Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG09480372
NEEDHAM, J.
Washington Hospital and other defendants appeal from an order denying their special motion to strike respondent’s complaint under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. (Code Civ. Proc., § 425.16.) They contend the court erred in ruling that the causes of action against them did not arise from activity protected by the statute, because the claims were based on or in connection with acts of a hospital peer review committee. We will reverse the order.
Defendants and appellants are Washington Hospital, Washington Township Health Care District, Medical Staff of Washington Hospital, Nancy Farber, Khalid Baig, M.D., Ranjana Sharma, M.D., Moses Taghioff, M.D., Steven Ross, M.D., Kranthi Achanta, M.D., and Albert Brooks, M.D. (collectively, Hospital or appellants).
I. FACTS AND PROCEDURAL HISTORY
We begin with the facts, based on the allegations of the complaint and the evidence submitted by the parties in connection with the special motion to strike.
A. Facts
Respondent, plaintiff Bhupinder Bhandari, M.D. (Bhandari), is a member of the medical staff at Washington Hospital. In April 2007, he was elected by his peers to the position of Chief of Medical Staff-Elect and was scheduled to assume the position of Chief of Staff for two years in June 2009.
1. Governing Documents
Bhandari’s position as Chief of Staff-Elect was governed by a contract that required, among other things, that the Chief of Staff-Elect be an active member, in good standing, of the medical staff.
Also applicable were provisions of the Hospital Medical Staff Bylaws (Bylaws). Section 9.1 of the Bylaws identifies the Chief of Staff-Elect as an officer of the medical staff. Section 9.1-2 provides that “Officers must be physician members of the Active Medical Staff at the time of their nominations and election, and must remain members in good standing during their term of office. Failure to maintain such status shall create a vacancy in the office involved.” (Italics added.)
Section 9.1-7 of the Bylaws is entitled, “Recall, Resignation, and Removal of Officers.” It reads: “Except as otherwise provided, recall of a Medical Staff officer may be initiated by the MEC [Medical Executive Committee] or by a petition signed by at least one-third (1/3) of the members of the Medical Staff eligible to vote. Recall shall be considered at a special meeting called for that purpose. Removal shall require a two-thirds (2/3) vote by secret ballot of the members of the staff eligible to vote. Valid reasons for removal of a Medical Staff Officer include but are not limited to: [¶] A. failure to perform the duties of the position held in a timely and appropriate manner; [¶] B. failure to continuously satisfy the qualifications for the position; [¶] C. Failure to meet standards of performance and professional ethics required for all other Medical Staff Members.”
At oral argument, appellants indicated that the MEC is the Medical Executive Committee, responsible for peer review.
2. Bhandari’s Appearance in “Life for Sale”
In August 2008, while holding the position of Chief of Staff – Elect, Bhandari appeared as an interviewee in a documentary film entitled, “Life for Sale.” In the film, Bhandari advocated for patient health care and discussed payers’ decisions to limit or deny payment for services. The film criticized the decisions and practices of some hospitals that allegedly impair physicians’ abilities to provide medically appropriate health care.
3. MEC Investigation and Statements About Bhandari
On August 27, 2008, a hospital administrator notified Bhandari that he was temporarily removed from the emergency room internal medicine call schedule while his participation in the film was being investigated.
By letter dated August 29, 2008, the hospital’s Medical Staff Executive Committee (MEC) notified Bhandari of its investigation into his role in the film. The letter informed him that the “investigation is authorized and will be conducted in accordance with Article VI of the Medical Staff Bylaws (copy attached).” (The attachment does not appear in the record on appeal.) The MEC informed Bhandari that his role in the film “at a minimum, violates the [hospital’s] Code of Conduct, but may also violate other standards set out in the Medical Staff Bylaws, Rules and Regulations, or Policies and Procedures.” The MEC warned Bhandari that his “conduct may justify action up to and including suspension and/or termination of membership” on the medical staff. The letter further apprised Bhandari that he would have an opportunity to meet with the MEC before the close of its investigation and could submit written comments for consideration.
