Filed 7/26/2017

CERTIFIED FOR PUBLICATION

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 a n order of the Superior Court of Orange County, Andrew P. Banks, Judge. R eversed

.

Greene, Broillet & Wheeler , Mar k T. Quigley, Scott H. Carr, Christian T.F. Nickerson; Esner, Chang & Boyer, Stuart B. Enser and Joseph S. Persoff for Plaintiff and Appellant. Arent Fox, Low ell Brown, Debra J. Albin

- Riley and Diane Roldan for Defendants and Respondents.
* * *2 Plaintiff Aram Bonni , a surgeon, sued St. Joseph Hospital of Orange ( St. Joseph) , Mission Hospital Regional Medical Center ( Mission) , and other defendant s for , inter alia, retaliation under Health and Safety Code , section 1278.5 (the
whistleblower statute)

. 1 Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings

.

In response to plaintiff‟s filing of his first amended complaint (FAC),
d efendants filed a special motion under Code of Civil Procedure section 425.16 (the anti

SLAPP statute) 2 to strike plaintiff ‟ s retaliation cause of action , asserting his claim arose
from the protected activity of hospita l peer review proceedings

.

The court granted defendants ‟ anti

- SLAPP motion as to both St. Joseph and
Mission

. The court determined, first, that defendants had met prong one of the anti

SLAPP statute‟s two

- part test, which requires a moving defendant to s how the plaintiff‟s
claim ar o se from activity protected under that statute. ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 ( Equilon ) .)

The court then proceeded to prong two of the anti

- SLAPP test, which requires a plaintiff to show a probability of prevailing on his or her claim. ( Equilon , supra , 29 Cal.4th at p. 67 .) The court concluded plaintiff‟s proof failed as to both
defendants

.

1 Plaintiff‟s operative complaint also named as defendants some other entities and individuals related to Mission and/or St. Joseph.

The whistleblower statute prohibits health facilities from retaliating against, inter alia, a member of the medical staff of the health facility because that person has presented a grievance, complaint, or report to the facility or its medical staff. (Hea lth & Saf. Code, § 1278.5, subd. (b)(1)(A).)

2 The acronym SLAPP (strategic lawsuit against public participation) refers to a harassing lawsuit brought to challenge the exercise of constitutionally protected free speech rights. ( Kibler v. Northern Iny o C oun ty Local Hospital Dist. (2006) 39 Cal.4th 192, 196 ( Kibler ) .)3 W e conclude plaintiff‟s retaliation claim under the whistleblower statute arose from defendants‟ alleged acts of retaliat ion against plaintiff because he complained about the robotic surgery facilities at the hospitals , and not from any written or oral

sta tements made during the peer review process or otherwise. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti

- SLAPP motion. This case is no exception. Accordingly, defendants‟ motion to strike fails on
pr ong one of the anti

- SLAPP test and we reverse the order granting defendants‟ motion.

FACTS

Plaintiff ’ s FAC

Plaintiff ‟ s FAC alleged, inter alia, that defendants violated the
whistleblower statute by retaliat ing against him for reporting “ suspected unsafe and
substandard conditions and services ” at defendants ‟ hospitals, including defendants ‟ lack of committed assistants for robotic surgical procedure s , and defendants ‟ malfunctioning robot, camer a, and bleeding

- control devices

. The FAC alleged defen dants retaliated against plaintiff for his whistleblower complaints by , inter alia, suspending and ultimately denying him his medical staff privileges, after subjecting him to a lengthy and
h umiliating peer review process

.

Defendants ‟ A nti

- SLAPP M otion In response, d efendants filed an anti

- SLAPP motion to strike the FAC‟s
retaliation ca use of act i on

. Defendants argued : “ Plaintiff

. . . exhibited consistent patterns of poor judgment and surgical techniques that caused serious complications

— and in some cases near death

— for his patients.

