R. MICHAEL WILLIAMS, Plaintiff and Appellant, v. DOCTORS MEDICAL CENTER OF MODESTO, INC., et al., Defendants and Respondents.
F084700/F085710 (Consolidated)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 3/27/24
(Stanislaus Super. Ct. No. CV-20-004732)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Sonny S. Sandhu, Judge.
Arnold & Porter Kaye Scholer, Sean M. Selegue, Samuel E. Sokolsky; Law Offices of James M. Braden and James M. Braden for Plaintiff and Appellant.
Davis Wright Tremaine, Thomas R. Burke, Terri D. Keville, Anna R. Buono, and Miriam R. Swedlow for Defendants and Respondents Doctors Medical Center of Modesto, Inc., Tenet Healthcare Corporation, Warren Kirk, Mark Fahlen, Marny Fern, and Cheryl Harless.
Pollara Law Group, Dominique Pollara, and Frances Bruce for Defendants and Respondents Hospitalists of Modesto Medical Group, Inc., Arun Manoharan, and Li Huang.
-ooOoo-
Through this appeal, Williams challenges the granting of the anti-SLAPP motions and the awards of attorney fees.2 With respect to the SLAPP orders, Williams contends that the trial court erred by: (1) finding Respondents met their burden of showing that his claims arose from protected activity; (2) estopping him from arguing that his claims did not arise from protected activity by Respondents; and (3) finding that he failed to establish a probability of prevailing on his claims. With respect to attorney fees, Williams contends because he has established that the court erred in granting the anti-SLAPP motions, the derivative award of attorney fees must be reversed. Respondents counter that Williams‘s challenge to attorney fees is redundant or moot, and the Hospitalist Respondents have filed a combined motion to dismiss and request for an award of costs as sanctions. We reverse both the granting of the anti-SLAPP motions and the award of attorney fees, deny the motion to dismiss, and deny the request for sanctions.
2.
Williams is a board certified oncologist who practices medicine and treats patients in the Modesto area. Williams primarily practices in an independent clinic, but since 2003 has had privileges at DMCM, which is an acute-care hospital. Patients who are admitted to DMCM are assigned a hospitalist. A hospitalist is a physician who specializes in caring for patients in a hospital setting. The hospitalist acts as the patient‘s attending physician and decides what other physicians and specialists may care for the patient while the patient is admitted at DMCM. Hospitalists are not required to enlist the help of any particular specialists, even if one is requested by the patient or the patient‘s family. Once the hospitalist enlists other specialists, the specialists may speak with the patient‘s family about treatment and care and may enter treatment orders for the patient.
For a number of years, Williams and Respondents enjoyed a cordial professional relationship. However, around 2018, the relationship markedly changed for the worse. The parties disagree as to why the relationship changed, who is at fault for the change, and the repercussions of the change. Williams contends that he advocates for the best possible care for his patients and that the Respondents improperly treat cancer patients by prematurely urging only palliative care with an eye towards cost-savings. Williams made a number of complaints regarding DMCM hospitalists and their treatment of himself and his patients. Respondents did not formally address Williams‘s complaints, but instead allegedly treated Williams with hostility, disrespect, and unprofessionalism and began investigating him. For their part, Respondents contend that interactions with Williams became challenging, antagonistic, and strained. Williams would not accept the necessary limits of a consulting physician and would criticize (sometimes in front of patients and their families) the medical decisions made at DMCM by the Hospitalist Respondents. Respondents contend that the actions of Williams and his staff involved significant disagreements over patient care and unprofessional communication, both of which led to barriers for effectively treating patients, particularly when palliative care was at issue or
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The strained relationship came to a head in January 2020. On January 8, 2020, DMCM‘s Medical Executive Committee (MEC) informed Williams in writing that interviews with medical staff and DMCM employees revealed serious concerns over Williams‘s behavior, “which directly impact the clinical care of patients treated at [DMCM].” The MEC required Williams to attend a peer review meeting on January 31, 2020, to address nine areas of alleged misconduct, including misconduct occurring in specific patient cases.
