Petitioner and appellant John Young, M.D., brought these proceedings for a writ of administrative mandate to challenge the decision of the board of directors of respondent Tri-City Healthcare District (the Board or the District) to terminate his medical staff privileges at its hospital. (Code Civ.
Young's appeal arises from the trial court's ruling, ultimately issued after three hard fought phases of reconsideration motion hearings and other procedural developments, to grant the District's special motion to strike the fifth cause of action, which specifically challenged Young's cause of action for relief from the summary suspension. (§ 425.16; the anti-SLAPP statute.) The District contended in its motion that any of its alleged misconduct arose solely from protected free speech and official activity within the meaning of the anti-SLAPP statute, i.e., the conduct of hospital peer review proceedings. (§ 425.16, subd. (e)(1), (2).) It also argued that Young had failed to exhaust his administrative remedies in connection with the summary suspension, by agreeing to mediate the disputes, but then failing to further pursue his administrative remedies on that particular subject, when mediation failed. Young replied to the District's claims by asserting it would have been futile to further pursue any such administrative remedies, so that the requirement of exhaustion of remedies is inapplicable to this fifth cause of action. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 475 [131 Cal.Rptr. 90, 551 P.2d 410].) The court reached several different results during the reconsideration proceedings, giving rise to Young's appeal.
In the order which Young appeals (the February 2011 order), the trial court essentially adhered to its initial grant of the District's motion to strike the fifth cause of action (granted in June 2010). However, the current result was reached after a July 2010 issuance of an order of dismissal of the "entire action," and the court's August 4, 2010 minute order subsequently attempting to correct it by restricting the dismissal to the fifth cause of action. This February 2011 order followed two reconsideration hearings. In October 2010, Young prevailed on his motion to reconsider the initial grant of the District's motion to strike, and the District filed a notice of appeal of that October order. (Young v. Tri-City Healthcare Dist. (D059092, filed Dec. 21, 2010, abandoned Mar. 2, 2011).) In the interim (Nov. 2010), the District filed its own motion to reconsider the same subject matter, giving rise to the subject order that Young appeals, and the District subsequently abandoned its own, earlier appeal.
Exceptions to the stays under section 916 that are created by appeals have been developed for collateral matters, such as statutory new trial motions or motions for judgment notwithstanding the verdict. (Neff v. Ernst (1957) 48 Cal.2d 628, 633-634 [311 P.2d 849]; Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal.App.3d 1204, 1210-1211 [238 Cal.Rptr. 130] (Foggy).) The parties dispute whether this sequence of reconsideration motions is equivalent to such a "collateral" matter to the underlying ruling. It is not. We will address these issues by first identifying the legal effect of these reconsideration proceedings, as well as the trial court's signing, but recalling as erroneous, a dismissal order for the entire petition. We can then determine the effect upon the trial court proceedings of the District's separate appeal that it filed in the midst of its trial court litigation (but subsequently abandoned; Cal. Rules of Court, rule 8.244(b)(1)).
We resolve Young's appeal by concluding, initially, that the trial court had the power to correct its clerical error of apparently dismissing the entire action, when only the fifth cause of action had been brought before it in the anti-SLAPP motion proceedings, and only the fifth cause of action was the subject of that ruling. The trial court's action was proper and left the action pending, as a whole.
More importantly, we conclude that the trial court lost subject matter jurisdiction over the second reconsideration motion, and it had no authority to issue the February 2011 order, because the filing and perfecting of the District's own appeal caused the trial court to lose its authority to resolve the District's own reconsideration motion, which was still pending when its own
We could stop there, but in an abundance of caution, our review will next be directed toward the substance of the June and October 2010 orders. The parties each make substantive arguments about the merits of the ruling on the anti-SLAPP motion to strike the fifth cause of action. This requires us to consider whether Young's petition for writ of administrative mandate to compel a hearing on his summary suspension "arose out of" the District's protected free speech conduct in the hospital peer review context. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703].) In the context of a hospital staff physician's tort action for damages, the Supreme Court determined in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196-197 [46 Cal.Rptr.3d 41, 138 P.3d 193] (Kibler) that the anti-SLAPP procedure may properly be raised in defense by a hospital district, because those defamation and other allegations of injury arose directly out of protected peer review recommendations.
We reverse the February 9, 2011 order with directions to the trial court to reinstate its October 26, 2010 order and to allow such further proceedings as are appropriate on the amended petition as a whole.