. . . In light of the imminent danger to future patients of these serious and life

- threatening behaviors, Defendants summarily suspended Plaintiff and thereafter conducted peer review proceedings according to4

California law and the Hospitals ‟ bylaws, to ensure patient safety. ” Defendants further argued th at (1) p laintiff ‟ s retaliation c laim arose from defendants ‟ peer review processes ; (2) s uch processes constitute protected activity under the anti

- SLAPP statute ; and (3)
p laintiff could not show a probability of s uccess on his retaliation claim because he
lacked “ admissible evidence indi cating Defendants acted to retaliate against him

. ” 3

Defense counsel filed a declaration in support of defendants ‟ anti

- SLAPP
motion. Exhibit 1 to counsel‟s declaration was the decision of St. Joseph‟s judicial review hearing committee, which stated that plaintiff experienced complications in three of the first six robotic procedu res he performed at St. Joseph. Exhibit 3 to counsel‟s
declaration included Mission ‟ s a ppellate c ommittee report, which stated that the “ focused review process was triggered by a December, 2009 case in which [plaintiff] perforated the patient ‟ s mesentery and bowel tissue five

. . . times. The patient suffered various complications following the procedure, required a second surgery to repair the perforations,

. . . and endured a protracted hospital stay. ”

Plaintiff ’ s O

pposition Plaintiff opposed defendants ‟ anti

- SLAPP motion , arguing defendants
failed to show hi s claim wa s a SLAPP, and alternatively, that plaintiff could make “ the minimal showing necessary to establish a probabi lity of prevailing on the merits. ”

In plaintiff‟ s declaration supporting his opposition , he declared , inter alia :

“ In or about March of 2009, I became aware of numerous patient safety issues involving
the da Vinci robot

. . . robotic surgery program at Mission Hospital. Specifically, the robotic surgery program at Mission was grossly understaffed and underfunded, which had a direct and adverse impact on patient safety. At times, I was unable to complete

3 Defendants further argued , as to St. Joseph, that plaintif f h ad signed a release. Plaintiff‟s declaration supporting his opposition to defendants‟ anti

- SLAPP motion contended St. Jose ph breached the “settlement agreement.”5

scheduled surgeries due to inadequate staffing. On October 19, 2009, I reported these patient safety concerns to Dennis Haghighat M.D., vice president of medical affairs at Mission. I requested that these issues be corrected in order to improve the safety of patients at Mission and St. Joseph. A true and correct copy of this report is attached hereto as Exhibit 2. Unfortunately, Mission and St. Joseph did nothing to correct or address these patient safety concerns. ”

Exhibit 2 is plaintiff ‟ s October 19, 2009 e

- mail message to Haghighat, in which plain tiff stated he had been forced to cancel a few robotic surgeries due to the unavailability of an assistant surgeon and asking if Mission could allocate a scrub
technician to serve as the assistant. The subject line of plaintiff‟s e

- mail message is “Roboti c Surgery at Mission .” In t his e

- mail message, plaintiff never mentions St. Joseph

. Plaintiff ‟ s declaration continued: “ On December 22, 2009, I performed a robotic surgical procedure at Mission on an elderly woman

. . . . D uring this surgery, the
da Vinci robot malfunctioned which caused serious patient safety issues, including complications during the surgery, as well as a 42 minute delay. Specifically, the 3D Camera on the robot malfunctioned. Due to inadequate staffing and training, the Mission
S taff had extreme difficulties correcting the problem with the robot. After some delay, the Mission Staff finally located the replacement camera and brought it in. Unfortunately, the Mission Staff were unfamiliar with [the] existence and location of that camera. Following the issue with the camera, the Monopolar scissors, as well as the cautery, on the robot malfunctioned. This is the instrument that is used to cauterize and cut tissues. This instrument was later recalled by Intuitive Surgical Inc., the manufacturer
of the da Vinci robot

. . . . [¶]

. . . Once again, I reported these patient safety concerns regarding the malfunctioning da Vinci robot to Dennis Haghighat , M.D on January 11,
2010.

. . . A true and correct copy of this report is attached he reto as Exhibit 3. Instead of addressing these issues, Mission referred the case to the Quality Review Committee6

for outside review of my performance of the December 22, 2009 surgery. I believe that this was done in retaliation for my reports regarding t he inadequate robotics program and substandard hospital equipment and staff. ”

Exhibit 3 is a string of e

- mail messages, starting with plaintiff ‟ s December 22, 2009 e

- mail statement to an alleged d a Vinci representative that the camera, port assistant, and other problems had consumed 42 minutes. The d a Vinci representative acknowledged “ the camera had some issues, ” but also stated “ no other robotically trained surgeons at Mission [ha ve had] this many repeated issues on every case. ” Plaintiff then

e

- mailed Haghighat that “ [w]e need some people that are well trained robotically to be in the room to help trouble shoot the problems that are encountered ” and that “ losing about 42 minutes to side issues during an already long and winding surgery could and should be
avoided. ”
Plaintiff ‟ s declaration continued: “ On or about April 30, 2010, in the interest of patient safety, I once again reported my concerns regarding the malfunctioning da Vinci robot and inadequate robotic program to [Nolan , Mission ‟ s chief of st aff , and Kenneth Rexinger, M.D., Mission ‟ s chief of quality review].

