Filed 12/17/13 Samuel v. Providence Healthcare Systems-So. Cal. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE



CHRISTOJOHN SAMUEL et al.,                                           B242208

         Plaintiffs and Respondents,                                 (Los Angeles County Super. Ct.
                                                                      No. PC051773)
         v.

PROVIDENCE HEALTHCARE
SYSTEMS-SOUTHERN CALIFORNIA,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Melvin
Sandvig, Judge. Affirmed.
         Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett
and Jennifer A. Cooney for Defendant and Appellant.
         Nossaman LLP, Mitchell J. Green and Chelsea N. Trotter for Plaintiffs and
Respondents.


                                    ______________________________
       Defendant and appellant Providence Health Systems-Southern California (the
Hospital), doing business as Providence Holy Cross Medical Center, appeals from an
order denying a special motion to strike under the anti-SLAPP statute,1 Code of Civil
Procedure section 425.16,2 in favor of plaintiffs and respondents Christojohn Samuel,
M.D., Christojohn Samuel, M.D., Inc., Walid Arnaout, M.D., and Walid Arnaout, M.D.,
Inc. (referred to collectively as the Doctors). The Doctors allege the Hospital negligently
failed to control the disruptive behavior of another physician. The trial court denied the
anti-SLAPP motion, finding the complaint was subject to the anti-SLAPP statute because
it arose from a peer review proceeding, but the Doctors had demonstrated a probability of
prevailing on the merits. On appeal, the Hospital contends the Doctors failed to show a
probability of prevailing for several reasons. However, we conclude the complaint does
not arise in connection with a peer review proceeding, and therefore, the anti-SLAPP
statute does not apply. Therefore, we affirm the order denying the anti-SLAPP motion.3


                     FACTS AND PROCEDURAL BACKGROUND


Allegations of the Complaint


       On October 20, 2011, the Doctors filed a complaint against the Hospital and
Bradley Roth, M.D. Arnaout alleged a cause of action for battery against Roth, and the
Doctors alleged a cause of action for negligence against the Hospital. Samuel, Arnaout,
and Roth are trauma surgeons and members of the Hospital’s medical staff. Samuel was
the medical director of trauma services until mid-2009.


       1“SLAPP is an acronym for ‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

       2All further statutory references are to the Code of Civil Procedure unless
otherwise stated.

       3   The Hospital’s motion to dismiss the Doctors’ cross-appeal is granted.


                                              2
       In August 2008, Roth campaigned for on-call shifts at the Hospital to be scheduled
for himself and his practice partner David Hanpeter, M.D., on a preferential basis, rather
than divided fairly among the eligible trauma surgeons. Roth intended to displace and
interfere with the economic benefits of Samuel and the other trauma surgeons. To
accomplish his purpose, Roth used insulting and inappropriate language, disparaged the
Doctors’ professional competency to their patients, interfered with other physicians’ care
and treatment by inspecting their patients’ charts, replacing their orders with his own, and
providing contrary instructions to nurses, wrote letters to and requested meetings with the
Hospital’s administration in order to question Samuel’s leadership and influence the
Hospital to substitute Hanpeter as medical director, refused to treat patients affiliated
with the Doctors, and made false and exaggerated reports to peer review committees
against the Doctors and other trauma surgeons. In December 2008, a department
chairperson complained to the Hospital administration about Roth’s conduct and stated
that Roth’s conduct threatened the quality of patient care.
       On December 18, 2009, Roth physically attacked Arnaout. The Hospital took no
disciplinary action. On several occasions, Roth and Hanpeter acknowledged that Roth’s
conduct was disruptive and needed improvement. The Doctors and other physicians
repeatedly complained to the Hospital about Roth’s conduct, yet the Hospital did not take
reasonable measures to investigate or control Roth’s conduct.
       The Hospital expressly acknowledged that the physicians’ ability to deliver quality
care depends on communication, collaboration, and teamwork. The Hospital undertook
to adopt, implement, and enforce conduct standards to manage disruptive and
inappropriate behavior by individual physician members of the medical staff and to
assure a workplace free from intimidation, disruption, and violence. The Doctors relied
on the Hospital’s representations that they would enforce these standards, which were
contained, in part, in the medical staff bylaws. The Hospital had a duty to use reasonable
care to enforce these standards. Roth’s disruptive conduct violated section 3.8 of the
medical staff bylaws. The Hospital breached its duty of care by failing to enforce the
standards against Roth. As a consequence of the Hospital’s breach, the Doctors were


                                              3
forced to either resign or endure intolerable working conditions that jeopardized their
ability to deliver quality patient care. Because no reasonable, similarly situated physician
would have continued to provide care under these conditions, the Doctors resigned from
the trauma service. As a proximate cause, the Doctors have suffered damages, including
loss of income, and suffered emotional distress. The Hospital’s failure to enforce its
policies against Roth amounted to knowing ratification of his conduct.


