Filed 4/30/15 Sabit v. Abou-Samra CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sab it, a professional corporation ("Sabit"), appeal the trial court's order granting a sp ecial motion to strike filed by Community Memorial Health System, doing business as Community Memori al Hospital ("the Hospital"); the medical staff of Community Memorial Hospital; and named individuals comprising the Hospital's peer review committee (all aforem entioned defendants referred to collectively as "the Hospital defendants" ). We conclude that the court properly granted a special motion to strike the two ca uses of action alleged against the Hospital2 defendants as a strategic lawsuit against publ ic participation ("SLAPP"), and we affirm. (Code Civ. Proc., § 425.16.) 1 Sabit also appeals the trial court's or der granting a special motion to strike filed by Moustapha Abou-Samra and Moustapha Abou-Samra, a professional corporation (collectively "Abou-Samra"), re garding a cause of action for intentional interference with prospective economic advantage. We conclude that the court also properly granted this anti-SLAPP motion, a nd 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 c ourt 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 bega n employment with Abou-Samra's professional corporation pursuant to a written employment agreement. The agre ement required Sabit to obtain medical staff privilege s 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 specif ied formula, and other monetary benefits, including an automobile allowance a nd reimbursement of certain expenses. On September 16, 2010, after Sabit fo rmed a professional corporation, the parties entered into an indepe ndent contractor agreement to "supersede and replace" the existing employment agreement. ("Independen t Contractor Agreement," ¶ 8.3, p. 12.) This agreement also provided for a mont hly salary, bonus compensation calculated according to a specified formula, and reimburs ement of certain expe nses. 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, th e Hospital's peer review committee, the Medical Executive Committee, in formed 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 safe ty of any person." The written notice of suspension referred to two instances where Sabit alle gedly 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 term inated the independent cont ractor agreement by written notice dated December 3, 2010. In the written termination notice, Abou-Samra referenced Sabit's "unaccepta ble surgical complication and infection rates," his incomplete and misleading medi cal 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 rein state Sabit's provisional privileges, but it required his improvement in six specified areas regardi ng patient care. Two weeks later, however, Sabit resigned from the Ho spital medical staff. Complaint Allegations On December 3, 2012, Sabit filed a la wsuit 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 susp ending his staff privileges because they acted without proper investigati on and with the intent to in terfere with his employment
with Abou-Samra.
Sabit also sued Abou-S amra, alleging causes of action for breach of the independent contractor agreement, breach of the employment agreement, intentional4 interference with prospective economic adva ntage, and an accoun ting (first, second, fourth, and sixth causes of action). Sab it alleged that Abou-Sa mra instigated and influenced peer review proceedings to deny him permanent staff privileges and to revoke his provisional staff privileges. According to the complaint, Abou-S amra then used the lack of staff privileges as a pretext to term inate the independent contractor agreement and deny bonus and other sums due pur suant to the two agreements. The Hospital Defendan ts' 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 medi cal staff became concerned regarding Sabit's medical practices when one pa tient required urgent interv ention from another hospital and a second patient died. Following investig ation and review of Sa bit's medical charts,
the Medical Executive Committee discussed Sa bit's performance and determined that summary suspension of his Hosp ital privileges was necessary to protect patients. Small stated that section 7:2-1 of the Hospita l Bylaws expressly authorized summary suspension under th e 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 pursua nt to the anti-SLAPP provisions of section 425.16. In support of the motion, Abou-Samra declared that in 2010, he served on th e Hospital's peer review committee that reviewed Sabit's medical practices and patient care. As a conseque nce of Sabit's summary suspension, AbouSamra terminated Sabit's em ployment pursuant to paragr aph 5 of the independent contractor agreement. Sabit's Responses and Declarations In response to the anti-SLAPP moti ons, Sabit declared that Abou-Samra owed him compensation, including reimbur sement for automobile expenses and insurance premiums, for his fi rst year of employment (Jul y 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-Samr a exceed $3 million. Sabit
also declared that he believed Abou-Samr a sought a pretext to avoid paying the compensation due. Sabit also described th e summary suspension and the employment termination as damaging to hi s professional reputation.
