Filed 1/18/24 Barnes v. Governing Bd. of John F. Kennedy Memorial Hospital CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

H. CHRISTOPHER BARNES,

Plaintiff and Respondent,

v.

GOVERNING BOARD OF JOHN F. 

KENNEDY MEMORIAL HOSPITAL, INC.,

Defendant and Appellant;

 D081548

 (Super. Ct. No. CVPS2201690)

MEDICAL EXECUTIVE COMMITTEE OF 

JOHN F. KENNEDY MEMORIAL 

HOSPITAL, INC.,

Real Party in Interest and

Appellant.

APPEAL from an order of the Superior Court of Riverside County, 

Manuel Bustamante, Judge. Affirmed.

Davis Wright Tremaine, Thomas R. Burke, Terri D. Keville, Anna R. 

Buono and Miriam R. Swedlow for Defendant and Appellant Governing 

Board of John F. Kennedy Memorial Hospital, Inc. and Real Party in Interest 

and Appellant Medical Executive Committee of John F. Kennedy Memorial 

Hospital, Inc.
2

Donald Aquinas Lancaster, Jr. for Plaintiff and Respondent.

The Governing Board of John F. Kennedy Memorial Hospital, Inc. (the 

Governing Board) and the Medical Executive Committee of John F. Kennedy

Memorial Hospital, Inc. (the Medical Executive Committee) appeal from an 

order denying their special motion to strike brought under the anti-SLAPP 

statute (Code Civ. Proc.,1 § 425.16). The special motion to strike targeted 

portions of the combined writ petition and complaint for declaratory relief 

brought by H. Christopher Barnes, M.D., in which Barnes challenges the 

termination of his medical staff membership at John F. Kennedy Memorial

Hospital (JFK). We conclude that the trial court properly determined that 

the special motion to strike lacked merit, and we accordingly affirm the trial 

court’s order denying the motion.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Hospital Peer Review Proceeding Involving Barnes

Barnes is a surgeon who was an active member of the JFK medical 

staff beginning in 2004.2 In 2014, JFK’s Medical Staff Office began to receive

reports that Barnes was engaging in unprofessional and disruptive behavior. 

1 Unless otherwise indicated, all further statutory references are to the 

Code of Civil Procedure. “ ‘SLAPP’ is an acronym for ‘strategic lawsuit 

against public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, 

fn. 1 (Baral).) The anti-SLAPP statute sets forth the standards and the 

procedure for striking “meritless claims arising from protected activity.” (Id.

at p. 384, italics omitted.)

2 In setting out the basic background facts, we rely, in part, on the 

Procedural History section of the decision of the Appeal Board of the 

Governing Board, as that decision provides a useful summary of the basic 

facts, and the parties have not disputed its factual accuracy.
3

After unsuccessful informal attempts to address the matter with Barnes, the 

Medical Executive Committee retained an external organization, EXTTI 

Incorporated (EXTTI) to conduct an investigation into the credibility of the 

reports and to assess Barnes’s assertions that the reports were 

discriminatory and retaliatory. EXTTI issued a report in December 2016,

which described “strong personality conflicts that could impact patient care.”

In response, the Medical Executive Committee voted to conduct a 

formal corrective action investigation. In February 2017, the corrective 

action investigation committee made a preliminary recommendation that 

Barnes enter into a progressive discipline agreement and enroll in two anger 

management courses. Barnes indicated that he would not enter into the 

agreement or enroll in the courses. The Medical Executive Committee then 

decided that it would terminate Barnes’s JFK medical staff membership if he 

did not comply with its requests. Barnes refused to take the required actions, 

and the Medical Executive Committee notified Barnes on April 14, 2017, that 

his medical staff membership would be terminated, but that he had the right 

to request a hearing with the Judicial Review Committee (JRC). Barnes 

requested a JRC hearing.

The Medical Executive Committee provided Barnes with a Notice of 

Charges on May 23, 2017, and a First Amended Notice of Charges on 

October 9, 2017. Those documents alleged that Barnes engaged in “an ongoing pattern of inappropriate, unacceptable interpersonal relations with 

hospital personnel, medical staff members, patients and their families,” and 

“abusive disruptive behavior.” The operative First Amended Notice of 

Charges set forth 30 specific charges involving a range of conduct from 2014 

to 2017.
4

The Medical Executive Committee appointed a JRC hearing officer, and 

the parties then approved five physicians to serve as members of the JRC.

One of the five members served as an alternate, and one was subsequently 

recused by the hearing officer.

The JRC heard evidence during 19 hearing sessions from April 2018 to 

April 2021. The parties submitted closing briefs, and the JRC then issued 

findings and conclusions in July 2021. The JRC decided that the Medical 

Executive Committee’s recommendation to terminate Barnes’s medical staff 

membership was reasonable and warranted. 

Barnes requested appellate review of the JRC decision before an 

Appeal Board appointed by the Governing Board. Barnes raised a range of 

issues with the Appeal Board, most of which were focused on the alleged 

failure of the Medical Executive Committee and the JRC to follow JFK’s

Medical Staff Bylaws (JFK Bylaws) and the applicable California laws in 

conducting the peer review proceeding. Because many of the issues that 

Barnes raised with the Appeal Board are the same issues that Barnes raises 

in this litigation, we detail those issues here.

First, Barnes contended in his arguments to the Appeal Board that one 

of the physicians that served as a JRC member, Dr. S.C.,3 should not have 

been on the JRC for several reasons. Barnes contended that Dr. S.C. was 

dishonest when asked during voir dire whether he (i.e., Dr. S.C.) was the 

subject of “any retention agreements.” Specifically, Barnes pointed out that 

Dr. S.C. did not disclose that he was allegedly subject to a practice 

monitoring agreement. Barnes also contended that Dr. S.C. did not qualify 

under the JFK Bylaws to serve on the JRC.

