1

Filed 3/29/24 Kime v. Dignity Health CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

RYAN KIME,

Plaintiff and Appellant,

v.

DIGNITY HEALTH, INC.,

Defendant and Respondent.

 A166748

 (San Francisco County

 Super. Ct. No. CGC20586388)

Dr. Ryan Kime was the subject of a disciplinary proceeding by the 

Medical Board of California, which resulted in a public reprimand. While 

that proceeding was ongoing, Kime applied for privileges in the emergency 

department of two hospitals owned by Dignity Health, Inc. (Dignity). The 

hospitals stopped processing Kime’s application a few days after the effective 

date of the reprimand, and Kime subsequently sued Dignity for injunctive 

relief and damages, alleging that Dignity violated his common law and 

statutory rights by denying his application without offering him a hearing. 

Dignity moved for summary judgment, or in the alternative, summary 

adjudication, arguing among other things that it had established a policy that 

it would not consider applicants with disciplinary histories for emergency 

department privileges, and that no hearing is required when privileges are 

denied because of the implementation of such a policy. Simultaneously, Kime 
2

moved for summary adjudication on the issue of Dignity’s duty to provide 

notice and a hearing after denying his application. 

The trial court granted Dignity’s motion for summary judgment and 

denied as moot Kime’s motion for summary adjudication. Kime now appeals 

from the resulting judgment, and we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case are largely undisputed, although the 

parties disagree as to their legal significance. 

A. Kime’s Background as an Emergency Medicine Physician

Kime is an emergency medicine physician, whose medical staff 

membership and privileges at St. Helena Clearlake Hospital (Clearlake

Hospital) were summarily suspended on August 7, 2015. In September 2015, 

Clearlake Hospital filed a report pursuant to section 805 of the Business and 

Professions Code (the 805 Report) informing the Medical Board of California 

(Medical Board) that Kime had resigned his privileges while under 

investigation for having been summarily suspended.1

Subsequently, in February 2017, the Medical Board filed an accusation 

against Kime alleging that on August 7, 2015, after a forest fire caused a 

power failure at Clearlake Hospital and Kime was informed that the hospital 

1 The Business and Professions Code requires the filing of a report with 

the Medical Board within 15 days of a physician resigning from staff 

membership or privileges “after receiving notice of a pending investigation 

initiated for a medical disciplinary cause or reason.” (Bus. & Prof. Code, 

§ 805, subd. (c).) “ ‘Medical disciplinary cause or reason’ ” is defined to mean 

“that aspect of a [physician’s] competence or professional conduct that is 

reasonably likely to be detrimental to patient safety or to the delivery of 

patient care.” (Id., subd. (a)(6).) The parties agree that Kime was summarily 

suspended from the Clearlake Hospital medical staff for a medical 

disciplinary cause or reason within the meaning of section 805. 
3

would not go “on diversion,” Kime unilaterally diverted a patient who arrived 

at the emergency room without a medical screening, failed to provide care for 

other patients in the emergency department, and “flipped off” the remaining 

emergency department staff at the end of his shift. 

On January 26, 2018, Kime executed a stipulated settlement and 

disciplinary order (settlement) to resolve the accusation, and the California 

Attorney General endorsed the stipulation for consideration by the Medical 

Board. Kime does not dispute that in the settlement he admitted that he 

unilaterally diverted a patient without performing a medical screening and 

that he made an “inappropriate gesture” to a nurse. The Medical Board 

adopted the settlement on March 29, 2018, with an effective date of April 27, 

2018. 

