Melamed v. Cedars-Sinai Medical Center

Filed 10/6/17 Melamed v. Cedars-Sinai Medical Center CA2/1
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
HOOMAN MELAMED,
Plaintiff and Appellant,
v.
CEDARS-SINAI MEDICAL
CENTER et al.,
Defendants and Respondents.
B263095
(Los Angeles County
Super. Ct. No. BC551415)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael M. Johnson, Judge. Reversed.
Law Offices of John D. Harwell, John D. Harwell;
Golding + Lamothe, Rae Lamothe; Fenton Law Group,
Henry R. Fenton, Dennis E. Lee; Esner, Chang & Boyer,
Stuart B. Esner; Greene, Broilett & Wheeler, Mark T.

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Quigley and Christian T.F.Nickerson for Plaintiff and
Appellant.
Glaser Weil Fink Howard Avchen & Shapiro,
Patricia L. Glaser, Joel N. Klevens; Nossman, Mitchell J.
Green; Greines, Martin, Stein & Richland, Robin Meadow
and Jeffrey E. Raskin for Defendants and Respondents.
Horvitz & Levy, Jeremy B. Rosen and Joshua C.
McDaniel for Amicus Curiae on behalf of California Hospital
Association.
___________________
Dr. Hoomad Melamed (Melamed), a physician at
Cedars-Sinai Medical Center (Cedars), operated on a 12-
year-old patient, causing complications requiring corrective
surgery. The hospital suspended Melamed, who requested a
peer review hearing challenging the suspension. Every level
of administrative review upheld the suspension. Melamed
did not seek mandamus review of these decisions. Melamed
then filed suit against Cedars, William Brien, M.D., Rick
Delamarter, M.D., Michael Langberg, M.D., Neil Romanoff,
M.D., and medical staff (collectively the hospital) involved in
the summary suspension decision. The hospital filed an
anti-SLAPP motion,1 contending that Melamed’s claims
arose out of a protected activity—the medical staff’s peer
review process—and that Melamed could not show a
probability of success on the merits. The trial court granted
1 SLAPP is the acronym for strategic lawsuit against
public participation.

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the motion. Melamed appeals the order granting the motion.
We agree and therefore reverse the order.
BACKGROUND
A. The Surgery
On July 11, 2011, Melamed performed elective surgery
on a 12-year-old patient for scoliosis. Melamed selected the
operating table and also positioned the patient on the table.
Due to the patient’s small size, however, Melamed ran into
trouble during the surgery. The patient’s back was unstable
and her pelvis dipped, which exacerbated her spinal
curvature and made the surgery extremely difficult.
Melamed then realized he had chosen both the wrong sized
table as well as hip and thigh pads for this patient.2
During the surgery, Melamed asked the nurses if he
could get much bigger pads than what he had chosen but
was told those pads were not available. He then asked a
nurse to go under the operating table to stabilize the patient.
Melamed also asked for a different kind of operating table
but was told the specific kind of table he had requested mid-
surgery was not available.
Although he was unable to physically stabilize his
patient, Melamed continued, and even expanded, the
2 Melamed later confirmed that he was responsible for
positioning the patient and that he had chosen the wrong
table for this sized patient. He admitted that he should have
stopped and moved her to another table before attempting to
complete the surgery. By not doing so, Melamed admitted
he had worsened the patient’s condition.

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surgery. As a result, the operation lasted eight to eleven
hours, rather than the normal three to five hours.
The surgery left the patient in far worse condition, and
she now had an exaggerated inward curvature of the lower
spine as well as abrasions on her face and body. Indeed,
Melamed described the deformity as “clearly obvious” and
needing correction within a few days.
B. Melamed’s Summary Suspension
On July 13, 2011, the hospital’s operating room
manager (Kyung Jun) visited the patient to check on the
abrasions caused by her prolonged surgery. The patient’s
parents were present at the time. According to the parents,
Melamed had told them that the patient was too small for
the table he had used during the surgery, and that he
needed a special table, which the hospital did not have. Jun
reassured the parents that the hospital had the necessary
equipment for the patient’s corrective surgery. Jun then
spoke with Melamed to discuss what he needed for the
upcoming surgery. Melamed confirmed that the hospital did
in fact have the equipment he needed for the surgery. Jun
emailed this information to Dr. William Brien that same
day.3
3 Dr. Brien was the director of Cedars-Sinai’s
Orthopedics Center and executive vice chairman for the
department of surgery at that time.

