Eva v. Registry of Physician Specialists
Filed 6/29/12 Eva v.
Registry of Physician Specialists CA1/5
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
PEDRO EVA,
Plaintiff
and Appellant,
v.
REGISTRY
OF PHYSICIAN
SPECIALISTS, INC., et al.,
Defendants and Respondents.
A132608
(
Super.
Plaintiff and appellant Pedro Eva
(Eva) appeals from the trial court’s order dismissing two causes of action
pursuant to a special motion to strike
filed by defendants and respondents (respondents)
erred in concluding that he failed to show a probability of prevailing on his
third cause of action for “Intentional
Tort.†We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves a lawsuit filed
by Eva against RPS, several RPS employees, and other defendants.
In mid-2006, Eva, a licensed
psychiatrist, was hired as a subcontractor by RPS to perform psychiatric
services at Salinas Valley State Prison (SVSP) pursuant to a contract between
RPS and California’s Department of Corrections
and Rehabilitation (CDCR). Under the
contract, RPS psychiatrists may only charge for time actually spent in the
prison. However, Eva alleges in his
complaint and avers in a declaration that he was not informed of that
requirement; instead, he understood his job consisted of four 10-hour days, and
the acting chief psychiatrist at SVSP, David Hoban, told him he should bill for
10 hours even if he was not inside the prison the whole time.
According to Eva’s complaint, at
some point in 2007, California’s Office of the Inspector General (OIG) began investigating the
billing practices of contract psychiatrists working at SVSP. Appellant alleges in his complaint that Hoban
and Charles Lee, the chief medical officer at SVSP, either informed him that he
could bill for 10-hour days even if he left early, or indirectly approved the
practice. As part of the OIG
investigation, OIG investigators interviewed several RPS employees, including
Benson, Reinhart, and Vergara. The
complaint alleges that those RPS employees “falsely informed the investigators
that [Eva] was given an orientation and several documents that informed him
specifically that he was not to bill for time that he was not at the prison.â€
In November 2008, an indictment was
filed against Eva in Monterey County Superior Court, charging him with grand
theft, presentation of fraudulent claims,
and conspiracy to commit grand theft.
Lee, Hoban, and others were also indicted on charges related to the
submission of allegedly false time sheets.
In November 2010, Eva filed the
instant action in
County Superior Court against RPS, Benson, Reinhart, Vergara, Lee, and
Hoban. The first two causes of action
for negligence and misrepresentation were based on the defendants’ failure to
inform Eva that he was required to bill only for the time he was physically at
SVSP. The third cause of action was
brought against respondents. Entitled
“Intentional Tort,†it alleged respondents were liable for damages due to
intentional misrepresentations made to OIG investigators. In particular, the complaint alleged
respondents falsely told the investigators that Eva was informed that he was
required to only bill for the time he was at SVSP. The fourth cause of action for unfair
business practices, against RPS alone, was based on both the failure to inform
Eva about the billing requirement and the misrepresentations to OIG
investigators.
In January 2011, respondents filed a
section 425.16 special motion to strike the complaint. The motion was supported by, among other
things, a declaration from Reinhart with four letters attached as exhibits; she
averred the letters were communications to contract physicians informing them
that they were only allowed to bill for the time they were on the prison
grounds. She averred that she included
such letters in payment envelopes to psychiatrist subcontractors “about twice a
year.â€
Eva moved for an order allowing
discovery, pursuant to section 425.16, subdivision (g).
court entered an order allowing Eva to conduct certain discovery and continuing
the hearing on the anti-SLAPP motion to April 2011. Among other things, the court ordered RPS to
produce electronically stored versions of the letters attached to the Reinhart
declaration. In response, counsel for
RPS mailed to Eva’s counsel a compact disc purportedly containing electronic
versions of four letters, but only two were versions of letters attached to the
Reinhart declaration.
Following completion of the
authorized discovery, the trial court received supplemental briefing. The court denied the section 425.16 motion as
to the first two causes of action, but granted the motion as to the third and
fourth causes of action, concluding Eva had not produced enough evidence to
show a probability of prevailing on those claims. This appeal followed.
Discussion
I.
“In 1992, the Legislature enacted
section 425.16 in an effort to curtail lawsuits brought primarily ‘to chill the
valid exercise of . . . freedom of speech and petition for redress of
grievances’ and ‘to encourage continued participation in matters of public
significance.’ (§ 425.16, subd.
(a).) The section authorizes a special
motion to strike ‘[a] cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or free speech
under the United States [Constitution] or [the] California Constitution in
connection with a public issue . . . .’ (§ 425.16, subd. (b)(1).) The goal is to eliminate meritless or
retaliatory litigation at an early stage of the proceedings. [Citations.]
The statute directs the trial court to grant the 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).)†(Gallimore
v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388,
1395-1396 (Gallimore), fn. omitted.)
“The statutory language establishes
a two-part test. First, it must be
determined whether the plaintiff’s cause of action arose from acts by the
defendant in furtherance of the defendant’s right of petition or free speech in
connection with a public issue.
