DeCambre v. Rady Children's Hospital

• Court: California Court of Appeal
• Decided: April 2, 2015
• Docket: D063462M
• Status: Published

Opinion

Filed 4/2/15 (unmodified opn. attached) CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARVALYN DECAMBRE, D063462

Plaintiff and Appellant, (Super. Ct. No. 37-2012-00097681- v. CU-WT-CTL)

RADY CHILDREN'S HOSPITAL-SAN ORDER MODIFYING OPINION DIEGO et al., AND DENYING PETITION FOR REHEARING Defendants and Respondents. [NO CHANGE IN JUDGMENT]

THE COURT:

It is so ordered that the opinion filed herein on March 11, 2015, be modified as

follows:

1. On page 24, footnote 11, the third sentence is removed and replaced with the

following sentence:

"However, we do not agree with defendants that DeCambre's claims of harassment, IIED and defamation are based on defendants' efforts to address DeCambre's allegedly improper behavior."

There is no change in the judgment.

The petition for rehearing is denied.

O'ROURKE, Acting P. J. Copies to: All parties Filed 3/11/15 (unmodified version) CERTIFIED FOR PUBLICATION

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2012-00097681- CU-WT-CTL) RADY CHILDREN'S HOSPITAL-SAN DIEGO et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Joel

Pressman, Judge. Reversed in part and remanded with directions.

Donald Aquinas Lancaster, Jr., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Marilyn R. Moriarty, Lann G. McIntyre and

Jeffry A. Miller for Defendant and Respondent Rady Children's Hospital-San Diego.

Paul, Plevin, Sullivan & Connaughton, E. Joseph Connaughton, Sandra L.

McDonough and Corrie J. Klekowski for Defendant and Respondent Children's

Specialists of San Diego. Andrews · Lagasse · Branch & Bell, Margaret C. Bell and Lisa Marie Magorien

for Defendant and Respondent the Regents of the University of California.

I

INTRODUCTION

Marvalyn DeCambre, M.D., appeals a judgment entered after the trial court

granted special motions to strike pursuant to Code of Civil Procedure section 425.161

brought by defendants Rady Children's Hospital-San Diego (RCHSD), Children's

Specialist San Diego (CSSD) and the Regents of the University of California (Regents)

(collectively, defendants), and also sustained defendants' demurrers to certain causes of

action in DeCambre's complaint. DeCambre, a physician specializing in pediatric

urology, filed an action against RCHSD, CSSD and the Regents alleging retaliation,

harassment, racial discrimination, failure to prevent discrimination and wrongful

termination under the California Fair Employment and Housing Act (FEHA) (Gov. Code,

§ 12900 et seq.). DeCambre also brought claims against all defendants for intentional

infliction of emotional distress (IIED), defamation, and violations of the Unfair

Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and the Cartwright Act

(Bus. & Prof. Code, § 16700 et seq.). The theme of DeCambre's complaint is that

1 Further statutory references are to the Code of Civil Procedure unless otherwise indicated. Section 425.16 is commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) 2 throughout her tenure at RCHSD, defendants discriminated against her because of her

race and gender.

Each defendant filed a special motion to strike DeCambre's complaint. The trial

court granted the motions in full on the ground that all of DeCambre's causes of action

arose from RCHSD's decision not to renew its contract for DeCambre's services, which

was the culmination of a peer review process that is protected as an official proceeding

authorized by law under section 425.16, subdivision (e). The court also sustained

defendants' demurrers to DeCambre's claims for IIED, defamation, unfair competition

and violation of the Cartwright Act and denied DeCambre's request for leave to amend.

On appeal, DeCambre contends that the trial court erred in granting the special

motions to strike because the defendants' peer review process was not entitled to

protection under the anti-SLAPP statute and even it was, her claims did not arise from

that process. DeCambre also challenges the resulting attorney fee awards and the trial

court's order sustaining defendants' demurrers. We conclude that the trial court erred in

granting the defendants' anti-SLAPP motions as to DeCambre's claims for harassment

and IIED. These claims do not arise from protected activity under section 425.16 and we

reject the defendants' attempt to cloak them in the protections afforded to peer review

proceedings under the anti-SLAPP statute. Because we reverse this portion of the anti-

SLAPP ruling, we also reverse and remand the attorney fee awards. In addition, we

remand with directions that the court determine whether DeCambre should be afforded

leave to amend her claim for defamation.

3 II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background2

DeCambre was hired by CSSD in 2006 to provide pediatric urology services to

RCHSD.3 At the time, George W. Kaplan, M.D., headed the hospital's pediatric urology

department. According to DeCambre, after she was hired, RCHSD's pediatric urology

department became the highest ranked in the state. DeCambre is an African-American

woman. During her tenure at RCHSD, she was the only female minority physician in its

department of surgery.

DeCambre alleges that the defendants discriminated against her from the outset of

her employment. DeCambre asserts that she was initially promised a housing allowance

of $100,000, but when she arrived in San Diego, she was provided only $75,000 and

"only after several months of extended negotiation and hardship." DeCambre also

contends that she was promised an office but was not provided one, and instead had to

share an office with a physician who was continuing training in a fellowship program.

2 We take these facts from the allegations of DeCambre's complaint and evidentiary exhibits in the record.

3 At the time DeCambre was hired by CSSD, it was a stand-alone pediatric medical group that provided medical services to pediatric patients in San Diego in connection with RCHSD and the Regents. In September 2009, CSSD, RCHSD and the Regents' department of pediatric surgery formalized a new business structure through the creation of the Medical Practice Foundation, Rady Children's Specialists (RCS). RCS is a department of RCHSD. Physicians provide services to RCS through a Professional Services Agreement. As a result of the restructuring, DeCambre and the other physicians formerly employed by CSSD became employees of the Regents. The funding for their employment by the Regents is based on services provided to RCS. 4 She maintains that she was also denied appropriate support staff and was treated as

"ancillary" to Kaplan. When DeCambre complained to another physician about the

staff's treatment of her, she was advised not to complain. When another male pediatric

urologist joined the department in mid-2007, DeCambre claims that he was immediately

provided the accommodations that DeCambre had requested, but had been denied.

