Opinion
F058513 No. 08CECG02116 F059269
03-21-2011
DAVID KAYE, Plaintiff and Appellant, v. CLIFTON VAN PUTTEN et al., Defendants and Respondents.
Robert J. Rosati for Plaintiff and Appellant.The Law Office of Gregory J. Smith and Gregory J. Smith for Defendants and Respondents.The Law Office of Gregory J. Smith and Gregory J. Smith for Defendants and Appellants.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge.
Robert J. Rosati for Plaintiff and Appellant.
The Law Office of Gregory J. Smith and Gregory J. Smith for Defendants and Respondents.
The Law Office of Gregory J. Smith and Gregory J. Smith for Defendants and Appellants.
Plaintiff, David Kaye, M.D., filed a complaint for damages against defendants, Clifton Van Putten, M.D. (Van Putten), Roydon Steinke, M.D. (Steinke), and St. Agnes Medical Center (St. Agnes), stemming from allegedly racist comments made by Van Putten at a "Root Cause Analysis" (RCA) meeting that was held after Van Putten anesthetized the wrong eye of one of Kayes patients who was undergoing cataract surgery at St. Agnes. RCA is a process for identifying the factors that underlie a sentinel event, i.e., an unexpected event involving death or serious injury that signals the need for immediate investigation and response. According to Kaye, these racist comments directed against his patient violated the Unruh Civil Rights Act (Civ. Code, § 51) and caused Kaye emotional distress.
Defendants filed a motion to strike the complaint as a SLAPP (strategic lawsuit against public participation) suit under Code of Civil Procedure section 425.16. Defendants argued that, because the complaint arose out of statements made during an official proceeding authorized by law, it fell within the ambit of the anti-SLAPP statute. Defendants further asserted that Kaye could not demonstrate a probability of prevailing on the merits of his causes of action.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court found that the RCA was a "peer review" proceeding and as such was an official proceeding authorized by law within the meaning of section 425.16. The court further determined that Kaye had not met his burden of demonstrating a probability of prevailing on his claims. The court concluded that Van Puttens alleged comments, although objectionable, did not constitute unlawful discrimination and that, because the comments were not directed at Kaye, they could not be the basis for his emotional distress claims. Accordingly, the trial court dismissed the complaint.
Kaye contends the trial court erred in finding that Van Puttens statements were protected. Moreover, Kaye asserts that he did demonstrate a probability of prevailing on his claims. Kaye further argues that the court abused its discretion by awarding approximately $64,000 in attorney fees to defendants for a single motion. In their cross-appeal, defendants contend the trial court abused its discretion by awarding attorney fees in an amount that is less than they requested.
As discussed below, the trial courts ruling on the merits of the anti-SLAPP motion was correct. However, defendants are entitled to certain adjustments to the amount of their attorney fees award. Accordingly, the portion of the judgment dismissing the complaint will be affirmed and the portion of the judgment awarding attorney fees will be reversed and remanded for further proceedings.
BACKGROUND
Kaye is an ophthalmologist/surgeon and Van Putten is an anesthesiologist. When assisting on a cataract surgery at St. Agnes, Van Putten anesthetized the wrong eye of one of Kayes patients. This patient was Hispanic.
Following this error, St. Agnes conducted an RCA. An RCA is required for accredited health facilities by the Joint Commission, previously known as the Joint Commission on Accreditation of Health Care Organizations, in response to a sentinel event. Sentinel events include all events of surgery on the wrong body part, regardless of the magnitude of the procedure or the outcome.
The Joint Commission describes a "Root Cause Analysis" as "a process for identifying the basic or causal factors that underlie variation in performance, including the occurrence or possible occurrence of a sentinel event." It focuses primarily on systems and processes and identifies potential improvements intended to decrease the likelihood of such events in the future. The product of the RCA is an action plan to reduce the risk of similar events.
St. Agnes adopted a "Sentinel Event/Root Cause Analysis" policy and procedure to provide guidelines for appropriate reporting and follow up on all sentinel events and/or near misses occurring at the facility. This policy was required for accreditation by the Joint Commission. It also established procedures to insure that St. Agnes complied with the requirement that sentinel events, also known as "adverse events," be reported under Health and Safety Code section 1279.1.
