2017-00210530-CU-DF

Martin Straznicky vs. Dignity Health

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Kilduff, Carolee G.

Defendant Russell’s special anti-SLAPP motion to strike plaintiff Straznicky’s First Amended Complaint (“1AC”) is GRANTED, as follows.

Plaintiff’s counsel failed to comply with CRC Rule 3.1110(b)(3).

Defendant’s objections to evidence do not comply with CRC Rule 3.1354(b).

Factual Background

According to the 1AC in the present action, plaintiff is a physician whose hospital privileges were in 2014 suspended by defendant Dignity Health in response to allegations by various hospital employees. Shortly thereafter, plaintiff filed his first suit against Dignity Health for defamation, harassment and violation of Health & Safety Code §1278.5, alleging he suffered retaliation for reporting unsafe hospital conditions and/or care. According to plaintiff, when certain hospital staff learned plaintiff would be returning to work, they protested and promised he would “never return to work.” While the investigation into the matters leading to plaintiff’s suspension was still ongoing and his suit against Dignity Health was still pending, the attorneys for plaintiff and Dignity Health began discussing settlement possibilities which might allow plaintiff to return to work but when certain employees (Doe Defendants 1-20) learned plaintiff might return to the hospital, they “falsely and maliciously” reported to the FBI on or about 4/5/2016 that plaintiff had threatened the lives of certain employees. Plaintiff contends these defamatory statements were not privileged, damaged his reputation and caused him severe emotional distress.

The 1AC asserts that in investigating the reports about plaintiff, the FBI telephoned Dignity Health seeking to speak with plaintiff and when asked the reason for the call, “the FBI stated in very general terms…Plaintiff ‘may’ pose a ‘potential’ threat but… there were no stated threats to any specific individuals…” (1AC, ¶17.) On or about 4/6/2016 defendant Russell, a Dignity Health employee, wrote and posted a BOLO (be on the lookout) “falsely indicating that Plaintiff is a ‘person of interest to the FBI’ for a ‘credible threat to Dignity Health staff and leadership’.” (1AC, ¶18.) Plaintiff maintains that Dignity Health was not told that he was a “person of interest” or had made “credible threats” against staff but the BOLO was subsequently “posted on the walls of all of the Dignity Hospital[s], including, but not limited to, Methodist, Mercy San Juan, Mercy General, and Mercy Folsom, with a photo of Plaintiff.” (1AC, ¶19.) It is also alleged that an email regarding the warning about plaintiff was sent to all Dignity Health employees and that the latter contacted CBS Channel 13 in Sacramento which republished the defamatory statements on the news, adding that plaintiff was wanted by the FBI. (1AC, ¶¶19, 22-23.) Finally, plaintiff contends there additional false rumors that he had made threats in a Facebook posting. (1AC, ¶26.)

The present action was commenced on 3/28/2018 and the operative 1AC purports to assert four separate causes of action for defamation along with one for intentional infliction of emotional distress (“IIED”).

Moving Papers. Defendant Russell alone now moves to strike the entirety of the 1AC pursuant to Code of Civil Procedure §425.16 on the grounds it seeks to impose liability against him for a written statement made in connection with an issue in a judicial proceeding (plaintiff’s earlier 2015 suit against Dignity Health relating to the suspension of his privileges), in an executive body proceeding (the hospital peer review proceedings relating to the suspension of plaintiff’s privileges), and in another type of official proceeding authorized by law (the FBI’s investigation of threats) or alternatively, seeks to impose liability for a written publication made in connection with an issue of public interest (a perceived threat by plaintiff toward Dignity Health employees. Defendant further insists plaintiff does not have a “probability of prevailing” on the merits because the facts alleged conclusively show that Russell’s publication was to interested persons (i.e., security personnel and potential victims of the reported threat) and thus privileged, and because the publication was neither outrageous nor intended to cause emotional harm to plaintiff.

Opposition. Plaintiff opposes but first concedes that defendant Russell was in April 2016 Dignity Health’s “Regional Director of Security,” he issued on 4/5/2016 a BOLO notice regarding plaintiff to the heads of security at Dignity Health’s regional hospitals and based on existing policies, security personnel were required to maintain the confidentiality of the BOLO unless otherwise directed. The opposition adds that in an initial email on 4/5/2016 to the area hospitals’ respective heads of security, Russell said the BOLO was to be shared “with staff and your immediate chain of command within your facilities” and a subsequent email the same day advised there was no need to place the BOLO at all hospital entry points of your facility since posting it within the hospitals’ respective security operations centers would be sufficient but plaintiff contends this latter email was not addressed to all recipients of the earlier email and neither email specifically required the recipients to maintain the confidentiality of the BOLO. According to plaintiff, on 4/6/2018 “Dignity [Health] issued an E-mail to employees at the Methodist Hospital, entitled ‘CRITICAL INFORMATION – Methodist Security Risk’” and featuring a photograph of plaintiff, which stated plaintiff is “is a person of interest and may pose a potential threat to Methodist Hospital” and this information may be shared with colleagues.