After the incident at Clearlake Hospital, Kime contends he applied 

unsuccessfully for hundreds of other positions, including as a member of the 

medical staff at other hospitals.2 

B. The Emergency Department Services Agreement at Dignity’s

Mercy Hospitals

Meanwhile, Dignity and Valley Emergency Physicians entered into an

Emergency Department Services Agreement (Agreement), effective December 

1, 2017. Under the Agreement, Valley Emergency Physicians became the 

exclusive provider of Emergency Department physician services for two 

Dignity hospitals in Bakersfield: Mercy Hospital and Mercy Southwest 

Hospital (collectively, Mercy). The Agreement refers to Valley Emergency 

2 In a deposition, Kime testified, “Usually, in the screening process, 

they ask for suspensions. So, obviously, I would answer honestly, and they 

would say that would preclude you from this job is typically how it would go.” 
4

Physicians as “Group,” and the physicians who provide Emergency 

Department Services at Mercy as “Group Providers.” 

The parties focus on section 3.13 of the Agreement (section 3.13), which 

provides: “Group represents and warrants that, to the best of Group’s 

knowledge, after reasonable investigation, except as set forth in Exhibit 3.13: 

. . . (b) [no] Group Provider has ever been reprimanded, sanctioned or 

disciplined by any licensing board, certifying authority or medical specialty 

board; . . . (e) no Group Provider’s medical staff membership or clinical 

privileges at any hospital or health care facility have ever been suspended, 

limited or revoked for a medical disciplinary cause or reason.” Exhibit 3.13, 

entitled “Exceptions to Representations and Warranties of Group,” says 

“None.” 

Dignity characterizes section 3.13 as establishing threshold “eligibility 

requirements” under the Agreement, such that physicians whose privileges 

have been suspended for a medical disciplinary cause are ineligible for 

Emergency Department privileges, and Valley Emergency Physicians violates 

the Agreement if it submits applications to Dignity for physicians with 

certain disciplinary histories. 

Kime, on the other hand, characterizes section 3.13 as establishing 

“disclosure requirements” that merely require Valley Emergency Physicians 

to inform Dignity of the existence of Group Providers’ disciplinary histories. 

C. Kime’s Application for Appointment to Mercy’s Staff

On December 14, 2017, after the Medical Board’s accusation against 

Kime had been filed, but before the settlement was executed and the 

accusation was resolved, Valley Emergency Physicians offered Kime a 

position as an emergency room physician at Mercy. The offer was 
5

conditioned upon Kime successfully applying for and being appointed to the 

Mercy medical staff and being granted clinical practice privileges at Mercy. 

Mercy’s Medical Staff Bylaws require a candidate seeking appointment 

to the medical staff to apply to Mercy’s medical staff office. Mercy’s medical 

staff office would determine whether an applicant had submitted all required 

materials, and Mercy’s credential verification office would verify their 

authenticity. Once the required documentation was received and verified, an 

application would be submitted to the credentials committee of Mercy’s 

medical staff for consideration. 

On February 9, 2018, Valley Emergency Physicians submitted Kime’s 

application for staff privileges to Mercy.3 The application required Kime to 

answer certain “attestation questions” and “provide full details” to explain

any “yes” answers. Kime answered “yes” to the question whether his staff 

privileges had ever been suspended for “possible incompetence or improper 

professional conduct, or breach of contract,” and to the question whether his 

professional liability insurance had been terminated or denied, but he did not 

provide the required written explanations. 

In early March, a credentialing coordinator at Mercy wrote to Kime 

requesting he provide explanations for the two “yes” answers. Supplemental 

materials from Kime were received at Mercy’s medical staff office by April 20. 

Those materials included explanations that referenced a public letter of 

reprimand.4 On April 27, the manager of Mercy’s medical staff office learned 

that the public reprimand of Kime had been published. 

3 Subsequent dates are in 2018 unless otherwise stated.

4 In the supplemental materials, Kime referenced the accusation and 

stated that the “Medical Board’s executive director has agreed to resolve its 

[a]ccusation with a public letter of reprimand that mentions an inappropriate 

gesture I made.” Kime did not disclose that the letter of reprimand also 
6

Apparently, Kime’s application was scheduled to be submitted to 

Mercy’s credentials committee in early May. But on April 30, Mercy’s chief 

medical officer, Joseph Smith, gave instructions that Mercy should stop 

processing Kime’s application, and the medical staff office manager informed 

Valley Emergency Physicians of Smith’s instructions, stating that the 

decision to stop processing the file “is based off of the multiple incidents of 

unprofessional behavior, which has been discovered during the verification 

process, along with the most recent Disciplinary Order and Public Reprimand 

by the Medical Board of CA.”5 So, on April 30, Mercy stopped processing 

Kime’s application, and the application was never sent to the credentialing 

committee for review. Kime was not offered a hearing, and he never received 

medical staff privileges at Mercy.

