Oasis Independent Medical Associates v. Lopez CA4/2

Opinion

Filed 9/25/25 Oasis Independent Medical Associates v. Lopez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

OASIS INDEPENDENT MEDICAL ASSOCIATES, INC., E082871, E083728 Plaintiff and Respondent, (Super.Ct.No. CVPS2304878) v. ORDER MODIFYING OPINION JOB LOPEZ et al., [NO CHANGE IN JUDGMENT] Defendants and Appellants. ___________________________________

JOB LOPEZ, et al.,

Cross-complainants and Appellants,

vs.

OASIS INDEPENDENT MEDICAL ASSOCIATES, et al.,

Cross-defendants and Respondents.

1 The petition for rehearing filed by appellant on September 12, 2025, is denied.

The opinion filed in this matter on August 28, 2025, is modified as follows:

Following the third paragraph on page 15, and prior to the first paragraph on

page 16, we insert the following..

Lopez Associates asserts that, under section 16600.5, Oasis’s

lawsuit is “not protected by section 425.16.” Section 16600.5, subdivision

(d), provides, “An employer that enters into a contract that is void under

this chapter or attempts to enforce a contract that is void under this chapter

commits a civil violation.” Our Supreme Court has concluded that

wrongful prosecution claims are not categorically exempt from anti-

SLAPP protections. (Jarrow Formulas, Inc. v. LaMarche (2003) 31

Cal.4th 728, 741.) Based upon that conclusion by our Supreme Court, it

follows that a claim under section 16600.5 would not be exempt from

anti-SLAPP protections.

The last full paragraph on page 16, which begins “Filing a lawsuit . . . ,” is

removed and replaced with the following paragraph:

Lopez Associates assert that filing a lawsuit to enforce an allegedly

void noncompete agreement is unlawful. There is not uncontroverted

evidence that the exclusivity agreement is void. In Lopez’s declaration in

opposition to the preliminary injunction, he declared, “On August 27,

2023, Oasis stated that any relationship that it had with me was

terminated. I dispute that I had a relationship with Oasis that was subject

2 to termination.” Lopez’s denial that he worked for Oasis raises a question

as to whether section 16600’s per se rule applies.

Except for these modifications, the opinion remains unchanged. The

modifications do not effect a change in the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

I concur:

CODRINGTON J.

3 Filed 8/28/25 Oasis Independent Medical Associates v. Lopez CA4/2 (unmodified opinion) Opinion following order vacating prior opinion

See concurring opinion.

NOT TO BE PUBLISHED IN 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.

OASIS INDEPENDENT MEDICAL ASSOCIATES, INC., E082871, E083728 Plaintiff and Respondent, (Super.Ct.No. CVPS2304878) v. OPINION JOB LOPEZ et al.,

Defendants and Appellants. ___________________________________

1 APPEAL from the Superior Court of Riverside County. Manuel Bustamante,

Judge. Affirmed.

Kelly, Trotter & Franzen and David P. Pruett for Defendants, Cross-

complainants and Appellants.

Doll Amir & Eley, Michael M. Amir and Paul M. Torres for Plaintiffs, Cross-

defendants and Respondents.

This opinion addresses two appeals from one lower court case. In both appeals,

the appellants are Job Lopez (Lopez), CoachellaMed, Francisco Cordova, M.D., and

Carlos Lopez, M.D. The first appeal (Court of Appeal case No. E082871) concerns the

trial court’s grant of a preliminary injunction against Lopez. The respondent in the first

appeal is Oasis Independent Medical Associates, Inc.

The second appeal (Court of Appeal case No. E083728) addresses the trial

court’s partial grant of an anti-SLAPP motion (Code Civ. Proc., § 425.16) against a

cross-complaint that was brought by Lopez, CoachellaMed, Francisco Cordova, M.D.,

and Carlos Lopez, M.D. In the second appeal, the respondents are Oasis, Desert Oasis

Healthcare, and Heritage Provider Network. We address the appeals in turn.

