Filed 9/27/13 Comprehensive Health Assn. v. Barton CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


COMPREHENSIVE HEALTH
ASSOCIATION,
                                                                       G047521
     Cross-complainant and Appellant,
                                                                       (Super. Ct. No. 30-2011-00504127)
         v.
                                                                       OPINION
TRISHA BARTON,

     Cross-defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, William
M. Monroe, Judge. Affirmed.
                   James T. Stroud for Cross-complainant and Appellant.
                   Law Offices of Steven R. Young, Jim P. Mahacek and Steven R. Young for
Cross-defendant and Respondent.


                                          *                  *                  *
              Cross-complainant and appellant Comprehensive Health Association
(CHA) appeals from a judgment entered after the court sustained a demurrer without
leave to amend and granted a special motion to strike its cross-complaint (the cross-
complaint) for tortious interference with contract against cross-defendant and respondent
Trisha Barton (Trisha) under Code of Civil Procedure section 425.16 (section 425.16;
anti-SLAPP motion; all further statutory references are to this code). CHA argues the
activities on which the cross-complaint is based are not protected under section 425.16
and it showed a reasonable probability of prevailing on its claims. It further contends the
cross-complaint sufficiently pleaded all the elements of a tortious interference with
contract cause of action and the court erred in sustaining the demurrer.
              We conclude the activities that are the basis for the cross-complaint are
protected under section 425.16 and CHA has not made out a prima facie case for its
interference with contract claim. Therefore we affirm the grant of the anti-SLAPP
motion. On that basis the demurrer is moot.


                        FACTS AND PROCEDURAL HISTORY


              CHA is a California nonprofit unincorporated mutual benefit association,
begun in 2000. The declaration of the president in opposition to the anti-SLAPP motion
states it is designed to allow health care providers and their patients to “transact business
among themselves in complete privacy and for patients to . . . help decide on their own
course of treatment.”
              Dr. Richard Hansen and Andy Yoon, both dentists (collectively dentists),
are “provider members” of CHA. Shay Barton (Shay), Trisha‟s daughter, consulted
dentists in 2009. Before she could be treated she was required to join CHA. In April she
signed a CHA application form that included a membership certificate. The document
stated Shay had been told of CHA‟s bylaws, which were available online. It described

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the bylaws as a contract between Shay and CHA and stated the bylaws included
“administrative remedies and [a]rbitration” provisions for dispute resolution and required
her to arbitrate malpractice claims. It further explained Shay was giving up her
constitutional right to a jury trial.
               At some point Shay and Trisha became dissatisfied with dentists‟ work and
consulted another dentist. Shay then filed suit against dentists for malpractice. Dentists
filed a standard form cross-complaint against CHA for indemnity and contribution. It
alleged CHA provided a “forum and means to take action against another member
through an administrative procedure.”
               CHA then cross-complained against Shay and Trisha for breach of contract
and tortious interference with contract, respectively. It alleged that upon receiving notice
from Shay‟s lawyer he intended to file a malpractice action against dentists, CHA advised
him of the bylaws and their requirement Shay follow the grievance procedures. It further
alleged dentists had availed themselves of the grievance process but Shay and Trisha had
not cooperated. It also pleaded her failure to do so was a breach of the bylaws.
               The cause of action against Trisha alleged she knew of the bylaws and that
they constituted a contract with Shay. Despite this she “used her influence over” Shay
“to force her” into breaching the bylaws, to “create a cause of action for malpractice”
against dentists “in the hopes of procuring an insurance settlement” under dentists‟
malpractice policy. It pleaded use of the grievance process “would not provide the means
or the large payday” Trisha wanted so she made Shay “refuse all overtures by [CHA] to
resolve the dispute.” CHA‟s alleged damages are attorney fees and costs incurred or to
be incurred in defending “this [c]omplaint.”
               Neither dentists nor CHA ever filed a motion to compel arbitration of
Shay‟s malpractice claim.
               Trisha filed the anti-SLAPP motion and a demurrer. The court granted the
motion and sustained the demurrer without leave to amend.

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                                        DISCUSSION


1. Introduction
              Section 425.16, subdivision (b)(1) provides that a cause of action arising
from a constitutionally protected right of free speech may be stricken unless the plaintiff
establishes the probability it will prevail on the claim. The court must engage in a two-
step analysis under this section. First, it must determine whether the defendant has met
its burden to show “„that the challenged cause of action is one arising from protected
activity.‟” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Second, it
must consider whether plaintiff has met its burden to show the likelihood of prevailing on
the claim. (Ibid.) We review an order granting an anti-SLAPP motion de novo. (Flatley
v. Mauro (2006) 39 Cal.4th 299, 325-326.)


