Filed 7/12/13 Brough-Stevenson v. Community Emergency Medical Assocs. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


GLORIA BROUGH-STEVENSON,
                                                                                           F063875
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. 11CECG01089)
                   v.

COMMUNITY EMERGENCY MEDICAL                                                              OPINION
ASSOCIATES et al.,

         Defendants and Appellants.



         APPEAL from an order of the Superior Court of Fresno County. Donald S. Black,
Judge.
         Dowling Aaron Incorporated, Donald R. Fischbach, Daniel O. Jamison, Stephanie
Hamilton Borchers and Matthew R. Dildine for Defendants and Appellants.
         Smith Johnson, Inc., William J. Smith, Kirby F. Cañon and C. Michael Carrigan
for Plaintiff and Respondent.
                                                        -ooOoo-
         Appellants, Community Regional Medical Center (CRMC), Clovis Community
Medical Center (Clovis Community), Craig Castro, Craig Wagoner, Mason Mathews,
R.N., and Gene Kallsen, M.D., challenge the trial court‟s denial of their motion to strike
the complaint filed by respondent, Gloria Brough-Stevenson, M.D., as a strategic lawsuit
against public participation (SLAPP). (Code Civ. Proc.,1 § 425.16.) Respondent‟s
causes of action are based on allegedly defamatory statements made by appellants
regarding respondent‟s performance as an emergency room physician. Appellants
contend that the subject statements are entitled to protection under section 425.16 as acts
in furtherance of their right of free speech because public health and accessibility of
health care are issues of widespread public interest.
       The trial court‟s ruling was correct. The challenged statements concern a private
internal grievance that is only tangentially related to an issue of widespread public
interest. Accordingly, the order will be affirmed.
                                      BACKGROUND
       Respondent is a licensed physician and surgeon and is board certified in
emergency medicine. Respondent was a partner in Community Emergency Medical
Associates (CEMA), a group of emergency medical practitioners that contracted with
CRMC and Clovis Community to provide emergency room physicians. Respondent had
staff privileges at both hospitals.
       Craig Castro is the chief executive officer for Clovis Community. His duties
include overseeing the delivery of emergency medical services. In doing so, Castro
receives reports and input on the emergency department‟s performance from his
subordinates, including the RN manager, Mason Mathews. Castro also communicates
with Santé Health Systems, Inc. (Santé), the management services organization for
CEMA.




1      All further statutory references are to the Code of Civil Procedure.



                                             2.
       Beginning in 2008, Castro became concerned about the overall performance and
quality of the Clovis Community emergency department. Based on his declaration, it
appears Castro was primarily focused on the number of emergency patients seen per
hour. Due to emergency departments providing a large measure of uncompensated care,
Clovis Community was paying CEMA an additional approximately $405,000 per year to
adequately compensate the physicians for their services. Castro noted that CEMA
physicians were seeing approximately one patient per hour when industry standards were
several more per hour. Castro stated that, if the one patient per hour standard were
increased, the size of this subsidy could be greatly reduced, if not eliminated. Castro was
also receiving complaints from specialty physicians. The emergency room physicians
involved these specialty physicians in matters that an emergency room physician should
have been able to handle without calling for back up. Further, Castro received
complaints from physicians and hospital staff that many of the CEMA physicians were
not service oriented. However, Castro‟s performance concerns were limited. According
to Castro, “all of the physician and „mid-level‟ (meaning nurse practitioner or physician‟s
assistant) providers were believed to be basically competent, qualified, and of suitable
character.”
       In 2010, Castro brought these complaints to the attention of CEMA and Santé. In
response, a Santé employee, Carolyn Larsen, requested information by e-mail on the
emergency room doctors who had received complaints in order to prepare for a meeting
with the hospital board of directors. Mathews, the RN manager, responded to Larsen‟s
request.
       Mathews identified multiple doctors who had received complaints. Regarding
respondent, Mathews stated she was “slow, involved in nursing issues that have nothing
to do with her, and lost pieces of chart.” Mathews further opined that respondent “Needs
to retire. SLOW!! Passive aggressive behavior with ED leadership and staff. Cannot