3 We refer to the JRC member by the use of initials to preserve 

confidentiality.
5

Second, Barnes argued that the JRC hearing officer should not have 

appointed one of the JRC members as an alternate rather than an active 

member because there was no provision for such a procedure in the JFK 

Bylaws. Similarly, Barnes maintained that the JRC hearing officer did not 

have authority to recuse one of the JRC members. 

Third, Barnes contended that the hearing officer improperly limited or 

excluded certain evidence. The purportedly wrongfully excluded evidence 

included the fact that, during the pendency of the proceeding before the JRC, 

Dr. Barnes’s medical staff membership at JFK was automatically terminated 

by the Medical Executive Committee for a reason independent of the charges 

that were pending before the JRC. Specifically, Barnes’s medical staff 

membership was automatically terminated in September 2018 by the Medical 

Executive Committee pursuant to JFK Bylaws section 7.3-5 because Barnes 

had failed to maintain professional liability insurance. With respect to the 

automatic termination, Barnes argued to the Appeal Board both that (1) the 

JRC should have considered evidence that his medical staff membership had 

already been terminated, which would have made it improper for his medical 

staff membership to be terminated based on the additional grounds alleged

in the First Amended Notice of Charges; and (2) the automatic termination 

improperly occurred “without notice and a hearing.” 

Fourth, Barnes argued it was improper for the Medical Executive 

Committee to rely on EXTTI to conduct its investigation because EXTTI was 

composed of nonphysicians. 
6

Fifth, Barnes contended that in presenting its case to the JRC, the 

Medical Executive Committee “over-relied on hearsay evidence,” so that the 

charges against him were not supported by substantial evidence.4

Sixth, Barnes challenged the termination decision based on the fact 

that in 2015 and 2017 he received positive practice evaluations and was 

reappointed to the medical staff.5

Finally, Barnes objected to some of the language of the “805 report” 

that the Medical Executive Committee would be required by law to submit to 

the Medical Board of California and the National Practitioner Data Bank in 

the event that the termination of Barnes’s medical staff membership was 

sustained.6 The JRC decision set forth proposed language for the 805 report,

but Barnes believed that some of it was inaccurate. 

4 The JFK Bylaws provide that at a hearing before the JRC, “[a]ny 

relevant evidence, including hearsay, shall be admitted if it is the sort of 

evidence on which responsible persons are accustomed to rely in the conduct 

of serious affairs, regardless of the admissibility of such evidence in a court of 

law.” 

5 Pursuant to applicable regulations (Cal. Code Regs., tit. 22, § 70701, 

subd. (a)(7)) and the JFK Bylaws, physicians must seek reappointment to the 

hospital medical staff at least once every two years.

6 The report to the Medical Board of California and the National 

Practitioner Data Bank was required as a result of Business and Professions 

Code section 805, subdivision (b)(2), which requires the filing of a report with 

the Medical Board of California within 15 days after a peer review body 

terminates or revokes “[a] licentiate’s membership, staff privileges, or 

employment . . . for a medical disciplinary cause or reason.” (Bus. & Prof. 

Code, § 805, subd. (b)(2).) The statute refers to such a report as an “805 

report” (id., § 805), and we use that terminology here as well. In addition, “a

hospital usually is required to report disciplinary actions to the National 

Practitioner Data Bank, established for the purpose of tracking the activities 

of incompetent physicians. (42 U.S.C. § 11133(a).) A hospital’s decision to 
7

The Appeal Board issued its decision in January 2022. The 42-page 

decision extensively discussed each of the issues raised by Barnes, found 

them to be without merit, and recommended that the Governing Board affirm 

the JRC’s decision that the Medical Executive Committee’s termination of 

Barnes’s medical staff membership was reasonable and warranted. The 

Appeal Board also recommended that the language of the 805 report be 

revised in certain respects. At a January 20, 2022 meeting, the Governing 

Board adopted the Appeal Board’s decision.

B. Barnes Files This Litigation to Challenge the Governing Board’s 

Decision

On April 28, 2022, Barnes initiated this action by filing a combined 

petition for a writ of mandate (§ 1085), petition for a writ of administrative 

mandamus (§ 1094.5), and complaint for declaratory relief (the Petition). The 

Petition names the Governing Board as the only respondent/defendant, and it 

names the Medical Executive Committee solely as a real party in interest. 

Specifically, Barnes alleges that the Medical Executive Committee is named

as a real party in interest because it would be “affected” by the lawsuit 

“insofar as [it] grants privilege[s] to physician[s] practicing medicine at JFK 

Memorial Hospital,” and if Barnes prevailed in his lawsuit, the Medical 

Executive Committee “would be obligated to restore [his] privileges” and to 

“retract” the 805 report.

The Petition relies exclusively on the same allegations that Barnes 

presented to the Appeal Board regarding the failure of the Medical Executive 

Committee and the JRC to follow the JFK Bylaws and applicable California 

law in conducting the peer review proceeding. The allegations mirroring the 

deny staff privileges therefore may have the effect of ending the physician’s 

career.” (Mileikowsky v. West Hills Hospital & Medical Center (2009) 

45 Cal.4th 1259, 1268, fn. omitted (Mileikowsky).)
8

claims presented to the Appeal Board are spread out over the Petition’s 

“causes of action” (capitalization omitted) for a writ of traditional mandate, 

writ of administrative mandamus and declaratory relief. Many of the 

allegations are repeated in more than one of the Petition’s causes of action. 

