Filed 9/17/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DIGNITY HEALTH,

Plaintiff, Cross-defendant and 

Respondent,

v.

TROY I. MOUNTS et al.,

Defendants, Crosscomplainants and Appellants.

2d Civ. No. B325563

(Consl. w/B330787)

(Super. Ct. No. 17CV-0592)

(San Luis Obispo County)

Respondent Dignity Health dba French Hospital 

Medical Center (“Dignity”) filed its complaint against Troy I. 

Mounts, M.D. and Troy I. Mounts, M.D., Inc., (collectively

“appellant”) an orthopedic surgeon, to recover an advance paid to 

appellant under their Physician Recruitment Agreement. 

Appellant filed a cross-complaint alleging Dignity retaliated 

against him for complaining about the quality of patient care,

interfered with his prospective economic opportunities and 
2

engaged in unlawful business practices. Dignity filed an antiSLAPP motion to strike the cross-complaint. (Code Civ. Proc., 

§ 425.16.) The trial court denied that motion. In an unpublished 

opinion, we reversed the trial court’s order. We remanded the 

matter for the trial court to determine whether appellant had

demonstrated a probability of prevailing on the merits of his 

claim. (Id., subd. (b)(1); Dignity Health v. Appellant (Feb. 23, 

2022, B289209).) 

The trial court concluded appellant had not 

demonstrated a probability of prevailing because Dignity’s

actions were subject to the litigation privilege (Civ. Code, § 47, 

subdivision (b)),

1 the common interest privilege (id., subd. (c)), 

and barred by the statute of limitations. It therefore granted the

motion to strike appellant’s cross-complaint and ordered him to 

pay Dignity’s attorney fees and costs. Appellant contends the 

trial court erred. We affirm.

Facts

Dignity hired appellant, an orthopedic surgeon, to 

work in a spine surgery practice at the San Luis Obispo French 

Hospital Center. Dignity contends that concerns regarding 

appellant’s clinical competence arose almost immediately. At the 

same time, appellant complained that he was not getting staff 

support or adequate time in the operating room to perform 

complex surgeries. Dignity put appellant’s complex surgeries “on 

hold” and required him to complete a previously scheduled 

surgery with a second surgeon he had not worked with before. 

Disputes regarding appellant’s practice continued. In 

December 2015, Dignity’s Chief of the Medical Staff, Chief of 

1 All statutory references are to the Civil Code unless 

otherwise stated.
3

Anesthesiology, Vice President of Medical Affairs and the Chair 

of the Surgery Department requested that appellant refrain from 

operating until they completed a Focused Professional 

Practitioner Evaluation (FPPE) review. Appellant agreed to this 

restriction. Two days later, Dignity’s Medical Executive 

Committee (“MEC”) sent appellant a letter notifying him that 

Dignity would be required to submit a report to the Medical 

Board of California under Business & Professions Code section 

805 (“805 Report”) if the voluntary restriction of privileges lasted 

longer than 30 days. When appellant attempted to rescind his 

voluntary restriction of privileges, the Chief of Staff responded 

that he could do so, but Dignity could respond by summarily 

suspending his privileges. A suspension that lasted longer than 

14 days would also require an 805 Report. 

By the time appellant’s attorney notified Dignity that 

he wanted to lift his voluntary restriction, it had already lasted 

30 days. Dignity filed an 805 Report with the Medical Board and 

a report with the National Practitioner Data Bank (NPDB). The 

NPDB report stated that the “basis for action” was “IMMEDIATE 

THREAT TO THE HEALTH OR SAFETY.”2 (Capitalization 

added.)

About two weeks later, Dignity’s MEC sent appellant

a memorandum regarding the ongoing peer review investigation. 

Appellant submitted a rebuttal statement. At the FPPE meeting, 

2 Appellant requested that the Department of Health & 

Human Services review the NPDB report. Without reviewing the 

merits of Dignity’s actions, the Department concluded that 

Dignity’s actions were “reportable under applicable law and 

regulations” and that the report “accurately describe[ed]

[Dignity’s] action and reasons for action . . . .” 
4

no one acknowledged appellant’s rebuttal statement. He 

characterizes the meeting as focusing on issues not previously 

raised with him.

After the meeting, the hospital chief of staff called 

appellant to advise him that, although nothing was final yet, the 

committee’s decision was probably not going to be favorable to 

appellant. He encouraged appellant to resign his position. 

Appellant resigned on February 10, 2016. 

Appellant subsequently lost privileges at two 

hospitals in California. He was considered for employment at a 

hospital in Montana and another in Tennessee. Dignity declined 

to provide records relating to the FPPE to either entity. 