On January 31, 2020, Williams and the MEC met to address the concerns identified in the January 8 letter. The meeting was cut short because Williams had to leave early for a medical emergency. It does not appear that the meeting ever resumed, nor does it appear that the DMC Respondents formally revoked Williams‘s privileges or formally disciplined Williams for his conduct at DMCM. Nevertheless, Williams responded in writing to the issues raised by the January 8 letter. Williams provided supportive declarations, identified inaccurate dates in the January 8 letter, and denied that his conduct adversely affected patient care. Following the January 31, 2020 meeting, Williams maintains that Respondents have limited, abridged, and interfered with his medical practice, including engaging in conduct that amounts to a de facto restriction on his privileges at DMCM without due process.
Beginning in 2020, Williams filed two lawsuits against Respondents based on their treatment of him. The second lawsuit is the subject of this appeal.
PROCEDURAL BACKGROUND
First Lawsuit
On January 29, 2020, Williams filed suit against Respondents, as well as numerous other hospitalists, medical staff, and DMCM employees (First Lawsuit). The last operative complaint in the First Lawsuit was the Second Amended Complaint (SAC),
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In June 2020, Respondents filed anti-SLAPP motions under
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In October 2020, Respondents filed motions for attorney fees under
On November 9, 2020, Williams filed an opposition to the motion for attorney fees. In part, Williams argued the SAC‘s references to peer review processes were incidental or collateral to the main point of the lawsuit. However, Williams did not challenge the amount of fees requested by Respondents.
On September 30, 2021, the trial court issued an order granting Respondents’ separate motions for attorney fees (“the Fee Order“). The court granted the entire amount of Respondents’ fees without deduction and noted that Williams failed to challenge the amount of the requested fees. In granting attorney fees, the Fee Order stated in part:
“The allegations contained in [the SAC] were based almost entirely upon activity that is protected pursuant to Section 425.16. The protected activity relied upon was not ‘incidental’ as Plaintiff argues – it was fundamental. Indeed, the fact that [Williams] dismissed his SAC rather than oppose the special motions to strike is an admission of this fact.
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Whether broadly construed as part of the peer review process, or as statements and comments made as a matter of public interest – i.e.[,] related to physician‘s ‘qualifications and competence’ – the SAC‘s causes of action were problematic.”
Second Lawsuit
On October 23, 2020, Williams filed a second lawsuit against Respondents (the Second Lawsuit). After the trial court granted a demurrer, which included permission for Respondents to file anti-SLAPP motions, Williams filed a First Amended Complaint (FAC) on November 15, 2021. The FAC identified the following eight causes of action: (1) violation of
The FAC in relevant part alleged that Respondents engaged in the following acts with the intent to limit, interfere with, and abridge Williams‘s medical practice: (a) eliminating the expense of having to care for cancer patients by removing them from hospital care and preventing Williams from effectively caring for them; (b) implementing a bonus structure that facilitates eliminating the expense of cancer patients, all to the benefit of the Hospitalist Respondents and the detriment of Williams; (c) acting to shift patient care aware from Williams and his clinic and to the Hospitalist Respondents and DMCM medical staff; (d) prematurely moving patients away from Williams‘s care to hospice where they were expected to die with relative efficiency; and (e) interfering with Williams to practically function in caring for his patients by limiting his ability to access patient files and records.
The FAC also contained allegations that addressed the first lawsuit. The FAC alleged that the First Lawsuit focused on the Respondents’ campaign to destroy his
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After the FAC was filed, the DMC Respondents and the Hospitalist Respondents filed separate anti-SLAPP motions. In relevant part, Respondents relied on the First Lawsuit‘s Fee Order to argue that all of the FAC‘s causes of action were based on SLAPP protected activity and that issue preclusion prevented Williams from contending otherwise.
