Brough-Stevenson v. Community Emergency
Medical Assocs.

 

 

 

 

 

 

 

 

Filed 7/12/13 
Brough-Stevenson v. Community Emergency Medical Assocs. CA5

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>NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

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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opinion has not been certified for publication or ordered published for purposes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.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 

 
>

GLORIA BROUGH-STEVENSON,   Plaintiff and Respondent,                           v.   COMMUNITY EMERGENCY MEDICAL ASSOCIATES et al.,   Defendants and Appellants.

F063875   (Super. Ct. No. 11CECG01089)     >OPINION

 

            APPEAL from
an order of the Superior Court of Fresno County.  Donald S. Black, Judge.

            Dowling
Aaron Incorporated, Donald R. Fischbach, Daniel O. Jamison, Stephanie Hamilton
Borchers and Matthew R. Dildine for Defendants and Appellants.

            Smith
Johnson, Inc., William J. Smith, Kirby F. Cañon and C. Michael Carrigan for
Plaintiff and Respondent.

-ooOoo-

            Appellants,
Community Regional Medical Center (CRMC), Clovis Community Medical Center
(Clovis Community), Craig Castro, Craig Wagoner, Mason Mathews, R.N., and Gene
Kallsen, M.D., challenge the trial court’s denial of their motion to strike the
complaint filed by respondent, Gloria Brough-Stevenson, M.D., as a strategic
lawsuit against public participation (SLAPP). 
(Code Civ. Proc.,href="#_ftn1"
name="_ftnref1" title="">^[1] § 425.16.)  Respondent’s causes of action are based on
allegedly defamatory statements made by appellants regarding respondent’s
performance as an emergency room physician. 
Appellants contend that the subject statements are entitled to protection
under section 425.16 as acts in furtherance of their right of free speech
because public health and accessibility of health care are issues of widespread
public interest.  

            The trial
court’s ruling was correct.  The
challenged statements concern a private internal grievance that is only tangentially
related to an issue of widespread public interest.  Accordingly, the order will be affirmed.

BACKGROUND

            Respondent
is a licensed physician and surgeon and is board certified in emergency
medicine.  Respondent was a partner in
Community Emergency Medical Associates (CEMA), a group of emergency medical
practitioners that contracted with CRMC and Clovis Community to provide
emergency room physicians.  Respondent
had staff privileges at both hospitals.

            Craig
Castro is the chief executive officer for Clovis Community.  His duties include overseeing the delivery of
emergency medical services.  In doing so,
Castro receives reports and input on the emergency department’s performance
from his subordinates, including the RN manager, Mason Mathews.  Castro also communicates with Santé Health
Systems, Inc. (Santé), the management services organization for CEMA.

            Beginning
in 2008, Castro became concerned about the overall performance and quality of
the Clovis Community emergency department. 
Based on his declaration, it appears Castro was primarily focused on the
number of emergency patients seen per hour. 
Due to emergency departments providing a large measure of uncompensated
care, Clovis Community was paying CEMA an additional approximately $405,000 per
year to adequately compensate the physicians for their services.  Castro noted that CEMA physicians were seeing
approximately one patient per hour when industry standards were several more
per hour.  Castro stated that, if the one
patient per hour standard were increased, the size of this subsidy could be
greatly reduced, if not eliminated. 
Castro was also receiving complaints from specialty physicians.  The emergency room physicians involved these
specialty physicians in matters that an emergency room physician should have
been able to handle without calling for back up.  Further, Castro received complaints from
physicians and hospital staff that many of the CEMA physicians were not service
oriented.  However, Castro’s performance
concerns were limited.  According to
Castro, “all of the physician and ‘mid-level’ (meaning nurse practitioner or
physician’s assistant) providers were believed to be basically competent,
qualified, and of suitable character.”

            In 2010,
Castro brought these complaints to the attention of CEMA and Santé.  In response, a Santé employee, Carolyn
Larsen, requested information by e-mail on the emergency room doctors who had
received complaints in order to prepare for a meeting with the hospital board
of directors.  Mathews, the RN manager,
responded to Larsen’s request. 

            Mathews
identified multiple doctors who had received complaints.  Regarding respondent, Mathews stated she was
“slow, involved in nursing issues that have nothing to do with her, and lost
pieces of chart.”  Mathews further opined
that respondent “Needs to retire. 
SLOW!!  Passive aggressive
behavior with ED leadership and staff. 
Cannot keep up with dept. flow. 
Missing T- sheets.  Too busy
worrying about other people’s concerns and has tendency to get involved in
issues that have nothing to do with her.”

