Filed 8/23/22 Bonni v. St. Joseph Health System CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

ARAM BONNI,

 Plaintiff and Appellant,

v.

ST. JOSEPH HEALTH SYSTEM et al.,

 Defendants and Respondents.

 G052367

 (Super. Ct. No. 30-2014-00758655)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Andrew P. 

Banks, Judge. Reversed and remanded as directed.

Greene, Broillet &Wheeler, Mark T. Quigley, Scott H. Carr, Christian T.F. 

Nickerson; Esner, Change & Boyer, Stuart B. Esner and Joseph Persoff for Plaintiff and 

Appellant.

ArentFox Schiff, Lowell Brown, Debra J. Albin-Riley and Diane Roldan 

for Defendants and Respondents.

* * *
2

Plaintiff Aram Bonni is a surgeon. He sued his employers, defendants 

Mission Hospital Regional Medical Center and St. Joseph Hospital of Orange, as well 

several other related entities and physicians (collectively, the Hospitals) for retaliation 

under Health and Safety Code section 1278.5. Bonni alleged he made whistleblower 

complaints, which caused the Hospitals to retaliate against him by, among other things, 

suspending his medical staff privileges and initiating peer review proceedings to evaluate 

his privileges.

In response, the Hospitals filed an anti-SLAPP motion under Code of Civil 

Procedure section 425.16.

1

 They argued Bonni’s retaliation cause of action arose from 

the peer review proceedings, which were protected activity, and that his claims had no 

merit. The trial court agreed and granted the motion in its entirety. Bonni appealed. 

This court reversed, finding Bonni’s retaliation claim did not arise from protected 

activity. Our Supreme Court then granted review. It determined Bonni’s retaliation 

cause of action was composed of 19 distinct retaliation claims. Of these claims, it found 

eight arose from protected activity while the remainder did not. It remanded the matter 

back to this court to determine whether Bonni has shown a probability of prevailing on 

these eight claims.

On remand, we conclude Bonni has not met the requisite burden because 

the eight claims at issue are all precluded by the litigation privilege. Based on this 

finding and our Supreme Court’s ruling, we reverse the trial court’s order granting the 

Hospitals’ anti-SLAPP motion in its entirety. We direct the court on remand to enter an 

order granting the motion as to the eight claims at issue and denying it as to the 

remaining retaliation claims.

1

 “SLAPP” is short for “strategic lawsuit against public participation.” (Equilon 

Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 57.) All further undesignated 

statutory references are to the Code of Civil Procedure.
3

I

FACTS AND PROCEDURAL HISTORY

A. Factual Background

We start with our Supreme Court’s recitation of the facts set forth in Bonni 

v. St. Joseph Health System (2021) 11 Cal.5th 995 (Bonni).

“Aram Bonni, M.D., is a surgeon specializing in obstetrics and gynecology 

who began practicing in 1998. He received staff privileges at defendant Mission Hospital 

Regional Medical Center (Mission) in 2002 and at an affiliated hospital, defendant St. 

Joseph Hospital of Orange (St. Joseph), in 2010. Bonni would face peer review 

proceedings at both hospitals, which would ultimately lead to a settlement with St. 

Joseph’s [(the St. Joseph settlement)] wherein Bonni agreed to resign and to a decision 

terminating Bonni’s staff privileges at Mission.

“The proceedings at St. Joseph’s began not long after Bonni received staff 

privileges in 2010. That same year, Bonni performed a surgery proctored and assisted by 

the hospital’s chief of obstetrics and gynecology, one of the named defendants. Like 

several of Bonni’s surgeries, the surgery involved use of a robotic assistant to supply 

three-dimensional imaging and cut and cauterize tissue. On this occasion, the robot’s 

camera provided only two-dimensional imaging instead of three, and Bonni complained 

to the assisting doctor about the malfunction. The surgery resulted in patient

complications. Over the next few weeks, Bonni performed two more surgeries in which 

similar problems occurred. Again the patients suffered complications; again Bonni raised 

concerns about the performance of the robotic assistant.