We outline the bare bones of the history of this case as necessary to address the jurisdictional and legal issues presented, regarding the interplay of section 916 imposing stays on appeal, and the reconsideration and anti-SLAPP statutory schemes.
In 2006, Young, a cardiopulmonary surgeon, held privileges in his field at the District's hospital. The Board governs the hospital. The hospital's medical staff is governed by a medical executive committee (MEC), which conducts peer review proceedings designed to ensure the quality of care provided at the hospital. Under District and hospital bylaws, a practitioner dissatisfied with actions carried out by the MEC may appeal to a judicial review committee (JRC).
In his amended petition, Young lays out the facts of certain conflicts that he had from 2006 forward, with fellow practitioners and District administrators, about the adequacy of the standard of care provided by Young and by other practitioners. Starting in November of 2006, the MEC had an ad hoc committee make an investigation into Young's treatment of patients and their relatives and his behavior. In June 2007, the MEC recommended that Young's staff privileges be permanently terminated for inappropriate care that was below standards.
Young invoked his right to challenge the termination before the JRC, and continued to carry out his practice. The JRC hearings went on from December 2007 through August 2008. The JRC issued its decision in September of 2008, adopting the MEC recommendation and terminating Young's staff privileges.
On September 19, 2008, Young appealed to the Board. The workplace conflicts continued, and on December 18, 2008, the hospital's chief of medical staff (Dr. Richard Burruss, assisted by MEC counsel, Arthur R. Chenen) ordered that he be summarily suspended, and the MEC confirmed the suspension December 23, 2008. On December 26, 2008, Young filed another appeal to the JRC, concerning the suspension. On January 2, 2009, the District filed a report of the suspension of privileges with the Medical Board of California, pursuant to Business and Professions Code section 805, subdivisions (b) and (e) (reporting requirements).
In October 2009, Young filed his petition for writ of administrative mandate, as amended, contending the MEC, the JRC, and the Board denied him fair procedure, and the termination decision lacked substantial support in the evidence. He sought judicial review of the administrative record, and an order for reinstatement and costs. In the fifth cause of action, he sought an order determining that the December 2008 summary suspension was unjustified, based on improper review of his records, carried out by unqualified committees, and unsupported by substantial evidence, so it should be vacated.
The District filed its answer and further responded by filing its motion to strike the fifth cause of action, expressly stating that this was the only cause of action relevant to the anti-SLAPP motion procedure. The District identified the core issue before the court as whether Young had exhausted his internal administrative remedies as to the summary suspension, before the petition was filed. The District described the notification given about Young's right to appeal the summary suspension, but contended that Young did not adequately follow through to identify an arbitrator. The District agreed to stay the summary suspension pending mediation, but nothing further was done to pursue the arbitration. The District's motion did not address the merits of Young's remaining six causes of action.
Young opposed the motion in propria persona, attaching copies of numerous documents on which he was relying (records of the discipline proceedings). At the June 14, 2010 hearing, the court conditionally denied the motion, subject to Young filing further materials to support his arguments, and provided for its issuance of a further ruling. Young supplied some authentications of his documents, but in the minute order of June 23, 2010, the court stated that those additional materials had failed to adequately oppose the merits of the motion, and it was granted.
The court signed an order July 12, 2010, stating that the "entire action" was dismissed, although the court interlineated it to state that the action was dismissed "without prejudice." However, on August 4, 2010, the court sua sponte sent out a minute order that modified or corrected the underlying June 23, 2010 minute order (the one later formalized in the July 12, 2010 order),
Meanwhile, on July 2, 2010, Young filed his reconsideration motion, explaining that he, as an in propria persona litigant, had not understood his prior opportunity given him by the court to provide more information, and he was now supplying an amended declaration to more fully support his claims. Among other things, his declaration stated that he was induced by the actions of the District to have the reasonable belief that he need not pursue his second appeal to the JRC regarding the summary suspension, because it would not serve any useful purpose and it would not mitigate the harmful effects of the District's reports made to the Medical Board of California and to other authorities, about his summary suspension and later, about the termination of his privileges. He contended that the burden was on the District to reactivate his second administrative appeal request, once the negotiations and mediation fell through.
In opposition filed August 27, 2010, the District argued that the entire action had already been dismissed in the July 12 order, and in any case, Young had not made any adequate showing of new or different facts, as required by section 1008.
The court heard the reconsideration arguments and on October 26, 2010, issued a minute order vacating the "judgment," because the June order had "erroneously included language finding the ruling to be dispositive of the entire action" and that the ruling "was not dispositive of the entire petition."