Pursuant to the RCA policy and procedure, an RCA meeting was held regarding Van Puttens anesthesia error. Present at the meeting were Kaye, Van Putten, several hospital administrators and several nurses. Kaye claims that during the course of the RCA proceedings, Van Putten made racist and derogatory statements about their Hispanic patient, such as "Doing surgeries on Dr. Kayes Hispanic patients is like doing veterinary surgery" and "You cant even talk with them [Hispanic patients] so who cares." Kaye asserts that he was offended and shocked and that no one at the RCA meeting instructed Van Putten that his statements were grossly improper. According to Kaye, he protested and pointed out that Van Puttens comments were in violation of hospital policy, as well as state and federal law. When no apology was offered, Kaye left the room.
Thereafter, Kaye sent a letter to Steinke, the chief of the medical staff at St. Agnes, demanding a complete review of the incident. Steinke unsuccessfully attempted to contact Kaye by telephone to discuss the matter numerous times. Kayes one attempt to return one of Steinkes calls was also unsuccessful. Eventually, Steinke responded to Kayes complaint by letter. Steinke stated that he had spoken to Van Putten and an administrative staff member and that no action would be taken.
Kaye then filed the underlying complaint. Kaye alleged that the discriminatory comments Van Putten made during the RCA meeting were directed toward him and thus he was entitled to an injunction and damages under the Unruh Civil Rights Act (UCRA). Kaye claimed that Steinke also violated the UCRA by failing to properly address Kayes claims against Van Putten. Kaye further alleged causes of action for intentional infliction of emotional distress and negligence against Van Putten and Steinke. Finally, Kaye contended that St. Agnes was vicariously liable for Van Puttens and Steinkes conduct and that St. Agnes negligently trained and supervised Van Putten and Steinke.
In response, Van Putten filed an anti-SLAPP motion under section 425.16. Shortly thereafter, Steinke and St. Agnes filed their own anti-SLAPP motion. The parties joined each others anti-SLAPP motions and one attorney eventually represented all three defendants.
The trial court granted the special motions to strike and defendants jointly filed a motion for attorney fees. Following a hearing, the trial court granted defendants attorney fees in the amount of $64,159.50.
DISCUSSION
1. The anti-SLAPP statute.
Section 425.16 was enacted in 1992 to provide a procedure for expeditiously resolving "nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 235.) It is Californias response to meritless lawsuits brought to harass those who have exercised these rights. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) This type of suit, referred to under the acronym SLAPP, or strategic lawsuits against public participation, is generally brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 927.)
When served with a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To determine whether this motion should be granted, the trial court must engage in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.)
The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 76.) The moving defendant must demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendants] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue...." (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the court concludes that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
To establish the requisite probability of prevailing, the plaintiff need only have ""stated and substantiated a legally sufficient claim."" (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) "Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."" (Id. at pp. 88-89.) The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) Nevertheless, a plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 614.)
The questions of whether the action is a SLAPP suit and whether the plaintiff has shown a probability of prevailing are reviewed independently on appeal. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) Further, the anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)
2. Defendants met their burden of demonstrating that any comments made by Van Putten at the RCA meeting were entitled to protection under section 425.16.
Section 425.16, subdivision (e), clarifies what speech constitutes an "act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue." Such speech 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." (§ 425.16, subd. (e).) A defendant who invokes either subdivision (e)(1) or (e)(2) need not "separately demonstrate that the statement concerned an issue of public significance." (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198 (Kibler).)
Kayes complaint is based on statements Van Putten made during the RCA meeting. The issue is whether that RCA meeting qualified as "any other official proceeding authorized by law." If so, Van Puttens statements are protected by the anti-SLAPP statute.
In Kibler, the California Supreme Court held that a hospital peer review proceeding qualifies as "any other official proceeding authorized by law" under section 425.16. The court noted that Business and Professions Code section 805 et seq. requires the peer review procedure and sets out a comprehensive scheme that incorporates the peer review process into the overall process for the licensure of California physicians. (Kibler, supra, 39 Cal.4th at p. 199.) The court further observed that under Business and Professions Code section 809, subdivision (a)(8), acute-care facilities must include a provision for conducting peer review in their bylaws. (Kibler, supra, at pp. 199-200.) Additionally, a hospital must report any hospital action that "restricts or revokes a physicians staff privileges as a result of a determination by a peer review body" to the Medical Board of California. (Id. at p. 200.)
