Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSS702355, Christopher J. Warner, Judge.
Brunick, McElhaney & Beckett and Leland P. McElhaney for Plaintiff and Appellant.
Jeffer, Mangels, Butler & Marmaro, Susan Allison and Jessica C. Bromall for Defendants and Respondents Keith Schauermann and St. Bernardine Medical Center.
Nemecek & Cole, Jonathan B. Cole and Susan S. Baker for Defendant and Respondent Suzanne Fullerton van Hall.
McKinster, J.
George Small, plaintiff and appellant (hereafter plaintiff), appeals from the judgment of dismissal entered after the trial court granted the Code of Civil Procedure section 425.16 special motion to strike, commonly referred to as an anti-SLAPP motion, filed by defendants and respondents Keith Schauermann, M.D., St. Bernardine Medical Center, and Suzanne Fullerton van Hall (hereafter referred to collectively as defendants or individually by name). Defendants filed their anti-SLAPP motion in response to plaintiff’s complaint seeking damages from them on various theories of recovery including libel, intentional interference with prospective economic advantage, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff alleged in that complaint that he is an obstetrician and gynecologist who for many years had staff privileges at St. Bernardine Medical Center (St. Bernardine); after plaintiff left St. Bernardine, he applied for staff privileges at Pioneers Memorial Hospital (Pioneers); Pioneers requested information from St. Bernardine about plaintiff; and St. Bernardine responded in a letter (drafted by its attorney, defendant van Hall, and signed by defendant Schauermann as the then-head of obstetrics and gynecology at St. Bernardine). Statements about plaintiff contained in that letter are the basis for plaintiff’s defamation cause of action and are also some but not all of the conduct alleged as the basis for his other theories of recovery.
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
SLAPP standing for strategic lawsuit against public participation.
The trial court relying on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler) found that defendants’ letter was protected under the anti-SLAPP statute. In Kibler, the California Supreme Court held that the peer review process pursuant to which a hospital peer review committee recommends disciplinary action against one of its physicians comes within the phrase “any other official proceeding authorized by law” as used in section 425.16, subdivision (e)(2) of the anti-SLAPP statute. The trial court in this case found that the procedure used by a hospital to obtain information about a doctor who has applied for staff privileges is part of the peer review process and as such comes within the above quoted anti-SLAPP provision. Plaintiff contends the trial court erred because the determinative aspect of the peer review process in Kibler is that a peer review committee made the disciplinary decision. Because in this case Pioneers only solicited information about plaintiff but did not form a peer review committee to evaluate that information, plaintiff contends that this case does not involve the peer review process. Therefore, he argues, his complaint is not properly the subject of an anti-SLAPP motion.
We conclude, as we explain below, that plaintiff’s interpretation of Kibler and the anti-SLAPP statute is too narrow, and that the trial court correctly found that defendants’ alleged defamatory statements were protected under section 425.16. We further conclude that defendants’ evidence shows plaintiff’s defamation cause of action is barred by the one-year statute of limitations and that plaintiff does not have a right to amend his pleading to allege facts to show defendants are estopped from asserting the statute of limitations as a defense. Therefore, we conclude as a matter of law that plaintiff cannot prevail on his defamation cause of action. With respect to plaintiff’s remaining causes of action we conclude plaintiff demonstrated a likelihood that he would prevail on the merits of those claims. Therefore, the trial court should not have granted the anti-SLAPP motion with respect to those other causes of action. Accordingly, we will reverse with respect to those causes of action.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent factual and procedural details are undisputed. Plaintiff is an obstetrician and gynecologist who, according to the pleadings and the affidavits in support of and opposition to the anti-SLAPP motion, had medical staff privileges at St. Bernardine and Community Hospital of San Bernardino from April 1980 to January 24, 2003, when he retired from the practice of medicine. Plaintiff returned to the practice of medicine in the fall of 2004, and in October 2005 applied for staff privileges at Pioneers in Brawley, California. In connection with that application, Pioneers asked St. Bernardine to provide it with information about plaintiff. St. Bernardine provided that information in a letter dated January 13, 2006, prepared by defendant van Hall, St. Bernardine’s legal counsel. Defendant Schauermann, in his capacity as Chairman of Obstetrics and Gynecology, signed the letter.