Also, the October 26 minute order granted Young's motion for reconsideration, determining that exhaustion of administrative remedies regarding the summary suspension would have been futile because an official report had already been filed with the Medical Board of California while the internal review of Young's termination was proceeding.
The District promptly filed its own motion for reconsideration, contending the July 2010 dismissal remained valid, or alternatively, the anti-SLAPP motion to strike was well taken, because Young had not successfully shown it would have been futile to exhaust his administrative remedies. For example, if Young had obtained reversal of the summary suspension, administratively,
While the District's motion for reconsideration was pending, the District filed on December 21, 2010, its notice of appeal from the October 26 ruling on Young's successful motion for reconsideration. (Young v. Tri-City Healthcare Dist., supra, D059092 [the District's appeal].)
After hearing argument, the trial court issued its February 2011 minute order granting the District's motion for reconsideration, while also upholding its own prior correction of the erroneous July 12 order that had purported to dismiss the entire action. On March 1, 2011, the District filed an abandonment of its appeal of the October order.
On April 4, 2011, Young appealed the February 2011 order granting reconsideration, since it had effectively granted the motion to strike his fifth cause of action.
The threshold issue is whether the trial court, in this administrative mandate matter, accurately assessed the legal effect of the sequence of its rulings on the motions before it in this case, for purposes of deciding whether it retained jurisdiction to render the February 2011 ruling on the District's Phase III reconsideration motion, in light of the District's earlier filing of its appeal of the Phase II reconsideration order in favor of Young, and/or the existence of the interim July 12, 2010 dismissal and correction orders.
Depending on the existence of any ongoing trial court authority to render the February 2011 ruling, and/or the effectiveness of the October order that preceded it, we will ask in part V, post, if the ruling on the merits of the original motion was substantively correct under the anti-SLAPP standards.
As already noted, the history of this February 2011 reconsideration order included two earlier rulings in 2010 that also arose out of the substance of the
Upon receipt of the October order upon reconsideration that ruled in favor of Young, the District did two things: it filed its own reconsideration motion in November 2010, and while the motion was awaiting its hearing date in January 2011, the District filed its own appeal of the October order. Once the February 2011 order was issued on the District's motion seeking reconsideration of the October order (during the period that the District was still appealing the Oct. order), the District proceeded to abandon its own appeal, in March 2011. The District did not have to seek permission from this court to abandon the appeal, since no record had yet been prepared. (Cal. Rules of Court, rule 8.244(b)(1).)
We examine the validity of each order in the entire sequence to determine which one effectively disposed of all the matters properly brought before the trial court, and therefore what is left of Young's amended petition for any future adjudication. Young, as the appellant, squarely raised the issue about a lack of subject matter jurisdiction in the trial court to issue the February 2011 reconsideration motion, while the District's appeal was still pending. In its respondent's brief, the District not only responds to that argument, but it also introduces a new issue, whether the trial court's July 12, 2010 order dismissing the "entire action without prejudice" was enforceable, despite the trial court's efforts to correct the error in its August 4 minute order. The trial court later expressly confirmed that correct approach in its October order granting reconsideration to Young, by referring to the court's own motion vacating the judgment of dismissal, on the grounds it had been issued as a result of an erroneous minute order.
Here, there was never any entitlement to a final order dismissing the entire action, because the District's motion to strike was expressly directed at only the fifth cause of action, and nothing more was ever noticed to the parties or brought before the trial court. We cannot consider the material in the respondent's appendix that was not shown to be in the trial court record, i.e., a nonconformed copy of a letter from counsel for the District to the trial court, supposedly pointing out that only the fifth cause of action was the subject of its motion, as any support for the District's argument that the July 12 dismissal order, even if erroneous, somehow remained final and binding because there was no appeal filed from it.
Rather, we can determine from the copy of the motion in the file that it was always directed to the fifth cause of action, and the trial court could, and did, properly make a clerical correction of the erroneously issued, overbroad, earlier order. The August 4 order deleting language that had been erroneously inserted into the June orders was proper, there was still a pending action, and Young could appropriately seek reconsideration of the adverse June orders, which he did.
Once Young's October reconsideration motion was granted, things got more complicated. The District filed its own reconsideration motion in November, but while it was waiting to be heard, the District in December appealed the October order. Thus, the District's appeal had the essential effect of an appeal from the recent denial of its own anti-SLAPP motion (which had been previously granted in June).
We must consider the effectiveness of the motion proceedings that followed, in light of the rules established under section 916, subdivision (a), which states in relevant part that "[e]xcept as [otherwise] provided ..., the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." (Italics added.)