California law requires every licensed hospital to have a formally organized and self-governing medical staff that is responsible for the adequacy and quality of the care rendered to patients. (Cal. Code Regs., tit. 22, § 70703, subd. (a).) The medical staff must adopt rules and regulations "for appropriate practices and procedures to be observed in the various departments of the hospital." (Cal. Code Regs., tit. 22, § 70703, subd. (e).) "The medical staff acts primarily through a number of peer review committees" (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10.) In addition to evaluating and assessing prospective and current physicians on staff, these committees establish standards and procedures for patient care and review such matters as the need for and results of each surgery performed in the hospital, the functioning of the patient records system, and the control of in-hospital infections. (Ibid.)
Under Business and Professions Code section 805, subdivision (a)(1)(A), peer review is defined as both a "process in which a peer review body reviews the basic qualifications, staff privileges, employment, medical outcomes, or professional conduct of licentiates" and any other activities of a peer review body. A "peer review body" includes a "committee organized by any entity consisting of or employing more than 25 licentiates of the same class that functions for the purpose of reviewing the quality of professional care provided by members or employees of that entity." (Bus. & Prof. Code, § 805, subd. (a)(1)(B)(iv).)
The Kibler court also found that one other attribute of hospital peer review supported its conclusion that peer review constitutes an "official proceeding" under the anti-SLAPP law, i.e., a hospitals decisions resulting from peer review proceedings are subject to judicial review by administrative mandate. (Kibler, supra, 39 Cal.4th at p. 200.) Thus, hospital peer review decisions have been accorded a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate. (Ibid.)
The court further concluded that the Legislature did not intend that the phrase "other official proceeding authorized by law" be limited to proceedings before governmental entities. (Kibler, supra, 39 Cal.4th at p. 203.)
Here, the trial court determined that the RCA meeting qualified as a peer review procedure and therefore was an "official proceeding authorized by law." Kaye disputes this conclusion based on what he perceives to be significant differences between a peer review proceeding and the RCA meeting.
First, Kaye argues that the RCA meeting was not peer review because it was conducted primarily by hospital administrators and nurses rather than by peers, i.e., other doctors similarly licensed. However, "peer review" is not so narrowly defined. Under Business and Professions Code section 805, subdivision (a)(1)(B)(iv), a "peer review body" includes a committee organized by a hospital "that functions for the purpose of reviewing the quality of professional care provided by members or employees" of that hospital. Thus, a peer review body is not limited to physicians and surgeons. (Cf. County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1453.)
Kaye also asserts that an RCA does not qualify as peer review because the purpose of a peer review is to determine whether the physician under review has met accepted standards of care in rendering medical services and may result in limitation, suspension or revocation of a medical providers privileges at a given institution whereas an RCA focuses primarily on systems and processes, not on individual performance. Again, Kayes interpretation of "peer review" is too limited. In addition to evaluating individual physicians, peer review committees evaluate the hospitals standards and procedures for patient care. (Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 10.) The St. Agnes medical staff policy/procedure on peer review and practitioner performance evaluation defines the "peer review process" as "a mechanism to identify and evaluate potential quality of care concerns or trends to determine whether standards of care are being met and to identify opportunities for improvement. The process is used to monitor and facilitate improvement at the individual practitioner and system levels to assure safe and effective care." (Italics added.) Thus, pursuant to both California law and St. Agnes policy, peer review is not restricted to evaluations of individual physicians.
Finally, relying on Kibler, Kaye distinguishes peer review from RCA on the ground that peer review decisions are reviewable by a court and an RCA proceeding is not. However, whether or not the result of an RCA proceeding is reviewable by mandate, that factor is not dispositive under Kibler. In Kibler, the court found the fact that peer review decisions are subject to judicial review by administrative mandate to be "another attribute of hospital peer review that supports our conclusion that peer review constitutes an official proceeding under the anti-SLAPP law." (Kibler, supra, 39 Cal.4th at p. 200.) The court did not indicate that the availability of judicial review was absolutely required to qualify as "an official proceeding authorized by law."