D. Proceedings in the Trial Court

Kime then sued Dignity, alleging that he should have been offered a 

hearing and Dignity’s failure to do so violated his common law right to fair 

procedure and his statutory procedural rights under provisions of the 

states that after a “patient had come to the Emergency Department on a 

gurney, and without performing a medical screening examination, [Kime] 

advised the paramedics that the hospital was on diversionary status and 

[Kime] directed that the patient be transported to another hospital.” 

5 In his opening brief on appeal, Kime acknowledges that by 

“unprofessional behavior” the office manager was referring to Kime’s 

“ ‘abandon[ing] a patient,’ being summarily suspended, and making an 

obscene gesture to another caregiver at Clearlake [Hospital],” all of which 

were described in the 805 Report and subsequent settlement. Valley 

Emergency Physicians did not attempt to persuade Mercy to overturn its 

decision to stop processing Kime’s application. Instead, it withdrew Kime’s 

application from consideration for medical staff privileges. 
7

Business and Professions Code.

6 He sought an injunction requiring Dignity

to grant his application for staff privileges, as well as compensatory and 

punitive damages, attorney fees, and costs. 

Dignity eventually moved for summary judgment or alternatively 

summary adjudication. At the same time, Kime moved for summary 

adjudication as to whether Dignity had the duty to provide him notice and a 

hearing after denying his application. The trial court granted Dignity’s 

motion, and took Kime’s motion off calendar as moot. Kime timely appealed. 

DISCUSSION

We first address whether the trial court erred in granting Dignity’s

motion for summary judgment. Because we find no error, we do not reach the 

merits of Kime’s motion for summary adjudication.

A. Applicable Law

California law recognizes a physician’s “common law right to fair 

procedure where [a] hospital’s act significantly impairs the physician’s 

practice of medicine.” (Economy v. Sutter East Bay Hospitals (2019) 31 

Cal.App.5th 1147, 1156, 1157 (Economy).) The common law doctrine of fair 

procedure “prevent[s] the arbitrary expulsion or exclusion of individuals from 

private organizations that ‘possess substantial power either to thwart an 

individual’s pursuit of a lawful trade or profession, or to control the terms 

and conditions under which it is practiced.’ ” (Boermeester v. Carry (2023) 15 

Cal.5th 72, 87-88.) 

Common law fair procedure rights do not apply, and a physician has no 

right to a hearing, if the physician’s privileges are denied or curtailed “as a 

result of administrative/quasi-legislative decisions by the hospital, rather 

6 All statutory references are to the Business and Professions Code 

unless otherwise stated.
8

than adjudicatory/quasi-judicial decisions about a physician’s competency.” 

(Economy, supra, 31 Cal.App.5th at p. 1160.) “A decision is considered quasilegislative if it is one of general application intended to address an 

administrative problem as a whole and not directed at specific individuals.” 

(Major v. Memorial Hospitals Assn. (1999) 71 Cal.App.4th 1380, 1398 

(Major).) A quasi-legislative action is the result “of the implementation of a 

‘policy’ of the hospital,” as opposed to an action “on the ground the physician 

has not demonstrated an ability to comply with established standards.” (Hay 

v. Scripps Memorial Hospital (1986) 183 Cal.App.3d 753, 756, 758 (Hay) 

[upholding hospital’s policy decision to require a residency in obstetrics and 

gynecology as a prerequisite to privileges to perform certain procedures].)