The opposition argues that defendant Russell’s statements are not protected by the anti-SLAPP statute even though Code of Civil Procedure §425.16(a) expressly states that its protections “shall be construed broadly” since none of Russell’s statements had any connection with either plaintiff’s 2015 lawsuit against Dignity Health relative to the suspension of his privileges or the hospital’s peer review process and the statements were not even directed at anyone involved in either of these proceedings. Plaintiff further disputes that defendant Russell’s statements were made in connection with the FBI investigation and insists that defendant’s reliance on Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992 is misplaced inasmuch as the statements in Schaffer found to be protected under §425.16 were by defendant police officers to the district attorney’s office which was investigating an incident involving the plaintiff, a scenario bearing no resemblance to the facts of the case at bar where defendant Russell’s statements were not made to any law enforcement agency investigating plaintiff but rather made only after the FBI contacted Dignity Health about

the threats previously attributed to plaintiff. The opposition also asserts that defendant Russell’s statements were not on a matter of public interest even though ultimately disclosed publicly particularly when Russell intended the statements to remain confidential, thereby precluding protection pursuant to §425.16(e)(4) as a statement “in connection with a public issue or an issue of public interest.”

Plaintiff maintains that even if the anti-SLAPP statute’s protections do apply, this motion must be denied because plaintiff has a “probability of prevailing” on the merits of his claims. More specifically, plaintiff can show defendant Russell intentionally published a false, unprivileged statement suggesting that plaintiff was engaging in criminal threats but plaintiff denies he even made any threat to harm anyone. According to the opposition, defendant cannot evade liability for his defamatory statements by claiming he merely repeated what was learned from the FBI since even “accurate repetition [is] no defense.” Plaintiff adds that defendant Russell’s statements were not protected by the conditional “common interest” privilege found in Civil Code §47(c) because he authorized it to be distributed beyond those security personnel with a legitimate interest in the communication, something confirmed by the policy requiring BOLO notices to remain confidential unless noted otherwise, but plaintiff argues that Russell’s instruction to share with unspecified “staff” indicates this statement was not limited solely to security personnel with a “common interest” in the BOLO. Furthermore, the opposition insists the privilege is inapplicable to the extent defendant Russell’s statements were exaggerated or colored to the detriment of plaintiff, rather than fairly characterizing the FBI’s investigation of his alleged threats.

With respect to the IIED cause of action, plaintiff claims that it may be permissibly based on the same facts constituting defamation and that defendant Russell’s statements were indeed “outrageous” because he (1) abused his power or position to damage plaintiff, (2) knew plaintiff was susceptible to mental distress and/or (3) acted intentionally or recklessly relative to the likelihood plaintiff would be injured by the statements which were unreasonably not kept confidential.

The court notes that the only evidence submitted in opposition is a declaration by plaintiff himself which avers in Paragraphs 2-6 he was in April 2016 contacted by an FBI agent about an alleged threat; he (along with his attorney) met with the FBI agent and his supervisor to ask whether the FBI considered the threat “credible” and whether he was a “person of interest;” and he was told by the FBI that he was not a “person of interest” (a term which plaintiff insists the FBI does not use) and the threat was not considered “credible” since the FBI “had absolutely no evidence to substantiate it.” Paragraphs 7-9 assert that plaintiff received a call from a friend about a report on Channel 13 indicating plaintiff was the subject of a BOLO and a “person of interest” to the FBI for making a “credible threat” against the hospital administration, a report which plaintiff and his mother saw repeated over the next few days and which caused plaintiff to be “mortified and extremely distressed.” According to Paragraphs 10-11, the dealership which had provided plaintiff a “loaner vehicle” demanded the car back because the dealer did not want it to be involved in any crime and plaintiff never made any threat to harm anyone at any hospital.

Objections to Evidence

Plaintiff (timely) filed no written objections to evidence.