According to DeCambre, in late 2008 or early 2009, she asked Kaplan, RCHSD

Director of Surgical Services Donald Kearns, M.D., and CSSD Executive Director

Herbert Kimmons, M.D., to provide her with a mentor. She alleges that they denied her

request, but provided mentors to other male, nonminority doctors. DeCambre similarly

alleges that in 2010, the support staff responsible for implementing a new electronic

medical records system denied her requests for information, while providing the same

type of information to Kaplan. DeCambre's complaint also contains allegations of

specific statements made by various hospital employees over the course of her tenure that

she asserts were racially and/or sexually discriminatory.

According to DeCambre, she complained about the disparate treatment to the

hospital's ombudsman in February 2011 and reported one incident of racially

discriminatory language to the hospital's Vice Chief of Staff Gail Knight, M.D. In May

2011, DeCambre requested a meeting with Kimmons and Knight because she felt that the

then pediatric urology department head, Nicholas Holmes, M.D., was trying to force her

out of her position. DeCambre alleges that Kimmons and Knight told her to ignore racial

and sexual discrimination. DeCambre claims that she met with personnel from the

Regents' Office for the Prevention of Harassment and Discrimination on May 20, 2011,

5 to complain about her circumstances. On that occasion, she was given a letter from the

Regents notifying her that she would not be reappointed beyond June 30, 2011,

effectively terminating her employment, because CSSD would no longer compensate the

Regents for her medical services. DeCambre also alleges that after her termination,

defendants made defamatory statements about her to prospective employers.

The defendants tell a vastly different story about DeCambre's employment. They

assert that DeCambre's termination was solely a result of her own inappropriate conduct.

Defendants allege that throughout her employment at RCHSD, both coworkers and

patients complained about DeCambre's disrespectful and insensitive behavior, and that

defendants' administrators worked tirelessly to support DeCambre and help her to

improve her ability to interact appropriately with staff and patients.

According to CSSD, in 2007, after nurses had complained that DeCambre's

behavior was demeaning to them, CSSD hired a consultant to provide support to

DeCambre. However, after her first meeting with the consultant, DeCambre refused to

meet with him again. After this episode, the defendants continued to receive complaints

from both hospital staff and patients about DeCambre's rude behavior. In January 2009,

a nurse complained to hospital administrators that DeCambre had retaliated against her

after she filed a complaint in November 2008 regarding DeCambre's angry and

intimidating behavior. As a result, RCHSD conducted an investigation that concluded

with a letter in February 2009 from the hospital chief of staff to DeCambre advising her

that the investigation had raised concerns about her behavior. The letter also stated that

6 DeCambre would be required to attend the next meeting of the hospital's well-being

committee for assessment.4

RCHSD notified CSSD of the retaliation complaint and subsequent investigation.

CSSD retained an outside consultant, National Business Investigations (NBI), to conduct

its own investigation. That investigation was conducted from March to May 2009 and

resulted in an 86-page report that found that the nurse's claims of retaliation by

DeCambre were unfounded, but further found that DeCambre had "engaged in behaviors

that have negatively interfered with the work environment and the organization's

operations." NBI's report also stated that despite having been provided opportunities to

improve her interactions with patients and staff, DeCambre had not shown sufficient or

sustained improvement. NBI also addressed concerns that DeCambre had raised in her

interview with NBI's investigator concerning retaliatory treatment and discrimination

based on her race and gender. NBI concluded that DeCambre's allegations could not be

substantiated.

As a result of NBI's investigation, on June 1, 2009, CSSD sent DeCambre a "Final

Warning" letter informing her that she would be required to complete an off-site intensive

behavioral counseling program. The letter also advised DeCambre that her failure to treat

all people with whom she interacts on behalf of CSSD with respect and dignity was a

violation of the hospital's policies, and that any future failure to comply with the policy

would result in her immediate termination. According to RCHSD's Chief Medical

4 Only a recitation of these facts by Holmes in his declaration in support of CSSD's special motion to strike is included in the record before this court; the letter itself is not. 7 Officer Irvin A. Kaufman, M.D., the medical staff's well-being committee required

DeCambre to enter into a Behavior Monitoring Agreement, and DeCambre was provided

with "informal corrective activities with mentoring and counseling from 2009 through her

termination" in 2011.5 After the final warning letter was issued, the defendants allege

that they continued to receive complaints and grievances from both patients' families and

staff about DeCambre. According to Holmes and Kaufman, in the last two years of her

employment, DeCambre received five times as many complaints as the next most

complained about physician.

Because of these continuing complaints and DeCambre's apparent inability or

unwillingness to change her behavior, on May 12, 2011, RCHSD notified CSSD that it

was exercising its contractual right to reject the services of DeCambre. In his declaration

in support of RCHSD's special motion to strike, Kaufman states that "[t]he decision by

[RCHSD] to exercise its right to reject Dr. DeCambre as a Medical Group Physician was

based upon all of this information that was addressed by the peer review process of

[RCHSD's] [m]edical [s]taff." After DeCambre was notified that the Regents would not

renew her appointment, DeCambre complained to the Regents that she felt that she had

been subjected to a racially and sexually discriminatory working environment. This

prompted the Regents to conduct their own internal investigation, which found no

evidence of harassment or discrimination against DeCambre.

5 Apart from assertions by Kaufman and Holmes in their declarations in support of CSSD's special motion to strike, the record contains no documentation of these activities. 8 B. Procedural background

DeCambre filed suit against CSSD, RCHSD and the Regents on May 18, 2012.

Her complaint alleged nine separate causes of action: retaliation under Government Code

section 12940, subdivision (h); harassment under Government Code section 12940,

subdivision (j); discrimination based on race, color, national origin, ancestry, marital

status, age and gender under Government Code section 12940, subdivision (a); failure to

prevent discrimination under Government Code section 12940, subdivision (k); wrongful

termination in violation of public policy; IIED; defamation; unfair competition in

violation of the UCL; and violation of the Cartwright Act. Each defendant filed its own

anti-SLAPP motion seeking dismissal of DeCambre's complaint. Each defendant also

filed a separate demurrer: RCHSD and CSSD sought dismissal of the entire complaint as

uncertain and also sought dismissal of DeCambre's causes of action for IIED, defamation,

and violations of the UCL and Cartwright Act; the Regents sought dismissal of

DeCambre's defamation claim.

After issuing a tentative order denying the special motions to strike, the trial court

heard argument on all six motions on December 7, 2012, and took the matter under

submission. On December 13, 2012, the trial court issued its order granting the

defendants' anti-SLAPP motions in their entirety and sustaining the demurrers as to

DeCambre's claims for IIED, defamation, and violations of the UCL and Cartwright Act.

