Filed 10/23/20 Khoiny v. St. Mary Medical Center CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

NOUSHIN KHOINY,

Plaintiff and Appellant,

v.

ST. MARY MEDICAL CENTER et al.,

Defendants and Respondents.

B294549

(Los Angeles County

Super. Ct. No. BC575230)

APPEAL from an order of the Superior Court of Los Angeles County. Susan Bryant-Deason, Judge. Affirmed.

Makovoz Law Group and Ilana Makovoz for Plaintiff and Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Eric C. Schwettmann and John J. Manier for Defendants and Respondents.

_____________________________

In 2012, Dr. Noushin Khoiny became a resident in the internal medicine program at St. Mary Medical Center. After her second year, her residency was terminated for what St. Mary identified as a host of patient care issues. Dr. Khoiny sued, claiming she was subject to discrimination, retaliation, and defamation, among other claims.

The case went to trial. After the close of Dr. Khoiny’s presentation of evidence, the trial court granted a motion for nonsuit in favor of five individual physician defendants for claims of defamation. The court held the qualified common interest privilege in Civil Code section 47, subdivision (c) (section 47(c)) applied, and Dr. Khoiny failed to offer evidence of malice in order to overcome the privilege. Dr. Khoiny appeals that ruling.

Dr. Khoiny has failed to carry her burden on appeal to demonstrate reversible error. In her opening brief, she did not identify the allegedly defamatory statements for four of the five individual defendants, so we cannot determine whether the trial court erred in finding any alleged statements were privileged under section 47(c) and were not made with malice. For the fifth defendant, she identified the statement she claims was defamatory, but she waived any challenge to the application of section 47(c) by conceding the issue at trial, and she failed to tie any alleged evidence of malice to the truth or falsity of his statement. She attempted to rectify some of these problems in her reply brief, but by that point it was too late. We affirm.

BACKGROUND

The record following trial is large, and both parties include an enormous amount of factual detail in their briefs. Our resolution of this appeal is narrow, so we have pared down the facts to provide necessary context.

In reviewing a grant of nonsuit, we view the evidence in Dr. Khoiny’s favor and “ ‘ “indulg[e] every legitimate inference which may be drawn” ’ ” from it. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).) “We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327 (Alpert).)

The St. Mary Residency Program

From June 2012 to August 2014, defendant Dignity Health employed Dr. Khoiny in the Internal Medicine Program at St. Mary Medical Center. Her residency was terminated after her second year.

The five individual physicians named as defendants in Dr. Khoiny’s defamation claims were involved in the St. Mary residency program during that period: Dr. Choi was Interim Program Director; Dr. Burg was Chief Medical Officer and the Designated Institutional Official overseeing the residency program; Dr. Chavoshan was Associate Program Director and advisor to Dr. Khoiny for part of her second year; Dr. Tanios was Medical Director of St. Mary’s Intensive Care Unit (ICU) and on the faculty; and Dr. Rayhanabad was a Chief Resident and faculty member who supervised Dr. Khoiny during some of her rotations.

The residency program is accredited by the Accreditation Council for Graduate Medical Education (ACGME). Per ACGME guidelines, the residency has a Clinical Competence Committee (the CCC) comprised of faculty and teaching attendings, which evaluates resident performance. A resident is evaluated for six “core competencies” and rated on a scale of unsatisfactory, marginal, satisfactory, and superior. A resident rated as marginal two years in a row is usually not invited to complete the residency program.

The three-year residency training includes rotations through Internal Medicine subspecialties, such as Wards and the ICU. A resident’s goal is to sit for the American Board of Internal Medicine (ABIM) certification exam at the end of the residency.

Dr. Khoiny’s Tenure

Many patient care issues arose during Dr. Khoiny’s tenure, and she disputed the factual accuracy of all of them, believing she performed competently as a resident. Also, starting in the first month of her residency, she began complaining about violations of duty hour requirements set by the ACGME. Over the course of her two years in the program, she reported at least 51 violations. She believed she was terminated because she was female and in retaliation for these complaints.