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On or about July 14, 2011, Dr. Brien initiated a peer
review investigation into the surgery.4 The hospital
expedited its investigation because the patient was still
hospitalized and awaiting additional corrective surgery.
Dr. Brien called Melamed about the case that day. Melamed
confirmed he was responsible for choosing the wrong
surgical table and for positioning the patient. He also denied
complaining to anyone, including the patient’s parents, that
the hospital did not have the appropriate surgical table
available. Melamed also admitted he had not yet completed
his required postoperation report.
According to Melamed’s description of the call,
however, Dr. Brien began by immediately asking, “Are you
going around the hospital and telling everyone that Cedars
doesn’t have the capability to do this case?” Melamed says
he told Dr. Brien that it had been difficult to stabilize the
patient due to the inadequate table and pads, and that if the
correct equipment had been available, the patient would
have had a successful surgical outcome.
4 The hospital has two formal systems—the MIDAS
Event Reporting System and MD Feedback—which allow
medical staff members “to report any event or occurrence
that could be inconsistent with the provision of high quality
patient care, or any event that could adversely affect the
health or safety of patients.” Here, hospital staff members
submitted MIDAS reports (and sent emails to management)
outlining their concerns with the surgery, especially the
dermal abrasions the patient had suffered as a result of the
surgery. Melamed did not file a report using either system.

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Dr. Brien consulted with the chairman of Department
of Surgery, who concurred that Melamed posed an
immediate and imminent risk to hospital patients, especially
since Melamed had chosen to continue surgery on his 12-
year-old patient even though he could not stabilize her body,
and would have to perform corrective surgery on her within
the next few days.
On July 15, 2011, Cedars summarily suspended
Melamed’s medical staff privileges. As required, the hospital
provided Melamed with a notice of action, advising Melamed
of the charges and his hearing rights. The hospital based
the summary suspension on the surgery, which raised
“concerns regarding [Melamed’s] judgment, technical skill,
and competency in managing scoliosis cases.” These
concerns were based on his choice of the wrong table for the
patient’s size and procedure, his failure to adequately
stabilize the patient, and his continued attempts to
manipulate the patient’s spine despite his inability to
stabilize her. In addition, the notice stated, “the surgery
lasted in excess of 11 hours, which apparently contributed to
the pressure areas that the patient sustained.”
That same day, Melamed belatedly dictated his
operative report.5 The report noted the difficulty Melamed
had during the surgery. It also noted that Melamed had
5 Operative reports are routine reports that become
part of the patient’s medical record. Surgeons must file
these reports within 24 hours of all procedures.

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asked for a different table and pads during the surgery but
was told they were not immediately available.
On July 21, 2011,Melamed’s attorney wrote the
hospital, challenging the summary suspension. The letter
did not criticize the hospital for failing to provide a different
table and pads once Melamed realized he had chosen the
wrong equipment. Instead, it stated that the table chosen by
Melamed was in fact medically appropriate for this type of
surgical procedure, noting that the surgeon who
subsequently operated on the 12-year-old patient had used
the same table. Notably, the letter did not contend that the
hospital had suspended Melamed in retaliation for any
complaints.
On July 27, 2011, Melamed filed a petition for
mandamus and a TRO to set aside the summary suspension.
As with the letter from Melamed’s counsel, these filings did
not suggest Melamed was concerned with equipment safety
or believed he had been suspended in retaliation for any
complaints.6 Instead, Melamed’s primary challenge focused
upon his suspension by a hospital administrator rather than
6 Indeed, Melamed repeated his prior claim that the
operating table he had used was medically appropriate for
the type of surgery he had conducted, and was used during
the patient’s corrective surgery. Melamed also maintained
that the patient was stabilized when the operation began
and remained stabilized for a significant period of time
during the procedure.

