Judge: Curtis A. Kin, Case: 23STCP01247, Date: 2024-08-22 Tentative Ruling

Case Number: 23STCP01247    Hearing Date: August 22, 2024    Dept: 86

MOTION FOR ATTORNEY FEES

Date:               8/22/24 (1:30 PM)

Case:                           Sasan Najibi, M.D. v. Providence Valley Service Area Community Ministry Board et al. (23STCP01247)

TENTATIVE RULING:

The Motion for Attorney Fees filed by Respondents Providence Valley Service Area Community Ministry Board (“Board”), Providence Saint Joseph Medical Center (“Hospital”), and Providence Health System – Southern California (“Providence Health”) is GRANTED IN PART.

I.                   REQUEST FOR JUDICIAL NOTICE

Respondents’ requests to take judicial notice of Exhibits 1-12 are GRANTED, pursuant to Evidence Code § 452(d) (records of any court of this state).

Petitioner Sasan Najibi, M.D.’s request to take judicial notice of Exhibit 1 is GRANTED, pursuant to Evidence Code § 452(c). (Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [records of administrative board subject to judicial notice].) Petitioner’s request to take judicial notice of Exhibit 2 is GRANTED.  (Evid. Code § 452(d).)

II.                ANALYSIS

Pursuant to Business and Professions Code § 809.9, respondents move for an award of attorney fees in the amount of $443,520.00.

A.                Legal Standard

Business and Professions Code § 809.9 states, in relevant part: “In any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to Section 805, the court shall, at the conclusion of the action, award to a substantially prevailing party the cost of the suit, including a reasonable attorney’s fee, if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith.”

Section 809.9 imposes “a mandatory obligation on trial courts to award attorney fees when the criteria set forth in the statute are satisfied.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 27-28.) “[T]he terms ‘frivolous,’ ‘unreasonable,’ and ‘without foundation’ are objective standards that might overlap…the term ‘bad faith’ is a subjective standard concerned with a defendant's motives for defending or litigating a lawsuit.” (Id. at 7.) A legal defense or appeal may be viewed a frivolous “if any reasonable attorney would agree it is completely without merit in the sense that it lacks legal grounds, lacks an evidentiary showing, or involves an unreasonable delay.” (Id. at 33.)

B.                 Applicability of Business and Professions Code § 809.9

As a preliminary matter, even though petitioner is appealing the order sustaining the demurrer to the First Amended Petition, the Court can rule on this motion. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369 [“[A]n award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. [Citations.] Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs”].)

Petitioner maintains that section 809.9 does not apply here because the writ petition challenged (1) the format of the peer review proceedings through arbitrators initially and then through a judicial hearing committee comprised of physicians from outside the Hospital (FAP ¶¶ 43, 48, 50, 59, 64, 68) and (2) the Board’s suspension of petitioner’s clinical provisions over the objections of the Medical Executive Committee (“MEC”) (FAP ¶¶ 33, 39). Petitioner argues that neither action is required to be reported to the Medical Board of California. Petitioner also argues that he expressly disclaimed any challenge to the results of the peer review. (FAP ¶ 3.)

Petitioner’s attempt to reframe the suspension as a “byproduct” of the challenged conduct is unavailing. Although the challenged conduct is procedural in nature, the relief that petitioner sought is the setting aside of his suspension. (FAP ¶¶ 38, 40, 62, 73, 80; Prayer for Relief ¶¶ 1(a), 1(b), 2, 3.) Accordingly, petitioner brought this suit to challenge his summary suspension by the Board, an action which must be and was reported under Business and Professions Code § 805. (Bus. & Prof. Code § 805(e) [805 report must be filed “within 15 days following the imposition of summary suspension of staff privileges, membership, or employment, if the summary suspension remains in effect for a period in excess of 14 days”]; FAP ¶ 34 [respondents filed 805 report with Medical Board of California]; Pet. RJN Ex. 1.)

Petitioner also argues that respondents did not “outright prevail” because the Hospital abandoned its use of arbitrators after the April 18, 2023 commencement of the instant writ proceeding. (FAP ¶¶ 38, 40 [notice dated 9/7/22 indicating that peer review proceeding would be conducted before panel of arbitrators], 48 [8/13/23 letter stating that peer review proceeding would be conducted before panel of physicians from outside Hospital].) However, section 809.9 does not require respondents to have “outright” prevailed or completely prevailed. Rather, section 809.9 requires petitioner to have “substantially” prevailed. “The modifier ‘substantially’ indicates that a party can be entitled to fees and costs without prevailing on all of the points raised in the litigation.” (Smith, 188 Cal.App.4th at 36.) Respondents’ demurrer to the then-operative First Amended Petition was sustained as to all causes of action with 30 days leave to amend, after which petitioner opted to dismiss the action with prejudice. (Resp. RJN Ex. 10, 12.) Accordingly, petitioner obtained no relief. Respondents are therefore the substantially prevailing parties under section 809.9.