After a hearing, the trial court granted both motions and dismissed the FAC on May 27, 2022 (“the SLAPP Order“). In relevant part, the court ruled:
“[T]he Court finds that the current case is a [SLAPP]. It addresses the same primary right (or rights) addressed in Stanislaus County Superior Court Case No. CV-20-000630 Williams v. Doctors Medical Center, Inc. et al – and the Court in Case No. CV-20-000630 concluded that the earlier case was a SLAPP which reached protected activity on the part of the defendants therein – the same defendants named in this matter. [Williams‘s] ‘disavowal’ of the basis for the current complaint and his (alleged) ‘removal’ of all references to the peer review process from the current complaint simply does not change this fact. The Court applies issue
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preclusion to establish that the first prong of [
section 425.16 ] is met in this matter. See e.g. [South Sutter LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634].”
On July 21, 2022, Williams filed a notice of appeal challenging the dismissal of the FAC through the SLAPP order.
On July 26 and 27, 2022, Respondents filed motions for attorney fees.
On December 20, 2022, the trial court granted the Respondents’ motions and awarded fees against Williams.
On February 8, 2023, Williams filed a notice of appeal challenging the award of attorney fees.
DISCUSSION
I. Respondents’ Anti-SLAPP Motions
A. Parties’ Arguments
Williams argues that the trial court erroneously granted the Respondents’ anti-SLAPP motions. In part, Williams avers that the SLAPP Order must be reversed because Respondents failed to meet their burden of demonstrating that their protected conduct formed the basis of any of the FAC‘s causes of action. Williams contends that none of the actions that form the basis of his claims involved protected activity. Williams avers that the court erroneously relied on issue preclusion and the case of South Sutter LLC v. LJ Sutter Partners, L.P., supra, 193 Cal.App.4th 634 (South Sutter) to find that the causes of action involved protected activity. Williams argues that issue preclusion does not apply because the Fee Order and the SLAPP Order involve different issues, and it cannot adequately be determined what issues were actually decided in the Fee Order. Williams also argues that South Sutter‘s discussion of issue preclusion is unsound and incompatible with recent California Supreme Court authority.
Respondents argue in relevant part that the trial court correctly followed South Sutter and that all elements of issue preclusion apply in this case. Respondents argue that the Fee Order actually and necessarily decided that all of the causes of action in the SAC
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Williams has the stronger argument.
B. Legal Standards
1. Anti-SLAPP Motions
Under California law, a cause of action arising from a person‘s act in furtherance of the “right of petition or free speech under the [federal or state 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.” (
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2. Issue Preclusion/Collateral Estoppel
The doctrine of collateral estoppel or issue preclusion “‘precludes relitigation of issues argued and decided in prior proceedings.‘” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896, see Kaur v. Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 348.) In order for issue preclusion to apply, the following elements must be met: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) the issue must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits; and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (People v. Strong (2022) 13 Cal.5th 698, 716; Kaur, at pp. 348–349; see also Samara v. Matar (2018) 5 Cal.5th 322, 327.) “The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 (Hernandez); In re Marriage of Brubaker & Strum (2021) 73 Cal.App.5th 525, 538.) An issue is “actually litigated” if it was “properly raised, submitted for determination, and determined in [a] proceeding.” (Hernandez, at p. 511; In re Marriage of Brubaker & Strum, at p. 538.) An issue will be considered “‘necessarily decided‘” so long as the issue was not “‘entirely unnecessary‘” to the judgment in the prior proceeding. (Samara v. Matar, at p. 327; In re Marriage of Brubaker & Strum, at p. 538.) The party asserting issue preclusion has the burden of establishing the above elements. (People v. Strong, at p. 716; Kaur v.
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C. Analysis
1. Trial Court‘s Rationale
The trial court‘s finding regarding “primary rights” and citation to South Sutter show the court was aligning itself with South Sutter.
a. Primary Rights Theory in General
In California, the “primary right theory ... provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The most salient characteristic of a primary right is that it is indivisible: the violation of a primary right gives rise to but a single cause of action. A pleading that states the violation of one primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681; see also Baral, supra, 1 Cal.5th at p. 393.)