“After the third surgery, Bonni was advised that St. Joseph was summarily 

suspending his staff privileges. The subsequent written notice from St. Joseph’s chief of 

staff — one of the defendants here — asserted that in light of ‘serious and avoidable 

injuries to patients’ in the three cases, suspension was necessary to avoid ‘imminent 

danger’ to St. Joseph’s patients. (See Bus. & Prof. Code, § 809.5, subd. (a).)
4

“As permitted by the hospital staff bylaws, Bonni sought an informal 

interview with the hospital’s medical executive committee. After the interview, the 

medical executive committee elected to continue the suspension and recommended 

termination of Bonni’s privileges. Based on the length of the suspension, St. Joseph was 

required to, and did, report its disciplinary action to the Medical Board of California and 

the National Practitioner Data Bank. (See Bus. & Prof. Code, § 805, subd. (e); 42 U.S.C. 

§ 11133(a)(1).)

“Bonni challenged the suspension and termination recommendation and 

requested a formal hearing before a hospital hearing committee composed of members of 

the hospital staff. After a lengthy series of evidentiary hearings, the hearing committee 

determined that the medical executive committee had sustained its burden on three of 18 

charges against Bonni but had not shown by a preponderance of the evidence that either 

the summary suspension or the termination recommendation was warranted.

“The medical executive committee requested an administrative appeal, 

whereupon the parties settled. The committee dropped its appeal, Bonni agreed to resign 

and release the hospital and its staff from any claims, and the parties agreed on the 

language to be used in the required further reports to the Medical Board of California and 

National Practitioner Data Bank concerning the disciplinary measures taken against 

Bonni. (See Bus. & Prof. Code, § 805, subd. (e); 42 U.S.C. § 11133(a)(1).)

“In the meantime, a similar story was unfolding at Mission. In October 

2009, Bonni began to voice concerns about robot-assisted surgeries at Mission. In 

December, Bonni performed one such surgery. According to Bonni, the robot’s camera, 

tissue-cutting scissors, and cauterizing tool all malfunctioned. The patient experienced 

complications.

“In the wake of that surgery, Mission initiated review of Bonni’s 

performance over the preceding five years. After an investigation, a peer review 

committee recommended that Bonni’s privileges be suspended pending further training in 
5

robotic procedures, and Mission’s chief of staff, a defendant here, imposed a summary 

suspension.

“While the suspension was under review, Bonni provided Mission’s 

medical executive committee previous communications about robotic-surgery issues. 

Apparently unmoved, the committee voted to continue the suspension until Bonni 

completed additional training. As with the St. Joseph suspension, the length of the 

suspension triggered a duty to file reports with the Medical Board of California and the 

National Practitioner Data Bank.

“At the same time, Bonni’s privileges were set to lapse, and he submitted 

an application for reappointment. (See Cal. Code Regs., tit. 22, § 70701, subd. (a)(7) 

[physicians must seek reappointment at least once every two years].) Mission’s medical 

executive committee recommended denial of the application.

“Bonni invoked his right to a hearing before Mission’s judicial review 

committee, a panel of five doctors. The judicial review committee considered the 

reasonableness of Bonni’s suspension but did not directly address his reappointment. In 

support of suspension, Mission’s medical executive committee submitted approximately 

125 charges arising from 19 cases at Mission and, on the ground that they likewise 

demonstrated lapses in skill or judgment, the three problematic 2010 surgeries at its 

affiliated hospital, St. Joseph. After considering extensive testimony, the committee 

unanimously concluded that the original summary suspension was justified, but by a 

divided vote concluded continuation of the suspension was no longer warranted. The 

committee found eight of the 125 charges substantiated. The eight sustained charges 

related principally to documentation and surgery scheduling issues; according to the final 

report, ‘none resulted in poor patient outcomes related to issues raised in these charges.’

“Both sides appealed to Mission’s appellate committee. The appellate 

committee concluded that the initial suspension was warranted at the time; that whether 

continuation of the suspension was still warranted was a matter outside the jurisdiction of 
6

the judicial review committee and appellate committee [citation]; and, finally, that the 

denial of Bonni’s reappointment application was reasonable. The appellate committee 

recommended that Mission’s board of trustees find the summary suspension warranted 

and deny the pending application for reappointment. The board of trustees adopted the 

committee’s recommendations and denied Bonni renewal of his staff privileges.” (Bonni, 

supra, 11 Cal.5th at pp. 1004–1007.)

B. Procedural History

“Bonni sued St. Joseph, Mission, various affiliated entities, and eight 

individual doctors involved in the disciplinary process [(defined above as the Hospitals)]. 

Bonni’s first cause of action alleged that the Hospitals unlawfully retaliated against him 

for raising patient safety concerns 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. 