The common law right to fair procedure exists alongside a statutory 

right set forth in the Business and Professions Code, which provides that a 

physician “who is the subject of a final proposed action of a peer review body 

for which a report is required to be filed under Section 805” is entitled to 

written notice of the final proposed action and the right to request a hearing. 

(§ 809.1, subds. (a), (b).) 

Under the statutory scheme, a hospital’s “medical or professional staff”

is a “peer review body.” (§ 805, subd. (a)(1)(B)(i); Health & Saf. Code, § 1250, 

subd. (a).) A section 805 report must be filed if, as the result of an action of a 

peer review body, a physician’s “application for staff privileges . . . is denied 

or rejected for a medical disciplinary cause or reason.” (§ 805, subd. (b)(1).) 

Our Supreme Court has explained the relationship between the 

common law and statutory rights: “The 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 in 1989.” (El-Attar v. 

Hollywood Presbyterian Medical Center (2013) 56 Cal.4th 976, 988.) The 
9

legislation “established the minimum procedures that hospitals must employ 

in certain peer review proceedings.” (Ibid.) The Supreme Court further 

explained that “[t]he ‘primary purpose of the peer review process’ codified in 

this legislation is ‘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 that an additional purpose of the legislation is “ ‘to protect 

competent practitioners from being barred from practice for arbitrary or 

discriminatory reasons.’ ”

7 (Ibid.)

B. Standard of Review

Our standard of review is well-established. “Summary judgment is 

proper ‘if all the papers submitted show that there is no triable issue as to 

any material fact and that the moving party is entitled to a judgment as a 

matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) The moving party has the 

burden of persuasion that there is no triable issue of material fact and that 

7 The day before oral argument was held in this matter, Dignity’s 

counsel notified us of a case that had been published that same day: Asiryan 

v. Medical Staff of Glendale Adventist Medical Center (Feb. 29, 2024) __ 

Cal.App.5th __, 2024 WL 1171035 (Asiryan). In Asiryan, the Court of Appeal 

held that “[i]n the hospital peer review context, the common law of fair 

procedure does not require additional protections beyond those in the 

California peer review statute,” based on its conclusion that provisions in the 

Business and Professions Code constitute “general and comprehensive 

legislation, ‘ “indicat[ing] a legislative intent that the statute should totally 

supersede and replace the common law dealing with the subject matter.” ’ ” 

(Id. at *7-8, italics omitted.) At oral argument, the parties expressed their 

views as to how Asiryan might apply to the facts of this case, but agreed that 

all the briefing in this case, in the trial court and on appeal, assumed that 

even in the context of hospital peer review, the common law right existed 

alongside the statutory right. Accordingly, we do not further address the 

holding of Asiryan. Assuming the common law of fair procedure applies in 

this case, we find it was not violated. 
10

the party is entitled to a judgment as a matter of law. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850.) In ruling on the motion, the court 

must draw all reasonable inferences from the evidence in the light most 

favorable to the opposing party. (Id. at p. 843.) We review an order granting 

summary judgment de novo.” (California Taxpayers Action Network v. Taber 

Construction, Inc. (2019) 42 Cal.App.5th 824, 833.)

C. Analysis

In its motion for summary judgment, Dignity argued that under section 

3.13 of its Agreement with Valley Emergency Physicians, Kime was not 

eligible for emergency department privileges at Mercy because of his 

disciplinary history. Dignity further argued that Kime was not entitled to a 

hearing because the eligibility requirements set forth in the Agreement were 

quasi-legislative and because the decision to stop processing Kime’s 

application was not reportable to the Medical Board under section 805. Kime 

argued that section 3.13 of the Agreement did not establish eligibility 

requirements; instead, he argued, it “only addresse[d] whether [Valley 

Emergency Physicians] had ‘knowledge’ of whether Group Physicians had 

suffered from adverse actions,” and provided only that if Valley Physicians 

had such knowledge and failed to disclose it, Dignity could terminate the 

Agreement. Kime argued that he was entitled to a hearing under the 

common law and the statute because the decision to exclude him was 

“discretionary” and “quasi-judicial.”