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In South Sutter, the plaintiff dismissed a complaint without prejudice a week after the defendant filed an anti-SLAPP motion. (South Sutter, supra, 193 Cal.App.4th at p. 647.) The plaintiff then filed a new lawsuit against the defendant. (Ibid.) The new lawsuit omitted a number of allegations made in the first lawsuit but contained no new facts. (Id. at p. 648.) After the new lawsuit was filed, the defendant moved in the first lawsuit for attorney fees pursuant to
The Court of Appeal agreed with the trial court. (South Sutter, supra, 193 Cal.App.4th at p. 659.) South Sutter explained that it reviewed the “primary rights theory as it relates to defining a cause of action for purposes of the SLAPP statute” and concluded that the primary rights theory operated “to bar relitigation of the first prong of the anti-SLAPP motion under the principle of direct estoppel.” (Ibid.) South Sutter began its analysis by holding, “‘[f]or purposes of an anti-SLAPP motion, · “[a] ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.“’ ” (Ibid.) South Sutter then discussed the primary right theory in general and its application in res judicata, including both claim and issue preclusion.5 (Id. at pp. 659–661.)
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c. Applicability of South Sutter to this Case
Admittedly, the procedural posture of South Sutter is quite similar to this case. Nevertheless, we cannot follow South Sutter because its analysis is inconsistent with later binding Supreme Court authority. Five years after South Sutter was published, our Supreme Court in Baral found the primary right theory to be “ill-suited to the anti-SLAPP context.” (Baral, 1 Cal.5th at p. 395.) Baral determined that applying the primary right theory‘s understanding of an indivisible cause of action in the SLAPP context would be contrary to the legislative intent behind the ” ‘special motion to strike,’ ” which was meant to challenge particular allegations or claims and would not adequately answer the question of how to deal with a complaint that contained mixed
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As a result of Baral‘s definition of “cause of action,” courts do not analyze or consider a “SLAPP-challenged” cause of action or claim in terms of the primary right involved, rather, as explained above, the analysis is based only on the particular factual allegations that form the basis of the cause of action or claim. (See Bonni, supra, 11 Cal.5th at pp. 1010–1011; Baral, supra, 1 Cal.5th at p. 395; Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886, fn.11; Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43–44; Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 423.) That is, the general right possessed or wrong suffered by a plaintiff is not considered or assessed, rather, only the specific allegations that supply the elements of a cause of action, and thus form the basis of the cause of action, are assessed. (See Bonni, at pp. 1009, 1015; Baral, at pp. 382, 395–396; Wilson, supra, 7 Cal.5th at pp. 884, 887; Park, supra, 2 Cal.5th at p. 1063.) Moreover, the assessment is limited to factual allegations that constitute protected activity. (Bonni, at pp. 1010, 1012; Baral, at p. 396.)
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With respect to issue preclusion, although the doctrine was not before it, we think the Baral court‘s analysis necessarily shows how issue preclusion should apply to prior step one SLAPP rulings. Baral means that when the first SLAPP question is affirmatively answered, the only issue that is resolved is whether the specific allegations that supply an element of a claim constitute protected activity. The general primary right of the plaintiff is not analyzed or considered, (Baral, supra, 1 Cal.5th at p. 382), and issues regarding claims that are not based on protected activity are not resolved, (Bonni, supra, 11 Cal.5th at pp. 1010–1012; Wilson, supra, 7 Cal.5th at pp. 884, 887; Baral, at p. 396), even if the claims involve the same primary right as the claims based on protected activity. (Cf. Gaynor v. Bulen, supra, 19 Cal.App.5th at p. 878 [explaining that “an anti-SLAPP motion may be used to strike particular claims of protected activity even without defeating a pleaded ‘cause of action’ or ‘primary right’ “].) Therefore, given the nature of the step one SLAPP analysis, the step one findings of a prior anti-SLAPP motion will have preclusive effect only as to the specific allegations that were found to be protected activity and to supply an element of a cause of action or claim. (Cf. Hoang v. Tran (2021) 60 Cal.App.5th 513, 530 [applying issue preclusion to a prior first question SLAPP ruling in the same case where the claims were based on a defamatory news article, the issues were identical, and the court “could not have granted [the defendant‘s] anti-SLAPP motion unless it found that appellant‘s statements in the article had been made ‘in connection with an issue of public interest’ “].)
