step Anti-SLAPP Analysis
As set forth above, each cause of action in Dr. Melamed’s
first amended complaint is based on the same list of 12 wrongful
acts allegedly committed by defendants. Our task in the first
step of the anti-SLAPP analysis is to determine whether each
alleged act describes activity protected under the anti-SLAPP
statute, applying the Supreme Court’s rationale in Bonni.
A. Alleged conduct that Dr. Melamed and
defendants agree is not protected by the anti-
SLAPP statute under Bonni’s rationale
The parties agree, as do we, that under the Supreme
Court’s rationale, alleged conduct constituting “disciplinary
33
actions”—rather than “statements made in the course of hospital
peer review proceedings”—is not protected activity under the
anti-SLAPP statute. (Bonni, supra, 11 Cal.5th at pp. 1019-1023,
1026.) Thus, the following conduct alleged in Dr. Melamed’s 12-
part list of defendants’ alleged retaliatory acts is not subject to
defendants’ special motion to strike:16
“(1) Suspending [his] medical staff privileges to treat
scoliosis and kyphosis with instrumentation with or without
occipital fusion in adult, pediatric and adolescent patients”;
“(10) Depriving [him] of his property right and interest to
use certain hospital facilities and privileges”; and
“(12) Wrongfully terminating [his] hospital privileges[.]”
Claims based on these alleged acts survive defendants’
anti-SLAPP motion. Accordingly, we reverse, in part, the trial
court’s order granting the motion.
B. Alleged conduct that Dr. Melamed and
defendants agree is protected by the anti-
SLAPP statute under Bonni’s rationale
As the parties acknowledge, the Supreme Court made clear
in Bonni that the following conduct alleged in Dr. Melamed’s 12-
part list of defendants’ alleged retaliatory acts is protected by the
anti-SLAPP statute:
“(3) Reporting [his] summary suspension 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 [him] to a lengthy and humiliating peer review process
16For ease of reference, we number the alleged acts
according to their enumerated numerical order in Dr. Melamed’s
first amended complaint.
34
for over two years, and by refusing to lift [his] summary
suspension despite recommendations by several separate
boards/committees to do so”;17 and
“(9) Engaging in a campaign of character assassination
which caused irreparable damage to [his] reputation[.]”
As the Supreme Court explained, reports to the Medical
Board of California and National Practitioner Data Bank, “which
were required by law [citations], are written statements to the
state’s licensing agency concerning restrictions imposed on [a
physician] by a peer review body for allegedly providing
substandard care” and are protected under section 425.16,
subdivision (e)(2) as “ ‘statement[s] or writing[s] made in
connection with an issue under consideration’ in an ‘official
proceeding.’ ” (Bonni, supra, 11 Cal.5th at p. 1017, quoting
section 425.16, subd. (e)(2).)
The Supreme Court further explained that the following
conduct is also protected under section 425.16, subdivision (e)(2):
“subjecting [a physician] to a ‘lengthy and humiliating peer
review process’ ”; and the hospital’s “appellate committee’s
arguments before the peer review panel that the suspension
should be upheld, as well as [the hospital]’s appellate committee’s
recommendation that some of the preliminary findings reached
17 Dr. Melamed concedes this conduct is protected by the
anti-SLAPP statute, acknowledging this allegation is not about
the discipline itself—the summary suspension—but about the
positions defendants took during the peer review process. As set
forth above, the imposition of the summary suspension and any
other disciplinary actions are not protected by the anti-SLAPP
statute.
35
by that peer review panel be reversed.” (Bonni, supra, 11 Cal.5th
at pp. 1017-1018.)
Finally, the Supreme Court explained that the physician’s
claim of “ ‘character assassination’ ” describes “quintessential
speech activities” and is “protected under section 425.16,
subdivision (e)(2) to the extent the speech was made in
connection with peer review.” (Bonni, supra, 11 Cal.5th at p.
1016.)
Dr. Melamed concedes these alleged acts—enumerated in
his first amended complaint as acts (3), (4), and (9), and quoted
above—are protected by the anti-SLAPP statute. Accordingly, we
proceed to the second step of the anti-SLAPP analysis with
respect to claims based on these alleged acts.
