Opinion
F078599
02-25-2021
WILLIAM N. BICHAI, M.D., Plaintiff and Appellant, v. DIGNITY HEALTH et al., Defendants and Respondents.
Fenton Law Group, Henry R. Fenton and Dennis E. Lee for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Scott M. Klausner for Defendant and Respondent San Joaquin Community Hospital.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BCV-18-100629)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Fenton Law Group, Henry R. Fenton and Dennis E. Lee for Plaintiff and Appellant. Cole Pedroza, Kenneth R. Pedroza and Scott M. Klausner for Defendant and Respondent San Joaquin Community Hospital.
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Plaintiff William N. Bichai, M.D., sued a hospital for providing inaccurate information to another hospital that was considering his reapplication for staff privileges. Plaintiff alleged the first hospital informed the second hospital that plaintiff had meddled or interfered with the treatment of a patient and, as a result, the second hospital denied his reapplication. Plaintiff contends he was simply advocating for medically appropriate treatment of a patient with whom he had a long professional relationship.
Defendant San Joaquin Community Hospital (SJC Hospital) filed a special motion to strike under California's anti-SLAPP statute, contending that (1) the grounds for the lawsuit arose from protected activity—specifically, its report of information to a hospital conducting a peer review proceeding—and (2) the plaintiff failed to establish a reasonable probability he would prevail on any of his claims. (§ 425.16, subd. (b)(1).) The trial court agreed and granted the motion to strike as to all claims against the SJC Hospital.
Code of Civil Procedure section 425.16. Further statutory references are to the Code of Civil Procedure unless otherwise noted. The acronym "SLAPP" stands for strategic lawsuit against public participation. --------
Based on our independent review of the record, we conclude the plaintiff's retaliation and other claims arose from SJC Hospital's conduct of allegedly providing incorrect information to another hospital conducting a peer review proceeding. This conduct constitutes speech protected by section 425.16, subdivision (e)(2). We also conclude plaintiff failed to carry his burden of showing a reasonable probability he would prevail on his claims because the hospital's evidence—a release of liability and agreement not to sue signed by plaintiff—defeated the plaintiff's evidence as a matter of law.
We therefore affirm the judgment.
FACTS
Bichai is a licensed nephrologist and internist residing in Bakersfield and practicing medicine in the Central Valley. Defendant SJC Hospital is a California corporation that does business as Adventist Health Bakersfield. Defendant Dignity Health is a California corporation that does business as Mercy Hospital (Mercy Hospital). Mercy Hospital is not a party to this appeal. Judgment in its favor is the subject of a separate appeal and has been affirmed (case No. F078658).
Bichai first obtained privileges as SJC Hospital in 2008 and has been on a leave of absence since May 2013. Bichai also had privileges at Mercy Hospital from 2008 until June 2012, when, by mutual agreement, he surrendered those privileges.
In April 2016, Bichai submitted a reapplication for medical staff membership at Mercy Hospital. Bichai completed the University of California San Diego Physician Assessment Clinical Education (PACE) Program and, in January 2017, the PACE Program issued its findings that he was fit for duty without accommodation.
In May 2017, the medical executive committee of Mercy Hospital invited Bichai to be interviewed. During the interview, Bichai was asked several hypothetical questions about interpersonal relationships. In August 2017, Bichai and the chief of staff of Mercy Hospital spoke and Bichai was told he was going to be granted privileges with some conditions. Bichai's counsel also was informed of Mercy Hospital's intent to grant privileges.
Later that August, a patient of Bichai, with whom he had a long professional relationship, suffered a heart attack while at the Rehabilitation Center of Bakersfield (Rehab Center). The patient was taken by ambulance to the emergency room at SJC Hospital. After being evaluated in the emergency room, the patient was admitted to SJC Hospital under the care of Sound Hospitalist Group (Sound), which may be an entity separate from SJC Hospital and the Adventist family of entities. The patient's treatment team at SJC Hospital included an attending physician and consulting physicians. The team's consulting physicians included Dr. Sam Singh, a cardiologist, and Dr. Amir Mokri, a nephrologist, both of whom Bichai knew well from his time on SJC Hospital's medical staff.
