Najibi v. Providence Valley Serv. Area Community Ministry Bd. CA2/2

Opinion

Filed 9/18/26 Najibi v. Providence Valley Serv. Area Community Ministry Bd. CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

SASAN NAJIBI, B341973

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23STCP01247)

v.

PROVIDENCE VALLEY SERVICE AREA COMMUNITY MINISTRY BOARD et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County. Curtis A. Kin, Judge. Affirmed.

Athene Law, Long Xuan Do and Avi W. Rutschman for Plaintiff and Appellant.

Arentfox Schiff, Debra J. Albin-Riley, Nora K. Stilestein and Tyler J. Franklin for Defendants and Respondents.

________________________________

Dr. Sasan Najibi filed a traditional writ of mandate action (Code Civ. Proc., § 1085) following suspension of his medical staff privileges and while a peer review proceeding for potential termination of privileges was pending. The trial court sustained a demurrer filed by defendants. In an earlier appeal, we affirmed the order and resulting dismissal. (Najibi v. Providence Valley Service Area Community Ministry Board et al. (May 23, 2025, B338255) [nonpub. opn.].)

Prior to completion of the earlier appeal, the trial court entered an order awarding attorney fees to defendants. Najibi now appeals from that order. We affirm.

BACKGROUND

Allegations The relevant factual allegations in this matter are drawn from the first amended petition for writ of mandate (the Petition), as summarized in our prior opinion.

Najibi, a board-certified vascular surgeon licensed in California since 1998, has been part of the medical staff at Providence Saint Joseph Medical Center (Hospital) since 2002. He served for over five years on the medical staff’s Medical Executive Committee (MEC) and was twice elected chief of staff. The MEC generally has authority to review physician conduct and clinical care, including the power to suspend staff privileges and initiate peer review.

Providence Valley Service Area Community Ministry Board (Board), the Hospital’s governing body, is made up of community members and physicians and is responsible for oversight of medical staff matters. The Petition named as defendants the Board, the Hospital, and the nonprofit corporation that owns the Hospital.

The Petition alleged that, beginning in late 2021, the Hospital’s administrative leadership initiated an investigation into the workplace environment, focusing on Najibi and another physician, the then chief of staff. The Board formed an ad hoc committee to review the investigation’s findings and conduct additional factfinding. The MEC

3

was not notified that the investigation would focus on Najibi, nor was it requested to assist. Najibi himself was not informed that he was under investigation for improper conduct.

On June 1, 2022, the Board’s committee presented its findings to the MEC, stating that Najibi and the chief of staff were responsible for an “overall toxic work environment and culture” that “created a workplace filled with tension and hostility that directly impacts patient care,” and that the two “presented an imminent danger to patient and caregiver safety.” According to the Petition, the Board “demanded” that the MEC immediately impose a summary suspension of Najibi’s staff privileges. The Petition alleged that the Board’s demand and presentation were deficient, lacking evidence of improper medical care and relying on vague statements from unidentified witnesses. The Petition additionally asserted that MEC members were given approximately 30 minutes to review the workplace investigation report and then directed to immediately suspend Najibi’s privileges, without consideration of less severe remedies.

According to the Petition, the MEC, after deliberation, refused to impose the requested summary suspension, allegedly citing insufficient evidence of imminent danger and lack of direct evidence supporting the investigation. The MEC communicated its preference for further investigation to the Board, but the Board unilaterally imposed summary suspension of Najibi’s privileges. The MEC declined to ratify the suspension.

Najibi filed a prior traditional mandate action in superior court challenging the summary suspension. After the superior court denied Najibi’s request for a preliminary injunction, he filed a dismissal without prejudice of that earlier action.

Subsequently, in September 2022, defendants notified Najibi of the commencement of a formal peer review proceeding recommending confirmation of the suspension as well as permanent termination of

4

privileges and medical staff membership. This peer review proceeding remains ongoing.

