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

Banks, Judge. Reversed.

Greene, Broillet & Wheeler, Mark 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, Lowell 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 defendants

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),

defendants filed a special motion under Code of Civil Procedure section 425.16 (the antiSLAPP statute)

2

to strike plaintiff‟s retaliation cause of action, asserting his claim arose 

from the protected activity of hospital 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 antiSLAPP statute‟s two-part test, which requires a moving defendant to show the plaintiff‟s 

claim arose 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. (Health 

& 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 Inyo County Local Hospital Dist. (2006) 39 Cal.4th 

192, 196 (Kibler).)
3

We conclude plaintiff‟s retaliation claim under the whistleblower statute 

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. 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 

prong 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 retaliating against him for reporting “suspected unsafe and 

substandard conditions and services” at defendants‟ hospitals, including defendants‟ lack 

of committed assistants for robotic surgical procedures, and defendants‟ malfunctioning 

robot, camera, and bleeding-control devices. The FAC alleged defendants 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 

humiliating peer review process.

Defendants‟ Anti-SLAPP Motion

In response, defendants filed an anti-SLAPP motion to strike the FAC‟s

retaliation cause of action. 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 to 
4

California law and the Hospitals‟ bylaws, to ensure patient safety.” Defendants further 

argued that (1) plaintiff‟s retaliation claim arose from defendants‟ peer review processes;

(2) such processes constitute protected activity under the anti-SLAPP statute; and (3)

plaintiff could not show a probability of success on his retaliation claim because he 

lacked “admissible evidence indicating 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 procedures he performed at St. Joseph. Exhibit 3 to counsel‟s

declaration included Mission‟s appellate committee 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 Opposition

Plaintiff opposed defendants‟ anti-SLAPP motion, arguing defendants 

failed to show his claim was a SLAPP, and alternatively, that plaintiff could make “the 

minimal showing necessary to establish a probability 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 plaintiff had signed a 

release. Plaintiff‟s declaration supporting his opposition to defendants‟ anti-SLAPP 

motion contended St. Joseph 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 plaintiff 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 

“Robotic Surgery at Mission.” In this 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 . . . . During 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 

Staff 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 hereto as Exhibit 3. Instead 

of addressing these issues, Mission referred the case to the Quality Review Committee 
6

for outside review of my performance of the December 22, 2009 surgery. I believe that 

this was done in retaliation for my reports regarding the 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 da Vinci representative that the camera, port 

assistant, and other problems had consumed 42 minutes. The da Vinci representative

acknowledged “the camera had some issues,” but also stated “no other robotically trained 

surgeons at Mission [have 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 staff, 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) lack 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 correct 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 above 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 of 
7

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 and 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 Bailey 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 certified in Urogynecology and minimally invasive surgery. He 

teaches robotic surgery to advanced pelvic surgeons, and has performed thousands of 

robotic surgeries. . . . Further, and perhaps most telling, on March 22, 2010, Mission 

Director of Medical Staff 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‟ Reply

In their reply memorandum, defendants argued that all 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 admissible 

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 . . . .” As to St. Joseph, plaintiff failed to submit any admissible 

evidence “that he actually made a complaint to 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 reporting 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 “by 

articulating a legitimate, nondiscriminatory reason for the challenged action.” “Once the 

employer does so, the presumption disappears and the employee must point to evidence 

which nonetheless raises a rational inference that retaliation occurred.”

The Court‟s Ruling

The court granted defendants‟ anti-SLAPP motion as to both Mission and 

St. Joseph. Applying the first 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 anti-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 twostep inquiry. (Equilon, supra, 29 Cal.4th at p. 67.) First, the court must decide whether 
9

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 burden 

under the first prong of the anti-SLAPP test, the defendant must demonstrate that its act

underlying the plaintiff‟s claim fits one of the categories spelled out in subdivision (e) of 

the anti-SLAPP statute. (Navellier, at p. 88.) One such category 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 by law.” (Code Civ. Proc., § 425.16, subd. (e)(2).)

Second — if 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 second prong of the 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 court reviews a trial court‟s ruling on 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.

Plaintiff’s Retaliation Claim Does Not Arise From Protected Activity

We turn then to the first prong of the anti-SLAPP test, i.e., whether 

plaintiff‟s retaliation claim arose from protected activity under the anti-SLAPP statute. 

Plaintiff concedes he alleged retaliatory acts by defendants “that arose during [hospital] 

peer review proceedings.” (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, in 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 tenuretrack assistant professor at the defendant university. When the university denied his 

application for tenure, Park, who was 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 speech 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 applicability, 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 claim may be struck only if the speech or petitioning activity itself is the wrong 

complained of, and not just evidence of liability or a step leading to some different act for 

which liability is asserted.” (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 for 
11

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, as suggested by Park, we 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 facility 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 activities defined in 

subdivision (e) of the anti-SLAPP statute) without violating section 1278.5, so long as the 

adverse action is not taken to discriminate or retaliate because the employee or staff 

member made a complaint to the facility. In the absence of a retaliatory or discriminatory 

purpose motivating the adverse action, there is simply no liability 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. In 

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 university president‟s tenure”4that 

 

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 physician reviews, initial investigations, summary 

suspensions, committee hearings, and a hospital governing board‟s decision to accept 

disciplinary recommendations such as termination of privileges — are „subject to a 

special motion to strike.‟”

But the defendant in Park, supra, 2 Cal. 5th 1057, similarly argued “that 

decisions and the deliberations that underlie them are indistinguishable 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 the 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 DeCambre v. Rady Children’s HospitalSan Diego (2015) 235 Cal.App.4th 1, to the extent they “overread Kibler,” noting that 

Kibler 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 can 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 is 
13

premised on retaliatory adverse action taken in response to a protected complaint, the 

plaintiff‟s claim arises from the retaliatory motive or purpose. 

Here, defendants‟ motion to strike was premised on their 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 communications, 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. The anti-SLAPP statute protects “any written or oral statement or writing made 

in connection with an issue under consideration or review by [an] official proceeding 

authorized by law.” (Code Civ. Proc., § 425.16, subd. (e)(2), italics added.) Plaintiff did 

not allege any specific “written or oral statement or writing” 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 tenure 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 themselves 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 

involving 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 

harassment, 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 

terminating 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 animus 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 plaintiff 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 a 
15

protected activity as the means to discriminate or retaliate and thereafter capitalize on 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 attorney 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 Amendment 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 to 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 defendants‟ alleged retaliatory motive in 

suspending plaintiff‟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. Plaintiff 

shall recover his costs on appeal.

IKOLA, J.

WE CONCUR:

O‟LEARY, P. J.

MOORE, J.