The same night the patient was taken from Rehab Center to SJC Hospital, Bichai telephoned SJC Hospital and informed the person he spoke with that the patient's hospitalist needed to address the patient's chronic kidney issues and other health issues. Bichai also texted information about the patient to Dr. Mokri to ensure he knew about the patient's kidney disease and other health issues.
During the week or longer that the patient was treated at SJC Hospital, Bichai spoke by telephone with the members of patient's treatment team, except Dr. Dang, a hospitalist. On August 28, 2017, Bichai received a text message from Elizabeth Rogers, a liaison of Rehab Center, stating that the patient was being sent from SJC Hospital to home care with Adventist Home Health, an Adventist entity associated with SJC Hospital. Bichai was concerned with the potential inadequacy of home health care to help the patient's recovery. To address this concern, Bichai contacted the patient, but was unable to communicate effectively because the patient is a native Spanish speaker with some English and Bichai speaks very little Spanish. Bichai then called the patient's son, who confirmed his father was very weak and they agreed the patient should return to the Rehab Center, rather than return home. Based on this discussion, Bichai spoke with the physician at SJC Hospital and recommended that the patient be returned to the Rehab Center.
Bichai then spoke by telephone with a case manager at the hospital whose job was to coordinate care with medical providers and ensure a safe discharge plan. The case manager informed Bichai that the patient was strong enough to go home where he would be treated by Adventist Home Health. Bichai disagreed, set forth his concerns, and asked to speak with the Sound hospitalist who made the determination to send the patient home. Bichai was told the hospitalist was Dr. Dang. Bichai phoned Dr. Dang several times and left messages, but she never returned his calls.
Bichai next phoned Sound and was referred to Dr. Dang's boss, Dr. Ronald Reynoso. Bichai's declaration states: "I was stunned when Dr. Reynoso immediately became very angry and asked why I was trying 'so hard' to 'force' the patient to 'go to a nursing home,' which was an absolute and total mischaracterization of what I was trying to do. He also accused me of harassing Dr. Dang, even though she never even called me back or ever responded to me at any time." Bichai explained his purpose in attempting to contact Dr. Dang and also voiced his concern over a trend, based on many observations, of SJC Hospital sending most patients directly to another Adventist owned entity. Bichai's declaration states: "Dr. Reynoso angrily ignored my concerns and simply terminated the conversation by stating that he would notify the [SJC Hospital] Chief of Staff and the Chief Medical Officer ('CMO') of my involvement in this 'incident.' "
On September 25, 2017, the executive committee of Mercy Hospital's medical staff voted to recommend the denial of Bichai's reapplication for staff membership. On October 2, 2017, Dr. Emanuel Dozier, chief of staff, sent Bichai a letter informing him of the proposed action and the executive committee's determinations. The letter described the information considered by the executive committee, including "a recent incident at [SJC Hospital] involving the discharge of a patient brought from The Rehabilitation Center of Bakersfield." One of the executive committee's determinations was that Bichai "did not show that the basis for the 2012 adverse action/recommendation no longer exists and that the problems that prompted the 2012 adverse action/recommendation have been corrected." The letter also informed Bichai of his right to challenge the adverse recommendation by requesting a hearing before the judicial review committee of the medical staff. Bichai requested a hearing.
