Filed 4/30/15 Sabit v. Abou-Samra CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION SIX 

ARIA OMAR SABIT et al., 

 Plaintiffs and Appellants, 

v. 

MOUSTAPHA ABOU-SAMRA et al., 

 Defendants and Appellants; 

COMMUNITY MEMORIAL HEALTH 

SYSTEM et al., 

 Defendants and Respondents. 

2d Civil No. B249793 

(Super. Ct. No. 56-2012-00427968- 

CU-BT-VTA) 

(Ventura County) 

 Aria Omar Sabit and Aria Omar Sabit, a professional corporation ("Sabit"), 

appeal the trial court's order granting a special motion to strike filed by Community 

Memorial Health System, doing business as Community Memorial Hospital ("the 

Hospital"); the medical staff of Community Memorial Hospital; and named individuals 

comprising the Hospital's peer review committee (all aforementioned defendants referred 

to collectively as "the Hospital defendants"). We conclude that the court properly 

granted a special motion to strike the two causes of action alleged against the Hospital 
2 

defendants as a strategic lawsuit against public participation ("SLAPP"), and we affirm. 

(Code Civ. Proc., § 425.16.)1

 Sabit also appeals the trial court's order granting a special motion to strike 

filed by Moustapha Abou-Samra and Moustapha Abou-Samra, a professional corporation 

(collectively "Abou-Samra"), regarding a cause of action for intentional interference with 

prospective economic advantage. We conclude that the court also properly granted this 

anti-SLAPP motion, and we affirm. 

 Abou-Samra cross-appeals the trial court's order denying an anti-SLAPP 

motion regarding two causes of action for breach of contract and one cause of action for 

an accounting. We conclude that the court properly denied the anti-SLAPP motion 

regarding these three causes of action, and we affirm. 

FACTUAL AND PROCEDURAL HISTORY 

 Sabit and Abou-Samra are California-licensed physicians who specialize in 

neurosurgery. On July 1, 2009, Sabit began employment with Abou-Samra's professional 

corporation pursuant to a written employment agreement. The agreement required Sabit 

to obtain medical staff privileges at the Hospital and to provide neurosurgical services for 

three years. It also set forth Sabit's compensation as a monthly salary, bonus 

compensation calculated according to a specified formula, and other monetary benefits, 

including an automobile allowance and reimbursement of certain expenses. 

 On September 16, 2010, after Sabit formed a professional corporation, the 

parties entered into an independent contractor agreement to "supersede and replace" the 

existing employment agreement. ("Independent Contractor Agreement," ¶ 8.3, p. 12.) 

This agreement also provided for a monthly salary, bonus compensation calculated 

according to a specified formula, and reimbursement of certain expenses. The agreement 

permitted early termination in the event Sabit lost his staff privileges at the Hospital, 

 

1

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

otherwise. We will refer to the parties by collective names except where clarity demands 

that we draw a distinction. 
3 

either temporarily or permanently. (Id., ¶ 5.1, pp. 8-9.) In that event, Sabit would receive 

payment of any accrued and unpaid compensation, but not bonuses. 

 On December 3, 2010, the Hospital's peer review committee, the Medical 

Executive Committee, informed Sabit that it was summarily suspending his provisional 

staff privileges at the Hospital "to protect the life or well-being of patients [and] to reduce 

imminent danger to the life, health or safety of any person." The written notice of 

suspension referred to two instances where Sabit allegedly did not render appropriate 

medical care to patients. The committee also scheduled a meeting for December 7, 2010, 

during which Sabit could defend the accusations of providing inappropriate medical care. 

 Upon learning that Sabit had been suspended summarily from Hospital 

privileges, Abou-Samra terminated the independent contractor agreement by written 

notice dated December 3, 2010. In the written termination notice, Abou-Samra 

referenced Sabit's "unacceptable surgical complication and infection rates," his 

incomplete and misleading medical records, and his failure to obtain permanent Hospital 

staff privileges.

 At the December 7, 2010, Hospital peer review hearing, Sabit appeared, 

discussed his medical practices and patient care, and responded to questions. The 

committee then decided to reinstate Sabit's provisional privileges, but it required his 

improvement in six specified areas regarding patient care. Two weeks later, however, 

Sabit resigned from the Hospital medical staff. 

Complaint Allegations 

 On December 3, 2012, Sabit filed a lawsuit against the Hospital defendants, 

alleging causes of action for denial of the right to practice medicine and intentional 

interference with contract (third and fifth causes of action). Sabit alleged that the 

Hospital defendants acted wrongfully in suspending his staff privileges because they 

acted without proper investigation and with the intent to interfere with his employment 

with Abou-Samra. 