At the end of Dr. Khoiny’s first year, Dr. Choi told her the CCC rated her as “marginal” overall, meaning she “meets some expectations but occasionally falls short.” According to Dr. Khoiny, Dr. Choi did not give her specific reasons at the time, telling her it was a decision of the CCC and those discussions were confidential. Her evaluations from peers and attendings were mixed positive and negative.

Dr. Khoiny signed her second-year contract in June 2013. Around the same time, Dr. Khoiny received the second-year schedule and complained to Dr. Rayhanabad that she was the only upper level resident assigned consecutive months in the ICU and Wards, the most intensive rotations. Dr. Rayhanabad told her the schedule could not be changed.

In early August 2013, Dr. Khoiny’s advisor Dr. Kehrle criticized her care of a patient. Dr. Kehrle documented the issue, noting at the time that Dr. Khoiny “was open to criticism and appreciated it. She voiced understanding of concerns and willingness for change.” At trial, Dr. Khoiny disputed the accuracy of several aspects of Dr. Kehrle’s account of the incident. Dr. Khoiny believed she had handled the situation correctly.

Dr. Khoiny started her ICU rotation in August 2013 under the attending Dr. Tanios, but it apparently did not go well. ICU nurses complained she was “unsafe in managing” ICU patients. She was unaware of these complaints and disputed the factual accounts at trial. Dr. Rayhanabad removed her from the ICU rotation on her second day but refused to give her an explanation.

Dr. Khoiny complained to Dr. Chavoshan, her new advisor, about her unfair treatment. Dr. Chavoshan told her it was not uncommon for Dr. Tanios to ask for residents to be removed from the ICU, and he had done that for other female residents. Dr. Chavosan said Dr. Tanios held “female residents to a higher standard compared to male residents.” Dr. Chavoshan declined to help Dr. Khoiny.

After her initial ICU rotation, Dr. Khoiny seemed to perform well enough. For her October/November 2013 Ward rotation, Dr. Rayhanabad rated Dr. Khoiny as satisfactory, even rating her as “superior” for professionalism. He also included some criticisms in his comments on her evaluation.

Dr. Choi provided her a letter of good standing in November 2013 for an allergy fellowship.

Dr. Khoiny received a satisfactory evaluation for her December 2013 Wards rotation with some criticism and one category rating of marginal.

In January 2014, St. Mary was placed on probation by the ACGME.

Dr. Khoiny returned to the ICU in February and March 2014 and worked shifts there without any apparent problems or complaints. She did not work under Dr. Tanios during that time, although when she paged him with questions during these shifts, he did not respond “[m]ore than half of the time.” She reported his failure to respond to Dr. Rayhanabad and later to Dr. Choi.

On April 7, 2014, Dr. Choi wrote Dr. Khoiny another letter of good standing.

Just four days after this letter, on April 11, 2014, Dr. Khoiny was working a shift in the ICU under Dr. Tanios when she failed to intubate a patient. This “intubation incident” was a major issue at trial. There was no dispute Dr. Khoiny did not perform the intubation, but beyond that, the parties disputed exactly how the incident occurred. The extensive details are unnecessary. In line with our standard of review, we set forth Dr. Khoiny’s version of events.

According to Dr. Khoiny’s testimony, she and other physicians were doing rounds with Dr. Tanios when a nurse told the group a patient was having trouble breathing and needed to be intubated. Dr. Khoiny and her intern were on call, so Dr. Tanios instructed them to go evaluate the patient. Her intern was called back to continue rounds, leaving Dr. Khoiny to address the patient. She was not certified in intubation, so another doctor, Dr. Zhang, offered to supervise her. Dr. Zhang directed a nurse to page the on-call anesthesiologist and directed a respiratory therapist to “bag” the patient to assist with her breathing. Neither the anesthesiologist nor ER physician responded to pages, so Dr. Zhang left the room to page the anesthesiologist personally. The patient’s oxygen levels continued to drop, so Dr. Khoiny told Dr. Zhang to return to the room for the intubation. When he didn’t step back inside, Dr. Khoiny directed a nurse to get Dr. Tanios.

Dr. Tanios and another doctor, Dr. Mehdizadeh, arrived at the room within 30 seconds to one minute. Dr. Tanios asked why Dr. Zhang was on the phone and “yell[ed]” at Dr. Khoiny in front of the other staff, asking why she didn’t intubate the patient. Dr. Khoiny said the patient was too difficult to intubate because she was morbidly obese with a short, thick neck. Dr. Mehdizadeh intubated the patient with Dr. Tanios’s supervision.