Specifically, over the course of the Petition, Barnes alleges that the 

following circumstances provide a ground for relief from the Governing 

Board’s decision: (1) the participation of Dr. S.C. on the JRC because Dr. S.C. 

did not answer honestly when asked if he was subject to “any retention 

agreements,” in that he did not disclose he was subject to a practice 

monitoring agreement and was on probation with the Medical Board of 

California, which allegedly suggests that Dr. S.C. was biased in favor of the 

Medical Executive Committee and was ineligible to serve on the JRC; (2) the 

failure of the Medical Executive Committee to provide Barnes with a hearing 

prior to the automatic termination of his medical staff privileges for failure to 

maintain malpractice insurance; (3) the exclusion from the JRC proceeding of 

certain evidence, including evidence related to the automatic termination of 

Barnes’s medical staff privileges; (4) the continuation of the peer review 

proceeding before the JRC even though Barnes’s medical staff membership 

had already been automatically terminated; (5) the over-reliance on hearsay 

evidence by the Medical Executive Committee during the JRC proceeding; 

(6) the improper reliance by the Medical Executive Committee on EXTTI to 

conduct an investigation even though EXTTI was not comprised of 

physicians; (7) the fact that in 2015 and 2017, Barnes received positive 

practice evaluations and was reappointed to the medical staff, which suggests 

that the charges brought by the Medical Executive Committee were 

“manufactured” as a “pretext”; and (8) the JRC hearing officer’s improper

decisions about the composition of the JRC. 
9

In the Petition’s prayer for relief, the only specific remedy that Barnes 

identifies is the issuance of a writ of mandate requiring the Governing Board 

and the Medical Executive Committee “to withdraw its [805] report to the 

Medical Board of the California [sic] and the National Practitioner Data 

Bank.”7 To the extent the cause of action for declaratory relief seeks a 

remedy different from the remedy sought in the prayer for relief, that cause 

of action specifically seeks “a judicial determination . . . with regard to 

whether [the Governing Board] and [the Medical Executive Committee] 

ensured that [Barnes] received a fair procedure in peer review proceedings 

and corrective actions proceedings” and whether the Medical Executive 

Committee “was required, and failed, to afford Dr. Barnes notice and a right 

to be heard pursuant to Business and Professions Code section 809.1 once his 

privileges were [automatically] terminated on October 18, 2018.” The 

introductory section of the Petition more generally states that Barnes is 

seeking to have the court “reverse the decisions of the Governing Board and 

the JRC.” 

The Governing Board and the Medical Executive Committee first 

responded to the Petition by filing a demurrer. The demurrer argued that 

(1) the Medical Executive Committee was not a proper party to the litigation;

and (2) the only viable way to challenge the decision of the Governing Board 

was to seek a writ of administrative mandamus (§ 1094.5), not a traditional 

writ of mandate (§ 1085) or declaratory relief. The trial court sustained the 

7 We infer that because Barnes’s medical staff membership was 

automatically terminated for the independent reason of his failure to 

maintain his malpractice insurance, he does not seek the remedy of an order 

reinstating his medical staff membership. Instead, the relief he seeks focuses 

on the remaining adverse consequence from the Governing Board’s decision, 

namely, the required filing of the 805 report.
10

demurrer in part. It agreed that the Medical Executive Committee was 

improperly named in this action, but it determined that although most of the 

issues Barnes raised were cognizable only in a petition for a writ of 

administrative mandamus, one of the issues he raised could be addressed

through a petition for a traditional writ of mandate.8

While the demurrer was pending, the Governing Board and the Medical 

Executive Committee filed a special motion to strike under the anti-SLAPP 

statute. The special motion to strike argued that, with the exception of what 

it described as Barnes’s “narrow challenge to the Governing Board’s final 

decision” contained in the cause of action seeking a writ of administrative 

mandamus, the remainder of the Petition’s allegations fell within the scope of 

the anti-SLAPP because “they all arise from communications made in the 

course of peer review, or statements made to government agencies as 

mandated by law.” The special motion to strike acknowledged that our 

Supreme Court has established that claims for relief based on the discipline 

imposed as a result of a peer review proceeding are not protected by the

anti-SLAPP statute. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 

995, 1004 (Bonni).) However, according to the special motion to strike, many 

of the Petition’s claims for relief were not based on the Governing Board’s 

final decision to terminate Barnes’s medical staff membership, but instead 

they “challenge[d] speech and conduct in the course of the [Medical Executive 

Committee’s] investigation and the recommendations that led up to the 

Governing Board’s final decision, as well as rulings made by the [JRC] 

Hearing Officer.” 

8 Specifically, the trial court held that a proceeding in traditional 

mandate was proper for Barnes’s claim that he was denied a hearing prior to 

the automatic termination of his medical staff membership. 
11

The trial court denied the special motion to strike. It ruled that the 

Petition’s allegations did not fall under the scope of the anti-SLAPP statute

because “[t]he injurious conduct” targeted by the Petition “is the termination 

itself.” (Underscoring omitted.) As the trial court explained, “While [Barnes]

alludes to improper conduct by the [Medical Executive Committee] and 

hearing officer in violation of the [JFK] [B]ylaws, [Barnes] does not seek 

damages for statements or writings made during the course of the hospital 

peer review process. A request for judicial relief from an administrative 

decision is distinguishable from requests for damages that are based on 

alleged injury arising from hospital peer review activity.”9

The Governing Board and the Medical Executive Committee appeal 

from the order denying their special motion to strike.10

9 Somewhat inconsistently and confusingly, the trial court then went on 

to discuss several specific items in the Petition that would fall within the 

scope of the anti-SLAPP statute because they involved a statement or writing 

in connection with an official proceeding. The allegations that the trial court 

identified as meeting that description were Barnes’s claims concerning the 

EXTTI report and the overreliance on hearsay during the JRC hearing, as 

well as Barnes’s request for an order requiring the retraction of the 805 

report. The trial court seems to have conducted a cursory second-prong 

inquiry and concluded that there may be merit to the first two items to the 

extent they were part of Barnes’s allegation of procedural deficiencies in the 

peer review proceeding. Nevertheless, the trial court denied the special 

motion to strike in its entirety. 

10 For the first time on appeal, Barnes contends the issue of whether the 

special motion to strike was properly granted as to the Medical Executive 

Committee is “moot” because the Medical Executive Committee prevailed in 

its demurrer and has been dismissed as a party. We reject the mootness 

argument, as a live issue of entitlement to attorney fees as a result of the 

special motion to strike still exists as to the Medical Executive Committee. 

