Filed 12/17/13 Samuel v. Providence Healthcare Systems-So. Cal. CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FIVE 

CHRISTOJOHN SAMUEL et al., 

 Plaintiffs and Respondents, 

 v. 

PROVIDENCE HEALTHCARE 

SYSTEMS-SOUTHERN CALIFORNIA, 

 Defendant and Appellant. 

 B242208 

 (Los Angeles County Super. Ct. 

 No. PC051773) 

 APPEAL from an order of the Superior Court of Los Angeles County, Melvin 

Sandvig, Judge. Affirmed. 

 Carroll, Kelly, Trotter, Franzen & McKenna, Richard D. Carroll, David P. Pruett 

and Jennifer A. Cooney for Defendant and Appellant. 

 Nossaman LLP, Mitchell J. Green and Chelsea N. Trotter for Plaintiffs and 

Respondents. 

______________________________ 
2 

 Defendant and appellant Providence Health Systems-Southern California (the 

Hospital), doing business as Providence Holy Cross Medical Center, appeals from an 

order denying a special motion to strike under the anti-SLAPP statute,1 Code of Civil 

Procedure section 425.16,2 in favor of plaintiffs and respondents Christojohn Samuel, 

M.D., Christojohn Samuel, M.D., Inc., Walid Arnaout, M.D., and Walid Arnaout, M.D., 

Inc. (referred to collectively as the Doctors). The Doctors allege the Hospital negligently 

failed to control the disruptive behavior of another physician. The trial court denied the 

anti-SLAPP motion, finding the complaint was subject to the anti-SLAPP statute because 

it arose from a peer review proceeding, but the Doctors had demonstrated a probability of 

prevailing on the merits. On appeal, the Hospital contends the Doctors failed to show a 

probability of prevailing for several reasons. However, we conclude the complaint does 

not arise in connection with a peer review proceeding, and therefore, the anti-SLAPP 

statute does not apply. Therefore, we affirm the order denying the anti-SLAPP motion.3

FACTS AND PROCEDURAL BACKGROUND 

Allegations of the Complaint 

 On October 20, 2011, the Doctors filed a complaint against the Hospital and 

Bradley Roth, M.D. Arnaout alleged a cause of action for battery against Roth, and the 

Doctors alleged a cause of action for negligence against the Hospital. Samuel, Arnaout, 

and Roth are trauma surgeons and members of the Hospital’s medical staff. Samuel was 

the medical director of trauma services until mid-2009. 

 1 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’” 

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) 

2 All further statutory references are to the Code of Civil Procedure unless 

otherwise stated. 

3 The Hospital’s motion to dismiss the Doctors’ cross-appeal is granted. 
3 

 In August 2008, Roth campaigned for on-call shifts at the Hospital to be scheduled 

for himself and his practice partner David Hanpeter, M.D., on a preferential basis, rather 

than divided fairly among the eligible trauma surgeons. Roth intended to displace and 

interfere with the economic benefits of Samuel and the other trauma surgeons. To 

accomplish his purpose, Roth used insulting and inappropriate language, disparaged the 

Doctors’ professional competency to their patients, interfered with other physicians’ care 

and treatment by inspecting their patients’ charts, replacing their orders with his own, and 

providing contrary instructions to nurses, wrote letters to and requested meetings with the 

Hospital’s administration in order to question Samuel’s leadership and influence the 

Hospital to substitute Hanpeter as medical director, refused to treat patients affiliated 

with the Doctors, and made false and exaggerated reports to peer review committees 

against the Doctors and other trauma surgeons. In December 2008, a department 

chairperson complained to the Hospital administration about Roth’s conduct and stated 

that Roth’s conduct threatened the quality of patient care. 

 On December 18, 2009, Roth physically attacked Arnaout. The Hospital took no 

disciplinary action. On several occasions, Roth and Hanpeter acknowledged that Roth’s 

conduct was disruptive and needed improvement. The Doctors and other physicians 

repeatedly complained to the Hospital about Roth’s conduct, yet the Hospital did not take 

reasonable measures to investigate or control Roth’s conduct. 

