Bogue v. Sharp Memorial Hospital CA4/1

Filed 4/19/22 Bogue v. Sharp Memorial Hospital CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MICHAEL A. BOGUE, D077195

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2017-
00020636-CU-NP-CTL)
SHARP MEMORIAL HOSPITAL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Jeffrey B. Barton, Judge. Affirmed.

Law Office of Michael A. Conger and Michael A. Conger for Plaintiff
and Appellant.
Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall, Robert G.
Marasco, and Julian J. Lean for Defendant and Appellant.

Michael A. Bogue, M.D. is an anesthesiologist formerly employed by
Anesthesia Service Medical Group, Inc. (ASMG). ASMG is a professional
medical corporation, which contracted with Sharp Memorial Hospital (Sharp)
to provide anesthesia services. After 14 years of employment with ASMG, in
2014, the corporation’s board of directors voted not to renew Dr. Bogue’s
annual employment agreement. Shortly after, Dr. Bogue filed a complaint
against ASMG in San Diego Superior Court alleging discrimination,
harassment, wrongful termination, and retaliation after he reported unsafe
conditions in Sharp’s facilities. ASMG compelled the litigation to arbitration
under its agreement with Dr. Bogue. The arbitrator found in favor of ASMG
and the award was confirmed in the trial court, and by this court on appeal.
After the arbitration hearings and just before the arbitrator issued his
decision, Dr. Bogue brought a separate suit against Sharp alleging a violation

of Health and Safety Code section 1278.5,1 which protects whistleblowers in
the healthcare industry, and asserting claims for intentional interference
with contractional relations, intentional interference with prospective
economic relations, and negligent interference with contractual relations.
Sharp filed an unsuccessful motion for summary judgment of Dr. Bogue’s
claims based on a statute of limitations defense.
Before trial, Sharp renewed its statute of limitation defense in a motion
for judgment on the pleadings and brought a motion in limine to bifurcate the
trial to address its res judicata defense first. Sharp argued Dr. Bogue’s
claims were precluded by the doctrine of claim preclusion as a result of the
arbitrator’s award against ASMG. The trial court denied the motion for
judgment on the pleadings and granted the motion in limine to bifurcate the
trial. After the first trial phase, tried to the court through declarations,
various exhibits, and cross-examination of the two defense witnesses, the

1 Subsequent undesignated statutory references are to the Health and
Safety Code.
2
court found in favor of Sharp, concluding Dr. Bogue’s claims were barred by
claim preclusion. Thereafter, judgment was entered in favor of Sharp.
On appeal, Dr. Bogue asserts the court erred by finding the claims were
barred by the doctrine of claim preclusion because (1) Sharp was not in
privity with ASMG and (2) his claims against Sharp do not involve the same
primary right as the claims asserted against ASMG. Dr. Bogue also argues
his due process rights were violated by the court’s ruling and that the court
erred by basing its decision on inadmissible hearsay evidence. Sharp has
also appealed the judgment as a protective measure, asserting the court erred
by denying its motions for summary judgment and judgment on the
pleadings. We agree with Sharp that the trial court properly found
Dr. Bogue’s claims are barred and affirm the trial court’s judgment. In light
of this determination, we dismiss Sharp’s protective appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Bogue completed his medical training around 2000 and was first
employed by ASMG in February of that year. He entered into successive one
year contracts with ASMG until 2014 when its board voted not to renew his
employment. ASMG is a medical corporation that employs approximately
250 anesthesiologists, of those about 225 are shareholders of the corporation.
ASMG contracts with hospitals and other operating facilities in San
Diego County. Because the corporate practice of medicine is prohibited in
California, Sharp (and all other hospitals) cannot employ physicians directly.
Rather, Sharp contracts with physicians for their services and for the
oversight of the medical services they provide. Sharp’s contracted medical
staff adopts bylaws to govern the medical operations, including criteria for
medical privileges at Sharp facilities and the governance of the medical staff.

3
 Dr. Bogue’s employment agreement with ASMG required him to obtain
and maintain medical staff privileges at any hospital where ASMG
designated Dr. Bogue to work, and to comply with the call schedule at those

facilities.2 ASMG contracted with Sharp to provide on-call anesthesia
services in its operating rooms at Sharp Memorial Hospital and at its
Outpatient Pavilion. The contract required ASMG to provide daily operating
room scheduling management, anesthesia coverage scheduling, clinic
staffing, and coverage of anesthesia call obligations, as well as promotion and
support of operating room efficiency.
Dr. Bogue was assigned by ASMG to Sharp in 2003. Beginning in
2004, Sharp began fielding complaints about Dr. Bogue from nursing staff
and other doctors. The complaints focused on negative interactions between
Dr. Bogue and others, especially related to Dr. Bogue’s manipulation of the
schedule and unprofessional manner, and on his complaints to a software
vendor in 2007 about Sharp’s implementation of a new system to be used by
ASMG anesthesiologists in its operating rooms.
As noted, in 2014, ASMG’s board of directors voted not to renew
Dr. Bogue’s employment contract. In advance of the vote, ASMG’s general
counsel and human resources manager, Glenn Buberl, recommended ASMG
terminate Dr. Bogue because of “sustained difficult interactions with surgical
team members and colleagues, including his manipulation of the call
schedule.” Buberl also explained that ASMG had provided counseling to
Dr. Bogue that had not changed his behavior, and detailed documented
problems with Dr. Bogue from 2004 through late 2013.

2 Despite his termination by ASMG, Dr. Bogue maintains his privileges
to practice at Sharp.
4
A. Litigation Against ASMG
Shortly after ASMG terminated Dr. Bogue, he retained counsel and
sent a demand letter to ASMG asserting his termination was unlawful
retaliation for the reporting of various patient safety concerns and medical
billing fraud. In addition, Dr. Bogue claimed he was the victim of
harassment and discrimination based on his sexual orientation.
After ASMG failed to respond to the demand, Dr. Bogue filed suit in
San Diego Superior Court against ASMG and Kris Bjornson, M.D., an ASMG
shareholder and the Medical Director at Sharp Memorial Hospital, where
Dr. Bogue practiced. Dr. Bogue alleged Dr. Bjornson, Thomas Karagianes,
M.D. (the medical director of the operating rooms at the Outpatient Pavilion),
and others dismissed his patient safety complaints and billing fraud
allegations, and instead targeted Dr. Bogue as a trouble-maker, eventually
firing him. Dr. Bogue also asserted he had been subjected to harassment and
discrimination from members of the medical staff.
Dr. Bogue alleged various claims against ASMG. He asserted his
former employer (1) violated section 1278.5 and Labor Code section 1102.5 by
terminating Dr. Bogue for bringing forward his concerns of unsafe patient
care and conditions, (2) violated Government Code section 12653 by
retaliating against him for reporting fraudulent billing practices,
(3) wrongfully discharged him in violation of public policy, (4) engaged in
unlawful discrimination and harassment based on his sexual orientation in
violation of the California Fair Housing and Employment Act (Gov. Code,
§ 12940), and (5) engaged in unlawful intentional interference with
prospective economic advantage by interfering with his relationship with
another Sharp hospital. Dr. Bogue’s complaint sought general and special

