Marmureanu v. Laks

Filed 2/25/05 Marmureanu v. Laks CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Plaintiffs and Respondents,

Defendant and Appellant.

B173813

(Los Angeles County
Super. Ct. No. BC302686)

ALEXANDER MARMUREANU et al.,

HILLEL LAKS,

APPEAL from an order of the Superior Court of Los Angeles County,
Rodney E. Nelson, Judge. Affirmed.

Blecher & Collins, Maxwell M. Blecher and Alicia G. Rosenberg for
Defendant and Appellant.

Reuben & Novicoff, Timothy D. Reuben, Teri T. Pham and Daniel A. Windler

for Plaintiffs and Respondents.

______________________________

This is an action by one doctor against another, with allegations that the

defendant doctor misused the peer review process at the UCLA Medical Center
to interfere with the plaintiff doctor’s competitive medical practice. The trial
court denied the defendant’s special motion to strike under the anti-SLAPP
statute, section 425.16 of the Code of Civil Procedure. We affirm that order.

FACTS
A.

Hillel Laks, M.D., a cardiac surgeon, is Chief of the Division of Cardiac
Surgery in the Department of Surgery at the UCLA School of Medicine, the
director of UCLA’s heart and heart-lung transplant programs, a full-time
professor, and (in all these capacities) an employee of the University of
California, a constitutionally created branch of state government. (Cal. Const.,
art. IX, § 9; Regents of University of California v. City of Santa Monica (1978) 77
Cal.App.3d 130, 135; 30 Ops. Cal. Atty. Gen. 162 (1957).)

Although the UCLA Medical Center is primarily a teaching hospital staffed

by faculty members, non-faculty members may apply for staff privileges as
members of the Medical Center’s Courtesy Attending Medical Staff. As Division
Chief, Dr. Laks makes recommendations to the Surgical Service peer review
committee regarding the qualifications of non-faculty member physicians
applying for staff privileges in cardiac surgery.

In 2002, Alexander Marmureanu, M.D., a cardiothoracic surgeon,
completed his residency at the UCLA Medical Center and applied for staff

privileges in three categories of cardiac surgery and thoracic surgery, and those
privileges were granted in February 2003.

Under California law, the governing body of a hospital grants applications
for privileges based on the medical staff’s recommendations made
in
accordance with peer review procedures established by the hospital. (Cal.
Code Regs., tit. 22, §§ 70035, 70701(a)(1)(B), 70701(a)(7), 70703(b).) UCLA
Medical Center grants surgical privileges based on the recommendations of the
Medical Staff Executive Committee, the Medical Staff Credentials Committee,
and the Chief of the Surgical Service (who, at the times relevant to this case,
was E. Carmack Holmes, M.D.). At the time Dr. Marmureanu applied for staff
privileges, Dr. Laks’s role was to make recommendations to Dr. Holmes’s
committee with regard to all applications for cardiac surgery privileges.

In early 2003, Dr. Marmureanu applied for additional privileges. Dr. Holmes

reviewed Dr. Marmureanu’s application, granted some but not all of the
privileges he sought, and deferred a decision on the remaining privileges.
Dr. Marmureanu did not challenge the Medical Center’s decision through its
administrative procedures or in court.

In March, Dr. Marmureanu argued to the Medical Center’s administration
that, as a non-faculty member of the attending staff, he was entitled to require
the residents to care for his patients when he was not at the hospital. According
to Dr. Marmureanu, Dr. Laks argued against that position. Around the same
time, the Medical Center adopted a policy limiting access to certain patient

records to faculty members.1 Dr. Marmureanu objected to the policy but did
not challenge it through the Medical Center’s administrative procedures or in
court. In June, Dr. Holmes wrote to Dr. Marmureanu to express concerns that Dr.
Marmureanu might have breached the confidentiality of one or more of Dr.
Laks’s patients who received care at the Medical Center.2

C.
In September, Dr. Marmureanu (and his professional corporation, which is

included in our references to Dr. Marmureanu) sued Dr. Laks (and only Dr. Laks),
alleging causes of action for unfair competition, restraint of trade, tortious
interference with contract, and tortious interference with the right to practice a
profession. Dr. Marmureanu alleged, among other things, that Dr. Laks made
false statements about Dr. Marmureanu’s qualifications, causing the Medical
Center to restrict his privileges in complex pediatric cardiac surgery; that Dr. Laks
caused the Medical Center to adopt the policy that all patient care by
residents had to be supervised by a faculty member; that Dr. Laks caused UCLA

1 The Medical Center is required to hold regular peer review meetings to review deaths and
complications. In the Surgical Service, this is done by the Division’s Mortality and Morbidity
Conferences, during which cases are discussed and evaluated, and about which reports are
prepared for the Medical Staff Peer Review Committee. Under the rule in question, the records
used at these conferences may only be viewed by the resident presenting the case, the
attending physician, the head of the Division’s Quality Improvement Committee, the Division
Chief, and the Performance Review Coordinators responsible for preparing the particular report.
Dr. Marmureanu claimed that the Medical Center’s policy prevented him from meaningfully
participating in cardiac surgery conferences, and he alleges in this lawsuit that the rule was
adopted at Dr. Laks’s behest.