2. Protected Speech
              Under 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 . . . judicial proceeding . . . ; [or] (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a . . . judicial
body . . . .” “„A cause of action “arising from” [cross-]defendant‟s litigation activity may
appropriately be the subject of a section 425.16 motion to strike.‟ [Citations.]” (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056.)
              The protection under section 425.16 “extends to conduct that relates
to . . . litigation . . . .” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145
Cal.App.4th 1532, 1537.) “[C]ourts have adopted „a fairly expansive view of what
constitutes litigation-related activities within the scope of section 425.16.‟ [Citation.]”
(Ibid.) The “act underlying the . . . cause of action must itself have been an act in

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furtherance of the right of . . . free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th
69, 78, italics omitted.) In determining whether cross-defendant met her burden we look
to the gravamen of the action. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th
709, 715.) “The anti-SLAPP statute‟s definitional focus is not the form of the . . . cause
of action but, rather, the [cross-]defendant‟s activity that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech or petitioning.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
              Trisha must demonstrate the cause of action arose from her exercise of free
speech, in this case an oral communication made in connection with a judicial
proceeding. This can include statements in preparation for or anticipation of filing a
lawsuit.
              CHA contends Trisha‟s activity was not speech but actions, i.e., interfering
with its contract with Shay by urging Shay to breach. It makes a circular argument that
Trisha‟s alleged wrongful conduct was not inducing Shay to file a malpractice action
against dentists but was interfering with the contract between CHA and Shay. But the
gist of the alleged interference was Trisha prompting Shay to file the action without using
the grievance procedure.
              The only way Trisha could have induced Shay to breach the alleged
contract with CHA was to have spoken to her. CHA alleges Trisha “used her influence
over” Shay to have her file a complaint against the dentists rather than avail of the
arbitration procedures allegedly contained in the bylaws, thus “forc[ing] [Shay] into
intentionally breaching that agreement.” CHA‟s characterization of this as “actions” is
merely that, a label that does not transform protected speech into activity outside of
section 425.16.
              Without any discussion, CHA also relies on portions of five declarations to
support its claim Trisha engaged in “intentional acts designed to induce a breach” of the
contract. But these are no more persuasive.

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              Four of them state Trisha informed dentists she would not allow Shay to
return for further treatment and would be taking her to another dentist. But CHA is not
alleging failure to continue with additional treatment as a breach. Two declarations
actually contradict CHA‟s theory, one quoting Trisha as saying “Shay will do whatever I
tell her to do” and another quoting Shay as stating, “I have to do what she[, Trisha,]
says.” Both of these statements clearly involve speech.
              Trisha‟s alleged activity was clearly communicative and she has met her
burden to show CHA‟s claim against her is for protected speech.


3. Probability of Prevailing on the Merits
              To demonstrate it is likely to prevail on the merits of the complaint, CHA
must both show the legal sufficiency of the cross-complaint and provide evidence to
support a prima facie case capable of supporting judgment in its favor. (Rivera v. First
DataBank, Inc., supra, 187 Cal.App.4th at p. 718.) “„We consider “the pleadings, and
supporting and opposing affidavits . . . upon which the liability or defense is based.”
[Citation.] However, we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, [we] 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.” [Citation.]‟ [Citations.]” (Nygard, Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027, 1036.)
              “To prevail on a cause of action for intentional interference with contractual
relations, a plaintiff must plead and prove (1) the existence of a valid contract between
the plaintiff and a third party; (2) the defendant‟s knowledge of that contract; (3) the
defendant‟s intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship; and (5)
resulting damage. [Citation.]” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)



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              At a minimum, CHA failed to provide sufficient evidence of damages
resulting from Trisha‟s alleged wrongful activity. CHA alleges that, as a result of Shay‟s
breach of the bylaws by filing suit, CHA has incurred costs in “defending this
[c]omplaint” and will have to hire a lawyer to respond to dentists‟ cross-complaint and
will incur costs in defense of the action. That does not constitute compensable damage
on the facts of this case.
              Trisha‟s statements did not cause CHA‟s costs of defense damages, if any.
CHA caused those itself. Once the cross-complaint was filed, CHA had a simple remedy
of demanding dentists file a motion to arbitrate or filing such a motion itself pursuant to
the bylaws provision requiring arbitration of medical malpractice claims. That would
have alleviated any defense costs resulting from dentists‟ cross-complaint.
              An alternate reason CHA cannot make its prima facie case is because
“[i]nducing a third party to bring litigation on a meritorious claim cannot be the basis for
tort liability.” (Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39
Cal.App.4th 1194, 1202, citing Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990)
50 Cal.3d 1118, 1130-1137.)
              In Pacific Gas the defendant convinced a third party to file an action to
determine if its contract with the plaintiff could be legally terminated. In addition to
defending against that action, the plaintiff sued the defendant for tortious interference
with contract. The Supreme Court affirmed an order sustaining a demurrer without leave
to amend. In so doing it ruled, among other things, “that a plaintiff seeking to state a
claim for intentional interference with contract . . . because defendant induced another to
undertake litigation, must allege that the litigation was brought without probable cause
and that the litigation concluded in plaintiff‟s favor.” (Pacific Gas & Electric Co. v. Bear
Stearns & Co., supra, 50 Cal.3d at p. 1137.) Neither of those elements was pleaded nor
supported by sufficient evidence in plaintiff‟s opposition to the anti-SLAPP motion.



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              For at least these reasons, CHA has not met its burden to show a probability
of prevailing on the merits of its cross-complaint.
              Because we affirm the order granting the anti-SLAPP motion, the demurrer
is moot and we have no need to address CHA‟s arguments on that issue.


                                      DISPOSITION


              The judgment is affirmed. Trisha Barton is entitled to attorney fees and
costs on appeal.



                                                  THOMPSON, J.

WE CONCUR:



O‟LEARY, P. J.



MOORE, J.




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