Chukwuemeka Ndulue, M.d. v. Fremont-Rideout Health Group

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUKWUEMEKA NDULUE, M.D.,
Plaintiff-Appellant,
v.
FREMONT-RIDEOUT HEALTH GROUP,
Defendant-Appellee.
No. 17-16430
D.C. No.
2:14-cv-00735-KJM-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted April 17, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, M. SMITH, Circuit Judge, and VRATIL,***
District Judge.
In November of 2012, Fremont-Rideout Health Group (“Rideout”) suspended
the hospital privileges of Dr. Chukwuemeka Ndulue, a member of its pediatric staff,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kathryn H. Vratil, United States District Judge for the
District of Kansas, sitting by designation.
FILED
MAY 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for one week. In March of 2014, Ndulue sued Rideout for retaliation under
Section 1278.5 of the California Health and Safety Code, tortious interference with
prospective business and economic relationships, breach of a settlement agreement,
and unfair business practices. He alleged that Rideout suspended him in retaliation
for patient care concerns that he expressed in letters to Rideout’s Professional
Review Committee. The district court granted summary judgment to Rideout, and
Ndulue appeals. We have jurisdiction under 28 U.S.C. § 1331 and affirm in part,
reverse in part and remand.
I.
We review de novo a grant of summary judgment. Evanston Ins. Co. v. OEA,
Inc., 566 F.3d 915, 918–19 (9th Cir. 2009). Viewing the evidence in the light most
favorable to the non-moving party, we determine whether any genuine issues of
material fact exist and whether the district court correctly applied the substantive
law. Id. We do not weigh evidence or determine the veracity of a matter; we
determine only whether a genuine issue for trial exists. Id.
II.
The district court did not err in granting summary judgment to Rideout on
Ndulue’s claim that Rideout violated California Health and Safety Code
Section 1278.5. It found that although Ndulue had established a prima facie case of
retaliation under Section 1278.5, Rideout had adequately proffered a non-retaliatory

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reason for suspending him—outrageous language and accusations in his letters that
violated its Code of Conduct. In addition, Ndulue admitted that his first letter was
intended to attack his colleague’s competence, which violated the Code of Conduct.
Although Ndulue’s protected conduct (i.e. the patient care element of his letters) was
intertwined with his Code of Conduct violations (i.e. outrageous language, accusing
a colleague of murder and mayhem, intentionally implying that his colleague is
incompetent, etc.), no reasonable jury could find that Rideout suspended him even
in part because of patient care complaints. The record is clear that the Committee
suspended Ndulue for the language and nature of his letters—not for his criticism of
patient care standards—and beyond his own speculation, Ndulue presented no
evidence of pretext. In addition, Ndulue’s argument that Rideout could not suspend
him for non-medical grounds lacks merit.
III.
The district court did not err in granting summary judgment to Rideout on
Ndulue’s claims of negligent and intentional interference with prospective business
and economic relationships. To prove tortious interference with prospective
business under California law, Ndulue must show that Rideout engaged in an
independently wrongful act, i.e. an act which “some constitutional, statutory,
regulatory, common law, or other determinable legal standard” proscribes. Korea
Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 954 (Cal. 2003). Conduct that

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would otherwise constitute a breach of the parties’ contract cannot also be the
predicate for interference causes of action. See Block v. eBay, Inc., No. C 11-06718
CRB, 2012 WL 1601471, at *5 (N.D. Cal. May 7, 2012), aff’d, 747 F.3d 1135 (9th
Cir. 2014). Because Ndulue did not assert a wrongful act other than breach of
contract, the district court correctly found that Rideout was entitled to summary
judgment on his claims of negligent and intentional interference with prospective
business or economic relationships.
IV.
The district court erred in granting summary judgment to Rideout on Ndulue’s
claim that Rideout breached their settlement agreement by diverting newborn
patients away from him. Under the parties’ 2011 settlement agreement, Rideout is
required to make “reasonable efforts” to obtain the patients’ pediatrician preferences
in writing, but the settlement agreement does not define what efforts are reasonable.
The district court found that Ndulue had failed to meaningfully rebut
Rideout’s evidence of compliance and had not identified how Rideout violated the
agreement, such that no reasonable jury could conclude that Rideout breached the
settlement agreement.
As evidence of breach, Ndulue relied on the declarations of Lillian Leos, his
office worker, and four mothers who claimed that Rideout had assigned them to
other pediatricians even though they had requested Ndulue. In addition, he relied on

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the declaration of Dr. Leonard Marks, Rideout’s former Chairman of Pediatrics, who
stated that he discovered that Rideout was not complying with the settlement
agreement and that he had complained multiple times to the supervisor, perinatal
coordinator and charge nurse.
As evidence of compliance, Rideout offered the deposition testimony of
Krista Minton, a labor and delivery nurse. She stated that Rideout provides a list to
mothers from which they select their children’s pediatrician, and that nurses do not
give recommendations or attempt to persuade mothers to choose a particular
pediatrician.
Rideout’s evidence about general procedures and practices under the
settlement agreement is in direct conflict with Ndulue’s specific evidence of non-
compliance. A reasonable jury could infer from Ndlulue’s evidence that Rideout did
not make reasonable efforts to “obtain from . . . patients their preferred pediatrician.”
Ndulue’s evidence creates a genuine issue of material fact whether Rideout
failed to make reasonable efforts to comply with the settlement agreement, and
questions of reasonableness are best left to a jury. Here, the evidence was not so
one-sided as to compel a finding that as a matter of law, Rideout had complied with
the settlement agreement.

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V.
The district court did not err in granting summary judgment to Rideout on
Ndulue’s claim that Rideout violated California’s unfair competition law (“UCL”),
Cal. Bus. & Prof. Code § 17200, which prohibits any unlawful, unfair or fraudulent
business act. Ndulue asserts that the “same evidence that supports Dr. Ndulue’s
retaliation claim, breach of contract claim, and business interference claims – the
‘unlawful acts’” supports his UCL claim. As discussed above, Ndulue’s evidence
does not create genuine issues of material fact as to retaliation and tortious
interference. As to Ndulue’s UCL claim, the question thus becomes whether he can
proceed under an “unlawful act” theory based solely on breach of the settlement
agreement. Because a breach of contract cannot satisfy the “unlawful” prong of
California’s UCL, Rideout is entitled to summary judgment on this claim. Shroyer
v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1044 (9th Cir. 2010).
VI.
We affirm the district court’s grant of summary judgment to Rideout on
Ndulue’s claims of retaliation under California Health and Safety Code
Section 1278.5; tortious interference with prospective business and economic
relationships; and violations of California’s unfair competition law. We reverse the
district court’s grant of summary judgment for Rideout on Ndulue’s claim of breach
of the settlement agreement, and remand for further proceedings.

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AFFIRMED in part; REVERSED in part; REMANDED.

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