Plaintiff attached a copy of the January 13, 2006 letter as Exhibit A to his complaint for damages.
The letter states, in pertinent part, based on its experience with plaintiff, that St. Bernardine could not recommend Pioneers grant him medical staff membership or any clinical privileges. After recounting plaintiff’s history at St. Bernardine (he joined the medical staff in April 1980, resigned in 1999, and reapplied for appointment in 2002), the letter states that plaintiff “was suspended for inability to provide current malpractice coverage in January, 2003, and subsequently deemed resigned.” The letter also states that “concerns were expressed regarding [plaintiff’s] behavior towards staff and nursing personnel, transfer decisions he made for some of his patients, and his qualifications and credentials to practice primary care medicine. In addition, numerous questions were raised concerning his care of patients and his handling of complications, plus his honesty.” The letter notes that plaintiff “was named as a defendant in numerous lawsuits that involved allegations that his substandard care of patients caused maternal deaths, fetal deaths, and severe and permanent disabilities for children he had delivered.” The letter includes a summary of the seven cases that caused St. Bernardine “the most concern at the time of [its] last review of [plaintiff].” According to the letter, plaintiff did not list “most of the cases” included in the summary when he reapplied for staff privileges; he also did not timely respond to three of the lawsuits, and default judgments were obtained against him in two of those three lawsuits. After noting that the information about litigation pending against plaintiff has not been updated since 2002 when St. Bernardine was “addressing [plaintiff’s] medical staff status, ” the letter states, “As you will see, he left many lives in shambles when he suddenly departed the Medical Staff in late 2002.” The letter concludes, “We rarely submit such a negative evaluation; but we also rarely have encountered a doctor who had such severe deficiencies in his clinical work and ethics.”
In October 2006, plaintiff applied for medical staff privileges at Arrowhead Regional Medical Center (Arrowhead). In connection with that application, Arrowhead sent a request to St. Bernardine for information about plaintiff. St. Bernardine did not respond to that request because plaintiff would not sign what plaintiff alleges is an unduly broad and unreasonable release of liability, even though he had earlier signed a similar release in connection with Pioneers’ information request.
On June 7, 2007, plaintiff filed his complaint against defendants in which he alleged in pertinent part that the January 13, 2006, letter to Pioneers is “libelous on its face, ” and not privileged; that the letter to Pioneers, and St. Bernardine’s refusal to provide information to clarify or substantiate the claims in that letter and further refusal to provide information about plaintiff to Arrowhead, constitute unfair business practices and intentional interference with plaintiff’s prospective economic advantage; that defendants’ conduct was intended to and did cause plaintiff to suffer mental anguish and emotional and physical distress; and that defendants negligently caused plaintiff to suffer severe emotional distress and mental suffering.
In response to plaintiff’s complaint, defendants demurred on the ground that the complaint failed to allege facts sufficient to constitute a cause of action under any theory of liability alleged. Defendants also filed the special motion to strike under section 425.16 that is the subject of this appeal. In that motion, defendants asserted that their actions all occurred in connection with an official proceeding, namely a hospital peer review of an applicant for medical staff privileges, and plaintiff cannot establish a reasonable probability that he will prevail on any of his causes of action. In support of their special motion to strike, defendants submitted the declarations of defendant van Hall, defendant Schauermann, and Linda Dilley, who was St. Bernardine’s Director of Medical Staff Services at the times pertinent to plaintiff’s complaint. We recount the details of the declarations below as pertinent to the issues raised in this appeal.
Before the hearings on either of defendants’ responsive pleadings, plaintiff filed an amended complaint and a motion requesting leave to conduct discovery. Defendants demurred to that amended pleading. At the hearing on plaintiff’s discovery motion, the trial court bifurcated the proceeding on the anti-SLAPP motion from the demurrer. At the first hearing, the trial court overruled defendants’ demurrer to plaintiff’s amended complaint, and after taking the matter under submission, ruled that defendants had made the requisite threshold showing on the special motion to strike, namely that plaintiff’s application for staff privileges sets in motion the peer review process as articulated in Kibler and that process is protected under the anti-SLAPP statute. The trial court then granted plaintiff’s request to conduct limited discovery and also set a hearing on the second issue raised by defendants’ anti-SLAPP motion-whether plaintiff can establish a reasonable probability of prevailing on the complaint.
