FAHLEN v. SUTTER CENTRAL VALLEY HOSPITALS

Appellants’ Petition for Review with Request for Stay

Cal.September 24, 2012

eee Se wo ee oD oO ue No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SUPREME COURT ooPoh ii MARK T. FAHLEN, 5 Plaintiffand Respondent, SEP 24 2012 Vv. Frank A. McGuire Clerk SUTTER CENTRAL VALLEY HOSPITALS, STEVE MITCHELL, et gputy Defendants and Appellants. After a Published Decision by the Court of Appeal, Fifth Appellate District Case No. F063023 PETITION FOR REVIEW; DECLARATIONIN SUPPORT OF REQUEST FOR STAY (IMMEDIATESTAY OF SUPERIOR COURT PROCEEDINGS REQUESTED) Action Pending in Stanislaus County Superior Court, Department 22, the Honorable Timothy W.Salter presiding, (209) 530-3171 HANSONBRIDGETT LLP Joseph M. Quinn, SBN 171898 Glenda M. Zarbock, SBN 178890 Lori C. Ferguson, SBN 230586 425 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 . Attorneys for Defendants and Appellants SUTTER CENTRAL VALLEY HOSPITALS and STEVE MITCHELL 4732211.6 No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MARK T. FAHLEN, Plaintiffand Respondent, Vv. SUTTER CENTRAL VALLEY HOSPITALS, STEVE MITCHELL, et al., Defendants and Appellants. After a Published Decision by the Court ofAppeal, Fifth Appellate District Case No. F063023 PETITION FOR REVIEW; DECLARATION IN SUPPORT OF REQUEST FOR STAY (IMMEDIATE STAY OF SUPERIOR COURT PROCEEDINGS REQUESTED) Action Pending in Stanislaus County Superior Court, Department 22, the Honorable Timothy W.Salter presiding, (209) 530-3171 HANSON BRIDGETT LLP Joseph M. Quinn, SBN 171898 Glenda M. Zarbock, SBN 178890 Lori C. Ferguson, SBN 230586 425 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 . Attorneys for Defendants and Appellants SUTTER CENTRAL VALLEY HOSPITALS and STEVE MITCHELL 4732211.6 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (Cal. Rules of Court, Rules 8.208, 8.488) This form is being submitted on behalf of the following parties: SUTTER CENTRAL VALLEY HOSPITALS and STEVE MITCHELL. Interested entities or persons required to be listed under rule 8.208 are as follows: Full NameofInterested Entity or Nature of Interest Person Sutter Health Parent companyand sole corporate memberof Sutter Central Valley Hospitals The undersignedcertifies that the above-listed personsor entities (corporations, partnerships, firms, or any other association, but not including governmententities or their agencies) are all such entities, other than the parties, that either: (1) have an ownership interest of 10 percentor morein a party; or (2) have a financial or otherinterest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in Rule 8.208(e)(2). DATED:September ZY, 2012 HANSON BRIDGETT LLP 4732211.6 Page ISSUE PRESENTED FOR REVIEW .......cceccscsscecseceseeseesesenseenasersesseeseeeees 1 WHY REVIEW SHOULD BE GRANTED 1... ceecceesscneeeneeensseseerneenees 1 BACKGROUND ......cccccccsscsseeseeseeeseeeeeeeeenneceaeraeceeessenseesseersecnecesnsessseneeneeees 3 A. Medical Staff Privilege Actions Are Subject to Peer Review, Which Includes Judicial MandamusReview............3 B. Before Pursuing Damages on the Basis That a Peer Review Action Was Maliciously Motivated, a Physician Must Exhaust Judicial Remedies...........ccececee 5 C. The Exhaustion Rule Governs Statutory Damages Claims Unless the Statute Expressly Abrogates the Rule or Abrogation Is Necessary to Give the Statute Effect ......cccccccccccesseccececeececeseeesecescececseeesecnesseeseeesserseeessreeeesanes7 D. This Court Strengthens Protections for Medical Peer Review and Professionals WhoParticipate in Peer REVICW .....ccccccseessecsseeceeesecesceececeaeeaeceasersecssesseesssesecensensacenessiesaes 8 E. The Legislature Amends Section 1278.5 to Allow Damages Wherea Physician Proves that a Hospital Harmed Her EconomicInterests Out of Retaliatory Malice ........cccsesssscesceceesccesaeeeneeceacesceeeneseesesessssaeessnenesseeseseseeess9 F, The Fourth District Holds that the Judicial Exhaustion Rule Applies Where a Physician Bases a Section 1278.5 Claim on a Peer Review Action.........ccccceeeeeseeeeees 12 G. The Fifth District Holds that the Judicial Exhaustion Rule Does Not Apply Where a Physician Bases a Section 1278.5 Claim on a Peer Review Action...............004 13 STATEMENT REGARDING REHEARINGIN THE COURT OF APPEAL ou. esscsscsecessesceececesseeseecccecceesssessenecsscsessesessnssssssseacaseseesseesenss 16 LEGALDISCUSSION.......cesceeceeestceseeseececnesesseeseeseeneceseeseeseeseeeeeeneeeaeenes16 I. REVIEW IS NECESSARY TO SECURE UNIFORMITY OF DECISION......cccccssssccsccesseseescecsececceeecnseseenscuesessusesessessasseeseneaeeeseeasess 16 TABLE OF CONTENTS 4732211.6 IL. REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW ..0....ecccccesceeereeeecenseteeseecesceaeseseessesneeeaeeeeeeeatens 19 WI. THIS CASE IS A PROPER VEHICLE FOR REVIEWING THE EXHAUSTIONISSUE...eececeeneeeeeeeeeeeseesereeenaeeseeneaees22 A. The Issue Is Squarely Presented ............cceeesseseeseeereeeeeseeeees22 B. Depublication Would Put the Hospital at a Substantial Disadvantage; Allowing the Conflict to Stand Would Create Uncertainty in the Medical Field...eeeeens23 IV. THE COURT SHOULD STAY SUPERIOR COURT PROCEEDINGS PENDINGFINAL DISPOSITION OF THE INSTANT PETITION FOR REVIEW uu... ccc eecceeceetesesseeseeeseeteees24 CONCLUSION...cecesecceeeseeeseesecseseessesseesscneseeseseeeceecseassesseseaseseesees25 il 473221 1.6 TABLE OF AUTHORITIES Page CASES Anton v. San Antonio Comm. Hosp. (1977) 19Cal.3d 802 0... sseecsseesseeseessseesesscsteeseesnieesecsneessecsencanensnias 3 Arnett v. Dal Cielo (1996) 14 Cal4th 4oescsseesseneeesetecneeceetstesessusseerssessneens 3,8 Campbell v. Regents ofthe University ofCal. (2005) 35 Cal.4th 311 occeeecseeseceseescneeeserseseeessesseesseeseaes 7,18 Fahlen y. Sutter Central Valley Hosp. (2012) 208 Cal.App.40 557 occescscscssesssresserseseesenseeseenseeens passim Kibler v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192 occeeeceeeseeeeeeseeesseeeeesensesteessssesenes 8, 9, 20 McCallum v. McCallum - (1987) 190 Cal.App.3d 308 oo...eeseseseeescsecresereseeseeeeneeeeenes 19, 24 Mendiondo v. Centinela Hosp. Med. Ctr. (9th Cir. 2008) 521 F.3d 1097 ooocececcceteeeeeeeeeeeseeeeeeneenes 21 Mileikowsky v. West Hills Hosp. & Med. Ctr. (2009) 45 Cal.4th 1259ceceeseseeesessnsseeesseseseeesssseessessaees 3,4,5 Miller v. Eisenhower Medical Ctr. (1980) 27 Cal.3d 614 occecccecsseseserseeneesensssensscsessecsseressesseneeateasees 3 Nesson v. Northern Inyo County Local Hospital District (2012) 204 CalApp.4th 65 oo. eccessscsereceneeseeeteeesresseeseeees passim Runyon v. Board ofTrustees ofthe California State University (2010) 48 Cal.4th 760 oo.eeessesesscenseeeeeessesesesecneseessesseeenseenes 19 State Board ofChiropractic Examiners v. Superior Court (Arbuckle) (2009) 45 Cal.4th 963 oo.ceeecsseesssessseseessesseeeseseeneseeeeses 18, 19 Torres v. Auto. Club ofSo. Cal. | (1974) 15 Cab4th 771 eeeceesceeseseeeseseeenenseneeeessersesseeneneees 7, 18 Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465 weetcsecescsesessecseneereesseneeseeseeseneeseesates passim ili 4732211.6 STATUTES Federal United States Code, Title 42, SLLceececetecreneeeseeeeneeersesesseseseesessaeereessesseessessessseesseesseeeneeeseeses 19 S LLU SDeececeteeeeneessceesseensescneesseecssccsseeecsseesseeseesseseuesseesieesseseeeegs 19 State Cal. Business and Professions Code, § 8050 cccccccccsesccsscessssseseneseeessnseecevsvesssetvvesesssvsesssunsnstinnssestessnestseeen 3,4 § 809 ccccceccesssecsssssesnsesesensseeneensssenevasessetiessessseesstisinesessnseseeeeen 3, 4, 8, 20 § 809.2 ecccccccssscsssecsssnsseesnnssesesensessevenssssuvsesssceesssesuansssisaseseseniseseesneseres 4 § 809.3 cccccccssecescsseeseensessevenseneeensssesetensssevasssesunsesssnansstiisssssessesseenasestes 4 § 809.4 ccccccccccsecsssssssnssesensesevesnsseeseuessscevinesesstnnscosinestennassesesensasesese 5, 20 § 809.8 ccccccccsecccssssssnssessnnseevesenseveniessssevessssesuensssevansssissessessunseseessnessee 5 4 Cal. Code of Civil Procedure, § 425.16... cccccccssecssesceccsceeceeeseeacesecenesssessessesessecseseecsesseseeaseeseessesseaeenesseestenss 8 § 1094.5 ...ccececcssessesecesseseceeceeeesessceseesssseessseseseassessecsesasesseesessessessensenesanentenes 5 Cal. Evidence Code, § 603 v.eeccsscsssecssscsceseeeesccseenceeseseeeecseesseceecseseassessesseesenseasseneesaneneneeneeeeats 9, 10 Cal. Health and Safety Code, § 1278.5 oe eeeeeeeseeeeeereeetsseeseseeeneseeeeeneeesSe eecsceesaceeseeeeaeecnneceeeseseconseteseees passim iv 4732211.6 REGULATIONS Code of Regulations, Title 22, § TOTON sessssssssssssvssvecsessecessssssseseceesseeessssessessssunsusnsseessessssseessesssssasisnsuneveeeees 4 § T0703 ceccessssssssssssssecsseceecesssssssssesssssssssesseesessnisisnnnusasessseseeeeeesssssssssssseeneen 3,4 RULES California Rules ofCourt, Rulle 8.500 ....cceeeccccscesssecsesseenesceeeeeseeceeeeneesesensessessesessecsesenssesssensenes 1, 16, 19 OTHER AUTHORITIES Assem. Com. on Health, Analysis of Assem. Bill No. 632 (2007- 2008 Reg. Sess.) as introduced Feb. 21, 2007, pp. 3-4.....ccccseereee 11 Cal. Law Revision Comm., 29B West's Ann. Evid. Code (1995 ed.) Foll. § 603, Pp. 57 ceeccccecessseesesseescssstecssssecseeseesessecsseeseeeeseesenensesaenesaees 10 Cal. Medical Ass'n, Floor Alert to State Assem. on Assem.Bill No. 632 (2007-2008 Reg. Sess.) Sept. 11, 2007.0... cc ccssereeeteeterrenetees 11 Sen. Amend.to Assem.Bill No. 632 (2007-2008 Reg. Sess.) July 17, 2007, Pp. Qevcccecceccercsecserecreesesscsecssscsssesaneseesesseesessesaesisnensesserseserney 11 Sen. Judiciary Com., Analysis of Assem. Bill No. 632 (2007-2008 Reg. Sess.) as amended June 6, 2007 «0... csecesceseeeeterteeeetetteneeeeenes 11 Sen. Judiciary Com., Analysis ofAssem. Bill No. 632 (2007-2008 Reg. Sess.) as amended June 6, 2007, pp. 7-8 ....cciseeseetererseeeeteeees 11 Vv 4732211.6 ISSUE PRESENTED FOR REVIEW Medicalstaff privileges are the product of peer review and a physician may pursue damageson the basis that a peer review action was maliciously motivated only if he first secures mandamusrelief. This exhaustion rule governs statutory damages claims unless abrogation is express or necessarily implied. Health and Safety Code section 1278.5 allows damagesclaims by physicians whoprovethat a hospital or official harmed his economicinterests out of retaliatory malice. Abrogation is neither express nor necessary to give effect to the statute. By Section 1278.5, did the Legislature abrogate the exhaustion rule? WHY REVIEW SHOULD BE GRANTED The Court should grant review for two reasons: first, on the issue presented, the appellate districts are split; and, second, on its own, the issue is sufficiently important to the public, hospitals, health care professionals and physiciansacross California that timely resolution by this Court is merited. (See Cal. Rules of Court, rule 8.500(b)(1).) First and foremost, the issue is one on which the appellate districts are split. In Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465 at page 484 (“Westlake’’), this Court held that a physician may pursue damagesonthe basis that a peer review action was maliciously motivated only if he first secures mandamusrelief. In its published opinion in this case, the Fifth District held that, under Section 1278.5, a physician may pursue damageson the basis that a peer review action was maliciously motivated withoutfirst challenging the revocation in an administrative mandamus proceeding. (Fahlen v. Sutter Central Valley Hosp. (2012) 208 Cal.App.4" 557, 579 (Fahlen).) Only monthsearlier, Division Two of the ' A copy ofthe Fifth District's opinion is attached as Exhibit "A." 4732211.6 Fourth District published its opinion in Nesson v. Northern Inyo County Local Hospital District (2012) 204 Cal.App.4th 65 (Nesson). In Nesson, the Fourth District held that the judicial exhaustion rule survived Section 1278.5. (Id. at p. 85.) Thus, review is necessary to establish uniformity of decision onthe viability of the Westlake exhaustion rule in light of Section 1278.5. Even if the Court of Appeal decisions were uniform—whichtheyare not—review would be appropriate to settle the status of the judicial exhaustion rule. The rule is the result of this Court's unanimousdecision in Westlake, which has been on the booksfor nearly four decades and is now well integrated into hospital and medicalstaff operations across California. Moreover, Westlake and the relevant portions of Section 1278.5 have coexisted for more than five years. Now a published case holdsthat Westlake and Section 1278.5 are irreconcilable, and that Section 1278.5 trumps. This Court should grant review to determine whether or to what extent Westlake remains goodlaw. Andthere canbelittle doubt that this case is a proper vehicle for - addressing the issue. Therecord on the issue is developed. Theparties have briefed the issue to the trial court and the Fifth District. Moreover, amici joined the appealto add their analysis. Every indication is that the Court will have the resources necessary to resolve the issue. Appellants respectfully request that this Court grant review to decide whether under Section 1278.5 a physician may seek damages onthe basis that a peer review action was maliciously motivated withoutfirst exhausting judicial remedies. To avoid undue burdenontheparties and in furtherance ofjudicial economy, Appellants respectfully request that this Court stay superior court proceedings pending disposition of the instant petition for review. The case is pending in the Stanislaus County Superior 4732211.6 Court, Department 22, the Honorable Timothy W.Salter presiding, (209) 530-3171. BACKGROUND Brief discussions of the Legislature's and this Court's treatment of medical peer review, as well as a review of the competing opinions in Nesson and Fahlen,are in order. A. Medical Staff Privilege Actions Are Subject to Peer Review, Which Includes Judicial Mandamus Review Medical peer review is the process by which a committee comprised of licensed medical personnel evaluates physicians applying for staff privileges, establishes standards and proceduresforpatient care, assesses the performanceofphysicians currently on staff, and reviewsother matters critical to the hospital's functioning. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10 (Arnett); see also Mileikowsky v. West Hills Hosp. & Med. Ctr. (2009) A5 Cal.4th 1259, 1267 (Mileikowsky); Bus. & Prof. Code, § 805, subd. (a)(1).) Initially, a physician's rights to procedural and substantive safeguards during peer review were defined by commonlaw. (See Anton v. San Antonio Comm. Hosp. (1977) 19 Cal.3d 802, 829 [procedural requirementsfor fair process]; Miller v. Eisenhower Medical Ctr. (1980) 27 Cal.3d 614, 628-629 [substantive requirements for fair process].) More recently, the Legislature has set rules and standards, as well. (See Bus. & Prof. Code, § 805 et seq.) “Peer review,fairly conducted,” the Legislature has declared,“is essential to preserving the highest standards of medical practice.” (Bus. & Prof. Code, § 809, subd. (a)(3).) A licensed hospital must have an organized medicalstaff. (Cal. Code Regs., tit. 22, § 70703, subd.(a); Mileikowsky, supra, 45 Cal.4th at p. 1267.) The medical staff must adopt written bylaws “which provide formal proceduresfor the evaluation of staff applications and credentials, 4732211.6 appointments, reappointments, assignmentof clinical privileges, appeals mechanismsand such other subjects or conditions which the medical staff and governing body deem appropriate.” (Cal. Code Regs., tit. 22, § 70703, subd. (b); see Bus. & Prof. Code, § 2282.5; Cal. Code Regs., tit. 22, §§ 70701, 70703.) Peer review committees investigate complaints about physicians and make recommendations regardingstaffprivileges. (Mileikowsky, supra, 45 Cal.4th at p. 1267.) Certain peer review actions, including suspension,restriction, or denial of a physician's privileges for a medical disciplinary cause or reason, require the filing of an “805 Report” with the Medical Board of California. (Bus. & Prof. Code, § 805, subd. (b); Mileikowsky, supra, 45 Cal.4th at p. 1268.) A physician whois the subject of a final proposed peer review action that requires an 805 Report is entitled to written notice ofthe proposed action, the right to request a hearing on the proposed action, and the time limit for such a request. (Bus. & Prof. Code, § 809, subd. 1(b).) If the physician timely requests a hearing, the peer review body must give her written notice stating the reasonsfor the final proposedaction, including the acts or omissions with which she is charged, and the time, place, and date of the hearing. (Bus. & Prof. Code, § 809.1, subd. (c); Mileikowsky, supra, 45 Cal.4th at pp. 1268-69.) The hearing must conform to the medical staff bylaws and fair hearing requirements. (See Bus. & Prof. Code, §§ 809.2, 809.3; Mileikowsky, supra, 45 Cal.4th at p. 1268.) These proceduralprotections include, the right to voir dire the panel members and any hearingofficer; the right to inspect and copy documentary evidence; the right to call, examine, and cross-examine witnesses; and theright to submit a written statementat the close ofthe hearing. (Bus. & Prof. Code, §§ 809.2, 809.3.) After the hearing, the physician and the peer review body must be given the trier of fact's written decision, including findings of fact and a 4732211.6 conclusion connecting the decision to the evidence. (Bus. & Prof. Code, § 809.4, subd. (a)(1); Mileikowsky, supra, 45 Cal.4th at p. 1269.) Ifan appellate mechanism exists under the bylaws, the physician and the peer review body must be advised of the procedure. (Bus. & Prof. Code, § 809.4, subd. (a)(2).) An appellate mechanism must provide certain minimum rights. (Bus. & Prof. Code, § 809.4, subd. (b).) Aspart of the peer review process, the Legislature acknowledged and preserved the availability ofjudicial review under Section 1094.5 of the Code of Civil Procedure. (Bus. & Prof. Code, § 809.8.) Thus, following completion of the review mechanismsunder the bylaws, a physician may seek administrative mandamusrelief. B. Before Pursuing Damageson the Basis That a Peer Review Action Was Maliciously Motivated, a Physician Must Exhaust Judicial Remedies Central to medical peer review is the well-established rule that a physician must exhaust judicial remedies before pursuing damageson the basis that a peer review action was maliciously motivated. This rule was established by this Court in its unanimous opinion in Westlake. Westlake Community Hospital accordedstaff privileges to Dr. Sarah Kaiman. (Westlake, supra, 17 Cal.3d at pp. 469-470.) Approximately a year later, a committee composedofthe chief of staff and two other doctors reviewed the hospital medical records and treatments of Dr. Kaiman and prepared a report for the credentialing committee recommending revocation of her staff privileges. (/d. at p. 471.) The credentialing committee approved the report and recommendation,as did the hospital's board of directors. (Ibid.) The hospital promptly notified Dr. Kaimanofits decision and advised herofher right to request a hearing before the judicial review committee. (Ibid.) At Dr. Kaiman's request, a hearing was held. Both 4732211.6 sides, through counsel, called witnesses and introduced evidence. (/bid.) The committee determined that Dr. Kaiman's staff privileges should be revoked. (Ibid.) The hospital advised her of her right to appeal the decision to the board of directors and she exercised that right by appearing before the board and presenting her objections to the committee's determination. (/d. at pp. 471-472.) The board affirmed the committee determination. (/d. at p. 472.) Dr. Kaiman sued the hospital and numerous committee and board members. She alleged that her privileges were revoked as a result of a malicious conspiracy against her and sought damages underseveraltort theories. (Westlake, supra, 17 Cal.3d at p. 470.) The defendants moved for summary judgmentarguing that before Dr. Kaiman could seek damages on the grounds that the revocation of privileges was maliciously motivated, she hadto first challenge the quasi-judicial decision in a mandamus proceeding; her failure to do so meantthat her claims were barred. (/d.at p. 473.) Thetrial court denied the motion. The Supreme Court agreed to consider defendants’petition for a writ of prohibition. (/d. at p. 474.) _ Ina unanimous opinion authored by Justice Tobriner, the Court “determined that under the present circumstances, plaintiff should be requiredto proceedinitially through a mandamusaction; accordingly we concludethat, in this respect, defendant[s'] motion for summary judgment should have been granted.” (Westlake, supra, 17 Cal.3d at p. 483.) The Court found that Dr. Kaiman's “malicious motivation” action was akin to a malicious prosecution action, “which can only be maintained after the allegedly maliciously initiated proceeding has terminated in favorofthe person against whom it was brought. [Citations.]” (bid.) A similar “favorable termination” is appropriate for challenges to quasi-judicial decisionsby private associations, including hospitals. “Accordingly, we 47322116 conclude that plaintiff must first succeed in overturning the quasi-judicial action before pursuinghertort claim[s] against defendants.” (/d. at p. 484.) The Court emphasizedthat its judicial exhaustion rule is designed to facilitate peer review and ensure proper administration ofjustice. As the Court explained, the rule: (1) “accords a proper respect to an association's quasi-judicial procedure;” (2) “affords a justified measure of protection to the individuals whotake on, often without remuneration, the difficult, time- consuming andsocially important task of policing medical personnel;” and (3) promotes judicial economy “by providing a uniform practice ofjudicial, rather than jury, review of quasi-judicial administrative decisions.” (Westlake, supra, 17 Cal.3d at p. 484.) C. The Exhaustion Rule Governs Statutory Damages Claims Unless the Statute Expressly Abrogates the Rule or Abrogation Is Necessary to Give the Statute Effect Westlake's judicial exhaustion rule governs statutory claims for damages,evenifthe statute suggests that exhaustion is not required, “unless [the intention to overthrow the rule] is made clearly to appear either by express declaration or by necessary implication.’ (Torres [v. Auto. Club ofSo. Cal. (1997) 15 Cal.4th 771,] at p. 779 [(Torres)].)” (Campbell v. Regentsofthe University ofCal. (2005) 35 Cal.4th 311, 329 (Campbell).) In other words, a physician must exhaust herjudicial remedies before pursuing statutory damageson the basis that a peer review action was maliciously motivated unless the statute itself “evince[s] a clear expression ofintent” to abrogate the exhaustion rule or abrogationis necessary to “give [the statute] effect.” (See Torres, supra, 15 Cal.4th at pp. 779-780.) 4732211.6 D. This Court Strengthens Protections for Medical Peer _ Review and Professionals Who Participate in Peer Review Thirty years after Westlake, this Court issued another unanimous opinion regarding physicians’ claims for damages onthe basis that a peer review action was maliciously motivated. In Kibler v. Northern Inyo County Local Hospital District (2006) 39 Cal.4th 192 (Kibler), the issue was whether, for purposes of the anti-SLAPPstatute, the underlying peer review procedure wasas an “official proceeding authorized by law.” (See id. at pp. 194-196, quoting Code Civ.Proc., § 425.16, subd. (€)(2).) Unanimously, this Court held that medical peer reviewis an official proceeding authorized by law. (/d. at p. 199.) The Court emphasized the important public interests informing peer review: e Quality Care: “Hospital peer review, in the words of the Legislature, ‘is essential to preserving the highest standards of _ medical practice’ throughout California (Bus. & Prof. Code, § 809, subd. (a)(3).)” (Kibler, supra, 39 Cal.4th at p. 199.) e Cost-Effective Care: Following peer review, “a hospital may removea physician from its staff as a meansto reduceits exposure to possible malpractice liability.” (Kibler, supra, 39 Cal.4th at p. 199.) e Public Protection: “Because a hospital's disciplinary action maylead to restrictions on the disciplined physician's license to practice or to the loss of that license, its peer review procedure plays a significant role in protecting the public against incompetent, impaired, or negligent physicians. (Arnett, supra, 14 Cal.4th at pp. 7, 11.)” (Kibler, supra, 39 Cal.4th at p. 200.) Judicial exhaustion, the Court noted, is a bulwark ofthe peer review process. (Kibler, supra, 39 Cal.4th at p. 201.) Peer review rules should encourageparticipation by physicians who serve without compensation and are put in the uncomfortable position of“sitting in judgmentoftheir peers.” (Kibler, supra, 39 Cal.4th at p. 201.) Medical peer review proceedings are 4732211.6 “official proceeding[s] authorized by law” underthe anti-SLAPPstatute in large part because such a holding encouragesparticipation by protecting hospitals and professionals from “harassing lawsuits.” (/bid.) E. The Legislature AmendsSection 1278.5 to Allow Damages Where a Physician Proves that a Hospital Harmed Her Economic Interests Out of Retaliatory Malice A yearafter Kibler, the Legislature amended Section 1278.5, a statute that prohibited health facilities from retaliating or discriminating against patients or employees who complain to government agencies about the health facility or cooperate in a government investigation or proceeding. (§ 1278.5, subd. (a).) Employees who suffer discrimination on the basis of filing a complaint could seek damages. (§ 1278.5, subd. (g).) As initially drafted, Section 1278.5 did not expressly cover physicians. The 2007 amendmentexpressly extended the statute to “members of the medical staff’ and broadenedthe protections to cover not only complaints and grievances to governmentagencies, but also to accreditation entities and to health facilities themselves. (§ 1278.5, subd. (b)(1)(A).) Under the amendment, a physician who has been subjected to discriminatory treatmentis entitled to reinstatement, reimbursementfor lost incomeresulting from changes in the termsor conditionsofherprivileges, and legal costs. (§ 1278.5, subd. (g).) | . The 2007 amendmentestablished a rebuttable presumption that an adverse action was discriminatory if responsible staff knew ofthe physician's complaint or cooperation and the action occurred within 120 days of the complaint or cooperation. (§ 1278.5, subd. (d)(1).) The presumption, however,is not one affecting the burden of proof, but only a presumption “affecting the burden ofproducing evidence as provided in Section 603 of the Evidence Code.” (See § 1278.5, subd. (e).) As the Law 4732211.6 Revision Commission's comments on Section 603 make clear, such a presumption is neither “based on any public policy extrinsic to the action in which[it is] invoked”nor of practical consequencesas long asthe party against whom it operates has some evidenceontheissue: Section 603 describes those presumptions that are not based on any public policy extrinsic to the action in which they are invoked. These presumptions are designed to dispense with unnecessary proof of facts that are likely to be true if not disputed. Typically, such presumptions are based on an underlying logical inference. In some cases, the presumed fact is so likely to betrue and so little likely to be disputed that the law requires it to be assumed in the absence of contrary evidence. In other cases, evidence of the nonexistence of the presumedfact, if there is any, is so much more readily available to the party against whom the presumption operates that he is not permitted to argue that the presumed fact does not exist unless he is willing to produce such evidence. In still other cases, there may be no direct evidence of the existence or nonexistence of the presumedfact; but, because the case mustbe decided, the law requires a determination that the presumedfact exists in light of commonexperience indicating that it usually exists in such cases. Cf. Bohlen, Studies in the Law of Torts 644 (1926). Typical of such presumptions are the presumption that a mailed letter was received (Section 641) and presumptions relating to the authenticity of documents (Sections 643-645). (See Cal. Law Revision Comm., 29B West's Ann. Evid. Code (1995 ed.) foll. § 603, p. 57.) The scope of adverse actions upon which a physician mightbase a Section 1278.5 claim is broad—apparently covering any action that harms his professional or economicinterests. The issue here, however,is limited to the prerequisites for a Section 1278.5 claim whenthe physician basesthe claim on a peer review action. The amendment wasn't even addressedto adverse peer review actions. Early on, the sponsor California Medical Association (“CMA”) enumerated the methods that hospitals can use to suppress physician whistleblowers, such as “[u]nderwriting the salary 10 4732211.6 and/or practice expense of a competing physician”and “[b]uying the medical building with a physician's office and refusing to renew the physician's lease.” (Assem. Com. on Health, Analysis of Assem.Bill No. 632 (2007-2008 Reg. Sess.) as introduced Feb. 21, 2007, pp. 3-4, Exh. | to Request for Judicial Notice (“RIN”); Sen. Judiciary Com., Analysis of Assem.Bill No. 632 (2007-2008 Reg. Sess.) as amended June6, 2007, pp. 6-7, Exh. 2 to RJN.) Adverse peer review action, such as terminating a physician's privileges, was not included. After concerns wereraised about the “unintended consequences” that the legislation might have on peer review, AB 632 was amendedto clarify that the Legislature did not intendto interfere with peer review actions. (Sen. Judiciary Com., Analysis of Assem.Bill No. 632 (2007- 2008 Reg. Sess.) as amended June 6, 2007,pp. 7-8, Exh. 2 to RJN); Sen. Amend. to Assem.Bill No. 632 (2007-2008 Reg. Sess.) July 17, 2007, p. 2, Exh. 3 to RJN.) In particular, subdivision (1) was added, which provides, “Nothing in this section shall be construedto limit the ability ofthe medical staff to carry out its legitimate peer review activities in accordance with Sections 809 to 809.5, inclusive, of the Business and Professions Code.” (§ 1278.5, subd. (1).) Also added was subdivision (h) enabling medicalstaff to seek an injunction “to protect a peer review committee from being required to comply with evidentiary demands on a pending peer review hearing”if the demands “would impedethe peer review process or endangerthe health and safety of patients of the health facility during the peer review process.” (§ 1278.5, subd. (h).) Evenafter these amendments, CMA continuedits support for AB 632, advising the State Assembly membersthat“this bill is not to interfere with legitimate peer review activities.” (Cal. Medical Ass'n, Floor Alert to State Assem. on Assem.Bill No. 632 (2007-2008 Reg.Sess.) Sept. 11, 2007, Exh. 4 to RJN.) 1] 4732211.6 F. The Fourth District Holds that the Judicial Exhaustion Rule Applies Where a Physician Bases a Section 1278.5 Claim on aPeer Review Action In February 2012, Division Twoofthe Fourth District Court of Appeal issuedits opinion in Nesson. The Fourth District held that a physician must exhaust his administrative and judicial remedies before pursuing a claim under Section 1278.5. Dr. Nesson held privileges at a hospital. (Nesson, supra, 204 Cal.App.4th at p. 72.) In 2007,he entered into a service agreement with the hospital, and that agreement required him to maintain hospital privileges. (Id. at p. 73.) A yearlater, he complained aboutthe quality of transcription services at the hospital. (Jbid.) Thetranscriptionists, in turn, complained about him. ([bid.) In 2009, the medical executive committee (“MEC”) summarily suspended hisstaff privileges based on “recent incidents of substandard and dangerouspatient care” and “abrupt change in your behavior characterized by volatile and erratic actions.” (Jd. at pp. 73-74.) The MEC recommendedneuropsychiatric and clinical competency evaluations as part of the summary suspension. (/d. at p. 74.) Shortly after the MEC imposed the summary suspension, the hospital terminated Dr. Nesson's agreement becausehe had not maintained hospital privileges. (Nesson, supra, 204 Cal.App.4th at p. 74.) Dr. Nesson declined to appeal the suspension. (/bid.) Instead, he sought and obtained a six-month leave of absence. (Ibid.) The MEC informed him that he would still have to comply with the evaluation conditions before returning. (Ibid.) Approximately six weekslater, Dr. Nesson sought reappointmentto the medicalstaff. (/d. at p. 75.) He did not prove he had completed the evaluations, however, and his application was denied. (Ubid.) Dr. Nesson suedthe hospital alleging a Section 1278.5 claim. (Nesson, supra, 204 Cal.App.4th at p. 75.) The hospital filed a special 12 4732211.6 motion to strike under the anti-SLAPPstatute, arguing that he had no probability of succeeding on the Section 1278.5 because it was based on peer review actions and he had failed to exhaust his administrative and judicial remedies. (/bid.) Thetrial court granted the motion. (/d. at p. 76.) Dr. Nesson appealed. (/bid.) The Fourth District affirmed. (Nesson, supra, 204 Cal.App.4th at p. 89.) The court conducted an extensive analysis of medical peer review and held that the suspension andthe board's termination of the agreement were peerreview actions, protected activity under the anti-SLAPPstatute. (Nesson, supra, 204 Cal.App.4th at pp. 78-82.) Next, the court analyzed the “steps a physician whoclaimsheis the victim of faulty medical peer review musttaketo rectify the situation, before filing a lawsuit.” (/d. at p. 84.) After discussing Westlake andrelated authorities, the court held that before seeking statutory damages, a physician must exhaust “his administrative and judicial remedies.” (/d.at D. 85.) Because Dr. Nesson failed to exhaust his remedies, he could not demonstrate a reasonable probability of prevailing on his Section 1278.5 claim. (/d. at pp. 85-86.) Dr. Nesson did not seek review and the Fourth District's opinion is now final. G. The Fifth District Holds that the Judicial Exhaustion Rule Does Not Apply Where a Physician Bases a Section 1278.5 Claim on a Peer Review Action Seven monthslater, the Fifth District issued its opinionin this case. Disagreeing with Nesson, the Fifth District held that a physician need not exhaust judicial remedies before pursuing a claim under Section 1278.5. Dr. Fahlen is a nephrologist who was employed by Gould Medical Group (“Gould”) in Modesto, California. (Fahlen, supra, 208 Cal.App.4" at p. 562.) In 2003, he was granted provisionalstaff privileges at Memorial 13 4732211.6 Medical Center (‘Hospital’), a hospital operated by Sutter Central Valley Hospitals. (/bid.) The following year, the Hospital granted Dr. Fahlenstaff privileges. ([bid.) From 2004 through 2008, Dr. Fahlen had a numberofclashes with nurses at the Hospital, and the administration became concerned abouthis conduct. (Fahlen, supra, 208 Cal.App.4" at p. 562.) Dr. Fahlen,in turn, complained about the nursing supervisors. (/bid.) In May 2008, Steve Mitchell, the Hospital's chief operating officer, raised Dr. Fahlen's disruptive conduct with Gould's medical director and Gould terminated Dr. Fahlen's employment. (Jbid.) Since the termination also resulted in the cancellation of his medical malpractice insurance, Dr. Fahlen was unable to continuetreating patients at the Hospital. (/bid.) On May 30, 2008, Dr. Fahlen met with Mitchell to discusshis staff privileges. (Fahlen, supra, 208 Cal.App.4” at p. 562.) According to Dr. Fahlen, Mitchell advised him that he shouldleave Modesto andthat if he did not do so, the Hospital would begin an investigation and peer review that would result in an 805 Report to the Medical Board. (/d. at pp. 562- 563.) Dr. Fahlen informed Mitchell that he intended to open his own practice in Modesto. (/d. at p. 562.) In the meantime, a peer review investigation regarding Dr. Fahlen was underway. (Fahlen, supra, 208 Cal.App.4" at p. 563.) Asa result of the investigation, the Hospital's medical executive committee (““MEC”) recommendedagainst renewal of Dr. Fahlen's medicalstaff privileges. (/bid.) Dr. Fahlen requested a hearing in accordance with the procedures set forth in the medical staff bylaws. (Fahlen, supra, 208 Cal.App.4" at p. 563.) The MECissued a statement of charges describing seventeen incidents in which Dr. Fahlen engagedin disruptive or abusive behavior toward staff between 2004 and 2008 and oneincident of abusive and contentious behavior during a 2008 interview with the MEC's investigative 14 4732211.6 committee. (Ibid.) A Judicial Review Committee (“JRC”) composedofsix physicians conducted an evidentiary hearing. (Fahlen, supra, 208 Cal.App.4” at p. 563.) After the hearing, the JRC concludedthatthe MEC's recommendation not to renew Dr. Fahlen's privileges based on medical disciplinary cause was not warranted. (/bid.) Pursuantto the bylaws, the board of directors made the final decision. (Fahlen, supra, 208 Cal.App.4" at p. 564.) The board foundthat the JRC's decision was not supported by the facts revealed during the hearing. ([bid.) The board overturned the JRC decision and upheld the MEC recommendation. (Jbid.) Dr. Fahlen's privileges were, therefore, terminated. ([bid.) Dr. Fahlen did not pursue mandamusrelief. Instead, he filed a complaint for damages and otherrelief against the Hospital and Mitchell. (Fahlen, supra, 208 Cal.App.4"at pp. 564-565.) He alleged that Defendantsretaliated against him in violation of Section 1278.5. (Ud. at p. 565.) Defendants demurred andfiled a special motion to strike pursuant to the anti-SLAPPstatute as to all but one claim. (/bid.) Thetrial court overruled the demurrer and denied the motion. (/bid.) Defendants appealedthe ruling on the special motion to strike. (/d. at pp. 582-583.) On appeal, Defendants argued that the Hospital's peer review proceedings were covered by the anti-SLAPP statute and Dr. Fahlen could not establish a probability of success on his Section 1278.5 claim because the claim was unexhausted. (Fahlen, supra, 208 Cal.App.4"at pp. 565- 566.) Dr. Fahlen arguedthat termination ofhis staff privileges was not covered by the anti-SLAPP motion and, in any event, by Section 1278.5, the Legislature abrogated the Westlake exhaustion rule. (/d. at pp. 565- 567.) The California Hospital Association filed an amicusbrief in support of Defendants, and the California Medical Association filed an amicusbrief in support of Dr. Fahlen. (/d. at p. 578.) 15 4732211.6 The Fifth District held that the medical peer review proceedings are official proceedings under the anti-SLAPP statute. (Fahlen, supra, 208 Cal.App.4" at p. 572.) The court, however, affirmedthetrial court's denial of the anti-SLAPP motion on the Section 1278.5 claim, holding that a physician need not exhaust his administrative remedies before seeking tort damagesunder Section 1278.5. (Ud. at p. 579.) Asa result, the Hospital and Mitchell were held to answer the Section 1278.5 claim. Defendants' timely petition for review followed. STATEMENT REGARDING REHEARING IN THE COURT OF APPEAL No party sought rehearing in the Court of Appeal. LEGAL DISCUSSION The Court should grant review because, on the exhaustion issue, the appellate districts are split and, on its own,the issue is sufficiently important to hospitals, health care professionals and physicians across California, as well as the publicat large, that this Court's prompt attention is merited. (See Cal. Rules of Court, rule 8.500(b)(1).) And, here, the issue is well framed, making this case an appropriate vehicle for decision. I. REVIEW IS NECESSARY TO SECURE UNIFORMITY OF DECISION “The Supreme Court may order review of a Court ofAppeal ~ decision . .. when necessary to secure uniformity of decision.” (Cal. Rules of Court, rule 8.500(b)(1).) Here, the Fifth District acknowledgedthatits Westlake exhaustion holding created a conflict among the appellate ‘districts. (See Fahlen, supra, 208 Cal.App.4th at p. 574, fn. 6.) This Court should resolve the conflict. The Fourth District's opinion in Nesson and the Fifth District's opinion in this case are, indeed, in conflict. In both cases, a physician lost 16 4732211.6 medicalstaff privileges after peer review. (See Nesson, supra, 204 Cal.App.4th at pp. 74-75; Fahlen, supra, 208 Cal.App.4th at pp. 563-564.) Without exhausting his judicial remedies, the physician brought a Section 1278.5 claim based on allegations that the peer review action was maliciously motivated. (See Nesson, supra, 204 Cal.App.4th at p. 75; Fahlen, supra, 208 Cal.App.4th at pp. 564-565.) The hospital and individual defendants argued that the physician could pursue Section 1278.5 damagesonthe basisthat the peer review action was maliciously motivated onlyifhe first exhausted his judicial remedies. (See Nesson, supra, 204 Cal.App.4th at p. 75; Fahlen, supra, 208 Cal.App.4th at pp. 564-565.) The Fourth District held that the exhaustion rule applied. (Nesson, supra, 204 Cal.App.4th at p. 85.) The Fifth District held that it did not. (Fahlen, supra, 208 Cal.App.4" at p. 579.) A side-by-side comparison of the holdings makesplain the conflict: Where a physician seeks damages under Section1278.5 based onallegations that a peer review action was maliciously motivated must he first exhaust his judicial remedies? Nesson Fahlen Yes. A physician must exhaust his No. A physician need not exhaust judicial remedies before pursuing his judicial remedies before seeking damages under Section 1278.5 on damages under Section 1278.5, even the basis that a peer review action if his claim is that a peer review was maliciously motivated. action was maliciously motivated. (Nesson, supra, 204 Cal.App.4th at (Fahlen, supra, 208 Cal.App.4" at p. p. 85.) 