Around September 8, 2008, Bhandari met with appellants Albert Brooks, M.D., and Nancy Farber, the hospital Chief Executive Officer. Farber criticized Bhandari’s friendship with a colleague, Dr. Rao, who had participated in the film, and his failure to proctor Dr. Evelyn Li, who produced the film. Around this same time, appellants Brooks and Kranthi Achanta, M.D., allegedly made disparaging and untrue comments about Bhandari or his participation in the film.
It was further alleged, on information and belief, that Farber drafted, circulated, and pressured the nursing staff to sign a petition stating their unwillingness to work with Bhandari, Li, Rao and another doctor, because they participated in fraud and adversely affected patient care and should be removed from the medical staff.
At a Washington Hospital board meeting on September 10, 2008, appellant Steven Ross, M.D., claimed the physicians who had participated in the film, including Bhandari, did so because of their “stupidity.” He further asserted that “they tried to damage the hospital.” Ross added that Bhandari was not credible and would no longer be trusted.
Bhandari made the following statement at the board meeting: “My very brief comments about healthcare issues, all of which were positive, were taken out of context in this documentary. I truly have no role in production, editing, financing, or promoting this documentary. I disagree with the negative impression about the Washington Hospital that is conveyed in this documentary. I maintain that Washington Hospital is a center of excellence and offers high quality care to our tri-city residents.... I’ve taken several measures to refute my participation’s use in the movie.. … I am very proud to be at Washington Hospital. I have great regard for all the staff, the nurses, and the employees. My brief comments in the documentary are neutral, and there is no single word that is expressed against the hospital, physicians, nurses, or the administration. I still have great remorse that my positive comments were taken out of context in a movie that attempts to reflect negatively on our excellent institution.”
In September 2008, the Hospital’s general medical staff held a meeting at which a number of physicians allegedly stated that, due to Bhandari’s participation in the film, Bhandari had damaged the Hospital’s reputation, violated the Hospital’s and medical staff’s code of ethics, and should be terminated from his position. At the meeting, Chief of Staff Khalid Baig, M.D., attempted to remove Bhandari from his position by a show-of-hands vote and then circulated a letter that purportedly portrayed Bhandari in a false and defamatory light.
Baig announced the results of the petition to recall Bhandari on September 19, 2008, noting that 97 physicians had voted in favor of a recall, 22 had opposed it, and the number of votes in favor of a recall was insufficient to initiate the actual recall process.
In early 2009, Bhandari met with Farber to assure her that he was fit to be Chief of Staff-Elect and, ultimately, Chief of Staff. Farber informed Bhandari that the MEC was angry at him because of his participation in the film, and the MEC would take action against him unless he resigned his position as Chief of Staff-Elect.
On February 5, 2009, Bhandari attended a special MEC meeting, at which he was questioned in connection with the MEC’s investigation.
4. MEC’s Removal of Bhandari From Position of Chief of Staff-Elect
By letter dated February 9, 2009, the MEC informed Bhandari that it had reached the following conclusions: (1) Bhandari failed to implement or comply with (and even subverted) a proctoring program mandated by the MEC for a member of the medical staff (Li), thereby undermining the medical staff’s obligation to help ensure a high quality of care; (2) Bhandari failed to accept responsibility for his disregard of the proctoring program; (3) Bhandari’s active participation in “Life for Sale” undermined the medical staff’s peer review and quality assurance efforts; (4) Bhandari’s explanation that he was misled about the film and thought it was a school project for the producer’s child was misleading and not credible; and (5) Bhandari refused to acknowledge that any of his behaviors were inappropriate or contrary to his duties as a medical staff leader. This led the MEC to two additional conclusions, which the MEC voting members unanimously approved: (1) Bhandari’s behavior warranted a letter of censure; and (2) Bhandari’s behavior was “totally inconsistent with expectations of professional behavior of Medical Staff members, and particularly Medical Staff leaders, ” such that Bhandari could “no longer be considered a member in good standing” of the medical staff and, therefore, was no longer eligible to hold the position of Chief of Staff-Elect under Bylaws section 9.1-2. The position of Chief of Staff-Elect was declared to be vacant.
By February 20, 2009, Baig distributed a memorandum to medical staff, declaring that the position of Chief of Staff-Elect was vacant. Baig explained that the MEC had concluded Bhandari’s behavior was “inconsistent with the expectations of professional behavior for Medical Staff members and, in particular, Medical Staff leaders, ” Bhandari was no longer a member in good standing of the Medical Staff, and he was therefore no longer eligible to hold elective office.