In sum, RCA falls within the ambit of peer review as that term is defined by both statute and case law.
On defendants motion, the trial court excluded Kayes opinion that the RCA was not peer review. Kaye contends this was error. Contrary to Kayes position, the trial court did not abuse its discretion in so ruling. Kaye was opining on the manner in which the law should apply to particular facts. Thus, this opinion was properly excluded on the ground that legal questions are not subject to either expert or lay opinion. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1445.)
Moreover, whether considered peer review or not, RCA qualifies as "any other official proceeding authorized by law" under the anti-SLAPP statute. As with peer review as defined by Kibler, the RCA proceeding is authorized by statute and regulation.
A general acute care hospital, such as St. Agnes, must be licensed by the state in order to operate. (Health & Saf. Code, §§ 1250, 1253.) To carry out the licensing provisions, the Legislature directed the state department to adopt rules and regulations. (Health & Saf. Code, § 1275.) As discussed above, pursuant to these regulations, every licensed hospital is required to have a formally organized and self-governing medical staff that must adopt rules and regulations "for appropriate practices and procedures to be observed in the various departments of the hospital." (Cal. Code Regs., tit. 22, § 70703, subds. (a) and (e).) In compliance with this regulation and the Joint Commissions accreditation requirements, St. Agnes adopted its sentinel event/root cause analysis policy and procedure to provide guidelines for appropriate reporting and follow up on all sentinel events and/or near misses. Moreover, Health and Safety Code section 1279.1 requires that a licensed facility report all adverse events, i.e., sentinel events, to the state.
The subject RCA meeting was conducted pursuant to the above statutes, regulations and St. Agness sentinel event/root cause analysis policy. St. Agnes is required to engage in quality assurance, such as RCA, as part of the licensure process. Further, accreditation by the Joint Commission is dependent on the hospital having an RCA policy in place. Additionally, by statute, a hospital must report any sentinel event to the state. The generation of such a report is a component of the RCA procedure. Accordingly, the RCA meeting qualified as an official proceeding under the anti-SLAPP law.
Kaye also argues that, even assuming the RCA was a peer review, there is no evidence that the statements Van Putten made at the RCA meeting related to the substantive issues of the RCA. Therefore, Kaye contends, those statements were not in connection with an issue under consideration in an official proceeding and are not protected by the anti-SLAPP statute. However, all that matters is that the statements were made in an official proceeding. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1395.) There is no requirement that the statements at issue be relevant to the investigation of the sentinel event. Rather, the statements Van Putten made at the RCA meeting, an official proceeding authorized by law, are protected under section 425.16, subdivision (e)(1), by virtue of the setting in which they were made.
Kaye further contends that Van Puttens allegedly racist statements were illegal under the UCRA and therefore are not constitutionally protected. Accordingly, Kaye argues, those statements are not entitled to anti-SLAPP protection.
Where a defendant brings a special motion to strike based on a claim that the plaintiffs action arises from activity in furtherance of the defendants exercise of protected speech or petition rights, but the supposedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiffs action. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) However, to be outside the ambit of the anti-SLAPP statute, the illegality must be established either through the defendants concession or because the illegality is conclusively established by the evidence presented in connection with the special motion to strike. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 285.) If a factual dispute exists about the legitimacy of the defendants conduct, the motion cannot be resolved with the first step but must be raised by the plaintiff in connection with the plaintiffs burden to show a probability of prevailing on the merits of the claim. (Flatley v. Mauro, supra, 39 Cal.4th at p. 316.)
The UCRA provides, in relevant part, "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) The purpose of the UCRA is "to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act." (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1448.)
Kaye bases his claim that Van Puttens statements were clearly illegal under the UCRA on the assertion that Van Putten made repeated racist comments and engaged in racist conduct that impaired access to St. Agnes for Kaye and his Hispanic patients. However, Kaye has not presented any competent, admissible evidence to establish that access to St. Agnes for either Kaye or his patients was impaired in any way. Rather, Kaye merely declares that, "[g]iven Defendants racist attitudes and conduct, I cannot take such patients to St. Agnes Medical Center because it is clear they will not get proper care, accommodations, advantages, facilities and privileges and services as other persons." Such speculation is not sufficient.