2 Among other things, the letter states: “Although I do not know the source of your information
regarding Dr. Laks’ patients, conversations with third parties about a patient’s medical condition
suggest that patient confidentiality may have been breached. The breach would be further
exacerbated if the source of your information was a Medical Staff peer review committee. In
addition to breaching patient confidentiality, your conversations about Dr. Laks’ patients are
having a disruptive impact on the Department of Surgery and need to stop.”

to adopt the privacy policy that restricted access to certain patient records;
and that Dr. Laks’s unfounded complaints about Dr. Marmureanu’s alleged
disclosure of confidential
information caused UCLA
to
investigate Dr.
Marmureanu’s conduct. All of these things, claims Dr. Marmureanu, were done
by Dr. Laks as part of a personal campaign to exclude, isolate, ostracize,
embarrass and interfere with Dr. Marmureanu’s ability to establish his medical
practice.

In proceedings held at or about the time Dr. Marmureanu filed this lawsuit,
Dr. Laks’s lawyer represented that Dr. Laks had recused himself from “matters
involving Dr. Marmureanu,” and that Dr. Marmureanu would be allowed to
participate in the conferences he had been excluded from “on the same basis
as other members of the medical staff.” Discovery was stayed while the parties
attempted to resolve their dispute.

On the day before the stipulated stay expired, Dr. Laks filed a special
motion to strike Dr. Marmureanu’s complaint. (Code Civ. Proc., § 425.16, the
anti-SLAPP statute.)3 Dr. Marmureanu sought and obtained leave to conduct
limited discovery, took a deposition, then filed his opposition to the motion to
strike. An unreported hearing was held, after which the motion was denied by a
minute order stating no more than the fact of denial. Dr. Laks appeals.

3 Undesignated section references are to the Code of Civil Procedure.

DISCUSSION

Dr. Laks contends the anti-SLAPP statute applies to all of Dr. Marmureanu’s
causes of action, and that Dr. Marmureanu failed to show a probability of
success on the merits. We agree with the trial court’s implied finding that the
statute does not apply to this case (and thus do not reach the other issues).

As relevant, subdivision (b)(1) of section 425.16 provides that, unless the
plaintiff establishes that there is a probability he will prevail on the merits of his
claim, 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 . . . in connection with
a public issue shall be subject to a special motion to strike . . . .” (Emphasis
added.) As relevant, subdivision (e) of section 425.16 defines the italicized
language to include “(1) any written or oral statement . . . made before a
legislative, executive, or judicial proceeding, or any other official proceeding
authorized by law; (2) any written or oral statement . . . made in connection with
an issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law; (3) any written or oral
statement . . . made in a place open to the public . . . ; (4) or any other conduct
in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an issue of
public interest.”

A two-step analysis determines whether the statute applies. “First, the
court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. (§ 425.16,

subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act
underlying the plaintiff’s cause fits one of the categories spelled out in section
425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been
made, it must then determine whether the plaintiff has demonstrated a
probability of prevailing on the claim. (§ 425.16, subd. (b)(1) [citation].)”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) We review the issue de novo.
(Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)

B.
1.

While this appeal was pending, a strikingly similar case was decided by
Division One of the Fourth Appellate District, O’Meara v. Palomar-Pomerado
Health System (2005) 125 Cal.App.4th 1324 [23 Cal.Rptr.3d 406]. The plaintiff in
O’Meara, the former chair of the Department of Orthopedic Surgery at the
Palomar Medical Center, sued Palomar and various individuals on its peer
review committee, alleging (in numerous causes of action for statutory violations
and tort, including interference with economic interests) that the defendants
had placed him on probation and otherwise retaliated against him because he
had expressed dissatisfaction about a managed care entity’s involvement in
medical decisions. The defendants filed a special motion to strike (§ 425.16),
claiming their statements about disciplinary matters were made in an “official
proceeding,” and that their conduct involved a public issue (managed health
care). (O’Meara v. Palomar-Pomerado Health System, supra, 23 Cal.Rptr.3d at
p. 409.)