I. FIRST APPEAL (E082871)

Oasis Independent Medical Associates, Inc. (Oasis) sued Lopez, CoachellaMed,

Francisco Cordova, M.D., and Carlos Lopez, M.D., for unfair competition (Bus. & Prof.

Code, § 17200)1, breach of contract, and other causes of action. At the request of Oasis,

1 All subsequent statutory references will be to the Business and Professions Code unless otherwise indicated.

2 the trial court issued a preliminary injunction restraining Lopez “from providing any

false and/or misleading information to . . . Oasis’s members regarding their care” and

“from making unsolicited communications to . . . Oasis Medicare Advantage members.”

Lopez contends that, for a variety of reasons, the trial court erred in issuing the

preliminary injunction. We affirm.

FACTS

A. ALLEGED WRONGFUL ACTS

The following facts are taken from Oasis’s memorandum in support of its ex

parte application for a preliminary injunction. Independent physician associations (IPA)

contract with HMOs “to provide . . . health care services to the HMO’s members.”

“The IPA then contracts ‘downstream’ with numerous physicians to actually provide the

medical care to the IPA’s enrollees.” “Physicians may further contract ‘downstream’

with other providers.” “Oasis is an IPA which contracts with [physicians] and other

providers . . . to provide care to . . . Oasis enrollees.” Albert Anderson, M.D.

(Anderson), had a contract to treat Oasis’s members. Lopez was a nurse practitioner

who entered into a partnership with Anderson. Due to that partnership, Lopez also

treated Oasis’s members.

After years of Lopez and Anderson working together with no major issues,

Lopez mass mailed a letter to Anderson’s Oasis patients claiming that if they followed

Lopez to a different practice “with a new primary care doctor (instead of Dr. Anderson),

the ‘patients will never lose any benefits or services’ and that the patients ‘will continue

enjoying [their] benefits exactly as before.’ ” Oasis alleged the foregoing claim by

3 Lopez was false because “Oasis has many programs, services (e.g., medication

management, cardiac, and pulmonary clinics) and specialists (e.g., oncologists,

cardiologists, etc.) who will not be available with [Lopez’s new practice].” Oasis

further alleged that Lopez’s “agents, including insurance brokers, are cold calling . . .

Oasis enrollees assigned to Dr. Anderson, and pushing the same false narrative

described above.” The allegations about Oasis’s services being unique to Oasis and

unavailable to patients who leave Oasis are supported by the declaration of Melissa

Diaz, Oasis’s marketing manager.

One of Oasis’s former patients declared, “Recently, a woman called me,

unsolicited, and told me that she was calling on behalf of . . . Lopez. The woman told

me that I needed to change my primary care doctor and that such a change would not

impact my ability to continue seeing the other doctors in . . . Oasis’[s] network of

doctors. I reluctantly agreed to switch my provider. After thinking about it, however, I

called the person back and told her that I did not want to change my primary care doctor

from Dr. Anderson and that I wanted to stay with . . . Oasis. The person responded that

I could not change back.”

In Oasis’s complaint, it alleges that it sent Lopez a cease-and-desist letter on July

27, 2023. Oasis further alleged that Lopez’s wrongful acts occurred “within the past

several months.” Oasis’s complaint was filed on October 6, 2023, so we infer the

alleged wrongful acts occurred in the summer and fall of 2023. Brian Hodgkins, M.D.,

executive vice president of Oasis’s clinical operations, discovered that, within the 45

days prior to his November 2023 declaration, 80 of Anderson’s patients left his care.

4 B. EX PARTE APPLICATION

Oasis applied ex parte for a temporary restraining order and a preliminary

injunction. Oasis asserted it was likely to prevail on its cause of action for unfair

competition (§ 17200). Oasis asserted Lopez violated “Health & Safety Code § 1360[,

which] prevents the use of ‘any advertising or solicitation which is untrue or

misleading.’ ” Oasis contended that Lopez was “deceiving unsuspecting patients” into

“switch[ing] health care plans and providers.” Oasis contended its patients would suffer

irreparable harm if the injunction were not issued because their health care would be

disrupted.