As pointed out in Young's briefs on appeal, the ordinary effect of the December filing of the District's notice of appeal would have been to automatically stay "all further trial court proceedings on the merits." (Varian, supra, 35 Cal.4th at p. 188.) According to the District, the automatic stay provisions did not apply because this was a collateral or ancillary matter, that was not "`embraced' in or `affected' by the appeal."
Varian, supra, 35 Cal.4th 180 teaches us, "In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. `[W]hether a matter is "embraced" in or "affected" by a judgment [or
"[A]n appeal does not stay proceedings on `ancillary or collateral matters which do not affect the judgment [or order] on appeal' even though the proceedings may render the appeal moot. (Betz, supra, 16 Cal.App.4th at p. 938.) For example, the Legislature has established that certain proceedings, by law, are collateral to the merits of an appeal despite their potential effect on the appeal. Thus, the Legislature, through its enactments, has established that a motion for a new trial is collateral to the judgment and may proceed despite an appeal from the judgment (See [Estate of Waters] (1919) 181 Cal. 584, 587 [185 P. 951] ...; see also Neff v. Ernst[, supra,] 48 Cal.2d 628, 634].)" (Varian, supra, 35 Cal.4th at p. 191.)
In Copley v. Copley (1981) 126 Cal.App.3d 248, 298 [178 Cal.Rptr. 842], this court treated motions to vacate a judgment under sections 473 and 663 that were filed after judgment was entered and an appeal filed, not as collateral matters but as automatically stayed by the appeal. By contrast, in Foggy, supra, 192 Cal.App.3d 1204, 1210-1211, the court analyzed a different statute, section 629, allowing a motion for judgment notwithstanding the verdict, and treated it as a collateral matter that the trial court could rule upon while a notice of appeal of the judgment was pending. The court found no reason to determine that such a motion was dissimilar from a statutory new trial motion, despite the divestment of trial court jurisdiction regarding the judgment itself, and said it could also be ruled upon as a collateral matter. The court relied on language in Estate of Waters, supra, 181 Cal. 584, in which the Supreme Court held a statutory motion for new trial was a collateral matter to the underlying judgment, based on its reading of legislative intent in amending the new trial statute. (Foggy, supra, at pp. 1210-1211.)
We need not resolve the validity of those two approaches using different statutes (§§ 663, 629) to make a collateral jurisdiction determination. We find more specific guidance in Varian, in which the Supreme Court determined that an appeal from the denial of an anti-SLAPP motion was not a collateral or ancillary matter in the same way as is an appeal from the denial of a preliminary injunction or a motion to disqualify counsel. The court explained, "Neither a motion for preliminary injunction nor a motion to disqualify counsel resolves the merits of a cause of action. Thus, the granting or denying of these motions [pending an appeal] is reconcilable with any subsequent judgment on the merits." (Varian, supra, 35 Cal.4th at p. 193.)
If the trial court errs in this respect, by committing a judicial act without jurisdiction to do so, the appellate courts can remedy the error, because "even a void judgment or order is appealable if that judgment or order is otherwise appealable." (Varian, supra, 35 Cal.4th at p. 200, italics added.)
We are guided by Varian's statement, "In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results." (Varian, supra, 35 Cal.4th at p. 189.) The subject of the October reconsideration order was the merits of the ruling on the District's anti-SLAPP motion, and Young was arguing that his fifth cause of action should not have been stricken. When the trial court agreed, the District filed an appeal. The District could not likewise pursue its own reconsideration motion in the trial court to reverse that reconsideration, because "`[t]he trial court's power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.'" (Id. at pp. 189-190.)
Even though some legislative enactments, such as new trial statutes, allow specified collateral proceedings to take place despite an appeal from the judgment, such proceedings in many cases are addressed not to the merits of the decision, but rather to the fairness of the procedures followed at trial. For example, section 657 allows new trials to be granted where procedural protections have failed or the decision was not supported by the evidence. (See Estate of Waters, supra, 181 Cal. 584, 587; see also Neff v. Ernst, supra, 48 Cal.2d 628, 634.) Here, however, both the anti-SLAPP and reconsideration proceedings went directly to the merits of any District entitlement to relief, as that relief is substantively defined and restricted in the anti-SLAPP statutory scheme, and the appeal did likewise.
