Judge: Teresa A. Beaudet, Case: 24STCV06022, Date: 2024-06-06 Tentative Ruling

Case Number: 24STCV06022    Hearing Date: June 6, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Gregory Marx (“Plaintiff”) filed this action on March 11, 2024 against Defendant West Hills Hospital, a California corporation which does business as West Hills Hospital & Medical Center. Plaintiff’s Complaint for False Light (Defamation) alleges one cause of action for “false light.”

West Hills Hospital and Medical Center, erroneously sued as “West Hills Hospital” (“Defendant”) now moves “pursuant to Code of Civil Procedure §425.16 to strike the complaint for ‘False Light (Defamation)’ on the grounds that the claim arises out of West Hills Hospital’s exercise of the right to free speech under the State and Federal Constitutions, in a public forum, in connection with an issue of public interest, and it is not probable that plaintiff will prevail on his claim.”  Plaintiff opposes.

Evidentiary Objections

The Court rules on Defendant’s evidentiary objections to the Declaration of Gregory Marx as follows:  

Objection No. 1: overruled

Objection No. 2: overruled

Objection No. 3: sustained

Objection No. 4: overruled

The Court rules on Defendant’s evidentiary objections to the Declaration of Scott Pike as follows:

Objection No. 1: overruled

Objection No. 2: overruled

Objection No. 3: sustained

Objection No. 4: overruled

Objection No. 5: overruled 

 The Court rules on Defendant’s evidentiary objections to the Declaration of Ryan Quigley as follows:

Objection No. 1: overruled

Objection No. 2: overruled

Objection No 3: overruled

Objection No. 4: overruled

Objection No. 5: overruled

Objection No. 6: overruled

Objection No. 7: overruled

Objection No. 8: overruled

Objection No. 9: overruled

Objection No. 10: overruled

Objection No. 11: overruled

Objection No. 12: overruled

The Court rules on Defendant’s evidentiary objections to the Declaration of Jon-Jamison Hill as follows:

Objection No. 1: overruled

Discussion

A.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that he is a Firefighter and Paramedic with the Los Angeles Fire Department (“LAFD”). (Compl., ¶ 2.) Plaintiff alleges that “Mr. Marx and his partner, Scott Pike, also a Firefighter and Paramedic, responded to an emergency call involving a female patient (‘Patient’).” (Compl., ¶ 7.) “When Mr. Marx and Mr. Pike arrived at the scene, several Los Angeles Police Department (‘LAPD’) officers were already present, and they had restrained the Patient.” (Compl., ¶ 8.)

Plaintiff alleges that “Mr. Marx and Mr. Pike loaded the Patient onto their gurney and set off for the Hospital,” and “[w]hen they arrived at the Hospital, Mr. Marx and Mr. Pike took the Patient into the Hospital through the ambulance bay.” (Compl., ¶¶ 9-10.) “While the Patient was still on LAFD’s gurney and handcuffed, and despite the fact that the patient remained calm and well-managed, without Mr. Marx’s consent, the nurses proceeded to administer the syringes, which Mr. Marx assumed to be a sedative. One of the nurses had a difficult time administering the syringes. The Patient began to bleed, and when she saw the blood, she became agitated. The nurses then left Mr. Marx to deal with the agitated Patient who still was still handcuffed on LAFD’s gurney.” (Compl., ¶ 14.)

Plaintiff alleges that “[a]fter the Patient was finally transferred to a hospital bed, Mr. Marx and Mr. Pike attempted to have a conversation with the nurse who had attended to the Patient about the unprofessional communication difficulties and their concerns about the Hospital’s administration of medication to the patient while she remained restrained on an LAFD gurney, which unnecessarily created a dangerous situation.” (Compl., ¶ 16.) “During the discussion, Mr. Pike passionately expressed his frustrations about the way the Hospital handled the patient transfer, as well as other similar experiences he had with the Hospital. Mr. Pike was, at times, animated with his hands and arms while relaying his frustrations. However, the discussion ultimately ended relatively amicably, with Mr. Marx, Mr. Pike and the nurse walking away after a round of ‘fist bumps.’” (Compl., ¶ 17.)