In a November 10, 2017 letter, Dr. Dozier notified Bichai that the hearing had been scheduled for December 12, 2017. The letter listed five charges and the related bylaws provisions. The first charge asserted a lack of good judgment and stated: "As was recently demonstrated by the August 28, 2017 incident at [SJC Hospital] when you attempted to interfere with another physician's care of a patient, you still have faulty judgment as to your ability to follow known rules, regulations, policies and medical ethics when you have made a personal decision that the rules, regulations, policies and ethics are either wrong [or] should be ignored for some greater perceived need of yours or a patient. On that same day you sent inappropriate emails to both the Chief of Staff and the Manager of the Medical Staff Office, again demonstrating your lack of good judgment." The letter's four other charges repeated this description of the August 28, 2017 incident and e-mails. For example, the second charge stated the incident and e-mails "again demonstrat[e] your inability to control your behavior and to work cooperatively with others so as not to adversely affect patient care." The second charge did not describe, or assert the existence of, an actual adverse impact on the care of the patient involved.
PROCEEDINGS
In March 2018, Bichai filed a complaint against Mercy Hospital. He later filed a first amended complaint against SJC Hospital and Mercy Hospital, which is the operative pleading in this appeal (FAC). Bichai alleged six causes of action against SJC Hospital for retaliation in violation of Business and Professions Code sections 2056 and 510 and Health and Safety Code section 1278.5, intentional and negligent interference with prospective economic relations, and conspiracy. Bichai alleged unfair competition and conspiracy causes of action against Mercy Hospital. Bichai alleged SJC Hospital retaliated against him for advocating for medically appropriate health care for a patient by incorrectly informing Mercy Hospital that he had interfered with another physician's care of that patient.
SJC Hospital challenged the FAC by filing a general demurrer and an anti-SLAPP motion. SJC Hospital's motion argued its communication with Mercy Hospital was protected speech made in connection with (1) an official proceeding authorized by law, (2) an issue of public interest, or (3) both. (§ 425.16, subds. (e)(2), (4).) SJC Hospital also argued Bichai could not establish a reasonable probability he would prevail on any of his claims against it because he signed a document authorizing peer review communications with Mercy Hospital and waiving his right to sue SJC Hospital on any ground related to such communications. (§ 425.16, subd. (b)(1).)
Bichai opposed the demurrer and the anti-SLAPP motion. Bichai argued the harm he alleged was SJC Hospital's unlawful interference with his reapplication for privileges at Mercy Hospital and such interference is not a protected activity. Bichai also argued he had demonstrated the requisite probability of prevailing on his claims and, furthermore, the waiver relied upon by SJC Hospital was unlawful and unenforceable because it violated the anti-waiver provision in Business and Professions Code section 809.6.
On September 18, 2018, the trial court held a hearing on SJC Hospital's anti-SLAPP motion, Mercy Hospital's demurrer, and other pending matters. The court announced its tentative ruling to grant the anti-SLAPP motion, strike the causes of action asserted against SJC Hospital, sustain Mercy Hospital's demurrer on the ground Bichai failed to state a cause of action, and grant leave to amend the claims against Mercy Hospital by October 15, 2018. The court addressed the first step of the anti-SLAPP analysis by stating SJC Hospital had met its burden of showing the alleged communication fell within subdivision (e)(2) of section 425.16. The court addressed the second step by stating it had determined Bichai "had failed to demonstrate a probability of prevailing on the claims." After hearing argument, the court adopted its tentative ruling to grant the anti-SLAPP motion, which rendered SJC Hospital's demurrer moot. The court also adopted its tentative ruling to sustain Mercy Hospital's demurrer with leave to amend by October 15, 2018.
The trial court subsequently signed and filed an order granting the anti-SLAPP motion and stating SJC Hospital was dismissed with prejudice from the action. On November 5, 2018, the court filed a judgment in favor of SJC Hospital and against Bichai. Bichai timely appealed.
Bichai did not amend his claims against Mercy Hospital and on December 12, 2018, the trial court signed a judgment stating the entire action was dismissed with prejudice as to Mercy Hospital. Bichai also appealed that judgment. Oral argument in Bichai's two appeals were heard on February 23, 2021.
