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DeCambre v. Rady Children's Hospital-San Diego

California Court of Appeals, Fourth District, First Division

March 11, 2015

MARVALYN DECAMBRE, Plaintiff and Appellant,
RADY CHILDREN'S HOSPITAL-SAN DIEGO et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court No. 37-2012-00097681- CU-WT-CTL of San Diego County, Joel Pressman, Judge.

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Donald Aquinas Lancaster, Jr., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Marilyn R. Moriarty, Lann G. McIntyre and Jeffry A. Miller for Defendant and Respondent Rady Children's Hospital-San Diego.

Paul, Plevin, Sullivan & Connaughton, E. Joseph Connaughton, Sandra L. McDonough and Corrie J. Klekowski for Defendant and Respondent Children's Specialists of San Diego.

Andrews · Lagasse · Branch & Bell, Margaret C. Bell and Lisa Marie Magorien for Defendant and Respondent the Regents of the University of California.





Marvalyn DeCambre, M.D., appeals a judgment entered after the trial court granted special motions to strike pursuant to Code of Civil Procedure section

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425.16[1] brought bye defendants Rady Children's Hospital-San Diego (RCHSD), Children's Specialist San Diego (CSSD) and the Regents of the University of California (Regents) (collectively, defendants), and also sustained defendants' demurrers to certain causes of action in DeCambre's complaint. DeCambre, a physician specializing in pediatric urology, filed an action against RCHSD, CSSD and the Regents alleging retaliation, harassment, racial discrimination, failure to prevent discrimination and wrongful termination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). DeCambre also brought claims against all defendants for intentional infliction of emotional distress (IIED), defamation, and violations of the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.). The theme of DeCambre's complaint is that throughout her tenure at RCHSD, defendants discriminated against her because of her race and gender.

Each defendant filed a special motion to strike DeCambre's complaint. The trial court granted the motions in full on the ground that all of DeCambre's causes of action arose from RCHSD's decision not to renew its contract for DeCambre's services, which was the culmination of a peer review process that is protected as an official proceeding authorized by law under section 425.16, subdivision (e). The court also sustained defendants' demurrers to DeCambre's claims for IIED, defamation, unfair competition and violation of the Cartwright Act and denied DeCambre's request for leave to amend.

On appeal, DeCambre contends that the trial court erred in granting the special motions to strike because defendants' peer review process was not entitled to protection under the anti-SLAPP statute and even if it was, her claims did not arise from that process. DeCambre also challenges the resulting attorney fee awards and the trial court's order sustaining defendants' demurrers. We conclude that the trial court erred in granting defendants' anti-SLAPP motions as to DeCambre's claims for harassment and IIED. These claims do not arise from protected activity under section 425.16 and we reject defendants' attempt to cloak them in the protections afforded to peer review proceedings under the anti-SLAPP statute. Because we reverse this portion of the anti-SLAPP ruling, we also reverse and remand the attorney fee awards. In addition, we remand with directions that the court determine whether DeCambre should be afforded leave to amend her claim for defamation.

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A. Factual background[2]

DeCambre was hired by CSSD in 2006 to provide pediatric urology services to RCHSD.[3] At the time, George W. Kaplan, M.D., headed the hospital's pediatric urology department. According to DeCambre, after she was hired, RCHSD's pediatric urology department became the highest ranked in the state. DeCambre is an African-American woman. During her tenure at RCHSD, she was the only female minority physician in its department of surgery.

DeCambre alleges that defendants discriminated against her from the outset of her employment. DeCambre asserts that she was initially promised a housing allowance of $100, 000, but when she arrived in San Diego, she was provided only $75, 000 and "only after several months of extended negotiation and hardship." DeCambre also contends that she was promised an office but was not provided one, and instead had to share an office with a physician who was continuing training in a fellowship program. She maintains that she was also denied appropriate support staff and was treated as "ancillary" to Kaplan. When DeCambre complained to another physician about the staff's treatment of her, she was advised not to complain. When another male pediatric urologist joined the department in mid-2007, DeCambre claims that he was immediately provided the accommodations that DeCambre had requested, but had been denied.

According to DeCambre, in late 2008 or early 2009, she asked Kaplan, RCHSD Director of Surgical Services Donald Kearns, M.D., and CSSD Executive Director Herbert Kimmons, M.D., to provide her with a mentor. She alleges that they denied her request, but provided mentors to other male, nonminority doctors. DeCambre similarly alleges that in 2010, the support staff responsible for implementing a new electronic medical records system

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denied her requests for information, while providing the same type of information to Kaplan. DeCambre's complaint also contains allegations of specific statements made by various hospital employees over the course of her tenure that she asserts were racially and/or sexually discriminatory.