579.) The Fifth District suggests that the conflict may be illusory. (Fahlen, supra, 208 Cal.App.4th at p. 574,fn. 6.) But the conflict is real. First, the Fifth District claims that Nesson's holding may be disregarded because “[the Fourth District] did not separately consider or analyze the requirement for exhaustion ofjudicial remedies with respect to Nesson's 17 4732211.6 section 1278.5 cause of action.” (See ibid.). But the Fourth District makes express reference to Dr. Nesson's statutory tort claims, including his claimed “violation of Health and Safety Code section 1278.5” and properly characterizes the statutory claims, including “Nesson's retaliation [claim]” as asserting that “the Hospital somehow acted wrongfully” whenit terminated the agreementin reliance on the MEC's suspension ofhisstaff privileges. (Nesson, supra, 204 Cal.App.4th at pp. 75, 83.) The fact that the Fourth District did not parse Section 1278.5 does not provethat the court wascareless; instead, it suggests that the court (and the parties) did not see anything in Section 1278.5 that compelled abrogation ofthe exhaustionrule. Second,the Fifth District suggests that Nesson's judicial exhaustion holding is dicta because Dr. Nessonfailed to exhaust both his administrative and judicial remedies and the administrative exhaustion holding is enough to support the judgment. (See Fahlen, supra, 208 Cal.App.4th at p. 574, fn. 6.) But the Fourth District clearly held that failing to exhaust administrative or judicial remedies bars pursuit of damages. (Nesson, supra,204Cal.App.4th at pp. 78, 84-86.) Third andfinally, while the Fifth District believes that the Fourth District's analysis was not sufficiently “dee[p]” (Fahlen, supra, 208 Cal.App.4th at p. 574, fn. 6),” it remainstrue that the courts' exhaustion ? The Fifth District's opinion is vulnerable to the samecriticism. For example,the court reviews Section 1278.5 to determine whether the Legislature "implicit[ly]" abrogated the Westlake rule (see Fahlen, supra, 208 Cal.App.4th at pp. 577-578) when the standardis that the long- established judicial exhaustion rule applies unless abrogation is express or necessarily implied (see Torres, supra, 15 Cal.4th at p. 779; Campbell, supra, 35 Cal.4th at p. 328). The court applies the analysis in State Board ofChiropractic Examiners v. Superior Court (Arbuckle) (2009) 45 Cal.4th 963 (Arbuckle) and Runyon v. Board ofTrustees ofthe California State (footnote continued) 18 4732211.6 holdings are in conflict. (Compare Fahlen, supra, 208 Cal.App.4"at p. 579 with Nesson, supra, 204 Cal.App.4th at p. 85.) At this point, the issue is only whether the published decisionsare in equipoise. They are not. Nesson standsfor the proposition that a physician must exhaust judicial remedies before pursuing Section 1278.5 relief based on a peer review action and Fahlen stands for the opposite. This conflict will likely lead to confusion and inconsistent judgments. (See McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4 (McCallum) [where decision from intermediate appellate court in conflict, courts free to choose between holdings].) Review is necessary to secure uniformity of decision. Il. REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW Evenifthe appellate holdings on the issue were consistent—and they aren't—theissueis sufficiently important to merit review. (See Cal. Rules of Court, rule 8.500(b)(1).) The exhaustion issue implicates University (2010) 48 Cal.4th 760 (Runyon). (See Fahlen, supra, 208 Cal.App.4th at pp. 573-577.) But, in those cases, the issue was whether by requiring whistleblowers to documentretaliation in an administrative claim priorto filing suit, the Legislature intended to create administrative and judicial exhaustion rules. (See Arbuckle, supra, 45 Cal.4th at pp. 971-976; Runyon, supra, 48 Cal.4th at pp. 767-774), whereas here the exhaustion rule is well established and the issue is whether the Legislature abrogated the rule expressly or by necessary implication. And, the court gives no consideration to the constitutional implications ofits abrogation holding: If Section 1278.5 abrogates the Westlake rule andthe related qualified immunity for hospitals and officials, how is Section 1278.5 reconciled with federal law that confers immunity for hospitals and professionals participating in peer review. (42 U.S.C. § 11111(a)(1), (a)(2) [professional review bodies immune for damages for professional review actions]; see 42 U.S.C. § 11151(11), (4)(A) [professional review body includes hospital].) 19 4732211.6 important public interests and its resolution is of profound importance to hospitals, health care professionals, and physicians across California. In California, medical peer review, including peer review related to privilege actions, “is essential to preserving the highest standards of medical practice.” (See Bus. & Prof. Code, § 809, subd. (a)(3).) A mandamusproceeding is part of the medical peer review process. (Bus. & Prof. Code, § 809.4, subd. (a)(1).) And, the judicial exhaustionrule is essential to the workings of medical peer review. As this Court recognizes, requiring a physician to exhaust his judicial remediesprior to seeking damages based on aclaim that a peer review action was maliciously motivated promotes deference to expert and professional judgment; supportsthe integrity ofthe peer review process; promotes judicial economy and extends “a justified measure of protection”to hospitals and professionals, including physicians, who volunteertheir time and expertise for the difficult task ofjudging their colleagues in order to ensure quality care. (Westlake, supra, 17 Cal.3d at pp. 476, 484; see also Kibler, supra, 39 Cal.4th at pp. 199-200.) Thejudicial exhaustion ruleis the result ofa unanimousruling of this Court. If it is to be undone,then that decision should come from this — Court. If hospitals and professionals are now exposedto endless discovery, public trial and substantialliability, if responsibility for the medical peer review process nowrests with juries, ifjudicial economy mustbeforfeited, then such consequencesare important enough to warrant this Court's attention. Indeed, this Court often takes note when a common-law issue affects such diverse and important public interests. This case should not be an exception. This case, in fact, is an even-more compelling candidate for review becausethe finding that Section 1278.5 abrogates the judicial exhaustion rule is based on not an expresslegislative statement, but the Fifth District's 20 4732211.6 view that the Legislature “implicit[ly]” abrogated the rule. (See Fahlen, supra, 208 Cal.App.4th at pp. 577-578.) Appellants submit that the expresslegislative statements favor non-abrogation and that the Fifth District's analysis of Section 1278.5 was incomplete. (See § 1278.5, subd. (1) [Nothing in [Section 1278.5] shall be construedto limit the ability of the medical staff to carry out its legitimate peer review activities in accordance with [law].”’].) But if, as the Fifth District held, Section 1278.5 has such a profound effect on the commonlaw ofhealth care in California, then the analysis leading to that pronouncementshould be based onall of Section 1278.5, should betheresult of a careful construction of the statute, and should come from this Court, the original source of the Westlakerule. Dr. Fahlen may contendthat the Fifth District's holding is only a minor narrowing of Westlake and that Westlake remains goodlaw inall circumstances other than where a physician challenges a peer review action based onallegations of retaliatory motive. First, Westlakeitself clearly encompassed claimsofretaliation—in the Court's words, “tort action[s] against either the hospital or its board or committee members on the ground that the revocation of [the doctor's] hospital privileges was maliciously motivated.” (Westlake, supra, 17 Cal.3d at p. 482.) Thus, the Fifth District's holding strikes at the heart of Westlake. Second, to createan exception for complaint-based retaliation is to obliterate the rule. Retaliation claims are easy to allege and hard to overcomeshort oftrial. (See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr. (9th Cir. 2008) 521 F.3d 1097, 1105 [allegations of complaint and adverseaction sufficient].) Thus, a physician facing a peer review investigation need only lodge a complaint. In the event of an adverse outcome, he can pursue a tort action — for retaliation, thereby bypassing deferential judicial review and transferring quality-of-care decisions from informed experts to juries. Indeed, attorneys who representphysicians have opined that it could be 21 4732211.6 malpractice not to advise clients to position themselves toallege retaliation claims. Givenits far-reaching consequences, the Fifth District's holding amounts not to a narrowing, but a wholesale nullification of the Westlake judicial exhaustion rule. © This Court's decision in this case will help resolve whether, by Section 1278.5, the Legislature meant for hospitals and health care professionals, including physicians whoparticipate in peer review, to be liable for damagesonthe basis of a peer review action evenifthat proceeding wasfair and the outcome wasjustified. If the answeris yes, then the Court's decision will help resolve the circumstances under which such liability can be found. These are questions ofparamount importance to all California hospitals, health care professionals and physicians, as well as thepublic at large. Ill. THIS CASE IS A PROPER VEHICLE FOR REVIEWING THE EXHAUSTIONISSUE The Court should grant review in this case becausethe issue is well presented andthe other available responses, such as depublication or allowing the conflict to stand, will yield undesirable consequences. A. _ The Issue Is Squarely Presented This case affords the Court an ideal opportunity to consider the judicial exhaustion question because the issue is at the heart of the case, the record is sufficient and uncomplicated, and the parties have demonstrated their ability to identify and develop the relevant legal andpolicy issues. The legal issue is well framed. Withoutfirst seeking mandamus relief, Dr. Fahlen filed a civil action that included a Section 1278.5 claim for alleged retaliation based on his complaints aboutnursingstaff. Defendants movedto strike the retaliation claim because Dr. Fahlen failed 22 4732211.6 to exhaust his administrative remedies. Dr. Fahlen arguedthat, by Section 1278.5, the Legislature abrogated the Westlake rule. Thetrial court denied the motion; the Fifth District affirmed, holding that as to complaint-based retaliation claims, Westlake is no longer good law. Under Section 1278.5, a physician could pursue damages from a jury without first obtaining mandamusrelief. Only monthsearlier, the Fourth District issued a published opinion holding otherwise. Now,the Court has beforeit an ideal vehicle for deciding whether, by Section 1278.5, the Legislature substantially undid Westlake's judicial exhaustion rule. B. Depublication Would Put the Hospital at a Substantial Disadvantage; Allowing the Conflict to Stand Would Create Uncertainty in the Medical Field The Court could secure uniformity of decision by depublishing the Fifth District's opinion. But depublication would be inequitable andit would likely be only a short-term solution. Alternatively, the Court could allow the conflict to stand, but such action would likely result in | inconsistent judgments. Depublication would be inequitable because it would put the - Hospital andits officials at a disadvantage. Relying on Nesson,all other California hospitals and their staffs could continue to pursue quality-of-care objectives and manageliability without the threat that a doctor will be able to bypass mandamusreview, sue for tort damages, and transfer decision making from professionals to juries. Care decisions at the Hospital, however, will have to be informedby therisk that those decisions will be reviewed not by professionals and courts applying deferential mandamus standards, but by juries with broad discretion to second-guess decisions and to impose devastating judgments. Professionals and physicians would 23 4732211.6 likely decline involvement in peer review actions, compromising the Hospital's operations. Additionally, depublication would likely be only a short-term fix. The bar is well aware of the Fifth District's analysis and holding in Fahlen. Physicians subjected to adverse peer review actions will likely continueto press for adoption of the Fahlen analysis and holding. It is very likely that a conflict will again surface, leaving the public,litigants and the bench in the same position they are in today. | Alternatively, the Court could allow the conflict to stand. But this approach would create great uncertainty among hospitals, among medical professionals and, perhaps most important, among physicians who must decide whetherto participate in peer review. It would also likely lead to inconsistent judgments, some courts following Nesson and others following -Fahlen. (See McCallum, supra, 190 Cal.App.3d at p. 315, fn. 4 [courts may choose between conflicting holdings].) These consequences are avoidable and should be avoided. IV. THE COURT SHOULD STAY SUPERIOR COURT PROCEEDINGS PENDINGFINAL DISPOSITION OF THE INSTANT PETITION FOR REVIEW The Hospital and Mitchell respectfully request that this Court stay superior court proceedings pending final disposition of the instant petition for review. Absent such stay, the Hospital and Mitchell will likely suffer undue burden and the superior court will be drawn into proceedingsthat may prove entirely unnecessary. | Dr. Fahlen has already pressed the Hospital and Mitchell to identify and produce voluminousrecords andrespond to interrogatories. (See 24 4732211.6 Declaration of Glenda M. Zarbock in Support of Requestfor Stay, {{] 3-4.) Surely, more requests are forthcoming, including subpoenasand deposition notices. Given the history ofthe case, it is likely that the parties will involve the superior court in substantial motions practice. The burdensome discovery and motions practice may be for naught if this Court grants review. A stay will also preserve the policy objectives of the anti-SLAPP statute and the judicial exhaustion rule. Both the statute and the rule allow the parties and the courts to cut short harassing lawsuits. If the Hospital and Mitchell are subject to ranging discovery and broad motionspractice, then the purpose behind the statute andtherule will be frustrated. Giventhe likelihood ofprejudice absenta stay, the Court should stay the underlying action until proceedings onthis petition have cometo an end. CONCLUSION The Hospital and Mitchell respectfully request that the Court grant review to resolve the conflict among the appellate districts on the important issue whether, by Section 1278.5, the Legislature intended to displace the Westlake judicial exhaustion rule and allow a physician alleging that a peer- review action was maliciously motivated to seek damages withoutfirst securing mandamusrelief. Appellants further request that this Court stay > The Declaration of Glenda M. Zarbock in Support of Request for Stayis attached as Exhibit "B." 25 4732211.6 proceedings in the Superior Court pending disposition of the instantpetition for review. DATED:September, 2012 HANSON BRIDGETT LLP (Appell SUTTER CENTRAL VALLEY HOSPITALSand STEVE MITCHELL 26 4732211.6 WORD CERTIFICATION I, Joseph M. Quinn, counsel for SUTTER CENTRAL VALLEY HOSPITALS and STEVE MITCHELL,hereby certify, in reliance on a word count by Microsoft Word, the program used to prepare the foregoing Petition for Review, that it contains 7,373 words, including footnotes (and excluding caption, certificate of interested entities or persons, tables, signature block, and this certification). Dated: September ZY , 2012 27 473221.1.6 LexisNexis” Page 1 MARKT. FAHLEN,Plaintiff and Respondent, v. SUTTER CENTRAL VALLEY HOSPITALSet al., Defendants and Appellants. F063023 COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT 208 Cal. App. 4th 557; 2012 Cal. App. LEXIS 877 August 14, 2012, Opinion Filed PRIOR HISTORY: [**1] APPEAL from a judgment of the Superior Court of Stanislaus County, No. 662696, Timothy W. Salter, Judge. Safari vy. Kaiser Found. Health Plan, 2012 U.S, Dist. LEXIS 98388 (N.D. Cal., July 16, 2012) SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY A doctor sued a hospital alleging, among other things, that he lost his hospital privileges as a form of whistleblowerretaliation (Health & Saf. Code, § 1278.5). The trial court denied the hospital's motion to strike un- der Code Civ. Proc., § 425.16, the anti-SLAPPstatute. (Superior Court of Stanislaus County, No. 662696, Tim- othy W. Salter, Judge.) The Court of Appeal affirmed the denial of the an- ti-SLAPP motion with respect to causes of action for retaliation under Health & Saf Code, § 1278.5, and in- tentional interference with contractual relations, and seeking a declaratory judgment pursuant to Bus. & Prof. Code, § 803.1]. The court reversed as to the remaining causes of action. The anti-SLAPP motion was properly denied as to the whistleblowerretaliation claim because that claim would not be defeated on the merits by the doctor's failure to pursue writ relief. There is no re- quirement that a § /278.5 plaintiff seek judicial review of administrative action taken in peer review proceedings under Bus. & Prof Code, §§ 809-809.9, as a precondi- tion to a civil action under § /278.5. The doctor's failure to pursue writ relief also did not bar his claim under Bus. & Prof, Code, § 803.1, for declaratory judgment con- cerning bad faith in the peer review process. In the cur- rent case, the allegation was not a separate cause of ac- tion but could result in additional relief under § 1278.5. However, neither judicial economy nor fundamental fairness required an exception from the requirement for exhaustion of judicial remedies as to claims of interfer- ence with the right to practice an occupation, interference with prospective advantage,retaliation for advocating for appropriate patient care, or wrongful termination ofhos- pital privileges. Those claims were barred. (Opinion by Wiseman, Acting P. J., with Cornell and Detjen, JJ., concurring.) [*558] HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES (1) Pleading § 93--Anti-SLAPP Motions--Protected Activities--Scope.--Although Code Civ. Proc., § 425.16, subd. (b)(1), states that the statute is intended to protect only those persons who are sued because of any act of that person in furtherance of the person's rightof petition or free speech in connection with a public issue, the'stat- ute subsequently defines that phrase in-a mannerspecific to § 425.16, the anti-SLAPP statute. Section 425.16, subd. (e)(2), includes within that phrase any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, ex- ecutive, or judicial body, or any otherofficial proceeding authorized by law. As a result, a defendant who invokes subparagraph (2) need not separately demonstrate that the statement concerned an issue of public significance. (2) Pleading § 93--Anti-SLAPP Motions--Protected Activities--Hospital Peer Review--Governing Board.--Actions of a peer review committee are state- ments made in connection with an issue under considera- Page 2 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** tion or review by any, other official proceeding author- ized by law, as provided by Code Civ. Proc., § 425.16, subd. (e)(2). The statements or writings of a hospital's governing board in reviewing a determination on medical staff privileges, and in making a final decision on such termination or nonrenewal of such privileges, are also made‘in connection with an issue under consideration or review in an official proceeding authorized by law (Code Civ. Proc., § 425.16, subd. (e)(2)). (3) Healing Arts and Institutions § 47.6--Physicians--Tort Claims Arising from Adminis- trative Actions--Exhaustion of Judicial Reme- dies--Retaliation.