At the second hearing, the trial court ruled that plaintiff had not met his burden of making a prima facie showing that there is a reasonable probability that he would prevail on the merits of his claims. In the trial court’s view plaintiff could not prevail because his defamation cause of action is barred by the statute of limitations, all of his causes of action are barred because the communications at issue are privileged under Civil Code sections 43.8 and 47, subdivision (c), and in any event defendants’ acts are based on the advice of counsel. In addition, the trial court found that plaintiff had not presented evidence to show actual malice on the part of defendants. Plaintiff, as previously noted, challenges the order granting defendants’ special motion to strike in this appeal from the judgment of dismissal entered on March 28, 2008.
The trial court made other rulings on issues raised in the trial court, none of which are pertinent to this appeal. At a later hearing the trial court granted defendants’ motion for attorney fees, a ruling plaintiff does not challenge in this appeal.
DISCUSSION
1.
STANDARD OF REVIEW
In ruling on an anti-SLAPP motion a trial court is required to “engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Ibid.)
On appeal, in this case from the judgment of dismissal entered after a trial court has granted an anti-SLAPP motion, we independently review “whether a complaint arises out of the defendant’s exercise of a valid right to free speech and petition, and, if so, whether the plaintiff established a reasonable probability of prevailing on the complaint. [Citations.]” (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1017, disapproved of on other grounds in Rusheen v. Cohen (2006) 37 Cal.4th 1048.)
2.
ANALYSIS
Before we address the substance of plaintiff’s appeal, we must first clarify a procedural point, namely, which of plaintiff’s pleadings is at issue here. The trial court stated in its ruling on defendants’ special motion to strike that it “considers this motion to encompass both the original complaint and the 1st amended complaint on the issue of protected activity.” Defendants note, in the context of addressing plaintiff’s showing regarding the likelihood he would prevail on the merits of his claims, that plaintiff’s amended complaint “is legally ineffective, because a party has no right, express or implied, to amend a pleading to avoid a SLAPP motion.” Defendants’ argument suggests that we may only consider plaintiff’s original complaint and related showing. Plaintiff, in turn, contends that he should have been allowed to amend his pleading to allege facts showing defendants were estopped from asserting the statute of limitations as a defense to his defamation cause of action. Because resolution of both claims depends at least initially on whether a plaintiff has a right to amend the complaint, we address both claims here.
In Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 (Simmons), which defendants cite to support their claim that only plaintiff’s original pleading was relevant in ruling on their anti-SLAPP motion, a cross-defendant filed an anti-SLAPP motion challenging the cross-complaint. At the hearing on that motion, the trial court announced its tentative ruling to grant the motion. (Id. at p. 1072.) The cross-complainant then asked the trial court for leave to amend the cross-complaint. The trial court denied that request and granted the anti-SLAPP motion. (Ibid.) On appeal, the cross-complainant argued that the trial court had abused its discretion by denying his request for leave to amend his cross-complaint. (Id. at p. 1073.) The appellate court disagreed. It reasoned that the “anti-SLAPP statute makes no provision for amending the complaint once the court finds the requisite connection to First Amendment speech” and that no right to amend “once the court finds the prima facie showing has been met” should be implied because the purpose of the statute is to resolve alleged SLAPP suits expeditiously at the outset of the litigation. (Ibid.)
Simmons holds only that there is no right to amend a complaint after the trial court has found that the moving party has made the threshold showing under section 425.16 that the underlying conduct is protected activity. (Simmons, supra, 92 Cal.App.4th at p. 1073; Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 881 [“Simmons did not hold that parties lose their right to amend a pleading upon the filing of an anti-SLAPP motion by the opposition. Rather, Simmons stated that parties lose that right after a court has made an adverse ruling by finding the moving party met its burden of proof and finding a prima facie showing has been made.”].) Simmons does not address whether, as happened in this case, an amended complaint may be filed after an anti-SLAPP motion has been filed but before the trial court has ruled on that motion.
