Filed 9/18/26 Najibi v. Providence Valley Serv. Area Community Ministry Bd. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SASAN NAJIBI, B341973
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 23STCP01247)
v.
PROVIDENCE VALLEY SERVICE
AREA COMMUNITY MINISTRY
BOARD et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles
County. Curtis A. Kin, Judge. Affirmed.
Athene Law, Long Xuan Do and Avi W. Rutschman for Plaintiff
and Appellant.
Arentfox Schiff, Debra J. Albin-Riley, Nora K. Stilestein and
Tyler J. Franklin for Defendants and Respondents.
________________________________
Dr. Sasan Najibi filed a traditional writ of mandate action (Code
Civ. Proc., § 1085) following suspension of his medical staff privileges
and while a peer review proceeding for potential termination of
privileges was pending. The trial court sustained a demurrer filed by
defendants. In an earlier appeal, we affirmed the order and resulting
dismissal. (Najibi v. Providence Valley Service Area Community
Ministry Board et al. (May 23, 2025, B338255) [nonpub. opn.].)
Prior to completion of the earlier appeal, the trial court entered
an order awarding attorney fees to defendants. Najibi now appeals
from that order. We affirm.
BACKGROUND
Allegations
The relevant factual allegations in this matter are drawn from
the first amended petition for writ of mandate (the Petition), as
summarized in our prior opinion.
Najibi, a board-certified vascular surgeon licensed in California
since 1998, has been part of the medical staff at Providence Saint
Joseph Medical Center (Hospital) since 2002. He served for over five
years on the medical staff’s Medical Executive Committee (MEC) and
was twice elected chief of staff. The MEC generally has authority to
review physician conduct and clinical care, including the power to
suspend staff privileges and initiate peer review.
Providence Valley Service Area Community Ministry Board
(Board), the Hospital’s governing body, is made up of community
members and physicians and is responsible for oversight of medical
staff matters. The Petition named as defendants the Board, the
Hospital, and the nonprofit corporation that owns the Hospital.
The Petition alleged that, beginning in late 2021, the Hospital’s
administrative leadership initiated an investigation into the workplace
environment, focusing on Najibi and another physician, the then chief
of staff. The Board formed an ad hoc committee to review the
investigation’s findings and conduct additional factfinding. The MEC
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was not notified that the investigation would focus on Najibi, nor was it
requested to assist. Najibi himself was not informed that he was under
investigation for improper conduct.
On June 1, 2022, the Board’s committee presented its findings to
the MEC, stating that Najibi and the chief of staff were responsible for
an “overall toxic work environment and culture” that “created a
workplace filled with tension and hostility that directly impacts patient
care,” and that the two “presented an imminent danger to patient and
caregiver safety.” According to the Petition, the Board “demanded”
that the MEC immediately impose a summary suspension of Najibi’s
staff privileges. The Petition alleged that the Board’s demand and
presentation were deficient, lacking evidence of improper medical care
and relying on vague statements from unidentified witnesses. The
Petition additionally asserted that MEC members were given
approximately 30 minutes to review the workplace investigation report
and then directed to immediately suspend Najibi’s privileges, without
consideration of less severe remedies.
According to the Petition, the MEC, after deliberation, refused to
impose the requested summary suspension, allegedly citing insufficient
evidence of imminent danger and lack of direct evidence supporting the
investigation. The MEC communicated its preference for further
investigation to the Board, but the Board unilaterally imposed
summary suspension of Najibi’s privileges. The MEC declined to ratify
the suspension.
Najibi filed a prior traditional mandate action in superior court
challenging the summary suspension. After the superior court denied
Najibi’s request for a preliminary injunction, he filed a dismissal
without prejudice of that earlier action.
Subsequently, in September 2022, defendants notified Najibi of
the commencement of a formal peer review proceeding recommending
confirmation of the suspension as well as permanent termination of
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privileges and medical staff membership. This peer review proceeding
remains ongoing.
Najibi commenced this action in April 2023. The Petition
detailed alleged flaws in the peer review process, including redactions
in document production, use of arbitrators instead of medical staff
members for the hearing panel, and appointment of physicians from
outside the Hospital to serve on the panel. Najibi contended that these
and related actions were improper in that they violated the Hospital’s
medical staff bylaws and/or statutory law governing peer review,
particularly Business and Professions Code section 809.05 (section
809.05).
The Petition pleaded two causes of action for writ of mandate
under Code of Civil Procedure section 1085, one related to the summary
suspension of staff privileges, and the other related to the composition
of the peer review panel and other matters in the continuing peer
review proceeding.