 Sabit also sued Abou-Samra, alleging causes of action for breach of the 

independent contractor agreement, breach of the employment agreement, intentional 
4 

interference with prospective economic advantage, and an accounting (first, second, 

fourth, and sixth causes of action). Sabit alleged that Abou-Samra instigated and 

influenced peer review proceedings to deny him permanent staff privileges and to revoke 

his provisional staff privileges. According to the complaint, Abou-Samra then used the 

lack of staff privileges as a pretext to terminate the independent contractor agreement and 

deny bonus and other sums due pursuant to the two agreements. 

The Hospital Defendants' Anti-SLAPP Motion 

 On February 6, 2013, the Hospital defendants filed a special motion to 

strike the third and fifth causes of action of the complaint pursuant to the anti-SLAPP 

provisions of section 425.16. In support of the motion, Doctor Samuel D. Small, Chief of 

Staff of the Hospital, declared that the medical staff became concerned regarding Sabit's 

medical practices when one patient required urgent intervention from another hospital 

and a second patient died. Following investigation and review of Sabit's medical charts, 

the Medical Executive Committee discussed Sabit's performance and determined that 

summary suspension of his Hospital privileges was necessary to protect patients. Small 

stated that section 7:2-1 of the Hospital Bylaws expressly authorized summary 

suspension under the circumstances. 

Abou-Samra's Anti-SLAPP Motion 

 On February 14, 2013, Abou-Samra filed a special motion to strike the first, 

second, fourth, and sixth causes of action of the complaint pursuant to the anti-SLAPP 

provisions of section 425.16. In support of the motion, Abou-Samra declared that in 

2010, he served on the Hospital's peer review committee that reviewed Sabit's medical 

practices and patient care. As a consequence of Sabit's summary suspension, AbouSamra terminated Sabit's employment pursuant to paragraph 5 of the independent 

contractor agreement.

Sabit's Responses and Declarations 

 In response to the anti-SLAPP motions, Sabit declared that Abou-Samra 

owed him compensation, including reimbursement for automobile expenses and 

insurance premiums, for his first year of employment (July 1, 2009, through June 30, 
5 

2010), as well as substantial bonuses pursuant to the two agreements. He estimated that 

the revenues deriving from his surgical services to Abou-Samra exceed $3 million. Sabit 

also declared that he believed Abou-Samra sought a pretext to avoid paying the 

compensation due. Sabit also described the summary suspension and the employment 

termination as damaging to his professional reputation. 

 Sabit stated that in addition to his provisional staff privileges at the 

Hospital, he also held staff privileges at another hospital, Ventura County Medical 

Center. At the time of the litigation in the trial court, Sabit was a licensed neurosurgeon 

in Michigan. 

 Sabit also presented the deposition testimony of Hospital Chief Executive 

Gary Wilde. Wilde stated that during a conversation in November 2010, Abou-Samra 

related that Sabit had committed medical errors and that Abou-Samra was disappointed 

and would be "disassociating" with him. 

Trial Court's Ruling and Orders 

 The trial court granted the anti-SLAPP motion of the Hospital defendants, 

awarded their attorney fees and costs, and entered a judgment of dismissal. (§ 426.16, 

subd. (c)(1) [prevailing defendant on a special motion to strike entitled to attorney fees 

and costs].) In its written decision, the court relied in part upon Kibler v. Northern Inyo 

County Local Hospital Dist. (2006) 39 Cal.4th 192, 198 ["a lawsuit arising out of a peer 

review proceeding is subject to a special motion under section 425.16 to strike the 

SLAPP suit"].) The court noted the absence of evidence that the Hospital defendants and 

Abou-Samra "worked in concert to manufacture a ground on which Dr. Abou-Samra 

could terminate the agreement." 

 The trial court also granted the anti-SLAPP motion of Abou-Samra 

regarding the fourth cause of action (intentional interference with prospective economic 

advantage) and awarded him attorney fees and costs. The court denied the motion 

concerning the causes of action for breach of contract and an accounting. 
6 

 Sabit appeals the orders granting the Hospital's and Abou-Samra's antiSLAPP motions and awarding their attorney fees and costs as prevailing parties.2

 AbouSamra cross-appeals the order denying his anti-SLAPP motion regarding the three 

remaining causes of action alleged against him. 

 During briefing of this matter, the Hospital defendants and Abou-Samra 

requested that we take judicial notice of the first amended accusation filed against Sabit 

with the California Medical Board of California on November 5, 2013. By separate 

order, we declined to take judicial notice of the amended accusation because it occurred 

following Sabit's 2010 summary suspension and the filing of this lawsuit. 

