Daily Blast August 23, 2017

Last week, the Fourth District Court of Appeal, Division Three (Santa Ana) analyzed an anti-SLAPP motion based on a plaintiff’s retaliation claim. In Bonni v. St. Joseph Health System et al. (July 26, 2017, G052367) __ Cal.App.5th __, the court held that although the plaintiff’s claim involved protected activity, it was not based on protected activity. Thus, defendants’ motion failed prong one of the anti-SLAPP analysis.

The plaintiff, a surgeon, sued St. Joseph Hospital of Orange, Mission Hospital Regional Medical Center, and other defendants, claiming they had retaliated against him when he reported potentially unsafe conditions at the defendants’ hospitals. (Slip opn., p. 3.) The plaintiff argued he was subjected to “a humiliating peer review process” and was denied medical staff privileges in retaliation for his whistleblower complaints. (Ibid.) Defendants countered with an anti-SLAPP motion, claiming the retaliation claim arose from the peer review process, which defendants asserted constituted protected activity under the anti-SLAPP statute. (Id. at p. 4.) The trial court granted the defendants’ anti-SLAPP motion, reasoning that the retaliation claim was based on protected hospital peer review activities, and that the plaintiff failed to demonstrate a probability of prevailing on the claim. (Id. at p. 8.)

The Court of Appeal  reversed. (Slip opn., p. 16.) Following the California Supreme Court’s recent decision in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, the Court of Appeal reasoned that in order to prevail on prong one of the anti-SLAPP analysis, it is not sufficient that plaintiff has alleged activity protected by the statute—the protected activity must “form the basis for the plaintiff’s claim.” (Id. at pp. 10-11.) The court analyzed the whistleblower statute at issue, determining that “the retaliatory purpose or motive for the adverse action, not the adverse action itself,” forms the basis for a retaliation claim under the statute. (Id. at p. 11.) Furthermore, the plaintiff did not allege any specific statement or writing communicated during the peer review process as the basis for his claim, but rather alleged retaliatory motive. (Id. at p. 13.) For these reasons, the court concluded that the defendants’ anti-SLAPP motion failed prong one analysis because plaintiff’s claim did not arise from protected activity. (Id. at p. 15.) In arriving at its conclusion, the court cautioned that “[d]iscrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion.” (Ibid.)

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