We will not resolve the issue because defendants have not demonstrated that they objected in the trial court to the amended complaint. Moreover, defendants acknowledge, albeit indirectly, that the causes of action or claims alleged in plaintiff’s amended complaint are based on the same facts alleged in his original pleading. Therefore, both plaintiff’s original and amended complaint are based on defendants’ letter of January 13, 2006, to Pioneers and defendants’ refusal in November 2006 to provide information about plaintiff to Arrowhead unless plaintiff first signed what the parties refer to as the “killer release.” Because the facts alleged are the same, defendants’ showing in support of its anti-SLAPP motion was not affected by the amended pleading. Therefore, even if the trial court should have considered only plaintiff’s original complaint in ruling on defendants’ anti-SLAPP motion, any error was harmless in this case.
Plaintiff contends that the trial court should have allowed him to amend his pleading after the trial court found that plaintiff’s defamation cause of action was barred by the statute of limitations. In his opposition to defendants’ demurrer, plaintiff argued that defendants were estopped from raising the statute of limitations as a defense to his defamation cause of action and requested leave to amend his complaint to include the estoppel allegations. Because the trial court overruled defendants’ demurrer, the trial court had no reason to grant plaintiff’s request for leave to amend his first amended complaint. In his opposition to defendants’ anti-SLAPP motion, plaintiff did not raise the estoppel claim or present facts pertinent to that claim, even though the claim would have been pertinent to show plaintiff’s likelihood of prevailing on his defamation claim. Moreover, plaintiff did not seek leave to amend his complaint in connection with defendants’ anti-SLAPP motion.
Plaintiff argues that it would have been futile to present estoppel evidence in his opposition to defendants’ anti-SLAPP motion because defendants would have objected to that evidence, just as they did when plaintiff included it in his opposition to their demurrer, and the trial court would have sustained defendants’ objection, just as it did in ruling on defendants’ demurrer. Similarly, plaintiff contends it would have been futile to request leave to amend his complaint during the hearing on the anti-SLAPP motion because the trial court would have denied such a request, just like it did when plaintiff sought leave to amend in his opposition to defendants’ demurrer.
We are not persuaded by plaintiff’s argument. In opposition to defendants’ demurrer, plaintiff asserted defendants should be estopped from raising the statute of limitations as a defense. To support that claim, and his related request for leave to amend his complaint in the event the trial court sustained defendants’ demurrer, plaintiff submitted evidence of settlement discussions that had caused his attorney to delay initiating legal action against defendants. In sustaining defendants’ objection to that evidence the trial court stated that it had “disregarded any settlement discussions. They are inappropriate for any purpose, particularly a demurrer, which is confined to the face of the pleadings.”
If plaintiff had raised the estoppel claim in his opposition to defendants’ anti-SLAPP motion, plaintiff could have explained, as he did in this appeal, the relevance and admissibility of settlement evidence to the issue of estoppel. “It is well settled that where delay in commencing an action is induced by the conduct of the defendant, he cannot avail himself of the defense of the statute. [Citations.]” (Gaglione v. Coolidge (1955) 134 Cal.App.2d 518, 527.) The trial court might very well have overruled defendants’ objection if plaintiff had provided the appropriate explanation. More importantly, the trial court might have granted plaintiff leave to amend his complaint if plaintiff had made such a motion in connection with the anti-SLAPP motion. The trial court only denied plaintiff’s initial request to amend made in connection with defendants’ demurrer because the trial court overruled the demurrer and as a result plaintiff did not have any need to amend his pleading. We simply cannot say that a request to amend his complaint made in connection with the anti-SLAPP motion would have been futile. Because plaintiff did not make such a request, we will not address the question of whether the trial court should have, or could have, granted a request to amend the complaint after the trial court found defendants had made the required showing in support of their anti-SLAPP motion.
We next address the issue of whether defendants’ conduct was protected activity under the anti-SLAPP statute.
A. Protected Activity
Section 425.16 creates a procedure to curtail litigation that is brought primarily to chill the valid exercise of First Amendment rights, such as freedom of speech or freedom to petition for redress of grievances. (See § 425.16, subd. (a).) That procedure is set out in subdivision (b)(1) of section 425.16 which states, “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 or 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.” (§ 425.16, subd. (b)(1).) “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....” (§ 425.16, subd. (e).)
The trial court found that defendants’ letter to Pioneers was protected by section 425.16 as interpreted in Kibler, supra, 39 Cal.4th 192, in which, as previously stated, the California Supreme Court held that the peer review process pursuant to which a hospital peer review committee recommends disciplinary action against one of its physicians comes within the phrase “any other official proceeding authorized by law” as used in section 425.16, subdivision (e)(2) of the anti-SLAPP statute. Therefore, the Supreme Court held that any written or oral statement made during or in connection with such a proceeding is an “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, ” and as such is properly the subject of a special motion to strike.