--A doctor must exhaust all available administrative remedies and successfully set aside a hos- pital's final administrative determination through man- damus review before the doctor may pursue tort claim against defendants. Under the doctrine of exhaustion of judicial remedies, once an administrative decision has been issued, provided that decision is of a sufficiently judicial character to support collateral estoppel, respect for the administrative decisionmaking process requires that the prospective plaintiff continue that process to completion, including exhausting any available judicial avenuesfor reversal of adverse findings.Failure to do so will result in any quasi-judicial administrative findings achieving binding, preclusive effect and may bar further relief on the same claims. Generally speaking, if a com- plainant fails to overturn an adverse administrative deci- sion by writ of mandate, and if the administrative pro- ceeding possessed the requisite judicial [*559] char- acter, the administrative decision is binding in a later civil action brought in superior court. In some circum- stances, however, a quasi-judicial proceeding is alleged by a plaintiff not to be a vehicle for administrative reso- lution of an administrative grievance, but is alleged to be, or to be a part of, a retaliatory action itself. This retalia- tion cannot be resolved within the administrative griev- ance process whenthe processitself provides the forum for retaliation, it is argued, and such an administrative proceeding is not entitled to the deference traditionally afforded by the standard of review in administrative mandate cases. In these circumstances, the Legislature may recognize, explicitly or by implication, that the ad- ministrative decision in question should not be given preclusive effect in later judicial proceedings, even when the administrative decision has not been set aside through administrative mandate proceedings. When the Legislature has made this type of determination, the courts will not require exhaustion of judicial remedies in the administrative proceeding. The court may find a leg- islative intent not to require exhaustion of writ remedies when the Legislature has expressly acknowledged the existence of the parallel administrative remedy, yet did not require that the administrative findings be set aside by way of a mandate action. (4) Healing Arts and Institutions § 47.6--Physicians--Tort Claims Arising from Adminis- trative Actions--Exhaustion of Judicial Reme- dies--Retaliation--Whistleblowers--Anti-SLAPP Mo- tions.--There is no requirement that a whistleblower plaintiff under Health & Saf. Code, § 1278.5, seek judi- cial review of administrative action taken in peer review proceedings as a precondition to a civil action under § 1278.5. Therefore, a doctor's failure to seek mandamus review did not render improbable his success on a § 1278.5 claim, and the hospital's anti-SLAPP motion was properly denied. [Cal. Forms of Pleading and Practice (2012) ch. 295, Hospitals, § 295.13.] (5) Employer and Employee § 9--Wrongful Dis- charge--Retaliation.--A retaliation lawsuit is not an action to review the decision of an administrative deci- sion maker, but a completely separate damagesaction in the superior court in which the employee will enjoy all the procedural guarantees and independent factfinding that generally accompany suchactions. [*560] (6) Healing Arts and Institutions § 22--Physicians--Peer Review—Bad Faith--Actions.--Bus. & Prof. Code, § 803.1, subd. (b)(6), does not rely upon somehow convincing a court in a writ proceeding that an administrative peer review decision. was in bad faith, when the good faith or bad faith of the administrative decision maker is not an issue in the writ proceeding. COUNSEL: Arent Fox, Lowell C. Brown, Debra J. Al- bin-Riley and Jonathan E. Phillips for Defendants and Appellants. Jana N. DuBois; Davis Wright Tremaine and Terri D. Keville for California Hospital Association as Amicus Curiae on behalf ofDefendants and Appellants. Stephen D. Schear; Justice First and Jenny Huang for Plaintiff and Respondent. Francisco J. Silva and Long X. Do for California Medi- cal Association as Amicus Curiae on behalf of Plaintiff and Respondent. JUDGES: Opinion by Wiseman, Acting P. J., with Cor- nell and Detjen, JJ., concurring. OPINIONBY: Wiseman Page 3 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** OPINION WISEMAN,Acting P. J.--Health and Safety Code section 1278.5! is a whistleblower protection law de- signed to encourage health care workersto notify author- ities of "suspected unsafe patient care and conditions.” (§ 1278.5, subd. (a).) One of the issues we must decide is whether a doctor claiming he lost his hospital privileges as a form of whistleblowerretaliation must exhaust his judicial remedy of pursuing review, via writ of mandate, of the hospital's action before he can file a whistleblower lawsuit under section 1278.5. A section 1278.5 [**2] claim cannotbe asserted in writ proceedings, so applying the exhaustion requirement would delay relief for a whistleblower. 1 Subsequent statutory references are to the Health and Safety Code unless noted otherwise. In two recent cases interpreting the California Whis- tleblower Protection Act (Gov. Code, § 8547 et seq.), the California Supreme Court held that a state employee sanctioned by an agency need notfile a mandatepetition against the agency before suing it under the whistle- blower statute. The court recognized the Legislature's intent to encourage employeesto report threats to public health without fear of retribution. (Runyon v. Board of Trustees of [*561] California State University (2010) 48 Cal.4th 760, 763, 774 [108 Cal. Rptr. 3d 557, 229 P.3d 985]; State Bd. of Chiropractic Examiners v. Supe- rior Court (2009) 45 Cal.4th 963, 977-978 [89 Cal. Rptr. 3d 576, 201 P.3d 457].) For the same reason,prior filing of writ proceedings also is not required here. Dr. Mark T. Fahlen reported to hospital authorities that some nurses who worked with him at Memorial Medical Center failed to follow his instructions. In some instances, he believed the nurses endangered patients’ lives. One nurse refused to follow Fahlen's order to shock a patient with defibrillator paddies. [**3] Anoth- er disobeyed Fahlen's orderto transfer a patient to inten- sive care. Some of these incidents involved heated ex- changes between Fahlen and the nurses, and complaints were made about Fahlen's behavior as well. The hospital's chief operating officer allegedly blamed Fahlen and helped persuade Fahlen's medical - group to fire him. The hospital then declined to renew Fahlen's staff privileges. A judicial review committee of six physicians reviewed the nonrenewal of Fahlen’s staff privileges. It found no professional incompetence and reversed the decision. The hospital board oftrustees then reversed the committee. The board found that Fahlen’s conduct was not acceptable and was "directly related to the quality of medical care at the Hospital.” This out- come wasreported to the Medical Board of California. Fahlen did ‘notfile a petition for a writ of mandate chal- lenging the decision. Instead, he filed this lawsuit, as- serting a section 1278.5 claim amongothers. This appeal is from an order denying the hospital's anti-SLAPP motion. (Code Civ. Proc., § 425.16.) The crucial issue is presented by the.hospital's contention that the motion should have been granted because Fahlen's whistleblower [**4] claim will be defeated on the mer- its due to his failure to pursue writ relief. In light of our holding on the exhaustion issue, we reject that conten- tion. We conclude the trial court correctly denied the motion with respect to the section 1278.5 cause of action and one other. As to the remaining causes of action, however, we must reverse, because the exhaustion re- quirementdoesapply to them. The Legislature's intent in enacting section 1278.5 is clear: Medical personnel must be protected from retalia- tion when they report conditions that endangerpatients. This policy of putting patients first would be undermined if retaliation victims had to pursue writ review before seeking the statute's protection. This case illustrates whythis is true. Fahlen reported what he thought were serious threats to patient safety. The hospital expelled him. A committee of his peers found that he should retain his staff privileges, but the hospital [*562] persisted. If we accepted the hospital's argumentin this case, Fahlen could have to spend years pursuing writ relief before being able even to assert his whistleblower claim in court. This type of delay is in- compatible with the Legislature's goals. FACTUALAND _[**5]|_ PROCEDURAL HISTORIES Plaintiff and respondent Mark T. Fahlen is a neph- rologist, a physician specializing in the treatmentof dis- eases of the kidneys. Prior to June 2008, he was em- ployed by Gould Medical Group (Gould). Fahlen was granted provisional staff privileges at Memorial Medical Center (MMC) in 2003 and was granted. medical staff privileges at MMC in September 2004. MMCis operated by defendant and appellant Sutter Central Valley Hospi- tals. Twice in 2004 and twice in 2006, Fahlen argued with nurses who failed to follow his directions concern- ing the care and treatment of patients. Between August 16, 2007, and April 28, 2008, there were six other inci- dents in which Fahlen had negative interactions with particular nurses providing care to Fahlen’s patients. On many of these occasions, Fahlen reported the substand- ard or insubordinate nursing activity to nursing supervi- sors or by written complaint to MMC administration. Around the beginning of May 2008,after the last of Fahlen's negative interactions with nursing staff, de- fendant and appellant Steve Mitchell, MMC's chief oper- Page 4 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** ating officer, contacted Gould's medical director with information concerning Fahlen's interactions with MMC's [**6] nursing staff. Mitchell testified at the peer review hearing that he contacted Gould's director in the hope that the director would meet with Fahlen, that Fahlen would become angry during the meeting, and that Gould would terminate Fahlen's employment asa result of the director's "own personal experiences” in such a meeting. Mitchell said his hope was that if Fahlen were fired by Gould he would leave town, with the net effect being to eliminate the need for peer review proceedings by MMC's medical staff. "Or at least that is my plan,” Mitchell wrote in an earlier e-mail to MMC'schief exec- utive officer. Gould terminated Fahlen's at-will employment con- tract on May 14, 2008. Since the termination also result- ed in the cancellation of Fahlen's medical malpractice insurance, Fahlen was immediately unable to continue treating patients at MMC. On May 30, 2008, Fahlen met with Mitchell to determine the status of Fahlen's staff privileges at MMC, because Fahlen intended to open a private medical practice in Modesto. At that meeting, according to Fahlen, Mitchell advised Fahlen that he should leave Modesto and that if he did not do so, MMC would begin an investigation and peer review that would [**7] result in a report of disciplinary proceedingsto the Medical Board of [*563] California. Fahlen advised Mitchell that he intended to stay in town. Ten dayslater, MMCmadea written request to Fahlen that he provide information concerning his interactions with nurses on five occasions, beginning in December 2007. Fahlen provided a written response dated June 10, 2008. Three days prior to this meeting, after Fahlen had scheduledthe meeting with Mitchell, Mitchell sent an e-mail to MMC's chief executive officer stating that Fahlen "does not get it"--that is, as Mitchell testified, that Fahlen was going to lose his staff privileges at MMC. The chief executive officer responded: "Looks like we need to have the Medical Staff take some action on his MedQuals!!! Soon!" MMCappointed an investigative committee, which reported to the medical executive committee (MEC)at its meeting on August 11, 2008. MEC is charged under the bylaws of MMC's medicalstaff with the review of applications for staff privileges at MMCandfor the ini- tiation of corrective or disciplinary action against medi- cal staff. At the August 11, 2008, meeting, MEC recom- mended that MMCnot renew Fahlen's staff privileges. MECnotified [**8] Fahlen of its decision, and of his right to contest that decision, ‘by letter dated August 28, 2008. Fahlen responded by letter from his attorney, requesting a hearing. By letter dated October 2, 2008, MMCadvised Fahlen that the review hearing would be conducted by a judicial review committee (JRC) in ac- cordance with the procedures contained in the bylaws. The letter also included a statement of charges against Fahlen, including 17 incidents of disruptive or abusive behavior toward MMC staff occurring from 2004 through 2008, and one incident of "abusive and conten- tious behavior" during a 2008 interview with the MEC's appointed investigative committee. The JRC, composed of six physicians with staff privileges at MMC, and with an attorney as hearing of- ficer, conducted an evidentiary hearing on the proposed termination of Fahlen's staff privileges over 13 sessions between October 8, 2009, and May 24, 2010. By written findings and conclusions unanimously adopted and is- sued on June 14, 2010, the JRC concluded that MEC "did not sustain its burden of proving that its recommen- dation not to reappoint Dr. Fahlen to the Medical Staff of Memorial Medical Center for medical disciplinary cause [**9] or reason is reasonable and warranted." The JRC found that Fahlen's “interaction with the nursing staff at Memorial Medical Center was inappro- priate and not acceptable" "on several occasions." In essence, the JRC concluded the medical staff should have intervened earlier with Fahlen, but failed in its re- sponsibility to do so, leaving the matter to the adminis- trators of MMC. MMC,in turn, delegated the primary responsibility for investigation of the matter to an outside attorney, whose investigative report, though highly in- fluential with MEC,failed to [*564] consider other options, such as counseling. As a result, MEC failed to consider "intermediate steps short of recommending loss of Medical Staff privileges ... ." The JRC concluded that the evidence before it did "not establish any professional incompetence on the part of [Fahlen]." Similarly, the evidence did "not establish that any behavior of [Fahlen] was, or is, reasonably likely to be detrimental to patient safety." Further, after MEC recommended termination of privileges, Fahlen "voluntarily obtained psychological counseling and attended anger managementsessions." Fahlen's behavior "has appreciably improved." To the extent the evidence [**10] indicated that, prior to the MEC recommendation, anyone's conduct was "“detri- mentalto the delivery ofpatient care, the nursingstaff ... was more to blame for such conduct than was [Fahlen].” The JRC reversed the MEC decision not to reappoin Fahlen to the MMC medicalstaff. Pursuant to the medical staff bylaws, the final deci- sion on termination of medical staff privileges rests with the MMCboardoftrustees. The board determined that it "need{ed] the JRC's assistance" in fulfilling its duties under the bylaws and, by letter dated September 16, 2010, propounded 21 questions, with subsidiary parts, to the JRC, asking whether each alleged incident of mis- conduct occurred, what findings the JRC made with re- spect to the individual charge, and "[w]hat evidence Page 5 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** producedat the hearing was considered in making those findings of fact?" The board requested the JRC's re- sponse within 30 days. The JRC met and considered the board's request. It determined that answering the board's questions would require its members to read the entire transcript of the proceedings, together with the documentary evidence, and that the request was unreasonable. As a result, the JRC advised the board that "the Board [**11] will have to proceed on thebasisofall the materials available to it at this time, including the Findings of Fact and Conclu- sion that was previously rendered by the Judicial Review Committee.” In a lengthyletter to Fahlen's attorneys from MMC's chief executive officer dated January 7, 2011, the board conveyed its decision "to reverse the JRC's decision and not to reappoint [Fahlen] to the medical staff." The board wascritical of the JRC's findings and conclusions, which the board characterized as "unlinked to any factual sup- port in the hearing record.” In summary, the board con- cluded from its own review of the evidence at the JRC hearing that Fahlen's conduct "was inappropriate and not acceptable, [and was] directly related to. the quality of medical care at the Hospital." Fahlen did not seek judi- cial review of this determination. MMC subsequently filed a report of disciplinary action with the Medical Board of California. On March 9, 2011, Fahlen filed a complaint for damages and injunctive and declaratory relief against Sutter Central Valley Hospitals and Steve [*565] Mitchell. The first cause of action alleged retaliation in violation of section 1278.5, which prohibits any health facility [**12] from retaliating against, among others, members of its medical staff because the member has presented a complaint or report concerning quality of care, services, or conditions at the facility. (See § 1278.5, subd. (b)(1).) The. second cause of action requested a declaratory judgment "pursuant to ... Business and Pro- fessions Code Section 803.1."? The third cause of action is for interference with the right to practice an occupa- tion. The fourth cause of action is for intentional inter- ference with Fahlen's contractual relations with Gould.’ The fifth cause of actionis for interference with prospec- tive advantage, including loss of reputation and loss of the directorship of the Merced dialysis center. The sixth cause of actionis forretaliation against Fahlen for "ad- vocat[ing] for appropriate care for [his] patients,” in vio- lation of Business and Professions Code sections 510 and 2056. The seventh cause ofaction is for wrongful termination of Fahlen's hospital privileges. Along with damagesand declaratory relief, Fahlen sought an injunc- tion ordering his reinstatement to the medical ‘staff of MMC. 2 Business and Professions Code section 803.1 provides that the Medical Board of California {**13] shall disclose to "an inquiring member of the public" (id, subd. (b)) "[aJny summaries of hospital disciplinary actions that result in the ter- mination or revocation ofa licensee's staff privi- leges for medical disciplinary cause or reason, unless a court finds, in a final judgment, that the peer review resulting in the disciplinary action was conducted in bad faith and the licensee noti- fies the board of that finding ..." Cd, subd. (b)(6)). 