Fitzgibbons v. Integrated Healthcare Holdings (Full Text)

Filed 10/27/09 Fitzgibbons v. Integrated Healthcare Holdings CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MICHAEL W. FITZGIBBONS,

Plaintiff and Respondent,

INTEGRATED HEALTHCARE
HOLDINGS, INC.,

Defendant and Appellant.

G041374

(Super. Ct. No. 30-2008-00108081)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Gregory H.

Lewis, Judge. Affirmed.

Enterprise Counsel Group, David A. Robinson, Benjamin P. Pugh and

Timothy M. Kowal for Defendant and Appellant.

Law Offices of Donald K. Hufstader and Donald K. Hufstader for Plaintiff

and Respondent.

A holding company, formed to acquire and operate a hospital, appeals from

an order that denied its special motion to strike three causes of action in a complaint by

one of its doctors. The doctor alleged that the holding company conspired to frighten and

intimidate him in retaliation for his views on hospital policies and practices, made false

police reports, and aided and abetted in the malicious planting of a handgun in his vehicle

which led to his arrest.

We affirm the order denying the special motion to strike because the action

does not arise from protected activity under California?s anti-SLAPP statute (Code Civ.

Proc., § 425.16).1 The principal thrust or gravamen of each of the subject causes of

action arises from noncommunicative acts and other nonprotected activity. At most, the

allegations involving protected free speech or petitioning activity are incidental to

unprotected acts.

FACTUAL AND PROCEDURAL BACKGROUND

In determining whether a cause of action is based on a defendant?s

protected free speech or petitioning activity, we look to the pleadings and the supporting

and opposing declarations stating the acts upon which the liability is based. (§ 425.16,

subd. (b); Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier); Gilbert v. Sykes

(2007) 147 Cal.App.4th 13, 26 (Gilbert); Brill Media Co., LLC v. TCW Group, Inc.

(2005) 132 Cal.App.4th 324, 330.) We describe the evidence with this principle in mind.

Defendant Integrated Healthcare Holdings, Inc., (IHHI) owns and operates

Western Medical Center, an acute care hospital and trauma center in central Orange

County. Plaintiff Michael Fitzgibbons (Fitzgibbons) is a doctor at the hospital, a former

member of its medical executive committee and a former chief of staff.

1
“SLAPP” is an acronym for “strategic lawsuit against public participation.”
(See Episcopal Church Cases (2009) 45 Cal.4th 467, 473, fn. 1 (Episcopal).) All further
statutory references are to the Code of Civil Procedure, unless otherwise noted.

The First Lawsuit

On May 19, 2005, Fitzgibbons sent a confidential e-mail to medical

executive committee members and other individuals expressing concern about IHHI?s

financial ability to operate the hospital. On June 5, 2005, Fitzgibbons sent a second

confidential e-mail about the hospital?s patient care, safety, and financing to IHHI?s chief

executive officer, with copies to various hospital executives, a medical staff attorney, and

a state senator. Within weeks, IHHI sued Fitzgibbons for defamation, breach of contract,

and intentional interference with contractual relations.

Fitzgibbons denied the allegations in the complaint and filed a special

motion to strike under California?s anti-SLAPP statute (§ 425.16). His legal position

drew the support of two major physicians? groups, the California Medical Association

and the American Medical Association.

Fitzgibbons claimed that he became a “major target of retaliation” because

of his perceived hostility to IHHI. IHHI failed to renew his ongoing contract to provide

infection control services as an infectious disease specialist and refused to pay him for

infection control services he performed. According to Fitzgibbons, trauma surgeons at

the hospital “were reluctant to continue to consult me” and “reduced [their] consultations

to near zero.”

In Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006)

140 Cal.App.4th 515 (Integrated), we reversed the trial court?s order denying

Fitzgibbons?s anti-SLAPP motion because the e-mails were of widespread public

importance. “IHHI?s acquisition and operation of [Western] was the subject of public

hearings . . . and numerous articles [that] focused on IHHI?s financial ability to

successfully operate the hospitals, and the potential harm to the public should IHHI fail.

Fitzgibbons?s e-mail message expressing concern for IHHI?s financial health and its

ability to operate WMC falls squarely within these issues.” (Integrated, at p. 524.) We

held that IHHI had failed to demonstrate a probability of prevailing on the merits on any

of its claims. Consequently, we directed the trial court to enter an order dismissing the

lawsuit in its entirety.