(See Health & Saf. Code, § 1278.5; Bus. & Prof. Code, §§ 510, 2056.) Bonni also 

alleged that St. Joseph had retaliated against him by fraudulently inducing him to enter 

into [the St. Joseph settlement] and then breaching that agreement. Based on the same 

conduct, Bonni also brought causes of action against St. Joseph for breach of contract and 

rescission of the [St. Joseph settlement].

“The Hospitals filed an anti-SLAPP motion seeking to strike the retaliation 

cause of action. [Citation.] They argued that this cause of action arose from medical 

peer review proceedings; that medical peer review proceedings are protected activity . . . 

[citation]; and thus that Bonni must demonstrate some merit to his claim in order to 

proceed [citation]. They further argued that Bonni could not establish any merit because 

the disciplinary actions were taken for nonretaliatory reasons related to Bonni’s medical 

competence and because Bonni had signed a release as part of the [St. Joseph settlement]

relinquishing any right to sue St. Joseph and its committees and staff.
7

“The trial court granted the Hospitals’ motion. As a threshold matter, the 

trial court agreed with the Hospitals that ‘[t]he gravamen of the claim is based on 

defendants’ protected peer review activities,’ so the anti-SLAPP statute applied to the 

retaliation cause of action . . . . The trial court then concluded the cause of action lacked 

the requisite merit to proceed. It found, as to St. Joseph and related defendants, that 

Bonni could not show any specific complaints he made about patient care, and as to 

Mission and related defendants, that Bonni had raised safety concerns, but had failed to 

overcome Mission’s evidence that his performance, not these complaints, was the true 

reason for any adverse actions.” (Bonni, supra, 11 Cal.5th at pp. 1007-1008, fn. omitted.)

Bonni appealed. A panel of this court reversed on grounds the anti-SLAPP 

statute did not apply. Specifically, the panel “conclude[d] plaintiff’s retaliation claim 

. . . arose from defendants’ alleged acts of retaliation against plaintiff because he 

complained about the robotic surgery facilities at the hospitals, and not from any written 

or oral statements made during the peer review process or otherwise. . . . Accordingly, 

defendants’ motion to strike [fell] on prong one of the anti-SLAPP test . . . .” (Bonni v. 

St. Joseph Health System (2017) 13 Cal.App.5th 851, 855, affd. in part & revd. in part 

(2021) 11 Cal.5th 995.)

Our Supreme Court then granted review and reversed the panel’s decision. 

Based on Baral v. Schnitt (2016) 1 Cal.5th 376, it found Bonni’s retaliation cause of 

action was based on 19 adverse actions, each of which comprised a distinct retaliation 

claim for anti-SLAPP purposes. (Bonni, supra, 11 Cal.5th at pp. 1009-1011, 1015.) The 

Court then examined each of the 19 claims individually and found the following arose 

from protected activity: “reporting Dr. Bonni’s summary suspension and advocating in 

peer review proceedings that it be upheld (First Amended Complaint for Damages, ¶ 16, 

subparas. (3)–(5)); criticizing Dr. Bonni’s professional abilities in the course of peer 

review proceedings (id., ¶ 16, subparas. (11), (16)); and inducing Dr. Bonni to settle his 

dispute with St. Joseph and then allegedly breaching [the St. Joseph settlement] by filing 
8

a nonconforming report with the Medical Board of California (id., ¶ 16, additional. 

subparas. (1)–(3)).” (Bonni, supra, 11 Cal.5th at p. 1026.) The remaining retaliation 

claims did not arise from protected activity and were not subject to the anti-SLAPP 

statute. (Ibid.) The Court directed us on remand “to consider in the first instance 

whether Bonni has met his second-step burden for [the] discrete claims arising from 

protected activity.” (Id. at pp. 1026-1027.)

II

DISCUSSION

A. Legal Background

Commonly known as the anti-SLAPP statute, “[t]he Legislature enacted

section 425.16 to prevent and deter ‘lawsuits . . . brought primarily to chill the valid 

exercise of the constitutional rights of freedom of speech and petition for the redress of 

grievances.’ [Citation.] Because these meritless lawsuits seek to deplete ‘the defendant’s 

energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘“to prevent 

SLAPPs by ending them early and without great cost to the SLAPP target”’ [citation]. 

Section 425.16 therefore establishes a procedure where the trial court evaluates the merits 

of the lawsuit using a summary-judgment-like procedure at an early stage of the 

litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 187, 192.)