5
damages, punitive damages under Civil Code section 3294, and
reinstatement of his employment.
In response to the complaint, ASMG brought a motion to compel
arbitration in accordance with Dr. Bogue’s employment contract. Over
Dr. Bogue’s opposition, the trial court granted the motion and the parties

proceeded to arbitration.3
During the arbitration, the parties conducted extensive discovery.
Dr. Bogue conducted depositions of 28 witnesses, including 19 Sharp
employees and members of its physician staff. The arbitration took place
over 13 evidentiary sessions in February and March of 2017. 36 witnesses
were examined during the sessions. On July 7, 2017, the arbitrator issued a
statement of decision rejecting all of Dr. Bogue’s claims. In particular, the
arbitrator found that Dr. Bogue had never raised any concerns over the
safety issues he outlined in his complaint, and thus there was no retaliatory
conduct by ASMG.
B. Litigation Against Sharp
After the arbitration hearings were complete, and one month before the
arbitrator’s decision was issued, Dr. Bogue filed the underlying complaint in
this case against Sharp. The complaint alleged just one cause of action for
violation of section 1278.5. Dr. Bogue later successfully moved to amend the
complaint to add claims for intentional interference with contractional
relations, intentional interference with prospective economic relations, and
negligent interference with contractual relations.

3 The court did not compel arbitration of Dr. Bogue’s claim for
intentional interference with prospective economic advantage. Dr. Bogue
subsequently dismissed that claim.
6
 In his complaint, Dr. Bogue detailed the safety complaints he made to
Sharp’s medical staff and administrative personnel, which mirrored those
asserted in his complaint against ASMG. In both cases, Dr. Bogue alleged
that in Sharp’s operating rooms, staff had reused surgical tape, failed to take
sufficient precautions to avoid inadvertent drug swaps and cross-
contamination of drugs, used unsafe software during procedures, and used an
unsafe medication because a member of the medical staff was a paid
consultant for the medication’s manufacturer. As in the prior case, he
claimed that as a result of raising patient safety concerns, Sharp’s medical
staff and administrators made false reports to ASMG ultimately resulting in
his termination. He also contended that his complaint about the software he
viewed as unsafe caused Sharp to tortiously interfere with his ASMG
contract, likewise resulting in his termination.
After the parties engaged in discovery, Sharp brought a motion for
summary judgment asserting Dr. Bogue’s claims were barred by the
applicable statutes of limitation. The trial court denied the motion,
concluding the statutes were potentially tolled by the discovery rule and a
question of fact remained as to when Dr. Bogue became aware of Sharp’s

involvement in his termination from ASMG.4
Before trial, Sharp renewed its statute of limitations defense to
Dr. Bogue’s claims by filing a motion for judgment on the pleadings. It
argued that Dr. Bogue’s own pleadings showed he was aware of Sharp’s
involvement in the issues leading to his termination three and half years
before filing his complaint. The trial court again rejected Sharp’s arguments,
finding that it had not conclusively shown that Dr. Bogue had knowledge of

4 After the denial of its motion for summary judgment, Sharp petitioned
this court for a writ of mandate, which was summarily denied.
7
Sharp’s involvement in his termination at a time outside the statute of
limitations.
Simultaneously with its motion for judgment on the pleadings, Sharp
moved to bifurcate the trial with the first phase addressing only its statute of
limitations and res judicata defenses. The court denied the motion with
respect to the statute of limitations, finding bifurcation of the issue would not
result in any efficiency. With respect to the issue of res judicata, the court
requested additional briefing on specific questions and set a further hearing.
At the hearing, the parties agreed that the issue of res judicata was
properly decided by the court, not the jury. The parties argued their
positions on bifurcation, and at the end of the hearing the court asked for
additional briefing on the issues of privity between ASMG and Sharp, the
impact of the arbitration agreement on that issue, and if the arbitrator had
determined Sharp’s involvement in Dr. Bogue’s termination. The parties
submitted the requested additional briefing, and the court issued a minute
order granting bifurcation on the issue of claim preclusion and scheduling a

conference to set a timeline for trying the first phase.5
Thereafter, the parties submitted further briefing, and Sharp
submitted the declarations of its CEO and ASMG’s general counsel, Buberl,
as well as an attorney declaration, each attaching documentary evidence.
Dr. Bogue objected to Sharp’s declarations and exhibits, arguing they were
inadmissible hearsay. Sharp filed a response to the objection.
At the next reported hearing, the court stated it was ready to hear the
evidentiary portion of the trial on Sharp’s affirmative defense of claim
preclusion. Dr. Bogue’s counsel moved for judgment on defense under Code

5 The reporter’s transcript for the hearing set by that order does not
appear in the appellate record.
8
of Civil Procedure section 631.8, asserting Sharp’s res judicata defense failed
because it had submitted only inadmissible hearsay declarations in support.
Sharp’s counsel responded that Dr. Bogue’s motion was meritless because the
parties had stipulated to a trial on the briefs and declarations, with an
agreement that Dr. Bogue could cross-examine the declarants. The court
deferred ruling on the motion until it issued its ruling on the merits.
Dr. Bogue’s counsel proceeded to cross-examine Sharp’s two witnesses.
The parties then gave closing statements, and the court took the matter
under submission. Thereafter, the court issued a statement of decision
finding Dr. Bogue’s claims against Sharp were barred by the doctrine of claim
preclusion. The court’s order states the “parties agreed [the first phase] of
the trial could be tried to the court without a jury and largely through briefs
and exhibits.” The court then found that the judgment against ASMG in the
arbitration was final, that Sharp was in privity with ASMG for purposes of
Dr. Bogue’s claims, and that his claims against Sharp involved the same
primary right at issue in the ASMG arbitration. In accordance with these
findings, the trial court determined the elements of claim preclusion were
satisfied and that Dr. Bogue’s four claims against Sharp were precluded.
Thereafter, the court entered judgment in favor of Sharp. Dr. Bogue
appealed and Sharp filed a cross-appeal challenging the trial court’s orders
denying its motions for summary judgment and judgment on the pleadings.
DISCUSSION
I
Dr. Bogue’s Appeal
Dr. Bogue challenges the trial court’s determination that his claims are
barred. He argues the court erred both by finding privity between ASMG and
Sharp, and by finding the same primary right at issue in the two cases.