DISCUSSION 

I. 

Causes of Action against the Hospital Defendants 

 Sabit argues that the Hospital's action in summarily suspending his staff 

privileges cannot be the subject of an anti-SLAPP motion because the suspension is an

action, not a communication. He also asserts that the Hospital intentionally interfered 

with his employment with Abou-Samra by issuing the suspension. Sabit relies upon 

Wilde's deposition testimony that Abou-Samra stated that he intended to "disassociat[e]" 

with Sabit. Sabit contends that this evidence suggests that the parties acted in concert to 

suspend his hospital staff privileges and terminate his employment with Abou-Samra. 

 Section 425.16, subdivision (b)(1) provides that a cause of action "arising 

from" a defendant's act in furtherance of a constitutionally protected right of free speech 

may be struck unless the plaintiff establishes a probability that he will prevail on his 

claim. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) 

"[S]ection 425.16 provides a procedure for the early dismissal of what are commonly 

known as SLAPP suits . . . litigation of a harassing nature, brought to challenge the 

exercise of protected free speech rights." (Ibid.) "The anti-SLAPP statute's definitional 

focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity

 

2

 By a subsequent notice of appeal, Sabit appeals the judgment of dismissal. We ordered 

the appeals consolidated. 
7 

that gives rise to his or her asserted liability--and whether that activity constitutes 

protected speech or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) 

 The analysis of an anti-SLAPP motion is two-fold. (§ 425.16, subd. (b)(1); 

Flatley v. Mauro (2006) 39 Cal.4th 299, 314; Talega Maintenance Corp. v. Standard 

Pacific Corp. (2014) 225 Cal.App.4th 722, 727.) The trial court first decides whether 

defendant has made a threshold showing that the challenged cause of action is one arising 

from protected activity. If the court finds that a showing has been made, it then 

determines whether the plaintiff has demonstrated a probability of prevailing on his 

claim. (§ 425.16, subd. (b)(1).) Our inquiry regarding the first prong of the analysis 

concerns the principal thrust or gravamen of the cause of action--the allegedly wrongful 

and injury-producing conduct that provides the foundation for the claims. (DeCambre v. 

Rady Children's Hospital-San Diego (2015) 235 Cal.App.4th 1, 17; Gotterba v. Travolta

(2014) 228 Cal.App.4th 35, 51.) 

 We apply a de novo review to the trial court's determination of each step of 

the analysis. (Flatley v. Mauro, supra, 39 Cal.4th 299, 325-326; Gotterba v. Travolta, 

supra, 228 Cal.App.4th 35, 51.) "'[W]e engage in the same two-step process as the trial 

court to determine if the parties have satisfied their respective burdens. [Citations.] If 

the defendant fails to show that the lawsuit arises from protected activity, we affirm the 

trial court's ruling and need not address the merits of the case under the second prong of 

the statute.'" (Talega Maintenance Corp. v. Standard Pacific Corp., supra, 225 

Cal.App.4th 722, 728.) 

 At the time of Sabit's summary suspension, section 7:2-1 of the Hospital 

Bylaws authorized a summary suspension "[w]henever a member's conduct appears to 

require that immediate action be taken to protect the life or well-being of patient(s) or to 

reduce imminent danger to the life, health or safety of any patient or other person." This 

bylaw is consistent with California law authorizing an immediate summary suspension 

when "failure to take that action may result in an imminent danger to the health of any 

individual." (Bus. & Prof. Code, § 809.5, subd. (a).) 
8 

 In Kibler v. Northern Inyo County Local Hospital Dist., supra, 39 Cal.4th 

192, 198, our Supreme Court held that an anti-SLAPP motion was available to a hospital 

and its medical staff regarding their actions in a peer review proceeding where the 

disciplined physician later sued for interference with his practice of medicine. There, the 

hospital summarily suspended the physician's staff privileges for two weeks, but 

reinstated them after he agreed to refrain from certain behaviors. (Id. at p. 196.) Kibler

reasoned that a lawsuit arising from a peer review proceeding is subject to a special 

motion to strike pursuant to section 425.16 because it qualifies as "'any other official 

proceeding authorized by law'" pursuant to section 425.16, subdivision (e)(2). (Id. at 

p. 198; DeCambre v. Rady Children's Hospital-San Diego, supra, 235 Cal.App.4th 1, 14 

[applying Kibler to an anti-SLAPP motion filed by hospital defendants in a lawsuit 

arising from peer review proceedings].) 