Based on its ruling on the anti-SLAPP motions, the court denied DeCambre's request for

leave to amend. In granting the special motions to strike, the court concluded that all of

DeCambre's claims arose from protected activity because in each cause of action,

9 DeCambre requested damages for lost earnings, employment benefits and staff privileges,

which were the result of the nonrenewal of her contract with the Regents.

The defendants subsequently sought attorney fees and costs incurred in bringing

the anti-SLAPP motions. DeCambre opposed the motions. Following a hearing, the

court awarded attorney fees and costs to each defendant on April 4, 2013.

III

DISCUSSION

DeCambre contends that the trial court erred in granting the defendants' anti-

SLAPP motions and in awarding attorney fees to the defendants. She argues that the

defendants' decision to terminate her was not the result of a properly constituted peer

review body. DeCambre further contends that even if her termination was the result of

peer review activity, her claims arise not from the termination but, rather, from

unprotected, discriminatory conduct that occurred outside the peer review proceeding.6

DeCambre also argues that the trial court improperly sustained the demurrers to

her claims for IIED, defamation and violations of the UCL and the Cartwright Act.

DeCambre further contends that even if the demurrers were properly sustained, the trial

court erred in denying her leave to amend.

6 DeCambre also contends that the trial court should not have considered the defendants' special motions to strike because the hearing took place more than 30 days after the motions were served. We do not find merit in this argument. DeCambre did not raise this objection in the trial court and the statutory provision on which DeCambre relies, section 425.16, subdivision (f), requires the clerk of the court to schedule a "hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing." (§ 425.16, subd. (f), italics added.) 10 A. The anti-SLAPP motions

1. The law governing anti-SLAPP motions

A SLAPP "is a civil lawsuit that is aimed at preventing citizens from exercising

their political rights or punishing those who have done so. ' "While SLAPP suits

masquerade as ordinary lawsuits such as defamation and interference with prospective

economic advantage, they are generally meritless suits brought primarily to chill the

exercise of free speech or petition rights by the threat of severe economic sanctions

against the defendant, and not to vindicate a legally cognizable right." ' (Castillo v.

Pacheco (2007) 150 Cal.App.4th 242, 249-250, quoting Sen. Com. on Judiciary, Analysis

of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) as amended May 12, 1997, pp. 1-2.)"

(Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) To combat " 'a

disturbing increase' " in this type of lawsuit, in 1992 the Legislature enacted the anti-

SLAPP statute, authorizing a "special motion to strike to expedite the early dismissal of

these unmeritorious claims." (Id. at p. 21.)

That statute, section 425.16, "provides: '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.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819.) "The

analysis of an anti-SLAPP motion thus involves two steps. 'First, the court decides

whether the defendant has made a threshold showing that the challenged cause of action

11 is one "arising from" protected activity. [Citation.] If the court finds such a showing has

been made, it then must consider whether the plaintiff has demonstrated a probability of

prevailing on the claim.' " (Id. at pp. 819-820.) " 'Only a cause of action that satisfies

both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or

petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under

the statute.' " (Id. at p. 820.)

As used in section 425.16, subdivision (e), an " 'act in furtherance of a person's

right of petition or free speech under the United States or California Constitution in

connection with a public issue' 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 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."

The Supreme Court has explained that "the statutory phrase 'cause of

action . . . arising from' means simply that the defendant's act underlying the plaintiff's

cause of action must itself have been an act in furtherance of the right of petition or free

speech. [Citation.] [T]he critical point is whether the plaintiff's cause of action itself was

based on an act in furtherance of the defendant's right of petition or free speech.

12 [Citations.] 'A defendant meets this burden by demonstrating that the act underlying the

plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision

(e) . . . .' " (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cashman).)

In an anti-SLAPP analysis we accept as true the plaintiff's pleaded facts. (Young

v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54 (Young).) "The evidence of

the moving party . . . is considered for whether it defeats, as a matter of law, the evidence

submitted by [plaintiff]." (Ibid.) "We do not resolve the merits of the overall dispute, but

rather identify whether its pleaded facts fall within the statutory purpose, 'to prevent and

deter "lawsuits [referred to as SLAPPs] brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the redress of grievances." ' "

(Ibid.)

"When considering the declarations and affidavits submitted, the court does not

weigh credibility or compare the weight of the evidence." (Smith v. Adventist Health

System/West (2010) 190 Cal.App.4th 40, 52.) "Rather, the court's responsibility is to

accept as true the evidence favorable to the plaintiff [citation] and evaluate the

defendant's evidence only to determine if it has defeated that submitted by the plaintiff as

a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204,

212.) "On appeal, we independently determine whether this material demonstrates that

the cause of action arises from protected activity." (Peregrine Funding, Inc. v. Sheppard

Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.)

13 2. Application of the anti-SLAPP statute to medical peer review proceedings

As discussed, section 425.16, subdivision (e) identifies four categories of activities

that are " 'in furtherance of' " a defendant's free speech or petition rights. The second

category of conduct pertains to a defendant's statements or writings "in connection with

an issue under consideration or review by a legislative, executive, or judicial body, or any

other official proceeding authorized by law." (Id., subd. (e)(2).) "Peer review is the

process by which a committee comprised of licensed medical personnel at a hospital

'evaluate[s] physicians applying for staff privileges, establish[es] standards and

procedures for patient care, assess[es] the performance of physicians currently on staff,'

and reviews other matters critical to the hospital's functioning." (Kibler v. Northern Inyo

County Local Hospital Dist. (2006) 39 Cal.4th 192, 199 (Kibler).) The California

Supreme Court has defined the phrase " 'other official proceeding authorized by law' " to

include the proceedings of a hospital peer review committee. (Id. at pp. 199, 200-201.)

The Kibler court identified several attributes of hospital peer review that support

this conclusion: hospital peer review is legally mandated, and serves the essential role of

assisting public agencies to regulate the medical profession and "protect[] the public

against incompetent, impaired, or negligent physicians." (Kibler, supra, 39 Cal.4th at

pp. 200, 199; see Bus. & Prof. Code, § 809.05.) Additionally, "the Legislature has

accorded a hospital's peer review decisions a status comparable to that of quasi-judicial

public agencies" by providing that decisions of both entities are reviewable by

administrative mandate after a quasi-judicial hearing. (Kibler, at p. 200.)