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As South Sutter relies on the primary right theory‘s understanding of a “cause of action” in its evaluation of the anti-SLAPP motion and issue preclusion, South Sutter is contrary to Baral and cannot be applied in this case. Prior to this opinion, we are aware of no published opinion that had analyzed South Sutter in light of Baral, which makes the trial court‘s reliance on South Sutter understandable. Nevertheless, South Sutter‘s dependency on the primary rights understanding of a cause of action for purposes of anti-SLAPP motions cannot be squared with Baral. Therefore, the court‘s reliance on primary rights and South Sutter in finding that Respondents had met their burden under the first SLAPP question was error.7
2. Application of Issue Preclusion
Through our de novo review, we may affirm the trial court‘s granting of the anti-SLAPP motion on any theory that may be applicable to the case. (City of Alhambra v. D‘Ausilio (2011) 193 Cal.App.4th 1301, 1306–1307.) Apart from South Sutter, Respondents argue the record reflects that the elements of issue preclusion were met.
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a. Elements
1. Identical Issues
The First Lawsuit‘s Fee Order did not address the identical issue as the SLAPP order. True, the general issue of whether the first step of the SLAPP framework was met was an issue in the Fee Order and the SLAPP order. However, as explained above, that general issue is resolved by examining the particular factual allegations in the operative complaint, specifically the allegations that both constitute protected activity and fulfill an element of a cause of action. (Bonni, supra, 11 Cal.5th at pp. 1009–1012, 1015; Baral, supra, 1 Cal.5th at p. 396; Pech, supra, 75 Cal.App.5th at p. 459.) Factual allegations that do not satisfy these criteria are disregarded. (Bonni, at pp. 1010–1012; Baral, at p. 396; Pech, at p. 459.) Thus, the analysis is specific to the particular allegations made in a complaint.
Here, there is no dispute that the FAC omitted allegations from the First Lawsuit‘s SAC involving speech during a peer review process and speech concerning Williams‘s competence as a licensed physician. There is also no dispute that these two types of speech constitute protected activity under
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2. Actually Litigated
An issue is “actually litigated” if it was “properly raised, submitted for determination, and determined in [a] proceeding.” Hernandez, supra, 46 Cal.4th at p. 511. In part, the First Lawsuit‘s Fee Order held that, considering SLAPP protected peer review and comments on competency, “the SAC‘s causes of action were problematic.” We are not satisfied that this language means that the issue of whether all causes of action or claims in the First Lawsuit‘s SAC arose from protected activity was actually litigated.
In terms of the briefing or issue submitted, the Respondents’ anti-SLAPP motions in the First Lawsuit sought to dismiss or strike only claims that “arose from protected activity,” not “all claims.” Similarly, the DMC Respondents’ fee motion, which was incorporated by reference in the Hospitalist Respondents’ fee motion, explained that their anti-SLAPP motion attempted “to strike many of [Williams‘s] claims ....” (Italics
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In terms of what was actually determined, the First Lawsuit‘s Fee Order concluded that the allegations in the First Lawsuit‘s SAC were “based almost entirely upon [protected activity],” the protected activity was not incidental, and “[w]hether broadly construed as part of the peer review process, or as statements and comments ... related to a physician‘s ‘qualifications and competence’ the SAC‘s causes of action were problematic.” We agree with Williams that the use of the phrase “almost entirely” of necessity means either “not all” of the allegations involved protected activity or “some allegations” did not involve protected activity. Further, and consistent with Respondents’ briefing, the order indicates that the protected activity at issue is comments made in connection with peer review or statements about Williams‘s competence. However, the First Lawsuit‘s Fee Order does not identify what allegations involve unprotected activity, which claims are based on unprotected activity, or which claims were based on protected activity. This is not surprising considering that the litigation had terminated through Williams‘s dismissal (thus negating the need to determine which claims could proceed), and the court‘s first step SLAPP analysis required it to disregard allegations of, and claims that arise from, unprotected activity. (Bonni, supra, 11 Cal.5th at pp. 1009–1012; Baral, supra, 1 Cal.5th at p. 396.)