C. The remaining six categories of alleged conduct
about which the parties disagree on the
application of the anti-SLAPP statute under
Bonni’s rationale
Dr. Melamed asserts the Supreme Court in Bonni
concluded the other six categories of conduct Dr. Melamed alleged
in his first amended complaint are not protected by the anti-
SLAPP statute. Not so. The Supreme Court concluded the
hospital defendants in Bonni did not meet their burden of
establishing certain alleged acts are protected by the anti-SLAPP
statute: “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
36
each of these allegations entails protected activity. [Citation.] 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.” (Bonni, supra, 11 Cal.5th at
pp. 1023-1024.)
Here, we are tasked with deciding whether defendants met
their burden of establishing the six remaining alleged retaliatory
acts arise from protected activity. We address the alleged acts in
the order they were listed in the first amended complaint.
“(2) Unilaterally taking retaliatory action against [Dr.
Melamed] without affording him due process, a hearing, an
investigation, or any other meaningful opportunity or procedural
protection for [him] to address the summary suspension before it
was issued[.]” As defendants point out, the conduct at issue here
is not the discipline resulting from the peer review process—the
summary suspension—which we already addressed above as
unprotected activity. Here, Dr. Melamed is alleging the peer
review process—an official proceeding authorized by law within
the meaning of section 425.16, subdivision (e)(2)—was unfair.
Thus, he is challenging defendants’ “speech and petitioning
activity taken in connection with an official proceeding,” conduct
the anti-SLAPP statute protects. (Bonni, supra, 11 Cal.5th at p.
1014.) Accordingly, we proceed to step two of the anti-SLAPP
analysis with respect to claims based on this alleged conduct.
“(5) Ongoing hostility in the work environment[.]” As
defendants argue, to the extent this alleged conduct results from
defendants’ disciplinary actions, it is not protected by the anti-
SLAPP statute; to the extent it arises from defendants’ speech or
37
petitioning activity in connection with the peer review
proceedings, it is protected. Accordingly, we proceed to step two
of the anti-SLAPP analysis with respect to claims based on the
latter type of conduct.
“(6) Obstructing other economic and career opportunities
for [him.]” Dr. Melamed alleges other hospitals either took
adverse action against him or refused to grant him privileges to
practice due to the summary suspension of his privileges at
Cedars. As defendants have shown, based on the evidence Dr.
Melamed presented, the only action defendants took which led to
other hospitals finding out about the summary suspension at
Cedars was reporting the summary suspension to the Medical
Board of California and the National Practitioner Data Bank. As
discussed above, making such reports is protected activity under
the anti-SLAPP statute. (Bonni, supra, 11 Cal.5th at p. 1017.)
Accordingly, we proceed to step two of the anti-SLAPP analysis
with respect to claims based on this alleged conduct.
“(7) Failing to protect [him] from retaliation for
whistleblowers and adverse actions[.]” As defendants argue, to
the extent the alleged retaliation is defendants’ disciplinary
actions, it is not protected by the anti-SLAPP statute; to the
extent the alleged retaliation is the conduct arising from
defendants’ speech or petitioning activity in connection with the
peer review proceedings (as specified in this opinion), it is
protected. Accordingly, we proceed to step two of the anti-SLAPP
analysis with respect to claims based on the latter type of
conduct.
“(8) Intolerable working conditions[.]” As defendants
argue, to the extent this alleged conduct results from defendants’
disciplinary actions, it is not protected by the anti-SLAPP
38
statute; to the extent it arises from defendants’ speech or
petitioning activity in connection with the peer review
proceedings, it is protected. Accordingly, we proceed to step two
of the anti-SLAPP analysis with respect to claims based on the
latter type of conduct.
“(11) Interfering with [his] right to practice his occupation.”
As defendants argue, to the extent this alleged conduct refers to
Dr. Melamed’s ability to practice at Cedars as a result of the
discipline imposed, it is not protected by the anti-SLAPP statute;
to the extent it refers to his ability to practice at other hospitals,
it is protected. As defendants have shown, based on the evidence
Dr. Melamed presented, the only actions defendants took that
allegedly interfered with Dr. Melamed’s ability to practice at
other hospitals were reporting the summary suspension to the
Medical Board of California and the National Practitioner Data
Bank and speech and petitioning activity in connection with the
peer review proceedings—conduct that is protected by the anti-
SLAPP statute. (Bonni, supra, 11 Cal.5th at pp. 1016-1017.)