[Citation.] ‘A defendant meets
this burden by demonstrating that the act
underlying the plaintiff’s cause fits one of the categories spelled out in
section 425.16, subdivision (e).’
[Citation.] Assuming this
threshold condition is satisfied, it must then be determined that the plaintiff
has established a reasonable probability of success on his or her claims at
trial.†(Gallimore, supra, 102
Cal.App.4th at p. 1396.) “Whether
section 425.16 applies and whether the plaintiff has shown a probability of
prevailing are both legal questions which we review independently on appeal. [Citations.]â€
(Ibid.) The statute provides that section 425.16
“shall be construed broadly.â€
(§ 425.16, subd. (a).)
II. “Arising
Fromâ€
“A defendant who files a special
motion to strike bears the initial burden of demonstrating that the challenged
cause of action arises from protected activity.
[Citations.]†(
Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669 (
of Cotati v. Cashman (2002) 29 Cal.4th 69, the California Supreme Court
explained: “[T]he statutory phrase
‘cause of action . . . arising from’ means simply that the
defendant’s act underlying the plaintiff’s cause of action must
of the right of petition or free speech.
[Citation.] . . . ‘A defendant meets this burden by
demonstrating that the act underlying the plaintiff’s cause fits one of the
categories spelled out in section 425.16, subdivision (e)
. . . .’ [Citations.]†(Id.
at p. 78.) “In deciding whether the
‘arising from’ requirement is met, a court considers ‘the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16,
subd. (b).)†(Id. at p. 79.)
In the present case, Eva’s third
cause of action for Intentional Tort is based on the allegation that
respondents intentionally gave false information to OIG investigators. Eva concedes that this cause of action falls
within the scope of section 425.16. In
particular, he concedes that the alleged communications to the OIG investigators
were statements made in the context of an “official proceeding authorized by
law,†within the meaning of section 425.16, subdivision (e). (See also, e.g., Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th
843, 850.) Accordingly, the issue on
appeal is whether Eva established a probability that he will prevail on the
merits of the cause of action.
III. Probability of Prevailing
In order to establish a probability
of prevailing for purposes of section 425.16, subdivision (b)(1), “ ‘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.†’ [Citation.]â€
(Navellier v. Sletten (2002)
29 Cal.4th 82, 88-89 (Navellier).)
Eva’s third cause of action is for
Intentional Tort. On appeal, he asserts
the complaint states a cause of action under Civil Code sections 1708 and 1714,
subdivision (a).
name="_ftnref6" title="">[6] He contends he “established
that [respondents] intentionally misrepresented facts to the OIG investigators
for the purpose of shifting blame for improper billing of CDCR from themselves
to [Eva], resulting in [Eva’s] indictment and attendant damages.†Eva concedes the allegations in the third
cause of action do “not give rise to a specific intentional tort such as
malicious prosecution,†but argues “the cited Civil Code sections support a
cause of action for an otherwise undefined ‘intentional tort’ where such
allegations clearly point to willful conduct that causes injury.â€
Because Eva fails to provide
citations to authority identifying the elements of his tort claim, and fails to
discuss the elements in light of such authority, he has failed to demonstrate a
probability of prevailing on his claim under section 425.16. It was not respondents’ burden to show that
Eva cannot demonstrate a probability of prevailing; rather, Eva was obligated
to “explain how [his] evidence substantiates the elements of [his] claim.†(Tuchscher
Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1239; see also Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [considering
each element of malicious prosecution claim in determining whether plaintiff
showed probability of prevailing]; StaffPro,
Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1398
[“StaffPro had to demonstrate a probability of prevailing with respect to each
of the elements of its malicious prosecution actionâ€].) In his appellate briefing, Eva discusses the
evidence he claims shows intentional misrepresentation and the litigation
privilege defense raised by respondents, but he fails to set forth the elements
of his intentional tort claim and explain how his evidence substantiates the
elements of the claim. Because Eva has
failed to present a reasoned argument that he has a probability of prevailing
on his third cause of action, the issue has been forfeited. (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
In any event, the trial court
properly concluded that the third cause of action is barred by the litigation
privilege, which respondents contend prohibits liability to Eva even if one or
more RPS employees lied to the OIG investigators. Section 47, subdivision (b) of the Civil Code
provides, in relevant part, that “[a] privileged publication or broadcast is
one made: [¶] . . . [¶] (b) In any (1) legislative proceeding,
(2) judicial proceeding, (3) in any other official proceeding authorized
by law, or (4) in the initiation or course of any other proceeding authorized
by law . . . .†Eva
concedes the statements the RPS employees made to the OIG investigators would
normally be subject to the litigation privilege. (See Hansen
v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th
1537, 1544 [“[T]he internal investigation itself was an official proceeding
authorized by law. [Citation.]â€]; see
also Hagberg v. California Federal Bank
(2004) 32 Cal.4th 350, 362.) However,
Eva contends the spoliation exception to the litigation privilege applies in
this case.
title="">[7] Civil Code, section 47, subdivision (b)(2)
provides in relevant part: “This
subdivision does not make privileged any communication made in furtherance of
an act of intentional destruction or alteration of
for the purpose of depriving a party to litigation of the use of that evidence
. . . .†(See also
459, 464 [“The plain language of the statute makes it clear the exception only
applies when the alleged alteration or destruction is intended to deprive a
party of the ‘use’ of that evidence.â€], disapproved on another ground in
512, 520.)