Further, although Van Putten may have demonstrated insensitivity in making the allegedly racist comments, his doing so did not violate the UCRA. The UCRA does not apply to words that do not also accomplish a physical event. (Long v. Valentino (1989) 216 Cal.App.3d 1287, 1296.) "A speaker may freely attack institutions, trades, occupations, groups, races, and ethnic majorities or minorities in this country in hopes that others will discriminate against them. Those who implement such abuses in response to an obnoxious exhortation may be punished under appropriate statutes. But one of the prices we pay to retain our liberty of expression is that the speaker may not, unless the speech is obscene or threatens to produce an immediate violent reaction." (Id. at p. 1295.)
Here, since there is no evidence of any discriminatory conduct, Van Puttens statements alone are not illegal under the UCRA. Accordingly, those statements are within the ambit of the anti-SLAPP statute.
In sum, Van Puttens statements were made before an official proceeding and were not illegal as a matter of law. Accordingly, defendants met their burden of establishing that the allegedly racist comments were entitled to protection under section 425.16. Thus, this court must take the next step in the analysis and determine whether Kaye met his burden of establishing a probability of prevailing on his claims.
2. Kaye has failed to establish a probability of prevailing on his claims.
As noted above, to meet his burden of establishing that he will prevail on his claims, Kaye must demonstrate that his complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by him is credited. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) However, Kaye cannot rely on the allegations in his complaint, but must produce competent evidence that would be admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) Thus, any declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory will be disregarded. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)
a. The UCRA claim.
Kaye alleges he is entitled to relief under the UCRA on the ground that Van Putten intentionally discriminated against him on account of his treating Hispanic patients. In support of this claim, Kaye submitted his own declaration wherein he averred that, due to Van Puttens discriminatory comments and Steinkes and St. Agness failure to take action to correct such racist conduct, he cannot take Hispanic patients to St. Agnes because it is "clear they will not get proper care, accommodations, advantages, facilities and privileges and services as other persons." Kaye further asserts that defendants continue to deny all persons of Hispanic ethnicity proper care as is provided to other persons. Kaye then concludes that he has been the victim of racial discrimination by virtue of his association with his Hispanic patients and thereby has suffered severe emotional distress and has lost income.
The UCRA generally prohibits discrimination based upon "personal characteristics." (Howe v. Bank of America N.A. (2009) 179 Cal.App.4th 1443, 1450.) However, as discussed above, the UCRA does not apply to words that do not also accomplish a physical event. (Long v. Valentino, supra, 216 Cal.App.3d at p. 1296.) Moreover, to sue under the UCRA, the plaintiff must have been actually denied full and equal treatment, i.e., been the victim of the defendants discriminatory act. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175.)
Aside from the speculative and conclusory allegations outlined above, Kaye has not presented any evidence of actual discrimination on the part of defendants. Kaye does not describe any instance in which either he or his patients were denied "full and equal accommodations, advantages, facilities, privileges, or services" by St. Agnes. (Civ. Code, § 51, subd. (b).) Although Kaye states he was offended by Van Puttens allegedly racist comments, those words alone cannot support a claim under the UCRA. Thus, Kaye has not made a sufficient prima facie showing of facts to sustain a judgment in his favor. Accordingly, Kayes UCRA cause of action was properly dismissed.
b. The intentional infliction of emotional distress claim.
Kaye alleges that Van Puttens comments subject him to liability for intentional infliction of emotional distress and that, because Steinke and St. Agnes ratified Van Puttens conduct by failing to take action, they are also liable.
The elements of a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) To be outrageous, conduct must be so extreme that it exceeds all bounds of that usually tolerated in a civilized community. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Mere insults or indignities are not sufficient. (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) Further, the defendants conduct must be either intended to inflict injury or engaged in with the realization that injury will result. (Ibid.) With respect to the requirement that a plaintiff show severe emotional distress, the California Supreme Court has set a high bar. To qualify as "severe," the emotional distress must be of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. (Ibid.)