Accordingly, we proceed to step two of the anti-SLAPP analysis
with respect to claims based on the latter type of conduct.
To summarize, we conclude the following alleged conduct is
not protected by the anti-SLAPP statute and survives the anti-
SLAPP motion: the summary suspension of Dr. Melamed’s
privileges at Cedars; hostility in the work environment and
intolerable working conditions at Cedars resulting from
defendants’ disciplinary actions; failure to protect Dr. Melamed
from retaliatory disciplinary actions at Cedars; deprivation of his
property right and interest to use Cedars’s facilities and
privileges; interference with his ability to practice his occupation
39
at Cedars as a result of defendants’ disciplinary actions; and
wrongful termination of his hospital privileges at Cedars.18
We conclude the following alleged conduct is protected by
the anti-SLAPP statute, and we proceed to step two of the anti-
SLAPP analysis with respect to claims based on this conduct:
taking retaliatory action against Dr. Melamed without affording
him due process, etc.; reporting the summary suspension to the
Medical Board of California and the National Practitioner Data
Bank; subjecting him to a lengthy and humiliating peer review
process; hostility in the work environment arising from the peer
review process; obstructing other economic and career
opportunities; failing to protect him from retaliatory conduct
arising from defendants’ speech or petitioning activity in
connection with the peer review proceedings (not the discipline
itself); engaging in a campaign of character assassination; and
interfering with his ability to practice at other hospitals.
18 Cedarsdid not terminate Dr. Melamed’s privileges, but
he claims he can no longer practice there due to hostility in the
work environment and intolerable working conditions.
40
IV. Second Step Anti-SLAPP Analysis19
The Supreme Court’s review of this case (and Wilson and
Bonni) was limited to the first step of the anti-SLAPP analysis.
The parties fully briefed the second step analysis before we
issued our February 27, 2017 opinion, in which we reached the
second step. The parties submitted additional briefing upon
remand addressing the second step. We have no cause to alter
our prior analysis concluding Dr. Melamed has not established a
probability he will prevail on any claim based on alleged conduct
protected under the anti-SLAPP statute, as we discuss more fully
below.
A. Dr. Melamed has not established a prima facie
case of a violation of Health and Safety Code
section 1278.5
Dr. Melamed’s first cause of action for retaliation against a
whistleblower in violation of Health and Safety Code section
1278.5 is based in part on the conduct described above that we
have concluded is protected by the anti-SLAPP statute. Health
and Safety Code section 1278.5 provides, in pertinent part:
19 Dr. Melamed urges this court not to address the second
step anti-SLAPP analysis, representing in a brief upon remand
that he will dismiss claims based on conduct this court
determines is protected by the anti-SLAPP statute. Defendants
object to such an approach, arguing Dr. Melamed may not amend
his complaint on appeal to avoid a decision on the probability of
his prevailing on causes of action which are based not only on
conduct protected by the anti-SLAPP statute, but also
unprotected conduct that will not be stricken from the complaint
pending further proceedings on those causes of action in the trial
court. We have no cause to decide only half of the issues before
us on appeal.
41
“(a) The Legislature finds and declares that it is the public
policy of the State of California to encourage patients, nurses,
members of the medical staff, and other health care workers to
notify government entities of suspected unsafe patient care and
conditions. The Legislature encourages this reporting in order to
protect patients and in order to assist those accreditation and
government entities charged with ensuring that health care is
safe. The Legislature finds and declares that whistleblower
protections apply primarily to issues relating to the care,
services, and conditions of a facility and are not intended to
conflict with existing provisions in state and federal law relating
to employee and employer relations.
“(b)(1) No health facility shall discriminate or retaliate, in
any manner, against any patient, employee, member of the
medical staff, or any other health care worker of the health
facility because that person has done either of the following:
“(A) Presented 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.
“(B) Has initiated, participated, or cooperated in an
investigation or administrative proceeding related to the quality
of care, services, or conditions at the facility that is carried out by
an entity or agency responsible for accrediting or evaluating the
facility or its medical staff, or governmental entity.
“(2) No entity that owns or operates a health facility, or
that owns or operates any other health facility, shall discriminate
or retaliate against any person because that person has taken
any actions pursuant to this subdivision.”