In his declaration, Mathews further
explained that while respondent and the other doctors “were all competent and
qualified, the issues cited in these e-mails reflected a systemic problem with
these physicians not performing at a high level and in a collegial, team-player
manner, all of which are essential to optimal performance of the entire
emergency service at Clovis.”  Mathews
listed the particular concerns regarding respondent as follows:

            “a.  She felt she needed to be involved in nursing
issues.  Per staff, instead of addressing
the issues with management directly, she would consistently make comments to
staff about what Emergency Department management could and should do to improve
work environment.

            “b.  During shifts, she would arrive and wait for
a nurse practitioner or physician’s assistant (NP/PA) to arrive to see less
urgent patients.  This would cause a
backup in department flow and decrease satisfaction of patients and staff.  This issue was brought to my attention by
NP/PA staff.

            “c.  Nurses would approach her about seeing high
acuity patients who were in pain, but she would write out orders to be carried
out instead of seeing patient emergently.

            “d.  She would take personal phone calls before
seeing patients which would in turn delay patient care and treatment (which
could potentially delay medical diagnosis). 
Fortunately, there were never any cases which had negative outcomes.

            “e.  She would make comments to Emergency
Department staff about not wanting to get in trouble with Emergency Department
manager because she was not doing what she needed to do.  This eroded the morale of the Emergency
Department staff and conveyed to them that the manager was difficult to work
with.

            “f.  There were multiple patient complaints
pertaining to her bedside manner which caused negative impact on department
satisfaction scores.

            “g.  Multiple staff members had made comments
about particular comments that she said to EMS staff.  Her reported comments were to the effect that
the Clovis Emergency Department was not the best choice to bring particular
patients.

            “h.  She challenged Emergency Department
leadership (both physician and nursing) authority in front of staff.  Per staff, she was undermining Emergency
Department management.

            “i.  Particular patients who frequently visited
the Emergency Department for pain issues were not seen according to
severity.” 

            After this
information was shared with the hospital administrators and CEMA, respondent
was precluded from practicing at Clovis Community and CRMC.  Ultimately, respondent was terminated by
CEMA.

            Respondent
filed the underlying complaint for defamation, interference with contract,
interference with prospective economic advantage, interference with the right
to practice medicine, and negligence. 
Respondent’s claims were based on the following allegedly defamatory
statements:

            1.  “Dr. Brough told paramedics that they should
have taken a patient to St. Agnes Hospital instead of Clovis Community because
the patient would receive better and more competent care at St. Agnes
Hospital”;

            2.  “Dr. Brough was slow and could not keep up
with the work flow in the Clovis Community emergency department”;

            3.  “Dr. Brough was passive-aggressive with the
Clovis Community emergency department staff and leadership”;

            4.  “Dr. Brough interfered with nursing issues”;

            5.  “Dr. Brough was either incompetent or
disorganized, resulting in missing or lost patient chart documentation”;

            6.  “Dr. Brough was incompetent and negligent in
her care of a patient who presented at the Clovis Community emergency
department with shortness of breath and was not admitted by Dr. Brough”;

            7.  “Dr. Brough was not qualified or capable of
doing her job and should retire”;

            8.  “Dr. Brough had poor productivity”;

            9.  “Dr. Brough made too many personal telephone
calls while on duty”;

            10.  “Dr. Brough spent too much time on personal
e-mails while on duty”; and

            11.  “Dr. Brough called hospitalists for admission
of patients before the patients’ test results were obtained and even before Dr.
Brough had even examined the patients.”

            In
response, appellants filed an anti-SLAPP motion under section 425.16.  Appellants argued that the alleged statements
were directly tied to public health issues and thus concerned a matter of
public interest that warranted protection under section 425.16, subdivision
(e)(4).  In support of their motion,
appellants submitted declarations from Kallsen, Castro, and Mathews.

            The trial
court denied appellants’ motion.  The
trial court found that appellants had not shown that the conduct involved
public issues or matters of public interest. 
Rather, the court concluded that the alleged communications “involved
nothing more than the internal business matters of a corporation.”  The court noted that the concern over the
number of patients per physician hour seen in the emergency department was
raised in the context of the income generated by CEMA’s physicians, the
reduction or elimination of the subsidy paid by Clovis Community to CEMA, and maintaining
a competitive advantage.  Thus, the
matter of public interest, i.e., health care, was tangential to the subject
communications.  The court further
pointed out that the alleged statements “were not made in connection with any
ongoing controversy, debate, or discussion within and among a definable portion
of the public.”

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 California’s 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.)  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 [defendant’s] 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.) 

            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.         Appellants
did not meet their burden of demonstrating that the allegedly defamatory
statements were entitled to protection under section 425.16.