The Hospital’s Special Motion to Strike and Supporting Evidence


       The Hospital filed an anti-SLAPP motion. The Hospital argued that the anti-
SLAPP statute applies in this case, because the complaint raises issues related to the
Hospital’s peer review process, which is considered official proceedings under the anti-
SLAPP statute. The Doctors’ cause of action for negligence was based on a provision of
the medical staff bylaws setting a peer review standard and procedure. The Hospital’s
peer review process encompasses assessment of a physician’s disruptive conduct and the
Hospital has no control over physicians other than through peer review. The allegations
of the complaint refer to reports made by Roth in connection with peer review. The
Doctors, in fact, initiated a request for corrective action under the peer review procedures.
Issues regarding the Doctors’ status on the medical staff or disruptive behavior by Roth
were subject to resolution under the bylaws. The complaint in the instant case is an
improper collateral attack. The Hospital also argued that it was entitled to prosecutorial
immunity when exercising discretion in acting on complaints of misconduct.
       Lastly, the Hospital argued the Doctors could not establish a probability of
prevailing, because: peer review acts are immune from liability, the Hospital has no
control over physicians other than through peer review, the Doctors failed to exhaust
administrative remedies, the Hospital is not liable for Roth’s battery of another physician,
and there were no allegations on behalf of the medical corporations.
       In support of the anti-SLAPP motion, the Hospital submitted the declaration of its
chief executive officer, as well as the medical staff bylaws. Article III of the bylaws


                                             4
explains the nature and qualifications for membership on the medical staff, including the
code of conduct for practitioners set forth in section 3.8. The conduct provisions state, as
a member of the medical staff, “I acknowledge that the ability of practitioners . . . and
hospital staff employees to jointly deliver high quality health care greatly depends upon
their ability to communicate well, collaborate effectively, and work as a team. I
recognize that patients, family members, visitors, colleagues and hospital staff members
must be treated in a dignified and respectful manner at all times. To this end,
practitioners on the medical staff of [the Hospital] . . . are expected to conduct themselves
in a professional manner whenever they are on the grounds of the medical center. I agree
to adhere to the following guidelines in support of enhancing the delivery of quality
patient care within [the Hospital]. [¶] 1. Respectful Treatment [¶] I agree to treat
patients, family members, visitors and members of the health care team of [the Hospital]
in a respectful and dignified manner at all times. I acknowledge that my language,
attitude and appearance may impact delivery of quality patient care. I agree to work with
other members of the health care team to resolve conflicts or address occasional lapses of
decorum when they arise. . . . [¶] . . . [¶] 3. Behavior [¶] I agree to refrain from any
behavior that is deemed to be intimidating or harassing . . . . As a member of the Medical
Staff . . . , by accepting appointment and reappointment to the Medical Staff, I agree to
abide by these provisions. Every effort will be made to be non-judgmental with
interviews and provide opportunity to correct the problem prior to corrective action by
the Medical Staff. Process is defined in the ‘Policy on Joint Investigation of Alleged
Medical Staff Discrimination, Harassment, or Disruptive Behavior – Investigation and
Disciplinary Procedures.’ (Added 12/08)”
       Article VIII of the bylaws provides procedures for corrective action. The criteria
to initiate routine corrective action under section 8.1-1 is set forth as follows: “An
investigation or corrective action may be requested, and ultimately initiated, against any
practitioner with clinical privileges and/or Medical Staff membership who engages in,
makes, or exhibits acts, statements, demeanor or professional conduct (either within or
outside of the Hospital) and the same: [¶] (a) is, or is reasonably likely, to be