C. OPPOSITION

In opposing the ex parte application, Lopez asserted that Oasis failed to

demonstrate any irreparable harm because monetary relief could cure any damage

suffered by Oasis.

D. REPLY

In Oasis’s reply, it highlighted Lopez’s failure to refute that he mass-mailed

letters containing false information to Oasis’s members and that members lost access to

their doctors. As to irreparable harm, Oasis asserted that it “showed [Lopez’s] wrongful

conduct is causing irreparable harm to Oasis members.”

E. RULING

The trial court granted the preliminary injunction restraining Lopez from

(1) “providing any false and/or misleading information to . . . Oasis’[s] . . . members

regarding their care,” (2) advising Oasis’s members “that a change in primary care

5 doctors or change in affiliations from . . . Oasis will have no impact on the members’

health care, including but not limited to continued access to specialists”; and

(3) “making unsolicited communications to . . . Oasis Medicare Advantage members

(i.e., cold-calling, letters to patients, home visits).”

The trial court’s ruling was primarily based upon its conclusion that Oasis was

likely to prevail on its cause of action for breach of the implied covenant of good faith

and fair dealing arising from a contract between Oasis and Lopez. The contract

required that, as to health maintenance organization (HMO) patients, Lopez would

exclusively work with Oasis’s members. The trial court did not expressly address the

element of irreparable harm.

As to Oasis’s cause of action for unlawful, unfair, or fraudulent business acts

(§ 17200), the trial court wrote, “Oasis argues, among other things, that NP Lopez’s

conduct violates his contractual duties under the Exclusivity Agreement, as well as

several federal and state laws precluding such types of solicitation conduct. Again,

there is no evidence that any of the other Defendants, other than NP Lopez, engaged in

any unlawful solicitation. Thus, . . . Oasis fails to show a probability of prevailing on

the merits on this cause of action as to Dr. Lopez, Dr. C[o]rdova and CoachellaMed.”

DISCUSSION

A. FALSE STATEMENTS

Lopez contends the trial court did not make a finding that Lopez made false

statements. Lopez is mistaken. The trial court’s explanation of its ruling reads, “Again,

there is no evidence that any of the other Defendants, other than NP Lopez, engaged in

6 any unlawful solicitation.” (Italics added.) That sentence reflects a finding that Oasis is

likely to prevail on its claim that Lopez engaged in an unlawful business practice (§

17200) by sending Oasis’s members untrue or misleading solicitations (Health & Saf.

Code, § 1360).

In Lopez’s appellant’s reply brief, he asserts that substantial evidence does not

support the finding that he made false claims to Oasis’s members. We do not analyze

“issues raised for the first time in a reply brief, in the absence of a showing of good

cause why such issues were not raised in the opening brief.” (Scott v. CIBA Vision

Corp. (1995) 38 Cal.App.4th 307, 322.) Lopez does not address the topic of good

cause. Consequently, we do not analyze the substantial evidence issue.

B. STOLEN INFORMATION

Lopez contends the trial court did not make a finding that he stole patient

information. Although we agree, that is not a basis for reversal. The preliminary

injunction restrains Lopez from “providing any false and/or misleading information to .

. . Oasis’s members regarding their care.” The focus of the order is on deceptive

marketing, not stolen information. The lack of a finding on a topic not pertinent to the

order fails to show that the order is erroneous.

C. COMMUNICATING WITH PATIENTS

Lopez contends the preliminary injunction prevents him from “communicating

with patients regarding their health care, ‘including, but not limited to communications

regarding treatment options, alternative plans, or other coverage arrangements.’ ”

Contrary to Lopez’s position, he is not so broadly restrained. The injunction prohibits

7 Lopez “from providing any false and/or misleading information to . . . Oasis’s members

regarding their care” and from unsolicited marketing communications. The injunction

does not bar Lopez from speaking honestly with patients regarding their health when

contacted by the patients.

