Judge Randolph M. Hammock, Case 22STCV07592 2022-09-07 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV07592, Date: 2022-09-07 Tentative Ruling

Plaintiff Linda Morgenstern alleges FEHA violations and various torts against Defendant Southern California Medical Group, Inc. and its employees. Plaintiff alleges Defendants retaliated against her for complaining of patient safety issues, requesting a reasonable accommodation, complaining of a hostile work environment, applying for Worker’s Compensation, reporting Defendants Mara Ridane and Fanny Noya for falsifying compliance competency paperwork, and complaining of assault, battery, and defamation.

To the extent that the Causes of Action for IIED and Defamation rely on allegations of statements Defendant Ridane made to a worker’s compensation investigator, those allegations are ordered stricken. (See Baral, supra, 1 Cal.5th at 381-382 [courts must consider each category of Defendant’s alleged defamatory statements as a separate “claim” subject to a motion to strike].) Any and all other requests to strike are DENIED.

Defendant objects to Plaintiff’s opposition as untimely. Plaintiff filed and served its opposition to this motion on August 25, 2022, less than the nine court days required prior to the September 7, 2022, hearing date. (Code Civ. Proc. § 1005(b).) This court notes that Labor Day, September 5, 2022, is a court holiday. Be that as it may, the Court will exercise is discretion to consider the opposition so as to address the matter on its merits.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].)

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a 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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, 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.” (Code Civ. Proc. § 425.16(e).)

Here, Defendants contend that their alleged defamatory statements related to health care, which is “a public issue or an issue of public interest” under subdivision (e)(4). Under Baral, this court must consider each category of Defendants’ alleged defamatory statements as a separate “claim” subject to a motion to strike. (See Baral v. Schnitt (2016) 1 Cal.5th at 381-382.) Here, the alleged defamatory statements are [1] “Defendant RIDANE proclaiming that Plaintiff was violating policies and committing medical battery, [2] Defendant NOYA telling technologists that Plaintiff was purposefully slowing down the department with the purpose of sabotaging the department, and [3] Defendant RIDANE telling a Worker’s Compensation investigator that Plaintiff was violating policies.” (Compl. ¶ 234.) It appears that Defendant also moves to strike portions of the IIED cause of action to the extent that claim is based on these statements.

1. Speech Categories 1 and 2: “Defendant RIDANE proclaiming that Plaintiff was violating policies and committing medical battery” and “Defendant NOYA telling technologists that Plaintiff was purposefully slowing down the department with the purpose of sabotaging the department.”

In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, the plaintiff (a media entertainment entity) alleged the defendant (a business providing authentication services to customers considering advertising on the plaintiff's website) falsely characterized the plaintiff's website as containing copyright infringement and adult content, and sued for trade libel and slander. (Id. at 141-42.) The defendant moved to strike the claims, arguing adult content and copyright infringement are public interest issues under section 425, subdivision (e)(4). (Id. at 142.)

The Supreme Court of California agreed these are matters of public interest, but also explained that to invoke section 425.16, subdivision (e)(4), “ ‘it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.’ ” (Id. at 150.) “’Contribut[ing] to the public debate’ means the defendant ‘participated in, or furthered, the [public] discourse that ma[de] [the] issue one of public interest.’” (Id. at 150-51.)

The court then focused on the “any other conduct” phrase in section 426.16, subdivision (e)(4) to conclude that the Legislature must have intended that this subdivision similarly apply only to statements that contribute to a public discussion on an issue. (Id. at 144-145.) Thus, to ensure the statute applies only to constitutionally protected expression, FilmOn.com directed courts to “engage in a relatively careful analysis of whether a particular statement falls within the ambit of ‘other conduct’ encompassed by subdivision (e)(4).” (Id. at 145.)

Accordingly, the FilmOn.com Court established a two-part inquiry to determine whether a defendant has met its burden to show its alleged wrongful activities fell within section 425.16, subdivision (e)(4)'s public interest requirement: “First, we ask what ‘public issue or [ ] issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. [Citation.] Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (FilmOn.com, supra, 7 Cal.5th at pp. 149-150.) On the second inquiry, a court must determine if the statement “contributes to—that is, ‘participat[es]’ in or furthers—some public conversation on the issue.” (Id. at 151.) This analysis requires consideration of the particular circumstances in which a statement was made, “including the identity of the speaker, the audience, and the purpose of the speech.” (Id. at 140.)