Sabit stated that in addition to hi s 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 tr ial court, Sabit was a licensed ne urosurgeon 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 committe d medical errors and that Abou-Samra was disappointed
and would be "disassoci ating" with him. Trial Court's Ruling and Orders The trial court granted the anti-SLAP P motion of the Hospital defendants, awarded their attorney fees and costs, and en tered a judgment of di smissal. (§ 426.16, subd. (c)(1) [prevailing defendant on a special motion to strike entitled to attorney fees and costs].) In its written deci sion, 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 4 25.16 to strike the SLAPP suit"].) The court noted the absence of evidence that the Ho spital defendants and
Abou-Samra "worked in concert to manufac ture a ground on which Dr. Abou-Samra could terminate the agreement." The trial court also granted th e anti-SLAPP motion of Abou-Samra regarding the fourth cause of action (intentio nal interference with prospective economic advantage) and awarded him a ttorney fees and costs. The court denied the motion concerning the causes of action for br each 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 hi s 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 th e first amended accusation filed against Sabit
with the California Medical Board of Califor nia 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 acti on in summarily suspending his staff privileges cannot be the subject of an an ti-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 i ssuing the suspension. Sabit relies upon Wilde's deposition testimony that Abou-Samra stat ed that he intended to "disassociat[e]"
with Sabit. Sabit contends that this evidence suggests that the partie s acted in concert to suspend his hospital staff privileges and te rminate his employment with Abou-Samra. Section 425.16, subdivision (b)(1) prov ides 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 establishe s a probability that he will prevail on his claim. ( Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 6 55, 665, fn. 3.) "[S]ection 425.16 provides a procedure for the early dismissal of what are commonly
known as SLAPP suits . . . l itigation 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 appe als 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. (§ 4 25.16, 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 th e 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 plai ntiff has demonstrated a pr obability 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 tria l 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 satisfi ed their respective burdens. [Citations.] If
the defendant fails to show th at the lawsuit arises from prot ected 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 susp ension, section 7:2-1 of the Hospital Bylaws authorized a summary suspension "[w]henever a me mber'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 au thorizing 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 prac tice of medicine. There, the hospital summarily suspended the physicia n'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 re view 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 By laws 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 ca nnot 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 defe ndant's motive or the motive plaintiff ascribes to him. ( Id. at p. 83.) Regarding the second step of an an ti-SLAPP motion analysis, Sabit has not established a probability of succe ss 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 ther efore cannot establish that he has been9 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 suc cess regarding the
intentional interference with contract caus e of action because he has not provided evidence that the Hospital defendants knew ofhis 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 [eleme nts of cause of action for intentional
interference with contract include a defenda nt'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 depositi on 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 ev idence that the Medi cal Executive Committee knew this information or that they knew de tails of the employment or independent contractor agreements. The only reasonabl e inference from the ev idence is that the
Committee acted with an intent to protect the well-being of the hospital patients. ( Nesson v. Northern Inyo Count y Local Hospital Dist.
, supra , 204 Cal.App.4th 65, 82 [overriding goal of the state-mandated peer review proc ess is to protect the public, and although important, physicians' due pro cess rights are subordinate to public safety needs].)
II. Causes of Action a gainst Abou-Samra Sabit argues that the fourth cause of action for intentional interference with prospective economic advantage did not ar ise from protected ac tivity 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 dete rmined 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 Local10 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 stat ute applies regardless of Abou-Samra's
motive or the motive that Sa bit 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 an ti-SLAPP motion analysis, Sabit has not demonstrated a probability of prevailing on th is 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 woul d be "disassociating" w ith Sabit. There is
no evidence that Abou-Samra and Wilde discu ssed 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 intentiona l act designed to disrupt a relationship. ( Korea Supply Co. v. Lockheed Mar tin Corp. (2003) 29 Cal.4th 1134 , 1153 [elements of
the cause of action of intentional interfere nce with prospective economic advantage include a defendant's knowledge of an econ omic relationship between plaintiff and a third party, and defendant's in tentional acts designed to di srupt 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 tria l 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 ar guably arise from the protected activity of a peer review proceeding. He points out that his participati on in Sabit's peer revi ew proceedings is the foundation for the comp laint'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. Sabit11 alleges that Abou-Samra terminated the inde pendent contractor agreement without cause when he improperly caused and relied upon the summary suspensi on to terminate the agreement. The gravamen of this allegation concerns Abou-Samra's influence upon and interaction with the peer revi ew committee as a pretext to te rminate 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 th e independent contractor agreement. The alleged non-payment of compensation and bonus es would be a breach of the agreements
whether or not the termination was valid. Proof of these allega tions does not involve evidence of protected activity. Indeed, the allegations of breach of the employment agreement by failing to pay compensation due pr edate the convening of the peer review
committee and its recommendation of suspension. Sabit allege s that he earned unpaid compensation for services rendered between Ju ly 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 fo r 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 [physi cian's claims of harassment and intentional infliction of emotional distress not subject to an ti-SLAPP motion because claims arose from alleged disparate treatment occu rring throughout employment].) If plaintiff can show a pr obability of prevailing on an y 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 14 23, 1438.) "[I]f the nonmoving party demonstrates a prima facie case of prevailing on any part of a mixed caus e 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 extraordinar y consequences of the anti-SLAPP statute that distinguishes it from all ot her procedural motions." ( Baral , at p. 1438.) Here Sabit12 has established that the causes of action fo r breach of contract and an accounting for failure to pay compensation, expenses, and b onuses due and owing have some merit. The orders are affirmed. The judgment of dismissal in favor of the Hospital defendants is also affirmed. The Hospita l 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 Appe llate District, Div. 4, assigned by the Chief Justice pursuant to art. V I, § 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 Kozacz uk 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 Memori al Health System, dba Community Memorial Hospital; Medical Staff of Community Memorial Hosp ital of San Buenaventura; Marc Beaghler, M.D.; Samuel D. Small, D.O.; Robert T. Ma zurek, M.D.; William A. Speitel, M.D.; and Thomas F. Golden, M.D.