D. EXCLUSIVITY AGREEMENT

1. FACTUAL AND PROCEDURAL HISTORY

Lopez had a partnership with Anderson, who had a contract with Oasis. In

Anderson’s contract with Oasis, he agreed to limit his HMO patients to Oasis’s

members. “Oasis did not wish to leave a ‘loophole’ in its exclusivity arrangement with

Dr. Anderson.” Therefore, in 2006, Oasis also entered into an exclusivity agreement

with Lopez, in which Lopez agreed that, as to HMO patients, Lopez would exclusively

work with Oasis’s members.

A clause in the exclusivity agreement reads: “At all times relevant and pursuant

to the terms and conditions of this Agreement, [Lopez] is, and shall be construed, to be

an independent contractor practicing [Lopez’s] profession and shall not be deemed to be

or construed to be an agent, servant or employee of [Oasis].”

The exclusivity agreement applies “for the full term of [the exclusivity]

Agreement and any renewal period.” The exclusivity agreement originally had a 15-year

term, which would have ended in 2021. In 2017, Oasis and Lopez agreed to extend the

exclusivity agreement into 2025.

In Lopez’s declaration, he declared, “On August 27, 2023, Oasis stated that any

relationship that it had with me was terminated. I dispute that I had a relationship with

8 Oasis that was subject to termination.” On September 25, 2023, Anderson sent a letter

to patients that reads in relevant part, “Although, Job Lopez has decided to leave my

practice . . . .”

In Oasis’s November 2023 ex parte application for a restraining order, it alleged

that the exclusivity “agreement remains valid and ongoing,” because it was designed to

last the full term of the exclusivity agreement – not merely the term of Lopez’s

partnership with Anderson. Oasis relied on the exclusivity agreement in asserting that

Lopez should be restrained from competing with Oasis. Oasis argued, “Indeed, the

requested injunction merely would require Mr. Lopez and Defendants to continue

honoring the Exclusivity Agreement and the laws concerning solicitation.”

In opposing the request for a preliminary injunction, Lopez asserted that Oasis’s

act of seeking to enforce the exclusivity agreement was an improper post-termination

restraint on employment, violative of section 16600.

The trial court concluded that section 16600 “prohibits employee noncompetition

agreements. There is no evidence that . . . Oasis and . . . Lopez had any employer-

employee relationship, such that this section is applicable.” In the trial court’s ruling, it

found that Oasis had a likelihood of prevailing on its cause of action for breach of the

implied covenant of good faith and fair dealing, which was based upon the exclusivity

agreement.

2. SECTION 16600

Under section 16600, subdivision (a), every contract that restrains a person from

engaging in their lawful profession is void. However, not every contract limiting one’s

9 work is void per se. The void per se rule applies “strictly in the context of

noncompetition agreements following the termination of employment or the sale of

interest in a business.” (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130,

1159.) In all other contractual relationships, such as “contractual restraints on business

operations and commercial dealings,” a reasonableness standard is applied to determine

whether the contract is void. (Ibid; see also Samuelian v. Life Generations Healthcare,

LLC (2024) 104 Cal.App.5th 331, 350-351.) “[A]n agreement by an . . . independent

contractor not to compete with his employer after leaving that employment is void [per

se].” (Bosley Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 288.)

3. ANALYSIS

a. Allegedly Incorrect Legal Standard

Lopez contends the order granting the preliminary injunction must be reversed

because the trial court “ ‘applie[d] the wrong legal standard[]’ ” when it concluded that

section 16600 was inapplicable. In rejecting Lopez’s section 16600 defense, the trial

court found, “There is no evidence that . . . Oasis and . . . Lopez had any employer-

employee relationship, such that this section is applicable.” Because the trial court’s

rejection had an evidentiary basis, Lopez’s contention regarding an incorrect legal

standard is misplaced.

b. Independent Contractor

Lopez contends the trial court erred in finding section 16600 inapplicable

because “the Exclusive Nurse-Practitioner Agreement at issue here, . . . describes an

10 employment as an independent contractor, within the category of contracts subject to

section 16600.”