Najibi commenced this action in April 2023. The Petition detailed alleged flaws in the peer review process, including redactions in document production, use of arbitrators instead of medical staff members for the hearing panel, and appointment of physicians from outside the Hospital to serve on the panel. Najibi contended that these and related actions were improper in that they violated the Hospital’s medical staff bylaws and/or statutory law governing peer review, particularly Business and Professions Code section 809.05 (section 809.05).

The Petition pleaded two causes of action for writ of mandate under Code of Civil Procedure section 1085, one related to the summary suspension of staff privileges, and the other related to the composition of the peer review panel and other matters in the continuing peer review proceeding. Demurrer ruling and prior appeal Defendants filed a demurrer to the Petition, relying on two separate grounds: (1) that Najibi’s claims could not be brought under a writ of traditional mandate because Najibi failed to allege violation of a ministerial duty or an actionable abuse of discretion, and (2) that Najibi failed to exhaust his administrative remedies before seeking judicial relief. The trial court sustained the demurrer based on the first ground, with leave to amend.

Rather than amending the Petition, Najibi allowed the deadline for amending to expire and then filed a voluntary request for dismissal of the entire action, with prejudice. Dismissal was entered by the clerk. Najibi appealed.

In affirming the trial court order sustaining the demurrer and the dismissal, we concluded that Najibi failed to exhaust his administrative remedies, an omission that was fatal to his traditional mandate action. We observed that Najibi brought the action, which

5

challenged the peer review process, while the peer review proceeding was pending. Najibi thus had an administrative remedy available, and there was no dispute that it had not been exhausted. Moreover, the futility exception to the exhaustion of remedies doctrine did not apply. Subject fees award Meanwhile, while the prior appeal was pending, defendants moved for attorney fees under Business and Professions Code section 809.9 (section 809.9), which allows, in certain circumstances, for recovery of costs and attorney fees by a substantially prevailing party in an action challenging the suspension of medical privileges. Defendants requested a total of $443,520.

The trial court granted defendants’ fees motion, though it awarded fees in the amount of $288,888, finding that there was excessive billing. The trial court concluded that Najibi’s bringing of and litigation of the traditional mandate action was frivolous, unreasonable, without foundation, and in bad faith, thereby justifying an award of attorney fees to defendants, the prevailing parties. The reasoning in the trial court’s order largely followed its reasons for sustaining the demurrer. The court found that the allegations Najibi made in support of his first cause of action—involving whether the Board “ ‘consulted’ ” with the MEC, whether the Board “ ‘failed to give great weight’ ” to the MEC’s decision not to summarily suspend petitioner, whether the Board’s decision to suspend petitioner was “ ‘arbitrary and capricious,’ ” and whether the Board suspended petitioner without a showing that failing to suspend petitioner “ ‘may result in an imminent danger to the health of any individual’ ”— involved discretionary, not mandatory duties, and therefore could not support traditional mandate relief. As to the second cause of action, the trial court found that the appointment process for the peer review panel was also discretionary. Moreover, any alleged violation of the medical staff bylaws could potentially give rise only to a later administrative mandate claim, not a premature traditional mandate

6

action. For these and related reasons, the court found that Najibi’s “conduct in bringing and litigating the instant suit was frivolous, unreasonable, without foundation and in bad faith.”

Najibi timely appealed from the trial court’s order. A postjudgment order awarding fees is appealable. (Code Civ. Proc., § 904.1, subd. (a)(2); Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1520.)

DISCUSSION

I. Statutory basis for fees award Section 809.9 provides: “In any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to [Business and Professions Code] Section 805, the court shall, at the conclusion of the action, award to a substantially prevailing party the cost of the suit, including a reasonable attorney’s fee, if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith.” As relevant here, a report is required under Business and Professions Code section 805 (section 805) when a physician’s staff privileges or membership are restricted “for a cumulative total of 30 days or more for any 12-month period, for a medical disciplinary cause or reason,” or “if the summary suspension remains in effect for a period in excess of 14 days.” (§ 805, subds. (b)(3), (e).)