9
Dr. Bogue further asserts that his due process rights were violated by the
court’s ruling. Finally, Dr. Bogue contends the court erred by admitting
hearsay evidence in the form of witness declarations and exhibits. As we
shall explain, we reject Dr. Bogue’s arguments.
A
Legal Principles
1. Standard of Review
The applicability of claim preclusion is a question of law that we review
de novo. (Samara v. Matar (2017) 8 Cal.App.5th 796, 803.) However, when
the defense is determined at trial, the court’s factual findings in support of its
determination that claim preclusion applies are reviewed for substantial
evidence. (Planning & Conservation League v. Castaic Lake Water Agency
(2009) 180 Cal.App.4th 210, 232.)
2. Res Judicata
“ ‘ “Res judicata” describes the preclusive effect of a final judgment on
the merits. Res judicata, [also known as] claim preclusion, prevents
relitigation of the same cause of action in a second suit between the same
parties or parties in privity with them. Collateral estoppel, or issue
preclusion, “precludes relitigation of issues argued and decided in prior
proceedings.” [Citation.] Under the doctrine of res judicata, if a plaintiff
prevails in an action, the cause is merged into the judgment and may not be
asserted in a subsequent lawsuit; a judgment for the defendant serves as a
bar to further litigation of the same cause of action.’ ” (Cal Sierra
Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 671 (Cal
Sierra), quoting Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–
897.) “The doctrine [of res judicata] promotes judicial economy and avoids
piecemeal litigation by preventing a plaintiff from ‘ “ ‘splitting a single cause

10
of action or relitigat[ing] the same cause of action on a different legal theory
or for different relief.’ ” ’ ” (Ivanoff v. Bank of America, N.A. (2017) 9
Cal.App.5th 719, 727 (Ivanoff).)
The California Supreme Court has noted confusion in the case law
surrounding the doctrine of res judicata: “[O]ur terminology in discussing the
preclusive effect of judgments has been inconsistent and may have caused
some confusion. We have frequently used ‘res judicata’ as an umbrella term
encompassing both claim preclusion and issue preclusion, which we described
as two separate ‘aspects’ of an overarching doctrine. [Citations.] Claim
preclusion, the ‘ “ ‘primary aspect’ ” ’ of res judicata, acts to bar claims that
were, or should have been, advanced in a previous suit involving the same
parties. [Citation.] Issue preclusion, the ‘ “ ‘secondary aspect’ ” ’ historically
called collateral estoppel, describes the bar on relitigating issues that were
argued and decided in the first suit.” (DKN Holdings LLC v. Faerber (2015)
61 Cal.4th 813, 823–824 (DKN Holdings).) “We will follow the current
practice to use the term ‘claim preclusion’ to describe the primary aspect of
the res judicata doctrine and the term ‘issue preclusion’ to denote collateral
estoppel. (See DKN Holdings, supra, 61 Cal.4th at pp. 823–824.) The two
types of preclusion have different requirements.” (Cal Sierra, supra, 14
Cal.App.5th at p. 671.)
“ ‘Claim preclusion “prevents relitigation of the same cause of action in
a second suit between the same parties or parties in privity with them.”
[Citation.] Claim preclusion arises if a second suit involves (1) the same
cause of action (2) between the same parties [or their privies] (3) after a final
judgment on the merits in the first suit. [Citations.] If claim preclusion is
established, it operates to bar relitigation of the claim altogether. [¶] Issue
preclusion prohibits the relitigation of issues argued and decided in a

11
previous case, even if the second suit raises different causes of action.’ ”
(DKN Holdings, supra, 61 Cal.4th at p. 824.) This case concerns only claim
preclusion, and only the first and second elements are in dispute. The parties
agree the ASMG arbitration is a final judgment for purposes of the doctrine.
3. Privity
“ ‘Since [claim preclusion] bars a subsequent action on the same claim
between, not only parties to the first action, but also their privies, we must
determine who qualifies as a privy to a prior action. … “Under the
requirement of privity, only parties to the former judgment or their privies
may take advantage of or be bound by it. [Citation.] A party in this
connection is one who is ‘directly interested in the subject matter, and had a
right to make defense, or to control the proceeding, and to appeal from the
judgment.” ’ ” (Cal Sierra, supra, 14 Cal.App.5th at p. 672.)
The concept of “privity” has expanded over time. Historically, the
California Supreme Court described the principle of privity in limited terms:
“ ‘A privy is one who, after rendition of the judgment, has acquired an
interest in the subject matter affected by the judgment through or under one
of the parties, as by inheritance, succession, or purchase.’ ” More recently,
however, courts have embraced a somewhat broader, more practical concept
of privity. “ ‘[T]o maintain the stability of judgments, insure expeditious
trials,’ prevent vexatious litigation, and ‘to serve the ends of justice,’ courts
are expanding the concept of privity beyond the classical definition to
relationships ‘ “sufficiently close to afford application of the principle of
preclusion.” ’ ” (Cal Sierra, supra, 14 Cal.App.5th at p. 672.)
Under this modern definition, “privity requires the sharing of ‘an
identity or community of interest,’ with ‘adequate representation’ of that
interest in the first suit, and circumstances such that the nonparty ‘should

12
reasonably have expected to be bound’ by the first suit. [Citation.] A
nonparty alleged to be in privity must have an interest so similar to the
party’s interest that the party acted as the nonparty’s ‘ “ ‘virtual
representative’ ” ’ in the first action.” (DKN Holdings, supra, 61 Cal.4th at
p. 826.)
“Thus, for purposes of privity, ‘ “[t]he emphasis is not on a concept of
identity of parties, but on the practical situation. The question is whether
the non-party is sufficiently close to the original case to afford application of
the principle of preclusion.” ’ [Citation.] Put another way, privity, ‘ “as used
in the context of [claim preclusion], does not embrace relationships between
persons or entities, but rather it deals with a person’s relationship to the
subject matter of the litigation.” ’ ” (Castillo v. Glenair, Inc. (2018) 23
Cal.App.5th 262, 277.)
4. Primary Rights Theory
In order for claim preclusion to apply, in addition to privity, the defense
must establish the requisite identity of interest in the causes of action in the
prior final and the present litigation. “ ‘Whenever a judgment in one action is
raised as a bar to a later action under [claim preclusion], the key issue is
whether the same cause of action is involved in both suits. California law
approaches the issue by focusing on the ‘primary right’ at stake: if two
actions involve the same injury to the plaintiff and the same wrong by the
defendant then the same primary right is at stake even if in the second suit
the plaintiff pleads different theories of recovery, seeks different forms of
relief and/or adds new facts supporting recovery.’ ” (Cal Sierra, supra, 14
Cal.App.5th at p. 675.)
“Under the ‘primary rights’ theory adhered to in California, there is
only a single cause of action for the invasion of one primary right and the