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3. “Necessarily Decided”
As indicated in the previous point, prior to and apart from the attorney fees motion, the First Lawsuit had terminated and was not going forward. This made it unnecessary for the trial court to determine which specific causes of action or claims based on protected activity would be stricken and which claims based on unprotected activity would proceed. For purposes of the attorney fees motion, which did not include a challenge by Williams as to the amount of fees requested, it was enough to determine that Respondents had generally shown there were allegations of protected activity that formed the basis of some causes of action or claims in the First Lawsuit‘s SAC.9 Further,
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b. Judicial Admission
The Hospitalist Respondents contend that Williams has judicially admitted through allegations in the FAC that “each of the claims he alleged in the first lawsuit ‘would not survive’ the anti-SLAPP motions filed by respondents and that this was the reason he filed a voluntary dismissal.” We disagree that Williams has made a judicial admission.
“Judicial admissions are admissions of fact that ‘may be made in a pleading, by stipulation during trial, or by response to request[s] for admission.’ ” (BMC Promise Way, LLC v. County of San Benito (2021) 72 Cal.App.5th 279, 285–286.) “[I]f a factual
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In pertinent part, the FAC alleged that Williams dismissed the First Lawsuit “because he believed that [the First Lawsuit‘s] focus on peer review and speech activities would not survive the [Respondents‘] anti-SLAPP motion[s].” The FAC also alleged that the First Lawsuit “focused on the huge amount of false information that [Respondents] disseminated as part of their campaign to destroy Dr. Williams‘s medical practice. However, as described above, a lawsuit that focuses on that type of speech is subject to successful attack by an anti-SLAPP motion.”
We conclude the above allegations are not judicial admissions for at least two reasons. First, they do not deal with facts. The allegations deal with Williams‘s opinion about the probable outcome of the Respondents’ anti-SLAPP motions and his belief that claims based on speech related to medical practitioners are subject to successful SLAPP attacks. Williams‘s subjective beliefs may explain his actions, but they do not speak to the content or makeup of all the claims, or even a specific claim, in the SAC. Moreover, even if the allegations can be read as assertions that all claims in the SAC were subject to
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Second, the allegations are not clear. The allegations do not identify any specific claim or cause of action, or the basis of any specific claim or cause of action, found in the SAC. Instead, the allegations merely acknowledge that the “focus” of the SAC generally would be problematic under the SLAPP statute. Acknowledging a problem about the “focus” of the lawsuit is not the same as explaining what each claim is actually based on, nor is it the same as agreeing that all claims in the SAC were based on protected activity. While it is fair to read the allegations as acknowledging that some claims would be subject to being stricken, “some” does not mean “all.” Accordingly, the relevant allegations are not sufficiently clear to constitute judicial admissions. (Stroud v. Tunzi, supra, 160 Cal.App.4th at p. 385; Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at p. 1066.)
c. Evasion of Prior SLAPP Ruling
Respondents contend that if issue preclusion is not applied in this case and the trial court‘s SLAPP order is reversed, then Williams will have effectively amended the First Lawsuit‘s SAC in contravention of the SLAPP statute‘s purposes. We disagree.