Plaintiff alleges that “[u]nbeknownst to Mr. Marx, Hospital personnel called the EMS Captain who had oversight for Mr. Marx and Mr. Pike on that shift. Mr. Marx is informed and believes and, on that basis, alleges, that the call directly led to an investigation over Mr. Marx’s and Mr. Pike’s conduct.” (Compl., ¶ 18.) “Separately, Does 1 through 25, who were, at the time relevant to this action, Hospital staff, created video clips from the security footage of the exchange and discussion between Mr. Marx, Mr. Pike and the nurse. Does 1 through 25 then showed the video footage to people outside the Hospital, including several firefighters, some of whom were in Mr. Marx’s station.” (Compl., ¶ 19.) “One video clip is approximately 10 seconds in length, and it depicts only a small portion of the exchange between Mr. Marx, Mr. Pike and the nurse (the ‘Misleading Video Clip’). The Misleading Video Clip is in black and white, and it has no sound. It appeared to be copied from – either directly or via cellphone video – the Hospital’s security footage.” (Compl., ¶ 20.)

Plaintiff alleges that “[t]he Misleading Video Clip only shows Mr. Marx and Mr. Pike approaching the nurse, with Mr. Pike animatedly shaking his finger, apparently having words with the nurse while animatedly gesturing with his arms, and then Mr. Marx and Mr. Pike backing away from the nurse.” (Compl., ¶ 21.) Plaintiff alleges that “the Hospital’s personnel, specifically Does 1 through 25, publicly released the Misleading Video Clip in a transparent effort to control the narrative surrounding the incident and to make it appear that Mr. Marx and Mr. Pike had done something wrong.” (Compl., ¶ 22.)

Plaintiff alleges that “[t]he public release of the Short Video Clip by Hospital personnel has had a profound impact on Mr. Marx and his career, including significant reputational damage. It, at least in part, led to a months-long internal department investigation and, even when he is cleared of any wrongdoing, Mr. Marx will have a permanent blemish on his record.” (Compl., ¶ 23.) Plaintiff further alleges that “negative publicity from the Misleading Video Clip will impact other business ventures Mr. Marx has been exploring outside his job as a firefighter/paramedic with the LAFD.” (Compl., ¶ 24.)

B.    Legal Standard

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

C.    Prong One – Arising from Protected Activity

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

“(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, subd. (e).)

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted].)

In the motion, Defendant argues that the Complaint “falls squarely within the scope of C.C.P. §425.16, subds. (e)(4) ‘public issue’ requirement because by releasing the video clip of Mr. Marx at West Hills Hospital ER defendant was ‘further[ing] the public discourse on’ the issue of professional conduct and ethical behavior for California licensed or certified paramedics.” (Mot. at p. 10:6-9.) Defendant cites to Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939, 943, where the Court of Appeal noted that “[a] licensed physician sued other medical entities and individuals for defamation based on statements made about her qualifications, competence, and medical ethics. In this anti-SLAPP appeal, we apply our Supreme Court’s recent opinion in FilmOn.com Inc. v. DoubleVerify, Inc. (2019) 7 Cal.5th 133 [246 Cal. Rptr. 3d 591, 439 P.3d 1156] (FilmOn), and conclude that the defendants’ conduct arose from protected activity because their allegedly defamatory statements were made in connection with an issue of public interest.”

The Yang Court noted that “Section 425.16, subdivision (e)(4) (subdivision (e)(4)) protects ‘any other conduct in furtherance of the exercise of … the constitutional right of free speech in connection with a public issue or an issue of public interest.’ In FilmOn, our Supreme Court held that under this provision, ‘a court must consider the context as well as the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest.’…Specifically, the inquiry calls for its own two-step analysis: ‘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…Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.’ We refer to these as the ‘public issue’ and ‘functional relationship’ steps.” (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at pp. 946-947.) The Yang Court found as follows:

“In this case, the content of the speech, as indicated by both the allegations in the complaint and the affidavits submitted in opposition to the motion, show that the public issue implicated is the qualifications, competence, and professional ethics of a licensed physician. As Yang alleges, defendants told others that she was not ‘qualified or competent,’ that she ‘rendered care below applicable standards of practice,’ that her ‘ethics’ were ‘below acceptable standards,’ and that she was ‘dangerous’ to her patients and others. These clearly implicate Yang’s qualifications, competence, and professional ethics. Olmos’s statement that hospital administrators told her Yang was ‘performing surgeries she was not privileged to perform,’ ‘was potentially incompetent’ to perform certain surgeries, and ‘intentionally trying to deceive the insurance providers and the hospital,’ among other actions, similarly raise these characteristics. Whether or not a licensed physician is deficient in such characteristics is, we hold, a public issue.” (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at p. 947.)