13
harm suffered is the significant factor. [Citation.] A primary right is the
right to be free of a particular injury. [Citation.] ‘The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced.’ (Boeken v.
Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798 [(Boeken)].)” (Cal Sierra,
supra, 14 Cal.App.5th at pp. 675–676.)
A prominent treatise explains the primary right theory in this way:
“ ‘Every command or rule of the private civil law creates a primary right in
one individual, and a primary duty corresponding thereto resting upon
another person or number of persons. These rights and duties are, of course,
innumerable in their variety, nature, and extent. If a person upon whom a
primary duty rests towards another fails to perform that duty, and thereby
violates the other’s primary right, there at once arise the remedial right and
duty. The one whose primary right has been violated immediately acquires a
secondary right to obtain an appropriate remedy from the wrong-doer, while
the wrong-doer himself becomes subjected to the secondary duty of giving or
suffering such remedy. … It is plain from this analysis that the nature and
extent of remedial rights and duties, and of the remedies themselves, must
depend upon two distinct factors taken in combination, namely, the nature
and extent of the primary rights which are violated, and the nature and
extent of the wrongs in and by which the violation is effected. The same
primary right may be broken by many kinds of wrong-doing; and the same
wrongful act or default may invade many different rights.’ (1 Pomeroy,
Equity Jurisprudence (5th ed. 1941) The Constituent Parts of Equity, § 91,
p. 120, fn. omitted; see also Pomeroy, Code Remedies (5th rev. ed. 1929)
Introduction, § 2, p. 2.)” (Branson v. Sun-Diamond Growers (1994) 24
Cal.App.4th 327, 341 (Branson).)

14
 B
Analysis
1. Privity Exists Between Sharp and ASMG
Critical to our analysis is the symbiotic relationship between ASMG
and Sharp as it relates to Dr. Bogue’s claims against them. Unlike other
business relationships in different settings, ASMG and Sharp are dependent
upon one another for the operation of their businesses. Without
anesthesiologists, Sharp’s operating room facilities cannot function.
Likewise, without operating room facilities, ASMG’s physicians cannot
perform their specialized medical services. Of particular importance in this
case is that the alleged safety concerns that form the basis for Dr. Bogue’s
claims were the joint responsibility of Sharp and ASMG under their
agreements. For this reason, we agree with Sharp that its liability is
derivative of ASMG’s liability for the purposes of Dr. Bogue’s four claims and
that it is in privity with ASMG for this narrow purpose.
The trial court found that privity existed between Sharp and ASMG
because “the conditions at Sharp Memorial Hospital and Sharp Outpatient
Pavilion were intrinsic to Dr. Bogue’s case against ASMG. Those conditions,
as they relate to patient safety concerns, and the retaliation for reporting
those issues, are … the subject matter in the instant lawsuit.” Specifically,
the trial court pointed to (1) ASMG’s and Sharp’s dual employment of Dr.
Bjornson, Sharp’s medical director for the hospital and board member of
ASMG, and Dr. Karagianes, Sharp’s medical director for its Outpatient
Pavilion and ASMG board member; (2) the fact that both cases, at base,
required a determination of whether the patient safety concerns raised by Dr.
Bogue were valid; and (3) the fact that Sharp’s interests were represented
and aligned with ASMG’s interests in the arbitration because both parties

15
sought to show that Dr. Bogue did not raise any patient safety concerns
before his termination.
The trial court also determined that Dr. Bogue’s claims against Sharp
were derivative of his claims against ASMG because “but for [his]
employment with ASMG, Sharp would not be liable for his causes of
action….” The court accurately noted that Sharp is dependent on ASMG
because it cannot practice medicine itself and the “handling of patient safety
concerns at Sharp Memorial Hospital and the Outpatient Pavilion were
expressly entrusted to ASMG shareholders by Sharp.”
We agree with the trial court’s analysis of privity and the factual
findings it made to support that conclusion were either undisputed, or amply
supported by the evidence. The underlying facts are the same for the claims
in both cases. Like the basis for his wrongful termination and whistleblower
claims in the ASMG case, Dr. Bogue alleges Sharp is liable under section
1278.5 based on Dr. Bogue reporting his alleged patient safety concerns to
Sharp and then Sharp retaliating by “making false reports to his employer,”
ASMG, which he claims led to his termination by ASMG. As the trial court
found, without ASMG’s employment of Dr. Bogue, Sharp could have no
liability in this case.
The relationship between ASMG and Sharp bears a strong resemblance
to the parties found to be in privity in Cal Sierra. There, Cal Sierra
Development, Inc. (Cal Sierra), a gold mining company, and Western
Aggregates LLC (Western) had an agreement over the rights to a certain
property. (Cal Sierra, supra, 14 Cal.App.5th at p. 668.) Cal Sierra had
superior rights to mine precious metals, and Western had the subordinate
rights to the surface estate. (Ibid.) Western licensed its rights to an asphalt
contractor, George Reed, Inc. (Reed), whose plant operations interfered with

16
Cal Sierra’s superior mining rights. Cal Sierra brought an arbitration
against the licensor Western for the damage. (Id. at p. 669.) The scope of the
arbitration was limited to “ ‘the parties’ respective rights and obligations
related to the current location of the [Reed] asphalt plant.’ ” (Ibid.) The
arbitrator found in Cal Sierra’s favor on its breach of contract claim, and for
Western on Cal Sierra’s other claims for trespass, nuisance, and conversion.
(Ibid.)
Thereafter, Cal Sierra sued the licensee Reed for trespass, intentional
interference with contract and negligent interference with economic relations.
(Cal Sierra, supra, 14 Cal.App.5th. at p. 670.) Reed asserted the defense of
claim preclusion, which was tried to the court in a bifurcated first phase.
(Ibid.) The trial court found that Cal Sierra’s claims were foreclosed by the
prior arbitration on the basis of claim preclusion. (Id. at p. 671.) Cal Sierra
appealed, and the Court of Appeal agreed with the trial court that privity
existed for purposes of claim preclusion. (Ibid.)
The Court of Appeal held that “Reed’s liability … is derivative of that of
Western Aggregates because Reed acted only pursuant to the license
agreement with Western Aggregates in installing the asphalt plant. Indeed,
it was Western Aggregates who selected the site for the plant.” (Cal Sierra,
supra, 14 Cal.App.5th. at p. 675.) The court further explained: “The subject
matter of the litigation here was the same as that at the center of the
arbitration dispute: the placement of the asphalt plant and whether it
infringed on Cal Sierra’s mining rights. As to this issue, Western Aggregates
and Reed … had an identical interest; all were adversely and similarly
impacted by the propriety (or impropriety) of the plant’s location. [Footnote
omitted.] Reed’s right to occupy the property was solely dependent on its

