NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

FRANSON, J.

This appeal involves a health care clinic's special motion to strike a defamation cause of action asserted by a physician who had been employed by the clinic. The trial court denied the motion to strike under California's anti-SLAPP statute1 and the clinic appealed.

This lawsuit began when the health care clinic sued the physician for breach of contract because he resigned before completing his two-year term of employment. The physician cross-complained, alleging defamation based on statements in an email from the clinic's chief executive officer to other management personnel. The email stated the chief executive officer would report the physician to the Medical Board of California for patient abandonment if he resigned. The clinic moved to strike the defamation claim. The trial court denied the motion, concluding that the email containing the allegedly defamatory statement was not a protected activity under section 425.16, subdivision (e).

We conclude that statements made prior to a possible filing of a report with the Medical Board of California under Business and Professions Code section 805 (805 report) are protected by the anti-SLAPP statute if the following conditions are met. First, the statements must relate to a subject that is capable of being addressed by the Medical Board of California in an official proceeding. Second, the statements must have been made in anticipation of a proceeding (or a procedural step, such as filing an 805 report) contemplated in good faith and under serious consideration. The clinic, as the moving party, failed to demonstrate the second condition. The physician's resignation was not a legally viable basis for filing an 805 report and the evidence presented did not establish serious consideration was given the matter before the email was sent. Accordingly, the trial court correctly determined the clinic had not demonstrated the email was a protected activity for purposes of the anti-SLAPP statute.

We therefore affirm the order denying the motion to strike.

FACTS

Clinica Sierra Vista (Clinica), the plaintiff and cross-defendant in this litigation, is a network of medical clinics organized as a California public benefit corporation. Clinica provides service in Kern County and its principal office is in Bakersfield.

In late 2012, Rajarathinam Subramaniam, M.D. (Physician), was recruited to join Clinica as an internal medicine physician provider. Physician had completed his residency in internal medicine in June 2012 and was certified by the American Board of Internal Medicine in August 2012.

In December 2012, Physician executed an employment agreement with Clinica. The agreement provided that Physician would work at Clinica for a minimum of two years. In February 2013, he began working for Clinica as an internal medicine physician at its clinic in Lamont.

In August 2013, Physician began complaining to Clinica's management about (1) too large of a patient load for providers at the clinic, (2) lack of continuity of care, (3) unqualified mid-level providers seeing patients, and (4) the need for additional staffing. During these discussions, Physician raised the possibility that he would resign. In response, management referred to the two-year term in his employment agreement.

On January 3, 2014, Physician gave Clinica notice of his intention to resign. In response, Stephen W. Schilling, chief executive officer of Clinica, sent Physician an email requesting that Physician phone him and stating:

That same day, Schilling also sent an email to Caron McNearney, with copies to Stacy Ferreira, Tim Speece and Melissa Hernandez. Schilling's email addressed the possibility that Physician would resign and stated:

At the time, Caron McNearney served as chief operation officer of Clinica; Tim Speece served as deputy chief operating officer; Stacy Ferreira served as the chief of human relations; and Melissa Hernandez served as the operations project manager. Schilling's declaration describes them as key management employees of Clinica and states the sole intent of his email to them "was to explain the consequences to [Physician] and the actions [Clinica] would take if [Physician] breached his employment agreement with [Clinica]."

The term "#805" referred to Business and Professions Code section 805, which requires a written report be sent to the Medical Board of California informing it of specified actions involving a licensed medical professional. For example, the chief executive officer or administrator of a licensed health care facility or clinic must file an 805 report if a licensed physician's staff privileges or employment is terminated or revoked for a "`[m]edical disciplinary cause or reason.'" (Bus. & Prof. Code, § 805, subds. (a)(6) [A "`[m]edical disciplinary cause or reason'" means a physician's "competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care."], (a)(7) [definition of "`805 report'"], (b)(2) [filing an 805 report when employment or privileges are terminated or revoked].)