The next day, Dr. Rayhanabad removed Dr. Khoiny from the ICU and replaced her with Dr. Zhang per Dr. Tanios’s instructions. Dr. Khoiny called the decision unfair and claimed she followed procedure during the intubation. She claimed she was the one who called for Dr. Tanios, which was verified by the nurse.

Dr. Tanios testified to a different recollection—he recalled Dr. Khoiny was in a different patient’s room and Dr. Zhang was bagging the patient. In any case, he texted Dr. Rayhanabad at the time: “It is not safe to have . . . Dr. Khoiny cover the ICU. A very concerning event[] jeopardizing patient care just happened.” Dr. Rayhanabad responded: “I discussed the situation in detail with the nurses and you’ll be happy to know that it was actually [Dr. Khoiny] herself who called for you and not the nurses. I explained to her that when things are going south, she can’t always wait for somebody who is ‘certified’ to come save patients for her. Ultimately, though I think [Dr. Zhang] was most at fault . . . but he needed to be off the phone and making an attempt. . . [Dr. Khoiny] just sounds like her fear isn’t doing anyone a favor. I still see where you’re coming from, but at least she had the sense to get help.”

On June 1, 2014, Interim Program Director Dr. Choi emailed resident Dr. Winarko, stating Dr. Khoiny would be the “ ‘resintern’ assigned to your service and would manage patients as independently as she is able.” Dr. Khoiny believed the term “resintern” was made up and derogatory.

Three weeks later on June 22, 2014, Dr. Winarko emailed Dr. Choi a detailed evaluation of Dr. Khoiny. He was very critical of her care of three patients and concluded she was “not qualified or competent to run an ICU team as a resident. She is not nearly efficient enough, she does not have the correct medical decision making, and she puts her patients in danger with mismanagement. In my opinion, she is not qualified to supervise other interns under her in an ICU setting nor run a team by herself. Ultimately, if patient safety is the chief concern, then it is best for her not to advance to becoming an ICU resident.” At trial, Dr. Khoiny disputed the factual accuracy of Dr. Winarko’s email. She noted that, for the same rotation, Dr. Tanios gave her a satisfactory evaluation.

Another issue arose on June 24, 2014 when a patient died on Dr. Khoiny’s Wards shift. Again, the details are unnecessary. The gist was that Dr. Khoiny was on a “night float” shift in the Wards when the patient had a heart attack. He was revived, but he died later in the ICU. Dr. Khoiny claimed the patient’s sign-out sheet had been altered to make it appear that Dr. Khoiny had mismanaged the patient.

On June 26, 2014, Dr. Khoiny signed her third-year contract. She also met with Dr. Choi, who accused her of mismanaging a “hyponatremia” patient, one of the patients discussed in Dr. Winarko’s email. She denied the account and noted male residents mismanaged patients but received no discipline. Dr. Choi told her they were disciplined, but she was not privy to those details. She also said the residents who had heard she had been called a “resintern” were being disrespectful to her. She complained about attendings not being in the ICU 24 hours a day, and Dr. Choi appeared angry and defensive.

Other issues surrounding Dr. Khoiny’s performance arose. Dr. Rayhanabad wrote a note on June 30, 2014 that was critical of Dr. Khoiny’s care of a patient. On July 1, 2014, two separate chief residents sent emails to Drs. Choi and Chavoshan, documenting issues with Dr. Khoiny’s care of patients, including the patient from the Wards who died and the hyponatremia patient. Dr. Khoiny was also criticized for not timely responding to two “code blues” in May 2014, although she presented evidence she was unaware of them.

At a July 11, 2014 meeting, Dr. Choi, Dr. Chavoshan, and another attending doctor accused Dr. Khoiny of mismanaging patients. Dr. Khoiny disputed the accounts of the incidents. As she was explaining them, Dr. Chavoshan interrupted and yelled at her. Dr. Choi threatened she would be rated as “marginal” for her second year. She urged them to look at the relevant medical records, but they did not respond.