1. The Agreement Establishes Eligibility Requirements.

Under section 3.13 of the Agreement, Valley Emergency Physicians 

“represents and warrants”—that is, promises—that none of its Group 

Providers “has ever been reprimanded . . . by any licensing board,” or had 

staff privileges “suspended, limited or revoked for a medical disciplinary 
11

cause or reason.” We conclude as a matter of contract interpretation that 

these representations and warranties are eligibility requirements, and that 

Kime’s undisputed history rendered him ineligible to be a Group Provider 

and thus ineligible to provide emergency department services at Mercy under 

the Agreement. 

Kime’s argument that the representations and warranties establish 

nothing more than disclosure requirements is unpersuasive. It rests on his 

observation that the representations and warranties provide for the 

possibility of exceptions as set forth in Exhibit 3.13, entitled “Exceptions to 

Representations and Warranties of Group.” But the possibility of exceptions 

is foreclosed by the language of the exhibit itself, which states, “None” in 

boldface type.8 

On appeal, Kime argues for the first time that the Agreement is 

ambiguous. This argument has been forfeited and we do not address it. 

(Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 273-274 [claim of 

contract ambiguity forfeited by plaintiff’s failure to raise it in the trial court 

in opposition to summary judgment].) 

2. The Eligibility Requirements Are Quasi-Legislative.

There is no dispute that the Agreement establishing Valley Emergency 

Physicians as the exclusive provider of Emergency Department physician 

services for Mercy reflects Mercy’s decision to operate its Emergency 

Department as a “closed” department. (See Mateo-Woodburn v. Fresno 

Community Hospital & Medical Center (1990) 221 Cal.App.3d 1169, 1175 

(Mateo-Woodburn) [hospital changed system of anesthesia services from 

8 In 2022, the medical director of Valley Emergency Physicians testified 

at deposition, in response to questions from Kime’s counsel, that no 

exceptions had ever been made to the requirements of section 3.13. 
12

rotating “ ‘open staff’ ” to “ ‘closed’ ” system in which hospital contracted with 

an anesthesiologist to deliver services through arrangements with 

subcontracting anesthesiologists].) 

A hospital’s policy decision to close a department is a decision to a

adopt a general rule governing the operation of the hospital, and as such lies 

within the hospital’s quasi-legislative authority. (Mateo-Woodburn, supra, 

221 Cal.App.3d at p. 1183.) A quasi-legislative decision is “not directed 

specifically toward the exclusion of particular physicians,” but is instead 

“undertaken as a general effort to address an administrative problem.” (Id.

at p. 1184.) Courts view the contracting procedure by which a closed 

department is effected as “an integral part of the quasi-legislative decision to 

close the department.” (Id. at p. 1187.) And quasi-legislative actions by 

hospitals are reviewed deferentially: courts will not interfere with the terms 

of contracts governing the operation of closed departments “unless those 

terms bear no rational relationship to the objects to be accomplished, i.e., if

they are substantially irrational or they illegally discriminate among . . . 

doctors.” (Ibid.) 

Here, the exclusive services Agreement between Dignity and Valley 

Emergency Physicians recites that Mercy had determined that the contract 

was “an appropriate and effective means to” accomplish several goals, 

including facilitating the administration of the emergency department, 

ensuring that emergency services were available seven days a week, 24 hours 

a day, so as to “reduc[e] unnecessary delays in providing such services to 

Hospital patients,” and “[r]educ[ing] disruptions in Hospital operations and 

relations between Hospital administration and the Medical Staff and among 

members of the Medical Staff.” 
13

Dignity argues that the decision to enter the Agreement with Valley 

Emergency Physicians was a quasi-legislative decision made to address 

issues related to Mercy’s operation and administration, as evidenced by the 

Agreement’s recitals, and that the eligibility requirements are quasilegislative because they are part of the Agreement and apply to all Valley 

Emergency Physicians providers. (Major, supra, 71 Cal.App.4th at p. 1398; 

Hay, supra, 183 Cal.App.3d at p. 759.) 