 The Hospital expressly acknowledged that the physicians’ ability to deliver quality 

care depends on communication, collaboration, and teamwork. The Hospital undertook 

to adopt, implement, and enforce conduct standards to manage disruptive and 

inappropriate behavior by individual physician members of the medical staff and to 

assure a workplace free from intimidation, disruption, and violence. The Doctors relied 

on the Hospital’s representations that they would enforce these standards, which were 

contained, in part, in the medical staff bylaws. The Hospital had a duty to use reasonable 

care to enforce these standards. Roth’s disruptive conduct violated section 3.8 of the 

medical staff bylaws. The Hospital breached its duty of care by failing to enforce the 

standards against Roth. As a consequence of the Hospital’s breach, the Doctors were 
4 

forced to either resign or endure intolerable working conditions that jeopardized their 

ability to deliver quality patient care. Because no reasonable, similarly situated physician 

would have continued to provide care under these conditions, the Doctors resigned from 

the trauma service. As a proximate cause, the Doctors have suffered damages, including 

loss of income, and suffered emotional distress. The Hospital’s failure to enforce its 

policies against Roth amounted to knowing ratification of his conduct. 

The Hospital’s Special Motion to Strike and Supporting Evidence 

 The Hospital filed an anti-SLAPP motion. The Hospital argued that the antiSLAPP statute applies in this case, because the complaint raises issues related to the 

Hospital’s peer review process, which is considered official proceedings under the antiSLAPP statute. The Doctors’ cause of action for negligence was based on a provision of 

the medical staff bylaws setting a peer review standard and procedure. The Hospital’s 

peer review process encompasses assessment of a physician’s disruptive conduct and the 

Hospital has no control over physicians other than through peer review. The allegations 

of the complaint refer to reports made by Roth in connection with peer review. The 

Doctors, in fact, initiated a request for corrective action under the peer review procedures. 

Issues regarding the Doctors’ status on the medical staff or disruptive behavior by Roth 

were subject to resolution under the bylaws. The complaint in the instant case is an 

improper collateral attack. The Hospital also argued that it was entitled to prosecutorial 

immunity when exercising discretion in acting on complaints of misconduct. 

 Lastly, the Hospital argued the Doctors could not establish a probability of 

prevailing, because: peer review acts are immune from liability, the Hospital has no 

control over physicians other than through peer review, the Doctors failed to exhaust 

administrative remedies, the Hospital is not liable for Roth’s battery of another physician, 

and there were no allegations on behalf of the medical corporations. 

 In support of the anti-SLAPP motion, the Hospital submitted the declaration of its 

chief executive officer, as well as the medical staff bylaws. Article III of the bylaws 
5 

explains the nature and qualifications for membership on the medical staff, including the 

code of conduct for practitioners set forth in section 3.8. The conduct provisions state, as 

a member of the medical staff, “I acknowledge that the ability of practitioners . . . and 

hospital staff employees to jointly deliver high quality health care greatly depends upon 

their ability to communicate well, collaborate effectively, and work as a team. I 

recognize that patients, family members, visitors, colleagues and hospital staff members 

must be treated in a dignified and respectful manner at all times. To this end, 

practitioners on the medical staff of [the Hospital] . . . are expected to conduct themselves 

in a professional manner whenever they are on the grounds of the medical center. I agree 

to adhere to the following guidelines in support of enhancing the delivery of quality 

patient care within [the Hospital]. [¶] 1. Respectful Treatment [¶] I agree to treat 

patients, family members, visitors and members of the health care team of [the Hospital] 

in a respectful and dignified manner at all times. I acknowledge that my language, 

attitude and appearance may impact delivery of quality patient care. I agree to work with 

other members of the health care team to resolve conflicts or address occasional lapses of 

decorum when they arise. . . . [¶] . . . [¶] 3. Behavior [¶] I agree to refrain from any 

behavior that is deemed to be intimidating or harassing . . . . As a member of the Medical 