Demurrer ruling and prior appeal
Defendants filed a demurrer to the Petition, relying on two
separate grounds: (1) that Najibi’s claims could not be brought under a
writ of traditional mandate because Najibi failed to allege violation of a
ministerial duty or an actionable abuse of discretion, and (2) that
Najibi failed to exhaust his administrative remedies before seeking
judicial relief. The trial court sustained the demurrer based on the first
ground, with leave to amend.
Rather than amending the Petition, Najibi allowed the deadline
for amending to expire and then filed a voluntary request for dismissal
of the entire action, with prejudice. Dismissal was entered by the clerk.
Najibi appealed.
In affirming the trial court order sustaining the demurrer and
the dismissal, we concluded that Najibi failed to exhaust his
administrative remedies, an omission that was fatal to his traditional
mandate action. We observed that Najibi brought the action, which
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challenged the peer review process, while the peer review proceeding
was pending. Najibi thus had an administrative remedy available, and
there was no dispute that it had not been exhausted. Moreover, the
futility exception to the exhaustion of remedies doctrine did not apply.
Subject fees award
Meanwhile, while the prior appeal was pending, defendants
moved for attorney fees under Business and Professions Code section
809.9 (section 809.9), which allows, in certain circumstances, for
recovery of costs and attorney fees by a substantially prevailing party
in an action challenging the suspension of medical privileges.
Defendants requested a total of $443,520.
The trial court granted defendants’ fees motion, though it
awarded fees in the amount of $288,888, finding that there was
excessive billing. The trial court concluded that Najibi’s bringing of
and litigation of the traditional mandate action was frivolous,
unreasonable, without foundation, and in bad faith, thereby justifying
an award of attorney fees to defendants, the prevailing parties. The
reasoning in the trial court’s order largely followed its reasons for
sustaining the demurrer. The court found that the allegations Najibi
made in support of his first cause of action—involving whether the
Board “ ‘consulted’ ” with the MEC, whether the Board “ ‘failed to give
great weight’ ” to the MEC’s decision not to summarily suspend
petitioner, whether the Board’s decision to suspend petitioner was
“ ‘arbitrary and capricious,’ ” and whether the Board suspended
petitioner without a showing that failing to suspend petitioner “ ‘may
result in an imminent danger to the health of any individual’ ”—
involved discretionary, not mandatory duties, and therefore could not
support traditional mandate relief. As to the second cause of action,
the trial court found that the appointment process for the peer review
panel was also discretionary. Moreover, any alleged violation of the
medical staff bylaws could potentially give rise only to a later
administrative mandate claim, not a premature traditional mandate
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action. For these and related reasons, the court found that Najibi’s
“conduct in bringing and litigating the instant suit was frivolous,
unreasonable, without foundation and in bad faith.”
Najibi timely appealed from the trial court’s order. A
postjudgment order awarding fees is appealable. (Code Civ. Proc.,
§ 904.1, subd. (a)(2); Golightly v. Molina (2014) 229 Cal.App.4th 1501,
1520.)
DISCUSSION
I. Statutory basis for fees award
Section 809.9 provides: “In any suit brought to challenge an
action taken or a restriction imposed which is required to be reported
pursuant to [Business and Professions Code] Section 805, the court
shall, at the conclusion of the action, award to a substantially
prevailing party the cost of the suit, including a reasonable attorney’s
fee, if the other party’s conduct in bringing, defending, or litigating the
suit was frivolous, unreasonable, without foundation, or in bad faith.”
As relevant here, a report is required under Business and Professions
Code section 805 (section 805) when a physician’s staff privileges or
membership are restricted “for a cumulative total of 30 days or more for
any 12-month period, for a medical disciplinary cause or reason,” or “if
the summary suspension remains in effect for a period in excess of 14
days.” (§ 805, subds. (b)(3), (e).)
The allegations of Najibi’s Petition confirm that his staff
privileges were suspended for a continuous period of far greater than
14 days, and that the cause of the suspension was for disciplinary
reasons. Najibi makes a perfunctory argument that sections 809.9 and
805 nevertheless do not apply to this action because his traditional
mandate claim did not challenge the summary suspension. The
Petition demonstrates otherwise. In the prayer section of the Petition,
Najibi sought a writ “[r]equiring Respondents to set aside the summary
suspension of Petitioner and cease taking any action against Petitioner
to enforce such . . . summary suspension.” Because Najibi’s action
6
challenged a reportable restriction under section 805, fees were
potentially awardable under section 809.9.
