(Super. Ct. No. 37-2009-00099935- CU-WM-NC) APPEAL from a judgment of the Superior Court of San Diego County, Thomas P. Nugent, Judge.
The opinion of the court was delivered by: Huffman, J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
Petitioner and appellant John Young, M.D., brought these proceedings for a writ of administrative mandate to challenge the decision of the board of directors of respondent Tri-City Healthcare District (the Board or the District) to terminate his medical staff privileges at its hospital. (Code Civ. Proc., § 1094.5; all statutory references are to this Code unless noted.) Young's amended petition contains seven causes of action that challenge both the March 29, 2009 final decision of termination (the "termination decision") and an earlier, "interlocked" December 18, 2008 summary suspension (the "summary suspension"). Regarding each, Young sought judicial review of the administrative record and an order entitling him to reinstatement and costs of suit.
Young's appeal arises from the trial court's ruling, ultimately issued after three hard fought phases of reconsideration motion hearings and other procedural developments, to grant the District's special motion to strike the fifth cause of action, which specifically challenged Young's cause of action for relief from the summary suspension. (§ 425.16, the anti-SLAPP statute.) The District contended in its motion that any of its alleged misconduct arose solely from protected free speech and official activity within the meaning of the anti-SLAPP statute, i.e., the conduct of hospital peer review proceedings. (§ 425.16, subd. (e)(1), (2).) It also argued that Young had failed to exhaust his administrative remedies in connection with the summary suspension, by agreeing to mediate the disputes, but then failing to further pursue his administrative remedies on that particular subject, when mediation failed. Young replied to the District's claims by asserting it would have been futile to further pursue any such administrative remedies, so that the requirement of exhaustion of remedies is inapplicable to this fifth cause of action. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 475.) The court reached several different results during the reconsideration proceedings, giving rise to Young's appeal.
PROCEDURAL CONTEXT AND APPROACH TO ISSUES
In the order which Young appeals (the "February 2011 order"), the trial court essentially adhered to its initial grant of the District's motion to strike the fifth cause of action (granted in June 2010). However, the current result was reached after a July 2010 issuance of an order of dismissal of the "entire action," and the court's August 4, 2010 minute order subsequently attempting to correct it by restricting the dismissal to the fifth cause of action. This February 2011 order followed two reconsideration hearings. In October 2010, Young prevailed on his motion to reconsider the initial grant of the District's motion to strike, and the District filed a notice of appeal of that October order. (Young v. Tri-City Healthcare District (filed Dec. 21, 2010; abandoned Mar. 2, 2011), D059092.) In the interim (Nov. 2010), the District filed its own motion to reconsider the same subject matter, giving rise to the subject order that Young appeals, and the District subsequently abandoned its own, earlier appeal.
Our task is to examine this convoluted procedural record and determine which of these various rulings issued by the trial court has all the required jurisdictional and substantive support. Because of the parallel tracks being followed regarding this sequence of anti-SLAPP rulings (reconsideration and the District's appeal), the terms of section 916, subdivision (a) are clearly invoked, that the perfecting of an appeal generally stays proceedings in the trial court "upon the judgment or order appealed from or upon the matters embraced therein or affected thereby . . . ." (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 (Varian) ["[S]section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal−i.e., jurisdiction in its fundamental sense. [Citation.] The purpose of the automatic stay under section 916 is to preserve 'the status quo until the appeal is decided' [citation], by maintaining 'the rights of the parties in the same condition they were before the order was made' [citation.] Otherwise, the trial court could render the 'appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.' [Citation.]"].)
Exceptions to the stays under section 916 that are created by appeals have been developed for collateral matters, such as statutory new trial motions or motions for judgment notwithstanding the verdict. (Neff v. Ernst (1957) 48 Cal.2d 628, 633-634; Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal.App.3d 1204, 1210-1211 (Foggy).) The parties dispute whether this sequence of reconsideration motions is equivalent to such a "collateral" matter to the underlying ruling. It is not. We will address these issues by first identifying the legal effect of these reconsideration proceedings, as well as the trial court's signing, but recalling as erroneous, a dismissal order for the entire petition. We can then determine the effect upon the trial court proceedings of the District's separate appeal that it filed in the midst of its trial court litigation (but subsequently abandoned; Cal. Rules of Court, rule 8.244(b)(1)).