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keep up with dept. flow. Missing T- sheets. Too busy worrying about other people‟s
concerns and has tendency to get involved in issues that have nothing to do with her.”
       In his declaration, Mathews further explained that while respondent and the other
doctors “were all competent and qualified, the issues cited in these e-mails reflected a
systemic problem with these physicians not performing at a high level and in a collegial,
team-player manner, all of which are essential to optimal performance of the entire
emergency service at Clovis.” Mathews listed the particular concerns regarding
respondent as follows:

              “a. She felt she needed to be involved in nursing issues. Per staff,
       instead of addressing the issues with management directly, she would
       consistently make comments to staff about what Emergency Department
       management could and should do to improve work environment.

              “b. During shifts, she would arrive and wait for a nurse practitioner
       or physician‟s assistant (NP/PA) to arrive to see less urgent patients. This
       would cause a backup in department flow and decrease satisfaction of
       patients and staff. This issue was brought to my attention by NP/PA staff.

              “c. Nurses would approach her about seeing high acuity patients
       who were in pain, but she would write out orders to be carried out instead
       of seeing patient emergently.

              “d. She would take personal phone calls before seeing patients
       which would in turn delay patient care and treatment (which could
       potentially delay medical diagnosis). Fortunately, there were never any
       cases which had negative outcomes.

              “e. She would make comments to Emergency Department staff
       about not wanting to get in trouble with Emergency Department manager
       because she was not doing what she needed to do. This eroded the morale
       of the Emergency Department staff and conveyed to them that the manager
       was difficult to work with.

            “f. There were multiple patient complaints pertaining to her bedside
       manner which caused negative impact on department satisfaction scores.

            “g. Multiple staff members had made comments about particular
       comments that she said to EMS staff. Her reported comments were to the


                                             4.
      effect that the Clovis Emergency Department was not the best choice to
      bring particular patients.

             “h. She challenged Emergency Department leadership (both
      physician and nursing) authority in front of staff. Per staff, she was
      undermining Emergency Department management.

            “i. Particular patients who frequently visited the Emergency
      Department for pain issues were not seen according to severity.”
      After this information was shared with the hospital administrators and CEMA,
respondent was precluded from practicing at Clovis Community and CRMC. Ultimately,
respondent was terminated by CEMA.
      Respondent filed the underlying complaint for defamation, interference with
contract, interference with prospective economic advantage, interference with the right to
practice medicine, and negligence. Respondent‟s claims were based on the following
allegedly defamatory statements:

             1. “Dr. Brough told paramedics that they should have taken a
      patient to St. Agnes Hospital instead of Clovis Community because the
      patient would receive better and more competent care at St. Agnes
      Hospital”;

             2. “Dr. Brough was slow and could not keep up with the work flow
      in the Clovis Community emergency department”;

            3. “Dr. Brough was passive-aggressive with the Clovis Community
      emergency department staff and leadership”;

             4. “Dr. Brough interfered with nursing issues”;

            5. “Dr. Brough was either incompetent or disorganized, resulting in
      missing or lost patient chart documentation”;

             6. “Dr. Brough was incompetent and negligent in her care of a
      patient who presented at the Clovis Community emergency department
      with shortness of breath and was not admitted by Dr. Brough”;

            7. “Dr. Brough was not qualified or capable of doing her job and
      should retire”;

             8. “Dr. Brough had poor productivity”;

                                            5.
                9. “Dr. Brough made too many personal telephone calls while on
       duty”;

              10. “Dr. Brough spent too much time on personal e-mails while on
       duty”; and