Najibi also asserts, in conclusory fashion, that defendants were
not substantially prevailing parties. This argument likewise fails. As
defendants obtained a complete dismissal of Najibi’s Petition at the
pleading stage, it would be unreasonable to consider them anything but
prevailing parties. Section 809.9 provides: “a defendant shall not be
considered to have substantially prevailed when the plaintiff obtains an
award for damages or permanent injunctive or declaratory relief. For
the purpose of this section, a plaintiff shall not be considered to have
substantially prevailed when the plaintiff does not obtain an award of
damages or permanent injunctive or declaratory relief.” Najibi did not
obtain any sort of damages or other relief from the court through his
action. Defendants thus substantially prevailed. (See also Code Civ.
Proc., § 1032, subd. (a)(4) [“ ‘Prevailing party’ includes . . . a defendant
in whose favor a dismissal is entered”].)
II. Najibi’s filing and litigation of this action was frivolous,
unreasonable, and without foundation
A. Applicable law
Najibi argues that the trial court erred in awarding attorney fees
to defendants because his “conduct in bringing, defending, or litigating
the suit” was not, as required by the statute, “frivolous, unreasonable,
without foundation, or in bad faith.” (§ 809.9.)
“Whether an action is ‘frivolous,’ ‘unreasonable,’ or ‘without
foundation’ under a statute authorizing an award of costs or attorney
fees presents a question of law we review de novo where, as here, the
pertinent facts are not in dispute. [Citations.] In analyzing this issue,
courts employ the objective standard applicable to sanctions statutes,
which looks to what a hypothetical reasonable attorney would do under
the circumstances.” (Asiryan v. Medical Staff of Glendale Adventist
Medical Center (2024) 100 Cal.App.5th 947, 974 (Asiryan).)
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The terms “frivolous,” “unreasonable,” and “without foundation”
under section 809.9 have common characteristics. (Asiryan, supra, 100
Cal.App.5th at p. 975.) “[A] matter is frivolous if any reasonable
attorney would agree it is completely without merit in the sense that it
lacks legal grounds, lacks an evidentiary showing, or involves an
unreasonable delay.” (Smith v. Selma Community Hospital (2010) 188
Cal.App.4th 1, 33 (Smith).) “A claim is factually frivolous if it is ‘not
well grounded in fact’ and it is legally frivolous if it is ‘not warranted by
existing law or a good faith argument for the extension, modification, or
reversal of existing law.’ ” (Peake v. Underwood (2014) 227 Cal.App.4th
428, 440.) Similarly, a claim is considered objectively unreasonable if
“ ‘any reasonable attorney would agree that [it] is totally and
completely without merit.’ ” (Ibid.) And a suit is “ ‘without foundation’
if there is no direct or circumstantial evidence supporting the plaintiff’s
factual assertions, or if there is no statute, regulation, case law, or
other legal authority supporting the plaintiff’s legal contentions.”
(Asiryan, at p. 975.)
B. Najibi’s action was clearly barred due to his failure
to exhaust administrative remedies
The trial court found that both of Najibi’s causes of action failed
to allege facts that could support traditional mandamus, and therefore
Najibi’s conduct in bringing the action was frivolous, unreasonable, and
without foundation. We affirm the trial court’s order awarding fees but
conclude that the action met section 809.9’s standard for a more basic
reason: Najibi brought this action without exhausting his
administrative remedies, an act which by itself was frivolous,
unreasonable, and without foundation. We thus have no cause to
consider the trial court’s other stated reasons.
As we explained in our prior opinion, the Petition expressly
described its claims as (1) “challenging the procedural correctness” of
the summary suspension of Najibi’s privileges, and (2) “compelling
Respondents to strictly abide by the procedural rules” under California
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law and the Hospital’s medical staff bylaws in the ongoing peer review
proceeding. The Petition specifically stated: “This writ petition and
action is directed at a formal peer review proceeding.”
We conclude that Najibi’s effort at challenging the peer review
proceeding prior to its completion was objectively frivolous,
unreasonable, and without foundation. It is well established that the
doctrine of exhaustion of remedies applies to hospital peer review
proceedings. (Kaiser Foundation Hospitals v. Superior Court (2005)
128 Cal.App.4th 85, 100; Eight Unnamed Physicians v. Medical
Executive Com. (2007) 150 Cal.App.4th 503, 511.) A physician
“challenging the propriety of a hospital’s denial or withdrawal of staff
privileges must pursue the internal remedies afforded by that hospital
to a final decision on the merits before resorting to the courts for relief.”
(Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607,
619 (Unnamed Physician).) As our Supreme Court has explained,
“before a doctor may initiate litigation challenging the propriety of a
hospital’s denial or withdrawal of privileges, he must exhaust the
available internal remedies afforded by the hospital.” (Westlake
Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 469.) There
is no question that Najibi failed to exhaust his internal remedies prior
to bringing this action even though a review of the relevant case law
would have demonstrated that exhaustion was necessary.
Although Najibi complained of alleged procedural errors in the
summary suspension and the peer review process, these errors, to the
extent cognizable, could be addressed, if necessary, in an
administrative mandate action following the completion of the
administrative proceeding. (See El-Attar v. Hollywood Presbyterian
Medical Center (2013) 56 Cal.4th 976, 987 (El-Attar).) Where “a
physician challenges the procedures by which a hospital terminated his
or her staff privileges, the judicial inquiry ‘extend[s] to the questions
whether the respondent has proceeded without, or in excess of,
jurisdiction; whether there was a fair trial; and whether there was any
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prejudicial abuse of discretion. Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order
or decision is not supported by the findings, or the findings are not
supported by the evidence.’ ” (Id. at pp. 987–988, quoting Code Civ.
Proc., § 1094.5, subd. (b) [the administrative mandate statute].)
Due to the fact that Najibi had an immediate remedy available to
address his complaints—the peer review proceeding itself—he had no
grounds to bring this traditional mandate action. “When seeking relief
under traditional mandamus, the exhaustion requirement speaks to
whether there exists an adequate legal remedy. If an administrative
remedy is available and has not yet been exhausted, an adequate
remedy exists and the petitioner is not entitled to extraordinary relief.
‘A remedy will not be deemed inadequate merely because additional
time and effort would be consumed by its being pursued through the
ordinary course of the law. [Citation.]’ [Citation.] Inconvenience does
not equal irreparable injury.” (Unnamed Physician, supra, 93
Cal.App.4th at p. 620.)
Najibi’s vague allegations of possible procedural improprieties
associated with the suspension of his staff privileges—that the Board
allegedly did not give “great weight” to the findings of the MEC or
adequately consult with it, and assertedly acted in an arbitrary or
capricious manner—did not give him license to sidestep the
administrative process. (See Bollengier v. Doctors Medical
Center (1990) 222 Cal.App.3d 1115, 1124–1125 [in traditional mandate,
a “clear” abuse of discretion is required, and the petitioner’s right to the
action must be “clearly established”]; see also Eight Unnamed
Physicians, supra, 150 Cal.App.4th at p. 514 [“The mere will-o’-the-
wisp potential for prejudice at this stage is insufficient to overcome the
requirement of exhaustion of remedies”].) Nor did alleged failures to
comply with the medical staff bylaws in choosing members of the peer
review panel. (See Bollengier, at pp. 1127–1128 [claim that bylaws
were being violated, as opposed to a claim challenging the bylaws
10
themselves, could not support mandate relief prior to completion of the
administrative proceeding]; see also Unnamed Physician, supra, 93
Cal.App.4th at p. 621 [distinguishing Bollengier when bylaws were
alleged to be deficient].) Again, to the extent cognizable, these issues
could be addressed in a later administrative mandate action. (See El-
Attar, supra, 56 Cal.4th at pp. 987–988.) Moreover, Najibi’s allegations
did not support application of the “very narrow” futility exception to the
exhaustion requirement, since neither the Board nor the panel had
declared what its ruling would be. (See Bollengier, at p. 126; Kaiser
Foundation Hospitals v. Superior Court, supra, 128 Cal.App.4th at
p. 101.)
As Najibi lacked legal grounds for this traditional mandate
action, it was frivolous. (Smith, supra, 188 Cal.App.4th at p. 33.) The
claim was not allowed under existing law and no “ ‘good faith argument
for the extension, modification, or reversal of existing law’ ” was
apparent. (See Peake, supra, 227 Cal.App.4th at p. 440.) For similar
reasons, case law also supports the conclusion that the action was
objectively unreasonable (ibid.) and that it was brought and litigated
without foundation (Asiryan, supra, 100 Cal.App.5th at p. 975). Simply
put, because the inescapable conclusion is that Najibi’s traditional
mandate action was barred by his failure to exhaust administrative
remedies, a hypothetical reasonable attorney would not have filed it.