3. While defendants’ opening brief states that defendants seek reversal of the anti-SLAPP order "in its entirety," in their summary of the proceed- ings in the lower court, defendants concede that the fourth cause of action is "not subject to the anti-SLAPP Motion and this subsequent appeal.” Defendants demurred to the complaint and filed an anti-SLAPP motion. After extensive briefing and sub- mission of evidence, the court overruled the demurrer and denied the anti-SLAPP motion. With respect to the order on the anti-SLAPP motion, the court concluded that Fahlen's causes of action did not arise from "pro- tected activity" as described in Code of Civil Procedure section 425.16 because "disciplinary action is not pro- tected activity.” In addition, the [**14] court concluded, "plaintiff has ‘established a prima facie case that he will prevail on the merits," requiring denial of the motion under Code of Civil Procedure section 425.16, subdivi- sion (b)(1). DISCUSSION I. The parties’ contentions The parties make several overarching arguments. Defendants' primary arguments are: First, that all of Fahlen's causes of action arise from protected activity as contemplated by Code of Civil Procedure section 425.16 since the California Supreme Court has held that hospital peer review proceedings are [*566] official proceed- ings authorized by law. (See Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203. [46 Cal. Rptr. 3d 41, 138 P.3d 193] (Kibler) [construing Code Civ. Proc., § 425.16, subd. (e)(2)].) As result, the trial court's first basis for denying the motion was erro- neous. Second, that Fahlen's failure to seek judicial re- view of the MMCboard's final administrative decision makesthat determination final and precludes, as a matter of fundamental jurisdiction, an attack on that decision in collateral judicial proceedings pursuant to Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 485-486 [131 Cal. Rptr. 90, 551 P.2d 410] (Westlake). Defendants argue there is no possibility Page 6 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877,** [**15] Fahlen can prevail on any of the six causes of action challenged on appeal. Fahlen contends, primarily, that his first cause of ac- tion for retaliation under section 1278.5 is not precluded by his failure to obtain judicial review of the MMC board's termination decision. In addition, he takes the position that he was not required to obtain judicial re- view because the peer review proceedings were pre- textual; the result was unsupported by the evidence and conflicted with the JRC's findings. Finally, he argues he should be permitted to pursue the second through sev- enth causes ofaction even if those causes ofaction might otherwise require exhaustion of judicial review. This is because requiring exhaustion would compel him to split the remedies available for remediation of a single pri- mary right, namely, the right to practice his profession "without facing unlawful retaliation or other wrongful interference." We review an order granting or denying an an- ti-SLAPP motion de novo. (Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 52 [117 Cal. Rptr. 3d 805].) Il. The statutoryframework This case involves two statutory provisions that are not inherently contradictory, since both provisions ulti- mately seek [**16] to protect and improvepatient care. The parties, however, assert these statutory rights in a mannerthat conflicts with aspects of the opposing party's asserted statutory rights. To some extent, the statutes anticipate the type of conflicting assertion of rights pre- sented in this case and they attempt to resolve the con- flict. (See Bus. & Prof, Code, § 809.05, subd. (d); Health & Saf. Code, § 1278.5, subd. (h).) We begin with a summaryofthe relevant statutes. A. Section 1278.5 Section 1278.5 was enacted in 1999 to prohibit cer- tain forms ofretaliation and discrimination against pa- tients and employees of health facilities. (See Stats. 1999, ch. 155, § 1, p. 2054.) The definition of a health facility includes [*567] .a hospital. (See § 1250, subd. (a).) In 2007, section 1278.5 was amended to include amongthoseprotected from retaliation or discrimination any "member of the medical staff ... or any other health care worker of the health facility .. ." (§ 1278.5, subd. (b)(1), as amendedbyStats. 2007, ch. 683, § 1, p. 5809.) Section 1278.5 implements a public policy "to en- courage patients, nurses, members of the medicalstaff, and other health care workers to notify governmententi- ties of suspected unsafe patient care and conditions.” (**17] (§ 1278.5, subd. (a).) It does so, in part, by pro- tecting persons who have "[p]resented a grievance, com- plaint, or report to the [health] facility .. ." Uid., subd (b)(1)(A).) Section 1278.5, subdivision (d)(1), establishes a rebuttable presumption that any discriminatory action taken is retaliation if the action is taken within 120 days of the filing of the grievance or complaint by the pro- tected person andif the "responsible staff" of the facility knew about thefiling of the complaint. (/bid.) Discrimi- natory treatment includes changesin the terms or condi- tions of privileges of a memberof the facility's medical staff. (Id., subd. (d)(2).) The consequenceto the facility for this type of dis- criminatory treatment is also specified: "A member of the medical staff who has been discriminated against pursuantto this section shall be entitled to reinstatement, reimbursementfor lost incomeresulting from any change in the terms or conditions of his or her privileges caused by the acts of the facility or the entity that owns or oper- ates a health facility ... , and the legal costs associated with pursuing the case, or to any remedy deemed war- ranted by the court pursuant to this chapter [**18] or any other applicable provision of statutory or common law." (§ 1278.5, subd. (g).) B. Business and Professions Code Sections 809 Through 809.9 As wepreviously mentioned, Fahlen seeks a declar- atory judgment concerning the peer review process under Business and Professions Code sections 809 through 809.9. These sections wereinitially enacted in 1989 (see Stats. 1989, ch. 336, §§ 1-9.5, pp. 1444-1450). The goal wasto provide a peer review process to "exclude... those healing arts practitioners who provide substandard care or who engagein professional misconduct" (Bus. & Prof. Code, § 809, subd. (a)(6)), “with an emphasis on early detection of potential quality problems and resolutions through informal educational! interventions” (id., subd. (a)(7)). In the case of acute care hospitals, such as MMC, the statutory requirements for the peer review process are only indirectly applicable: "Sections 809 to 809.8, inclu- sive, shall not affect the respective responsibilities of the organized medical staff or the governing body of an acute care hospital with respect to peer review in the acute care hospital [*568] setting. It is the intent of the Legislature that written provisions implementing Sec- tions 809 to 809.8, {**19] inclusive, in the acute care hospital setting shall be included in medical staff bylaws that shall be adopted by a vote of the members of the organized medical staff and shall be subject to governing body approval, which approval shall not be withheld unreasonably." (/d., subd. (a)(8).) The parties do not dispute that the medical staff bylaws were adopted pur- suant to Business and Professions Code section 809, subdivision (a)(8), that the bylaws satisfy its require- Page 7 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877,** ments, and that the peer review proceeding for Fahlen procedurally complied with the bylaws. As implied by the term "peer review," a peer review body is generally composed of licensed persons of the same statutory classification (such as "physician and surgeon" or "clinical social worker") (Bus. & Prof. Code, § 805, subd. (a)(2)) as the individual whose work is un- der review. (See id., § 805, subd. (a)(1)(B)(i) & (iv).) In the case of an acute care hospital, however, the peer re- view statutes permit the final determination concerning disciplinary action to be taken by the governing body of the hospital--not by the peer review body. (Bus. & Prof: Code, § 809, subd. (a)(8).) Even so, however, "the gov- eming body shall give [**20] great weight to the ac- tions of peer review bodies and, in no event, shall act in an arbitrary or capricious manner.” (Bus. & Prof. Code, § 809.05, subd. (a).) As relevant here, the governing body of a hospital has the authority to take final disciplinary action against a member of the medical staff "[i]n the event the peer review body fails to take action in re- sponse to a direction from the governing body... ." (/d, subd. (c).) In doing so, the governing body "shall act exclusively in the interest of maintaining and enhancing quality patient care.” (/d., subd. (d).) The medical staff bylaws of MMC,in addition, pro- vide for review of the JRC's decisions upon appeal by the MECorbythe staff member in question. If neither party appeals, as in this case, the board "shall have the ultimate responsibility to affirm or reverse the decision of the [JRC], but it shall give great weight to the actions of the [JRC], and in no event, shall act in an arbitrary or capri- cious manner.” (Medical Staff Bylaws, MMC,§ 8.5-1.) This review, when permitted by the bylaws of a hospital, is not prohibited by the statutory peer review require- ments. (Ellison v. Sequoia Health Services (2010) 183 Cal.App.4th 1486, 1494 [108 Cal. Rptr. 3d 728].) [**21] "A hospital's final decision in a peer review pro- ceeding may bejudicially reviewed by a petition for writ of administrative mandate.” (id at p. 1495.) Further, where a hospital's disciplinary decision is not set aside through judicial review, the decision becomes a final adjudication of the issues in the peer review proceeding. (Westlake, supra, 17 Cal.3d at p. 484.) [*569] C. Express Cross-related Provisions In addition to the general requirement of Business and Professions Code section 809.05, subdivision (d), that peer review proceedings be conducted "exclusively in the interest of maintaining and enhancing quality pa- tient care," Health and Safety Code section 1278.5 rec- ognizes the potential for conflict between a retaliation lawsuit under that section and peer review proceedings for a member of a medical staff. It states: "The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on a pend- ing peer review hearing from the memberof the medical staff who has filed an action pursuant to this section, if the evidentiary demands from the complainant would impede the peer review process or endanger the [**22] health and safety of patients, of the health facility during the peer review proces. ... If it is determined that the peer review hearing will be impeded, the injunction shall be granted until the peer review hearing is completed. Nothing in this section shall preclude the court, on mo- tion of its own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to pro- tect the person from irreparable harm." (§ 1278.5, subd. (h).) D. Code ofCivil Procedure Section 425.16 In addition to these substantive provisions of law, this case arises in the procedural context of the an- | ti-SLAPP statute, Code of Civil Procedure section 425.16. The familiar principles governing anti-SLAPP motions were summarized by the California Supreme Court in Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12 [109 Cal. Rptr. 3d 329, 230 P.3d 1117]:"A SLAPPis a civil lawsuit that is aimed at preventing citi- zens from exercising their political rights or punishing those who have doneso.” (Jd. at p. 21.) "In 1992, out of concern over ‘a disturbing increase’ in these types of lawsuits, the Legislature enacted ... the anti-SLAPPstat- ute. ... The statute authorized [**23] the filing of a spe- cial motion to strike to expedite the early dismissal of these unmeritorious claims." (/bid., citation omitted.) "A special motion to strike involves a two-step pro- cess. First, the defendant must makea prima facie show- ing that the plaintiff's ‘cause of action..: aris[es] from’ an act by the defendant 'in furtherance of the [defendant's] right of petition or free speech ... in connection with a public issue." (Simpson Strong-Tie Co., Inc. v. Gore, supra, 49 Cal.4th at p. 21.) If the defendant meets this threshold, the court considers the second step of the in- quiry, i.e., whether the plaintiff has established a proba- bility that the plaintiff will prevail on the claim. (/bid.) Ordinarily, a court should consider the two steps of the analysis in order. (Oasis West Realty, LLC v. Goldman (2011) 51 [*570] Cal.4th 811, 820 [124 Cal. Rptr. 3d 256, 250 P.3d 1115].) As we mentioned, the trial court here decided that the anti-SLAPP motion failed under both the first and the second steps of the statutory analy- sis. Ill. First step: The complaint arises from protected ac- tivity Page 8 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** (1) Although Code of Civil Procedure section 425.16, subdivision (b)(1), states that the statute is in- tended to protect only those persons who are sued be- cause of "any act [**24] of that person in furtherance of the person's right of petition or free speech ... in connec- tion with a public issue," the statute subsequently defines that phrase in a manner specific to the anti-SLAPPstat- ute. As relevant to this case, section 425.16, subdivision (e)(2), includes within that phrase "any written or oral statement or writing made in connection with an issue under consideration or review bya legislative, executive, or judicial body, or any other official proceeding author- ized by law... ." As a result, a "defendant who invokes... subparagraph (2) ... need not ‘separately demonstrate that the statement concerned an issue of public signifi- cance." (Kibler, supra, 39 Cal.4th at p. 198.) (2) In Kibler, a hospital peer review committee summarily suspended a doctor "after a series of hostile encounters" with other members of the hospital staff. (Kibler, supra, 39 Cal.4th at p. 196.) The doctor entered into a written agreement with the hospital for reinstate- ment of privileges upon certain conditions. The doctor then sued the hospital, together with certain physicians and nurses, "seeking damages undera variety of theories including defamation, abuse of process, and interference [**25] with [his] practice of medicine." (/bid.) The Su- preme Court affirmed the trial court's conclusion that these causes of action arose from protected activity under the anti-SLAPP statute. (Kibler, supra, at p. 203.) As particularly relevant here, the court held that actions of a peer review committee were statements "made in con- nection with an issue under consideration or review by... any other official proceeding authorized bylaw," as pro- vided by Code of Civil Procedure section 425.16, subdi- vision (e)(2). (See Kibler, supra, at p. 200.) In this case, as in Kibler, the challenged causes of , action (except the fourth cause of action relating to the termination of Fahlen's employment by Gould)all arise from the hospital peer review proceedings. Fahlen con- tendsthat, notwithstanding the holding in Kibler, the acts alleged in his complaint are not protected activity under the’anti-SLAPPstatute for two reasons. First, Fahlen argues that defendants' acts were not protected because they were retaliatory. Fahlen relies on McConnell v. Innovative Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169 [180, 96 Cal. Rptr. 3d 1], to support his contention that "[rJetaliatory actions taken against a person are [**26] [*571] not actions in furtherance of free speech, even though they are conveyed through words." McConnell is inapposite, however, primarily because the employment action did not occur in the context of a quasi-judicial peer review proceeding established by statute. Instead, McConnell involved action taken by a nonmedical employer under an ordinary employment contract. Ud. at p. 174.) The employer did not contend its employment decision re- sulted from a quasi-judicial proceeding, such as the peer review proceeding in Kibler, supra, 39 Cal.4th at page 203, but took the position, instead, that the letter reflect- ing the changes in employment wasissued in connection with ongoing litigation over the terms of employment. (McConnell, supra, at p. 176.) The appellate court con- cluded that the defendant had failed to carry its burden to establish that the letter was written in connection with the ongoing litigation. (/d. at p. 178.) Consequently, it was notthe retaliatory character of the defendant's activ- ity that stripped that activity of protection under the an- ti-SLAPP statute but, rather, the fact that the acts were not in connection with an official proceeding. (McConnell, supra, at p. 181.) In [**27] this case, by contrast, defendants have mettheir initial burden under the anti-SLAPPstatute to "make a prima facie showing" (Simpson Strong-Tie Co., Inc. v. Gore, supra, 49 Cal.4th at p. 21) that the chal- lenged causes of action arise from--and are based direct- ly upon--actions taken in the peer review proceedings, an “official proceeding authorized by law" (Code Civ. Proc., § 425.16, subd. (e)(2)), as held in Kibler, supra, 39 Cal.4th at page 200.4 We conclude this prima facie showing by defendants, as the moving party on the an- ti-SLAPP motion, resolves the only issue before the court in the first phase of the anti-SLAPP inquiry. (See Simpson Strong-Tie Co., Inc. v. Gore, supra, at p. 21.) 4 Fahlen suggests that the causes of action do not "arise from"the protected activity, citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal. Rptr. 2d 519, 52 P.3d 695]. In that case, mobilehome park owners sued in federal court to invalidate a city's rent control ordinance. The city sued seeking a declaratory judgment that the ordinance was constitutional. The park own- ers filed an anti-SLAPP motion, contending the city's suit arose from the owners’ protected activ- ity of filing the federal suit. Our Supreme Court held that [**28] the city’s cause of action arose from the rent control ordinance, not from the owners’ federal challenge to the ordinance. (Cashman, supra, at p. 78.) As a result, the an- ti-SLAPP motion was properly denied. (Cash- man, supra, at p. 80.) Cashmanis not relevantto resolution of this case, since all of Fahlen's causes of action seek to remedy injuries caused by the protected activity itself. (See ibid.) Fahlen's second contention is that the determination made to terminate his privileges at MMC was not made by the JRC, composed of his "peers," but by MMC's governing board. Fahlen contendsthe policy reasons that Page 9 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** attach a public interest to medical staff peer review are not applicable when the act in question is taken by the board, which is not required to be composedentirely of medical personnel. We disagree. To the contrary, the code provisions [*572} establishing the peer review process expressly recognize that, in the case of an acute-care hospital, the peer review process culminates in a final decision by the hospital's governing board. (See Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal. App.4th 65, 80-81 [138 Cal. Rptr. 3d 446].) Whileit is true that in Kibler, supra, 39 Cal.4th at page 196, [**29] the action in question was taken by the medical review committee, we do not view this fact as a limitation on the scope ofthe court's ultimate hold- ing. It would serve neither reason nor public policy to conclude that an intermediate decision made pursuant to the statutory peer review scheme was an “official pro- ceeding," but to conclude that the final decision made pursuant to that same scheme was not an "official pro- ceeding."