Kime has not come forward with any evidence to the contrary, but in 

his opening brief he asserts several arguments to support his claim that 

Dignity failed to show that the Agreement imposed quasi-legislative 

eligibility requirements applicable to Mercy’s emergency department. Only

two of these arguments are properly before us. The first is Kime’s argument

that no appellate court has held that a rule excluding a physician from 

working at a hospital due to a disciplinary history is a quasi-legislative 

policy. The argument is unpersuasive, because the mere fact that no court 

has had occasion to determine this precise issue does not mean that the

adoption of such a rule is necessarily not quasi-legislative. 

The second is his argument that it would be a violation of public policy 

for a quasi-legislative rule to bar a physician from medical staff privileges 

based solely on the physician’s disciplinary history because that would 

contravene the Legislature’s “decision to codify physicians’ right to fair 

procedures following the denial of privileges.” The statutory right to a 

hearing, however, exists only when a decision on privileges is made by a peer 

review body, and only when the decision is reportable to the Medical Board 

because it is based on “ ‘[m]edical disciplinary cause or reason,’ ” defined as 

an “aspect of a [physician’s] competence or professional conduct . . . is 

reasonably likely to be detrimental to patient safety or to the delivery of 
14

patient care.” (§ 805, subd. (a)(6); see § 809.1 [right to hearing to contest 

decision or recommendation made by peer review body “after informal 

investigatory activity or prehearing meetings” if a report must be filed under 

section 805]; see § 805, subd. (b)(1) [report required if peer review body 

rejects application for staff privileges “for a medical disciplinary cause or 

reason”].) 

Dignity’s decision to deny privileges to physicians with disciplinary 

histories, however, does not require reports to the Medical Board under 

section 805. The denial of Kime’s application did not result from any 

“adjudicatory/quasi-judicial decisions” by Mercy “about [Kime’s] competency” 

or professional conduct. (Economy, supra, 31 Cal.App.5th at p. 1160.) It 

resulted from information about Kime’s suspension and the public reprimand 

issued in connection with the already-adjudicated Clearlake Hospital 

incident that Mercy discovered during its verification process. The fact that 

Kime’s disciplinary history—that is, his suspension and reprimand, which led 

Mercy to deny his application—arose from actions taken against Kime by 

Clearlake Hospital for a “[m]edical disciplinary cause or reason” as defined in 

section 805, subdivision (a)(6) does not mean that Mercy’s action was taken 

for a “[m]edical disciplinary cause or reason” as defined in section 805. 

Unlike Clearlake Hospital, Mercy never evaluated Kime’s competency 

or conduct as it pertained to his suspension at Clearlake Hospital, or as it 

pertained to patient care at Mercy. Moreover, the “basic purpose” for filing 

section 805 reports, which is “to notify [the Medical Board] of events which 

might warrant the investigation of a licensed physician” would not be served 

by Mercy’s filing a report about its rejection of Kime’s application. (Dorn v. 

Mendelzon (1987) 196 Cal.App.3d 933, 942; see also Stiger v. Flippin (2011) 

201 Cal.App.4th 646, 656 [filing of section 805 reports is “essential to . . . the 
15

[Medical] Board’s ability to carry out its ‘highest priority’ of exercising 

disciplinary authority to protect the public from incompetent, impaired, or 

unscrupulous physicians”].) A section 805 report must include “a description 

of the facts and circumstances of the medical disciplinary cause or reason.” 

(§ 805, subd. (f)(2).) The facts and circumstances of Kime’s actions at 

Clearlake Hospital had already been reported to the Medical Board, and 

Mercy had nothing to add about those actions. We fail to see what purpose 

would be served by requiring Dignity, and all the other hospitals that may 

have refused privileges to Kime because of the Clearlake Hospital 

suspension, to file reports informing the Medical Board that Kime had been 

denied privileges because of that suspension (which was the subject of the

805 Report) and the Medical Board’s subsequent reprimand. In short, Kime 

has not persuaded us that public policy is violated by an eligibility 

requirement that bars a physician from staff privileges because of the 

physician’s disciplinary history. 