14 Kibler emphasized the important public policy reasons for extending the anti-

SLAPP law to the peer review context: "[M]embership on a hospital's peer review

committee is voluntary and unpaid, and many physicians are reluctant to join peer review

committees so as to avoid sitting in judgment of their peers. To hold . . . that hospital

peer review proceedings are not 'official proceeding[s] authorized by law' . . . would

further discourage participation in peer review by allowing disciplined physicians to file

harassing lawsuits against hospitals and their peer review committee members rather than

seeking judicial review of the committee's decision by the available means of a petition

for administrative mandate." (Kibler, supra, 39 Cal.4th at p. 201.)

DeCambre argues that the anti-SLAPP protections afforded to the defendants in

Kibler are not appropriate in this case because the defendants' conduct did not occur

within the context of a medical peer review process. Specifically, she contends that

because the defendants did not file a report concerning her contract nonrenewal with the

Medical Board under Business and Professions Code section 805, the process that

culminated in her termination cannot properly be deemed peer review activity.

We agree with the defendants that their decision not to renew DeCambre's contract

was the result of RCHSD's peer review process. The declarations of Holmes and

Kaufman state that the decision not to renew occurred after consultation with the medical

staff, the medical staff executive committee and the hospital's governing board, each of

15 which constitutes a peer review body.7 Further, the decision not to renew came after

years of intervention by the medical staff's well-being committee. DeCambre does not

dispute that she remained under the supervision of that committee from the time she was

referred in 2009 until the end of her employment with the defendants.

DeCambre's assertion that because the defendants did not report their decision not

to renew DeCambre's contract to the Medical Board of California, there was no peer

review, is incorrect. The statutory scheme governing physician peer review specifically

7 DeCambre's additional assertion that defendants did not engage in peer review activity because they did not properly form a "peer review body" is not well taken. RCHSD is required by law to engage in peer review activities through its medical staff. (Bus. & Prof. Code, § 800 et seq.; Kibler, supra, 39 Cal.4th at p. 199.) Business and Professions Code section 805, subdivision (a)(1)(B) defines a peer review body to include: "(i) A medical or professional staff of any health care facility or clinic licensed under Division 2 (commencing with Section 1200) of the Health and Safety Code or of a facility certified to participate in the federal Medicare program as an ambulatory surgical center. [¶] (ii) A health care service plan licensed under Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code or a disability insurer that contracts with licentiates to provide services at alternative rates of payment pursuant to Section 10133 of the Insurance Code. [¶] (iii) Any medical, psychological, marriage and family therapy, social work, professional clinical counselor, dental, or podiatric professional society having as members at least 25 percent of the eligible licentiates in the area in which it functions (which must include at least one county), which is not organized for profit and which has been determined to be exempt from taxes pursuant to Section 23701 of the Revenue and Taxation Code. [¶] (iv) A committee organized by any entity consisting of or employing more than 25 licentiates of the same class that functions for the purpose of reviewing the quality of professional care provided by members or employees of that entity." (Bus. & Prof. Code, § 805, subd. (a)(1)(B).) The committees in question fall under Business and Professions Code section 805, subdivision (a)(1)(B)(i) (medical staff of a "health care facility" licensed under Division 2 of the Health and Safety Code) as well as subdivision (a)(1)(B)(iv). DeCambre's assertion that Business and Professions Code section 805, subdivision (a)(1)(B)(iv) requires that each committee, itself, is required to have 25 licentiates is incorrect. The plain meaning of Business and Professions Code section 805, subdivision (a)(1)(B)(iv) is that the entity that organizes the committee, and not the committee itself, must consist of more than 25 licentiates. (Bus. & Prof. Code, § 805, subd. (a)(1)(B)(iv).) 16 sets forth the legislative intent that "peer review of professional health care services be

done efficiently, on an ongoing basis, and with an emphasis on early detection of

potential quality problems and resolutions through informal educational interventions."

(Bus. & Prof. Code, § 809, subd. (a)(7).) The scheme, in turn, requires reporting to the

Medical Board only when a " 'licentiate's membership, staff privileges, or employment is

terminated or revoked for a medical disciplinary cause or reason.' " (Kaiser Foundation

Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 98.) " 'Medical disciplinary

cause or reason' " is defined as the "aspect of a licentiate's competence or professional

conduct that is reasonably likely to be detrimental to patient safety or to the delivery of

patient care." (Bus. & Prof. Code, § 805, subd. (a)(6).) The defendants maintain that the

behavior that led to the decision to terminate DeCambre did not involve a "medical

disciplinary cause or reason." The fact that the defendants did not report the action to the

Medical Board does not show that there was no peer review in DeCambre's case, but only

that no report was required under these circumstances.8

3. DeCambre's causes of action for harassment, intentional infliction of emotional distress and defamation do not arise from protected activity

Although we conclude that the decision not to renew DeCambre's contract resulted

from a peer review process and thus falls within the protections of the anti-SLAPP

statute, we are not persuaded that every cause of action that DeCambre asserts arises

8 Further, to the extent that DeCambre claims she was not afforded the fair process mandated by the peer review statutory scheme, she was entitled to seek judicial review of the decision not to renew her contract "by the available means of a petition for administrative mandate." (Kibler, supra, 39 Cal.4th at p. 201; Bus. & Prof. Code, § 809.1.) 17 from that protected activity. The question whether a cause of action arises from protected

activity concerns "the strength of the connection between [that] activity and the

lawsuit . . . ." (Smith v. Adventist Health System/West, supra, 190 Cal.App.4th at p. 51.)

To be afforded protection "the defendant's act underlying the plaintiff's cause of action

must itself have been an act in furtherance of the right of petition or free speech.

[Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of

action itself was based on an act in furtherance of the defendant's right of petition or free

speech. [Citations.]" (Ibid.; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 92 ["The

anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action

but, rather, the defendant's activity that gives rise to his or her asserted liability—and

whether that activity constitutes protected speech or petitioning."].) Further, " '[t]he mere

fact that an action was filed after protected activity took place does not mean the action

arose from that activity for the purposes of the anti-SLAPP statute.' " (Episcopal Church

Cases (2009) 45 Cal.4th 467, 477; see also Cashman, supra, 29 Cal.4th at p. 77

["California courts rightly have rejected the notion 'that a lawsuit is adequately shown to

be one "arising from" an act in furtherance of the rights of petition or free speech as long

as suit was brought after the defendant engaged in such an act, whether or not the

purported basis for the suit is that act itself.' "].)