42
Dr. Melamed alleges in the first amended complaint that
defendants retaliated against him (by engaging in both protected
and unprotected activity under the anti-SLAPP statute) because
he “identified, reported and disclosed certain suspected unsafe
and substandard conditions and services at [Cedars] that were a
threat to patient care and safety.” Dr. Melamed did not present
evidence in connection with defendants’ anti-SLAPP motion
establishing a prima facie case that he presented a grievance,
complaint, or report to Cedars or its medical staff regarding the
quality of patient care, within the meaning of Health and Safety
Code section 1278.5, and defendants retaliated against him for
doing so. There is no evidence in the record before us of such a
grievance, complaint, or report.
The evidence presented in connection with defendants’
anti-SLAPP motion demonstrates Dr. Melamed approved the use
of the Jackson table and the hip and thigh pads for D.W.’s
surgery. Dr. Melamed positioned D.W. on the Jackson table and
was satisfied with the stability of her position at the outset of the
surgery.
Defendants presented evidence in support of their anti-
SLAPP motion demonstrating there are two systems for
reporting patient care and safety concerns, per Cedars’s written
policies: the MIDAS event reporting system and the MD
Feedback Program. Dr. Melamed did not utilize either to report
the alleged inadequate equipment during D.W.’s surgery.
Rather, the peer review process concerning Dr. Melamed
commenced after a nurse filed a formal electronic incident report
through the MIDAS event reporting system regarding D.W.’s
surgery and an operating room manager contacted Dr. Brien—
43
the physician responsible for initiating the investigation at the
outset of the peer review process—to report the surgery.
In his appellant’s opening brief in this appeal, Dr. Melamed
asserts he “presented his concern about the hospital’s inadequate
equipment in numerous ways.” First, he asked the operating
room nursing staff mid-surgery if there were different hip and
thigh pads and a different operating table available. He does not
explain how a request for different equipment—after he approved
the original equipment—could be construed as a grievance,
complaint, or report about patient safety concerns within the
meaning of Health and Safety Code section 1278.5, and we can
conceive of no way to construe it as such.
Second, Dr. Melamed states he told D.W.’s parents there
were some mechanical problems with the table and pads during
surgery, and he would request the appropriate table and pads
from Cedars and bring D.W. back into the operating room at
Cedars soon for a corrective surgery. A grievance, complaint, or
report about patient care safety concerns, within the meaning of
Health and Safety Code section 1278.5, must be made to the
hospital, its medical staff, an entity or agency responsible for
accrediting or evaluating the hospital, or some other
governmental entity. (Health & Saf. Code, § 1278, subd.
(b)(1)(A).) A grievance, complaint, or report to the parents of a
patient does not qualify under the express requirements of the
statute. Moreover, Dr. Melamed’s statements to D.W.’s parents
do not indicate he had reportable concerns about patient safety at
Cedars, as he intended to perform an additional surgery on D.W.
at Cedars within the week using Cedars’s equipment.
Third, Dr. Melamed states in his declaration in opposition
to the anti-SLAPP motion that after Dr. Brien initiated the peer
44
review process and contacted him for an interview, he told Dr.
Brien during the July 14, 2011 interview, in pertinent part: “it
had been difficult to stabilize the patient due to the inadequate
table/pads”; “the nursing personnel had told [him] that the
correct table/pads were not available”; and “if [he] would have
had the correct table/pads, the patient would have had a
successful surgical outcome similar to [his] other cases.”20 It is
not clear how this could be construed as a grievance, complaint,
or report about patient safety concerns, within the meaning of
Health and Safety Code section 1278.5. Dr. Melamed’s
statements to physicians who were investigating his patient care
were not made in a forum where he could have expected the
statements about inadequate equipment to be elevated as a
whistleblower complaint to the appropriate staff or to
accreditation or government entities. Moreover, Dr. Melamed
acknowledged during this interview with Dr. Brien that Cedars
had the appropriate equipment for the corrective surgery he
planned to perform on D.W. within the week. What was the issue
Cedars needed to remedy to ensure patient safety?
Fourth, Dr. Melamed points out that he documented the
equipment issues in his operating report, which he dictated on
July 14, 2011, after his interview with Dr. Brien. The report was
transcribed on July 15, 2011, the same day the medical staff sent
Dr. Melamed notice of his summary suspension. There is no
evidence before us indicating the operating report was available
to anyone involved in the summary suspension decision before
the summary suspension was imposed. In any event, Dr.