In applying this test, the FilmOn.com court held the defendant had not met its burden to demonstrate the alleged conduct contributed to the debate on a public issue as to fall under section 425.16, subdivision (e)(4). The defendant issued its reports with the alleged false information “not to the wider public—who may well be interested” in the subject matter—“but privately, to a coterie of paying clients,” who use the information for “business purposes alone.” (Id. at 153.) Because the statements “never entered the public sphere, and the parties never intended it to,” the defendant's reports were “too remotely connected to the public conversation about those issues, to merit protection.” (Id. at 140.)

In Yang v. Tenet Healthcare Inc. (2020) 48 Cal. App. 5th 939, the Court applied FilmOn.com in the healthcare context. There, a surgeon brought a defamation claim against other healthcare professionals who had allegedly made false statements about the surgeon’s qualifications and competence. (Id. at 943.) Applying FilmOn.com’s first step inquiry (“public issue”), the Court found the content of the alleged defamatory statements “implicated ... the qualifications, competence, and professional ethics of a licensed physician” and therefore concerned a public issue. (Id. at 947.) On the second (“functional relationship”) inquiry, the Court noted the plaintiff “allege[d] ... the defamatory statements were communicated to the public, not just to discrete doctors or hospital staff members.” (Id. at 948.) The court found “[t]his context ... significant, because speech to the public about a doctor's qualifications furthers the public discourse on that matter.” (Id.) The court also noted “the hospital's directive that doctors should no longer refer patients to [the plaintiff]” was “similar to a statement made by a third party to aid and protect consumers, the latter of which has consistently been held to constitute protected activity under the anti-SLAPP statute.” (Id. at 948.) Thus, in this context, the alleged defamation was protected conduct.

As would be expected, Defendants cite heavily to Yang. However, Plaintiff counters with Murray v. Tran (2020) 55 Cal.App.5th 10, a case that distinguished Yang and with facts more closely resembling the instant case. In Murray—a case decided just months after Yang—the Court of Appeal again applied 425.15 subdivision (e)(4) in the healthcare context. There, a dentist’s business partner sent defamatory emails about the dentist to the dentist’s office staff, criticizing the quality of his dental work. (Id. at 18.) The defendant also made statements about the plaintiff’s substandard work to other dentists. (Id.)

The defendant contented that his statements concerning the plaintiff’s work performance were protected speech on “an issue of public interest” under section 425.16, subdivision (e)(4). Applying the first step inquiry (“public interest”), the Court found that the dentist’s “qualifications and competence to perform his dental services…are matters about which the public, including current and future dental patients, have a vital interest.” (Id. at 30.) Turning to the second step inquiry (“functional relationship”), the Court looked to the “context of the speech, including the speaker's identity; the ‘purpose’ of the speech; the nature of the audience and the intended audience; and the ‘timing’ and ‘location’ of the communication.” (Id. at 30.) The court concluded that the alleged defamatory statements failed this latter step, explaining:

Although the emails contain statements about an issue of public interest (the quality of dental care at Bird Rock Dental), there is no showing the statements furthered or contributed to a public conversation or discussion on this issue. There was no allegation or evidence that any member of the public received these emails or that Dr. Tran intended that any other person read the emails. The emails were sent only to a limited number of persons within Dr. Tran's business entities, and Dr. Tran did not produce any evidence showing any of these individuals had any responsibility for, or authority over, Dr. Tran's work at TMDC. There was also no evidence that Dr. Tran intended or expected that any of the recipients would communicate to patients or other members of the public that Dr. Murray was an unqualified or incompetent dentist.

The court also distinguished its facts from those in Yang, noting that the statements had been “communicated to the public, not just to discrete doctors or hospital staff.” (Id. [citing Yang, supra, 48 Cal.App.5th at 948].) Additionally, unlike in Yang where the statements were made for the stated purpose of warning potential patients that they should not use the surgeon's services, the Murray defendant “presented no evidence showing he sent these emails to warn patients or other users of Dr. Murray's services, or that he intended others to do so.” (Id. at 32.)

Turning to the instant case, this court finds the record more closely resembles that of Murray and FilmOn.com, and less that of Yang. The statements at issue are Ms. Ridane’s alleged comment to medical staff that Plaintiff was practicing outside the scope of her duties by replacing an existing IV, that the act violated Kaiser policy, and that it constituted a medical battery. The second statement concerned a comment by Ms. Noya in which she is alleged to have told other medical staff that Plaintiff was intentionally slowing down operations in a manner that sabotaged the department.

Applying the first step (“public interest”) inquiry, this court agrees that the content of the statements falls within the public interest—namely, the public’s interest in the safe and effective administration of healthcare services. But turning to the second-step (“functional relationship”) is where Defendants’ argument falters. There is nothing in the record to suggest that the alleged defamatory statements participated in or furthered a public conversation. It appears the statements occurred at work, among coworkers, and were never communicated to the public at large.