In granting defendants’ anti-SLAPP motion in this case, the trial court found that the procedure used by a hospital to obtain information about a physician who has applied for staff privileges is part of the peer review process identified in Kibler and as such comes within the above quoted anti-SLAPP provision. Plaintiff contends the determinative aspect of the peer review process at issue in Kibler is that a peer review committee is involved in making the disciplinary decision. Because Pioneers only solicited information about plaintiff but did not form a peer review committee to consider that information, plaintiff asserts that defendants’ defamatory statements were not made during or in connection with the peer review process and are not properly the subject of an anti-SLAPP motion. As previously indicated, we do not share plaintiff’s view.
Because it is controlling, we liberally quote Kibler and begin with the Supreme Court’s explication of the anti-SLAPP legislation: “Enacted in 1992, section 425.16 sets out the procedure for filing a special motion to strike certain lawsuits that are ‘brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§ 425.16, subd. (a), added by Stats. 1992, ch. 726, § 2, p. 3523.) Because section 425.16 allows for the early dismissal of SLAPP suits, it is often called the ‘anti-SLAPP’ statute. In enacting that statute, the Legislature declared that ‘it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.’ To achieve that goal, the Legislature stated, the anti-SLAPP statute ‘shall be construed broadly.’ (§ 425.16, subd. (a).)” (Kibler, supra, 39 Cal.4th at p. 197.)
Although previously quoted, it bears repeating: “Section 425.16, subdivision (b)(1) 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 or 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.’ Subdivision (e) of section 425.16 defines the phrase ‘“act in furtherance of a person’s right of petition or free speech... in connection with a public issue”’ to include: ‘(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; (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 defendant who invokes either subparagraph (1) or subparagraph (2) of subdivision (e) of section 425.16, the anti-SLAPP statute, need not ‘separately demonstrate that the statement concerned an issue of public significance.’ [Citation.]” (Kibler, supra, 39 Cal.4th at p. 198.)
“At issue here is the meaning of the statutory phrase ‘any other official proceeding authorized by law, ’ which appears in both subparagraphs (1) and (2) of subdivision (e) of section 425.16, the anti-SLAPP statute. These two subparagraphs (both defining acts in furtherance of the rights of petition and of free speech) differ in that subparagraph (1) is limited to oral and written statements and writings actually made in the course of certain specified proceedings, while subparagraph (2) includes statements made ‘in connection with’ those proceedings.” (Kibler, supra, 39 Cal.4th at p. 198.) In Kibler, the trial court found that the plaintiff physician’s “lawsuit against the hospital arose out of oral or written statements or writings made ‘in connection with’ (but not during the course of) the hospital’s peer review proceeding that resulted in Kibler’s summary suspension. Therefore, [the court in Kibler was] concerned... solely with subparagraph (2) of subdivision (e) of section 425.16, and not with subparagraph (1) of subdivision (e).” (Ibid.) The Supreme Court concluded that “a hospital’s peer review qualifies as ‘any other official proceeding authorized by law’ under subparagraph (2) of subdivision (e) and thus a lawsuit arising out of a peer review proceeding is subject to a special motion under section 425.16 to strike the SLAPP suit.” (Ibid.)
According to the Supreme Court, “Peer review is the process by which a committee comprised of licensed medical personnel at a hospital ‘evaluate[s] physicians applying for staff privileges, establish[es] standards and procedures for patient care, assess[es] the performance of physicians currently on staff, ’ and reviews other matters critical to the hospital’s functioning. [Citation.]” (Kibler, supra, 39 Cal.4th at p. 199.) Plaintiff does not dispute that an application for medical staff privileges is part of the peer review process. (See Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1482-1483, identifying and discussing statutes from which the peer review process is derived.) Instead, plaintiff contends, because defendants did not present any evidence to show that a peer review committee had actually been formed to consider his application for staff privileges, the letter was not solicited by Pioneers in connection with the peer review process. According to plaintiff, Kibler only protects the acts of the peer review committee but does not protect acts undertaken “in connection with” the peer review process.