In a carefully reasoned opinion, O’Meara rejects the contention that the

medical peer review process is an “official proceeding” within the meaning of

section 425.16. We agree with O’Meara and thus quote from it to explain our
rejection of Dr. Laks’s claim that the peer review system at the UCLA Medical
Center is an “official proceeding” within the meaning of the anti-SLAPP statute:

“Palomar’s Executive Committee is a legally mandated hospital peer
review organization established under Palomar’s medical staff bylaws.
[Citation.] The Executive Committee acts on behalf of Palomar’s medical staff
and, as with all California hospital peer review bodies, is charged with adopting
rules for appropriate hospital practices and procedures, evaluating physicians
applying for staff privileges, establishing standards and procedures for patient
care, assessing the performance of staff physicians, reviewing performed
surgeries, and investigating a complaint or incident involving a staff physician.
[Citations.]

“Although these functions serve important public purposes of improving

patient care and ensuring quality health services [citation], the California
Supreme Court has recognized that a hospital peer review committee differs
from a governmental agency in several fundamental ways. [Citation.] ‘First, [a
hospital peer review committee] is not a public agency created and funded by
the state, but a group of private physicians selected by and from the staff of a
hospital.[4] Second, the conduct of the errant physician is not reviewed by

4 Although the Medical Center is not a private hospital, its peer review committee is nonetheless
a group of physicians selected by and from its staff. More to the point, Dr. Laks is the only
defendant in this action, and the claims against him are quite obviously personal. In our view,
the fact that the conduct at issue in our case occurred at the UCLA Medical Center is
insufficient to justify a rule that would give the members of its peer review committees a shield (in
the form of a motion to strike under section 425.16) that is plainly unavailable to other medical
peer review committees and their members. We note also that the hospital defendant in
O’Meara is a public entity in the sense that it is a “hospital district” created by statute. (O’Meara
v. Palomar-Pomerado Health System, supra, 23 Cal.Rptr.3d at p. 409.)

independent, professional investigators, but by the physician’s own colleagues
practicing in the same hospital: it is, by definition, a peer review committee. By
weeding out incompetent or impaired staff physicians, therefore, the peer
review process — in addition to its public protection function — inevitably also
serves the private purpose of reducing the exposure of the hospital to potential
tort liability. Third, the “public” protected by the peer review process is not the
public at large, but is limited to the patients of the particular hospital in question.
The process is institution specific: a physician stripped of staff privileges by one
hospital is not ipso facto prevented from obtaining or maintaining such privileges
at other hospitals — the only entity with the power to prevent that from
happening is the [state medical board].’ [Citation.]

“Based on these essentially private functions of a hospital peer review
body and the legislative background of the anti-SLAPP statute, we conclude the
Executive Committee’s proceedings in this case cannot be fairly viewed as
‘official’ under the anti-SLAPP statute. In 1979, the California Supreme Court
addressed the issue whether a peer review proceeding conducted by a private
medical society was an ‘”official proceeding authorized by law”‘ under a former
version of the litigation privilege statute, Civil Code section 47. (Hackethal v.
Weissbein (1979) 24 Cal.3d 55, 58-61.) At the time, Civil Code section 47,
subdivision (2) provided for an absolute privilege for publications made ‘”in any
(1) legislative, or (2) judicial proceeding, or (3) in any other official proceeding
authorized by law . . . .”‘ (Hackethal v. Weissbein, supra, 24 Cal.3d at p. 57, fn. 1,
italics added.) Interpreting this former statute, the Hackethal court held that a
peer review proceeding was not an ‘”official proceeding”‘ because a peer
review committee was not a governmental body. [Citation.] The Hackethal
court ‘explicitly rejected the contention that merely because state law required

10.

the creation of a review committee, every body so created was “official.”‘
[Citation.] The court reasoned that the word ‘official’ before the word
‘proceeding’ was intended to preclude the application of the privilege in
‘nongovernment proceedings.’ (Hackethal v. Weissbein, supra [24 Cal.3d] at
p. 60.)