Staff . . . , by accepting appointment and reappointment to the Medical Staff, I agree to 

abide by these provisions. Every effort will be made to be non-judgmental with 

interviews and provide opportunity to correct the problem prior to corrective action by 

the Medical Staff. Process is defined in the ‘Policy on Joint Investigation of Alleged 

Medical Staff Discrimination, Harassment, or Disruptive Behavior – Investigation and 

Disciplinary Procedures.’ (Added 12/08)” 

 Article VIII of the bylaws provides procedures for corrective action. The criteria 

to initiate routine corrective action under section 8.1-1 is set forth as follows: “An 

investigation or corrective action may be requested, and ultimately initiated, against any 

practitioner with clinical privileges and/or Medical Staff membership who engages in, 

makes, or exhibits acts, statements, demeanor or professional conduct (either within or 

outside of the Hospital) and the same: [¶] (a) is, or is reasonably likely, to be 
6 

detrimental to patient safety or to the delivery of quality patient care within the Hospital; 

to be disruptive to Hospital operations; to constitute fraud or abuse; or, to be, in other 

respects, lower than the standards of the Hospital and the Medical Staff; or, [¶] (b) 

results in the imposition of sanctions by any governmental authority.” 

 A proposal for corrective action or a request for investigation may be initiated 

under section 8.1-2 by the medical executive committee (MEC), or by a written request to 

the MEC from a medical staff officer, the chairman of any clinical department in which 

the practitioner holds membership or clinical privileges, the chairman of any standing 

medical staff committee, the governing body, or the administrator. A written request 

proposing corrective action or investigation must identify the underlying conduct. When 

the MEC receives a proposal for action under section 8.1, the chief of staff notifies the 

administrator and the governing body, keeping them informed of subsequent action. 

 Upon receipt of a proposal for action under section 8.1, the MEC may take action 

or direct that an investigation be undertaken. The MEC must take action within 60 days 

of receiving a proposal for action under section 8.1. The MEC’s options include 

recommending no corrective action, rejection, or modification of the proposed corrective 

action, a letter of admonishment, imposition of probation terms, reduction or revocation 

clinical privileges, and other increasingly severe actions. If the MEC recommends 

corrective action, the recommendation is transmitted to the Board of Trustees (the 

Board). If the MEC’s recommendation is supported by substantial evidence, the 

recommendation must be adopted by the Board as a final action, unless the member 

requests a hearing, as provided for in the bylaws. The MEC may defer any action when 

additional time is needed to investigate or consider the proposal for action. Following a 

deferral, the MEC must take action by the deadline specified in the deferral, or if no 

deadline was specified, then within 45 days of the deferral. Any recommendation by the 

MEC which constitutes grounds for a hearing entitles the affected practitioner to 

procedural rights set forth in the bylaws. 

 Section 8.1-8 specifies procedures to follow based on the substance of the MEC 

recommendation. Under section 8.1-8, subdivision (e), if the MEC fails to act in a 
7 

reasonable period of time on a proposal for corrective action, the governing body may set 

a reasonable deadline for the MEC to take action, and if the MEC does not adhere to the 

deadline, take action on its own initiative and recommend action that does not constitute 

grounds for a hearing. If the MEC fails to investigate or take disciplinary action contrary 

to the weight of the evidence, the Board may direct the MEC to initiate investigation or 

disciplinary action after consultation with the MEC. The Board can initiate corrective 

action if the MEC fails to take action in response to the Board’s direction. 

 The Hospital also submitted its written policy on joint investigation of alleged 

medical staff/professional staff discrimination, harassment, or disruptive behavior—

investigation and disciplinary procedures. The policy states that complaints of 

discrimination, harassment, or disruptive behavior concerning a practitioner are referred 

to the chief medical officer and the chief of staff of the medical staff/professional staff. 

The policy states that upon closure of a review or investigation, the reporting party shall 

be given appropriate notice. Disruptive behavior was defined as “conduct that 

substantially interferes with an individual’s employment or creates an intimidating, 

hostile or offensive work environment.” The policy primarily focuses on discrimination 

and harassment but states that if the initial review shows the practitioner or member of 

the medical/professional staff demonstrated a pattern of disruptive behavior, then a 

formal investigation process will be launched, as described in the policy. 