The allegations of Najibi’s Petition confirm that his staff privileges were suspended for a continuous period of far greater than 14 days, and that the cause of the suspension was for disciplinary reasons. Najibi makes a perfunctory argument that sections 809.9 and 805 nevertheless do not apply to this action because his traditional mandate claim did not challenge the summary suspension. The Petition demonstrates otherwise. In the prayer section of the Petition, Najibi sought a writ “[r]equiring Respondents to set aside the summary suspension of Petitioner and cease taking any action against Petitioner to enforce such . . . summary suspension.” Because Najibi’s action

7

challenged a reportable restriction under section 805, fees were potentially awardable under section 809.9.

Najibi also asserts, in conclusory fashion, that defendants were not substantially prevailing parties. This argument likewise fails. As defendants obtained a complete dismissal of Najibi’s Petition at the pleading stage, it would be unreasonable to consider them anything but prevailing parties. Section 809.9 provides: “a defendant shall not be considered to have substantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief. For the purpose of this section, a plaintiff shall not be considered to have substantially prevailed when the plaintiff does not obtain an award of damages or permanent injunctive or declaratory relief.” Najibi did not obtain any sort of damages or other relief from the court through his action. Defendants thus substantially prevailed. (See also Code Civ. Proc., § 1032, subd. (a)(4) [“ ‘Prevailing party’ includes . . . a defendant in whose favor a dismissal is entered”].) II. Najibi’s filing and litigation of this action was frivolous, unreasonable, and without foundation A. Applicable law Najibi argues that the trial court erred in awarding attorney fees to defendants because his “conduct in bringing, defending, or litigating the suit” was not, as required by the statute, “frivolous, unreasonable, without foundation, or in bad faith.” (§ 809.9.)

“Whether an action is ‘frivolous,’ ‘unreasonable,’ or ‘without foundation’ under a statute authorizing an award of costs or attorney fees presents a question of law we review de novo where, as here, the pertinent facts are not in dispute. [Citations.] In analyzing this issue, courts employ the objective standard applicable to sanctions statutes, which looks to what a hypothetical reasonable attorney would do under the circumstances.” (Asiryan v. Medical Staff of Glendale Adventist Medical Center (2024) 100 Cal.App.5th 947, 974 (Asiryan).)

8

The terms “frivolous,” “unreasonable,” and “without foundation”

under section 809.9 have common characteristics. (Asiryan, supra, 100 Cal.App.5th at p. 975.) “[A] matter is frivolous if any reasonable attorney would agree it is completely without merit in the sense that it lacks legal grounds, lacks an evidentiary showing, or involves an unreasonable delay.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 33 (Smith).) “A claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ ” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) Similarly, a claim is considered objectively unreasonable if “ ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ ” (Ibid.) And a suit is “ ‘without foundation’ if there is no direct or circumstantial evidence supporting the plaintiff’s factual assertions, or if there is no statute, regulation, case law, or other legal authority supporting the plaintiff’s legal contentions.” (Asiryan, at p. 975.)

B. Najibi’s action was clearly barred due to his failure to exhaust administrative remedies The trial court found that both of Najibi’s causes of action failed to allege facts that could support traditional mandamus, and therefore Najibi’s conduct in bringing the action was frivolous, unreasonable, and without foundation. We affirm the trial court’s order awarding fees but conclude that the action met section 809.9’s standard for a more basic reason: Najibi brought this action without exhausting his administrative remedies, an act which by itself was frivolous, unreasonable, and without foundation. We thus have no cause to consider the trial court’s other stated reasons.

As we explained in our prior opinion, the Petition expressly described its claims as (1) “challenging the procedural correctness” of the summary suspension of Najibi’s privileges, and (2) “compelling Respondents to strictly abide by the procedural rules” under California

9

law and the Hospital’s medical staff bylaws in the ongoing peer review proceeding. The Petition specifically stated: “This writ petition and action is directed at a formal peer review proceeding.”