17
license agreement; Reed acted with Western Aggregates’ consent and
Western Aggregates selected the exact location.” (Id. at p. 674.)
The relationship between Western and Reed in Cal Sierra is analogous
to the relationship between Sharp and ASMG. Here, but for ASMG’s
contractual relationship with Sharp, Dr. Bogue would not have any claim
against Sharp. Without the Sharp facilities for anesthesiologists to perform
their services, the alleged patient safety concerns would not exist. And Dr.
Bogue would not have claims against ASMG based on his reporting of those
concerns. Conversely, without his employment by ASMG and its provision of
services to Sharp, Dr. Bogue would not have the present claims against
Sharp. Like Reed’s liability based on its agreement with Western, Sharp’s
liability is derivative of ASMG’s based on their contractual relationship.
As in Cal Sierra, despite differing claims “[t]he subject matter of the
litigation here was the same as that at the center of the arbitration dispute
….” (Cal Sierra, supra, 14 Cal.App.5th at p. 674.) As to the primary issue,
whether Dr. Bogue reported patient safety concerns to Sharp and/or ASMG,
Sharp and ASMG “had an identical interest.” (Ibid.) For purposes of both
lawsuits, Sharp and ASMG were invested in whether Dr. Bogue actually
made patient safety complaints and whether the complaints were valid.
Contrary to Dr. Bogue’s assertion that “[n]one of the liability asserted against
Sharp is dependent on any contract Sharp has with ASMG,” Sharp’s liability
here is dependent on its agreements with ASMG because without that
relationship, none of Dr. Bogue’s claims would exist.
Dr. Bogue relies on DKN Holdings to argue the trial court erred by
concluding Sharp’s liability is derivative of ASMG’s liability. DKN Holdings,
however, analyzed whether joint and several liability alone could create
privity for purposes of claim preclusion. The court held it did not, rejecting

18
the defendant’s arguments that under the doctrine of res judicata a prior
judgment against a co-lessee, who defaulted on the judgment, barred a later
claim by the lessor against another co-lessee. (DKN Holdings, supra, 61
Cal.4th at p. 823.) After first clarifying that parties jointly and severally
liable can be sued in separate lawsuits, the court found the lessor’s later
claim against the co-lessee not originally sued could proceed because the co-
lessees were not in privity for purposes of claim preclusion. (Id. at pp. 820‒
822, 825.) The later-named defendant “never contended that he and the
other lessees should be considered the same party” and the lower courts erred
by conflating claim preclusion, which requires privity, with issue preclusion,
which does not. (Id. at pp. 826‒827.)
In reaching this conclusion, the court distinguished the cases involving
derivative liability relied on by the defendant to support his argument that
claim preclusion barred the plaintiff’s claims. (See DKN Holdings, supra, 61
Cal.4th at pp. 827‒828 [“Derivative liability supporting preclusion has been
found between a corporation and its employees (Sartor v. Superior Court
(1982) 136 Cal.App.3d 322, 328; Lippert [v. Bailey (1966) 241 Cal.App.2d
376,] 382), a general contractor and subcontractors (Thibodeau v. Crum
(1992) 4 Cal.App.4th 749, 757), an association of securities dealers and
member agents (Brinton [v. Bankers Pension Services, Inc. (1999) 76
Cal.App.4th 550,] 557–558 [(Brinton)]), and among alleged coconspirators
(Richard B. LeVine, Inc. [v. Higashi (2005) 131 Cal.App.4th 566,] 579
[(LeVine)].].”) DKN Holdings does not conclude, as Dr. Bogue suggests, that
only the specific types of derivative liability discussed in these cases can
create privity. Rather, DKN Holdings simply rejects the assertion “that joint

19
and several liability under a contract” is equivalent to “derivative liability.”

(DKN Holdings, supra, 61 Cal.4th at p. 828.)6
Dr. Bogue also argues that there is no privity between Sharp and
ASMG because in the arbitration ASMG took a position adverse to Sharp. In
support of this argument he points to a single statement in the arbitrator’s
statement of decision and ASMG’s closing arbitration brief. Dr. Bogue,
however, mischaracterizes the context and relevance of these statements. In
the portion of the arbitration decision he cites, the arbitrator is discussing
whether ASMG is a “health facility” for purposes of the whistleblower
statute. In concluding it is not, he states “[n]o evidence has been provided to
me showing that ASMG is an operational component of Sharp.” This
statement is related only to the arbitrator’s determination that ASMG is not
a “facility.” It is not dispositive of whether ASMG and Sharp have privity for
purposes of claim preclusion.
The statements Dr. Bogue cites from ASMG’s closing arbitration brief,
likewise, do not show an absence of privity for purposes of the claim
preclusion analysis. Rather, in the portion of its brief discussing whether Dr.
Bogue established he reported potential MediCal fraud, ASMG noted that Dr.
Karagianes was not Dr. Bogue’s ASMG supervisor at the relevant time, but
rather held only a leadership position with the hospital. Similarly, in
response to Dr. Bogue’s sexual harassment allegations, ASMG’s closing brief
asserted Dr. Bjornson was not Dr. Bogue’s supervisor at ASMG at the time of
the alleged sexual harassment and held only a supervisory position for
Sharp. These assertions by ASMG in the arbitration proceeding do not upset

6 The cases DKN Holdings distinguished also do not undermine our
conclusion. If anything, they support our holding because, like here, they
involve situations where privity is found based on derivative liability.
20
our determination that Sharp and ASMG were privies for purposes of Dr.
Bogue’s claims concerning his alleged patient safety concerns.
2. Dr. Bogue’s Claims Involve the Same Primary Right as That Previously
Arbitrated
For all four of Dr. Bogue’s claims here, the trial court found the same
primary right was at issue in the arbitration: the right to be free from any
retaliation for reporting patient safety concerns. As discussed, “ ‘[w]henever
a judgment in one action is raised as a bar to a later action under [claim
preclusion], the key issue is whether the same cause of action is involved in
both suits. … [I]f two actions involve the same injury to the plaintiff and the
same wrong by the defendant then the same primary right is at stake even if
in the second suit the plaintiff pleads different theories of recovery, seeks
different forms of relief and/or adds new facts supporting recovery.’
[Citation.] [¶] … [T]here is only a single cause of action for the invasion of
one primary right and the harm suffered is the significant factor. [Citation.]
A primary right is the right to be free of a particular injury. [Citation.] ‘The
cause of action is the right to obtain redress for a harm suffered, regardless of
the specific remedy sought or the legal theory (common law or statutory)
advanced.’ ” (Cal Sierra, supra, 14 Cal.App.5th at pp. 675–676.)
Dr. Bogue argues the whistleblower statute creates a different primary
right than the primary right at issue in his arbitration with ASMG. He
asserts that the legislature’s enactment of section 1278.5 “created a new,
cumulative, primary duty and right,” separate from any other right to
protection from retaliation for reporting safety concerns. This argument is
not well-taken.
“Section 1278.5 states, ‘The Legislature finds and declares that it is the
public policy of the State of California to encourage patients, nurses,