DISCUSSION
I. BASIC PRINCIPLES
A. Anti-SLAPP Motions
Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. (§ 425.16, subd. (a).) Subdivision (b)(1) of section 425.16 provides:
"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 under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
This provision has been interpreted as creating a "two-step inquiry" for resolving anti-SLAPP motions. (Flatley v. Mauro (2006) 39 Cal.4th 299, 317.) "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v Schnitt (2016) 1 Cal.5th 376, 384.) Consequently, a plaintiff can defeat an anti-SLAPP motion (1) by showing the defendant did not establish a claim arose from protected activity or (2) by demonstrating a probability of success on the merits of the claims. Under the second step, the plaintiff must demonstrate the pleading is legally sufficient and the claim alleged is supported by sufficient evidence to make a prima facie showing of facts that would sustain a favorable judgment. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
B. Standard of Appellate Review
"Review of an order granting or denying a motion to strike under section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) An appellate court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the evidence. (Soukup, supra, at p. 269, fn. 3.) "Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) II. PROTECTED ACTIVITY
A. Statutory Definition
The first step in the anti-SLAPP analysis addresses whether the moving party has carried its burden of showing that the challenged cause of action is one arising from a protected activity—that is, an activity "in furtherance of the person's right of petition or free speech." (§ 425.16, subd. (b)(1).) A list of activities that fall within the scope of this statutory phrase is set forth in subdivision (e) of section 425.16, which states:
"As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) 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 official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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." (Italics added.)
Our Supreme Court has stated that these statutory categories "provide objective guidelines that lend themselves to adjudication on pretrial motion." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422 (Vasquez).)
B. Contentions of the Parties
Bichai contends that, based on principles set forth in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park) and Nam v. Regents of the University of California (2016) 1 Cal.App.5th 1176 (Nam), SJC Hospital cannot establish his claims arose out of protected activity. In Bichai's view, those cases establish that the critical inquiry is the complained of harm, not the activity from which that harm arose. Applying this view of the law to the facts of this case, Bichai contends the complained of harmful action was SJC Hospital's retaliation against him and retaliation is not a protected activity.
SJC Hospital views the alleged harm differently. It contends the harmful action underlying in the first amended complaint is a single communication between it and Mercy Hospital. SJC Hospital asserts the alleged communication involved it providing information about Bichai to Mercy Hospital in connection with Mercy Hospital's ongoing peer review of Bichai's reapplication for medical staff privileges.
C. Analysis
1. Wrongful Conduct Alleged
The FAC alleges Bichai acted as a physician advocating for medically appropriate health care for one of his patients who had been taken to SJC Hospital after suffering a heart attack. Bichai recommended to a physician at SJC Hospital that the patient be returned to the Rehab Center instead of being sent home. When the patient was sent home for home care with Adventist Home Health, an entity associated with SJC Hospital, Bichai contacted the physician to inquire why the patient was sent home and to restate his opinion that it was preferable to send the patient to the Rehab Center.
The FAC alleges (1) SJC Hospital retaliated against Bichai for advocating for medically appropriate health care for a patient by informing Mercy Hospital of Bichai's discussions with the SJC Hospital physician; (2) SJC Hospital wrongfully characterized Bichai's actions as interference; (3) SJC Hospital's purpose in mischaracterizing Bichai's actions was to discourage him and other physicians from conferring about a patient's care and from communicating with patients; and (4) SJC Hospital sought to harm Bichai's ability to practice by incorrectly informing Mercy Hospital that he had interfered with another physician's care of a patient.
2. The Wrong and the Harm
Based on Bichai's argument that courts must focus on the complained of harm, we consider Park and its discussion of Nam. In Park, our Supreme Court addressed the first step in the anti-SLAPP analysis by stating "the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.' " (Park, supra, 2 Cal.5th at p. 1063.) Explaining the circumstances in which the pertinent activity constitutes protected speech, the court stated:
"Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration." (Id. at p. 1066.)
Over two years after issuing Park, the Supreme Court elaborated on the application of the anti-SLAPP statute to discrimination and retaliation claims, stating:
"The anti-SLAPP statute does not apply simply because an employer protests that its personnel decisions followed, or were communicated through, speech or petitioning activity. A claim may be struck under the anti-SLAPP statute 'only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.' (Park, supra, 2 Cal.5th at p. 1060.) Put differently, to carry its burden at the first step, the defendant in a discrimination suit must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 890 (Wilson).)