We apply the abuse of discretion standard of review in our analysis of whether

the trial court erred in finding Oasis is likely to prevail on the merits at trial. (People ex

rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)

i. Lopez’s Evidence and Argument

Lopez’s current assertion that he worked for Oasis as an independent contractor

contradicts Lopez’s evidence and trial court argument. In Lopez’s declaration in

support of his opposition to the preliminary injunction, Lopez proclaimed he did not

work for Oasis. Specifically, Lopez declared, “On August 27, 2023, Oasis stated that

any relationship that it had with me was terminated. I dispute that I had a relationship

with Oasis that was subject to termination.”

In Lopez’s declaration, he went on to explain that he “shared in the ownership of

a family practice medical business.” Lopez declared, “During the years with Dr.

Anderson, because of my ownership interest in the practice, I always received 50% of

the capitation income paid to our practice by Oasis.” Lopez continued, “In 2016, I was

invited to an Oasis event and Dr. Hoffing provided a name tag for me that identified me

as a ‘Practice Owner.’ (Exhibit 1.) Oasis is aware that I am a co-owner of the practice

with Dr. Anderson.” Lopez’s declaration demonstrates that he was a joint owner of the

medical practice with Anderson, and the medical practice had a business arrangement

with Oasis.

11 In Lopez’s memo in opposition to the preliminary injunction, Lopez did not

assert that he worked for Oasis as an independent contractor. Rather, Lopez contended,

“There is not an enforceable covenant not to compete here. There is no evidence that

Oasis sold goodwill of a business to NP Lopez. There is no evidence to suggest that

Oasis and NP Lopez were partners or shareholders of a corporation or members of an

LLC and that NP Lopez sold any such interest to Oasis.”

Given that Lopez’s evidence contradicted a finding that he was an independent

contractor, and Lopez’s argument did not assert he was an independent contractor, the

trial court did not abuse its discretion in concluding that Oasis was likely to prevail on

the issue.

ii. Oasis’s Brief

Lopez contends that, on appeal, Oasis concedes that the exclusivity agreement

was a contract for Lopez “ ‘to provide certain medical services as an independent

contractor to Desert Oasis’[s] patient members.’ ” (Boldface omitted.)

In our reading of the respondent’s brief, Oasis is vague regarding its past

relationship with Lopez. For example, Oasis asserts, “Appellants’ argument that

Lopez’s status as an independent entrepreneur, where he reaped millions in profits

based on a contractual provision that he actively negotiated, is equivalent to an

employee working for an employer—such that the per se rule . . . applies—is without

merit.”

Oasis’s assertion that Lopez was an “entrepreneur” who “profit[ed]” implies that

Lopez was a business owner who had a business arrangement with Oasis, as opposed to

12 an independent contractor earning wages. Because Oasis’s argument can be read as

disputing that Lopez worked for Oasis as an independent contractor, Lopez has failed to

persuade us that Oasis conceded the issue.

iii. Conclusion

The trial court found no persuasive evidence of an employment relationship

between Lopez and Oasis. Oasis did not concede that Lopez worked for Oasis as an

independent contractor. In Lopez’s evidence and trial court arguments, he rejected any

notion that he worked for Oasis. Accordingly, Lopez has failed to demonstrate that the

trial court erred in concluding that section 16600’s per se rule did not apply in this case.

E. CONCLUSION

We have not been presented with an argument demonstrating that the trial court

erred in granting the preliminary injunction. Accordingly, we will affirm the order.

II. SECOND APPEAL (E083728)

Lopez, CoachellaMed, Francisco Cordova, M.D., and Carlos Lopez, M.D.