PROCEEDINGS

In February 2014, Clinica filed a complaint against Physician for breach of contract. In August 2014, Physician filed a cross-complaint against Clinica.

In April 2015, Physician obtained leave to file an amended cross-complaint. Physician's amended cross-complaint asserted multiple claims, including a defamation claim as the seventh cause of action. Paragraph 69 of the amended cross-complaint alleged:

Clinica reacted to the addition of the defamation cause of action by filing a special motion to strike under section 425.16. Physician filed an opposition and the motion was heard by the court in August 2015. In September 2015, the trial court issued a minute order denying the motion to strike and stating Clinica failed to meet the threshold requirement of showing the challenged defamation cause of action arose from protected activity. Clinica appealed from the order.

DISCUSSION

I. OVERVIEW OF ANTI-SLAPP STATUTE

A. Statutory Text

Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. (§ 415.26, subd. (a).) Subdivision (b)(1) of section 425.16 provides:

Applying this provision's elements to a motion to strike involves a "two-step inquiry." (Flatley v. Mauro (2006) 39 Cal.4th 299, 317.)

B. Step One: Protected Activity

The first step addresses whether the moving party has carried his or her burden of showing that the challenged cause of action is one arising from a protected activity—that is, an activity "in furtherance of the person's right of petition or free speech." (§ 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 provides a list of activities that fall within the scope of this statutory phrase. (See pt. II.A, post.) For instance, such activity includes any written or oral statement made before or in connection with a judicial or "other official proceeding authorized by law." (§ 425.16, subd. (e)(1), (2).) If the moving party shows the challenged cause of action arose from protected activity, the court proceeds to the second step of the inquiry.

C. Step Two: Probability of Prevailing

The second step examines whether "the plaintiff has established that there is a [reasonable] probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) A reasonable probability of prevailing is established by (1) stating a legally sufficient cause of action and (2) substantiating the elements of that cause of action with evidence. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) In other words, the plaintiff must demonstrate the pleading is both legally sufficient and supported by a prima facie showing of facts sufficient to sustain a favorable judgment. (Ibid.) If these showings are not made, the cause of action lacks the minimal merit required to proceed. (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 (Vasquez) [second step of anti-SLAPP analysis prevents abusive SLAPP suits].)

D. Standard of Review

"Review of an order granting or denying a motion to strike under section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) An appellate court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the evidence. (Soukup, supra, at p. 269, fn. 3.) "Rather, the court's responsibility is to 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." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)

II. PROTECTED ACTIVITY

A. Statutory Categories

The statutory categories of protected activity are set forth in section 425.16, subdivision (e) as follows:

These statutory categories "provide objective guidelines that lend themselves to adjudication on pretrial motion." (Vasquez, supra, 1 Cal.5th at p. 422.)

B. Clinica's Contentions

Clinica contends that Schilling's email to other management personnel is protected activity because it was a written statement made before or in connection with an official proceeding. We break this broad contention into three parts, which ascend from the general to the specific.

First, an investigation and disciplinary action administered by the Medical Board of California pursuant to the Medical Practice Act, Business and Professions Code section 2000 et seq., is an "official proceeding authorized by law" for purposes of section 425.16, subdivision (e)(1). Second, the submission of an 805 report to the Medical Board of California is part of an official proceeding. Third, an email that refers to the submission of an 805 report might be a communication preparatory to or in anticipation of an official proceeding, even if an 805 report is never submitted.

C. Disciplinary Proceedings and 805 Reports

We accept the first two parts of Clinica's contention. First, we conclude that an investigation and disciplinary action administered by the Medical Board of California constitutes an "official proceeding authorized by law" for purposes of section 425.16, subdivision (e)(1). The Medical Board of California is an administrative agency created by the Legislature. (Bus. & Prof. Code, § 2001.) It is assigned the responsibility of investigating complaints and granted the power to initiate disciplinary actions against licensed practitioners. (Bus. & Prof. Code, §§ 2004, 2220.) These statutory provisions provide a sufficient basis for concluding an investigation and disciplinary action administered by the Medical Board of California is an official proceeding for purposes of the anti-SLAPP statute.