The Handgun Incident

On June 28, 2006, 10 days after we published our opinion in Integrated, the

police received three anonymous 911 telephone calls “regarding a male brandishing a

firearm on another vehicle over a road rage incident.” The caller gave the police the

license plate number to Fitzgibbons?s vehicle and stated that he followed it to the

hospital?s doctors? parking lot.

Two Santa Ana police officers met Fitzgibbons in the hospital cafeteria.

They described him as “cooperative,” and he consented to a search of his car. The police

officers found a loaded black semi-automatic handgun and a pair of dark cloth gloves

hidden underneath the front driver?s seat. Fitzgibbons denied brandishing, possessing, or

owning a handgun, and said “he was being set up and that this was for retaliation for

winning a civil law suit against the hospital.” He was arrested for gun-related charges

and booked into the Santa Ana jail.

The police were unable to contact the male caller who made the 911

telephone call, which turned out to be initiated from a prepaid telephone calling card,

without any name or address associated with it.

A DNA test on the gloves showed Fitzgibbons to be “excluded as a

contributor.” There was insufficient DNA on the handgun for testing. No criminal

charges were filed against Fitzgibbons because of insufficient evidence.

The Current Lawsuit

In June 2008, Fitzgibbons filed a complaint against IHHI, seeking damages

for (1) intentional interference with prospective economic advantage, (2) defamation, (3)

intentional infliction of emotional distress, and (4) malicious prosecution.

The complaint specifically alleges that IHHI “made a false report to 911

and the Santa Ana Police Department that Plaintiff had brandished a hand-gun in an

alleged road-rage incident; and/or made intentionally false statements about Plaintiff

which cast him in a false light with respect to his arrest.”

IHHI filed a special motion to strike all the causes of action except for the

cause of action for malicious prosecution. Fitzgibbons opposed the motion with evidence

that a former IHHI executive witnessed his arrest from a nearby window, gestured down

to the parking lot and stated, “„People don?t know how powerful I am.?”

IHHI now appeals from the trial court?s denial of its special motion to

strike. IHHI also filed a separate SLAPPback motion for Fitzgibbons?s cause of action

for malicious prosecution. (See § 425.18, subd. (b)(1), for a statutory definition of

“SLAPPbacks.”) The trial court denied this motion as well, but it is not part of this

appeal.

III

DISCUSSION

A. We Apply the “Principal Thrust or Gravamen” Test to Determine Whether IHHI
Has Met Its Burden to Show the Targeted Action Arises from Protected Activity

The anti-SLAPP statute protects litigants from lawsuits brought primarily

to chill one?s constitutional right to petition the government to redress grievances and to

speak freely in matters of public interest. (§ 425.16, subd. (a).) Defendants must make a

threshold showing that the challenged cause of action is one “arising from” protected

activity. (§ 425.16, subd. (b)(1).) “While a defendant need only make a prima facie

showing that the underlying activity falls within the ambit of the statute, clearly the

statute envisions that the courts do more than simply rubber stamp such assertions before

moving on to the second step.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 317 (Flatley).)

If the defendants meet this first prong, then the burden shifts to the plaintiffs to

demonstrate a probability of prevailing on the claim. (Integrated, supra, 140 Cal.App.4th

at p. 522.)

IHHI and Fitzgibbons devote much of their briefs to whether the trial court

applied the correct test to the first prong for so-called “mixed” causes of action involving

both protected and unprotected activity. According to IHHI, the trial court erred by

broadly looking to the principal thrust or gravamen of the complaint as a whole rather

than taking a narrower view, “on a cause-of-action-by-cause-of-action basis,” to

determine whether “any protected activity is at stake.” (Italics added.) IHHI faults the

trial court for “unwittingly” following a “rogue” case, Wang v. Wal-Mart Real Estate

Business Trust (2007) 153 Cal.App.4th 790, which, in IHHI?s view, is “unmoored to any

statutory or case law.” IHHI further contends that another leading case, Martinez v.

Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 (Martinez) goes “beyond the

statutory text and legislative intent” of the anti-SLAPP statute.

We engage in a de novo review of the trial court?s ruling to deny the special

motion to strike. (Integrated, supra, 140 Cal.App.4th at p. 521.) Because we exercise

our independent judgment in reviewing the record (Sycamore Ridge Apartments LLC v.

Naumann (2007) 157 Cal.App.4th 1385, 1396), we need not concern ourselves with how

or why the trial court came to its result, only with whether its resolution is legally correct.

Unlike the trial court, we have the benefit of two recent decisions of our

Supreme Court on the subject of so-called “mixed” causes of action. These decisions,

which issued after the trial court?s anti-SLAPP hearing, apply the “principal thrust or

gravamen” test to determine whether a cause of action is based on protected activity.