21
members of the medical staff, and other health care workers to notify
government entities of suspected unsafe patient care and conditions.’
(§ 1278.5, subd. (a).) To that end, section 1278.5 prohibits a health care
facility from ‘discriminat[ing] or retaliat[ing], in any manner, against a
patient, employee, member of the medical staff, or any other health care
worker of the health facility because that person’ has ‘[p]resented a
grievance, complaint, or report to the facility.’ (§ 1278.5, subd. (b)(1)(A).) …
Thus, to establish a prima facie case under section 1278.5, a plaintiff must
show that he or she (1) presented a grievance, complaint, or report to the
hospital or medical staff (2) regarding the quality of patient care and; (3) the

hospital retaliated against him or her for doing so. (§ 1278.5, subd. (b)(1).)”7
(Alborzi v. University of Southern California (2020) 55 Cal.App.5th 155, 178–
179.)
The basis for Dr. Bogue’s claim under section 1278.5, as set forth in his
amended complaint, is that he made various complaints about patient safety,
and as a result “[m]embers of Sharp’s medical staff and the administrative
personnel unlawfully discriminated and retaliated against Dr. Bogue … by
making false reports to [ASMG.]” The primary right at issue in this claim, as
the trial court found, is Dr. Bogue’s “right to be free from any retaliation for
reporting patient safety concerns.” The harm suffered that Dr. Bogue seeks

7 “In addition to providing that a violation of the section ‘shall be subject
to a civil penalty of not more than twenty-five thousand dollars’ to be
assessed and recovered through an administrative process (§ 1278.5,
subd. (b)(3)) and that a willful violation constitutes a misdemeanor (§ 1278.5,
subd. (f)), section 1278.5–in subdivision (g)–authorizes an employee, a health
care worker, or a member of a medical staff who has been discriminated
against in violation of section 1278.5 to obtain remedies in a civil judicial
action.” (Shaw v. Superior Court (2017) 2 Cal.5th 983, 996, fns. omitted
(Shaw).)
22
redress for is the same in both cases: the retaliation that resulted from the
alleged “false reports” to ASMG by Sharp for reporting the same alleged
safety complaints. (See Boeken, supra, 48 Cal.4th at p. 798 [“The cause of
action is the right to obtain redress for a harm suffered, regardless of the
specific remedy sought or the legal theory (common law or statutory)
advanced.”].)
The claims Dr. Bogue brought against ASMG, both the violation of
Labor Code section 1102.5 and wrongful termination for retaliation, were

based on his alleged reporting of the identical safety concerns.8 The fact that
Dr. Bogue seeks relief for the violation of that right under a different
mechanism, i.e. section 1278.5, does not show he seeks redress for the
violation of a different primary right. (Boeken, supra, 48 Cal.4th at p. 798.)
Dr. Bogue had a full opportunity to litigate the cause of action. The
arbitrator rejected Dr. Bogue’s claim that his termination was in any way
related to his alleged safety concerns about the software being tested at
Sharp’s facilities or his alleged reporting of other patient safety concerns.
Specifically, the arbitrator found Dr. Bogue was not credible and that he had
not reported any patient safety concerns before his termination. Because of
these findings, the arbitrator concluded there was no retaliation against
Dr. Bogue. This determination encompassed the same primary right that

8 Under Labor Code section 1102.5, “an employer may not retaliate
‘against an employee for disclosing information … to a government or law
enforcement agency [or] to a person with authority over the employee … if
the employee has reasonable cause to believe that the information discloses a
violation of [a] state or federal statute, or a violation of or noncompliance
with a local, state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s job duties.’ (Lab. Code,
§ 1102.5, subd. (b).)” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580,
591.)
23
forms the basis for Dr. Bogue’s claims in this case against Sharp. Because
the primary right at issue was not violated, neither defendant can be liable
for the violation of that right. (See LeVine, supra, 131 Cal.App.4th at p. 576
[“But if plaintiff’s primary right is not violated at all, no defendant is
liable.”].)
Dr. Bogue makes much of the fact that the arbitrator did not consider
the conduct of Janie Kramer, a Sharp administrator he alleges wanted him
fired after he raised patient safety concerns about operating room software in
2007 that Sharp was piloting at that time. However, the software issue was
thoroughly examined by the arbitrator in his statement of decision, and he
concluded that there was no retaliation related to Sharp’s reporting of
Dr. Bogue’s complaints to ASMG, which were made directly to the software

vendor.9 We reject Dr. Bogue’s argument that the failure of the arbitrator to
mention the Sharp administrator by name shows a different primary right
was involved in the arbitration.
Dr. Bogue also argues that subdivision (m) of section 1278.5 precludes
claim preclusion. The provision states: “This section does not abrogate or
limit any other theory of liability or remedy otherwise available at law.”
(§ 1278.5, subd. (m).) In support of this argument Dr. Bogue cites Shaw,
supra, 2 Cal.5th 983. In Shaw, the Supreme Court held that the existence of
subdivision (m) made clear that the plaintiff’s parallel claim for damages

9 The arbitrator explained that after Dr. Bogue spoke to the vendor, it
communicated to Sharp that additional training for the software might be
appropriate. Kramer’s disappointment with Dr. Bogue not communicating
first with Sharp was relayed to ASMG, which ASMG viewed as jeopardizing
its relationship with Sharp. The arbitrator concluded that ASMG’s concerns
about Dr. Bogue’s actions and their business impact on the organization vis a
vis Sharp were valid, and there was no improper retaliation as a result of this
situation.
24
under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, based on the
violation of section 1278.5, was permissible. Because the Tameny claim
afforded the plaintiff a right to a jury, and the claims were based on the same
underlying conduct and violation of the law, the court held it did not need to
reach the issue of whether the state constitution separately afforded the
plaintiff the right to a jury trial under section 1278.5. (Shaw, at pp. 1004‒
1005.) The Shaw decision is not related to claim preclusion and does not
show that subdivision (m) creates a new primary right, distinct from the
retaliation claims rejected by the arbitrator. As Sharp states, subdivision (m)
does not limit claims, but it also “does not provide the right to bring a

duplicative, successive lawsuit.”10
We also agree with Sharp that Dr. Bogue’s tort claims are based on the
invasion of the same primary right—to be free of retaliation for reporting