Plaintiff’s interpretation of Kibler is too narrow and runs counter not only to the express language of the opinion but also to the court’s focus in that case on the distinction between writings or statements made “in the course of” a proceeding, which are protected under subparagraph (1) of section 425.16, subdivision (e), and those made “in connection with” such a proceeding, which are protected under subparagraph (2) of section 425.16, subdivision (e). (Kibler, supra, 39 Cal.4th at p. 198.) If we were to adopt plaintiff’s interpretation, then only writings or statements made directly to the peer review committee, or solicited directly by such a committee, would be protected under Kibler. Information requested for eventual consideration by a peer review committee would not be protected under plaintiff’s construction. The Supreme Court clearly intended in Kibler to protect statements or writings made “in connection with” the entire peer review process, a process that necessarily includes writings and statements solicited for the purpose of eventual peer review. As previously noted, plaintiff does not dispute that applications for hospital medical staff privileges are part of the peer review process, and the decision whether to grant or deny an application is made in that process.
The letter from defendants at issue in this case was solicited by the “medical staff coordinator” of Pioneers in a letter dated November 21, 2005, which states, in pertinent part, that plaintiff “has applied for membership and clinical privileges to Pioneers Memorial Healthcare District.... Therefore, as part of the credentialing process, verification of all affiliations is required.... Please complete and return this form, and provide any additional information that would assist us in evaluating this applicant’s qualifications.” Pioneers’s letter requested information to be used in its peer review of plaintiff’s application for medical staff privileges. Defendants’ letter was prepared in response to the letter from Pioneers and therefore was made “in connection with” the peer review process because it provided information about plaintiff for Pioneers to consider in its peer review of plaintiff’s application for medical staff privileges. Because we conclude defendants’ letter is part of the peer review process, which the Supreme Court says is an “‘official proceeding authorized by law’ under subparagraph (2) of subdivision (e)” of the anti-SLAPP statute, and concerns plaintiff’s qualifications for staff privileges, which is an issue under consideration in that peer review process, a lawsuit based on statements contained in defendants’ letter “is subject to a special motion under section 425.16 to strike the SLAPP suit.” (Kibler, supra, 39 Cal.4th at p. 198.)
In short, we are not persuaded by plaintiff’s effort to limit the scope of peer review to the actual proceedings before a peer review committee or to statements or writings made in response to requests directly from such a committee. Defendants’ letter is the basis for plaintiff’s complaint, and the statements in that letter were made in connection with an issue under consideration in an official proceeding authorized by law. (Kibler, supra, 39 Cal.4th at p. 198.) Therefore, plaintiff’s complaint properly is the subject of defendants’ anti-SLAPP motion, and the trial court correctly required plaintiff to show a likelihood of success on the merits of his claims in order to defeat that motion.
B. Likelihood of Success on Merits
The principles that govern this next step of our analysis are succinctly stated in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 (Mann): “A cause of action is subject to being stricken under the anti-SLAPP statute only if it ‘arises from protected speech or petitioning and lacks even minimal merit.’ [Citation.] A plaintiff is not required ‘to prove the specified claim to the trial court’; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim. [Citation.] [¶] In deciding this question the court again considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; however, it may not weigh the credibility or comparative probative strength of competing evidence. [Citation.] Rather, the court considers whether the plaintiff has made a prima facie showing of facts based on competent admissible evidence that would, if proved, support a judgment in the plaintiff’s favor. [Citations.] The court may also consider the defendant’s opposing evidence, but only to determine if it defeats the plaintiff’s showing as a matter of law. [Citations.]” (Id. at pp. 105-106.) The analysis is similar to that employed when reviewing a nonsuit, directed verdict or summary judgment motion. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) “As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. [Citation.] The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. [Citation.]” (Id. at pp. 672-673.)
In granting defendants’ anti-SLAPP motion, the trial court found that defendants had presented evidence that defeated plaintiff’s claims as a matter of law. Specifically, defendants asserted that plaintiff’s claims were all barred by the so-called common interest privilege and the advice of counsel defense. In addition, defendants asserted that plaintiff’s defamation cause of action was barred by the statute of limitations. In particular, the trial court found that plaintiff’s defamation cause of action was barred by the one-year statute of limitations because plaintiff “learned of the [defamatory] letter in March or April of 2006 (certainly before June of 2006 [when he filed his complaint]) and he ‘knew or reasonably should have known’ the facts contained therein....” With respect to plaintiff’s remaining causes of action, the trial court found they are barred “by the common interest privilege. The ‘advice of counsel’ was sought in good faith and the defense is valid and viable and applies herein. Plaintiff has failed to demonstrate the requisites for malice or to raise the issue to a triable issue of fact.”