Under an alternative analysis set forth in Varian, supra, 35 Cal.4th at page 190, the February 2011 postorder proceedings would impermissibly adversely affect the effectiveness of the pending appeal, because "the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable," or potentially so. (Ibid. [stating in comparison that an appeal from a judgment on the pleadings precludes a trial court from granting leave to amend the complaint because affirmance of the judgment is irreconcilable with an order granting leave to amend]; see Olson v. Superior Court (1969) 274 Cal.App.2d 311, 314 [79 Cal.Rptr. 136].)
At all times, the main relief the District was seeking was an anti-SLAPP order striking and dismissing a cause of action on the merits. If the District's appeal of the October reconsideration order (in favor of Young) had been successful, the District might have been able to have its original June orders granting its motion reinstated, or possibly, an appellate court could merely
Whether those alternate procedural tracks were always irreconcilable need not now be determined. The point is that both tracks address the same substantive ruling on the anti-SLAPP issues, and only the appellate court could have had subject matter jurisdiction on those same issues, once the appeal was perfected. It was a waste of judicial resources for dual tracks to be followed, particularly since only the fifth cause of action was affected and the other causes of action would have to be separately adjudicated.
For those reasons, we conclude that the trial court lacked subject matter jurisdiction to continue to entertain the District's reconsideration motion, as of the time that the District filed its appeal of the October order that reconsidered the original grant of the District's motion to strike. By seeking appellate relief that would have reinstated the original grant of the District's motion to strike, the District's filing of its notice of appeal ousted the trial court of jurisdiction to continue to consider the same substantive issues. Thus, when the trial court issued its February 2011 order, it was a void act.
In this factual and procedural context, the merits of any futility exception to the exhaustion of remedies doctrine of administrative law are also at stake, as asserted by Young in opposition to the motion to strike. The overall question is whether the allegations of his administrative mandamus petition, in the fifth cause of action seeking relief from the summary suspension, fall within the scope of the anti-SLAPP statutory definitions. Did Young's court action for a writ of administrative mandate to compel a hearing on the validity of his summary suspension necessarily "arise out of" protected free speech conduct, in the hospital peer review context? (See Navellier v. Sletten, supra, 29 Cal.4th 82, 88; § 425.16, subd. (b)(1).)
In the fifth cause of action, Young sought judicial review of the administrative record, an order for reinstatement and costs, and a determination that the summary suspension should be vacated, by alleging that it was not carried out properly by a qualified committee, the review of his records was done improperly, and the suspension was not supported by substantial evidence.
These anti-SLAPP motion proceedings intervened before the trial court reached any substantive issues concerning Young's entitlement to relief in mandamus. The motion to strike and opposition raised issues about whether the fifth cause of action was "triggered by protected activity" or "arose" from such. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695] (City of Cotati).) The trial court was asked to address whether the District's alleged acts underlying this cause of action were, in and of themselves, acts carried out "in furtherance of the right of petition or free speech." (Ibid.)
The resolution of these anti-SLAPP issues depends upon the initial definition in section 425.16, subdivision (b)(1), of the coverage of the statutory scheme, of any "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 ... in connection with a public issue [that] shall be subject to a special motion to strike...." (Italics added.) The question should be whether the plaintiff is seeking relief from the defendant for its protected communicative acts. (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 806 [63 Cal.Rptr.3d 575].) As referred to in Varian, supra, 35 Cal.4th at page 193, "`[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.'" (See People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317 [9 Cal.Rptr.3d 844].) Absent such coverage, the trial court need not proceed to the second prong of the anti-SLAPP analysis, whether the plaintiff can establish a probability of prevailing on his or her claim. (San Ramon, supra, 125 Cal.App.4th 343, 357.)
In Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1218 [104 Cal.Rptr.3d 692] (Graffiti), the court reviewed an anti-SLAPP ruling and decided that the lawsuit challenging a city's decision to terminate a contract, allegedly in violation of competitive bidding laws, did not "arise out of" the city's protected speech, even though the decision was reached in an official proceeding. Thus, the losing contractor could make claims about the city's conduct, without running afoul of anti-SLAPP protections. The court explained that even though the city officials had engaged in deliberations, their mistake in ignoring applicable law did not mean the city was exercising its right of petition or free speech in doing so. (Id. at pp. 1224-1225; San Ramon, supra, 125 Cal.App.4th at pp. 353-355, 357.) "The substance of the City's decision was not protected activity." (Graffiti, supra, at p. 1224.)
Even though the District had such official duties in the peer review area, its acts of governance do not necessarily amount to its own exercise of free speech or petition rights. (San Ramon, supra, 125 Cal.App.4th 343, 354.) It is possible that Young's petition to obtain judicial review of the District's summary suspension decision did not arise from the protected sphere of activity. (Id. at pp. 346-347.) His request for judicial relief from an administrative decision should be distinguished from requests for damages that are fundamentally based on alleged injury arising from such peer review activity.