Defendant Russell’s written objections to plaintiff’s declaration in opposition are

sustained. In particular, the various statements which plaintiff attributes to the FBI in Paragraphs 2-6 are inadmissible hearsay offered to prove that he was not a “person of interest” and had not made a “credible” threat of harm and the “state of mind” exception in Evidence Code §1250 is inapplicable. Likewise, the evidence in Paragraphs 7-10 relating to the plaintiff’s emotional distress from the BOLO and subsequent reports on it is not relevant to the disposition of this motion, which instead turns on whether defendant Russell’s statements are protected under Code of Civil Procedure §425.16(e) and whether plaintiff can establish a “probability of prevailing” on either the defamation or IIED causes of action.

Analysis

Defendant’s Initial Burden. At the outset, the court notes that the Legislature expressly declared in Code of Civil Procedure §425.16(a) that the anti-SLAPP statute “shall be construed broadly” so as “to encourage continued participation in matters of public significance” and to ensure “this participation should not be chilled through abuse of the judicial process.” With this key provision in mind, the threshold question here is whether the conduct attributed to defendant Russell in plaintiff’s 1AC (distributing a BOLO which indicated “plaintiff is a ‘person of interest to the FBI’ for a ‘credible threat to Dignity Health staff and leadership’” (1AC, ¶18)) arises from conduct falling within the protections of Code of Civil Procedure §425.16(e), which provides in its entirety:

As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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. (Underline added for emphasis.)

Construing these provisions broadly as mandated by the Legislature, this court is persuaded that the protections of the anti-SLAPP statute are indeed applicable to the BOLO issued by defendant Russell as either a “statement…made in connection with… any other official proceeding authorized by law” or “any other conduct in furtherance of the exercise of…the constitutional right of free speech in connection with a public issue or an issue of public interest” within the meaning of §425.16(e)(2) and (4).

This conclusion is reinforced by defendant Russell’s own declaration in support of this motion to which no written objections were (timely) asserted and which in pertinent part states that in a conference call on 4/5/2015 he was informed by his supervisor (Mr. Hemphill) (1) the FBI had advised Dignity Health of “a potential threat by [plaintiff] to Dignity staff and leadership;” (2) plaintiff, then unknown to Russell, is a known “gun enthusiast” who previously had “some type of confrontation with employees;” (3) since Dignity Health was “on notice of a potential problem,” immediate steps to increase security were needed and he [Russell] was “to come up with an action plan…to insure the safety of the hospitals.” (Russell Decl., ¶¶6-8.) The declaration further asserts “It

was standard practice at that time to utilize a BOLO…to inform security personnel of a potential threat to security;” the purpose of the BOLO at issue was “to advise our security personnel to be attentive, watch for [plaintiff], and immediately report to us if he appeared at any of the campuses;” the BOLO was sent by email “to the security executives and personnel who participated in the [conference] call earlier that afternoon, asking that they share it with staff and those in their immediate chain of command” but not to anyone outside of security team except for one (Clare Lee) to whom Russell also reported; and Dignity Health’s (unwritten) policy was “for recipients to keep BOLO notices confidential unless otherwise directed.” (Russell Decl., ¶¶7, 9-11.) Based on this uncontradicted evidence, the court is persuaded that defendant Russell’s statements in the BOLO were made in connection with the FBI’s investigation into the threat which had been reportedly made by plaintiff and/or in connection with this reported threat which related to an issue of public interest especially in light of the fact Dignity Health’s area hospitals are generally open to the public.

While plaintiff appears correct that the Schaffer v. City and County of San Francisco decision is factually distinguishable from the case at bar, the court notes that the opposition has offered no appellate authority whatsoever which tends to suggest that defendant Russell’s statements in the BOLO are beyond the protections afforded by the anti-SLAPP statute merely because they were made after Dignity Health was contacted by the FBI rather than made to the FBI particularly when §425.16(a) explicitly indicates the anti-SLAPP statute must be construed broadly. Likewise, the court rejects plaintiff’s suggestion that the statements in the BOLO cannot be protected under §425.16(e)(4) merely because the BOLO was intended to be kept confidential since the safety of the area hospitals and potential threats to same are fairly considered to be issues of public interest.

In the end, the court holds that defendant Russell has met his initial burden of showing the 1AC in this action indeed arises from conduct falling within the broad protections afforded by the anti-SLAPP statute and has thereby shifted to plaintiff the burden to establish a “probability of prevailing” on at least one of the causes of action alleged in order to avoid the entire 1AC from being stricken.