Again, Kaye has failed to present evidence to support his claim. First, the comments comparing surgery on Kayes patients to veterinary surgery fall into the category of insults. Van Puttens alleged conduct was not so extreme that it exceeded the bounds of decency. Moreover, the comments were not directed at Kaye. To establish the requirement that he show severe emotional distress, Kaye merely declares that he has "suffered severe emotional distress by virtue of Defendants conduct." This unsupported conclusion does not comprise evidence of emotional distress that no reasonable person should be expected to endure. (Cf. Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) Since Kaye has not made a sufficient prima facie showing of facts to sustain a judgment in his favor, his intentional infliction of emotional distress cause of action was properly dismissed.
c. The negligent infliction of emotional distress claim.
Negligent infliction of emotional distress is not an independent tort in California. Rather, it is regarded simply as the tort of negligence. (Klein v. Childrens Hospital Medical Center (1996) 46 Cal.App.4th 889, 894.) Thus, the tort elements of duty, breach of duty, causation and damages must exist to support the cause of action. (Ibid.)
Kaye contends that, under the medical staff bylaws, Steinke and St. Agnes had a duty to investigate Kayes allegations that Van Putten engaged in discrimination and/or harassment and to take appropriate corrective action. Kaye notes the complaint alleges that they did not do so. Kaye also relies on his declaration wherein he states that he reported the incident to Steinke, that Steinke tried unsuccessfully to reach him several times, and that five months later Steinke informed him in writing that he met with Van Putten and spoke to an administrative staff member. According to Kaye, Steinke and St. Agnes were negligent when they did not take action against Van Putten and are thereby subject to liability.
As with his other causes of action, Kaye has not presented admissible evidence to support his claim. First, the alleged discriminatory conduct was not directed at Kaye. Second, Kaye has not established that Steinke and St. Agnes breached any duty owed to Kaye. Rather, Steinke declared that he investigated Kayes claim and would have taken further action if Kaye had returned one of Steinkes numerous phone calls placed in order to discuss the incident. Kayes allegation in his complaint that Steinke and St. Agnes breached their duty is not sufficient to establish this element of the cause of action. Finally, aside from a conclusory statement that he "suffered severe emotional distress by virtue of Defendants conduct," Kaye has not presented any evidence to support the causation and damages elements. Although a plaintiff no longer needs to demonstrate physical injury to support a claim for negligent infliction of emotional distress, there must still be proof of serious emotional distress, i.e., "some guarantee of genuineness in the circumstances of the case." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 987-988.) Thus, Kaye has not made a sufficient prima facie showing of facts to sustain a judgment in his favor on his negligent infliction of emotional distress cause of action.
In sum, Kaye failed to demonstrate that his complaint is supported by a sufficient prima facie showing of facts to sustain a favorable judgment. Accordingly, his complaint was properly dismissed. In light of this conclusion, it is unnecessary to determine whether defendants conduct was privileged under Civil Code sections 47, subdivisions (b) and (c), 43.7, and 43.8.
3. Attorney fees.
Following the granting of their anti-SLAPP motion, defendants moved the trial court for recovery of attorney fees. Originally, Van Putten was represented by Kristine Balogh and Steinke and St. Agnes were represented by Gregory J. Smith. Balogh filed the first anti-SLAPP motion on behalf of Van Putten and thereafter Smith filed an anti-SLAPP motion on behalf of Steinke and St. Agnes. Van Putten substituted Smith as his counsel in the place of Balogh and the parties joined in each others anti-SLAPP motions. Accordingly, defendants requested fees for legal services provided by both Balogh and Smith.
Defendants incurred attorney fees in the amount of $82,214.50. However, they requested fees in the amount of $97,244.50. This amount reflected an increase in the attorneys hourly rate to their usual rate as opposed to the discounted rate actually charged.
In response, Kayes counsel, Robert J. Rosati, filed a declaration wherein he stated that, in his opinion, the reasonable fee for all defendants was no more than $15,000. Rosati based this amount on his having spent 20.8 hours opposing the motions. However, Rosati admitted that he had never filed, opposed, or worked on an anti-SLAPP motion before.