              11. “Dr. Brough called hospitalists for admission of patients before
       the patients‟ test results were obtained and even before Dr. Brough had
       even examined the patients.”
       In response, appellants filed an anti-SLAPP motion under section 425.16.
Appellants argued that the alleged statements were directly tied to public health issues
and thus concerned a matter of public interest that warranted protection under section
425.16, subdivision (e)(4). In support of their motion, appellants submitted declarations
from Kallsen, Castro, and Mathews.
       The trial court denied appellants‟ motion. The trial court found that appellants had
not shown that the conduct involved public issues or matters of public interest. Rather,
the court concluded that the alleged communications “involved nothing more than the
internal business matters of a corporation.” The court noted that the concern over the
number of patients per physician hour seen in the emergency department was raised in
the context of the income generated by CEMA‟s physicians, the reduction or elimination
of the subsidy paid by Clovis Community to CEMA, and maintaining a competitive
advantage. Thus, the matter of public interest, i.e., health care, was tangential to the
subject communications. The court further pointed out that the alleged statements “were
not made in connection with any ongoing controversy, debate, or discussion within and
among a definable portion of the public.”
                                       DISCUSSION
1.     The anti-SLAPP statute.
       Section 425.16 was enacted in 1992 to provide a procedure for expeditiously
resolving “nonmeritorious litigation meant to chill the valid exercise of the constitutional
rights of freedom of speech and petition in connection with a public issue.” (Sipple v.


                                              6.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It is California‟s
response to meritless lawsuits brought to harass those who have exercised these rights.
(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, disapproved on
another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
68.) This type of suit, referred to under the acronym SLAPP, or strategic lawsuits against
public participation, is generally brought to obtain an economic advantage over the
defendant, not to vindicate a legally cognizable right of the plaintiff. (Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921,
927.)
        When served with a SLAPP suit, the defendant may immediately move to strike
the complaint under section 425.16. To determine whether this motion should be
granted, the trial court must engage in a two-step process. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 76.)
        The court first decides whether the defendant has made a threshold showing that
the challenged cause of action is one “arising from” protected activity. (City of Cotati v.
Cashman, supra, 29 Cal.4th at p. 76.) The moving defendant must demonstrate that the
act or acts of which the plaintiff complains were taken “in furtherance of the
[defendant‟s] right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue .…” (§ 425.16, subd. (b)(1);
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the court
concludes that such a showing has been made, it must then determine whether the
plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.)
        The questions of whether the action is a SLAPP suit and whether the plaintiff has
shown a probability of prevailing are reviewed independently on appeal.
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) Further, the anti-
SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)

                                             7.
2.   Appellants did not meet their burden of demonstrating that the allegedly
defamatory statements were entitled to protection under section 425.16.
       Section 425.16, subdivision (e), clarifies what speech constitutes 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.‟” Such speech 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) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” (§ 425.16,
subd. (e).) Appellants contend that their statements fall under section 425.16,
subdivision (e)(4), i.e., they were in furtherance of the exercise of the constitutional right
of free speech in connection with an issue of public interest.
       It should first be noted that protection under section 425.16 for statements in
connection with a public issue or an issue of public interest is not dependent on those
statements having been made in a public forum. Rather, subdivision (e)(4) applies to
private communications concerning issues of public interest. (Terry v. Davis Community
Church (2005) 131 Cal.App.4th 1534, 1546.)
       Section 425.16 does not define “an issue of public interest.” Nevertheless, the
statute requires the issue to include attributes that make it one of public, rather than
merely private, interest. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) A few
guiding principles can be gleaned from decisional authorities. For example, “public
interest” is not mere curiosity. Further, the matter should be something of concern to a
substantial number of people. Accordingly, a matter of concern to the speaker and a