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a peer review committee.7 On August 1, 2011, the hospital
reported Melamed’s summary suspension to the state
medical board and the National Practitioner Data Bank as
required by law.
C. The Peer Review Hearing
On August 29, 2011, Melamed requested a peer review
hearing to challenge his summary suspension. The hospital
issued an amended notice of action, lifting the suspension as
to adult patients. It maintained the suspension with respect
to pediatric patients. The evidentiary portion of the peer
review hearing lasted from September 2012 to November
2013. The hearing committee heard from 17 witnesses and
had 60 exhibits at its disposal. As before, Melamed did not
contend he had complained to the hospital about available
equipment or patient safety. Nor did he contend that his
summary suspension or his peer review hearing were
retaliation for making that complaint.
The hearing committee issued its report on January 13,
2014. The committee found that the Department of Surgery
had “acted reasonably in conducting an investigation of the
case” due to the “unsatisfactory correction of the patient’s
spinal curvature and the harm to the patient of a worsened
post-surgical spinal curvature, pressure sores, an extended
fusion, a prolonged hospitalization and a second surgery.”
7 Melamed voluntarily dismissed the petition on
November 4, 2011.

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Based on this evidence, the hearing committee found
that Melamed’s summary suspension had been reasonable
and warranted. However, the committee concluded that
terminating Melamed’s clinical privileges to treat pediatric,
adolescent and adult scoliosis was not reasonable or
warranted.8
Melamed appealed the hearing committee’s decision to
uphold the summary suspension.9 Melamed’s appeal did not
claim that the hospital had suspended Melamed for any
retaliatory reasons. Each level of review upheld the hearing
committee’s finding Melamed’s summary suspension
reasonable and warranted. Melamed did not seek
mandamus review of this decision.
D. Melamed’s Subsequent Lawsuit
Melamed filed suit on July 11, 2014—exactly three
years after the surgery. On July 21, 2014, Melamed filed a
first amended complaint (FAC), the operative complaint in
this case, against Cedars-Sinai Medical Center, its medical
staff, and the specific doctors involved in the summary
8 Nevertheless, the committee found it would be
reasonable and warranted for the medical executive
committee to authorize a prospective review of the clinical
management of Melamed’s pediatric and adolescent scoliosis
cases.
9 Melamed had three levels of review available to him
after the hearing committee issued its ruling: the medical
executive committee (first level), the appeal committee
(second level), and the board of directors (final level).

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suspension decision. For the first time, Melamed contended
that the hospital’s actions were taken in retaliation after
Melamed complained about patient safety at the facility.10
Based on this contention, the FAC alleged seven causes
of action: (1) violation of Health and Safety Code section
1278.5, (2) tortious interference with prospective economic
relations, (3) tortious interference with contractual relations,
(4) unfair competition in violation of Business and
Professions Code section 17200 et seq., (5) violation of
Business and Professions Code section 16700 et seq.,
(6) violation of Business and Professions Code sections 510
and 2056, and (7) wrongful termination of hospital
10 According to Melamed, the hospitals retaliatory
conduct included, but was not limited to, suspending his
medical staff privileges; unilaterally taking retaliatory
action against Melamed without affording him due process;
reporting Melamed’s summary suspension to the Medical
Board of California and National Practitioner Data Bank;
abusing the powers of the peer review process and subjecting
Melamed to a “lengthy and humiliating” peer review process;
ongoing hostility in the work environment; obstructing other
economic and career opportunities for Melamed; failing to
protect Melamed from retaliation for whistleblowing;
subjecting Melamed to “[i]ntolerable” working conditions;
engaging in a “campaign of character assassination” which
caused irreparable damage to Melamed’s reputation;
depriving Melamed of his “property right and interest” to use
certain hospital facilities and privileges; interfering with
Melamed’s right to practice his occupation; and wrongfully
terminating Melamed’s hospital privileges.

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privileges. The hospital filed an anti-SLAPP motion in
response, contending that Melamed’s claims arose out of a
protected activity—the hospital’s peer review process—and
that Melamed could not show a probability of success on the
merits. According to the hospital, Melamed could not prevail
on his claims because they were barred by the statute of
limitations. Moreover, Melamed had failed to exhaust his
judicial remedies and could not establish a prima facie case
of retaliation.
THE TRIAL COURT’S RULING
A. Overview
As correctly noted by the trial court, an anti-SLAPP
motion involves a two-step process: “(1) the defendant must
establish that the challenged causes of action arise from
protected activity; and (2) if the defendant makes this
showing, the burden shifts to the plaintiff to establish a
probability of success on the merits.” With respect to the
first step, the trial court noted that “[a]ll of [Melamed]’s
causes of action are based on the allegations that he made
reports of unsafe and substandard hospital conditions and
services that posed a threat to patients . . . and that [the
hospital] responded to this action by summarily suspending
his medical staff privileges, reporting the summary
suspension to state authorities, and subjecting [Melamed] to
a protracted and unfair peer review process.”
The trial court ultimately held that Melamed’s
allegations all related and arose from the hospital’s peer
review proceedings, which qualified as an “official proceeding