When a complaint presents a cause of action that involves both protected and

nonprotected activities, it is "[t]he 'principal thrust or gravamen' of the plaintiff's claim

[that] determines whether section 425.16 applies." (Renewable Resources Coalition, Inc.

v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 395.) The court must "look to the

18 allegedly wrongful and injurious conduct of the defendant, rather than the damage which

flows from said conduct." (Id. at pp. 396-397.) "If the core injury-producing conduct by

the defendant that allegedly gave rise to the plaintiff's claim is properly described with

only collateral or incidental allusions to protected activity, then the claim does not arise

out of protected speech or petitioning activity." (Young, supra, 210 Cal.App.4th at p. 55.)

The defendants maintain that the trial court correctly concluded that DeCambre's

claims all arose from protected conduct because in each cause of action, DeCambre

sought damages that resulted from the nonrenewal of her contract. In reaching the

conclusion that DeCambre's complaint arose from protected activity, i.e., the peer review

process, the trial court's order notes that each of DeCambre's causes of action contains a

request for "damages for lost earnings, employment benefits and/or staff privileges as a

result of her [nonrenewal]." The trial court's order proceeds to state that DeCambre had

not "cited any evidence of retaliation or discrimination which is not connected with the

[nonrenewal]," and concludes that, therefore, all of her "allegations are included within

the anti-SLAPP statute."

These findings are not supported by the record before the trial court. First, the

trial court erroneously focused on DeCambre's damage allegations in determining that all

of her claims arose from protected conduct. However, the proper focus is "the 'allegedly

wrongful and injury-producing conduct' " that gave rise to DeCambre's claims, not the

damages that she claims. (Renewable Resources Coalition, Inc. v. Pebble Mines Corp.,

supra, 218 Cal.App.4th at p. 396, italics added.) Second, contrary to the court's

19 statement, DeCambre did cite evidence of harassment that was not connected to the

nonrenewal.

The gravamen and principal thrust of DeCambre's causes of action for harassment

and IIED is conduct that occurred independent of the peer review proceedings. More

specifically, these claims are not based on the defendants' investigation of staff

complaints, their referral of DeCambre to the well-being committee, or the ultimate

decision not to renew her contract. Rather, the claims arise from incidents of allegedly

disparate treatment that DeCambre claims occurred throughout her employment by the

defendants. Thus, these causes of action do not arise from the nonrenewal of

DeCambre's contract and the peer review activity that preceded that decision.

For instance, DeCambre alleges that at the outset of her employment in 2006, long

before the peer review process began, she was denied adequate support staff and was also

provided a lower housing allowance than what she had originally been promised.9 She

also alleges that male physicians were provided with privileges and assistance that she

was denied. For instance, DeCambre claims that "[w]hile the staff would obtain and

document the vitals of other physician's patients including Dr. Kaplan's patients, the staff

repeatedly failed to take the vitals of [her] patients" and failed to customize the operating

9 Although the court sustained some of the evidentiary objections to DeCambre's declaration in which she repeated many of the allegations contained in her complaint, at this stage we must accept as true DeCambre's pleaded facts. (Young, supra, 210 Cal.App.4th at p. 54.) To the extent that DeCambre asserted additional facts in her declaration opposing the special motions to strike, we disagree with DeCambre's claim that the court's evidentiary rulings constituted an abuse of its discretion, and we rely only on those portions to which the court did not sustain defendants' objections. 20 room to her requirements, instead insisting she use the same setup Kaplan used.

DeCambre asserts that throughout her employment, support staff and other physicians

made racially discriminatory statements and treated her in a discriminatory manner.

None of this conduct occurred within the context of, or in furtherance of, the peer

review proceedings. The evidence submitted by the defendants does not demonstrate

otherwise. RCHSD asserts that because DeCambre made allegations of adverse

treatment when she was interviewed by NBI's investigator and those allegations were

reported to CSSD's board of directors and "relied on by other peer review committees in

deciding not to renew her contract," the allegedly discriminatory conduct was an "integral

part" of the peer review process. We disagree. The fact that DeCambre's allegations of

harassment may have been repeated in the peer review setting does not mean that her

claim arose from that process.

DeCambre does not dispute that some of her allegations of harassment occurred

during the same period of time that the defendants were investigating staff complaints

about her, and that NBI's investigation report, which was provided to the hospital's peer

review bodies, addressed DeCambre's claims of harassment. However, the conduct

underlying DeCambre's claims for harassment and IIED did not occur as part of the peer

review proceeding. Rather, the conduct that is the gravamen of these claims occurred

separate from the defendants' peer review activity.10 The references in these two causes

of action to damages resulting from the nonrenewal of DeCambre's contract are properly

10 We express no opinion on the substantive merits of DeCambre's harassment claim or the defenses RCHSD, CSSD and the Regents may have to this claim. 21 described as "collateral or incidental allusions" to the defendants' nonprotected conduct

on which the claims are based. (Young, supra, 210 Cal.App.4th at p. 55.)

The defendants rely on Nesson v. Northern Inyo County Local Hospital Dist.

(2012) 204 Cal.App.4th 65 (Nesson) to support their contention that the trial court

properly dismissed DeCambre's entire complaint. In Nesson, the hospital's medical

executive committee (MEC) summarily suspended plaintiff physician Nesson's medical

staff privileges and then terminated his contract to provide radiology services. (Id. at

pp. 73-74.) The MEC took these actions after " 'incidents of substandard and dangerous

patient care' and 'abrupt change in [Nesson's] behavior characterized by volatile and

erratic actions.' " (Ibid.) After the termination, Nesson filed a complaint against the

hospital for breach of contract, retaliation and discrimination, and the hospital

successfully moved to strike the suit under section 425.16. (Id. at pp. 75-76.)

On appeal, Nesson argued that because his claims were based on the termination

of his contract to provide services, and not the suspension of privileges resulting from the

peer review proceedings conducted by the hospital, section 425.16 did not apply.

(Nesson, supra, 204 Cal.App.4th at p. 78.) The court rejected the argument, concluding

that the hospital's decision to terminate its contract with Nesson was a direct consequence

of the summary suspension of his privileges. (Id. at p. 81.) The court stated "[t]he

gravamen of each cause of action asserted by Nesson is that the Hospital somehow acted

wrongfully when it terminated the Agreement because Nesson's privileges were

summarily suspended, as he was deemed by the MEC to be a likely imminent danger to

patient safety." (Id. at p. 83.) The court also noted that Nesson had failed to "cite any

22 evidence of retaliation or discrimination which is not connected with his summary

suspension." (Id. at p. 84.)