                                              5
detrimental to patient safety or to the delivery of quality patient care within the Hospital;
to be disruptive to Hospital operations; to constitute fraud or abuse; or, to be, in other
respects, lower than the standards of the Hospital and the Medical Staff; or, [¶] (b)
results in the imposition of sanctions by any governmental authority.”
       A proposal for corrective action or a request for investigation may be initiated
under section 8.1-2 by the medical executive committee (MEC), or by a written request to
the MEC from a medical staff officer, the chairman of any clinical department in which
the practitioner holds membership or clinical privileges, the chairman of any standing
medical staff committee, the governing body, or the administrator. A written request
proposing corrective action or investigation must identify the underlying conduct. When
the MEC receives a proposal for action under section 8.1, the chief of staff notifies the
administrator and the governing body, keeping them informed of subsequent action.
       Upon receipt of a proposal for action under section 8.1, the MEC may take action
or direct that an investigation be undertaken. The MEC must take action within 60 days
of receiving a proposal for action under section 8.1. The MEC’s options include
recommending no corrective action, rejection, or modification of the proposed corrective
action, a letter of admonishment, imposition of probation terms, reduction or revocation
clinical privileges, and other increasingly severe actions. If the MEC recommends
corrective action, the recommendation is transmitted to the Board of Trustees (the
Board). If the MEC’s recommendation is supported by substantial evidence, the
recommendation must be adopted by the Board as a final action, unless the member
requests a hearing, as provided for in the bylaws. The MEC may defer any action when
additional time is needed to investigate or consider the proposal for action. Following a
deferral, the MEC must take action by the deadline specified in the deferral, or if no
deadline was specified, then within 45 days of the deferral. Any recommendation by the
MEC which constitutes grounds for a hearing entitles the affected practitioner to
procedural rights set forth in the bylaws.
       Section 8.1-8 specifies procedures to follow based on the substance of the MEC
recommendation. Under section 8.1-8, subdivision (e), if the MEC fails to act in a


                                              6
reasonable period of time on a proposal for corrective action, the governing body may set
a reasonable deadline for the MEC to take action, and if the MEC does not adhere to the
deadline, take action on its own initiative and recommend action that does not constitute
grounds for a hearing. If the MEC fails to investigate or take disciplinary action contrary
to the weight of the evidence, the Board may direct the MEC to initiate investigation or
disciplinary action after consultation with the MEC. The Board can initiate corrective
action if the MEC fails to take action in response to the Board’s direction.
       The Hospital also submitted its written policy on joint investigation of alleged
medical staff/professional staff discrimination, harassment, or disruptive behavior—
investigation and disciplinary procedures. The policy states that complaints of
discrimination, harassment, or disruptive behavior concerning a practitioner are referred
to the chief medical officer and the chief of staff of the medical staff/professional staff.
The policy states that upon closure of a review or investigation, the reporting party shall
be given appropriate notice. Disruptive behavior was defined as “conduct that
substantially interferes with an individual’s employment or creates an intimidating,
hostile or offensive work environment.” The policy primarily focuses on discrimination
and harassment but states that if the initial review shows the practitioner or member of
the medical/professional staff demonstrated a pattern of disruptive behavior, then a
formal investigation process will be launched, as described in the policy.
       The Hospital submitted a letter from Chief Executive Larry Bowe, dated
August 17, 2009, stating that Hanpeter was taking over as medical director of trauma.
The Hospital also submitted a letter, dated September 4, 2009, from Samuel, Arnaout,
and two other physicians to the president of the MEC objecting to the changes in the
trauma service. They asked to have the trauma service placed on the MEC’s agenda for
evaluation, rather than allowing the Hospital administration to make a decision on behalf
of the MEC.
       On October 26, 2009, Samuel, Arnaout, and two other physicians submitted a
request for corrective action investigation to the MEC, Bowe, and other hospital officials.
They requested initiation of a corrective action investigation of Roth pursuant to


                                              7
section 8.1-1 and 8.1-2 of the bylaws. The basis for the request was that Roth repeatedly
engaged in actions detrimental to patient safety and quality of care, and consistently acted
in a manner disruptive of hospital operations. They accused Roth of exhibiting arrogance
and disrespect to colleagues. Previous complaints were swept under the rug after a token
apology from Roth. Roth improperly reviewed patient records and altered patient care
without the knowledge or approval of the attending physician. The changes were life
threatening and made without examining the patient. Roth criticized the attending
physician in the presence of nurses and the patient’s family. Roth exercised clinical
procedures for which he had not been trained. He refused to assist a patient in respiratory
distress. He performs unnecessary procedures. These complaints are documented in peer
review records and warrant an investigation.
       On April 30, 2010, Arnaout resigned from the trauma service. Samuel resigned on
May 3, 2010.
       The Hospital also filed a demurrer to the complaint.