 The Hospital submitted a letter from Chief Executive Larry Bowe, dated 

August 17, 2009, stating that Hanpeter was taking over as medical director of trauma. 

The Hospital also submitted a letter, dated September 4, 2009, from Samuel, Arnaout, 

and two other physicians to the president of the MEC objecting to the changes in the 

trauma service. They asked to have the trauma service placed on the MEC’s agenda for 

evaluation, rather than allowing the Hospital administration to make a decision on behalf 

of the MEC. 

 On October 26, 2009, Samuel, Arnaout, and two other physicians submitted a 

request for corrective action investigation to the MEC, Bowe, and other hospital officials. 

They requested initiation of a corrective action investigation of Roth pursuant to 
8 

section 8.1-1 and 8.1-2 of the bylaws. The basis for the request was that Roth repeatedly 

engaged in actions detrimental to patient safety and quality of care, and consistently acted 

in a manner disruptive of hospital operations. They accused Roth of exhibiting arrogance 

and disrespect to colleagues. Previous complaints were swept under the rug after a token 

apology from Roth. Roth improperly reviewed patient records and altered patient care 

without the knowledge or approval of the attending physician. The changes were life 

threatening and made without examining the patient. Roth criticized the attending 

physician in the presence of nurses and the patient’s family. Roth exercised clinical 

procedures for which he had not been trained. He refused to assist a patient in respiratory 

distress. He performs unnecessary procedures. These complaints are documented in peer 

review records and warrant an investigation. 

 On April 30, 2010, Arnaout resigned from the trauma service. Samuel resigned on 

May 3, 2010. 

 The Hospital also filed a demurrer to the complaint. 

The Doctors’ Opposition to the Special Motion to Strike and Supporting Evidence 

 The Doctors opposed the anti-SLAPP motion on the ground that the anti-SLAPP 

statute did not apply, because no official proceeding had taken place and their negligence 

claim was based on conduct, not communication. Even if the anti-SLAPP statute applied, 

they asserted they could show a probability of prevailing, because the Hospital 

voluntarily assumed a duty to control disruptive conduct by medical staff members, 

which the Hospital breached by failing to act in light of Roth’s conduct. 

 The Doctors provided a letter from the Hospital to the medical staff distributing a 

standard on disruptive physicians that had been approved by the Hospital’s executive 

council. The Hospital stated, “Disruptive behavior and other inappropriate behavior 

undermine our culture of safety and the performance of the health care team entrusted 

with the care of our patients.” 
9 

 They also provided copies of letters in which physicians had complained to the 

Hospital about Roth’s disruptive behavior. The chairman of the division of orthopedic 

surgery at the Hospital wrote a letter, dated December 5, 2008, with complaints against 

Roth. He accused Roth of ripping orders from a patient’s chart and substituting his own 

orders. He disputed several accusations made by Roth and criticized Roth’s ability to 

perform certain procedures. He stated that patient care was being compromised on a 

daily basis as a result of Roth’s demeaning and disruptive behavior. On December 15, 

2008, Samuel also wrote a letter to the Hospital’s director of human resources seeking 

assistance with Roth’s disruptive behavior. 

 The Doctors submitted Arnaout’s declaration and copies of letters that he had 

written. At a meeting in November 2008, Arnaout witnessed Roth stamp his foot, raise 

his voice, and berate Samuel. Arnaout wrote a letter, dated May 20, 2009, to the 

chairman of the department of surgery, complaining that Roth was criticizing Arnaout’s 

care in meetings and reviews without an objective basis. Arnaout asked the 

administration and medical staff office for a full investigation of Roth’s motives. 

Arnaout received no response. 

 In July 2009, Arnaout complained that Roth had interfered with the care of 

Arnaout’s patient by ordering a test that Arnaout did not think was necessary. Arnaout 

received no response from the Hospital other than Samuel’s response that the Hospital 

would not support curbing Roth’s behavior. 