. . . Specifically, I again reported the following patient safety concerns: (1) the lack of a committed assistant for the procedure, (2) lack of committed [operating room] staff, (3) la ck of appropriately trained scrub techs, (4) lack of availability of appropriate instruments in general, (5) the malfunctioning camera on the da Vinci robot and (6) the malfunctioning of the devices on the da Vinci robot to control bleeding. A true and co rrect copy of this report is attached
hereto as Exhibit 4.

. . . ”

Exhibit 4 is plaintiff ‟ s letter to Nolan, explaining the circumstances surrounding the December 22, 2009 robotic surgery and reciting the abo ve six patient safety concerns. The letter is undated, but allegedly sent in March 2010.

Plaintiff ‟ s declaration continued: “ On August 20, 2010, I reported my concerns regarding the malfunctioning robot again to Defendant Dr. Juan Velez, Chief of7

Obstetrics/Gynecology at St. Joseph

. On September 15, 2010 I reported these same concerns to Defendant Randy Fiorentino at St. Joseph . As outlined in further detail below, I also reported these patient concerns yet again to Mission on October 1, 2010 and November 11, 2010. See Exhibits 5 a nd 6. ” (Italics added.)

Exhibit 5 is plaintiff ‟ s October 1, 2010 letter to Thomas Bailey, M.D., chief
of Mission ‟ s department of women and infants, attaching a copy of plaintiff ‟ s March
2010 letter to Nolan and a copy of an October 1, 2010 letter to Bail ey from Dr. Michael Hibner of the Creighton University School of Medicine , opining that “ during the
December 2 [2] , 2009 surgery ,” plaintiff “ did not deviate from the standard of care. ” (Italics added.)

Exhibit 6 consists of plaintiff ‟ s November 11 , 2010 e

- mail communications with Jane Kessinger of Mission ‟ s medical staff office, attaching copies of documents for purposes of plaintiff ‟ s peer review process.

Plaintiff ‟ s declaration continued: “ The December 22, 2009 case

. . . was reviewed by Mission ‟ s own expert Dr. Moses, who determined that my performance during this surgery was within the standard of care.

. . . Dr

. Hibner also reviewed my performance during this surgery, and found that I was within the standard of care. Dr.
Hibner is double board cer tified in Urogynecology and minimally invasive surgery. He teaches robotic surgery to advanced pelvic surgeons, and has performed t housands of robotic surgeries.

. . . Further, and perhaps most telling, on March 22, 2010, Mission
Director of Medical Staf

f Services Denise Rollins reported to St. Joseph that I was a member in good standing at Mission, that there were no disciplinary actions against me, and that there were no significant issues with respect to me or my practice at Mission. ”

Defendants ‟ R epl

y In their reply memorandum, defendants argued th at a ll activities at issue in plaintiff ‟ s retaliation claim constituted protected peer review activities at Mission and St.8

Joseph. Plaintiff could not show a probability of success because he had no admis sible
evidence that such “ peer review activities were motivated by retaliatory animus. ”
Defendants ‟ actions “ were motivated by concerns for patient safety because of Plaintiff ‟ s poor surgical technique

. . . . ” A s to St. Joseph, p laintiff failed to submi t any admissible
evidence “ that he actually made a complaint t o St. Joseph ‟ s Dr. Velez on August 20, 2010 or to Dr. Fiorentino on September 15, 2010

. ” As to Mission, even assuming
Mission took adverse actions within 120 days of plaintiff ‟ s re porting patient safety

concerns ( so as to trigger the rebuttable presumption of retaliation under subdivision (d)(1) of the whistleblower statute ), an employer can rebut the presumption “ b y articulating a legitimate, nondiscriminatory reason for the challenged act ion. ” “ Once the employer does so, the presumption disappears and the employee must point to evidence
which nonetheless raises a rational inferenc e that retaliation occurred. ”

The C ourt ‟ s R uling

The court granted defendants ‟ anti

- SLAPP motion as to both Mission and St. Joseph

. Applying the f irst prong of the anti

- SLAPP test, the court determined that the gravamen of plaintiff‟s retaliation claim was based on defendants‟ protected hospital peer review activities.