10 The other cases Dr. Bogue relies on are distinguishable. The cases
involve situations where, although the earlier and later claims are based on
the same wrongful conduct, different distinct primary rights were at issue, or
the legislature has specified what preclusive effect a judicial determination
will have. (See Branson, supra, 24 Cal.App.4th at pp. 343‒344 [Corporations
Code section 317 affords corporate agent the right to seek authorization for
indemnity against an adverse judgment, separate and distinct from an
agent’s contractual rights to indemnity]; Le Parc Community Assn. v.
Workers’ Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1172 [claims for
workers’ compensation, a “statutory right to prompt, certain compensation
for all work-related injuries regardless of fault,” involves a separate primary
from the “common law right to be free of … employer’s negligence in
maintaining [the] work environment”]; Agarwal v. Johnson (1979) 25 Cal.3d
932, 955 [racial discrimination claim under federal civil rights law involves a
different primary right than claims for defamation and intentional infliction
of emotional distress because different harms are suffered by plaintiff]; and
Ivanoff, supra, 9 Cal.App.5th at pp. 728‒729 [federal statutory right to full
disclosure of material terms of home mortgage distinct primary right from
earlier litigated right to enforce the terms of the homeowner’s contractual
agreement with the mortgage bank].)
25
patient safety concerns. When Dr. Bogue moved to amend his complaint to
add these claims he stated explicitly they were based on “the same operative
facts of the existing cause of action for violation of Health and Safety Code
section 1278.5.” Although we agree with Dr. Bogue that these are not claims
that could be brought against ASMG, this alone does show the claims involve
a different primary right.
Dr. Bogue argues in his reply brief that he is “pursuing his primary
right to interference-free performance of a contractual obligation, and also
not to have his prospective economic benefit of future contracts with ASMG
interfered with through wrongful conduct.” However, the wrongful conduct
underlying each of these claims is the alleged retaliation for Dr. Bogue’s
reporting of patient safety concerns. In his claims for intentional interference
with contract and intentional interference with prospective economic
relations, Dr. Bogue alleges Sharp made “unjustified derogatory comments
(which were in reality patient safety complaints regarding computer software)”
in violation of section 1278.5 to disrupt his contract. (Italics added.) For his
negligent interference claim, Dr. Bogue alleges without elaboration that
Sharp’s conduct “was a substantial factor” in causing him harm.
Like the whistleblower claim, the factual basis for these three claims is
Dr. Bogue’s assertion that his termination was in retaliation for reporting the
same patient safety concerns that were fully litigated in the arbitration with
ASMG. All four claims arose from the alleged violation of the same primary
right. Critically, the alleged harm suffered by Dr. Bogue was the loss of his
employment with ASMG, a central fact supporting the trial court’s
determination that the claims are based on a violation of the same primary
right. (See Branson, supra, 24 Cal.App.4th at pp. 340‒341) [“ ‘the “cause of
action” is based upon the harm suffered, as opposed to the particular theory

26
asserted by the litigant. … Even where there are multiple legal theories
upon which recovery might be predicated, one injury gives rise to only one
claim for relief.’ ”].)
Finally, Dr. Bogue asserts that a different primary right is at issue
because the arbitrator agreed with ASMG’s argument “that Dr. Karagianes
and Dr. Bjornson—Sharp medical directors who secretly complained to
ASMG about Dr. Bogue—were not ASMG agents or supervisors when they
committed wrongful acts, they were Sharp agents.” Dr. Bogue complains that
because the arbitrator accepted this argument, ASMG escaped liability by
blaming Sharp. This is not an accurate representation of the arbitrator’s
decision. The portion of the decision that Dr. Bogue cites relates to the
arbitrator’s rejection of the factual allegations Dr. Bogue made alleging
discrimination based on sexual orientation. The arbitrator states only that at
the time Dr. Bjornson allegedly heard another doctor refer to Dr. Bogue by a
derogatory name, Dr. Bjornson was not Dr. Bogue’s supervisor at ASMG.
This portion of the arbitration decision is not relevant to the issue of claim

preclusion.11
In sum, we agree with the trial court that the same primary right at
issue in the arbitration, i.e., the right to be free of retaliation for reporting
patient safety concerns, is the only primary right at issue here. Accordingly,
because Sharp is also in privity with ASMG with respect to Dr. Bogue’s
claims, the trial court correctly found the claims are precluded.

11 Likewise, Dr. Bogue’s citations to ASMG’s arbitration brief relate to his
allegations of discrimination and harassment, and medical billing fraud, and
not to the reporting of patient safety complaints.
27
 C
Dr. Bogue’s Due Process Rights Have Not Been Violated
As he did in the trial court, Dr. Bogue argues that his due process
rights are violated if the doctrine of claim preclusion is applied to bar his
claims against Sharp. Specifically, he argues that because the arbitrator
dismissed his claim against ASMG under section 1278.5, the judgment in the
earlier case can have no preclusive effect since he was denied a full and fair
opportunity to litigate the claim. Citing a body of law addressing the related
doctrine of issue preclusion, Dr. Bogue further argues that application of the
doctrine of claim preclusion in the absence of a contractual agreement to
arbitrate with Sharp violates his due process rights.
These arguments have no merit. As discussed, the doctrine of claim
preclusion applies to bar a claim, regardless of the precise theory advanced
against the defendant, so long as the cause of action is the same. (See DKN
Holders, supra, 61 Cal.4th at pp. 826–827 [“Unlike claim preclusion, issue
preclusion can be invoked by one not a party to the first proceeding. The bar
is asserted against a party who had a full and fair opportunity to litigate the
issue in the first case but lost. [Citation.] The point is that, once an issue
has been finally decided against such a party, that party should not be
allowed to relitigate the same issue in a new lawsuit.”].) Thus, the
arbitrator’s dismissal of Dr. Bogue’s statutory claim under section 1278.5
does not prevent ASMG’s privy, Sharp, from asserting the claim preclusion
defense. Because Dr. Bogue had the opportunity to fully litigate his claim for
retaliation for reporting alleged patient safety concerns under Labor Code
section 1102.5 and his wrongful termination claim, and those claims
encompassed the same primary right at issue here, Sharp’s assertion of the
defense of res judicata to Dr. Bogue’s claims is constitutional. (See Cal

28
Sierra, supra, 14 Cal.App.5th at p. 673 [“ ‘ “This requirement of identity of
parties or privity is a requirement of due process of law.” [Citation.] “Due
process requires that the nonparty have had an identity or community of
interest with, and adequate representation by, the losing party in the first
action.” ’ ”].)
With respect to the issue of whether a final judgment entered after an
order confirming an arbitration award can have a preclusive effect in favor of
a non-party to the arbitration agreement, Dr. Bogue relies on authority
applicable to the related issue preclusion, or collateral estoppel, doctrine.
The California Supreme Court case he relies on, Vandenberg v. Superior
Court (1999) 21 Cal.4th 815, holds that “a private arbitration award, even if
judicially confirmed, may not have nonmutual collateral estoppel effect under
California law unless there was an agreement to that effect in the particular
case.” (Id. at p. 824.) In other words, issue preclusion cannot be used as a
defense against a nonparty to the arbitration agreement in a later
proceeding.
This rule, however, does not apply to the doctrine of claim preclusion
because, unlike issue preclusion, both privity between the party to the
arbitration agreement and the later defendant, and identity of the cause of
action are required. (See Vandenberg, supra, 21 Cal.4th at p. 825, fn. 2 [“Our
holding is narrowly circumscribed. Nothing in our decision imposes or
implies any limitations on the strict res judicata, or ‘claim preclusive,’ effect
of a California law private arbitration award.”].) The due process concerns
animating the Vandenberg rule are not present here.
First, unlike claim preclusion, any party, regardless of their
relationship to the prior defendant, can invoke the doctrine of issue
preclusion. Second, issue preclusion may be used defensively to preclude the