 On August 31, 2009, Arnaout was in surgery at another hospital when his patient 

at the Hospital suffered respiratory distress. He learned from a third party that Roth 

refused to administer care unless the patient was blue or needed a surgical airway. 

Arnaout wrote a complaint to Samuel as the director of trauma services dated 

September 25, 2009, asking for a discussion of the incident and Arnaout’s concerns at the 

next peer review committee. Arnaout was told that the matter would be handled outside 

of the peer review process, but it was not. 

 On October 26, 2009, Arnaout, Samuel, and two other members of the trauma 

department submitted the request for corrective action described above. The chief of 
10 

staff wrote a letter to Samuel, dated November 2, 2009, in response. The request for an 

investigation had been considered by the MEC at its meeting that day. “The MEC noted 

that your letter raised serious concerns regarding the physician’s quality of care. A 

number of cases referenced in your letter have not been reviewed by any peer review 

committee at [the Hospital] to date. As a result, the MEC voted to table your request for 

an investigation pending the completion of a review of these cases by the Surgery Peer 

Review Committee. After the MEC has received the results from the Surgery Peer 

Review Committee’s review, the MEC will act upon your request.” 

 At a meeting in November 2009, Hanpeter admitted Roth had behavioral issues 

but insisted Roth had made contributions to the department and would be a team player. 

Roth acknowledged his behavior had been inappropriate, apologized, and promised to 

change his behavior. At the end of the meeting, everyone received a copy of a book 

about improving the Hospital culture. 

 On December 19, 2009, a patient arrived at 6:50 p.m. and Arnaout’s shift was 

scheduled to end at 7:00 p.m. Roth arrived for his shift at 7:00 p.m. Arnaout was busy 

with another patient and asked Roth to care for the new patient. Roth exploded, “Dr. 

Arnaout, you have written me up five times in the past few months, five times[, Doc]. 

It’s five minutes to [7:00] and its five minutes on your time. He’s all your[s] buddy.” 

After taking care of both patients, Arnaout crossed paths with Roth at 7:30 p.m. Roth 

complained that Arnaout had written him up five times. Arnaout refused to discuss it and 

walked away. Roth grabbed Arnaout by the shoulder and stopped him. Arnaout accused 

him of assault, and Roth apologized. Arnaout filed a complaint about the incident on 

December 26, 2009, but did not receive a substantive response. The Hospital 

investigated Arnaout’s conduct in connection with the incident and reprimanded him for 

using profanity. 

 On March 1, 2010, the Hospital’s chief of staff sent a letter to Arnaout stating, “As 

you are aware, the Surgery Peer Review Committee was tasked by the [MEC] to review 

cases referenced in your letters, dated October 26, 2009, and December 1, 2009, 

regarding an investigation of Bradley Roth, M.D. The Surgery Peer Review Committee 
11 

completed its thorough review and submitted its findings to the MEC. The MEC has 

determined that no formal investigation, pursuant to the Medical Staff Bylaws, is 

warranted at this time regarding the issues you raised concerning Dr. Roth’s patient 

care.” 

 “With regard to the issues you raised concerning Dr. Roth’s alleged disruptive 

behavior, the MEC has not yet made a determination whether a formal investigation is 

necessary. As a related matter, as you know, [the Hospital] recently appointed a new 

Trauma Director. The MEC hopes this new Trauma Director will work to alleviate the 

inter-personal conflicts you believe exist between members of the Trauma Team, 

including Dr. Roth.” 

 Arnaout was forced to resign from the medical staff on April 30, 2010, because the 

Hospital failed to take any reasonable action in response to his complaints about Roth’s 

disruptive behavior. Roth’s continuing disruptive conduct rendered the Hospital an 

unreasonably difficult workplace, at which patient care was at risk. Arnaout suffered 

financial loss as a result of his resignation, including stipends for being on trauma call 

and referral patients. He never received notice that any adverse action was contemplated 

against his medical staff privileges for which he would have been entitled to a hearing. 