On July 15, 2014, Dr. Khoiny received a “Milestones” evaluation reflecting she was rated satisfactory in five of the six core competencies, and rated marginal for Patient Care. For each category she was rated as “not yet ready for unsupervised practice.”

Dr. Khoiny and her brother Amir (also a physician) met with Designated Institutional Officer Dr. Burg on July 17, 2014. She wanted to discuss the issues brought up at the July 11 meeting. Dr. Khoiny testified, “Dr. Burg stated that he had heard in the faculty meeting that I had mismanaged a patient which was the Patient R.V., the one who died. And Dr. Burg said that he heard during the faculty meeting that I was working in the ICU when this patient was misdiagnosed and mismanaged and died and really—he had been hearing that all the fault of it, that patient’s care, was on me. [¶] He also said that he had heard there was a code blue that happened in the prior year that I had not responded to. [¶] And he said that there’s been behind-the-scenes faculty discussions about my performance and issues with me taking care of patients that these core faculty were bringing up in these meetings.”

Dr. Khoiny complained that most of the core faculty had not filled out evaluations for her. Dr. Burg assured her she would be able to see all of her evaluations to become aware of the criticisms of her care. She also complained that Dr. Tanios was discriminating against her because she is female.

On July 20, 2014, Dr. Khoiny sent a detailed email to Drs. Choi and Burg again disputing the incidents raised in the July 11 meeting regarding her patient care and performance. Dr. Chavoshan wrote a detailed response to Dr. Khoiny’s email, claiming Dr. Khoiny’s account included “a number of grossly erroneous statements.” Dr. Chavoshan “[did] not see that she takes any degree of ownership for her problems.” At trial, Dr. Khoiny disputed the facts set forth in Dr. Chavoshan’s memo.

Dr. Khoiny was removed from the resident schedule on July 24, 2014.

The CCC met on July 31, 2014 to evaluate Dr. Khoiny’s performance. Of the individual defendants, only Drs. Burg and Choi attended, along with several other CCC members. Dr. Khoiny attended with an advocate and distributed a detailed written response to the criticisms of her performance.

Dr. Chavoshan did not attend the CCC meeting, but he sent the committee a written “summary of the meetings” he had with Dr. Khoiny. For the intubation incident, he assumed Dr. Khoiny’s version of the facts was correct, and he said Dr. Khoiny had made the “right call” and he would “strongly back her on the decision making in this case.” Nonetheless, the “main problem” was her “perceived inability to make any decision that had alarmed” the other staff. “[T]his was yet another example of lack of expressed assertiveness on her part, a problem that had been noted time and again with her performance.” He also noted at the July 11, 2014 meeting Dr. Khoiny appeared “defiant, accusatory and disrespectful.” She “expressed no significant insight into her performance.” Dr. Burg received this letter ahead of the CCC meeting. At trial, Dr. Khoiny disputed aspects of the letter.

The CCC voted to rate Dr. Khoiny as marginal for her second year and terminate her residency. Two female members of the committee voted not to fire her.

This Lawsuit

Dr. Khoiny filed this case against Dignity Health, St. Mary, and the five individual physician defendants—Drs. Choi, Burg, Chavoshan, Tanios, and Rayhanabad. She alleged a host of claims, including gender discrimination, wrongful termination, and retaliation. As against the five individuals, she alleged only claims for defamation.

The case proceeded to trial. At the close of Dr. Khoiny’s presentation of evidence, the individual defendants moved for nonsuit on the defamation claims. Defense counsel said it was “sort of hard for me to argue [the motion] because I don’t even know what the defamatory statements are. I know what they were proposed to be beforehand, but whatever statements counsel is relying upon, they were either opinion, which is not defamation, or qualifiedly privileged to persons interested under Civil Code Section 47(c), and—or mandated to be made to the ACGME. [¶] There has been no evidence of malice on the part of any individual defendant.”

Dr. Khoiny’s counsel did not specify the statements Dr. Khoiny claimed were defamatory. He “agree[d] there’s a privilege,” but argued there was evidence of malice to overcome the privilege.