Proceeding to the second prong of the ant i

- SLAPP statute , the court ruled that the plaintiff had failed to meet his burden to demonstrate a probability of prevailing
on his retaliation claim.

DISCUSSION

General Principles of Applicable Law

In evaluating an anti

- SLAPP motion, the court conducts a potentially two

step inquiry

. ( Equilon , supra , 29 Cal.4th at p. 67

. ) First, the court must decide whether9

the defendant has made a threshold showing that the plaintiff ‟ s claim arises from protected activity. ( Navellier v. Sletten (2002 ) 29 Cal.4th 82, 88.) To meet its bur d en under th e first pr o ng of the anti

- SLAPP test , the defendant must demonstrate that its act underlying the plaintiff ‟ s claim fit s one of the categories spelled out in subdivision (e) of
the anti

- SLAPP statute . ( Nave llier , at p. 88.) One such categor y of protected activity
includes “ 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 proceeding authorized b y law

. ” ( Code Civ. Proc., § 425.16, subd

. (e) (2) .)

Second

— i

f the defendant meets its burden of showing all or part of its activity was protected

— then the court proceeds to the next step of the inquiry

. At this stage

— applying the seco nd pron g of th e anti

- SLAPP test

— the court asks “ whether the plaintiff has demonstrated a probability of prevailing on the claim

. ” ( Equilon , supra , 29
Cal.4th at p. 67

. )

An appellate c o urt review s a trial court ‟ s ruling o n an anti

- SLAPP motion
de novo , applying the legal principles and two

- prong test discussed above

. ( Schaffer v

. City and County of San Francisco (2008) 168 Cal.App.4th 992, 998. ) Here, we conclude defendants‟ motion fails on the first prong. Plaintiff‟s cause of action for retaliation
under the whistleblower statute is not a SLAPP. It does not arise from protected activity. Thus, we need not analyze whether plaintiff has demonstrated a probability of prevailing

.

P laintiff ’ s Retaliation Claim Do es Not Arise From Protected Activity

We turn then to the first prong of the anti

- SLAPP test, i.e., whether plaintiff‟s retaliation claim ar o se from protected activity under the anti

- SLAPP statute. Plaintiff concedes he alleged retaliatory acts by defendants “that arose during [hospital] peer review proc eedings

. ” ( Kibler , supra , 39 Cal.4th at p. 198.) But he argues his retaliation claim against defendants “arises out of [their] decisions to initiate the summary suspensions

. ”10 Recently, i n Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057 ( Park ), our Supreme Court reiterated and clarified what it had said 15
years ago in City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78: “„[T]he defendant‟s act underlying the plaintiff‟s cause of action must itself have been an act in furtherance of the right of petition or free speech.‟” ( Park, at p. 1063.) The plaintiff in Park was a tenure

track assistant professor at the defendant university. When the university denied his application for tenure , Park, who wa s of Korean national origin, sued the university for national origin discrimination. The university responded with an anti

- SLAPP motion

. ( Id . at p. 1061.) Our Supreme Court concluded the plaintiff‟s claim did not arise from an act in furtherance of spee ch or petitioning activity and therefore was not subject to the
anti

- SLAPP statute

. ( Id . at pp. 1060

- 1061.) The Park decision was issued after oral argument in this case. At our request, the parties submitted supplemental letter briefs on the applicabil ity, if any, of the Park decision to the issues presented by this appeal.

In Park , the high court examined the nexus that must be shown “between a challenged claim and the defendant‟s protected activity,” and held that “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.” ( Park , supra , 2 Cal.5th at p. 1060.) “Rather,
a clai m may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” ( Ibid .) The lower appellate court in Park had ruled that a “claim alleging a discriminatory decision is subject to a motion to strike so long as protected speech or petitioning activity contributed to that decision.” ( Id . at p. 1061.) The Supreme Court reversed that reasoning as erroneous. ( Ibid .)

Thus, the Park court made clear that in evaluating whether plaintiff‟s claim is a SLAPP, it is not sufficient merely to determine whether plaintiff has alleged activity protected by the statute. The alleged protected activity must also form the basis for11

plaintiff‟s claim. The Park court counseled that “in ruling on an anti

- SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” ( Park , supra , 2 Cal.5th at p. 1063.)