Second, the parties agree that filing an 805 report is protected activity within the meaning of the anti-SLAPP statute. (Cf. Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199 [statements made in connection with a hospital peer review proceeding were protected activity because peer review proceeding qualified as an "official proceeding authorized by law" under § 425.16, subd. (e)(2)].) We concur with the parties.

D. Communications in Anticipation of Official Proceeding

The foregoing conclusions serve as foundation for the analysis of the parties' dispute over whether the email was a protected activity. Some, but not all, communications preparatory to or in anticipation of an official proceeding (or a procedural step in that proceeding) are protected by section 425.16. Consequently, we begin by identifying the test used to distinguish between the preparatory or anticipatory communications that are protected and those that are not protected by section 425.16.

1. Basic Principle

The California Supreme Court has adopted the principle "that `[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], ... such statements are equally entitled to the benefits of section 425.16.' (Dove Audio, Inc. [v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777,] 784 ...)" (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) When an official proceeding that is not judicial (i.e., is not litigation) is anticipated, this principle has been summarized as follows: "Communications that are made preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute." (Comstock v. Aber (2012) 212 Cal.App.4th 931, 943.)

The parties accept the foregoing principle as an accurate statement of California law, but disagree about how the principle applies to this case. Physician argues "Schilling's email was not such a communication; it simply (mis)informed the other employees that [Physician] would be actionably abandoning his patients if he resigned." ghIn contrast, Clinica contends the email was made preparatory to or in anticipation of filing an 805 report because Schilling reasonably believed that he was under an obligation to file such a report due to his reasonably held opinion that Physician's resignation would constitute patient abandonment. Clinica acknowledges Schilling realized after further investigation that he was not required to file an 805 report, but contends Schilling's misinterpretation of the filing requirement does not affect the protection afforded under the anti-SLAPP statute.

2. Test for Pre-Proceeding Communications

When litigation (i.e., a judicial proceeding) is involved, the communication is protected by the anti-SLAPP statute if the statement (1) concerns the subject of the dispute and (2) is made in anticipation of litigation contemplated in good faith and under serious consideration. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 824; Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-790 (Bailey) [statement threatening litigation failed test and was not protected by anti-SLAPP statute]; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1259 [employer acted in good faith contemplation of litigation when it sent letter to its customers accusing former employee of misappropriating trade secrets and suggesting customers avoid any ensuing litigation by not doing business with former employee].) The requirement that the litigation be contemplated "in good faith and under serious consideration" focuses on whether the litigation was genuinely contemplated and ensures that hollow threats of litigation are not protected. (Anapol, supra, at p. 824.)

We conclude a similar test applies when an official proceeding other than litigation is involved. During oral argument, counsel for Clinica did not disagree with this conclusion. Thus, the test for whether the anti-SLAPP statute protects a communication made prior to an official proceeding of the Medical Board of California contains two conditions.

First, the statement must relate to a subject that is capable of being addressed by the Medical Board of California in an official proceeding. Here the statement relates to an 805 report and an 805 report is a subject capable of being addressed by the Medical Board of California in an official proceeding.

Second, the statement must have been made in anticipation of an official proceeding contemplated in good faith and under serious consideration. For purposes of this case, we will extend the concept of an anticipated official proceeding to include an anticipated specific procedural step, such as the filing an 805 report. Under this extension, we conclude the second condition will be satisfied if the statement was made in anticipation of filing an 805 report contemplated in good faith and under serious consideration.

3. Application of Test

The parties disagree about the outcome reached by applying the foregoing test to the facts of this case. Physician argues that Schilling's email included a bad faith reference to Business and Professions Code section 805, a statute that Schilling subsequently admitted did not apply. In contrast, Clinica argues Schilling reasonably believed he was under an obligation to file an 805 report when he sent the email. As explained below, we conclude the statement in Schilling's email about patient abandonment was not made in anticipation of filing an 805 report under serious consideration. Accordingly, the trial court properly denied the motion to strike the defamation cause of action.