 The Doctors submitted the declaration of Danielle Dabbs, M.D., that Roth was 

hostile and aggressive in meetings. He was hypercritical and behaved inappropriately. 

He interfered with her care of patients by reviewing their charts without authorization and 

making suggestions for their care. He had authorized nurses to discuss patient 

management issues with him, rather than the primary attending physician. She 

complained to the nurse manager and the intensive care unit director about Roth’s 

behavior, but no action was taken. 

 On May 25, 2009, Dabbs wrote a letter to the Hospital requesting clarification of 

Roth’s position as “Trauma ICU Director.” She complained about Roth’s unprofessional 

behavior in meetings. She also complained about an incident in which Roth called to 

make a recommendation about a patient that Dabbs had admitted. Roth had not seen the 

patient but made a care recommendation based on a report from a nurse. He also 
12 

reviewed her patients’ charts and accused her of failing to document them properly. 

Dabbs believed Roth was overstepping his role. She had offered to provide a lecture for 

nurses, but Roth insisted on being the only lecturer. She requested a meeting to discuss 

the issues. 

 The Doctors submitted a declaration of a nurse who had received unwelcome 

personal advances. The nurse complained to the Hospital, but Roth’s advances 

continued. In May 2011, the nurse was forced to take leave due to Roth’s harassment. 

 Samuel submitted his declaration. He was terminated from the position of medical 

director of the trauma department in August 2009. His medical staff privileges were not 

affected. The Hospital operated pursuant to policies, procedures, and standards 

prohibiting disruptive conduct. Roth’s continuing disruptive conduct forced Samuel to 

resign from the Hospital on April 30, 2011. He resigned because Roth’s conduct 

rendered the Hospital an unreasonably difficult place to work, at which he felt patient 

care was always at risk from Roth’s disruptive conduct. He suffered financial loss as a 

result of the resignation. 

 The Doctors also opposed the Hospital’s demurrer. 

Trial Court Proceedings 

 The Hospital filed replies to the oppositions to the anti-SLAPP motion and the 

demurrer. A hearing was held on May 21, 2012. The trial court denied the anti-SLAPP 

motion. The court found the negligence cause of action arose out of the Hospital’s peer 

review proceedings. Therefore, the Hospital met its initial burden of showing the 

complaint arose out of a protected activity. However, the Doctors had shown a 

probability of prevailing. The negligence claim was based on the Hospital’s failure to 

act, not a communication or communicative conduct. The Hospital’s prosecutorial 

immunity argument was based on analogy, and the Hospital failed to show it was 

immune as a matter of law. The Doctors alleged the Hospital affirmatively undertook a 

duty to prevent this type of disruptive conduct. The Hospital failed to show there were 
13 

administrative procedures which the Doctors could have complied with after the Hospital 

decided not to discipline Roth, so there was no failure to exhaust administrative remedies. 

The court also overruled the demurrer. The Hospital filed a timely notice of appeal from 

the order denying the anti-SLAPP motion. 

DISCUSSION 

Analytical Framework 

 The anti-SLAPP statute provides: “A cause of action against a person 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 shall be subject to a special motion to strike, unless the court determines that 

the plaintiff has established that there is a probability that the plaintiff will prevail on the 

claim.” (§ 425.16, subd. (b)(1).) Courts are to construe this statute “broadly” in favor of 

the moving party. (Id., subd. (a).) 

 The trial court conducts a two-step analysis of an anti-SLAPP motion. (Johnson v. 

Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1103.) “‘First, the court decides 

whether the defendant has made a threshold showing that the challenged cause of action 

is one arising from protected activity. . . . If the court finds such a showing has been 

made, it then determines whether the plaintiff has demonstrated a probability of 

prevailing on the claim.’ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 

Cal.4th 53, 67.)” (Johnson, supra, at p. 1103.) 