We resolve Young's appeal by concluding, initially, that the trial court had the power to correct its clerical error of apparently dismissing the entire action, when only the fifth cause of action had been brought before it in the anti-SLAPP motion proceedings, and only the fifth cause of action was the subject of that ruling. The trial court's action was proper and left the action pending, as a whole.
More importantly, we conclude that the trial court lost subject matter jurisdiction over the second reconsideration motion, and it had no authority to issue the February 2011 order, because the filing and perfecting of the District's own appeal caused the trial court to lose its authority to resolve the District's own reconsideration motion, which was still pending when its own appeal was filed. (§ 916, subd. (a).) This was not the type of collateral matter that the trial court could pursue after the appeal was filed. (Varian, supra, 35 Cal.4th at pp. 191-194.) (Pts. III-IV, post.) The practical effect of our decision is that the February 2011 order is vacated, leaving the October 2010 order denying the motion to strike in place, on the merits of the anti-SLAPP issues.
We could stop there, but in an abundance of caution, our review will next be directed toward the substance of the June and October 2010 orders. The parties each make substantive arguments about the merits of the ruling on the anti-SLAPP motion to strike the fifth cause of action. This requires us to consider whether Young's petition for writ of administrative mandate to compel a hearing on his summary suspension "arose out of" the District's protected free speech conduct in the hospital peer review context. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) In the context of a hospital staff physician's tort action for damages, the Supreme Court determined in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196-197 (Kibler) that the anti-SLAPP procedure may properly be raised in defense by a hospital district, because those defamation and other allegations of injury arose directly out of protected peer review recommendations.
Nothing in the anti-SLAPP statute wholly exempts a writ petition against a public entity from its potential coverage of protected speech. (§§ 425.16, 1085, 1094.5; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 353 (San Ramon).) However, on de novo review, we conclude the fifth cause of action does not "arise" from the District's acts in furtherance of its rights of petition or free speech in connection with peer review (a public issue), but rather, the substance of that cause of action arises from the statutory provision giving a right to judicial review of a governmental decision, and the making of such a decision does not in itself amount to an exercise of free speech. (San Ramon, supra, at p. 355; § 425.16, subd. (b)(1).) The anti-SLAPP statutory protections do not clearly apply as a matter of law. (Pt. V, post.)
We reverse the February 9, 2011 order with directions to the trial court to reinstate its October 26, 2010 orders and to allow such further proceedings as are appropriate on the amended petition as a whole.
BACKGROUND FACTS; THREE PHASES OF MOTION PROCEEDINGS
We outline the bare bones of the history of this case as necessary to address the jurisdictional and legal issues presented, regarding the interplay of section 916 imposing stays on appeal, and the reconsideration and anti-SLAPP statutory schemes.
A. Nature of Disputes; Young's Administrative Appeals
In 2006, Young, a cardiopulmonary surgeon, held privileges in his field at the District's hospital. The District's board of directors (the Board) governs the hospital. The hospital's medical staff is governed by a medical executive committee (MEC), which conducts peer review proceedings designed to ensure the quality of care provided at the hospital. Under District and hospital bylaws, a practitioner dissatisfied with actions carried out by the MEC may appeal to a judicial review committee (JRC).
In his amended petition, Young lays out the facts of certain conflicts that he had from 2006-forward, with fellow practitioners and District administrators, about the adequacy of the standard of care provided by Young and by other practitioners. Starting in November of 2006, the MEC had an ad hoc committee make an investigation into Young's treatment of patients and their relatives and his behavior. In June 2007, the MEC recommended that Young's staff privileges be permanently terminated for inappropriate care that was below standards.