In addition, the Yang Court found that “Yang’s allegations that defendants informed her ‘patients’ and the ‘general public’ that she was generally unqualified, as well as Olmos’s statement that the hospital had directed several doctors to ‘no longer refer patients’ to Yang ‘due to the fact she was suspended and under investigation for fraud’ demonstrates that defendants directly participated in and contributed to the public issue. This is so for two reasons. For one, as Yang alleges, the defamatory statements were communicated to the public, not just to discrete doctors or hospital staff members. This context is significant, because speech to the public about a doctor’s qualifications furthers the public discourse on that matter.” (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at p. 948.) Defendant argues that here, “[b]y allegedly releasing the video clip showing Mr. Marx, Mr. Pike and the nurse’s interactions it ‘further[ed] the public discourse’ on the issue of professional ethical behavior of California licensed or certified paramedic because the video clip was ‘communicated to the public, not just to discrete doctors or hospital staff.’” (Mot. at p. 11:8-11, citing Yang.)

In the opposition, Plaintiff asserts that Defendant “has failed to meet its burden to prove the acts depicted in the Misleading Video Clip are a ‘public issue,’…” (Opp’n at p. 11:10-11.) Plaintiff asserts that “[u]nlike the statements in Yang where the doctor’s skill as a surgeon and her status as a licensed practitioner eligible to perform surgeries were the issues in question, which would be concerns for potential patients and the general public, there are no such facts present in this case. The Misleading Video Clip at issue in this case is approximately 10 seconds of footage, without audio, which appear to show an altercation between two paramedics and a nurse…It does not purport to depict the delivery of medical services or patient care. It does not bring into question the participants’ professional skill. Simply put, [Defendant] cannot rely on the mere generalities that the Misleading Video Clip involves licensed professionals and their ‘ethics’ to transmute the video’s contents into a ‘public issue.” (Opp’n at pp. 10:23-11:4.) Defendant does not appear to address this point in the reply.

Indeed, Defendant does not appear to demonstrate how the alleged “Misleading Video Clip” shows that Plaintiff was allegedly “not ‘qualified or competent,’ that [he] ‘rendered care below applicable standards of practice,’ that [his] ‘ethics’ were ‘below acceptable standards,’ [or] that [he] was ‘dangerous’ to…patients and others,” as was alleged in Yang. (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at p. 947.) Rather, Plaintiff alleges that “[t]he Misleading Video Clip only shows Mr. Marx and Mr. Pike approaching the nurse, with Mr. Pike animatedly shaking his finger, apparently having words with the nurse while animatedly gesturing with his arms, and then Mr. Marx and Mr. Pike backing away from the nurse.” (Compl., ¶ 21.)

Plaintiff also asserts that Defendant “does not identify who disseminated the Video Clip, hindering its ability to prove it was released to stimulate ‘public conversation.’” (Opp’n at p. 13:1-3.) As set forth above, the Yang Court noted that “[f]irst, 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…Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at p. 947.) The Yang Court further noted that “[r]egarding functional relationship, FilmOn stated that subdivision (e)(4) ‘demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.’…As the court stated, ‘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.’…‘What it means to ‘contribute to the public debate’…will perhaps differ based on the state of public discourse at a given time, and the topic of contention’ but ultimately ‘we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.’” (Id. at p. 948.)