The Doctors’ Opposition to the Special Motion to Strike and Supporting Evidence


       The Doctors opposed the anti-SLAPP motion on the ground that the anti-SLAPP
statute did not apply, because no official proceeding had taken place and their negligence
claim was based on conduct, not communication. Even if the anti-SLAPP statute applied,
they asserted they could show a probability of prevailing, because the Hospital
voluntarily assumed a duty to control disruptive conduct by medical staff members,
which the Hospital breached by failing to act in light of Roth’s conduct.
       The Doctors provided a letter from the Hospital to the medical staff distributing a
standard on disruptive physicians that had been approved by the Hospital’s executive
council. The Hospital stated, “Disruptive behavior and other inappropriate behavior
undermine our culture of safety and the performance of the health care team entrusted
with the care of our patients.”




                                             8
       They also provided copies of letters in which physicians had complained to the
Hospital about Roth’s disruptive behavior. The chairman of the division of orthopedic
surgery at the Hospital wrote a letter, dated December 5, 2008, with complaints against
Roth. He accused Roth of ripping orders from a patient’s chart and substituting his own
orders. He disputed several accusations made by Roth and criticized Roth’s ability to
perform certain procedures. He stated that patient care was being compromised on a
daily basis as a result of Roth’s demeaning and disruptive behavior. On December 15,
2008, Samuel also wrote a letter to the Hospital’s director of human resources seeking
assistance with Roth’s disruptive behavior.
       The Doctors submitted Arnaout’s declaration and copies of letters that he had
written. At a meeting in November 2008, Arnaout witnessed Roth stamp his foot, raise
his voice, and berate Samuel. Arnaout wrote a letter, dated May 20, 2009, to the
chairman of the department of surgery, complaining that Roth was criticizing Arnaout’s
care in meetings and reviews without an objective basis. Arnaout asked the
administration and medical staff office for a full investigation of Roth’s motives.
Arnaout received no response.
       In July 2009, Arnaout complained that Roth had interfered with the care of
Arnaout’s patient by ordering a test that Arnaout did not think was necessary. Arnaout
received no response from the Hospital other than Samuel’s response that the Hospital
would not support curbing Roth’s behavior.
       On August 31, 2009, Arnaout was in surgery at another hospital when his patient
at the Hospital suffered respiratory distress. He learned from a third party that Roth
refused to administer care unless the patient was blue or needed a surgical airway.
Arnaout wrote a complaint to Samuel as the director of trauma services dated
September 25, 2009, asking for a discussion of the incident and Arnaout’s concerns at the
next peer review committee. Arnaout was told that the matter would be handled outside
of the peer review process, but it was not.
       On October 26, 2009, Arnaout, Samuel, and two other members of the trauma
department submitted the request for corrective action described above. The chief of


                                              9
staff wrote a letter to Samuel, dated November 2, 2009, in response. The request for an
investigation had been considered by the MEC at its meeting that day. “The MEC noted
that your letter raised serious concerns regarding the physician’s quality of care. A
number of cases referenced in your letter have not been reviewed by any peer review
committee at [the Hospital] to date. As a result, the MEC voted to table your request for
an investigation pending the completion of a review of these cases by the Surgery Peer
Review Committee. After the MEC has received the results from the Surgery Peer
Review Committee’s review, the MEC will act upon your request.”
       At a meeting in November 2009, Hanpeter admitted Roth had behavioral issues
but insisted Roth had made contributions to the department and would be a team player.
Roth acknowledged his behavior had been inappropriate, apologized, and promised to
change his behavior. At the end of the meeting, everyone received a copy of a book
about improving the Hospital culture.
       On December 19, 2009, a patient arrived at 6:50 p.m. and Arnaout’s shift was
scheduled to end at 7:00 p.m. Roth arrived for his shift at 7:00 p.m. Arnaout was busy
with another patient and asked Roth to care for the new patient. Roth exploded, “Dr.
Arnaout, you have written me up five times in the past few months, five times[, Doc].
It’s five minutes to [7:00] and its five minutes on your time. He’s all your[s] buddy.”
After taking care of both patients, Arnaout crossed paths with Roth at 7:30 p.m. Roth
complained that Arnaout had written him up five times. Arnaout refused to discuss it and
walked away. Roth grabbed Arnaout by the shoulder and stopped him. Arnaout accused
him of assault, and Roth apologized. Arnaout filed a complaint about the incident on
December 26, 2009, but did not receive a substantive response. The Hospital
investigated Arnaout’s conduct in connection with the incident and reprimanded him for
using profanity.
       On March 1, 2010, the Hospital’s chief of staff sent a letter to Arnaout stating, “As
you are aware, the Surgery Peer Review Committee was tasked by the [MEC] to review
cases referenced in your letters, dated October 26, 2009, and December 1, 2009,
regarding an investigation of Bradley Roth, M.D. The Surgery Peer Review Committee