 The act of summarily suspending Sabit is part of the peer review process as 

set forth in the Hospital Bylaws and as analyzed in Kibler. Sabit's characterization of the 

gravamen of his complaint as unprotected action or conduct fails to acknowledge the 

analysis in Kibler. (§ 425.16, subd. (b)(1) [a special motion to strike applies to a "cause 

of action against a person arising from any act of that person in furtherance of the 

person's right of petition or free speech"]; Kibler v. Northern Inyo County Local Hospital 

Dist., supra, 39 Cal.4th 192, 198-201.) Sabit cannot avoid the anti-SLAPP statute by 

characterizing the allegations of his complaint as unprotected conduct. (Nesson v. 

Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 82-83, 

disapproved on other grounds by Fahlen v. Sutter Central Valley Hospitals, supra, 58 

Cal.4th 655, 686, fn. 18.) Indeed, the anti-SLAPP statute applies to claims made in 

connection with the protected activity, regardless of the defendant's motive or the motive 

plaintiff ascribes to him. (Id. at p. 83.) 

 Regarding the second step of an anti-SLAPP motion analysis, Sabit has not 

established a probability of success with either of the causes of action alleged against the 

Hospital defendants. He admits that he possessed staff privileges at Ventura County 

Medical Center (and now in Michigan) and therefore cannot establish that he has been 
9 

excluded from the practice of medicine. (O'Byrne v. Santa Monica-UCLA Medical 

Center (2001) 94 Cal.App.4th 797, 812-813 [plaintiff remained on staff at other hospitals 

and defendant hospital took no action to prevent plaintiff from practicing at other 

hospitals].) 

 Sabit also has not established a probability of success regarding the 

intentional interference with contract cause of action because he has not provided 

evidence that the Hospital defendants knew of his employment contracts with AbouSamra and that they acted knowing that the contracts would be disrupted. (Davis v. 

Nadrich (2009) 174 Cal.App.4th 1, 10 [elements of cause of action for intentional 

interference with contract include a defendant's knowledge of the contract and his 

intentional act designed to disrupt or induce a breach of the contract].) The sole evidence 

upon which Sabit relies is Wilde's deposition testimony that he knew Abou-Samra had "a 

partner [Sabit]," Abou-Samra was disappointed in Sabit, and Abou-Samra was thinking 

of severing the relationship. There is no evidence that the Medical Executive Committee 

knew this information or that they knew details of the employment or independent 

contractor agreements. The only reasonable inference from the evidence is that the 

Committee acted with an intent to protect the well-being of the hospital patients. (Nesson 

v. Northern Inyo County Local Hospital Dist., supra, 204 Cal.App.4th 65, 82 [overriding 

goal of the state-mandated peer review process is to protect the public, and although 

important, physicians' due process rights are subordinate to public safety needs].) 

II. 

Causes of Action against Abou-Samra 

 Sabit argues that the fourth cause of action for intentional interference with 

prospective economic advantage did not arise from protected activity because AbouSamra improperly influenced the Medical Executive Committee to disrupt Sabit's 

professional relationship with the Hospital defendants. 

 As discussed ante, our Supreme Court has determined that an anti-SLAPP 

motion may lie in defense of a lawsuit raising tort damage theories arising directly from a 

peer review committee recommendation. (Kibler v. Northern Inyo County Local
10 

Hospital Dist., supra, 39 Cal.4th 192, 196-197; Young v. Tri-City Healthcare Dist. (2012) 

210 Cal.App.4th 35, 57.) The anti-SLAPP statute applies regardless of Abou-Samra's 

motive or the motive that Sabit ascribes to him. (DeCambre v. Rady Children's HospitalSan Diego, supra, 235 Cal.App.4th 1, 22 [anti-SLAPP statute applies to peer review 

committee's protected activity in terminating physician, despite physician's claim of 

discriminatory motive]; Nesson v. Northern Inyo County Local Hospital Dist., supra, 204 

Cal.App.4th 65, 83.) 

 Regarding the second step of the anti-SLAPP motion analysis, Sabit has not 

demonstrated a probability of prevailing on this claim. Wilde testified that Abou-Samra 

stated that he was disappointed with Sabit's patient care and that he questioned Sabit's 

veracity. Abou-Samra also stated that he would be "disassociating" with Sabit. There is 

no evidence that Abou-Samra and Wilde discussed Sabit's staff privileges or that Wilde 

shared this conversation with anyone. Indeed, Wilde testified that he believed that Sabit 

rendered appropriate medical care in "the vast majority of [his] cases." This evidence 

does not establish the element of an intentional act designed to disrupt a relationship. 