According to DeCambre, she complained about the disparate treatment to the hospital's ombudsman in February 2011 and reported one incident of racially discriminatory language to the hospital's Vice Chief of Staff Gail Knight, M.D. In May 2011, DeCambre requested a meeting with Kimmons and Knight because she felt that the then pediatric urology department head, Nicholas Holmes, M.D., was trying to force her out of her position. DeCambre alleges that Kimmons and Knight told her to ignore racial and sexual discrimination. DeCambre claims that she met with personnel from the Regents' Office for the Prevention of Harassment and Discrimination on May 20, 2011, to complain about her circumstances. On that occasion, she was given a letter from the Regents notifying her that she would not be reappointed beyond June 30, 2011, effectively terminating her employment, because CSSD would no longer compensate the Regents for her medical services. DeCambre also alleges that after her termination, defendants made defamatory statements about her to prospective employers.

Defendants tell a vastly different story about DeCambre's employment. They assert that DeCambre's termination was solely a result of her own inappropriate conduct. Defendants allege that throughout her employment at RCHSD, both coworkers and patients complained about DeCambre's disrespectful and insensitive behavior, and that defendants' administrators worked tirelessly to support DeCambre and help her to improve her ability to interact appropriately with staff and patients.

According to CSSD, in 2007, after nurses had complained that DeCambre's behavior was demeaning to them, CSSD hired a consultant to provide support to DeCambre. However, after her first meeting with the consultant, DeCambre refused to meet with him again. After this episode, defendants continued to receive complaints from both hospital staff and patients about DeCambre's rude behavior. In January 2009, a nurse complained to hospital administrators that DeCambre had retaliated against her after she filed a complaint in November 2008 regarding DeCambre's angry and intimidating behavior. As a result, RCHSD conducted an investigation that concluded with a letter in February 2009 from the hospital chief of staff to DeCambre advising her that the investigation had raised concerns about her behavior.

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The letter also stated that DeCambre would be required to attend the next meeting of the hospital's well-being committee for assessment.[4]

RCHSD notified CSSD of the retaliation complaint and subsequent investigation. CSSD retained an outside consultant, National Business Investigations (NBI), to conduct its own investigation. That investigation was conducted from March to May 2009 and resulted in an 86-page report that found that the nurse's claims of retaliation by DeCambre were unfounded, but further found that DeCambre had "engaged in behaviors that have negatively interfered with the work environment and the organization's operations." NBI's report also stated that despite having been provided opportunities to improve her interactions with patients and staff, DeCambre had not shown sufficient or sustained improvement. NBI also addressed concerns that DeCambre had raised in her interview with NBI's investigator concerning retaliatory treatment and discrimination based on her race and gender. NBI concluded that DeCambre's allegations could not be substantiated.

As a result of NBI's investigation, on June 1, 2009, CSSD sent DeCambre a "Final Warning" letter informing her that she would be required to complete an off-site intensive behavioral counseling program. The letter also advised DeCambre that her failure to treat all people with whom she interacts on behalf of CSSD with respect and dignity was a violation of the hospital's policies, and that any future failure to comply with the policy would result in her immediate termination. According to RCHSD's Chief Medical Officer Irvin A. Kaufman, M.D., the medical staff's well-being committee required DeCambre to enter into a Behavior Monitoring Agreement, and DeCambre was provided with "informal corrective activities with mentoring and counseling from 2009 through her termination" in 2011.[5] After the final warning letter was issued, defendants allege that they continued to receive complaints and grievances from both patients' families and staff about DeCambre. According to Holmes and Kaufman, in the last two years of her employment, DeCambre received five times as many complaints as the next most complained about physician.

Because of these continuing complaints and DeCambre's apparent inability or unwillingness to change her behavior, on May 12, 2011, RCHSD notified CSSD that it was exercising its contractual right to reject the services of DeCambre. In his declaration in support of RCHSD's special motion to strike, Kaufman states that "[t]he decision by [RCHSD] to exercise its right to reject Dr. DeCambre as a Medical Group Physician was based upon all of

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this information that was addressed by the peer review process of [RCHSD's] [m]edical [s]taff." After DeCambre was notified that the Regents would not renew her appointment, DeCambre complained to the Regents that she felt that she had been subjected to a racially and sexually discriminatory working environment. This prompted the Regents to conduct their own internal ...

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