The court held the section 47(c) privilege applied “based on the evidence” as well as based on a clause on Dr. Khoiny’s residency contracts. The court did not see evidence of malice. The court noted it was “looking at it in the light most favorable to plaintiff. [¶] I’m looking at everything plaintiff said, and I’m not sure what the defamatory statements are either.”

In response to this comment, plaintiff’s counsel still did not specify what statements Dr. Khoiny was challenging. Instead, he argued a theory of malice that basically rested on the defendants’ “willful failure to investigate” Dr. Khoiny’s version of events surrounding her performance issues before rating her as marginal and terminating her. He also attempted to rely on the evidence of discrimination and retaliation to show malice, but the court appeared disinclined to consider it.

The court ultimately held the section 47(c) privilege “does apply, and the Court also finds that there has been no showing of any evidence that the defendants—the individual defendants acted with hatred or ill-will towards the plaintiff showing a willingness to vex, annoy, or injure her.” The court entered an order granting nonsuit in favor of the individual defendants.

Dr. Khoiny appealed the order.

DISCUSSION

1. Standard of Review

“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’]s evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’]s favor.” ’ [Citation.] A mere ‘scintilla of evidence’ does not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create the necessary conflict.’ ” (Nally, supra, 47 Cal.3d at p. 291.)

We review the grant of nonsuit de novo. (Legendary Investors Group No. 1, LLC v. Niemann (2014) 224 Cal.App.4th 1407, 1422.) “In reviewing a grant of nonsuit, we are ‘guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.’ [Citation.] We will not sustain the judgment ‘ “unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.” ’ ” (Nally, supra, 47 Cal.3d at p. 291.)

2. Analysis

To prove defamation, a plaintiff must present evidence of a “ ‘(a) publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus).)

Section 47(c) creates a qualified common interest privilege that can bar a defamation claim. The statute provides in relevant part: “ ‘A privileged publication or broadcast is one made: [¶] . . . [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested . . . .’ ” (Taus, supra, 40 Cal.4th at p. 721.) The section 47(c) qualified privilege is “ ‘recognized where the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.’ [Citation.] The ‘interest’ must be something other than mere general or idle curiosity, such as where the parties to the communication share a contractual, business or similar relationship or the defendant is protecting his own pecuniary interest. [Citation.] Rather, it is restricted to ‘proprietary or narrow private interests.’ ” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 287 (Hawran); see Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 90 [same] (Bikkina).)

Once the section 47(c) privilege applies, the burden shifts to the plaintiff to establish the challenged statements were made with malice. (Taus, supra, 40 Cal.4th at p. 721; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202 (Lundquist).) “ ‘ “ ‘The malice necessary to defeat a qualified privilege is “actual malice” which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds, for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff’s rights [citations].’ ” ’ ” (Hawran, supra, 209 Cal.App.4th at p. 288.)

Dr. Khoiny Has Not Carried Her Burden to Show Reversible Error as to Drs. Choi, Chavoshan, Tanios, and Rayhanabad

Despite filing a nearly 70-page opening brief, Dr. Khoiny did not identify the most basic aspect of her defamation claims against Drs. Choi, Chavoshan, Tanios, and Rayhanabad—she did not identify which “publications” by these defendants she claims were false and defamatory. Instead, in her opening brief, she vaguely argued the section 47(c) privilege “did not apply to the defamatory statements published by the individual defendants.” Likewise, she included a list of evidence she claimed showed “circumstantial evidence . . . from which an inference of malice could and should have been made,” but she tied none of the evidence to any specific publications by these four defendants.

This failure is fatal to her appeal as to these defendants. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609; see Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellant waived challenge to summary judgment by “cit[ing] only general legal principles without relating them to any specific facts or admissible evidence”].)

Dr. Khoiny’s claims of error turn on the nature and circumstances of the challenged statements. The tort of defamation is necessarily built around the existence of some communication the plaintiff believes was false and defamatory. (Taus, supra, 40 Cal.4th at 720; see Bikkina, supra, 241 Cal.App.4th at p. 86 [“ ‘Defamation consists of, among other things, a false and unprivileged publication, which has a tendency to injury a party in its occupation.’ ” (Italics added)].) To decide whether section 47(c) applies, we must examine both “ ‘the occasion on which a communication is made and if it was made without malice.’ ” (See Lundquist, supra, 7 Cal.4th at p. 1204, italics added.) For malice, we must examine whether “ ‘ “ ‘the publication was motivated by hatred or ill will towards the plaintiff’ ” ’ ” or whether the defendants “ ‘ “ ‘lacked reasonable grounds, for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiff’s rights [citations].’ ” ’ ” (Hawran, supra, 209 Cal.App.4th at p. 288, italics added.)