Appellant contends he lost both employment opportunities 

because of Dignity’s refusal and the NPDB report.3

Procedural History

Dignity sued appellant to recover a recruiting bonus 

it had paid to him. Appellant filed a cross-complaint alleging 

retaliation in violation of Health & Safety Code section 1278.5, 

intentional interference with prospective economic advantage 

and unfair competition in violation of Business & Professions 

Code, section 17200. 

Dignity filed an anti-SLAPP motion to strike the 

cross-complaint. The trial court denied the motion because it

concluded appellant’s retaliation claim arose out of Dignity’s 

“retaliatory purpose” rather than its protected peer review 

activity. In an unpublished opinion, we reversed the trial court’s 

3 In 2022, the Medical Board of California brought an 

accusation against appellant relating to his treatment of three 

patients in 2018 and 2019, after he resigned from Dignity. The 

Medical Board withdrew the accusation in 2023. 
5

order. We remanded the matter to permit the trial court to 

determine whether appellant had demonstrated a probability of 

prevailing on the merits of his claim. 

On remand, the trial court granted the motion to 

strike, concluding that all of appellant’s claims were based on 

conduct protected by the litigation privilege (§ 47, subd. (b)), the 

common interest privilege (id., subd. (c)), reporting for which 

Dignity is immune under federal law (42 U.S.C. § 11137), or acts 

that are outside the one-year statute of limitations. (Code Civ. 

Proc., § 340.) Appellant contends the trial court erred because it 

viewed the evidence in the light most favorable to Dignity, failed 

to consider each individual basis for the retaliation claim, failed 

to consider the continuing violation doctrine as an exception to 

the statute of limitations defense, and misunderstood the basis 

for his intentional interference with prospective economic 

advantage claim. We affirm.

Standard of Review

The anti-SLAPP statute authorizes a special motion 

to strike a claim “arising from any act of that person in 

furtherance of the person’s right of petition or free speech under 

the United States Constitution or the California Constitution in 

connection with a public issue . . . .” (Code Civ. Proc., § 425.16, 

subd. (b)(1).) Deciding whether to grant an anti-SLAPP motion 

to strike requires the court to conduct a two-step inquiry. At the 

first step, the moving defendant has the burden to establish that 

the claims alleged against it “arise from” one or more of the 

statutorily defined categories of protected activity. (Bonni v. St. 

Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni I), Code 

Civ. Proc., § 425.16, subd. (e)(1)-(4).)
6

At the second step, the burden shifts to the plaintiff 

to demonstrate “a probability that [he or] she would prevail on 

the particular claim. . . . ‘Put another way, the plaintiff “must 

demonstrate that the complaint is both legally sufficient and 

supported by a sufficient prima facie showing of facts to sustain a 

favorable judgment if the evidence submitted by the plaintiff is 

credited.”’” (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) This 

burden includes defeating any legal defense raised by the 

defendant. (Curtin Maritime Corp. v. Pacific Dredge & 

Construction, LLC (2022) 76 Cal.App.5th 651, 668; RGC 

Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 

Cal.App.5th 413, 434.)

In conducting this inquiry, the court does not weigh 

evidence or resolve conflicting factual claims. (Baral v. Schnitt

(2016) 1 Cal.5th 376, 384.) The court “accepts the plaintiff’s 

evidence as true, and evaluates the defendant’s showing only to 

determine if it defeats the plaintiff’s claim as a matter of law.” 

(Id. at p. 385.) Claims that have “minimal merit may proceed.” 

(Navellier v. Sletten (2002) 29 Cal.4th 82, 94.) We review de novo 

the trial court’s decision to grant an anti-SLAPP motion. 

(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)

Discussion

Retaliation. Appellant’s cross-complaint alleges that 

he complained to Dignity about his access to operating rooms, 

lack of competent operating room staff and lack of qualified 

assistant surgeons. He alleges that Dignity then retaliated 

against him for raising these concerns. 

Health & Safety Code section 1278.5 provides, “A 

health facility shall not discriminate or retaliate, in any manner, 
7

against a patient, employee, member of the medical staff, or other 

health care worker of the health facility because that person

has . . . (A) Presented a grievance, complaint, or report to the 

facility, to an entity or agency responsible for accrediting or 

evaluating the facility, or the medical staff of the facility, or to 

any other governmental entity.” (Id., subd. (b)(1)(A).) A prima 

facie case under this statute requires the plaintiff to show that he 

or she “(1) presented a grievance, complaint, or report to the 

hospital or medical staff (2) regarding the quality of patient care 

and (3) the hospital retaliated against him or her for doing so.” 