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authorized by law” and thus constituted protected activity
under Code of Civil Procedure11 section 425.16,
subdivision (e)(2).12 Because Melamed’s claim arose from
the hospital’s protected activity, the burden shifted to
Melamed to submit admissible evidence supporting a prima
facie case in his favor. However, the trial court found,
Melamed could not establish a probability of success on the
merits on any of his seven claims.
B. Melamed’s First Claim
Health and Safety Code section 1278.5 provides, in
relevant part, that “[n]o health facility shall discriminate or
retaliate, in any manner, against any . . . member of the
medical staff” because that person has “[p]resented a
grievance, complaint, or report to the facility . . . or the
medical staff of the facility” or “[h]as initiated, participated,
or cooperated in an investigation or administrative
proceeding related to, the quality of care, services, or
conditions at the facility that is carried out by an entity or
11 All further statutory references are to the Code of
Civil Procedure unless otherwise indicated.
12 In so holding, the trial court relied upon Kibler v.
Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th
192, 198 (Kibler), and Nesson v. Northern Inyo County Local
Hospital Dist. (2012) 204 Cal.App.4th 65, 78 (Nesson). The
California Supreme Court recently disapproved Nesson in
Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057 (Park) and clarified the scope of Kibler.
We discuss the applicability of Park to this case below.

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agency responsible for accrediting or evaluating the facility.”
(Health & Saf. Code, § 1278.5, subd. (b)(1)(A), (B).) The
statute expressly provides a rebuttable presumption that the
health facility took discriminatory action in retaliation
against a member of the medical staff if responsible staff at
the facility knew about the medical staff member’s actions
and the discriminatory treatment occurred within 120 days
of the medical staff member filing a grievance or
complaint.13 (Health & Saf. Code, § 1278.5, subd. (d)(1).)
With respect to Melamed’s first claim, the court found
that Melamed had failed to submit a sufficiently explicit
complaint regarding improper or inadequate procedures at
the hospital. Thus, Melamed could not show, as required by
Health and Safety Code section 1278.5, subdivisions (b)(1)(A)
and (B), that he had filed “a grievance, complaint, or report”
regarding “the quality of care, services, or conditions at the
facility.” Although the hospital had two channels for
reporting safety and quality concerns, Melamed did not use
either one. Instead, he “merely reported his surgical
procedures and complications to the parents of his patient
and in his post-operation surgical report.” While protected
activity does not require a formal procedure, the court
observed, “it at least requires a clear communication that
13 Discriminatory treatment includes “demotion,
suspension, or any unfavorable changes in, or breach of, the
terms or conditions of a contract, employment, or privileges
of the . . . medical staff member, . . . or the threat of any of
these actions.” (Health & Saf. Code, § 1278.5, subd. (d)(2).)

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puts the employer on notice as to what wrongful conduct it
should investigate or correct.” Melamed’s routine
postsurgical reports did not meet this standard.
Even if Melamed’s postsurgical reports did meet the
statutory notice requirements, the court found he could not
show a causal connection between this protected activity and
the hospital’s allegedly retaliatory conduct. Although
Melamed contended that the hospital initiated the peer
review process based on his complaints, the court found this
was not the case. Instead, the hospital began the process
because of a complaint that a surgical manager made
against Melamed. Indeed, Melamed’s postsurgical report
was not transcribed, let alone received by the hospital until
after the hospital had initiated the peer review process.14
Thus, in addition to failing to present a sufficiently detailed
grievance regarding conditions at the hospital. Melamed
could not establish a presumption of retaliation under
Health and Safety Code section 1278.5, subdivision (d)(1).
C. Melamed’s Remaining Claims
The trial court also held that Melamed did not show a
reasonable probability that he could succeed on his
remaining causes of action. Citing Westlake Community
Hosp. v. Superior Court (1976) 17 Cal.3d 465,469, the court
14 The hospital began its peer review process on
July 14, 2011. Melamed dictated his postsurgical report that
same day. Melamed’s report was not transcribed until
July 15, 2011. Until it was transcribed, the report was not
available to anyone at the hospital.