5. Subsequent Events
In a letter dated April 17, 2009, addressed to the MEC and the Hospital’s board of directors, Bhandari asserted that the MEC’s action violated section 9.1-7 of the Bylaws (pertaining to the recall of officers) and was in retaliation for his stand on patient rights and care. He requested that the MEC reconsider its action.
On April 23, 2009, Baig replied to Bhandari in writing. He rejected Bhandari’s accusation that the censure was retaliatory or in violation of the Bylaws, and he asserted that “it was [Bhandari’s] own actions, which were adverse to patient care, that played a major role in the MEC’s decision.” Baig also noted that the MEC’s February 9 letter “documented an action taken after six months of investigation, an investigation during which you had full opportunity to comment.” He asked Bhandari to reconsider his request for reconsideration.
The following month, in connection with the regular biannual reappointment of Bhandari to the medical staff, the MEC informed Bhandari of the conditions he would have to meet for reappointment in light of the censure of February 9, 2009. Fulfilling these conditions, the MEC advised, would resolve its concerns and result in his “once again becoming a member in good standing of this Medical Staff.” Among the conditions were: reappointment to the medical staff for one year, during which he would not be considered in good standing; completion of an ethics course; participation in a program of meetings with and monitoring by the Physician Well-Being Committee; no further inappropriate behavior; and prohibition from serving as a proctor or in any other mentoring or monitoring capacity for a year. The board of directors approved these recommendations on May 13, 2009.
Bhandari sought clarification regarding his status and any right he might have to a hearing or to oppose the MEC’s decision. Baig responded on May 19, 2009, advising Bhandari that he was not entitled to a hearing because his clinical privileges were not being restricted.
On or about June 9, 2009, the board of directors responded to Bhandari’s letter of April 17, 2009, and denied his request for an investigation into the MEC’s action against him.
6. Bhandari’s Complaint
In October 2009, Bhandari sued Washington Hospital, administrators Farber and Brooks, and fellow physicians Baig, Sharma, Taghioff, Ross, and Achanta. He asserted fourteen causes of action: retaliation against physicians who advocate for appropriate health care (Bus. & Prof. Code, § 2056); infringement of his right to freedom of speech under the California Constitution; infringement of his right to due process under the California Constitution; wrongful discharge in violation of public policy; breach of contract; breach of the implied covenant of good faith and fair dealing; libel; libel per se; slander; slander per se; false light; intentional infliction of emotional distress; intentional interference with prospective economic advantage; and negligent interference with prospective economic advantage.
7. Appellants’ Anti-SLAPP Motion
In January 2010, appellants filed a special motion to strike the complaint under Code of Civil Procedure section 425.16. Appellants contended that the alleged misconduct constituted protected activity under the anti-SLAPP statute, either because it arose from the peer review process and was thus part of an official proceeding (§ 425.16, subd. (e)(1), (2)) or because it involved a public issue or issue of public interest (§ 425.16, subd. (e)(4)). Appellants further contended that Bhandari could not demonstrate a probability of prevailing on his claims, because they were barred as a matter of law due to his failure to fully exhaust his administrative and judicial remedies.
The motion to strike was filed on January 22, 2010. The complaint had been filed on October 20, 2009. It is not clear from the record whether the motion was filed within 60 days after service of the complaint or if the court extended the time for filing. (See Code Civ. Proc., § 425.16, subd. (f).) Bhandari does not contend that the motion to strike was untimely.
Bhandari opposed the anti-SLAPP motion and provided declarations and evidence supporting his opposition.
After a hearing, the trial court denied the motion to strike. The court ruled that appellants failed to show that the alleged misconduct constituted protected activity as the product of hospital peer review or involving a public issue or matter of public interest. The court denied the motion without deciding whether Bhandari had established a probability of prevailing on his claims.
This appeal followed.