Here, Plaintiff asserts that “[t]he Hospital does not identify who disseminated the Misleading Video Clip. In fact, the Hospital argues that its staff did not circulate the clip, because there was no official release of any security footage.” (Opp’n at p. 13:4-6.) Indeed, in the motion, Defendant argues that “[t]he evidence regarding the May 7, 2023 incident shows that West Hills Hospital staff had given ‘no copy of any security video . . . to anyone’. Because no security video had been downloaded by West Hills Hospital staff, it is not possible for a 10 second video clip to have been manipulated or to have been released by West Hills Hospital to anyone.” (Mot. at p. 12:4-7.) Defendant submits the Declaration of Alex Bryer, the Director of the Information Technology Department of West Hills Hospital and Medical Center, who states, inter alia, that “[n]either the security video itself or a 10 second clip of the security video had been released to any individual or entity by West Hills Hospital.” (Bryer Decl., ¶ 5.) But as discussed, the Yang Court noted that courts “examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Yang v. Tenet Healthcare Inc., supra, 48 Cal.App.5th at p. 948.) In light of the foregoing, Defendant appears to assert that it did not “[p]articipate[] in, or further[], the discourse that makes an issue one of public interest” with respect to the alleged “Misleading Video Clip.” (Ibid.) As discussed above, “[i]n deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89, citing Code Civ. Proc., § 425.16, subd. (b).) 

Based on the foregoing, the Court does not find that Defendant has satisfied its burden under the first prong of the anti-SLAPP analysis. Accordingly, the burden does not shift to Plaintiff to establish that there is a probability of prevailing on his sole cause of action.   

D.    Attorney’s Fees

Pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), “[e]xcept as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” 

In light of the foregoing, Defendant is not the prevailing party on the instant motion. Thus, the Court denies Defendant’s request for attorney fees.

In the opposition, Plaintiff asserts that he “should be awarded his attorneys’ fees for opposing [the] motion, because the motion is frivolous and intended to delay the action.” (Opp’n at p. 18:10-11.) The Court notes that “[t]he anti-SLAPP statute allows a trial court to award attorney fees against a party who, in its discretion, files a frivolous motion to dismiss…A determination of frivolousness requires a finding the motion is ‘totally and completely without merit’ (§ 128.5, subd. (b)(2)), that is, ‘any reasonable attorney would agree such motion is totally devoid of merit.’…” (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1387-1388.) The Court does not find that Plaintiff has demonstrated that the instant motion is totally devoid of merit.

Plaintiff also asserts that Defendant “plainly delayed in bringing its motion, and the motion itself caused additional, unnecessary delay.” (Opp’n at p. 19:1-2.) Plaintiff asserts that Defendant “waited until the 61st day after service to file its motion…That is outside the usual time for filing an anti-SLAPP motion.” (Opp’n at p. 19:3-5.) Pursuant to Code of Civil Procedure section 425.16, subdivision (f), “[t]he special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”

(Emphasis added.) In his supporting declaration, Plaintiff’s counsel states that “[o]n March 11, 2024, my office filed the Complaint on behalf of Mr. Marx. The Complaint was served on Defendant West Hills Hospital (‘Hospital’) on March 13, 2024…No responsive pleading was filed by the Hospital until May 13, 2024, when the Hospital filed its Motion to Strike.” (Hill Decl., ¶¶ 2-3.) The Court notes that 60 days after March 13, 2024 is May 12, 2024.

However, the Court does not find that Plaintiff has shown that Defendant’s one-day delay in filing the instant motion was “solely intended to cause unnecessary delay…” (Code Civ. Proc., § 425.16, subd. (c)(1).) In his declaration in support of the motion, Defendant’s counsel states that “[d]espite my due diligence and due to the sale of defendant West Hills Hospital and Medical Center to UCLA Health at the end of March 2024, which complicated my investigation, I learned on Friday, May 10, 2024, fifty-eight days after service of the complaint, that Heather Stone, the former Director of the Information Technology Department of West Hills Hospital and Medical Center at the time of the incident would not sign a declaration supporting the anti-slapp motion. I immediately contacted the current head of security at West Hills Hospital and Medical Center, Alex Bryer, and asked him to perform a review of the security records and to sign a declaration about that review. The review was completed and the declaration was signed on Monday, May 13, 2024. The anti-slapp motion was filed on May 13, 2024, sixty-one days after service of the complaint.” (Clark Decl., ¶ 5.)

Based on the foregoing, Plaintiff’s request for attorney’s fees under Code of Civil Procedure section 425.16, subdivision (c)(1) is denied.  

Conclusion

Based on the foregoing, Defendant’s motion to strike is denied. The parties’ requests for attorney’s fees are denied.

Plaintiff is ordered to provide notice of this Order. 

DATED:  June 6, 2024                                   ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court