* 5 Fahlen appears to take the position that the written decision of the board terminating his staff privileges was not a protected act because it was not "communicative," citing Smith v. Adventist Health System/West, supra, 190 Cal.App.4th at pages 57-58. The relevant discussion in Smith concerned the second step of analysis under the anti-SLAPP statutes, namely, the probability of prevailing step (see Smith, supra, at pp. 56-57), not the first, or protected-activity, step. (See id. at p. 56 ["we will assume for purposesofthis appeal that ... defendants’ acts ... were protected activity for purposes of the anti-SLAPPstatute"].) Wehold that the statements or writings of a hospi- tal’s governing board in reviewing a determination on medical staff privileges, and decision on such termination or nonrenewalof suchpriv- ileges, are made "in connection with an issue under con- sideration or review [in an] ... official proceeding au- thorized by law." (Code Civ. Proc., § 425.16, subd. (e)(2); see Kibler, supra, 39 Cal.4th at p. 203; see also Nesson v. Northern Inyo County Local Hospital Dist., supra, 204 Cal.App.4th at p. 81.) The trial court erred in concluding to the contrary. IV. Second step: Fahlen's probability of prevailing on the causes ofaction In the second step of consideration of an an- ti-SLAPP motion, the burden shifts to the plaintiff to establish "a probability that the plaintiff will prevail on the claim” (Code Civ. Proc., § 425.16, subd. (b)(1)). (See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67 [124 Cal. Rptr. 2d 507, 52 P.3d 685].) In [**30] in making final - order to meet this burden,the plaintiff must have stated, and substantiated by a sufficient prima facie showing of facts, a legally sufficient claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal. Rptr. 2d 530, 52 P.3d 703].) Further, factual disputes are to be resolved in fa- vorofthe plaintiff. (/bid.) In this case, defendants do not dispute the factual sufficiency of Fahlen's underlying allegations. They contend, however, that [**31] each cause of action is legally barred by the doctrine of ex- haustion of judicial remedies and, in the case of two causes of action, the complaint fails to state a cause of action. [*573] (3) In Westlake, supra, 17 Cal.3d 465, a doctor sued a hospital in tort, alleging that the hospital and various staff and board members had maliciously conspired to- gether to deny staff privileges at the hospital through a peer review process that was unfair and in violation of the hospital's own bylaws and constitution. U/d. ai p. 470.) Our Supreme Court held that a doctor must exhaust all available administrative remedies and successfully set aside the hospital's final administrative determination through mandamusreview before the doctor may "pur- su[e] her tort claim against defendants." (ld. at p. 484; see id. at p. 486.) This rule has been repeated in numer- ous Supreme Court decisions and in the context of sever- al different types of administrative proceedings. (See Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70-71 [99 Cal. Rptr. 2d 316, 5 P.3d 874].) The rule was summarized in Runyon v. Board of Trustees ofCalifornia State University, supra, 48 Cal.4th at page 773, citations omitted (Runyon): "Under the doctrine of exhaustion of judicial remedies, [**32] ‘[o]nce a[n administrative] decision has been issued, provided that decision is of a sufficiently judicial character to support collateral estop- pel, respect for the administrative decisionmaking pro- cess requires that the prospective plaintiff continue that process to completion, including exhausting any availa- ble judicial avenues for reversal of adverse findings.... Failure to do so will result in any quasi-judicial adminis- trative findings achieving binding, preclusive effect and maybar further relief on the sameclaims....' ... General- ly speaking, if a complainant fails to overturn an adverse administrative decision by writ of mandate, 'and if the administrative proceeding possessed the requisite judicial character ... , the administrative decision is binding in a later civil action brought in superior court." (Citations omitted.) In some circumstances, however, the quasi-judicial proceeding is alleged by plaintiff not to be a vehicle for administrative resolution of an administrative grievance, but is alleged to be, or to be a part of, a retaliatory action itself. This retaliation cannot be resolved within the ad- ministrative grievance process when the process itself provides the forum for retaliation, [**33] it is argued, Page 10 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** and such an administrative proceeding is not entitled to the deference traditionally afforded by the standard of review in administrative mandate cases. In these circum- stances, the Legislature may recognize, explicitly or by implication, that the administrative decision in question should not be given preclusive effect in later judicial proceedings, even when the administrative decision has not been set aside through administrative mandate pro- ceedings. When the Legislature has made this type of determination, the courts will not require exhaustion of judicial remedies in the administrative proceeding. (Runyon, supra, 48 Cal.4th at p. 774.) No Supreme Court case since Westlake, supra, 17 Cal.3d 465, has considered the requirement for exhaus- tion of judicial remedies in the context of medical peer review proceedings. Since the medical whistleblower statute, [*574] section 1278.5, was amended in 2007 to include staff physicians within its protections, one published opinion of the Court of Appeal has applied Westlake to support dismissal of a physician's section 1278.5 retaliation cause of action. (See Nesson v. North- ern Inyo County Local Hospital Dist. supra, 204 Cal.App.4th at p. 87.) [**34] In Nesson, however, the "claim for retaliation under... section 1278.5 also failfed] because the evidence show[ed] the summary suspension {of staff privileges] was unrelated to the complaints [aboutpatient care] made more than eight months before ..." the termination. (/bid.) In any event, Nesson did not consider the exception to exhaustion ofjudicial remedies established in Runyon, supra, 48 Cal.4th 760, and similar cases addressing other whistleblower or antiretaliation statutes. As a result, we will examine the requirements described in these more recent Supreme Court cases.° 6 Werecognize the outcome in Fahlen’s case differs from the outcome in Nesson vy. Northern Inyo County Local Hospital Dist., supra, 204 Cal.App.4th at page 86. Although one of the claims made by Dr. Nesson was based on section 1278.5 (Nesson, supra, at p. 75), the Nesson opinion did not separately consider or analyze the requirement for exhaustion of judicial remedies with respect to Nesson's section 1278.5 cause of action. (Nesson, supra, at pp. 85-86.) Signifi- cantly, Nesson not only did not exhaust his ad- ministrative remedies, he also refused to cooper- ate with the hospital's peer review process and "took [**35] a leave of absence and actively thwarted any determination as to whether he should have continued in his position as the med- ical director of radiology,” all of which form a separate and sufficient basis for resolving the case against Nesson. (/d. at pp. 82, 85.) Further, a review of the briefs filed in Nesson reflects that the parties did not focus on the section 1278.5 claim. (We take judicial notice of the parties’ briefs in Nesson upon Fahlen's request [see Evid. Code, § 452, subd. (d)].) Although Nesson men- tioned section 1278.5 in his briefs, the hospital district did not mentionit at all. Under these cir- cumstances,it is not surprising that the appellate court did not delve deeply into section 1278.5. For all these reasons, we consider the Nesson court's conclusions concerning exhaustion of ju- dicial remedies to be dicta. (See Nesson, supra, at p. 86.) To the extent they are not, we disagree with Nesson's implicit conclusion that a plaintiff suing under section 1278.5 first must exhaust ju- dicial remedies in any underlying peer review proceeding. In Campbell v. Regents of University of California (2005) 35 Cal.4th 311 [25 Cal. Rptr. 3d 320, 106 P.3d 976], our Supreme Court considered whether an em- ployee of the university [**36] was required to exhaust administrative remedies provided by the Regents "to handle complaints of retaliatory dismissal for whistle- blowing" (id. at p. 324) before the employee was per- mitted to sue the university for damages for violation of Government Code section 12653, a whistleblower provi- sion within the False Claims Act (Gov. Code, § 12650 et seq.) (Campbell, supra, at p. 325), The plaintiff in that case had not exhausted her administrative remedies. She contended that Government Code section 12653 should not require exhaustion, in reliance on a related whistle- blower statute within the California Whistleblower Pro- tection Act, Government Code section 8547.10, which applies to University of California employees. (Camp- bell, supra, at p. 327.) The latter statute requires initia- tion of an administrative proceeding and permits court action if the university has [*575] not acted on the administrative complaint within a specified time. (Jbid.) Campbell argued that the absence of a similar require- ment in Government Code section 12653 required an inference that the Legislature did not intend to require administrative exhaustion in section 12653. (Campbell, supra, at p. 327.) The court rejected this contention. In light of [**37] the general applicability of a require- ment for exhaustion of administrative remedies, "the Legislature's silence in [Government Code section ' 12653] makes the common law exhaustion rule applica- ble ... and requires employees to exhaust their internal administrative remediesprior to filing a lawsuit." (/d. at p. 328.) The court also applied thisrule in its consideration of a different whistleblower statute, Labor Code section 1102.5. (Campbell v. Regents of University ofCalifornia, supra, 35 Cal.4th at p. 329.) For that statute, there was ambiguouslegislative history that was "unclear on the question whether the Legislature intended to depart from Page 11 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** the exhaustion doctrine" when it enacted the statute. (/d. at p. 331.) In those circumstances, the court concluded "that absent a clear indication of legislative intent, we should refrain from inferring a statutory exemption from our settled rule requiring exhaustion of administrative remedies." (/d. at p. 333.) State Bd. of Chiropractic Examiners v. Superior Court, supra, 45 Cal.4th 963 (Arbuckle), also involved an action under the California Whistleblower Protection Act(Act). (Arbuckle, supra, at p. 967.) The [**38] pro- visions of the Act applicable in Arbuckle (Gov. Code, § 8547.8, subd. (c)) required administrative exhaustion, similar to the related Government Code section 8547.10 discussed in Campbell v. Regents of University of Cali- fornia, supra, 35 Cal.4th 311. The plaintiff in Arbuckle had exhausted her administrative remedies before the State Personnel Board, and the board had issued a final order finding that the negative actions taken against the plaintiff "were for reasons unrelated to Arbuckle’s pro- tected disclosures," that is, her whistleblower activities. (Arbuckle, supra, at p. 969.) The primary issue before the Supreme Court was whethertheplaintiffs action for damages was precluded under the requirement for ex- haustion of judicial remedies articulated by Westlake, supra, 17 Cal.3d 465, and subsequent cases. (Arbuckle, supra, at p. 974.) The Arbuckle court began its analysis by observing the general rule that a litigant is required to seek judicial review of an adverse administrative. determination "be- fore pursuing other remedies that might be available." (Arbuckle, supra, 45 Cal.4th at p. 975.) This general rule _ is applicable, however, only where the Legislature in- tended to "elevate[] [**39] those [administrative] find- ings to the samestatus as a final civil judgment rendered after a full hearing ... ." (/bid.) Two factors led the court to conclude that the Legislature had not intended re- quirement of judicial exhaustion under the relevant por- tions of the Act. First, the statutes "expressly acknowl- edged [*576] the existence of the parallel administra- tive remedy [but] did not require that the [administrative] findings be set aside by way of a mandate action" prior to a civil damages action. (Arbuckle, supra, at p. 976.) Instead, the Legislature only required a final administra- tive determination as a precondition to the civil remedy. (ibid.) This factor distinguished the case from the Westlake line of cases, particularly Johnson v. City of LomaLinda, supra, 24 Cal.4th 61. Second, the Legislature clearly intended to provide a civil damages remedy under the Act. Yet judicial review of the administrative action would occur either under a substantial evidence or an arbitrary and capricious stand- ard of review (depending onthe section of the CodeCiv. Proc. applicable to the proceeding), making it "very [**40] difficult for a complaining employee to have the board's adverse factual findings overturned." (Arbuckle, supra, 45 Cal.4th at p. 977.) "Nothing in [Government Code] section 8547.8[, subdivision] (c) suggests that the Legislature intended the damages remedycreated in that provision to be so narrowly circumscribed, and such a narrow interpretation of the damages remedy would hardly serve the Legislature's purpose of protecting the right of state employees'to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.’ ([Gov. Code,J § 8547.1.)" (1d.atpp. 977-978.) In Runyon, supra, 48 Cal.4th 760, the Supreme Court considered another portion of the Act, Government Code section 8547.12, which protects employees of the California State University system. (Runyon, supra, at pp. 763-764.) This section requires an employeeto file a complaint with the appropriate university official, but permits the employee to file a civil damages action "if the university has not satisfactorily addressed the com- plaint within 18 months." (Gov. Code, § 8547.12, subd. (c).) The primary issue before the court in Runyon was whether a thorough and procedurally [**41] fair ad- ministrative decision could be deemed to not "satisfacto- rily address[]" the whistleblower complaint, thereby permitting a civil action. The court concluded that a de- cision that did not provide full relief to the complainant, so long as that decision constituted final action by the university, permitted the filing of a civil whistleblower complaint. (Runyon, supra, at p. 773.) Second, the court considered whether the whistleblower had to exhaust judicial remedies before proceeding with a civil damages action. (/bid.) Applying the two considerationsarticulat- ed in Arbuckle, supra, 45 Cal.4th at page 976, the Run- yon court concluded the Legislature did not intend to require writ review of the administrative determination as a precondition for a civil whistleblower action. (Run- yon, supra, at p. 774.) There are a number of differences between medical staff peer review under Business and Professions Code section 809 et seq., and the administrative proceeding authorized under the Act. In particular, peer review is a process [*577] started by a hospital (whether through the MEC or the board of trustees), with the putative whistleblower as the respondent. Under the Act, the whistleblowerinitiates [**42] the administrative review of retaliatory actions taken by his or her employer. Thus, the whistleblowing andalleged retaliation are at the very core of the administrative proceeding under the Act. In peer review proceedings, on the other hand, the quality of medical care provided by the putative whistlebloweris the primary focus--not the hospital's response to com- plaints made by the doctor. In our view, the differences makeit more persuasive, notless, that the Legislature did not intend to require exhaustion ofjudicial remediesas a , Page 12 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** precondition to filing a civil action under section 1278.5, applying the Arbuckle/Runyon analysis. In Arbuckle, supra, 45 Cal.4th at page 976, the court founda legisla- tive intent not to require exhaustion of writ remedies when the Legislature "expressly acknowledged the ex- istence of the parallel administrative remedy," yet "did not require that the [administrative] findings be set aside by way of a mandate action... ." In these circumstances, "to hold an adverse administrative finding preclusive in the expressly authorized damages action would be con- trary to the evident legislative intent." (Runyon, supra, 48 Cal.4th at p. 774.) In this case, section 1278.5, [**43] from its adop- tion in 1999 through the 2007 amendments,applied pri- marily to retaliation against patients and employees of health facilities, persons who are not subject to [*578] the peer review process of Business and Professions Code section 809 et seg. Whentheinitial amendments to section 1278.5 were introduced in 2007, the bill simply added nonemployee doctors who hadstaff privileges at a health facility to those persons who were protected from discrimination and retaliation as a result of whistleblow- ing. (See Assem. Bill No. 632 (2007-2008 Reg.Sess.) as introduced Feb. 21, 2007.) Asthe bill moved through the Senate, however, opponents ofthe bill raised the issue of peer review proceedings in relation to the proposed civil whistleblower remedy for medical staff: "The critical question, according to the principal opponents of AB 632, is what would happen to a pending peer review ac- tion, or to the evidentiary protections and immunity from liability that attend peer review actions, once the member of the medical staff files a § 1278.5 action?” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 632 (2007-2008 Reg.Sess.) as am ended June 6, 2007, p. 10.) Apparently in response to [**44] these concerns, the bill was amended by the Senate on July 17, 2007, to add the provision that became a portion of subdivision (h) of the final version of section 1278.5: "The medical staff of the health facility may petition the court for an injunction to protect a peer review committee from being required to comply with evidentiary demands on pending peer review matters from the complainant in an action pursuantto this section, if the evidentiary demands from the complainant would impede the peer review process or endangerthe health and safety of patients of the health facility during the peer review process." (Sen. Amend.to Assem. Bill No. 632 (2007-2008 Reg. Sess.) July 17, 2007,italics omitted.) The bill was further amended in the Senate on Sep- tember 5, 2007, to add the remainder of section 1278.5, subdivision (h) as it appears in the final legislation: "Pri- or to granting an injunction, the court shall conduct an in camera review of the evidence sought to be discovered to determine if a peer review hearing, as authorized in Sec- tion 805 and Sections 809 to 809.5, inclusive, of the Business and Professions Code, would be impeded.If it is determined that the peer review hearing will be im- peded, the injunction shall be granted until the peer re- view hearing is completed. Nothing [**45] in this sec- tion shall preclude the court, on motionofits own or by a party, from issuing an injunction or other order under this subdivision in the interest of justice for the duration of the peer review process to protect the person from irreparable harm." (§ 1278.5, subd. (h).) It is evident from this legislative history that the Legislature was not only cognizant of the possibility of parallel peer review administrative proceedings, but that it expressly contemplated that such proceedings could, with certain limitations, occur simultaneously with a civil action under section 1278.5.’ In such circumstances, "to hold an adverse administrative finding preclusive in the expressly authorized damages action would be con- trary to the evident legislative intent." (Runyon, supra, 48 Cal.4th at p. 774.) 