Anti-SLAPP motions are reviewed through a two-step process. “First, the 

court must determine ‘whether the defendant has made a threshold showing that the 

challenged cause of action’ arises from an act in furtherance of the right of petition or 

free speech in connection with a public issue. [Citation.] Second, the court must 

‘determine whether the plaintiff has demonstrated a probability of prevailing on the 

claim.’ [Citation.] If the defendant makes a threshold showing that the cause of action 

arises from an act in furtherance of the right of petition or free speech in connection with 

a public issue and the plaintiff fails to demonstrate a probability of prevailing, then the 
9

court must strike the cause of action (§ 425.16, subd. (b)(1)) and award the defendant 

‘attorney’s fees and costs’ [citation].” (Varian Medical Systems, Inc. v. Delfino, supra,

35 Cal.4th at p. 192.)

As set forth above, all issues relating to the first step of analysis have been 

resolved. Our Supreme Court has determined which of Bonni’s retaliation claims arise 

from protected activity. The narrow issue before us is whether Bonni has demonstrated a 

probability of prevailing on these claims. We review this issue de novo. (Monster 

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

To establish a probability of prevailing on the second step, a “plaintiff 

‘must demonstrate that the [claim] 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.)

Following our Supreme Court’s ruling, eight of Bonni’s 19 distinct 

retaliation claims arise from protected activity and are subject to analysis under the 

second step of the anti-SLAPP test. Five of these claims are alleged against the Hospitals

on grounds they retaliated against Bonni through the following activities:
10

i. “Reporting Plaintiffs summary suspensions to the Medical Board of

California and National Practioner [sic] Data Bank, as well as other 

persons/entities.”

ii. “Abusing the powers of the peer review process and subjecting 

Plaintiff to a lengthy and humiliating peer review process for over 

two years, and by refusing to lift Plaintiffs’ summary suspension 

despite recommendations by several separate boards/committees to 

do so, challenging the favorable findings of the Judicial Review 

Committee (JRC) at a hearing which occurred in or around October 

2014.”

iii. “On December 5, 2014, by having an Appellate Committee 

recommend to the Board that it reverse the findings of the JRC that 

had been favorable to Plaintiff.”

iv. “Engaging in a campaign of character assassination which caused 

irreparable damage to Plaintiff’s reputation.”

v. “Making defamatory statements about Plaintiff.”

The three remaining retaliation claims at issue relate to the St. Joseph 

settlement. Thus, they are only asserted against St. Joseph and certain affiliated groups

and entities (the St. Joseph defendants).

2

 Bonni alleges St. Joseph defendants engaged in 

the following retaliatory activities:

vi. “Fraudulently inducing and/or coercing Plaintiff to enter into [the St. 

Joseph settlement].”

vii. “Exercising undue influence over Plaintiff to force him to enter into 

[the St. Joseph settlement].”

2

The specific affiliates are identified as “St. Joseph Health System, St. Joseph Hospital 

of Orange, St. Joseph Hospital of Orange Medical Executive Committee and Medical 

Staff, St. Joseph Hoag Health, and Covenant Health Network.” (Capitalization omitted.)
11

viii. “Breaching [the St. Joseph settlement] by failing to use the specific 

language as agreed upon by the parties in reporting to the Medical 

Board of California and National Practioner [sic] Data Bank.”

As instructed by our Supreme Court, we will determine whether Bonni has 

shown a probability of prevailing on each of these eight claims.

B. The Litigation Privilege

Before reviewing any of Bonni’s evidence, we first address the Hospitals’ 

argument that the eight retaliation claims at issue are barred as a matter of law by the 

litigation privilege. We agree.

“‘The principal purpose of the Civil Code section 47 litigation privilege “‘is 

to afford litigants and witnesses [citation] the utmost freedom of access to the courts 

without fear of being harassed subsequently by derivative tort actions.’”’” (Optional 

Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 115-

116.) To fulfill this purpose, “Civil Code section 47, subdivision (b), ‘confers an 

absolute privilege to communications made as part of a “‘judicial or quasi-judicial 

proceeding,’” defined to include any sort of “‘truth-seeking’” or other official 

proceeding.’” (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 613.) This includes 

medical peer review proceedings. (Kibler v. Northern Inyo County Local Hospital Dist.

(2006) 39 Cal.4th 192, 202-203 (Kibler).)