(See id., at p. 974.)1
1 Najibi additionally argues that the trial court’s sustaining of
the demurrer with leave to amend showed that it was not frivolous.
Najibi never amended his complaint, though, and there is no indication
that it could have been amended in a manner that would avoid the bar
of failure to exhaust remedies. (See Soliz v. Williams (1999) 74
Cal.App.4th 577, 585 [“ ‘When a plaintiff elects not to amend the
complaint, it is presumed that the complaint states as strong a case as
is possible’ ”].) Najibi also asserts that the California Medical
Association’s filing of an amicus brief in the earlier appeal in support of
Najibi’s claims demonstrates that a reasonable attorney would find the
11
C. The court had authority to award fees
In this appeal, Najibi makes the additional argument that—given
our determination that the action was jurisdictionally barred due to a
failure to exhaust administrative remedies—the court could not
properly entertain a fees motion because it was divested of
jurisdictional authority to do so. Najibi asserts that the court lacked
jurisdiction to determine either that there was a “ ‘substantially
prevailing party’ ” or that “ ‘the other party’s conduct in bringing,
defending, or litigating the suit was frivolous, unreasonable, without
foundation, or in bad faith’ ” under section 809.9.
In support of this argument, Najibi cites to Hon v. Marshall
(1997) 53 Cal.App.4th 470 (Hon), in which this division reversed an
attorney fees award where a grant of summary judgment was based on
lack of jurisdiction due to the plaintiff failing to exhaust administrative
remedies. Although Hon involved superficially similar circumstances—
a jurisdictional defect of failure to exhaust—its holding is not
applicable to the attorney fees award in this matter. Hon examined the
“narrow question” of “whether a defendant who is granted summary
judgment because of such a jurisdictional defect qualifies as a
‘prevailing party’ entitled to an attorney fee award under [Government
Code] section 12965.” (Id. at p. 475.) The fact that Hon arose under
the Fair Employment and Housing Act (FEHA) was determinative,
since, as the opinion noted, “California courts often rely on federal
decisions interpreting [similar federal] statutes for assistance in
construing analogous provisions of the FEHA.” (Id. at p. 475.) The
opinion followed federal decisions interpreting those federal statutes in
finding fees not properly awardable. (Id. at pp. 475–478.) The court
explained: “We are reluctant . . . to ignore a body of federal law which
claims to be supported and plausible. As noted in our prior opinion,
however, the amicus brief focused on issues other than exhaustion of
remedies.
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has litigated the question before this court under analogous attorney
fee formulations and concluded that an award should not be made to
defendants who ‘prevail’ as a consequence of a jurisdictional defect.”
(Id. at p. 477.) Moreover, the court reasoned that permitting “an award
of attorney fees in situations of the type presently before us would
provide an incentive for plaintiffs to file suit in federal courts under the
federal civil rights statute with its firmly entrenched policy disfavoring
attorney fee awards to prevailing defendants.” (Ibid.)
In contrast, although section 809.9 allows for an attorney fees
award only if certain conditions are met, there is no firmly entrenched
policy disfavoring fees awards to prevailing defendants. (See Asiryan,
supra, 100 Cal.App.5th at p. 956 [affirming order awarding fees to
defendant for claims resolved on summary judgment].) And there is no
indication, either in the language of Hon itself or in cases following it,
that its rationale applies in California courts outside of the limited
context of a FEHA action. Indeed, attorney fees awards have been
upheld in a variety of California actions decided on the basis of a
jurisdictional defect. (See, e.g., Barry v. State Bar of California (2017)
2 Cal.5th 318, 321 [holding that court lacking subject matter
jurisdiction could still properly award fees to the defendant under Code
of Civil Procedure section 425.16]; Martin v. Bridgeport Community
Assn., Inc. (2009) 173 Cal.App.4th 1024, 1039 [awarding fees under
Civil Code section 1354 to defendant when plaintiffs lacked standing];
accord, Farber v. Bay View Terrace Homeowners Assn. (2006) 141
Cal.App.4th 1007, 1014–1016.)
Section 809.9, by its terms, applies to “any suit brought to
challenge an action taken or a restriction imposed which is required to
be reported pursuant to Section 805.” Neither the language of the
statute itself nor any applicable authority prohibits an attorney fees
award when a defendant substantially prevails due to a jurisdictional
defect.
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In conclusion, because Najibi brought and litigated this action
without exhausting his administrative remedies, conduct that was
frivolous, unreasonable, and without foundation, the award of attorney
fees to defendants was proper.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on
appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
RICHARDSON, J.
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