(1) Defamation Cause of Action
Plaintiff contends that his defamation cause of action is not barred by the statute of limitations because he “made an adequate prima facie showing [in the trial court] of facts justifying application of the delayed discovery rule.” Plaintiff did allege facts in his amended complaint directed at establishing his belated discovery of defendants’ defamatory statements. However, the facts alleged in plaintiff’s original complaint establish that the defamation claim was barred by the one-year statute of limitations set out in section 340, subdivision (c).
For the purpose of this discussion we will assume but will not actually decide that the so-called discovery rule is applicable to a claim for damages arising from libel. The discovery rule operates to delay accrual of a cause of action, and thus the time within which an action must be filed, until the plaintiff discovers or has reason to discover the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.) “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Id. at p. 807.)
Plaintiff alleged in his original complaint that after Pioneers received defendants’ letter, it told him that “... this Medical Staff [was] informed that you were subject to disciplinary action at St. Bernardine Medical Center..., that your privileges were suspended at that facility and that you were deemed to have resigned from that facility in January of 2003. You were informed that in order to have your application considered further it would be necessary for you [to] arrange to have the Medical Staff of [St. Bernardine] provide this Medical Staff with copies of all peer review documents (including committee minutes and reports) relating to you as well as documentation of your suspension and resignation from that facility.” Plaintiff alleged that he sent a certified letter to St. Bernardine on May 16, 2006, asking the hospital to provide Pioneers with the additional information.
Plaintiff’s amended complaint includes allegations that in March and April of 2006, when Pioneers asked him to provide additional information to address the statements set out in defendants’ January 2006 letter, “plaintiff did not know the details or specifics of the negative information defendants had reported about him to Pioneers. In particular, plaintiff was completely in the dark as to the ‘disciplinary action [that had been taken against him] at St. Bernardine Medical Center, ’ that apparently was reported by defendants to Pioneers.”
The above quoted allegations support the inference that plaintiff knew sometime before May 16, 2006, when he sent his letter, that St. Bernardine had made the alleged defamatory statement, namely that it told Pioneers that plaintiff had been the subject of a disciplinary action while on staff at St. Bernardine. According to plaintiff’s complaint that statement is untrue: “In the nearly 23 years during which plaintiff practiced medicine at St. Bernardine, he was never brought before St. Bernardine’s Medical Staff Executive Committee, Credentials Committee, or any Peer Review Committee for disciplinary action.” The noted allegations establish as a matter of law that no later than May 16, 2006, plaintiff had notice of facts that gave rise to a duty to inquire further and thus discover the actual defamatory statements. In view of that allegation, plaintiff’s defamation claim, to be timely, had to be filed within one year of May 16, 2006. Plaintiff did not file his complaint until June 7, 2007, and as a result the cause of action for defamation is barred by the one-year statute of limitations.
In arguing otherwise, plaintiff contends, first, that the letter from Pioneers did not put him on inquiry notice because St. Bernardine’s had in fact suspended plaintiff in January 1999 for not attending the required number of medical staff meetings, and again in January 2003 for not providing proof of malpractice insurance coverage. Because he believed the disciplinary proceedings Pioneers referred to in its letter were those two incidents, both of which had actually occurred and therefore were true, plaintiff contends that Pioneers’ letter did not put him on notice to inquire further.
Plaintiff’s contention conflicts with the above quoted allegations of his verified amended complaint, namely that he was “completely in the dark” about the alleged disciplinary action. Moreover plaintiff also alleged in his amended complaint that he knew St. Bernardine’s had not taken any disciplinary action against him “for any reason related to the quality of his medical care or clinical work. For that reason and to determine whether the information reported to Pioneers by defendants was accurate, plaintiff” sent the May 16, 2006, letter. (Emphasis added.) According to the emphasized language set out in his verified pleading, plaintiff suspected that defendants might have provided inaccurate information about him to Pioneers and on May 16, 2006, plaintiff sent the letter that in our view marks the beginning of his inquiry. That letter started the clock running on the one-year statute of limitations on plaintiff’s defamation claim.