(§ 425.16, subd. (c); White v. Lieberman (2002) 103 Cal.App.4th 210, 220 [an 

order sustaining a defendant’s demurrer without leave to amend did not moot 
12

II.

DISCUSSION

A. The Anti-SLAPP Statute

We begin by setting out some general principles applicable to special 

motions to strike brought under the anti-SLAPP statute. “The anti-SLAPP 

statute is ‘designed to protect defendants from meritless lawsuits that might 

chill the exercise of their rights to speak and petition on matters of public 

concern. [Citations.] To that end, the 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.” (§ 425.16, 

subd. (b)(1).)’ [Citation.] [¶] Litigation of an anti-SLAPP motion involves a 

two-step process. First, ‘the moving defendant bears the burden of 

establishing that the challenged allegations or claims “aris[e] from” protected 

activity in which the defendant has engaged.’ [Citation.] Second, for each 

claim that does arise from protected activity, the plaintiff must show the 

claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make 

this showing, the court will strike the claim.” (Bonni, supra, 11 Cal.5th at 

pp. 1008–1009.)11

that defendant’s SLAPP motion, because a prevailing defendant in a special 

motion to strike is generally entitled to award of attorney fees].)

11 We note that the anti-SLAPP statute refers to a “person” and a 

“defendant” bringing a special motion to strike (§ 425.16, subds. (b)(1), (c)),

and it defines the term “defendant” to include “ ‘cross-defendant’ and 

‘respondent.’ ” (Id., subd. (h).) Due to our disposition affirming the trial 

court’s denial of the special motion to strike, we need not, and do not, address 

whether a real party in interest, such as the Medical Executive Committee, 

may also bring a special motion to strike. (See Rudisill v. California Coastal 

Com. (2019) 35 Cal.App.5th 1062, 1072 & fn. 4 [noting that “whether a real 
13

The anti-SLAPP statute identifies four categories of protected activity:

“(1) any written or oral statement or writing made before a legislative, 

executive, or judicial proceeding, or any other official proceeding authorized 

by law, (2) any written or oral statement or writing made in connection with 

an issue under consideration or review by a legislative, executive, or judicial 

body, or any other official proceeding authorized by law, (3) any written or 

oral statement or writing made in a place open to the public or a public forum 

in connection with an issue of public interest, or (4) any other conduct in 

furtherance of the exercise of the constitutional right of petition or the 

constitutional right of free speech in connection with a public issue or an 

issue of public interest.” (§ 425.16, subd. (e)(1)–(4).) The Governing Board 

and the Medical Executive Committee identify subdivision (e)(1), (2)

and (4) of section 425.16 as potentially applicable here.12

party in interest in a mandamus proceeding is a ‘person’ against whom a 

claim is asserted for purposes of the anti-SLAPP statute has apparently not 

been addressed in any reported decision,” but concluding that for the purpose 

of deciding whether to award attorney fees to a plaintiff that prevailed in 

defeating an anti-SLAPP motion, there was a “reasonable basis” for the 

moving party in the anti-SLAPP motion to adopt that interpretation].) The 

Medical Executive Committee contends on appeal that the trial court erred in 

not separately addressing the claims against it when evaluating the special 

motion to strike. However, since the Medical Executive Committee was sued 

solely as a real party in interest to enable the court to order relief that 

impacts the Medical Executive Committee, the substantive basis for Barnes’s 

claims for relief as to that party are identical to the substantive basis for the 

claims for relief against the Governing Board. No separate analysis is 

required to determine whether the claims against the Medical Executive 

Committee, as real party in interest, arise from speech protected by the 

anti-SLAPP statute. 

12 The Governing Board and the Medical Executive Committee contend 

that subdivision (e)(1) and (2) of section 425.16 apply because Barnes’s peer 

review proceeding was an “official proceeding authorized by law” (ibid.), 
14

“Analysis of an anti-SLAPP motion is not confined to evaluating 

whether an entire cause of action, as pleaded by the plaintiff, arises from 

protected activity or has merit. Instead, courts should analyze each claim for 

relief—each act or set of acts supplying a basis for relief, of which there may 

be several in a single pleaded cause of action—to determine whether the acts 

are protected and, if so, whether the claim they give rise to has the requisite 

degree of merit to survive the motion.” (Bonni, supra, 11 Cal.5th at p. 1010, 

italics added.) Put another way, “particular alleged acts giving rise to a claim 

for relief may be the object of an anti-SLAPP motion.” (Baral, supra,

1 Cal.5th at p. 395.) If a court strikes particular claims for relief within a 

cause of action under the anti-SLAPP statute, the plaintiff “may no longer 

seek to impose liability on defendants for having engaged in th[o]se protected 

acts.” (Bonni, at p. 1019.) However, the underlying factual allegations for 

the stricken claims will still be admissible to prove any claims for relief that 

survive the special motion to strike. (Ibid.)

A trial court’s order denying a special motion to strike is subject to a de 

novo standard of review. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 

781, 788.) “ ‘[O]ur job is to review the trial court’s ruling, not its reasoning.’ ”

(Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc.

(2021) 59 Cal.App.5th 995, 1002.)

during which, or in connection with which, certain written or oral speech 

occurred. They allege that subdivision (e)(4) of section 425.16 applies on the 

ground that, during Barnes’s peer review proceeding, statements were made 

about the “ ‘public issue’ of ‘the qualifications, competence, and professional 

ethics of a licensed physician.’ ” (Quoting Yang v. Tenet Healthcare Inc.

(2020) 48 Cal.App.5th 939, 947.)
15

B. Hospital Peer Review Proceedings

To better understand the context in which this action arose, we next 

examine the nature of hospital peer review proceedings. 