In contrast, as discussed, DeCambre's claims are premised on allegations of

harassing conduct unrelated to the defendants' decision not to renew her contract, and

which were not a basis for that decision. The gravamen of DeCambre's claims for

harassment and IIED is the harassing conduct that DeCambre alleges she was subjected

to over the course of her employment by the defendants and their employees, some of

which predated any peer review activity.

CSSD asserts "DeCambre tried . . . to dodge the anti-SLAPP statute by arguing

that the 'thrust' or 'gist' of her claims was somehow based on perceived harassment and a

'culture of disrespect' (allegedly non-peer review activities), and not on her contract

[nonrenewal]." We agree with DeCambre, however, that the thrust of her claims for

harassment and IIED was the allegedly harassing conduct that occurred outside of the

peer review proceedings. The acts of harassment that DeCambre alleges against

defendants are distinct from DeCambre's own conduct, which was the subject of the

protected peer review. DeCambre's reporting of this conduct to NBI, and NBI in turn

sharing DeCambre's allegations with the peer review entities, did not serve to bring that

conduct within the scope of the anti-SLAPP protection that is afforded to medical peer

review under Kibler. The anti-SLAPP protection afforded to peer review proceedings

23 cannot insulate defendants from liability for harassing conduct that DeCambre alleges

occurred over the history her employment.11

Finally, DeCambre's seventh cause of action for defamation does not arise from

the defendants' peer review proceedings. This claim is based on statements allegedly

made by defendants to prospective employers of DeCambre after the defendants had

decided not to renew her contract. Any defamatory statements made by defendants to

employers after the peer review process concluded were not statements in furtherance of

defendants' right of petition or free speech and, therefore, are not protected by section

425.16. (See Cashman, supra, 29 Cal.4th at p. 78 ["defendant's act underlying the

plaintiff's cause of action must itself have been an act in furtherance of the right of

petition or free speech"].)

Because we conclude that the defendants failed to meet their threshold burden to

show that DeCambre's claims for harassment, IIED and defamation arose from

constitutionally protected activity, it is unnecessary to address whether DeCambre met

her burden to establish a reasonable probability that she could prevail on these claims.

11 We also reject defendants' contention that DeCambre's claims fall under subdivision (e)(4) of section 425.16, a catch-all that protects "any other conduct in furtherance of the constitutional rights of petition [or free speech] in connection with a public issue or an issue of public interest." We take no issue with defendants' assertion that physician competence and behavior are matters of public interest and may be entitled to anti-SLAPP protection under subdivision (e)(4). However, we do not agree with defendants that DeCambre's claims of harassment and IIED are based on defendants' efforts to address DeCambre's allegedly improper behavior. As discussed, the claims are based on harassing conduct that DeCambre alleges the defendants perpetrated against her, apart from her own conduct. The allegedly harassing statements and actions that DeCambre sets out in her complaint were not matters of public interest in the sense that the defendants assert. 24 4. Retaliation, discrimination, failure to prevent discrimination, wrongful termination and violations of the UCL and Cartwright Act

a. These claims arise from protected activity

In contrast to the causes of action discussed in the preceding section, the

defendants' special motions to strike did adequately demonstrate that DeCambre's claims

for retaliation, discrimination, failure to prevent discrimination, wrongful termination and

violations of the UCL and Cartwright Act are protected by the anti-SLAPP statutes. As

discussed, "[w]hen a [complaint] presents a mixed cause of action that involves protected

and nonprotected activities, . . . the question presented is 'whether the gravamen of the

cause of action targets protected activity. [Citation.] . . . Stated differently, the question

is whether the protected activity is merely an incidental part of the cause of action." (City

of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767.) Allegations of acts that "could

each be the sole and adequate basis for liability under the cause of action" are not

properly categorized as incidental to the cause of action. (Haight Ashbury Free Clinics,

Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551.) In determining

whether allegations pertaining to protected activity are incidental, courts often consider

whether the allegations constitute a substantial or significant part of the factual

allegations underlying the claim. (See, e.g., A.F. Brown Electrical Contractor, Inc. v.

Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125 [a "cause of action is

vulnerable to a special motion to strike under the anti-SLAPP statute only if the protected

conduct forms a substantial part of the factual basis for the claim"]; Salma v. Capon

(2008) 161 Cal.App.4th 1275, 1288 ["[A]llegations of protected conduct in the original

25 intentional interference claim were not merely incidental to the allegations of unprotected

conduct. They represent the bulk of the allegations underlying the cause of action."].)

Unlike DeCambre's claims for harassment and IIED, the defendants' decision not

to renew DeCambre's contract is central to her causes of action for retaliation,

discrimination, failure to prevent discrimination and wrongful termination. Liability for

each of these claims rests on that decision. A wrongful termination claim requires a

termination, and an essential element of DeCambre's claims for retaliation, discrimination

and failure to prevent discrimination under FEHA is an adverse employment action.

(Gov. Code, § 12940, subds. (a), (h), & (k); Horsford v. Board of Trustees of California

State University (2005) 132 Cal.App.4th 359, 373.) The only adverse employment action

that DeCambre alleges is the nonrenewal of her contract.

DeCambre contends that the motive for her termination was discriminatory and,

therefore, the termination is not protected by the anti-SLAPP statute. "But the anti-

SLAPP statute applies to claims made in connection with the protected activity,

regardless of the defendant's motive, or the motive the plaintiff may be ascribing to the

defendant's conduct." (Nesson, supra, 204 Cal.App.4th at p. 83.) The defendants showed

that their decision not to renew DeCambre's contract stemmed from the protected peer

review activity that began in 2009. This showing is sufficient to satisfy the first prong of

the anti-SLAPP analysis.

The same is true for DeCambre's UCL and Cartwright Act causes of action. Her

UCL cause of action asserts that the defendants "deprived Plaintiff of the right to earn a

living as a pediatric urologist in San Diego County and have attempted to deprive her of

26 staff privileges to treat patients." Similarly, her Cartwright Act claim alleges that the

defendants threatened "to deny and revoke from Plaintiff, a duly licensed and

accomplished pediatric urologist, the medical staff privileges to which she was rightfully

entitled, and access to the patient population she seeks to serve." Without defendants'

decision to terminate DeCambre, these claims would be baseless. The thrust of both

claims is that defendants' termination of DeCambre was itself unlawful, and that her

termination unlawfully had the effect of restricting competition in the market for pediatric

urology services.