“Shortly thereafter, the Legislature amended Civil Code section 47 with the
intent ‘effectively to overrule the Hackethal decision,’ by adding a new
subsection, which extends the privilege to ‘”any other proceeding authorized by
law and reviewable [by an administrative writ of mandate]. . . .”‘ (Moore v.
Conliffe (1994) 7 Cal.4th 634, 652-653.) The language of that amendment is now
included in the statute as Civil Code section 47, subdivision (b)’s fourth category,
in addition to the ‘legislative,’ ‘judicial,’ and ‘official proceeding’ categories.
(Civ. Code, § 47, subd. (b).) As the Moore court explained, ‘by its immediate
unanimous response to Hackethal,’ the Legislature intended to make clear that
the statutory litigation privilege ‘should not be confined narrowly only to
witnesses who testify in peer review proceedings conducted by governmental
agencies, but rather should apply also to witnesses who testify in analogous
peer review proceedings conducted by private entities. . . .’ [Citation.]

“Approximately 13 years later, the Legislature enacted the anti-SLAPP
statute [citation], and in referring to the type of speech/petitioning activities that
are covered by the statute, the Legislature used some of the same language
used in the amended version of Civil Code section 47, subdivision (b) —
providing that the anti-SLAPP statute applies to statements ‘made in connection
with an issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law.’ (§ 425.16, subds.

11.

(e)(1) & (e)(2), italics added.) The Legislature, however, did not add the
additional clause that was contained in the amended version of Civil Code
section 47, subdivision (b)(2): ‘or . . . in the initiation or course of any other
proceeding authorized by law and reviewable pursuant to [an administrative
writ of mandate]. . . .’ (Italics added.)

“Based on this omission, we necessarily infer the Legislature did not intend
to include proceedings of a nongovernmental body, such as a hospital peer
review committee, in the definition of an ‘official proceeding’ within the
meaning of section 425.16, subdivisions (e)(1) and (e)(2). The Legislature is
presumed to be aware of existing law and judicial decisions interpreting the law
. . . .

“This conclusion is further supported by the analysis in Briggs [v. Eden
Council for Hope & Opportunity (1999)] 19 Cal.4th 1106, where the high court
construed section 425.16, subdivisions (e)(1) and (e)(2) as not imposing a
separate ‘public issue’ requirement. . . . [Briggs] support[s] the conclusion that
the purpose of section 425.16, subdivisions (e)(1) and (e)(2) was to establish a
bright-line test for matters that necessarily meet the test of public significance,
i.e., those before a governmental body. This purpose would be undermined if
section 425.16, subdivisions (e)(1) and (e)(2) were extended to
include
proceedings by private entities merely because those proceedings were legally
‘authorized.’

” . . . [O]ur conclusion is unaffected by the fact that one of the defendants
— Palomar-Pomerado Health System — is a public entity in the sense that it is a
hospital district created by statute. [Citation.] Because the factual basis of

12.

defendants’ ‘official proceeding’ claim is Palomar’s peer review proceedings,
and not the structure, ownership, or proceedings of the affected hospital, the
ownership status of Palomar Medical Center is not material on this issue.”
(O’Meara v. Palomar-Pomerado Health System, supra, 23 Cal.Rptr.3d at pp. 411-
414, fns. omitted.)

2.
O’Meara (by Division One of the Fourth Appellate District) was filed on

January 21, 2005. About 10 days earlier (on January 11), Division Two of the
Fourth Appellate District had filed an unpublished opinion in which it reached
the opposite result, Kibler v. Northern Inyo County Local Hospital District (Jan. 11,
2005, mod. Feb. 4, 2005, E035085) ___ Cal.App.4th ___ [2005 WL 45047]. On
February 4, Division Two filed an order modifying Kibler to disagree with O’Meara
and, as modified, certifying the opinion for publication.

In Kibler, a hospital suspended a doctor’s staff privileges and sought two
“workplace violence” injunctions against him. The suspension and the injunctions
were resolved by an agreement that included the doctor’s stipulation to a
permanent injunction — but the doctor nevertheless sued the hospital (and
individuals involved in the suspension proceedings), alleging seven causes of
action for intentional interference with his right to practice his profession,
defamation, restraint of trade, and a variety of other torts. The hospital, in turn,
filed a special motion to strike (§ 425.16), contending its conduct arose out of an
exercise of free speech related to an official proceeding. (Kibler v. Northern
Inyo County Local Hospital District, supra, ___ Cal.App.4th at p. ___ [Westlaw
printout at pp. 1-2].) Over the doctor’s opposition, the motion was granted. (Id.
at p. 3.)

13.