The litigation privilege is not limited to statements made during the 

proceedings, “‘“but may extend to steps taken prior thereto, or afterwards.”’ [Citation.] 

[T]he absolute privilege is ‘broadly applied and doubts are resolved in its favor.’” (Klem 

v. Access Ins. Co., supra, 17 Cal.App.5th at p. 613.) For purposes of applying the 

privilege, it is irrelevant whether the communications at issue were “made with malice or 

the intent to harm. [Citation.] Put another way, application of the privilege does not 
12

depend on the publisher’s ‘motives, morals, ethics or intent.’” (Kashian v. Harriman

(2002) 98 Cal.App.4th 892, 913.)

There is some overlap between the litigation privilege and the anti-SLAPP 

statute. They are both “construed broadly, to protect the right of litigants to ‘“the utmost 

freedom of access to the courts without [the] fear of being harassed subsequently by 

derivative tort actions.”’” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 

137 Cal.App.4th 1, 5.) Still, “[t]he scope of the protections afforded to litigation-related 

communications under the anti-SLAPP statute and that afforded by the litigation 

privilege [citation] are not identical. The two statutes ‘are substantively different statutes 

that serve quite different purposes. . . .’” (Feldman v. 1100 Park Lane Associates (2008)

160 Cal.App.4th 1467, 1479.) Though our Supreme Court’s has determined the eight 

claims at issue are protected speech under anti-SLAPP statute, we must independently 

analyze whether they are barred by the litigation privilege.

1. Reports

We start with Bonni’s claim that the Hospitals retaliated against him by 

reporting his summary suspensions to the Medical Board of California and the National 

Practitioner Data Bank (claim i). To be clear, this claim is based on the reports

themselves, not on Bonni’s suspension or termination. Bonni alleges separate retaliation 

claims based on these latter acts, which are not subject to the anti-SLAPP statute. (Bonni, 

supra, 11 Cal.5th at pp. 1022-1023.)

The reports at issue involved “written statements to the state’s licensing 

agency concerning restrictions imposed on Bonni by a peer review body for allegedly 

providing substandard care.” (Bonni, supra, 11 Cal.5th at pp. 1017-1018.) The Hospitals 

were legally required to provide them. (Ibid.) As other courts have found, such reports 

are absolutely privileged under Civil Code section 47, even if they were “improperly 

motivated.” (See, e.g., Joel v. Valley Surgical Center (1998) 68 Cal.App.4th 360, 372.) 
13

Consequently, Bonni cannot allege any tort claims based on these reports. (Id. at pp. 

371-372; see Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 686 

[characterizing a retaliation claim under Health & Saf. Code, § 1278.5 as a tort].)

Allowing such claims to proceed “would substantially defeat the purpose of the privilege 

and create an unnecessary chilling effect upon physicians and others who are desirous of 

upholding professional qualifications and protecting the public.” (Long v. Pinto (1981) 

126 Cal.App.3d 946, 950-951.)

In response, Bonni contends this claim is based on the noncommunicative 

act of making the report rather than the contents of the report. It is true that the litigation 

privilege generally does not protect noncommunicative acts. (Rusheen v. Cohen (2006) 

37 Cal.4th 1048, 1058.) As such, “a ‘threshold issue in determining the applicability’ of 

the privilege is whether the defendant’s conduct was communicative or 

noncommunicative. [Citation.] The distinction between communicative and 

noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, 

the key in determining whether the privilege applies is whether the injury allegedly 

resulted from an act that was communicative in its essential nature.” (Ibid.) Such is the 

case here. The claim at issue alleges the Hospitals retaliated against Bonni by 

“[r]eporting [Bonni’s] summary suspensions to the Medical Board of California and 

National Practioner [sic] Data Bank, as well as other persons/entities.” In other words, 

Bonni’s first claim is based on the Hospital’s communication of his suspension to the 

relevant authorities, which is an inherently communicative act. Further, the claim is 

based on the contents of the communication, specifically, the reporting of Bonni’s 

suspension.

2. Peer review process

We next turn to Bonni’s claims relating to the peer review process (claims 

ii, iii, iv, and v above). One claim (claim ii) alleges defendants retaliated by subjecting 
14

Bonni “to a lengthy and humiliating peer review process for over two years.” Another 

(claim iii) is based on the recommendation by Mission’s appellate committee to its board 

of trustees that Bonni’s summary suspension was warranted and that his pending 

application for reappointment should be denied. The final two claims (claims iv and v) 

are based on allegations the Hospitals defamed Bonni and assassinated his character 

during the peer review process.