II. DISCUSSION
A. Code of Civil Procedure Section 425.16
Code of Civil Procedure section 425.16 (section 425.16) authorizes a defendant to file a special motion to strike where a cause of action arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue. It establishes a procedure by which the trial court evaluates the merits of the plaintiff’s claim using a summary-judgment-like procedure at an early stage of the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The purpose is to curb the chilling effect certain litigation may have on the valid exercise of free speech and petition rights, and the statute is to be interpreted broadly to accomplish that goal. (§ 425.16, subd. (a).)
In pertinent part, section 425.16 provides: “(b)(1) 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 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(1), (2).)
“In its motion, the defendant must make a threshold showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity, as specified in the statute. (§ 425.16, subd. (b), (e).) The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c).) We review an order granting or denying a motion to strike under section 425.16 de novo. (Flatley, supra, 39 Cal.4th at p. 325.)” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1547; Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 998.)
B. First Prong: Appellants’ Burden to Show Protected Activity
The first prong of the anti-SLAPP analysis required appellants to make a threshold showing that Bhandari’s causes of action arose from acts “in furtherance of [their] right[s] 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).)
As relevant here, an “ ‘act in furtherance of a person’s right of petition or free speech... in connection with a public issue’ includes: (1) any written or oral statement or writing made before... any... official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by... any... official proceeding authorized by law;... (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), italics added.)
We begin with whether the proceeding conducted by the MEC is an “official proceeding authorized by law” within the meaning of section 425.16, subdivision (e)(1) and (2). We then consider whether the causes of action in the complaint arose from statements made “before” such a proceeding or “in connection with an issue under consideration or under review by” such a proceeding.
1. “Official Proceeding”
In Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler), a hospital’s peer review committee summarily suspended physician Kibler from its medical staff, based on his unprofessional conduct of hostile and threatening verbal assaults, threats of physical violence, and erratic hostile actions toward personnel. (Id. at p. 196.) Kibler and the hospital later entered into an agreement by which his staff privileges were reinstated, but Kibler nonetheless sued the hospital and others for damages. The hospital filed an anti-SLAPP motion to strike, contending that hospital peer review qualified as an “official proceeding authorized by law” (§ 425.16, subd. (e); Kibler, at p. 197.)
Our Supreme Court ruled that hospital peer review is an “official proceeding authorized by law” for purposes of section 425.16, subdivision (e)(2), because hospital peer review is required under Business and Professions Code section 805 et seq. (Kibler, supra, 39 Cal.4th at p. 199.) Peer review plays a significant role in protecting the public, and holding that hospital peer review proceedings are not official proceedings would discourage participation in peer review. (Id. at pp. 200-201.) Furthermore, a hospital’s decisions resulting from peer review are subject to judicial review by administrative mandate (Bus. & Prof. Code, § 809.8), giving a hospital’s peer review decisions a status comparable to decisions of quasi-judicial public agencies. (Kibler, at p. 200.)
In the matter before us, the investigation of Bhandari, and the ultimate removal of Bhandari from his position as Chief of Staff-Elect, was performed by the MEC. Although the parties spend little time defining precisely what the MEC is under the Bylaws, the allegations and evidence make it quite clear that the MEC acts as a peer review committee, and what it did in investigating and disciplining Bhandari was in the nature of peer review.
As it appeared at the time of the events alleged in the complaint, Business and Professions Code section 805 defined a “[p]eer review body” as an entity that includes a “medical or professional staff of any health care facility or clinic licensed under Division 2... of the Health and Safety Code or of a facility certified to participate in the federal Medicare Program as an ambulatory surgical center” and a “committee organized by any entity consisting of or employing more than 25 licentiates of the same class that functions for the purpose of reviewing the quality of professional care provided by members or employees of that entity.” (Bus. & Prof. Code, § 805, subd. (a)(1)(A), (D), italics added.) Among the actions that a peer review committee is contemplated to take are rulings affecting a physician’s staff privileges, membership, or employment. (Bus. & Prof. Code, § 805, subds. (b), (c).)
Similarly, Kibler described hospital peer review as “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.” (Kibler, supra, 39 Cal.4th at p. 199.)