C.                 Whether Bringing Suit Was Frivolous, Unreasonable, Without Foundation, or in Bad Faith

With respect to the first cause of action in the First Amended Petition, the Court finds that it was frivolous, unreasonable, without foundation, and in bad faith. In the opposition to the demurrer, petitioner did not dispute that a writ of traditional mandamus must be based on violation of a ministerial duty. (Resp. RJN Ex. 11 at 8:2-10:25.) Although petitioner argued that the Board “failed to follow a prescribed course of action given a specific set of circumstances” alleged in the First Amended Petition, petitioner failed to establish how Business and Professions Code § 809.05 required any specific course of conduct. (Resp. RJN Ex. 10 at 3-5.) Petitioner also argued that, to the extent the Board has discretion in the duties set forth in section 809.05, he alleged that the Board abused such discretion. (Resp. RJN Ex. 11 at 8:8-9, 10:26-11:24.)

Petitioner cited Common Cause v. Board of Supervisors (1989) 49 Cal. 3d 432 for the assertion that traditional mandamus “may issue…to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law.” (Resp. RJN Ex. 11 at 10:27-11:3; Common Cause, 49 Cal.3d at 442; see also Opp. at 15:27-16:2.) This quote discusses both the ministerial duty to exercise discretion and to properly interpret the law in exercising discretion. Here, petitioner did not allege how the Board failed to exercise discretion or misinterpreted section 809.05 in exercising discretion. Rather, petitioner alleged that, under the alleged factual scenario, his suspension was invalid. As the Court explained in its ruling on the First Amended Petition, whether the Board “consulted” with the MEC, whether the Board “failed to give great weight” to the MEC’s decision not to summarily suspend petitioner, whether the Board’s decision to suspend petitioner was “arbitrary and capricious,” and whether the Board suspended petitioner without a showing that failing to suspend petitioner “may result in an imminent danger to the health of any individual” are discretionary, not ministerial, duties. (RJN Ex. 10 at 3-5.) Petitioner also cited Mooney v. Garcia (2012) 207 Cal.App.4th 229 for the assertion that a “decision is an abuse of discretion where it is ‘arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.’” (Resp. RJN Ex. 11 at 11:4-6.) However, Mooney also explained that traditional mandamus “will not issue if the duty is not plain or is mixed with discretionary power or the exercise of judgment.” (Id. at 233, quoting Los Angeles County Prof. Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.) Because the Court found that the facts alleged by petitioner were not subject to any hard or fast rules under section 809.05, traditional mandamus cannot issue.

Petitioner also alleged that his suspension terminated automatically because the MEC did not ratify the suspension within two working days. (Resp. RJN Ex. 10 at 5, citing FAP ¶ 62(b).) In a prior writ proceeding, however, petitioner sought to enjoin his summary suspension, arguing that under Business and Professions Code § 809.5, only the MEC has the authority to suspend petitioner. (Resp. RJN Ex. 2 at 2.) In a decision regarding issuance of a temporary restraining order (“TRO”), Judge Mitchell Beckloff disagreed, finding that the circumstances set forth in section 809.5(b) were not applicable. Section 809.5(b) allows respondents to immediately suspend a physician where no person from the MEC was available to summarily suspend privileges, after which the MEC must ratify the suspension. (Resp. RJN Ex. 2 at 2.) Judge Beckloff found that ratification is required only where the requirements of section 809.5(b) and (c), i.e., where the MEC is available but fails to take action, are not satisfied. (Resp. RJN Ex. 2 at 3.)

As was the case in the proceeding before Judge Beckloff, this Court found that section 809.5(b) only applies when no authorized representative of the peer review body is available to suspend petitioner, but petitioner alleged that the MEC was available but declined to suspend petitioner. (Resp. RJN Ex. 10 at 5.) Like in the proceeding before Judge Beckloff, the Court found that section 809.5(b) is inapplicable by its terms. (Resp. RJN Ex. 10 at 5.) Even though the TRO was not a final decision on the merits, petitioner’s reassertion of the same argument after it was rejected by Judge Beckloff is indicative of petitioner’s bad faith. (See Smith, 188 Cal.App.4th at 7, 36 [prelitigation conduct, from which inferences can be drawn regarding motives in litigating a lawsuit, is relevant to the question of bad faith].)