20 As referenced above, Dr. Melamed represents he made
similar statements in his July 29, 2011 meeting with Drs. Brien
and Delamarter.
45
Melamed does not explain how an operating report could be
construed as a grievance, complaint, or report about patient
safety concerns, within the meaning of Health and Safety Code
section 1278.5. As Dr. Romanoff explained in his supplemental
declaration in support of defendants’ anti-SLAPP motion,
“Patient medical records, including Operative Reports, are not
used for the purpose of alerting Medical Center or Medical Staff
leadership about suspected unsafe patient conditions or quality of
care concerns.” Rather, the MIDAS event reporting system and
the MD Feedback Program are used for that purpose, pursuant to
Cedars’s policies. Dr. Melamed did not file a report regarding
patient safety care concerns through either system.
The position Dr. Melamed took in response to the July 15,
2011 summary suspension of his privileges—as set forth in the
July 21, 2011 letter he sent to Dr. Romanoff through his
attorney—makes clear he had no cause to report any patient
safety concerns at Cedars. He stated in the letter that the
Jackson table was “medically appropriate for this type of surgical
procedure,” and he pointed out that the doctor who performed the
corrective surgery on D.W. also used the Jackson table. Dr.
Melamed took the same position in his July 27, 2011 petition for
writ of mandate, seeking to set aside the summary suspension
and prevent Cedars from reporting the summary suspension to
the California Medical Board or the National Practitioners Data
Bank, a petition he later voluntarily dismissed. Given Dr.
Melamed’s position in response to the summary suspension that
the table was appropriate, the physicians investigating Dr.
Melamed’s patient care would have had no reason to believe he
was making a whistleblower complaint about inadequate
46
equipment that should be elevated to the appropriate staff or
entities.
Dr. Melamed did not establish in connection with the anti-
SLAPP motion that there is a probability he will prevail on his
first cause of action for retaliation against a whistleblower in
violation of Health and Safety Code section 1278.5. For the
reasons explained above, even crediting all his evidence, he has
not shown even minimal merit to his claim that he presented a
grievance, complaint, or report to Cedars or its medical staff
regarding the quality of patient care, within the meaning of
Health and Safety Code section 1278.5, and defendants retaliated
against him for doing so. Accordingly, the portions of his first
cause of action which are based on conduct protected by the anti-
SLAPP statute (as delineated above) are stricken. The merits of
the portions of his first cause of action which are based on
conduct that is not protected by the anti-SLAPP statute are not
before us at this juncture.
B. Dr. Melamed did not exhaust his administrative
and judicial remedies as to his remaining
claims
In Westlake Community Hosp. v. Superior Court (1976) 17
Cal.3d 465, our Supreme Court held that the exhaustion of
administrative remedies doctrine applies to hospital peer review
proceedings. Thus, “before a doctor may initiate litigation
challenging the propriety of a hospital’s denial or withdrawal of
privileges, he must exhaust available internal remedies afforded
by the hospital.” (Id. at p. 469.) Furthermore, “whenever a
hospital, pursuant to a quasi-judicial proceeding, reaches a
decision to deny staff privileges, an aggrieved doctor must first
succeed in setting aside the quasi-judicial decision in a
47
mandamus action before he may institute a tort action for
damages.” (Ibid.) Once a court determines in a mandate action
that the hospital’s quasi-judicial decision was proper, the
“excluded doctor may proceed in tort against the hospital, its
board or committee members or any others legally responsible for
the denial of staff privileges.” (Ibid.)
In Fahlen v. Sutter Central Valley Hospitals (2014) 58
Cal.4th 655, our Supreme Court held “when a physician claims,
under [Health and Safety Code] section 1278.5, that a hospital’s
quasi-judicial decision to restrict or terminate his or her staff
privileges was itself a means of retaliating against the physician
‘because’ he or she reported concerns about the treatment of
patients, the physician need not first seek and obtain a
mandamus judgment setting aside the hospital’s decision before
pursuing a statutory claim for relief.” (Id. at p. 660.) Thus, Dr.