 To establish the first step, the defendant must show the allegedly wrongful 

conduct was “in furtherance of ” the defendant’s free speech or petition rights and the 

cause of action arose from the protected conduct. (§ 425.16, subd. (b)(1).) The antiSLAPP statute identifies four categories of actions that are “in furtherance of” a 

defendant’s free speech or petition rights. (Id., subd. (e); see City of Cotati v. Cashman 

(2002) 29 Cal.4th 69, 78.) As pertinent to this case, “act in furtherance of a person’s 
14 

right of petition or free speech” includes: “(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, . . . 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).) 

 If the court finds the cause of action arose from protected activity, the burden 

shifts to the plaintiff to show a probability of prevailing on the claim. “[T]o establish a 

probability of prevailing on the claim [citation] . . . 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.’ [Citations.] In deciding the question of potential merit, the trial court 

considers the pleadings and evidentiary submissions of both the plaintiff and the 

defendant [citation]; though the court does not weigh the credibility or comparative 

probative strength of competing evidence, it should grant the motion if, as a matter of 

law, the defendant’s evidence supporting the motion defeats the plaintiff's attempt to 

establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester

(2002) 28 Cal.4th 811, 821.) “‘Only a cause of action that satisfies both prongs of the 

anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even 

minimal merit—is a SLAPP, subject to being stricken under the statute.’ [Citation.]” 

(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) 

 “We review an order granting an anti-SLAPP motion de novo, applying the same 

two-step procedure as the trial court. [Citation.] We look at the pleadings and 

declarations, accepting as true the evidence that favors the plaintiff and evaluating the 

defendant’s evidence ‘“only to determine if it has defeated that submitted by the plaintiff 

as a matter of law.” [Citation.]’ [Citation.] The plaintiff’s cause of action needs to have 

only ‘“minimal merit” [citation]’ to survive an anti-SLAPP motion. [Citation.]” (Cole v. 
15 

Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105.) “If the trial 

court’s decision is correct on any theory applicable to the case, we affirm the order 

regardless of the correctness of the grounds on which the lower court reached its 

conclusion.” (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) 

Gravaman of the Complaint 

 The Hospital contends the anti-SLAPP statute applies to the instant complaint, 

because peer review proceedings are subject to the anti-SLAPP statute, the complaint 

essentially alleges the Hospital failed to discipline a disruptive doctor through the peer 

review process, and some allegations of the complaint refer to statements made in peer 

review proceedings. We conclude the gravamen of the complaint was that the Hospital 

failed to take action to control the behavior of a disruptive doctor, which concerns noncommunicative conduct. Therefore, the anti-SLAPP statute does not apply. 

 To determine whether a claim arises from protected activity, a court must 

“disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or 

gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute 

applies’ and whether the trial court correctly ruled on the anti-SLAPP motion. [Citation.] 

We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injuryproducing conduct . . . that provides the foundation for the claim.’ [Citation.]” (Hylton v. 

Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.) “The anti-SLAPP 

statute’s definitional focus is [on] the defendant’s activity that gives rise to his or her 

asserted liability—and whether that activity constitutes protected speech or petitioning.” 

(Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) 

 “If the core injury-producing conduct by the defendant that allegedly gave rise to 

the plaintiff’s claim is properly described with only collateral or incidental allusions to 

protected activity, then the claim does not arise out of protected speech or petitioning 

activity. [Citation.]” (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 55 

(Young).) “The question should be whether the plaintiff is seeking relief from the 
16 

defendant for its protected communicative acts. [Citation.] . . . ‘“[Y]ou have a right not

to be dragged through the courts because you exercised your constitutional rights.”’ 

[Citation.]” (Ibid.) 

 We recognize that a peer review proceeding is an “official proceeding” for 

purposes of the anti-SLAPP statute. (Young, supra, 210 Cal.App.4th at pp. 57-58.) 

However, the cause of action for negligence in this case does not “arise out of” a peer 

review proceeding or protected activity. (Ibid.) 