Thus, the facts are readily distinguished from those in Yang, in which “defamatory statements were communicated to the public, not just to discrete doctors or hospital staff members.” (Yang at 948.) However, just like in Murray, “[t]here [is] no allegation or evidence that any member of the public” heard the communications, or that Defendants “intended that any other person” hear them. (Id. at 31.) Rather, the statements were made “only to a limited number of persons” who worked with Plaintiff. (Id.) There is also no evidence that Defendants intended or expected that their concerns would be communicated to patients or other members of the public. Indeed, Defendant Ridane attests that the conversation in which she made the alleged defamatory statement “was a private one with no one else in the vicinity.” (Ridane Decl. ¶ 7.) The facts here also more closely resemble the defamatory reports in FilmOn.com that were distributed not to the public, “but privately, to a coterie of paying clients,” who use the information for “business purposes alone.” (FilmOn.com. at 153.)

Although this court appreciates that the speech at issue could conceivably concern the public at large, “[w]hat a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern.’ ” (Murray at 32.) Thus, as in FilmOn.com and Murray, this court concludes that Defendants’ statements “were not part of a public discussion on the identified public issue.” (Id.)

Section 425.16, subdivision (e)(2) protects “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body ....” (§ 425.16, subd. (e)(2), italics added.) In determining what falls under this section, courts often look to the litigation privilege for guidance. Although the protected activity analysis under prong one and the litigation privilege under Civil Code section 47 are distinct, the litigation privilege helps “as an aid” in construing the scope of CCP 425.16, and “thus [the privilege] informs our analysis.” (Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255, 1263.)

Communications made in connection with a workers’ compensation proceeding fall under the litigation privilege. In Harris v. King (1998) 60 Cal.App.4th 1185, the plaintiff alleged a defendant doctor misrepresented his medical condition in a report prepared in connection with a workers' compensation claim. The court found all of Plaintiffs claims barred by the litigation privilege, even if the report had been “prepared and communicated maliciously and with knowledge of its falsity.”

The burden of showing a probability of prevailing on the claim rests with Plaintiff. “To establish a probability of prevailing, 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. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant; 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. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940.)

As noted above when discussing prong one, communications made in connection with a workers’ compensation proceeding fall under the litigation privilege. In Harris, supra, 60 Cal.App.4th 1185, the plaintiff alleged a defendant doctor misrepresented his medical condition in a report prepared in connection with a workers' compensation claim. The court found all of Plaintiffs claims barred by the litigation privilege, even if the report had been “prepared and communicated maliciously and with knowledge of its falsity.” Plaintiff’s opposition fails to address the statements that Defendant Ridane allegedly made to the workers compensation investigator; thus, Plaintiff apparently concedes there is no basis to support these claims. For these reasons, Plaintiff has not demonstrated the required “minimal merit”

Accordingly, Defendant’s Special Motion to Strike is GRANTED in PART and DENIED in part. To the extent that the Causes of Action for IIED and Defamation rely on allegations of statements Defendant Ridane made to a worker’s compensation investigator, those allegations are ordered stricken. (See Baral, supra, 1 Cal.5th at 381-382 [courts must consider each category of Defendants’ alleged defamatory statements as a separate “claim” subject to a motion to strike].)

“[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of a trial court.” (Mann v. Quality Old Time Serv., Inc. (2006) 139 Cal. App. 4th 328, 340.) Factors to consider include “the extent to which the defendant's litigation posture was advanced by the motion, whether the same factual allegations remain to be litigated, whether discovery and motion practice have been narrowed, and the extent to which future litigation expenses and strategy were impacted by the motion.” (Id. at 345.)

Here, Plaintiff has eliminated only one “category” of statements, and the court submits that Plaintiff achieved very little, if any, “practical benefit” in bringing the motion. Indeed, the defamation and IIED claims still remain, and have only been slightly narrowed. It is difficult to conclude that these efforts have advanced Defendant’s litigation posture, narrowed discovery or motion practice, or impacts future litigation expenses or strategy in any material way.

Judge of the Superior Court

FN 1 -- The header of the Complaint labels the IIED claim as the Ninth Cause of Action, however, the body of the Complaint has the IIED claim labeled as the Tenth cause of Action. Likewise, the Complaint’s header labels the Defamation claim as the Eleventh Cause of Action, but in the body of the Complaint, it is the Twelfth Cause of Action.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.