(collectively, Lopez Associates) cross-complained against Oasis, Desert Oasis

Healthcare, and Heritage Provider Network (collectively, Oasis Network). The trial

court granted, in part, Oasis Network’s anti-SLAPP motion. (Code Civ Proc., §

425.16.) Lopez Associates contend the trial court erred by partially granting the anti-

SLAPP motion. We affirm.

In their first amended cross-complaint (FACC), Lopez Associates sought a

judicial declaration that the exclusivity agreement was void under section 16600. In

13 their second cause of action, Lopez Associates alleged that Oasis’s lawsuit, which

included a claim for breach of the exclusivity agreement, constituted unfair competition

(§ 17200) because the exclusivity agreement is an improper restraint on Lopez

practicing his profession. The following is a quote from Lopez Associates’ second

cause of action: “[Oasis’s] . . . filing of an action in court to attempt to enforce

restraints of trade, so as to suppress competitive employment in California, violate

California’s unfair competition law and public policy against restraints of trade,

Sections 16600 and 17200.”

In partially granting the anti-SLAPP motion, the trial court struck: (1) the

entirety of Lopez Associates’ second cause of action; (2) in the fourth cause of action,

paragraph 73, the portion reading, “ ‘and attempted enforcement of Exclusivity

Contracts with NP Lopez’ ”; (3) paragraph 24, which reads, “ ‘Those threats have

included threats of entangling competitors in litigation, with cease and desist letters,

including threats of injunctions, to deter competitors from contracting with health care

providers who were induced to sign cross-defendants’ Exclusivity Contract’ ”; and

(4) the portion of paragraph 1 reading, “ ‘including threats of litigation and

commencement of litigation by those cross-complainants in an effort to achieve

restraints of health care providers’ professions, trades, and business by virtue of cross-

defendants’ Exclusivity Contracts.’ ”

14 DISCUSSION

A. STANDARD OF REVIEW

“To resolve an anti-SLAPP motion, the trial court engages in a two-step inquiry.

First, the court decides whether the defendant has made a threshold showing that the

challenged cause of action arises from a protected activity. [Citation.] The moving

party has the burden of showing that the challenged cause of action arises from a

protected activity. [Citation.] Second, if the moving party has carried that burden, the

court must decide whether the opposing party has demonstrated a probability of

prevailing on the challenged cause of action. [Citation.] ‘The trial court’s rulings on

both issues are reviewed de novo.’ ” (City of Oxnard v. Starr (2023) 88 Cal.App.5th

313, 320.)

B. PROTECTED ACTIVITY

A protected activity is one arising from an act in furtherance of a person’s “right

of petition or free speech.” (Code Civ. Proc., § 425.16, subd. (b)(1).) That includes

“any written or oral statement or writing made before a . . . judicial proceeding” or

“under consideration or review by a . . . judicial body.” (Id. at subds. (e)(1) & (2).)

The portions of the FACC stricken by the trial court all pertain to Oasis’s actions

in bringing its complaint against Lopez Associates. Oasis’s complaint constitutes a

writing before a judicial proceeding that is also under consideration by a judicial body.

Therefore, the stricken portions of the FACC pertain to the protected activity of Oasis

suing Lopez Associates.

15 Lopez Associates contend the exclusivity agreement is void per se under section

16600, as a posttermination noncompete agreement, and suing to enforce a void

agreement is not a protected activity. In support of their position, Lopez Associates cite

a case from this court, Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711-712.

That case provides: “Unlawful or criminal activities do not qualify as protected

speech or petition activities under the anti-SLAPP statute. [Citations.] But when the

defendant’s assertedly protected activity may or may not be unlawful, the defendant

may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law.

[Citation.] An activity may be deemed unlawful as a matter of law when the defendant

does not dispute that the activity was unlawful, or uncontroverted evidence conclusively

shows the activity was unlawful.” (Dwight R. v. Christy B., supra, 212 Cal.App.4th

697, 711-712.)