For example, in Kibler, supra, 39 Cal.4th 192, 196-197, the Supreme Court determined that the anti-SLAPP procedure could properly be raised by a hospital district in defense of a lawsuit, on tort damages theories, that was brought by a hospital staff physician and that directly arose out of peer review recommendations. That plaintiff was seeking damages under theories including defamation, abuse of process, and interference with his practice, all of which arose out of the "hospital's peer review procedure," which was a type of "`official proceeding authorized by law'" defined and protected by section 425.16, subdivision (e)(2). (Kibler, supra, at p. 199.)
Accordingly, in Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 56-57 [117 Cal.Rptr.3d 805] (Smith), the appellate court relied on Kibler, supra, 39 Cal.4th 192, to assume that the anti-SLAPP procedures covered an action by a dismissed physician who was seeking damages and injunctive relief against hospital defendants. That plaintiff was claiming that hospital staff caused him damages when they improperly refused to accept and process his reapplication after a suspension decision and after his subsequently court-ordered term of privileges to practice had expired. The court analyzed the case by assuming that such allegations about financial harm from a wrongful summary suspension arose out of the hospital defendants' acts, which were committed pursuant to protected official peer review activity under the definitions of the anti-SLAPP statute. (Smith, supra, at pp. 56-57.) Damages could not be awarded on the basis of such protected activity.
In Nesson, supra, 204 Cal.App.4th 65, the gravamen of each of the dismissed doctor's claims for damages (contract and unlawful discrimination)
In our case, even though hospital peer review proceedings may qualify as "official proceedings" under anti-SLAPP definitions, we must still determine whether all of Young's fifth cause of action "arose out of" the District's protected official activity. (See § 425.16, subd. (e)(1).) Young seeks relief in administrative mandamus against an allegedly wrongful summary suspension. Under section 1094.5, he has a right to seek such relief, because the Legislature has recognized that a judicial remedy may be appropriate where an administrative decision is sufficiently flawed. (San Ramon, supra, 125 Cal.App.4th at pp. 357-358.) Young should be able to attempt to show that the District had an enforceable duty grounded in its bylaws, and he may assert a right to proper performance of such a duty, to allow him the requested review of his summary suspension. (8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 74, p. 954.)
Similarly, even though a hospital peer review proceeding qualifies as an "official proceeding" under another anti-SLAPP definition, we must still determine whether the basis of his claim arises out of "any written or oral statement or writing made in connection with an issue under consideration" by the peer review proceeding. (§ 425.16, subd. (e)(2).) Young's fifth cause of action alleges that he is entitled to judicial review of the administrative decision, and he does not seek damages on tort theories. He attacks the summary suspension as not carried out properly by a qualified committee, and claims the review of his records was done improperly. We think this claim of entitlement to judicial review of allegedly prejudicial administrative action is based on and arose out of his statutory rights under section 1094.5, and is separate and different from an action for damages that arose out of the content of the allegedly wrongful peer review statements, such as the courts in Kibler, supra, 39 Cal.4th 192 and Smith, supra, 190 Cal.App.4th 40, were considering (damages for defamation or business interference). "The substance of the [District's] decision was not protected activity." (Graffiti, supra, 181 Cal.App.4th at p. 1224.) The claim here is avoidance of fair procedure or his judicial review hearing rights.
Even if a cause of action was "triggered" by protected activity, it does not always arise from it. (City of Cotati, supra, 29 Cal.4th 69, 78.) When we
Because of our conclusions that the anti-SLAPP statutory protections do not clearly apply as a matter of law to this fifth cause of action, this court need not reach the second portion of the statutory test under the anti-SLAPP statute, i.e., whether Young can establish a probability that he will prevail on his claims (e.g., his futility of exhaustion of remedies regarding the intertwined decisions). (Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d 465, 475; § 425.16, subd. (b)(1); Hylton, supra, 177 Cal.App.4th 1264, 1271.) We reverse the February 2011 order with directions to the trial court to reinstate its October order, and to allow such further proceedings as are appropriate on the entire amended petition.
The February 9, 2011 order is reversed with directions to the trial court to reinstate its October 26, 2010 order and to allow such further proceedings as are appropriate on the entire amended petition. Costs on appeal are awarded to appellant.
McConnell, P. J., and Irion, J., concurred.