The trial court awarded fees in the amount of $64,159.50. In making this award, the trial court analyzed the submitted billing statements line by line. The court reduced certain hours claimed by both Smith and Balogh finding that a number of items were clerical, some time was excessive, and the redacted entries submitted by Smith appeared to be of no relevance. However, the court also increased the hourly rate for Balogh and her supervising attorney finding the increased rates were more appropriate for attorneys with their experience.
The judgment entered on October 22, 2009, included the dismissal of Kayes complaint and the attorney fee award. When Kaye filed his notice of appeal from this judgment, his second notice of appeal, he checked the box on the form that it was an appeal of "An order of judgment under Code of Civil Procedure section 904.1(a)(3)-(13)." Defendants argue that the appeal of the attorney fee award had to be based on section 904.1, subdivision (a)(2), i.e., an appeal from an order after judgment, and therefore Kayes appeal is defective. However, Kayes second notice of appeal was from the entire judgment. Moreover, even if there was an error in this check the box format, we must liberally construe the notice of appeal in favor of its sufficiency. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.)
Kaye argues the trial court awarded excessive fees. According to Kaye, reasonable fees were no more than $15,000. In support of this position, Kaye relies on Rosatis declaration, describing it as unrebutted expert testimony. Kaye further contends that Baloghs fees should have been limited to 30 hours at $165 per hour, the amount Balogh initially claimed in her fee motion.
A defendant who brings a successful anti-SLAPP motion is entitled to mandatory attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) The trial court is authorized to make an award of reasonable attorney fees to compensate the defendant for the expense of responding to a baseless lawsuit. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) However, while the fee awards should be fully compensatory, the trial courts role is not to simply rubber stamp the defendants request. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1133; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) Rather, the court must ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.)
In assessing attorney fees, the trial court "begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney... involved in the presentation of the case." (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1131-1132.) The court multiplies the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) That amount may then be increased or reduced based on other factors concerning the lawsuit. (Ketchum v. Moses, supra, 34 Cal.4th at p. 1134.) However, while an attorney fee award should ordinarily include compensation for all hours reasonably spent, inefficient or duplicative efforts will not be compensated. (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1321.)
The amount of an attorney fee award is left to the sound discretion of the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Accordingly, we review an anti-SLAPP attorney fee award under the deferential abuse of discretion standard. (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1322.) "The "experienced trial judge is the best judge of the value of professional services rendered in his court.... ""(PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Therefore, the courts judgment will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., the court exceeded the bounds of reason, all of the circumstances before it being considered. (Ibid; Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1322.)
Kaye argues the trial court abused its discretion when it disregarded his unrebutted expert testimony, i.e., Rosatis declaration opining that reasonable fees should not exceed $15,000. However, the value of the legal services is a matter in which the trial court has its own expertise. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1096.) Thus, "[t]he trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony." (Ibid.) Accordingly, the trial court did not abuse its discretion simply because it made a fee award that was contrary to Rosatis declaration.
When Balogh first filed the anti-SLAPP motion on behalf of Van Putten, she included a declaration stating that she had spent approximately 30 hours preparing the motion and that she anticipated spending another approximately 20 hours reviewing any opposition, preparing reply papers, and attending the hearing on the motion. Balogh also stated she was charging Van Putten $165 per hour for her work and $180 per hour for work done by partners. Approximately one year later, in her declaration submitted in support of the motion for attorney fees filed following the granting of the anti-SLAPP motion, Balogh stated that she had billed 114.3 hours on the anti-SLAPP motion. Balogh further explained that the $165 and $180 hourly rates were the rates charged to Van Puttens insurance carrier.
Kaye argues that the trial court erred in ignoring the contradiction between Baloghs two declarations and that, because her initial declaration was a judicial admission, Balogh should be limited to fees based on 30 hours at $165 per hour. However, contrary to Kayes position, Baloghs declarations were not contradictory. The declaration filed with the anti-SLAPP motion contained estimates of the time she believed she would spend whereas the one filed nearly a year later included the actual billing statements that were submitted and paid.