7 Because Fahlen fully exhausted his adminis- trative remedies in this case, we need not consid- er whether the 2007 amendments to section 1278.5, particularly the addition of subdivision (h), create a limited exception to the administra- tive-exhaustion requirement established — in Westlake, supra, 17 Cal.3d atpages 485-486. We have reviewed the account of the legislative history of the 2007 [**46] amendments provided by the California Hospital Associationin its brief in this case as amicus curiae on behalf of defendants. We disagree with the conclusion that the amendments to Assembly Bill No. 632 (2007-2008 Reg. Sess.) were intended to leave the Westlake rule unaffected. Instead, we find in section 1278.5, subdivision ()), which provides that "[nJothing in this section shall be construed to limit the ability of the medical staff to carry out its legitimate peer review ac- tivities ... ," an implicit recognition of the limitation in Business and Professions Code section 809.05 that peer review proceedingsshall not be “arbitrary or capricious" (id, subd. (a)) and shall be conducted “exclusively in the interest of maintaining and enhancing quality patient care" (id, subd. (d)). In other words, "legitimate peer review activities” do not include retaliation against med- ical staff for complaints about quality of care. [*579] As in Runyon and Arbuckle, the standard of judicial review of a peer review decision under Code of Civil Procedure section 1094.5--one intended in the ordinary case to give the greatest possible deference to the action of the administrative decision maker--"would mean that ‘in nearly every case, [**47] an adverse decision from {the hospital] would leave the employee without the benefit of the damages remedy set forth” in section Page 13 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** 1278.5. (Runyon, supra, 48 Cal.4th at p. 774.) To para- phrase Arbuckle, supra, 45 Cal.4th at pages 977-978, nothing in section 1278.5 suggests that the Legislature intended the damages remedy createdin that provision to be so narrowly circumscribed. Further, such a narrow interpretation of the damages remedy would not serve the Legislature's purpose of protecting the public from unsafe patient care and conditions through the adoption of section 1278.5. In addition, the evidentiary presumption of section 1278.5, subdivision (d)(1), is incompatible with a re- quirement for exhaustion of judicial remedies through writ review of the peer review decision. Section 1278.5, subdivision (d)(1), creates a rebuttable presumption that any discriminatory action, such as instituting proceedings to terminate staff privileges (¢ 1278.5, subd. (d)(2)), is prohibited retaliation for complaints about hospital care madeby the staff physician within 120 days of the disci- plinary action, if "responsible staff" at the facility knows about the doctor's complaints. It would be virtually [**48] impossible to implement that presumption in a civil action under section 1278.5 after judicial ratifica- tion of a hospital's administrative action under the nar- row standard ofreview in writ proceedings, during which the presumption would not have been operable. Finally, the range of remedies authorized by section 1278.5, subdivision (g), is incompatible with a require- ment for successful judicial review of a peer review de- cision. If a doctor were required to successfully set aside an administrative order terminating his or her privileges as a precondition to a section 1278.5 action, as defend- ants contend in their reliance on Westlake, supra, 17 Cal.3d at pages 485-486, there would never be a circum- stance in which reinstatement of a doctor's staff privileg- es would still be required in the civil action. This is true even though reinstatement is a remedy specified by the Legislature in section 1278.5, subdivision (g). We will not impose judicial constraints on the statutory remedy where doing so makes the Legislature's language super- fluous. (Arbuckle, supra, 45 Cal.4th at p. 978.) (4) Forall of these reasons, we concludethere is no requirement that a section 1278.5 plaintiff seek judicial [**49] review of administrative action taken in peer re- view proceedings as a precondition to a civil action un- der section 1278.5. [*580] V. Exhaustion ofremedies in remaining causes ofaction Fahlen contends that if he is not required to exhaust judicial writ remediesprior to his civil action under sec- tion 1278.5, he should not be required to do so in order to maintain his remaining causes of action because such a requirement would violate the rule against splitting causes of action. We disagree, with the exception ofthe second cause of action. As to the third, fifth, sixth, and seventh causes of action, these involve commonlaw and statutory causes of action to which the Westlake re- quirement for judicial exhaustion is applicable (see Westlake, supra, 17 Cal.3d at pp. 485-486) and in which there is no legislative intent demonstrated to create an exception to that requirement. Under the rule of Camp- bell v. Regents of University of California, supra, 35 Cal.4th at page 325, exhaustion is required in the ab- sence of legislative intent to the contrary, and we are bound by that rule (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937]). (5) In addition, all of these causes of action are am- biguous [**50] as set forth in the complaint. For exam- ple, they might refer to MMC’sinitiation and prosecution of the peer review proceeding as retaliation, or they mightrefer to the peer review decision as unsupported by the evidence, in violation of the bylaws, or otherwise defective. Thus, Fahlen argues at length in his brief on appeal that the process and the decision were defective. To that extent, these causes of action are an attempt col- laterally to attack the administrative decision, which is not the purpose of a civil action under section 1278.5. As stated in Runyon, supra, 48 Cal.4th at page 769,a retali- ation lawsuit is "not an action to review the decision of the [administrative decision maker], but a completely separate damages action in the superior court in which the employee will enjoy all the procedural guarantees and independent factfinding that generally accompany such actions.” To the extent, however, these causes of action focus purely on retaliation for whistleblowing, they add nothing to the legal theories supporting, and remedies available under, section 1278.5. (See § 1278.5, subd. (g) [listing available remedies, including "any remedy deemed warranted by the court pursuant [**51] to this chapter or any other applicable provision of statu- tory or common law"}.) Weconclude neither judicial economy nor funda- mental fairness requires an exception from the applicable requirement for exhaustion of judicial remedies. Since Fahlen did not exhaust his judicial remedies prior to fil- ing the third, fifth, sixth, and seventh causes ofaction, those causes of action are barred. As a result, Fahlen failed to establish a probability of prevailing on those causes of action, and the trial court erred in failing to dismiss them. [* 581] Somewhat different considerations apply to the se- cond cause of action, however, for declaratory relief pursuant to Business and Professions Code section 803.1. This section requires the medical, osteopathic, and podiatric boards to "disclose to an inquiring member of the public" a variety of information about licensees and formerlicensees, including "summaries of hospital disci- Page 14 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** plinary actions that result in the termination or revoca- tion of a licensee's staff privileges for medical discipli- nary cause or reason ... ." (Bus. & Prof. Code, § 803.1, subd. (b)(6).) Pursuant to an amendmentto the statute adopted in 2010, however, this information is not to be disclosed, [**52] when "a court finds, in a final judgment, that the peer review resulting in the disciplinary action was con- ducted in bad faith and the licensee notifies the board of that finding." (Bus. & Prof, Code, § 803.1, subd. (b)(6); see Stats. 2010, ch. 505, § 2.) The amendedstatute pro- vides no mechanism for a licensee to obtain such a final judgment concerning the bad faith of a peer review pro- ceeding. However, because Business and Professions Code section 805, subdivision (b), requires a hospital to file a report with the Medical Board of California when- ever a doctor's staff privileges are terminated (id, subd. (b)(2)), the ability of a doctor to block public disclosure of such a report is an importantright. Defendants contend that Fahlen's attempt in his se- cond cause ofaction to state a statutory cause of action results from "a [tortuous] mischaracterization of subsec- tion (b)(6)" and is an attempt to "conjure up a cause of action where none exists." Defendants’ alternative char- acterization of the amended languageis that it is applica- ble only if a doctor "w[ere].somehow able to obtain a final judgment in a writ proceeding finding that the peer review at issue ... was conducted in bad [**53] faith ... (6) We do not construe the. amended language of Business and Professions Code section 803.1, subdivi- sion (b)(6), to rely upon "somehow" convincing a court in a writ proceeding that the administrative decision was in bad faith, when the good faith or bad faith of the ad- ministrative decision maker is not an issue in the pro- ceeding. In this case, we view the allegations of the se- cond cause of action as functioning in much the same way as do punitive damagesallegations in an ordinary tort cause of action. Under Civil Code section 3294, an allegation of "oppression" or "malice" is not an inde- pendent causeofaction. Instead, by alleging and proving oppression or malice, the [*582] plaintiff becomes entitled to an additional remedy that is not otherwise available, namely “damages for the sake of example and by way of punishing the defendant." (/d., subd. (a).) 8 Code of Civil Procedure section 1094.5, sub- division (b), states: "The inquiry in such a case shall extend to the questions whether the re- spondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of dis- cretion. Abuse of discretion is established if the respondent has not [**54} 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.” In the circumstances of this case, we view Business and Professions Code section 803.1, subdivision (b)(6), as operating in a similar manner. Even though the mere allegation of “bad faith" is not a separate cause of action - in the absence ofan allegation that the peer review pro- ceedings violated the plaintiff's statutory rights, the alle- gation (and proof) of "bad faith" in addition to the proof of retaliation under section 1278.5 can result in a differ- ent, additional remedy under section 1278.5, subdivision (g). It operates as a declaratory judgment that the peer review wasconductedin badfaith. We do not decide whether under certain circum- stances an independent, implied cause of action is creat- ed by Business and Professions Code section 803.1, sub- division (b)(6). In the circumstances before us, we simp- ly conclude the allegations contained in the second cause of action were not intended to state an independent cause of action. To the contrary, they are there for the purpose of obtaining additional relief under the first cause of ac- tion [**55] similar to how an allegation of malice may permit additional relief in a tort cause of action. As a result, in this limited situation, the exception from the requirement for judicial exhaustion applicable to a sec- tion 1278.5 whistleblower cause of action also applies to the additional allegations of bad faith and the request for additional declaratory relief in the second cause of ac- tion. For all these reasons, we conclude that Fahlen has met his burden under Code of Civil Procedure section 425.16, subdivision (b)(1), of establishing that he will prevail on the first and second causes of action. We con- clude, however, the exhaustion ofjudicial remedies doc- trine does apply to the third, fifth, sixth, and seventh causes of action. Consequently, the trial court erred in not dismissing those causes of action under the an- ti-SLAPPstatute. DISPOSITION The court's June 27, 2011, order on defendants’ an- ti-SLAPP motion is affirmed with respect to the first, second, and fourth causes of action. With respect to the third, fifth, sixth, and seventh causes of action, the order is reversed. The court shall enter a new order granting defendants’ anti-SLAPP motion in part, and denying that motion in [**56] part. The request for judicial notice dated November 16, 2011 (the ruling on which previously was deferred by order of this court), is denied. The request for judicial notice dated April 26, 2012, is granted. (See fn. 6, ante.) Thestay of trial court proceedings previously entered by . Page 15 208 Cal. App. 4th 557, *; 2012 Cal. App. LEXIS 877, ** this court on January 10, [*583] 2012, is vacated. The mined by separate order of this court. The parties shall petition for writ relief filed in this case is denied as moot. bear their own costs on appeal. The petition for writ relief filed in Sutter Central Valley Hospitals v. Superior Court (F063959) will be deter- Cornell, J., and Detjen,J., concurred. I, Glenda M. Zarbock,declare: 1. I am an attorney at law duly licensed to practice before the courts of the State of California. I am a partnerat the law firm of Hanson Bridgett LLP, counsel for Defendants and Appellants Sutter Central Valley Hospitals and Steve Mitchell in this action.I makethis declaration in support of Petitioners' request for a stay of the trial court proceedings. 2. I have personal knowledgeofthe following facts, and if called upon as a witness, I could and would testify competently to the contents of this declaration. 3. In its August 14, 2012 published opinion, the Fifth District vacated the stay ofthe trial court proceedings that had previously been entered on January 10, 2012. On August 27, 2012, even before the decision becamefinal, counsel for plaintiff Mark T. Fahlen pressed Defendants to respondto special interrogatories and document requests that had been pending before imposition ofthe stay. 4. The document requests at issue seek voluminous documents directed toward Dr. Fahlen’s retaliation claim under Health and Safety Code Section 1278.5, which is the subject ofthis petition. In particular, the requests seck all communications from Dr. Fahlen to Memorial Medical Center regarding nursing and patient care and Memorial’s response thereto, and all documents generated and/or reviewed by various peer review committees that reviewed Dr. Fahlen’s practice and qualifications for continued medical staff membership and privileges, including the ad hoc investigating committee, the Credentials Committee, the Medical Executive Committee, and Memorial’s governing board. Respondingto these broad discovery requests would involve extensive work and a substantial commitmentof resources. True and correct copies ofthe special interrogatories andfirst set of document requests that Dr. Fahlen propounded on Defendantsis attached hereto as Exhibit 1 and2. 4739002.1 I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct, and that this Declaration ‘was executed at San Francisco, California, on September ZA2012. pyWA Glenda M. Zatbock 4739002. 1 O o c o N D B O H B P W Y N Y N N j w N Y B Y N Y N Y O N N N Y S P e S P S P S P le l S t llU Lh l m c o N t O N O H B R W O W N Y O K F O O e H D H S F W Y Y H F F C O STEPHEN D. SCHEAR State Bar No. 83806 Law Office of Stephen Schear 2831 Telegraph Avenue Oakland, California 94609 (510) 832-3500 JUSTICE FIRST, LLP Jenny C. Huang State Bar No. 223596 2831 Telegraph Avenue Oakland, CA 94609 Telephone: (510) 628-0695 Attorneysfor Plaintiff MARK T. FAHLEN,M.D. IN THE SUPERIOR COURTOF THE STATE OF CALIFORNIA IN AND FOR THE COUNTYOF STANISLAUS MARK T. FAHLEN,M.D., Case No. 662696 Plaintiff, PLAINTIFF’S INTERROGATORIES, VS. SET ONE SUTTER CENTRAL VALLEY HOSPITALS, STEVE MITCHELL, AND DOES 1-20 Inclusive, Defendants PROPOUNDING PARTY:_ Plaintiff Mark Fahlen, M.D. RESPONDING PARTIES: Sutter Central Valley Hospitals SET NUMBER: One Pursuant to Sections 2030.020 and 2030.060 of the Cal. Codeof Civil Procedure, Plaintiff herein requests that Defendant Sutter Central Valley Hospitals answerthe following interrogatories. The interrogatories are to be answeredfully and separately in writing and under PLAINTIFF’S INTERROGATORIES, SET ONE Fahlenv. Sutter, Case No. 662696 (TWS) PAGE 1 OF 5 C o O e S N D H U H F F W Y N Y w o NH N H H Y M N Y N Y K N W N NH N K H H Y R F F e E F e l l o O ~ l n N W N a S w w i ) — _ S o o O a o m n n N W w a a w w N — o S oath, and the answers are to be served on JUSTICE FIRST, LLP,2831 Telegraph Avenue, Oakland, CA 94609 within 30 days ofreceipt of service ofthis request. DEFINITIONS A, Document(s) - The term "document(s)" meansa writing, as defined by Cal. Evidence Code §250, and includesthe original or a copy of a handwriting, typewriting,printing, photostating, photograph,telex, transmitting by electronic mail or facsimile, and every other meansofrecording upon any tangible thing and form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination of them, including but not limited to e-mails, drafts, originals, copies and all non-identical copies, whetherdifferent from the original by reason of any notation made on such copiesor otherwise, correspondence, insurance records, policies, contracts, memorandum,notes, notations of any conversations (including but not limited to telephone conversations or meeting notes). The term “DOCUMENTS,”asusedin this request, specifically includes any information contained in non- documentary form, including e-mails or other computerized information, whether or notthat information has ever been produced in documentary form. B. Sutter Central Valley Hospitals — The term “Sutter Central Valley Hospitals” includes the businessentity itself, its employees, subsidiaries, agents, insurance companies,attorneys, accountants, consultants, and anyone else acting on behalf of Sutter Central Valley Hospitals or Memorial Medical Center. C. Defendants — The term “Defendants” includes executives, managers, supervisors, officers, agents, independent contractors, advisors, consultants, part-time and full-time workers, temporary workers, and contract workers. D. Person(s) - The word "person(s)" meansindividuals or any natural person, and entities, including sole proprietorships, firms, associations, organizations, companies, partnerships,joint ventures, trusts, corporations and any other legal, business or governmental entity, and their agents. E. Employee — An “employee”is any person whois currently in the employof, or was at any time employed by, Sutter Central Valley Hospitals, including butnotlimitedto, PLAINTIFF’ S INTERROGATORIES, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 2 OF 5 oO o oO o NH N D H v A F& F W N Y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 executives, managers, supervisors, officers, agents, independent contractors, advisors, consultants, part-time and full-time workers, temporary workers, and contract workers. F, Employer — An “employer” means a person or entity, such as Sutter Central Valley Hospitals, who controls and directs a worker under an express or implied contract of hire and who paysthe workersalary or wages. G. Employed/Employment — The word “employed”or “employment” means a relationship in which an employee provides services requested by or on behalf of an EMPLOYER. H. Correspondence — Any “Correspondence”includesany andall e-mails,letters, memoranda, notes, messages, faxes, and recordings. I, Discipline — “Discipline” includes any suspension, demotion, reduction in pay, counseling, reprimand, sanction, penalty, or other action intended to correct or instruct. J. And/Or- "And" and "or" shall be construed conjunctivelyor disjunctively as necessary to makethe request inclusive rather than exclusive. K. Include(s)/Including - The use ofthe words "include(s)" and "including"shall be construed to mean "without limitation". L. All/Each — The useof“all” and “each” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery requestall responses that might otherwise be construed to be outside ofits scope. M. You/Your — The words “you”or “your” include the persons to whom these requests are addressed, andall that person’s agents, employers, investigators, attorneys, and anyoneelse acting on that person’s behalf or within that person’s control. | N. Concerns/Relating/Relate — The phrase “concerns”, “relating” or “relate” shall meanreferringto, alluding to, concerning, connected with, commentingon,regarding, discussing, including, mentioning, in respect of, related to, respondingto, containing, evidencing, pertaining, reflecting, showing, memorializing, describing, analyzing, reflecting, comprising, constituting or about. PLAINTIFF’S INTERROGATORIES, SET ONE Fahlenv. Sutter, Case No. 662696 (TWS) PAGE 3 OF 5 | O o © Y N D H W W F& F W S V Y N N B H N H N Y N Y N N N Y N O S F F F = S | F P S F E F e S l e o o T D A A W B R Y W NB N SK F O o O w N D H H F F W Y Y N K F S& S O. Actingon YourBehalf— The phrase “acting on your behalf” includes,but is not limited to, your attorneys, employees, agents, representatives and investigators, whetherthey are hired and appointed by you, your attorneys, or their representatives, or a court of law. ' INTERROGATORIES kL. Please state the name, address, jobtitle, and employer of the person(s) answering these interrogatories. | 2. Identify each person who served on the governing board of Sutter Central Valley Hospitals and participated in the decision not to reappoint Dr. Fahlen to the medical staff of Memorial Medical Center. PLEASE TAKE NOTICEthatPlaintiff, through counsel, reserves his right to amend and to supplementthe interrogatories herein, and to otherwise utilize whatever other discovery mechanismsare available to counsel under and pursuantto the California Code of Civil Procedure. Dated: April 5, 2011 Oakland, California JUSTICE FIRST, LLP Attorneys for Plaintiff Oakland, CA 94609 Tel.: (510) 628-0695 PLAINTIFF’S INTERROGATORIES, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 4 OF 5 O o C o N I H D W w F F W Y N Y B o N O W V N Y NY O K N N Y K H N O M B Y F K F S F F F E F S | R e L l C o ~ ~ T N A W B R W D N Y K F O D O o m e H D D H S P W D D Y Y F & PROOFOF SERVICE Re: Fahlen v. Sutter, Case No. 662696 (TWS) I, the undersigned, hereby declare: 1. Iam a citizen of the United States of America over the age of eighteen years. My business address is 2831 Telegraph Avenue, Oakland, California, 94609. I am not a party to this action. 