                                            10
completed its thorough review and submitted its findings to the MEC. The MEC has
determined that no formal investigation, pursuant to the Medical Staff Bylaws, is
warranted at this time regarding the issues you raised concerning Dr. Roth’s patient
care.”
         “With regard to the issues you raised concerning Dr. Roth’s alleged disruptive
behavior, the MEC has not yet made a determination whether a formal investigation is
necessary. As a related matter, as you know, [the Hospital] recently appointed a new
Trauma Director. The MEC hopes this new Trauma Director will work to alleviate the
inter-personal conflicts you believe exist between members of the Trauma Team,
including Dr. Roth.”
         Arnaout was forced to resign from the medical staff on April 30, 2010, because the
Hospital failed to take any reasonable action in response to his complaints about Roth’s
disruptive behavior. Roth’s continuing disruptive conduct rendered the Hospital an
unreasonably difficult workplace, at which patient care was at risk. Arnaout suffered
financial loss as a result of his resignation, including stipends for being on trauma call
and referral patients. He never received notice that any adverse action was contemplated
against his medical staff privileges for which he would have been entitled to a hearing.
         The Doctors submitted the declaration of Danielle Dabbs, M.D., that Roth was
hostile and aggressive in meetings. He was hypercritical and behaved inappropriately.
He interfered with her care of patients by reviewing their charts without authorization and
making suggestions for their care. He had authorized nurses to discuss patient
management issues with him, rather than the primary attending physician. She
complained to the nurse manager and the intensive care unit director about Roth’s
behavior, but no action was taken.
         On May 25, 2009, Dabbs wrote a letter to the Hospital requesting clarification of
Roth’s position as “Trauma ICU Director.” She complained about Roth’s unprofessional
behavior in meetings. She also complained about an incident in which Roth called to
make a recommendation about a patient that Dabbs had admitted. Roth had not seen the
patient but made a care recommendation based on a report from a nurse. He also


                                             11
reviewed her patients’ charts and accused her of failing to document them properly.
Dabbs believed Roth was overstepping his role. She had offered to provide a lecture for
nurses, but Roth insisted on being the only lecturer. She requested a meeting to discuss
the issues.
       The Doctors submitted a declaration of a nurse who had received unwelcome
personal advances. The nurse complained to the Hospital, but Roth’s advances
continued. In May 2011, the nurse was forced to take leave due to Roth’s harassment.
       Samuel submitted his declaration. He was terminated from the position of medical
director of the trauma department in August 2009. His medical staff privileges were not
affected. The Hospital operated pursuant to policies, procedures, and standards
prohibiting disruptive conduct. Roth’s continuing disruptive conduct forced Samuel to
resign from the Hospital on April 30, 2011. He resigned because Roth’s conduct
rendered the Hospital an unreasonably difficult place to work, at which he felt patient
care was always at risk from Roth’s disruptive conduct. He suffered financial loss as a
result of the resignation.
       The Doctors also opposed the Hospital’s demurrer.