In the portion of the opinion written before it was modified, the Kibler court

affirmed the order granting the motion, holding that because all of the doctor’s
causes of action stemmed from his suspension and from the hospital’s
application for injunctions against him, the action was within the ambit of the
anti-SLAPP statute — because “petitions for injunctions are expressly subject to
section 425.16, subdivision
(a)(1), as
judicial proceedings and official
proceedings . . . .” (Kibler v. Northern Inyo County Local Hospital District, supra,
___ Cal.App.4th at p. ___ [Westlaw printout at pp. 3-4].) The court rejected the
doctor’s contention that the suspension proceeding was confidential and thus
not “official” within the meaning of section 425.16, and rather summarily
concluded
issue concerning public health care has public
“an
that
significance,” thus triggering the anti-SLAPP statute. (Id. at p. 4.)

The order modifying Kibler adds this: “We note that Division One of our
Fourth Appellate District has recently rendered an opinion in which it reaches a
result contrary to our opinion in this case. The facts in that case are similar to
those in this case insofar as the plaintiff sued a medical peer review committee,
alleging that the committee improperly investigated some of his actions and
placed him on probation. Division One denied a medical committee’s SLAPP
motion, finding that the proceedings by the hospital peer review committee did
not constitute an ‘official proceeding’ under . . . section 425.16, subdivision (e)(1)
and that the medical review committee action was not conduct in furtherance
of the constitutional right of free speech in connection with an issue of public
interest under . . . section 425.16, subdivision (e)(4).

“We disagree with those conclusions. Business and Professions Code

section 809, subdivision (a)(3) observes that ‘Peer review, fairly conducted, is

14.

essential to preserv[e] the highest standards of medical practice.’ Subdivision
(a)(6) observes that it is the policy of the State of California to protect the health
and welfare of the people of California, through the peer review mechanism.
Business and Professions Code, section 805, subdivision (1)(A) defines a peer
review body to include the medical or professional staff of any properly licensed
health care facility.

“We conclude, contrary to the O’Meara court, that the defendant peer

review committee in this case is protected under the anti-SLAPP statute both
because its action was an official proceeding clearly authorized by the
California Business and Professions Code and because its decision involved a
public issue, namely the protection of the health and welfare of the people of
California. A contrary conclusion would ignore California’s stated purpose to
create a mechanism to insure the health of its residents and would dissuade
medical and professional staffs of health care facilities or clinics from
participating in the peer review process.” (Kibler v. Northern Inyo County Local
Hospital District, supra, ___ Cal.App.4th at p. ___ [Westlaw printout at pp. 5-6, fn.
omitted].)

We agree with O’Meara’s legislative intent analysis and its recognition of
the inherently non-public nature of the medical peer review process. With
specific reference to our case, we note once again that a claim of unfair
competition is at the heart of Dr. Marmureanu’s claims against Dr. Laks, and that
the UCLA Medical Center and its peer review committee are not parties to this
lawsuit. The complaint alleges intentional torts against Dr. Laks personally, not

15.

negligence against an employee of the hospital, and not anything at all against
the hospital itself.

Dr. Laks contends that, to the extent Dr. Marmureanu attempts to impose
liability on him by reason of his statements to the Medical Center’s governing
bodies and others, his motion to strike should have been granted. We disagree.

A motion to strike under section 425.16 must be directed at an entire
cause of action, not at isolated allegations. (Scott v. Metabolife Internat., Inc.
(2004) 115 Cal.App.4th 404, 414.) Here, the substance of Dr. Marmureanu’s
causes of action — unfair competition, restraint of trade, tortious interference
with contract, and tortious interference with the right to practice a profession —
is his claim that Dr. Laks was trying to force Dr. Marmureanu out of the Medical
Center to avoid the competition. The fact that part of Dr. Laks’s conduct might
have been protected by the First Amendment is immaterial. (Jespersen v.
Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 631-632; Martinez v. Metabolife
Internat., Inc. (2003) 113 Cal.App.4th 181, 188; Globetrotter Software v. Elan
Computer Group (N.D. Cal. 1999) 63 F.Supp.2d 1127, 1130.) Because the
substance of the causes of action at issue is not based on an exercise of free
speech, the fact that some of the matters at issue were of interest to the public
(such as managed care) is immaterial. (Briggs v. Eden Council for Hope &
Opportunity, supra, 19 Cal.4th 1106; O’Meara v. Palomar-Pomerado Health
System, supra, 23 Cal.Rptr.3d at pp. 411-414.)

VOGEL, J.

NOT TO BE PUBLISHED.

We concur:

SPENCER, P.J.

MALLANO, J.

16.

Our conclusion that Dr. Marmureanu’s claims do not trigger the anti-SLAPP
statute makes it unnecessary to consider Dr. Laks’s other contentions.

DISPOSITION

The order is affirmed. Dr. Marmureanu is entitled to his costs of appeal.