B. DeCambre failed to show a probability of succeeding on the merits of her claims for retaliation, discrimination, failure to prevent discrimination, wrongful termination and violations of the UCL and Cartwright Act

Because the defendants made the requisite prima facie showing that these claims

are based on protected conduct, DeCambre was required to demonstrate a probability of

prevailing on these claims. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29

Cal.4th 53, 67.) In assessing whether a plaintiff has shown a probability of prevailing,

courts consider the pleadings and evidence submitted by both the plaintiff and the

defendant. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80.)

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." (Wilson v. Parker, Covert & Chidester (2002) 28

Cal.4th 811, 821.) For this prong of the anti-SLAPP analysis, a plaintiff cannot rely on

the allegations of his or her complaint, but must present competent and admissible

27 evidence showing that she has a legally sufficient claim. (Tuchscher Development

Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1237.)

We agree with the trial court that DeCambre failed to adequately show a

probability of prevailing on the merits of these claims. With respect to DeCambre's claim

of wrongful termination under the FEHA, DeCambre provides no argument or discussion

of the merits of the claim. We therefore deem it abandoned. (See Oviedo v. Windsor

Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 108, fn. 9 ["Issues as to which an

appellant provides no argument or discussion are deemed waived and are properly

disregarded."].) With respect to her claims for retaliation, discrimination and failure to

prevent discrimination, dismissal of these claims was appropriate because DeCambre

failed to make a sufficient showing that the defendants' asserted rational for the decision

not to renew her contract was pretextual.

In order to defeat summary adjudication of retaliation and discrimination claims

under the FEHA, a plaintiff must show that she was engaged in a protected activity or

was a member of a protected class, that she was subjected to an adverse employment

action, and that there was a causal connection between the protected activity or class and

the alleged adverse action. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th

986, 1004.) Once this prima facie case is established, the burden shifts to the defendants

to show that they have a "legitimate nonretaliatory explanation" for the adverse

employment action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467,

476.) If defendants make this showing, the plaintiff must then establish that the

"defendant's proffered explanation is merely a pretext for the illegal termination." (Ibid.)

28 " 'The [employee] cannot simply show that the employer's decision was wrong or

mistaken . . . . Rather, the [employee] must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer's

proffered legitimate reasons for its action that a reasonable factfinder could rationally

find them "unworthy of credence," [citation], and hence infer "that the employer did not

act for the [the asserted] non-discriminatory reasons." ' " (Hersant v. Department of

Social Services (1997) 57 Cal.App.4th 997, 1005.)

The defendants do not dispute that DeCambre is a member of a protected class,

that any complaints she made concerning discrimination constituted protected activity, or

that the nonrenewal of her employment contract was a material adverse employment

action. However, defendants contend that DeCambre failed to show a nexus between her

protected status or activity and their decision not to renew her contract. Further, the

defendants assert that, even if DeCambre could show a causal connection, they had a

legitimate, nonretaliatory explanation for their decision not to renew DeCambre's

contract.

Defendants presented evidence of a legitimate, nonretaliatory explanation for their

decision not to renew DeCambre's contract. The undisputed evidence showed that

defendants received a significant number of complaints from patients' families about

DeCambre. In the two years prior to her termination, there were five times as many

patient complaints about DeCambre as there were regarding the physician with the next

highest number. As the trial court found, "[d]espite feedback, mentoring and coaching,

[DeCambre's] behavior did not change. The declarations of Dr[s]. Holmes and Kaufman

29 and the supporting evidence demonstrate specific instances of conduct warranting

review . . . and ultimately [nonrenewal]."

In the trial court, DeCambre argued that the defendants' proffered justification of

patient complaints was pretextual because, according to her own declaration, she

"performed her duties as a surgeon at an exceedingly high level" and she had excellent

outcomes for patients. DeCambre further pointed to her cooperation with the well-being

committee, which, she asserts, commended her for improving interpersonal relationships

with staff and also expressed concerns to DeCambre that the complaints against her were

frivolous just a few months before her termination. On appeal, DeCambre does not

address the defendants' justification for their decision not to renew her contract. Instead,

she asserts that she "could establish sufficient facts" to prove her claims. This assertion is

not sufficient to carry DeCambre's burden.12 (McGarry v. University of San Diego

(2007) 154 Cal.App.4th 97, 108 [Plaintiff must show that "there is admissible evidence

that, if credited, would be sufficient to sustain a favorable judgment."].)

Even if we look to the evidence that DeCambre relied on in the trial court, it does

not establish that the defendants' justification for the nonrenewal of her contract was

pretextual. With respect to DeCambre's claim that she was a competent surgeon, this

evidence does not refute the defendants' assertion that their contract nonrenewal was the

result of patient complaints. Nor does DeCambre's statement show that her contract

12 DeCambre's "failure to present all relevant evidence on the point 'is fatal.' [Citation.] 'A reviewing court will not independently review the record to make up for appellant's failure to carry his burden.' " (Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 113.) 30 nonrenewal was related to her gender or race, or that it constituted punishment for her

complaints about discrimination. (See Hersant v. Department of Social Services, supra,

57 Cal.App.4th at p. 1005 ["It is not enough for the employee simply to raise triable

issues of fact concerning whether the employer's reasons for taking the adverse action

were sound."].) Similarly, even if the well-being committee commended DeCambre for

"improving interpersonal relationships with staff," this fact does not undermine the

defendants' assertion that DeCambre's contract was not renewed because of ongoing

patient complaints.13

DeCambre has also failed to meet her burden as to her claims under the UCL and

Cartwright Act. DeCambre alleges that defendants engaged in a pattern and practice of

discrimination against her and other African-American and female physicians, and that

this constitutes an unlawful business practice in violation of the UCL. Under the UCL,

"[a]n 'unlawful' business activity includes ' "anything that can properly be called a

business practice and . . . at the same time is forbidden by law." ' " (Smith v. State Farm

Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 717-718.) DeCambre presented

no evidence to support this theory of liability in response to the special motions to strike.