We conclude that Najibi’s effort at challenging the peer review proceeding prior to its completion was objectively frivolous, unreasonable, and without foundation. It is well established that the doctrine of exhaustion of remedies applies to hospital peer review proceedings. (Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85, 100; Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) A physician “challenging the propriety of a hospital’s denial or withdrawal of staff privileges must pursue the internal remedies afforded by that hospital to a final decision on the merits before resorting to the courts for relief.” (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 619 (Unnamed Physician).) As our Supreme Court has explained, “before a doctor may initiate litigation challenging the propriety of a hospital’s denial or withdrawal of privileges, he must exhaust the available internal remedies afforded by the hospital.” (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 469.) There is no question that Najibi failed to exhaust his internal remedies prior to bringing this action even though a review of the relevant case law would have demonstrated that exhaustion was necessary.

Although Najibi complained of alleged procedural errors in the summary suspension and the peer review process, these errors, to the extent cognizable, could be addressed, if necessary, in an administrative mandate action following the completion of the administrative proceeding. (See El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 987 (El-Attar).) Where “a physician challenges the procedures by which a hospital terminated his or her staff privileges, the judicial inquiry ‘extend[s] to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any

10

prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’ ” (Id. at pp. 987–988, quoting Code Civ. Proc., § 1094.5, subd. (b) [the administrative mandate statute].)

Due to the fact that Najibi had an immediate remedy available to address his complaints—the peer review proceeding itself—he had no grounds to bring this traditional mandate action. “When seeking relief under traditional mandamus, the exhaustion requirement speaks to whether there exists an adequate legal remedy. If an administrative remedy is available and has not yet been exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary relief. ‘A remedy will not be deemed inadequate merely because additional time and effort would be consumed by its being pursued through the ordinary course of the law. [Citation.]’ [Citation.] Inconvenience does not equal irreparable injury.” (Unnamed Physician, supra, 93 Cal.App.4th at p. 620.)

Najibi’s vague allegations of possible procedural improprieties associated with the suspension of his staff privileges—that the Board allegedly did not give “great weight” to the findings of the MEC or adequately consult with it, and assertedly acted in an arbitrary or capricious manner—did not give him license to sidestep the administrative process. (See Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1124–1125 [in traditional mandate, a “clear” abuse of discretion is required, and the petitioner’s right to the action must be “clearly established”]; see also Eight Unnamed Physicians, supra, 150 Cal.App.4th at p. 514 [“The mere will-o’-thewisp potential for prejudice at this stage is insufficient to overcome the requirement of exhaustion of remedies”].) Nor did alleged failures to comply with the medical staff bylaws in choosing members of the peer review panel. (See Bollengier, at pp. 1127–1128 [claim that bylaws were being violated, as opposed to a claim challenging the bylaws

11

themselves, could not support mandate relief prior to completion of the administrative proceeding]; see also Unnamed Physician, supra, 93 Cal.App.4th at p. 621 [distinguishing Bollengier when bylaws were alleged to be deficient].) Again, to the extent cognizable, these issues could be addressed in a later administrative mandate action. (See El- Attar, supra, 56 Cal.4th at pp. 987–988.) Moreover, Najibi’s allegations did not support application of the “very narrow” futility exception to the exhaustion requirement, since neither the Board nor the panel had declared what its ruling would be. (See Bollengier, at p. 126; Kaiser Foundation Hospitals v. Superior Court, supra, 128 Cal.App.4th at p. 101.)

As Najibi lacked legal grounds for this traditional mandate action, it was frivolous. (Smith, supra, 188 Cal.App.4th at p. 33.) The claim was not allowed under existing law and no “ ‘good faith argument for the extension, modification, or reversal of existing law’ ” was apparent. (See Peake, supra, 227 Cal.App.4th at p. 440.) For similar reasons, case law also supports the conclusion that the action was objectively unreasonable (ibid.) and that it was brought and litigated without foundation (Asiryan, supra, 100 Cal.App.5th at p. 975). Simply put, because the inescapable conclusion is that Najibi’s traditional mandate action was barred by his failure to exhaust administrative remedies, a hypothetical reasonable attorney would not have filed it. (See id., at p. 974.)1

