Decambre v. Rady Children's Hospital: Court Affirms in Part and Reverses in Part Order Granting Anti-SLAPP Motion in Doctor's Action for Discrimination, Harassment, Retaliation, and Defamation

Over the last month, we have seen two cases dealing with anti-SLAPP motions in the employment law context. In Park v. Board of Trustees (8/27/15) --- Cal.App.4th --- (discussed here), a discrimination action, the Court held that a University's decision to deny tenure arose from protected communicative activity. The Court then remanded to the trial court for a determination of the plaintiff's likelihood of success on the merits. In Barker v. Fox & Associates (9/10/15) --- Cal.App.4th --- (discussed here), a defamation action, the court reversed an order denying the defendant's anti-SLAPP motion, finding that the plaintiff had waived his argument that the alleged statements were not privileged, and that the plaintiff had failed to show a reasonable probability of success on the merits.

Decambre v. Rady Children's Hospital (3/11/15, mod. 4/2/15) --- Cal.App.4th ---, is a third such case, which I missed when it came down earlier this year. The plaintiff was a doctor who sued several defendants, including the hospital where she worked, alleging discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress (IIED), and other causes of action. The trial court granted the defendants' anti-SLAPP motion to strike, finding that the defendants' decision not to renew the plaintiff's contract arose from the hospital's peer review process, which was protected as an official proceeding. The Court of Appeal affirmed in part and reversed in part, holding as follows:

Under the anti-SLAPP statute, Code of Civil Procedure section 425.16, and Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, hospital peer review proceedings constitute protected "official proceeding[s] authorized by law," and the defendants' decision not to renew the plaintiff's contract was the result of that process. The Court rejected the plaintiff's contention that there was no peer review because the defendants did not report their non-renewal to the Medical Board of California. The behavior that led to the decision not to renew did not involve a "medical disciplinary cause or reason," and no such report was required.

The defendants failed to meet their burden to show that the plaintiff's harassment, IIED, and defamation claims arose from protected activity. "The 'principal thrust or gravamen' of the plaintiff's claim determines whether section 425.16 applies," and the court must examine the alleged wrongful conduct, rather than the alleged damages, to determine that issue. Here, the trial court erred in looking to the plaintiff's alleged damages, rather than the defendants' conduct. Some of the conduct underlying the harassment and IIED claims occurred before the peer review process even began, and none of that conduct "occurred within the context of, or in furtherance of, the peer review proceedings." Similarly, the conduct underlying her defamation claim arose after the non-renewal decision and was not part of the peer review proceedings.

In contrast, the defendants did show that the plaintiff's discrimination, failure to prevent discrimination, retaliation, and wrongful termination claims all arose from the peer review process. The wrongful termination claim cannot succeed absent a termination -- the Court did not distinguish between a termination and a non-renewal -- and the FEHA claims cannot succeed absent an adverse employment action. The only adverse employment action alleged here was the non-renewal decision. The defendants' motive, even if discriminatory, did not change the fact that the alleged conduct arose from protected activity.

The defendant having shown that the conduct at issue arose from protected activity, the burden shifted to the plaintiff to show probable success on the merits. The plaintiff failed show that defendants' asserted reasons for the non-renewal were pretextual. She did not refute the defendants' reasons for non-renewal. Instead, she asserted that she "could establish sufficient facts" to prove her claims, and this was not sufficient to meet her burden. 

The plaintiff also asserted claims for violation of the Unfair Competition Law and the Cartwright Act, but I will not address those claims here. I also will not address the Court's holding on the trial court's order sustaining the defendants' demurrer to certain causes of action.

The opinion is available here. 

Barker v. Fox & Associates: In Defamation Action, Court Reverses Order Denying Defendants' Anti-SLAPP Motion, Holding that Plaintiff Failed to Show Reasonable Probability of Success on the Merits

In Barker v. Fox & Associates (9/10/15) --- Cal.App.4th ---, the plaintiff worked as a caregiver for an elderly woman, first as a volunteer, and then as a paid employee. His employer stated in an email to a number of people that he had failed to follow instructions and placed him on probation. The plaintiff quit and filed suit for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. The defendants filed an anti-SLAPP motion (Cal. Code Civ. Proc. section 425.16), which the trial court denied. The defendants appealed, and the Court of Appeal reversed, holding as follows:

To prevail on an anti-SLAPP motion, the moving party first must show that the cause of action arises from protected activity, i.e., "an act in furtherance of the right of free speech or petition." If the moving party makes this prima facie showing, the opposing party must show that it has a reasonable probability of success on the merits.

The defendants argued on appeal that the communications at issue were protected, and the plaintiff did not contest the point. The Court considered the matter resolved in favor of the defendants.

Turning its attention to the second prong of the test, the Court held that the plaintiff failed to show a reasonable probability of success on the merits. The allegedly defamatory statements did not constitute libel or slander per se. They were not defamatory on their face -- without the necessity of explanatory matter -- because they did not "suggest a lack of honesty, incompetence, or any reprehensible trait" on the plaintiff's part.

Because the alleged statements were not defamatory on their face, the plaintiff would have to prove actual damages in order to prevail. He failed to do so.

In addition, the allegedly defamatory statements were subject to the "common interest" privilege. The privilege extends to statements made:

without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. 

The plaintiff failed to show malice in that he failed to show that the statements were motivated by hatred or ill will toward him or that the defendant lacked grounds to believe that the statements were true.

The plaintiff's intentional infliction of emotional distress claim failed because he failed to show that the conduct at issue was "so extreme as to exceed all bounds of that usually tolerated in a civilized community" or "beyond mere insults, indignities, threats, hurt feelings or bad manners that a reasonable person is expected to endure." Further, the plaintiff failed to show that the conduct was "intended to inflict injury or engaged in with the realization that injury will result" or that he suffered severe emotional distress.

The plaintiff's negligent infliction of emotional distress claim failed because negligent infliction of emotional distress does not exist separate from the tort of negligence.

The opinion is available here.