The retaliation claims based on defamation and character assassination are 

clearly barred. As found by our Supreme Court, “[t]he only statements discussed in 

Bonni’s account that would support assertions of defamation or character assassination 

are statements concerning Bonni’s professional competence, made in connection with the 

peer review consideration of Bonni’s standing at the Hospitals.” (Bonni, supra, 11 

Cal.5th at pp. 1016-1017.) Statements made in official proceedings are protected by the 

litigation privilege (Laker v. Board of Trustees of California State University (2019) 32 

Cal.App.5th 745, 770), as are “communications made to instigate an official investigation 

and in connection with the investigation once commenced” (Lemke v. Sutter Roseville 

Medical Center (2017) 8 Cal.App.5th 1292, 1299).

Next, we turn to the retaliation claim based on the peer review process itself

(claim i), in which Bonni alleges the Hospitals unfairly subjected him to the “peer review 

process for over two years.” To clarify, this claim is not based on Bonni’s suspension, 

termination of privileges, or the procedures afforded during the peer review process. 

These acts are the focus of separate retaliation claims, which are not subject to the antiSLAPP statute. (Bonni, supra, 11 Cal.5th at pp. 1015-1016, fn. 4, 1026.) Rather, this 

claim rests on “essentially everything any defendant said in the course of the peer review 

process in support of limiting Bonni’s privileges.” (Id. at pp. 1017-1018.) As discussed 

directly above, such statements are privileged. (Lemke v. Sutter Roseville Medical 

Center, supra, 8 Cal.App.5th at p. 1298; Laker v. Board of Trustees of California State 

University, supra, 32 Cal.App.5th at p. 770.)
15

To the extent this claim is based on the Hospitals’ initiation of the peer 

review proceedings itself, it is also precluded by the litigation privilege. There is “no 

communication that is more clearly protected by the litigation privilege than the filing of 

a legal action.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 

1232, 1249.) The same would logically be true for the initiation of a peer review 

proceeding, which is also covered by Civil Code section 47, subdivision (b). (Action, at 

p. 1241; Kibler, supra, 39 Cal.4th at pp. 202-203.) Moreover, failing to apply the 

privilege to this claim “would further discourage participation in peer review by allowing 

disciplined physicians to file harassing lawsuits against hospitals and their peer review 

committee members rather than seeking judicial review of the committee’s decision by 

the available means of a petition for administrative mandate.” (Id. at p. 201.)

We are also unpersuaded by Bonni’s citation to Smith v. Adventist Health 

System/West (2010) 190 Cal.App.4th 40. In Smith, the court found a claim based on the 

suspension of hospital privileges was not barred by the litigation privilege because it 

arose from noncommunicative activity. (Id. at pp. 60-61.) As discussed, however, the 

claim at issue does not arise from Bonni’s suspension. Rather, it arises from statements 

made during the peer review process or the initiation of the peer review process itself.

Finally, we address Bonni’s claim based on the recommendations by 

Mission’s appellate committee to its board of trustees (claim iii). We are not aware of 

any case that has addressed a substantially similar issue. So, we analyze this claim under 

the general test, which states the privilege covers “‘“any communication (1) made in 

judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by 

law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or 

logical relation to the action.”’” (Klem v. Access Ins. Co., supra, 17 Cal.App.5th at p.

613.) All these elements are met. The recommendation is a communication. It is a 

written report from Mission’s appellate committee to its board of trustees, recommending 

(1) the board find Bonni’s summary suspension was warranted and (2) it deny his 
16

pending reappointment application. Further, the report was made as part of Bonni’s peer 

review proceeding by participants to determine his qualifications for medical staff 

privileges. (See Bonni, supra, 11 Cal.5th at p. 1004 [“hospitals must use a process of 

professional peer review to evaluate physicians’ qualifications for medical staff 

privileges”].)

3. Negotiations for the St. Joseph settlement

Bonni asserts two claims based on the St. Joseph settlement negotiations. 

Specifically, he alleges the St. Joseph defendantsretaliated against him by fraudulently 

inducing or unduly influencing him into entering the St. Joseph settlement (claims vi and 

vii above). “Numerous courts have held that statements relating to settlements also fall 

within the [litigation] privilege, including those made during settlement negotiations.” 

(Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843-844; Joseph A. 

Saunders, P.C. v. Weissburg & Aronson (1999) 74 Cal.App.4th 869, 874-875 [Statements 

“made in the course of settlement negotiations” are “absolutely privileged pursuant to 

Civil Code section 47, subdivision (b)”].) The privilege applies even if such statements 

are fraudulent. (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1141.)

Bonni contends the litigation privilege is inapplicable because it “does not 

apply to an equitable action to set aside a settlement agreement for extrinsic fraud.” 

(Quoting Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26.) But the claims 

at issue are retaliation claims, not equitable actions to set aside the St. Joseph settlement.

3

 

“[W]here a judgment has been ‘“procured by extrinsic fraud, the normal remedy is to 

seek equitable relief from the judgment, not to sue in tort,”’ given that a tort remedy is 

precluded by the litigation privilege.” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 

290.)

3

Bonni asserts a separate cause of action to rescind the St. Joseph settlement, which is 

not at issue here.
17

For example, in Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828-829, the 

plaintiff filed an action against her former husband on grounds he had misrepresented and 

concealed assets in their prior dissolution proceeding. The plaintiff brought claims 

against the husband for fraud, conversion, and to set aside the dissolution judgment. 

(Id. at p. 828.) The court sustained the husband’s demurrer to the fraud and conversion 

claims because such tort claims were barred by the litigation privilege. Instead, the 

plaintiff’s “remedy [was] limited to an action or motion to vacate the judgment.” (Id. at 

p. 834.) Likewise, Bonni may pursue a claim to rescind the St. Joseph settlement but all 

tort claims based on the settlement negotiations are barred.

Bonni also argues the settlement negotiations preceded the filing of any 

lawsuit, and, consequently, they are only privileged if the Hospitals were contemplating 

filing a future lawsuit in good faith. (See Action Apartment Assn., Inc. v. City of Santa 

Monica, supra, 41 Cal.4th at p. 1251). His argument relies on a portion of Bonni, in 

which our Supreme Court stated for anti-SLAPP purposes that the claims at issue arose 

“out of settlement negotiations preceding the filing of any suit.” (Bonni, supra, 11 

Cal.5th at pp. 1024-1025, italics added.) But, as discussed above, the anti-SLAPP statute 

and the litigation privilege are not identical. The latter expressly extends to 

communications made “in the . . . course of any . . . proceeding authorized by law and 

reviewable” by administrative mandate (Civ. Code, § 47, subd. (b)), which includes 

medical peer review proceedings (Kibler, supra, 39 Cal.4th at pp. 198-199). Because the 

settlement negotiations occurred within the course of a proceeding covered by Civil Code 

section 47, subdivision (b), they are privileged. It is immaterial that they preceded the 

filing of any lawsuit in a judicial forum.

Besides, even if the litigation privilege did not apply to the settlementbased retaliation claims, Bonni has not cited any evidence showing St. Joseph defendants

unduly influenced him or defrauded him into signing the St. Joseph settlement. His 

declaration, which appears to be the only evidence submitted in opposition to the anti-
18

SLAPP motion, does not contain any facts supporting either theory. It only contains 

conclusory statements that the Hospitals “[f]raudulently induce[d] and/or coerc[ed] 

[Bonni]” or “[e]xercis[ed] undue influence over [Bonni] to force [him] to enter into” the 

St. Joseph settlement. These statements are insufficient to show either claim has minimal 

merit.

4. Failure to use reporting language from St. Joseph settlement

Bonni’s final claim alleges the St. Joseph defendants retaliated against him 

by failing to use the agreed upon reporting language to the Medical Board of California 

and the National Practitioner Data Bank in breach of the St. Joseph settlement

(claim viii). As discussed above, these reports are absolutely privileged under Civil Code 

section 47, and Bonni cannot bring tort claims based upon them. (See, e.g., Joel v. Valley 

Surgical Center, supra, 68 Cal.App.4th at pp. 371-372.)

As with his other report-based claim, Bonni contends this retaliation claim 

is based on noncommunicative conduct. Again, this argument is unpersuasive. The

claim at issue asserts the St. Joseph defendants retaliated against Bonni “by failing to use 

the specific language as agreed upon by the parties” in the St. Joseph settlement. Put 

differently, Bonni asserts the Hospitals’ reports to the relevant agencies should have 

contained different language. Thus, the gravamen of this claim expressly focuses on the 

contents of the reports at issue, not on noncommunicative conduct.