Kime’s other arguments on this issue of whether the eligibility 

requirements are quasi-legislative were not raised below, but are made the 

first time on appeal. Kime argues that the requirements set forth in the 

Agreement are not quasi-legislative because there is no evidence that the 

hospital’s board approved them; because there is no evidence as to “why 

[Dignity] supposedly banned physicians with disciplinary histories from 

working at Mercy to address administrative problems”; because they are not 

rules of general application to address administrative problems but instead 

“target” a “disfavored group of physicians based upon their alleged 

competence”; and because it is arbitrary and discriminatory to “ban all 

physicians for merely having” disciplinary histories, which might be based on 

reasons such as an illness affecting competence, failure to renew a fictitious 
16

business permit, or pay taxes or pay child support. Because these arguments 

were not raised in Kime’s opposition to Dignity’s motion below, they have 

been forfeited and we need not, and do not, address them. (DiCola v. White 

Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676-677 

[arguments and theories not raised in the trial court in opposition to 

summary judgment are forfeited, “including assertions as to deficiencies in 

defendants’ evidence”]; see also Wisner v. Dignity Health (2022) 85 

Cal.App.5th 35, 44-45 [appellate court need not consider argument raised for 

the first time on appeal, even when argument presents questions of law on 

undisputed facts].)

In opposing summary judgment in the trial court, Kime’s primary 

response to Dignity’s claim that its eligibility requirements were quasilegislative was to argue that the denial of his application was “quasi-judicial” 

because it was “clearly aimed at [him] individually.” He argued that because 

the Agreement between Mercy and Valley Emergency Physicians “clearly 

indicates [that] exceptions to the warranties would be made on a case-by-case 

basis,” the decision to not make an exception in his case was “discretionary 

decision-making [that] is judicial in character.” This argument rests on an 

interpretation of the Agreement that we have rejected. 

Kime also argued below that Dignity’s rule was not quasi-legislative 

because it was “discretionary.” This argument rested on a false premise: a 

hypothetical “broadly-worded warrant[y] regarding disciplinary history or 

‘unprofessional behavior,’ ” which, Kime argued, would allow a hospital to 

arbitrarily “bar one physician who had been allegedly ‘unprofessional,’ while 

permitting another physician with such a history to be admitted.” But the 

warranty at issue here says nothing about “unprofessional behavior.” To the 

contrary, section 3.13 addresses only objective criteria: Has a physician’s 
17

license to practice medicine been suspended? Has a physician ever been 

reprimanded, sanctioned, or disciplined by any licensing board? Has a 

physicians’ staff privileges at any hospital ever been suspended for a medical 

disciplinary cause or reason? The application of the warranties here does not 

require any discretionary determination. Just as the application of the 

challenged policy in Hay (whether a physician had completed a residency in a 

particular field) did not require the exercise of any discretion (Hay, supra, 

183 Cal.App.3d at p. 756), so too here. 

In sum, we conclude that Dignity met its burden to come forward with 

evidence—in the form of its contract with Valley Emergency Physicians—that 

the eligibility requirements are quasi-legislative. Kime, on the other hand,

has failed to come forward with evidence to create any triable issue of fact as 

to the status of the requirements as quasi-legislative and has failed to show 

that the eligibility requirements cannot be quasi-legislative as a matter of 

law. 

3. Kime Had No Right to a Hearing.

Kime also argues that even if the eligibility requirements are quasilegislative, he is entitled to a hearing, and Dignity is not entitled to summary 

judgment because Dignity failed to prove that his application for privileges 

was denied because he failed to meet the eligibility requirements. We are not

persuaded. As Kime admits, his application was denied because of the public

reprimand and the conduct that was the subject of the 805 Report filed by 

Clearlake Hospital about Kime’s resignation while under investigation after 

a summary suspension. 