Trial Court Proceedings


       The Hospital filed replies to the oppositions to the anti-SLAPP motion and the
demurrer. A hearing was held on May 21, 2012. The trial court denied the anti-SLAPP
motion. The court found the negligence cause of action arose out of the Hospital’s peer
review proceedings. Therefore, the Hospital met its initial burden of showing the
complaint arose out of a protected activity. However, the Doctors had shown a
probability of prevailing. The negligence claim was based on the Hospital’s failure to
act, not a communication or communicative conduct. The Hospital’s prosecutorial
immunity argument was based on analogy, and the Hospital failed to show it was
immune as a matter of law. The Doctors alleged the Hospital affirmatively undertook a
duty to prevent this type of disruptive conduct. The Hospital failed to show there were


                                            12
administrative procedures which the Doctors could have complied with after the Hospital
decided not to discipline Roth, so there was no failure to exhaust administrative remedies.
The court also overruled the demurrer. The Hospital filed a timely notice of appeal from
the order denying the anti-SLAPP motion.


                                        DISCUSSION


Analytical Framework


       The anti-SLAPP statute provides: “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or free speech
under the United States Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) Courts are to construe this statute “broadly” in favor of
the moving party. (Id., subd. (a).)
       The trial court conducts a two-step analysis of an anti-SLAPP motion. (Johnson v.
Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1103.) “‘First, the court decides
whether the defendant has made a threshold showing that the challenged cause of action
is one arising from protected activity. . . . If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability of
prevailing on the claim.’ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.)” (Johnson, supra, at p. 1103.)
       To establish the first step, the defendant must show the allegedly wrongful
conduct was “in furtherance of ” the defendant’s free speech or petition rights and the
cause of action arose from the protected conduct. (§ 425.16, subd. (b)(1).) The anti-
SLAPP statute identifies four categories of actions that are “in furtherance of” a
defendant’s free speech or petition rights. (Id., subd. (e); see City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78.) As pertinent to this case, “act in furtherance of a person’s


                                               13
right of petition or free 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, . . . or (4) any other
conduct in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).)
       If the court finds the cause of action arose from protected activity, the burden
shifts to the plaintiff to show a probability of prevailing on the claim. “[T]o establish a
probability of prevailing on the claim [citation] . . . the plaintiff ‘must demonstrate that
the complaint is both legally sufficient and supported by a sufficient prima facie showing
of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.’ [Citations.] In deciding the question of potential merit, the trial court
considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant [citation]; though the court does not weigh the credibility or comparative
probative strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff's attempt to
establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821.) “‘Only a cause of action that satisfies both prongs of the
anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.]”
(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
       “We review an order granting an anti-SLAPP motion de novo, applying the same
two-step procedure as the trial court. [Citation.] We look at the pleadings and
declarations, accepting as true the evidence that favors the plaintiff and evaluating the
defendant’s evidence ‘“only to determine if it has defeated that submitted by the plaintiff
as a matter of law.” [Citation.]’ [Citation.] The plaintiff’s cause of action needs to have
only ‘“minimal merit” [citation]’ to survive an anti-SLAPP motion. [Citation.]” (Cole v.


                                              14
Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105.) “If the trial
court’s decision is correct on any theory applicable to the case, we affirm the order
regardless of the correctness of the grounds on which the lower court reached its
conclusion.” (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.)


Gravaman of the Complaint


       The Hospital contends the anti-SLAPP statute applies to the instant complaint,
because peer review proceedings are subject to the anti-SLAPP statute, the complaint
essentially alleges the Hospital failed to discipline a disruptive doctor through the peer
review process, and some allegations of the complaint refer to statements made in peer
review proceedings. We conclude the gravamen of the complaint was that the Hospital
failed to take action to control the behavior of a disruptive doctor, which concerns non-
communicative conduct. Therefore, the anti-SLAPP statute does not apply.
       To determine whether a claim arises from protected activity, a court must
“disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or
gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute
applies’ and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.]
We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-
producing conduct . . . that provides the foundation for the claim.’ [Citation.]” (Hylton v.
Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.) “The anti-SLAPP
statute’s definitional focus is [on] the 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.)
       “If the core injury-producing conduct by the defendant that allegedly gave rise to
the plaintiff’s claim is properly described with only collateral or incidental allusions to
protected activity, then the claim does not arise out of protected speech or petitioning
activity. [Citation.]” (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 55
(Young).) “The question should be whether the plaintiff is seeking relief from the