Despite the trial court’s own confusion over what publications were at issue, we must presume the court ultimately understood Dr. Khoiny’s claims. We must also presume the trial court correctly concluded those statements were privileged and made without malice. On appeal, Dr. Khoiny bore the burden to demonstrate the trial court erred on these points. She could only do that by identifying the statements at issue. By not doing so, Dr. Khoiny has failed to carry her burden as appellant to show error on appeal.

Rather than identify the statements at issue, Dr. Khoiny argues our review is limited to only those grounds raised by defendants and relied on by the trial court. Strictly speaking, those grounds were the section 47(c) privilege and malice, not Dr. Khoiny’s failure to identify the statements at issue. There is a split of authority on whether our review is so limited or whether we may examine grounds raised by the defendant but not ruled on by the trial court. Arguably that would include Dr. Khoiny’s failure to clearly identify the challenged statements, since defense counsel expressed confusion over what the statements were. (Compare Alpert, supra, 81 Cal.App.4th at p. 1328, fn. 8 [noting split of authority over whether review of grant of nonsuit is limited to grounds raised by defendant and ruled on by trial court] with Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542, fn. 2 [rejecting narrow scope of review and finding no bar to the “consideration on appeal of alternative grounds which were stated by the moving party but which were not among those relied upon by the trial court in granting the motion”].)

We need not weigh in on the issue. Even under the more limited review Dr. Khoiny advocates, she was not relieved of the burden on appeal to show the trial court committed reversible error. That meant at the very least filing an opening brief that clearly identified the statements from each defendant that, in her view, were not privileged or were made with malice. We simply cannot evaluate whether the trial court erred on the grounds it cited without this basic prerequisite.

In her nearly 70-page reply brief, Dr. Khoiny attempted to tie her evidence of malice to each individual defendant and, in the process, alluded to defamatory publications for some of them. By that point, it was too late. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 592 (Schmidt) [“reply arguments are forfeited as tardy, because appellants must give the other side fair notice and an opportunity to respond”].) Having failed to identify the challenged publications by Drs. Choi, Chavoshan, Tanios, and Rayhanabad in her opening brief, Dr. Khoiny has not demonstrated error justifying reversal of nonsuit as to those defendants.

Dr. Khoiny Failed to Show Reversible Error as to Dr. Burg

The only publication Dr. Khoiny clearly identifies is Dr. Burg’s statement at the July 17, 2014 meeting with her and her brother. As quoted in the facts section above, she testified Dr. Burg said “he had heard in the faculty meeting that I had mismanaged a patient which was the Patient R.V., the one who died. And Dr. Burg said that he heard during the faculty meeting that I was working in the ICU when this patient was misdiagnosed and mismanaged and died and really—he had been hearing that all the fault of it, that patient’s care, was on me. [¶] He also said that he had heard there was a code blue that happened in the prior year that I had not responded to.”

We will assume for the sake of our decision that Dr. Burg’s statement of what he had “heard” from other faculty members could be deemed an actionable false publication. Nonsuit was nonetheless properly granted on this claim.

First, Dr. Khoiny argues section 47(c) does not apply to Dr. Burg’s statement for two related reasons: (1) her brother was present but not “interested” in the statement as required by section 47(c); and (2) another trial judge previously denied summary judgment by finding her brother did not share a “common interest” with Dr. Burg because her brother “does not work at St. Mary.”

Dr. Khoiny waived both contentions because she conceded at trial the privilege applied. During argument on the nonsuit motion, the court expressly asked her counsel, “Do you agree that the privilege applies?” Counsel responded, “I agree there’s a privilege. If there is—there’s no privilege if there’s malice.” Counsel then argued there was evidence of malice to overcome the privilege. An appellant cannot raise an issue on appeal that she conceded below. (Saret-Cook v. Gilbert, Kelly, Crowley, & Jennett (1999) 74 Cal.App.4th 1211, 1227.) Dr. Khoiny attempts to parse her counsel’s statement to argue he didn’t actually concede the issue. Even if we agreed, she still forfeited this argument because she did not raise it in the trial court. (Ibid.) Not only did she fail to argue the issue during argument on the nonsuit motion, but she failed to raise it in her trial brief, opting instead to argue the evidence of malice overcame section 47(c).