            Section
425.16, subdivision (e), clarifies what speech constitutes 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.’”  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) 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.”  (§ 425.16, subd. (e).)   Appellants contend that their statements
fall under section 425.16, subdivision (e)(4), i.e., they were in furtherance
of the exercise of the constitutional right of free speech in connection with
an issue of public interest.

            It should
first be noted that protection under section 425.16 for statements in
connection with a public issue or an issue of public interest is not dependent
on those statements having been made in a public forum.  Rather, subdivision (e)(4) applies to private
communications concerning issues of public interest.  (Terry
v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546.) 

            Section
425.16 does not define “an issue of public interest.”  Nevertheless, the statute requires the issue
to include attributes that make it one of public, rather than merely private,
interest.  (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.)  A few guiding principles can be gleaned from
decisional authorities.  For example,
“public interest” is not mere curiosity. 
Further, the matter should be something of concern to a substantial
number of people.  Accordingly, a matter
of concern to the speaker and a relatively small, specific audience is not a
matter of public interest.  Additionally,
there should be a degree of closeness between the challenged statements and the
asserted public interest.  The assertion
of a broad and amorphous public interest is not sufficient.  Moreover, the focus of the speaker’s conduct
should be the public interest, not a private controversy.  Finally, a defendant charged with defamation
cannot, through his or her own conduct, create a defense by making the claimant
a public figure.  Otherwise private
information is not turned into a matter of public interest simply by its
communication to a large number of people. 
(Weinberg v. Feisel, supra, 110
Cal.App.4th at pp. 1132-1133.)

Being based on case law, the
precise boundaries of a public issue have not been defined.  Nevertheless, in each case where it was
determined that a public issue existed, “the subject statements either
concerned a person or entity in the public eye [citations], conduct that could
directly affect a large number of people beyond the direct participants
[citations] or a topic of widespread, public interest [citation].”  (Rivero
v. American Federation of State, County and Municipal Employees, AFL-CIO (2003)
105 Cal.App.4th 913, 924 (Rivero).) 

It has been held that in cases
where the issue is not of interest to the public at large, but rather to a
limited definable portion of the public, the constitutionally protected
activity must, at a minimum, occur in the context of an ongoing controversy,
dispute or discussion.  (>Du Charme v. International Brotherhood of
Electrical Workers (2003) 110 Cal.App.4th 107, 119.)  However, when the issue is of “‘>widespread public interest,’” it is not
subject to this “‘ongoing controversy’ rule.” 
(Integrated Healthcare Holdings,
Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 524 (Integrated Healthcare).) 

Courts have found such topics of
“widespread public interest” to include: 
the well-being of young children in an afterschool sports program (>Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 465-466 (Hecimovich); treatment for depression (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 716 (>Rivera)); the location of registered sex
offenders (Cross v. Cooper (2011) 197
Cal.App.4th 357, 382); the financial survival of four hospitals within one
county (Integrated Healthcare, supra,
140 Cal.App.4th at p. 524); and a warning to consumers not to rely on doctors’
ostensible experience treating professional athletes that included what the
subject article described as a “‘cautionary tale’” of one doctor exaggerating
that experience to market his practice (Carver
v. Bonds (2005) 135 Cal.App.4th 328, 343-344).  Because the term “public interest” is
inherently amorphous, “[s]ome courts have noted commentary that ‘“‘no standards
are necessary because [courts and attorneys] will, or should, know a public
concern when they see it.’”’”  (>Cross v. Cooper, supra, 197 Cal.App.4th
at pp. 371-372.) 

Appellants argue that the alleged
defamatory statements are entitled to protection under section 425.16,
subdivision (e)(4), because respondent’s willingness and ability to effectively
serve as an emergency room physician necessarily affects the quality and
accessibility of health care to the public and such accessibility is a “topic
of widespread, public interest” (Rivero,
supra, 105 Cal.App.4th at p. 924). 
Appellants further note that these statements were made in the context
of a department-wide assessment regarding quality of care.  Appellants additionally point out that, for
many people in our community, emergency room care is their only access to health
care. 

            In
determining whether the communications about which the plaintiff complains were
in connection with an issue of public interest, the court looks for the
principal thrust or gravamen of the plaintiff’s cause of action, i.e., what the
cause of action is based on.  (>Hecimovich, supra, 203 Cal.App.4th at p.
465.)  The key is to examine “the >specific nature of the speech rather
than the generalities that might be abstracted from it.”  (Commonwealth
Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26,
34.)  However, the court must be careful
not to confuse a defendant’s alleged injury-producing conduct with the unlawful
motive the plaintiff is ascribing to that conduct.  In order to prevent such confusion, the court
should focus squarely on the defendant’s activity that gave rise to its
asserted liability, and whether that activity constitutes protected speech,
rather than on any motive the plaintiff may be ascribing to the activity.  (Tuszynska
v. Cunningham (2011) 199 Cal.App.4th 257, 271.)  In making this determination, the court
considers the pleadings and the supporting and opposing affidavits stating the
facts upon which the liability or defense is based.  (§ 425.16, subd. (b)(2); >Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1417-1418.) 