Here, correspondence attached to the complaint and submitted as evidence in connection with the anti-SLAPP motion shows that the MEC is a committee comprised of licensed medical personnel at the hospital, is authorized to take action against the medical staff including suspension and termination, and is charged in the Bylaws with “acting on behalf of the Medical Staff organization and assuring that the goals and purpose of the Medical Staff are met.” The complaint itself alleges that the MEC is a separate legal entity “overseeing the Medical Staff.” Indeed, Bhandari does not contend that the MEC is not the hospital’s peer review committee. (See also Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 510-511 [treating action of MEC as peer review].)
Furthermore, the MEC’s action against Bhandari was in the nature of peer review discipline. The MEC’s investigation was instituted under Article VI of the Bylaws and “related to concerns with [Bhandari’s] professional behavior;” the MEC found Bhandari’s actions undermined the obligation to help assure a “high quality of care” and undermined peer review and “quality assurance efforts of [the] Medical Staff;” and the MEC deemed its actions against Bhandari were “critical to the proper functioning of the Medical Staff.”
In sum, the MEC peer review committee commenced an investigation under the authority of the Bylaws, to determine if Bhandari had violated the hospital’s code of conduct and the Bylaws. As a result of this investigation, the MEC peer review committee found that Bhandari should be censured for the implications his actions had about patient care, he was no longer in good standing, and, according to the Bylaws, the position of Chief of Staff-Elect was declared vacant. The investigation of Bhandari and the action taken against him were thus plainly part of the hospital’s peer review.
Bhandari’s arguments to the contrary are unpersuasive. Primarily, he argues – and the trial court concluded – that the MEC’s action did not constitute peer review because Bhandari did not receive the notice and hearing to which he might have been entitled under the Bylaws. Appellants counter that Bhandari was not entitled to a hearing and, therefore, was not entitled to the special notice the Bylaws would have required. But more to the point, whether or not the MEC peer review committee gave Bhandari adequate notice of the proceedings or a hearing during the proceedings, the proceedings themselves constituted peer review because they were conducted by a peer review committee for peer review purposes. The MEC’s alleged failure to provide the requisite hearing and notice may be relevant to whether Bhandari has a probability of prevailing on the merits of his claims (pertinent to the second prong of anti-SLAPP analysis), in that the MEC’s conduct may have been errant or wrongful; but it did not change the context in which the MEC’s conduct occurred, such that it was no longer an official proceeding for purposes of the first prong of anti-SLAPP analysis.
For similar reasons, Bhandari’s contention that the MEC did not comply with the Bylaws in removing him as Chief of Staff-Elect by censuring him and declaring he was no longer in good standing – rather than by the recall procedure specified in section 9.1-7 of the Bylaws – is immaterial for purposes of determining whether the MEC proceedings constituted protected activity. Even if the MEC’s removal of Bhandari was errant or ultra vires, it was still in the context of peer review and an official proceeding, just as a judge’s error or act in excess of jurisdiction would still be in the context of a judicial proceeding. To hold otherwise would mean that those whom the Supreme Court wanted to protect in Kibler – medical personnel who participated on peer review committees – would never be protected if the plaintiff alleged fault with what they did; which would be precisely when they would need the protections afforded by the anti-SLAPP statute.
Next, Bhandari argues that the MEC investigation and action did not constitute peer review because Bhandari had no right to judicial review of the MEC’s decision, and Kibler had noted the availability of judicial review as a reason that peer review decisions should be deemed official proceedings. However, Bhandari provides no authority for the proposition that he did not have a right to judicial review of the hospital’s decision removing him from his position as Chief of Staff-Elect. (Code Civ. Proc., § 1085, § 1094.5; see Ellison v. Sequoia Health Service (2010) 183 Cal.App.4th 1486, 1495-1496, 1498-1500 [hospital’s final decision in a peer review proceeding may be judicially reviewed by a petition for writ of administrative mandate on the ground that the hospital’s determination was not made according to a fair procedure]; Eight Unnamed Physicians v. Medical Executive Com., supra, 150 Cal.App.4th at pp. 510-511 [review of MEC’s refusal to hold consolidated hearing would be reviewable by administrative mandamus or traditional mandamus if all available internal remedies are exhausted or no administrative remedy is available].)