There is no genuine dispute that Kime—whose staff privileges at 

Clearlake Hospital had been suspended for a “ ‘[m]edical disciplinary cause or 

reason’ ” (§ 805, subd. (a)(6)), and who had been reprimanded by the Medical 
18

Board, effective April 27, 2018—did not meet the quasi-legislative eligibility 

requirements for providing emergency services at Mercy, as set forth in 

section 3.13 of the Agreement. Because Kime did not meet those 

requirements, he had no common law right to a hearing when Mercy stopped 

processing his application for privileges. 

Nor did Kime have any right to a hearing under section 809.1. Kime 

argues that Mercy is a “peer review body” under section 805, subdivision 

(a)(1)(B); that Mercy rejected his application because of his alleged conduct at 

Clearlake, which, as shown by the existence of the 805 Report, qualified as a 

“medical disciplinary cause or reason”; and that therefore Mercy rejected his 

application for a medical disciplinary cause or reason, necessitating the filing 

of an additional section 805 report. (See § 809.1, subds. (a), (b)(3) [right to 

hearing for physician who is the subject of action by a peer review body for 

which a section 805 report must be filed].) Dignity argues that no peer 

review body acted on Kime’s application and that in any event the rejection 

did not require the filing of a section 805 report because the rejection was 

based on Kime’s failure to meet Mercy’s threshold eligibility requirements

(which apply generally to all emergency department physicians), rather than 

particular concerns about Kime’s “competence or professional conduct that is 

reasonably likely to be detrimental to patient safety or to the delivery of 

patient care.” (§ 805, subd. (a)(6) [defining “ ‘[m]edical disciplinary cause or 

reason’ ”].) 

Regardless of whether the decision to stop processing his application, 

effectively denying Kime’s application, was made by a peer review body (an 

issue we need not reach), we conclude that the decision did not require the 

filing of a report under section 805 for the reasons we outlined above in our 

discussion of Kime’s argument that the eligibility requirement violated public 
19

policy by undermining statutory hearing rights. Mercy’s action in denying 

Kime’s application, which was based on Kime’s disciplinary history that 

resulted from his conduct at a different hospital, did not require the filing of a 

section 805 report. 

We find it instructive to consider cases in which courts have found that 

a physician was entitled to a hearing under section 809.1 because of action 

taken for a medical disciplinary cause or reason: the facts of those cases are 

unlike the facts here. (See, e.g., Alaama v. Presbyterian Intercommunity 

Hospital, Inc. (2019) 40 Cal.App.5th 55, 66 [terminated physician’s “ ‘fail[ure] 

to address the safety concerns and patient care needs expressed by . . . the 

operating room staff,’ ” and “inhibiting the hospital staff from providing a bed 

for a vomiting patient” is conduct that constitutes a “ ‘medical disciplinary 

cause or reason’ ” under section 805 and triggers the section 805 reporting 

requirement]; Economy, supra, 31 Cal.App.5th at pp. 1152, 1155, 1157 

[anesthesiologist’s suspension and termination were based on a “medical 

disciplinary cause or reason” under section 805 where plaintiff’s 

documentation of pharmaceutical use at hospital was “ ‘completely 

unacceptable for this doctor’ ” after extensive training and “hospital was ‘not 

comfortable with the quality of care provided by [plaintiff] and cannot 

approve anesthesia coverage schedules containing’ him”].) Kime does not cite 

any cases in which an action like the one taken by Mercy, which was based 

on his documented disciplinary history with Clearlake Hospital and the 

Medical Board, gave rise to statutory hearing rights. Just as Kime had no 

right to a hearing under the common law, he had no right to request a 

hearing under section 809.1, subdivision (b). 

DISPOSITION

The judgment is affirmed. Dignity shall recover its costs on appeal.
20

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Mayfield, J.*

A166748, Kime v. Dignity Health, Inc.

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.