(Alborzi v. University of Southern California (2020) 55 

Cal.App.5th 155, 178-179.) There is a rebuttable presumption 

that a heath care facility retaliated against an employee who 

presented a complaint or grievance if the facility was aware of 

the grievance and took adverse action against the employee 

within 120 days of the filing of the grievance or complaint. 

(Health & Saf. Code, § 1278.5, subd. (d)(1), (2).)

Appellant identifies nine specific categories of 

retaliatory action taken against him by Dignity: (1) reducing 

appellant’s scheduled operating room time, providing less 

operating room support and requiring him to perform surgeries 

with an unqualified and unfamiliar second surgeon; (2) informing

another local hospital that one or more of appellant’s cases had 

“significant adverse outcomes” before meeting with appellant

about those cases; (3) obstructing his ability to perform surgeries 

by rescheduling them for non-medical reasons and referring his 

patients to other hospitals; (4) depriving appellant of due process 

by not following the hospital’s own bylaws; (5) not explaining to 

appellant the impacts his agreement to voluntarily restrict his 

staff privileges; (6) rejecting his rescission of the voluntary 
8

restriction of privileges; (7) filing a false 805 report and report to 

the NPDB; (8) forcing appellant to resign; and (9) interfering with 

his right to practice his occupation elsewhere by refusing to 

provide prospective employers with records from the FPPE. 

Appellant contends these acts were presumptively retaliatory 

because they occurred within 120 days of his last grievance. He 

argues the trial court erred in granting the anti-SLAPP motion 

because Dignity did not present evidence rebutting this 

presumption.

Dignity counters, and the trial court found, that 

appellant failed to show a probability of prevailing because the 

conduct on which he relies was privileged. We agree.

Two privileges are at issue here: the litigation 

privilege in section 47, subdivision (b), and the common interest 

privilege in section 47, subdivision (c). The litigation privilege 

confers an absolute privilege on communications made as part of 

a judicial or other “truth-seeking” official proceeding. This 

includes communications made in connection with a medical peer 

review proceeding. (Kibler v. Northern Inyo County Local 

Hospital Dist. (2006) 39 Cal.4th 192, 202-203; Ramalingam v. 

Thompson (2007) 151 Cal.App.4th 491, 499-500.) As applied to a 

peer review proceeding, the privilege is intended to afford 

participants unfettered access to the proceeding without fear of 

subsequent derivative tort actions. (Bonni v. St. Joseph Health 

System (2022) 83 Cal.App.5th 288 (Bonni II); Optional Capital, 

Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 

Cal.App.5th 95, 115.) To accomplish that purpose, the privilege 

extends to steps taken before and after the peer review itself. 

(Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 613.) We 
9

broadly apply the privilege and resolve doubts in favor of its 

application. (Ibid.)

The common interest privilege is more qualified. It

extends to “a communication, 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 is innocent, or (3) who is requested by the person 

interested to give the information.” (§ 47, subd. (c).) The party 

asserting this privilege bears the burden to show that the 

statement was made on an occasion that falls within the statute. 

At that point, the opposing party has the burden to prove that the 

statement was made with malice. (Lundquist v. Reusser (1994) 7 

Cal.4th 1193, 1202 (Lundquist).) Malice, for purposes of section 

47, subdivision (c), is “‘“a state of mind arising from hatred or ill 

will, evidencing a willingness to vex, annoy or injure another 

person.”’” (Lundquist, at p. 1204, quoting Brown v. Kelly 

Broadcasting Co. (1989) 48 Cal.3d 711, 723.) 

Here, each category of retaliatory conduct alleged by 

appellant involves communications that are privileged under 

either subdivision (b) or subdivision (c) of section 47. First, 

appellant contends Dignity retaliated against him by reducing 

his operating room time, providing less staff support and 

requiring him to work with a second surgeon. Dignity, its 

medical staff and appellant shared a common interest in 

appellant’s surgical practice. Communications regarding the 

conditions under which he performed surgery fall within the 

scope of the section 47 subdivision (c) privilege. (Cuenca v. 

Safeway San Francisco Employees Federal Credit Union (1986) 

180 Cal.App.3d 985, 995 [common interest privilege applies to 
10

“Communications made in a commercial setting relating to the 

conduct of an employee”].)

Appellant did not present evidence that Dignity acted 

with malice when it engaged in these communications. Unless 

they were malicious, Dignity’s communications in this category 

were privileged. Privileged communications cannot form the 

basis of a claim for retaliation. (Lundquist, supra, 7 Cal.4th at p. 

1204.)