Turning to the issue of malice, Dr. Khoiny’s analysis of malice in her opening brief was comprised of 14 pages discussing the law and four pages of 21 bullet points of evidence. Among those points, there is only one passing reference to Dr. Burg, which described him and Dr. Choi reporting her to the Medical Board seven months after she was terminated. There were no references at all to Dr. Burg’s alleged defamatory statement, let alone any cogent analysis as to how the evidence in those bullet points showed Dr. Burg made his statement with malice.

This cannot show reversible error on appeal. The malice required to overcome the section 47(c) privilege is actual malice, shown by either hatred or ill will, or by a lack of reasonable belief in the truth of the defamatory statement. (Hawran, supra, 209 Cal.App.4th at p. 288.) Of course, this could be established by circumstantial evidence supporting an inference of ill will or reckless failure to investigate the truth of the statement, as Dr. Khoiny contends. (See Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1050.) We also accept her argument that the trial court should have considered her evidence of alleged discriminatory or retaliatory intent as probative of ill will or recklessness. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 729.) The problem is that Dr. Khoiny failed to tie the evidence to Dr. Burg individually. By inference or otherwise, she has not shown he either personally harbored any ill will toward her that motivated his allegedly false publication or recklessly failed to investigate the truth of his statement.

Dr. Khoiny belatedly addresses the issue of malice for Dr. Burg in her reply brief, outlining the evidence specific to Dr. Burg that she claimed showed malice. This was an intensely factual issue, and by addressing it for the first time in reply, she forfeited it. (Schmidt, supra, 44 Cal.App.5th at p. 592.)

Even considering Dr. Khoiny’s belated argument, we reject it. Dr. Khoiny’s theory is that Dr. Burg “failed to investigate which showed reckless disregard and malice.” She cites evidence Dr. Burg (1) did not investigate any of the issues she raised in the July 17 meeting with him; (2) he voted to terminate her residency during the CCC meeting without looking at any patient records; (3) he did not investigate her complaints that Dr. Tanios discriminated against female residents; (4) he did not investigate any of the issues Dr. Khoiny included in her July 20 memorandum refuting the issues raised in the July 11 meeting with Drs. Chavoshan and Choi; and (5) he did not investigate the facts in Dr. Khoiny’s written presentation at the CCC meeting.

This evidence might have shown Dr. Burg recklessly failed to investigate the patient care complaints made against Dr. Khoiny. But the truth or falsity of the underlying complaints are not the issue. We evaluate malice by focusing on the defamatory publication and whether it was motivated by a reckless failure to investigate its truth. (See Antonovich, supra, 234 Cal.App.3d at p. 1048 [“ ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ ” (Italics added.)].)

Contrary to Dr. Khoiny’s characterization in her briefs on appeal, Dr. Burg did not “personally [make] false allegations Dr. Khoiny killed a patient without any investigation” and “previously harmed other patients.” Again, the only actual statement she cites from the record is Dr. Burg’s comment that he had heard that she had mismanaged a patient who died, and he had heard she had not responded to a code blue. None of his alleged failures to investigate the truth of the underlying complaints was probative of whether he maliciously said he had simply heard those complaints from others. Indeed, there was no dispute these complaints were made about Dr. Khoiny’s patient care, accurate or not. Perhaps more to the point, Dr. Khoiny and her brother met with Dr. Burg on July 17 precisely because she wanted to discuss the patient care complaints that had been leveled against her. To suggest that Dr. Burg then maliciously defamed her by confirming he had independently heard complaints from others is unequivocally meritless. Nonsuit was proper.

DISPOSITION

The order granting nonsuit is affirmed. Defendants are entitled to costs on appeal.

BIGELOW, P. J.

WE CONCUR:

GRIMES, J.

STRATTON, J.