                                              8.
relatively small, specific audience is not a matter of public interest. Additionally, there
should be a degree of closeness between the challenged statements and the asserted
public interest. The assertion of a broad and amorphous public interest is not sufficient.
Moreover, the focus of the speaker‟s conduct should be the public interest, not a private
controversy. Finally, a defendant charged with defamation cannot, through his or her
own conduct, create a defense by making the claimant a public figure. Otherwise private
information is not turned into a matter of public interest simply by its communication to a
large number of people. (Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132-1133.)
       Being based on case law, the precise boundaries of a public issue have not been
defined. Nevertheless, in each case where it was determined that a public issue existed,
“the subject statements either concerned a person or entity in the public eye [citations],
conduct that could directly affect a large number of people beyond the direct participants
[citations] or a topic of widespread, public interest [citation].” (Rivero v. American
Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th
913, 924 (Rivero).)
       It has been held that in cases where the issue is not of interest to the public at
large, but rather to a limited definable portion of the public, the constitutionally protected
activity must, at a minimum, occur in the context of an ongoing controversy, dispute or
discussion. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110
Cal.App.4th 107, 119.) However, when the issue is of “„widespread public interest,‟” it
is not subject to this “„ongoing controversy‟ rule.” (Integrated Healthcare Holdings, Inc.
v. Fitzgibbons (2006) 140 Cal.App.4th 515, 524 (Integrated Healthcare).)
       Courts have found such topics of “widespread public interest” to include: the
well-being of young children in an afterschool sports program (Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465-466
(Hecimovich); treatment for depression (Rivera v. First DataBank, Inc. (2010) 187
Cal.App.4th 709, 716 (Rivera)); the location of registered sex offenders (Cross v. Cooper

                                              9.
(2011) 197 Cal.App.4th 357, 382); the financial survival of four hospitals within one
county (Integrated Healthcare, supra, 140 Cal.App.4th at p. 524); and a warning to
consumers not to rely on doctors‟ ostensible experience treating professional athletes that
included what the subject article described as a “„cautionary tale‟” of one doctor
exaggerating that experience to market his practice (Carver v. Bonds (2005) 135
Cal.App.4th 328, 343-344). Because the term “public interest” is inherently amorphous,
“[s]ome courts have noted commentary that „“„no standards are necessary because [courts
and attorneys] will, or should, know a public concern when they see it.‟”‟” (Cross v.
Cooper, supra, 197 Cal.App.4th at pp. 371-372.)
       Appellants argue that the alleged defamatory statements are entitled to protection
under section 425.16, subdivision (e)(4), because respondent‟s willingness and ability to
effectively serve as an emergency room physician necessarily affects the quality and
accessibility of health care to the public and such accessibility is a “topic of widespread,
public interest” (Rivero, supra, 105 Cal.App.4th at p. 924). Appellants further note that
these statements were made in the context of a department-wide assessment regarding
quality of care. Appellants additionally point out that, for many people in our
community, emergency room care is their only access to health care.
       In determining whether the communications about which the plaintiff complains
were in connection with an issue of public interest, the court looks for the principal thrust
or gravamen of the plaintiff‟s cause of action, i.e., what the cause of action is based on.
(Hecimovich, supra, 203 Cal.App.4th at p. 465.) The key is to examine “the specific
nature of the speech rather than the generalities that might be abstracted from it.”
(Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th
26, 34.) However, the court must be careful not to confuse a defendant‟s alleged injury-
producing conduct with the unlawful motive the plaintiff is ascribing to that conduct. In
order to prevent such confusion, the court should focus squarely on the defendant‟s
activity that gave rise to its asserted liability, and whether that activity constitutes

