Bonni v. St. Joseph Health System, Case No. S244148
April 15, 2021
The Supreme Court of California placed Bonni v. St. Joseph Health System, Case No. S244148 on the calendar for a May 5, 2021 oral argument in San Francisco, California.
The Supreme Court is presented with the following issue:
To what extent, if any, is the initiation and conduct of medical peer review proceedings protected activity under the anti-SLAPP statute?
As discussed in Ericksen Arbuthnot’s August 3, 2020 article “Ten Significant Civil Cases for The California Supreme Court’s September 2020 Term,”[i] the Bonni case involves a surgeon filing a retaliation claim against medical hospital defendants, having been suspended after raising complaints about safety issues, and defendants responding with an anti-SLAPP motion. Defendants argued that the motion was based on the fact that plaintiff’s claims arose from the peer review process, which is generally considered a protected activity.
When evaluating an anti-SLAPP motion, a court conducts a two-step inquiry (also known as the anti-SLAPP test).[ii] First, “the court must decide whether the defendant has made a threshold showing that the plaintiff's claim arises from protected activity.”[iii] To meet its burden under the first prong, a defendant must demonstrate that its act underlying the plaintiff's claim fits one of the categories spelled out in subsection (e) of the anti-SLAPP statute.[iv] One 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.”[v] Should the defendant meet the burden of showing that all or part of its activity was protected, then the court proceeds to the second prong of the anti-SLAPP test, asking whether the plaintiff has demonstrated a probability of prevailing on the claim.[vi]
Plaintiff Aram Bonni, a surgeon, sued St. Joseph Hospital of Orange, Mission Hospital Regional Medical Center, and other defendants for retaliation under the whistleblower statute, California Health and Safety Code § 1278.5.[vii] He claimed that -- in response to his reporting “suspected unsafe and substandard conditions and services” at the defendants’ hospitals -- defendants suspended and ultimately denied him his medical staff privileges, after subjecting him to a humiliating peer review process.[viii]
Defendants filed an anti-SLAPP motion in response to plaintiff’s First Amended Complaint. They claimed that plaintiff’s poor judgment and surgical complications led to him being suspended, not his complaints, that the retaliation claim arose from the peer review process protected pursuant to California Code of Civil Procedure § 425.16(e), and that plaintiff could not show a probability of success on his retaliation claim because he lacked admissible evidence that defendants retaliated against him.
The trial court granted defendants’ anti-SLAPP motion, finding that plaintiff’s retaliation claim was based on defendants’ peer review process, which was a protected activity, and therefore met the first prong of the anti-SLAPP test. The trial court then looked at the second prong and found that plaintiff failed to meet his burden of demonstrating a probability of prevailing on his retaliation claim. Plaintiff appealed the ruling.
The California Fourth District Court of Appeal found that the defendants’ motion failed on the first prong of the anti-SLAPP test. Plaintiff’s cause of action for retaliation under the whistleblower statute was not a SLAPP because a peer review process is not a protected activity when employed for potentially retaliatory motives. It was not the statements made during the process that were the basis of liability, but rather the motive behind the statements.[ix] Since the anti-SLAPP motion failed to meet the first prong, the Court of Appeal did analyze the second prong, whether plaintiff had demonstrated a probability of prevailing. The Court concluded: “Discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.”
California’s Supreme Court granted review on November 1, 2017. On July 22, 2019, the Supreme Court issued a ruling on Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, which cited the Bonni case with disapproval, finding that the anti-SLAPP statute also applied to discrimination and retaliation claims.[x]
Webcasts of the Court’s live (available approximately 30 minutes before start) and archived oral arguments can be found here,[xi] the parties’ briefs can be found here,[xii] and the Court’s general oral argument calendar is located here.[xiii]
Andrew J. Chan is a partner in Ericksen Arbuthnot’s Oakland/East Bay office and co-chair of the Firm’s Appellate Practice Group. Mr. Chan can be reached at (510) 832-7770 extension 108 or firstname.lastname@example.org.
Gregory A. Mase is a Senior Counsel in Ericksen Arbuthnot’s Oakland/East Bay office and co-chair of the Firm’s Appellate Practice Group. Mr. Mase can be reached at (510) 832-7770 extension 120 or email@example.com.
[ii] Bonni v. St. Joseph Health System (2017) 13 Cal. 5th 851, 859-860 (citations omitted).
[iii] Id. (emphasis in original) (citations omitted).
[iv] Id. (citations omitted).
[v] Id. (quoting C.C.P. § 425.16(e)(2)).
[vi] Id. (citations omitted).
[vii] Section 1278.5(b)(1)(A) of the Health and Safety Code states: “A health facility shall not discriminate or retaliate, in any manner, against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person has done either of the following: (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.”
[viii] Bonni, supra, 13 Cal. 5th at 854-855.
[ix] The Court argued that though the anti-SLAPP statute protected “any written or oral statement or writing made in connection with an issue under consideration or review by [an] official proceeding authorized by law,” C.C.P. § 425.16(e)(2), plaintiff did not allege any specific written or oral statement or writing was the basis of the retaliation claim, but rather the peer review process was abusive. Id. at 863.
[x] Wilson v. Cable News Network, Inc. (2019) 7 Cal. 5th 871, 892 (“In sum, we conclude that for anti-SLAPP purposes discrimination and retaliation claims arise from the adverse actions allegedly taken, notwithstanding the plaintiff’s allegation that the actions were taken for an improper purpose. If conduct that supplies a necessary element of a claim is protected, the defendant’s burden at the first step of the anti-SLAPP analysis has been carried, regardless of any alleged motivations that supply other elements of the claim. We disapprove Bonni v. St. Joseph Health System, supra, 13 Cal.App.5th 851, review granted, and Nam v. Regents of University of California, supra, 1 Cal.App.5th 1176, to the extent they are inconsistent with this conclusion.”)