In arguing otherwise, plaintiff contends that he only obtained a copy of defendants’ defamatory letter after June 12, 2006, which is the first time he learned or reasonably could have learned that defendants had made defamatory statements about him. Plaintiff has demonstrated only that he did not know the specific defamatory statements defendants had made about him until he obtained a copy of the actual letter. The discovery rule only requires knowledge of such facts as would put plaintiff on notice to inquire further. Plaintiff suspected at the very latest by May 16, 2006, that defendants had reported allegedly inaccurate information about him to Pioneers and based on that suspicion sent a letter to defendants requesting an explanation. Plaintiff’s knowledge combined with his act of initiating an inquiry by sending a letter to defendants requesting additional information started the time running within which to file his defamation cause of action. Plaintiff should have filed his complaint within one year of May 16, 2006. He did not. Consequently, plaintiff’s defamation claim is barred as a matter of law by the statute of limitations.
Because defendants demonstrated as a matter of law that plaintiff could not prevail on his first cause of action for defamation, the trial court correctly granted their special motion to strike that cause of action. Our conclusion that the defamation cause of action is barred by the statute of limitations renders moot defendants’ privilege and other claims regarding the validity of that cause of action.
(2) Remaining Causes of Action
The remaining causes of action in plaintiff’s original and amended complaints are based not only on the alleged defamatory statements contained in defendants’ letter to Pioneers but also on (1) defendants’ refusal to provide information about plaintiff to Arrowhead unless plaintiff signed an “unduly broad and unreasonable” release of liability and (2) defendants’ refusal to send Pioneers a letter clarifying or substantiating the information contained in defendants’ January 2006 letter. Defendants asserted in their anti-SLAPP motion that their decision not to provide additional information to Pioneers and not to respond to Arrowhead’s request for information about plaintiff “all occurred in connection with hospital peer review proceedings” and therefore were protected conduct.
Defendants’ assertion begs the pertinent issue under section 425.16 which is whether the alleged conduct was in furtherance of defendants’ respective rights of petition or free speech and therefore is protected activity. As previously discussed, in order to prevail on their motion, defendants had to make a prima facie showing that their conduct came within section 425.16. Defendants cited only section 425.16, subdivision (e)(2) as support for their anti-SLAPP motion. That section defines the phrase “act in furtherance of a person’s right of petition or free speech” to include “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.” (§ 425.16, subd. (e)(2).) Defendants’ alleged acts of refusing to provide any information about plaintiff to Arrowhead or additional information to Pioneers do not come within the quoted provision, which pertains only to statements made orally or in writing. Defendants did not cite any other authority in the trial court or in this appeal to support their claim that the conduct in question is protected under the anti-SLAPP statute. Consequently, defendants did not meet the threshold requirement of making a prima facie showing under section 425.16. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.)
In ruling on defendants’ anti-SLAPP motion, the trial court accepted defendants’ argument that because the conduct occurred in the course of a medical peer review the conduct was protected under the anti-SLAPP statute. The trial court then found that plaintiff did not demonstrate a likelihood of success on the merits because the causes of action are barred by the common interest privilege and the advice of counsel. The trial court’s ruling is irrelevant because defendants did not make the required initial showing that the conduct is within the purview of section 425.16. For that reason the trial court erred in granting defendants’ anti-SLAPP motion with respect to plaintiff’s other causes of action.
Whether plaintiff’s other causes of action are subject to the noted privileges, and thus whether plaintiff will ultimately prevail against defendants, are not an issues we must resolve in this appeal. The privileges were only pertinent on the issue of whether plaintiff met his burden to show a likelihood of prevailing on the merits. That issue, in turn, only arose if defendants’ met their burden of demonstrating that the conduct alleged in plaintiff’s complaint came within section 425.16. Defendants met that burden with respect to plaintiff’s first cause of action for defamation. However, defendants did not meet that burden with respect to plaintiff’s four other causes of action.
DISPOSITION
The judgment dismissing plaintiff’s action is reversed and the matter remanded to the trial court with directions to grant defendants’ anti-SLAPP motion only with respect to plaintiff’s first cause of action for defamation.
Plaintiff to recover costs on appeal.
We concur: Hollenhorst, Acting P.J., Richli J.