(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 [elements of 

the cause of action of intentional interference with prospective economic advantage 

include a defendant's knowledge of an economic relationship between plaintiff and a 

third party, and defendant's intentional acts designed to disrupt the relationship].) The 

trial court properly granted the anti-SLAPP motion regarding this cause of action. 

III. 

Abou-Samra's Cross-Appeal

 Abou-Samra contends that the trial court erred by not granting his antiSLAPP motion concerning the causes of action for breach of contract and an accounting 

because those causes of action arguably arise from the protected activity of a peer review 

proceeding. He points out that his participation in Sabit's peer review proceedings is the 

foundation for the complaint's allegations. 

 The trial court's ruling was proper. At best, the causes of action for breach 

of contract and an accounting allege a mix of protected and unprotected activity. Sabit 
11 

alleges that Abou-Samra terminated the independent contractor agreement without cause 

when he improperly caused and relied upon the summary suspension to terminate the 

agreement. The gravamen of this allegation concerns Abou-Samra's influence upon and 

interaction with the peer review committee as a pretext to terminate the agreement. As 

such, Abou-Samra's activity is protected. (Kibler v. Northern Inyo County Local

Hospital Dist., supra, 39 Cal.4th 192, 198.) 

 Sabit also alleges, however, that Abou-Samra owes him compensation 

pursuant to the employment agreement and the independent contractor agreement. The 

alleged non-payment of compensation and bonuses would be a breach of the agreements 

whether or not the termination was valid. Proof of these allegations does not involve 

evidence of protected activity. Indeed, the allegations of breach of the employment 

agreement by failing to pay compensation due predate the convening of the peer review 

committee and its recommendation of suspension. Sabit alleges that he earned unpaid 

compensation for services rendered between July 1, 2009, and September 16, 2010; the 

peer review committee met on December 3, 2010, and rendered its decision that day. 

 Moreover, the sixth cause of action for an accounting of compensation and 

bonuses is derivative of the causes of action for breach of contract. As such, it also does 

not involve protected activity. (DeCambre v. Rady Children's Hospital-San Diego, 

supra, 235 Cal.App.4th 1, 18 [physician's claims of harassment and intentional infliction 

of emotional distress not subject to anti-SLAPP motion because claims arose from 

alleged disparate treatment occurring throughout employment].) 

 If plaintiff can show a probability of prevailing on any part of his claim, the 

cause of action is not meritless and will not be struck in response to an anti-SLAPP 

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

Schnitt (2015) 233 Cal.App.4th 1423, 1438.) "[I]f the nonmoving party demonstrates a 

prima facie case of prevailing on any part of a mixed cause of action, the anti-SLAPP 

motion fails. Our conclusion is based on: (1) the express words of the statute; (2) its 

underlying policies; and (3) the extraordinary consequences of the anti-SLAPP statute 

that distinguishes it from all other procedural motions." (Baral, at p. 1438.) Here Sabit 
12 

has established that the causes of action for breach of contract and an accounting for 

failure to pay compensation, expenses, and bonuses due and owing have some merit. 

 The orders are affirmed. The judgment of dismissal in favor of the Hospital 

defendants is also affirmed. The Hospital defendants and Abou-Samra shall recover 

costs and attorney fees in amounts to be determined by the trial court. 

 NOT TO BE PUBLISHED. 

 GILBERT, P. J. 

We concur: 

 YEGAN, J. 

 EPSTEIN, J.*

 

*

(Justice of the Court of Appeal, Second Appellate District, Div. 4, assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Calif. Const.) 
13 

Mark S. Borrell, Judge 

Superior Court County of Ventura 

______________________________ 

 Cohen & Lord, a P.C., Bruce M. Cohen, Jonathan F. Golding for Plaintiffs 

and Appellants Aria Omar Sabit, M.D. and Aria Sabit, M.D., P.C. 

 Reback, McAndrews, Kjar, Warford & Stockalper & Moore, LLP, Cindy 

A. Shapiro, James J. Kjar, Evan N. Okamura, Jacob Kozaczuk for Defendants and 

Appellants Moustapha Abou-Samra, M.D. P.C., Moustapha Abou-Samra, M.D. 

 Arent Fox LLP, Steven E. Bledsoe, Jonathan E. Phillips for Defendants and 

Respondents Community Memorial Health System, dba Community Memorial Hospital; 

Medical Staff of Community Memorial Hospital of San Buenaventura; Marc Beaghler, 

M.D.; Samuel D. Small, D.O.; Robert T. Mazurek, M.D.; William A. Speitel, M.D.; and 

Thomas F. Golden, M.D.