Based on Park and Wilson, we consider whether SJC Hospital has shown the wrongful action alleged by Bichai, in and of itself, was an act in furtherance of SJC Hospital's speech. Stated another way, is the activity that gives rise to liability "that the defendant spoke"? (Park, supra, 2 Cal.5th at p. 1069.)
The allegations in the first amended complaint allege one type of retaliatory action—namely, SJC Hospital's act of providing incorrect information to Mercy Hospital about Bichai. Stated another way, Bichai asserts SJC Hospital is liable for damages because it spoke, providing incorrect information motivated by an unlawful purpose. Consequently, this case stands in contrast to cases where an employer or hospital acts by subjecting the employee or doctor to disciplinary proceedings and then imposes discipline or terminates the relationship. Here, SJC Hospital did not deny Bichai a benefit or subject him to a detriment on account of a retaliatory consideration. (See Park, supra, 2 Cal.5th at p. 1066.) Instead, SJC Hospital acted by communicating information to Mercy Hospital. Therefore, for purposes of the anti-SLAPP suit, we conclude the retaliatory conduct alleged as the basis for liability is speech. In short, Bichai claims SJC Hospital retaliated against him by telling lies.
3. Speech in an Official Proceeding
Next, we consider whether the speech that is the basis for liability is protected. This question is resolved by determining whether the speech falls within the scope of one of the provisions of section 425.16, subdivision (e). Subdivision (e)(2) of section 425.16 provides that an act in furtherance of a person's right of free speech includes "any written or oral statement ... made in connection with an issue under consideration or review by ... any other official proceeding authorized by law." The application of this provision to a hospital peer review proceeding was considered by our Supreme Court in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler). There, the trial court found the plaintiff surgeon's tort claims for defamation, abuse of process, and interference with his medical practice arose out of the hospital's peer review proceedings against the surgeon. (Id. at pp. 196-197.) The trial court also resolved a legal question by concluding the hospital's peer review procedure qualified as an "official proceeding authorized by law" under section 425.16, subdivision (e)(2) because that peer review procedure was required and governed by Business and Professions Code section 805 et seq. (Kibler, supra, at p. 199; see Bus. & Prof. Code, § 805, subd. (a)(1)(A) [peer review defined].) The Supreme Court granted review.
In Kibler, the Supreme Court assumed the plaintiff surgeon's tort claims arose from statements made in connection with a hospital peer review proceeding and addressed the legal question of whether the peer review proceeding was an "official proceeding authorized by law" for purposes of subdivision (e)(2) of section 425.16. (See Park, supra, 2 Cal.5th at p. 1069.) After discussing provisions in the Business and Professions Code addressing physician licensing and the peer review process, the court concluded "hospital peer review proceedings constitute official proceedings authorized by law within the meaning of section 425.16, subdivision (e)(2)." (Kibler, supra, at p. 200.) The court stated the opposite holding would "discourage participation in peer review by allowing disciplined physicians to file harassing lawsuits against hospitals and their peer review committee members rather than seek judicial review of the committee's decision by the available means of a petition for administrative mandate." (Id. at p. 201.)
Here, like the trial court in Kibler, the trial court determined Bichai's claims arose from statements made in connection with a hospital peer review proceeding. Specifically, the trial court impliedly found the statements were connected to Mercy Hospital's peer review of Bichai's reapplication for staff privileges. As part of our independent review, we make the same determination. Among other things, the information communicated appears in each of the five charges set forth in the November 10, 2017 letter from Mercy Hospital's chief of staff, Dr. Dozier. Applying the principle established in Kibler to this determination, we conclude SJC Hospital's alleged act of informing Mercy Hospital that Bichai interfered with another physician's treatment of a patient—whether accurate or not—involves statements made in connection with an "official proceeding authorized by law" for purposes of subdivision (e)(2) of section 425.16.