Melamed’s first cause of action, which we addressed above, is not
subject to the exhaustion of judicial remedies doctrine. The
Supreme Court in Fahlen did not review the Court of Appeal’s
conclusion that the exhaustion of judicial remedies doctrine
applied to the plaintiff’s other statutory and common law claims,
including the plaintiff’s cause of action under Business and
Professions Code sections 510 and 2056 (which Dr. Melamed also
asserts). (Fahlen, at p. 666.)
Dr. Melamed does not dispute the exhaustion of
administrative and judicial remedies doctrines apply to claims
styled as his second through seventh causes of action—tortious
interference with prospective economic relations, tortious
interference with contractual relations, unfair competition (Bus.
& Prof. Code, § 17200 et seq.), violation of the Cartwright Act
(Bus. & Prof. Code, § 16700 et seq.), violations of Business and
48
Professions Code sections 510 and 2056, and wrongful
termination of hospital privileges. What he argues is that he was
the victor in the peer review proceedings and there were no
unfavorable determinations for him to set aside before bringing
this action. We disagree.
Prior to filing this action, Dr. Melamed did not overturn the
peer review findings that were unfavorable to him through a
petition for writ of administrative mandate. The unfavorable
findings were that it was reasonable and warranted to impose the
summary suspension and that it was “reasonable and warranted
for the Medical Executive Committee to authorize a prospective
review of the clinical management of Dr. Melamed’s pediatric and
adolescent scoliosis cases by a method to be determined by the
Department of Orthopedic Surgery.”
After we issued our February 27, 2017 opinion in this case,
concluding Dr. Melamed’s second through seventh causes of
action in the first amended complaint were barred by his failure
to exhaust judicial remedies, he filed a petition for writ of
administrative mandate, which the trial court denied (in case No.
BS169534). As discussed above, we dismissed his appeal from
the denial of the petition because he was challenging an aspect of
the peer review process that he did not challenge at the peer
review hearing—the medical staff’s August 1, 2011 decision to
continue the summary suspension for more than 14 days
necessitating reports to the Medical Board of California and the
National Practitioner Data Bank. Accordingly, he failed to
exhaust his administrative remedies. (Melamed v. Cedars-Sinai
Medical Center, supra, B292794.)
Dr. Melamed cannot establish a probability of prevailing on
the portions of his second through seventh causes of action that
49
are based on alleged conduct which is protected by the anti-
SLAPP statute because he failed to exhaust administrative and
judicial remedies. He has not obtained administrative or judicial
findings that the peer review process lacked due process or was
unfair; that the summary suspension should not have been
imposed; or that the summary suspension should not have been
reported to the Medical Board of California or the National
Practitioner Data Bank. Such findings are essential to these
claims.
Accordingly, the portions of Dr. Melamed’s second through
seventh causes of action which are based on conduct protected by
the anti-SLAPP statute (as delineated above) are stricken. The
merits of the portions of his second through seventh causes of
action which are based on conduct that is not protected by the
anti-SLAPP statute are not before us at this juncture.21
21 To the extent a retaliation claim under Business and
Professions Code sections 510 and 2506 is not subject to the
exhaustion of judicial remedies doctrine like a claim under
Health and Safety Code section 1278.5—a position Dr. Melamed
does not advance on appeal—the result on his sixth cause of
action would be no different. Dr. Melamed did not present
evidence establishing a prima facie case that defendants
retaliated against him because he “protest[ed] a decision, policy,
or practice” that he “reasonably believe[d] impair[ed] [his] ability
to provide appropriate health care to his . . . patients.” (Bus. &
Prof. Code, §§ 510, subds. (a)-(b) & 2506, subds. (a)-(b).) It is not
clear what decision, policy, or practice he protested given he
acknowledged Cedars had the appropriate equipment for him to
perform the corrective surgery on D.W., and he insisted the
Jackson table that he chose for D.W.’s surgery (and the other
physician used to perform the subsequent corrective surgery on
D.W.) was the appropriate operating table.
50
DISPOSITION
The order granting the anti-SLAPP motion is affirmed in
part and reversed in part as specified in this opinion, and the
cause is remanded to the trial court for further proceedings
consistent with this opinion, including the matter of attorney fees
under Code of Civil Procedure section 425.16, subdivision (c).
Each side is to bear his/their own costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
51