(Episcopal, supra, 45 Cal.4th at pp. 477-478; see also Club Members for an Honest

Election v. Sierra Club (2008) 45 Cal.4th 309, 319 [“The „principal thrust or gravamen?

test has been used to determine whether an action fits within the scope of the anti-SLAPP

protection provided by section 425.16 when a pleading contains allegations referring to

both protected and unprotected activity”].) Both decisions cite Martinez. supra,

113 Cal.App.4th at page 188, a case which IHHI has implored us not to apply, as the

source for this “principal thrust or gravamen” test. If ever there was a real split in

intermediate appellate authority, the Supreme Court has resolved the matter.2

In Episcopal, supra, 45 Cal.4th at pp. 477-478, a parish church sought to

apply the anti-SLAPP statute to a lawsuit brought by the general church to regain

ownership and possession of the local church building. The local church argued that the

causes of action involved protected activity regarding an act in furtherance of free speech

on a public issue regarding church governance. The Supreme Court, while recognizing

that protected activity “arguably lurks in the background of this case” (Episcopal, at

p. 473), held that the anti-SLAPP statute did not apply because a property dispute “and

not any protected activity, is „the gravamen or principal thrust? of the action.”

(Episcopal, at p. 477.) “The additional fact that protected activity may lurk in the

background — and may explain why the rift between the parties arose in the first place

— does not transform a property dispute into a SLAPP suit. Accordingly, the trial court

erred in treating this as a SLAPP suit subject to section 425.16?s special motion to

dismiss.” (Id. at p. 478.)

In reality, as IHHI?s counsel himself stated at oral argument, we doubt there
is any conflict in the decisional law other than a disagreement about terminology. In
Salma v. Capon (2008) 161 Cal.App.4th 1275, the court, while declining to expressly
adopt the principal thrust or gravamen formulation (Id., at p. 1288, fn. 5), nonetheless
recognized that the anti-SLAPP statute does not apply to allegations of protected conduct
that are “merely incidental” to unprotected acts. (Salma, at p. 1288.) Stated otherwise,
where the principal thrust or gravamen of the cause of action rests on unprotected
conduct, inclusion of incidental references to protected acts is not enough to invoke the
statute.

The Supreme Court has further explained that “[t]he anti-SLAPP statute?s

definitional focus is not the form of the plaintiff?s cause of action but, rather, the

defendant?s activity that gives rise to his or her asserted liability— and whether that

activity constitutes protected speech or petitioning.” (Navellier, supra, 29 Cal.4th at

p. 92.) A court considering a special motion to strike must examine the allegedly

wrongful conduct itself, without particular heed to the form of action within which it has

been framed. (Id. at pp. 92-93.)

In the following sections, we apply the “principal thrust or gravamen” test

and explain why IHHI?s alleged activities do not involve protected speech or petitioning

in any of the three causes of action at issue in this appeal.

The Allegations That IHHI Participated in a Conspiracy to Plant Evidence and
Falsely Charge Fitzgibbons with a Crime Do Not Involve Protected Activities

The handgun incident in the hospital parking lot stands at the heart of the

instant lawsuit. It underlies each of Fitzgibbons?s three causes of action for intentional

interference with prospective economic advantage, defamation, and intentional infliction

of emotional distress. In the cause of action for the interference tort, for example,

Fitzgibbons alleges that he lost medical business and opportunities by IHHI?s activities in

“aiding and abetting the malicious planting a hand-gun in Plaintiff?s car leading to his

arrest following an anonymous „911? call alleging that [a] man was brandishing a weapon

in a fit of road rage . . . .” This same incident underlies Fitzgibbons?s defamation cause

of action as well; he alleges that IHHI?s comments regarding his arrest were slanderous

per se “since they imputed to Plaintiff criminal conduct.” And even IHHI concedes that

the emotional distress claim is “based presumably on Fitzgibbons?[s] gun possession

arrest . . . .”

IHHI argues that any 911 calls to the police involve protected free speech

activity “and presumptively fall within the scope of section 425.16, and specifically

section 425.16, subdivision (e)(2) (petitioning an executive body).” IHHI characterizes

its alleged communications as being “intended to trigger an investigation into possible

criminal activity.”3

IHHI relies upon Chabak v. Monroy (2007) 154 Cal.App.4th 1502. In

Chabak, the Court of Appeal applied the anti-SLAPP statute to a physical therapist?s

defamation action against a former patient for filing a false police report about touching

her inappropriately during a physical therapy session. “[The patient?s] statement to the

police arose from her right to petition the government and thus is protected activity.”