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found that although the claims were expressly based on
Melamed’s summary suspension and the hospital’s peer
review process, Melamed had not attempted to overturn any
aspect of the peer review determinations in a mandamus
action.15 Consequently, these claims were barred for failure
to exhaust judicial remedies.
DISCUSSION
I. Standard of Review
Known as the anti-SLAPP statute, section 425.16
provides that a “cause of action against a person arising from
any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution
or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).)
Resolving an anti-SLAPP motion is a two-step process.
First, the trial court must determine whether the defendant
has made a prima facie showing that the challenged cause of
action arises from protected activity. (People ex rel. Fire Ins.
15 Melamed argued that judicial exhaustion was not
required because many of the peer review determinations
were in his favor, but the court found that this argument
greatly misstated his case. Furthermore, although Melamed
repeatedly asserted that the peer review process had been
protracted and unfair, he never petitioned for mandamus on
the ground that he did not receive a fair hearing.

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Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822.) If the
defendant makes that showing, the trial court proceeds to
the second step, determining whether the plaintiff has
shown a probability of prevailing on the claim. (Ibid.)
Subdivision (e) of section 425.16 delineates the type of
speech or petitioning activity protected. Such acts include:
“(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law, (2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law,
(3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an
issue of public interest, or (4) any other conduct in
furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in
connection with a public issue or an issue of public
interest.”16 (§ 425.16, subd. (e).)
Courts have not precisely defined the boundaries of a
cause of action “arising from” such protected activity.
(§ 425.16, subd. (b).) “[T]he statutory phrase ‘cause of
action . . . arising from’ means simply that the defendant’s
16 A defendant who invokes subparagraph (1) or (2)
need not “separately demonstrate that the statement
concerned an issue of public significance.” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1123.)

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act underlying the plaintiff’s cause of action must itself have
been an act in furtherance of the right of petition or free
speech. [Citation.] In the anti-SLAPP context, the critical
point is whether the plaintiff’s cause of action itself was
based on an act in furtherance of the defendant’s right of
petition or free speech.” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78.) In determining whether a cause of action is
based on protected activity, “[w]e examine the principal
thrust or gravamen of a plaintiff’s cause of action to
determine whether the anti-SLAPP statute applies.”
(Ramona Unified School Dist. v. Tsiknas (2005) 135
Cal.App.4th 510, 519–520.) “We assess the principal thrust
by identifying ‘[t]he allegedly wrongful and injury-producing
conduct . . . that provides the foundation for the claim.’ ”
(Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th
1264, 1272.)
Second, “[i]f the defendant makes the required
showing, the burden shifts to the plaintiff to demonstrate
the merit of the claim by establishing a probability of
success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The
plaintiff must do so with “admissible evidence.” (Kreeger v.
Wanland (2006) 141 Cal.App.4th 826, 831.) “We decide this
step of the analysis ‘on consideration of “the pleadings and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.” (§ 425.16, subd. (b).)
Looking at those affidavits, “[w]e do not weigh credibility,
nor do we evaluate the weight of the evidence. Instead, we
accept as true all evidence favorable to the plaintiff.” ’ ”

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(Burrill v. Nair (2013) 217 Cal.App.4th 357, 378–379,
disapproved in part by Baral, at p.396, fn. 11.)
This second step has been described as a “ ‘summary-
judgment-like procedure.’ ” (Baral v. Schnitt, supra, 1
Cal.5th at p. 384.) A court’s second step “inquiry is limited
to whether the[opposing party] has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. [The court] . . . evaluates the
defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.)
“Only a [claim] that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning
and lacks even minimal merit—is a SLAPP, subject to being
stricken under the statute.” (Navellier v. Sletten (2002) 29
Cal.4th 82, 89.)
On appeal, we review the trial court’s decision de novo,
engaging in the same two-step process to determine, as a
matter of law, whether the defendant met its initial burden
of showing the action is a SLAPP. (Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, 266–267.) “[I]f the
defendant does not meet its burden on the first step, the
court should deny the motion and need not address the
second step.” (Tuszynska, at p. 266.)
II. Merits
Because we review the trial court’s ruling on the
motion to strike de novo, (Flatley v. Mauro (2006) 39 Cal.4th
299, 325), we must determine whether the hospital have
made a prima facie showing that the challenged cause of