Moreover, the trial court did not abuse its discretion in making the fee award for Baloghs representation. The trial court properly used the submitted billing statements to arrive at the lodestar figure "based on the careful compilation of the time spent and reasonable hourly compensation of each attorney... involved in the presentation of the case" and then multiplied that number of hours by the reasonable hourly rate prevailing in the community for similar work. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 11311132; Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1321.)
b. Defendants cross-appeal.
Defendants filed a cross-appeal from the attorney fees order. Defendants argue the trial court abused its discretion in awarding an attorney fee amount that was less than requested. According to defendants, the court erred in disallowing certain hours of attorney time as being excessive.
As discussed above, the trial courts role in making an attorney fee award is not to simply rubber stamp the defendants request but, rather, is to ascertain whether the amount sought is reasonable. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 361.) Trial judges are entrusted with this discretion because they are in the best position to assess the value of the legal services rendered in their courts. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) Thus, the trial courts conclusion that certain hours were inefficient or duplicative will not be disturbed unless that conclusion is clearly wrong, i.e., it exceeds the bounds of reason. (Ibid.)
Defendants contend that reducing hours on the ground that they were excessive was an abuse of discretion because there was no evidence that the time entries were erroneous or that there was duplication of effort. Further, the attorneys both declared that the time they spent was necessary. Therefore, defendants argue, the trial court erred in failing to give credence to the verified time statements of counsel.
However, counsels time records are merely the starting point for the trial courts lodestar determination. (Cf. Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 397.) It is then up to the court to ascertain whether those hours were reasonable.
That is what the trial court did here. The court carefully reviewed the billing statements and determined what, in its opinion, was a reasonable number of hours to spend on each facet of the case. Moreover, the approximately $64,000 award was still generous in light of the fact that the anti-SLAPP statute is designed to expeditiously end baseless lawsuits. There is no showing that the trial courts decisions to reduce hours as being excessive were arbitrary or irrational. Therefore, this court will not disturb those decisions on appeal.
Nevertheless, in two instances the court reduced the fee based on factual findings that the court later reversed without making a corresponding adjustment to the award. In its tentative ruling, the court reduced 2.4 hours of attorney time and 1.1 hours of paralegal time Smith spent reviewing and analyzing Van Puttens anti-SLAPP motion and related pleadings on the ground that Smith was not then representing Van Putten. The court also denied Smiths request for 22.9 hours of attorney time and 3.3 hours of paralegal time because it concluded that the time entries Smith redacted to protect attorney-client privilege appeared to not be relevant to the anti-SLAPP motion. Following the hearing on the motion, the court adopted its tentative ruling but modified its findings as follows: "Regarding Mr. Smiths review of Dr. Van Puttens pleading..., the court acknowledges that Mr. Smith was then representing Dr. Van Putten. Regarding the redacted bills, the court now assumes they are related to the Anti SLAPP Motion." Despite this modification, the court left the fee award as originally calculated. Since the court reversed itself on the bases for two time reductions without adjusting the fees, the attorney fees award will be reversed and the matter remanded to the trial court for reconsideration in light of the modified facts.
Defendants further argue that the trial court abused its discretion by allowing Rosatis declaration into evidence on the ground that, in light of Rosatis lack of experience with anti-SLAPP motions, it is mere lay opinion and is irrelevant. However, it is clear that the trial court did not rely on Rosatis declaration. While Rosati opined the attorney fees should be no more than $15,000, the trial court awarded over $64,000 in fees. Thus, even assuming there was error, it was harmless.
c. Fees on appeal.
Since defendants have prevailed on this appeal, they are also entitled to recover their costs and attorney fees on appeal. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248.) The amount of such fees is to be determined by the trial court on defendants motion. (Morrow v. Los Angeles Unified School Dist., supra, 149 Cal.App.4th at p. 1446.)
DISPOSITION
The portion of the judgment granting defendants anti-SLAPP motions is affirmed. The portion of the judgment awarding attorney fees to defendants is reversed and the matter remanded for reconsideration of the amount in light of the trial courts modification of its factual findings. Defendants shall recover their costs and attorney fees on appeal, the amount of which is to be determined by the trial court.
LEVY, Acting P.J.
WE CONCUR:
KANE, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.