With respect to the second cause of action in the First Amended Complaint, the Court also finds that it was frivolous, unreasonable, without foundation, and in bad faith. Petitioner asserted that Medical Staff Bylaw section 6.3.6 required respondents to assemble a judicial hearing committee (“JHC”) composed of physicians who are part of Hospital’s Medical Staff because respondents had not shown that composing such a JHC would be impossible. (Resp. RJN Ex. 10 at 6.) However, the Court found that, like the first cause of action, the determination that appointment of a JHC from the Medical Staff would be impossible is a discretionary duty. (Resp. RJN Ex. 10 at 6.) To the extent that the Bylaw was violated, administrative mandamus, not traditional mandamus, was the proper remedy. (See Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1124 [“[P]etitioner's challenge to the procedural validity of the suspension is based on an alleged violation of the bylaws. Such a challenge would generally invoke administrative mandamus review”].) Further, even if the Bylaws were violated, departures from the Bylaws are disregarded unless they have produced some injustice. (El-Attar v. Hollywood Presbyterian Med. Ctr. (2013) 56 Cal.4th 976, 990.) “[O]nly material deviations from a hospital's bylaws will warrant judgment in favor of a physician challenging the fairness of a judicial review hearing.” (Id. at 991.) The question of whether a panel of physicians from outside the Hospital would materially deviate from the Bylaws or result in injustice to petitioner could not have been resolved until the peer review proceeding actually took place. As a result, violations of fair procedure are remedied with a writ of administrative mandamus, not traditional mandamus. (See ibid. [“[T]he Legislature made clear that relief for purported violations of a physician's right to a fair procedure would continue to be sought by a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5”].)

The Court also finds that petitioner’s motion for preliminary injunction heard on November 30, 2023 was a frivolous motion for reconsideration under CCP § 1008, for which petitioner had not demonstrated new facts or law which could not have been presented in connection with petitioner’s ex parte application to preserve the status quo heard on September 26, 2023. (Resp. RJN Ex. 8, Ex. 9 at 2-4.) Petitioner cites Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078 for the assertion that CCP § 1008 does not bar a second motion seeking the same relief if the second motion is based on different legal factors and weighing of evidence by the Court. In Emerald Bay, the Court of Appeal found that a ruling on a motion for summary judgment did not foreclose a motion for judgment during trial pursuant to CCP § 631.8, because, unlike a summary judgment motion, the judge could weigh evidence and make factual findings on the evidence introduced at trial. (Emerald Bay, 130 Cal.App.4th at 1986.) Here, both the ex parte application and the motion for preliminary injunction contained a request for a preliminary injunction, which required an examination of the likelihood that petitioner will prevail on the merits and whether petitioner will be irreparably harmed absent issuance of the requested injunction. (White, 30 Cal.4th at 554.) The same legal standard applied to both requests for relief—a circumstance unlike the motions for summary judgment and nonsuit in Emerald Bay. Simply put, the ex parte application and the instant motion were the same motion.

For the foregoing reasons, the Court finds that petitioner’s conduct in bringing and litigating the instant suit was frivolous, unreasonable, without foundation and in bad faith. Respondents are entitled to recover reasonable attorney fees pursuant to section 809.9.

D.                Amount of Reasonable Fees

Respondent seeks $443,520.00 in fees. (Dolenac Decl. ¶ 21 & Ex. 18.) The Court finds that respondents’ time sheets evidence excessive billing. Respondents double-, triple-, and quadruple-billed for strategizing about the case and reviewing and revising documents. Further, counsel spent 175 hours on discovery (21 special interrogatories, 22 requests for production of documents, 40 requests for admissions, and 12 form interrogatories that included No. 17.1), 113.5 hours on the oppositions to petitioner’s motion to compel, and 147.0 hours on the demurrer. (Dolenac Decl. ¶ 15, 21 & Exs. 14-17.) These hours are excessive on their face. Based on the foregoing, the Court reduces respondents’ asserted lodestar by 35 percent, or $155,232 Accordingly, the Court awards respondents $288,288.

III.             CONCLUSION

The motion is GRANTED. Using the appropriate lodestar approach, and based on the foregoing findings and in view of the totality of the circumstances, the total and reasonable amount of attorney fees incurred is $288,288. Such fees are awarded to respondents Providence Valley Service Area Community Ministry Board, Providence Saint Joseph Medical Center, and Providence Health System – Southern California and against petitioner Sasan Najibi, M.D.