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Nam v. Regents of University of California

California Court of Appeals, Third District, Sacramento

July 29, 2016

UN HUI NAM, Plaintiff and Respondent,

         APPEAL from a judgment (order) of the Superior Court of Sacramento County No. 34201300138396CUWTGDS, Raymond M. Cadei, Judge.

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[Copyrighted Material Omitted]

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         Gordon & Rees, George A. Acero; Sedgwick, Robert D. Eassa and Delia A. Isvoranu for Defendant and Appellant.

         Bohm Law Group, Lawrance A. Bohm and Maria E. Minney for Plaintiff and Respondent.


         RAYE, P. J.

         The California anti-SLAPP statute was intended to counter the “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) It has been suggested that “[t]he cure has become the disease-SLAPP motions are now just the latest form of abusive litigation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 96 [124 Cal.Rptr.2d 530, 52 P.3d 703] (dis. opn. of Brown, J.) (Navellier).) And the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if we were to accept the Regents of the University of California’s (University) misguided reading of the anti-SLAPP law and reverse the trial court’s denial of its motion to strike. We agree with plaintiff Un Hui Nam that defendant did not sustain its burden to demonstrate that the gravamen of her claims for sexual harassment and retaliation arose from defendant’s protected First Amendment activity. The trial court’s order therefore is affirmed.


         The facts as alleged in the complaint and in plaintiff’s declaration in opposition to the motion to strike are not at all clear. By all accounts,

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plaintiff, a new resident in the anesthesiology department at UC Davis Medical Center, got off to a rocky start in July of 2009. Ultimately, a judge or jury will have to determine if her missteps were trivial and if defendant, a teaching institution, responded appropriately. Suffice it to say, there appear to have been some tension and misunderstandings right from the beginning of her residency. What occurred thereafter and why is the subject of the underlying lawsuit.

         In hindsight, plaintiff traces what she labels “retaliation” to an e-mail she drafted on September 1, 2009. One week earlier she had received an excellent evaluation of her performance. One evaluator included such favorable remarks as: “Impressed with the way Dr. Nam worked at level of training”; “She was well organized - showed good skills. Interacted effectively with others”; “She was instructive to medical student”; and “Anesthetic record neat thorough and complete.” Her strengths included “attentive to patient needs” and “receptive to feedback.”

         In her e-mail of September 1 she asked for clarification whether residents were allowed to intubate patients. She expressed her disagreement with any policy that would compel the residents in an emergency to wait for the on-call team rather than independently intubating a patient. She wrote passionately: “I certainly do appreciate the concept of resident supervision and attending liability, but I remain completely flabbergasted that this rumoured restriction of anesthesia residents rotating through the service not being able to intubate in the MICU may be erroneously passed on by previous and upper level anesthesia colleagues without it being an actual policy or least [sic], without explanation. It would seem irrational that we, with our specialized training in establishing and maintaining the airway, would be prohibited from using our critical skills in high acuity, life-threatening situations but instead have to contact and then wait for our esteemed anesthesia colleagues on call while we helplessly watch our patients decompensate. In the meantime, we can only busy ourselves doing other things which in my mind are in direct contradiction of the universal policy of the ABCs--Airway, Breathing, and everything else. If our current understanding of the policy is true, without understanding why it is implemented, it would seem to directly contribute to the morbidity and mortality of our patients. Time is, brain, heart, liver, kidneys and I’m fairly confident that our patients and their loved ones would appreciate that the life-saving skills of their resident physicians, even if they were attained in a previous life, i.e. residency training, were optimized rather than thwarted just because of what rotation we’re on.”

         Plaintiff copied all of the residents. Some of these residents thereafter informed her that she should expect retaliation for sending it.

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Defendant, however, insists the e-mail excited no such reaction. Rather, plaintiff’s problems were of her own making and not her supervisors’ efforts to retaliate. Before the e-mail was sent, an operating room service director had complained that plaintiff was resistant to performing an assignment, wore improper attire, ate and flossed on the job, and frequently disappeared from the intensive care unit. Thus, defendant’s version consists of a series of complaints, warnings, investigations, and leaves of absence necessitated by plaintiff’s shortcomings over a three-year period and culminating in her ultimate dismissal. Because our resolution of this appeal rests on the first prong of the requisite anti-SLAPP analysis, we need not recite the minutiae of all that occurred during those three years. We will, however, provide a few pertinent highlights.

         On September 22, 2009, Dr. Brian Pitts, the residency program director, sent plaintiff a “Letter of Expectation.” In this letter, he detailed “a pattern of unprofessional behavior that requires immediate corrective action.” Plaintiff’s mentor responded critically to the letter. On October 2 he acknowledged that plaintiff had made a few minor mistakes due to her inexperience, but he expressed his concern that the manner in which they were being handled could seriously damage the residency program. He wrote, “We must ensure absolutely that Dr. Nam is not being singled out nor that she has been or will be the victim of bullying, harassment or retaliation.

         “It is imperative that a professional environment is maintained at all times to avoid compromise in patient safety. Dr. Nam must be able to work and learn in an atmosphere that is free of fear and unprofessional behavior of all involved.”

         By December of 2009 Dr. Pitts had been replaced by Dr. Amrik Singh. Although hopeful that the change of director would allow her the opportunity for a new start, those hopes were dashed at a holiday party in December. In her declaration in opposition to the motion to strike, she asserts that Dr. Singh stopped her on the way to the restroom, told her how beautiful she was while staring at her chest, and signaled that she should follow him into the men’s restroom. She was intimidated but ignored his advances. She believes the rebuff triggered further retaliation.

         Five months later, Dr. Singh wrote plaintiff a “Letter of Warning.” As in the Letter of Expectation, Dr. Singh chronicled examples of plaintiff’s unprofessional conduct, including tardiness, an inability to get along with her coresidents, and irresponsibility in handling controlled substances.

         In June 2010 the residency competency committee would not give plaintiff a passing grade for her past six months of clinical training because, in

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addition to the Letter of Expectation and Letter of Warning, she did not score within the requisite 40th percentile on a standardized test. Because other residents who failed the test suffered no adverse consequences and were allowed to pass their clinical training, she believes she was ...

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