1 Najibi additionally argues that the trial court’s sustaining of the demurrer with leave to amend showed that it was not frivolous. Najibi never amended his complaint, though, and there is no indication that it could have been amended in a manner that would avoid the bar of failure to exhaust remedies. (See Soliz v. Williams (1999) 74 Cal.App.4th 577, 585 [“ ‘When a plaintiff elects not to amend the complaint, it is presumed that the complaint states as strong a case as is possible’ ”].) Najibi also asserts that the California Medical Association’s filing of an amicus brief in the earlier appeal in support of Najibi’s claims demonstrates that a reasonable attorney would find the

12

C. The court had authority to award fees In this appeal, Najibi makes the additional argument that—given our determination that the action was jurisdictionally barred due to a failure to exhaust administrative remedies—the court could not properly entertain a fees motion because it was divested of jurisdictional authority to do so. Najibi asserts that the court lacked jurisdiction to determine either that there was a “ ‘substantially prevailing party’ ” or that “ ‘the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith’ ” under section 809.9.

In support of this argument, Najibi cites to Hon v. Marshall (1997) 53 Cal.App.4th 470 (Hon), in which this division reversed an attorney fees award where a grant of summary judgment was based on lack of jurisdiction due to the plaintiff failing to exhaust administrative remedies. Although Hon involved superficially similar circumstances— a jurisdictional defect of failure to exhaust—its holding is not applicable to the attorney fees award in this matter. Hon examined the “narrow question” of “whether a defendant who is granted summary judgment because of such a jurisdictional defect qualifies as a ‘prevailing party’ entitled to an attorney fee award under [Government Code] section 12965.” (Id. at p. 475.) The fact that Hon arose under the Fair Employment and Housing Act (FEHA) was determinative, since, as the opinion noted, “California courts often rely on federal decisions interpreting [similar federal] statutes for assistance in construing analogous provisions of the FEHA.” (Id. at p. 475.) The opinion followed federal decisions interpreting those federal statutes in finding fees not properly awardable. (Id. at pp. 475–478.) The court explained: “We are reluctant . . . to ignore a body of federal law which

claims to be supported and plausible. As noted in our prior opinion, however, the amicus brief focused on issues other than exhaustion of remedies.

13

has litigated the question before this court under analogous attorney fee formulations and concluded that an award should not be made to defendants who ‘prevail’ as a consequence of a jurisdictional defect.” (Id. at p. 477.) Moreover, the court reasoned that permitting “an award of attorney fees in situations of the type presently before us would provide an incentive for plaintiffs to file suit in federal courts under the federal civil rights statute with its firmly entrenched policy disfavoring attorney fee awards to prevailing defendants.” (Ibid.)

In contrast, although section 809.9 allows for an attorney fees award only if certain conditions are met, there is no firmly entrenched policy disfavoring fees awards to prevailing defendants. (See Asiryan, supra, 100 Cal.App.5th at p. 956 [affirming order awarding fees to defendant for claims resolved on summary judgment].) And there is no indication, either in the language of Hon itself or in cases following it, that its rationale applies in California courts outside of the limited context of a FEHA action. Indeed, attorney fees awards have been upheld in a variety of California actions decided on the basis of a jurisdictional defect. (See, e.g., Barry v. State Bar of California (2017) 2 Cal.5th 318, 321 [holding that court lacking subject matter jurisdiction could still properly award fees to the defendant under Code of Civil Procedure section 425.16]; Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1039 [awarding fees under Civil Code section 1354 to defendant when plaintiffs lacked standing]; accord, Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1014–1016.)

Section 809.9, by its terms, applies to “any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to Section 805.” Neither the language of the statute itself nor any applicable authority prohibits an attorney fees award when a defendant substantially prevails due to a jurisdictional defect.

14

In conclusion, because Najibi brought and litigated this action without exhausting his administrative remedies, conduct that was frivolous, unreasonable, and without foundation, the award of attorney fees to defendants was proper.

DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

RICHARDSON, J.