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action arises from the hospital’s protected activity. (People
ex rel. Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th
at p. 822.) If the hospital have made that showing, we then
proceed to the second step, determining whether Melamed
has shown a probability of prevailing on his claims. (Ibid.)
In Kibler, supra, 39 Cal.4th at page 198, our Supreme
Court held that an anti-SLAPP motion was available to a
hospital and its medical staff regarding their actions in a
peer review proceeding where the disciplined physician later
sued for interference with his practice of medicine. There,
the hospital summarily suspended the physician’s staff
privileges for two weeks, but reinstated them after he agreed
to refrain from certain behaviors. (Id. at p. 196.)
Kibler, supra, 39 Cal.4th 192 reasoned that a lawsuit
arising from a peer review proceeding is subject to a special
motion to strike because it qualifies as “ ‘any other official
proceeding authorized by law’ ” pursuant to section 425.16,
subdivision (e)(2). (Id. at p. 198.) In so holding, the court
relied on three considerations. First, peer review
proceedings are required of hospitals and heavily regulated.
(Id. at pp. 199–200.) Second, because hospitals are required
to report the results of peer review proceedings to the state
medical board, peer review proceedings play a “significant
role” in aiding the appropriate state licensing boards in their
responsibility to regulate and discipline errant practitioners.
(Id. at p. 200.) Third, “[a] hospital’s decisions resulting from
peer review proceedings are subject to judicial review by
administrative mandate. [Citation.] Thus, the Legislature

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has accorded a hospital’s peer review decisions a status
comparable to that of quasi-judicial public agencies whose
decisions likewise are reviewable by administrative
mandate.” (Ibid.) As such, peer review proceedings
constituted “official proceedings authorized by law” under
section 425.16, subdivision (e)(2). To hold otherwise would
discourage participation in medical peer reviews by allowing
disciplined physicians to sue hospitals and their peer review
committee members rather than seeking administrative
relief. (Id. at p. 201.)
Relying on Kibler, supra, 39 Cal.4th 192 and Nesson,
supra, 204 Cal.App.4th 65, we initially held in an opinion
published on February 27, 2017, that the hospitals acts
relating to Melamed’s suspension and peer review process
constituted protected activity under the anti-SLAPP statute
and that Melamed’s claims arose from this protected
activity. Melamed then filed a petition for review, raising
several issues he believed merited our reconsideration. We
denied the petition. On June 21, 2017, the California
Supreme Court remanded the case for reconsideration in
light of Park, supra, 2 Cal.5th 1057.17
In Park, supra, 2 Cal.5th 1057, a professor who was
denied tenure sued the university alleging national origin
discrimination. (Id. at p. 1061.) In response, the university
filed an anti-SLAPP motion. The trial court denied the
17 Park, supra, 2 Cal.5th 1057 was handed down on
May 4, 2017.

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motion, ruling that “the complaint was based on the
University’s decision to deny tenure, rather than any
communicative conduct in connection with that decision.”
(Ibid.) Our colleagues in Division Four, reversed, holding
that a claim alleging a discriminatory decision is subject to
an anti-SLAPP motion so long as the protected speech and
activity contributed to that decision. (Id. at p. 1061.)
Our highest court reversed, holding that a
discrimination claim “may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not
just evidence of liability or a step leading to some different
act for which liability is asserted.” (Park, supra, 2 Cal.5th at
p. 1060.) As the court further explained, “What gives rise to
liability is not that the defendant spoke, but that the
defendant denied the plaintiff a benefit, or subjected the
plaintiff to a burden, on account of a discriminatory or
retaliatory consideration.” (Id. at p. 1066.) “Failing to
distinguish between the challenged decisions and the speech
that leads to them or thereafter expresses them ‘would chill
the resort to legitimate judicial oversight over potential
abuses of legislative and administrative power.’
[Citations.] . . . [Citation.] Conflating, in the anti-SLAPP
analysis, discriminatory decisions and speech involved in
reaching those decisions or evidencing discriminatory
animus could render the anti-SLAPP statute ‘fatal for most
harassment, discrimination and retaliation actions against
public employers.’ ” (Id. at p. 1067.) The Park court
observed that while “[t]he tenure decision may have been