“In California, hospitals are composed of an administrative governing 

body that oversees hospital operations and a medical staff that provides 

medical services and ensures its members provide adequate medical care to 

patients. A physician who wishes to practice at a hospital must maintain 

staff privileges. The termination of staff privileges can significantly limit the 

physician’s ability to practice medicine. For that reason, before staff 

privileges can be terminated, the physician must be afforded certain 

procedural protections, including the opportunity for review of the 

termination decision.” (Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 

1102 (Natarajan).) That process is known as “peer review.” (Ibid.; see also 

Bonni, supra, 11 Cal.5th at pp. 1012–1013 [“medical peer review is the 

process by which a hospital’s medical staff evaluates fellow physicians’ 

professional competence”].) 

“Though originally adopted by the profession as a purely private 

process, peer review is now mandated by statute [citations] . . . .” (Bonni,

supra, 11 Cal.5th at p. 1013.) Specifically, in 1989, “[t]he Legislature . . .

codified the common law fair procedure doctrine in the hospital peer review 

context by enacting Business and Professions Code sections 809 to 809.8.”

(El-Attar v. Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 

988.) “The two primary goals of the peer review statute are ‘to protect the 

health and welfare of the people of California by excluding through the peer 

review mechanism “those healing arts practitioners who provide substandard 

care or who engage in professional misconduct” ’ and ‘to protect competent 

practitioners from being barred from practice for arbitrary or discriminatory 
16

reasons.’ ” (Natarajan, supra, 11 Cal.5th at p. 1103.) “A hospital’s decisions 

resulting from peer review proceedings are subject to judicial review by 

administrative mandate. (Bus. & Prof. Code, § 809.8.) Thus, the Legislature 

has accorded a hospital’s peer review decisions a status comparable to that of 

quasi-judicial public agencies whose decisions likewise are reviewable by 

administrative mandate.” (Kibler v. Northern Inyo County Local Hospital 

Dist. (2006) 39 Cal.4th 192, 200 (Kibler).)

Under applicable law, “[t]he medical staff must adopt written bylaws 

‘which provide formal procedures for the evaluation of staff applications and 

credentials, appointments, reappointments, assignment of clinical privileges, 

appeals mechanisms and such other subjects or conditions which the medical 

staff and governing body deem appropriate.’ ” (Mileikowsky, supra, 45 

Cal.4th at p. 1267.) The JFK Bylaws specifically set forth the peer review 

procedures that apply when the Medical Executive Committee considers 

whether to take corrective action against a member of the medical staff.

Those procedures include the steps of (1) an investigation by the Medical 

Executive Committee after receiving information about the “conduct, 

performance, or competence of practitioners who hold privileges at JFK” to 

decide whether to recommend adverse action; (2) the physician’s right to 

request a hearing before the JRC to review the recommendation to take 

adverse action, with the JRC composed of at least three members of the 

medical staff, whom the physician has had “a reasonable opportunity to 

question and challenge” with respect to impartiality; (3) the physician’s right 

to appeal the JRC’s decision to the Appeal Board “composed of not less than 3 

members of the Governing Board,” which decides “whether the Governing 

Board should affirm, modify, or reverse the judicial review committee 

decision”; and (4) the Governing Board’s issuance of a final decision on 
17

whether to affirm the JRC decision, based on a determination that the 

decision “is supported by substantial evidence, following a fair procedure,”

and which “shall specify the reasons for the action taken” and “shall include 

the text of the [805] report which shall be made to the National Practitioner 

Data Bank and the Medical Board of California.”

As relevant here, the JFK Bylaws also provide, “Failure to maintain 

professional liability insurance shall be grounds for automatic suspension of

a practitioner’s clinical privileges. Following a written warning of the 

delinquency, if the practitioner does not provide evidence of required 

professional liability insurance within ten (10) days, the practitioner’s 

membership and privileges shall be automatically terminated.” Further, 

with respect to an automatic termination, “a hearing, if requested, shall be 

limited to the question of whether the grounds for automatic suspension as 

set forth below have occurred.” 

C. Application of the Anti-SLAPP Statute’s First Prong to Barnes’s Claims 

in the Petition

We now turn to an analysis of whether, as the Governing Board and 

the Medical Executive Committee contend, certain of the claims for relief in 

the Petition fall within the scope of the anti-SLAPP statute. In conducting

our first-prong analysis, we consider “the pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or defense is 

based.” (§ 425.16, subd. (b)(2); see also Navellier v. Sletten (2002) 29 Cal.4th 

82, 89.)

Our Supreme Court has twice examined the extent to which claims for 

relief based on hospital peer review proceedings are within the scope of the 

anti-SLAPP statute. First, in Kibler, our Supreme Court held that “a 

hospital’s peer review qualifies as ‘any other official proceeding authorized by 

law’ under subparagraph (2) of subdivision (e) [of section 425.16] and thus a 
18

lawsuit arising out of a peer review proceeding is subject to a special motion 

under section 425.16 to strike the SLAPP suit.” (Kibler, supra, 39 Cal.4th at 

p. 198.) Kibler specifically examined whether the anti-SLAPP statute applied 

to a doctor’s lawsuit against a hospital and certain physicians and nurses, in 

which he sought “damages under a variety of theories including defamation, 

abuse of process, and interference with [the doctor’s] practice of medicine” 

after the hospital summarily terminated his medical staff privileges, which 

were later reinstated after the doctor agreed to certain corrective measures.

(Id. at p. 196.)13 However, the issues reached in Kibler were limited. Kibler

“did not address whether every aspect of a hospital peer review proceeding 

involves protected activity, but only whether statements in connection with 

but outside the course of such a proceeding can qualify as ‘statement[s] . . . in 

connection with an issue under consideration’ in an ‘official proceeding.’ ” 

(Park v. Board of Trustees of California State University (2017) 2 Cal.5th 

1057, 1070 (Park).)