Accordingly, a s suggested by Park , w e first consider the elements of a claim under the whistleblower statute at issue here, Health and Safety Code, section
1278.5

. As relevant to our inquiry , it provides, “No health facili ty shall discriminate or retaliate, in any manner , against any . . . member of the medical staff . . . of the health facility because that person has ” “ [p]resented a grievance, complaint, or report to the facility . . . or the medical staff of the facility . . . .” ( Health & Saf. Code, § 1278.5 , subd. (b)(1)(A) .) Plainly, a defendant health facility may take all manner of adverse actions against an employee or medical staff member (including protected activiti es defined in subdivision (e) of the anti

- SLAP P statute) without violating section 1278.5, so long as the
adverse action is not taken to discriminate or retaliat e because the employee or staff member made a complaint to the facility

. In the absence of a retaliatory or discriminatory purpose motivatin g the adverse action, there is simply no liabili ty under Health and Safety Code section 1278.5. Thus, the basis for a retaliation claim under section 1278.5 is the retaliatory purpose or motive for the adverse action, not the adverse action itself. I n the language of the anti

- SLAPP statute , the claim under section 1278.5 arises from defendants‟ retaliatory purpose or motive , and not from how that purpose is carried out, even if by speech or petitioning activity.

In defendant‟s letter brief, they argue that summary suspensions and terminations of a physician‟s medical privileges are protected activities under prong one
of the anti

- SLAPP test . Defendants attempt to distinguish the hospital peer review process from the “deliberative process involving a u niversity president‟s tenure” 4 that

4 Park involved the denial of tenure to “a tenure

- track assistant professor,” not a university president. ( Park , supra , 2 Cal.5th at p. 1061.)12

was at issue in Park

. Defendants note that the “complex, multi

- faceted” hospital peer review process is based on a statutory scheme intended to “protect the health and welfare of the people of California

. ” (Bus. & Prof . Code, § 809, subd. (a)(6) .) Defendants conclude, “Given the critical public interest in patient safety , [defendants] contend that notwithstanding the Park decision, all acts in furtherance of the [hospital] peer review
process

— including preliminary ph ysician reviews, initial investigations, summary suspensions, committee hearings, and a hospital governing board‟s decision to accept disciplinary recommendat i ons such as termination of privile g es

— are „subject to a specia l motion to strike.‟”

But the de fendant in Park , supra , 2 Cal. 5th 1057, similarly argued “that decisions and the deliberations that underlie them are indistingu ishable for anti

- SLAPP
purposes ” ( id . at p. 1069), relying on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal .4th 192, which involved hospital peer review proceedings. ( Park , at p. 1069.) The Supreme Court rejected the defendant‟s argument. The Park court clarified
that the only issue decided in Kibler was whether a hospital peer review proceeding was
an “ „“ official proceeding ”‟ ” within the meaning of t he anti

- SLAPP statute. Kibler did

not “consider whether the hospital‟s peer review decision and statements leading up to that decision were inseparable for purposes of the arising from aspect of an anti

- SLAPP motion.” ( Park , at p. 1069.) Park disapproved Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, and DeC a mbre v. Rady Children’s Hospital

San Diego (2015) 235 Cal.App.4th 1, to the extent they “overread Kibler ,” noting that
Ki bler does not stand for “the proposition that disciplinary decisions reached in a peer review process, as opposed to statements in connection with that process, are protected.” ( Park , at p. 1070.) To that we would add: It matters not whether activity ca n be described as “protected” as meeting one of the definitions of protected activity in subdivision (e) of the anti

- SLAPP statute. What matters is whether plaintiff‟s claim arises from that activity. Here, where liability under the whistleblower statute is13

premised on retaliatory adverse action taken in response to a protected complaint, the plaintiff‟s claim arises from the retaliatory motive or purpose

.