Consequently, the trial court correctly completed the first step of the anti-SLAPP analysis when it determined SJC Hospital carried its burden of showing Bichai's claims arose from activity protected by section 425.16. (See Baral v Schnitt, supra, 1 Cal.5th at p. 384 [defendant's burden].) SJC Hospital's statements were made to Mercy Hospital in connection with a peer review proceeding, which is an official proceeding authorized by Business and Professions Code section 805 et seq. (§ 425.16, subd. (e)(2).) III. PROBABILITY OF PREVAILING
The second step of the anti-SLAPP analysis examines whether "the plaintiff has established that there is a [reasonable] probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) To satisfy the probability of prevailing standard, "[t]he plaintiff need only state and substantiate a legally sufficient claim. [Citation.] The plaintiff's evidence is accepted as true; the defendant's evidence is evaluated to determine if it defeats the plaintiff's showing as a matter of law." (Vasquez, supra, 1 Cal.5th at p. 420.) A plaintiff need only show " 'minimal merit' " to satisfy the burden. (Ibid.) Plaintiffs, however, cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 212.)
A. Written Release of Liability
1. Terms of the Release
Here, SJC Hospital contends its evidence—namely, a release of liability and agreement not to sue signed by Bichai—defeated Bichai's showing of a probability of prevailing as a matter of law. The release of liability and agreement not to sue was contained in a document dated May 17, 2014 and titled "AUTHORIZATION FOR RELEASE OF INFORMATION." The document stated Bichai "hereby authorize[s] San Joaquin Community Hospital and its agents, employees, and representatives ... to provide Mercy Hospital and Mercy Southwest Hospital and its medical staff, agents, employees, and representatives ... with any and all information and documentation regarding my professional qualifications." The document included a nonexclusive description of the information covered. It ended with the following sentence:
"I hereby release SJCH from any and all liability, grant immunity to the fullest extent permitted by law, and agree not to sue SJCH for (1) providing the above information and documentation to Mercy [Hospital] Bakersfield and (2) any action that may result from the provision of that information and documentation."
SJC Hospital contends this release of liability and agreement not to sue precludes Bichai from suing SJC Hospital for providing information in connection with Mercy Hospital's peer review of Bichai's reapplication for staff privileges. Because Bichai released it from liability, SJC Hospital argues Bichai cannot establish the requisite probability of prevailing on his claims.
2. Provision Barring Waivers
Business and Professions Code section 809.6, subdivision (c) provides that "[t]he provisions of Sections 809.1 to 809.4, inclusive, may not be waived in any instrument ...." Bichai's opposition to the anti-SLAPP motion contended SJC Hospital owed a separate legal duty not to violate this anti-waiver provision and SJC Hospital violated this duty when it "entered into an unlawful contract with Dr. Bichai where he waived his rights to contest any disclosure by SJCH to Mercy Hospital, which disclosure is otherwise prohibited by the statutory scheme in [Business and Professions Code section] 809 and related sections." SJC Hospital disagreed with Bichai's interpretation of the anti-waiver provision, contending the specific rights connected with peer review proceedings, for which a report is required under Business and Professions Code section 805, cannot be waived.
The dispute about the scope of the statutory anti-waiver provision requires this court to consider the content of Business and Professions Code sections 809.1 to 809.4 because it is those sections that "may not be waived in any instrument." (Bus. & Prof. Code, § 809.6. subd. (c).) Business and Professions Code section 809.1 states that a licensed physician who is the subject of a final proposed action of a peer review body for which a report is required to be filed under Business and Professions Code section 805 shall be entitled to written notice and the notice shall inform the physician of his or her right to request a hearing on the final proposed action. Business and Professions Code section 809.2 sets forth a range of procedural requirements that apply to any requested hearing, including the inspection of documents, exchange of witness lists, continuances, and timing for commencement of the hearing. Business and Professions Code section 809.3 sets forth the rights of the parties during a hearing concerning a final proposed action. Business and Professions Code section 809.4 specifies the rights of the parties upon completion of the hearing, including the right to a written decision of the trier of fact and an explanation of the procedure for appealing the decision, if one exists.