Next, in Bonni, our Supreme Court considered “the scope and limits” of 

Kibler’s holding that the anti-SLAPP statute’s protections extend to speech 

and petitioning in connection with hospital peer review. (Bonni, supra, 11 

Cal.5th at p. 1004.) Specifically, Bonni concerned a lawsuit brought by a 

13 The allegations in Kibler concerned only “oral or written statements or 

writings made ‘in connection with’ (but not during the course of) the 

hospital’s peer review proceeding,” and thus our Supreme Court analyzed 

only the applicability of subdivision (e)(2) of section 425.16. (Kibler, supra, 39 

Cal.4th at p. 198.) Kibler expressly declined to reach the question of whether 

“hospital peer review proceedings qualify as ‘conduct in furtherance of the 

exercise of the constitutional right of petition or the constitutional right of 

free speech in connection with a public issue or an issue of public interest’ ”

within the meaning of subdivision (e)(4) of the anti-SLAPP statute. (Id. at 

p. 203.)
19

doctor who had been subject to peer review proceedings at two hospitals. He 

sued those hospitals, affiliated entities and eight individual doctors who 

participated in the peer review proceedings. (Id. at pp. 1004–1007.) The 

doctor’s lawsuit did not seek relief from the outcome of the peer review 

proceedings. Instead, the lawsuit primarily sought to impose liability based 

on claims that the defendants had wrongfully retaliated against the doctor in 

violation of the whistleblower protections of Health and Safety Code 

section 1278.5 by “summarily suspending him, reporting his suspensions to 

the state medical board, subjecting him to lengthy and humiliating peer 

review proceedings, defaming him, and ultimately terminating his hospital 

privileges.” (Id. at p. 1007.) 

Bonni, supra, 11 Cal. 5th 995 addressed the extent to which the 

retaliatory conduct alleged by the doctor fell within the protection of the

anti-SLAPP statute. Bonni concluded that “[w]hile some of the forms of 

retaliation alleged in the complaint—including statements made during and 

in connection with peer review proceedings and disciplinary reports filed with 

official bodies—do qualify as protected activity, the discipline imposed 

through the peer review process does not.” (Id. at p. 1004.)

In explaining this decision, our Supreme Court in Bonni relied upon its 

recent decision in Park, supra, 2 Cal.5th 1057, which concerned a professor’s 

lawsuit alleging that a university’s act of denying him tenure constituted 

national-origin discrimination for which the university was liable under the 

California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). 

(Park, at pp. 1061, 1068.) As Bonni explained, Park established that “the 

anti-SLAPP statute protects speech and petitioning activity taken in 

connection with an official proceeding, but not necessarily the decisions made 
20

or actions taken as a result of those proceedings.” (Bonni, supra, 11 Cal.5th 

at p. 1014.)

Applying this approach, Bonni concluded that “two of the alleged 

retaliatory actions underlying [the doctor’s] complaint—defamation and 

‘character assassination’—describe quintessential speech activities and thus 

are protected under section 425.16, subdivision (e)(2) to the extent the speech 

was made in connection with peer review.” (Bonni, supra, 11 Cal.5th at 

p. 1016.) A long list of other alleged retaliatory activity also fell within the 

scope of section 425.16, subdivision (e)(2): (1) the filing of 805 reports;

(2) making an argument to the peer review panel that the doctor’s suspension 

should be upheld; (3) recommending the reversal of certain favorable 

preliminary findings; and (4) subjecting the doctor to a “ ‘lengthy and 

humiliating peer review process,’ ” which encompassed “essentially 

everything any defendant said in the course of the peer review process in 

support of limiting [the doctor’s] privileges.” (Bonni, at pp. 1017–1018.) 

However, the actual disciplinary actions arrived at through the peer review 

proceedings were not protected, either as speech made in connection with 

peer review under subdivision (e)(2) of section 425.16 (Bonni, at p. 1020), or 

as “ ‘any other conduct in furtherance of the exercise of the constitutional 

right of petition or the constitutional right of free speech in connection with a 

public issue or an issue of public interest’ ” under subdivision (e)(4) of 

section 425.16. (Bonni, at pp. 1020–1022.)

In their anti-SLAPP motion, the Governing Board and the Medical 

Executive Committee rely on the distinction, identified in Bonni, between 

speech occurring during the peer review proceedings, which fell within the 

scope of the anti-SLAPP statute in Bonni’s analysis, and the disciplinary 

decisions themselves, which did not. According to the Governing Board and 
21

the Medical Executive Committee, the same dichotomy should apply in this 

case. They contend that all of the allegations in the Petition regarding 

speech or communicative conduct that occurred during Barnes’s peer review 

proceeding are protected by the anti-SLAPP statute, and only the Governing 

Board’s decision to terminate Barnes’s medical staff membership is not 

protected. They maintain that the “peer reviewers’ speech and conduct in the 

course of the [Medical Executive Committee’s] investigation,

recommendations, and peer review hearing that led up to the Governing 

Board’s final decision, as well as rulings made by the Hearing Officer in 

Dr. Barnes’s lengthy hearing” fall within the scope of the anti-SLAPP law. 

However, as we will explain, there is a crucial difference between Bonni

and Barnes’s case that is dispositive here. Barnes seeks only to undo the 

result of the peer review proceeding itself on the ground that it was, in 

several respects, unfair and unlawful. That is why he seeks only writ relief 

and a declaratory judgment. The evidence concerning the conduct and speech 

engaged in by the Medical Executive Committee, the JRC, and the hearing 

officer appear in the Petition only because they are evidence of the allegedly 

unfair and unlawful nature of the peer review proceeding to support Barnes’s 

contention that the result of the peer review proceeding should be reversed.14 

The plaintiff in Bonni, in contrast, sought to impose liability on a range of 

defendants because they allegedly used the peer review proceeding, and 

14 Indeed, in his Petition, Barnes relies exclusively upon the identical 

evidence and arguments about the unfairness and unlawfulness of the peer 

review proceeding that he presented in his briefing to the Appeal Board. The 

reliance on identical arguments and evidence in both forums shows that the 

Petition’s allegations regarding the Medical Executive Committee, the JRC, 

and the hearing officer serve merely as support for his attempt to reverse the 

ultimate decision in the peer review proceeding.
22

statements made in connection with that proceeding, as a means to retaliate

against him. Unlike in Bonni, the wrong that Barnes complains of is the lack 

of fairness and lawfulness in the peer review proceeding itself, not any 

independent injury that arose from speech or communicative conduct during 

that proceeding.

