Bonni v. St. Joseph Health Sys.

220 Cal. Rptr. 3d 598, 13 Cal. App. 5th 851, 2017 Cal. App. LEXIS 645
CourtCalifornia Court of Appeal, 5th District
DecidedJuly 26, 2017
DocketG052367
StatusPublished
Cited by13 cases

This text of 220 Cal. Rptr. 3d 598 (Bonni v. St. Joseph Health Sys.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonni v. St. Joseph Health Sys., 220 Cal. Rptr. 3d 598, 13 Cal. App. 5th 851, 2017 Cal. App. LEXIS 645 (Cal. Ct. App. 2017).

Opinion

IKOLA, J.

*854Plaintiff Aram Bonni, a surgeon, sued St. Joseph Hospital of Orange (St. Joseph), Mission Hospital Regional Medical Center (Mission), and other defendants for, inter alia, retaliation under Health and Safety Code, section 1278.5 (the whistleblower statute).1 Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings.

In response to plaintiff's filing of his first amended complaint (FAC), defendants filed a special motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute)2 to strike plaintiff's retaliation cause of action, asserting his claim arose from the protected activity of hospital peer review proceedings.

The court granted defendants' anti-SLAPP motion as to both St. Joseph and Mission. The court determined, first, that defendants had met prong one *855of the anti-SLAPP statute's two-part test, which requires a moving defendant to show the plaintiff's claim arose from activity protected under that statute. ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 ( Equilon ).)

The court then proceeded to prong two of the anti-SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim. ( *600Equilon , supra , 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The court concluded plaintiff's proof failed as to both defendants.

We conclude plaintiff's retaliation claim under the whistleblower statute arose from defendants' alleged acts of retaliation against plaintiff because he complained about the robotic surgery facilities at the hospitals, and not from any written or oral statements made during the peer review process or otherwise. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion. This case is no exception. Accordingly, defendants' motion to strike fails on prong one of the anti-SLAPP test and we reverse the order granting defendants' motion.

FACTS

Plaintiff's FAC

Plaintiff's FAC alleged, inter alia, that defendants violated the whistleblower statute by retaliating against him for reporting "suspected unsafe and substandard conditions and services" at defendants' hospitals, including defendants' lack of committed assistants for robotic surgical procedures, and defendants' malfunctioning robot, camera, and bleeding-control devices. The FAC alleged defendants retaliated against plaintiff for his whistleblower complaints by, inter alia, suspending and ultimately denying him his medical staff privileges, after subjecting him to a lengthy and humiliating peer review process.

Defendants ' Anti-SLAPP Motion

In response, defendants filed an anti-SLAPP motion to strike the FAC's retaliation cause of action. Defendants argued: "Plaintiff ... exhibited consistent patterns of poor judgment and surgical techniques that caused serious complications-and in some cases near death-or his patients.... In light of the imminent danger to future patients of these serious and life-threatening behaviors, Defendants summarily suspended Plaintiff and thereafter conducted peer review proceedings according to California law and the Hospitals' bylaws, to ensure patient safety." Defendants further argued that (1) plaintiff's retaliation claim arose from defendants' peer review processes;

*856(2) such processes constitute protected activity under the anti-SLAPP statute; and (3) plaintiff could not show a probability of success on his retaliation claim because he lacked "admissible evidence indicating Defendants acted to retaliate against him."3

Defense counsel filed a declaration in support of defendants' anti-SLAPP motion. Exhibit 1 to counsel's declaration was the decision of St. Joseph's judicial review hearing committee, which stated that plaintiff experienced complications in three of the first six robotic procedures he performed at St. Joseph. Exhibit 3 to counsel's declaration included Mission's appellate committee report, which stated that the "focused review process was triggered by a December, 2009 case in which [plaintiff] perforated the patient's mesentery and bowel tissue five ... times. The patient suffered various complications following the procedure, required a second surgery to repair the perforations, ... and endured a protracted hospital stay."

Plaintiff's Opposition

Plaintiff opposed defendants' anti-SLAPP motion, arguing defendants failed to show his claim was a SLAPP, and alternatively, *601that plaintiff could make "the minimal showing necessary to establish a probability of prevailing on the merits."

In plaintiff's declaration supporting his opposition, he declared, inter alia: "In or about March of 2009, I became aware of numerous patient safety issues involving the da Vinci robot ... robotic surgery program at Mission Hospital. Specifically, the robotic surgery program at Mission was grossly understaffed and underfunded, which had a direct and adverse impact on patient safety. At times, I was unable to complete scheduled surgeries due to inadequate staffing. On October 19, 2009, I reported these patient safety concerns to Dennis Haghighat M.D., vice president of medical affairs at Mission. I requested that these issues be corrected in order to improve the safety of patients at Mission and St. Joseph. A true and correct copy of this report is attached hereto as Exhibit 2. Unfortunately, Mission and St. Joseph did nothing to correct or address these patient safety concerns."

Exhibit 2 is plaintiff's October 19, 2009 e-mail message to Haghighat, in which plaintiff stated he had been forced to cancel a few robotic surgeries due to the unavailability of an assistant surgeon and asking if Mission could allocate a scrub technician to serve as the assistant. The subject line of *857plaintiff's e-mail message is "Robotic Surgery at Mission." In this e-mail message, plaintiff never mentions St. Joseph.

Plaintiff's declaration continued: "On December 22, 2009, I performed a robotic surgical procedure at Mission on an elderly woman....

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Bluebook (online)
220 Cal. Rptr. 3d 598, 13 Cal. App. 5th 851, 2017 Cal. App. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonni-v-st-joseph-health-sys-calctapp5d-2017.