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communicated orally or in writing . . . that communication
does not convert [the plaintiff’s] suit to one arising from such
speech.”18 (Id. at p. 1068.)
In so holding, the California Supreme Court
distinguished Kibler, supra, 39 Cal.4th 192. “There, the
plaintiff doctor sued a hospital and various individual
defendants for defamation and related torts. The trial court
in Kibler found, and we accepted for purposes of review, that
these tort claims arose from statements made in connection
with a hospital peer review proceeding. The only issue
18 We note that the California Supreme Court cited
with approval the Third Appellate District’s decision in Nam
v. Regents of University of California (2016) 1 Cal.App.5th
1176. Nam held that a medical resident’s claims against a
university for wrongful termination, breach of contract and
related causes of action that were premised on the
university’s allegedly wrongful disciplinary actions and,
ultimately, its termination of the plaintiff from her position
did not “arise from” any protected activity, so as to warrant
anti–SLAPP protection. (See id. at pp. 1185–1193.) This
was true even though the adverse employment actions were
the culmination of various oral and written communications,
including complaints about the plaintiff, an investigation,
disciplinary warnings and written notice of her termination.
(See id. at p. 1186.) As our Supreme Court explained, “Nam
illustrates that while discrimination may be carried out by
means of speech, such as a written notice of termination, and
an illicit animus may be evidenced by speech, neither
circumstance transforms a discrimination suit to one arising
from speech.” (Park, supra, 2 Cal.5th at p. 1066.)

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before us was whether, assuming this to be so, the peer
review proceeding was an ‘ “official proceeding” ’ within the
meaning of the anti-SLAPP statute.” (Park, supra, 2 Cal.5th
at p. 1069.) “We did not consider whether the hospital’s peer
review decision and statements leading up to that decision
were inseparable for purposes of the arising from aspect of
an anti-SLAPP motion, because we did not address the
arising from issue.” (Ibid.) In short, “Kibler does not stand
for the proposition that disciplinary decisions reached in a
peer review process, as opposed to statements in connection
with that process, are protected.” (Park, at p. 1070; see
Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th
35, 58 [“Kibler addressed only whether hospital peer review
proceedings can be ‘ “official proceedings” ’ and courts
resolving anti-SLAPP motions must still separately
determine whether a given claim arises from any protected
activity”].)
Adding to this holding, the Fourth District recently
determined: “It [also] matters not whether activity can be
described as ‘protected’ as meeting one of the definitions of
protected activity in subdivision (e) of the anti-SLAPP
statute.” (Bonini v. St. Joseph Health System (2017) 13
Cal.App.5th 851, 862 (Bonini).) “What matters is whether
[the] plaintiff's claim arises from that activity.” (Ibid.)
“[W]here liability . . . is premised on retaliatory adverse
action taken in response to a protected complaint, the
plaintiff's claim arises from the retaliatory motive or
purpose.” (Ibid.)

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Bonini, supra, 13 Cal.App.5th 851 involved a plaintiff
surgeon’s claims that a hospital retaliated against him for
whistleblowing, in violation of Health and Safety Code
section 1278.5. The defendant brought an anti-SLAPP
motion claiming that its actions arose out of protected
activity of hospital peer review proceedings. Relying on
Park, supra, 2 Cal.5th 1057, the court wrote: “[I]t is not
sufficient merely to determine whether [the] plaintiff has
alleged activity protected by the statute. The alleged
protected activity must also form the basis of plaintiff’s
claim.” (Bonini, at p. 861.) The court then analyzed the
whistleblower statute at issue and concluded that: “In the
absence of a retaliatory or discriminatory purpose
motivating the adverse action, there is simply no liability
under Health and Safety Code section 1278.5. Thus, the
basis for the retaliation claim under section 1278.5 is the
retaliatory purpose or motive for the adverse action, not the
adverse action itself.” (Ibid.) The court held that section
425.16 did not apply because the plaintiff’s claim “arises
from defendants’ retaliatory purpose or motive, and not from
how that purpose is carried out, even if by speech or
petitioning activity.” (Ibid.)
The anti-SLAPP statute protects “any written or oral
statement or writing made in connection with an issue under
consideration or review by [an] official proceeding authorized
by law.” (§ 425.16, subd. (e)(2).) However, here, as in
Bonini, supra, 13 Cal.App.5th 851, Melamed “did not allege
any specific ‘written or oral statement or writing’ which