            Appellants
are correct that, in general, health care and hospital quality are topics of
public interest.  (Cf. >Rivera, supra, 187 Cal.App.4th at pp.
716-717; Muccianti v. Willow Creek Care
Center (2003) 108 Cal.App.4th 13, 22.) 
Nevertheless, we must examine the specific
nature of the challenged statements and the degree of closeness between
these statements and the asserted public interest of health care. 

            Based on
the declarations submitted by appellants, it is apparent that the complaints
about respondent concerned the financial impact on Clovis Community due to
respondent’s perceived inefficiency and respondent’s failure to conduct herself
as a collegial, team player.  Castro
focused on the physician productivity needed to reduce or eliminate the subsidy
paid to CEMA and Mathews outlined how respondent undermined emergency room
management and eroded employee morale. 
Neither complained about respondent’s ability but, rather, stated that
the emergency room physicians were all competent and qualified.  Thus, the challenged statements are the
product of a private workplace dispute. 
Appellants objected to the manner in which respondent carried out her
job responsibilities, i.e., inefficient and difficult to work with, not her
ability to perform those responsibilities. 
This conclusion is based solely on appellants’ conduct as set forth in
appellants’ declarations, not on any motive ascribed to appellants by
respondent.  Further, unlike the
cross-complainant in Comstock v. Aber (2012)
212 Cal.App.4th 931, respondent is not arguing that her case is not a SLAPP
because the appellants did not in fact do what is alleged in the
complaint.  Rather, respondent is relying
on both her complaint and the declarations filed in connection with the anti-SLAPP
motion to support her position that the alleged defamatory statements do not
concern an issue of widespread public interest.

            Appellants
argue that emergency room efficiency and physician interactions with hospital
staff impact the quality of patient care and therefore are issues of widespread
public interest.  Looking at the specific
nature of this dispute, it concerns a physician’s personality and
profitability.  Although there may be a
relationship between these concerns and the general topic of quality health
care, the link is too attenuated to trigger anti-SLAPP protection.  The fact that a “broad and amorphous public
interest” can be connected to the nature of the challenged statements is not
sufficient.  (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132.)  To convert these private internal grievances
into an issue of widespread public interest merely because the complaints about
respondent can be related to a broader health care issue would improperly
provide for anti-SLAPP coverage in every employment-type case involving a physician
or health care worker.  This is not the
purpose underlying the anti-SLAPP statute.

            In sum,
appellants failed to satisfy their burden of demonstrating that the challenged
statements were entitled to protection under section 425.16, subdivision
(e)(4).  Accordingly, we do not reach the
issue of whether respondent showed a probability of prevailing on the merits of
her complaint.

>3.         >Attorney fees.

Section 425.16, subdivision (c)(1),
provides that the court shall award attorney fees and costs to a plaintiff who
prevails on an anti-SLAPP motion if the court finds that the motion “is
frivolous or is solely intended to cause unnecessary delay.”  Frivolousness requires a finding that the
motion is totally and completely without merit. 
In other words, any reasonable attorney would agree such motion is
totally devoid of merit.  (>Carpenter v. Jack in the Box Corp. (2007)
151 Cal.App.4th 454, 469.)  Here,
however, the trial court has not yet made any findings on respondent’s motion
for attorney fees.  In the interests of
judicial economy, the court stayed respondent’s motion pending resolution of
this appeal.

Respondent has requested this court
to award her attorney fees on appeal.  A
party’s right to attorney fees extends to attorney fees on appeal as well.  (Morrow
v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424,
1446.)  If the appellate court determines
that the appeal raises no new permissible arguments that change the result, and
concludes that the appeal is frivolous and was intended to cause further delay
of the litigation, attorney fees on appeal may be awarded.  (City
of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1309.) 

Although respondent is prevailing
on this appeal, we do not find that the appeal is frivolous.  Whether the challenged statements were
entitled to protection is not an issue that is so clear that any reasonable
attorney would agree that the appeal was totally devoid of merit.

DISPOSITION

            The order
is affirmed.  Costs on appeal are awarded
to respondent.

 

                                                                                                            _____________________

LEVY, J.

WE CONCUR:

 

 

_____________________

WISEMAN, Acting P.J.

 

 

_____________________

DETJEN, J.