At issue are the letters attached as
exhibits A through D to the Reinhart declaration, which Reinhart avers were
sent to RPS doctors, informing them of the proper billing procedures. The letter attached as exhibit A bears the
date August 18, 2006. An electronic
version of the letter was produced by RPS and, according to an exhibit to Eva’s
counsel’s declaration, the document properties show the letter was created,
last modified, and last printed near the date printed in the letter. However, Eva argues he would not have
received the letter because he had just moved to California in August 2006 and
RPS did not yet have his address. The
letter attached as exhibit B to the Reinhart declaration does not bear a printed
date, but there is a handwritten notation “10/30/06†at the top of the
page. As Eva points out, the letter ends
with the statement “Happy Holidays.†RPS
did not produce an electronic version of that letter. The letter attached as exhibit C bears the
date June 21, 2007. RPS did not produce
an electronic version of that letter.
Finally, the letter attached as exhibit D to the Reinhart declaration
does not bear a printed date, but there is a handwritten notation “in paychecks
Oct. 2007[,] March 2008†at the top of the page. RPS produced an electronic version of the
letter; according to an exhibit to Eva’s counsel’s declaration, the document
properties show the letter was created, last modified, and last printed in
2003.
Eva argues, because RPS failed to
produce electronic versions of two of the letters attached to the Reinhart
declaration, the October 2006 and June 2007 letters, it can be inferred that
the electronic versions of those letters were intentionally destroyed. He asserts the electronic versions were
intentionally destroyed because one would be able to determine from the
electronic versions that the letters were not actually created and printed at
or near the dates shown on the letters.
Eva alleges the electronic versions were destroyed for the purpose of
depriving him of the use of the electronic versions to rebut RPS’s assertion it
sent the letters to Eva.
name="_ftnref8" title="">[8]
It is not clear whether Eva’s allegations, if proven, would be sufficient
to support application of the spoliation exception. Arguably, the
allegedly false statements to the OIG investigators were made in furtherance of
RPS’s attempt to avoid responsibility for Eva’s billing practices, rather than
in furtherance of the alleged destruction of electronic versions of certain
letters. In any event, even assuming the spoliation exception could apply
to such statements, Eva’s evidence is insufficient to constitute a
“ ‘ “prima facie showing of facts to sustain†’ †(
exception applies. Although Eva is
entitled to all reasonable inferences in his favor (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 52), “A
reasonable inference . . . ‘may not be based on suspicion alone, or
on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact
must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.’ [Citation.]â€
(People v. Morris (1988) 46
Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; see also
Evid. Code, § 600, subd. (b) [“An inference is a deduction of fact that
may logically and reasonably be drawn from another fact or group of facts found
or otherwise established in the action.â€]; Wilcox
v. Superior Court (1994) 27 Cal.App.4th 809, 828, disapproved on other
grounds in Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 68 & fn. 5 [applying
rule in anti-SLAPP context].)
In the present case, Eva’s
spoliation claim is based entirely on speculation—his assertion that if the
electronic versions do not exist it must be because they were destroyed in
contemplation of this litigation. He
asserts it is suspicious that “only†the October 2006 and June 2007 letters do
not exist in electronic form, but his logic is flawed: the evidence is that, of the four letters
attached to the Reinhart declaration, the electronic versions are missing for
those two, but there is no information in the record regarding other letters
that may have been sent at other times, and whether electronic versions were
retained. The trial court granted Eva’s
request for discovery to support his opposition to the section 425.16 motion,
but Eva did not request to depose Reinhart regarding her electronic document
retention practices. Accordingly, there
is no basis in the record to conclude that it is unusual that electronic
versions of the October 2006 and June 2007 letters are missing.
Furthermore, the evidence that RPS
sent the same letter in October 2007 and March 2008, and the evidence that the
letter was written in 2003, suggests that RPS was not in the practice of
creating new electronic versions of the letters each time it sent them to the
doctors. This would explain the “Happy
Holidays†reference in the October 2006 letter.
Although there may be other explanations for the evidence in the record,
the point is that there is no evidence from which a jury could draw a
reasonable, nonspeculative inference that RPS destroyed the electronic versions
of the October 2006 and June 2007 letters.
insufficient to constitute a “ ‘ “prima facie showing of facts to
sustain†’ †(Navellier,
finding that the spoliation exception to the litigation privilege applies, Eva failed
to show a probability of prevailing on his third cause of action.
Disposition
The trial court’s order dismissing
the third and fourth causes of action in the complaint is affirmed. Costs on appeal are awarded to respondents.
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
Specialists, Inc. (RPS), and RPS employees Samuel Benson, Ursula Reinhart, and
Hector Vergara.
against public participation.†(
(2002) 29 Cal.4th 53, 57, fn. 1.)