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allegedly formed the basis of his retaliation claim. Instead,
he alleged that an abusive peer review process was initiated
by the hospital because he . . . complain[ed] about unsafe
conditions at the hospital[ ]. Thus, his claim was not based
merely on [the hospitals] act of initiating and pursuing the
peer review process, or on statements made during those
proceedings—but [rather] on the retaliatory purpose or
motive by which it was undertaken.” (See id. at p. 863.)
Although Park, supra, 2 Cal.5th 1057 involved a
university tenure process conducted in an allegedly
discriminatory fashion, its rationale applies to the allegedly
retaliatory peer review process at issue here. (Bonini, supra,
13 Cal.App.4th at p. 863.) As noted in Park, “The elements
of [the plaintiff’s] claim . . . depend not on the grievance
proceeding, any statements, or any specific evaluations of
him in the tenure process, but only on the denial of tenure
itself and whether the motive for that action was
impermissible. The tenure decision may have been
communicated orally or in writing, but that communication
does not convert [the plaintiff’s] suit to one arising from such
speech.” (Park, at p. 1068.)
Here, as noted by the trial court, “[a]ll of [Melamed]’s
causes of action are based on the allegations that he made
reports of unsafe and substandard hospital conditions and
services that posed a threat to patients . . . and that [the
hospital] responded to this action by summarily suspending
his medical staff privileges, reporting the summary
suspension to state authorities, and subjecting Melamed to a

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protracted and unfair peer review process.” Nevertheless,
under case law in effect at that time, the trial court held that
the hospitals conduct constituted protected activity under
section 425.16, subdivision (e)(2). But this determination no
longer ends the inquiry. Instead, what matters is whether
Melamed's claim arises from that activity. (See Bonini,
supra, 13 Cal.App.5th at p. 862.) Thus, we must distinguish
between protected activity that is mere evidence related to
liability and protected activity that is the basis for liability.
(Graffiti Protective Coatings, Inc. v. City of Pico Rivera
(2010) 181 Cal.App.4th 1207, 1214–1215.)
In this case, as in Bonini, supra, 13 Cal.App.5th 851,
the hospitals alleged retaliatory motive in suspending
Melamed and subjecting him to a lengthy and allegedly
abusive peer review proceeding is the basis on which liability
is asserted. The alleged liability does not arise merely from
the initiation and pursuit of the proceedings or from
statements made during those proceedings. (See id. at
p. 864.) While the proceedings may be evidence of the
hospitals alleged liability, they are not the basis for it.
Because a claim “may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not
just evidence of liability.” (Park, supra, 2 Cal.5th at
p. 1060.) Accordingly, the hospital cannot make a prima
facie showing that Melamed’s causes of action arose from
their protected activity.19 (See People ex rel. Fire Ins.
19 Although the Fourth Appellate District noted that
retaliation claims are rarely good candidates for anti-SLAPP

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Exchange v. Anapol, supra, 211 Cal.App.4th at p. 822.)
Consequently, we cannot proceed to the second step to
determine whether Melamed has shown a probability of
prevailing on his claims. (See ibid.)
DISPOSITION
The order is reversed. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
CHANEY, Acting P. J. LUI, J.
motions, Bonini, supra, 13 Cal.App.5th at page 855, we
recently reaffirmed that the SLAPP statute continues to
apply to claims of discrimination, harassment, and
retaliation, notwithstanding Park, supra, 2 Cal.5th 1057.
(See Okorie v. Los Angeles Unified School District (2017) 14
Cal.App.5th 574.) Indeed, if the California Supreme Court
had intended otherwise, Park would have so held. Instead,
Park instructs lower courts to look closely at such claims
when deciding whether they are subject to an anti-SLAPP
motion, and to “respect the distinction” between speech that
provides the basis for liability and speech that provides
evidence of liability. (Park, at p. 1064.)

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