In this case, the release of liability and agreement not to sue signed by Bichai does not attempt to curtail or extinguish any of the procedural rights set forth in Business and Professions Code sections 809.1 to 809.4. Therefore, we conclude the document signed by Bichai did not violate the terms of Business and Professions Code section 809.6, subdivision (c). As a result, the anti-waiver provision did not render the document unenforceable.
3. Statutory Authorization of Releases
SJC Hospital also contends the release of liability is specifically authorized by Business and Professions Code section 809.08, subdivision (d), which states: "Prior to the release of any peer review information pursuant to this section, the licentiate under review by the peer review body requesting information pursuant to this section shall, upon request, release the responding peer review body, its members, and the health care entity for which the responding peer review body conducts peer reviews, from liability for the disclosure of information in compliance with this section."
Bichai's reply brief did not address the contents of Business and Professions Code section 809.08. In view of the absence of argument to the contrary and our review of the statutory text, we conclude SJC Hospital qualifies as "the health care entity for which the responding peer review body conducts peer reviews" and, therefore, the release of liability and agreement not to sue signed by Bichai is authorized by Business and Professions Code section 809.08.
B. Scope of the Release
Bichai's reply brief contends the release does not apply because SJC Hospital's communication to Mercy Hospital did not pertain to his professional qualifications. The release of liability and agreement not to sue authorized SJC Hospital "to provide Mercy Hospital ... with any and all information and documentation regarding my professional qualifications." Explaining its scope, the document stated the "authorization specifically includes but is not limited to ... any and all information and documentation, including any and all exculpatory information and documentation, relating to my clinical competence, my professional conduct and/or any peer review activities involving me during my tenure on the SJCH Medical Staff."
Under Bichai's interpretation of the document, this category of disclosure "refers to peer review of Dr. Bichai conducted by SJCH Medical Staff." Bichai then argues the communication from SJC Hospital to Mercy Hospital in 2017 fell outside this category because the communication was not part of any peer review matter at SJC Hospital.
In considering whether Bichai has properly interpreted the release of liability and agreement not to sue, we first identify the standard of review applicable to its interpretation. Here, Bichai has not based his interpretation on any admissible extrinsic evidence. Therefore, we conclude the interpretation of the document presents a question of law subject to our independent review. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) "It is solely a judicial function to interpret a written contract unless the interpretation turns upon the credibility of extrinsic evidence, even when conflicting inferences may be drawn from uncontroverted evidence." (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 439.)
We interpret the authorization in the document to cover "any and all information ... relating to [Bichai's] professional conduct." Information relating to Bichai's professional conduct is not restricted by the phrase "involving me during my tenure on the SJCH Medical Staff" at the end of the sentence. That modifying phrase relates only to the "peer review activities" immediately preceding it. As a result, SJC Hospital was authorized to report any and all information relating to Bichai's professional conduct regardless of whether that conduct occurred "during his tenure" on the medical staff of SJC Hospital. Based on this interpretation, we need not resolve the dispute about whether Bichai, who was on a leave of absence from the medical staff of SJC Hospital, was still "tenured" during the events of August 2017.
To summarize, based on our independent application of the second step of the anti-SLAPP analysis to the record before us, we conclude the release of liability and agreement not to sue signed by Bichai defeats as a matter of law the evidence offered by Bichai to show he has a probability of prevailing on the causes of action asserted against SJC Hospital in this lawsuit. Accordingly, the trial court correctly granted the anti-SLAPP motion.
DISPOSITION
The judgment is affirmed. SJC Hospital shall recover its costs on appeal.
FRANSON, Acting P.J. WE CONCUR: PEÑA, J. SMITH, J.