2. On April __, 2011, I served this documententitled Plaintiff's Requests for Documents, Set Oneto the following parties in the mannerlisted below: Lawrence Dempsey Sutter Central Valley Hospitals 1316 Celeste Drive, # 120 Modesto, CA 95355 Steve Mitchell Memorial Medical Center 1700 Coffee Road Modesto, CA 95355 [ ] First-Class Mail - by depositing a prepaid envelope containing the above-listed documents in an official depository under the exclusive care and custody of the U.S. Postal Service. [ ] Overnight Mail — by depositing a prepaid envelope containing the above-listed documents in an official depository under the exclusive care and custody of an overnight delivery carrier. [ ] Facsimile - by transmitting the above-listed documents by electronic meansto the fax numberlisted above, which number was designated by the attorney for such purpose. I received a confirmation from the fax machineindicating that the document(s) was successfully transmitted. [ ] Electronic Mail — byelectronically mailing a true and correct copy through Justice First, LLP’s electronic mail system to the e-mail address(es), as stated on the attached service list, and the transmission was reported as complete and no error wasreported. [X] Personal Service — by personally delivering the above-listed documentsby handto the of the addressee(s). I declare under penalty of perjury underthe lawsofthe State of California that the foregoingis true and correct. Date: April, 2011 Modesto, California Richard Berberian PLAINTIFF’ S INTERROGATORIES, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 5 OF 5 & W w W N Co Oo KN NH N WN 10 Ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN D. SCHEAR State Bar No. 83806 Law Office of Stephen Schear 2831 Telegraph Avenue Oakland, California 94609 (510) 832-3500 JUSTICE FIRST, LLP Jenny C. Huang State Bar No. 223596 2831 Telegraph Avenue Oakland, CA 94609 Telephone: (510) 628-0695 Attorneys for Plaintiff MARK T. FAHLEN,M.D. IN THE SUPERIOR COURTOF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF STANISLAUS MARK T. FAHLEN,M.D., Case No. 662696 Plaintiff, PLAINTIFF’S DOCUMENT REQUESTS, vs. SET ONE SUTTER CENTRAL VALLEY HOSPITALS, STEVE MITCHELL, AND DOES1-20 Inclusive, Defendants PROPOUNDING PARTY: Plaintiff Mark Fahlen, M.D. RESPONDING PARTIES: Sutter Central Valley Hospitals, Steve Mitchell SET NUMBER: One Pursuant to Sections 2031.020 and 2031.030 of the Cal. Code of Civil Procedure, Plaintiff herein requests that Defendants produce and permit Plaintiff to inspect and copy the following documentsthatare in the possession, care, custody, or control of Defendants andits agents, subsidiaries, parent companies, and/or attorneys. The requests for documentsare to be PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE | OF 9 O o f e H N DB D O D F P W Y N Y m o p o bh p H O H N W N K N N Y N O Y H K H S e F F K F Y F O F E S E S l S oO o D A W A B P Ww W N Y F- § O D O F n H K D H H F P W Y N Y Y F & answeredfully and separately, in writing and under oath, and the answersare to be served on JUSTICE FIRST, LLP,2831 Telegraph Avenue, Oakland, CA 94609 within 30 daysofreceipt of service of this request. INSTRUCTIONS A. Youshall respond separately to each item or category of items containedin this demandbya statement that Respondent will comply with a particular demandfor inspection and any relatedactivities, or representation that Respondentlacks the ability to comply with the demandfor inspection ofa particular item or category of items, or an objectionto the particular demand. B. If a documentis called for under more than one request, it should be produced in responseto the first request which calls for the document. C. If copies or drafts exist of documents the production ofwhich has been requested herein, produce and submit for inspection and copying each and every copy and draft which differs in any way from theoriginal documentor from any other copy or draft. D. A statement that Respondent will comply with the particular demandshall state that the production, inspection andrelated activities demanded will be allowedeither in whole or in part, that all documentsor things in the demanded category that are in the possession, custody, or control of Respondentand to which no objection is madewill be included in the production. Any documents demandedshall either be produced as they are kept in the usual course of business, or be organized andlabeled to correspond with the category herein. E. A representation of inability to comply with a particular demandfor inspection shall affirm that a diligent search and a reasonable inquiry have been madein the effort to comply with the demand. The statement shall also specify whether the inability to comply is becausethe particular item or category has never existed, has been destroyed, has been lost, misplacedor stolen, or has never been,or is no longer, in the possession, custody, or control of Respondent. The statementshall set forth the name and addressof any natural person or organization knownor believed by Respondent to have possession, custody, or control of that item or category. PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 2 OF 9 o O fo e NH N D O A H H P W Y N Y N Y N O N Y N H N Y K N N Y N N Y Y H F P F F F F F F E F E S e S oO o N D O A W W B R W D NY O K F O D O o O e K N D H F F W NH N - & F. If any part of an item or category ofitems in this inspection demandis objectionable, your response shall contain a statement of compliance,or representation of inability to comply with respect to the remainderof that item or category. If Respondent objects to the demandforinspection of any item or category of items, the response shall: 1. state the identity with particularity of any document, tangiblething,ete. falling within any category of items in the demandto which any objectionis being made, and 2. set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on privilege, the particular privilege invoked shall be stated and a statementsetting forth: (a) the name(s) ofthe sender(s) of the document; (b) the name(s) of the author(s) of the document; (c) the name(s) of the person(s) to whom the document and/or any copies weresent; (d) the date the document wasprepared; and (e) the grounds for the claim ofprivilege. G. If any documentsare withheld from production on the groundofprivilege, identify such document and provide the following information: (1) Date of document; (2) Type of document; (3) Nameofthe document’s author(s); (4) Documentcontent and/or subject matter; (5) Nature and basisofthe privilege claimed. H. If any document requested herein was at one time in existence,but has beenlost, discarded or destroyed, identify such documentand provide the following information: (1) Date of document; (2) Type of document; (3) Date or approximate date it was lost, discarded, or destroyed; PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE - Fahlen vy. Sutter, Case No. 662696 (TWS) PAGE 3 OF 9 o f e S N D H O H S P W Y N Y w o N O N H W N N H N H N Y N Y N N K H F H - — F F S F F e S F S E R K e S C O N A A B h W Y NY O | C O B O O H H I D B H H F P W D N Y K F O& O (4) Circumstances and manner inwhichit waslost, discarded, or destroyed; (5) Document content and/or subject matter. (6) Identity of all persons having knowledge ofthe contents thereof. I. Theuse ofthe singular form of any word includesthe plural andvice versa. . | DEFINITIONS A, Document(s) - The term "document(s)" means a writing, as defined by Cal. Evidence Code §250, and includestheoriginal or a copy of a handwriting, typewriting, printing, photostating, photograph, telex, transmitting by electronic mail or facsimile, and every other meansofrecording upon any tangible thing and form of communication or representation, includingletters, words, pictures, sounds, or symbols, or combination of them,including but not limited to e-mails, drafts, originals, copies and al] non-identical copies, whether different from the original by reason of any notation made on such copies or otherwise, correspondence, insurancerecords, policies, contracts, memorandum,notes, notations of any conversations (including but not limited to telephone conversations or meeting notes). The term “DOCUMENTS,”asused in this request, specifically includes any information contained in non-+ documentary form, including e-mails or other computerized information, whetheror notthat. information has ever been produced in documentary form. B. Sutter Central Valley Hospitals — The term “Sutter Central Valley Hospitals” includesthe business entity itself, its employees, subsidiaries, agents, insurance companies, attormeys, accountants, consultants, and anyone else acting on behalf of Sutter Central Valley Hospitals or Memorial Medical Center. C. Defendants — The term “Defendants” includes executives, managers, supervisors, officers, agents, independent contractors, advisors, consultants, part-time and full-time workers, temporary workers, and contract workers. D. Person(s) - The word "person(s)" means individuals or any natural person, and entities, including sole proprietorships, firms, associations, organizations, companies, partnerships, joint ventures, trusts, corporations andany otherlegal, businessor governmental entity, and their agents. PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 4 OF9 o C f o n N D n Ww W F P W Y Y N b o N O N O N o N N N O D O N O O o = — — — a y — _ — — _ c o N D D K O W B R WH O N Y S& — C O O O mo O H D D H W W F F Ww W N Y | O& O E. Employee — An “employee”is any person whois currently in the employ of, or wasat any time employed by, Sutter Central Valley Hospitals, including but not limited to, executives, managers, supervisors, officers, agents, independentcontractors, advisors, consultants, part-time and full-time workers, temporary workers, and contract workers. F, Employer — An “employer” meansa person orentity, such as Sutter Central Valley Hospitals, who controls and directs a worker under an expressor implied contract ofhire and whopaysthe workersalary or wages. G. Employed/Employment — The word “employed”or “employment” meansa relationship in which an employee provides services requested by or on behalf of an EMPLOYER. H. Correspondence — Any “Correspondence”includes any and all e-mails,letters, memoranda, notes, messages, faxes, and recordings. 1, Discipline — “Discipline” includes any suspension, demotion, reduction in pay, counseling, reprimand, sanction, penalty, or other action intended to correct or instruct. J. And/Or - “And"and "or"shall be construed conjunctively or disjunctively as necessary to makethe requestinclusive rather than exclusive. K. Include(s)/Including - The use of the words "include(s)" and "including" shall be construed to mean "withoutlimitation”. . L. All/Each — Theuseof“all” and “each”shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery requestall responses that might otherwise be construed to be outside ofits scope. M. You/Your — The words “you”or “your” include the persons to whom these requests are addressed,andall that person’s agents, employers, investigators, attorneys, and anyoneelse acting on that person’s behalf or within that person’s control. N. Concerns/Relating/Relate — The phrase “concerns”, “relating” or “relate”shall meanreferring to, alluding to, concerning, connected with, commentingon, regarding, discussing, including, mentioning, in respect of, related to, responding to, containing, PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) . PAGE 5 OF9 O o O o S N D O O H S P W Y N Y N N H D H N H H N N Y N V N N N N $ = K R S e K F F e F e e R S C o N D K O N R B R B H NY O K H O O m e H N D H K H S P W Y | O& O evidencing,pertaining, reflecting, showing, memorializing, describing, analyzing,reflecting, comprising, constituting or about. | O. Acting on Your Behalf— The phrase “acting on your behalf” includes, butis not limited to, your attorneys, employees, agents, representatives and investigators, whether they are hired and appointed by you,your attorneys, or their representatives, or a court of law. DOCUMENT REQUESTS 1. All documents contained in the Credentials and Privileges file maintained by Memorial Medical Center for Dr. Fahlen in the possession or control of Defendants. 2. All correspondence between Defendants and Lisa Buehler regarding Dr. Fahlen. 3. All correspondence between Defendants and the ad hoc committee of the Medical Staff ofMemorial Medical Center which investigated Dr. Fahlen in 2008, including but not limited to all correspondence with any individual members of the committee. 4. All documents generated and/or reviewed by the Defendants as part of any investigation of Dr. Fahlen, including but notlimited to all correspondence regarding any such investigation, all notes taken by any investigators, andall reports issued as a part of such investigations.. 5. All correspondence between Defendants and the Medical Executive Committee off Memorial Medical Center (hereafter, “MEC”) regarding Dr. Fahlen, including both correspondence with the committee as a whole and correspondence with any individual members of the MEC.. ; 6. All correspondence between Defendants and the Credentials Committee of Memorial Medical Center regarding Dr. Fahlen. 7. All documentsin the possession of Defendants reflecting or concerning the evidence reviewed by the MECin makingits recommendation that Dr. Fahlen’s reappointment application should be denied, including but notlimited to any documents reviewed and/or discussed at the meeting of the MEC on August 26, 2008. PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE6 OF 9 O o f e Y N D B A W B P W Y N H N B o wp o P O D N K N N V W N Y N N O Y K F F K F S e F F SP F F E lh e C o N O U W B R W Y N Y S e O O O N D D O O H F e W Y | © 8. All documents containedin any files presently or previously maintained by Steve Mitchell regarding Dr. Fahlen. 9. All correspondenceto and/or from Steve Mitchell regarding Dr. Fahlen. 10. All documents contained in any files presently or previously maintained by James Conforti regarding Dr. Fahlen. 11. All correspondenceto and/or from James Conforti regarding Dr. Fahlen. 12. All documents containedin anyfiles presently or previously maintained by Dave Benn regarding Dr. Fahlen. 13. All correspondenceto and/or from Dave Benn regarding Dr. Fahlen. 14. All documents contained in any files presently or previously maintained by Patrick Fry regarding Dr. Fahlen. 15. All correspondenceto and/or from Patrick Fry regarding Dr. Fahlen. 16. All documentsrelating to the meeting on December8, 2010 by the governing board of Sutter Central Valley Hospitals including but not limited to any meeting minutes, notes, transcripts, and/or recording. 17. All documents reviewed by the governing board of Sutter Central Valley Hospitals in making its decision not to reappoint Dr. Fahlen to the medical staff of Memorial Medical Center. 18. All correspondence received by Memoria! Medical Center from Dr. Fahlen regarding nursing and/or patient care at Memorial Medical Center. 19. All correspondence by Memorial Medical Center in response to documents produced in response to Request No. 18 above. 20. All correspondenceof defendants with the governing board of Sutter Central Valley Hospitals regarding Dr. Fahlen. 21. The minutes of any meetings ofthe governing board of Sutter Central Valley Hospitals regarding Dr. Fahlen. 22. Any minutes, notes or other documents concerning any other meetings attended by Defendants in which Dr. Fahlen was discussed. PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE . Fahlen v. Sutter, Case No. 662696 (TWS) PAGE7 OF 9 O o © N D D A W T B F W D N e w o N O V Y L Y NH N R Q BR O OR D m e e t B s R R R R B S ® S F G e W A B U E A H A S 23. All documentscontained in any files presently or previously maintained by Myna Gandy regarding Dr. Fahlen. ~ 24, All correspondenee to and/or from Myna Gandy regarding Dr. Fablen. 25. All documents contained in any files presently or previously maintained by Julie Meyersregarding Dr. Fahlen. 26, All correspondence to and/or from Julie Meyers regarding Dr. Fahlen. PLEASETAKE NOTICEthatPlaintiff, through counsel, reserves his right to amend and to supplement the requests herein, and to otherwise utilize whatever other discovery mechanisms are available to counsel under and pursuant to the California Code of Civil Procedure. Dated: April 5, 2011 Oakland, California JUSTICE FIRST, LLP Attorneys for Plaintiff By: Jepfhy C. Huapg ” 2831 Telegraph A Oakland, CA 94609 Tel.: (510) 628-0695 PLAINTIFF’S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) Dane @nra oO o f o NI N D B U T F e W Y Y H oO o D T K H N W B R W O H O S e O O O A N H D H F F W H N Y | O& O PROOF OF SERVICE Re: Fahlen y. Sutter, Case No. 662696 (TWS) I, the undersigned, hereby declare: 1. lama citizen of the United States ofAmerica over the age of eighteen years. My business address is 2831 Telegraph Avenue, Oakland, California, 94609. I am nota party to this action. 2. On April _, 2011, I served this documententitled Plaintiff's Requests for Documents, Set Oneto the followingparties in the mannerlisted below: Lawrence Dempsey Sutter Central Valley Hospitals 1316 Celeste Drive, # 120 Modesto, CA 95355 Steve Mitchell Memorial Medical Center 1700 Coffee Road Modesto, CA 95355 [ ] First-Class Mail - by depositing a prepaid envelope containing the above-listed documents in an official depository under the exclusive care and custody ofthe U.S. Postal Service. { ] Overnight Mail — by depositing a prepaid envelope containing the above-listed documents in an official depository under the exclusive care and custody of an overnightdelivery carrier. { ] Facsimile - by transmitting the above-listed documents by electronic meansto the fax numberlisted above, which number wasdesignated by the attorney for such purpose. I received a confirmation from the fax machine indicating that the document(s) was successfully transmitted. [ ] Electronic Mail — by electronically mailing a true and correct copy through Justice First, | LLP’s electronic mail system to the e-mail address(es), as stated on the attachedservicelist, and the transmission was reported as complete andno error wasreported. [X] Personal Service — by personally delivering the above-listed documents by handto the of the addressee(s). I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Date: April, 2011 Modesto, California Richard Berberian PLAINTIFF’ S REQUESTS FOR DOCUMENTS, SET ONE Fahlen v. Sutter, Case No. 662696 (TWS) PAGE 9 OF 9 PROOF OF SERVICE I, Melinda Less, declare that I am a resident of the State of California. . I am overthe age of 18 years and not a party to the within action; that my business address is Hanson Bridgett LLP, 425 Market Street, 26th Floor, San Francisco, California 94105. On September 24, 2012, I served a true and accurate copy of the document(s) entitled: PETITION FOR REVIEW; DECLARATIONIN SUPPORT OF REQUEST FOR STAY (IMMEDIATE STAY OF SUPERIOR COURT PROCEEDINGS REQUESTED) on the party(ies) in this action as follows: Stephen D. Schear, Esq. Counsel for PlaintiffMark Law Office of Stephen Schear T. Fahlen, M.D. 2831 Telegraph Avenue Oakland, CA 94609 Jenny C. Huang, Esq. Counsel for Plaintiff Mark Justice First, LLP T. Fahlen, M.D. 180 Grand Avenue,Suite 1300 Oakland, CA 94612 Court of Appeal of the State of California Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 The Honorable Timothy W.Salter Superior Court Department 22 Stanislaus County Superior Court 801 10th Street Modesto, CA 95353 4744397.1 Terri DonnaKeville, Esq. Counsel for California Davis Wright Tremaine Hospital Association, 865 S. Figueroa Street, Suite 2400 Amicus Curiae for Appellant Los Angeles, CA 90017 Long Xuan Do, Esq. Counsel for California California Medical Association Medical Association, 1201 J Street, Suite 200 Amicus Curiae for Sacramento, CA 95814 Respondent BY OVERNIGHT DELIVERY:I enclosed said document(s) in an envelope or package provided by UPS and addressed to the persons atthe addresseslisted in the Service List. I placed the envelope or package for collection and overnight delivery (next business day) at an office or a regularly utilized drop box of the overnight service carrier or delivered such document(s) to a courieror driver authorized by the overnight service carrier to receive documents. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on September2012, at San Francisco, California. Whebndeoe Melindida Less 4744397.1