Young invoked his right to challenge the termination before the JRC, and continued to carry out his practice. The JRC hearings went on from December 2007 through August 2008. The JRC issued its decision in September of 2008, adopting the MEC recommendation and terminating Young's staff privileges.
On September 19, 2008, Young appealed to the District's Board. The workplace conflicts continued, and on December 18, 2008, the hospital's chief of medical staff (Dr. Richard Burruss, assisted by MEC counsel, Arthur R. Chenen) ordered that he be summarily suspended, and the MEC confirmed the suspension December 23, 2008. On December 26, 2008, Young filed another appeal to the JRC, concerning the suspension. On January 2, 2009, the District filed a report of the suspension of privileges with the Medical Board of California, pursuant to Business and Professions Code section 805, subdivisions (b) and (e) (reporting requirements).
In January 2009, Young and the District agreed to mediate their disputes and that the Board would not take final action during mediation. They attempted to but could not agree on the format of mediation, and no resolution was reached. On April 15, 2009, the Board issued its decision affirming the JRC decision to finally terminate Young's staff privileges.
B. Petition for Writ of Administrative Mandate; Motion Proceedings, Phase I
In October 2009, Young filed his petition for writ of administrative mandate, as amended, contending the MEC, the JRC, and the Board denied him fair procedure, and the termination decision lacked substantial support in the evidence. He sought judicial review of the administrative record, and an order for reinstatement and costs. In the fifth cause of action, he sought an order determining that the December 2008 summary suspension was unjustified, based on improper review of his records, carried out by unqualified committees, and unsupported by substantial evidence, so it should be vacated.
The District filed its answer and further responded by filing its motion to strike the fifth cause of action, expressly stating that this was the only cause of action relevant to the anti-SLAPP motion procedure. The District identified the core issue before the court as whether Young had exhausted his internal administrative remedies as to the summary suspension, before the petition was filed. The District described the notification given about Young's right to appeal the summary suspension, but contended that Young did not adequately follow through to identify an arbitrator. The District agreed to stay the summary suspension pending mediation, but nothing further was done to pursue the arbitration. The District's motion did not address the merits of Young's remaining six causes of action.
Young opposed the motion in propria persona, attaching copies of numerous documents on which he was relying (records of the discipline proceedings). At the June 14, 2010 hearing, the court conditionally denied the motion, subject to Young filing further materials to support his arguments, and provided for its issuance of a further ruling. Young supplied some authentications of his documents, but in the minute order of June 23, 2010, the court stated that those additional materials had failed to adequately oppose the merits of the motion, and it was granted.
The court signed an order July 12, 2010, stating that the "entire action" was dismissed, although the court interlineated it to state that the action was dismissed "without prejudice." However, on August 4, 2010, the court sua sponte sent out a minute order that modified or corrected the underlying June 23, 2010 minute order (the one later formalized in the July 12, 2010 order), by deleting the last paragraph (which had stated the anti-SLAPP ruling disposed of the entire action and the "entire action" was dismissed).
C. Motion Proceedings, Phase II: Reconsideration Granted for Young
Meanwhile, on July 2, 2010, Young filed his reconsideration motion, explaining that he, as a pro per litigant, had not understood his prior opportunity given him by the court to provide more information, and he was now supplying an amended declaration to more fully support his claims. Among other things, his declaration stated that he was induced by the actions of the District to have the reasonable belief that he need not pursue his second appeal to the JRC regarding the summary suspension, because it would not serve any useful purpose and it would not mitigate the harmful effects of the District's reports made to the Medical Board of California and to other authorities, about his summary suspension and later, about the termination of his privileges. He contended that the burden was on the District to reactivate his second administrative appeal request, once the negotiations and mediation fell through.
In opposition filed August 27, 2010, the District argued that the entire action had already been dismissed in the July 12 order, and in any case, Young had not made any adequate showing of ...