The central dispositive legal principle for our analysis is set forth in 

Park, supra, 2 Cal.5th 1057. Specifically, “a claim may be struck only if the 

speech or petitioning activity itself is the wrong complained of, and not just 

evidence of liability or a step leading to some different act for which liability 

is asserted.” (Id. at p. 1060.) “A claim arises from protected activity when 

that activity underlies or forms the basis for the claim. [Citations.] 

Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must 

itself have been an act in furtherance of the right of petition or free speech.’ 

[Citations.] ‘[T]he mere fact that an action was filed after protected activity 

took place does not mean the action arose from that activity for the purposes 

of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining 

what ‘the defendant's activity [is] that gives rise to his or her asserted 

liability—and whether that activity constitutes protected speech or 

petitioning.’ ” (Id. at pp. 1062–1063.) For the purpose of a first-prong 

analysis under the anti-SLAPP statute, there is a “distinction between 

activities that form the basis for a claim and those that merely lead to the 

liability-creating activity or provide evidentiary support for the claim.” (Id. 

at p. 1064.) 

In Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35

(Young), this court conducted a first-prong analysis under the anti-SLAPP 

statute in a case concerning a petition for a writ of administrative mandamus

brought by a doctor challenging a decision made during a hospital peer 
23

review proceeding. Although Young was decided prior to our Supreme 

Court’s Park opinion (Park, supra, 2 Cal.5th 1057), it applies legal principles 

that are consistent with those set forth in Park for deciding whether a claim

arises from protected speech, and its analysis is instructive here. 

In Young, the doctor’s petition for administrative mandamus 

challenged a series of decisions made by the hospital board in the course of a 

peer review proceeding and sought an order entitling the doctor to 

reinstatement of his medical staff privileges. (Young, supra, 210 Cal.App.4th 

at p. 40.) The specific claim at issue in the hospital’s anti-SLAPP motion was 

the doctor’s challenge to the summary suspension of his medical staff 

privileges, which occurred while the peer review proceeding was ongoing. (Id.

at pp. 40, 43.) The doctor “sought an order determining that the . . .

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.” (Id. at p. 44.)

In conducting a first-prong analysis, Young framed the inquiry as 

“whether the plaintiff is seeking relief from the defendant for its protected 

communicative acts.” (Young, supra, 210 Cal.App.4th at p. 55.) Applying 

that standard, Young concluded that the doctor’s claim was not protected by 

the anti-SLAPP statute. Young explained that “[n]othing in the anti-SLAPP 

statute wholly exempts a writ petition against a public entity from its 

potential coverage of protected speech.” (Id. at p. 42.)15 However, the 

15 “[I]n an appropriate case, a petition for mandamus may be subject to a 

special motion to strike just like any other form of action. (See, e.g., MoragaOrinda Fire Protection Dist. v. Weir (2004) 115 Cal.App.4th 477 [mandamus 

petition seeking to strike or modify ballot argument constituted a SLAPP 

suit].)” (San Ramon Valley Fire Protection Dist. v. Contra Costa County 

Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 353 (San Ramon).) 
24

doctor’s challenge to his summary suspension did not “ ‘arise’ from the 

[hospital board’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 ar[ose] from the statutory provision giving a right to judicial 

review of a governmental decision.” (Young, at p. 42, italics added.)

Young emphasized that the doctor’s “request for judicial relief from an 

administrative decision should be distinguished from requests for damages

that are fundamentally based on alleged injury arising from such peer review 

activity.” (Young, supra, 210 Cal.App. 4th at p. 57, italics added.) As Young

explained, the case law applying the protections of the anti-SLAPP statute to 

a hospital peer review proceeding were claims in which the doctor sought to 

impose liability for speech or protected conduct that occurred in connection 

with a proceeding. (Ibid., citing Kibler, supra, 39 Cal.4th 192, Smith v. 

Adventist Health System/West (2010) 190 Cal.App.4th 40, Nesson v. Northern 

Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 80, disapproved 

in Park, supra, 2 Cal.5th at p. 1070.) Young concluded that because the 

plaintiff doctor in the case before it had filed a petition for a writ of 

administrative mandamus challenging the procedures employed during his 

summary suspension, the doctor’s claim for relief was “based on and arose out 

of his statutory rights under section 1094.5, and [was] separate and different 

from an action for damages that arose out of the content of the allegedly 

wrongful peer review statements” in the cases such as Kibler and Smith. 

(Young, at p. 58, italics added.) Put another way, the doctor’s claim for relief 

was based on “avoidance of fair procedure or his judicial review hearing 

Similarly, a claim for declaratory relief may also be the subject of an antiSLAPP motion. (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 

Cal.App.4th 634, 665–666.)
25

rights” rather than on any protected speech occurring during the hospital 

peer review proceedings. (Ibid.) Although the doctor’s claim for writ relief 

may have been “ ‘triggered’ ” by certain protected speech in the context of a 

peer review proceeding, it did not arise from that protected speech because 

the doctor “principally [sought] judicial relief from actions of an 

administrative body that denied him a hearing to which he was otherwise 

entitled.” (Id. at p. 59.)16

Here, as in Young, Barnes’s claims for relief arose from “statutory 

provision[s] giving a right to judicial review of a governmental decision” 