Here, d efendants ‟ motion to strike was premised on the ir somewhat ipse
dixit notion that because of the “critical public interest in patient safety,” and “the courts‟ overriding goal of „protect[ing] the health and welfare of the people of California, ‟ ” the peer review decision , and the statements leading up to that decision are “ an inherently communicative process based on free speech and petitioning rights , ” and “ should thus be „subject to a special motion to strike.‟” But merely because a process is communicative does not mean that plaintiff‟s claim necessarily arises from those communicatio ns , and merely because the peer review process serves an important public interest does not make it subject to the anti

- SLAPP statute where the process is employed for a retaliatory
purpose

. T he anti

- SLAPP statute protects “ any written or oral statement o r writing made
in connection with an issue under co nsideration or review by [an] official proceeding authorized by law

. ” ( Code Civ. Proc., § 425.16, subd. (e)(2) , italics added .) P laintiff did not allege any specific “ written or oral statement or writin g ” which allegedly formed the basis of his retaliation claim. Instead, he alleged that an abusive peer review process was initiated by the hospitals because he made complaints about unsafe conditions at the hospitals. Thus, his claim was not based merely on defendant‟s act of initiating and pursuing the peer review process , or on statements made during those proceedings

— but on the retaliatory purpose or motive by which it was undertaken.

The Park decision cannot be easily distinguished. Although Park involved

a university tenure process conducted in an allegedly discriminatory fashion, its rationale translates easily to the allegedly retaliatory peer review process at issue here. Here is
what the court said in Park , “The elements of Park‟s claim . . . depend not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible. The te nure decision may have been communicated orally or in writing,14

but that communication does not convert Park‟s suit to one arising from such speech. The dean‟s alleged comments may supply evidence of animus, but that does not convert
the statements themsel ves into the basis for liability.” ( Park , supra , 2 Cal.5th at p. 1068 , italics added.)

The high court‟s analysis in Park relied in part on the recent case of Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176 ( Nam ) , a case not involvin g a peer review process, but nevertheless bearing similarity to the case at bar. ( Park , supra , 2 Cal.5th at p. 1066.) As described in Park , the Nam case concerned a “plaintiff, a University of California, Davis, medical resident, [who] sued for sexual
ha rassment, discrimination, and wrongful termination. The defendant Regents of the University of California‟s (Regents) anti

- SLAPP motion contended the suit arose from communicated complaints about the plaintiff‟s performance, written warnings it issued
her , an investigation it conducted, and the written notice to the plaintiff of her termination. Not so; the basis for liability was instead the Regents‟ alleged retaliatory conduct, including „“ subjecting [the plaintiff] to increased and disparate scrutiny, soliciting complaints about her from others, removing [her] from the workplace, refusing to permit her to return, refusing to give her credit towards the completion of her residency, failing to honor promises made regarding her treatment, and ultimately

te rminating her

. . . . ”‟” ( Park , at p. 1066.) The Park court summed up its analysis of the
Nam decision stating, “ Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit anim us may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintif f to a burden, on account of a discriminatory or retaliatory consideration .” ( Park , at p. 1066, italics added. )

The Nam court itself was quite direct in announcing its decision : “[W]e
conclude the anti

- SLAPP statute was not intended to allow an employer to use a15

protected activity as the means to discriminate or retaliate and thereafter capitalize o n the subterfuge by bringing an anti

- SLAPP motion to strike the complaint. In that case, the conduct giving rise to the claim is discrimination and does not arise from the exercise of free speech or petition.” ( Nam , supra , 1 Cal.App.5th at pp. 1190

- 1191.) The Nam court further observed that to ignore the defendant‟s alleged motive in a harassment, discrimination, or retaliation case “would subject most, if not all, harassment, discrimination, and retaliation cases to motions to strike. Any employer who initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorne y fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits. Such a result is at odds with the purpose of the anti

- SLAPP law, which was designed to
ferret out meritless lawsuits intended to quell the free exercise of First A mendment rights,
not to burden victims of discrimination and retaliation with an earlier and heavier burden of proof than other civil litigants and dissuade the exercise of their right t o petition for fear of an onerous attorney fee award.” ( Nam , at p. 1189.)

We agree with the Nam court‟s observation. Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti

- SLAPP motion.

Accordingly, we conclude that defendant s‟ alleged retaliatory motive in suspending pla intiff‟s staff privileges and subjecting him to a lengthy and allegedly
abusive peer review proceeding is the basis on which liability is asserted. The alleged liability does not arise from the statements made during those proceedings. The court
erred in ruling otherwise.16 DISPOSITION

The order granting defendants‟ anti

- SLAPP motion is reversed. Pl aintiff
shall recover his costs on appeal.

IKOLA, J.

WE CONCUR:

O ‟ LEARY, P. J.

MOORE, J.