 “Hospitals in this state have a dual structure, consisting of an administrative 

governing body, which oversees the operations of the hospital, and a medical staff, which 

provides medical services and is generally responsible for ensuring that its members 

provide adequate medical care to patients at the hospital. In order to practice at a 

hospital, a physician must be granted staff privileges. Because a hospital’s decision to 

deny a physician staff privileges may have a significant effect on a physician’s ability to 

practice medicine, a physician is entitled to certain procedural protections before such 

adverse action may be taken. [Citation.]” (El-Attar v. Hollywood Presbyterian Medical 

Center (2013) 56 Cal.4th 976, 983 (El-Attar).) 

 “[The peer review] statute does not contemplate a strict separation between the 

medical staff and the governing body as a prerequisite for a fair peer review system. . . . 

In the context of physician discipline, where a peer review body, contrary to the weight 

of the evidence, fails to investigate or initiate disciplinary action, the governing body may 

direct the peer review body to do so after consultation with the peer review body ([Bus. 

& Prof. Code,] § 809.05, subd. (b)), and if the peer review body still fails to do so, then 

the governing body itself may take action ([Bus. & Prof. Code,] § 809.05, subd. (c)).” 

(El-Attar, supra, 56 Cal.4th at pp. 992-993.) 

 “In other words, the statute provides that although the governing body must give 

deference to the determinations of the medical staff, it may take unilateral action if 

warranted. This allowance for independent governing board action furthers the ‘primary 

purpose of the peer review process,’ which ‘is to protect the health and welfare of the 

people of California.’ [Citation.] If, for whatever reason, the medical staff of a hospital 
17 

fails to take action against a physician who ‘“provide[s] substandard care or who 

engage[s] in professional misconduct,”’ the governing board of the hospital serves as a 

fail-safe to ensure that such a practitioner is removed from the hospital’s staff. [Citation.] 

The Legislature’s statutory recognition of the governing board’s role reflects the fact that 

the hospital itself is ultimately responsible for the health and safety of the patients it 

serves. [Citations.] ‘A hospital has a duty to ensure the competence of the medical staff 

by appropriately overseeing the peer review process.’ [Citations.]” (El-Attar, supra, 56 

Cal.4th at p. 993.) “A hospital itself may be responsible for negligently failing to ensure 

the competency of its medical staff and the adequacy of medical care rendered to patients 

at its facility. [Citation.]” (Hongsathavij v. Queen of Angels etc. Medical Center (1998) 

62 Cal.App.4th 1123, 1143.) 

 In this case, the gravamen of the complaint is that the Hospital knew about Roth’s 

disruptive behavior and failed to take reasonable measures to control it. Roth’s behavior 

was so disruptive that patient care was jeopardized. He changed orders for patients who 

were not his own, violated confidentiality standards by reviewing the charts of other 

physicians’ patients, and spitefully refused to treat certain patients. The Hospital took 

certain actions in response to the complaints about Roth’s behavior. The Hospital 

replaced the trauma director to alleviate personality conflicts in the department, held a 

meeting to discuss conduct standards and passed out a book. The Hospital reviewed the 

Doctors’ concerns but concluded certain allegations were unsupported and others were 

not ripe for assessment. The Doctors did not believe the Hospital’s actions were 

sufficient under the circumstances, and the Doctors could not continue to work under the 

conditions. The actions the Hospital took or failed to take to control Roth’s behavior 

constituted non-communicative conduct. The complaint does not arise from the 

Hospital’s exercise of its right of petition or free speech. It is not based on a written or 

oral statement made in connection with an issue under consideration or review in a peer 

review proceeding. The references in the complaint to Roth’s statements in peer review 

proceedings were incidental to the cause of action, which arose out of the Hospital’s 

failure to act to ensure the competency of the medical staff. 
18 

DISPOSITION 

 The order denying the anti-SLAPP motion is affirmed. Respondents Christojohn 

Samuel, M.D., Christojohn Samuel, M.D., Inc., Walid Arnaout, M.D., and Walid 

Arnaout, M.D., Inc., are awarded their costs on appeal. 

 KRIEGLER, J. 

We concur: 

 MOSK, Acting P. J. 

 KUMAR, J.*

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.