Appellant’s second category of retaliatory conduct is 

that Dignity informed other hospitals of adverse outcomes from 

his surgeries. His third category is that Dignity obstructed his 

ability to perform surgeries by rescheduling them and by 

referring his patients to other hospitals. Categories 4, 5 and 6 

involve Dignity failing to follow the procedures in its bylaws, 

failing to explain to him the effect of his voluntary restriction of 

privileges, and its refusal to accept his rescission of the voluntary 

restriction. In category 8, appellant contends Dignity retaliated 

against him by forcing him to resign his position. Each of these 

categories involves privileged conduct and communications. Civil 

Code section 47, subdivision (b) privileges communications that 

are related to a medical peer review, including communications 

made in the course of appellant’s FPPE, communications among 

Dignity staff members with or about appellant, and 

communications with others regarding the peer review. (Bonni

II, supra, 83 Cal.App.5th at pp. 302-304.) The communications 

are also privileged under section 47, subdivision (c) because all of 

the hospitals and patients involved shared a common interest in 

appellant’s performance as a surgeon.

Appellant’s seventh category of retaliatory conduct is 

Dignity’s filing of an 805 Report and a NPDB report. These 
11

reports are absolutely privileged under subdivision (b) of section 

47. (Bonni, I, supra, 11 Cal.5th at pp. 1017-1018; Joel v. Valley 

Surgical Center (1998) 68 Cal.App.4th 360, 372.) 

The last category is Dignity’s failure to communicate 

with prospective employers by providing those entities with 

records from the FPPE. This is also privileged because the 

section 47, subdivision (b) privilege extends to silence that 

communicates information related to the FPPE or its conclusion. 

(Crossroads Investors, L.P. v. Federal National Mortgage Assn.

(2017) 13 Cal.App.5th 757, 787; Kachlon v. Markowitz (2008) 168 

Cal.App.4th 316, 343 (Kachlon) [recording a notice of default is a 

privileged communication and failing to record a rescission of the 

notice is “no less privileged”].)

“A plaintiff cannot establish a prima facie case if the 

litigation privilege precludes a defendant’s liability on the claim.” 

(Timothy W. v. Julie W. (2022) 85 Cal.App.5th 648, 661-662.)

Because all of the retaliatory conduct alleged by appellant is 

covered by the litigation or common interest privileges, any cause 

of action based on that conduct is barred by the anti-SLAPP 

statute. (Bonni II, supra, 83 Cal.App.5th at pp. 306-307; Seltzer 

v. Barnes (2010) 182 Cal.App.4th 953, 972 (Seltzer).) 

Intentional Interference with Prospective Economic 

Advantage. The trial court correctly concluded that appellant

failed to show a probability of prevailing on the merits of his 

claim for interference with prospective economic advantage. This 

claim is based on Dignity’s failure to share records relating to the 

FPPE with two hospitals that appellant alleged had expressed an 

interest in hiring him. As we have noted, Dignity’s silence on 

questions about the FPPE is subject to the litigation privilege in 

section 47, subdivision (b). (Kachlon, supra, 168 Cal.App.4th at 
12

p. 343.) The trial court properly granted the motion to strike this 

claim. (Seltzer, supra, 182 Cal.App.4th at p. 972.)

Unlawful Business Practices. Appellant alleges that 

Dignity violated Business & Professions Code, section 17200, by 

retaliating against him and interfering with his prospective 

economic advantage. (Cel-Tech Communications, Inc. v. Los 

Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) 

Because he has not shown a probability of prevailing on the 

merits of those claims, this claim also fails.

Attorney Fees. “[A] prevailing defendant on a special 

motion to strike shall be entitled to recover that defendant’s 

attorney’s fees and costs.” (Code Civ. Proc., § 425.16, subd. (c).) 

For the reasons we have explained, the trial court correctly 

awarded Dignity its attorney’s fees and costs because it prevailed

on the anti-SLAPP motion.

Conclusion

The trial court’s orders granting the motion to strike

and the motion for attorney’s fees are affirmed. Dignity shall 

recover its costs on appeal.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Rita Federman, Judge

Superior Court County of San Luis Obispo

______________________________

Novian & Novian and Farhad Novian, Andrew B. 

Goodman; Steptoe & Johnson and Ashwin J. Ram, Alexander W. 

Avery, for Defendants, Cross-Complainants and Appellants.

Manatt, Phelps & Phillips and Barry S. Landsberg, 

Doreen Wener Shenfeld, Joanna S. McCallum; De Castro Law 

Group and José-Manuel A. de Castro, Lori V. Minassian, for 

Plaintiff, Cross-Defendant and Respondent.