First, Williams did not amend the SAC, he voluntarily dismissed the First Lawsuit. The voluntary dismissal was made prior to any hearing or ruling by the trial court.
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Second, Williams agrees with the DMC Respondents’ characterization of the FAC as representing a subset of the First Lawsuit‘s SAC‘s claims against a subset of the SAC‘s defendants. However, other than reliance on issue preclusion, Respondents do not contradict Williams‘s assertions and arguments that the FAC does not contain causes of action that arise from protected activity. Given these considerations, permitting the Second Lawsuit to proceed is consistent with what would happen in all cases involving mixed causes of action. With mixed causes of action, claims based on unprotected activity would not be subject to being stricken, while claims based on protected activity would; the result being that the entire lawsuit would not terminate through the granting of an anti-SLAPP motion. (See Bonni, supra, 11 Cal.5th at p. 1012, fn. omitted [“Conversely, to the extent any acts are unprotected [by the SLAPP statute], the claims
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3. Conclusion
The SLAPP order and the parties rely on issue preclusion to establish the first step of the SLAPP framework. We have concluded that issue preclusion does not apply in this case. Without application of issue preclusion, we conclude that the Respondents did not meet their burden of showing that any cause of action or claim in the FAC arose from SLAPP protected activity. Because only causes of action that satisfy both steps of the SLAPP framework are subject to being stricken, (Navellier, supra, 29 Cal.4th at p. 89), the SLAPP order must be reversed, and it is unnecessary for us to address whether Williams met his burden under the second step.11
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A. Parties’ Arguments
Williams argues that because the SLAPP order must be reversed, the Second Lawsuit‘s dependent award of attorney fees under
Respondents argue that the award of attorney fees is dependent on the outcome of the first appeal and that a reversal of the SLAPP order necessarily entails a reversal of the subsequent fee award. As a result, the second appeal was unnecessarily filed and should be dismissed. Additionally, through a separate motion, the Hospitalist Respondents move to dismiss and request sanctions against Williams for filing the second appeal.
B. Analysis
1. Propriety of the Second Appeal
Contrary to Respondents’ contentions, case authority is not uniform in its treatment of dependent fee awards. Some appellate courts hold that, even without a separate appeal, they have the authority to reverse dependent fee awards when the underlying judgment is also reversed. (E.g., Ulkarim v. Westfield LLC (2014)
would be sustained. (Cf. Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 92 [“... regardless of the potential vulnerability [through a demurrer] of the claims against [defendant], our review here is limited to the trial court‘s anti-SLAPP ruling ...“].) Were we to agree with the Hospitalist Respondents, we would in effect be issuing an advisory opinion. Finally, it is unclear that the entire FAC would actually be dismissed without leave to amend through a demurrer. We are not satisfied that the Hospitalist Respondents’ have made an adequate assessment of each cause of action, and Appellant replies that some of the facts he raised in this appeal could be added in support of the FAC. This means that the issue of a final dismissal is not readily ascertainable from the face of the FAC or the briefing submitted in this appeal. The Hospitalist Respondents’ argument is more appropriately made to the trial court through a properly briefed demurrer.
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Williams‘s course of action aligns with the cases such as Allen and Nellie Gail Ranch Owners. Considering the conflicting case authority, as well as the normal appellate practice described by Westmont College and Torres, we cannot conclude that Williams improperly filed the second appeal, that dismissal of the second appeal is mandatory or appropriate, or that sanctions for filing a frivolous appeal are appropriate.12
2. Validity of the Second Lawsuit‘s Attorney Fees Award
Mandatory attorney fees and costs are to be awarded to a prevailing defendant on a special motion to strike. (See
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DISPOSITION
The order granting Respondents’ anti-SLAPP motions and the order granting Respondents attorney fees are reversed.
The Hospitalist Respondents’ motion to dismiss and request for sanctions are denied.
This matter is remanded to the Superior Court of Stanislaus County for further proceedings consistent with this order.
Appellant is awarded costs on appeal.
POOCHIGIAN, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
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