(Chabak, at p. 1512.)

IHHI ignores, however, the well-recognized distinction between pure

communication — which may be protected as a petition to a government body and

conduct, which is not. “As our Supreme Court has made clear, there is a distinction

between injury arising from (privileged) communicative acts and injury arising from

(nonprivileged) noncommunicative acts.” (Wang v. Hartunian (2003) 111 Cal.App.4th

744, 750-751 (Hartunian); “[B]y its very terms, [the anti-SLAPP statute] does not apply

to activity that is not in furtherance of the constitutional rights of free speech or petition

. . . .” (Flatley, supra, 39 Cal.4th at p. 324; see also Hagberg v. California Federal Bank

(2004) 32 Cal.4th 350, 374, original italics (Hagberg) [distinguishing between protected

pure communication and unprotected “malicious conduct of a citizen that aided or

promoted a peace officer?s unlawful arrest”].)

In Hartunian, supra, the Court of Appeal held that a citizen?s arrest is not

considered protected activity for purposes of a SLAPP motion. Notwithstanding any

reports by the arresting defendants of the alleged crime to the police, they crossed the

“the line between communication and conduct” when they filled out the citizen?s arrest

form. (Hartunian, supra, 111 Cal.App.4th at pp. 751-752.)

IHHI appears to have backed away from this claim at oral argument,
conceding that the allegations relating to the gun incident do not amount to protected
speech.

Similarly, in Kesmodel v. Rand (2004) 119 Cal.App.4th 1128 (Kesmodel),

the Court of Appeal applied the same conduct/communication distinction to permit a

tenant?s tort lawsuit to go forward against neighbors who falsely claimed he was a

“peeping Tom” and secured a citizen?s arrest. The court found the neighbors had done

more than merely petitioning the police to take action for redress of grievances; instead

they were civilly charged with aiding and abetting the commission of an intentional tort.

There is a “a qualitative difference „between malicious conduct of a citizen . . . and pure

communication . . . .?” (Id. at p. 1136, fn. 9, original italics.) “The evidence in the

present case makes clear beyond dispute that [the neighbor] instigated, encouraged,

aided, and assisted the wrongful act by summoning the deputies, falsely asserting [the

tenant] had peered into her bedroom, and by making it clear she wanted him arrested

when the officers declined to do so themselves.” (Id. at p. 1141.)4

The conduct/communication distinction extends beyond citizen?s arrest

cases to other areas where “an independent, noncommunicative, wrongful act was the

gravamen of the action . . . .” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065

(Rusheen).)

In Clark v. Mazgani (2009) 170 Cal.App.4th 1281 (Clark), the Court of

Appeal held that a landlord did not engage in a protected activity, for purposes of an anti-

SLAPP motion, when she unlawfully evicted a tenant from a rent-controlled apartment

by falsely claiming that her daughter intended to move in. The court rejected the

landlord?s claims that she engaged in privileged communications made in the course of

the unlawful detainer action; instead, as the court emphasized, the landlord was sued for

her tortious actions in fraudulently evicting the tenant. “„Terminating a tenancy or

4
Kesmodel, supra, 119 Cal.App.4th 1128, involves the litigation privilege

(Civ. Code, § 47, subd. (b)), not the anti-SLAPP statute. While the two protections are
not identical in every respect, courts have frequently looked to cases involving the
litigation privilege to understand the distinction between protected communications and
unprotected conduct. (See discussion in Flatley, supra, 39 Cal.4th at pp. 320-323.)

removing a property from the rental market are not activities taken in furtherance of the

constitutional rights of petition or free speech.?” (Clark, at pp. 1286-1287.)

Here, IHHI?s alleged misconduct involves more than petitioning a

governmental body or reporting a crime. The underlying activities — planting a handgun

in a vehicle and then using a calling card to make an untraceable 911 call to the police —

are not necessary to any protected speech or petition and are entirely independent of it.

(See Rusheen, supra, 37 Cal.4th at p. 1065.) As far as the handgun incident is concerned,

IHHI has been sued for engaging in “malicious conduct of a citizen that aided or

promoted a peace officer?s unlawful arrest” (Hagberg, supra, 32 Cal.4th at p. 374). If

anything, it is “healthy” to chill such conduct by the threat of a civil action to the extent

that it deters the commission of a crime. (Kimmel v. Goland (1990) 51 Cal.3d 202, 213

[illegal recording of telephone conversation is noncommunicative conduct].)