The parties disagree about whether the party filing or opposing the motion to strike is responsible for presenting evidence demonstrating the existence or absence of good faith and serious consideration. We conclude the party seeking to invoke the protection of section 425.16 for statements anticipating an official proceeding must demonstrate the statement relates to a proceeding or procedural step that was contemplated in good faith and under serious consideration. (Bailey, supra, 197 Cal.App.4th at p. 792.) Consequently, Clinica must make such a demonstration in this case.

When analyzing whether litigation was contemplated in good faith and under serious consideration, courts frequently address whether the claim to be made in the litigation was "legally viable." (E.g., Bailey, supra, 197 Cal.App.4th at p. 792; see Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 266 [prelitigation demand letter satisfied test used for litigation privilege in Civ. Code, § 47, subd. (b)].) Here, there was no legally viable basis for filing an 805 report. As observed by the trial court, the mandatory duty to file an 805 report exists where, as a result of action of a peer review body, staff privileges are denied or terminated due to a medical disciplinary cause or reason. (Bus. & Prof. Code, § 805, subd. (b)(1), (2).) An 805 report also is required when, as a result of action of a peer review body, restrictions are imposed on staff privileges, membership or employment for a cumulative total of 30 days or more for any 12-month period for medical disciplinary cause or reason. (Bus. & Prof. Code, § 805, subd. (b)(3).) In addition, an 805 report is required to be filed by Business and Professions Code section 805, subdivision (c) when an investigation is initiated for a medical disciplinary cause and the physician resigns, takes a leave of absence, or withdraws an application for staff privileges or membership.

Here, no peer review action had been taken or initiated against Physician and none of the other circumstances requiring the filing of an 805 report existed. Therefore, no one at Clinica was obligated to file an 805 report describing Physician's resignation. The absence of a legally viable ground for filing an 805 report and the fact no report was filed are factors relevant to determining whether the threat of taking the procedural step of filing an 805 report was contemplated in good faith and under serious consideration.

More specifically, the application of the "under serious consideration" prong of the test requires courts to evaluate the amount and type of consideration given to the threatened procedural step before the statement was made. As to the meaning of "serious consideration," we note "serious" is defined as "requiring much thought or work" or "of or relating to a matter of importance." (Merriam Webster's Collegiate Dict. (10th ed. 1999) p. 1069.) "Consideration" means "continuous and careful thought."2 (Id. at p. 246.)

Schilling's declaration and the other evidence presented does not describe the specific matters that Schilling thought about or evaluated prior to making the statement about filing an 805 report. Indeed, Schilling's only mention of an inquiry into the need for an 805 report is his statement that after he sent the email, he "had the circumstances of [Physician's] departure further investigated [and] was informed that neither I nor [Clinica was] required to file a report." Consequently, Clinica has made no showing of the "thought or work" that Schilling undertook before stating he would file an 805 report. Lacking this information, we cannot tell whether Schilling's pre-statement thought or work including (1) reading Business and Professions Code section 805 or a publication summarizing its requirements or (2) obtaining information about 805 reports from another source, such as an attorney or an employee responsible for legal compliance. As a result, we conclude Clinica failed to demonstrate Schilling gave serious consideration to whether an 805 report was required to be filed before making the statement alleged to be defamatory. Accordingly, we do not address the good faith prong of the test in detail, but note that (1) the lack of a legally viable basis for filing an 805 report, (2) the subsequent failure to file an 805 report, and (3) the failure to give the filing of such a report serious consideration are a sufficient basis for inferring that Schilling's statement about filing an 805 report was not made in good faith.3

DISPOSITION

The order denying the motion to strike is affirmed. Physician, as the prevailing respondent, shall recover his costs on appeal.

LEVY, Acting P.J. and DETJEN, J., concurs.