Lastly, Bhandari’s reliance on Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40 (Smith) is misplaced. In Smith, a hospital summarily suspended a physician’s staff privileges and clinic membership. (Id. at p. 53.) Later, it “screened out” the physician’s reapplication for the medical staff, on the ground that he had not satisfied the waiting period after the prior suspension. (Id. at p. 46.) On appeal, the court determined that the alleged acts relating to the summary suspension constituted protected activity, pursuant to Kibler. (Smith, at p. 56.) It decided that the “screening out” of his reapplication was not protected activity under Kibler, however, because it was not performed by the medical executive committee, and was therefore not a determination by a peer review committee. (Smith, at pp. 62-63.) The court further concluded that the act of screening out, performed by persons other than the peer review committee, could not constitute an official proceeding because it was not made pursuant to procedures governed by the Business and Professions Code, it did not require a report to be made to the Medical Board of California, and it was not accompanied by the right to an administrative hearing and the right to have the results of the administrative hearing judicially reviewed by administrative mandate. (Smith, at p. 64.)
Smith is distinguishable from the matter at hand. The screening out of Smith’s reapplication was not protected activity because it was not performed by a peer review committee. Here, by contrast, the removal of Bhandari from his position as Chief of Staff-Elect was performed by a peer review committee.
In sum, the MEC’s investigation of Bhandari and the action taken against him were part of peer review under Kibler and were therefore part of an official proceeding within the meaning of section 425.16, subdivision (e)(1) and (2).
2. “Before” or “In Connection With”
We next must consider whether the acts underlying Bhandari’s causes of action are, in fact, statements or writings made “before” the official proceeding or “in connection with” an issue under consideration or review by the official proceeding. (§ 425.16, subd. (e)(1), (2).)
The first and second causes of action are explicitly based on reduction of Bhandari’s privileges, removal from staff and other positions, and commencement of the MEC investigation. These acts were all performed by the MEC peer review committee or in connection with the issues it was investigating. Based on the arguments of the parties, the first and second causes of action are within the scope of the anti-SLAPP statute.
One might question whether some of the causes of action are based on written or oral statements or writings, as required under section 425.16, subdivision (e)(1) and (e)(2), when they are explicitly based on acts such as reduction of privileges, removal from positions, commencement of an investigation, failure to provide due process, wrongful discharge, and breach of contract. The parties, however, did not raise this issue in the trial court or in this court. We will therefore assume the parties are in agreement that the causes of action are based at least in part on written and oral statements or writings.
The remaining causes of action are based on the MEC’s peer review as well. The third cause of action pertains to the MEC’s alleged failure to provide due process. The fourth and fifth causes of action, for wrongful discharge and breach of contract, are based on the MEC’s removal of Bhandari from his position as Chief of Staff-Elect. The sixth cause of action for breach of the implied covenant of good faith is based in part on false or untrue statements about Bhandari, which would include Dr. Baig’s memorandum announcing the MEC’s decision. The seventh, eighth, ninth, and tenth causes of action, for libel, libel per se, slander and slander per se, are also based on statements made in connection with the issues considered or reviewed by the MEC peer review committee, as is the eleventh cause of action for false light. The twelfth, thirteenth and fourteenth causes of action are based on “conduct alleged above” or “conduct alleged herein, ” and are thus based at least in substantial part on protected activity as well.
Appellants therefore satisfied their burden to show that the causes of action in Bhandari’s complaint arose from activity protected by section 425.16, subdivision (e)(1) and (2). We conclude on this basis that the trial court erred as to the first prong of the anti-SLAPP analysis, and we need not and do not determine if subdivision (e)(4) of the statute would apply as well.
C. Second Prong: Probability of Prevailing
In the second prong of the anti-SLAPP analysis, the court must determine whether the plaintiff has shown, by admissible evidence, a probability of prevailing on the claim. (§ 425.16, subd. (b).) The trial court in this case did not decide this issue, because it ruled against appellants on the first prong. We will therefore remand the matter to the trial court to conduct the second prong analysis, including resolution of the parties’ factual and legal dispute over whether Bhandari had administrative or judicial remedies that he failed to exhaust. (See Birkner v. Lam (2007) 156 Cal.App.4th 275, 286-287.)
III. DISPOSITION
The order is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Appellants shall recover their costs on appeal.
We concur. JONES, P. J., BRUINIERS, J.