In order to state a claim under the Cartwright Act, a plaintiff must allege " ' " '(1)

formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant

thereto, and (3) damage resulting from such act or acts.' " ' " (Marsh v. Anesthesia

Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 493 (Marsh).) " 'An antitrust

13 Further, other than her own declaration, DeCambre offered no evidence concerning the well-being committee's evaluation of her performance. 31 claim must plead the formation and operation of the conspiracy and the illegal acts done

in furtherance of the conspiracy. [Citation.] California requires a "high degree of

particularity" in the pleading of a Cartwright Act violation [citation] and therefore

generalized allegations of antitrust violations are usually insufficient.' " (Ibid.) Further,

"[i]t is well accepted that 'the " 'antitrust laws . . . were enacted for "the protection of

competition, not competitors." ' " [Citation.] . . . Injury to a competitor is not equivalent

to injury to competition; only the latter is the proper focus of antitrust laws.' " (Id. at

p. 495.)

"Injury to an individual plaintiff is insufficient to establish standing to assert

antitrust violations. [Citation.] In the medical field, sufficient, successful allegations of

antitrust injury might include negative impacts upon overall prices, quantity or quality of

medical services, resulting from the plaintiff's absence as an available provider at the

facility." (Marsh, supra, 200 Cal.App.4th at p. 495.) Importantly, " '[a] staffing decision

does not itself constitute an antitrust injury.' [Citation.] Unless the effect of the conduct

of a single health care provider is to deny patients reasonable access to any health care,

the marketplace is not significantly affected by such individualized conduct." (Id. at

pp. 498, 499.)

"Before a court will interfere with how one hospital staffs its physician needs, a

strong showing would be required that the purpose and effect of the anticompetitive

conduct, within the relevant market defined by the plaintiffs, was outside of reasonable

professional standards." (Marsh, supra, 200 Cal.App.4th at p. 499.) DeCambre alleges

that the defendants' actions have prevented her, alone, from working as a pediatric

32 urologist in San Diego. This is insufficient to show antitrust injury. DeCambre has thus

failed to show that she is likely to succeed on the merits of her Cartwright Act claim.

C. Demurrer to the defamation and intentional infliction of emotional distress claims

In addition to filing anti-SLAPP motions, each defendant also demurred to

DeCambre's complaint. RCHSD and CSSD each demurred to the entire complaint as

uncertain14 and also demurred specifically to DeCambre's causes of action for IIED,

defamation and violations of the UCL and Cartwright Act. The Regents demurred to

DeCambre's defamation cause of action. The trial court sustained the demurrers as to

DeCambre's causes of action for IIED, defamation and violations of the UCL and

Cartwright Act, and "[b]ased on the ruling on the [a]nti-SLAPP motions," denied leave to

amend.

"In evaluating a trial court's order sustaining a demurrer, we review the complaint

de novo to determine whether it contains sufficient facts to state a cause of action."

(Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589.) When a demurrer

"is sustained without leave to amend, we decide whether there is a reasonable possibility

that the defect can be cured by amendment: if it can be, the trial court has abused its

discretion and we reverse; if not, there has been no abuse of discretion and we affirm.

[Citations.] The burden of proving such reasonable possibility is squarely on the

plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

14 The court overruled the demurrer on this ground and RCHSD and CSSD have not appealed that aspect of the trial court's order. 33 Because we affirm the court's ruling granting the defendants' special motions to

strike DeCambre's causes of action for violations of the UCL and Cartwright Act, it is

unnecessary to address the demurrers to these claims. As for DeCambre's IIED cause of

action, she does not present any argument or discussion of the merits of her claim, nor

does she address possible amendment of the claim in her briefing. The cause of action is

therefore deemed abandoned. (Oviedo v. Windsor Twelve Properties, LLC, supra, 212

Cal.App.4th at p. 108, fn. 9.)

With respect to the demurrer to DeCambre's claim for defamation, we agree with

the trial court that DeCambre failed to adequately allege that the defendants' statements

were actionably defamatory. DeCambre's claim is based on statements purportedly made

to prospective employers that she was " 'not a team player.' " This statement is a

nonactionable statement of opinion and is also protected by the common interest privilege

that applies to communications concerning job performance. (See Banks v. Dominican

College (1995) 35 Cal.App.4th 1545, 1554 [statements of opinion regarding teacher's

unsuitability were not actionable as slander or libel]; and Civ. Code, § 47, subd. (c).)

In view of its ruling on the special motions to strike, the trial court did not address

DeCambre's request for leave to amend. (See Salma v. Capon, supra, 161 Cal.App.4th at

p. 1293 ["When a cause of action is dismissed pursuant to [§] 425.16, the plaintiff has no

right to amend the claim."].) On remand, the trial court is directed to determine whether

DeCambre met her burden to show that the defects in her defamation cause of action can

reasonably be cured by amendment.

34 D. Attorney fees

A defendant who prevails on an anti-SLAPP motion is entitled to recover his or

her attorney fees and costs for the motion. (§ 425.16, subd. (c)(1).) "Where the motion is

partially successful, the question is whether the results obtained are insignificant and of

no practical benefit to the moving party. [Citation.] A court awarding fees and costs for

a partially successful anti-SLAPP motion must exercise its discretion in determining their

amount in light of the moving party's relative success in achieving his or her litigation

objectives." (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th

1095, 1123.)

Each of the defendants brought a motion for attorney fees and costs under section

425.16, subdivision (c)(1). The trial court granted the motions in full, awarding RCHSD

$37,848, CSSD $53,149.23 and the Regents $24,559.40. Because we reverse the order

granting the defendants' anti-SLAPP motions in part, the award of attorney fees and costs

also must be reversed. On remand, the trial court must exercise its discretion to

determine the appropriate amount of fees and costs, if any, to which the defendants are

entitled.

IV

DISPOSITION

The December 13, 2012, order granting defendants' special motions to strike is

reversed as to DeCambre's causes of action for harassment (Gov. Code, § 12940, subd.

(j)), IIED, and defamation. The order sustaining defendants' demurrers to DeCambre's

cause of action for defamation is affirmed, but on remand the trial court is directed to

35 determine whether DeCambre should be afforded leave to amend the claim. In all other

respects the December 13, 2012, order is affirmed.

The April 4, 2013, order awarding attorney fees and costs to the defendants is

reversed. On remand the trial court is directed to determine whether defendants are

entitled to attorney fees and costs for their partially successful special motions to strike

and, if so, the reasonable amounts of such awards.

The trial court is to conduct further proceedings consistent with this decision. The

parties shall bear their own costs on appeal.

AARON, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.