Because IHHI has failed to satisfy its burden on the first prong of the

SLAPP analysis, Fitzgibbons?s complaint is not subject to a motion to strike and our

analysis of the merits of his lawsuit ends. (Clark, supra, 170 Cal.App.4th at p. 1286.)

We do not determine whether Fitzgibbons can establish evidentiary support for his claims

regarding IHHI?s role in the handgun incident. Fitzgibbons has yet to be put to his proof.

The Principal Thrust or Gravamen of Fitzgibbons’s Cause of Action for
Intentional Interference Does Not Involve Protected Speech or Petitioning by
IHHI

In its opening and reply briefs, IHHI itself concedes that much, if not all, of

Fitzgibbons?s allegations underlying the cause of action for intentional interference with

prospective economic advantage have nothing to do with any protected activity.

For example, the interference cause of action alleges that IHHI orchestrated

Fitzgibbons?s retaliatory discharge from his position as infection control adviser at the

hospital, and introduced and promoted an economic competitor. IHHI points out both of

these actions occurred before he sent out his e-mail messages: “If this whole thing is

truly over just that „one email? in May 2005, then what „wrongful? motive characterized

Fitzgibbons?s supposed „discharg[e]? five months earlier in January? Fitzgibbons can

offer no explanation.” (Original italics.) In like fashion, as IHHI shows, Fitzgibbons

complains that IHHI dropped his name from a list of contractors around March or April

2005, “before Fitzgibbons sent his May 2005 email.” (Original italics.)

Fitzgibbons does not specifically allege any retaliatory activity undertaken

by IHHI that directly affected his economic relations in the immediate aftermath of his

e-mail messages. But even if he did, such actions (cutting off physician referrals to

Fitzgibbons, and failing to renew his contract as infection control advisor) fall on the

conduct side of the conduct/communications divide, and fail to meet IHHI?s threshold

showing the complaint entails “[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 . . . .”

(§ 425.16, subd. (b)(1)); Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154,

160-161 [landlord?s action in terminating a tenancy is not a protected activity for

purposes of the anti-SLAPP statute]; see also Westlake Community Hosp. v. Superior

Court (1976) 17 Cal.3d 465, 482 [terminating physician staff privileges not a

communicative act].)

The Principal Thrust or Gravamen of Fitzgibbons’s Cause of Action for
Defamation Does Not Involve Protected Speech or Petitioning by IHHI

As IHHI argues, Fitzgibbons?s allegations regarding its alleged defamatory

statements are even more obtuse. “The lack of specificity in the Complaint makes it

difficult to tell just what exactly Fitzgibbons claimed caused his injury.” IHHI

characterizes Fitzgibbons?s cause of action for defamation as “vague” in the extreme,

failing “to allege who said what provably false factual assertion to whom.” IHHI finds it

“impossible to determine from the face of the pleadings whether IHHI?s alleged

„defamatory comments? [citation] or „false and unprivileged statements? [citation] can be

placed in [the] context of Fitzgibbons?s earlier missives.” IHHI takes Fitzgibbons to task

for failing to provide “any detail regarding the alleged defamatory statements in his

complaint . . . .” (Original italics.)

We disagree with IHHI?s characterization at oral argument of the

defamation claim as principally involving a so-called “dust up” over e-mails. As in

Episcopal, supra, 45 Cal.4th at page 473, IHHI?s undefined (and allegedly defamatory)

response to the e-mails at most “lurks in the background” rather than at the forefront of

the cause of action. Based upon our review of the record, the principal thrust of the

defamation cause of action remains IHHI?s allegedly unprotected statements leading up

to and following the gun incident. IHHI?s claim that its protected speech is at issue,

based on vague and unspecified allegations of other defamatory statements, at most is

incidental to Fitzgibbons?s central thrust that he was defamed by being framed.

IHHI cites Gilbert, supra, 147 Cal.App.4th 13, for the proposition that it

can use a special motion to strike under the anti-SLAPP statute to secure the early

dismissal of a defamation claim that is not legally sufficient or supported by a sufficient

prima facie showing of facts to sustain a favorable judgment if the plaintiff?s evidence is

to be believed. But Gilbert?s call for specificity in pleading arises only in conjunction

with the second prong of the anti-SLAPP statute after the moving defendant has met its

burden to show that the defamation claim arose from protected activity. Where the

principal thrust or gravamen of the defamation claim did not arise from protected activity,

we need not consider Fitzgibbons?s probability of prevailing. (§ 425.16, subd. (b)(1).)

DISPOSITION

The order denying defendant?s anti-SLAPP motion is affirmed. Plaintiff

ARONSON, J.

shall recover his costs on appeal.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.