29
re-litigation of issues related to claims not fully litigated in a prior
arbitration. Here, because Sharp is in privity with ASMG for purposes of
these claims, and because the claims involve the resolution of the identical
primary right, application of the doctrine of claim preclusion is appropriate.
(See Vandenberg, supra, 21 Cal.4th at p. 828 [Issue preclusion “may also
preclude a party to prior litigation from redisputing issues therein decided
against him, even when those issues bear on different claims raised in a later
case. Moreover, because the estoppel need not be mutual, it is not necessary
that the earlier and later proceedings involve the identical parties or their
privies.”]; see also Brinton, supra, 76 Cal.App.4th at pp. 557–558 [“Defendant
was not a party to the arbitration proceeding. But since defendant’s liability
is merely derivative of [prior defendant], it is unnecessary for defendant to
have been a party to the prior action to assert a claim preclusion defense in
this case.”]; and LeVine, supra, 131 Cal.App.4th at pp. 576‒579 [rejecting
application of Vandenberg where non-party to prior arbitration proceeding
was held to be in privity with prior defendant under theories of aiding and
abetting and conspiracy liability].)
In sum, we agree with the trial court that Dr. Bogue’s due process
rights were not violated. He was provided with a fair and adequate
opportunity to litigate his claim of retaliation for raising patient safety
concerns to ASMG and Sharp.
D
Admissibility of Hearsay Evidence
Dr. Bogue’s final argument on appeal is that the trial court abused its
discretion by allowing hearsay evidence. He contends that he objected to the
use of declarations as evidence in the bifurcated first phase of the trial, and

30
he asserts without any elaboration that the court’s reliance on hearsay
declarations and their attached exhibits was prejudicial.
1. Additional Background
As discussed, just before trial, Sharp moved for a bifurcated trial, with
the first phase addressing only its statute of limitations and res judicata
defenses. The court denied the motion with respect to the statute of
limitations, requested additional briefing on the issue of claim preclusion,
and set a further hearing. At the hearing, the parties agreed that the issue of
res judicata was properly decided by the court, not the jury. After argument
on the issue, the court again asked for more briefing on specific questions
related to the application of the doctrine. The parties submitted the
requested briefing, and the court granted bifurcation on the issue of claim
preclusion and scheduled a further conference to set a timeline for the first
phase of the trial. The transcript for that scheduled conference does not
appear in the record, but shortly after the parties submitted additional
briefing, and Sharp submitted declarations and documentary evidence.
Thereafter, Dr. Bogue filed an objection to the declarations of Sharp’s
CEO, Tim Smith, ASMG’s general counsel, Buberl, and to the exhibits
attached to those declarations on the grounds they constituted inadmissible
hearsay. Dr. Bogue also asserted he was entitled to the opportunity to cross-

examine the two witnesses.12 Sharp filed a response to the objection
asserting the declarations and exhibits were admissible based on the parties’
agreement to a trial on the documents.
At the start of the evidentiary portion of the first phase of trial,
Dr. Bogue’s counsel moved for judgment on defense under Code of Civil

12 Dr. Bogue also objected to a portion of Sharp’s counsel declaration and
two attached exhibits.
31
Procedure section 631.8, asserting Sharp’s claim preclusion defense failed
because it had submitted only inadmissible hearsay in support. Sharp
responded that Dr. Bogue’s argument was meritless because the parties had
stipulated to a trial on the briefs and declarations, with an agreement that
Dr. Bogue could cross-examine the witnesses. The court deferred ruling on
Dr. Bogue’s motion and then Dr. Bogue’s counsel proceeded to cross-examine
Smith and Buberl. In its statement of decision, the court found the parties
had agreed to the use of declarations and exhibits for the first trial phase.
2. Analysis
“ ‘A trial court’s exercise of discretion in admitting or excluding
evidence is reviewable for abuse [citation] and will not be disturbed except on
a showing the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of
justice.’ ” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446–447.) It is well
established “that declarations constitute hearsay and are inadmissible at
trial, subject to specific statutory exceptions, unless the parties stipulate to
the admission of the declarations or fail to enter a hearsay objection.” (Elkins
v. Superior Court (2007) 41 Cal.4th 1337, 1354.)
We agree with Sharp that the court did not abuse its discretion by
considering the declarations and documentary evidence Dr. Bogue challenges
as inadmissible hearsay. Although the record is not complete, it appears that
the parties agreed both that the court would determine the application of the
claim preclusion defense and that the determination would be in part based
on the documents and declarations submitted by Sharp. Dr. Bogue was also
provided with the opportunity he requested to cross-examine the two Sharp
witnesses who submitted declarations.

32
 Importantly, Dr. Bogue does not explain how he was prejudiced by the
court’s consideration of this evidence. Instead, he asserts only the circular
argument that Sharp should not have been allowed to present the evidence,
and that without that evidence Sharp could not have carried its burden of
proof with respect to the res judicata defense. Thus, even if allowing the
evidence was an abuse of the court’s wide discretion, Dr. Bogue has failed to

carry his burden to establish prejudice.13 (See F.P. v. Monier (2017) 3
Cal.5th 1099, 1108 [The California Constitution “ ‘prohibits a reviewing court
from setting aside a judgment due to trial court error unless it finds the error
prejudicial.’ ”].) Accordingly, reversal on this basis is not warranted.
II
Sharp’s Cross-Appeal Is Dismissed as Moot
Sharp’s cross-appeal challenges the trial court’s orders denying its
motion for summary judgment and subsequent motion for judgment on the
pleadings, both based on its assertion that Dr. Bogue’s claims were barred by
the applicable statutes of limitation. Sharp states that it has filed the cross-
appeal as a protective measure in the event that we reverse the judgment in
its favor. In light of our affirmance of the judgment, Sharp’s cross-appeal is
moot, and we dismiss it without reaching the merits. (See Hewlett v. Squaw
Valley Ski Corp. (1997) 54 Cal.App.4th 499, 510, 546 [dismissing protective
cross-appeal as moot upon affirmance of opposing party’s appeal].)

13 We also note that Dr. Bogue’s reply brief contains no response to
Sharp’s arguments on this issue.
33
 DISPOSITION
The judgement is affirmed. Respondent Sharp Memorial Hospital is
entitled to the costs of appeal.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

34