(Young, supra, 210 Cal.App.4th at p. 42), rather than from any protected 

speech made in connection with the peer review proceeding. Barnes alleges a 

string of reasons why the peer review proceeding was not fairly conducted or 

16 The Governing Board and the Medical Executive Committee do not 

mention Young, supra, 210 Cal.App.4th 35 in their appellate briefing. In 

their trial court briefing for the special motion to strike, they acknowledged 

Young in a footnote, but they contended that “Young has been implicitly 

overruled” by subsequent case law from our Supreme Court, such as Bonni,

supra, 11 Cal.5th 995, which they described as holding that “events that 

occur in the course of an administrative proceeding may be subject to the 

anti-SLAPP statute.” We are not persuaded by the attempt to distinguish 

Young. The significance of Young to the instant case is that Young discussed 

the extent to which the anti-SLAPP statute applied to speech-related claims 

of procedural unfairness and unlawfulness during a hospital peer review 

proceeding that appear in a petition for a writ of administrative mandamus 

challenging the result of the peer review proceeding itself. The distinction 

that Young highlights between that type of writ petition and the type of claim 

for damages discussed in Kibler, supra, 39 Cal.4th 192, and other case law

involving hospital peer review proceedings, is still relevant and persuasive, 

even in light of subsequent Supreme Court case law. (Cf. City of Montebello 

v. Vasquez (2016) 1 Cal.5th 409, 427 [noting a concern about “chilling 

citizens’ exercise of their right to challenge government action by suing the 

public entity itself” as opposed to suing individual members of a governing 

body based on their protected speech or petitioning activity].)
26

was conducted in violation of the applicable procedures. Some of those 

reasons touch on speech or communicative conduct that occurred during the 

peer review proceeding. For example, the Petition (1) cites Dr. S.C.’s 

testimony that he was not subject to a retention agreement; (2) complains 

about certain hearsay evidence or other testimony and about the propriety of 

the EXTTI report; and (3) cites rulings communicated by the hearing officer. 

However, as in Young, Barnes’s claims for relief are based on “avoidance of 

fair procedure or his judicial review hearing rights” rather than on any 

protected speech or conduct that might have occurred during the peer review 

proceeding. (Id. at p. 58.) The fact that certain speech took place during the 

peer review proceeding merely “provide[s] evidentiary support for the claim” 

that the peer review proceeding was procedurally unfair and unlawful (Park,

supra, 2 Cal.5th at p. 1064), but that speech does not, itself, form the basis for 

a claim of entitlement to relief in administrative mandamus, by a traditional 

writ of mandate, or through declaratory relief. Because the fundamental 

relief that Barnes seeks is an order that would undo the consequences of the 

Governing Board’s decision to terminate his medical staff membership,

Barnes’s claims for relief arise from the Governing Board’s ultimate decision, 

not any subsidiary procedural step involving speech.17 

17 In their appellate briefing, the Governing Board and the Medical 

Executive Committee separately discuss the Petition’s allegations that 

Barnes was not afforded the allegedly required notice and a hearing prior to 

the automatic termination of his medical staff membership due to his failure 

to maintain professional liability insurance. They contend that the allegation 

about the lack of notice “relates to speech” and thus brings the claim within 

the protections of the anti-SLAPP law. We reject the argument. As with the 

claims challenging the termination of his medical staff privileges for the 

reasons set forth in the First Amended Notice of Charges, Barnes’s complaint 

about the automatic termination arises from the alleged procedural 
27

Moreover, if we were to accord anti-SLAPP protection to Barnes’s 

attempt to obtain judicial review of the procedural fairness and lawfulness of 

the peer review proceeding merely because that proceeding involved speech, 

the result would be to needlessly discourage judicial review of hospital peer 

review proceedings. As one court observed in a similar circumstance, “[m]any 

of the public entity decisions reviewable by mandamus or administrative 

mandamus are arrived at after discussion and a vote at a public meeting. 

[Citations.] If mandamus petitions challenging decisions reached in this 

manner were routinely subject to a special motion to strike . . . the petitioners 

in every such case could be forced to make a prima facie showing of merit at 

the pleading stage. While that result might not go so far as to impliedly 

repeal the mandamus statutes . . . it would chill the resort to legitimate 

judicial oversight over potential abuses of legislative and administrative 

power, which is at the heart of those remedial statutes. It would also 

ironically impose an undue burden upon the very right of petition for those 

seeking mandamus review in a manner squarely contrary to the underlying 

legislative intent behind section 425.16.” (San Ramon, supra, 125 

Cal.App.4th at pp. 357–358.) As another court elaborated on the observation 

made in San Ramon, “The same may be said of a declaratory relief action 

that challenges the validity of governmental conduct. And the chilling effect 

of requiring the plaintiff in an action for a writ of mandate or declaratory 

relief to make a prima facie showing of merit at the pleading stage is of 

unfairness and unlawfulness of that termination proceeding, not from any 

speech that occurred during it. Any specific allegations about the nature of 

the notice afforded in connection with that termination, to the extent it can 

be characterized as protected speech, serves only as evidence of the alleged 

procedural unfairness but does not constitute the basis for the claim for 

relief.
28

particular concern because a defendant who prevails on an anti-SLAPP 

motion is entitled to an award of attorney fees. (See § 425.16, subd. (c).)” 

(Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 

Cal.App.4th 1207, 1225.) Identical observations can be made regarding the 

approach advocated by the Governing Board and the Medical Executive 

Committee in this case. Hospital peer review proceedings invariably involve 

speech. If a doctor who seeks judicial review of the fairness and lawfulness of 

a hospital peer review proceeding through a writ petition or a declaratory 

relief action has to be concerned about a special motion to strike simply 

because some of the allegedly unfair procedures involved speech, it would 

chill the resort to judicial oversight of hospital peer review proceedings. That 

result is disfavored because the Legislature has unequivocally intended to 

provide for judicial review of hospital peer review proceedings. (Bus. & Prof. 

Code, § 809.8.)

We accordingly conclude that the trial court properly denied the special 

motion to strike, as none of the claims targeted by that motion arise from 

speech protected by the anti-SLAPP statute. Because we resolve this appeal 

on a first-prong analysis, we need not, and do not, address whether Barnes 

can establish a probability he would prevail on any of the Petition’s 

allegations targeted by the special motion to strike. 
29

DISPOSITION

The order denying the special motion to strike is affirmed. 

IRION, J.

WE CONCUR:

O'ROURKE, Acting P. J.

BUCHANAN, J.