                                              10.
protected speech, rather than on any motive the plaintiff may be ascribing to the activity.
(Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 271.) In making this
determination, the court considers the pleadings and the supporting and opposing
affidavits stating the facts upon which the liability or defense is based. (§ 425.16, subd.
(b)(2); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417-1418.)
       Appellants are correct that, in general, health care and hospital quality are topics
of public interest. (Cf. Rivera, supra, 187 Cal.App.4th at pp. 716-717; Muccianti v.
Willow Creek Care Center (2003) 108 Cal.App.4th 13, 22.) Nevertheless, we must
examine the specific nature of the challenged statements and the degree of closeness
between these statements and the asserted public interest of health care.
       Based on the declarations submitted by appellants, it is apparent that the
complaints about respondent concerned the financial impact on Clovis Community due to
respondent‟s perceived inefficiency and respondent‟s failure to conduct herself as a
collegial, team player. Castro focused on the physician productivity needed to reduce or
eliminate the subsidy paid to CEMA and Mathews outlined how respondent undermined
emergency room management and eroded employee morale. Neither complained about
respondent‟s ability but, rather, stated that the emergency room physicians were all
competent and qualified. Thus, the challenged statements are the product of a private
workplace dispute. Appellants objected to the manner in which respondent carried out
her job responsibilities, i.e., inefficient and difficult to work with, not her ability to
perform those responsibilities. This conclusion is based solely on appellants‟ conduct as
set forth in appellants‟ declarations, not on any motive ascribed to appellants by
respondent. Further, unlike the cross-complainant in Comstock v. Aber (2012) 212
Cal.App.4th 931, respondent is not arguing that her case is not a SLAPP because the
appellants did not in fact do what is alleged in the complaint. Rather, respondent is
relying on both her complaint and the declarations filed in connection with the anti-



                                               11.
SLAPP motion to support her position that the alleged defamatory statements do not
concern an issue of widespread public interest.
       Appellants argue that emergency room efficiency and physician interactions with
hospital staff impact the quality of patient care and therefore are issues of widespread
public interest. Looking at the specific nature of this dispute, it concerns a physician‟s
personality and profitability. Although there may be a relationship between these
concerns and the general topic of quality health care, the link is too attenuated to trigger
anti-SLAPP protection. The fact that a “broad and amorphous public interest” can be
connected to the nature of the challenged statements is not sufficient. (Weinberg v.
Feisel, supra, 110 Cal.App.4th at p. 1132.) To convert these private internal grievances
into an issue of widespread public interest merely because the complaints about
respondent can be related to a broader health care issue would improperly provide for
anti-SLAPP coverage in every employment-type case involving a physician or health
care worker. This is not the purpose underlying the anti-SLAPP statute.
       In sum, appellants failed to satisfy their burden of demonstrating that the
challenged statements were entitled to protection under section 425.16, subdivision
(e)(4). Accordingly, we do not reach the issue of whether respondent showed a
probability of prevailing on the merits of her complaint.
3.     Attorney fees.
       Section 425.16, subdivision (c)(1), provides that the court shall award attorney
fees and costs to a plaintiff who prevails on an anti-SLAPP motion if the court finds that
the motion “is frivolous or is solely intended to cause unnecessary delay.” Frivolousness
requires a finding that the motion is totally and completely without merit. In other words,
any reasonable attorney would agree such motion is totally devoid of merit. (Carpenter
v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 469.) Here, however, the trial
court has not yet made any findings on respondent‟s motion for attorney fees. In the



                                             12.
interests of judicial economy, the court stayed respondent‟s motion pending resolution of
this appeal.
       Respondent has requested this court to award her attorney fees on appeal. A
party‟s right to attorney fees extends to attorney fees on appeal as well. (Morrow v. Los
Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446.) If the appellate court
determines that the appeal raises no new permissible arguments that change the result,
and concludes that the appeal is frivolous and was intended to cause further delay of the
litigation, attorney fees on appeal may be awarded. (City of Alhambra v. D'Ausilio
(2011) 193 Cal.App.4th 1301, 1309.)
       Although respondent is prevailing on this appeal, we do not find that the appeal is
frivolous. Whether the challenged statements were entitled to protection is not an issue
that is so clear that any reasonable attorney would agree that the appeal was totally
devoid of merit.
                                     DISPOSITION
       The order is affirmed. Costs on appeal are awarded to respondent.


                                                                 _____________________
                                                                               LEVY, J.
WE CONCUR:


_____________________
WISEMAN, Acting P.J.


 _____________________
DETJEN, J.




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