                                              15
defendant for its protected communicative acts. [Citation.] . . . ‘“[Y]ou have a right not
to be dragged through the courts because you exercised your constitutional rights.”’
[Citation.]” (Ibid.)
       We recognize that a peer review proceeding is an “official proceeding” for
purposes of the anti-SLAPP statute. (Young, supra, 210 Cal.App.4th at pp. 57-58.)
However, the cause of action for negligence in this case does not “arise out of” a peer
review proceeding or protected activity. (Ibid.)
       “Hospitals in this state have a dual structure, consisting of an administrative
governing body, which oversees the operations of the hospital, and a medical staff, which
provides medical services and is generally responsible for ensuring that its members
provide adequate medical care to patients at the hospital. In order to practice at a
hospital, a physician must be granted staff privileges. Because a hospital’s decision to
deny a physician staff privileges may have a significant effect on a physician’s ability to
practice medicine, a physician is entitled to certain procedural protections before such
adverse action may be taken. [Citation.]” (El-Attar v. Hollywood Presbyterian Medical
Center (2013) 56 Cal.4th 976, 983 (El-Attar).)
       “[The peer review] statute does not contemplate a strict separation between the
medical staff and the governing body as a prerequisite for a fair peer review system. . . .
In the context of physician discipline, where a peer review body, contrary to the weight
of the evidence, fails to investigate or initiate disciplinary action, the governing body may
direct the peer review body to do so after consultation with the peer review body ([Bus.
& Prof. Code,] § 809.05, subd. (b)), and if the peer review body still fails to do so, then
the governing body itself may take action ([Bus. & Prof. Code,] § 809.05, subd. (c)).”
(El-Attar, supra, 56 Cal.4th at pp. 992-993.)
       “In other words, the statute provides that although the governing body must give
deference to the determinations of the medical staff, it may take unilateral action if
warranted. This allowance for independent governing board action furthers the ‘primary
purpose of the peer review process,’ which ‘is to protect the health and welfare of the
people of California.’ [Citation.] If, for whatever reason, the medical staff of a hospital


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fails to take action against a physician who ‘“provide[s] substandard care or who
engage[s] in professional misconduct,”’ the governing board of the hospital serves as a
fail-safe to ensure that such a practitioner is removed from the hospital’s staff. [Citation.]
The Legislature’s statutory recognition of the governing board’s role reflects the fact that
the hospital itself is ultimately responsible for the health and safety of the patients it
serves. [Citations.] ‘A hospital has a duty to ensure the competence of the medical staff
by appropriately overseeing the peer review process.’ [Citations.]” (El-Attar, supra, 56
Cal.4th at p. 993.) “A hospital itself may be responsible for negligently failing to ensure
the competency of its medical staff and the adequacy of medical care rendered to patients
at its facility. [Citation.]” (Hongsathavij v. Queen of Angels etc. Medical Center (1998)
62 Cal.App.4th 1123, 1143.)
       In this case, the gravamen of the complaint is that the Hospital knew about Roth’s
disruptive behavior and failed to take reasonable measures to control it. Roth’s behavior
was so disruptive that patient care was jeopardized. He changed orders for patients who
were not his own, violated confidentiality standards by reviewing the charts of other
physicians’ patients, and spitefully refused to treat certain patients. The Hospital took
certain actions in response to the complaints about Roth’s behavior. The Hospital
replaced the trauma director to alleviate personality conflicts in the department, held a
meeting to discuss conduct standards and passed out a book. The Hospital reviewed the
Doctors’ concerns but concluded certain allegations were unsupported and others were
not ripe for assessment. The Doctors did not believe the Hospital’s actions were
sufficient under the circumstances, and the Doctors could not continue to work under the
conditions. The actions the Hospital took or failed to take to control Roth’s behavior
constituted non-communicative conduct. The complaint does not arise from the
Hospital’s exercise of its right of petition or free speech. It is not based on a written or
oral statement made in connection with an issue under consideration or review in a peer
review proceeding. The references in the complaint to Roth’s statements in peer review
proceedings were incidental to the cause of action, which arose out of the Hospital’s
failure to act to ensure the competency of the medical staff.


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                                    DISPOSITION


      The order denying the anti-SLAPP motion is affirmed. Respondents Christojohn
Samuel, M.D., Christojohn Samuel, M.D., Inc., Walid Arnaout, M.D., and Walid
Arnaout, M.D., Inc., are awarded their costs on appeal.




             KRIEGLER, J.




We concur:




      MOSK, Acting P. J.




      KUMAR, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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