We are also unpersuaded by Bonni’s argument that the litigation privilege 

does not apply to breaches of contracts relating to speech. The claim at issue is not a 

breach of contract claim. It is a retaliation claim, which is allegedly evidenced by a 

breach of the St. Joseph settlement. Indeed, Bonni asserts a separate breach of contract 

claim based on the same conduct that is not at issue here. While the litigation privilege 

does not generally apply to breach of contract claims (Crossroads Investors, L.P. v. 
19

Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 787),

4

the same is untrue 

for tort claims. Courts have consistently emphasized the privilege, when applicable, is 

absolute and precludes all tort theories of recovery except malicious prosecution. 

(People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274; Wise v. Thrifty Payless, 

Inc. (2000) 83 Cal.App.4th 1296, 1302-1303.) Though Bonni’s retaliation claim relates 

to a breach of contract, it is not a breach of contract claim and is barred by the litigation 

privilege.

III

DISPOSITION

The Hospitals filed their anti-SLAPP motion in April 2015. At the time, 

they justifiably believed they could only direct their motion to Bonni’s entire retaliation 

cause of action as pleaded. (See Baral v. Schnitt, supra, 1 Cal.5th at pp. 381-382.) 

However, following Baral, courts now generally disregard pleaded causes of action when 

reviewing anti-SLAPP motions. Instead, they analyze individual claims, i.e., “each act or 

set of acts supplying a basis for relief.” (Bonni, supra, 11 Cal.5th at p. 1010.) Based on 

pre-Baral law, the trial court granted the Hospitals’ anti-SLAPP motion as to Bonni’s 

entire cause of action for retaliation. This conclusion is no longer correct, as each of 

Bonni’s individual retaliation claims must be scrutinized. Under this analysis, both sides 

have prevailed to some extent. Our Supreme Court found the majority of Bonni’s 

retaliation claims are not subject to the anti-SLAPP statute because they do not arise from 

protected activity. (Bonni, at pp. 1015-1017, 1026.) As to the eight remaining claims

4

 Courts have found the litigation privilege can bar breach of contract claims “if the 

agreement does not ‘clearly prohibit’ the challenged conduct, and if applying the 

privilege furthers the policies underlying the privilege.” (Crossroads Investors, L.P. v. 

Federal National Mortgage Assn., supra, 13 Cal.App.5th at p. 787.)
20

that do arise from protected activity, we find they are covered by the litigation privilege

and thus barred by the anti-SLAPP statute.

We recognize the Hospitals’ anti-SLAPP motion did not argue the litigation 

privilege applied to Bonni’s retaliation cause of action. Therefore, the trial court was 

never given the opportunity to consider this issue.

5

 We also acknowledge Bonni’s 

argument that he did not intend for all of the eight claims at issue to be affirmative claims 

for relief. Rather, he contends the allegations underlying these claims were included for 

context. While these factors do not change our disposition, we believe they warrant 

consideration should either side move for attorney fees.

Based on our findings above, the trial court’s order granting the Hospitals’ 

anti-SLAPP motion is reversed. We direct the trial court on remand to enter a new order 

granting the motion as to the eight retaliation claims at issue and denying it as to the 

remaining retaliation claims per Bonni, supra, 11 Cal.5th at pages 1026-1027. Though 

these claims are to be stricken from Bonni’s pleading, “[t]hat does not mean the 

underlying factual allegations may not be mentioned in the course of any ensuing 

proceedings; to the extent Bonni does consider these allegations to be probative of 

defendants’ motives or relevant to any other claims that survive, statements made in the 

course of peer review proceedings remain as admissible as any others. . . . [But] Bonni 

may no longer seek to impose liability on defendants for having engaged in these 

protected acts.” (Bonni, at p. 1019.)

5

 Neither side’s failure to address the litigation privilege in the lower court was 

unreasonable, as it had little relevance to Bonni’s entire retaliation cause of action as 

pleaded. We exercise our discretion to consider this issue on appeal. (POET, LLC v. 

State Air Resources Bd. (2013) 218 Cal.App.4th 681, 750-751 [appellate courts have 

discretion to consider issues of law first raised on appeal]; Nguyen v. Proton Technology 

Corp. (1999) 69 Cal.App.4th 140, 147 [application of the litigation privilege is an issue 

of law].)
21

Each party shall bear their own costs on this appeal.

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.