Plaintiff’s Burden of Showing “Probability of Prevailing.” Under current law, plaintiff must to defeat the present special motion to strike establish a “probability of prevailing” on at least one of the alleged causes of action and to do this, plaintiff must show not only that the causes of action are adequately pled (“legally sufficient”) but also produce admissible evidence sufficient to establish each of the prima facie elements of the claim. (See, e.g., Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385; Burrill v. Nair (2013) 217 Cal.App.4th 357, 379-380; Navarro v. IHOP Properties (2005) 134 Cal.App.4th 834, 843-844.) In the moving papers, defendant Russell only challenges the sufficiency of the allegations relating to the IIED claim but regardless, plaintiff’s failure to produce admissible evidence sufficient to establish the essential elements of his defamation and IIED causes of action is fatal to his suit as against defendant Russell.

A. Defamation. As alluded to in the opposition, Civil Code §44 et seq. defines defamation as the unprivileged publication of a statement of fact which is false and has a natural tendency to injure or cause special damages to the plaintiff who in this case contends defendant Russell falsely stated plaintiff had made “credible threats to Dignity Health staff and leadership,” something which plaintiff categorically denies and

insists alone demonstrates the requisite minimal merit to his defamation claim. This court disagrees. As noted above, the 1AC admits that the BOLO at issue here merely stated “Plaintiff is a ‘person of interest to the FBI’ for a ‘credible threat to Dignity Health staff and leadership’” (1AC, ¶18) and the opposition has failed to present any admissible evidence that this was not true. While plaintiff’s own declaration attests to various statements by the FBI to the effect that plaintiff was not a “person of interest” and had not made any “credible threat,” this evidence has been ruled inadmissible as hearsay and thus, plaintiff has failed to demonstrate the BOLO’s statement was actually false, an essential element of defamation. Moreover, even if the hearsay objections to plaintiff’s declaration were not sustained, the opposition contains no admissible evidence showing that Dignity Health was or was not told by the FBI prior to issuing the BOLO, making it impossible to conclude that defendant Russell’s statement was untrue particularly in light of the other information provided to him with the request for increased security to ensure safety at the hospitals.

Additionally, plaintiff also failed to present admissible evidence tending to establish that defendant Russell’s distribution of the BOLO by email to other members of the security personnel and Ms. Lee, one of Russell’s supervisors, was not a communication falling within the “common interest” privilege found in Civil Code §47 (c), which provides in pertinent part:

In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. …

The Russell Declaration confirms that “It was standard practice at that time to utilize a BOLO…to inform security personnel of a potential threat to security” and the sole purpose of the subject BOLO was “to advise our security personnel to be attentive, watch for [plaintiff], and immediately report to us if he appeared at any of the campuses.” (Russell Decl., ¶¶7, 9-11.) Coupled with the opposition’s concession that Dignity Health’s existing policies required security personnel to maintain the confidentiality of BOLO notices unless otherwise directed and failure to produce any admissible evidence that defendant Russell actually directed security personnel to disclose to any others the existence of the 4/6/2016 BOLO, plaintiff has failed to carry his burden to show either that defendant Russell’s BOLO was not privileged within the meaning of §47(c) or that this conditional privilege was lost on account of malice on the part of Russell.

Because plaintiff has not produced admissible evidence demonstrating that defendant Russell’s statements in the BOLO were either false or non-privileged, plaintiff has as a matter of law no “probability of prevailing” on a defamation cause of action against defendant Russell based on the latter’s 4/6/2016 BOLO.

B. IIED. Plaintiff’s IIED cause of action suffers the same fate because the opposition failed to produce admissible evidence sufficient for a reasonable jury to conclude that defendant Russell’s distribution of the BOLO on 4/6/2018 was (1) “extreme and

outrageous” and/or (2) either intended to cause emotional distress or done with reckless disregard for the probability of causing emotional distress.

Conclusion

For the reasons explained above, defendant Russell’s anti-SLAPP motion is granted as to plaintiff’s 1AC. As a general rule, leave to amend is not given when a motion to strike pursuant to Code of Civil Procedure §425.16 is granted because that would be inconsistent with the remedy otherwise provided by the anti-SLAPP statute. (See, e.g., Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.)

Having prevailed on this special motion to strike, defendant Russell is entitled to an award of attorney fees and costs pursuant to Code of Civil Procedure §425.16(c)(1) and may seek same by noticed motion.

Pursuant to CRC Rule 3.1312, moving counsel to prepare a judgment of dismissal of the 1AC as to defendant Russell only.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)