Filing a lawsuit is not an unlawful or criminal activity. Lopez Associates assert

that filing a lawsuit to enforce an allegedly void noncompete agreement is unlawful. If

we accept that premise as true, there is not uncontroverted evidence that the exclusivity

agreement is void. In Lopez’s declaration in opposition to the preliminary injunction,

he declared, “On August 27, 2023, Oasis stated that any relationship that it had with me

was terminated. I dispute that I had a relationship with Oasis that was subject to

termination.” Lopez’s denial that he worked for Oasis raises a question as to whether

section 16600’s per se rule applies.

In Lopez’s declaration in opposition to the anti-SLAPP motion, Lopez did not

deny having a relationship with Oasis, but he failed to define the relationship, e.g.,

16 employer-employee. For example: “Regarding the events leading to the termination of

the contractual relationship with Oasis . . . . By that letter, Oasis stated it could

‘terminate the agreement immediately.’ [Citation.] And, Oasis stated that unless I did

what it told me in its letter that it would terminate its relationship with me . . . .” Lopez

did not indicate if he worked for Oasis as an independent contractor or if he had a

business arrangement with Oasis as a co-owner of the medical practice with Anderson.

As a result, there is not uncontroverted evidence demonstrating that the exclusivity

agreement is void, such that it would be unlawful to seek to enforce it. The trial court

did not err in finding that Oasis’s complaint constitutes a protected activity.

C. PROBABILITY OF PREVAILING

Lopez Associates, as the cross-complainants, bore the burden of proving a

probability of prevailing. (Code Civ. Proc., § 425.16, subd. (b)(1).) In the second cause

of action, Lopez Associates alleged that Oasis’s initiation of litigation to enforce the

exclusivity agreement was an “unfair business practice[] under Sections 16600 and

17200.” Because the unfair business practice claim (§ 17200) is based upon section

16600, Lopez Associates must demonstrate a probability of establishing that the

exclusivity agreement is either (1) void per se or (2) void under the reasonableness

standard. (Samuelian v. Life Generations Healthcare, supra, 104 Cal.App.5th at pp.

350-351.) Lopez Associates rely solely on the void per se rule and assert that Lopez

worked for Oasis as an independent contractor.

In Lopez Associates’ opposition to the anti-SLAPP motion, it provided law

concerning section 16600 and independent contractors. For example, “ ‘[A]n agreement

17 by an employee or independent contractor not to compete with his employer after

leaving that employment is void.’ [Citations.]” In terms of evidence, Lopez Associates

relied on Lopez’s declaration in support of the opposition to the anti-SLAPP motion,

which referred to a generic relationship between Lopez and Oasis – it did not identify

Lopez as an independent contractor. Given Lopez did not declare himself to be an

independent contractor, there is not a probability of Lopez Associates prevailing on the

independent contractor/void per se theory. As a result, they have failed to establish a

probability of prevailing on their claim that Oasis engaged in an unfair business practice

(§ 17200).

D. CONCLUSION

The trial court did not err in partially granting the anti-SLAPP motion.

DISPOSITION

The order granting the preliminary injunction is affirmed. The order partially

granting the anti-SLAPP motion is affirmed. In both appeals, respondents are awarded

their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

18 [Oasis Independent Medical Associates, Inc. v. Lopez, E082871; Lopez v. Oasis Independent Medical Associates, Inc., E083728]

MENETREZ, J., Concurring.

The preliminary injunction prohibits only false or misleading communications and

unsolicited marketing communications. Appellants’ arguments concerning Business and

Professions Code section 16600 do not show that prohibiting those communications was

an abuse of discretion.

The special motion to strike was granted only as to allegations concerning

respondents’ litigation or prelitigation conduct. That conduct is protected activity under

Code of Civil Procedure section 425.16 and is covered by the litigation privilege. (Dove

Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784; Rubin v.

Green (1993) 4 Cal.4th 1187, 1194-1195.) Appellants’ arguments concerning Business

and Professions Code section 16600 again fail to show error, because even meritless

litigation is protected activity and is covered by the litigation privilege.

I therefore concur in the judgment.

MENETREZ J.